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Derek Chauvin Files Appeal Cataloguing Pervasive Trial Misconduct and Irregularities

Derek Chauvin Files Appeal Cataloguing Pervasive Trial Misconduct and Irregularities

It’s all extremely detailed with evidence images and testimony. And none of it is likely to make a difference.

This is something of a post-script to our extensive coverage of the trial of Derek Chauvin in the death of George Floyd.

Throughout the trial and in the aftermath, we noted numerous trial errors that deprived Chauvin of a fair trial. The most obvious problem was the open and obvious threat of rioting and burning the city (and other cities) down if there were a not guilty verdict. See these prior posts for some of the problems we noted:

Chauvin was sentenced to 22.5 years on the state charges, and later pleaded guilty to federal civil rights charges guranteeing a roughly equivalent time in prison.

Nonetheless, Chauvin has filed an appeal from his state conviction. I’m not sure the logic there since he pleaded to the federal charges. Perhaps readers have insight into that, and can post in the comments.

To round out the circle, here is Chavin’s Appeal Brief, which catalogs the trial errors. Here are some as listed in the Table of Contents to the Brief:

B. The Pervasive Prejudicial Pretrial Publicity, Jurors’ Concerns for Their
Safety If They Did Not Convict Chauvin and Physical Threats to the
Courthouse Required the Court To Change Venue, Continue the Trial, or
Fully Sequester the Jury Under Minn. R. Crim. P. 25 and the 6th and 14th
Amendments……………………………………………………………………………………………….. 42

1. Under Both Minn. R. Crim. P. 25.02 and the United States Constitution,
the Court Erred by Denying Chauvin’s Motion To Change Venue. ……………. 42

2. The Pretrial Publicity Surrounding the Case, Combined with the Riots,
Announcement of the Settlement in the Middle of Voir Dire and Further
Riots During the Trial, Results in a Presumption of Prejudice……………………. 44

a. The Media Publicity Was Pervasive and it Was Overwhelmingly
Hostile to Chauvin and Law Enforcement in General. …………………………. 45
b. The Threat of Violence Resulting from Acquittal Were Plain—As
Demonstrated by the Deployment of the National Guard Days Prior
to Jury Deliberation. ………………………………………………………………………… 46
c. The City of Minneapolis Announcement of the $27,000,000
Settlement Exasperated the Prejudice. ……………………………………………….. 47
d. Numerous Jurors Expressed Concerns for Their Own Personal
Safety…………………………………………………………………………………………….. 48
e. Media Interfered with Courtroom Proceedings by Spying on the
Attorneys and Disclosing Courthouse Security Measures. ……………………. 50
f. The Riots After the Duante Wright Killing Required a Transfer……………. 50

3. Jurors Demonstrated Actual Bias Against Chauvin. …………………………………. 51

4. In the Alternative, the Jurors Should Have Been Sequestered Upon
Their Selection. ……………………………………………………………………………………. 52

5. The Court Should Have Delayed the Trial – Particularly Because No
Jury Trials Had Been Conducted In Minnesota Due to Covid-19……………….. 53

C. The Court Should have Held a Schwartz Hearing. …………………………………………… 53

D. The Third Degree Murder Charge Against Chauvin Must be Dismissed and a
New Trial Ordered Because this Charge Allowed the State to Introduce
Evidence of Chauvin’s “Depraved Mind” Which Is Irrelevant to
Unintentional Second Degree Murder. …………………………………………………………… 54

E. Chauvin’s Conviction Should Be Reversed Because Police Officer Cannot
Be Convicted for Felony Murder Under Minnesota Law. …………………………………. 54

F. The Court’s Jury Instructions Failed to Properly Set Forth the Graham v.
Connor Standards………………………………………………………………………………………… 57

G. Chauvin’s Conviction Should Be Reversed Because the Judge Allowed
Cumulative Opinions on the Use of Force………………………………………………………. 58

H. The Court Improperly Excluded Evidence of MPD Training Materials
Establishing That MPD Trains Officers to Putting their Knees on the
Suspect’s Back. …………………………………………………………………………………………… 60

I. Morries Hall’s Testimony or Statement Should Have Been Admitted………………… 61

J. Chauvin’s Conviction Should Be Reversed Because of Prosecutorial
Misconduct. ………………………………………………………………………………………………… 63

K. Chauvin’s Conviction Must Be Reversed Because of the Court’s Failure to
Transcribe the Entire Proceedings. ………………………………………………………………… 65

L. The Cumulative Errors Rendered the Trial “Structurally Defective.”…………………. 66

M. Chauvin’s Sentence Should be Reduced to the Presumptive Range. ………………….. 67

Read the details, not just the Table of Contents. It’s all extremely detailed with evidence images and testimony. And none of it is likely to make a difference.

