On Tuesday, jury selection in Derek Chauvin’s trial for the unlawful killing of George Floyd began. And what a beginning it was. Juror #1, a Mexican immigrant, told the court she didn’t know if she could be a juror due to language difficulty. After moving to strike her and another Hispanic panel member, defense attorneys had to fight a challenge that they were acting with racially discriminatory intent.
Monday, the trial was halted before it began. According to the Minneapolis Star Tribune, “Attorney General Keith Ellison’s office persuaded them [the court] to delay the process until the Court of Appeals could determine whether they were allowed to move forward.” The issue there concerns a charge of third-degree murder. The prosecutors and Ellison wanted to include a third-degree murder charge against Chauvin, but the trial court threw it out. It appears Ellison, the progressive Democrat former congressman, hopes a ruling in an unrelated case can be used to force the third-degree murder charge back on the table.
Hennepin County District Judge Peter Cahill said before ending court early on Monday, “Unless the Court of Appeals tells me otherwise, we’re going to keep moving.” And so they did, on Tuesday, seating three jurors by the end of the day. There will be 12 jurors voting on Mr. Chauvin’s guilt, but the court will continue until they have 16 total qualified jurors on hand. The extras are alternates held in the event a seated juror cannot continue serving until a verdict is reached.
A note on Judge Cahill: At first blush, he looks like just the kind of judge a defendant or prosecution should want in any case. He seems disinterested in the passions of the day and instead is focused on the flow of evidence and witnesses in his courtroom. Judge Cahill appears to be interested in calling balls and strikes rather than making any political points.
Jury of Whose Peers?
A venire is a group from which jurors are chosen. Voir dire is the name of the examination a juror undergoes before being seated. They may be questioned by the judge, prosecutors, or defense attorneys, individually or collectively. The examinations are designed to determine if they have any prejudice that may make them not suited for jury service or reveal any other relevant facts about them that may impinge on their ability to sit in judgment fairly.
Jurors may be stricken for cause if it is revealed they are not able to be impartial. That might mean they posted on Facebook, “I hope they fry the SOB!” or memes that mirror that sentiment. Or, perhaps a prospective juror came from a family of police officers and wrote social media posts about it, or simply believes that Chauvin has been unjustly charged. Stricken just means told thanks anyway; you will not be seated on this jury. The judge himself can strike a juror for cause and has done so already in Chauvin’s trial. The court is tasked with seeing the defendant get a fair trial, too. Most strikes are initiated by the attorneys, however. If a prosecutor or defense lawyer issues a challenge for cause, the judge rules then and there, and the juror is turned away or allowed to be seated.
Then there are peremptory challenges. These challenges are designed to give lawyers the ability to strike someone from the jury panel for reasons that don’t meet the for-cause threshold. For cause, challenges are unlimited, but lawyers only get a few peremptory challenges. With a peremptory challenge, a lawyer may strike a prospective juror for any reason but three – the juror’s race, ethnicity, or sex. That means an attorney may say a person is too tall, not tall enough, drives a blue car, doesn’t know how to drive, etc. It is to give the advocate a chance to strike someone who, for reasons that escape a for-cause justification, may still be valid.
In Minnesota, for a case without the possibility of a life sentence, “the defendant has fifteen peremptory challenges, and the prosecution has nine.”
Those challenges used to be genuinely discretionary until the U.S. Supreme Court carved out the exceptions noted, starting in 1986 in a case called Batson v. Kentucky. That case said that race was an impermissible reason for a peremptory challenge. A “Batson” challenge then is when one side says the other is challenging based on race, and now sex or ethnicity. The court then has to decide the striking party’s motivations to determine if they are permissible or not. If that sounds like a farce, it’s because it is. But, it’s the law, and prosecutors here tried to use it against Chauvin’s lawyers.
Jurado Número Uno
First, the defense struck Juror #1. She said she had trouble with English. She sounded like someone who struggled with the language, and the Mexican immigrant needed her husband to read her the questions from the juror questionnaire, which were posed in English. Well, her husband and Google translate. Judge Cahill did not, however, strike her from the jury pool, and in fact, denied the defense motion to do likewise. So, the defense used a peremptory challenge, and she was sent home.
Later in the day, Chauvin’s defense challenged another potential juror for cause. Because he “identified as Hispanic” and because Juror #1 was also Hispanic and challenged by the defense, prosecutors cried foul. To them, there was no reason besides race the defense moved to strike a barely English literate potential juror, along with a man who said he knew about martial arts and that Chauvin used an “illegal” move on George Floyd. In response to the Batson challenge, the court responded by examining the lawyer’s motivations in open court.
Judge Cahill agreed the defense had a race-neutral reason for striking the jurors, as any non-woke or social justice warrior type would concede. One hopes this means race-baiting and trading on emotions and energy rather than the evidence will not rule this trial.
Derek Chauvin’s trial on 2nd-degree murder and 2nd-degree manslaughter charges in George Floyd’s death resumes Wednesday. Mr. Chauvin sat quietly through Tuesday’s proceedings, and with a mask on, left little to discern for observers. Jurors have been told to report back to court on March 29 for the start of the trial, which Judge Cahill said should take four weeks. Jury selection resumes Wednesday morning.
Read more from Scott D. Cosenza.