Jury selection begins Thursday in St. Paul's federal courthouse for three former Minneapolis police officers indicted on civil rights charges in connection to George Floyd's killing, 20 months after the Black man's death in their custody started a global reckoning with brutality in American law enforcement.
It may feel like part two of the 2021 trial in Hennepin County District Court, which culminated with millions watching as a jury found a fourth former officer, Derek Chauvin, guilty of murder and manslaughter. But the coming trial of Tou Thao, J. Alexander Kueng and Thomas Lane will look very different.
Cameras will not be permitted in the federal courtroom. Instead of watching the trial live, the public must rely on reports from a few dozen journalists. And most of them will follow the proceedings from a low-quality feed in another room inside the courthouse — an unusual arrangement the judge says is necessary to avoid a COVID-19 outbreak.
A federal case means a statewide jury pool. Those who decide the fate of the three men may come from more conservative reaches of Minnesota.
The legal standard for this case also poses a greater challenge to prosecutors than with Chauvin, said Mark Osler, a former federal prosecutor who teaches at the University of St. Thomas School of Law.
The U.S. Attorney's Office will try to prove the former officers — two of them were rookies — had a duty to intervene and failed to act as Floyd pleaded for his life under the knee of their former training officer.
"The Chauvin case was about what someone did. This case is about what people did not do," Osler said. "And that's a different kind of challenge with the prosecution, starting with jury selection."
In order to secure a guilty verdict, prosecutors must show that Thao, Kueng and Lane "willfully" violated Floyd's civil rights, said Hernandez D. Stroud, a federal law professor and counsel for the nonpartisan Brennan Center for Justice.
Showing willful intent is such a high standard that Stroud and others have pressed Congress to alter it in order to make it easier to hold police officers accountable. It's why federal prosecutors only charge on average 41 cases per year like this one.
Proving guilt will require getting into the officers' heads. More than a fatal accident, more than recklessness, prosecutors must prove beyond a reasonable doubt that the three defendants acted with "the express purpose of violating Mr. Floyd's rights," Stroud said.
"That's an incredibly stringent standard and won't be easy to prove," he said.
The art of jury selection
The first task for the court will be to find 18 people who haven't already made up their minds about the former officers' guilt, a normally routine process made uncommonly grueling by 20 months of sustained publicity on Floyd's killing.
"Literally everybody has seen something about this case and has watched the videos," said Chris Madel, a Minneapolis-based defense attorney. "It's going to be extremely difficult to find a person that's going to honestly tell you they haven't formed an opinion about the case."
In choosing the jury, the prosecution, defense and judge won't expect to find people with zero knowledge of the case, said former Minnesota U.S. Attorney Thomas Heffelfinger. Instead, they'll look for those who can objectively weigh the evidence against the legal standards: "Can you put aside what you've heard and make a decision based on the facts and the laws you hear in this courtroom?"
U.S. District Judge Paul Magnuson already has started weeding out potentially biased candidates. In November, he mailed a 15-page questionnaire to a pool of prospective jurors with questions addressing what they might know about the former officers and Chauvin's trial.
Have they seen the videos? Do they have impressions of the officers already? What about the Minneapolis Police Department — or police in general? Other questions asked about perceptions toward groups such as Black Lives Matter and Blue Lives Matter, and whether they participated in any protests or other civil disobedience over the past two years.
In the courtroom, Magnuson and the attorneys will winnow down a pool of 256 survey responders to 12 jurors and six alternates. Each trial is different, but it's likely Magnuson will lead selection, a process known as voir dire. Magnuson has said jury selection will last two days, which would be much quicker than the two weeks it took for Chauvin's state trial.
Selecting a jury is more art than science, and every attorney approaches it differently. Madel said the questionnaires likely include the names of those being summoned to selection, and some attorneys look up prospective jurors and their families on social media to see if they've posted about the case.
With a statewide jury, lawyers on both sides will also likely pay closer attention to political allegiance, Madel said. "When you look at the red vs. blue on the last election, the minute you get out of the metro, it gets pretty solid red," he said. "And I think a lot of those people are generally more inclined to find reasons to side with the police."
The 'ghost' defendant
Chauvin already pleaded guilty to the charges in this case, so he won't be in the courtroom unless he testifies. But Chauvin will still be there in spirit — appearing in evidence and testimony, and as the antagonist of the defense's narrative of what happened on May 25, 2020, when the ex-officers encountered Floyd.
"He's the ghost haunting the proceedings," Osler said.
Heffelfinger said jurors will know about Chauvin's trial, even if they claim to be objective. Chauvin taking himself off the board will make it easier for the other officers to blame him for Floyd's death.
"They're all going be pointing fingers at Chauvin," Heffelfinger said. "Especially Kueng and Lane, they're going to be saying, 'We're rookies. He's our training officer.' "
Will they testify?
The decision whether to put the former officers on the stand requires a tricky calculation on the part of their attorneys.
Testifying may humanize the defendants to the jury. But it also opens them to cross-examination from prosecutors and in turn "could expose them to liability they wouldn't have otherwise faced," Stroud said. The lawyers must consider how well their clients will hold up under pressure.
For these reasons and more, Stroud said the risk usually outweighs the benefit.
But it does happen. Kimberly Potter, the former Brooklyn Center police officer found guilty of manslaughter in December, testified in her case to mixed reception. Chauvin didn't.
It's possible that just Lane and Kueng will take the stand, Osler said. Unlike Thao, who has a longer history with the police department that includes prior use-of-force, Lane and Kueng were still rookies and have less baggage for prosecutors to capitalize upon on cross examination.
"So that's a different calculation than the other two," he said.