Suppose that Chauvin is acquitted. If so, then I would argue that it is irresponsible for any leading media outlet or politician to denounce the criminal justice system. That would be equivalent to delegitimizing the 2020 election and claiming that it was stolen.
Of course, I expect some people to denounce the criminal justice system if there is an acquittal. But elites should be obligated to say that they accept the decision of the jury. I fear that we will not see them do so.
I am not saying that it will be an injustice if Chauvin is found guilty. But there are some factors that mightlead to an acquittal.
It is ironic that much of the trial will focus on the issue of proper police procedure. In Chauvin’s case, proper procedure would have been to investigate the incident before filing charges. I have read that this procedure was not followed. As a result, evidence has emerged subsequent to his being charged that makes the charges less justified than when they first were made.
I am not a lawyer. But my impression is that to prove even the weakest charge, manslaughter, the prosecution must show that
(a) Chauvin’s conduct was reckless, the way that drunk driving is reckless.
(b) Chauvin’s conduct contributed to George Floyd’s death.
To believe (a), you have to take into account the way that Floyd resisted arrest and the challenges that police face when someone resists arrest. You must believe that Chauvin’s actions were highly abnormal for a police officer in those circumstances. And you must believe this beyond a reasonable doubt.
To believe (b), you have to believe that had Floyd been left unrestrained, he would have survived the drugs he ingested. And this, too, must be true beyond a reasonable doubt, no?
Please restrict comments to correcting my amateur legal “analysis.” If you have general opinions related to the trial and protests and such, please refrain from putting them in the comments.
One thing that strikes me reading about the trial is that the jury is already very biased. I would have thought many statements by jurors would be disqualifying, but they are still on the jury. Of course, good luck finding someone who hasn’t formed an opinion on the case before it started.
There are only two white men on the jury. I have a feeling they are getting a guilty verdict of some kind, though I don’t agree with it. What charge lands I can’t say, though I suspect many will be upset with anything less than the maximum charge.
The police training manuals I’ve seen make it really clear, even with pictures, that this is what Chauvin was trained to do. They’ve also been trained that if a person can speak, they can breath. Obviously the department has all sorts of reasons to distance themselves and deny this now, but the truth is the truth.
I’ve read that the autopsy report showed no bruising on his neck, either internally or on his skin. There doesn’t seem to be enough evidence that the force Chauvin provided, on its own, would kill an otherwise healthy person. At a minimum, there is a reasonable doubt that it did or would. No doubt the prosecution can dig up someone to say the opposite, but it doesn’t make it true.
They will get their conviction, but it will be an injustice. I suspect they will riot and destroy all the same.
In the aftermath of 9/11, Guantanamo, Abu Ghraib, etc. there was a long debate about torture, the moral calculus involved, and the large spectrum of increasingly distressing techniques short of serious physical damage such as solitary confinement, uncomfortable temperatures, sleep deprivation, extended periods of standing at attention, and of course water-boarding.
Many people discussed these matters in the abstract, and it showed. But in 2008 the late Christopher Hitchens, to his credit, volunteered to undergo water-boarding so he could experience it for himself, and Vanity Fair put the video on the internet. Whether or not you agree with his claims about it, I think his example is admirable and worth following.
I think it’s an intellectual best practice to simply not comment one way or the other on these techniques that are easy, quick, and cheap to try, and which can be done with minimal risk in a safe manner and in a controlled environment, and without the need for credentialed experts or medical personnel on standby unless you are until one is particularly risk averse. Maybe consider it the price of admission to public discourse on the subject, and as we know, even charging a small price can make all the difference.
Now, it is of course not the same when you know it is safe and controlled, or if you are familiar with the experience, but at the same time, it’s incomparably better than not having any experience at all.
I’ve personally had this experience for a wide variety of the kinds of control devices and techniques military or law enforcement personnel might utilize, and without getting too “What’s it like to be a bat?” philosophical about it, one reaches the limits of verbal communication when one tries to accurately convey the experience of qualia which are absent in the reference set of experiences of ones interlocuter. Like trying to explain in words the difference between yellow and orange to a blind man.
Some techniques were a lot worse than I thought, and some – like being tased – were a lot better. Only by those direct experiences did I come to the conclusion that the taser is about as ideal a ‘less-lethal’ device as we can have when one requires physical incapacitation.
