“I don’t know whether Derek Chauvin, given the publicity about the case, given the atmosphere, could get a fair and impartial jury because every one of those jury members knew that if there was a ‘not guilty’ finding, their lives were over”
On April 21, 2021, the Legal Insurrection Foundation held a virtual event, Derek Chauvin Post-Trial Analysis. Andrew Branca and I were the panelists, with Kemberlee Kaye the moderator.
The event was a follow-up to our extensive coverage of the trial of Chauvin for the in-custody death of George Floyd. Approximately 500 people attended live online.
Our complete trial coverage can be found at our George Floyd – Derek Chauvin Trial tag. Here are some of the key posts after the evidentiary portion of the trial ended:
- Chauvin Trial: Jury has “a basis” to “find reasonable doubt here, but it’s not what I’m expecting” (WAJ, April 16)
- Former Home Of Chauvin ‘Use of Force’ Expert Witness Vandalized, Smeared With Pig’s Blood (Fuzzy, April 18)
- Maxine Waters: Protesters Need to “Get More Confrontational” If No “Murder” Conviction Of Derek Chauvin (Fuzzy, April 18)
- Chauvin Post-Trial Sentencing: What to Expect (Andrew Branca, April 21)
- Derek Chauvin Trial Tainted By Threats Of Violence Calling Into Question Whether Any Minneapolis Jury Could Be Impartial (WAJ, April 22)
- Alternate Juror in Derek Chauvin Trial: “I did not want to go through rioting and destruction again” (Stacey Matthews, April 23)
HIGHLIGHT REEL VIDEO
Embedded immediately below is a highlight reel excerpting the program, as well as a transcript of the highlight reel. I usually try to keep highlight reels short, but in this case I had a hard time because there was so much good content, and I wanted to include some of the Q&A. So the highlight reel runs 28 minutes out of a 1 hour and 30 minute program. So there still is plenty of content that was left on the editing floor, but you can view the entire program in the video at the bottom of this post.
Please note that the highlight reel compacts clips of statements by the respective speakers and are not single uninterrupted presentations, it should be obvious where the break in the original comes (but if there’s any doubt, you can watch the full video at the bottom of the post). Also, the transcript is mostly auto-generated, so there may be transcription errors.
HIGHLIGHT REEL TRANSCRIPT
(Auto-generated, may contain transcription errors. Time-stamps are approximate.)
Because the highlight reel transcript is longer than usual, I have added some emphasis to parts of the transcript:
Kemberlee Kaye, Director of Operations and Editorial Development, Legal Insurrection Foundation (00:16):
My name is Kemberlee Kaye. I’m the Director of Operations and Editorial Development for the Legal Insurrection Foundation. And I’m also the Senior Contributing Editor for the Legal Insurrection blog. All the [usual] disclaimers, anything that you hear is not meant to be legal advice, nor is anything you hear tonight necessarily indicative of the entity which employs any of this. These are just our personal opinions. My boss, Professor Jacobson, who is a clinical law professor at Cornell law. He is also the publisher of the Legal Insurrection blog, and is also the President of the Legal Insurrection Foundation…
Professor William A. Jacobson, Cornell Law School, and President, Legal Insurrection Foundation (00:52):
I also want to particularly thank Andrew for the amazing job he did chronicling this trial. And I’ve been thinking a lot about this case, the Derek Chauvin case and the death of George Floyd. And I’ve been wondering to myself, because I think a lot of us find it extremely troubling, not so much on the facts of it. My own view is that I could have seen a jury going either way on it. There was enough evidence presented to, I think, meet the statutory definitions. But there also was enough presented to create reasonable doubt. So I wasn’t really sure which way it would go. So, I didn’t have that overwhelming feeling that I had at the close of the Zimmerman case. And part of that, and we’ll get into it, is Zimmerman had better lawyers. And he did not have, as big a frenzy as the Zimmerman case was, it was nothing compared to this.
And I’ve been wondering, preparing for tonight, if the George Zimmerman trial had not taken place in 2013 Central Florida, but had taken place in 2021 Minneapolis, would the result have been the same? And I think the sad truth is probably not. And I think that’s something I’m sure we will get into a lot later, that the threats, the violence, the looting, the announcement that cities are going to burn if there’s a “not guilty” verdict, the statements of a Congresswoman, that if there’s not a guilty verdict on murder, what’s going to happen. And I think that was really the overwhelming thing. And I think that’s what a lot of people find very troubling. I know it’s what I find very troubling, is that I don’t know whether Derek Chauvin, given the publicity about the case, given the atmosphere, could get a fair and impartial jury because every one of those jury members knew that if there was a “not guilty” finding, their lives were over… They were going to be doxed.
