Reaching The “Right” Verdict

I was asked my best guess as to the verdict in the Derek Chauvin prosecution, and replied “It will either be guilty, not guilty or hung.” If the jury hangs, it will be a mistrial, not a verdict, of course, but the point is no one knows what a jury will do. That’s the point of juries, that we put the decision in the hands of “twelve good men and true,” and then wait.

Some people can’t wait. Maxine Waters, the person some people from California deemed wise enough to send to Congress, called for protesters to “get more confrontational” if Chauvin isn’t convicted. Others smeared the former (which is a nice way of saying some poor random person’s because these are really passionate critical thinkers) house of defense use-of-force witness Barry Bodd with blood and a severed pig’s head.

“Officers arrived to find the front of the victim’s house smeared with what appeared to be animal blood and a decapitated pig’s head near the front porch,” the statement said.

The suspects were dressed in black and ran away.

This will no doubt make it a bit more difficult for future unpopular defendants to get people to testify at their trials. And despite the assumption that a congressperson knows how trials work, and that the verdict is put to the jury, not to encourage destruction and violence should the jury not reach the verdict that will make her constituents vote for her long after her expiration date, Waters couldn’t pass up the chance to get on TV. Again. This, ironically, is a person cheered by those who await their next opportunity to loot and burn, demonstrating how they are really smart people who understand stuff.

Despite these efforts to influence the outcome, not by facts or reason, but intimidation, retaliation and threats of violence, the summations in the Chauvin case were revealing. The characterization in the New York Times opens exceptionally poorly, with a bizarrely editorialized paragraph.

Arguments began with a commanding rebuke of the defense’s case from one of the prosecutors, Steve Schleicher. He called several of the defense’s points “nonsense” and said that Mr. Chauvin betrayed his oath as a police officer.

“Commanding” is a particularly odd word choice here from someone paid to report the news, even more so because the burden of proof is on the prosecution. Denigrating the defense, notably in advance of its summation and thus anticipating its arguments, is generally frowned upon as prosecutorial misconduct. Here, it’s characterized as “commanding.” From there on, however, the descriptions of the summation were fairly good, largely consistent with my quick summary of closing.

  • Mr. Schleicher began with a chilling description of the arrest, setting the tone for his primary argument: That jurors should “believe their eyes” when they watch the videos of Mr. Floyd being pinned to the ground for nine minutes and 29 seconds. Mr. Schleicher talked about the “unyielding pavement,” and what he believed to be Mr. Floyd’s desperate struggle to lift his chest and fill his lungs with air. He reminded jurors of Mr. Floyd’s last words, “Please, I can’t breathe.”

  • He reinforced what Mr. Floyd’s brother and former girlfriend told the jury: That Mr. Floyd was loved by many people who knew him, that he loved his mother, that he was more than the symbol he became in death. He died “surrounded by strangers,” Mr. Schleicher said — pinned between the pavement and the knee of Mr. Chauvin. “Not a familiar face to say his final words,” Mr. Schleicher said. “But he did say them to someone — he said them to someone who he did not know by name, but he knew him from the uniform he wore and the badge he wore, and he called him ‘Mr. Officer.’”

  • A primary focus of the prosecution was dismissing some of the arguments of the defense. “You’re not required to accept nonsense,” Mr. Schleicher told jurors, pointing to the opinion offered by a defense witness that Mr. Chauvin’s restraint of Mr. Floyd did not constitute use of force, and that the exhaust from the tailpipe of a police cruiser might have contributed to Mr. Floyd’s death. “Use your common sense,” Mr. Schleicher said. “Believe your eyes. What you saw, you saw.”

The prosecution’s main summation was a flagrant appeal to emotion, an appeal to “common sense” rather than science or medicine, and emphasis on the catchphrase of “common sense, not nonsense.” Years ago, long before anyone had ever heard of George Floyd or Derek Chauvin, I explained why prosecutors appeal to “common sense.

Certainly, it was terribly sad that George Floyd died “surrounded by strangers,” but aside from evoking emotion, it contributes nothing to the question of whether his death was a crime. Rarely has a closing been as flagrantly irrelevant and deliberately prejudicial.

The defense seized upon the prosecution’s “nonsense” argument to its advantage.