So please just go out and find someone like a cop who knows how to do it, and experience it for yourself.
But, if you find that you can keep conscious and breathing without difficulty and even indefinitely because technique is designed not to put pressure on the throat or major arteries, then, whatever you do, do not put that on YouTube, because, like Dave Hollenbeck, they’ll fire you for it.
All freedom lovers should oppose cancel culture firings of people who express opinions contrary to the majority.
Free Speech legal limits, against slander and against direct incitement, as previously determined by laws and courts, should be the standard.
There can be NO real justice without Free Speech.
Re: A, I don’t think you need to believe his actions were highly abnormal, just reckless given what he knew at the time. In a hypothetical, it may be normal for officers to use tear gas to disable and disorient people, and it may nevertheless be reckless to use tear gas on a building when they have evidence that there are things in the building that pose a serious risk of fire/explosion if exposed to tear gas.
Arnold, feel free to delete this comment if it violates your request not to express general opinions about the trial. In order to address your analysis, I thought it best to do so in the context of my view of how the trial has gone.
From what I’ve seen and read so far of the trial, it doesn’t look to me as if the Chauvin defense team is up to the task at hand. I hope I’m wrong on that because the prosecution team certainly has not hit the ball out of the park, either. I have a knawing sense that this is being treated as a show trial, which would be a shame.
The case is relatively simple—did Chauvin cause Floyd’s death? If the jury answers that question “Yes,”, then the next question is whether Chauvin’s actions were justified? In other words, if Chauvin’s actions contributed to, but did not cause, Floyd’s death, were Chauvin’s actions reasonable and therefore excusable?
The jurors have seen about an hour-long video of police officers arriving to question Floyd about passing a counterfeit bill. That entire video, not merely the part where Chauvin is kneeling on Floyd’s neck, sets the stage of the police and Chauvin’s encounter with Floyd. That entire video is likely the strongest evidence that the defense will have during the trial.
In the video, Floyd is seen as extremely anxious, probably intoxicated, and maybe even psychotic. He resists arrest and is incapable of following simple commands. He is a large man who was able to squirm his way out of the back seat of a patrol car. Under those circumstances, it was not unusual that the police handcuffed and restrained him on the ground.
Given the foregoing, the prosecution offered a number of non-expert fact witnesses who observed the interaction between the police and Floyd. None of this non-expert testimony was relevant to the key issues the jury needs to decide—were Chauvin’s actions in restraining Floyd reasonable and, if they weren’t, did those actions reflect a criminally culpable state of mind.
For example, the prosecution put on the testimony of the store clerk to whom Floyd gave the counterfeit bill. He was somehow allowed to testify that he “felt guilty” about what happened to Floyd. In this kind of case, the judge should never allow “the feelings” of fact witnesses to come into evidence. They are irrelevant and unfairly prejudicial to the defendant.
The defense’s decision not to cross-examine a number of these fact witnesses was inexplicable. What did the witnesses think about Floyd’s inability to follow simple commands? What did the witnesses think about Floyd’s resistance to being handcuffed? What did they think about Floyd squirming his way out of the police car?
The defense could have established through these witnesses that Floyd didn’t respond coherently to anything that the police asked him to do. For whatever reason, the defense didn’t do so.
Chauvin has a solid defense to the second-degree murder charge. He and the other officers had a responsibility to investigate a counterfeit bill being passed. Floyd was a suspect and the officers had a credible witness stating that Floyd passed it. When they sought to question Floyd, Floyd was non-responsive, irrational, and extremely anxious. A good defense can be based upon the fact that Floyd’s incoherent behavior caused the escalation in the force that was ultimately used.
Should Chauvin have realized that something was seriously wrong once Floyd stopped moving? The jury’s answer to that question will determine whether Chauvin is found guilty of third-degree murder.
One good thing I’ve noticed in the trial to date is that the prosecution has not relied on race-pandering. From what I’ve seen, the prosecution has not asserted that Floyd was singled out because he was a black man.
Finally, there is no telling what the jury is thinking at this point. But I’d be surprised if a few of them weren’t wondering how this unfortunate event became a lightning rod for riots and divisive political discourse when what it really calls for is better police training on dealing with disturbed citizens.
