Defending Derek Chauvin

His trial counsel, Eric Nelson, was paid by the Minnesota Police and Peace Officers Association, and likely not nearly as much as he should have been paid given how cases of this magnitude of seriousness and high profile play out. But it’s no longer footing the bill and the Minnesota Supreme Court has refused to provide Chauvin, convicted of murdering George Floyd for anybody living under a rock, with a public defender.

The Minnesota Supreme Court on Wednesday denied Derek Chauvin’s request for a public defender as the former Minneapolis police officer prepares to appeal his murder conviction in the death of George Floyd.

Chief Justice Lorie Gildea signed an order that said Chauvin failed to prove that he qualifies for representation from a public defender, according to the Star Tribune.

The court determined that Chauvin did not illustrate that he was too poor to pay for a private attorney.

Too poor to pay is a bit of a tricky issue. While different states employ different criteria to determine whether a defendant is indigent and therefore entitled to be provided with a lawyer for his defense, the general notion is that if a person is possessed of sufficient assets to retain counsel, he must use them.

The chief justice wrote in the order, citing state law, that a defendant is considered too poor to provide their own lawyer if they, “through any combination of liquid assets and current income,” are not able to finance their own attorney.

The former police officer claimed in an affidavit that he has no earnings other than nominal prison wages he has received, according to The Associated Press. He contended that his debts are larger than his assets.

Chauvin’s income doesn’t contribute much to the cause, but he likely had some assets and savings from his time as a cop. How much is unclear. Chauvin’s claim that his debts exceed his assets is also a tricky problem, although without more detail it’s hard to be sure. To whom are his debts owed and are they real or paper debts? Does he owe his parents a mil for covering his cost of living pending his conviction? Are they going to collect? Debts can be used to cover assets even when they’re not likely to ever do so, leaving the assets effectively unencumbered for use to retain a lawyer.

Then again, should a defendant be required to sell all his assets, to render himself destitute, to exercise his right to appeal a conviction?

But what does Chief Justice Lorie Gildea think constitutes sufficient assets for Chauvin to retain counsel? The other side of this equation is what his appeal will cost. Going out on a limb here, I doubt there is a chance in hell he’s got enough, whether in savings or assets, to pay for a good lawyer to take his case. What’s Chauvin’s worth, $10,000? $100,000? That ain’t gonna cut it for a really good private lawyer.

This appeal won’t come cheap, both because of the work involved which will be scrutinized to the nth degree, the time-suck of media and the unduly passionate doing everything in their respective power to grab a piece of the lawyer’s attention while he’s trying to work on the brief, and the reputational hit the lawyer will take for representing one of, if not the, most hated defendants in the nation. Who needs that?

Of course, as some wag will no doubt argue, a lawyer could take on the case pro bono, because of his love of the law and Constitution, and perhaps that will end up being the case. But you can’t bank on that happening, and a defendant’s constitutional right to the assistance of counsel shouldn’t hinge on there being some lawyer somewhere willing to give it up for charity. We have bills to pay too, you know.

It is, of course, possible to find a lawyer willing to take the case for a pittance. There is always a lawyer to be found who won’t let a case walk out the door if he can glom enough money for a dinner at Cracker Barrel out of it. But then, this isn’t the lawyer who is likely to provide zealous representation, as his efforts run out about the same time as the money, and his effort wasn’t much to begin with. Then again, other defendants have likely suffered his representation, and they are no less worthy of competent counsel than Chauvin.

The appeal of Derek Chauvin presents a test of whether society will provide a despised defendant with the means to challenge his conviction. As the court found, he’s not entirely indigent, assuming his debts weren’t legitimately in excess of his assets, and so he’s not in exactly the same boat as the defendant who has nothing. But he’s also extremely unlikely to have the wherewithal to retain counsel and mount an appeal in this particular case. So he’s caught between a rock and a hard place, and there likely won’t be too many people shedding tears for his predicament. Will Chauvin be left to dangle, tough nuggies killer?

Another possibility is that he be given a public defender, who will no doubt be thrilled at the prospect of defending Chauvin on appeal, and required to contribute whatever assets the court deems liquid to the cause. Whether that’s available under Minnesota law is unknown, and even if it is, puts the defendant in a precarious position if it turns out that he is unable to comply with the conditions placed on his being provided a public defender.

What is clear, however, is that not even the hated Derek Chauvin should be denied his right  to the assistance of counsel to appeal his conviction. As the court has denied him indigent counsel, they have set up a scenario where Chauvin’s rights may be in peril and the outcome of his appeal suspect. It might not be socially savory to send a public defender to Chauvin’s cell, but the prospect of his conviction being affirmed without benefit of zealous representation won’t be a shining moment for justice either.