Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell?

The conviction of former Minneapolis police officer Derek Chauvin was undermined this week after the previously anonymous Juror #52 went public with interviews to discuss his experience on the jury and support the movement to curtail police abuse. The problem was not the public disclosure of his identity (which jurors can elect to do) but what his self-identification triggered on the Internet. A picture soon emerged showing Brandon Mitchell wearing a Black Lives Matter T-shirt with a reference to the death of George Floyd. The image was raised as contradicting his answers in voir dire and raising an appellate question as to juror bias that could be used to challenge the conviction.

The photo trending on social media was originally posted on Facebook in August 2020 and shows Mitchell wearing a hat that says “Black Lives Matter” and a T-shirt that says “BLM” with the words, “Get Your Knee Off Our Necks,” a common reference to the death of Floyd. The photo was posted by his uncle Travis Mitchell with the caption “The next Generation being socially active representing in DC my son Marzell, my nephew Brandon Rene Mitchell, and brotha Maurice Jauntiness Johnson.”

There is, of course, nothing wrong with the photo and it reflected the pride of his uncle when they went to march in Washington to commemorate MLK’s famous 1963 “I have a dream” speech. The march emphasized the campaign against police abuse and obviously many protested the killing of Floyd. Mitchell insists that he did not go to protest the Floyd killing.

The issue is really how Mitchell answered the voir dire questions.  For example, Mitchell answers in the negative to two questions:

“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.

“Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”

On March 15, Mitchell was also asked by the judge on March 15  if he was aware of the Chauvin case and George Floyd. He responded by saying that he’d heard “some basic info about trial dates, etc from the news”, but not the sort of information “that would keep him from serving as an impartial juror.”

I am not sure why the defense could not have located this picture on the Internet, which may raise a collateral issue in any challenge. However, this is still a credible basis for further investigation and possible challenge.

In Irvin v. Dowd, 366 U.S. 717, 722 (1961), the Supreme Court stated “the minimal standards of due process” demand a fair hearing before competent and impartial jurors. See also United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983) (citing Murphy v. Florida, 421 U.S. 794, 799 (1975)(“constitutional standard of fairness requires that the criminally accused have ‘a panel of impartial, indifferent jurors.’”). In cases like Pena-Rodriguez, the Supreme Court has held that statements in the jury room showing racial bias justifies reversal. The line is more blurry on political bias, but few cases involve a juror who previously discussed the defendant and his case.

YouTube Screenshot

The controversy is strikingly similar to discoveries made about Juror 1261 in the trial of Trump associate Roger Stone. I wrote a number of columns about Tomeka Hart who clearly gave false or misleading answers in voir dire.  Hart is a Democratic activist and critic of the Trump administration. She not only participated in undisclosed protests and posted anti-Trump statements on the Internet but specifically discussed the Stone case.

However, District Court Judge Amy Berman Jackson engaged in willful blindness to excuse Hart’s conduct and avoid ordering a new trial.  I predicted that the court would dismiss the motion rather than defend the defendant’s right to an unbiased jury. The court simply brushed aside these clear examples of bias.  Jackson wrote:

“The defendant has not shown that the juror lied; nor has he shown that the supposedly disqualifying evidence could not have been found through the exercise of due diligence at the time the jury was selected. Moreover, while the social media communications may suggest that the juror has strong opinions about certain people or issues, they do not reveal that she had an opinion about Roger Stone, which is the opinion that matters . . . To the extent one could consider any of the social media posts to be inconsistent with the juror’s questionnaire, they do not warrant a new trial because they do not meet the legal test for something that has been ‘newly discovered.’ [A] defendant seeking a new trial must establish that the information presented in his motion could not have been discovered earlier through the exercise of due diligence.”

I do agree with Judge Jackson that there is question of whether this information “could …have been discovered earlier through the exercise of due diligence.”  The court notes

“the foreperson’s views were certainly not hidden at the time of jury selection. The juror’s personal affiliation with Democratic politics was set forth in her written answers. She said straight out that she had opinions about the “officials” on the list of people who might be mentioned in the case, and Donald Trump was the most prominent, if not the only, ‘official’ named.”

This was publicly available on social media and the question remains why the defense was not aware of the past expressions of political bias by Hart.  One would have thought that Hart’s political past would have caused greater scrutiny of her past statements but, as I discussed previously, the transcript shows only a brief and matter-of-fact examination.

