This is Bloomberg Law with June Brussel from Bloomberg Radio. The killing of George Floyd and the viral video of the police officer kneeling on the black man's neck sparked a movement for racial justice. This week, that former Minneapolis police officer goes on trial in a case that will combine elements of the trial of l A police officers in the beating of Rodney King and the media spectacle of the O. J. Simpson trial, all against a backdrop
of the Black Lives Matter movement. The challenges in selecting a jury in such a well known case are illustrated by exchanges like this between potential jurors and the defense attorney, Eric Nelson. Do you attribute responsibility for that to my client sitting here today based on the media presentation, I don't think I can say one way or another. I mean, not here. You know, maybe at the time I have an opinion in but with some distance, I don't think
I can say. Joining me as former federal prosecutor Robert Mints, a partner McCarter and English. There are protesters holding signs outside the courthouse, No justice, no Peace, speakers asking the jurors to do the right thing. How do you get a jury that is not influenced by that or has informed an opinion about the video of Chauvin kneeling on Floyd's neck. That's a great question because this trial is certainly shaping up to be one of the trials of
the sanctuary. You know, we first had the Charles Lindbergh trial involving the kidnapping of the aviator's son in Hope Ow, New Jersey. Then we had the O. J. Simpson trial, and now we have the trial of former Minneapolis police officer Derek Schilvin, which could be the next big trial of the sanctuary. They're gonna be televisions in the courtroom, which is going to be a first for the state
of Minnesota. And it's a case that is very difficult in terms of picking a jury because so many people have seen the video of the officer with his knee on the neck of Mr Floyd, and so many people have formed an opinion one way or the other about whether this police officers conduct led to the death of George Floyd. So what kinds of questions do the attorneys asked to try to get a juror who is going to be able to look at the evidence in the
case and not what they know from media. In the minds of a lot of people, the selection of the jury for this trial may be the most difficult part of the case, both for the lawyers and for the judge. If you're on the defense side, you're gonna ask questions about whether jurors can focus solely on the information that is revealed in the corey in itself and not be influenced by outside influences like newspapers and television, or neighbors or other people who may be trying to give you
information about what's going on outside of the courtroom. They're all sore gonna be asked about whether they've learned anything about this case through the media or whether they've absorbed information about the case through the culture after the long summer of racial justice demonstrations that were sparked by Floyd's death. They'll also be asked about the Black Lives Matter movement, how they feel about that, and how they feel about
the rise of the Blue Lives Matter movement. So there's a lot of issues swirling around out there, and it's going to be impossible to find a juror who doesn't
know anything about any of these issues. So ultimately comes down to the question of whether or not they can be fair and impartial, and whether they can make a decision based solely on the evidence that's presented at the trial and not be influenced by outside sources and not bring preconceived notions into the jury room when they ultimately make a decision about the guilt or innocence of former officers Chauvin. On the first day of jury selection, three
jurors were picked. Does that indicate that it may not be as hard to get a jury as many thought. Well, the judge, i think, has said early on that he's allowing three weeks for jury selection, but you never know how long that's gonna last. It really depends on who shows up in the jury pool. It depends on the questions that are being asked by the prosecution and the defense. So we may see a jury picked more quickly than people anticipated. So two of the jurors who were selected
have seen the video. Can you look at that video without forming an opinion? It's well, that's really the question. So many people have seen that video, But ultimately it's not whether you've seen the video or not seen the video. It's whether or not you can keep an open mind and consider only the evidence that's presented during the trial
in making your decisions. So if a juror can say, I saw the video, but I can put that out of my mind, not consider that an only focus on the evidence that's presented a trial, and that I don't come into the trial with any preconceived notion one way or the other, then they are arguably available to sit for this jury. Let's talk about the charges. First of all, how unusual is it that they're selecting a jury but the charges haven't been settled on yet. Yeah, that is
very unusual. And this is a case whereas you say, the charges are still unsettled. Judge k Hill, who's the trial judge you will be hearing this case, had previously tossed out his third degree murder charge, leading prosecutors with the second degree unintentional felony murder and second degree manslaughter, but that decision was overturned by the Court of Appeals, which decided that the judge had refused to reinstate the third degree charge because the alleged deaths causing act was
not at a single person. The appeals court said that was wrong and that the trial judge had failed to follow precedent. But at the same time they send it back to the trial judge to be reconsidered, and so Chauvin and his counsel are still free to raise other arguments against reinstating that third degree murder charge. So the prosecutors have second degree unintentional felony murder and second degree manslaughter.
