Updated: March 12, 12:25 p.m. | Posted: March 11, 4:51 p.m.
With jury selection underway in the murder and manslaughter trial of former Minneapolis police officer Derek Chauvin, who was recorded kneeling on George Floyd’s neck for more than eight minutes, we’re getting a lot of audience questions.
We tapped Mark Osler to answer your questions. He’s a law professor and the Robert and Marion Short Distinguished Chair in Law at St. Thomas University.
Use the audio player above to listen, or read an edited transcript below of his answers.
Why did prosecutors want to add a third-degree murder charge to the case?
They want it in so it can be a compromise that can be considered by the jury. If you've got some people who want second-degree murder, others who want acquittal or second-degree manslaughter, if they've been in there several days, they want to get out of there, they can agree on this third-degree murder, which is still going to be a serious charge, and be done with their jury service.
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Why are potential jurors asked about their religion?
Religion matters because there are some people who will be struck for cause because of their religious beliefs. For example, amongst some Christians, they read a passage such as Matthew 7:1, which is “Judge not lest ye be judged,” to bar them from judging other people in court. And that's more common amongst some groups and others. We don't see a lot of Presbyterians or Episcopalians saying they can't serve on juries because that, whereas Jehovah's Witnesses, it's much more common.
How does the court decide to release a potential juror?
What we see are the judges making decisions on motions to strike for cause. [Potentil jurors are] saying, ‘I've seen the video, I have made up my mind, I can't’ — as one of the jurors said Thursday — ‘I can't unsee that.’ And the judge looks at that and says, ‘I don't think this person is going to be able to make a decision based on what they see in court.’ And so they'll dismiss that person for cause that's not charged to either side against their peremptories.
Why is Chauvin sitting in on jury selection?
The defendant is always going to be there for jury selection, except in extreme situations. It's pretty crucial that they be able to have input into who's going to be on the jury and who's not. And that's why you're always going to see the defendant doing things like what we see Derek Chauvin doing, which is taking notes, as questions are asked.
Why has the judge ruled that Chauvin’s past behavior can be discussed in court but not George Floyd’s?
I think we're going to have to wait to see once the trial begins how those things sort out, because judges often change their mind. The reason that they would allow the previous behaviors of the police officers would be to show their knowledge of proper procedure, for example. Now there's some previous incidents regarding George Floyd that the defense is trying to get in. For example, an incident where he was arrested, there were narcotics found. And that looks like it's probably not going to come in because it doesn't tell us much about this current situation, other than to make George Floyd look bad.
How many years would Chauvin serve is the jury found him guilty?
The sentencing guidelines are different than the statutory maximums that you may be hearing. If he gets second-degree murder, then the statutory maximum is 40 years; [but with the] the sentencing guidelines, he'd be more likely to get around [12.5 years]. Now, if it's third-degree murder, the guideline [is the same].
If we end up with a manslaughter conviction, then the guidelines go all the way down to about four years.
He's going to be sentenced for the most serious thing he's convicted of. They don't stack on top of one another or combine.
Earlier this week, we dove deeper into how jury selection works with Margaret Bull Kovera, a psychology professor and jury expert at John Jay College of Criminal Justice and City University New York.
You can hear that conversation using the audio player just above or read the following transcript of her interview on MPR News.
Is selecting an impartial jury for such a high-profile trial actually possible?
It depends on whether you're asking from a legal perspective or a psychological one. From a legal perspective, basically, what the judge is going to want to hear is that the potential jurors believe they can be impartial, that they can set aside what they've seen, what they've heard, what they feel, and pay attention only to the evidence presented during the trial and then come to an impartial decision. Some of them will, perhaps in this case, report that they cannot be fair, but there's great social pressure [to do so].
And so I would expect that many jurors who in fact, have been influenced by what they've seen, will not be aware that they have been. And even if they are aware, there's going to be some social pressure to say that they can be fair because that's what's expected of jurors.
How does the jury selection process work?
Jury selection — that's kind of a weird name, because basically, [prosecutors and defense attorneys] are not selecting jurors, they're removing jurors that they see as problematic for their case. And so there's two ways that they can remove them.
One is to make an appeal to the judge that they believe that a particular potential juror is clearly biased and should be excused for cause and the judge has the ability to make a ruling on that. If the judge disagrees with you, and says that the juror is not biased, you can use then the peremptory challenge. You get to say, ‘I don't want this juror to be serving,’ and they are then removed and each side has a particular number — in this case, I believe it was the prosecution has nine peremptory challenges and the defense has 15.
Basically, the attorneys can use this for any reason they want, and they don't have to state what that reason is, unless the other side accuses them of having removed somebody because of their race, ethnicity or gender — because those are legally prohibited reasons for excusing a juror. And if that's the case, the person who tried to excuse the juror will then have to give a nonrace, ethnicity or gender-based reason for having excluded them.
Why is that number different?
Generally, the judicial system or criminal justice system is set up to give the benefit of the doubt to the defendant. The defendant is presumed innocent. And so because of that reason, you would never give the prosecution more than the defense. I think also, in this case, there’s just a higher number of peremptory challenges than often occur. In recognition of the extensive pretrial publicity in this case, you would want to give your attorneys a way to correct for that. And that's the way they do it, is by increasing the number of peremptory challenges and giving more to the defense, because the pretrial publicity is generally negative toward the defense.
What are you going to be watching for in this case, especially?
In terms of the jury selection, I'm actually quite interested to see whether the attorneys ask similar questions of jurors who are of different races, because one of the ways in which racial bias creeps into jury selection is that attorneys ask different questions of different classes of people. And so if you see one side asking different types of questions of Black versus white jurors, you might see those Black and white jurors give very different answers, which would then lead one group to get excused for cause because of their answers. But it's really not their answers, it's the type of questions they were asked.
While you say that one can't make those decisions legally based on race in jury selection, obviously race is a factor in this and other trials. How might the racial makeup of this jury actually impact the the outcome of the case?
A lot of the research generally is looking at the race of the jurors when there is a Black defendant. I think that a lot of what we know may not apply in this particular case where it's a white police officer who is on trial. But generally the research is that if there is a more diverse jury than there are more thorough deliberations that occur when there's all sorts of different types of diversity on a jury.
Correction (March 12, 2021): A previous version of this story had the wrong sentencing guidelines for second-degree murder. The article has been updated.