Derek Chauvin Files Motion for New Trial and To “Impeach the Verdict” Due To Jury Misconduct
“jury committed misconduct, felt threatened or intimidated, felt race based pressure during the proceedings, and/or failed to adhere to instructions during deliberations, in violation of Mr. Chauvin’s constitutional rights to due process and a fair trial.”
It’s not a surprise that Derek Chauvin has filed a Motion for a New Trial and to Impeach the Verdict (pdf.). If MN is like other states, that’s a requirement to preserve issues for appeal.
What does surprise me is that the motion does not explicitly mention that one of the jurors may have lied on the jury questionnaire, as issue we explored earlier today, Chauvin Juror Admits Participating In Pre-Trial Protest, Photographed In “Knee Off Our Necks” T-Shirt. Some of the language, quoted below, likely is broad enough to cover that juror.
[Brandon Marshall on right. Image via Post Millennial]
1. For an order granting a new trial, pursuant to Minn. R. 26.04, subd. 1, on the following grounds: the interests of justice; abuse of discretion that deprived the Defendant of a fair trial; prosecutorial and jury misconduct; errors of law at trial; and a verdict that is contrary to law. The specific bases for this motion include, but are not limited to:
a. The Court abused its discretion when it denied Defendant’s motion for a change of venue, pursuant to Minn. R. Crim. P. 24,03, subd. 1, and 25.02, subd. 3, in violation of Mr. Chauvin’s constitutional rights to a due process and a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).
b. The Court abused its discretion when it denied Defendant’s motion for a new trial on the grounds that “publicity during the proceedings threaten[ed] the fairness of the trial[.]” Sheppard, supra. Such publicity included post-testimony, but predeliberation, intimidation of the defense’s expert witnesses, from which the jury was not insulated. Not only did such acts escalate the potential for prejudice in these proceedings, they may result in a far-reaching chilling effect on defendants’ ability to procure expert witness—especially in high-profile cases, such as those of Mr. Chauvin’s codefendants—to testify on their behalf. The publicity here was so pervasive and so prejudicial before and during this trial that it amounted to a structural defect in the proceedings. See United States v. Hasting, 461 U.S. 499, 508-09 (1983) (certain errors involve “rights so basic to a fair trial that their infraction can never be treated as a harmless error”).
c. The Court abused its discretion when it failed to sequester the jury for the duration of the trial, or in the least, admonish them to avoid all media, which resulted in jury exposure to prejudicial publicity regarding the trial during the proceedings, as well as jury intimidation and potential fear of retribution among jurors, which violated Mr. Chauvin’s constitutional rights to due process and to a fair trial. Minn. R. Crim. P. 26.03, subd. 5.
d. The State committed pervasive, prejudicial prosecutorial misconduct, which deprived Mr. Chauvin of his constitutional rights to due process and a fair trial, including but not limited to: disparaging the Defense; improper vouching; and failing to adequately prepare its witnesses.
e. The Court abused its discretion and violated Mr. Chauvin’s rights under the Confrontation Clause when it failed to order Morries Hall to testify, or in the alternative, to admit into evidence Mr. Hall’s statements to law enforcement regarding his interactions with George Floyd and presence at the May 25, 2020 incident. U.S. Const., amend. VI.
f. The Court abused its discretion when it submitted instructions to the jury that failed to accurately reflect the law with respect to second-degree unintentional murder, third-degree murder, and authorized use of force.
g. The Court abused its discretion, in violation of Mr. Chauvin’s constitutional rights to due process and a fair trial, when it permitted the State to present cumulative evidence with respect to use of force.
h. The Court abused its discretion, in violation of Mr. Chauvin’s constitutional rights to due process and a fair trial, when it ordered the State to lead witnesses on direct examination.
i. The Court abused its discretion, in violation of Mr. Chauvin’s constitutional rights to due process and a fair trial, when it failed to order that a record be made of the numerous sidebars that occurred during the trial.
j. The cumulative effect of the multiple errors in these proceedings deprived Mr. Chauvin of a fair trial, in violation of his constitutional rights. See State v. Duncan, 608 N.W.2d 551, 551-58 (Minn. App. 2000), review denied (Minn. May 16, 2000) (“when the cumulative effect of numerous errors”—even if, alone, the errors are harmless—“constitutes the denial of a fair trial, the defendant is entitled to a new trial”).