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Comments

Why he made a plea agreement that literally gives exactly the same sentence in a federal prison to be served at the same time as the other.

    Federal prisons offer more comfortable facilities and opportunities?

    I thank Officer Chauvin for his service and wish him well. Minnesota did him wrong.

      sheldonkatz in reply to NotKennedy. | April 29, 2022 at 10:00 am

      That’s it? That’s not nothing, but still. At any rate, the federal charges (not to mention the state charges) were completely unjustified, and even more unjustified was insisting that those charges proceed while his appeal was ongoing. Everything about this matter is a travesty

      Danny in reply to NotKennedy. | April 29, 2022 at 10:11 am

      But lets say he wins all of his appeals

      He is still in federal prison for exactly the same amount of time as if he never filed those appeals so what exactly is the point.

    Hm. If he wins his appeals and gets free of the state charges, does that stop the certain lawsuits against him by George’s family and associated uncharged relatives, even if he still has Federal convictions? (a non-lawyery guess)

      Observer in reply to georgfelis. | April 29, 2022 at 2:37 pm

      Why would they sue Chauvin? He has no money, and they’ve already received tens of millions of dollars from his employer, which was the only deep-pocket player in this drama (being funded by taxpayers).

      Danny in reply to georgfelis. | April 29, 2022 at 9:45 pm

      No because you don’t need to murder someone as a police officer to incur civil liabilities for abuse of the office which is something Derek Chauvin is still very much convicted of via the federal plea deal if he wins all of his appeals.

      Once you are legally convicted you absolutely did it (even if you didn’t) so if he win this fine he didn’t murder George Floyd but he very easily matches this description for suing

      “wrongful arrest and detention
      unlawful seizure of property
      unlawful searches
      assault and battery
      negligent use of force” (source https://stepstojustice.ca/questions/criminal-law/can-i-sue-police-violating-my-rights/ )

      I am agnostic about which experts from the trial to believe, but still have questions about if the trial was or could have been fair.

      That said he gets nothing whatsoever out of winning this appeal assuming he does win.

      It is similar to way OJ Simpson is absolutely innocent of even the thought of murder in the eyes of the law and had nothing to do with his wife being killed even though we all know he did it.

    Edward in reply to Danny. | May 3, 2022 at 11:15 pm

    The only rational answer I can think of is a President can issue a Pardon for a Federal conviction, but not a state conviction. While I highly doubt he will win on appeal (not that he shouldn’t win, but there’s no way MN will let him go after breaking many, many rules to “get” him), the Federal conviction just might be enough of a “sweetener” to let somewhat honest state appellate judges release him. Ah, a new fairy tale could be made of that.

The time to file this appeal was immediately after the trial.

Instead he waited nearly a year after his conviction, and over 4 months after pleading guilty to federal charges.

By waiting this long, and PLEADING GUILTY to federal charges, he completely screwed himself out of any chance he might possibly have had of a successful appeal.

I literally do not understand the point of this. What benefit does he think he can POSSIBLY get out of this? I mean if Trump were in office maybe I could see the logic that if he proves the trial was a joke and gets it overturned, he could appeal to Trump for a pardon/clemency, and that might have had some chance of success.

But now? The drooling dementia patient doubtless has no idea who he even is, and his insane leftist handlers would never allow a pardon.

So I have literally no clue what the point of this appeal is after this amount of time.

    Many of us keep referencing Biden as president, as if he’s in charge of anything. He’s a puppet: this is Obama’s third term, and it’s going exactly as planned.

      Excuse me, but Obama was pure puppet too! His lack of any meaningful intelligence was painfully evident whenever he wasn’t reading the Teleprompter. Can we be frank and state that it is the Globalists that are in charge and have been ever since Regan left office. These knuckleheads that we’ve been calling “President” are merely foot servants of NWO/Bilderburg/whatever they’re now referred to.

      Obama’s so called degrees were bought by the obscenely wealthy Saudis and even his grade school records had to be bought to cover for the dope that he is and was.

