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.
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.