The only shock above is that the Judge didn’t create a record of sidebars. That’s unfathomable, and leaves many rulings incapable of being contested on appeal, or at least a lot harder.
Next, the Motion to Impeach the Verdict (emphasis added):
2. An order for a hearing to impeach the verdict, pursuant to Minn. R. Crim. P. 26.03, subd. 20(6) and Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. 1960), on the grounds that the jury committed misconduct, felt threatened or intimidated, felt race based pressure during the proceedings, and/or failed to adhere to instructions during deliberations, in violation of Mr. Chauvin’s constitutional rights to due process and a fair trial. State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979); State v. Kelley, 517 N.W.2d 905 (Minn. 1994); State v. Bowles, 530 N.W.2d 521 (Minn. 1995).
Last, a request for more time to fully brief the issues:
3. For an order granting the Defense additional time to thoroughly brief the above issues, in light of the time that was required for preparation of partial transcripts of the proceedings
Seems to me the Judge could start with alleged jury misconduct, particularly Brendan Mitchell. If the Judge finds juror misconduct, the rest of the substantive issues are moot, and a new trial must be granted.
If there was no juror misconduct, then the Judge can address the substantive grounds, though I expect him to give them short shrift, figuring it’s an issue for appeal, particularly as to his own alleged abuse of discretion.
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Comments
No sane person can honestly answer ‘yes’ to the following question: “If you had been on the Chauvin jury and had serious doubts about any portion of any of the charges, any one of the three, would you have felt safe voting not guilty?”
Nobody wants an angry mob outside their family’s house, and if any of the jurors had voted the ‘wrong’ way, they would have gotten it.
Change of venue for the re-trial?
M
aybe only in florida or some other country?
It can’t be tried outside Minnesota.
One of the reasons Cahill gave for denying Nelson’s motion for a change of venue was that the case had already been so publicized there was nowhere in Minnesota where Chauvin could get a trial that could be any more fair than in Minneapolis. And since he didn’t get a fair trial in Minneapolis, and he can’t get a fair trial anywhere else in the state due to all the factors mentioned above, including violent mobs intimidating and threatening the jurors, what’s the solution since he can’t be tried out of state?
Hand him over to the violent mob so they can proceed with the lynching?
He might have a chance at a fairer trail in the dead of winter in a far northern MN town like International Falls.
Arminius,
Andrew Branca has noted that, since Chauvin (was) legally innocent, if the Court explicitly stated it could not ensure him a fair trial then he shouldn’t have been tried at all.
A criminal trial is at the discretion of the State and Court, The State is the aggrieved party, no one else has “right” to demand that one be held.
Trying him under those circumstances is blatant injustice. It’d never happen, but it might force the race grifters and media to shut up and stop creating mob rule, if they actually want to try the people they’ve decided are guilty to ever be tried.
The judge’s ruling on the change of venue motion failed to take into account the fact that local jurors have to go on living in the community where it happened. If the jury hung, they would all have been in fear of being fingered (correctly or not) as the holdout who caused the mistrial. That put a level of pressure on them that jurors in other parts of the state would not have felt.
Roseau County in northern Minnesota is a place where Chauvin could get a fair trial.
As an Army veteran (rated an “Expert” marksman) and very familiar with small arms, I would feel completely safe voting my conscience. BLM rioters would come at me, my family or our home at their own grave peril.
I am not “insane,” but I will admit that I’m not the average citizen.
I looked at 2020 voting results by Minnesota county, and Hennepin was #2 in the state for Biden (70%). There were numerous counties that were close to 50/50 that would have been better choices.
The people of Northfield MN know how to handle violent criminal invaders, or used to know.
Not only should he get a new trial, but also a change of venue. He’ll never get a fair trial in that city.
It should be held at Camp Ripley with a jury from that county.
This man is innocent
Of homicide, yes. Of brutality, no.
