Day 7 of the Derek Chauvin trial: Judge weighs delay or change of venue

The judge presiding over the murder trial of Derek Chauvin said Tuesday he is weighing whether to delay or move the murder trial in the wake of the city of Minneapolis announcing in the midst of jury selection that it pay the George Floyd family $27 million to settle a lawsuit.

The payout being made to settle the federal lawsuit brought against the city was announced last week as jurors were being questioned about whether they could impartially judge the evidence in the trial of the fired police officer, who is charged with causing the death of Floyd late last summer after kneeling on his neck for more than 9 minutes.

Hennepin County District Judge Peter Cahill said that he's considering a delay of the trial or having the proceedings moved to another city in the state. He added that he alone will question the seven jurors on Wednesday who were seated when the settlement was disclosed at a news conference. He wants to size up whether their ability to be fair to Chauvin has been compromised.

Nine jurors have been seated so far through Tuesday's selection process and ahead of the trial resuming Wednesday morning in the methodical effort to find 14 jurors, including two alternates, who will hear the evidence. Cahill said he does not intend to sequester the jury any sooner than when deliberations begin and will not award the defense additional peremptory strikes that can be used to excuse jury candidates. He reinforced that decision Tuesday afternoon, when the defense sought but failed to reclaim from the judge one of its peremptory strikes it felt forced to use in the morning, when one jury candidate said he heard about the settlement but pledged impartiality toward Chauvin.

The settlement "is not just a legal decision, it's a political one," Cahill said. "And I think the people in [this] room realize that."

Before jury selection resumed Tuesday and ended with no prospective jurors joining those already chosen in the past week, the judge expressed exasperation that the city's announcement of the payout came during Chauvin's livestreamed trial.

Defense attorney Eric Nelson pointed out that in a Washington Post article last week, an unidentified city official said Chief District Judge Toddrick Barnette greenlighted the settlement's announcement.

Cahill revealed that he spoke with Barnette and said what the Post reported "is not an accurate statement."

"I think the bottom line is, this was a federal lawsuit, this court was not involved, and as I recall in my discussions with Judge Barnette, the answer was 'We can't tell you what to do.'" Cahill said. "And I think he expressed the concern that we would have about doing such a thing in the middle of jury selection, so there was no approval by this court. We had no authority to approve any release at this time. I think the city is trying to dump their responsibility back on the court where it does not belong."

Attorney General Keith Ellison, whose office is heading the prosecution of Chauvin, was asked by a reporter whether he or the court knew that a settlement had been reached before hit was announced on Friday. Ellison, who has a son who sits on the City Council that unanimously approved the payout, declined to comment.

Once jury selection began Tuesday, Chauvin sat at the defense table and attentively took notes. His dress also was similar, this day in a medium-colored gray suit with a white dress shirt, dark blue tie and a black face mask.

The number of jurors seated remained at nine by morning's end and hearing from five candidates. The first three would-be jurors brought in Tuesday all were excused by the judge for various reasons.

One jury candidate expressed concern that being a juror for several weeks during the school year would make it difficult for her to maintain her in-class responsibilities as a teacher. The next prospective juror revealed that a work project he is on routinely exposes him to news headlines, including the one last week about the settlement.

Then a woman was dismissed after explaining that she is scheduled to move into a new home during the trial and has a child under a year old that she would not want to be apart from while under sequestration.

Cahill noted that eight of the previous 11 possible jurors have been dismissed for various reasons, rather than being seated or struck by the defense or prosecution.

Extensive questioning by the defense of a fourth jury candidate Tuesday yielded the same result, despite the man saying without qualification that he could judge the case fairly. Still, the defense used one of its peremptory strikes to dismiss the executive director of a youth organization, who has had the most interaction with police among the potential jurors questioned so far.

He said that in his childhood he and his sister had to call police when their parents would argue and physically fight. He added that he had no issue with how the officers responded in each instance.

The man also shared that he is a skateboarder, and at times "you get yelled at [by police] for cruising down the street." He recalled one time in Georgia as a youngster, when he and others were allowed in a skate park in the middle of the night. Police arrived, thought there was a break-in and "were pretty forceful" verbally until the officers learned that the owner left a key for them.

The defense also used a strike to excuse the morning's final jury candidate, a lover of the outdoors and fisherman, who said he could judge the evidence fairly and give Chauvin his constitutional right to a presumption of innocence even though he believes that the defendant murdered Floyd.

"I think it's very difficult, based on what I've seen and what I've heard," he said, but it's something "I would definitely do."

The defense's attention to its dwindling number of strikes played out during lengthy questioning of Tuesday afternoon's first jury candidate. Nelson asked in numerous ways whether the man could be fair and impartial to Chauvin despite being troubled by the viral video of Floyd's arrest that he wrote in the questionnaire was "seared into my memory" and left him with a negative opinion of the defendant.

