There is a substantial possibility that any criminal trials of the four former Minneapolis police officers charged in connection with the death of George Floyd on Memorial Day evening will be moved out of Hennepin County. That potential was manifested in remarks by the current presiding judge in Hennepin County, Peter Cahill. At a preliminary hearing a couple of weeks ago, the former prosecutor told the lawyers and their clients that he may change venue because of unfavorable pretrial publicity generated by statements made by high-level officials, including Minneapolis Mayor Jacob Frey and, more recently, Police Chief Medaria Arradondo, terming the incident a “murder” and proclaiming the guilt of the chief perpetrator, Derek Chauvin.

But the potential for tainting the jury pool is not a one-way street. Comments about the evidence in the case made publicly by two of the defense attorneys earlier this week prompted Judge Cahill Thursday to issue a rarity: a gag order barring further extra-judicial remarks by counsel on both sides of the case, coupled with a repeated threat of moving the case elsewhere to facilitate selection of an unbiased jury.

The prospect of changing venue has been raised earlier. Whether Chauvin and the other fired officers can get a fair trial before an unbiased jury in Minneapolis was raised in the immediate aftermath of the horrific incident and their arrests six weeks ago. The inculpatory declarations by the authorities turn that surmise into a realistic possibility for any of the ex-officers whose cases actually proceed to trial, although at least two of them are seeking dismissal without trial. It also is uncertain if any of those who are tried will be prosecuted together or in separate proceedings.

Rarely granted in Minnesota

A change of venue, transferring trial to a different locality, might be a way to alleviate the potential prejudice hanging over the heads of the officers. But moving the case is fraught with frailties that may make a change of venue more facile than feasible.

One limitation is that changes of venue are rarely granted in Minnesota — unlike the federal system, where cases can be shifted from one state to the next, although that, too, is extremely rare. In state court proceedings, the case must be heard in the same jurisdiction where the alleged offense occurred.

Minnesota courts infrequently hear, and usually refuse, pleas for changing venue. They also are aware that many people called for jury duty are unfamiliar with major events occurring in their community or elsewhere, particularly after some time has past since the underlying incident occurred. In this case, however, news coverage of the Floyd fiasco has been so prevalent and pervasive that it may very well be difficult to find jurors who have not heard about it or seen the graphic video at the scene. Even so, merely being familiar with the incident does not necessarily preclude jurors from being able to set aside whatever pre-existing notions they have and provide fair and impartial adjudication. Judges generally feel that they can, through questioning of jurors in a process known as voir dire, to ferret out those who may be biased or unduly affected by prejudiced by pretrial publicity.

One of the very few instances in recent memory of a change of venue goes back to the late 1970s, when Marjorie Caldwell was tried for the murder of her mother by adoption, Duluth heiress  Elizabeth Congdon, and her night nurse, Velma Pietila, in a sensational case that was highly publicized throughout the state. The judge hearing the case in Duluth agreed with Caldwell’s counsel that pretrial publicity prevented obtaining justice in that community and, therefore, the case was shifted to Hastings, where Caldwell ultimately was tried and acquitted by a jury drawn from Dakota County. Her husband, Roger, also had his trial moved out of the Port City and transferred to Brainerd. But unlike his ex-wife, he was convicted. However, that determination was reversed by the Minnesota Supreme Court, which ordered a new trial. Ultimately he confessed to the murders in a plea deal that meant he’d serve no more prison time.

Issues in venue changes 

While changes of venue in the Caldwell cases may have minimized difficulties in finding unbiased jurors, the extraordinary breadth of media coverage of the Floyd death may make it difficult to find jurors anywhere in this state whose views on the officers’ culpability have not formed before trial. Accordingly, moving the case to somewhere outside of the Twin Cities, therefore, might not have much effect in leavening out the jury pool.

Another concern if the trial is to be moved is that finding a place for it could be problematic. From the defense standpoint, a jury pool made up of few African-American and other minorities would probably be desirable. But many of the communities that might be logical choices to hold the trial, such as Duluth, Rochester, St. Cloud, or cities of that size, also have sizable minority populations, although certainly not as large as Hennepin County’s. Moving the case to a smaller rural community would probably not be feasible for logistical reasons. The place where the trial is held would have to be able to accommodate a large number of participants, spectators and, of course, an international horde of media. Smaller communities may not have the facilities or capability of hosting such a massive gathering.

Furthermore, the farther away the case is moved from the Twin Cities in order to attempt to minimize the impact of the prejudicial pretrial publicity the more the cost and inconvenience would increase. The case would presumably still be heard by Judge Cahill and his staff, who would have to travel and possibly be lodged there, creating additional expenses, not to mention inconveniences imposed upon them in moving the case elsewhere.

More significantly, family members and supporters of Floyd, as well as those of the men on trial, all of whom are entitled to attend the trial, would find it logistically inconvenient and costly as well to attend a trial in a faraway place.

For these reasons, and myriad others, change of venue may be more superficial than a solution to addressing potential problems in pretrial publicity if and when the ex-cops’ cases go to court.

Marshall H. Tanick is a constitutional law attorney and historian with the law firm of Meyer Njus Tanick.

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