Nearly a year after a bystander's video of George Floyd's death sent shock waves across the world, prosecutors and defense attorneys face a seemingly insurmountable task in the trial of the officer charged with killing him: choosing an impartial jury.
Jury selection is scheduled to begin Monday in the murder and manslaughter case against ex-Minneapolis police officer Derek Chauvin in Hennepin County District Judge Peter Cahill's 18th-floor courtroom. By the time the prospective jurors arrive for questioning, the state's prosecutors and defense attorney Eric Nelson will have mined their 14-page questionnaires in search of anything that indicates overt bias.
Veteran attorneys, prosecutors and judges who are not involved in the case said Cahill, Attorney General Keith Ellison's office, which is prosecuting the case, and Nelson face a tough challenge. The court hasn't divulged how many questionnaires went out but has previously indicated it would bring in a big pool of prospects.
"It's going to be an absolutely monumental job to get a jury," said Joe Friedberg, one of Minnesota's most renowned defense attorneys. "I don't think they're going to get an impartial jury; they may get a jury that claims they are impartial."
It is not clear whether a Friday Court of Appeals ruling regarding the potential reinstatement of third-degree murder charges against Chauvin could delay proceedings. Attorneys have allotted themselves an unusually long three weeks to pick a jury. They will impanel 12 jurors and up to four alternates, two more than usual, for a total of 16. Opening statements and testimony are scheduled to begin March 29 and last two to four weeks.
Prospective jurors will be questioned one by one in the courtroom and will be called by number instead of name to protect their identity due to the profile of the case. They will remain anonymous and although the trial will be livestreamed, they will not be shown on video. Before arriving, they will have submitted the questionnaires, sharing their ages, marital status and occupations. They'll have provided their thoughts on Black Lives Matter, police in general and the presumption of innocence. They will have divulged their reading habits, favorite TV news station and whether they listen to podcasts.
One of the first things lawyers will want to know is what they've seen and heard about the case and Chauvin and Floyd.
"I'd ask, 'Did what you see lock you in a position?' " Washington County Attorney Pete Orput said. "I just want to hear they haven't made up their minds."
Mitchell Hamline School of Law Prof. Ted Sampsell-Jones said, "Ordinarily, you try to find jurors that know nothing about the case. In this case, that will be nearly impossible. So all you can do is look for jurors who pledge to be impartial and to put aside everything they've read in the papers."
Defense attorney A.L. Brown said that in this case, a lack of knowledge should be disqualifying "because they don't demonstrate the level of citizenship required for a case this serious. … I think they'd be lying, and if they're telling the truth, they still got to go."
Or as Margaret Bull Kovera, a psychology professor at John Jay College of Criminal Justice at the City University of New York (CUNY), said: "Who hasn't seen [the video of Floyd's death] at this point? … If you can truly say you have no knowledge of this tape, are you truly living in society?"
Even in high-profile cases, two retired Hennepin County judges said the public attention tends to be low.
Former Judge Daniel Mabley presided over the 2012 trial of Amy Senser, the wife of former Minnesota Vikings star Joe Senser, who was convicted of killing pedestrian Anousone Phanthavong, 38, in a hit-and-run crash. Nelson represented Senser at that trial.
Mabley said he brought in a large pool of prospective jurors, expecting many had seen the heavy pretrial publicity. "But there were only a handful of people who remembered what they had read. I think, generally, people know about the Chauvin case [but] if it doesn't affect them directly, they'll gloss over it many times and think, 'That's just another police shooting; I'm not interested.' "
Mabley is a consultant with the Hennepin County Attorney's Office, which is assisting in Chauvin's trial, but he is not involved in the case.
According to retired judge Kevin Burke, "It's likely most people are aware there were riots and Lake Street burned, but this case is about: What did Chauvin know?"
Choosing jurors in this case with a white defendant and a Black victim will involve attempting to elicit juror bias on race and policing.
Andrew Gordon, deputy director for community legal services for the Legal Rights Center, said he'd ask potential jurors about the last time they had a person of color in their home and their last visit to a person of color's home. And he would ask about last summer.
"I would be really interested in asking … 'You saw what happened; were you spurred to action by what you saw? Did you donate money? Did you read books? Did you have conversations with neighbors?' " he said.
Prospective jurors who took action, including attending protests, should not be automatically disqualified, Gordon said, and should be further questioned about their ability to set aside their bias.
Brown said a case this high-profile can have two effects: Prospects try to evade jury duty for fear of repercussions or they have an agenda and want to be a juror.
"You are really buying a box of chocolates. You don't know what's in the middle of them," Brown said. "You don't know if the person is telling you the truth because they're eager to get on the jury, or they're eager to get off."
Cahill can dismiss biased candidates outright. Lawyers can always move to strike jurors "for cause" if they state overt bias. Each side also gets a predetermined number of "peremptory" strikes, meaning they can remove a juror without providing a specific reason. In this case, the defense gets 15 and prosecutors get nine.
But lawyers cannot dismiss jurors based on race. Bull Kovera of CUNY said she will be watching for patterns.
"Are attorneys asking questions of Black jurors of their affiliation with the Black Lives Matter movement, but not asking those same questions of white people?" she said.
Bull Kovera said that social scientists have devised methods to uncover hidden biases because expressing them is not "socially desirable."
"Most of them will say I absolutely can be fair and listen to the evidence and follow the law, unless they're trying to get out of jury duty, and that's just not true," she said.
Probing political and religious affiliation is off-limits, but lawyers can try to discern it through savvy questioning.
"If I'm the defense in this case, I'm trying to figure out who the person voted for in the last election," Friedberg said. "I can't ask that question, but I'm trying to figure it out."
In their questioning of jurors, the lawyers will also try to start laying the foundation for their cases with hypothetical questions and rapport.
"You'll say to somebody, 'You understand that expert witnesses are being called in this case … and that you don't have to accept their opinion?' " Freidberg said. "The job of the lawyer is to push the judge until you go over the line and get stopped. ... I pound on the presumption of innocence."
Sampsell-Jones said lawyers might pose a question such as, "If you learned that the victim actually died of an overdose, would you be willing to change your views of the case?"
A combination of prospective jurors' demeanor and answers and an attorney's gut instincts determine who is fit to serve.
Brown said attorneys look for jurors who are independent and generally try to avoid people such as doctors whose profession may afford them undue influence over others.
In political terms, the prosecution will be looking for more minority and progressive jurors, while the defense will be looking for more white and conservative jurors. In the end, the jury will probably be a mix of different people with different backgrounds, different biases and different views of police. The question will be whether 12 of them can agree on a verdict.
Ultimately, the legal experts say there are no guarantees with jury selection.
"You're not trying to get the best. You can't," Burke said. "You're trying to eliminate the worst. … This is not a science. It's not even really a good art. It's just a lot of guesswork."
Staff writer Libor Jany contributed to this report.
This story is part of a collaboration with FRONTLINE, the PBS series, through its Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.