  • Mr. Nelson focused largely on whether Mr. Chauvin acted the way a reasonable police officer would. He reinforced ideas that he had proposed during the three weeks of witness testimony, including that suspects who do not appear to be dangerous can quickly become so. “A reasonable police officer understands the intensity of the struggle,” he said, pointing out how difficult it was for Mr. Chauvin and other officers to put Mr. Floyd into the back of a police cruiser.

  • He also highlighted the moment that Mr. Floyd took his last breath, showing those few seconds from the vantage point of a security camera. At that moment, Mr. Nelson said, a crowd of angry bystanders, who could also pose a threat to officers, was becoming louder and louder, and that Mr. Chauvin pulled a can of mace from his belt — a sign that he felt he was in danger. “All of the evidence shows that Mr. Chauvin thought he was following his training,” he said.

  • Mr. Nelson hit on the issue of “intent,” asking jurors to consider whether Mr. Chauvin would have purposefully caused unlawful harm to Mr. Floyd. Noting that several body-worn cameras were recording the incident, along with the cellphones of bystanders, Mr. Nelson asked jurors why a person would purposefully break the rules when they knew they were being filmed and that their actions would be reviewed by their supervisors.

  • On Mr. Floyd’s cause of death, Mr. Nelson said it was “preposterous” for the state and several of its witnesses to have asked jurors to ignore a host of possible contributing factors, including Mr. Floyd’s pre-existing heart problems and drug use. He insisted that the defense’s focus on Mr. Floyd’s drug use was not an attack on his character, but was prompted by the issue’s medical significance.

In yeoman-like fashion, Nelson worked through the evidence piece by piece, showing it separately, together and interspersing it with images of the law and police policy to raise the question of what a reasonable police officer, per Graham v. Conner, would do. Whether it was sufficient to convince the jury that Chauvin’s choices were right wasn’t as much the point as to convince the jury that the defendant’s conduct was not unreasonable under law and policy. Where the prosecution denigrated the defense with the ad hominem of “nonsense,” Nelson methodically gave the jury non-nonsensical reasons to doubt Chauvin’s conduct was criminal.

The rebuttal summation by prosecutor Jerry Blackwell was, to be blunt, bad.

  • Jerry Blackwell, another prosecutor, responded to the defense by continuing to urge jurors to follow “common sense,” saying that even a 9-year-old girl who testified earlier in the trial could see that Mr. Chauvin was hurting Mr. Floyd.

  • Using a chart that showed a dot for every day that Mr. Floyd was alive, Mr. Blackwell spoke of how unlikely it would be that Mr. Floyd would happen to die on May 25, if not for Mr. Chauvin’s use of force. Jurors must decide whether Mr. Chauvin’s restraint was a “substantial factor” in Mr. Floyd’s death, not whether it was the sole factor.

  • Mr. Blackwell ended his rebuttal by reminding jurors that some witnesses had said Mr. Floyd died because his heart was too big. “Now, having seen all the evidence, having heard all the evidence, you know the truth,” he said. “The truth of the matter is that the reason George Floyd is dead is because Mr. Chauvin’s heart was too small.

To the extent Schleicher’s summation was a flagrant appeal to irrelevant emotion, Blackwell doubled down. Rather than heed the expert witnesses, convict because “even a 9-year-old girl” could tell? And the Grinch close, with more prosecutorial impropriety by bolstering his side  (“the truth”) and again denigrating the defense (“shading the facts,” objection sustained), Chauvin’s “heart was too small.” This was childish crap, which does not mean it won’t resonate with the jury, but it’s embarrassing in a courtroom.

So this means the jury will return a not guilty verdict? Hardly. Nor does it necessarily mean the jury should do so, as the case is tried on evidence, the testimony and other evidence admitted during the trial, and summations are merely argument. But as Maxine Waters and the black-clad pig people make clear, they are no longer interested in a trial, in a jury, in a verdict after deliberations. They want “guilty” and will tolerate nothing else at the end of this show or cities will burn.

As the jury hasn’t been sequestered, it seems almost impossible for them not to be well aware of what’s happening, the efforts to make clear that any outcome other than the “right” verdict will result in horrible consequences. And should they, the anonymous-for-now jury not do as demanded, and their identities become publicly known, their lives and the lives of their families are at extreme risk.