And since he wasn’t on trial for “brutality”…
Where was the brutality? Chauvin tried to accommodate Floyd’s unwillingness to get into the car, offering to have an officer sit with him, roll down the windows, turn on the AC, etc. Then he put Floyd on the ground, as Floyd requested. He used his knee to restrain him, a technique he’d been trained to use, and one that has been used on thousands of other suspects, with no ill effects. Floyd could still raise his head, he could still talk. When Floyd stopped moving, Chauvin and the other cops thought he had just passed out from the drugs (as evidenced by their comments heard on the tape: “he’s passed out; he’ll be fine” etc.). The cops also thought that the EMT’s would arrive at any second, since their station was just a couple of blocks away. And Chauvin had been trained to keep drug-addled suspects under restraint, even after they pass out, because they can suddenly regain consciousness and become violent. There was no evidence that Chauvin knew Floyd’s heart had stopped. One cop came and tried to take a pulse, but we don’t know if Chauvin even knew he couldn’t find one. Chauvin was focused on the threatening and hostile (and loud) crowd. He had no way of knowing about Floyd’s severely diseased heart.
His training included rolling out of the restraint position because it was well known to cause duress. So characterising the restraint as within his moral training isn’t realistic. There is also an expectation of using ones judgement, given the length of time holding the position. Given Floyd already had handcuffs it’s not unreasonable to say that his judgement wasn’t all that great.
My reply is to Mark 311. When I first saw the video of GF on the ground, I was sick. I had no other facts and made a snap judgment. My first doubt came when the autopsy showed no neck damage and the heart condition. Then, when I learned the facts about the drugs, reasonable doubt started taking over. After following the trial here at LI, reasonable doubt is my final judgment. The restraint position was not a move that Chauvin made up. It doesn’t matter who is placed in the restraint; it looks ugly. I believe that GF was in the midst of a heart attack and at some point, was not going to be able to be compliant for the reason that he was having a heart attack. I don’t know exactly when. He started saying he couldn’t breathe while standing, but he could have been hyperventilating due to stress. The reaction of Maurice Hall is also a big deal. He knew that if a person dies during an overdose, the police look to who sold the drugs, which leads to charges. In Pennsylvania, it is a 10 year sentence if convicted. As another pointed out, Chauvin used the restraint on another person, I believe an out of control kid whose mom called the police. The restraint was for over 17 minutes. To me, maybe the larger size of the individual leads to the restraint, at least for Chauvin. Nelson fought to keep out the incident and apparently won. It would have demonized Chauvin even more. However, given the verdict, that two arguments that the restraint was not used in his department and it leads to sure death would have been taken away or at least ameliorated. If he gets a new trial, I would expect him to testify. He’s got nothing to lose as he is already synonymous with every kind of evil one could imagine.
Mark, his training was to roll out of that position when and if, in his judgment, it was safe to do so. Floyd had for the moment stopped resisting, which is why one of the junior cops suggested maybe it was time to move him to another position, but in Chauvin’s judgment that was not a good idea, and you are in no position to say his judgment was wrong.
First, it is well known that people on drugs often come out of unconsciousness and resume fighting. It had taken four cops to get him down the first time; now that they had him down Chauvin didn’t want to risk letting him up and then having to do it all again, with no guarantee that they’d succeed the second time.
Second, he explicitly said, and it’s on the video, that he was worried about excited delirium; the police training was that patients in excited delirium must be fully restrained for their own good. The ambulance was already overdue, and therefore could be expected to roll up literally any second, so the safest thing to do was to keep him as he was until then.
The idea that since he was in handcuffs he couldn’t resist is total rubbish. He’d already fought off the police while in handcuffs. And during the trial there was a case in the news of a handcuffed prisoner managing to grab a cop’s gun and murder him with it. I’m guessing Nelson was too tired and busy to keep up with the news, but someone should have brought it to his attention, and he should have made sure the jury heard about it.
@Willow,
I appreciate our view, a lot of this is a matter of judgement. You clearly sit one side of the fence which is absolutely fine, its a difficult call. I personally feel that he made the wrong judgement in using that restraint position for such a long time. So what if he was aggravated he had cuffs on, He simply wasn’t a threat.
@Milhouse
“his training was to roll out of that position when and if, in his judgment, it was safe to do so. Floyd had for the moment stopped resisting, which is why one of the junior cops suggested maybe it was time to move him to another position, but in Chauvin’s judgment that was not a good idea, and you are in no position to say his judgment was wrong.”
