Since the start of jury selection in the trial of a former Minneapolis police officer charged with murder in the death of George Floyd, it was apparent that while the facts of the case were black and white for the prosecution and defense, when it came to prospective jurors, it would have more to do with Black versus blue.
Attorneys have homed in on two questions on the juror questionnaire: how favorably prospective jurors view the Black Lives Matter and Blue Lives Matter movements. These and other questions have helped attorneys learn where people stand on such issues as defunding the Minneapolis Police Department, whether the criminal justice system is biased against minorities and whether media coverage of police brutality "is only the tip of the iceberg."
Experts say that questions focusing on the two movements is shaping up to be a proxy for determining how valuable a prospective juror will be to either side in the case.
The prosecution has blocked potential jurors who have indicated they would weigh more heavily the testimony of someone in law enforcement, who have reservations about the Black Lives Matter movement or who seem inclined to give police the benefit of the doubt.
On Tuesday they dismissed a man who said he had neutral views of both movements and said, "I think you tend to trust an officer more than just somebody in the general public."
The defense has stricken people who have said they do not trust police or who admitted they have strong feelings about Derek Chauvin's guilt — including a man who expressed strong support of the Black Lives Matter movement and said he could be impartial.
A Black man who was selected said he viewed the Black Lives Matter and Blue Lives Matter movements somewhat favorably. He wrote on his questionnaire, "I think any lives matter but Black people's lives matter even more since they are marginalized," and that he believes "our cops need to be safe and feel safe to protect our community."
While such succinct questions may be new, their intended purpose is not.
"Before there were such easily identified or recognizable names for whether you viewed a police officer as someone who deserved more trust or less trust, you'd ask the same type of questions, but it would take you a little bit longer to get there," said former Miami federal prosecutor David Weinstein. "The issues that they're looking at in this jury selection are really no different than the issues that we've all been looking at in jury selections in cases where a law enforcement officer is the defendant."
Chauvin, the former officer who was recorded on widely seen video kneeling on Floyd’s neck for about nine minutes, is charged with second-degree murder, third-degree murder and manslaughter. Chauvin is white and Floyd was Black.
If convicted of the most serious charge of second-degree murder, Chauvin faces a maximum sentence of 40 years. (Three other former officers who were at the scene are set to stand trial in August on charges of aiding and abetting second-degree murder and manslaughter.)
Attorneys have been questioning potential jurors to select 12 who will deliberate and two to be alternates. The nine jurors selected so far include three white men, two Black men, one Hispanic man, two white women and one multiracial woman.
"I think that the prosecution is looking for someone who believes that while police officers have a job to do, that they can't use more force or make decisions that are outside the boundaries of what they should be doing," Weinstein said. "And that those people should be held accountable for the result of their actions."
'Race is critical'
Mary Moriarty, the former chief public defender of Hennepin County, where Chauvin's trial is being held, said the jurors' races are critical as people of color "bring an entirely different" set of lived experiences to the trial.
Moriarty mentioned a prospective juror, a business owner who lives in the suburbs who said in court last week that he did not know anyone who had ever been discriminated against or who had had a negative interaction with police. The state struck the juror for cause.
"If you're a person of color, you probably have been discriminated against and know many people who have," Moriarty said.
Prosecutors are looking for people who have awareness of systemic racism and police brutality — issues that inspired the Black Lives Matter movement — while the defense is looking for people who think both issues are overblown, she said.
"In many ways in Minneapolis, we consider ourselves progressive, and we are in many ways," Moriarty said. "But we also tend to think that race is something that happens in Louisiana and Mississippi. And we've had a really hard time accepting the systemic racism that has really damaged our Black population here in Minneapolis."
In 2018, 26.8 percent of the Hennepin County Public Defender's Office's clients were white and 45.7 percent were Black, Moriarty said, adding that the latter figure "is ridiculously high" given the county's racial makeup.
Black people account for 14 percent of the population in Hennepin County, while 74 percent of its residents are white, according to census data.
Minneapolis is often ranked in the top five places to live for practically every reason, but for white people, Moriarty said.
"It's almost always in those same polls in the bottom five for Black people," she said.
Minneapolis has some of the largest racial disparities in the country with regard to homeownership, income, health outcomes and the criminal justice system.
"You know, name it and we probably have a terrible racial disparity," Moriarty said. "And that includes who comes in to our criminal justice system. So race is critical."
Weinstein said the defense is going to seek people "who are straight-up-and-down, law-and-order type of people" — a tenet of the Blue Lives Matter movement, which emerged in direct response to the Black Lives Matter movement.
"And they're looking for somebody who is going to listen to whatever evidence is presented as to the state of mind not only of Derek Chauvin but of George Floyd," Weinstein said, "who believe the police officers have a right at times to use a little bit more force than a normal person would, but that's because they're encountering these situations on a daily basis and they have more experience and more training in deciding what they can do, and that it was not something that Chauvin intended to do but rather was the result of certain circumstances of which were out of his control."
If and when a verdict is reached, Weinstein said, the composition of the jury — by race and gender — is going to be scrutinized.
"I think that what's more important, rather than looking at the composition one by one comparing the 12, is, how does that represent Minneapolis?" he said. "Is it a cross section of the people who live there? Does it represent every section or sector of the population of Minneapolis so that the verdict that comes back is one that was reached of the people who live there and who represent the community?"
'Your goal as a lawyer is not an impartial jury'
Moriarty said impartiality will be impossible to achieve, especially considering how widely bystander video of Floyd's arrest has been viewed.
"Your goal as a lawyer is not to get an impartial jury," she said. "You're looking for jurors who are favorable to your theory of the case. You're not looking for blank slates walking in here."
Both Moriarty and Weinstein said it would be illogical to equate an impartial juror in this case with somebody who's never heard anything about it.
"To find someone who's never seen anything, never formed an opinion, these people would have to be living in a cave with no internet, no access to anything," Weinstein said. "And then, to that degree, I'm not sure if that's a person you want sitting on your jury."
Moriarty said a prospective juror with no knowledge of the case would cause her to wonder where that person has been and why they weren't aware of it.
In any high-profile case, people will have formulated an opinion beforehand about what they think happened, Moriarty and Weinstein said.
"The hard part is going to be to get people who give you an honest answer as to whether or not they can put that impartiality aside and knowing what they know, come in there, wipe the slate clean and make a decision strictly upon what's presented to them in terms of evidence," Weinstein said.