Well summarized. I don’t envy the Jury. Tonnes of social pressure on them to convict, knowing what will happen. Imagine if you were the only one in favor of acquittal?
The air-tight secrecy of jury deliberations used to be something as close to sacrosanct as exists in the common law legal system. In many places in the Anglosphere, unjustified disclosure or even re-publication of private deliberations could make one liable for contempt and some places have considered making it an actual criminal offense.
The no-impeachment rule stood unmolested for nearly 250 years. In Tanner (1987), SCOTUS upheld it even though, “the jury had been consuming copious amounts of alcohol, marijuana and cocaine during the course of the trial and deliberations.”
The “trial of the century” era in mass media and especially cable news quickly started to erode these norms to the point of interviewing jurors on TV which happened after the OJ trial. But at least legally the principles were still followed strictly with a few rare exceptions for threats and bribery or sometimes certain lies during voire dire.
But all that went out the window just four years ago in Pena-Rodriguez v Colorado. Do you even have to ask why? You don’t. Racism is a special exception to everything – it’s right there in the 14th Amendment.
In general, it’s a mistake to make anything a “special exception to everything”, because it tells people who are looking to violate norms exactly what they need to say and do to get away with it.
But in this specific instance, the pressure on individuals jurors, knowing that who they are and whatever they say and do is definitely going to get out there, means a genuinely fair trial is a tall order.
I don’t think you need to believe beyond a reasonable doubt that Floyd would have survived the drugs to believe (b). You need only believe that the type of restraint he endured is in general dangerous to life (and perhaps that Chauvin should have known this).
The reason is that multiple actors can be held jointly and severally responsible for a death. two people, A and B, simultaneously shoot C, A does not get to claim that he is not responsible for C’s death because B’s bullet would have killed him anyway.
Big picture: lockdowns caused Floyd his bouncer job and started pushing counterfeit bills causing encounter. War on drugs. Etc. The State is just a giant immoral self fulfilling prophecy.
And didn’t Floyd and Chauvin work same bar? Has that come up.
“Started pushing counterfeit bills”
I find the lack of interest in this particular aspect of the case to be interesting in itself.
Not related to his death, but questions an interested journalist might ask include, “Did Floyd make those bills? On a laser printer or copier (and if so, what story do the printer-tracing microdots tell?) Has the Secret Service – which for obsolete historical reasons retains jurisdiction – been involved in the investigation. Did they even *do* an investigation?
Was Floyd the kind of guy with the “catch me if you can” talent and tools to do so? If not, where did he get them for less than their face value, and know to crumple them up? Is there an longstanding international black market known to law enforcement in that part of the country by which one can obtain lots of high-quality low-value bills for cheap? If so, then who exactly has the talent and tools to sell into this market, what is their true motive for doing so? Are we dealing with a peacetime Die Falscher scenario?
These are interesting questions. But unfortunately, not interesting enough.
Floyd got convicted of armed robbery twice, including the physical assault of a pregnant woman. My only amazement is that he was on the street at all.
On 1, I’m not a Minnesota criminal lawyer, but the Model Penal Code definition of “reckless” is “consciously disregards a substantial and unjustifiable risk.” I don’t think that “highly abnormal” has anything to do with it.
On point 2, same caveat, but I don’t believe that the prosecution has to prove that Floyd would not have died in some other manner. That would make the victim’s health an issue in every murder case.
On point 2, they absolutely have to prove “beyond a reasonable doubt” that it was, in fact, Chauvin’s actions and not the fentanyl which killed Floyd. Seems like a slam dunk case to find him not guilty, even if you think there’s a strong possibility that it was partly or entirely Chauvin’s fault.
The ME even claimed that had no one seen anything and George had simply been found dead, he would have ruled it an overdose.
Yes, they have to prove that Chauvin’s actions in fact contributed to Floyd’s death, as it actually occurred. That is different from “had Floyd been left unrestrained, he would have survived the drugs he ingested.” If Floyd was moments away from dying of a drug overdose, and Chauvin had shot him, that would still be murder.
Perhaps the ME’s comments suggest that Chauvin’s actions actually had nothing to do with the death, in which case he should be acquitted. Or perhaps it means that when a dead body turns up with fentanyl in it, they don’t look for alternative causes.
