Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. Read more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
Jury selection is one of the most difficult – and crucial – steps in any criminal trial. A veteran defense lawyer once told me, “Jury selection isn’t just the most important thing; it’s everything. As soon as the jury is chosen, the case is decided.”
That process of choosing a jury is especially complicated in high-profile cases that have received wide media attention. And few if any trials in recent memory have been, and will be, the focus of a brighter spotlight than the trials of the four former Minneapolis police officers who are charged with the killing of George Floyd last May.
Judge Peter Cahill recently decided that the four charged defendants will be tried in two groups. First, Derek Chauvin, who pinned his knee on Floyd’s neck for over eight minutes, will be tried alone, starting with jury selection on Monday. Then, the other three charged defendants will be tried together starting in August. This was a tactical setback for prosecutors, who objected to holding separate trials and asked the court to try all four defendants together. (Indeed, in my experience, it is advantageous for the prosecution to try all defendants at once, both for efficiency and to give the jury a full picture of the charged criminality).
The judge initially had ruled in favor of the prosecution, but then reversed course in January and ordered two separate trials because of concerns over courtroom crowding during the Covid crisis.
In both cases, the very first question will be this: how on earth do the parties select a jury in a case that virtually everybody has already heard about, and on which many already have strongly-held opinions? I’ve done trials that have received intense media coverage before – though not on the scale of what we are about to see with the Chauvin trial – and, in my experience, picking a fair jury will be difficult but not impossible.
The Minnesota rules of criminal procedure provide detailed instructions on the jury selection process. The pool of potential jurors must consist of “persons randomly selected from a fair cross-section of qualified county residents.” Within that pool, each potential juror is then subjected to questioning – called “voir dire” – by the judge and the lawyers for the parties. The prospective jurors here have received and filled out written jury questionnaires, typically used only in higher-profile matters. The questionnaires go into depth on each potential jurors’ knowledge of and views about the case, including questions about what the person has learned about the case from media reports; whether the person has a positive or negative view of any of the people involved; whether the person participated in any protests relating to Floyd’s death; and the person’s views on Black Lives Matter, policing, and criminal justice. The lawyers will review these questionnaires carefully to determine whether any prospective juror holds a strong predisposition for or against either party.
Following that questioning, potential jurors can be removed either “for cause” – if the judge finds that the juror cannot be impartial – or by the parties using “peremptory” strikes (not giving a reason) on potential jurors that they want to remove. In a second-degree murder case like the Chauvin trial, the defendant ordinarily has five peremptory strikes and the prosecutor has three; here, however, the judge has exercised his discretion to grant the defense up to 15 peremptory strikes, and the prosecution up to nine. The parties can exercise those strikes for almost any reason, but not on the basis of a potential juror’s race, gender or other Constitutionally protected factor.
Every or nearly every potential juror will have heard of Floyd’s death before the trial begins. But that alone does not disqualify a potential juror. The key question is whether a juror can be impartial and can decide the case solely on the basis of the evidence at trial, and not on any pre-existing opinions or outside media coverage. If so, the potential juror can serve on the jury. And, if not, the judge and parties can prevent that person from sitting on the jury. The process is not perfect – it is impossible to truly know whether a potential juror has a pre-existing bias, or has been or will be influenced by media coverage – but it does build in vital safeguards intended to ensure an impartial jury.
Jury impartiality is a cornerstone of our legal system. Public confidence in a trial, and the verdict, largely depends on whether the jury is capable of ruling in an unbiased manner, based solely on the evidence produced in the courtroom. And that public confidence will never be more important than in the upcoming trials of Chauvin and the other former officers in Minnesota.
Now, your questions
James (Florida): Can Steve Bannon still be charged with state crimes, even though he was pardoned by former President Trump?
Yes, he can. Bannon and three others were charged in August 2020 by federal prosecutors in the Southern District of New York with fraud relating to a scheme to steal money donated to a group called “We Fund the Wall.” (Bannon pleaded not guilty and said the charges were a “fiasco” intended to “stop people who want to build the wall.”) On his final full day in office in January 2021, then-President Donald Trump pardoned Bannon.
A presidential pardon, however, can cover only federal charges, but not state-level charges. The Manhattan District Attorney (which can charge New York state crimes) reportedly has subpoenaed records relating to Bannon’s involvement in the alleged “We Build the Wall” scam and there are New York state-level crimes that could apply to the conduct previously alleged by the SDNY. If the Manhattan DA’s office finds sufficient evidence, it can charge Bannon, notwithstanding the pardon issued by Trump.
Gregory (Florida): Is there a way to require that presidential pardons first must be reviewed or approved by the Justice Department?
Probably not. For over 125 years, the Justice Department, through the Office of the Pardon Attorney, has provided presidents with advice and guidance relating to exercise of the pardon power. Typically, applicants submit a request for consideration to the Pardon Attorney, who then makes recommendations to the president. But the Pardon Attorney’s recommendations are merely advisory, and not mandatory.
During his presidency, Trump largely ignored the Pardon Attorney. President Joe Biden is free to use the Pardon Attorney however he pleases; he can consider the Pardon Attorney’s advice, follow it or ignore it altogether. While Congress theoretically could pass legislation making Pardon Attorney review and approval mandatory before a president grants any pardons, such legislation likely would violate Article II of the Constitution, which vests the pardon power solely in the president himself, unlimited by other governmental agencies or actors.
Editor’s note: This column has been updated to include additional detail about the jury selection process.