Given Maxine Water's "abhorrent" conduct in Minneapolis (the judge's word, not mine) and the subsequent guilty verdict against Derek Chauvin, appeal(s) seem a virtual certainty. If a higher court finds that Chauvin's right to an impartial jury was violated, could he be subject to a retrial?

Did the prosecution oppose the defense's request for a change in venue? Could such opposition have any impact on the appeal process?

  • 2
    I'm not sure (so will leave it as is) but I don't think the [double-jeopardy] tag is applicable here. My understanding is that when a conviction has been overturned on appeal the original verdict is set aside and any re-trial starts from scratch so there's no DJ.
    – user35069
    Commented Apr 21, 2021 at 17:11
  • 4
    I think you are right @RockApe, but the point of tagging it such is that that's the nature of the question, not the answer. Commented Apr 21, 2021 at 17:33

3 Answers 3



The normal remedy for not receiving a fair trial or due process is the declaration of a mistrial. A mistrial legally never happened so it is up to the prosecution to decide if they want a retrial.

Unless the appellant can demonstrate that no reasonable jury would have convicted on the evidence (which seems unlikely verging on impossible), the appeal will not acquit the accused.

  • 1
    As you note, there was no mistrial, so the first paragraph seems inapplicable. Can you cite references for your second paragraph? Commented Apr 21, 2021 at 2:14
  • 9
    @Burt_Harris The appellate court can declare a mistrial - that would be what an appeal would be looking for in regard to the Congressperson's statements.
    – Dale M
    Commented Apr 21, 2021 at 4:11
  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Commented Apr 23, 2021 at 15:10

Yes, the Ohio case of neurosurgeon Sam Sheppard seems to make clear a retrial was permitted under similar circumstances. The appeal eventually made it to the U.S. Supreme Court as Sheppard v. Maxwell, 384 U.S. 333 (1966), which reversed and remanded the conviction.

The state of Ohio retried Sheppard; however, in the second trial, the state failed to achieve a conviction.

From the opinion:


1. The massive, pervasive, and prejudicial publicity attending petitioner's prosecution prevented him from receiving a fair trial consistent with the Due Process Clause of the Fourteenth Amendment. Pp. 384 U. S. 349-363.

(a) Though freedom of discussion should be given the widest range compatible with the fair and orderly administration of justice, it must not be allowed to divert a trial from its purpose of adjudicating controversies according to legal procedures based on evidence received only in open court. Pp. 384 U. S. 350-351.

(b) Identifiable prejudice to the accused need not be shown if, as in Estes v. Texas, 381 U. S. 532, and even more so in this case, the totality of the circumstances raises the probability of prejudice. Pp. 384 U.S. 352-355.

(c) The trial court failed to invoke procedures which would have guaranteed petitioner a fair trial, such as adopting stricter rules for use of the courtroom by newsmen as petitioner's counsel requested, limiting their number, and more closely supervising their courtroom conduct. The court should also have insulated the witnesses; controlled the release of leads, information, and gossip to the press by police officers, witnesses, and counsel; proscribed extrajudicial statements by any lawyer, witness, party, or court official divulging prejudicial matters, and requested the appropriate city and county officials to regulate release of information by their employees. Pp. 384 U. S. 358-362.

2. The case is remanded to the District Court with instructions to release petitioner from custody unless he is tried again within a reasonable time. P. 384 U. S. 363.

346 F.2d 707, reversed and remanded.

Postscript, as noted in @WS2's comment, there is more recent news relevant to this topic. George Floyd killer Derek Chauvin asks for new trial. I have not followed this news, so if anyone can add more, I'd welcome their edit below...

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Commented Oct 4, 2021 at 15:31

Your question seems to be whether the prohibition against double jeopardy precludes a second trial when a conviction from the first is set aside. The overwhelming case law is "no". Since the verdict is set aside, the defendant is considered to not have been in jeopardy. A prosecution failing because the trier of facts (jury or, in a bench trial, the judge) determines that the facts do not support a conviction, and thus acquitting the defendant, is considered to be different from a prosecution failing because of procedural errors (although egregious violations of rights can result in a case being dismissed with prejudice).

It is standard practice when a conviction is set aside for the prosecution to seek a new trial. For instance, in Gideon v Wainwright, Gideon argued that his rights were violated because he was not represented by counsel, and the Supreme Court agreed and set aside his conviction. He was then tried again, and he argued that this violated the prohibition against double jeopardy, and his argument was rejected. Ernesto Miranda of Miranda v Arizona was also retried and convicted.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .