A "Black Lives Matter" sign stands on my lawn. Former Minneapolis police officer Derek Chauvin wouldn't want me on his jury. But Chauvin's trial should be fair, and Hennepin County District Judge Peter Cahill's decision to allow prosecutors to present "spark of life" evidence makes a fair trial unlikely.
Minnesota appears to be the only state that allows a prosecutor to present sympathetic depictions of a victim's entire life while a homicide defendant is on trial.
Minnesota's unique law stems from a murder case that came before the state Supreme Court in 1985. The prosecutor had offered a one-sentence description of the victim in his opening statement, noting that he was a 28-year-old police officer who had grown up in northern Minnesota and had a wife and child. Then the prosecutor "choked up." The judge declared a recess to allow the prosecutor to regain his composure.
The Minnesota Supreme Court ruled that the judge was not required to declare a mistrial and start over. It acknowledged that "the quality or personal details of the victim's life are not strictly relevant." But, it said, "The victim was not just bones and sinews covered with flesh, but was imbued with the spark of life. The prosecution has some leeway to show that spark and present the victim as a human being as long as it is not an 'attempt to invoke any undue sympathy or inflame the jury's passions.' "
Over the years, prosecutors seeking to evoke sympathy and inflame a jury's passions have pushed the door farther open. In one case, a prosecutor was allowed to show that the victim was captain of his high school football team, had a tattoo of his mother on his wrist, tutored young children, wanted to be a teacher and was honored at a tree-planting ceremony.
The problem is not just that such evidence is irrelevant and prejudicial. Often it is also one-sided and misleading. No one wishes to speak ill of a deceased victim, and it would be especially unbecoming for the person accused of the killing to do so. Prosecutors thus can portray flawed victims as saints without much fear of contradiction.
As the Chauvin case illustrates, the law itself may block an evenhanded depiction of a victim's life. The prosecutor in this case reportedly plans to present photographs of George Floyd as a child and at other stages of life. He plans to call Floyd's brother to describe Floyd's childhood, his closeness to his mother and what a good brother he was. The prosecutor also plans to call a witness to give a sympathetic description of Floyd's struggle with drug addiction. (The prosecutor evidently considers it advantageous to acknowledge Floyd's drug problem before the defense attempts to show that drug use caused his death.)
But the jury will not hear about Floyd's criminal record, including the crime of violence that led to his imprisonment for five years.
