A juror who was one of the twelve who issued guilty verdicts against former Minneapolis police officer Derek Chauvin attended a Washington, D.C. rally last summer wearing a shirt which had the words “Get Your Knee Off Our Necks” and “BLM” emblazoned across its chest. That’s according to a since-deleted Facebook photo uncovered by the International Business Times. The image raises serious legal questions of juror bias which will almost certainly be the subject of new court arguments and likely future court hearings in Chauvin’s case. Yet the legal community is split as to whether the resurfaced photo is enough to change the outcome of Chauvin’s trial — in part because all of the surrounding facts are not yet known and because the law places a high premium on a juror’s promise to set aside preconceived opinions about cases.
The image, posted by relative Travis Mitchell on August 31, 2020, shows juror Brandon Mitchell “active[ly] representing” in Washington, D.C. around the time of the so-called “Get Your Knee Off Our Necks” march on Aug. 28. The march was described elsewhere as “a day of action [to] demonstrate our commitment to fighting for policing and criminal justice” and an attempt to harness the movement that “has risen up since the police killing of George Floyd.” It was scheduled to coincide with the 57th Anniversary of Dr. Martin Luther King, Jr.‘s “I Have a Dream” speech.
Notably, Chauvin’s lawyer Eric Nelson just motioned for a new trial. He alleged jury misconduct without going into detail and did not mention the issue we now discuss (though that may change).
Brandon Mitchell, known during jury selection as Juror 52, has been the only juror who actually returned a verdict to speak out publicly about the case (the other was an alternate). He has been vocal about the proceedings which could end with Chauvin receiving a potential 40-year sentence.
When asked about the t-shirt he wore to Washington, D.C., Mitchell told the Minneapolis Star-Tribune that he’d “never been” to the nation’s capital and attended the event “to be around thousands and thousands of Black people.”
“I just thought it was a good opportunity to be a part of something,” Mitchell continued. When asked by the paper whether the event was a “march for [George] Floyd,” Mitchell said it was “100 percent not,” then cited the historical significance of the date of the rally. The paper said Mitchell considered the event to have a meaning “beyond” the Chauvin case (using its paraphrase, not his direct quote). The Star-Tribune further noted that George Floyd’s brother, Philonise, and his sister, Bridgett, spoke at the event. It also “served as a rallying point for the George Floyd Justice in Policing Act, a federal police reform bill,” the paper added.
Despite his admitted attendance at the event wearing a slogan which only entered the national lexicon after Floyd’s death, Mitchell said he answered “no” to jury questionnaire prompts which read as follows:
“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?”
“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?”
The full questionnaire had other similar prompts.
“I think I was being extremely honest, for sure,” Mitchell told the paper regarding the jury selection process, including the questionnaire. “I gave my views on everything — on the case, on Black Lives Matter.”
According to the jury questionnaire’s own terms, Mitchell’s answers were later required to be submitted under oath. That requirement — as Mitchell’s own oath later indicated — could result in the triggering of Minnesota’s perjury statute.
Mitchell told another Minnesota publication that he felt “a calling” (to be a leader) when he received his jury summons. He also said he was able to put aside his feelings of being pulled over approximately 50 times by the Minneapolis Police Department while considering Chauvin’s fate.
Speaking to the Law&Crime Network in an earlier interview, Mitchell said the jury discounted defense suggestions that drugs contributed to Floyd’s death and that the crowd gathered at the scene distracted the police from noticing the severity of Floyd’s condition. When asked to respond to then-hypothetical criticism that Chauvin could not have received a fair trial given the high degree of pretrial publicity, Mitchell issued a response which had little to do with deciding the case based on contested points of law (e.g., causation) instead of on emotion:
I think that’s just completely ridiculous, just because, um, once you’re in the courtroom, and you’re there, and you’re a human being and you’re watching somebody die on a day to day basis, the stress and the emotional draining, and the mental — the mental drainage that that causes, um, you don’t think about anything going on outside of there. You’re now engulfed in — in watching these videos and hearing this agony and this pain. Um, you have compassion for this person that is on — that’s on these videos. You’re feeling for them. You’re not necessarily thinking about, uh, you know, the ramifications of what could happen, you know, oh — if you go this way, if you go that way — you’re not thinking about that because you’re watching a person die every single day. That’s what you’re watching. I mean — you feel for that. You feel for that. You just want to do what’s right at that point.
The legal community is split as to whether Mitchell’s attendance at the rally and his subsequent wearing of the t-shirt bearing the “Get Your Knee Off Our Necks” slogan is enough to result in a victory for Chauvin — assuming his attorneys raise the issue.
Under the Sixth Amendment, defendants have a constitutional right to be tried by an “impartial jury.” A collection of U.S. Supreme Court cases have at times pondered the parameters of what “impartiality” means.
“Impartiality is not a technical conception,” the Court said in United States v. Wood (1936). “It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” In that case, the Court held that government employees were not, by the nature of their employment, inherently biased towards the government prosecutor’s arguments at trial.
Later, in Irvin v. Dowd (1961), the Court flipped a murder conviction and a death sentence after a trial which was rank with jury bias. That Court said:
Here the “pattern of deep and bitter prejudice” shown to be present throughout the community . . . was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man.
Turner v. Louisiana (1965) subsequently quoted Dowd favorably while flipping another conviction. Prosecutors secured the conviction at issue through the testimony of two sheriff’s deputies who were also tasked with guarding and transporting the sequestered jury which was empaneled to judge that very same testimony. The deputies both mingled with and freely conversed with the jurors while they were off the stand, and the trial judge would hear nothing of the defense’s complaints. The Supreme Court saw a problem with the procedure (internal citations and quotations omitted):
The requirement that a jury’s verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.
