Editor’s note: This article has been updated to include Derek Chauvin’s sentencing.
On Friday, the nation is refocusing its attention on the case involving the murder of George Floyd, after a Minneapolis jury in April convicted former police officer Derek Chauvin of murdering Floyd. The presiding judge, Peter Cahill, denied Chauvin a new trial late Friday morning. On Friday afternoon, he sentenced Chauvin to 22.5 years in prison.
A national pressure valve seemed to release when the jury announced guilty on all three homicide counts.
On April 20, the nation seemed to hold its collective breath as the jury prepared to announce its verdict for Chauvin. A national pressure valve seemed to release when the jury announced guilty on all three homicide counts.
Just two weeks after the verdict, Chauvin’s defense attorney Eric Nelson filed a Motion for a New Trial, urging Judge Cahill to throw out the conviction and do it all over again.
From the start, the chances of Chauvin’s new trial motion succeeding were slim to none. With everyone — from the Floyd family to the witnesses who watched Chauvin and his fellow officers end Floyd’s life that day to the media and beyond — assembling on Friday afternoon for what has been billed as a sentencing hearing, Cahill undoubtedly would have signaled in advance if instead of a sentence hearing he would be conducting a hearing on Chauvin’s motion for a new trial.
After Cahill denied each and every allegation of error, he then delivered Chauvin’s sentence for murdering Floyd.
Nelson filed what can only be called a “kitchen sink” motion. In a brief barely more than three pages in length, he contends there are no less than 10 errors that warrant a new trial, including allegations that the court “abused its discretion” by: refusing to move the trial to another city; by not adequately shielding the jury from pretrial publicity; by failing to order witness Morries Hall to testify; by failing to properly instruct the jury on the elements of the charged offenses; by wrongfully allowing the prosecutors to present cumulative evidence; by failing to make adequate records of sidebar discussions; etc.
Nelson also takes aim at the prosecutors, alleging they engaged in “pervasive, prejudicial misconduct.”
Nelson also takes aim at the prosecutors, alleging they engaged in “pervasive, prejudicial misconduct” by doing things like “disparaging the defense” and “failing to adequately prepare” their witnesses. Nelson also goes after the jury, alleging that “the jury committed misconduct, felt threatened or intimidated, felt race-based pressure during the proceedings, and/or failed to adhere to the instructions during deliberations.” In essence, Nelson contends that pretty much everyone (except him) did everything wrong in the Chauvin trial. And in reality, each and every alleged error likely will be rejected by Judge Cahill and Chauvin’s case will proceed to sentencing.
New trial motions like the one filed by Chauvin’s attorney are fairly routine in serious criminal cases. In my 30 years as a prosecutor, I would estimate that such motions were filed in about a quarter of the cases I tried. But whereas new trial motions are often filed, they are rarely successful.
This is mostly because in resolving the allegations by Nelson, Cahill would have to apply an “abuse of discretion” standard. All of the complaints in the motion were raised, litigated and resolved during the course of the trial. So, Cahill will now have to answer the following question to resolve the new trial motion: Did I, Judge Cahill, abuse my discretion when I ruled the way I did during the course of the trial? You can see why a judge is unlikely to collude he was wrong during the trial and abused his discretion and order a new trial based on his own failures.
This begs the question: If the motion was a sure loser, why would Nelson have bothered filing it? Two reasons: the first is to preserve Chauvin’s ability to raise these issues on appeal. If a defense attorney neglects to raise an issue during the trial, or if he raised it in a way that an appellate court might say lacks sufficient specificity, the appellate court judges could rule that the defendant/appellant has waived his right to raise the issue as part of his appeal. Nelson is simply making an additional record on these issues, so they are preserved for future appellate litigation.
The second reason is to avoid a claim by Chauvin that Nelson was an ineffective defense attorney for failing to raise these issues in a new trial motion. I frequently was surprised when I would prosecute a case against a defense attorney who represented the defendant expertly, aggressively, and persuasively, only to have the defendant turn around and attack their attorney for having rendered ineffective assistance of counsel because the jury returned guilty verdicts. I always put this in the “no-good-deed-goes-unpunished” category. Motions that are sure losers often are filed by defense attorneys to stave off claims of ineffective assistance of counsel.
As the final assertion of error in his motion for a new trial, Nelson argues that, even if no one error standing alone warrants a new trial, the “cumulative effect” of all errors in combination deprived Chauvin of a fair trial. Many times, as a prosecutor I’ve urged judges to reject similar “cumulative error” claims with this simple refrain: “ten meritless issues do not one meritorious issue make.” This request literally adds insult to injury, signaling that Black lives don’t matter. There is one additional — albeit atmospheric — likely reason Cahill denied the new trial motion: Everyone has been prepared for the sentencing hearing on Friday. In advance of any sentencing hearing in a murder case prosecutors and victim advocates typically spend significant time with the victim’s family members, assisting them in preparing both written and oral victim impact statements, answering questions about how the hearing will unfold and generally preparing them for all eventualities. For 22 of my 30 years as a prosecutor, I tried and supervised murder cases in the courts of Washington, D.C., I’ve heard how human beings end the lives of other human beings in horrific, unthinkable ways. I’ve seen many murders captured on video. But what I saw on that Floyd video is distinctly different than anything I saw in my decades as a homicide prosecutor. On that video, we saw police officers intentionally and over an extended period of time end the life of a citizen they swore to protect. They did it in broad daylight. They did it in front of several members of the community, including children and at least one Minneapolis first responder who tried to put a stop to it only to be bullied out of intervening by the officers. This atrocity cries out for a sentence that will forcefully condemn this kind of conduct by police officers who swore an oath to protect and served but instead brutalized and executed. The prosecutors have requested a sentence of 30 years in prison, of which he received 22.5. Perhaps to everyone’s surprise — certainly to mine — Chauvin’s defense attorney requested probation, sending the signal that when a police officer grossly abuses his authority by murdering an unarmed, handcuffed, defenseless Black citizen, the crime deserves not one single day in prison. This is not only a poor tactical choice by a defense attorney representing a client who has been convicted by a jury of his peers of second-degree murder, but it sends a signal that unlawfully taking the life of a Black citizen warrants no punishment. I was especially appalled by the defense’s despicable plea for probation given my first-hand experience in handling murder cases. Once a defendant stands convicted of murder — whether pursuant to a guilty plea or a guilty verdict by a jury — the defense attorney typically will make at least a somewhat plausible sentencing request, something along the lines of urging the judge to impose a sentence at or near the bottom of the applicable sentencing guideline range. Chauvin’s attorney certainly could have urged the court to sentence Chauvin to only six or eight or 10 years in prison. But instead, he contends that probation is the appropriate sentence, as if this is a case of shoplifting or jaywalking. This request literally adds insult to injury, signaling that Black lives don’t matter. Fortunately, this offensive sentencing request was rejected by Judge Cahill. And now he has received a sentence appropriate for a police officer who brazenly murdered an unarmed, handcuffed, and defenseless African American citizen for allegedly passing a fake $20 bill.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
