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R.I.P George Floyd

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2 jurors dropped from Chauvin trial after $27M settlement
STEVE KARNOWSKI and AMY FORLITI - AP

MINNEAPOLIS (AP) — A judge on Wednesday dismissed two jurors who had been seated for the trial of a former Minneapolis police officer accused in George Floyd’s death over concerns they had been tainted by the city’s announcement of a $27 million settlement with Floyd’s family.

Hennepin County Judge Peter Cahill recalled seven jurors who were seated before the settlement was announced last week, and questioned each about what they knew of the settlement and whether it would affect their ability to serve. Former officer Derek Chauvin’s attorney, Eric Nelson, had requested the recall.

The dismissal of only two jurors suggested the impact of the settlement on the jury pool was less than feared, likely reducing the chance of Cahill granting a defense request to delay the trial.

Cahill was careful to ask jurors if they had heard the news of the settlement without giving details, saying only that there had been “extensive media coverage about developments in a civil suit between the city of Minneapolis and the family of George Floyd” and asking if they were exposed to it.

The first dismissed juror, a white man in his 30s, said he had heard about the settlement. “I think it will be hard to be impartial,” he said.

“That sticker price obviously shocked me,” the second juror dismissed said. The Hispanic man in his 20s said he thought he could set the news aside, but wasn’t sure, and after a long pause, Cahill dismissed him.

Cahill retained five other jurors, including a Black man in his 30s who told Cahill he heard about the settlement on the radio Friday evening but could put it aside and decide the case only on evidence presented in the courtroom.

“It hasn’t affected me at all because I don’t know the details,” he said.

Jury selection had been proceeding faster than expected, with opening statements tentatively expected March 29 at the earliest, but the two dismissals could imperil that start date. Nine people had been selected for the jury before Wednesday’s dismissals; 14 are needed.

Nelson called the timing of the announcement in the middle of jury selection “profoundly disturbing" and “not fair.”

Seven jurors remain, including four men and three women. Four are white, one is multiracial and two are Black, and their ages range from 20s to 50s. Fourteen people, including two alternates, are needed.

As questioning of potential jurors resumed Wednesday morning, two were excused: A man who said he would tend to believe a police officer’s version of events over that of a citizen, and a Black man who expressed negative views about the Minneapolis Police Department.

He said Floyd was an example of another Black man “killed” or “murdered” by police. He said he used to live in the area near Floyd’s arrest and had seen Minneapolis police sometimes ride through the area and antagonize residents if someone had been shot or jailed.

On the possibility of serving on the jury, he said: “Me, as a Black man, you see a lot of Black people get killed and no one is held accountable for it, and you wonder why. … So with this, maybe I’ll be in the room to know why.”

Chauvin is charged with murder and manslaughter in the May 25 death of Floyd, a Black man who was declared dead after Chauvin, who is white, pressed his knee against his neck for about nine minutes. Floyd’s death, captured on a widely seen bystander video, set off weeks of sometimes-violent protests across the country and led to a national reckoning on racial justice.

The judge said he will rule Friday on Nelson's request to delay or move the trial and another to admit evidence of Floyd's 2019 arrest in Minneapolis. Cahill previously rejected that request, but said he would reconsider after Nelson argued that new evidence makes it admissible: Drugs were found in December that year during a second search of the car Floyd was in, and were found in a January 2020 search of the squad car into which the four officers attempted to put Floyd.

During the first arrest, several opioid pills and cocaine were found. An autopsy showed Floyd had fentanyl and methamphetamine in his system when he died.

Prosecutor Matthew Frank argued that evidence from the 2019 arrest was prejudicial and an attempt to smear Floyd's character.

Three other former officers face an August trial in Floyd’s death on charges of aiding and abetting second-degree murder and manslaughter.

The judge opened court Wednesday by threatening to remove a media pool and shut down a media center over some reporting on the case. Cahill was visibly angry as he described a pool report that included a reporter’s attempts to read notepads at the defense and prosecution tables, as well as describing security on the courthouse floor where the trial is taking place.

Cahill said any media that have posted details about security on the floor should take them down, and that failure to do so could result in them being kicked out of the media center. He did not name any reporters or media organizations.

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EXPLAINER: Chauvin's lawyer is outnumbered, but has help
AP

As trial approaches for a former Minneapolis police officer charged in George Floyd’s death, the early proceedings suggest it’s not exactly a fair fight. No fewer than four attorneys have appeared for the prosecution so far, compared to a single attorney to defend Derek Chauvin. Many other lawyers are working for the prosecution behind the scenes.

