“Can you be fair and impartial?” That is the ultimate question being posed to prospective jurors in Derek Chauvin’s trial, which is taking place in downtown Minneapolis. Currently, Chauvin faces second-degree murder and manslaughter charges.
During a pandemic, jury selection becomes an entirely different beast.
Despite Chauvin’s attempt to have the venue for his trial moved to a different community that defense attorneys argued would be less influenced by pretrial publicity, Chauvin will be judged by a jury of his local peers — but when exactly his trial will begin is difficult to say.
In light of the extreme publicity surrounding the death of George Floyd after Chauvin knelt on his neck for about nine minutes (three other now-former officers were also arrested and are supposed to be tried separately later this summer) and the logistical obstacles posed by trials in a pandemic, the likelihood of jury selection in Chauvin’s trial proceeding seamlessly isn’t promising.
On Monday, jury selection was put on pause as legal wrangling continued over whether the presiding trial court judge has jurisdiction to be able to proceed with the trial without the third-degree murder charge that was thrown out in October by Judge Peter Cahill. The prosecution appealed that ruling, and on Friday, a Minnesota appeals court agreed with the prosecution and ordered that they can reinstate the third-degree murder charge.
Although the prosecution contends that jury selection should not commence until all of the charges against Chauvin have been finalized, jury selection resumed Tuesday morning with the court bringing in the first panel of potential jurors.
Both sides will be working to find 12 jurors (and four alternates) who can sit for a trial that is likely going to last several weeks, if not months. So far, the prosecution’s witness list has identified 362 people.
The 14-page questionnaire led with what is perceived to be the most important question: “What do you know about this case from media reports?”
Jury selection alone is estimated to take about three weeks — if everything goes smoothly. And during a pandemic, jury selection becomes an entirely different beast: lawyers, court staff and prospective jurors will be wearing masks when not speaking. Lawyers for both sides, as well as Chauvin, will be sitting behind protective plexiglass desk shields. And although jury selection will not be televised, the rest of the trial will be livestreamed for anyone to watch, as the ability for spectators, as well as journalists, to attend has been limited to only a handful of people.
In order to expedite the jury selection process, a questionnaire was sent last year to prospective jurors. Potential jurors were randomly selected from voter registration records, driver’s licenses and state identification. The 14-page questionnaire led with what is perceived to be the most important question: “What do you know about this case from media reports?”
Notable high-profile cases that posed similar challenges in terms of seating a jury include the trials of O.J. Simpson, Michael Jackson, George Zimmerman and Casey Anthony, as well as the two recent Bill Cosby trials. There’s no easy way around finding good jurors to try cases like this; both sides in these kinds of trials have to rely upon potential jurors being honest about their exposure to incessant coverage in social media and news outlets. This juror honor system also has to navigate the desires of some prospective jurors who simply want to sit on juries for trials with massive media coverage to be part of the action.
The remaining questions, which were submitted by both the prosecution and the defense and approved by the court, run the gamut from questioning prospective jurors about their prior interactions with law enforcement to whether they have ever been the victim of a crime to what podcasts they listen to. So far, 16 prospective jurors have been excused for cause, due to their answers to the questionnaire.
Prosecutors and Chauvin’s defense counsel can strike jurors on two bases: “for cause” or as “peremptory challenges.” For cause challenges arise when a prospective juror cannot decide the case at hand in an impartial manner, or when the juror cannot serve due to reasons such as age, a physical or mental disability, etc. For example, Cahill administered the juror’s oath to one female juror on Tuesday, but after questioning by both sides, she was ultimately excused from jury duty due to issues including a lack of fluency in the English language and the fact that she is a working mother.
Notable high-profile cases that posed similar challenges in terms of seating a jury include the trials of O.J. Simpson trial, Michael Jackson, George Zimmerman, Casey Anthony, as well as the two recent Bill Cosby trials. Of course, just because a juror is stricken for cause does not mean the juror has done or said something wrong or incorrect. Simply put, a juror, based upon prior life history or certain predispositions about issues, can be the wrong juror for one case but the right juror for another. For cause challenges are basically limitless and oftentimes result in the need for more prospective jurors to be called in for service. They can be raised at any time by any party to the trial. In Minnesota, the number of peremptory challenges is determined by the possible punishment the criminal defendant is facing: In cases punishable by life imprisonment, the defendant has 15 peremptory challenges and the prosecution has nine. However, for any other offense, the defendant has five peremptory challenges and the prosecution has three. Once a peremptory challenge is raised, the other side can object on the grounds that the challenge is not race or gender neutral. Arguments over peremptory challenges cannot take place in the presence of the venire (prospective juror panel), and the initial burden is on the side objecting to make a prima facie showing that the challenge was done on the basis of race or gender. If the responding party cannot overcome that prima facie showing, then the objection is sustained and the juror can remain on the panel. If convicted of second-degree murder, Chauvin faces up to 40 years in prison. The manslaughter charge has a maximum exposure of up to 10 years in prison, while a third-degree murder count is 25 years. For the moment, many questions loom over the selection process: Will four alternates be enough in the age of the coronavirus? What if someone tests positive for Covid-19 — will the entire trial be suspended as the jurors are quarantined? The current plan is to do partial sequestration of the jurors during the trial and full sequestration during deliberations. Assuming a jury is able to be impaneled, we can still anticipate a longer-than-usual trial due to the publicity surrounding the case, as well as the logistical and practical complexities of trying a case of this magnitude during the pandemic.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
