Professor Buzz Scherr discusses the complications of the jury selection process in the trial of Derek Chauvin for the death of George Floyd. Produced and Hosted by A. J. Kierstead
Get an email when the latest episode releases and never miss our weekly episodes by subscribing on Apple Podcast, Google Play, Stitcher, and Spotify!
UNH Franklin Pierce School of Law is now accepting applications for JD, Graduate Programs, and Online Professional Certificates at https://law.unh.edu
Legal topics include criminal law, procedure, civil rights, jury selection, voir dire
Read the Transcript
A. J. Kierstead:
Professor Buzz Scherr discusses the complications of the jury selection for the trial of Derek Chauvin. This Legal Impact weekly podcast presented by the University of New Hampshire, Franklin Pierce School of Law. Now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or hosts and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.
A. J. Kierstead:
So Buzz, today's episode is centered around the trial of Derek Chauvin, the Minneapolis police officer accused of killing George Floyd, the incident that spurred countless protests this past year. There've been some issues with that selection of the jury in this case, which we'll dive into. But before we start that, let's get a baseline of how jury selection usually occurs in criminal cases like this.
Buzz Scherr:
Yeah, the short, accurate and useless answer is it depends on what jurisdiction you're in. There's a whole variety of it. In this kind of case, the kind of jury selection they're using is individual voir dire, that's what it's called. And what it involves is the judge calling a juror into the courtroom, counsel are present, and then the judge will ask the juror some questions. And then each side will have an opportunity to ask the jurors some questions.
Buzz Scherr:
And they can ask any variety of questions, the idea is two-fold. One, to make sure that the juror has no reason they shouldn't sit on the case, because they're related to one of the parties, because perhaps they are a police officer. Perhaps they work for the prosecution. Perhaps they know too much about the case and can't put what they've learned in the press aside and make their decision based on the evidence.
Buzz Scherr:
So that's the idea behind the individual voir dire. It's often used around the country in cases in which either very serious cases, and or cases in which there's been a lot of pre-trial publicity. Thee other-
A. J. Kierstead:
And when there's less widely known cases, it's can sometimes be done in a panelist format, right?
Buzz Scherr:
Right. Where they impanel a jury of up to 20 people. And then the lawyer asks the group as a whole questions and ask people to raise their hand and respond to the questions. That's not as effective a way to really ferret out some of the risks attendant with a high publicity case. Because jurors are far less willing to raise their hand when everybody else is there. They feel maybe ashamed of their opinion. But when they're alone in the courtroom with just the judge and counsel, they're much more willing to offer their opinion.
A. J. Kierstead:
Professor Melissa Davis, during lunchtime talk you did on Wednesday, said that she was taught jury selection is more like a jury de-selection process. Do you think that's a good way to think about it?
Buzz Scherr:
Yeah, it is, because each side has a number of peremptory challenges. And in New Hampshire in first degree murder cases where they do individuals sequestered voir dire, each side has 20 peremptory challenges. That is, you can excuse somebody from the jury for no reason whatsoever, just because you said so, you don't have to give a reason. But you only have 20. You would prefer to have the judge excuse a juror for cause because they say, "I don't think I can be fair in this case," or some version of that. That way you get to save your peremptory challenges.
Buzz Scherr:
So that's part one. Part two, you can't use that system ... You're taking people off the jury. You're not saying to the judge, "I want that one over there." You're saying to the judge, "I don't want that one." So you're trying to get rid of the people who you think are most dangerous to your side. And that's what Melissa meant in when she was talking about jury de-selection.
A. J. Kierstead:
Going back to the Derek Chauvin case. I mean, there are multiple issues in this case for the attorneys and prosecutors-
Buzz Scherr:
Yeah.
A. J. Kierstead:
... to find impartial jurors. I mean, ranging from opinions on police officers and systemic racism, to exposure to the news route around what happened.
A. J. Kierstead:
Let's start around the publicity of the case. I mean, this is something that just blew up, went viral in ... It was kind of the perfect situation with regards to just how quickly it was able to just blow up because of everyone being locked down. They were stuck for three months, and then this happened. I mean, can you touch upon this?
Buzz Scherr:
Yeah, it's an unusual case in that everybody was locked down. Some people were much more focused on the killing, the murder of George Floyd. And particularly I would assume in the Minneapolis area where the murder occurred. I'm sure there was just endless attention to it.
Buzz Scherr:
So that's always difficult. I mean, you want to select jurors in the ideal world from the jurisdiction in which the crime occurred. A defendant has that constitutional right. By the same token, you don't want people who have already made a decision, or in the middle of deliberations remember a fact that they heard about in the news, but they didn't hear at the trial. That can happen, I've had cases where that's happened.
Buzz Scherr:
So it's a difficult issue. The two primary ways that the court has to deal with this is, number one, they can grant a change of venue or a motion to continue. The change of venue is you move it to another area in the state in which there was far less publicity, where jurors are likely to be less tainted or affected by the pretrial publicity. Interesting question how possible that is given the pervasive nature of the pretrial publicity in the Chauvin case. The other thing you can do is just continue the case for a longer period of time until the publicity dies down. Interesting question whether that's possible in this case, given the notoriety of the case.
