Free Speech

First, Sixth Amendments Require Allowing TV Coverage of Derek Chauvin Trial

So holds a Minnesota trial court, because ordinary public access is precluded as a result of the epidemic.

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The Sixth Amendment Public Trial Clause lets defendants insist that their trials be open to the public, and the Court has interpreted the First Amendment as generally requiring such openness even when defendants are willing to waive their Public Trial Clause rights. But courts have mostly resisted the claim that either provision requires televised trials; it's enough, courts say, that the trials be open to members of the public (including the media, which will then write about the trial for the benefit of those people who can't see it directly).

But Wednesday's decision in State v. Chauvin, Minnesota state Judge Peter A. Cahill took a different approach, because of the epidemic:

In the past, failures to restrict public and media access inside the courtrooms of high-profile trials resulted in media action that was so intrusive and disruptive that defendants' rights to a fair trial were violated. While the right of the press and public to attend criminal trials is sacrosanct, and carries with it the right to report what has occurred during the trial, the right does not include a right to "telecast" the actual proceedings. Estes v. Texas (1965).

Against this historical background, the Minnesota Supreme Court promulgated the current version of Minn. Gen. R. Prac. 4, which limits audio and visual media coverage of criminal proceedings. While that rule sets out a general rule of prohibition, it also allows for the visual and/or audio recording and reproduction of trial proceedings with the consent of all parties. Even with the consent of all parties, visual or audio recording of trial proceedings is limited.

Normally, this rule can be applied without concern that it will impinge on the right to a public trial or the right of access held by the public and press.  Spectators may freely attend trials, and the usual trial receives little attention, except from family and friends of the victim or the defendant and the Court can easily accommodate those wishing to attend the trial in person. On occasion, members of the media attend and report on the proceedings. All spectators, whether journalists, interested parties, or casual observers, may, in normal times, come and go as they please.

The instant situation, however, not only is abnormal—it is in fact quite unique. The COVID-19 pandemic persists and requires social distancing, especially during jury trials. All four Defendants here have been joined for trial by separate order filed today in all four cases in which this Court has granted the State's motion for trial joinder. The joint trial requires extra counsel tables, and thus a higher demand on the space within the courtroom. Even when this Court used the largest courtroom in the Fourth Judicial District for the joint motion hearing on September 11, 2020, only a handful of family and media representatives could fit into the courtroom given all the parties and counsel and the social distancing requirements in the courtroom necessitated by the COVID-19 pandemic and various orders issued by Chief Justice Gildea and the Judicial Council in the wake of the COVID-19 pandemic.

Most family and media had to observe the proceedings through a closed-circuit feed to other courtrooms, and even then had trouble hearing all of the proceedings. The general public could only observe from a closed-circuit feed to a courtroom several blocks away in the Hennepin County Government Center. The closed-circuit feed was limited to a static wide-view of the courtroom from a single camera above the jury box. This was a hearing that did not require space for jurors and it was still cramped.

A courtroom has been rebuilt in the Hennepin County Government Center, Courtroom 1856, for the upcoming joint trial in these cases. Spacing requirements mean there will be little, if any, room for any spectators in that courtroom during the trial.10 That includes not only family members and friends of George Floyd and the Defendants, but also members of the public and the press.

Not surprisingly, these cases continue to hold the interest of the press and the general public on an international scale. Virtually every filing by the parties in these cases is reported in the media, both locally and nationally. This Court's substantive orders also receive local and national news coverage. Protests demanding justice for George Floyd continue. It is expected that, even with some overflow courtrooms, the demand by family members, the public, and the press to attend the joint trial will outstrip the court's ability to provide meaningful access.

This Court concludes that the only way to vindicate the Defendants' constitutional right to a public trial and the media's and public's constitutional right of access to criminal trials is to allow audio and video coverage of the trial, including broadcast by the media in accordance with the provisions of the attached order.

The Court acknowledges that the attached order allows for greater audio and video coverage than that contemplated by Minn. Gen. R. Prac. 4.02(d), even if all parties had consented. It could be argued that the Court should simply follow the limitations of the rule to protect the constitutional rights of the Defendants, the public, and the press. The limitations of the rule are so extensive, however, that nothing would be known about the empaneled jurors, all witnesses could veto coverage of their testimony, and the public would be left with nothing but the arguments of counsel. That is hardly a basis for the public "to participate in and serve as a check upon the judicial process."