But it would have been murder because we know ‘beyond a reasonable doubt’ that a bullet piercing his heart was the cause of death and that Chauvin had fired that bullet.
In light of the potentially fatal levels of fentanyl, it seems impossible for us mere mortals to know beyond any reasonable doubt that Chauvin’s actions themselves would have caused death. At best we can say that Chauvin’s actions may have been negligent or reckless, but unless we can certainly connect that negligence or recklessness to the death itself, it’s more akin to someone driving 90 mph in a 55 mph zone – it increases danger to life, but we don’t generally lock people up for doing that alone.
For what it’s worth, John Hinderaker, a conservative but generally reasonable lawyer in Minnesota, has an April 8 post The Chauvin Trial So Far.
I disagree with the logic of B. I believe it should be possible to argue Chauvins content could have contributed to the death even if Floyd would have died anyway.
Let’s say you ingest a lethal substance that will kill you in 60 minutes. If someone thereafter proceeds to shoot you in cold blood prior to the time point at which you’d die from the lethal ingestion, I’d still want the shooter to be liable for something, even if we assume they had 100 % certainty that you’d die anyway from the ingestion.
But your hypothetical is a strawman argument for this particular case. Chauvin didn’t shoot Floyd, and I don’t see how anyone can actually believe beyond a reasonable doubt that the restraint used in the absence of the drugs would have even harmed Floyd much less kill him.
Do you think Chauvin or the others would have been charged had the EMTs shown up and scooped Floyd up and taken him away 5 minutes earlier, only to have him go into cardiac arrest in the ambulance and die? You would have still had the video of Chauvin pinning Floyd down for 4 minutes, and Floyd would still be dead.
Alternatively, what if Chauvin had never pinned Floyd down and they hobbled his legs, and Floyd died anyway. Do you think the officers would charged? Do you think they should have been charged?
I’m not arguing this case specifically.
I’m merely pointing out that it is entirely false to argue person A cannot have “contributed” to person B’s death if person B would die regardless of the actions of person A. For any given action, the likelihood that it contributed is of course lower if we assume person A would die regardless. And it’s harder to prove some action contributed if person A will die regardless. But there are plenty of cases where we can clearly state the actions did contribute even if person B will for independent of those actions.
Again I’m arguing against the broader logic of the principle
Then perhaps you should have read Kling’s (b) more closely, J.
To summarize- Kling was making his argument about this particular case, not a general one. You responded with a strawman argument, which your second comment acknowledges only indirectly.
Let me pose a question to clarify as it seems you don’t seem to understand this point.
Let’s assume that Floyd was going to die regardless of what Chauvin did, due to a toxic ingestion.
If we accept that premise, can you come up with any actions on the part of Chauvin that would warrant charges of murder?
For example, would hacking Floyd with a machete into 20 pieces constitute murder even if we accept the premise that Floyd would die regardless? Would taking a gun and shooting Floyd multiple times in the mouth constitute murder if we concede that he would have died regardless?
The answer is yes it would constitute murder. And it is yes because the fundamental question has to do with the specific act. It does not have to do with what the outcome would have been in the absence of that act.
To be more precise, Kling should have stated that you have to believe that kneeling on Floyd’s neck would have killed him regardless of whether or not Floyd ingested the drugs. Instead he claims that you need to believe that the act of kneeling on his neck is only murder if he otherwise wouldn’t have died.
It’s a subtle logical point but you should understand the clear difference.
If what Chauvin did would kill a normal healthy person, why is it the prescribed method of restraint for the MPD? Where are the mountains of corpses that would no doubt be there if a legal and proscribed technique led to death?
It seems that the level of force that Chauvin used would not have killed a normal person in a normal condition. Therefore, it’s hard to say that it’s reckless.
I suppose it’s possible to say that Chauvin should have somehow known the toxicity level and health status of the person he is arresting, but that is a pretty tall order. He can’t do a blood test, and Floyd lied constantly during the encounter. He even lied about not being able to breath.
You could say that maybe they shouldn’t have restrained him at all, but that seems a hard case. Floyd is a massive and strong man who showed nearly no compliance and a willingness to use force to get his way. Exactly how would you restrain such a person “gently”. This type of maneuver is actually designed to try and do so.
