There is no justice for George Floyd. The cries for such a result raise a straw man. Floyd is dead, and shouldn’t be dead. There is no remedy for that, and our system promises none. In the criminal justice system, the role of what would be the plaintiff in a civil proceeding is taken by the State, or “the People.” Justice is sought by society, to validate the system of the rule of law, and to ensure the safety and integrity of society and civilization.
Whether or not the officers responsible for George Floyd’s death—and absent the revelation of some miraculous intervening cause that nobody suspected, like Floyd being bitten by an escaped Black Mamba while the police officer was kneeling on his neck, there is no reasonable argument that the officers were not responsible for his death—are convicted and punished to anyone’s satisfaction is not the measure of “justice” in this case. The measure of justice is whether due process is followed, whether the officers are fairly tried and competently defended, whether their prosecution obeys the rules of evidence and follows the law in all other respects, whether a competent and fairly vetted jury evaluates the evidence presented and delivers a verdict consistent with that evidence, following a trial overseen by an impartial judge, who then declares a fair punishment in light of the verdict. That is all our system can achieve. Whether all citizens, or any citizens at all, like or approve of the final outcome is irrelevant, and has nothing whatsoever to do with “justice for George Floyd.” The system seeks justice in a broader sense.
I haven’t heard the recordings, but I assume that “No justice, No peace” is the mindless chant of choice as it has been in so many other race-related protests. The slogan is per se unethical: it’s a vigilante threat, and should be accorded exactly the respect it deserves: none. “Punish who we want punished, as quickly as possible or else” is the message sent by that chant, and society’s answer to it must be a resounding “No.” The media’s romanticizing and supporting that sentiment is irresponsible and dangerous. The justice system will proceed as the law requires, and experience shows that haste motivated by activist threats and journalists’ incitement leads to travesties of justice, often to the benefit of the guilty.
The rioters are, in essence, taking the position of lynch mobs in the Old West of myth and legend. (I have no idea how often citizens actually hanged accused criminals before trials; I know it happened.) In the typical movie scenario, a courageous sheriff cocks his rifle or shotgun and tells the mob that he will use deadly force to ensure that the man in his custody gets a fair hearing before a judge and jury. That was the correct response then; it is the correct response now. Justice requires it.
Commenter zoebrain raised the question of whether a fair trial is possible after the threat of continued violence and rioting has been made palpable. “As for successful prosecution, good luck finding an untainted jury. A fair trial may be impossible. If I were a juror, I’d fear for my life should I not convict on all counts. Now while that wouldn’t affect my own vote, it would be unreasonable for me to expect any of the other jurors to feel the same. I’d never perjure myself to gain a plea deal taking a death sentence for me down to a week’s probation. Again, I don’t expect that attitude to be viewed by others as anything other than insanity,” she writes.
The idea behind such rioting is in part to eliminate the option of a fair trial. This is especially true thanks to the bizarre anomaly of our system not viewing it as double jeopardy when the same defendant is tried for a civil rights violation on the same facts after being acquitted of murder charges, as in the Rodney King trials. The officers involved in King’s beating were going to be punished, it was decided, because the alternative was destructive civil unrest. Yet we have seen many cases where the shadow of riots did not prevent a fair trial, and where courageous jurors refused to capitulate to the implied threats on their lives.
The officers in the Freddie Gray case were acquitted, because there was no evidence. They shouldn’t have been charged. George Zimmerman was acquitted, and correctly so. In Ferguson, despite a wave of media disinformation aimed at promoting his guilt, Office Darren Wilson wasn’t charged with a crime by a citizen grand jury. There are counter examples, to be sure; one may be the O.J. Simpson trial. Still, the American jury system had generated plenty of ethics heroes.
One thing we can conclude here and now. Justice is not served by allowing public emotionalism and media sensationalism to drive the criminal justice process. Efforts to encourage that distortion should be condemned, without sympathy or exception.
Ethics Alarms 
I’m sure the woman in TX whose home he forced his way into at gun point is okay with it. Such a gentle giant.
This is a very frustrating issue.
Being in the area (my office did not burn down; sadly neither did my nearby competitors (I guess God loves the lawyers-though all the liquors stores and tobacco shops burned down, so maybe God is treating us as Job)), many on Facebook have been asking why it was taking so long to arrest these officers. I decided to try to educate them about how charging decisions get made (“yes, they probably have probable cause to arrest him now, but…”). Many were receptive. But, even while receptive, said, “yeah, but they better make an arrest soon or there is going to be more rioting.” I explained that you don’t give in to the mob. They argued that something had to be done to these people, which I described as lynch mob mentality; they might as well kill him and drag his body through the streets (you know, typical Facebook argumentation techniques).