It’s an apparent mismatch that results from the state’s takeover of the prosecution, but defense attorney Eric Nelson is getting some help.

WHO ARE THE KEY PLAYERS FOR THE PROSECUTION?

Floyd, who was Black, was declared dead May 25 after Chauvin, who is white, pressed his knee on Floyd’s neck while Floyd was handcuffed and pleading that he couldn’t breathe. Days later, amid massive protests over Floyd's death, Minnesota Gov. Tim Walz directed Attorney General Keith Ellison to take the case.

Ellison, Minnesota’s first African American elected attorney general, is in court but Assistant Attorney General Matthew Frank is leading the prosecution. Frank heads the state's criminal division.

The prosecution is bolstered by outside attorneys working for free. They include former U.S. acting Solicitor General Neal Katyal; former federal prosecutor Steven Schleicher; and Jerry Blackwell, who last year won a posthumous pardon for a man wrongly convicted of rape in connection with the Duluth lynchings of 1920, and is a founder of the Minnesota Association of Black Lawyers.

In addition to Katyal, the prosecution has received court approval for at least six other out-of-state attorneys to serve as co-counsels, according to court records.

DOES THE PROSECUTION HAVE DEEPER POCKETS?

Almost certainly. This is one of the most significant court cases in recent history and it is clear the state will spare no expense. That point was driven home by Ellison as soon as he took over, when he vowed to “bring to bear all the resources necessary to achieve justice in this case.”

Conversely, the defense is funded through the Minnesota Police and Peace Officers Association's legal defense fund. The MPPOA is a police advocacy organization made up of local police unions from across the state. Though he was fired soon after Floyd's death, Chauvin earned the right to representation through his years as a member of his local union, the Minneapolis Police Federation.

MPPOA Executive Director Brian Peters said supporters of Chauvin have asked to donate to his defense, but no donations are accepted. Instead, those people are directed to the National Center for Police Defense. Donations to the center aren't used for legal purposes, Peters said, but rather for living expenses for Chauvin and the three other officers accused in Floyd's death, all of whom lost their jobs. Peters said he did not know how much has been donated on behalf of the officers.

HOW WAS NELSON SELECTED AS CHAUVIN’S ATTORNEY?

Peters said the MPPOA works with a group of 12 defense attorneys who take turns handling cases as they come up. Originally, Chauvin’s defense was assigned to attorney Tom Kelly, but Kelly retired and Nelson replaced him.

WHAT IS NELSON'S BACKGROUND?

Nelson is an attorney with the Minneapolis firm Halberg Criminal Defense. His biography on the firm’s website says his experience includes cases involving “homicide, sex offenses, drug offenses, assaults and hundreds of DWI and alcohol-related traffic offenses." He's enough of an expert on driving while intoxicated that he frequently lectures on the topic and often contributes to a DWI sourcebook for Minnesota attorneys, his biography says.

“I saw a couple of reports of, ‘The MPPOA selected a DWI lawyer to represent Chauvin,'" Peters said. ”To be on our panel of attorneys is not very easy. You are vetted very aggressively, we’ll just say. That’s why we have 12 of the best defense attorneys on our panel.”

One of his most prominent cases involved Amy Senser, the wife of former Minnesota Vikings tight end Joe Senser, who was convicted in the 2011 hit-and-run death of a Minneapolis chef. Though Nelson argued for probation, Senser received a sentence of 41 months in prison.

He's had success in previous murder cases. He helped win an acquittal for a Minnesota man who was charged with fatally shooting his unarmed neighbor in 2017. He also won an acquittal for a Wisconsin man who testified that he feared for his safety when he fatally stabbed a man who confronted him in 2015.

IS NELSON WORKING ALONE?

Only on the surface, Peters said.

Different attorneys were assigned to each of the four officers. Those four attorneys have worked together behind the scenes from the outset, Peters said, and Nelson continues to consult with them.

Nelson also has access to the other eight attorneys who are part of the MPPOA's 12-attorney rotation.

The MPPOA also provides consultants on topics such as use-of-force and medical issues, “and Eric has been working very closely with those consultants,” Peters said. Expert witnesses also are available if Nelson chooses to use them.

“It may appear that it's just Eric, but that is very far from the truth,” Peters said.

