I’m afraid I’ve pissed off a friend. Well, it would be more accurate that I’ve further pissed off a friend who was already pissed off. They were already pissed off because former Minneapolis police officer Derek Chauvin–who, of course, is charged with the murder of George Floyd–has asked the court to 1) delay the trial and 2) reconsider an earlier change-of-venue motion. I further pissed them off by saying both requests were reasonable.
I was asked How can you defend the cop who murdered George Floyd? My friend either forgot or was unaware that I’d once made a living helping to defend people accused of all manner of awful crimes. For seven years or so, I was a private investigator specializing in criminal defense. Murder, rape, arson, child abuse, animal abuse, pick an awful crime and there’s a good chance I’ve helped defend somebody accused of it. Almost all of them were factually guilty; almost all of them had actually committed the crimes of which they were accused.
I could truthfully argue that I wasn’t actually defending the accused criminals; I was defending the US Constitution, which guarantees everybody the right to a fair trial. I could truthfully argue I was actually defending civil liberties. Because the ONLY way to insure the innocent get the full protection of the law is by forcing the State to prove their case beyond a reasonable doubt within the strictures of the law–and forcing them to prove it every single time. That means defending the guilty as vigorously as the innocent.
But here’s the thing: it’s going to be incredibly difficult–maybe impossible–for Derek Chauvin to get a fair trial. It’s going to be incredibly difficult–maybe impossible–to find 14 jurors (twelve jurors plus two alternates) who will be willing and able to put aside everything they ‘know’ about the case and decide on a verdict based solely on the evidence and the law.
Most of the people I know are dead certain Chauvin is guilty–that he murdered George Floyd. There are other folks who are certain he caused Floyd’s death, but aren’t certain about Chauvin’s intent (which matters in a murder case)–maybe Chauvin was reckless, maybe he was indifferent, maybe he was just negligent. There are folks who think Floyd was somehow complicit in his own death–that he wouldn’t have died if he’d made better decisions. And there are folks who think Floyd’s life just doesn’t matter–that Black lives don’t matter. Very few folks are capable of putting their thoughts and beliefs aside long enough to focus purely on the evidence.
That pool of potentially impartial jurors HAD to decrease when the city of Minneapolis announced it had reached a US$27 million civil settlement with the Floyd family. I suspect a lot of potentially impartial jurors heard that and thought, There’s no way the city would cough up that much cash unless they knew they were responsible for killing that man.
So yes, I think there are legit reasons for delaying the trial. And yes, I think there are legit reasons to hold the trial in a different jurisdiction–one that hadn’t gone through weeks or months of protests, demonstrations, and riots as a result of Floyd’s death. I think the requests are legit because–and this will also piss off some/most folks–right now Derek Chauvin is innocent. Every defendant walks into a criminal court as an innocent person; the State has to prove they’re guilty. That’s the core principle of our justice system. Innocent until proven guilty. It has to apply to Chauvin, just like it applies to any accused criminal.
That said, I hope the State does its job; I hope they’ve followed the law and legally obtained enough forensic evidence to convince a jury to convict. I hope the defense team does their job; I hope they hold the State to the letter of the law and force them to prove their case. And I hope the court does its job; I hope the court abides by the letter and spirit of the law to insure Chauvin gets a fair trial.
Years ago, when I was doing criminal defense work, there was a bailiff at the Strafford County Courthouse–a former Sheriff’s Deputy who’d been injured in the line of duty and had a bum leg. While I was waiting to testify in some trial, he told me this: “I’m a great believer in mercy; but justice just keeps happening.” I agree with him about mercy; I’m not convinced justice happens as often he believed. But I hold out hope that it will.
EDITORIAL NOTE: One of the problems with being involved in the criminal justice system, even from a defense perspective, is the tendency to focus on specific issues rather than the broad system itself. I was asked a question about delaying and moving Chauvin’s trial, and I addressed that question–and only that question.