        Peabody in reply to Jmaquis. | April 29, 2022 at 10:03 am

        Well, let me tell you something. When you compare the intelligence of Obama with Biden…..oh crap. Never mind.

    George_Kaplan in reply to Olinser. | April 28, 2022 at 11:33 pm

    Who filed the appeal, Chauvin or a lawyer? My understanding is that immediately after the first guilty verdict he lost all legal support, unlike the Black cop who blew away the unarmed Australian woman in her pajamas. It is possible that Chauvin has had to do his own research and draft his own appeal. If that’s the case then it’s no surprise it took so long.

    Mauiobserver in reply to Olinser. | April 29, 2022 at 2:49 pm

    I have read on another blog (Powerline) that he was denied a public defender for his appeal and that non leftist attorneys in the state were able to find his current lawyer to appeal his case.

    So it appears that he may have wanted to file an earlier appeal but the state refused to supply a public defender and he did not have funds to retain counsel on his own and only through a group of attorneys committed to justice did he finally get assistance.

    OleDirtyBarrister in reply to Olinser. | May 2, 2022 at 7:23 pm

    No.

    Chauvin’s attorneys needed to use all tools available to them to preserve his rights, which meant starting with the motion for a new trial prior to sentencing. He lost on that motion and was sentenced. He can appeal the verdict, the sentencing, and the denial of a motion for a new trial.

    The trial went on for many weeks, somewhere around 6-7, and it probably took months to obtain the transcript and have the official record transmittted to the appellate court.

He gets his day in a hopefully less kangaroo court environment to get the egregious abuses of justice visited on him on record.

A Pyrrhic victory perhaps, but those count when you are sitting in a cell without much else to think about.

Why is he doing this?
Maybe he finally found someone that would help him

    LongTimeReader in reply to gonzotx. | April 29, 2022 at 8:11 am

    Unless I am remembering incorrectly the union washed their hands of him once he was found guilty so he no longer had any attorney he paid for via their dues or programs. It may have taken him this long to scrape together funds for it.

    You are never going to convince me this 140# man harmed Floyd intentionally. Floyd dwarfed him. Had he not been spiraling down into the effects of his bad heart and drugs, he would have flung Chauvin around like a rag doll.

      Observer in reply to LongTimeReader. | April 29, 2022 at 2:51 pm

      The ME who did the autopsy concluded in his original report that Floyd had died because his badly diseased heart failed. There was zero evidence at autopsy of any damage or injury to Floyd’s body because of the knee restraint. But the ME revised his report after being subjected to threats and coercion from “activists.” That fact alone should have been enough to get the charges thrown out. This was never a legal prosecution, it was a political persecution from start to finish.

        DaveGinOly in reply to Observer. | April 30, 2022 at 12:09 am

        The prosecution called four separate expert witnesses to testify as to Floyd’s cause of death. They each had their own theory about how Floyd died. At best, this means that even the experts couldn’t agree about what killed him. At least three of them were wrong, and there’s a strong possibility that all four were wrong (without even considering the ME’s conclusions). At worst, they were guessing (aka “making up shit”) and were just saying what they were hired to say. There was zero physical evidence that Floyd was so much as injured by Chauvin’s actions.

IANAL but I think it’s possible to withdraw a guilty plea and request a new trial if you can legitimately claim the original plea was made under duress.

    taurus the judge in reply to drednicolson. | April 29, 2022 at 7:52 am

    No, duress wont do it in a criminal case after the court has accepted it and he has been sentenced. (everybody is “under duress” in a trial)

    For him to prevail on such an attempt, he has the VERY HIGH BAR to PROVE ( burden is on him) that there was a material fact ( such as ineffective counsel, misleading evidence, He was literally threatened with harm or the agreed elements were not done) and then that “fact” has to be so strong that it could have altered the end result of the trial.

    Possible yes but extremely difficult and expensive. ( and I think doubtful in this case given the undue political influences present)

Close The Fed | April 28, 2022 at 10:43 pm

So appalling, how he was sacrificed for dem electoral reasons. I wouldn’t be a police officer in such a jurisdiction if you offered me ownership & control of Twitter.

