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?

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    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.
    – Rock Ape
    Apr 21 at 17:11
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    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. Apr 21 at 17:33


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.

  • As you note, there was no mistrial, so the first paragraph seems inapplicable. Can you cite references for your second paragraph? Apr 21 at 2:14
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    @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
    Apr 21 at 4:11
  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Apr 23 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.

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    The question is of course whether Waters's comments rise to the standard set in Sheppard's case. Skimming Wikipedia there seems to be extensive inappropriate media coverage that pervaded the Courtroom in significant ways. It seems challenging to set up an equivalence between that Maxine Waters's comments but I suppose we'll see. Apr 21 at 23:56
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    @ShmuelNewmark I think that the Black Lives Matter riots and the coverage thereof in general probably create an equivalence to the Sheppard case.
    – nick012000
    Apr 22 at 2:06
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    @nick012000 From the Sam Sheperd briefs: The trial began two weeks before a hotly contested election at which the chief prosecutor and the trial judge were candidates for judgeships. Newsmen were allowed to take over almost the entire small courtroom, hounding petitioner and most of the participants. ... Pervasive publicity was given to the case throughout the trial, much of it involving incriminating matter not introduced at the trial, and the jurors were thrust into the role of celebrities. You think all of that was present in Chauvin's trial to a similar degree? Apr 22 at 2:50
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    @ShmuelNewmark Not the specifics, but the level of influence it causes is probably the same. BLM was burning down half the country in their riots after Floyd died.
    – nick012000
    Apr 22 at 2:53
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    @nick012000 I mean don't get me wrong, it's possible. And I'm sure his lawyers will be doing their hardest to make that case. But this hardly the first court case to have massive media attention, and most of those don't get reversed on appeal. The Sam Sheperd case is notable because the media circus pervaded the courtroom itself not the existence of riots several states away. But of course, the final call is for the judge. Apr 22 at 2:53

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.

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