They were going to be confronted at home. They were probably going to get fired. Their family members were going to be harassed… Really thinking about this case. That’s one of my big takeaways, which is, in this atmosphere, I don’t know if you could have gotten a fair and impartial jury in Minneapolis in 2021… Maybe you could have gotten it someplace else in the country. And I think the fate was written and sealed in this case, when the judge refused a change of venue. I think the fate was sealed in the case when the judge failed to protect the jurors’ identities. I remember watching the jury selection and thinking, okay, you’re not showing the faces, but my goodness, everybody who works with these people will recognize their voices or their neighbors will recognize their voices. Their family members [will know]. There is no way that this jury is going to stay anonymous even for a day.
And I assure you that if there had been a “not guilty” verdict, there would have been people at houses of jurors already in this case. And so I think the fate was sealed, whatever the evidence is, whatever happened within the four walls of that courtroom, I think that that was, and then the failure to even sequester the jury during the case. But I looked back at my very first post about George Floyd, which was on May 29th of last year, and the medical examiner, as related in the charging document, found that there was no evidence of asphyxiation. And I said, wait a second, here. This is another, you know, Zimmerman case. This is another Trayvon Martin case where there has been a narrative created that there was a knee to the neck. That’s what the video appears to show. And that essentially either his windpipe was crushed, or the blood flow is cut off, but it was that nine minutes of the knee to the neck that killed him.
And, as we now know, that is not actually the prosecution’s theory. That was not their main medical examiner’s theory. Their main medical examiner’s theory was positional asphyxiation, that keeping him in the prone position face down with pressure on his back and pressure on his upper back. And the knee was mostly, according to the testimony, across the upper shoulder, towards the back of the neck. It was not on the side of the neck. It did not crush a wind pipe or anything like that. And so it was the pressure of keeping this person face down, was in fact what killed them. That’s the prosecution’s theory. But I guarantee you turn on any news show today, and they will talk about the knee to the neck, because that is the narrative of the case… I feel in this case, as I do in many of the events we cover in, in many of the cancel culture things that we cover, in many of the critical race training things that we cover, I feel in many ways that we’re living in a “post-truth” world, that narratives are created, they’re impossible to shake. The media goes with them…
…if they’re favorable to what the media wants to happen. The activists go with them, and the Democrat politicians go with them. And this will forever be known as George Floyd having died from nine minutes of a knee to a neck when that is not in fact the prosecution theory of what happened here. And it’s not the medical testimony presented by the prosecution… The other thing I find troubling is that this was in many way, a private prosecution. We think of the State v. Derek Chauvin or the State v. George Zimmerman. But in this case, it was really a bunch of private attorneys who came out of private practice to prosecute this case… I think about the quality of the attorneys in the case. The prosecutors did a very good job. They really did. Those are my takeaways, that’s what’s troubling.
I’m not surprised there was a conviction. But in ten hours, in a case this complicated, on all charges, something’s very troubling about that. And again, it’s not that I think Derek Chauvin necessarily should have walked out of that courtroom a free man. Although I do think there was, on the evidence, reasonable doubt raised, but I do believe also that there was a credible case for a manslaughter conviction here, some sort of negligent homicide. And that’s I guess the last takeaway I have; Minnesota law is very strange. There are things in Minnesota law that have come out through this trial… So, in many ways, this was a very strange case. I wish it had not taken place in Minneapolis. I wish it had taken place either elsewhere in the state or in another state. And if it had, and there weren’t the threats of violence, there weren’t the threats of intimidation, and this had been the verdict, I think people would be a lot more comfortable with it…
Andrew Branca, Attorney and Author, The Law of Self-Defense (08:15):
It was a very complex case on the merits alone. And you can’t really look at the case on the merits alone, because it’s about so much more than that. We have the legal merits of the case. We have kind of, what I would call, “general public policy” questions that rotate around these types of cases like, “Should police be better at de-escalation? Should we get rid of qualified immunity?” all these kinds of general public policy issues. And then, we have all the dynamics around what I refer to as the “racial grievance industrial complex,” guys like Benjamin Crump, people who make millions of dollars off these cases; politicians who get elected to office and accumulate political power off the backs of these cases. Make no mistake. There is a lot of money and political capital accumulated through how these cases are driven… It’s a kind of war that’s going on with repetitive battles and the aggressors in this war, as I would characterize them, just keep getting better.
