On Saturday night, Democratic Rep. Maxine Waters flew to Minneapolis to support demonstrators protesting the killing of Daunte Wright, an unarmed Black man who was shot to death by a police officer during a routine traffic stop on April 11. Noting the impending verdict in the trial of Derek Chauvin—the police officer accused of killing George Floyd last year—Waters urged demonstrators to “stay on the street” and “get more confrontational” if Chauvin is acquitted or found guilty of anything less than murder. The officer’s defense attorneys moved for a mistrial on Monday, claiming that publicity in the case had tainted the jury’s impartiality; they specifically cited Waters’ comments, as well as TV coverage of the trial.
Judge Peter Cahill denied the request but criticized Waters, stating: “I wish elected officials would stop talking about this case, especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function.” He added that “if they want to give their opinions, they should do so in a respectful and in a manner that is consistent with their oath to the Constitution, to respect a coequal branch of government.” Cahill declared that “their failure to do so, I think, is abhorrent,” but concluded that “I don’t think it’s prejudiced us with additional material that would prejudice this jury.” He then provided an ominous conjecture to the defense: “I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.”
If the jury finds Chauvin guilty, could Waters’ statement really be grounds for an appeals court to overturn the verdict? Almost certainly not. Chauvin’s trial has generated enormous publicity, and a member of Congress has the same First Amendment right to talk about it, even in heated terms, as everyone else. The jury has an obligation to disregard all public commentary and limit its deliberations to the information presented at trial. Absent evidence showing that Waters directly biased the jury—and that is probably impossible to prove—she did not undermine Chauvin’s constitutional right to an impartial jury.
Although Republicans have framed Waters’ comments as incitement to violence, the congresswoman’s words, taken in context, clearly called for protest, not riots. “We’ve got to stay in the street and demand justice,” the Waters told reporters, adding: “We’re looking for a guilty verdict and we’re looking to see if all of the talk that took place and has been taking place after they saw what happened to George Floyd—if nothing does not happen, then we know that we got to not only stay in the street, but we have got to fight for justice.” This statement is nearly identical to countless calls by members and supporters of Black Lives Matters to vigorously protest a verdict of “not guilty” in the Chauvin trial. It is obviously protected speech under the First Amendment.
The Supreme Court has recognized that the First Amendment may occasionally come into tension with a criminal defendant’s constitutional right, guaranteed by the Sixth Amendment and the due process clause, to “a public trial, by an impartial jury.” But it has generally held that contentious, impassioned, round-the-clock speech about a criminal trial, including extensive news coverage and political interest, does not unduly contaminate a jury’s impartiality.
There are extreme exceptions: In 1966’s Sheppard v. Maxwell, for instance, a man accused of murder was “examined for more than five hours without counsel during a three-day inquest which ended in a public brawl. The inquest was televised live from a high school gymnasium seating hundreds of people.” The Supreme Court noted that “bedlam reigned at the courthouse during the trial, and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard.” All three local newspapers published the names and addresses of potential jurors, who were then flooded with “anonymous letters and telephone calls, as well as calls from friends, regarding the impending prosecution.” Jurors were also “photographed and televised whenever they entered or left the courtroom.” The Supreme Court concluded that this “massive, pervasive and prejudicial publicity” violated the defendant’s right to a fair trial.
Outside these bizarre circumstances, however, the court has not found that run-of-the-mill publicity, even in major cases, violates a defendant’s rights. The court has consistently refused to restrain the publication of information that could theoretically bias the jury against the defendant, rejecting such prior restraints on speech under the First Amendment. As a result, both prosecutors and defense attorneys must contend with the reality that jurors may be aware of facts and opinions not presented at trial, and trust the jury to exclude this information from its deliberations. The mere presence of speech that could bias a jury does not infringe upon a defendant’s constitutional rights.
Suja Thomas, a professor of law at the University of Illinois College of Law and renowned expert on jury trials in the United States, told me on Tuesday that she did not believe a guilty verdict in Chauvin’s case would be overturned on the basis of Waters’ commentary, or anyone else’s. “The jury has already been instructed not to consider any information outside of the evidence that was presented at trial,” Thomas said. “Before the jury was selected they also heard opinions they need to disregard. The comment of Rep. Waters really should be no different. They were instructed to disregard such comments. I don’t think the comment could be used successfully to appeal a conviction absent some other evidence of actual influence on the jurors.”
Thomas added that Waters did not do “anything wrong” but merely exercised her own rights to speak freely about a matter of immense public concern. “We all have a right to speak,” Thomas said. “She did. She is recognizing that more needs to happen if there is no conviction—that it’s unacceptable for Black people and other people of color to be targeted for unfair treatment by the police.”
It is actually a bit surprising that Cahill, the judge overseeing Chauvin’s trial, would explicitly condemn Waters’ comments. The judge ordered the proceedings to be televised in recognition of the constitutional right to a public trial. He must have known at the outset that Chauvin’s prosecution would prompt enormous commentary, yet appeared to trust jurors not to let themselves be biased by outside speech. Cahill made the right call by rejecting Chauvin’s motion for a mistrial, but his speculation that an appeals court might nonetheless overturn a guilty verdict on the basis of Waters’ words badly misses the mark.
To understand more about how police training perpetuates a culture of fear and, sometimes, violence, listen to this recent episode of What Next.
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