I wasn’t addressing the criminal justice system itself, but yes lawdy, it is wildly fucked up. And I didn’t address the obvious irony that the legal protections that are–and should be–afforded to Derek Chauvin were denied BY Derek Chauvin to George Floyd. Almost every criminal trial is about protecting the rights of people who refused to recognize the rights of their victims.
gregfallis.com 
My only concern is that people of George Floyd’s ethnicity are rarely afforded equal treatment under our criminal justice system. Currently watching “When They See Us” about the Central Park five. So damn hard to watch!
Chauvin will get kid gloves because he is white and in particular a police officer. He should be tried and convicted on first degree murder (where ever the hell they do it)
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From reading this post with its reminder of the jury trial requirements, that would disqualify you from the jury pool.
Unfortunately, some potential jurors who believe that Chauvin should be acquitted before hearing the case (as well as some people who believe that Chauvin should be convicted from hearing the case) as presented will lie in order to be seated on the jury.
I allege that this is how the Bundys were acquitted in their California trial – they had ringers in the jury. Can’t prove it, don’t know if proving it would affect anyone – maybe Greg knows if jurors who lie to get on a jury can face consequences.
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this is how the Bundys were acquitted in their California trial – they had ringers in the jury.
I don’t know that they had ringers, but they certainly had a sympathetic jury.
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I did say “I allege” didn’t I? Yes, I did, because I have no proof whatsoever that there were actual ringers – just that there was big excitement in some of the commentary surrounding the trial. I seem to remember jurors gathering after the trial to chit chat with the acquitted and friends, also, but that could be biased memory and I won’t claim it as fact.
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Jurors are sworn in as a jury, which means they’re required to swear an oath saying they’ll pay careful attention to the trial proceedings, that they’ll abide by the court’s jury instructions, and they’ll render a verdict that accords with the law and the evidence. In the US, each state has its own juror’s oath, but they all basically say the same thing.
Technically, if a juror deliberately lies about a material fact during voir dire, then that juror may be open to civil or criminal repercussions. But in reality, that almost never happens because unless the lie is really blatant, it’s hard to prove in court. The usual response to juror misconduct is to retry the case.
That said, there’s also jury nullification. Jurors sometimes agree the defendant is factually or technically guilty of the crime they’ve been charged with, but will vote to acquit anyway. The jury may believe the criminal act was justified or that the law is unjust/unfair.
Personally, I suspect that was the case in the Bundy trial. That seems more likely to me than a juror deliberately lying to get on the jury just to acquit them–though that’s certainly possible.
Here’s the conundrum of jury nullification. It sometimes seems the right thing to do. If, for example, I was a juror in the Rosa Parks case, I’d have to admit she knowingly and willfully broke the law by refusing to surrender her seat at the front of the bus to a white passenger. But that law, to me, was clearly unjust. So do I vote to convict her because she’s guilty of behavior that shouldn’t be criminal? Or do I vote to acquit even though she’s clearly guilty of the crime?
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More recent example of an opportunity for jury nullification – Zimmerman, for shooting Trayvon Martin. If I remember correctly, one of the jurors came out and said she wished shed voted to convict but that the judge’s instructions were heavily slanted toward acquittal. I don’t remember if the law itself was on the judges side in this, but this is the case where I first learned and retained what jury nullification is. Didn’t happen in this case, and there was some debate that what happened there was a [corrupt – well, maybe corrupt or aware of Zimmerman’s da] judge (judge nullification? Nah, it’d never stick) influencing the jury to acquit.
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Also – I guess sympathy for a stranger might account for any comradery that went on after the trial, so there is that.
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people of George Floyd’s ethnicity are rarely afforded equal treatment under our criminal justice system
That’s sadly true. To be fair, almost every defendant in a criminal trial is there because they violated the rights of some other poor bugger. Chauvin is no different in that regard–except that it was his explicit duty to protect others.
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Thankyou for a thoughtfully argued defence of due process
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