The fun part came when one guy asked me very civilly whether I lived in Minneapolis; he was a resident in the area and very upset by everything. When I responded “no,” he suggested I had no “skin in the game.” In a very lawyerly move, I explained that my office building was right between the building that burned down “yesterday” (Wednesday) and the building currently on fire (Thursday), that my business might be gone by morning, and that I still did not want to give in to the mob, just to get them to stop.
He apologized (a stranger on Facebook actually apologized to me), an apology I readily accepted.
Of course another resident chimed in that I was only worried about my business, and all the papers that I would lose. I explained that those papers were not my papers; they are the papers of hundreds of clients that would suffer by their destruction. She grumbled on that I was worried about work, while she was worried about her life (not to diminish her fear, just her reasoning).
Today, minor fire and smoke damage (they tried to burn it down), but the building is standing. And, law enforcement is out in force so, while I can’t get in, it will likely not get any worse.
And, it appears that they have made an arrest and brought charges. I guess that means there will be no more unrest…right?
-Jut
My goodness. Now EA is even providing reportage from on the ground in real time on national ethics issues. First Mrs. Q and now Jut. Good luck, Jut. I got a closing binder for a loan I’d closed for a client out of the lender’s NYC law firm a week or so before 9/11 and the destruction of their offices in the World Trade Center. Not sure it was moral luck, but it was luck. Otherwise, the client’s loan docs would have been fluttering all over lower Manhattan. And this was early in electronic archiving and transmission of documents. Twenty years ago.
I am relieved that your office has not been damaged. Minneapolis does not deserve this.
jvb
I wouldn’t count on that, Jut.
Even with the curfew, I heard there are people out.
On the bright side, I had several neighbors ask me about this and I tried to explain the reason to delay bringing charges.
The more I thought about this, it appears that this officer was undercharged. He was charged with Third Degree Murder (and lesser counts). There are HARD cases to be made for First Degree and Second Degree (maybe not First), but they could be made, but not on the Mob’s timeline. And, I explained exactly how I would defend this guy, pushing every button I had, including a speedy trial demand (like many states, they are not pulling juries right now). I would pound that constitutional button as hard as I could and it might get to the US Supreme Court at some point.
From here on, it is all strategy; and the State made its move.
My neighbors are non-lawyers (“normals” as I explain to my wife); they don’t entirely get the process. Which can be fine, as long as you are not throwing bricks at the system.
So, if it burns down tonight, I still taught 3 people something about the system.
(Gotta get paid for that, JUT! Dammit!)
-Jut
Justice will be served in its time. The social justice they demand NOW is revenge and excusing anything the rioters and looters choose as revenge regardless of who and what is destroyed in the process.
Unfortunately we have trained alleged victim groups to behave in this way because we confuse a lack of conflict for peace when instead it is only a ceasefire.
Jack said:
There is no justice for George Floyd. The cries for such a result raise a straw man. Floyd is dead, and shouldn’t be dead. There is no remedy for that, and our system promises none.
Indeed.
What these people mean by “justice” is actually “vengeance.” That’s all it can possibly mean, because nobody wants to hear about how the officers were afforded “due process,” or that they have been fired or even arrested.
What they are talking about is an outcome, not a process. The only definition of “justice” that will suit most of them is life in prison or worse, and more importantly, they are implicitly demanding an example be made.
I am somewhat sympathetic to the demand of an example — when we entrust the police with our lives and they so flagrantly violate that trust, it just doesn’t seem enough to merely toss them into the justice system and hope for the best. Somehow, the aggravated nature of the most serious of trust violations demand consideration.
As you say, justice is afforded only society by the validation of our laws through due process. If that process produces an outcome less than what the protesters want (and I strongly suspect it will), it will be used as an example of injustice instead of what it really is — an insufficient remedy for some, but not all, and the system working as designed. But for many, only the outcome matters.
In the typical movie scenario, a courageous sheriff cocks his rifle or shotgun and tells the mob that he will use deadly force to ensure that the man in his custody gets a fair hearing before a judge and jury. That was the correct response then; it is the correct response now. Justice requires it.
Indeed, but here’s the problem. The sheriff that cocks that gun before the mob in your story is always fully prepared to use it, and the mob always reluctant to test the limits of his forbearance.
