The Chauvin Verdict and Its Unwanted Lessons (for Both Sides)

I wanted to wait a day or two to sift through the Chauvin verdict.  It was a case that saw a good deal of side-switching:  Many on the right who normally root for a conviction were ready to find reasons there shouldn’t be one here, while people on the left  —  ones who reflexively root for the defendant simply to give “the system” its comeuppance  —  were eager for this particular defendant to get hit with both barrels.

My own view is that choosing sides in that way confounds what the rule of law does and ought to do.  But it was also a window into a good deal of thinking that goes on below the surface.

I represented the government in many cases in which the main issue the defendant presented on appeal was that the evidence was insufficient to sustain the conviction.  If that argument is made here, it will lose.

There were two big problems Chauvin could not overcome, one legal and one factual. The factual problem was that he kept his knee on Floyd’s neck well past the time resistance had stopped. To the jury, that understandably looked malicious and cruel, and thus adequately (if not overwhelmingly) supplied the mens rea component for a conviction on second degree murder. The legal problem was that, under Minnesota state law, a person can be guilty of murder even if his actions were only part of the cause of death. With that as the state of play, Chauvin was in a world of hurt even if the jury believed (as it should and may well have) that Floyd had already ingested a potentially fatal amount of fentynal. The state put on enough evidence that the major (or possibly the only) cause of death was asphyxiation.  If the jury believed that, as on appeal from a guilty verdict we must assume it did, Chauvin cannot prevail on an insufficiency claim.

Conservatives are correct that this trial should have been moved outside Minneapolis, where there was a mob atmosphere.  Mob justice, or even the aroma of mob justice, is antithetical to what we do in this country.  But the failure to move the trial will not, I predict, be sufficient to get the case overturned on appeal.  In that regard, it’s worth remembering that all the Watergate defendants got tried in DC where the whole town hated them, but their convictions got affirmed over a failure-to-change-venue claim.

Courts of appeals are loathe to second-guess the trial judge, who alone has firsthand knowledge of the atmospherics of the case.  The judge here seemed fair minded, and was well aware of the danger.  He went so far as to single out the execrable Maxine Waters for her ugly and menacing remarks even as the jury prepared to deliberate.  The reviewing court is very likely to conclude that he did not abuse his wide discretion in refusing to move the trial, or in thinking that voir dire and cautionary instructions were adequate to protect deliberations from malign influence.  Even if the appellate judges would have done it differently (as I would have), that is not the standard.  The standard is abuse of discretion, and that will be a bridge too far for Chavin’s appeal.

Liberals and quite a few libertarians are, to say the least, overjoyed at the verdict.  And let’s not be reluctant to say why.  It’s because a white policeman got convicted and will now be going to jail.  That the evidence was sufficient to sustain a conviction for some degree of homicide (as in my view it was) is not the point, because this case was not, in their view, ever about the evidence.  It was about the narrative.  That is why Ms. Waters and legions of people who think as she does were ready to take to the streets in the event of an acquittal no matter what the trial showed.  As we have seen just in the last 24 hours (and for long before then), it’s the hate, not the facts, that are driving this train, see my posts here and here.

Still, for more thoughtful libertarians, there might be some less welcome lessons here if they can bring themselves to look.  One is that jury nullification  —  always a libertarian favorite  —  might not be such a great idea after all.  The pro-police sentiment that libertarians so often say confounds police accountability could easily have resulted in an acquittal if a police-friendly jury felt like it wanted to nullify the state rule that a defendant may be convicted if his behavior constitutes any significant contributing to the victim’s death (which would be a reasonable position; one might plausibly believe that a conviction should require that the defendant’s acts be the sole cause of death).

It would be very unfortunate if the fact that police officers can be defendants is what it takes to get libertarians to re-think their “anything-goes-if-it’s-what-this-particular-jury-wants” stance, but that’s where we are, I fear.

