Could Rep. Maxine Waters’ comments about the Chauvin trial actually form the basis for an appeal of the verdict?

Rep. Maxine Waters, a Democrat who represents southern Los Angeles, traveled to Minnesota last weekend and joined protesters in Brooklyn Center Saturday night, telling the crowd she hoped for a guilty verdict in reference to the ongoing murder trial for Derek Chauvin, the former Minneapolis police officer charged with killing George Floyd last May.

“I hope we get a verdict that says guilty, guilty, guilty,” Rep. Waters said. “And if we don’t, we cannot go away. We’ve got to stay on the street. We get more active, we’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.”

Eric J. Nelson, Chauvin’s defense attorney, said in a motion for a mistrial after closing arguments Monday that Waters’ comments could have swayed the jury’s opinions on the case.

“An elected official, a United States congressperson, was making what I interpreted to be — what I think are reasonably interpreted to be — threats against the sanctity of the jury process,” Nelson said. “There is a high probability that members of this jury have seen these comments.”

Judge Peter A. Cahill, who presided over the Chauvin case, dismissed Nelson’s motion but admonished Rep. Waters from the bench Monday.

“I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned,” Judge Cahill said. “I wish elected officials would stop talking about this case especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function.

“I think if they want to give their opinions, they should do so in a respectful and in a manner that is consistent with their oath to the Constitution, to respect a coequal branch of government,” he said. “Their failure to do so, I think, is abhorrent.”

Despite that concession, Cahill, who ended every day of the trial by telling jurors, “Have a good night and don’t watch the news,” said that jurors would not have been directly exposed to Rep. Waters’ — or anyone else’s — comments during the trial.

Waters’ comments made waves in Minnesota and Washington, and led to widespread condemnation from Republicans. But could they actually provide a basis for appeal of Chauvin’s guilty verdict?

The appeals process

Chauvin was found guilty on all three counts that he was charged with: second-degree murder, third-degree murder and second-degree manslaughter. After the jury reached its verdict and Cahill announced it to the court and the world, Chauvin was taken into police custody and is being held in the Minnesota Correctional Facility-Oak Park Heights, a maximum-security prison outside of Minneapolis. He’ll likely stay there until sentencing, which Cahill said would occur about eight weeks after the verdict was given.

During those eight weeks, the defense will be poring over all details of the case including jury instructions guides and any outside factors that may have influenced the jury in making their verdict. The defense will also examine each guilty charge to determine whether the law was applied correctly. And in the off-chance that a member of the jury comes forward to say that they or someone else in the jury had watched or read the news against Judge Cahill’s instructions, the defense could use that as a pillar on which to base an appeal.

If the defense does file for an appeal — and they almost certainly will — the case will be sent to the Minnesota Court of Appeals, which will select a panel of judges to review the case based on the defense’s arguments. If an appeal is granted, the lower court’s decision may be reversed in whole or in part. If the appeal is denied, the lower court’s decision stands.

The most likely grounds for appeal, according to legal experts, would be that jurors were influenced by outside sources. These may include Rep. Waters’ comments, protests that erupted during the trial in Brooklyn Center after another Black man, Daunte Wright, was killed by police and Minneapolis’ $27 million settlement to George Floyd’s family.

Appellate court judges will then make a decision: If they find the defense’s case valid, they could overturn the conviction. If the conviction is overturned, the prosecution team — led by Jerry W. Blackwell, a corporate attorney selected by Minnesota Attorney General Keith Ellison — could then appeal the decision to the Minnesota Supreme Court. Alternatively, if the appellate court denies the defense’s appeal, the defense can also appeal again to get the case in front of the Minnesota Supreme Court.

If the case reaches the Minnesota Supreme Court and those justices once again overturn the conviction or remand the case for a new trial, the trial process could start all over again with the selection of a new jury.

Legal experts don’t think this possibility is very likely, but they do see several avenues the defense could take in appealing Chauvin’s case.

Other grounds for appeal

“Certainly what the defense was trying to do is create a record for an appeal, and you’ve seen that throughout the trial,” said Mary Moriarty, former Hennepin County chief public defender, in reference to Nelson bringing up Rep. Water’s comments at the end of the trial. “In this situation, it seems relatively minor compared to the other things that have been said during this trial.”

Cahill said that if the jury were following his instructions, none of the jurors would have been reading, watching or listening to the news and so Rep. Waters’ comments should not have influenced any of them. But the jurors were not officially sequestered — kept physically separate from others — until Monday, after Waters’ comments had already made the news.

Although the Waters situation may have some sway in the appeals process, Moriarty thinks other options are more likely.

“None of us knows if the jurors heard that or if they saw it,” Moriarty said. “I think it’s relatively meaningless in the ocean of all of the things that have been said publicly since George Floyd died.”

According to Moriarty and other legal experts, the most damaging thing to the prosecution in this case may have been the press conference announcing that the city of Minneapolis would pay $27 million to settle a civil lawsuit from George Floyd’s family. This settlement occurred in the middle of jury selection, when potential jurors could have been exposed to media coverage of the event. The defense brought this up during jury selection, but Cahill did not see it as reason to restart the trial.

“The jurors were told not to watch the news. But you never know,” said Richard Frase, professor of criminal law at the University of Minnesota. “They weren’t sequestered until they delivered their verdict so the defense might try to appeal that [the media coverage] was undue pressure on the jury to produce a certain verdict.”

The decision to not move the trial out of Minneapolis could be another basis for appeal. Before the trial began, Judge Cahill considered moving the trial out of the city — this is common practice for cases that receive a lot of attention within the communities in which the crime was committed. The argument for this usually stems from expecting that a jury outside the community would have the ability to be more fair and impartial to a case that was not on their radar.

With the Chauvin case, though, it seemed as though the entire nation, if not the world, had seen the mass protests that broke out after Floyd was killed. Many people in Minnesota would have already either seen the video of Floyd’s death or at least been aware of what happened.

“That was a difficult choice, but there was so much publicity all around the state that it would be hard to find a place where most people haven’t heard something about the case,” Frase said. “And logistics are much more difficult if you’re not doing it in Minneapolis. I don’t think [an appeal] will be successful unless there’s specific information about jurors listening to the news in a way that might bias them.”