The Court's attached order seeks to accommodate the interests served by the current rule by expanding audio and video coverage only as necessary to vindicate the Defendants' constitutional right to a public trial and the public's and press rights of access to criminal trials in the unique circumstances currently prevailing in the COVID-19 pandemic and the intense public and media interest in these cases. By doing so, the Court is confident that "the public may see [that Defendants] [are] fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep [their] triers keenly alive to a sense of their responsibility and the importance of their functions."

I'm not sure whether this is right, given the Minnesota Supreme Court's rules, and at least the potential availability of a better-functioning closed-circuit feed to some other large room that would provide much the same access to interested members of the public and the media as they have traditionally gotten in nontelevised trials. Still, it seemed like an interesting decision that I thought was worth noting.

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.

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  1. The error in police training and in police behavior was to fail to Narcan George Floyd. The fentanyl in his meth kicked in, and he stopped breathing. Narcan nasal spray would have spared the nation a lot of grief.

    I received a Narcan nasal spray from a local library for free. A woman, recovering from opiate addiction, was filling out a job application at a McDonalds. She heard a loud thud in the back. She had to Narcan the employee 4 times.

    You never know when you will have to use it.

    1. I really find it hard to believe Chauvin leaped out of bed that day and said ‘I got a great idea, I’m gonna go out and kill the nearest black person and ruin my life forever’ like the mainstream narrative states. More likely Floyd died from the drugs while restrained and he panicked. Its sort of odd how you can be carrying on with your job one moment and the next be the second most hated man in the country the next.

      1. The Oblivious, Obsolete Old White Man’s Blues.

  2. PLANdemic, rationale for anything.

    Self-test and re-test ansomia and dysgeusia with fine wine.

    Recently saw “social distancing” reduced to 4 feet.

  3. Interesting that the Defendants would request TV coverage. Perhaps they think it’ll cut down prosecutorial grandstanding or virtue signaling.

    1. My guess is they figure it’s the only way to get their side of the story out.

  4. This trial is going to be a damned circus. I mean, could you possibly set the stage any better for more protests, riots, violence and mayhem than broadcasting the trial? Remember the OJ trial? This could go on for months and months.

    Now I don’t know about the other three cops; but personally, I think Chauvin should get the needle. He killed George Floyd. It was not an accident. You will never convince me otherwise; not after watching that video. To me, Chauvin displayed deliberate, complete and utter indifference to human life. That cannot be tolerated in a civil society. The jury will ultimately decide Chauvin’s fate, but Chauvin killed Floyd and regardless of whether Floyd was a reprobate and a dirtbag, justice must be done here.

    It is insanity to broadcast this trial. Record the trial for posterity, yes. But broadcast? What the hell does Minnesota state Judge Peter A. Cahill think will happen? For the sake of our country, we should not do this. We have had enough riots, violence and mayhem.

    1. “Now I don’t know about the other three cops; but personally, I think Chauvin should get the needle. He killed George Floyd. It was not an accident. You will never convince me otherwise; not after watching that video.”

      Perhaps you should
      1) watch all the videos including the police body cam instead of the one video covering the last 4-5 minutes,
      2) Read the entire autopsy report
      A) – page 2 item III – No life-threatening injuries identified
      B) including the parts that show no trauma to the neck, no
      C) Page 2 Item III A) No facial, oral mucosal, or conjunctival petechiae.
      Conjunctival petechiae are an important diagnostic finding in external examination of forensic cases, being a sign of possible mechanical compression of the neck and jugular veins (e.g. choking, strangulation).

      Kinda hard to claim death by neck compression, choking cutting off air supply when the autopsy report say otherwise

      11ng/ml of fentanyl when 9ng/ml is always fatal.

      The police called the ambulance 4-5minutes before Chauvin was able to restrain Floyd.

    2. Well, that was a wild ride.

  5. Interesting decision. If I believed that the pandemic lockdowns were necessary or even effective, I would consider the judge’s reasoning very compelling. Yes, some people will abuse the principle and try to turn this trial into a circus but those same people would be doing their best to turn it into a circus if they were in-person. Coronavirus should not change that in either direction.

    Better would be to just end the lockdown and let the public in the courtroom as usual but that may not be within the judge’s authority.

    I am curious, however, about the wording of this order. If the 6th Amendment compels courts to allow televising, how much infrastructure are they required to provide? Courthouses have considerable latitude to decide how many spectator benches to provide in any given courtroom but they can’t, I think, set the answer to none. Does that analogy mean courts must find someone willing to televise any give trial? Merely allow cameras somewhere in the room? Provide power? Other? Lots of technical issues to sort out if this does become the standard of the day.

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