Flex:
Derek Chauvin's attorney says the murder trial 'is not about race.' His own line of questioning suggests otherwise.
N'dea Yancey-Bragg and Grace Hauck
USA Today

MINNEAPOLIS – In his effort to find an impartial jury, the lead defense attorney in the murder trial of former Minneapolis police Derek Chauvin has spent the past two weeks questioning potential jurors about their views on racism, discrimination, policing of communities of color and Black Lives Matter.

But on Thursday, Eric Nelson told a prospective juror that the trial is "not about race."

The response to George Floyd's death suggests many people believe otherwise. For weeks, thousands of people in all 50 states protested systemic racism and police brutality, spurred by the sight of a Black man dying under the knee of a white police officer after centuries of white supremacist violence against Black people.

"We’re at an interesting point in society where people are telling us what is and what is not about race. I’m not sure that the defense attorney in this case gets to make that decision," said Samuel R. Sommers, a social psychology professor at Tufts University who studies the effect of race on the legal system. "It's a tragedy, but it's become a racially charged instance as well because of what else is going on our society."

Chauvin is not charged with crimes related to racial bias. But experts say race is at play not only in Floyd's death but in the courtroom during jury selection. And it will likely have an influence on deliberations and the verdict.

"Nothing magical happens to individuals who show up for jury duty that makes them somehow immune to racial biases," Sommers said.

Jurors who believe race affects the legal system are 'absolutely right'
Nelson's comment bears similarities to previous law enforcement denials that systemic racism is a factor in recent high-profile police killings of Black people.

In October, Louisville Police Sgt. Jonathan Mattingly, one of the officers who fired weapons in a failed drug raid that took the life of Breonna Taylor, a 26-year-old Black medical worker in Kentucky, said the incident was “not a race thing like people try to make it to be.”

When asked why a 17-year-old white teenager accused of killing two protesters and injuring a third in Kenosha, Wisconsin, was arrested but Jacob Blake, a 29-year-old Black man, was shot several times in the back, former Attorney General William Barr told CNN in September that he doesn't believe there are "two justice systems."

"I think the narrative that the police are on some, you know, epidemic of shooting unarmed Black men is simply a false narrative and also the narrative that that's based on race," Barr told CNN. "The fact of the matter is very rare for an unarmed African American to be shot by a white police officer."

And on Tuesday, after eight people, including six women of Asian descent, were killed in three shootings at Atlanta-area spas before police arrested and charged a white man, officials investigating the case said it was too soon to call the incident a hate crime. "We are just not there as of yet," Atlanta Police Chief Rodney Bryant said in a news conference.

Many people of color and others disagreed, viewing it as a crescendo of a year-long wave of racist violence – particularly after a recent spike in anti-Asian violence that began during the COVID-19 pandemic and that many believe was fomented by the rhetoric of the Trump administration.

Multiple studies and the lived experience of many Black people, in particular, suggest systemic racism is a factor in police killings.

An analysis of data from The Washington Post published in 2019 found that while Black Americans comprise just 13% of the U.S. population, they account for 36% of unarmed police shooting victims. Black Americans are 3.23 times more likely than white Americans to be killed by police, according to a study of nearly 5,500 police-related deaths between 2013 and 2017 published by Harvard researchers in June 2020.

"The data are very clear. Any prospective juror who says 'Yes, I believe race has the potential to influence how individuals are treated' is absolutely right," Sommers said. "If that’s going to be grounds for removing someone from the jury, that's a problem."

The jury's racial makeup will likely will be more varied than Minnesota
Thirteen jurors, five men and eight women, have been selected so far for Chauvin's trial. Seven of the jurors identify as white, two as multiracial and four as Black, according to the court. The court plans to seat at least one more juror.

The racial makeup of the jury probably will be more varied than the Minnesota as a whole, Hennepin County or Minneapolis. According to mid-2019 U.S. Census data, Hennepin County is 74.2% white, Minneapolis is 63.6% white and Minnesota is 83.8% white.

Months ago, the court sent a 13-page questionnaire to people in the jury pool asking their opinions on various subjects, including whether police officers are more likely to use force against people of color, whether people of color receive equal treatment in the criminal justice system, whether police in their community make them feel safe, and how they feel about the Black Lives Matter and Blue Lives Matter movements.

Attorneys for the defense and prosecution have prodded potential jurors to expand on their answers and explain their reasoning. That has spurred some lengthy conversations about their experiences with police and discrimination.

