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Live voir dire: Jury selection starts today in first trial over George Floyd death -- or does it? UPDATE: Jury pool dismissed until tomorrow

The city of Minneapolis has prepared itself for the trial of Derek Chauvin, the police officer charged with murder and manslaughter in the death of George Floyd. However, no one’s quite sure whether jury selection will start today as planned after an appellate court tossed a wrench into the works on Friday. Before jury selection starts, the trial judge has to decide whether prosecutors can add an intermediate charge of third-degree murder, and that might end up creating a delay as the defense recalculates its strategy:

Jury selection is set to begin Monday in the trial of a former Minneapolis police officer accused of killing George Floyd amid fresh uncertainty as a new court ruling threatens to delay the start of the trial.

Even before jury selection begins, Hennepin County District Judge Peter Cahill is likely to face motions to reinstate a third-degree murder charge and possibly postpone jury selection to give lawyers time to prepare for the new charge.

Judge Cahill started off the proceedings this morning with this issue, as well as other motions pending before the court. As of this writing, Cahill has not ruled on the renewed motion to add the intermediate charge. My friend Scott Johnson, an attorney as well as the estimable co-blogger at Power Line, believes it unlikely that Cahill will agree to add the charge despite the ruling by the appellate court. The defense would be argue for a delay, and but Scott thinks Cahill won’t agree:

• On Friday the Minnesota Court of Appeals ruled that Judge Cahill had improperly failed to treat its decision in the Noor case as binding precedent. It all but ordered Judge Cahill to reinstate the third-degree murder charge against Chauvin. The Court of Appeals decision is posted online here.

• I posted the Noor decision here. The Minnesota Supreme Court has agreed to review the Court of Appeals decision in the Noor case, but Noor’s appeal won’t even be heard by the Supreme Court until June. The Minnesota Supreme Court decision in the Noor case will be the last word on the applicability of the third-degree murder charge in these cases.

• Judge Cahill must formally decide whether to reinstate the third-degree murder charge. If he does so, will he delay the trial? I think he is highly unlikely to do so. The critical questions of fact remain the same.

So far, it looks as though Scott’s right. The defense argued this morning that they can’t competently conduct voir dire without knowing what the specific charges will be. Cahill pushed back against this argument a bit, telling Chauvin’s attorney that homicide cases often involve adding lesser charges at the end of the case. In any event, a homicide trial is a homicide trial, and the question of an intermediate charge won’t impact the choice of jurors. The better argument for a delay would be the need for the defense to find witnesses and evidence to argue against the implications of the specific charge.

They might have a lot of time anyway, as it looks like jury selection might go on for a while:

Jury selection is scheduled to begin Monday in the murder and manslaughter case against ex-Minneapolis police officer Derek Chauvin in Hennepin County District Judge Peter Cahill’s 18th-floor courtroom. By the time the prospective jurors arrive for questioning, the state’s prosecutors and defense attorney Eric Nelson will have mined their 14-page questionnaires in search of anything that indicates overt bias. …

Prospective jurors will be questioned one by one in the courtroom and will be called by number instead of name to protect their identity due to the profile of the case. They will remain anonymous and although the trial will be livestreamed, they will not be shown on video. Before arriving, they will have submitted the questionnaires, sharing their ages, marital status and occupations. They’ll have provided their thoughts on Black Lives Matter, police in general and the presumption of innocence. They will have divulged their reading habits, favorite TV news station and whether they listen to podcasts.

One of the first things lawyers will want to know is what they’ve seen and heard about the case and Chauvin and Floyd.

“I’d ask, ‘Did what you see lock you in a position?’ ” Washington County Attorney Pete Orput said. “I just want to hear they haven’t made up their minds.”

I didn’t get a notice for the jury pool in this case, and it’s just as well. I’d like to believe that I can keep an open mind as to the application of the law in the death of George Floyd, but my expressed opinions on this would immediately disqualify me in any event. How many people in the jury pool will have remarks about this case in their social-media platforms? I’d guess it will run to 100%, which means that the only potential jurors would be those who have never been on social media at all. Would that qualify as a “jury of one’s peers”? And how many people in the metro area don’t use any social media platforms at all, or have never expressed an opinion on those platforms about the most significant event in the Twin Cities in a generation, at least?

Even assuming that jury selection starts today, getting through these issues will be a slow and painful process. It might take hundreds of candidates to get twelve jurors and enough alternates to get through a trial.

For now, however, Cahill ruled that jury selection can go forward — but then recessed to allow the defense to apply for a writ of prohibition from the appellate court in an appeal of that decision. Stay tuned, literally, on this live stream to find out what happens next. I’ll update this post as events warrant.

Update, 9:37 am: The court is still in recess, although they were supposed to return at 9 am. I wonder if the defense has gotten its writ.

Update, 9:39: Looks like there won’t be any more jury developments today:

Jury selection was delayed for at least a day in the murder case against Derek Chauvin, the fired police officer charged with killing George Floyd on a Minneapolis street corner nearly 10 months ago.

Hennepin County District Court Judge Peter Cahill said he wants to hear from the state Court of Appeals about whether a third-degree murder charge can be added to the counts of second-degree murder and manslaughter in Floyd’s death last May, which was captured on a bystander’s cellphone video and broadcast around the world.

After hearing from attorneys, Cahill said he wanted to hear from the state Court of Appeals — possibly on a telephone hearing later Monday— as to whether to proceed with jury selection while the third-degree charge is unresolved. He ordered prospective jurors dismissed for the day and wanted them prepared to return Tuesday.

Keep checking back, as more motions will likely be heard today apart from those dealing with jury selection.