The potential juror repeatedly responded, "I would try to do my best" or some variation on the same pledge to presume Chauvin innocent before he sees all the evidence. Eventually, the young father of toddlers was told that trying was not good enough for the lawyers or the judge and eventually answered once without qualification, "yes, I could."

Nelson then made a motion for the judge use his authority and dismiss the jury candidate rather than having to use a defense strike. Cahill did so, noting that all of the man's answers about fairness and impartiality were qualified unless one of the attorneys "could lead him to the magic words" that would retain his viability to be on the jury.

The day's final jury candidate was questioned extensively about a long and close friendship with a police officer who works for a large Twin Cities agency which is not Minneapolis police. The man, a real estate agent, said he's gone on a couple of patrol ride-alongs with his friend and saw among other things a citizen suffer a serious head injury, a drunken driving traffic stop and someone who had died.

Prosecutor Steve Schleicher posed many questions about the man's ability to weigh testimony from a law enforcement officer vs. that of a bystander in light of the friendship and the ride-alongs.

"Naturally, I would believe the police officer more," said the man, who lives in a suburb and has three grown children, "because they have more experience and training with what's going on than someone who is walking down the street."

Cahill stepped in and zeroed in and asked whether a law enforcement officer is more like to tell the truth or a citizen. "I guess more likely the police officer," the man replied.

The judge then excused the prospective juror, sparing the prosecution from using one of its remaining strikes.

Also before jurors started being questioned, Cahill heard defense attorney Nelson again attempt to admit into evidence a May 2019 arrest of Floyd, when pills were discovered and Floyd's demeanor was similar, leading to paramedics to be called.

According to the evidence, Nelson said, a paramedic warned Floyd that his blood pressure was extremely high, and if he didn't calm down he was at risk of a heart attack or stroke. Floyd's cause of death a year later is expected to be a key issue by the defense, which has claimed the death was medical in nature and not to be blamed on Chauvin.

Nelson said the incidents were "remarkably similar" to the arrest a year later that led to Floyd's death. The similarities in the 2020 arrest include, according to Nelson: the discovery of drugs in the car that police pulled Floyd from, along with chewed-up pills in the back of the squad that tested positive for methamphetamine and fentanyl, along with Floyd's DNA.

Nelson said the pills weren't discovered until the defense asked to inspect the squad many months later, a fact that he called "mind boggling." Authorities then researched the car and seized the pills.

Judge Cahill questioned why the 2019 arrest is relevant, saying, "These are different police officers, and police have to deal with [Floyd] as he presents himself."

Nelson countered that Floyd's behavior in the two incidents establishes a pattern.

"There are so many other similarities between these two incidents including officers believing Floyd is on drugs," Nelson said. " ... The similarities are incredible. It's the exact same behavior in two incidents almost exactly one year apart."

Prosecutor Matthew Frank called Nelson's motion to admit the 2019 arrest as "desperation of the defense" to disparage Floyd's struggles with opiate addiction. Frank accused the defense of trying to "smear his reputation ... because he acted this way once before."

Cahill said the May 2019 hypertensive incident goes to a possible cause of death in May 2020. In both incidents, Floyd had ingested drugs. "That's the only relevance I see," Cahill said, adding that he would rule later on the issue.

Chauvin is charged with second-degree murder, third-degree murder and manslaughter after pinning his knee onto Floyd's neck on a south Minneapolis street corner for more than nine minutes on May 25 until Floyd lost consciousness and died.

On Monday, Nelson asked Cahill for a continuance in the wake of the settlement, which would delay the trial and give attorneys time to reassess their strategies in the context of the settlement's potential impact on the jury. The prosecution objected to any delay.

The first jury candidate Monday said she was taken aback when she heard the dollar amount associated with the settlement. Cahill dismissed her. No other prospective jurors for the rest of the day expressed a similar reaction, and two of them were added to the jury.

Race relations have come up consistently during jury selection. Chauvin is white, and Floyd was Black. Many potential jurors have been questioned about how police and the justice system treat Blacks vs. whites in this country. They've also been asked their opinions about the Black Lives Matter movement and the expression Blue Lives Matter, which is a way to express support for law enforcement.

With five more jurors yet to be chosen before the livestreamed trial starts in earnest on March 29, the panel consists of four people of color and five people who are white. More specifically: one multiracial woman in her 20s, two Black men in their 30s, one Hispanic man in his 20s, two white women in their 50s, a white man in his 20s and two white men in their 30s.

Heading into Wednesday, the defense has used 11 of 15 strikes, which attorneys can employ to dismiss prospective jurors without explanation. Prosecutors have used five of their nine peremptory strikes.

Three other officers assisting in Floyd's arrest — J. Alexander Kueng, Thomas Lane and Tou Thao — are scheduled to be tried in August on charges of aiding and abetting murder and manslaughter.

Star Tribune staff writer Chao Xiong contributed to this report.

Paul Walsh • 612-673-4482