Why do they want a third degree murder charge? Well, as prosecutors, you always want to be able to give jurors a choice, and you'd rather have more than just two choices. So inevitably there will be some people on the jury who lean heavily towards conviction. There may be others who lean either towards acquittal or at least are
less focused on the most serious charges. And ultimately what they do is they go back in the jury room and they spend hours and hours going over the evidence and having discussions, and there is a consensus that is developed because, as you know, jury in a criminal case has to be a unanimous verdict. That means every single juror who's sitting on jury has to agree as to
every account of conviction. In a criminal case, and so it's a compromise by definition, and that's why prosecutors like to give jurors a number of options so that if they have to compromise, there's different ways that they can do it without going all or nothing. Clearly, prosecutors in this case are not looking for a second degree manslaughter, looking for one of the more serious charges. By adding third degree murder, it gives them something between the second
degree and the manslaughter charge to go after. In case, jurors are of different minds on this and they're looking for some way to come up with a compromise verdict. Since police officers are authorized to use force, how does that complicate the prosecutor's case, Well, it becomes a case that focuses on causation. I think we're going to see the defense raising the cause of death. Uh, They're going to present medical experts, and the issue of causation is
going to be central to their case. In other words, they are going to try to argue not only that the officer's conduct was reasonable under the circumstances, but even more importantly, from the defense standpoint, they're going to say that whatever the police officer did, however, reasonable it was that it did not ultimately cause George Floyd's death, And they're going to point to factors that were highlighted in the medical examiner's report that showed that Mr. Floyd had
certain health issues, that he had drugs in his system at the time of his death. They may argue that he was a likely resisting arrest, and ultimately this becomes a battle of the experts as to whether or not the defense can show that prosecutors are unable to draw a direct line between the conduct of Officer Chauvin and the death of George Floyd. So in the Ronnie King trial, you know, the video was played over and over and was stopped. Do you expect that this nine minute video
is going to be played and stopped at different points. Well, I think if you're the prosecution, you're absolutely going to play that video because it's it's riveting, it's very compelling evidence, and I think it makes it difficult for the defense to in any way argue that the restraint that was used by Officer Chauvin was somehow reasonable under the circumstances. That's why I expect a defense to focus more on the issue of causation rather than that the force that
was used was was reasonable. Certainly that will be an issue. Certainly they will try from the defense side to argue that you have to look at all the facts and circumstances. You look at the size of Mr. Floyd, you look at the fact that they're going to argue that he appeared to be under the influence of some kind of drugs and the officers were taking steps to reasonably subdue him.
That's going to be the defense argument. Of course, the prostitution is going to argue that the force was clearly excessive, that even bystanders who were simply walking by were so alarmed that they spoke to the police officers to try to get them to remove some of their restraints, to try to get officers Chouven to remove his knee from the neck of George Floyd. They're going to argue that it was so clearly excessive that there's no question that the force was not appropriate in light of the risk
that George Floyd posed to the police officers. Many people who saw the video will say, there's no way the at this police officer won't be convicted of something. But have we learned from past trials of police officers that that's not necessarily the case. Yeah, their history of convicting police officers for using excessive force is certainly a checkered one in this country. There's no question that there have
been other cases. We looked at the Rodney King case, for example, where there was a state prosecution and ultimately ended in an acquittal. We saw the federal government then come in and retry the case on federal civil rights charges and gain a conviction. By the way, that could happen here as well. Even though these state charges are going to be tried first. This doesn't deprive the federal government of prosecuting this case all over again on civil
rights charges if they don't like the outcome here. No double jeopardy attaches because the charges are different and the sovereign's difference one is the state one of the federal government. So we could see that here. But prosecuting police officers has historically been difficult. People view police officers mostly in a favorable light in this country, and the question is whether the officers were acting reasonably in light of all
the facts and circumstances. Were they fearful for their own safety, was the restraint being used reasonable in light of what they knew at the time. The defense will sairly argue that hindsight is easy to apply to this circumstance, but the police officers have to make these decisions in real time, been a split second type of setting, and that one wrong move can lead to the death of a police officers.
So they'll argue that this force was all reasonable and there's nothing excessive about this at all, But the video is gonna be very difficult for them to overcome in that regard. What do you think the chances are that the defendant takes the stand. Certainly the moment of highest anticipation in this trial will be whether or not the former police officer Derek Scholvin will take a stand in his own defense. Historically, that's something that we're likely to see.