I think implicit to the entire narrative is the idea that if a black man wants to resist arrest, we should let him walk away from the encounter. That at some point they can just keep playing “escalate” until the police cave. If the cops don’t follow that, they are responsible for what happens (as opposed to the person resisting arrest). I think this is a very toxic assumption, and for the purposes of this case not relevant as that isn’t the law.
Whether the restraint would have killed Floyd in the absence of the drugs isn’t relevant to causation. If you engage in wrongful conduct, you take the victim as you find him, meaning that it isn’t a defense to say that, even though your actions did cause death, they would not have done so but for idiosyncratic reasons that made the victim especially vulnerable (the eggshell skull rule).
It may be relevant to whether Chauvin’s conduct was reckless at all–maybe kneeling on someone’s neck does not pose a serious risk of injury or death to people who aren’t OD’ing, that I don’t know, and maybe there was a safety imperative to use that exact technique. Of course, that would also make it relevant whether Chauvin knew that Floyd was experiencing an overdose.
Look at your own phrasing. You can’t convict someone of murder on the basis that his actions “could have” contributed to death.
The actions “must have” done so, and beyond reasonable doubt.
Actually, you really do need to believe (juror)/prove (prosecution) beyond a reasonable doubt that the drugs didn’t kill Floyd to convict Chauvin on any of the homicide charges. If you think it reasonable to believe Floyd would have died without Chauvin being there at all, then you have to acquit on the homicide charges- all of them, if you are doing your duty as a juror.
What is dispiriting to me is the huge numbers of people who view the video and are sure that Chauvin killed Floyd, and nothing gives them doubt about that- not the autopsy results, not the toxicology results, not even the previously unseen video where Floyd complains about not being able to breathe long before Chauvin arrived on the scene.
During yesterday’s proceedings, a chart was shown with the toxicology statistics of 20,000 historic fentanyl overdoses and the corresponding blood levels. The data presented clearly (if you have knowledge of statistics, that is) claimed that over half of the victims had fentanyl concentrations less than those measured in Floyd, and yet the way the data was presented the prosecution completely obscured this fact, and I am not sure the defense counsel clarified this for the jury sufficiently.
Overall, though, Kling’s main point is likely to be valid- if Chauvin is acquitted, the elites will not accept that verdict, and will be partially responsible for the mayhem that follows. I know were I on the jury, the autopsy and toxicology results alone would lead me to an acquittal, I don’t expect one here. I think the best Chauvin can hope for is a hung jury, or a directed verdict from the judge.
If you know statistics, you’d ask for the survival rate of individuals with or above that given fentanyl concentration.
Kling is 100% right that the decision won’t be respected. Your poor use of statistics hurts that more important argument.
Right, it’s entirely possible for 90% of people who take >x fentanyl to survive and 99% of people who die of fentanyl overdose to have taken <x fentanyl. The prob. that Floyd died from the neck restraint rather than the fentanyl, if a = fraction of people who took that much fentatnyl and died, and b = the fraction of people subjected to neck restraint and died, is b/(a + b), assuming these are the only two possible (and mutually exclusive) causes of death.
Let me just add a question.
Suppose Floyd had survived his encounter with the police, and ER room saved him from drug overdose.
Would the officers still have committed any crime?
What I am asking about is can we separate the issue of excessive police action from the issue of mortality? Reckless drunk driving is a crime that would be punished, but the punishment is much different if no one is injured or killed by the driver.
And to turn the issue around, suppose Floyd had died in police custody, but the officers had used force but less force, and all the police commanders said the officers acted properly. Would BLM just say, “whatever,” and walk away? Would there be an indictment?
“The lawyers dwell on small details” – Don Henley.
I am not a Minnesota criminal lawyer, so state case law there may have a lot of wrinkles or deviate from typical penal codes in ways of which I am unaware. There may also be special law on the level of care expected from a law enforcement officer in particular. There are also potential questions of whether one could bring up violation of civil rights under color of law and to what extent qualified immunity might apply, but I’ll leave those to the side except to say that, in case of acquittal, something like those charges seem likely for the not-quite-but-still-pretty-close-to Double Jeopardy federal-level trial.