They’re more well-funded. They’re more sophisticated in their techniques. That’s one of the big ways that the Zimmerman trial differs from this. That was really their first effort at this kind of thing. And they did a lot of stuff that was effective for them, and they did a lot of stuff that was not effective. And they learned from their mistakes. And every time we see one of these trials, the Benjamin Crumps get better and better and better at accomplishing their goals… And of course, we know it’s productive for the politicians because they flock to these things with unbelievable rapidity. That’s why they’re all there. That’s why they’re in the protest. That’s why Maxine Waters flies to [Minneapolis]. Do you believe Maxine Waters has any real interest in visiting Minneapolis? But for this case, she goes there to get the press coverage, to say the things she wants to say on camera, to get that political capital for herself.
And this narrative that gets wrapped around these things. Folks, if you followed my coverage, you have a pretty good sense of what’s true and not true about this case. That’s what I try to deliver to all of you. But guess what? The other 99.9999% of the country has no idea what this case was actually about. They only know what they see in the media and on social media. They only know the lies. They only know the narrative. But if that’s all they know, that’s as true for them as anything you can imagine. It becomes their “lived experience.” And if you do it loud enough, and often enough, and long enough, it becomes people’s truth. And facts cannot permeate that barrier. And that’s why we have cases like this, where it’s effectively, in my opinion, impossible for Derek Chauvin to get anything that resembles a fair trial under normal traditional American sense of what due-process of law and justice are supposed to look like, and impossible for any of these other officers, because you can’t get an unbiased impartial jury when they’ve been steeped in propaganda for the full year.
If you watched any of the jury selection coverage, every one of those jurors came in with, almost without exception, with an existing bias against Derek Chauvin. And they would say so, and the reason they were still seated on the jury is because they were willing to say the magic words, “I’m able to set aside that bias for purposes of being an impartial juror.” Well, do you believe that? Was the actual seated jury really unbiased and impartial when they came into that courtroom? I don’t see it for a moment. And then you have to add in the additional factor of things like personal security, personal safety, family safety, reputational safety, employment security. When they know every day they’re coming to that courtroom, it’s surrounded by barbed wire, cement barriers, National Guardsmen. They’re escorted to the courtroom by state police with machine guns.
That’s not because this is an uneventful trial. This is because there’s a real threat of serious violence occurring. And they all know, everyone was told, “Hey, listen. We’re going to try to protect your identity here,” which is nonsense because all these people basically disappeared every day for three weeks. So everyone in their personal environment knew something was up. They didn’t all just go on vacation. But eventually the judge is going to release their names. And they also know an acquittal means every single one of them voted “not guilty.” They can’t say, “Oh, no, I voted for guilt, but the other people, they out-voted me,” that’s not the way this process works. None of those people could go back to their normal lives as being one of the people who acquitted what the whole world believes is the most horrible racist police murderer ever and expect to have any semblance of a normal life.
And now they’re considering, “Well, alright. We can vote for acquittal, or rather, we can vote for conviction, wrap it up, all go home. It’s all good. Or we can vote for acquittal and live the rest of our lives wondering if we’re going to get shot walking down the street, if our home is going to be on fire in the middle of the night. The fact that they listened to weeks of testimony, dozens of witnesses in a case that had literally over 50,000 exhibits submitted for evidence in court, and they listened to all that, video that the experts who testified said they spent a 100, 150 hours reviewing those videos, each expert said that. And then the jurors go into the deliberations, and, for all practical purposes, a handful of hours later come back with guilty on all counts, that was not due deliberation folks.
That was jurors going into deliberations, looking at each other and saying, “Well, who wants to die this week? All right, guess we’re going to vote ‘guilty’ on all these counts.” … And Judge Cahill basically said, but I don’t think that’s true, I don’t think it would be any different if we delayed the trial or moved it elsewhere in the state of Minnesota. And he’s probably right about that. It’s not like Benjamin Crump and Maxine Waters are not going to go to some other county in Minnesota to protest. They’re going to be there. The mob will be there. You’ll still need the barbed wire and the barriers and the National Guard and all that. The jury is still going to know, “Hey, someday, our names are going to be released. And everyone’s going to know we voted to acquit this horrible murderer.” So I really don’t think it would have been possible to get a fair trial at a later date or a different venue.