The defense doesn't really have a lot to gain by putting him on the stand, and what it does is it gives prosecutors the chance to essentially retry their case. So all the evidence that they presented in their case when they turn over to the defense, if the defendant takes the stand, they can cross examine the defendant with
all the evidence all over again. They can take him through that videotape, minute by minute and across examined on what was going through his mind, why he felt that that type overstraint was reasonable, why he allegedly felt that he was in fear for his safety and had to put the knee on the neck of George Floyd for eleven minutes. So I don't think we're going to see the defendant in this case take the stand, And when defendants do take the stand in their own defense, it
usually does not work out to their benefit. The judge has separated Chauvin's case from that of the three other former police officers charged in Floyd's death. Does that give the advantage to the defense or to the prosecution? Prosecutors typically want to try all the defendants together at the same time for number of reasons. First of all, they have witnesses who are going to testify about difficult circumstances,
about difficult facts. And what they don't want to have is witnesses who have to testify over and over and over again about the same circumstances. Because human nature being what it is, every time somebody remembers something and recalls what they saw, they're going to recall it slightly differently, and that gives defense lawyers fodder for cross examination and to try to pick apart the witnesses testimony. So prosecugers will routinely try to keep all those cases together and
not let the defendants be tried separately. The procedugers also don't want a situation which defendants can point the stinger and an empty chair, in other words, where they will argue that one of the other defendants was really at fault and there's nobody there for jurors to listen to. There's nobody there who jurors can weigh the evidence against and determine whether one defendant is more culpable than the other.
The prosecuters like to try these cases together. In this case, I'm sure they wanted all the defendants to be tried together. This ultimately will not help the prosecution, although it does give prosecuters the opportunity to focus in case entirely on Auster Shauman and not all the other defendants at the same time. That's Robert Manson, McCarter and English. The prosecutors in the long running TV legal drama Law and Order
are from the Manhattan District Attorney's Office. The most high profile d a's office in the country with a storied history, but now despite a recent rising crime many of the candidates for d A are not talking about law and order. They're talking about which crimes they won't prosecute and defunding the office and the police. Joining me is Bloomberg Legal
reporter Patricia Hurd Todd. So, pat tell us about the candidates running for Manhattan d A. It's an open field and it's what some people are calling it historic rate because eight people are find to be the Manhattan d A. It's historic, and that there are six women and two men, and one of the men is a black man who used to be an assistant U S Attorney in Manhattan and former chief of Deputy Attorney General for the state of New York. So the very next d A may
be either a black man or a woman. The candidates have a variety of opinions, many of them being very progressive for what we've normally seen. But this is part of a growing trend for progressives to basically take hold of the conversation in certain campaigns to promote more progressive agenda. Is so tell us a little bit about the office and its history. The Manhattan d A. It's always been
a high profile because Asian. You know, this goes back to Tom Dewey was the d A before he became governor of the State of New York, and under Bob Morgantow, the legendary Manhattan d A. He basically remade the office into a very progressive, interesting place. I mean like he created a sex crime unit that investigated sex crimes. So that's why the creators of Law and Order used Mr Morgantow as the prototype for their character of the legendary d A that is running the office. And a lot
of his cases were very creative. I mean he brought this Bank of Credit and Commerce case, an international financial fraud case. He's broad cases against Tycho and Dennis Kazlasky for tax evasion and all kinds of excesses of the late nineties. The cases include famous murder cases like the Preppy murder case, or with Jennifer Levin was killed in Central Park by allegedly her boy friend, the Central Park
Jagger case. So you know, a crime happens in New York, he gets a lot of the media attention and the manhattand A's office will bring some very high profile prosecution. And Morgan thou especially was the guy that took on the mob. Elliott Spister was an a d A and Assistant District attorney. And they brought a case against the mafia for carting in Manhattan and they have you know, influence,
and they would call the mob tax. So Morgan though, and they brought this case to clean up like this unofficial tax that the mafia was charging to cartway garbage from restaurants and businesses in Manhattan. So do we know for certain that Sivance is not seeking reelection? He has not officially said. We don't know. Officially. He is barely raised any money whatsoever compared to some of the candidates have raised like upwards of three million dollars. And he
hasn't said officially. But some people have said to me that if I wanted to run again, based on this high profile investigation that he has of Trump, Donald Trump and his in the Trump organization, that many Manhattan I's might re elect him. But it remains to be seen.
