Wednesday morning, ABC's Good Morning America featured a revelatory interview. Brandon Mitchell, juror 52 in the trial of former Minneapolis police officer Derek Chauvin for the murder of George Floyd, was interviewed by Robin Roberts. What he had to say was that jurors did not respect Derek Chauvin's right not to testify. The abridgment of that fundamental right, guaranteed by the Fifth Amendment, will likely now be a key issue on appeal.
Ms. Roberts asks Mr. Mitchell about midway through the interview, "Derek Chauvin not taking the stand – did that have an impact? Not hearing from him – the former officer?"
The answer was a gift for Mr. Chauvin's appellate team as Mitchell replied:
"Yeah, definitely it did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout.
You know it probably was to his detriment that he didn't take the stand 'cause people were curious on what his thoughts were throughout the entire incident."
Criminal defendants may testify in their defense, or not, and it is a decision left solely up to the defendant him or herself. According to the Fifth Amendment, no person "shall be compelled in any criminal case to be a witness against himself." This right is so fundamental and the decision so important and consequential there are often special procedures in place to make sure the right is respected. During Chauvin's trial, for instance, Judge Peter Cahill held a separate miniature hearing to determine whether the defendant would take the stand and whether he reached the decision independently. The judge asked Chauvin:
"If you would like, I can read this instruction to the jury. It's titled Defendants Right Not to Testify. The state must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify; this right is guaranteed by the federal and state constitutions; you should not draw any inference from the fact that the defendant has not testified in this case."
Chauvin said yes to the special instruction and got it, apparently to little avail from what we know now. Mr. Mitchell is the sole juror who has spoken publicly about his jury service so far. Good Morning America did not reply to LN's request for details on whether the program paid Mr. Mitchell or a third party for the interview and, if so, how much.
Can Chauvin Use This To Get Free?
Mike Lawlor, an associate professor at the University of New Haven who is a nationally recognized expert on criminal justice reform, said in an interview with Insider that Chauvin's conviction would stick unless something unlikely happens, like a juror coming forward in an interview and expressing bias. "If you had one of the jurors give an interview now that says, 'Look, I had my doubts, but I was afraid what would happen to me if I voted not guilty'?" Lawlor said. "I mean, if you've got that, you may not even need an appeal to get a new trial."
The issue Professor Lawlor represents is not identical to the one juror 52 disclosed, but that doesn't mean this violation is any less severe. The right against self-incrimination is not a newly discovered bit by a progressive appellate circuit – it is fundamental. For now, Mr. Chauvin will have to wait for that review. He is scheduled for sentencing back in Judge Cahill's courtroom on June 25.
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Read more from Scott D. Cosenza.
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