Original Article By Pat Murphy on masslawyersweekly.com

Q: Does former Minneapolis police Officer Derek Chauvin have a viable argument for a new trial based on claims he was denied a fair trial because of media coverage, pre-trial disclosure of the $27 million civil rights settlement with George Floyd’s family, pre-verdict pronouncements of his guilt by political leaders, and/or the denial of his request for a change in venue?

“While the issues raised have merit and do affect a defendant’s constitutional right to due process and fair trial, the unique circumstances of the case will make it extremely difficult to prevail on appeal. The major hurdle for the defense is in showing a change of venue would have made a meaningful difference. The media coverage was not just national and international but also triggered public reaction in every city and town throughout the U.S. The other major hurdle is in establishing prejudice as a result of the disclosure of the civil settlement and statements of public officials. Appellate courts are loath to question the impartiality of a properly vetted and seated jury and will presume the jury has followed the trial court’s instruction to decide the case solely based on the evidence presented and admitted in court. It will be extremely hard to overturn the jury’s verdict in such a politically charged case without solid evidence that greatly undermines the integrity of the trial proceedings.”

Derege B. Demissie
Demissie & Church, Cambridge

 

“Undoubtedly, his jurors were influenced, even if they searched every inch of their heart and soul and said otherwise. Subconscious bias is an unknown to everyone in every courtroom, including the person who harbors it. But a viable argument? The law across this country has largely been written on the backs of the marginalized, such that some amount of prejudice is not just expected but deemed excusable. And once incarcerated, our society tends to look the other way; those convicted by prejudiced juries rarely get a second chance without some evidence of actual innocence. Here however, all the evidence speaks to Chauvin’s guilt as a brutal, cowardly and racist murderer. Moreover, not a single juror acknowledged to the judge, on inquiry, that he or she was influenced by outside factors. Given legal precedent for excusing even conscious bias when it comes to defendants, I doubt very much Chauvin will find a viable argument.”

Victoria Kelleher
Boston

 

“The critical component of this question is how one perceives and applies the concept of viability. Will the claims that Derek Chauvin pursues on appeal most likely include assertions that he suffered a deprivation of constitutional magnitude owing to pre-trial publicity and related matters? Yes, and his counsel certainly should be able to marshal considerable evidence that the type and degree of publicity surrounding these proceedings present fair trial concerns that ought be considered carefully. On the other hand, are those claims likely to prove ultimately successful on appeal and generate a new trial? Probably not, as historically such appellate arguments tend not to be embraced as long as the trial judge considered the issues and authorized some prophylactic measures designed to address the concerns, most usually through reasonably thorough voir dire and admonitions to the jury relating to any consumption of material outside of the courtroom. At bottom, Derek Chauvin possessed the right to a constitutionally fair trial, which most assuredly is not the same as an entitlement to a perfect trial. In this case, the court did not deploy all measures that it had at its disposal, but it did take concrete steps, including careful voir dire, to address the identified concerns of publicity and partiality.”

Andrew J. Gambaccini
Reardon, Joyce & Akerson, Worcester

 

“Although President Biden’s and California Congresswoman Maxine Waters’ comments were spot on and well intentioned, they ran a slight risk of infecting the process and creating a potentially viable appellate issue. Even if the timing was ill advised, an appellate court would still have to find that the comments reached the jury and impacted their deliberations. Both lawyers waded into impermissible territory during their closings. Given the compelling nature of its case, that was an unnecessary risk by the prosecution. Again, however, those mistakes would have to rise to the level individually or collectively, with other appellate claims, as being prejudicial. Recent and local history with the Tsarnaev and Bulger trials demonstrate how challenging it is to prevail on a change of venue claim so that argument is unlikely to succeed.”

Christopher Dearborn
Suffolk Defenders Program
Suffolk University Law School

 

“Does Derek Chauvin have a viable argument for a new trial based on publicity? I say yes. Will he win? I seriously doubt it. In today’s social media and cable news world, highly publicized prosecutions such as this one create an atmosphere in which the entire country, and even the world, is exposed to facts and opinions regarding the guilt or innocence of a defendant. I believe that the appellate court will focus on the extensive voir dire conducted and the latitude given to the defense in questioning the venire in upholding the verdict. The only way an appeal can be successful is if one or more jurors come forward and indicate that their decision was influenced by the public attention given to this trial.”

Leonard H. Kesten
Brody, Hardoon, Perkins & Kesten, Boston

 

“It would certainly seem that Chauvin’s best basis for an appeal would be the denial of a change of venue due to the extensive coverage of his trial. However, I doubt the likelihood of success will be great on such a basis. The denial of a motion for change in venue related to excessive media coverage is reviewed for abuse of discretion. The publicity surrounding Chauvin’s case extended throughout the state and the country. Thus, it is unlikely a change in venue would accomplish anything. Chauvin would face a jury exposed to publicity about the case anywhere in the state. Further, the court examined the jurors’ voir dire testimony to determine whether they could be fair and unswayed by excessive media coverage and public/outside influence. If in their voir dire testimony the jurors indicated that they intended to reach their verdict solely on the basis of evidence presented in court and agreed that they would be fair and impartial, Chauvin’s claim for a new trial on the basis of excessive media coverage is unlikely to prevail. He is entitled to a fair trial, not a perfect trial.”

Douglas I. Louison
Louison, Costello, Condon & Pfaff, Boston

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