Jackson’s decision reveals the added burden faced by defendants in expensive, high-profile trials. Judge do not want to go through the cost and trauma of a new trial, particularly with the threat of rioting.  They talk a good game of the guarantee of a fair trial, but when faced with juror bias, they rarely act to defend it in such cases.

It is still not clear the extent of any bias in the case of Mitchell. Some reports indicate that he may have done podcasts on police brutality and the George Floyd case.  That would be particularly serious, though we saw in the Stone trial the lengths that courts will go to avoid the obvious.

The defense will have the same uphill battle in the Chauvin appeal and the question is whether there is anything in addition to to photo. It will also have to be prepared to answer, as in the Stone case, why it did not perform a full Internet search on prospective jurors.

337 thoughts on “Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell?”

  1. Many of my posts are discourses at length – they would be shorter if you would make fewer errors..

    But none are “boastful”. You do not know what bloviate means.

    Regardless, the claim is a non-sequitur.

    “I’m not interested in getting drawn into a discussion of all of your opinions, and will only respond to two of your new claims.”
    Odd response. You wish to narrowly limit our exchange – and concurrently dive into new areas.

    Clearly, you have no rational basis for any limitations.
    Regardless, you are free to limit yourself – not anyone else.

    “Your claim “opinions can be FALSE too” is false.”
    Nope.

    “This is a key distinction between fact-like claims and opinions.”
    Nope.

    Much of your analysis is correct – but you have made a catagory error.

    Only those things that are proveably true (or accepted as axioms) are Facts.

    What is left is the domain of opinions, and it includes things that are likely true, possibily true, probably false and proveably false.

    “Opinions are NOT T/F”
    BS.

    “you are constantly misusing words like “demand”.”

    “That’s false too.”
    Nope. You have misused, fact, opinion,

    A demand is something that one intends to enforce.

    I do not make demands of you. Though you constantly make demands of others oblivious of the fact that you can not enforce those demands, but with the clear understanding of all that you would if you could.

    “You’ve easily repeated it a half dozen times or more.”
    Repitition does not make something into a demand. Force or the threat of force does.
    This is typical leftist nonsense – confusion over what is and is not force.

    Have I tried to compel you to do anything ? Can I compell you ?
    No. Further even if I actually had the power to compel you, there is very little that I would or could morally compel you to do.

    That is a major difference between libertarians and the left.

    No one has any doubt that given the power to do so – you, the left will FORCE others to do as you wish.

    You have no grasp that the use of force MUST be justified.

    Regardless, No one is compelling you to answer anything. No one has made a Demand of you.

    You have not been subpeoned. You are not obligated to answer anything.

    “These are additional examples of you [anonymous] making mistaken claims.”

    No one has used force against you.

    It is important not to misuse words that involve force. Doing so destroy’s language and meaning.

    You claim I have made a “demand” – how is that different from a request ? How is that different from putting a gun to your head and requiring an answer ?

    When you use words that involve force where there is no force, you are deliberately obfuscating the fact that there is no force.
    Worse you are depriving language of the ability to communicate that actual force is or will be used.

    When you understand law broadly – you ultimately end up lawless.
    When you use words broadly – you ultimately destroy our ability to communicate.

    1. “bloviate \BLOH-vee-ayt\ verb. : to speak or write verbosely and windily. Examples: “It’s a slow night.

      Bloviate | Definition of Bloviate by Merriam-Websterhttps://www.merriam-webster.com › dictionary › bloviate”

      Works for me.

        1. Do not make so many errors.
          The replies will be shorter or non existant.

          As to long winded – I would suggest rereading your own comment trying to argue that opinions can not be false.
          Not only is it wrong, it is long and tangential.

          Facts are True. If you wish to create a “fact-like” catagory for things that are false but resemble facts – that is your choice.
          But it is a subset of opinions, not an independent set.

          You waste alot of words, saying SOME correct things, but still reaching false conclusions.

          If you are going to “bloviate” – you could atleast get to a correct conclusion.

      1. I have no problem with the claim that my replies are often long.

        that is driven by your errors.

        I would note that YOUR definition does not have a negative implication.

          1. More left wing nut word games.

            You keep making vague analogies.
            But you never directly address that arguments.