But today’s mobs are not so cautious. They are willing to be shot and even killed, so the police will not shoot them. Instead of ordering the police to protect the property of innocents, the powers-that-be order them to stand aside and allow its destruction. Where this will end is individuals taking the law into their own hands, and using violence to protect their property and interests from the violence of the mob — and for a fact, if they don’t do it, no one will. No matter what one thinks of the propriety of Donald Trump’s tweet relating “When the looting starts, the shooting starts,” (and I don’t think much of it at all from a political leader) he’s right. And when it does, what then?
One thing we can conclude here and now. Justice is not served by allowing public emotionalism and media sensationalism to drive the criminal justice process. Efforts to encourage that distortion should be condemned, without sympathy or exception.
Instead, it is praised. In what universe will this end well?
The world of anarchy Is the only place this ends well where they administer “justice” as they see fit without the inhibitions of law or order. In short gang and mob rule.
Yeah, that’s what it looks like to me, as well.
All I can say is, the money I’m saving by staying at home all the time is going for food for Ol’ Painless — just in case. It looks prescient, too — we had a riot in Louisville last night in the name of George Floyd, and seven people were shot.
They called it a “peaceful demonstration” — I guess because it was only seven and not seventy. They are setting up again for another “peaceful protest” tonight. I wonder what the body count will be this time?
While in the process of applying for a Minnesota concealed carry permit, I studied the law there in comparison to my home state, Iowa. I was surprised to learn that the use of deadly force is not proscribed in Minnesota to defend your property if you so chose. The local District Atty. then is at his option to charge you or not depending on his own opinion of the happening. I found that to be unsettling.
I much prefer the Iowa law that prohibits the use of deadly force to prevent property theft…generally outside of your home or business. Inside your home the risk of bodily harm from an intruder would wipe out that protection for them.
It is surprising that some of the looters have not been shot by business owners though I applaud their good judgement to stay home and not end someone else’s life.
A report on Fox said that an Atlanta business owner successfully deterred damage to his store by standing out front with his standard 30 round magazine, self loading rifle and a revolver. The rioters seem to know that the National Guard does not carry live ammunition, but of the private citizen they were instinctively certain that the opposite was true..
Kent said
I was surprised to learn that the use of deadly force is not proscribed in Minnesota to defend your property if you so chose.
Minnesota is comparatively gun-friendly, although permits are required to purchase handguns. Minnesota does not have a “stand your ground” law though, and by the way, one was enacted Iowa in Iowa a couple of years ago so your recollection is out of date — the “duty to retreat” is no longer a thing in Iowa. A number of other southern, southwestern and midwestern states have “stand your ground” laws. Minnesota does embrace the “Castle Doctrine” to the extent that you may use deadly force if you are in grave bodily harm or in order to prevent a felony within your own home. Iowa specifically names a “place of business or employment” as a location where “stand your ground” applies.
But outside your home and in a business in Minnesota, there is a “duty to retreat,” which means that unless you are cornered by the criminal or in fear of great bodily harm by the perpetrator from which it is either impossible or more dangerous to flee, you may not use deadly force.
In general, it is a bad idea to shoot someone who is simply committing a property crime, even if authorized by law. But if you are defending your business in most “stand your ground” states, you absolutely can. After all, potential looters are not going to request permission to carry off your goods, and if you physically defend your business and become in fear of great bodily harm or death or to stop the commission of a felony, you may defend yourself up to and including deadly force. B&E is a felony in every state I know of.
Chauvin has been charged, third degree murder and second degree manslaughter. A fair trial certainly is problematical. It will be complicated by what the ME said in a preliminary report on the autopsy, that the autopsy yielded no physical evidence that death was caused by asphyxiation or strangulation. Those who believe the whole system is corrupt may zero in on this as indicative of a cover-up.
https://www.startribune.com/read-the-complaint-charging-derek-chauvin-in-the-death-of-george-floyd/570870791/
Ya think? He just happened to die while a 180 pound guy was kneeling on his neck for no good reason. At best, this is a worse version of the Eric Garner case. At least the choke-hold was some kind of known police arrest maneuver, if a disapproved one. Kneeling on a handcuffed man’s neck?
In tort law, there are what are called “egg shell skull cases.” If you illegally touch someone and his head caves in, you’re still responsible for the damage. However, it doesn’t take a medical degree to figure out that kneeling on a man’s neck might kill him. And it did kill him.
In my state anyway, if the officers’ conduct is found felonious (regardless of their intent), and death results (as it obviously did), then the felony murder rule would apply. Regardless, the state will have no trouble assembling a platoon of doctors who can explain how the officers’ actions against a man with the victim’s medical issues were likely to be fatal. As Judge Roy Bean was wont to ask,”How does your guilty ass plead?”