On Thursday afternoon, one man said he didn’t believe Black and white people are treated equally in the criminal justice system. Nelson asked if the man believed an incident in which police stop a person of color is more likely to end "tragically." The man said yes.

He also said he would not believe a police officer's testimony. The judge excused him from the jury.

Another juror, executive director of a youth organization, wrote in his questionnaire that he “somewhat disagreed” that police treat Black people and white people equally and that he “strongly agreed” media reports on police brutality against racial minorities are only the tip of the iceberg.

He said he thought he could still serve as an impartial juror. The defense used a peremptory challenge against him.

If attorneys want to eliminate a juror, the judge must approve their reason, or lawyers can use what’s known as a “peremptory challenge” to cut someone without providing a reason.

A veteran who appeared to be Black told the court he experiences racism on a daily basis. On his questionnaire, he “strongly agreed” Black people and white people aren’t equally treated by the criminal justice system and “strongly agreed” the Minneapolis Police Department is more likely to use force against Black people.

He told the court the fairness of the criminal justice system “depends on your colors.”

“If you’re Black ... we get the things where you have to go to jail,” he said.

He said he could set aside his opinions to serve on the jury. The defense used a peremptory strike against him.

Andrew Gordon, deputy director for community legal services at the Legal Rights Center in Minnesota, said the experiences juror described are inextricably connected to him being a Black man. "To strike him for those reasons is tantamount to striking him because he is Black," he said.

"You are eliminating opportunities to have individuals on that jury who have an appreciation of race and law enforcement interactions with race that could help inform truth-seeking," Gordon said.

Jurors who react strongly to George Floyd video are 'systematically struck'
Most, if not all, of the potential jurors who told the court they had a strong, emotional reaction to seeing the video of Floyd's death were not seated on the jury, and most were dismissed by the judge because they said they couldn't be impartial or because it would cause them trauma. Most people seated on the jury said they had seen at least portions of a video of the incident but could remain impartial.

One juror who appeared to be a young Black woman, a single mother, told the court she “cried hearing him call for his mother during his last moments of life.”

“I can’t unsee the video, so I’m not able to set that part aside,” she said. “It’s still going to be traumatizing to me.”

She said she could not remain impartial, and the judge dismissed her.

Another woman, who appeared to be a person of color, said she had a strong emotional response to the video of Floyd's death and struggled to speak in the courtroom Friday morning. She said the incident was "so close to home."

"I think it’s too much," she said. She said she could not remain impartial, and the judge dismissed her.

The video of Floyd's death is upsetting for almost everyone who watches, but it is acutely traumatic for people of color – Black people in particular – because of the cumulative nature of trauma resulting from racism, said Monnica Williams, a clinical psychologist and professor at the University of Ottawa in Canada, who studies African American mental health.

"You already have a layer of stress built into your genetic makeup," she said. "The more of these sorts of things that we’re exposed to the more likely a person is to have a traumatic reaction or full-blown PTSD."

Gordon said people who had a strong reaction to Floyd's death are among those being "systematically struck." That perpetuates the idea that jurors who identify with the fact that Floyd was killed by a white police officer because of their own racial identity can't determine truth.

"Our common sense tells us we are able as human beings to decipher truth even in the presence of bias," he said. "That legal fiction reinforces a lot of the stereotypes, reinforces a lot of the racial animus, reinforces a lot of the indifference that you see built into the legal system."

At least one juror who had a strong emotional reaction to the video, however, was seated on the jury. A white woman in her 50s who works in health care told the court she couldn’t watch the video in its entirety because it was disturbing.

“I think they could have handled it differently,” she wrote on the questionnaire.

The woman told the judge she could set her previous opinions aside to serve as an impartial juror, and she was seated on the jury.

'Do you want people on your jury that don’t think Black lives matter?'
In questioning, lawyers for the defense and prosecution often asked potential jurors to offer their thoughts on Black Lives Matter as an organization, the greater movement and the notion that Black lives matter in general.

One potential juror, a former musician who identifies as Hispanic, told the court he has a favorable view of the Black Lives Matter movement because it “continues on the tradition of the civil rights movement.”

The man said he thought he could still be impartial, but the defense used a peremptory challenge against him. The state followed with a Batson challenge, which claims a potential juror has been eliminated on the basis of sex, race, ethnicity or religion. The judge denied the challenge, saying there was a non-race-based rational for striking the juror, including the fact that his wife attended a protest in the wake of Floyd's death.

