Chauvin's Conviction Will Almost Certainly Stand

I'm an appellate attorney—the case for overturning Chauvin's conviction is far weaker than many are claiming

Derek Chauvin, the former Minneapolis Police officer charged with second-degree unintentional murder, third-degree murder, and second-degree manslaughter in the death of George Floyd, was convicted in a matter of hours on April 20. Yet the speed with which the verdict came could not deter certain experts from confidently predicting what will happen next.

As these experts see it, Chauvin’s conviction will likely be reversed as the result of California Congresswoman Maxine Waters’s public comments urging that he be found guilty, and President Joe Biden’s comments suggesting that he personally believed Chauvin to be guilty.

But if there’s anything these experts have in common, it’s that none of them have ever tried to appeal a criminal conviction.

While at one time a common belief was that criminals were regularly being let off the hook on “technicalities,” today, for a number of reasons, courts are not inclined to overturn the decisions of judges and juries who were actually present for witnesses testimony. Courts understand that these were the people who saw and heard all the evidence, and presume that they came to an informed conclusion.

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The odds of winning a criminal appeal—as in actually reversing the conviction and getting an acquittal or a new trial—generally hover somewhere between 1 and 5 percent.

The odds in Chauvin’s case are particularly poor, because the issue that critics of the decision have decided to focus on is an absolute dog’s breakfast—a mash of half-remembered legal concepts vitamixed and funneled into a thin blue line. There are a few reasons for this.

First, you generally can’t ask jurors about their deliberations or what happened in the jury room. So, for instance, if a juror wanted to testify that he always meant to convict Chauvin, no matter what the evidence was, because he was hell-bent on avenging George Floyd or because he was terrified a “mob” would “burn down his city” if he acquitted? Inadmissible.

Minnesota courts have repeatedly held that the only way to even get a hearing to see if a juror inappropriately considered external information is by providing evidence that they acted inappropriately. The evidence must “standing alone and unchallenged … warrant the conclusion of jury misconduct.”

So, unless one of the jurors wants to come forward and say they were bribed or threatened, the defense is not likely to meet that threshold.

In fact, the Supreme Court of Minnesota previously said that a juror’s statement, after a trial, that she did not believe in the presumption of innocence, was not enough to get a misconduct hearing.

Even if a juror did come forward to say that Waters’s and Biden’s statements influenced her decision-making in this case, it’s still probably inadmissible. Minnesota courts will let you ask about what kind of outside information a jury considered—for instance, a police report that was never admitted. But the court doesn’t let you ask the jury how it affected them.

Despite this pretty clear rule, lots of politically motivated critics of the conviction have predicted a slam-dunk appeal for Chauvin. The Bulwark racked up a pretty long list of commentators calling this “mob justice” or suggesting that those who saw this as the “right result” would not have accepted any other.

But that gets to another problem with any potential appeal: the problem of “overwhelming evidence.”

It is much easier to win an appeal when the evidence against you is weak than when it is strong, because you have a much easier time showing that the evidence actually affected your verdict. But in this case, the jury was shown George Floyd’s death, and heard from multiple eyewitnesses describing their contemporaneous (and recorded!) belief that Floyd was being murdered. A Minnesota court might decide, as it has 729 times before, that any outside influence the jury might have experienced was irrelevant in light of the state’s strong case.

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None of this is to state definitively that Chauvin’s appeal is hopeless. His attorney did preserve some jury instruction issues whose merits I have not assessed, and jury instruction issues tend to be among the strongest on appeal. And, honestly, Minnesota’s 60-year-old Schwartz rule on what questions you can ask a jury does seem unduly restrictive compared to the rest of the country—which means there’s an off chance Chauvin’s case could try to overturn that precedent.

But these are not slam dunks or lay ups or jump shots. They are, as in most criminal appeals, an attempt to sink a shot while perched precariously from the opposite basket. And you should read such takes, whether from former federal prosecutors or professors of law, with the same skepticism you’d have for a friend who is just certain he could at least score one or two points against LeBron.

Maybe someone could look at these rules and say they’re unfair, or that appellate courts should readily reverse criminal convictions, or that of course we should question jurors about their verdict and make sure it was fairly reached. But for many of the loudest voices here, the real outrage isn’t what happened in this courtroom, but who it happened to.