Can you say railroaded? This country is indeed systemically racist. Against whitey

I agree professor. Inasmuch as he was blatantly railroaded in the state trial, I believed Chauvin had an excellent appeal prospect, but then he inexplicably went and pled guilty in the federal case. I can’t imagine the legal strategy going on there, other than an effort to show contrition, but if so, the timing of that was all wrong.

    Interested Party in reply to maxmillion. | April 29, 2022 at 12:16 am

    I think Federal Prison was probably decided to be safer for him.

      My take also.
      But a mistake I think.
      Chauvin is innocent. Floyd died of a drug overdose. Chauvin is a political prisoner.

        William Jacobson: I don’t understand why this one isn’t the lead point in your article

        The Hennepin County Attorney Improperly Meets with the Hennepin County Medical Examiner Before He Completed His Investigation. ………………………………. 5

        This appears to be criminal conduct

          I believe there is pre and post edit versions of the ME report and he only changed it to homicide after political pressure and improper communications/threats were received

          Barry in reply to rduke007. | April 30, 2022 at 11:34 pm

          Yep, the criminals are the prosecution, judge, and jury. They are indistinguishable from a court proceeding in the Soviet Union.

      Clearly, he’s still alive

    Danny in reply to maxmillion. | April 29, 2022 at 10:15 am

    Any appeal is up against overwhelming odds. The vast majority of cases the trial is final.

    Alan Dershowitz having a successful appeal for a murder conviction is still taught in legal lectures because such appeals succeeding are extremely rare.

    This appeal may be boredom or just trying to get his family to see the evidence he presents so they won’t see him as a murderer?

    He knows if he wins the appeal he is still in federal prison for exactly the same amount of time.

    DaveGinOly in reply to maxmillion. | April 30, 2022 at 12:13 am

    Is it not possible to be guilty of a civil rights violation yet not be guilty of murder? I don’t see that that “innocent of murder” but “guilty of civil rights violations” are mutually exclusive.
    Can someone explain why they are in this situation?

None of this matters as he will never be allowed to see the light of day.

I dont know whether he should be guilty or not but it is irrelevant in practice at this point because it would never happen even if it went all the way to the Supreme Court.

My 2 cent theory is some Dems are giving him hope of success just to get this back in the news for the grievance industry to get some kindling. This serves zero other purposes.

    mailman in reply to healthguyfsu. | April 29, 2022 at 2:12 am

    His crime was being a police officer in a Democrat city carrying out his duties in a Democrat police department in a Democrat State as per Standard Operating Procedures (did I mention in a Democrat city??).

    His other crime was being white.

Jonathan Cohen | April 29, 2022 at 5:45 am

Whether or not Chauvin was guilty of something, there was no way he was going to get a fair trial. He was the victim of mob justice. There is a word for such extra legal punishment. It is called lynching.

Sadly, schools no longer explain American history to children. The result is that they grow up with no understanding of the constitution and how important it is to the freedom we enjoy. The bill of rights outlines the rights given to criminal defendants which are guaranteed to all including the prohibition against double jeopardy. The federal charges violate the spirit of the bill of rights if not the letter of it.

Under the pressure of mob violence, many of our cities have simply legalized resisting arrest. As a result, the number of police shot is at record high numbers and thousands more people have been murdered , the vast majority of whom are black.

taurus the judge | April 29, 2022 at 7:44 am

I hate it and this guy was railroaded and we all know it.

As former LE, I have some issues with his conduct and process during the incident but none rise to the charges and convictions he got.

Sadly, his guilty plea is going to crucify him ( almost impossible to get around a guilty plea even when factually innocent) and probably sink his chances here too.

Either his counsel was ineffective and incompetent or they simply conspired and sold him out to allow that and then to wait this long to file.

I wish him success and to undo this travesty of justice but his chances are almost nil.

    It really wouldn’t have made any difference whether a legal titan, such as Milhouse, was representing this guy. The outcome was already decided.

    broomhandle in reply to taurus the judge. | April 29, 2022 at 10:03 am

    You are right – he was totally railroaded. His legal team fought hard but was completely outgunned by limitless resources invested in the prosecution.

      taurus the judge in reply to broomhandle. | April 29, 2022 at 11:01 am

      I don’t quite agree. (on his team)

      The state “always” has he same deep pockets so that’s nothing new.

      I personally believe his legal team sold him out. They went through the proper procedures but hardly “fought”.

