Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
At some point in the lead up to the criminal trials of the four former Minneapolis police officers who face charges relating to the killing of George Floyd, the defendants likely will seek to move the venue – the geographical location – of the trial.
Motions to change venue are commonly made by defendants in high-profile, high-stakes cases, but are rarely granted.
If and when the defendants in the Floyd case make such a motion, the court must deny it.
A change of venue could diminish the number of African American individuals in the jury pool and would likely badly undermine public confidence in the ultimate verdict.
Under Minnesota court rules, a criminal case should be tried in the county where the conduct occurred, barring extraordinary circumstances. But the Minnesota rules permit a judge to move a case to another county if “a fair and impartial trial cannot be had” in the county where the conduct occurred, where pre-trial publicity has made it reasonably likely that a fair trial cannot be held, or “in the interests of justice.” The judge can decide to move a case to any of Minnesota’s 87 counties, but not outside the state.
Justice demands that the Floyd case not be moved out of Hennepin County, encompassing Minneapolis where the charged murder occurred. Most importantly, a transfer of the case from Hennepin County to another county will almost certainly result in a jury pool with a lower percentage of African Americans – potentially far less. Hennepin County is Minnesota’s most populous county and also has the highest percentage – 13.6% – of African American residents. Only one other county in Minnesota is even over 10% African American population, and 47 counties are below 1%.
Even Wright County, which borders Hennepin County, has only 1.6% African-American population.
Simply put: it is almost unimaginable that the American public will accept as fully legitimate a verdict from a non-representative jury pool in a county where the charged crime did not even occur.
Further, the rules do not support a transfer of venue. While there has been an extraordinary amount of pre-trial publicity about the case, there is no logical reason to believe the impact has been any different on potential jurors in Hennepin County than those in any other county. Anybody with an internet connection or cable tv – in any county in Minnesota, or anywhere in the country – has been exposed to coverage of this case. The transfer of venue rule seems grounded in antiquated notions of local, paper-based media where word spread slowly based on geography. That simply does not apply to the modern world.
And if the case remains in Hennepin County as it should, the law provides important procedures designed to root out potential jurors who may be unduly predisposed for or against any party.
While the law does not require that a juror has never heard anything about a case – realistically, all or nearly all potential jurors will have heard plenty about the Floyd case – it does give lawyers for all parties the opportunity to question potential jurors to determine whether they have formed strong opinions and are incapable of deciding the case based solely on the evidence at trial.
With the world watching, the Minnesota courts must get it right. Moving the case out of Hennepin County would be a serious mistake, and a step away from true justice.
Now, your questions:
Patrick (Oregon): Is there a possibility that federal criminal charges will be filed against the officers involved in the death of George Floyd?
Yes, federal charges are both possible and likely here. The Justice Department announced that it has opened an investigation and “has made the investigation a top priority and has assigned experienced prosecutors and FBI criminal investigators to the matter.”
There is no prohibition against both the federal government (through the Justice Department) and a state government (through state or local prosecutors) charging the same person with crimes relating to the same conduct. The Supreme Court confirmed just last year that this type of dual approach to prosecution – sometimes called “separate sovereigns” – is constitutional.
The most likely federal criminal charge here is deprivation of civil rights. Prosecutors must prove that somebody acting under “color of law” (police officers certainly qualify) willfully deprived a person of his constitutionally protected rights – here, that means Floyd’s right to be free of unreasonable seizure by the police. Given the strength of the evidence, I expect the Justice Department to file such charges against former Minneapolis police officer Derek Chauvin (who kneeled on Floyd’s neck while Floyd said he couldn’t breathe) and potentially the other officers at some point.
Page (Arkansas): Does the legal concept of “qualified immunity” mean the charges against the officers could be dismissed?
No. “Qualified immunity” is a legal doctrine that makes it extraordinarily difficult to sue a public official (including a police officer) for money damages based on the officer’s on-the-job conduct, unless it was already “clearly established” by law that the officer’s actions were unconstitutional.
The Supreme Court may soon take up a case that could limit or eliminate the qualified immunity doctrine.
But qualified immunity has nothing to do with criminal charges. There is no such thing as a qualified immunity defense to a murder charge, or any criminal charge. So while qualified immunity could pose a barrier to potential civil lawsuits filed by the Floyd family against the individual officers – though the family could sue the police department or the city, rather than the individual officers – it will have no bearing on the criminal case.
Russ (Canada): Does the President have legal power to deploy military troops to respond to protests or to provide police services in the states, even if a governor does not request aid?
Yes. Under the Insurrection Act of 1807, the President has authority to deploy federal troops in certain delimited circumstances: (1) where requested by a state governor, (2) where necessary to “suppress” unlawful “obstruction” or “rebellion,” or (3) where required to prevent interference with enforcement of federal or state laws.
While a request from a governor is necessary under the first of those provisions, it is not necessary under the second and third.
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Thus far, however – despite his statement that “If the city or state refuses to take the actions that are necessary to defend the life and property of their residence, then I will deploy the United States military and quickly solve the problem for them” – Trump has not actually deployed federal troops domestically beyond Washington DC in any significant manner.
Three questions to watch:
- How quickly will prosecutors go to a grand jury to seek indictments of the officers in the Floyd case?
- Will Trump follow through on his invocation of the Insurrection Act to send federal troops into states?
- Will the Supreme Court announce decisions on major pending cases involving LGBTQ rights, state abortion laws and President Trump’s tax returns?