The jury selection process

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The trial of former MPD Officer Chauvin will be live-streamed to the public, allowing a rare look at how trials work, including the selection of the jury. Almost everyone has seen the horrific video of George Floyd pleading for his life, as Chauvin’s knee pressed into his neck for an excruciating amount of time.

But the suspense lies in not knowing what evidence will be presented in court. How well will the witnesses testify, especially knowing they are being watched across the world? Perhaps of most importance, how will jurors be chosen for a case about which the public has been inundated since last May?      

Those chosen for jury duty have already completed an extremely detailed questionnaire, asking for their views on Black Lives Matter, blue lives matter, protesting, defunding the Minneapolis Police Department, and many other topics. By now the lawyers and the judge have agreed to excuse those who obviously cannot be fair based on their answers.

The obvious concern is who in Hennepin County can be impartial when most of us have seen coverage of what happened to Mr. Floyd?  Incidentally, the accused is not entitled to a jury of people who have never seen coverage of the incident. To serve on the jury, people must be able to set aside their opinions and agree to base the verdict on the evidence presented at trial and the law given to them by the judge. This makes the role of Judge Peter Cahill critical.

There are two methods by which potential jurors can be removed from the panel. A lawyer can ask the court to remove a juror for cause if he or she cannot be fair and impartial. “Fair and impartial” can be in the eye of the beholder, however, and the law gives the judge a great deal of discretion to make this determination. The beholder, in this case, is Judge Cahill, who has experience as both a public defender and a prosecutor. 

I have tried many cases where a potential juror talked of their positive experiences with police and admitted that they would believe them more than civilian witnesses. The law in Minnesota, however, requires that a juror be excused if she can’t give the testimony of civilian witnesses the same weight as that of the police.  

During my career, I have made a motion to remove a juror for cause, and the prosecutor, or judge, would tell the prospective juror, “Do you understand that the law says you can’t give police testimony extra weight?” After acknowledging their unawareness of the law, the prospective juror is asked, “If you are instructed that this is what the law says, can you follow it?” The juror said that they can. The judge then denied my motion to excuse her. This is referred to by defense lawyers as “rehabilitating” a witness. 

In my experience in the courtroom If the judge refuses to grant my motion to excuse the person for cause, I can use a peremptory challenge. Chauvin’s defense team will have 15 peremptory challenges and the state nine. The defense always has more challenges than the state because the accused is presumed innocent and there are almost always more prospective jurors with a tendency to convict. 

Lawyers do not need to state a reason for using a peremptory challenge unless challenged by the other side.  These are called Batson challenges, which most often involve allegations of removing jurors based on race. Usually, it’s the defense challenging the prosecution for removing People of Color, but the constitutional right to serve on a jury belongs to the juror.  This means that the defense may not remove a juror based on race.

In my experience, these challenges become contentious because the prosecutor perceives that he or she is being called a racist. The judge may require the lawyer who is challenged to give a “race-neutral” reason for excusing the person. A major problem with this area of law is that a “race-neutral” reason can be that a prospective Black juror has had bad experiences with the police. But how many Black men and women haven’t had negative experiences with the police? And, if this is the case, aren’t we allowing Black jurors to be excused because of race? 

The most intriguing aspect of jury selection in the Chauvin case will be the willingness of Judge Cahill to excuse jurors for cause and to scrutinize any Batson challenges carefully. He must make subjective decisions about whether potential jurors can really set aside preconceived notions. He can excuse an unlimited number of prospective jurors for cause, but they may need to summon more people for jury duty depending on how many people he excuses.   

The eventual jurors have been assigned numbers, and they will remain anonymous throughout the trial. The lawyers have been instructed not to use their names during the jury selection process. You can expect to see video of the lawyers, but you will only hear the disembodied voices of the prospective jurors during questioning.  

Because of limited space in the courtroom, only one member of Mr. Floyd’s family (and Chauvin’s) will be present. Unlike many trials, the jurors will not be looking into the public gallery and seeing many grieving family members. 

When the case is ready to be decided, the jury will be sequestered, meaning they will not be allowed to go home until they reach a verdict, or simply cannot come to a decision.

Mary Moriarty was a public defender for 30 years, most recently for Hennepin County. She welcomes readers’ responses to mmoriarty@spokesman-recorder.com.