A juror in the trial of Derek Chauvin, the former Minneapolis police officer convicted of murdering George Floyd, participated in last summer’s March on Washington, a move that is coming under scrutiny after Chauvin’s attorney requested a new trial on several grounds, including juror misconduct.
The attorney, Eric Nelson, did not refer to the juror’s participation in the march in his request for a new trial Tuesday. Chauvin, who is white, was convicted last month of second- and third-degree murder and second-degree manslaughter in Floyd’s death last May 25.
In a photo from last August’s “commitment” march that surfaced recently, the juror, Brandon Mitchell, who is Black, is seen wearing a T-shirt with an image of Martin Luther King Jr. and the phrase, “Get Your Knee Off Our Necks,” the name of the march itself.
In the photo, he is smiling alongside two men and wearing a hat that said “BLM,” for Black Lives Matter.
Mitchell did not respond to requests for comment, but he has defended his participation in the march, which was held on the 57th anniversary of King’s “I Have a Dream” speech at the first March on Washington. Mitchell told the Minneapolis Star Tribune that he did not view the march as being against police brutality and that it was “100 percent not” a rally for Floyd.
“The opportunity to go to D.C., the opportunity to be around thousands and thousands of Black people, I just thought it was a good opportunity to be a part of something,” he told the newspaper.
Some have speculated that Mitchell’s participation in the march could be grounds for an appeal, but legal experts said it was unlikely that it alone would be enough to overturn Chauvin’s conviction.
“It’s certainly possible that this will be used to support various post-conviction efforts, of which one is an appeal,” said Dmitriy Shakhnevich, a professor at the John Jay College of Criminal Justice in New York. “At the end of the day, irrespective of his specific comments, there would have to be a showing that, had he not served on the jury or disclosed this information, the verdict would have been different.”
“And that’s a very high standard to meet,” added Shakhnevich, who closely followed the trial.
However, it is possible Mitchell and other jurors could be questioned during what is called a Schwartz hearing to determine whether an outside influence prejudiced the jury.
Mitchell said that the photo was originally posted on social media by his uncle around the Aug. 28 march, and that the two men next to Mitchell in the photo are his cousins.
Mitchell said he has no recollection of wearing or owning the shirt.
Floyd’s brother and sister, Philonise and Bridgett Floyd, spoke at the march in Washington last summer, as did the relatives of others who had been shot by police.
Nelson and John Stiles, a spokesman for Minnesota Attorney General Keith Ellison, whose office prosecuted the case, declined to comment on the photo.
Mitchell, a youth basketball coach, was the first juror to go public about the trial and the deliberations. He has said that before the trial, he had never watched the bystander video of Floyd’s deadly encounter with Minneapolis police in its entirety because “it was too gruesome.”
Mitchell told The Star Tribune that he had answered “no” to two questions on a questionnaire for potential jurors. The first asked whether he or someone close to him had participated in any of the demonstrations or marches against police brutality that took place in Minneapolis after Floyd’s death. The second asked, “Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”
During jury selection, Mitchell told Nelson that when he learned that he was a potential juror in Chauvin’s case, he was “surprised” and “shocked.” Mitchell wrote on his questionnaire that he had a neutral opinion of Chauvin and Floyd.
With respect to Chauvin, he wrote: “I do not believe the defendant set out to murder anyone. However, based on the video, I’m not sure about what the reasoning could be.”
Asked by Nelson whether he recalled writing that, Mitchell said no, but that he stood by it.
Mitchell said that he had seen parts of the video, which brought international attention to Floyd’s death, two or three times but never in its entirety; that he had discussed the case with his friends and family but had not posted any opinions about it on social media; and that he had wondered why the three other officers at the scene did not intervene.
He also told Nelson that he knew some police officers at his gym who are “great guys,” but did not know enough about the “defund the police” movement to form a strong opinion of it. He also said that he had a favorable view of Black Lives Matter, which he said he interprets as a statement as opposed to a movement or an organization. He said that he felt neutral about the pro-police Blue Lives Matter movement and that he believes it “only became a thing to combat Black Lives Matter whereas it shouldn’t be a competition.” Ultimately, he said he would be able to be an impartial juror.
Mary Moriarty, a defense lawyer in Minneapolis, said the ultimate question is: Did Mitchell misrepresent who he was or who he is? She said she does not see how, even if there is a Schwartz hearing, that the trial judge could find Mitchell untruthful based on what is now known.
“The phrase, ‘Get Your Knee Off Our Necks,’ has become a rallying cry for many of the systemic injustices that are directed at Black people,” Moriarty said, adding that she has heard the Rev. Al Sharpton, host of MSNBC’s “Politics Nation,” refer to it in speeches about systemic racism.
Sharpton’s National Action Network promoted the “Get Your Knee Off Our Necks” Commitment March last summer.
Mark Osler, a law professor at the University of St. Thomas School of Law in Minnesota, said that if Nelson is going to appeal over Mitchell, he would have to prove that he was fooled somehow or that Mitchell was dishonest in his answers.
Osler said he believes Mitchell was forthcoming during the jury selection process.
“The thing is, he was honest about his underlying belief, which is that he felt very favorably about Black Lives Matter,” Osler said. “The attorneys knew that. And they also knew that that attitude based off lived experience is not a reason to bar jury service.”
Osler said it is important to note that Nelson ended with peremptory strikes to burn. Peremptory strikes are used when an attorney believes a potential juror cannot be impartial.
“We can’t expect that we can form a truly diverse jury without a truly diverse range of lived experiences,” Osler said. “Part of what comes to the surface is that if we want a jury of our peers, we find out what our peers had gone through.”
“We can’t write off Black jurors because they have lived their lives as Black people,” Osler said.