There are degrees of recklessness depending on the context, and “the way that drunk driving is reckless” explains the general idea of being reckless, but it may not be the quite right degree, which is one of the reasons many states distinguish anything involving cars into “vehicular manslaughter”. There is a level of recklessness for manslaughter, but second degree murder also uses the word ‘reckless’, usually along with ‘wanton’ and ‘malice’ involving inherently dangerous activity, and the difference is one of degree and overall level of risk.
For involuntary manslaughter, one either needs (1) a petty crime that is neither normally dangerous nor a felony but which was nevertheless involved with the events that led to a death (e.g., a mild assault of an unwanted slap on someone’s back when you didn’t know they were eating, which ends up being the proximate cause of them choking to death) , or (2) “culpable negligence” in acts or failures to act, with the level of culpability being above the ordinary negligence necessary for a mere tort case. All doctors worry a little that a finding of medical malpractice could rise to the level of culpability that an unintentional death (e.g., Michael Jackson) becomes this kind of criminal matter.
I haven’t been following the trial very much, so I don’t know if there is any attempt by the state to go after a type (1) theory of manslaughter. I haven’t seen any indication of it, but I may have missed it.
Culpable negligence for manslaughter involves language such as recklessness, carelessness, “heedless indifference to consequences”, or “thoughtless disregard of others.”
Yes, the requisite level of unreasonable recklessness must be proved beyond a reasonable doubt.
Now, Hinderaker at Powerline *is* a Minnesota lawyer, and has a good rundown of the trial so far and the issues therein.
I was not aware that Floyd had another fentanyl overdose in which he nearly killed himself and had to spend five days in the hospital, just two months before his death. I think that is relevant and probative on the question of relative contribution to his tragic demise.
It is perhaps a small sign of hope or at least that things have not quite descended entirely to Stalinist Absolute Zero “personal focal-point” politics, yet, and that, heroic David vs Goliath defense lawyer Eric Nelson is not being protested, intimidated, or otherwise harassed in doing his job, and apparently doing it well.
This has been the case up to now for other major cases involving national attention and racial tensions.
Super-lawyer Mark O’Mara likewise successfully defended George Zimmerman, and continues to be treated well in polite society. Neil Bruntrager (Darren Wilson) is fine too.
That being said, Harvard punishing Ronald Sullivan for agreeing to represent Weinstein was a bad sign, and may indeed be a harbinger of things to come in the future. But fortunately, for now, it seems we’re not there yet. If Chauvin gets acquitted, one can hope we don’t move in that direction.
If so, then I would argue that it is irresponsible for any leading media outlet or politician to denounce the criminal justice system. That would be equivalent to delegitimizing the 2020 election and claiming that it was stolen.
I don’t think this is an equivalence.
There can be many different sources of illegitimacy and the distinctions matter for these discussions. It is one thing to say “the system by which we do this is not fair/appropriate/just and therefore is not legitimate and should be changed.” That is the type of argument typically made by critics of, say, the electoral college or the criminal justice system vis-a-vis police officers.
It is a different thing to say “as a result of fraud/deceit/etc. this is not the outcome that would obtain from a legitimate use of the system as currently constructed.” That is the type of argument made by Trump, or that would attach to a criminal trial where, for instance, evidence was fabricated.
It is not the same thing to say “this is an unfair system” as it is to say “actors within the system behaved badly and corrupted the outcome.”
Fair point. To some extent, the analogous situation would be be if the jurors rule in favor of acquittal of Chauvin and people claim that the juror votes were altered or the jurors were coerced into voting a certain way and that in reality, the true vote of the jurors was to convict Chauvin.
I think your requirements sound right. I have serious doubts about (b) given that
1. A healthy person absolutely would not have died from that restraint, and
2. It’s almost certain that Floyd took an additional, evidence-hiding dose at the start of the encounter
Agreed so far.
No. A large number of police at least sometimes use unnecessary force. Its being normal does not make it right or acceptable.
In Germany, if someone dies at the hands of a police officer, the officer goes on trial for murder and has to justify his actions. This has not made all of them quit their jobs.
No. Kneeling on a restrained man’s neck for 8 minutes is murder. The fact that the victim may die from other causes first cannot be allowed to excuse the kneeler from the punishment he has earned.
“Kneeling on a restrained man’s neck for 8 minutes is murder.”
Really???
I heard that there were some 200 cases of kneeling restraint, none of which resulted in death. How can it be murder without death?
