There has been a great deal of speculation about the intentions of Derek Chauvin juror Brandon Mitchell, since a photo surfaced of his appearance at a march in Washington D.C. from last August. Mr. Mitchell is seen in the photo wearing a Black Lives Matter (BLM) baseball cap and a t-shirt with a picture of Martin Luther King, Jr. and the words “Get your knee off of our necks.” Not surprisingly, the defense is seeking a new trial.
A construct in
social psychology known as a “schema” can be applied to the story as we analyze
the fallout of this development. A schema is a cognitive framework, or pattern
of thoughts, that helps individuals organize and interpret information. For
example, when the word “trial” is mentioned, all of us have some sort of mental
representation in our minds of what a “trial” is. Do we picture a courthouse? A
jury box? Do we think of a Judge? Do we think of someone in a prison suit? A
famous trial? Do we feel as if a trial is a good thing? A scary thing?
In his jury questionnaire, Mitchell answered “no” to the question of whether he or anyone close to him participated in protests about police use of force or brutality. If you are a member of the Chauvin defense team, you might see these competing events (Mitchell attending the rally and the “no” to the question of attending a police use of force protest) through a schema that leads you to believe Mr. Mitchell was untruthful and concealed his participation at an event that should have been disclosed. Many facts have come to the forefront but even facts are susceptible to subjective interpretation based on an individual’s predispositions.
On the NAACP’s website the 2020 March on Washington which Mr. Mitchell attended,said, “The march will take place on the 57th anniversary of the historic March on Washington where Dr. Martin Luther King Jr. delivered his I have a Dream speech. This year, thousands will virtually March on Washington to restore and recommit to that dream.” Words matter, and perhaps if the questionnaire asked about whether the prospective juror or anyone close participated in protests or marches about police use of force or police brutality, Mr. Mitchell may have said yes. But it is more likely Mr. Mitchell did not see the D.C. event as one about police use of force or brutality. His schema of that event did not consist of anti-police sentiment but instead a veneration of MLK Jr. And that is entirely reasonable.
Mr. Mitchell’s other answers in the questionnaire, where he appeared candid, indicated he had a favorable opinion of the BLM movement and was curious why the other three officers at the scene did not intervene. This hardly sounds like someone trying to stealthily fall through the cracks and make it on the jury.
The defense still had strikes to use at the end of the day after the jury was selected, and perhaps a more thorough assessment of Mr. Mitchell would have revealed that he might be more aligned with the prosecution instead of Mr. Chauvin. But it is likely the defense felt his answers about BLM, where he said it was merely a statement and not a movement or organization, that he felt neutral about Blue Lives Matter, and that the police officers he knows from the gym are “great guys,” led them to think he could be fair and impartial. We also do not know for sure whether the photo is anything new for the defense. Extensive social media research of prospective jurors is the norm, and it would be standard operating procedure for the State and defense to look up online posts, pictures, likes, and anything they could find about the potential jurors, including Mr. Mitchell.
Judge Cahill does not want to declare a mistrial. It is extremely rare for a judge to second-guess a jury. But to put to rest speculation about Mitchell holding back key information, the Judge could hold an evidentiary hearing with witnesses and ask Mitchell one simple question: Mr. Mitchell, you answered “No” to the question of whether you or anyone close participated in protests about police use of force or police brutality. And here we see a photo of you at a march in DC from last August which some might consider being a protest of sorts against police brutality and force. Can you let me know why, given this photo and your presence in DC, you answered this question in the negative?
This question might sound intimidating coming from the Judge, but there are a host of satisfactory answers, one of which is even embedded in the question. Mr. Mitchell told the Star Tribune that “I’d never been to [Washington] DC. The opportunity to go to DC, the opportunity to be around thousands and thousands of Black people, I just thought it was a good opportunity to be a part of something.” The question asks about protests but it looks as if Mr. Mitchell felt he was participating in a larger more global cause for social justice and not some discrete element objecting to police infractions. Besides, to many, a march is not even a protest, and the “schema” Mr. Mitchell had in his mind about the march he attended in D.C. did not connect with the question about a protest on police force or brutality.
In Mr. Mitchell’s answer to the above hypothetical question, Judge Cahill would have to ascertain whether Mr. Mitchell was purposefully less than forthcoming on the questionnaire, and if so, why. The Judge can also consider whether true bias was apparent but that this juror was not even aware of it. As alluded to, the defendant must satisfy a huge burden since a judge is not inclined to redo an entire trial, but there is precedent. In 2015, a Tennessee Judge overturned the rape convictions of two former Vanderbilt football players after it was revealed the foreperson said he had never been the victim of a sex crime during voir dire. It turned out as a teenager he had a relationship with someone a few years older which was technically illegal but this juror felt the relationship was consensual so he honestly answered he was never a victim of such a crime. This foreperson’s schema pertaining to sex crimes was one that did not connect to his experience from years earlier.
One might argue parallels between this foreperson’s reluctance to say he was a victim of sexual assault with Mitchell’s disinclination to check “yes.” But in the Vanderbilt football player rape case there is no denying that from a legal standpoint the foreperson was the victim of a sex crime since his partner was actually prosecuted. There is no such dilemma in Mr. Mitchell’s case. Mr. Mitchell did what we all do every day which was merely using his schemas as a framework for answering questions.