    Correct me if I’m wrong
    The plea was to FEDERAL charges, jury convicting on State charges

    Federal prison is easier than state prison (so I’m told-unless they find those parking tickets from the ’80s… 🙂 )

Paul In Sweden | April 29, 2022 at 9:00 am

The Derek Chauvin case reminds us how the crazies rule the streets/courts. Police Officer Derek Chauvin followed police procedures designed by the medical community and used by police departments all across the nation. Had Fentanyl Floyd not had lethal doses of Meth & Fentanyl in his system, he would probably be alive today. It is shameful that this miscarriage of justice was allowed to occur.

    Observer in reply to Paul In Sweden. | April 29, 2022 at 2:59 pm

    Even if Floyd had kicked his drug habit, it’s unlikely he’d be alive today — not unless he’d had heart surgery to clear out those 95% blockages in his major arteries, or new veins grafted in to re-route the blood. His heart was in terrible shape, which is why he died, or at least that’s what the pathologist who autopsied him originally concluded (before he was coerced and threatened to change his opinion to satiate the “social justice” mob).

I concur there are numerous reasons for mistrial , especially related to proscecution misconduct.

I also agree that burden of proof on appeal is on the defendent and that hurdle is extremely huge (I dont recall the exact term, but the hurdle is huge)

Reasons for new trial
1) failure to obtain change of venue,
2) huge pool of blatantly obvious biased jurors
3) threats of physical harm to jurors
4) Daubert challenges to police use of force experts – specifically the paid whore that always testifies against police use of force
5) false testimony on cause of death by “medical experts”
Note that by the 7th grade, we learn the basic mechanism on how oxygen & CO2 in the blood is exchanged in the tiny air sacs in the lungs. Obvious, the excess fluid in the lungs from the fentyal overdose was the cause of death – in summary Floyd drowned.

My take as a lawyer:
1. If state conviction is vacated, he goes to a federal facility. Much, much, better conditions.
2. If state conviction is vacated, he only needs a presidential pardon or commutation to be freed. Could easily see a Republican president saying that the sentence was too harsh and commuting/reducing it. Going to be much harder to get that from the Governor of the Peoples Republic of Minnesota.

    sheldonkatz in reply to coralbrief. | April 29, 2022 at 10:10 am

    I would say he should get a presidential pardon, but understand that would not be possible. Commutation would be good. Of course, his life is ruined and he would probably be in danger

    gmac124 in reply to coralbrief. | April 29, 2022 at 4:18 pm

    “If state conviction is vacated, he goes to a federal facility. Much, much, better conditions”

    It was my understanding that he pled guilty to the federal charges to get moved to the federal facility immediately. If he went to a state prison his life expectancy would have been measured in at most months. (more likely it would have been days or weeks)

    Danny in reply to coralbrief. | April 29, 2022 at 9:53 pm

    1. He is already going to a federal facility as condition of his guilty plea. I also am highly skeptical about stories of how much nicer federal prison is.

    2. No Republican President is wading into this. The narrative is just too deeply embedded in Republicans (see Hannity’s coverage of the case if you doubt that).

    Chauvin may be thinking the second (I would be self deluded if I was going to spend 25 years in jail at 45 then be released into a world with zero dollars and zero cents) but he is wrong if he is.

    When he plead guilty to federal charges he was making a decision he would be in his late 60s before he ever got to spend another day outside of a prison.

When the other three officers got convicted I wondered if their teams might help Chauvin with his appeal. Perhaps, if he gets a new trial they have a better chance? It gets confusing with the federal vs. state conviction.

    Danny in reply to McBain. | April 29, 2022 at 9:58 pm

    Their chances don’t get much better if the conviction is vacated. Victories on appeal are extremely rare to the point you really shouldn’t expect anything beyond the verdict and sentencing. If he wins his appeal that means he didn’t get a fair trial, you need more to appeal a conviction than an accomplice of yours didn’t get a fair trial.

E Howard Hunt | April 29, 2022 at 10:29 am

Chauvin is the greatest American hero.

    Gosport in reply to E Howard Hunt. | May 1, 2022 at 5:30 am

    Let’s not further devalue the term ‘hero’.

    Chauvin was a cop who found himself in a bad situation, nothing more, or less.

A successful State appeal potentially nullifies the factual basis for the Federal plea.