His fellow officers disagree, and testified to that effect.
“First, it is well known that people on drugs often come out of unconsciousness and resume fighting. It had taken four cops to get him down the first time; now that they had him down Chauvin didn’t want to risk letting him up and then having to do it all again, with no guarantee that they’d succeed the second time”
He was in cuffs, additionally in terms of risk him getting up and being difficult was no issue vs the potential for injury or dying. Sorry not a good judgement call.
“Second, he explicitly said, and it’s on the video, that he was worried about excited delirium; the police training was that patients in excited delirium must be fully restrained for their own good. The ambulance was already overdue, and therefore could be expected to roll up literally any second, so the safest thing to do was to keep him as he was until then.”
There are multiple methods of providing restraint. The specific training for the one he used included rolling out of it because of the potential injury it could cause.
“The idea that since he was in handcuffs he couldn’t resist is total rubbish. He’d already fought off the police while in handcuffs. And during the trial there was a case in the news of a handcuffed prisoner managing to grab a cop’s gun and murder him with it.”
Citing a single case which is highly unusual isn’t sufficient reason. That’s pure speculation.
“ Of brutality, no.”
Chauvin stayed within his training, and used less force than “authorized” based on the circumstance.
He restrained a suspect with minimal force. He requested medical aid for an unspecified medical event. The medical event preceded the restraint and prompted the exit from the police vehicle. He is, at worst, guilty of negligence, but even then there is reasonable doubt to how some else under the same circumstances would have manged the situation.
brutality is not a recognized legal term so it means nothing.
There is nothing brutal about pinning a noncompliant criminal with a knee on their shoulder. It was Floyd who created the circumstances.
You are not a “conservative”, rather you are a marxist. And I highly doubt you’ve ever been in Tennessee.
The only thing brutal about this whole affair is the communist crowd of ants like you.
Tennessee disagrees with you, and possibly misunderstands an aspect of the case, but that doesn’t make him a Marxist, or an ant.
There’s nothing “brutal” about a restraint that left not a mark and did zero physical damage. Chauvin had used this restraint on another suspect (who also complained “I can’t breathe”) for nearly twice a long (17 minutes) as he used it on Floyd. That suspect survived and was likewise uninjured from the restraint.
Change of venue…. Chicago, Baltimore, D.C., Detroit?
Memphis, St. louis, Atlanta, Wilmington…
OK, folks. Read the article first this time
Can’t really think of anything to say though…. 🙂
Looking forward to Andrew Branc’s writeup….
Again, may the Schwartz be with you. (Suburban bus and all, you know)
did you just go into plaid?
never go full plaid. LOL
Well that was quick, thought I might take a little longer for him to file something like this but it makes sense to try and get it in before the sentencing phase of the trial is done. I wish him luck in this effort, there were a lot of forces lined up against Chauvin for this trial. A change of venue is definitely in order but the question is where in Minnesota (pretty sure it has to stay in state) can they hold this that won’t already have been influenced by the trial that just took place? That won’t be swayed by hordes of protestors descending upon that town? Then there’s the issue with the feds who were going to charge him should he have been found not guilty on the state charges. I hope he’s working on defenses for that should he win this motion for a new trial and to impeach the verdict.
Here’s a link to county-by-county 2020 voting results. MN is a sea of red outside of Minneapolis/St. Paul. There are numerous counties that are close to 50/50 that would be better than Hennepin.
https://www.politico.com/2020-election/results/minnesota/
They could hold the trial at Camp Ripley Training Center (53,000 acre National Guard base 1.5 hrs north of Minneapolis). Solves the protester problem.
Yes outside of the major metropolitan areas (which Dems control) his odds improve. Do have a question though for those who know: Holding the trial at Camp Ripley, isn’t that a military base? Wouldn’t there be some complications from holding a civilian trial at such a location? Is it even legal to do it at such a location?