A second lesson is for our Righteous Friends in the organized criminal defense bar.  For years they’ve been bellowing that we must bend all legal protection and go the extra due process mile for even the most despised defendant — indeed, especially for the most despised defendant.  We heard that over and over, for Timothy McVeigh, for Dzhokhar Tsarnaev, for Zacarias Moussaoui.  We hear it for every grotesque rapist and every child killer.

Did we ever hear it for Derek Chauvin ?  Not that I can recall.  The virtue-signalling (or more correctly, virtue-bellowing) of the defense bar turned to cricket-chirping silence when the defendant was a cop.  Then, it was no time for an insistence on fairness.  It was time to snarl, no-justice-no-peace.  It was a time for steely-eyed accountability, and for the reckoning.

Q:  And what does the big defense bar turnaround tell us?

A:  That it was so much bunk all along.  The defense bar’s foot-stomping about justice for “the despised” was only a maneuver to seize the moral high ground (and thus tactical litigation advantage) when the defendant is someone a normal person would despise.  When, however, its a person the defense bar  despises  —  like, say, a policeman  —  then what we get is radio silence, interrupted only, if loudly, by the the defense bar’s friends reminding us that, if there’s anything short of a conviction, you can kiss your city goodbye.

Goodness gracious.  It’s enough to give hypocrisy a bad name.

 

 

 

 

4 Responses

  1. Steve Milani says:

    Bill, I don’t pretend to speak for the defense bar but my feeling is that many in the bar viewed this as “the system” being put on trial more so than an individual defendant.

    • Bill Otis says:

      Steve — You might well be right about that, but if you are, it reinforces rather than blunts my point.

      WHY would the defense bar see Derek Chauvin as being “the system” more than an individual? Isn’t the Number One goal of the defense at trial to “humanize” the defendant, i.e., to show the jury that he’s something more and different from just this one act? That, yes, he might be a member of the Crips or Bloods (or whatever his gang is), but he’s more than that — a son, a brother, a hard-working auto mechanic (or something) with hopes to better himself? Why did the defense bar so thoroughly forget that 100% of that is also true of Chauvin?

      I think the answer boils down to one thing: hatred of the police qua police. In other words, and as I was suggesting, the defense bar doesn’t really believe that the public must put aside its fury at the defendant because he did something dreadful. It believes something quite different: That there’s not a thing wrong with fury, and the lynch-mob impulses that come with it, if the defendant did something THE DEFENSE BAR views as dreadful. But that’s nothing more than giving yourself a pass for exactly the same vicious attitude you (correctly) condemn when the public at large shows it.

      As I say, it’s enough to give hypocrisy a bad name. P.S. This is not to condemn ALL defense lawyers. Some, including you so far as I’m able to tell, are able to stand outside any individual case and apply the same standards of independence of mind and insistence on fairness across the board. But I ask your indulgence for my noticing — as I had no choice but to notice — the virtually complete absence in this case of the “we-must-protect-even-the-most-despised” theme that the defense bar would ordinarily be playing at 10,000 decibels for a defendant as thoroughly condemned nationwide as Chauvin was.

  2. Steve Milani says:

    Bill, I think the silence of the defense bar isn’t about hatred of the police. Sadly, I think it has to do with the same factors that led to Simon and Schuster’s decision not to distribute% Sgt. Mattingly’s book. It is much easier to stand on principal publicly when it doesn’t affect the bottom line.

    • Bill Otis says:

      The cowardice of good people who see the truth but won’t speak it out of fear is one of the main things that will do us in. You and Doug Berman are on one side of this debate substantively, while Kent and Mike and I are on the other. Our differences are real and serous. But when push comes to shove — that is, when our fruitcake erstwhile “allies” (QAnon on the right and Antifa on the left, and their fellow travelers) — take over, it will be up to the five of us, and like-minded others, to rescue the country. I hope there are enough of us, and that we have what it takes. But I’m a good deal less than sure on either count.