Defending Derek Chauvin

His trial counsel, Eric Nelson, was paid by the Minnesota Police and Peace Officers Association, and likely not nearly as much as he should have been paid given how cases of this magnitude of seriousness and high profile play out. But it’s no longer footing the bill and the Minnesota Supreme Court has refused to provide Chauvin, convicted of murdering George Floyd for anybody living under a rock, with a public defender.

The Minnesota Supreme Court on Wednesday denied Derek Chauvin’s request for a public defender as the former Minneapolis police officer prepares to appeal his murder conviction in the death of George Floyd.

Chief Justice Lorie Gildea signed an order that said Chauvin failed to prove that he qualifies for representation from a public defender, according to the Star Tribune.

The court determined that Chauvin did not illustrate that he was too poor to pay for a private attorney.

Too poor to pay is a bit of a tricky issue. While different states employ different criteria to determine whether a defendant is indigent and therefore entitled to be provided with a lawyer for his defense, the general notion is that if a person is possessed of sufficient assets to retain counsel, he must use them.

The chief justice wrote in the order, citing state law, that a defendant is considered too poor to provide their own lawyer if they, “through any combination of liquid assets and current income,” are not able to finance their own attorney.

The former police officer claimed in an affidavit that he has no earnings other than nominal prison wages he has received, according to The Associated Press. He contended that his debts are larger than his assets.

Chauvin’s income doesn’t contribute much to the cause, but he likely had some assets and savings from his time as a cop. How much is unclear. Chauvin’s claim that his debts exceed his assets is also a tricky problem, although without more detail it’s hard to be sure. To whom are his debts owed and are they real or paper debts? Does he owe his parents a mil for covering his cost of living pending his conviction? Are they going to collect? Debts can be used to cover assets even when they’re not likely to ever do so, leaving the assets effectively unencumbered for use to retain a lawyer.

Then again, should a defendant be required to sell all his assets, to render himself destitute, to exercise his right to appeal a conviction?

But what does Chief Justice Lorie Gildea think constitutes sufficient assets for Chauvin to retain counsel? The other side of this equation is what his appeal will cost. Going out on a limb here, I doubt there is a chance in hell he’s got enough, whether in savings or assets, to pay for a good lawyer to take his case. What’s Chauvin’s worth, $10,000? $100,000? That ain’t gonna cut it for a really good private lawyer.

This appeal won’t come cheap, both because of the work involved which will be scrutinized to the nth degree, the time-suck of media and the unduly passionate doing everything in their respective power to grab a piece of the lawyer’s attention while he’s trying to work on the brief, and the reputational hit the lawyer will take for representing one of, if not the, most hated defendants in the nation. Who needs that?

Of course, as some wag will no doubt argue, a lawyer could take on the case pro bono, because of his love of the law and Constitution, and perhaps that will end up being the case. But you can’t bank on that happening, and a defendant’s constitutional right to the assistance of counsel shouldn’t hinge on there being some lawyer somewhere willing to give it up for charity. We have bills to pay too, you know.

It is, of course, possible to find a lawyer willing to take the case for a pittance. There is always a lawyer to be found who won’t let a case walk out the door if he can glom enough money for a dinner at Cracker Barrel out of it. But then, this isn’t the lawyer who is likely to provide zealous representation, as his efforts run out about the same time as the money, and his effort wasn’t much to begin with. Then again, other defendants have likely suffered his representation, and they are no less worthy of competent counsel than Chauvin.

The appeal of Derek Chauvin presents a test of whether society will provide a despised defendant with the means to challenge his conviction. As the court found, he’s not entirely indigent, assuming his debts weren’t legitimately in excess of his assets, and so he’s not in exactly the same boat as the defendant who has nothing. But he’s also extremely unlikely to have the wherewithal to retain counsel and mount an appeal in this particular case. So he’s caught between a rock and a hard place, and there likely won’t be too many people shedding tears for his predicament. Will Chauvin be left to dangle, tough nuggies killer?

Another possibility is that he be given a public defender, who will no doubt be thrilled at the prospect of defending Chauvin on appeal, and required to contribute whatever assets the court deems liquid to the cause. Whether that’s available under Minnesota law is unknown, and even if it is, puts the defendant in a precarious position if it turns out that he is unable to comply with the conditions placed on his being provided a public defender.

What is clear, however, is that not even the hated Derek Chauvin should be denied his right  to the assistance of counsel to appeal his conviction. As the court has denied him indigent counsel, they have set up a scenario where Chauvin’s rights may be in peril and the outcome of his appeal suspect. It might not be socially savory to send a public defender to Chauvin’s cell, but the prospect of his conviction being affirmed without benefit of zealous representation won’t be a shining moment for justice either.

22 thoughts on “Defending Derek Chauvin

  1. Mark Dwyer

    Mr. Chauvin is unlikely to get the equivalent of a “really good private lawyer” if his request for a free appellate attorney is granted. He will instead sail in the very boat that holds other indigent defendants, and have to take the lawyer who is assigned. He will presumably receive the “adequate” representation to which all indigent defendants are entitled, and no more. One might ask why he should not pay for that merely adequate representation if he personally can afford to.

    Could the Minnesota authorities (judicial or public defense) decide to write him the equivalent of a blank check and accord him the “super” representation that he cannot afford? They could. But if they do, why would not every one of the indigent defendants with a tough case or unwanted notoriety be entitled to the same deal? I focus on “tough case” because so many defendants have little hope of appellate success without the best representation.