Military bases are often on land that the state actually still owns. The state merely cedes some (or all) jurisdiction to the federal government over the land. That cession can range anywhere from essentially none (proprietary interest only) to complete (the states cedes any and all jurisdiction to the feds). In between are varying levels (three, if I recall correctly) under which that state and the feds share jurisdiction. (For instance, in one of the levels the state retains its criminal jurisdiction over the land, and can try people for crimes committed on the military reservation.) So whether a state can hold a criminal trial on a federal reservation may depend upon the type of jurisdiction (if any) the state reserved to itself on the reservation.
Thank you! I guess then it depends on if Minnesota retains criminal jurisdiction over the land.
Seems to me that a fair trial is impossible and therefore, the case should be thrown out. You can’t do a trial if there is no chance of a fair trial.
So since the uncle’s name is Mitchell, and he says his nephew’s name is Mitchell, is the caption wrong, or does this guy use aliases?
The uncle and the younger Mitchell’s father are brothers. (Not saying this is a fact, but it replies to the question – no need to invoke the possible use of aliases.)
My uncle Albert is my father’s brother. We all share the same last name.
Looks like I wasn’t totally clear about my objection — the caption called him “Marshall” instead of “Mitchell,” and I couldn’t find either name in the rest of the article. But I since found one “Mitchell” way at the bottom of the article, so I guess it’s just the caption that is wrong.
If the trial judge could make the dubious decisions he did, then appeals judges can certainly be expected to follow his example and determine that “the context in which the issues noted in the appeal took place makes it clear that the defendant’s rights were not adversely affected, and there are no conflicts with existing law”.
There’s no way anyone in the judicial system will take a chance on being responsible for another round of rioting, when they can just “go along”, and kick the issue upstairs to a higher court. And the Supreme Court can conveniently deny a request for certiorari with no explanation and wash *their* hands of the issue.
Can’t see the motion being granted, even if well-taken.
Can see the Appeals Court finding harmless error, even if the jury was meting out social justice.
Minnesota is a desperately wicked place. Officer Chauvin did nothing wrong and must be exonerated. Whatever amount Minnesota squandered on the family of George Floyd, ten times that amount should be awarded to Chauvin.
Hell, if Ilhan and her faith tradition brother husband are good enough for Congress then Senator Chauvin is perfect for Governor.
It must be nice being Mitchell right now — knowing that a corrupt city that won’t even prosecute people for arson and looting is unlikely to come after him for perjury.
not a SBCIH that Chauvin will get a new trial.
once in a while, the monster we have created has to have a human sacrifice
just the way things are in this country now
stay in your cruiser and stay out of the system
Yes, the razor wire, fences, barricades and plywood has already been removed from the Hennepin County Courthouse and downtown business so things are back to normal in Minneapolis and doubt any judge on the court will risk starting that process again. However if you consider as normal there being 176 shots fired in St. Paul Saturday night as being normal.
If any judge does get up enough courage to order a new trial, the Fargo/Moorhead Area in January would be an ideal place for a new trial.
Frostbite Falls. I have it on good authority (heard if from a moose and a squirrel) that the place is absolutely brutal in winter.
Given the judge’s pro-prosecution bent, it wouldn’t surprise me if the sidebars were deliberately not entered into the record in order to obstruct any potential appeal.
If it is standard procedure in MN courts to record sidebars and defense counsel didn’t know that that wasn’t happening until after the trial that seems an appealable item to me, though I don’t know what any possible remedy could be. Since the sidebars weren’t recorded it becomes almost impossible to attack the judge for bias.
Prof. J implies that this omission will redound against the defense. I find it odd that an act of the court, taken without the advice and consent of the defense, can later be held against the defense, when the act was entirely outside of the defense’s control.
If I recall correctly the issue about the undocumented sidebars was brought up after the last witness testimony or on the day of closing arguments. I’ll have to double check the videos.
Why did Nelson omit the untimely discovery with 5000 exhibits of evidence produced by the prosecution during the trial?
it would probably fit under this section of the appeal
d. The State committed pervasive, prejudicial prosecutorial misconduct, which deprived Mr. Chauvin of his constitutional rights to due process and a fair trial, including but not limited to: disparaging the Defense; improper vouching; and failing to adequately prepare its witnesses.
Recall the corrupt, biased left-wing Trump hater Tomeka Hart who was the jury forewoman in the Roger Stone trial.
She had refused to answer yes or no to the question of whether she had made any public comments about Stone. She said she couldn’t remember.
