Below is my column in The Hill on two issues that arose on the final day of the trial of Derek Chauvin that could now feature prominently in any appeal. There will likely be an array of conventional appellate issues from the elements of the murder counts to the sufficiency of the evidence. Obviously, any appeal will wait until after sentencing, which will take many weeks. However, two issues were highlighted on the final day which could play a role in the appeal even if the odds are against Chauvin. The first on the denial of a venue change and the sequestering of the jury is very difficult make work on appeal. However, there are strong arguments to be made in this case.  I believe Judge Cahill should have granted the venue change and also sequestered this jury. It is not clear if the court polled the jury on trial coverage, particularly after the inflammatory remarks of Rep. Maxine Waters (D., Cal.). However, there are credible grounds for challenging how this jury may have been influenced by the saturation of coverage of the trial as well as rioting in the area.

Here is the column:

The final day of the Derek Chauvin trial in Minneapolis seemed at times to be a remake of the 1981 neo-noir film, “True Confessions.” Call it “True Concessions.” Judge Peter Cahill acknowledged that Rep. Maxine Waters (D-Calif.) may have given the defense a basis to overturn any conviction, while prosecutors seemed to drive a stake through the heart of their cases against three other officers charged in the death of George Floyd. And it all played out on live television.

Damage Below the Waters Line

Rep. Waters ignited a firestorm of controversy by flying to Minnesota to tell protesters to remain in the streets and fight for “justice,” to be “more confrontational,” despite days of rioting, looting and other violence. She said no verdict in the Chauvin trial would be accepted except a conviction for first-degree murder — a demand that might be a tad difficult to satisfy since Chauvin is not charged with first-degree murder. All of this as the jury literally headed off to deliberate.

Some of us immediately noted that Waters single-handedly succeeded in undermining not just the Chauvin case but her own case against former President Trump. Waters, one of several House members suing Trump for inciting violence on Jan. 6, is now his best witnesses against her lawsuit. Where she charged that Trump sought to incite violence and intimidate Congress, Waters is being denounced for inciting violence and intimidating the trial court.

One of those denouncing Waters was Judge Cahill, who declared in open court that “I wish elected officials would stop talking about this case, especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function. If they want to give their opinions, they should do so … in a manner that is consistent with their oath to the Constitution.” Calling such comments “abhorrent,” Cahill added this haymaker: “I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.”

His statement was not just a criticism but a concession that Waters’ comments could not have come at a worse time or put the court in a worse position. Some of us have criticized Cahill — who has done an otherwise outstanding job — for not changing the trial’s venue or sequestering the jury. Those rulings came back to haunt him as protests grew before the trial and then exploded with the killing of Daunte Wright in nearby Brooklyn Center, Minn. One of the Chauvin jurors lives in Brooklyn Center, where rioting and looting occurred even before Waters flew in to throw gasoline on the fire.

Cahill denied a defense motion for a new trial but acknowledged that Waters’ comments magnified the appellate challenges in sustaining any conviction. Such statements alone are unlikely to overturn a conviction — indeed, such motions are notoriously hard to win — but Waters has made it far more difficult for prosecutors in the case. The tragic irony is that Waters could be used to overturn the very conviction she demanded. If that happens, it is unlikely that rioters will go to her home or burn businesses in her district. Those crimes will be focused in Minnesota but could spend across the country, too.

The danger for unrest may be greater due to the array of charges. It is not clear that a manslaughter conviction will satisfy protesters if it is accompanied by acquittals on murder. This was always a stronger manslaughter than a murder case. More importantly, adding the murder charges created a potential flashpoint for protests with any acquittal or later reversal on appeal. Moreover, while total acquittal seems unlikely, there is a possibility of a mix of acquittals and a hung jury that could ignite further rioting.

Prosecuting the Powerless?

If Waters was undermining any conviction of Chauvin, the prosecutors themselves seemed to be undermining any prosecution of the other officers. In one of the trial’s most surprising moment, prosecutor Steve Schleicher seemed to exonerate the other three officers in order to further incuplate Chauvin.  In his closing argument, Schleicher declared that Chauvin “had the power, and the other officers, the bystanders, were powerless.”

Prosecuting the powerless is not usually part of the oath of district attorneys. What was striking about Schleicher’s statement is that the cases against the other officers depend on a conviction in this case. As discussed previously, prosecutors structured the cases against all four officers like an inverted pyramid; Alexander Kueng, Thomas Lane and Tou Thao are charged as aiders and abettors to Chauvin’s alleged murder or manslaughter. If Chauvin is acquitted or the jury deadlocks on the charges, their prosecutions would then collapse.

Now, prosecutors have admitted that the three other officers were as powerless as bystanders on the street. The standard for aiding and abetting is itself not particularly demanding, since it covers anyone who “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” However, proving such a crime can be more difficult, particularly given a chaotic crime scene.

Schleicher’s concession adds to an already difficult case because the other officers did take steps that can be cited by their defense attorneys as seeking to help Floyd. The officers repeatedly called for an ambulance, and Lane, a new officer on the force, attempted to deescalate the situation. When Floyd pleaded, “Please don’t shoot me, man,” Lane replied: “I’m not shooting you, man.” When Floyd struggled not to get into a police car and said he could not breathe, Lane offered to sit with him, roll down the windows and turn on the air conditioning. It also was Lane — who had only been on the force a couple of days — who urged Chauvin to move Floyd from the knee-restraint position.

Schleicher’s words can be cited in defense pretrial motions to dismiss the case. While it will be more difficult to introduce such concessions from the prosecution into the actual trial of the three remaining officers, it could make it more difficult for this prosecution team to appear in those other cases— particularly Schleicher, who would have to argue the exact opposite to another jury of what he argued before this jury. And that never sits particularly well with a trial court.

Neither Waters nor the prosecution seemed concerned over how their words would impact this or later cases in the killing of George Floyd. Whatever benefit these statements may have brought, their true costs could be prohibitive as Minnesota struggles with the resulting uncertainties and unrest.