Some 20% of these cases included the person being restrained becoming unconscious. I’m wondering what will be said in the trial about that frequency issue.
No. Kneeling on a restrained man’s neck for 8 minutes is murder
There is literally no legal backing or justification for this sentence. It’s nothing more than your prejudices, not an intelligent legal analysis.
https://www.rev.com/blog/transcripts/defense-opening-statement-transcript-derek-chauvin-trial-for-murder-of-george-floyd
Rev is a site that has some free transcripts of important speeches. This one by the defense lawyer is considered “weak” by Barnes, but seems a good guide to the evidence. It ends Defense lawyer Eric Nelson:
At the conclusion of this evidence, you will be instructed as to the law, the elements of the offense, and the court will give you detailed instructions on what you must find to convict Mr. Chauvin of these charges, but when you reviewed the actual evidence, and when you hear the law and apply reason and common sense, there will only be one just verdict, and that is to find Mr. Chauvin not guilty.
So, only at the end will we hear the detailed instructions given to the jurors. Until then, lawyers will opine what the instructions “should be”.
If one person is in the process of strangling another person, and, mid-strangle, an anvil falls out of the sky and hits the victim on the head and kills him before asphyxiation, is the would-be strangler guilty of murder? I think that’s what the defense would have to argue (if it is given that Chauvin’s knee restraint was potentially fatal and unjustified), with the anvil being the metaphor for the drug overdose/heart condition.
Someone else brought up the example of two shooters shooting someone together. Of course, another analogy that would probably work in favor of Chauvin is someone, intending to kill another person, shoots them, only to find that they are already dead, killed by someone else. In this case I assume the person who shot the corpse would not be guilty of murder, no matter how much he intended to commit murder. I’m not sure which analogy works best here though. What about if you poison someone, but before the poison kills them, they get hit by a bus?
Is there a reasonable doubt that, absent the other factors in Floyds case, what Chauvin did would have killed him?
“But elites should be obligated to say that they accept the decision of the jury. I fear that we will not see them do so.”
I seriously doubt that many, if any, elites will try to physically overturn the decision of the jury, say by storming the defendant’s home and imposing mob justice. They may express disagreement with the verdict, which is equivalent to saying that one believes that the loser of the 2020 election would have made a better president. “Accepting” the decision of the jury or the results of the 2020 election means recognizing the outcome as the legally binding outcome and working *within the system* to appeal that outcome or reform the system for determination of future outcomes. One need not agree with the outcome to “accept” it.
It’s not about overturning the verdict. It’s about undermining the legitimacy of the entire criminal justice system with due process rights and strong protections for the accused. You know, what we once considered to be one of the jewels in the crown of the inherited institutions which make up our form of social organization. Just like jury secrecy was, until four years ago.
I’m sure with just a little searching you can already find some influential commentators writing about the prospect of an acquittal or mistrial and giving you a preview of what Arnold is predicting and which is, indeed, predictable.
And that is that they will consider anything but a quick guilty verdict on the maximum charges nothing short of an indictment of the entire system (something, something, the law requires the prosecution actually prove all elements of the case beyond a reasonable doubt even when the defendant has a privileged identity and here’s why that’s a problem, something, something, requiring jurors with privileged identities to participate in a unanimous verdict is structurally white supremacist, something something.)
Even radical dissidents, if they are wise and responsible, understand that they must sometimes refrain from sawing off the branch on which they sit and bite their tongues and swallow their pride to temper their criticisms of the pillars of legitimacy of the system at large, lest the whole thing collapse on all of us.
The system may be worthy of harsh criticism, but unless you’ve really got a better idea to replace it – which is unlikely give the complexity of social phenomena which are amenable to attempts at engineering – you might throw out the baby with the bathwater by “breaking the spell” and eroding the respect and acquiescence for the institution in general as something that it fundamentally irredeemable in anything like its present form. (Paleoconservatives sometimes made this argument about things like religion and nationalism.)
One could also say that even if there was sufficient evidence of enough foul play to sway an election result, one should still concede and acquiesce in the result and not make too much of a fuss for the sake of social harmony, lest one make a large portion of the population disillusioned with the whole concept of peaceful transition of power and the democratic legitimacy of those who wield it. Better to channel that frustration into efforts to prevent such foul play in the future. This will still piss off the woke corporations, but hopefully that is a lower price to pay.