Recall the corrupt, biased left-wing Trump hater Judge Amy Berman Jackson. She refused to overturn the verdict over Hart’s obvious bias, claiming that her hateful social comments were merely disagreements with Trump over policy. Hah.
But that’s over and done with. The issue I recall is that even before Jackson allowed Hart to lie her way out of that pickle, one issue other defense attorneys brought up was Stone’s defense attorneys had to prove they couldn’t find her social media posts. If the posts were available and they didn’t locate them then that was on Stone’s defense team.
In this case the damning posts weren’t on juror #52’s social media sites. They were on his uncle’s. Shouldn’t that should make it easier for Nelson? That he did do his due diligence. But that he couldn’t know about Brandon Mitchell’s uncle Travis, and thus couldn’t be expected to find the uncle’s photo gallery of Brandon Mitchell’s protest activity.
MN has spent decades voting away freedom by voting Democrat. Do not expect justice to suddenly appear now on appeal. That would be counterrevolutionary and Marxists to not tolerate that. Regarding the appeals court, what corruption does not cover, extorsion will. “It would be really bad if something happened to a member of your family.”
Chauvin is a statistic to these Democrats/Marxists. The other residents of MN are also expendable but I do not know if they realize it yet. And this includes the glib useful idiot from the jury. The jury surrendered. The appellate courts will surrender. That is the plan of the plantation and the Democrats have experience in such systems.
There will be no re-trial and the appeals will be denied. The whole apparatus of state gummint in MN is scared senseless by the threat of the mob.
Pray for Ashli Babbitt!
I am praying for exposure of the prick who shot her.
No retrial and the Twin Cities can say goodbye to their police forces. The people are all but demanding mob/street justice so give them what they want. Perhaps then the voting public will understand the consequences of their actions.
Is there anyone in this country who could not have predicted this?
I wonder if showing the video over and over again–which jurors mentioned influenced them–should be considered–was it necessary? I have heard in other cases photographs of the crime scene or deceased are shown but not shown over and over. Many people just said the video showed DC killing Floyd so why even have a trial?
Brandon Mitchell got caught lying again. He tried to deny owning the BLM George Floyd T shirt. He has been caught wearing the same shirt in a youtube video of his podcast.
https://twitter.com/JackPosobiec/status/1390003587988733953
I see you Trumpgoobers are still firmly in the “denial” stage of grief.
Thanks for the unintentionally hilarious comments.😘
And I see you are still incapable in dealing in facts or the merits. Project much?
Professor Jacobson
I am wondering how you would rate the chances of the appeal and is the juror lying on the jury form alone enough or do they need more evidence than the fact that he lied?
The reason I’m asking isn’t to be snide it is because I don’t know and I trust your judgement on these kinds of legal issues so would like to know.
On topic, sort of: Garrett Rolfe, the Atlanta cop who shot Rayshard Brooks, has got his job back, with back pay for the time he was illegally fired. He still faces criminal charges brought by a corrupt DA who has since been defeated, which have not (yet) been dropped by his successor.
Brooks is the guy who fell asleep at the drive-through window at Wendy’s. The cops came, woke him up, and told him to park the car and take a nap. He fell asleep again, they woke him again and made him park, then they breathalyzed him and found him to be drunk. He was cooperative until they tried to arrest him, when he suddenly turned aggressive and fought them, stole Rolfe’s taser, shot at him with it, and took off. Rolfe shot at him and killed him.
The supreme court has modified the old common law Fleeing Felon rule, making it apply only to dangerous felons. That makes sense, since nowadays there are so many felonies, and many of them involve no violence, so people who commit them are not a danger to the public. But for any felon whose roaming around endangers the public, the old rule still applies. Deadly force may be used to stop him fleeing. It was reasonable for Rolfe to conclude that Brooks was a dangerous felon, who could not be allowed to escape.
The case was complicated by the fact that Brooks had taken off in possession of the cop’s Taser, which made him an armed felon. I think that’s the only detail that saved Rolfe’s hide.
Brandon Mitchell keeps digging his hole deeper and deeper with more nonsense statements in the media.
https://twitter.com/JackPosobiec/status/1390355931075170306