The legitimate outrage and outcry over the death of George Floyd at the hands (and the knee) of Minneapolis police raise many legal issues.

One that has not been much addressed has been accentuated by public responses from high level officials. Namely: Can police officers involved in the incident receive a fair trial?

On Friday, just four days after Floyd’s death, former officer Derek Chauvin, the officer depicted in numerous videos with his knee on the subdued man’s throat, was arrested and charged with third degree murder and manslaughter. Hennepin County Attorney Mike Freeman himself declared it was his office’s swiftest charging decision ever in a case involving police.

In the days leading up to Freeman’s decision, some alarmed public officials may have gone too far. Minneapolis Mayor Jacob Frey, for instance, immediately directed the four officers to be fired, which may violate all types of rights, as public sector employees have due process protections before discharge. Frey also called for the arrest of Chauvin, and for a homicide charge to be brought against him, whom he essentially branded a murderer.

Frey’s call for “ justice” echoed by a number of other officials may deprive Chauvin — and the other cops, if charged criminally — of the fundamentally fair and constitutionally valid treatment that they allegedly deprived Floyd of that horrible evening.

The public judgments pronounced by the mayor and other elected officials create an atmosphere that may preclude a fair trial — an atmosphere of prejudicial pretrial publicity that could taint any trial.

The concept goes back to the famous 1966 trial of Cleveland osteopath, Dr. Sam Sheppard, who was tried and convicted of murdering his wife in a case that became the model for the “Fugitive” TV series and the movie. About a decade after his conviction, Sheppard was granted a second trial by the U.S. Supreme Court because of the “carnival” atmosphere that pervaded the trial, due to prejudicial pretrial publicity ginned up by the local media, particularly the local newspapers, and some television stations, which the justices deemed violated the Constitution’s Sixth Amendment guarantee of a fair trial.

Once retried, Sheppard was acquitted and went on to become a B-list celebrity and professional wrestler.

The case launched the career of a young lawyer named F. Lee Bailey, which ultimately effectively ended when he was on the legal “Dream Team” that helped acquit O.J. Simpson, in an even more celebrated “carnival” criminal case.

In cases decided shortly before and after the Sheppard case, the federal high court has taken a fairly strict view of practices that have biased criminal trials, particularly when the problematic atmospherics have emanated from official authorities. The Minnesota courts, for their part, have been less rigorous in addressing prejudicial publicity issues.

The preferred remedy is to use extended jury questioning by the trial lawyers and the judge to ferret out prospective jurors who may have formed a pretrial disposition. That is what happened in the trial of former Minneapolis police officer Mohamed Noor, a year ago this week, for the killing in the summer of 2018 of Justine Damond after responding to a 911 call Damond herself had made.

Another device to counter prejudicial publicity is change of venue, moving a case from a hotbed to another area where publicity has been less pervasive. That, however, is fairly outmoded in today’s 24/7 global media environment and it is a device that is used very infrequently.

A change of venue is no panacea. It is costly, cumbersome, and can deprive family members, friends and members of the community from being able to attend the proceedings, depending upon where the case is held.

But those may prove to be necessary evils to remove the case from the vortex of prejudicial publicity that is developing in this matter.

One of the most notable examples of a change of venue was the murder trial of Marjorie Hagen for the slaying of her adoptive mother, Elizabeth Congdon, and her nurse at the Glensheen Mansion on the shore of Lake Superior in Duluth 43 years ago this week. The notorious, highly publicized case was moved from Duluth to Hastings, where Hagen was tried for murder and acquitted by a jury that, presumably, was less affected by the hoopla about the case than jurors might have been in Duluth.

But changes of venue are rare, even in the most high profile of criminal cases. Old-timers may recall the sensational murder trial of prominent St. Paul attorney T. Eugene Thompson for arranging a hit man to kill his wife. The courtroom drama in the early 1960s inspired extraordinary public and media attention, some of it quite unfavorable to Thompson. But both the Ramsey County District Court and the Minnesota Supreme Court rejected his claim that prejudicial publicity rendered his conviction invalid.

Chauvin and, if charged, the other Minneapolis officers involved in Floyd’s death may seek to move their trial to an outlying region of the state, where the hostility of a jury may be reduced, along with the likelihood of empaneling jurors of color. To succeed, they would probably present evidence from jury analysis experts and others who might try to convince a judge that a fair trial cannot be had in Hennepin County, based upon media reporting about the incident, the general mood of the community and all the reactions to Floyd’s horrific death.

So it remains to be seen whether Chauvin and any colleagues who may yet be charged will face justice where their actions (and inactions) occurred — or somewhere else.

 

Marshall H. Tanick is a Twin Cities constitutional lawyer.