This Is Not The Statement Of A Juror In A “Fair Trial” [Updated]

This is the first crack in the dam, and there will be more. I was certain this was coming.

Brandon Mitchell, a black, 31-year-old high school basketball coach on the jury that convicted Derk Chauvin, spoke to the Wall Street Journal saying that “staying anonymous wouldn’t help push for change.” If he wants Chauivin to say convicted, he should have kept quiet. From the interview (WSJ has a paywall—sorry):

Mitchell said he was pulled over for no reason by Minneapolis police dozens of times in his early 20s, usually driving his mother’s aging Chrysler Sebring. He said he has always told his players to follow the checklist his mother gave him during these encounters. Take your hat off; announce what you’re doing; be polite; do what you’re told.

Then Mitchell tells the Journal that serving on the jury made him see it was wrong that a person should be so afraid that a police officer could do them harm that they needed to change their behavior, adding,

“That’s also part of the reason why I’m speaking up now because that is a narrative that is horrible…So somebody follows directions or not, they don’t deserve to die. That’s completely ridiculous.”

THEN Mitchell says he “related” to Floyd, saying,

“I just related to it too much.Being big, you know, former athlete and all these things—it just, it really just hit home… It just felt like something that easily could have been me or anybody else that I know.”

Good thinking there, Coach! And America, welcome to the jury system.

Rueful observations in random order:

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Assorted Ethics Items, 4/23/2021: I Can’t Talk Or Eat, But I Can Still Write. And Think, Sort Of…[Finally Corrected!]

Well, THAT was certainly unpleasant…made a root canal seem like the warm embrace of a succubus by comparison…

1. An alternate juror in the Chauvin trial gave an interview. She seems like a pretty rational sort, but two comments support the contention that the trial was not a fair one:

  • “I did tell them that I saw the settlement run across the bottom of the screen one day…I was not surprised there was a settlement, but I was surprised they announced it beforehand.” She also said she understood that civil trial and criminal trial standards were different, but the fact that the city essentially announced that its police were liable for Floyd’s death cut the legs out from under Chauvin’s defense.
  • “I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.” If any jurors feel that way, it’s not a fair trial.

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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.

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Daunte Wright Dining Car Specials On The George Floyd Ethics Train Wreck…

1. “Nah, there’s no mainstream media bias! Naturally, the New York Times has a ticket…The Timed headline in its print edition: “Minnesota Police Kill Another Man As Tensions Build.” Oh, did the jury rule that the Minnesota police officers killed George Floyd already? They didn’t? Then what the hell is the New York Times saying “Another” for?

The news media decided that Derek Chauvin is a murderer and has been repeating that assertion as fact for almost a year now.

2. Wait, the Chaivin jury hasn’t been sequestered? Chauvin’s lawyer, Eric Nelson, had argued yesterday that the jurors should be ordered to avoid all media and spend the rest of the trial sequestered, because he feared that rioting in the nearby community where the Wright shooting took place might limit their ability to be fair jurors. The unrest will be at “forefront of the jury’s mind-set,” Nelson argued. He also asked for new interviews with the jurors to determine whether this recent event had already biased them. The judge, Peter Cahill, denied both requests. “This is a totally different case,” the judge held, since the current riots aren’t about a jury verdict but a shooting.

Wow This pretty much convinces me that this is a kangaroo court, and that the judge is trying to do his best to see Chauvin convicted.

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Regarding The Guy Charged With a Machete Attack Who Has A Machete Tattooed On His Face

I know these stories are stupid, but I love them, and besides, I can’t pass up the chance to correct Jonathan Turley.

Justin Arthur Allen Couch, 25, pictured above,  is charged with using a machete to attack the victim in the arm and leg during an argument in Tarrytown, Florida. The victim is alive but may have permanent injuries. Couch, as you can see above, has a drawing of a machete tattooed on his face. I’m sure it’s just a coincidence.

Of course, the tattoo doesn’t prove that he’s guilty of a machete attack. It’s circumstantial evidence at best. In fact, if I were defending Couch, I’d be tempted to argue to the jury that the machete should make them question whether Couch was the attacker. Who would be so stupid as to use a machete as a weapon when one is right there on his face? I sure wouldn’t. I’d use a hammer, a golf club, a seafood fork, indeed anything but a machete.

Then again, I would never have a machete tattooed on my face. That act alone raises a rebuttable presumption that Couch is an idiot.

Professor Turley, writing about the case, opines,

Face tattoos are unlikely to be receive assistance from the court in allowing a shroud or covering. The machete tattoo is one of the choices in life that comes back to haunt you in your machete attack case.

