Chauvin likely to face uphill battle in expected appeal

Derek Chauvin’s legal team may face an uphill battle if they seek to appeal his conviction on murder charges in the death of George Floyd, legal experts say.

However, Chauvin’s defense team likely sees the charged atmosphere around the trial and public comments from Rep. Maxine Waters (D-Calif.) and President Biden as grounds for a future appeal. Judge Peter Cahill even highlighted Waters’s remarks as possible fodder.

On Tuesday, a jury convicted Chauvin of all three murder and manslaughter charges brought by state prosecutors in the highly-publicized trial.

Chauvin will soon face sentencing over the charges, and his lawyers will have 90 days to file a notice of appeal.

His defense lawyer had filed several motions intended to shield the jury from the public outcry surrounding the case with little success. The issue of location and publicity around the case could be raised again in the expected appeal.

Jordan Gross, a professor at the University of Montana law school, said that even though the case had captured the attention of the entire nation, the defense could argue that some of those factors could have been avoided if the trial had been held elsewhere.

“[The trial] was very dignified. It was incredibly well done, and it was solemn, and all that,” Gross said. “But if I were arguing this, I would start thinking about what’s going on outside the courtroom, the stuff that Judge Cahill can’t control. Jurors had to drive by the protests every day.”

Additionally, towards the end of the trial, Waters stirred up criticism by saying that if the jury were to find Chauvin not guilty she would “fight with all of the people who stand for justice.”

“We’ve got to stay on the street, and we’ve got to get more active. We’ve got to get more confrontational. We’ve got to make sure that they know that we mean business,” she told demonstrators on Saturday.

And on Tuesday, while the jury was sequestered in deliberation, Biden suggested he was “praying” for a guilty verdict.

The comments prompted criticism from many on the right, who said Waters was trying to incite violence, and Chauvin’s attorney responded by asking the judge to declare a mistrial. Cahill refused, but criticized Waters for weighing in on the case.

“I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned,” Cahill told the defense attorney, Eric Nelson, on Monday. Some, including Sen. Ted Cruz (R-Texas) who tweeted about the subject, also suggested that Biden’s comments amounted to “possible basis on appeal to challenge any guilty conviction.”

“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,” the judge said of Waters.

The White House noted that jurors were sequestered and could not be influenced by Biden’s comment. And legal experts say that Waters’s comments likely won’t have that much of an impact on any potential appeal.

“There just is not going to be any more reversals of convictions based on outside influences like that,” said Joseph Friedberg, a veteran criminal defense attorney in Minneapolis.

Some legal observers believe that Chauvin’s defense attorneys will likely ask an appeals court to scrutinize Cahill’s decision to reject their request for a change of venue over the intense attention to the case from the local community.

Cahill dismissed their motion last month, saying, “I don’t think there’s any place in the state of Minnesota that has not been subjected to extreme amounts of publicity on this case.”

Jeffrey Abramson, a professor at the University of Texas law school, says that while he doesn’t expect the jury’s verdict to be reversed, he expects Chauvin’s attorneys will likely argue on appeal that the trial should not have been held in Minneapolis, which had been rocked by protests in the aftermath of Floyd’s death.

“However, there is one precedent in Chauvin’s favor,” Abramson told The Hill. “In 1964, a Dallas jury convicted Jack Ruby, whose shooting of Lee Harvey Oswald, the reputed assassin of John F. Kennedy, was captured live on television. In 1966, a Texas Appeals court threw out Ruby’s conviction, finding in part that a change of venue away from Dallas should have been granted.”

“Moving the case out of Dallas would not solve the problem of virtually everyone everywhere having seen the incriminating television footage,” he added, “But Dallas juries, the court found, might be prejudiced by wanting to undo the damage to their city’s image that the events had created. The same could be said of why a change of venue away from Minneapolis should have been granted.”

Abramson, who has written extensively about the role of juries in the justice system, said that he doesn’t believe such an appeal would be successful since the trial was “very clean” but that several factors, including Waters’s comments, will give the defense ammunition to argue that the prejudices in Minneapolis were stacked against Chauvin.

While some legal experts say that there are legal issues where Chauvin’s lawyers could find traction, Friedberg, the Minneapolis defense attorney, said that Minnesota’s higher courts have made it increasingly difficult for criminal defendants to challenge their convictions on such grounds.

He believes that any judge who hears a potential appeal from Chauvin will have to wonder whether overturning the conviction and granting him a new trial would remedy any problems with the original one.

“There isn’t any remedy, because the publicity around the second trial will be even greater and public outrage one way or another would be even greater,” Friedberg said. “So we have a problem that exists, that we don’t have a remedy for.”