Ethics Reflections And Questions On The Chauvin Verdict, Part I

I haven’t read much commentary on yesterday’s verdict yet. I’m assuming that I’ll have more observations later in the day.

1. Ultimately, it appears that the jury just decided that it wasn’t worth it to acquit Derek Chauvin even if there was reasonable doubt. That’s sad, but the calculation can be defended on utilitarian grounds, meaning that, ironically, the arguably unethical decision to discard the law, individual rights, a fair trial and the integrity of the justice system might have been an ethical decision because it will cause less harm in the long and short run. In other words, it can be defended as a decision in which ethics won and the law lost.

I’m not saying that I would defend it that way, but I acknowledge the argument as respectable.

2. It is important to remember that cases where verdicts were based on emotion, human nature, and sociopolitical dynamics rather than the evidence and strict adherence to the law have occurred periodically, and will continue to do so.

The Nuremberg Trials were travesties from a legal standpoint, and the verdicts “ethical” only in the sense that a formal, solemn statement that some conduct is so heinous that civilization has an obligation to reject it was deemed more important than such niceties as avoiding hypocrisy or respecting the law’s aversion to ex-post facto legal penalties. The trial of the alleged conspirators to murder Lincoln was as rigged as a trial can be. This isn’t an “it happens all the time” excuse for the Chauvin trial, but a reminder that the Chauvin case isn’t the cataclysmic scar on the justice system that many will claim it is.

3. The closest comparison to the Chauvin verdict may be the O.J. Simpson trial, which was a reverse Chauvin. Race had nothing to do with the facts of that case, but the clever defense team, aided by a bungling and out-gunned prosecution, made the trial narrative about racial payback, punishing a racist cop, and metaphorically poking a distrusted police department in the eye. The jury also didn’t want to be responsible for re-igniting the Rodney King riots. How could you blame them?

4. The pressure on this jury was worse, thanks to the news media’s open lobbying for a guilty verdict, the national scope of the previous rioting, and disgustingly, the comments of public officials, including members of Congress and the President of the United States. The speed with which the jurors came to a unanimous verdict also matches the O.J. trial.

I wouldn’t be surprised to learn that there weren’t any deliberations or discussions among the jurors at all. In some of his escape artist appearances, Harry Houdini would immediately shed his shackles, strait jacket or whatever he had been bound with the second he was behind a screen, and sit reading a newspaper until he decided enough time had gone by to make his escape look difficult. Having been on a jury, I know that the paper work you have to complete after the verdict takes a surprising amount of time. They wanted to get out of there so nobody would burn their houses down or hurt their families.

5. The key difference between the O.J. verdict and this one is that a not guilty verdict can’t be appealed. This one will be, and then the question will be whether an appeals court has more integrity and courage than twelve jurors living in a riot-scarred city. This was not a far trial, and Chauvin should get a new one. If he can’t get a fair trial, then he should go free.

6. There was no one on this jury to play Henry Fonda’s “Juror 8” in “Twelve Angry Men.” That’s just chance, of course. I wonder if Juror 8 would have made his stand on behalf of the almost certainly guilty defendant in the movie if he knew that the result of a “not guilty” verdict or a mistrial would be deadly riots.

On the one jury I served on (as foreman), I flipped the verdict. The rest of the jury didn’t understand the judge’s instructions, and I had to explain what standards they had to apply. Would I have had the fortitude to be the lone hold-out to deadlock the Chauvin jury on the grounds that he should not be convicted without a fair trial, which had been made impossible by the rioters and the media?

It’s easy to say I would have, and I hope I would have, but I don’t know.

7. I assume we will hear and read a lot about how the verdict “sent a message.” What message?

That police departments shouldn’t continue to employ mean and sadistic bullies like Derek Chauvin? That it is reasonable to assume that any cop who harms a black citizen is a racist? That the justice system can be manipulated by politicians, activists, mobs and riots? That when someone looks like they are struggling to breathe, you probably should take your knee off his neck? That by becoming a police officer, you accept the reality that a drugged out perp who resists arrest can ruin your life if you don’t react correctly, so you should just let him go, especially if he’s black?