The Professor could doubtless make me look like a baboon in a law school class, but he is wrong on this topic, which is a specialty of mine. Turley cites some amusing cases, like the man accused of sexual assault with a forehead where a tattoo reads “I’m a pornstar. I fuck Teen Sluts”…

…and this doofus, who faced charges for multiple crimes….

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So The Judge’s Wife Is On The Jury…Wait, WHAT?

“Hi hon!”

I haven’t seen this before.

Judge Thomas Ensor of Adams County, Colorado, now retired, sat back and allowed his wife to be empaneled on the jury trying Gary Val Richardson for allegedly firing one or two shots in the direction of police officers during a 2013 standoff.

The judge even thought the situation was funny. He joked during jury selection that lawyers should “be nice to Juror 25. My dinner is on the line.” After the jury was selected and sworn in, Ensor told the lawyers that he had never heard of a sitting judge having a spouse or family member on the jury. “There’s nothing wrong with it,” he said. “I think she’ll be a fine juror. I have not spoken to her about this case.”

One of my rules of thumb for avoiding legal ethics problems in trial is that if you’ve never heard of something being done before, there’s probably a good reason not to be the first to do it. Continue reading

Take THAT, Supreme Court Cynics! Ramos v. Louisiana.

The U.S. Supreme Court today over-ruled, 6-3, its really bad 1972 holding that rights, like the 6th amendment fair trial requirements, were not necessarily incorporated into the states by the 14th. Oregon and Louisiana, astoundingly, did not require unanimous jury verdicts of guilty in criminal cases, allowing 10-2 convictions. In Louisiana, the anomaly  was an 1898 relic of the Jim Crow era; I have no idea what Oregon’s excuse was.

Louisianans voted in 2018 to do away with the practice,  passing an amendment to the state constitution requiring unanimous verdicts going forward. But up to a hundred prisoners,  like Evangelisto Ramos who was serving a life prison sentence after being convicted of murder in a 10-2 jury vote, will get new trials because their convictions came under the old, unconstitutional law and their appeals aren’t exhausted. The case is Louisiana v. Ramos.

Two aspects of the decision are especially noteworthy, other than the fact that its seems obviously correct. Continue reading

Comment Of The Day: “Unethical Prosecution, Incompetent Jury: Once Again, ‘Sorry’ Isn’t Enough.”

The recent post about a Louisiana man sent to prison for 36 years when procsecutors and a jury ignored the fact that the evidence didn’t meet the standard for guilt beyond a reasonable doubt  sparked many excellent comments. The tongue-in-cheek suggestion by a commenter that failure to dispense criminal justice competently should earn the same fate as Admiral Ozzel in “Star Wars”—he was strangled to death by an angry Darth Vader’s Dark Force powers—inspired long-time commenter mariedowd to write this Comment of the Day regarding juries, prosecutors and professionalism:

I agree the Ozzel is far too harsh. I think it is hard enough to get reasonably educated and alert jurors. Adding a risk when  they don’t really understand the proceedings and follow along when one set of lawyers plays their sympathies or fears better than the other will not improve the situation at all.

 I think jury pools should not be linked to voting rolls, because it discourages registering and voting. Non-voters fear the loss of income and time that comes with jury service,  AND their vote never accomplishes anything (they think), so why bother? I once got a preliminary  call to jury duty halfway across the state when I had serious mobility problems.  I was looking at hundreds to thousands of dollars in lost income for a long Federal case. The threat of costs and holes in lives pushes away competent, aware citizens, leaving a high percentage of jury membership  to the fringes, and fringes have  axes to grind.

Maybe we should attach jury selection to Social Security, as that is a larger pool Using drivers’ licenses is also a possible improvement, because it ties into citizenship.  Let’s make jury service less of a sacrifice for people who cannot dump their daily duties for unknown periods with the threat of lost income.

Maybe proximity to the courts should factor into selection, so travel isn’t such a problem. For a courtroom 70 minutes, away my elderly mother was supposed to travel to a strange town by  bus for an 8 am call. She simply does not have the energy for all that back and forth, even though she is alert and would make be a competent juror. Jury deliberations should be a juror’s burden, not getting to court: you can’t concentrate on the case if you ache from the journey. I don’t know exactly how to fix this, but the current system sorts out some good potential jurors while attracting less desirable varieties. Continue reading

Unethical Prosecution, Incompetent Jury: Once Again, “Sorry” Isn’t Enough.