It’s understandable that people can’t tolerate waiting for the verdict here, particularly since they’ve been told that there can only be one “right” verdict. If anything else happens, it can only be for the worst reasons and not because Nelson gave a far more effective closing than the prosecution.

36 thoughts on “Reaching The “Right” Verdict

  1. Mike

    Who would have thought it would be the actions of the prosecution, in a case like this, that would cause someone to feel bad for Chauvin and the defense. Never thought I would get that far until I read the last snippet of summation.

    Is that wrong?

    1. SHG Post author

      I feel less bad for Chauvin than I do for what’s to become of trials, where so few of us care whether the basic tenets of law are honored rather than making sure the outcomes meet social justice demands.

      1. John Barleycorn

        That’s what happens when officers of the court stopped packing lunch.

        And just about when someone was sure to come up with a catchy basic tenets nursery rhyme song too.

        Oh well, at least the judges aren’t sporting tribal neck tattoos yet right? Maybe they should…???

        You could always break out the cheerleader supply cataloge, esteemed one, and start a YouTube channel. You might look good in wristbands and tights……

  2. Derek Wilson

    Does it not seem likely a conviction would be overturned on appeal due to jury intimidation? It seems the trial court erred in not sequestering or not granting a change of venue.

    1. SHG Post author

      It’s mind-boggling that the jury wasn’t sequestered here if the court wanted to assure a fair verdict, but reversals don’t come so easily.

  3. Tracie Goldman

    How does Nancy Pelosi let Maxine Waters get away with saying that when many GOP adversaries have been called out? I am certainly no Republican but pointing out the Democrats hypocrisy is what I do because the Democrats have made inappropriate unprofessional comments too.

    And yes i fear major rioting and jurors fear for their lives if it’s a acquittal. Nicole Wallace already confirmed him as Guilty at 4pm yesterday on MSNBC too.

    1. SHG Post author

      Waters is an elected representative. She gets to say whatever she wants to say, and it’s up to her constituents whether they want the person who said what she said to represent them in Congress. Apparently, they do. That’s democracy for you.

      As for MSNBC, it’s feeding the outrage machine on the back end should the verdict not live up to their conclusions. It’s their brand.

  4. B. McLeod

    It has also occurred to me of late that the prosecution may have overplayed the emotionalism card, potentially creating some jury resentment at the obvious attempt to manipulate. That really seemed out of place at times, and the defense may have been letting in the irrelevant emotional evidence throughout in the hopes of seeing the jury come to this perception.

    1. SHG Post author

      That’s a point I factored into my analysis as well, but it’s possible the appeal to emotion will play well with the jury. It’s become all the rage.

    2. Rengit

      I don’t think wrapping things up by painting Chauvin as the Grinch will play well with the jury for two reasons. First, it’s a children’s book, and it’s insulting to most people’s intelligence to say in so many words “the defendant is like the Grinch.”

      Second, did the prosecution not realize that the Grinch is redeemed by the end of the book and ends up as a good guy? How does a team of lawyers miss something like that?

  5. Hunting Guy

    It won’t do any good, but maybe a JAG could explain to Maxine Waters just what “command influence” is.

    Yeah, yeah, military vs. civilian law. IANAL, but surely there is some equivalent in the civilian justice system.

    1. SHG Post author

      I thought of command influence as well, and the judge wasn’t exactly complimentary toward Waters about her comments.

        1. SHG Post author

          Poor choice, but at least it waited until after the jury was sequestered. Not good enough, but better than nothing.

  6. Dan

    I’m struggling to see how there’s any other appropriate result but a mistrial. Between the prosecutorial misconduct, the jury tampering (and their not being sequestered, making it even easier to tamper with them), and the witness intimidation, there’s no way in hell this is a fair trial (and if the jury do return a two-word verdict, they deserve medals for heroism).

  7. Pahdraig

    The last jury I sat on the prosecutor tried to do similar crap. It was not only irrelevant, but it also pissed me off. One, it was a complete waste of time; it had nothing to do with whether the defendant did what they said he did. Two, it was clearly a relatively revealing photograph of an older woman who probably didn’t want that kind of photograph publicly shown. There was no need. Her bruises told me nothing about who did what. Neither did anyone else’s.

    Hopefully, the people on this jury recognize that kind of emotional nonsense, regardless of which side it comes from, and ignore it. It’s all a completely frustrating waste of time; it says nothing about who did what, or why. I wonder if there’s ever an actual discussion by the attorneys, or thought given to the fact that a juror might be less than happy being forced to listen to irrelevant bullshit.