That the public doesn’t understand or care about due process, “innocent until proven guilty,” reasonable doubt or a fair trial, and that politicians and the news media are quite happy to keep it that way?

8. I considered calling this post, “Stop Making Me Defend Derek Chauvin!” There was no way for him to predict it, but the officer’s metaphorical cruelty to a black man tore the country apart, cost millions in property and taxpayer expense, and gave the upper hand to anti-police activists and anti-white racists. I find it impossible to feel sorry for him.

9. Maybe the best message this verdict can send is that having broken ethics alarms isn’t just wrong and anti-social, it’s dangerous.

Someone–parents, schools, our culture— should have taught Derek Chauvin that a long time ago.

34 thoughts on “Ethics Reflections And Questions On The Chauvin Verdict, Part I

  1. I think the worst message that has come out of this trial is that the law really doesn’t matter and vigilante mob justice will prevail. The totalitarian Marxist are taking notes. Violent social justice warriors were publicly empowered in a court of law yesterday by the action of the jury. The jury openly acknowledged by rejecting the law that mob intimidation overrules the judiciary and the Constitution. The question is; how will the social justice warrior mob choose to wield this power today and in the future?

  2. I would have found the results much much easier to defend if it had left out the second degree manslaughter, since the ‘Assault’ was an officially allowed restraint and he was clearly resisting when it was fist applied.

    There were certainly grounds for doubt, but I don’t know how reasonable they actually are. Speculating that the drugs caused him to feel like he couldn’t breathe seems like a strong defense, since the complaints started before any restraint was applied. Conversely, an awful lot of people keep promoting the idea that talking means breathing, but enough air to say something may be completely inadequate to provide sufficient oxygen to your blood. https://www.acpjournals.org/doi/10.7326/M20-4186

  3. I was talking to someone and they said that the Judge has to make a choice and drop two of the three charges/convictions; is that true?

    If it’s true did the jury simply pass the buck to the Judge?

      • Okay, I asked this on another blog and was basically told it was unreasonable and absurd. I asked because I don’t know – even if the question or thought is absurd I’d like to know why.

        Wasn’t the option of waiving a jury trial available? I have to think a bench trial would have given better odds of acquittal in this particular case?

        • Sure, though a judge isn’t obligated to allow it. Juries historically, as we know, are reluctant to convict cops, so that may have cut the other way. But yes, waiving a jury trial when the community seems to be against you is a defensible strategy.

    • That would be my interpretation… Being guilty of both homicide and manslaughter for the death of a single individual is a contradiction in terms.

      One of three things happened–Either the jury was completely ignorant of the law, or they shirked their civic duty by intentionally passing the buck to a future trial, or like Pontius Pilate, they looked at the screaming mob and washed their hands of responsibility.

      In Scott Adam’s podcast, he mentioned he’d cause this outcome if he were on the jury, but added that he’d later publicly condemn the system’s failures to hopefully bring reform.

      • I haven’t read the jury charge yet, but I’m confident that, if conviction on more than one count were against the laws of Minnesota, the judge would have told them so and denied them that option.

        While in most jurisdictions I know, the various degrees of homicide form a “Russian doll” of lesser included offenses, the Minnesota statutes do not appear to. Each of the charges includes at least one element that is not included in the others, even if those elements are so constructed (and since only recently, construed) so that all would be satisfied in most any circumstance that would ordinarily constitute manslaughter in other jurisdictions.

  4. “because it will cause less harm in the long and short run”

    More harm will be caused in the long run. When the mob gets it’s way so publicly, we’ve opened pandora’s box.

    • I agree with you, Michael. The jury appeased totalitarian extremists. Now the totalitarians know that the appeasers will back down when threatened with violence and the goalposts can be moved. Today, they just wanted a conviction. Tomorrow, they won’t even allow a trial.

  5. #6. In this day and age, nobody would be foolish enough to play Juror 8. Once the verdict was announced, the singular focus of Woke World (i.e. “journalists’, politicians, career agitators, etc.) would be to dox and wreak their brand of “justice” on the heretic. And by “singular focus” I mean other than ‘peacefully protesting’, of course.