Buzz Scherr:
A good example of the change of venue circumstances, the Oklahoma City bombing case from many years ago, many decades ago, they tried that case in federal court in another state because they didn't believe they could select a jury in the Oklahoma City area that could put aside the devastating impact that that bombing had on so many in Oklahoma City. By contrast, there's the Marathon bombing case. Dzhokhar Tsarnaev, he was tried in the jurisdiction, in federal court, in which a huge majority of people in the jurisdiction were locked down because of Dzhokhar Tsarnaev. But the judge decided not to change the venu there, not to send it out to Springfield, Massachusetts.
Buzz Scherr:
And so you see judges all over the place in using change of venue. Most judges' instinct is not to change venue, just because it's an administrative pain on the neck. Personally I don't think that's a particularly good reason, that trying to claim it being an administrative pain in the neck and somebody getting a fair trial. That seems like a pretty easy calculation to me, but yeah.
A. J. Kierstead:
It seems like with this, there would also be concern that changing the venue and if the case doesn't go in just the perfect way, that a lot of people could call out that court as, "They're so disconnected from this, justice wasn't actually served."
Buzz Scherr:
Yeah. Well, it brings up the question of what does it mean for justice to be served? If you think about the trial as justice being served, as he got what was coming to him, if you have a bias in deciding what justice is. I mean, in the ideal world, we want justice to be as neutral and objective as possible, understanding it's never a completely possible.
Buzz Scherr:
So it just does not seem fundamentally fair to try a case with jurors on it, where there is a risk that they've already made up their mind and they're not going to tell you about it.
A. J. Kierstead:
Yeah, unfortunately, with this case, I mean, if Chauvin doesn't get convicted or there's some sort of agreement made on it, I mean, it's almost inevitable that there's going to be a huge amount of public outrage. I mean, OJ comes to mind.
Buzz Scherr:
Yeah. Oh, very much so. And that's why the judge is doing individuals sequestered voir dire. It's the other way of dealing with pre-trial publicity, instead of a change of venue. Where you ask the jurors individually, one by one, under oath questions, targeted. And both sides get to ask those questions.
Buzz Scherr:
Now the problem that developed late last week is George Floyd's family and the City of Minneapolis settled the civil suit that had been filed against the City of Minneapolis for $27 million. Perhaps the largest amount any case of that kind had ever been settled for. The problem was it came in the middle of jury selection. It's really quite puzzling why they decided to announce that settlement. Because you have to believe a lot of people who were in the group of 350 that were called in to be potentially on the jury, read about that.
Buzz Scherr:
So it was a very, very puzzling decision on the part of the City and the lawyers for George Floyd's family to release it then. Now that said, it's an interesting question, which side, if any, the announcement of that settlement hurts in the criminal case. Is the conclusion a juror might draw from that, "Oh, well, we don't have to worry about this criminal case because they're getting 27 million bucks, so it doesn't really matter what we decide." Or some version of the opposite. I mean, I could argue it either way.
Buzz Scherr:
The defense is objecting strenuously to that having happened and saying, "You need to change venue, or, and or you need to continue the case because it's just not fair." The judge has said, "I'm not ready to do that. I'm concerned about this. I'm really annoyed that it got revealed in the middle of jury selection. How stupid could whoever made that decision be, but let's do some ... I will call back the nine jurors we'd already selected, or the seven jurors we've already selected. And I will ask them questions specifically about, did they read about the settlement? How did that affect them?"
Buzz Scherr:
And he's done that, they're doing that today. And so far, he has dismissed two of the jurors that had originally been selected because they said some version of, "I heard about it and I can't really put it aside, one way or another." So it's a very messy process, needlessly confused by the release of the settlement.
A. J. Kierstead:
To me, it stands out that this could really, if this comes back up during the case in trial, this would be a big opening for appeals I'd assume, for either side.
Buzz Scherr:
Yeah, the fact of the settlement likely may or may not be admissible at the trial, it's unclear. One side might want to ... If somebody from the Floyd family were testifying, they might be cross-examined, "You're just saying that, because you just got a big money award." But the judge may exclude that from admissibility at trial. And if Chauvin is convicted, I have little doubt but that the defense will make this jury selection process and the release of that settlement information, a part of their appeal.
Buzz Scherr:
I don't know, it's going to depend on how thorough a job that judge does in the voir dire that's going on today and subsequently. And in vetting jurors to see if they were affected by knowing about that settlement, depending on the quality of what the judge does and drilling down with jurors to see if they can be fair. It may be a significant issue, it may be a relative non-issue. But the defense will certainly, if they lose, make it an issue.
A. J. Kierstead:
Thanks for listening to the Legal Impact presented by UNH, Franklin Pierce School of Law. [inaudible 00:12:59] spread word about the show. Please be sure to subscribe and comment on your favorite podcast platform, including Apple, Google, and Spotify.
