Jury selection not a side show, it’s the main event

(FOX 9) - With the world watching a live video feed of the proceedings on the 18th floor of the Hennepin County Government Center, selecting a jury to decide the fate of former Minneapolis Police officer Derek Chauvin might seem like tedious minutia setting the stage for the courtroom drama to come.    

After nearly 50 years analyzing juries, Diane Wiley says that would be a mistaken assumption.   

"The trial starts the minute the jurors walk in the room," said Wiley of NJP Consulting.   

Those initial impressions can be decisive. 

"If you get someone on there who absolutely does not want to convict a police officer, its over for the prosecution," Wiley said. 

There are at least 100 prospective jurors, and Wiley believes they will be forming perceptions the moment they arrive at the Hennepin County Government Center and see the barricades, razor wire and any demonstrations. 

"A lot of our responses are emotional responses. You see the razor wire and you go, ‘trouble.’  That makes your heart pound a little more. Where does that fear go?  Who do you put the fear on?" Wiley asked.

So far, Wiley is impressed with the questioning of prospective jurors from the prosecution and the defense and how the attorneys are asking open-ended questions.   

The prospective jurors are not blank slates. They’ve already answered a 14-page questionnaire probing their views on police and race.

The prosecution and defense have also likely reviewed their social media accounts for evidence of bias and checked publicly available records to determine if they have ever been arrested or charged with a crime.   

Wiley said the issue for both teams is not who they would like to see on the jury, but rather the kind of person they don’t want to have seated.

"That’s a misconception that we pick who we want. It’s really about who do we need to excuse, because that’s all we get to do," Wiley said.  

Prospective jurors can be eliminated from the pool either "for cause" or as "peremptory challenges." 

For cause challenges are unlimited and can be used if the prospective juror admits they cannot be impartial, or cannot serve because of their age or a disability.   

Judge Peter Cahill eliminated a juror on Tuesday because of her limited English skills and understanding of legal terms. On Wednesday, Cahill dismissed a juror because of her age and inability to fill out the questionnaire.  

The prosecution and defense are allowed peremptory challenges that do not need to be explained, but cannot be on the basis of race.   

The prosecution is allowed nine peremptory challenges and the defense is allowed 15. The difference is due to the presumption of innocence.   

Wiley believes the prosecution and defense are at a disadvantage because prospective jurors are being questioned individually, rather than as a group, as is the case with most jury trials.   

The problem: If you strike someone today, will there be someone better tomorrow? 

"You’re anticipating who’s to come," Wiley said.  "Do I want to take this person, or take my changes with who’s to come?" 

As expected, all the prospective jurors have seen at least part of the video of George Floyd’s arrest on May 25, with former officer Chauvin’s knee on Floyd’s neck.   

The key is whether their opinions are fixed, unchangeable.  Against that backdrop, the reputations of both Chauvin and Floyd are on trial.  

"Both sides have a problem with the image of their clients, right?" Wiley asked rhetorically. 

But Wiley believes the law inherently stacks the deck in favor of police officers, because they are perceived by many in the public as the personification of law and order. 

Judge Peter Cahill has already dismissed one prospective juror who said he wouldn’t second guess law enforcement.   

The Chauvin trial may also expose chronic issues of representation in jury pools.   

The 4th Judicial District of Hennepin County has the most diverse jury pool in Minnesota.

In 2020, 80 percent of the jury pool was white, 8 percent was Black, and 3 percent were Hispanic, according to a September report from the Minnesota Judicial Branch on performance measures. 

But, it still doesn’t accurately reflect the broader demographics of Hennepin County, which is 68 percent white, 13 percent Black, and 6 percent Hispanic, according to 2010 U.S. Census Data that was updated in 2018 in the annual American Community Survey.   

Wiley said while some of the difference might seem small on a percentage basis, those differences can be profound in a jury pool.  

"When you translate it into numbers you should have 10 (out of 100), but you’ll have eight. That’s 20 percent less representation," Wiley said. 

What’s likely becoming clear to the prospective jurors already is that this trial will be about more than 8 minutes and 46 seconds captured on video.  

It will hinge in large part on the medical evidence about what caused Floyd’s death, the training Minneapolis Police officers receive, and all of it interpreted through the very specific frame of the law.