As a matter of ethical and responsible behavior, influential elites should exercise self-control and resist the temptation to indulge in sowing the wind, because they will reap the whirlwind.
One could also say that even if there was sufficient evidence of enough foul play to sway an election result, one should still concede and acquiesce in the result and not make too much of a fuss for the sake of social harmony, lest one make a large portion of the population disillusioned with the whole concept of peaceful transition of power and the democratic legitimacy of those who wield it.
Ironically, that is Richard Nixon in 1960. A decade later he was less, um, idealistic.
Will elites physically storm the defendants house and kill him?
No, but the following might happen:
1) Non-Elite schmucks, instigated by elites telling them that this is an injustice and the system is rigged, might storm the defendants house and kill him.
2) Random attacks on white people might occur as revenge for a perceived injustice, with the people engaging in those attacks believing, in many cases correctly, that high status people back their actions.
3) The defendant and everyone around him might come under constant lawfare and harassment as to have been a punishment in an of itself.
4) Children will be taught in school that white supremacy caused the verdict, and that they are personally responsible for it as a result.
5) Employees will be told that being good corporate citizen means disagreeing with the verdict and fighting the white supremacy that caused it, which they are personally responsible for. Furthermore, that the new racial quota system the corporation is employing is not something you can dissent with.
That’s just off the top of my head.
Or consider the most likely effect based on historical evidence:
Elite anti-white anti-cop opinion will work to increase the amount of criminal violence in society, especially murder, which will mostly result in the ending of black lives. That’s how people responded to elite rhetoric when the incident itself happened, why shouldn’t it repeat?
What does Vox say about the effects of the BLM protests?
300 fewer people killed by police
1,000-6,000 more people murdered
(for me personally, I’m skeptical of these pretty empirical studies on criminal justice, but whatever…there’s a lot of cushion between the two numbers.)
***
The effects of Black Lives Matter protests
Research shows places with BLM protests from 2014 to 2019 saw a reduction in police homicides but an uptick in murders.
https://www.vox.com/22360290/black-lives-matter-protest-crime-ferguson-effects-murder
Right after the awful May incident, the Hennepin County District Attorney was ready to charge Chauvin with manslaughter. But State Attorney General Keith Ellison took over the case and raised the charge to Murder, without waiting for the normal investigations by the state crime labs.
Ellison is extremely ambitious, and reportedly seems himself as the next Kamala Harris moving up to national office.
If a murder conviction is not forthcoming, there may be more riots and perhaps Ellison can get some more TV time.
Despite our FITs “Bets” criteria, I see nobody making bets, probabilistic guesstimates about this outcome.
My guesstimate is 60% convicted “guilty” by the jury.
I also believe that he is not guilty of any form of murder, but has been guilty of brutality in the past, along with the Minn. Police Dept. (MPD) and the jury will want somebody to be punished, despite lots of folks being somewhat culpable.
Barnes claims juries want a White hat and a Black hat – if defense can put the bad hat on somebody else, perhaps the drug dealer who is likely also the counterfeiter, there’s a good chance of “not guilty”. There’s huge lynching mentality in favor of “guilty”, tho.
My estimates:
Acquittal: 5%
Mistrial: 10%
Manslaughter: 70%
>Manslaughter: 15%
That feels about right. Maybe not from a justice perspective, but if I were a betting man.
I don’t think the “beyond a reasonable” doubt standard applies to the question of whether he would have survived absent Chauvin’s actions. If you put a bullet through the head of someone while witnessing them have a heart attack that they may or may not have survived, you’ve still committed murder.
The reasonable doubt standard does of course apply to some aspects of every criminal case – specifically pertaining to the actions of the accused (largely taken care of by the video in this case), and also pertaining to mens rea (somewhere in the reckless to intentional range for the differing severity charges here, though in murder cases intentionality doesn’t necessarily have to be specifically in relation to the death of the deceased, it may only need to be in relation to some other criminal act).
I have a question which goes back to my youth in the 90s, and I want to know if this was at all a thing in earlier era.
When I was in school, we actually stopped everything we were doing to listen to the OJ verdict over the loudspeaker at school. This was basically an official action by the school.
I’ve never experience this since, but has anyone else? Did this ever happen in an earlier era?