  6. After the Civil War, freed blacks in the south were harassed and killed by mobs. Any freed slave that resisted would be charged with a crime while their attackers would go free. Balcks were also arrested on false charges, prosecuted with trumped-up evidence, and convicted by biased juries in front of biased judges. This could be considered utilitarian. This was popular and any opposition would result in great harm and civil unrest.

    The Department of Justice was formed by the Ulysses S. Grant administration to prosecute those mobs and seek fair trials for the newly freed slaves. They found there was no way to give a fair trial to the former slaves because judges and juries, if not outright biased, were subject to intimidation by the mob. Grant moved the army in to reestablish at least somewhat fair trials.

    A mob started a fire in a trash can. A teenager put out the fire. The mob was unhappy about this and shot at the teenager, who ran. The mob chased the teenager, knocking him down several times. The people closed to the teen, attacking him, were all convicted criminals. When they tried to take his gun, he shot two of them. One of them admitted that he was a felon in possession of a handgun illegally and he intended to kill the teen. The teen was arrested and charged. His attackers, including the one who admitted to a federal felony, were not charged. The attackers were allowed to establish funds for donations for their medical care. The teen was not allowed to establish a fund for donations to his legal defense.

    We convicted a man because the mob demanded it and we were too cowardly to stand up to the mob. We refused to protect the safety of jurors and witnesses in a trial. Will we next just dispense with the trial and literally throw the person to the mob to be hung?

    How history repeats itself.

  7. Sorry, folks, but I did watch the trial and the evidence of guilt for 2 of the charges was so strong that I would also have concluded it was “beyond a reasonable doubt”. For me, the exception was murder in the second degree, felony murder, as one would have had to conclude that kneeling on the neck was intentional commission of felony assault when it was, by all accounts, an authorized restraint that “evolved” into criminal activity as the incident progressed. The elements of the crimes charged as counts 2 and 3 were all there for a reasonable person to find, although one might argue that a guilty finding on count 2 contradicts then”negligence” part of count 3. This is not, to me, a case similar to “juror number 8” as his arguments were based on reasonable doubt and I see none here.

    • Doesn’t the murder conviction subsume the “lesser” offenses? I’m confused by his being found guilty of three counts for a single death. Anyone?

    • 1. I don’t know what you’re sorry about.

      2. The issue of a fair trial and the issue of reasonable doubt are separate. If Chauvin was deprived of a fair trial, and he was, then the trial is unconstitutional even if he were guilty beyond any doubt at all.

      3. The expert testimony and the post-mortem finding support a conclusion that Floyd would have died if Chauvin had smothered him with kisses. If that’s a juror’s conclusion, then that’s reasonable doubt. You cannot convict a man of murder when the victim was already dying and there was no intervening cause. [NOTE: I originally left out the NOT. Typo. Fixed.]

    • I, too, watched the trial but I found the government’s case to be weak. What made you feel like their case was strong?

  8. I also wonder why you, Jack, consider Chauvin to be a sadistic bully. I know we’ve discussed Chauvin’s prolonged usage of restraint, but to me it seemed reasonable given the hostile crowd surrounding him.

    • The coverage I saw said the prosecution’s use-of-force expert conceded that Chauvin didn’t use as much force as he could have and that his restraint could be considered deescalation. He could have tasered or pepper-sprayed Floyd, but the department’s training told them that the restraint Chauvin used was less dangerous to the suspect than either of those. If you are told that doing something is less dangerous and it has almost no chance of killing the suspect and the suspect dies, are you at fault for believing the experts?

    • Check the blog. The New york Times investigation of Chauvin showed no evidence of racism, but many examples of excessive force, as well as an unusual number of complaints. This is deemed to be the reason he didn’t take the stand: he would have opened himself up to cross examination on the matter of his record for brutality.

      • Nineteen complaints, of which seventeen were dismissed, over a twenty year period of service in a high crime area doesn’t tell me he is a sadistic bully.

