By David M. Greenwald
The evidence was overwhelmingly against Derek Chauvin in the murder trial where he was convicted of second degree murder and two other charges. The jury came to a quick decision to reach that verdict on Tuesday.
But comments by the judge in response to a motion to declare a mistrial have led some to believe that there is a good possibility that the verdict could be overturned on appeal.
Eric Nelson for the defense argued, “There is a high probability that members of this jury have seen these comments, are familiar with these comments, and things that have happened throughout the course of this trial.”
He added, “And it is so pervasive that I just don’t know how this jury can really be said to be that they are free from the taint of this. And now that we have U.S. Representatives threatening acts of violence in relation to this specific case, it’s mind boggling to me, Judge.”
The judge responded, “I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.”
But somehow people failed to cite the final part of the ruling: “Their failure to do so I think is abhorrent, but I don’t think it has prejudiced us with additional material that would prejudice his jury. They have been told not to watch the news, I trust they are following those instructions and that there is not in any way a prejudice to the defendant beyond the articles that we’re talking specifically about the facts of this case. A Congresswoman’s opinion really doesn’t matter a whole lot.”
A lot of people cited the first statement but not the ultimate ruling by Judge Cahill. More importantly, many seem to think it’s easy to overturn a conviction on appeal when, time after time, even given massive misconduct, egregious error and evidence of innocence, in wrongful conviction cases it takes decades sometimes to find a crack in a conviction.
And this is no such case.
“I think the likelihood of success on appeal is small,” said Mark Osler, a law professor at the University of St. Thomas in Minneapolis as reported by the Wall Street Journal.
Osler points out that arguing that the jury could have been influenced by the publicity “is unlikely to persuade appeals judges.” He said they would have to say that they felt pressured to convict.
This is important to understand—people have the presumption of innocence until they are convicted beyond a reasonable doubt by a jury (or unless they plead to charges in a plea agreement), at which point the burden flips to the appellant. They have to prove that the jury was prejudiced—they would need declarations and the court would probably need to even find that the judge abused his discretion in ruling that the jury was not prejudiced.
The Wall Street Journal pointed out, as I have, “Criminal defense attorneys typically face a high bar getting a conviction overturned on appeal. In this case, the strength of the evidence that the prosecution presented could provide another hurdle for the defense to overcome, experts said.”
How high? “Mr. Chauvin’s attorneys would have to show not only that the judge made mistakes in his rulings on procedural issues but that they were severe enough to change the outcome of the case.”
“If this gets tipped, I’ll eat rat poison,” said Joseph Friedberg, a criminal defense lawyer in Minneapolis.
The National Post-Conviction Project, a nonprofit, says 90% of civil and criminal appeals are denied in the United States, ABC pointed out.
ABC interviewed Paul Applebaum, a Minnesota criminal defense lawyer. He believes “Chauvin’s prospects for a successful appeal are slim.
“Chances are slim to none and slim just left town,” he said.
Moreover, US News and World Report pointed out that “there was little precedent for challenging a case based on venue and that trials are rarely moved in Minnesota.”
They report, “To lodge a successful appeal, Chauvin would have to show that Cahill engaged in an ‘abuse of discretion,’ or made a mistake that was clearly unreasonable or against the evidence.”
They too interviewed Applebaum, who said the standard is “almost always insurmountable.
“I just don’t see there are a lot of close calls in terms of the judge’s discretion,” Applebaum added.
Joseph Friedberg, another Minnesota criminal defense attorney, said “an appeals court would not overturn a conviction because of media coverage or emotional protests.
“Cases aren’t going to be reversed on that basis,” he said.
John Baker, assistant professor of criminal justice at St. Cloud State University, also told the publication “publicity around the city’s settlement with Floyd’s family was also unlikely to affect Chauvin’s conviction.
“That will be another issue he will appeal on but I don’t think he will be successful,” said Baker. “You’re going to need direct evidence: a juror who says they were impacted. You cannot just speculate.”
People hanging on part of Judge Cahill’s words need to remember that, if he found the evidence so compelling, he would have thrown it out himself. We have definitely not heard from the jurors yet. If they come forward at some point and say they felt intimidated rather than to talk about how overwhelming the evidence was, then that is a game changer.
But for right now, people arguing that Waters’ comments will cause the conviction to be overturned don’t recognize how long a shot that actually is.
—David M. Greenwald reporting
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