How many times do you have to wear a shirt before you can’t realistically act surprised that you owned it?
It sounds like a strange hypothetical, but it’s a question that could be the difference between Derek Chauvin’s conviction standing and the former Minneapolis police officer getting a new trial.
Last month, Chauvin was convicted of second-degree unintentional murder, third-degree murder and second-degree manslaughter in the May 25 death of George Floyd. Video showed Chauvin kneeling on Floyd’s neck for nearly nine minutes.
Earlier this week, a photo surfaced of Brandon Mitchell — Juror 52 in the Chauvin trial, according to The Washington Times — attending an Aug. 28 march in Washington while wearing a shirt that read, “Get Your Knee off Our Necks/BLM.”
He said he didn’t remember having the shirt on or ever owning it. It turns out, however, it was part of his wardrobe on at least one other occasion.
The August event was ostensibly to mark the anniversary of the Rev. Martin Luther King Jr.’s March on Washington. However, it took on a protest atmosphere given the events of the summer following Floyd’s death.
This was critical because, according to WCCO-TV, Mitchell said in a questionnaire he filled out before the Chauvin trial said he hadn’t attended any protests of police brutality in Minnesota or elsewhere. He also said “Black Lives Matter” simply meant “Black lives just want to be treated as equals and not killed or treated in an aggressive manner simply because they are Black.”
The speeches during the march in August seemed to indicate this was something more than just a commemoration of the original event, at which King gave his “I Have a Dream” speech. Some quotes, via The New York Times:
Al Sharpton: “We didn’t come to start trouble. We came to stop trouble. You act like it’s no trouble to shoot us in the back. You act like it’s no trouble to put a chokehold on us while we scream ‘I can’t breathe’ 11 times.”
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Martin Luther King III: “There’s a knee upon the neck of democracy, and our nation can only live so long without the oxygen of freedom.”
Jacob Blake Sr., the father of Jacob Blake, who was shot by police in Kenosha, Wisconsin: “There are two systems of justice in the United States. There’s a white system and there’s a black system. The black system ain’t doing so well.”
Mitchell told WCCO that neither Floyd’s death nor a desire to protest police misconduct motivated his decision to attend the event.
“It was huge to get people geared for voter turnout, so being a part of that, being able to attend, you know, the same location where Martin Luther King gave his speech, was a historic moment,” Mitchell said. “Either way, I was going to D.C. for this event, even if George Floyd was still alive.”
Brandon Mitchell, the juror in the Derek Chauvin trial who spoke publicly last week, defended his participation in last August’s March on Washington after a photo circulated on social media. https://t.co/5EJWr6dpEB
— Star Tribune (@StarTribune) May 4, 2021
One’s intentions in attending events that could be categorized as protests wasn’t what was asked of jurors, but merely whether they’d attended such an event. (The two questions, as per The Associated Press: “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” and “Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”)
However, that still doesn’t necessarily make the answers to the questions problematic, particularly given the high bar for overturning a jury’s verdict.
There’s that T-shirt, though — the one featuring the man whose death precipitated the trial in which Mitchell was a juror.
According to a Tuesday report by the AP, Mitchell “said he doesn’t recall wearing or owning the shirt.”
It didn’t take long for doubt to be cast on that explanation, either:
Brandon Mitchell, the Chauvin juror who previously attended a #BLM event wearing a “Get your knee off our necks” shirt, says he didn’t remember owning or wearing that shirt. But as recently as last October, he wore the shirt again on a podcast. pic.twitter.com/SQd6N57Y2i
— Andy Ngô (@MrAndyNgo) May 5, 2021
Mitchell donned the same T-shirt on “The Wholesome Podcast.” While the content of that program ostensibly has nothing to do with Floyd or Black Lives Matter (the topic: “How do you feel about dating someone who is abstinent?”), his attire raises further questions about whether Juror 52 was deliberately dishonest during jury selection.
Chauvin attorney Eric Nelson filed a motion for a new trial on Tuesday; among other things in the filing was a request for a hearing regarding juror misconduct.
Joseph Tamburino, a Minneapolis criminal defense attorney and outside expert on the Chauvin trial, noted that while the request didn’t specifically mention him by name, “let’s face it, the only real reason he’s doing it is because of Mitchell. That’s the real reason,” according to The Washington Times.
This doesn’t necessarily mean there’s going to be a new trial. As John Jay College of Criminal Justice professor Dmitriy Shakhnevich told NBC News, while it’s “certainly possible that this will be used to support various post-conviction efforts, of which one is an appeal” for the verdict to be overturned, there’d have to “be a showing that, had he not served on the jury or disclosed this information, the verdict would have been different.”
However, Mitchell Hamline School of Law professor Ted Sampsell-Jones may have put the problem best when he talked to the AP and said the photo of Mitchell was “evidence that Chauvin can point to in order to establish that his right to an impartial jury was denied.”
Then: “Speaking frankly, Chauvin did not have a fully impartial jury in the sense we usually give criminal defendants. That wasn’t the fault of the judge or the prosecutors, it was simply a function of the incredible publicity and public pressure.”
There was no impartial jury and there arguably couldn’t have been.
That being said, it doesn’t help when and if a juror lies.
We’ve confirmed multiple documented occasions on which Brandon Mitchell wore a T-shirt with George Floyd’s name on it, including a march that almost any reasonable person would have conceded functioned, either primarily or secondarily, as a protest action against police.
We’re expected to believe, too, that he doesn’t remember wearing the shirt with Floyd’s name before he served on a jury that convicted a man of two counts of murder and one count of manslaughter in Floyd’s death.
No, this alone won’t overturn the verdict or function as sole grounds for an appeal. It’s more evidence, however, that Chauvin’s trial was flawed enough that another one is needed.
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