    There is no good answer for indigent appellants any more than for indigent trial defendants. It is hard to tell a defendant that he must fight his indictment or his conviction with only “adequate” representation. (Of course, sometimes they will not get even that much.) I can say only that I will worry about Mr. Chauvin as much as the others and not more.

    1. SHG Post author

      First, I suspect that if a PD was assigned, it would be handed to one of the best, not because he’s any more deserving than any other defendant but because they know the prosecution will put its best on the case and they have enough integrity to not do less in furtherance of their constitutional duty.

      Second, that there are lawyers who provide merely “adequate” representation, or what passes as sufficient under the Minnesota version of Strickland, does not mean we should wish that on anyone. I can worry about all defendants who receive less than exceptional representation on appeal, Chauvin included. So I agree, as much and not more, but for me that would be exceptionally zealous representation for all. That’s what you meant, right Judge?

      1. Ron

        Or if the judge saying that appellate PDs are no better than the low rent lawyers who hang around the hallways hoping for a gig?

        1. Mark Dwyer

          I spent decades banging heads with appellate public defenders. I thought they were very good, and some were as talented as any retained attorney I opposed. My thought, though, is that there aren’t enough excellent ones for the PD establishment to write the blank checks that would let them represent all the indigent defendants with cases as tough as Mr. Chauvin’s. Some people will get merely adequate representation when they need more. And that’s not even thinking about the assigned private attorneys, who vary greatly in talent.

          And yes, Scott, I would like to see zealous representation for all, and exceptional talent working for all those who need it most (and not primarily those who can easily afford it). It won’t happen, though. If Mr. Chauvin gets it because of special treatment he’s lucky, and I’m not persuaded that he deserves it any more than a lot of other guys.

  2. orthodoc

    I saw and was intimidated by one of this site’s bouncers’ recent rebuke of a non-lawyer commentator, so I am a bit hesitant to post [but not hesitant enough, evidently].
    You ask “.. should a defendant be required to sell all his assets, to render himself destitute, to exercise his right to appeal a conviction?” I would say, yes–especially if there are clear and fair standards of what “destitute” means. (Such standards would avoid the “precarious position” alluded to above.)
    In healthcare, divesting assets to render oneself eligible for public assistance is common. The clearest example is a person impoverishing himself or herself (by “spend down”, among other means) to qualify for nursing home care. I have had at least one patient quit working to qualify for public assistance for elective surgery. Many others I am sure monitor their earnings/bank account to ensure they don’t lose eligibility.
    If Derek Chauvin has, say, $100K in the bank, it’s not clear to me that he (or any similarly situated person) should qualify for government assistance. I suggest that he call 212-227-8585 for a $100,000 / hour consultation– worth every penny– and then use what he learns to help instruct the public defender he is then assigned.

    1. SHG Post author

      Is there a constitutional right to a free nursing home? If not, then they are not comparable for that, among other, reasons.

      1. Beth Clarkson

        Once my grandfather’s savings were exhausted, he was moved to a nursing home that accepted whatever the government would pay for his care. He lived out his remaining time there. It was not as nice.

        1. SHG Post author

          My parents were in a private pay facility before they died. It wasn’t all that nice either, but it was outrageously expensive.

      2. orthodoc

        As I understand it (from Anthony Lewis’s book, not TV or twitter but still), the constitutional right to having counsel provided is for s/he ” who is too poor to hire a lawyer”. [GIDEON, v. WAINWRIGHT]
        Because the right to counsel is a qualified right, the definition of what is “poor” is crucial.
        That is, the right to counsel for a non-poor person is the same as a person’s right to medical care, and maybe even less (as the absence of the former is, how you say?, res judicata)
        Smack away. I am asking for it.

        1. SHG Post author

          Anthony who? There is no constitutional right to medical care, and no constitutional right to a nursing home. You should let that Anthony guy know you want your money back.

        2. Skink

          Orthos come in varieties: hand, arm, shoulder; ankle, leg, hip; spine (just don’t, off to NS for them). Pauper criminal defendants also come in varieties.

          But like you can’t explain your varieties to us in this simple Hotel, we can’t explain ours. It simply ain’t that simple. If Anthony made it look simple, then, at best, he’s hand doing spine.

          Get it?

  3. Jake

    Perhaps his request was less based on genuine need and more a gambit to trigger the creation of a crowdfunding page littered with images of the blue line American flag and punisher logos. I hear the PR options are limited once you don the orange jumpsuit.

    1. PseudonymousKid

      Perhaps he’s been possessed by a demon and not acting of his own free will. I hear that’s a thing, or at least I’ve seen movies about it.

      I’m trying to show you that what you said was as meaningless as what I wrote above. In general, I’d like to advocate for whatever position you take, but you have to say something first. As a reminder or if I haven’t said it plainly before, I’ll leave you alone if you want, but I do want to help if I can.

  4. B. McLeod

    If Minnesota follows the common approach of limiting appellants to the issues in their notice of appeal, his chances on appeal have likely taken a hit already. Letting an appellant have counsel after a pro se notice will not help as to any issue not preserved by the pro se notice.

      1. SamS

        From a Reuters news report dated September 24, 2021 “Chauvin has no money to hire an attorney and is representing himself, according to documents filed late on Thursday.” From other reports I’ve read, his trial counsel filed for a new trial and filed a petition for a public defender to handle the appeal with the trial court. The trial court denied both motions, and the trial counsel ceased representing him after sentencing. Chauvin then acting pro se appealed both denials. The Minnesota Supreme Court has now denied his request for a public defender for the appeal.

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