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Column: Jury selection in Chauvin trial could spell the difference between conviction and acquittal

Eric Nelson, left, and Derek Chauvin in court.
Defense attorney Eric Nelson, left, and defendant Derek Chauvin during jury selection Thursday.

(Court TV )

The Derek Chauvin trial, which began on Monday in Minneapolis, will be among the most closely watched of our time. Charged with second- and third-degree murder and second-degree manslaughter, Chauvin, the fired police officer who knelt on George Floyd’s neck last May, is at the center of the nation’s current reckoning with race and justice.

Like another explosive case, the O.J. Simpson trial in Los Angeles, this one will be televised. Don’t expect the closeups and action of a three-camera drama — it’s Court TV, not “Law and Order.” Nonetheless, we can all see, hear and judge for ourselves what will be a crucial test of American jurisprudence.

So far, most of what has been on display is jury selection. It can seem bureaucratic and mundane, but many lawyers will tell you that the most important phase of a trial is not the testimony or the arguments to the jury or the legal motions. It’s choosing who sits in the jury box.

Jury selection is highly strategic, but the strategies won’t necessarily be clear to non-lawyers tuning in on YouTube or reading recaps in newspapers.

In a criminal trial, the constitutional requirements — a unanimous decision and guilt beyond a reasonable doubt — translate into diametrically opposed jury tactics for the prosecution and the defense. The prosecutors want jurors who are relatively nondescript and conformist. They fear what defense lawyers covet, the sort of maverick who could be a holdout against a consensus to convict.

The tools both sides will try to maximize during voir dire are probative questions and challenges — valuable, limited peremptory challenges, which can be used to knock out a juror for any reason (except race), and for cause challenges, in which the judge must agree that a juror can’t or won’t be fair.

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All the prospective jurors in the Chauvin trial are identified only by numbers; we can’t see them in the courtroom as they’re questioned, and their identities will remain confidential later; they will surely be sequestered during the trial.

Meet Juror No. 2, the first to be seated. Under questioning, he said he was an “advocate of community policing” who believes “all lives matter equally.” He is a chemist, so he is highly educated, and he has participated in dispute resolution. He is white, and about 30. He plays ultimate Frisbee and goes backpacking, which fairly screams “liberal.”

He claimed he hadn’t seen the video of Floyd’s “I can’t breathe” desperation, but he had visited the site where it happened. On the questionnaire, he wrote that he “somewhat agreed” that police officers might cover up crimes involving use of force, but in court he said he had no opinion about it.

His selection was a bit of a gamble by each side. He didn’t present any opportunity for a for-cause dismissal. And neither side disfavored him enough to give up one of their precious peremptory challenges. For the prosecution, his education and lifestyle suggests he will lean toward conviction. For the defense, his background and self-possession make him a potential maverick — unafraid to buck a trend, confident in his own perspective. He could be a leader in the jury room.

But didn’t Juror No. 2 give away prior knowledge, inclinations and predispositions? And isn’t that inconsistent with the constitutional guarantee of an impartial jury?

From one vantage point, certainly. Jurors of course come to notorious cases with preconceptions that are impossible to set aside fully. In this sense, an impartial jury is a constitutional aspiration. The best the system can do is to exhort jurors to set their preconceptions aside and come to their decisions based on the evidence. But that cuts against the grain of human nature. It’s an unenforceable ideal.

And yet our system also assumes jurors are not naifs. The Anglo-American right to a jury of one’s peers has always meant that the fact-finders in the jury box were part of a defendant’s community, that their judgments would be informed by their shared social norms. Historically, jurors often were acquainted with the accused. If prior knowledge or inclination were an absolute cause for exclusion, it would guarantee a jury of hermits or dolts.

In practice, that means that when a prospective juror says something like, “What the cop did was illegal,” he won’t be automatically bounced. The prosecution will try to rehabilitate him, by getting him to say he can be fair. The defense will probe in the other direction: “I guess I just can’t put my prior conception aside.” On Tuesday, one prospective juror in Floyd case in fact called a “knee across the neck” an “illegal tactic”; still, Chauvin’s attorney was forced to use a peremptory challenge to get him dismissed.

Jury selection is going faster than the judge presiding over the Chauvin trial bargained for. He set aside three weeks for the process of finding 12 “impartial” jurors and two alternates; by the end of the day Friday, seven had been seated. Opening statements and the presentation of evidence should start on time, March 29.

As the mini-dramas of voir dire have made clear, the Chauvin jury will bring their human biases to the job. Justice, then, will turn on their ability to do what they’ve promised in court this week: to hear out each side and take the law seriously.

@HarryLitman


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