He hasn't said officially one way or another. As you mentioned, the biggest prosecution and why the Manhattan d as keeps getting mentioned over and over again, in national news is because of this investigation into Trump and what maybe criminal charges.
Have the candidates talked about that? Well, originally they were not speaking about it, and I think as time is progressed, they decided, especially in light of after what the Supreme Court's ruling came out last month granting the d A the right to have access to whatever eight years of
tax records from Trump. Um, they are now saying things like I could take on Trump, you know, and there's they're not talking about the investigation per se, because of course, no one knows what this investigation is except for the people who are actually doing it, and so to comment on it would be they don't know the evidence. So it's not really like you can make an informed comments handicapping what the investigation is. It's all grand jury and
its secret um. But some of them have have tried to put like, you know, their their street creds out there, for I could take on Trump because I sued him civilly. That's the kind of thing they've been saying now recently. It's the climb rate or the murder rate that's up in New York. Violent crime is up in New York all throughout the city, and especially there's been shootings. UH.
Gun related violence is up and murders are up. So not in the last two months, but in the end of the last three months of there was a and so most of violent crimes remain on. So we were talking about this spike in crime. Are the candidates discussing that and what they're going to do about it? Actually, no,
there has been. There is one candidate, Liz Krate. She is a former assistant district attorney and she went into private practice and she's a criminal defense lawyer, so she cut practices in the courthouse and she has been saying she would be for law and order, and you know, she's kind of like the lone voice. And many of these other UH candidates have spent the majority of their time during these discussions talking about more progressive reforms, the
kinds of crimes, low level crimes they wouldn't prosecute. Most of them are talking about, you know, fair beating or turnstyle jumping for example, or low level marijuana possession that they wouldn't prosecute. Some of the candidates are saying they would never bring cases of gang cases against involving juveniles, but underside vance having prosecutions for certain minor crimes like
fair jumping, etcetera also fallen. Yes, and and and some people have pointed out to me when Vance took office, he was considered a progressive that wanted to cut the offices, you know, cut back on the kinds of cases they're brought. Some people say, of course, as you're very progressive, you have you know he's not. He never did enough. He should never have prosecuted any cases. But if people need to remember that, you know, he's basically reigned in prosecutions
of low level crime. UM. There was one instance, UH of the forum I covered recently that was UM sponsored by former veterans of the Manhattan DA's office, where they wanted to hear closely questioned some of the candidates and where do you stand on on these topics and UM. One of the candidates was Karate. When I was mentioning before, she said, what are you guys talking about? How can you decline to bring these cases? They're on the books,
they're you know, they're part of the law. You can, as a d A abdicate the responsibility to prosecute crimes. She said, She's going to do it on a case by case basis, but some of the candidates had said they will never have vowed, never ever ever to bring
low level crimes. Two of the candidates, lawyer named Hanni Abushi who is a civil rights lawyer, and another lawyer has said that they would cut the footprint of the office in half and then they would give the money instead of hiring prosecutors, They get rid of the prosecutors and hired defense lawyers or public defenders and replace them. So instead of prosecuting people, they look at ways not to prosecute them, and then they spread that money around
to community groups instead of using it for prosecution. So they want to defund their own office. Yes, yes, and five of them have said they're in favor of defunding the police. And it remains to be seen. I asked a couple of people, you know, it's Manhattan, this progressive,
that there are they willing to go this far? And there have been other cities like l A County elected uh this guy, George Gascon on a progressive agenda, and now his own the Union of Prosecutors, the Assistant District Attorney's union that works for him have sued him to get him to stop in acting some of these what the pieces are reformed, but they say are too progressive, you know, measures that are not enforcing the law. So
it becomes like quite a struggle. The l A. D A's office, the San Francisco Day's office is seeing that same kind of push and pull of tension. Basically, then you would be going into office and firing a lot of your staff. Yeah, and one of the candidates has vowed. Alvin Bragg, the candidate that's the former Deputy Attorney General of the State of New York and a former assistant U S Attorney in Manhattan, he said that he would
like to review the cases done by Linda Fairstein. Now she was in office for decades and Linda Fairstein came under fire for being the supervisor in the Central Park case. Morgan Thau exonerated them after years after a review of information. So I mean that might mean hundreds and hundreds of cases that not only did Fairsteeing maybe prosecute, but then as a supervisor, how far back to you go if she was just the boss? But you know ten steps below was a prosecution of the case. How do you