            Spin is easily dealt with.

            FACTS, LOGIC, REASON.

            What assertions in my arguments are demonstrably false ?
            What logical errors have I made ?
            What fallacies have I relied on ?

            First identify and then strip away whatever it is you claim is spin – and then lets see if what is left holds up.

            You can’t. Why ? because your Spin assertion, your “bloviation” assertion – in fact all your assertions are either false or irrelevant.

            You seem to think that any attack on an argument constitutes disproving it. that is false.

            Identify what you think is “spin” and we can determine whether that is true.

            Or strip any arguments I have made of everything except facts and logical assertions based on facts.

            Put simply, if you wish to refute something do so with facts, logic, reason.

            Not word games, Not ad hominem, not insults, not attacks on style.

            Address the substance of the arguments. The FACTS.

            This is also why games with the meaning of words are so important.

            One of the most critical distinctions we MUST make is between those things involving force or threat of force, and those that do not.

            None of us have must right to dictate BY FORCE a priori how others must live – i.e. We have no right to use government, laws, the police FORCE, to make “demands” of others – except in response to THEIR use of FORCE against us.

            That simple constraint that is near universally accepted, while at the same time being mostly disregarded, makes everything the left seeks to do and much of what the right seeks immoral.

            You have never confronted that. You have NEVER argued that you are entitled to use FORCE a priori to impose your will on others.

            Yet you constantly do exactly that – you “demand” that government enact your will – imposing it by FORCE.
            You do not justify what you seek to do. Nor do you adress the fact that you must.

            You accept one of the core principles of the social contract that gives govenrment legitimacy, and then proceded to ignore it completely.

            And then you play words games – I am purportedly making demands of you – merely by pointing out the flaws in your arguments, or expecting that you will address those flaws.

            This is no accident, You deliberately misuse or blur the meaning of words to hide when FORCE is actually being used and when it is not.

            Nearly every discussion we have is about when FORCE can legitimately be used.

            George Floyd passed a counterfeit $20 – that is a crime. If you do not like that change the law. When people commit crimes – the police are empowered to arrest them – that is FORCE. We have determined as a people – as all people throughout the world that we will use FORCE – usually the police to enforce our laws. Chauvin was EMPOWERED BY LAW to use FORCE against George Floyd.

            There is ZERO doubt of that. Again if you do not like it – change the law. Or go completely lawless. Regardless, do not DUCK the actual facts.

            Chauvin was empowered by law to arrest Floyd – to use FORCE to do so.
            Floyd CLEARLY Resisted Arrest. Justifying even greater use of FORCE.

            The only relevant questions for this trial – and why the Trial never should have taken place were:

            Did Chauvin’s actions result in the death of Floyd – the answer to that is NO. Floyd was not suffocated – therefore Chauvin did not kill him.
            BUT even if Floyd had suffocated – it was more likely that was caused by Fentanyl than anything Chauvin did. Thje reasonable doubt standard would require Chauvin’s aquital, absent absolute proof that Floyd could only have suffocated as a result of Chauvins actions.

            The 2nd question – which can ONLY be reached if Chauvin caused Floyd’s death, is
            Did Chauvin use FORCE beyond what was authorized by law and or policy.
            Again the burden of proof is on the state. Merely claiming he did is not enough. All the experts in the world saying he did, he did is irrelevant, so long as Chauvin’s actions were inside the law, and law enforcement training or policies.

            Again – you constantly conflate feelings or what people say with FACTS. The FACT – both as in the evidence, and as testified was that Chauvin’s actions were inside the written policies and training of MPD. If you do not like that CHANGE THE POLICIES.

            I am not happy with what occured. I am not happy that Breona Taylor was killed. I want changes to police policies to prevent or reduce the odds of those events. But I can not hold the officers who are enforcing the law and following policy criminally accountable for an outcome I do not like.

            Both of these – as well as nearly every other act of violence involving police occured because of our immoral and illegitimate drug laws.

            Chauvin did not make those laws. People like YOU did. People like YOU who fail to grasp that every single law you pass ultimately REQUIRES a police officers knee on our necks.

            You are never capable of grasping the consequences of YOU use of FORCE against others.

            You are constantly eliding the FACT that what you seek to do is USE FORCE,

            And then you are idiotically ranting because the police have not done so delicately enough for you.

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