Commentary: Chauvin Unlikely to Win on Appeal

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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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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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21 thoughts on “Commentary: Chauvin Unlikely to Win on Appeal”

  1. Ron Oertel

    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.

    Is anyone actually “hoping” for that, other than Chauvin and those close to him?  Is there a big movement outside the jail to “free” him?

    (Of course it would result in higher ratings in regard to news media coverage.)

    Seems like this is the only story that’s occurred throughout the world, in the past week or so. Lazy news media coverage. It also seems that the advocates have taken over the media, itself.

    1. Ron Oertel

      You are correct, sir!  🙂

      Maybe I’ll go back and take a look at it.

      I had noticed that some “on the right” seemed interested in downplaying the incident, in the first place. And were essentially conducting their own “trials by blog”.

    2. Alan Miller

      I did read Koda’s article and had meant to comment.  It was well written and I think made the point regarding the . . . and was titled with . . .  “far right”, whereas here you just say “right wing”.  This is a long-grey line, but my point here is that the conservatives I’ve talked to, and those that I follow, did not share these “far right” views, and agreed with the verdict.  I say this because I think, as your article the day of the verdict stated, this was a monumental verdict and marks a point of advancement for America.  There should be recognition of the responses/ideals of the ‘far right’ and those we should remain wary of, and I’d love to see more reasonable conservatives condemn those views.  This is not the time for the modern ‘us vs. them’ paradigm.  There should be a recognition that huge numbers of so-called conservatives agree with the verdict, and this is a chance to come together in the middle, if such a thing is remotely possible in 2021.

  2. David Greenwald Post author

    Alan – All of that is well taken. I was really responding to Ron’s comment asking whether anyone was questioning it. I have found it interesting that for the most part the police leadership believes that this was an egregious abuse of power by the officer but I have talked to a number of rank and file law enforcement members who think the officer was justified. And the point has been out there that there is a chance to appeal this – I see that as unlikely.

    1. Ron Oertel

      I have found it interesting that for the most part the police leadership believes that this was an egregious abuse of power by the officer but I have talked to a number of rank and file law enforcement members who think the officer was justified.

      That doesn’t sound like a “left/right” division, unless those who rise to leadership positions are more “in tune with” political movements/views.  (Thereby perhaps allowing them to be appointed to leadership positions, in the first place.)

      The division sounds more like an “employer/employee” issue, other than that.  With employers responding to one set of pressures, and employees responding to a different set – including “boots on the ground” realities of jobs which leadership (generally) does not directly face.

      That division and tension exists in almost all employer/employee situations, in some form.

      And ultimately, it can cause leadership to “throw someone under the bus”, when the sh*t hits the fan. That “substance” always flows downhill, from the top.

    2. Bill Marshall

      Google Q-Anon’s take on the trial… I’ll not dignify it by sharing the link…

      Once sentence(s) are rendered,  I strongly suspect the matter will be appealed… VERY likely… extremely unlikely for an appeal to be upheld

      that there is a chance to appeal this – I see that as unlikely.

      The chance it will be appealed, probably 90%… chance such an appeal will succeed, maybe 0.01%…

    1. Bill Marshall

      KO… good point… obviously Chauvin did nothing wrong, should be reinstated (with full back pay and benefits) and should have the City fully reimburse his legal costs, plus punitive damages…

      I am not a fellow Chauvin-ista, but get where you are coming from… hope I never visit there…

      You must be proud of finding and posting that, boy..

      1. Ron Oertel

        You must be proud of finding and posting that, boy.

        It’s not hard to find, even if one isn’t looking for it.  Finding it (and posting a link to it in this article) does not comprise an opinion regarding the conviction.

         

      2. Keith Olsen

        BM states:

        KO… good point… obviously Chauvin did nothing wrong, should be reinstated (with full back pay and benefits) and should have the City fully reimburse his legal costs, plus punitive damages…
        I am not a fellow Chauvin-ista, but get where you are coming from… hope I never visit there…
        You must be proud of finding and posting that, boy..

        BM, show me where I said or even implied one of the things you posted here.

        Get a life…

         

        1. Ron Oertel

          First, maybe you can tell us if you’ve stopped beating your wife.  🙂

          Then, you can explain why Chauvin should be reinstated, given a hero’s parade, etc.

          (Just pointing out the absurdity of someone else’s conclusions, in regard to your original comment.)

          And this is why only a handful of commenters remain on here – unfortunately including some who like to “play the game” which caused others (who didn’t want to deal with it) to leave.

        2. Keith Olsen

          Exactly Ron, this article is about Chauvin’s chances of winning on appeal and whether he got a fair trial.  It’s not about whether he’s guilty or not.   It’s not difficult to comprehend.

        3. Ron Oertel

          I shudder to think what would happen, if that conviction is overturned at some point.

          It shows Mitchell standing with two cousins and wearing a T-shirt with a picture of King and the words, “GET YOUR KNEE OFF OUR NECKS” and “BLM,” for Black Lives Matter.
          —————————————-
          Mitchell, 31, acknowledged being at the event and that his uncle posted the photo, but said he doesn’t recall wearing or owning the shirt.

          https://www.wral.com/chauvin-juror-defends-participation-in-washington-protest/19658678/

          How can someone forget something like that, from last summer?

           

           

        4. Keith Olsen

          How can someone forget something like that, from last summer?

          That and his answers on the jury selection questionnaire I’m sure are going to be front and center in the appeal along with several other questionable issues.

          1. David Greenwald Post author

            Unlike the other issue, cases do get reversed based on jurors omitting potentially biasing information or giving misleading answers to questions.

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