After Archie Williams (above) was released from a federal penitentiary  last week after serving 36 years  not only for a crime he didn’t commit, but  after a false conviction that would have been prevented by decisive exculpatory evidence that was available to the prosecution from the beginning. The district attorney for East Baton Rouge Parish, Hillar C. Moore III, said in court, “As a representative of the state, I apologize.”

I’m sure that makes Williams feel all warm inside. As we discussed here just this month in another case of wrongful arrest, trial and imprisonment, the kind of life-destroying mistakes that send citizens to prison for crimes they didn’t commit must involve accountability for those responsible beyond mere financial damages paid by the State.

This case is especially infuriating. It was known at the trial, and admitted by the prosecution, that  fingerprints found at the scene where a woman had been raped and stabbed in in Baton Rouge, La. belonged to someone other than the man standing trial for the crime.  Under basic prosecutorial ethics, Williams shouldn’t have been charged. The prints guaranteed reasonable doubt.  An ethical  prosecutor is not supposed to decide, “Well, maybe we can convince the jury to ignore those prints.” Prosecutors aren’t supposed to fool juries.  Ethical prosecution demanded that the State acknowledge doubt, no matter how much it wanted to clear the case, The victim of the attack was the wife of a wealthy and powerful man.

Instead, the prosecutor at the trial trivialized the significance of the then-unidentified fingerprints found at the scene.  “How many people come through your house?” Jeff Hollingsworth asked the jury, after suggesting that the prints could have belonged to  a plumber or a carpenter, “The air-conditioning man, people who clean your carpets, the little girl home from school.”

Then it was the duty of the police to determine who those people were, match the prints, and determine that they didn’t commit the crime. Without that due diligence, there is doubt as a matter of reason as well as ethics.

Technicians in a crime lab eventually ran the fingerprints  through a national database, and  within hours there was a match with a serial rapist. That happened last week, however, almost four decades after the prints should have been identified. When Williams  requested that the fingerprints be run against the national database in 1999, prosecutors opposed his request and  no statute required them to comply…just fairness and an interest in justice.

The fingerprints weren’t the only reason the jury should have acquitted Williams. Although the victim was certain that he was her attacker, several aspects of her description of the rapist didn’t match  Williams. His lawyer at the trial, Kathleen S. Richey, accurately told the jury that  the victim had described a  taller man with a scar on his shoulder blade.  Williams did not; he had a scar on his upper arm.

The jury found him guilty beyond a reasonable doubt anyway. He was 22 when police arrested him. Archie is Williams is 58 today.

It was dawning on criminologists by 1983 that eye witness testimony was less reliable than previously thought, and that identification could be negligently or intentionally be manipulated by police. Combined with the mysterious fingerprints, the shaky ID should have assured Williams’ acquittal. Juries, however, don’t know the law, don’t have experience evaluating evidence, and sometimes, as Reginald Rose pointed out in “Twelve Angry Men,” just want to get home, are misled by their biases, or just aren’t very bright.

I hesitate to call for some kind of sanctions or penalties when a jury botches its job like this; after all, the police screwed up, the prosecution was unethical, the judge let it all happen, and they were doing jobs that they had been trained to do. Nonetheless, it seems like some consequences of a bad verdict might focus jurors attention a bit more, to the benefit of justice. What those consequences might be, I have no idea.

I would support a law mandating the resignation and permanent bar from further prosecuting duties any prosecutor involved in sending an innocent man to prison, however.

It’s fascinating that such a case should come to public attention at the same time that activists, feminists and progressives are arguing that the presumption of innocence for men accused of sex crimes should be reduced. Archie Williams graphically shows where that position leads.

Comment Of The Day: “If The News Media Won’t Resist Publicizing Big Lies, What Hope Is There?”

In response to the post about the mainstream news media still presenting the deaths of Freddie Gray and Mike Brown as “murders” despite all evidence and judicial law enforcement determinations to the contrary, Matthew B raised some interesting questions that I’ve pondered myself.

Here is his Comment of the Day on the post, “If The News Media Won’t Resist Publicizing Big Lies, What Hope Is There?:

I don’t understand why the Black Lives Matters focuses in on the cases that don’t make their point. They should be using Philando Castile as a rallying cry, not Freddie Gray.

I also don’t get what is wrong with most white people. How can we have shootings like Daniel Shaver and think there is nothing wrong? We’ve got a police training issue where an unreasonable level of fear pervades contact with the public and a criminal justice problem where officers are given the King’s pass because too many people view police officers as the good guys no matter what. The BLM crowd is unethical in its conduct in trying to make their point. We’ve got the other side who’s unethically blind and want to ignore that the problem exists.