do a review of that? You know, some of these things people have pointed out would be very difficult to do and also exhaustive. And what happens when crime is spiking? Do you deal with the old crimes and review everything the finance US comb or do you or with a microscope or how far back do you go? And then you're dealing with this ongoing problem of if crime is rising,
do you not prosecute those cases? And how what happens with deterrence because some people argue, you know, part of the deterrence is prosecuting people so they understand the ramifications of committing a crime. Once you start investigating and opening cases up, then defense lorries are going to come and start attacking other cases. It's it seems like it's would open up a huge cycle and a huge problem. Yeah,
I mean there's that too. I mean some of these measures are progressive and they're good, but you know, Farmer prosecutors pointed out to me that, you know, last year there were hundreds of people arrested during the Black Lives Matter protests in Manhattan, and aside from the ones that actually broke into like a SOHO Channel store or and looted the place, they were caught for burglary there in the store, and they're caught on video tape or something,
or surveillance tape. Those people got prosecuted, but the vast majority Dance dismissed the cases against them, and the judges didn't go along with that, and one of the judges ordered everybody to be helped, but the d A dropped his cases and and then Dance got a lot of criticism for that. Oh, you're too soft on crime, and these demonstrators should be prosecuted. So Manhattan Nights have a
real decision to make of who they want. You know, do they want a progressive or super progressive, a moderate progressive, or do they want someone that is vowing to follow the law and prosecute people. There are a couple of candidates, like Diana Florence is the former assistant District Attorney in the office, and she has twenty five years of experience, and she says she wants to proceute crimes of power,
like I said. Liz Crawdy has said that she would uh the white collar and neats to be a priority back to the heyday of Mr Morgan now because the office shouldn't just be focusing on the poor you know as crimes of poverty and crimes people commit because they don't have money, but they should possibly go after what's going on in the corporate srates. So she's promised to
return to more traditional UH and and bigger cases. Lucy Lang is a former prosecutor in the office as well, and she's part of a program of what was director of a program that was doing like a lot of innovative work at Quney John Jay's UH School of Criminal Justice. They were trying to design non jail alternatives and different, you know, alternatives to prosecution for those kinds of crimes.
Let's say a juvenile and it was an initial offender and rather than get prosecuted, there could be some alternative to justice program. So some of them are thinking or offering very unique, unusual programs that I be seen as progressive in another realm. But now you know, there are very uber, uber progressives that are saying the fund the police never arrest anybody, No, I will never prosecute mistermeor crime.
Some of them have made that claim. What I found really surprising is that you don't need that many votes. Out of the eight hundred sixty thousand registered Democrats in and you don't need that many votes to win, and you don't because look they're all Democratic candidates and uh Vance when he was running against two opponents, he needed less than like fifty votes to win because of the
fact that not that many people actually go vote. So if a voter turnout is poor, a person could possibly win this race because there's eight candidates and of course their votes would get deluded, so you could win with fewer than thirty thousand votes. So does that mean that the people who are getting the more campaign contributions have an edge or you have two of them who have raised over a million dollars. The thing about it is
that pandemic is making it difficult for doing polling. So some people have said, you know, this is basically a guest amount of who is who's leading in the polls and they haven't done that much advertising. But somebody who like Telly Farhati and Weinstein who's the wife of the fund manager Boas Weinstein, she's raised two point three million, and Alvin Bragg he's raised like one point three million.
One of the candidates, Eliza Orleans, is a public defender and she's one of the people that's very vociferously saying she would be cutting back the power of the office and putting progressive reforms in. She's the one that wants
to replace prosecutors with defense lawyers. She's got a lot high media presence because she's a former Survivor, TV show star are uh and the Great Race star, so she's uh, she's raised money and she's got But somebody was pointing out just because you're popular in a place like, you know, a different state like Wyoming, doesn't mean that person can vote in Manhattan. So they could possibly we could start seeing ads being purchased by this with this money. Is
there going to be a debate? Well, there have been these forms, which you can imagine with eight candidates. I mean, in my years I've usually covered a d a race where it's two people running to having several debates. We're in the middle of a pandemic where people can't go to the ninety Street why and sit in the audience and then go up to the mic and ask their questions. So these have been more static where you have eight people each giving their spin and a moderator asking the questions.
But they're not necessarily the same kind of follow up that would we would. We're more used to scene and it's in a real debate, so it's a little bit artificial, and it's a little bit like people can say what they want to say and maybe not necessarily answer the question that was actually posed to them. Thanks Pat. That's Bloomberg Legal reporter Patricia Hurtado. I'm June Grosse and you're listening to Bloomberg