The judge made an error in reinstating the 3rd degree murder charge during the trial. During and after the trial, the Minnesota Supreme Court found in another similar case that this charge doesn’t apply. So, the Judge’s reinstatement seriously complicated the jury’s decision, because Chauvin was convicted of second-degree “felony murder.” I.e. In this second degree murder conviction, there is no premeditated intent. Instead, the malicious intent from the assault carries over to the murder. BUT, the assault has to be a felony offense. This is hard to prove, because police officers often end up assaulting a person who resists their attempts to restrain them and a police officer has a legal right to do this. So, the prosecution relied on the “depraved mind” intent in the 3rd degree evidence and requirements to form the malicious intent of the murder charge. Because the Supreme Court ruled this doesn’t carry over in a similar case, its hard to justify the conviction. The Appeal will also likely allow more leeway on sentencing, which was overly harsh for a first-time offender.

Juris Doctor has a good point about the Federal plea, because his plea was based on Minnesota following proper criminal procedures and evidence in convicting him.

    Gosport in reply to ruralguy. | May 1, 2022 at 6:20 am

    Police officers do not often end up “assaulting people” nor do they have a legal right to do so.

    They may however end up physically subduing a suspect, which is their job.

I am not an attorney but inadequate counsel was the obvious problem from the beginning. Chauvin might have contributed to Floyd’s death but he neither strangled Floyd nor did he supply lethal pressure. There is a well-known problem with commpressional or positional asphyxia. This is where pressure on the back and over the diaphragm can, over a surprisingly short period (can be 10 minutes or less), produce loss of consciousness and death. Aside from all of the medical information I researched within a few days of the event and shortly after the release of the autopsy finding, there was also some pretty good legal information dealing with this. See the two articles in AELA Monthly Law Journal from December 2008 on “Restraint and Asphyxia” and January 2009 on “Restraint Ties and Asphyxia and Compressional Asphyxia” It is very common for people who are hogtied or have someone on their back to complain that they can’t breathe. Moreover, the technical parts of the autopsy showed absolutely zero trauma to the neck or airway.

The amount of information on the problem, along with successful lawsuits dealing with this method of restraint was so extensive in my preliminary research as to leave no doubt in my mind that an interested party off the street should have been able to mount a more successful defense that Chauvin’s attorney.

The person who was positioned to apply lethal pression was the guy pressing on Floyd’s back: Alexander Kueng. The defense should have pointed to this fact, even though I don’t think any of the officers realized how dangerous this mode of restraint was. However, it was critical for the Jury to understand that lethal pressure did not come from Chauvin but from fellow officer Kueng.

I tend to be very critical of the police organizationally and individually. I see a large chunk of people in law enforcement to be self-selected authoritarian types. That said, police officers are entitled to the equal protection of laws just like every citizen. Chauvin was malpracticed. He is still being malpracticed. This has been an appalling miscarriage of justice.

There is a distinction between the legal definition of battery and assault, and the popular view. For example, battery is a physical act that results in harmful/offensive contact with another, without that person’s consent. Obviously, any resisted arrest by a police officer meets that definition. But, that “battery” doesn’t apply to police who are allowed to use force or actions to protect the interests of the public. Yet, this interest doesn’t allow excess force that goes beyond a balance of the arrestees rights and the public’s interest. The same applies to “assault” and even killing someone. The “balance” interest of the public and individuals interest can allow it.

OleDirtyBarrister | May 2, 2022 at 7:19 pm

The reason Chauvin’s attorneys may have for pressing the appeal is to establish additional state, and perhaps federal precedent if it reaches SCOTUS, on fair trial issues that may benefit other police officers if they face trial in a highly political and emotional setting in the future.

It would be interesting to know who is paying for or contributing to the cost of the appeal. If law enforcement related entities are paying or contributing it would be a sign to me that they are very concerned about their member officers being railroaded and scapegoated in the future if this conviction with this amount of procedural misfeasance is allowed to stand.

If Chauvin prevails on some or all of the grounds asserted, particularly before SCOTUS on federal due process related grounds, it would help the next officer being prosecuted in a circus like proceeding.

OleDirtyBarrister | May 2, 2022 at 7:27 pm

Further, if Chauvin can win in the state case and force another trial, he is probably better served not having undergone a second trial in the federal system. The feds might have done a better job and adduced more evidence and created a better record in the second trial [first federal trial] that would make a second state trial more difficult. It is always a risk when more testimony, tests, examinations, and paper are generated against a criminal defendant.