      • Absolutely true, Jack. Chauvin’s record indicates he should have either been “reset” or separated from police service years ago. George Floyd might have died that day regardless of which officers dealt with him or regardless of the tactics they used, or he might have died in the back of an ambulance headed to the hospital, but we will never know. The incident was in may ways a “perfect storm” of bad factors.
        The case has seemed to me to be an example of a police agency’s metaphorical chickens coming home to roost in the worst possible circumstances. Agencies who hire / ignore / tolerate / cover up for heavy-handed officers do so at their peril. Pre-employment screening processes including background investigations are often not what they should be. Trainers’ requests for more time and resources are often given short shrift. Supervision is sometimes poor or inconsistent, and disciplinary recommendations of good supervisors are often ignored or watered down in the administrative process. In some agencies, police unions have gained too much power to affect personnel matters like discipline. Too many administrators just “whistle past the graveyard” headed toward retirement hoping that nothing really bad happens, and often nothing does, but due only to moral luck. As a trainer and consultant, I consistently warned client agencies against keeping bad apples in the barrel. Some listened and some didn’t.
        Many agencies, including the one from which I retired, have instituted Early Warning Systems which mandate supervisory / administrative panel reviews of all use of force incidents and force complaints, to try and spot and stop budding bullies early on who somehow made it through the screening and training processes. Any use of force beyond simple handcuffing of subjects without resistance must be reported in detail. Willful misconduct in violation of policy (or law) is always judged strictly. Where there is evidence of mistake but not willful misconduct, it is still usually a “two strikes and you’re out” proposition, meaning that if there was an identified training deficit or in a close call as to the appropriateness of force used, you might be given the benefit of a doubt one time, but only one time. When we first instituted the system, I went back and reviewed the personnel files of some dozen officers who had been fired for excessive use of force during the twenty-some years before the EWS was set up, and in every case except one there were clear signals early in those folks’ histories that should have prompted intervention long before the incident that finally got them fired.
        My peers and I were taught early on that any observed violation of constitutional rights imposed an affirmative duty to intervene, and anything less than immediate intervention was complicity. During my career, I found the “blue wall of silence” to be a myth when it came to serious misconduct, especially brutality and excessive force issues. My attitude and that of officers I worked with was, “I may love you like a brother, but wrong is wrong and I ain’t going to federal prison with you!”
        Agency leadership sets the tone and the consequences for non-compliance with policy. But more importantly they set a consistent example. What is lived in the halls is much more important that what is written on the walls.

  9. So what becomes of the other three police accomplices to this “murder”? When are their show trials.

    What I learned from this is that if someone from a different race commits a crime against a person of my race all I need to do is suggest a violent reaction from my side to ensure the person gets a guilty verdict. Why shouldn’t people simply descend upon the courts to protest the injustice of letting criminals plead down to lesser charges so as not to over tax the criminal justice system?

    Here is something to think about: Why is it that injustice occurs when one race is disproportionately involved with the criminal justice system but not when the costs of government spending are borne by a disproportionately small fraction of the public which is also probably disproportionately made up of one race. If it is racist to believe that members of one race deserve prison should it also be racist that another should pay the lion’s share of taxes? (Purely for a philosophical discussion)

    Michael R’s commentary was in line with what I was going to post. The trials of cops are simply the reverse of Jim Crow laws, segregationists, and racists used against freed blacks. Basically, this is nothing more than tit for tat justice. I expect that America will never recover. I doubt that the threat of police responding to a violent crime in progress will deter those who see this verdict as a license to commit violence so I am going to learn how to use and buy a weapon to protect myself. That is what I learned!

  10. Here is Allan Dershowitz in an interview with Newsmax:

    “Well, first what was done to George Floyd by officer Chauvin was inexcusable morally, but the verdict is very questionable, because of the outside influences of people like Al Sharpton and people like Maxine Waters,” he said. “Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, if you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed—seeped into the jury room because the judge made a terrible mistake by not sequestering the jury.”

    “So the judge himself said this case may be reversed on appeal. And I think it might be reversed on appeal, I think it should be reversed on appeal,” he continued. “I think the American Civil Liberties Union, which would be all over this case if it weren’t a racially charged case, all Americans who care about due process and liberty should be concerned that the jury verdict may have been influenced by, if not the thumb, maybe even the elbow of the outside pressures, the fears, the threats.”

    I think he is correct. The jury’s verdict will not be overturned. Chauvin’s best chance is to challenge the trial on constitutional grounds that the entire process denied him a fair trial on the merits.

    jvb

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