https://www.powerlineblog.com/archives/2022/10/in-the-chauvin-appeal-hugh-hewitt-edition.php

Hot Air‘s Ed Morrissey — my old friend — is sitting in for Hugh Hewitt this morning. Ed had me on to talk about this post and invited listeners to check it out. Having rotated off our home page, it is easy to miss. With thanks to Ed, I am taking the liberty of reposting it.

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Derek Chauvin could not afford an attorney to appeal his convictions in the case of George Floyd. Chauvin’s insurance did not extend to appeals and the Minnesota Supreme Court denied him a public defender. Although I thought Chauvin could not have received a fair trial in Hennepin County, it looked like he wouldn’t be able to raise the issue on appeal either.

I put out the call on Power Line for some member of the Minnesota bar to represent Chauvin on appeal. In the best tradition of the American legal profession, my friend Bill Mohrman answered the call. Chauvin’s legal defense fund is here at GiveSendGo.

I spoke to Bill this morning about the appeal. The state’s brief was written by a team of lawyers led by Neal Katyal, volunteering his and his firm’s services to the prosecution of Chauvin. Katyal is easily one of the most prominent appellate lawyers in the United States. I asked Bill if he didn’t feel like he was up against Goliath. He laughed, which I interpreted in the affirmative. He said he thought that “everyone is entitled to an attorney representing him.” He added, “If we’re getting away from that in this country, we’re in big trouble.”

Briefing of the appeal was completed last week. Bill anticipates that oral argument will be scheduled before a panel of the Minnesota Court of Appeals in January. I should note that they are elected judges who must be cognizant of the consequences of decision requiring retrial at a venue outside Hennepin County. It wouldn’t be pretty.

The Hennepin County District Court page on the Chauvin case is here. It affords access to each of the appellate briefs including Appellant’s Brief (Chauvin), Respondent’s Brief (the state or the prosecution), and Appellant’s Reply Brief.

Virtually every time I wrote about the trial on Power Line I noted the riots that preceded it, the riots that occurred during it, and the concrete and barbed-wire construction around the courthouse that gave visible form to the lynch-mob atmosphere of the proceedings. National Guard troops were stationed outside the courthouse along with two armored personnel carriers.

Security concerns were such that the jurors assembled at an undisclosed location each morning during the trial and were driven to and from the courthouse by Hennepin County Sheriff’s officers in unmarked vans. The Star Tribune reported: “The unprecedented effort aimed at protecting jurors from danger and outside influence cost $21,905 in van rentals.”

One more thing. Governor Walz began deploying National Guard troops around Minneapolis and St. Paul as early as Wednesday, April 14, 2021-before jury sequestration-in the event riots occurred “post verdict,” as Bill puts it at page 29 of Appellant’s Brief. “Post verdict” should be translated as “in the unlikely event of a not guilty verdict.” Everyone in his right mind understood the secondary effects of a not guilty verdict.

Bill does a good job of leading with the pretrial publicity, security issues, and other events that precluded a fair trial. Bill relies on the two-tier analysis set forth in the United States Supreme Court’s Skilling case to argue that prejudice should have been presumed under the circumstances of this case. Turning to the state’s brief, this statement leaps out at me on page 17 (footnote omitted):

The United States Supreme Court has likewise cautioned that a presumption of prejudice applies only in “the extreme case”—such as those involving “kangaroo court proceedings,” “bedlam,” a “carnival atmosphere,” or a disturbing lack of “judicial serenity.” Skilling v. United States, 561 U.S. 358, 379-381 (2010) (cleaned up).

Again, that is the state speaking in Respondent’s Brief on the law applicable to Chauvin’s Sixth Amendment right to a fair trial under controlling case law.

This is me speaking. If this wasn’t the extreme case, there never was one and there will never be one.

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