Now that fired police officer Derek Chauvin has been convicted on all three counts against him, he can still file an appeal. But the odds are not good, considering some 90% of appeals are denied across the United States.
An appeal in the case is a virtual certainty. But what issues Chauvin’s lawyers raise to the appellate court are an open question, according to criminal defense experts.
The appeal possibilities could include the possible bias of jurors, the refusal by Judge Peter Cahill to move the trial or sequester the jury, or what some experts are saying were questionable jury instructions on some of the charges Chauvin faced.
Chauvin could also argue ineffective assistance of counsel — a last option, in experts’ opinions, but one that could rise because lead defense attorney Eric Nelson did not often object to emotional witness testimony.
But while nearly every conviction yields an appeal, their success rate is about 10% or lower. This could be further hindered by the fact that in Minnesota, the appellate court is filled with elected officials, who would be tasked with potentially overturning one of the most high-profile murder cases in American history.
The most likely avenue of appeal is the massive publicity given to the case, the potential bias that created, and the judge’s denial of Nelson’s repeated requests to move the case out of Minneapolis or sequester the jury throughout the trial to shield them from any news about the case.
“I wish elected officials would stop talking about this case, especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function,” Cahill said Monday when denying a motion for a mistrial based on publicity and Waters’ comments.
President Joe Biden also said Monday that he was praying the verdict the jury returned would be “the right verdict, which is – I think it’s overwhelming in my view.” Biden would not clarify what he meant by “overwhelming” or “the right verdict.”
Cahill’s refusals to move or sequester the jury came as little surprise to Ted Sampsell-Jones, a criminal defense appeals attorney and professor in St. Paul, next door to Minneapolis.
“That would have been a huge imposition on the jurors to make them live away from their family for a month,” in addition to missing work, said Sampsell-Jones, who teaches at Mitchell Hamline School of Law. “I don’t think it would really have helped given they would have had to take away their cellphones … then it also would have made it much harder to get a jury.”
People simply wouldn’t have wanted to serve, he said.
“It was a totally normal ruling,” Sampsell-Jones said. “But that’s something where defense counsel made the request, probably knowing or anticipating the request would not be granted but giving the defense an issue to appeal.”
Jon J. Lee, also a law professor at the University of Minnesota Law School, agreed the inescapability from news and social media coverage — jurors were not barred from using social media during the trial — was a top target for appeal. Even television shows outside of immense news coverage, such as “Saturday Night Live,” have highlighted the trial and suggested there was no option but a guilty verdict.
“Part of the concern here,” Lee said, “is that the judge has instructed the jury not to listen to the news. But as Chauvin’s attorney has argued, the collective media coverage of this trial extends well beyond news coverage, and in particular in light of the shooting in Brooklyn Center. I think that was difficult to avoid hearing about for (juror) residents in the area.”
“This type of restricted housing is not disciplinary in nature,” according to the department’s website. “Sometimes it is used during pending investigations or when continued presence in the general population could pose a particular safety concern.”
Chauvin faces a recommended 150 months or 12½ years in prison under sentencing guidelines for first-time offenders. But the prosecution is seeking a higher prison term due to “aggravating factors.” So, he may face up to 30 years in prison, though the judge may sentence him to less.
Chauvin has waived his right to have a jury consider aggravating factors at sentencing, so it’s in Cahill’s hands.