I wanted to wait a day or two to sift through the Chauvin verdict.\u00a0 It was a case that saw a good deal of side-switching:\u00a0 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\u00a0 —\u00a0 ones who reflexively root for the defendant simply to give “the system” its comeuppance\u00a0 —\u00a0 were eager for this particular defendant to get hit with both barrels.<\/p>\n
My own view is that choosing sides in that way confounds what the rule of law does and ought to do.\u00a0 But it was also a window into a good deal of thinking that goes on below the surface.<\/p>\n
<\/p>\n
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.\u00a0 If that argument is made here, it will lose.<\/p>\n
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.\u00a0 If the jury believed that, as on appeal from a guilty verdict we must assume it did, Chauvin cannot prevail on an insufficiency claim.<\/p>\n
Conservatives are correct that this trial should have been moved outside Minneapolis, where there was a mob atmosphere.\u00a0 Mob justice, or even the aroma of mob justice, is antithetical to what we do in this country.\u00a0 But the failure to move the trial will not, I predict, be sufficient to get the case overturned on appeal.\u00a0 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.<\/p>\n
Courts of appeals are loathe to second-guess the trial judge, who alone has firsthand knowledge of the atmospherics of the case.\u00a0 The judge here seemed fair minded, and was well aware of the danger.\u00a0 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.\u00a0 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.\u00a0 Even if the appellate judges would have done it differently (as I would have), that is not the standard.\u00a0 The standard is abuse of discretion, and that will be a bridge too far for Chavin’s appeal.<\/p>\n
Liberals and quite a few libertarians are, to say the least, overjoyed at the verdict.\u00a0 And let’s not be reluctant to say why.\u00a0 It’s because a white policeman got convicted and will now be going to jail.\u00a0 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.\u00a0 It was about the narrative.\u00a0 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.\u00a0 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<\/a> and here<\/a>.<\/p>\n Still, for more thoughtful libertarians, there might be some less welcome lessons here if they can bring themselves to look.\u00a0 One is that jury nullification\u00a0 —\u00a0 always a libertarian favorite\u00a0 —\u00a0 might not be such a great idea after all.\u00a0 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<\/em> 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).<\/p>\n 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.<\/p>\n A second lesson is for our Righteous Friends in the organized criminal defense bar.\u00a0 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<\/em> for the most despised defendant.\u00a0 We heard that over and over, for Timothy McVeigh, for Dzhokhar Tsarnaev, for Zacarias Moussaoui.\u00a0 We hear it for every grotesque rapist and every child killer.<\/p>\n Did we ever hear it for Derek Chauvin ?\u00a0 Not that I can recall.\u00a0 The virtue-signalling (or more correctly, virtue-bellowing) of the defense bar turned to cricket-chirping silence when the defendant was a cop.\u00a0 Then, it was no time for an insistence on fairness.\u00a0 It was time to snarl, no-justice-no-peace.\u00a0 It was a time for steely-eyed accountability<\/em>, and for the reckoning<\/em>.<\/p>\n Q:\u00a0 And what does the big defense bar turnaround tell us?<\/p>\n A:\u00a0 That it was so much bunk all along.\u00a0 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<\/em> would despise.\u00a0 When, however, its a person the defense bar<\/em>\u00a0 despises\u00a0 —\u00a0 like, say, a policeman\u00a0 —\u00a0 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.<\/p>\n Goodness gracious.\u00a0 It’s enough to give hypocrisy a bad name.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" I wanted to wait a day or two to sift through the Chauvin verdict.\u00a0 It was a case that saw a good deal of side-switching:\u00a0 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\u00a0 —\u00a0 ones who reflexively root for the defendant simply to give “the system” its comeuppance\u00a0 —\u00a0 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.\u00a0 But it was also a window into a good deal of thinking that goes on below the surface.<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[37],"tags":[],"class_list":["post-3531","post","type-post","status-publish","format-standard","hentry","category-notorious-cases"],"yoast_head":"\n