But to my mind, the answer to that question, the solution to that problem, is not, “We’ll give the defendant an unfair trial now.” We owe the defendant, any defendant. And I have no personal investment in Derek Chauvin. I don’t care about him individually. That’s not important to me. This case as a single case, it’s not important to me. But I care a great deal about due process of law because the American tradition of justice has always been about the process, not the outcome. We might disagree with the outcome in any particular case, but collectively we agree that, if the process was fair, whatever the outcome is, we accept the outcome as the result of a fair process. But if the process is inherently corrupt, because the jurors are in fear for their lives, well then you can have anything that looks like justice in terms of the outcome.
And that’s independent of the verdict… I don’t believe for a second this jury actually deliberated the legal merits of this case, not in the handful of hours that they returned to verdict... I’ve often said the legal defense in the Zimmerman case was technically perfect. I don’t think that Mark O’Mara, Don West made a single mistake in that entire trial. They were so professional, so perfect in their performance. I cannot say that about this case. I don’t like to second guess the lawyer who’s in the arena, in the battlefield doing the hard work. I’m not saying that if I were in his position, I could do a better job than what he did. But, from my perspective as an outsider, it was just not a perfect defense. And maybe that’s an unreasonable expectation anyway. But when you’re facing all these other challenges, you really cannot afford to do less than a perfect job. You can’t.
And by the way, all of this applies not just to this case, right? This is a long pattern. Now it’s the Zimmerman case. It’s the Michael Brown case with the “Hands up. Don’t shoot” lie. It’s the Jacob Blake case… that the police shot an unarmed man, when the photos clearly show a knife in his hand. So they apply this time and time again. And of course we have more trials coming up, right? We have the Rittenhouse trial. We have the McCloskey trial. We have the Ahmaud Arbery case coming to trial. And the same people are involved in driving the narrative in all those cases as well. And they’re really, really good at it by this point… it’s a world of USSR dimensions where reality doesn’t matter. Truth doesn’t matter. It’s all narrative and power. And you’re told what reality is. And heaven forbid you disagree with the narrative. You’re blocked on Twitter. You’re banned from Facebook. You can’t put your stuff on YouTube…
So, let me just get started with this one, “What did you think about the judge?” I know you touched on this a little bit, but what are your thoughts on the judge? (…)
I would characterize him frankly, as weak. I thought he was a weak judge, a soft judge. Didn’t make very disciplined rulings, pretty much seemed to want to always take the easy way out, whatever would be least problematical for him, from the beginning of the trial all the way to the end. Certainly at least never made any rulings that anyone could characterize as politically risky or potentially divisive. But, in this case, we really did have cumulative evidence. I mean, all those bystanders who all basically saw the same thing, were all allowed to come in, and as, as Bill said, talk about their feelings, how they felt about the case. And not just one or two, but a ton of them. Even a nine-year-old girl was brought in. What was she going to add? You know why she was there, ultimately? So they could talk about her in closing. That was the only reason that she was ultimately brought in, and frankly that’s despicable…. And the same with the experts. The experts came in, and the real point of their testimony was always the same. But again, it was this repetition, repetition, cumulative repetition that I think most judges would simply not have permitted in their courtroom. It was really, really egregious. Again, it’s the process. The process was inherently corrupt…
A lot of people are asking how it’s possible to be convicted of both intentional and unintentional killing of Floyd? (…)
Chauvin was never charged with an intentional killing, which tells us even the State of Minnesota, even the prosecutors don’t believe he intended to kill Floyd. If they believed that, they would have charged him with an intentional killing offense. That never happened. By the way, there’s also a no factual basis or legal basis to believe that race was involved at all in this decision. If you watched the media, this was a racist cop who committed a racist murder, and he’s getting his just deserts as a result. Not only was race never mentioned once as any kind of possible motivation for any of Chauvin’s conduct, but now the state has filed what they call “Blakely” factors for an enhancement of sentencing for Chauvin. You know what’s not on that list of aggravating factors? Anything having to do with racial animus…
I will note on the lack of claim of racial animus or anything like that, the Minnesota sentencing guidelines, I happened to look at them this afternoon, actually have that listed as a specific potential aggravating factor, that you targeted somebody because of their race, gender, national origin, and five or six other things. So it’s right there in the book, and they didn’t charge that. They’re not seeking that at least as of now. So this entirety of this being a racially motivated crime, which I think, if you took a poll, probably 90% of people would believe, is not something that prosecutors have ever alleged in this case. And they’ve had plenty of opportunity to do it…