    1. SHG Post author

      Some lawyers like to believe we have a deeper understanding of what’s really going on in juror’s heads. Not good lawyers.

  8. Bob G

    It is Tuesday, isn’t it?

    I haven’t been following the trial closely, and a lot of what I’ve heard second hand sounds almost inexplicable. But I found it remarkable that the two most important prosecution witnesses (the use-of-force guy and the doctor who claimed he could tell exactly when and why Floyd died from a cell phone video) have never testified in a criminal trial before. I wonder how many doctors and cops someone had to interview before they found those two. Aren’t we supposed to be getting away from hanging people based on the opinions of cherry-picked “experts” whose testimony amounts to little more than “trust me, I’m a doctor”?

    But then again I’ve never understood how you can anything but reasonable doubt when experts disagree about material elements of the offense. Bleh.

  9. Jake

    Framing your post in the specter of civil unrest over the outcome is an interesting choice. I know that you know all of this analysis will amount to nothing to the mob, that doesn’t know or care if one officer or the system that customarily allows them to do things like murder a handcuffed and prone suspect with impunity is on trial. We all did see, with our own eyes, what happened that day as one or the other ground the life out of a man, innocent until proven guilty, of passing a counterfeit $20.

    And the mob, in reference to this case, in cities around the country, made it abundantly and expensively clear what their verdict is last summer. As the system is now sufficiently been advised the only interesting question that remains is whether the system, ostensibly responsible for the safety of the public and their property, will alter its approach, the mob will run out of steam, or we will descend further into chaos.

    One day, this will all be different. Even before everyone had an internet-enabled movie studio in their pocket, it would have been accurate to observe that change is inevitable. Accepting this truth to be self-evident and bearing witness to the sometimes savagery of past revolutions (be their tactics bullets or ballots), I do sometimes wonder how bad it will get for the holdouts.

    1. SHG Post author

      One day, this will all be different. You’ll be making the opposite empty argument against the conviction of some black guy for killing someone and fail to see why I’m smiling.

      1. Jake

        Oculos habentes non videtis. I’m not making an argument today my friend, empty or otherwise.

    2. Jardinero1

      The counterfeit twenty was not the cause of the use of force against Floyd or the cause of his death. The causal factor in the use of force, which ultimately resulted in his death, was Floyd’s resisting arrest. Resisting arrest is a capital offense in every state and municipality of this country. Don’t resist arrest, this advice could save your life.

      1. SHG Post author

        Unfortunately, this distinction is almost invariably ignored by people who mistake the initiating event for what subsequently happened. Even more unfortunately, compliance is no guarantee either.

          1. Jake

            I know. There’s a reason why we use a funnel metaphor to evaluate the number of people we successfully persuade in marketing. I get paid the big bucks to move the needle on 1 out of 1000 people.

            Then again, my audience isn’t trapped in a box for 8 hours a day where they are forced to listen to me and then pick one of a fixed set of choices.

      2. Richard Parker

        “Resisting arrest is a capital offense in every state and municipality of this country.”

        Really? A capital offense? Did you mean felony? I looked up the definition of capital offense (see below), but I am no a lawyer so I may be missing something”

        “n. any criminal charge which is punishable by the death penalty, called “capital” since the defendant could lose his/her head (Latin for caput). Crimes punishable by death vary from state to state and country to country.”

        1. SHG Post author

          It’s a metaphor, that any offense enforced by the police can end in execution should things turn south.

          1. Richard Parker

            Understood now. I tend to think that words have exact, precise meetings. Sometimes this makes me the life of the party as the other party goers are pulled magnetically to my presence.

  10. Mel Bis

    The felony murder charge doesn’t seem to hold up for me. What is the predicate felony? Can they really try and say the predicate felony is assault? Wouldn’t it have to have been intended?

    1. SHG Post author

      I lack sufficient knowledge of MN law to understand exactly how their felony murder statute works in practice, and find it somewhat surprising that the case wasn’t tried, and the jury wasn’t charged, that they must find a specific felony to have been committed. What is also interesting is that MN has not adopted the Merger Doctrine, that if the underlying felony is the same as the cause of death, it cannot be felony murder.

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