[ . . . ]
In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. A fair trial in a fair tribunal is a basic requirement of due process.
[ . . . ]
In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the evidence developed against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury.
More recently, in Smith v. Phillips (1982), the court bemoaned “the human propensity for self-justification” while suggesting that jurors themselves cannot be trusted to accurately tell their entire stories in a bias probe. The court reasserted in Smith that hearings are necessary to ferret out actual juror bias.
At issue in Smith was whether a juror’s submission of a job application to the prosecutor’s office created a bias so strong that a conviction should be reversed. The Court held — as the aforementioned language foretold — that it did not. The court refused to grant a convicted criminal any relief:
[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing.
The Minnesota Supreme Court in 2007 took considerable time in a footnote explaining the difference between actual bias and implied bias in a case which involved a “racially biased” juror. Actual bias involves a juror’s state of mind; it “is generally subject to rehabilitation,” and the juror “may sit on the jury if he or she agrees to set aside any preconceived notions and make a decision based on the evidence and the court’s instructions.” (Implied bias is “presumed as a matter of law” due to, e.g., a direct conflict of interest or a family relationship between a juror and a defendant.)
It seems legally likely that a hearing on the matter of Brandon Mitchell’s conduct is imminent, yet several criminal defense attorneys who appear regularly as hosts or guests on the Law&Crime Network seemed to suggest that a win for Chauvin seems unlikely.
Defense attorney Linda Kenney Baden noted at the first voir dire question limited its reach to protests “in Minneapolis.” Thus, Mitchell’s proffered response, “no,” was entirely adequate — since the gathering now drawing attention occurred in D.C.
The second voir dire question, she said, might require some more probing, given the D.C. rally’s many themes.
Overall, the photo and the subsequent uproar “may make juror seem disingenuous, and the judge is not going to be happy,” Kenney Baden said. “But, in my opinion, it will not overturn the verdict.”
New York City public defender Brian Buckmire agreed that more factual investigation was necessary.
“He [Mitchell] describes the march he attended as one for voting rights, but he was aware of others protesting George Floyd,” Buckmire said. “As someone who has attended protests, I’m not surprised in [a] massive protest that people showed up for one cause while there were 20 other causes there. I don’t see that as a lie.”
Generally speaking, though, Buckmire suggested that the case law cited above suggests Chauvin’s defense would “have to find something HUGE to overturn” the verdict based on jury bias — such as the Dowd case where eight of the twelve jurors were biased from the state.
Buckmire was also concerned that Chauvin’s attorney, Eric Nelson, didn’t probe Mitchell properly.
“Did he lie?” Buckmire saw as the biggest question any follow-up hearing or litigation should answer. Then, it should examine what questions Nelson asked; whether Nelson had challenges left which could have been used to strike the juror; and whether the “high standard to overturn the conviction” was met in this case.
In some states, such as New York, attorneys must exhaust all of their peremptory challenges before they can appeal a question involving jury bias, Buckmire noted.
Former New Jersey county prosecutor and current criminal defense attorney Bob Bianchi called the development “very serious and troubling” because the juror wore a t-shirt which condemned the actions of the defendant that juror was ultimately called to judge:
The prosecution already has a lot of work to do to convince an appeals court that not changing venue, not sequestering jurors, having a civil settlement in the middle of jury selection, having jurors being exposed to another incident that sparked protests during the trial, and a key medical/blood gas report being withheld all did not affect the jurors’ decisions in Chauvin’s case. But, these arguments were somewhat speculative until now.
This development with this juror is far more concrete, and on a matter of importance — bias against the police, and Chauvin in particular. When combined with other problematic issues as to how this case was handled, it could have a cumulative effect of convincing an appellate court that the conviction of Chauvin should be reversed.
The questions to the jurors were specifically tailored to ferret out bias. They were specifically asked about demonstrations attended, BLM, and opinions formed about the case. The court often repeated that it had no reason to disbelieve the juror responses. But now, there is reason to believe a juror, who previously went to a demonstration wearing a tee shirt that specifically condemned the defendant’s actions, was not accurate when these issues were addressed to them by the court. This could well have caused the court to excuse the juror for cause, or allowed the defense the right to use a peremptory challenge to remove the juror.
Bianchi then raised several tantalizing what-ifs:
Throughout this trial I have been concerned about many issues regarding the defendant’s right to get a fair trial. No person should be against that. I often said in the media that as a prosecutor, I not only won the case at trial but on appeal, too.
This development should result in the court calling the juror in to seek an explanation of the significant and important discrepancies between his statements to the court during jury selection versus what is now being unearthed. I wonder, if such an inquiry occurs, whether the juror might refuse to answer the court’s questions by asserting his 5th Amendment right to remain silent — since his statements to the court in jury selection were made under oath.
If that were to occur, the Derek Chauvin conviction may be a toss up on appeal.
“A complicated road for the defense,” said New Jersey criminal defense attorney and former prosecutor Mike Koribanics. “We all have our own feelings and beliefs. As a juror you have to answer honestly the question: Can you put your personal beliefs aside and decide the case based on the evidence presented? The defense, in my understanding, would have to show that those personal beliefs were put forth during deliberations and influenced the verdict.”
And that is precisely what Mitchell said when pressed by the judge in mid-March.
“You may have heard things about the case . . . it’s alright to have read about it. It’s hard to avoid. It’s alright to even form opinions based on what you’ve heard and seen. But as a juror, you have to put all that aside. Decide this evidence just the evidence you hear in the courtroom. Essentially, be a blank slate, and apply the law as I give it to you. Do you think you could do that?”
“For sure,” Mitchell said.
Watch Mitchell’s entire voir dire below:
[Image via the Law&Crime Network.]
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