If you could talk just a little bit about the issues on appeal and to your mind, which ones are the strongest? (…)
I don’t think the Maxine Waters comment is going to get this reversed…. but there’s a lot of conduct here, which in another case might give rise to an appealable issue, which has not been preserved. We don’t know if any of the jurors heard what Maxine Waters said. Now maybe there’s something we don’t know about, but as far as we know, we don’t know that… I think that there’s a lot of evidence [that] was led in, and I don’t know what was objected to by Nelson, but a lot of the opinion evidence I don’t think should have ever come in… They let a guy who touted himself as a mixed martial arts guy come in and give an opinion that this was a blood choke, as essentially an expert, when blood choke isn’t even the theory of death here… The first several days were consumed with having people come in and talk about blood chokes and putting somebody to sleep by cutting off their carotid artery. And that actually is not the prosecution theory. How did that get in? So there was a lot here that should not have happened. And so, I think there are a lot of appealable issues, but there are people on TV saying, “Oh, this is going to get reversed on appeal.” I don’t think so for many of the same reasons that the jury took 10 hours…
Much of the public has the idea that an appeal is kind of like a “do-over” of the trial. It’s nothing of the sort, folks…. That said, there are a lot of issues here that I think are grounds for an appeal, but that’s not the same thing as saying it makes it likely that he’ll get this conviction reversed. It just means he’ll have a very difficult shot at trying to get something then. And, by the way, if it gets reversed, it’s almost certainly going to be reversed and remanded for another trial, which means he gets to go through the process again…. But the prospect that all this will be made good on appeal, I think is simply not a realistic view of how these things go…
How did both the defense and the prosecution end up so incredibly mismatched, right? So you have one attorney on the defense and then you have an entire team and seemingly endless resources working for the state. How does that happen? (…)
You end up at the end of the trial with an exhausted attorney, who’s out resourced, who’s doing the best job he possibly could that maybe anybody could possibly do, but it begins to feel not like justice when there’s such a disparity in resources that are being brought to bear.
Yeah. I mean, I think one of the problems… I think Nelson did the best he could, but the defense would have really benefited from having an attorney whose sole focus was the medical evidence. You could see the difference. Nelson did really well cross examining the use-of-force experts, the policemen, even the bystanders. And it wasn’t the same guy when it came to cross examining the medical experts… A lot of the medical evidence was ridiculous, as Andrew mentioned, this pulmonologist calculating second-by-second the oxygen capacity of a lung, and the cross examination was so weak. Has anybody ever done that before? Is this like an acceptable means or [are there] any peer reviewed journals, which allow somebody to do this? The cross was so weak on that, so it’s unfortunate again. Would it have made a difference?
I don’t know, but I think Eric Nelson, on the normal things you would expect a criminal defense lawyer to face, was really good. But most criminal defense lawyers don’t deal with this level of sophistication of medical stuff… One thing I do want to point out about this, I think there’s a broader issue. I don’t want to overstretch it based on this case, … but also this was very much a corporate gathering of resources to prosecute somebody who was politically unpopular. There’s nobody more hated in America than Derek Chauvin. These are corporate lawyers. These are people whose day-to-day clients are extremely wealthy corporations, who volunteered their time. And we see it on so many political issues where corporate America is gathering around and using their resources for political purposes. And I think that’s what happened here, that the state has 130 prosecutors…
…on their payroll. They could have done a very good prosecution with state prosecutors, but corporate lawyers, corporate law firms wanted in on this case. And I think we should think about what that signals…
I would like to get quick closing thoughts.
These are very troubling times. If you look back at the other online events we’ve had, it’s cancel culture; it’s critical race theory; it’s the 1619 Project. And it seems to all come out of nowhere, but of course it didn’t come out of nowhere, just like the politics of this case did not come out of nowhere. You can trace them back to the Zimmerman case, maybe longer. But for me, at least, that’s where a lot of this started… And I think we’re very close to a place in this country, because of the internet, because of the ability to doxx people, because of [intolerant] politicians, where in certain types of cases, I don’t know that anybody can get a fair trial in this country. And that’s a really sad point that we’ve come to… I think we’re at an extremely bad place in the country, but I don’t think it can go on much longer. Something’s got to give. Something has to give with this repressive, cancel culture, this mob mentality, the lack of respect for due process in the courts. Something’s got to give, and I don’t know what’s going to give, but it just can’t go on.
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