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.