Tuesday Talk*: Victims and Venues

The four former police officer defendants in the George Floyd murder case have done exactly what one would expect them to do. They moved for a change of venue outside Hennepin County. To the great unwashed, this might seem a big deal. To anyone practicing criminal law, this was as obvious a motion to make as a motion to dismiss.

It won’t be granted, because these motions are almost never granted, and in this case the motion is particularly weak since the publicity, the video of the cops atop George Floyd, have gone viral nationwide. There’s no place where the jury pool will be unfamiliar with the news. There’s no venire free from taint.

Taint. The gravamen of the motion is that the defendants are constitutionally entitled to a jury of their peers, free from prejudice against them and capable of deciding the case based only on the evidence before them at trial. Taint is the issue, and it’s taint against the defendants that dictates whether venue should be moved. Or at least that’s how it should be, it used to be.

With the popularity of such emotional appeals as Marsy’s Law, creating “rights” for victims that conflict with the Constitution and undermine the defendant’s rights, because victims are sad and how can we not reinvent the legal system to favor whoever makes us sad, an argument against a change of venue is proffered that takes the victims’ rights push one step further.

Third, and perhaps most significant, the jury demographic pool changes dramatically outside the Twin Cities metro area, in a way that is likely helpful to the defendants and harmful to Floyd. The Census Bureau estimates that Hennepin County, where Floyd died, is 14 percent Black and 74 percent White. Hennepin County is the most diverse county in the state, and it would be nearly impossible to seat an all-White jury in Minneapolis. By contrast, the three rural counties where one of the defendants has suggested in his motion to change venue have Black populations of less than 1 percent to 4 percent.

Not that 14% black demographics is a big deal, but it’s certainly a bigger deal than 1 to 4 % of the venire.

Jury pools that do not share the same community dynamics of Floyd’s home deny the people of Minneapolis their interest in achieving justice in this case. Minneapolis streets burned in response to Floyd’s death.

See what former U.S. Attorney for Minnesota, Rachel Paulose, did there? Rather than address the constitutional mandate that the jury be fair to the defendant, she flipped it to the community’s “interest in achieving justice in this case.” There is nothing in the Constitution about such a thing. Indeed, what the Constitution does is protect the defendant from the outrage of the community. That’s why lynch mobs are frowned upon, even though they’re about as clear a direct expression of community outrage as, well, streets burning.

But much like the calls for the victim to have “rights” in criminal prosecutions, apart from the authority granted the government to enforce criminal laws, are the same appeals to emotion strong enough to the hearts of the intellectually challenged to bring tears to their eyes and demands that the fury of the community be put ahead of the defendant’s right to an untainted jury?

There is a strong argument to be made that a suburban county with a negligible non-white population might be far more sympathetic to police. It’s possible, if not likely, that a jury outside Hennepin County might be willing to give these four former officers every benefit of the doubt, not having the experience with police officers that a black person like former U.S. Attorney Paulose does. It may very well be that a change in venue could alter the outcome of a trial by excluding members of the community that have a deeper appreciation of how the Minneapolis cops treat black people.

But even if all these things are true, does that mean that constitutional rights of defendants to an untainted jury matter less than the community’s right to the outcome they so desperately desire?

*Tuesday Talk rules apply.

18 thoughts on “Tuesday Talk*: Victims and Venues

  1. Guitardave

    If they moved it to a 96% white county and selected the woke types it could turn out worse for the defense than choosing a Hennepin county jury with 14% black conservatives.

  2. Miles

    I’m kind of astounded that there isn’t much here. You have a remarkable ability to see problems coming down the road long before they hit us in the face. The idea of victims having an interest in venue, along the lines of victims having a legitimate role in criminal proceedings, is a dangerous extension and creates a facial constitutional conflict.

    Does this not concern others?

    1. Scott Spencer

      I think it concerns those of us that read these posts, but most of humanity thinks the justice system is for personal justice, the constitution applies only when it is good for them, and that the cause of the week is the most important thing that could ever possibly be.

      It gets tiring trying to explain to people that the way they views these types of things is not the way it is.

  3. Mr. Ed

    ” what the Constitution does is protect the defendant from the outrage of the community.”

    People tend to forget that until they are the wrong end of the stick.

  4. DaveL

    in a way that is likely helpful to the defendants and harmful to Floyd

    I concede it would likely be helpful to the defendants, but at this point causing harm to George Floyd would take some doing.

  5. Erik H

    If victims want rights they can go to civil court like everyone else. If they want the government to do the heavy lifting for them, they can live with the Constitution. Can’t have it both ways.

  6. Buncy

    My 2 cents. I practiced lots of crimlaw in the 70’s and 80’s and filed motions for changes of venue. They were usually granted. We really thrashed that Sam Shepard case out in law school and it left an impression.

    Would I file in the Chauvin or a co-D’s case? Hell, yes, if I thought I could get it out of the hood and into the countryside. My experience says YES. And norms of urban Minnesotans also tell me YES. I’d want the jury to be as rural as possible. Country people are more respectful and trusting of LEOs than urbanites. And besides that, juries always try their best to support the cops, unless they had done something awful enough to make them throw up.

    Another consideration is that rural people hate high-stigma drugs like fentanyl and methamphetamine. I would be willing to bet…

    Minneapolis, like Louisville, needs to be shut down in anticipation of the next big development.

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