MINNEAPOLIS — Derek Chauvin's attorney on Wednesday morning made his argument before the Minnesota Court of Appeals to throw out his convictions in the murder of George Floyd, the latest and what could be the final courtroom proceeding in his case that spans nearly three years.
When the ex-Minneapolis police officer knelt on the unarmed Black man's neck for more than nine minutes, the world responded to bystander footage of the killing with outrage, riots and protests by the thousands. But William Mohrman, Chauvin's appellate attorney, said all that pretrial publicity — the unrest and calls for police reform — made it impossible to get a fair trial.
"The main remedy my client is looking for is a new trial," Mohrman contended before the three-judge panel.
A Hennepin County jury convicted Chauvin of second-degree unintentional murder, third-degree murder and second-degree manslaughter in April 2021, and he was sentenced to 22 1/2 years that June. He later pleaded guilty in federal court to charges of violating Floyd's civil rights and received a concurrent 21-year sentence that he cannot appeal.
Mohrman asked for state convictions to be reversed, and if not, he wants a new trial outside Hennepin County.
"The primary issue on this appeal is whether a criminal defendant can get a fair trial consistent with constitutional requirements in a courthouse that's surrounded by concrete block, barbed wire, two armored personnel carriers and a squad of National Guard troops all ... there for one purpose: in the event that the jury acquits the defendant," he said.
Even if Chauvin wins his appeal, he will still have to serve his federal sentence. He's in custody at a medium-security federal prison in Tucson, Arizona. A decision on his appeal will be issued within 90 days.
Mohrman has represented controversial landlords accused of substandard conditions and won a major victory several years ago when the 8th U.S. Circuit Court of Appeals struck down a 101-year-old law that made it a crime to make false political statements about a ballot question.
In Chauvin's appeal, he argued that the state failed to prove sufficient probable cause, among other alleged legal errors outlined in his brief, and the jury was tainted since the killing and trial all happened in Minneapolis.
The pretrial publicity was pervasive and Mohrman pointed to the "physical pressure on the courthouse" and concerns jurors had for their safety. Mohrman said what made this case unique was the unrest that followed Floyd's killing. Leading up to Chauvin's verdict, he said the city braced for more riots in the event of an acquittal.
Media coverage was more extensive than any other trial in Minnesota's history, he added, and said the court's discretion was abused when denied a change in venue.
"The jurors that sat on this jury had a stake in the outcome of the case because they lived here where the riots occurred," he said. "If this case gets moved out state, the likelihood of having riots in the community where the jurors are living, I believe will be a zero."
Chauvin's was the first Minnesota trial to be livestreamed to viewers worldwide. Minnesota is one of the few states that still bans cameras in the courtroom without rare exceptions. District Judge Peter Cahill allowed livestreaming of Chauvin's trial because of the pandemic and high public interest.
Wednesday's appeal hearing was also livestreamed. Each party had 15 minutes to make their oral arguments— a snapshot of their lengthy written briefs — and a significant amount of that time was focused on the venue issue and one juror who Mohrman accuses of lying.
Brandon Mitchell, a Black man who was then 31, was one of 12 jurors who convicted Chauvin and the first juror to go public about his role. After the verdict, a photo of him at an August 2020 Washington, D.C., at event commemorating Martin Luther King Jr.'s "I Have a Dream" speech drew criticism and potential bases for an appeal.
Mitchell was shown wearing a T-shirt with a picture of King surrounded by the words, "GET YOUR KNEE OFF OUR NECKS" and "BLM" (Black Lives Matter).
"I'd never been to (Washington) D.C.," Mitchell told the Star Tribune after the post surfaced. "The opportunity to go to D.C., the opportunity to be around thousands and thousands of Black people; I just thought it was a good opportunity to be a part of something."
Mohrman contended that Mitchell lied about whether he participated in any protest in Minneapolis because Mitchell answered no. Court of Appeals Judge Peter M. Reyes Jr. told Mohrman that he doesn't believe Mitchell was lying because the march Mitchell attended was outside Minneapolis. Reyes said even Chauvin and his attorneys seemed to acknowledge the difference when the Mitchell was sat as a juror.
Reyes said he had a hard time understanding Mohrman's argument regarding the juror, who he said seemed forthright about BLM and "that Black and racially and ethnically diverse people were not necessarily treated fairly by the police."
Neal Katyal, who was acting U.S. solicitor general during the Obama administration and served as one of the special prosecutors in Chauvin's murder trial, said in his oral argument that Chauvin's attorneys asked Mitchell seven times if he could render a fair verdict and they chose to seat him on the jury.
"(Mitchell) wasn't trying to hide the ball or anything like that. He was very clear about his views of police brutality and racism," Katyal said.
Katyal said that Chauvin's attorney cannot bait-and-switch now when it comes to that juror.
On the issue of venue, he said that Cahill made clear that even if the trial was in a smaller venue, the security would stand out and there would be the same fears of civil unrest.
Further, even if there were some minor faults in the trial, Katyal argued that any error is harmless. He said Chauvin's appeal arguments do not come close to reversing his convictions.
"It was one of the most transparent and thorough trials in our nation's history," he said.
Jurors heard from 44 witnesses, including bystanders and expert testimony, as well extensive video footage. He said they learned about Chauvin's training and how to avoid prone restraints because of positional asphyxia, "which is the very thing that killed Floyd."
Katyal said Floyd cried out "I can't breathe" more than 25 times under Chauvin's knee and at no point did Chauvin provide Floyd medical care, even when other officers noted he didn't have a pulse, even after Floyd stopped breathing and moving.
"Evidence of Chauvin's guilt was captured for the world to see," he said.
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