Experts said it's fairly easy to come up with a race-neutral answer to a Batson challenge, even if the strike is motivated in part by race.

"That’s pretty hard to enforce," Sommers said. "It's a problem the legal system has wrestled with for very long time and continues to wrestle with."

Another juror, a white woman in her 50s who works at a nonprofit and has interacted with the Minnesota attorney general, wrote on the questionnaire that she is “somewhat favorable” of Black Lives Matter.

“Excessive force against Blacks must stop, but not everyone working in the system is bad,” she told the court. “I think there’s inherent bias in the system.”

She was seated on the jury.

One juror, a Black woman in her 60s who used to work in marketing and has grandchildren, said that she was not very familiar with Black Lives Matter as an organization but that she supports the idea that Black lives matter.

“I am Black and my life matters,” she said. She was also seated on the jury.

Attorneys for both sides and the judge asked all potential jurors if they could put their opinions aside and impartially judge the case based solely on the evidence presented in court. Sommers said the key question becomes whether the judge believes them and why.

"When is it that the judge is willing to take their statement at face value and when is the judge not willing?" Sommers asked.

Flex:
'Treated with particular cruelty': Minnesota attorney general requests severe sentence for Derek Chauvin in George Floyd killing
Michael James, USA TODAY

Minnesota's attorney general filed paperwork Friday asking that Derek Chauvin be given a more severe prison sentence in the killing of George Floyd, arguing that the former Minneapolis police officer inflicted torturous deadly methods as Floyd pleaded for his life.

Chauvin, who is scheduled to be sentenced in June for second-degree murder and other charges, abused his power as a police officer in full view of the public and while Floyd was handcuffed and crying out for his mother, state Attorney General Keith Ellison said in a legal brief filed in Minnesota's Hennepin County District Court.

“Mr. Floyd was treated with particular cruelty . . . Defendant continued to maintain his position atop Mr. Floyd even as Mr. Floyd cried out that he was in pain, even as Mr. Floyd exclaimed 27 times that he could not breathe, and even as Mr. Floyd said that Defendant’s actions were killing him,” Ellison said. He added that Chauvin stayed in position as Floyd cried out for his mother, stopped speaking and lost consciousness.

Prosecutors also wrote that Chauvin's actions "inflicted gratuitous pain" and psychological distress not just on Floyd, but the civilian bystanders who they argued will be haunted by the memory of what they saw.

Four of the people in the crowd watching Floyd die were minors, the court filing said.

“Defendant thus did not just inflict physical pain. He caused Mr. Floyd psychological distress during the final moments of his life, leaving Mr. Floyd helpless as he squeezed the last vestiges of life out of Mr. Floyd’s body,” the filing says.

Defense attorney Eric Nelson is opposing a tougher sentence, saying the state has failed to prove that those aggravating factors, among others, existed when Chauvin arrested Floyd on May 25.

Nelson also said Floyd was not treated with particular cruelty, saying that there is no evidence that the assault perpetrated by Chauvin involved gratuitous pain that’s not usually associated with second-degree murder.

“The assault of Mr. Floyd occurred in the course of a very short time, involved no threats or taunting, such as putting a gun to his head and pulling the trigger … and ended when EMS finally responded to officers’ calls,” Nelson wrote.

Chauvin, who is white, was convicted last week of second-degree unintentional murder, third-degree murder and second-degree manslaughter for pressing his knee against Floyd’s neck for 91/2 minutes as the Black man said he couldn’t breathe and went motionless.

Even though he was found guilty of three counts, under Minnesota statutes he’ll only be sentenced on the most serious one – second-degree murder. While that count carries a maximum sentence of 40 years, experts say he won’t get that much.

Prosecutors did not specify how much time they would seek for Chauvin.

Under Minnesota sentencing guidelines, the presumptive sentence for second-degree unintentional murder for someone with no criminal record like Chauvin would be 12 and a half years. Judges can sentence someone to as little as 10 years and eight months or as much as 15 years and still be within the advisory guideline range. To go above that, Judge Peter Cahill would have to find that there were “aggravating factors,” and even if those are found, legal experts have said Chauvin would likely not face more than 30 years.

Prosecutors said Friday that an upward departure from the sentencing guidelines is warranted because there are multiple aggravating factors in the case.

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