This week’s Sounding Board (left to right): Abou Amara, Brett Corson, John Hottinger, Jennifer DeJournett and Wy Spano.
This week’s topics: Conviction reviews; juror IDs; new eviction moratorium
Query 1: Attorney General Keith Ellison this week formally rolled out his Conviction Review Unit, which will investigate the cases of incarcerated people who have evidence that they’ve been wrongly convicted. If the unit decides that evidence points toward innocence, it will make recommendations to the courts and prosecutors. What do you think about Ellison’s initiative?
Abou Amara, antitrust and civil rights attorney, former aid to the MN House Speaker: I think this is a fantastic idea. Right now, if you’re convicted, the burden is really on you and you alone to show that something was wrong. But oftentimes, the information that comes to light that is actually given to everybody, so it doesn’t matter who has it. If there’s any evidence that you didn’t commit a crime you were convicted for, we all should want to be a part of the solution—not just the person being accused and then convicted of a crime. I think this is really making sure that all of us take responsibility for justice.
Brett Corson, Fillmore County Attorney: As a general concept, I think it’s a great idea. Of course, I also believe in the process. If you’ve gotten to the point where charges were brought and there was sufficient evidence to convict in front of a jury, then I tend to believe that the vast majority of the time it’s correct. So, agreeing that it’s a good idea, isn’t the better place for the review board in the Public Defender’s Office? We have a pretty healthy Public Defender’s Office with state funding. Shouldn’t this be there, rather than in the Attorney General’s Office?
John Hottinger, attorney, former DFL Senate majority leader: I think that’s an excellent initiative. If nothing, we’ve discovered in the last couple of years how many cases are disputed, legitimately so. So I applaud the Attorney General for his effort.
Jennifer DeJournett, GOP political operative: I don’t agree with Ellison on many things. However, I do agree that if there is someone who is wrongfully convicted, they should be released and justice should be done.
Wy Spano, DFL political consultant: Most people, I think, seem to believe that the criminal justice system has all kinds of nonsense in it, all kinds of stuff that doesn’t work right. I was talking to somebody the other day about how economically well-structured the criminal justice system is—the more lawyers you can afford, the longer it’s going to take to convict you. In that sense, I like this, because it’s the chief legal officer of the state saying, you know, what? We’re going to listen to everybody and just go check. We’re going to try to do right thing for people. I like it a lot.
Query 2: A large media consortium is pressing Derek Chauvin trial Judge Peter Cahill to release juror names, profiles, questionnaires and original verdict forms from the proceeding that led to a guilty verdict in George Floyd’s murder. Should Judge Cahill honor the media’s request?
Amara: To me that’s a question of when and not if. I suspect that information will be made public. It’s just a question of whether that information right now is absolutely necessary. At this point, you could see a scenario where maybe releasing this information creates a public narrative or story as we’re going into this next set of trials. So it might be after the entire saga of all these officers’ trials are complete and each case has kind of come to its conclusion. That’s when maybe you’ll see the names released publicly. But yes, to me they will be and should be released. It’s just maybe a timing question.
Corson: I would just answer that in a general way. In order for the legal process to work, especially in today’s world, I think jurors need to feel safe and that, if they make a decision, there’s not going to be retribution or a negative consequence. I think it’s better to protect those jurors and let our process be neutral and objective. People should be able to make decisions without fear of some type of action against them. I think it would be a mistake to release that information.
Hottinger: I think [the media makes] persuasive arguments. However, I hope the jurors get a say in whether they want their names released. I think, in the end, he probably should release the jurors’ names. Those arguments are very persuasive to me, anyway.
[Editor’s note: In a memo accompanying her motion to release the jurors’ names, attorney Leita Walker noted that media organizations waited several months out of respect for the court’s concerns about juror impartiality and safety. However, she wrote: “Courts cannot wait to release juror names until the day that every juror is ready to speak. They cannot wait for the day there is zero risk of a juror facing some unpleasantness from some member of the public. Those days will likely never come.”]
DeJournett: I believe in the free press. But in this instance, no, he should not. I think the world is a very volatile place. If someone wants to willingly come forward to give their insight, that’s OK. If somebody fears for their own safety and it’s not in their best interest after the duty they did for our state, then they should be allowed to remain confidential.
Spano: This is a side issue. But in truth, I am beginning to wonder if it’s a good idea for Democrats, for example, to picket people’s houses. That’s happening. So when it comes to jurors, it feels to me like something crazy could happen. Freedom of Information is beginning to bang up against a very, very screwed-up society. I’m just kind of at a loss right now. I know people and I’ve talked to people who are very firm about these things—that the public has a right to know. But bad stuff keeps happening.
Query 3: The federal Centers for Disease Control and Prevention (CDC) on Tuesday issued a new temporary eviction moratorium after its year-long eviction ban expired on July 31. It probably will be challenged and the Supreme Court has indicated it likely won’t uphold any moratorium not passed by Congress. Do you support what the CDC did here?
Amara: The CDC’s goal is to focus on public health. And it’s very clear, when millions of people are removed from their homes, that’s a public health problem. So as long as they have the authority to do so, I’m okay with it. But ultimately, this is going to have to be a political decision. The reason so many people are on the verge of being evicted is because they don’t have the resources to pay their rents or mortgages because of COVID. I think legislators, whether it be the state legislature or nationally in Congress, are going to have grapple with that. There is no pure legal solution here. We’re going to need a political policy solution.
Corson: I would say I am concerned. I think that we operate with the idea that we want to protect tenants from being wrongfully evicted if they don’t have the resources and COVID has impacted them. But at that the same time, we have to balance that against the need for landlords and people who own property to have some income from that property, to maintain the property and not have to raise their rental rates just because they are losing so much money. My view of most things is that I prefer a process where people on both sides of the aisle—whether it’s in Congress or the state legislature—can discuss it and come to an agreement. I prefer that type of legislative action versus administrative action that doesn’t allow for a process.
Hottinger: I have somewhat of a conflict, since I used to represent somebody in a case on the moratorium. So that’s a caveat. But I think that it should be handled as [President Joe] Biden has a handled it—very carefully. There has got to be an end to the moratorium. I don’t think there’s the money to continue to fund it. So I guess I support the CDC’s position, but it’s getting foggier and foggier here as we go down this trail.
DeJournett: No, I don’t. There are employment opportunities. And people that own those properties and allow their properties to be rented, they have mortgages, they have bills to pay, too. So unfortunately, no, I do not agree with the with the process that the CDC did. Nor do I agree with the extension of the moratorium.
Spano: Yes. To me the political side is paramount here. And that is that a whole bunch of people without a lot of money are going to be wandering around homeless. Any way you can stop that, you ought to do it. But we know that this Supreme Court has nothing like that feeling, about anything. So if it doesn’t fit what they say is jurisprudence, then they’re going to say no.