Friday, April 23, 2021

What We Lost in Minneapolis

In the matter of the Derek Chauvin murder trial, we turn to a notable criminal law attorney, one who does not belong to the vast right wing conspiracy.

That is, we turn to Alan Dershowitz, a man of integrity who has consistently defended the criminal justice system. This time, Dershowitz points out the level of jury intimidation involved in the Chauvin guilty verdicts. 

He begins with a simple observation, namely that Rep. Maxine Waters specifically chose to intimidate the trial jurors, in a manner that recalled past efforts by the KKK. Considering that Waters had previously adopted Storm Trooper tactics in an effort to incite public harassment of Trump administration officials, at least she remains consistent in her bigotry.

Lawyer and liberal pundit Alan Dershowitz accused Rep. Maxine Waters of using KKK tactics to intimidate jurors in the Derek Chauvin murder trial.

“The Klan would march outside of courthouses and threaten all kinds of reprisals if the jury ever dared convict a white person or acquit a black person,” Dershowitz said in an interview on Newsmax.

Her remarks should have produced a mistrial:

Dershowitz believes that her comments should have resulted in a mistrial.

“Her message was clearly intended to get to the jury: ‘If you will acquit or if you find the charge less than murder, we will burn down your buildings. We will burn down your businesses. We will attack you. We will do what happened to the witness — blood on their door,'” Dershowitz explained. 

“The judge, of course, wouldn’t grant a mistrial because then he’d be responsible for the riots that would ensue, even though it was Waters who was responsible,” he added.

In a Newsweek article Dershowitz expanded on his concept. It is not just that a not guilty verdict would have provoked mass violence. Surely, in our doxing age, the jurors understood that if they had voted the wrong way they would have been attacked personally. 

Dershowitz argued that the judge should have sequestered the jury. At the least, the actions of Waters and other officials will provide grounds for appeal. Surely, the jurors understood the potential consequences of their actions:

 President Joe Biden, in his comments following the guilty verdicts in the Chauvin case, correctly pointed out that the jury was "under extraordinary pressure." This pressure came from the realization that if the jury failed to convict on the highest charges of murder, there would be violence in the streets. Every big-city police chief and mayor understood this reality and prepared for it. Yet, we are supposed to assume that the 12 jurors who convicted Chauvin of all the charges were not influenced by this obvious reality. The judge, who made an unconstitutional decision not to sequester the jurors, himself acknowledged that Congresswoman Maxine Waters (D-CA) had given the defense an appellate issue due to the statements she made before the judge finally sequestered the jury.

The American people can have no confidence that this jury verdict was not tainted by the threats of violence made outside the courthouse. Those threats almost certainly seeped into the jury room. American justice, and in particular our system of trial by jury, cannot survive if jurors are under "extraordinary pressure" to render verdicts that reduce the threat of outside violence. Trial by jury is a fragile institution that requires jurors to be insulated from external pressures. The judge in the Chauvin case recognized that jurors could well be influenced by the danger they might face if they rendered an unpopular verdict: He took the unusual step of keeping the jurors' names secret. This sent a message to jurors that publicizing their names might endanger their safety. Yet the media provided demographic profiles of these jurors nonetheless, clearly allowing them to be identified by friends and neighbors.

Not only did the judge refuse to sequester the jurors—he also gave them inadequate instructions about listening to outside sources. He repeatedly told them not to watch "the news." But television news is not the only source of information in the modern age. The vast majority of people get their information from other sources, such as the internet, podcasts, radio and television shows that are not necessarily "the news." There are also myriad personal contacts with friends and family members.

Everyone in Minneapolis was on edge about what the jury would do in this case and what the reaction would be if the jury failed to convict on the murder charges. It is inconceivable that at least some jurors were not aware that if the verdict was anything short of murder, there would be riots, violence and threats made to the jurors themselves. This reality may not have consciously influenced the jurors. They may all honestly believe that the evidence proves Chauvin's guilt beyond a reasonable doubt. But it is highly likely that this reality may still have influenced, in subtle ways, the decision whether to convict for murder instead of merely manslaughter. The case for manslaughter was strong. The cases for second- and third-degree murder were highly questionable, both as a matter of law and fact. Yet, the jury quickly returned verdicts of guilty on all three charges.

Sequestration of jurors for an entire trial is difficult, cumbersome and expensive. But I believe that the Supreme Court of the United States should rule that in cases like this one, where there are pressures to convict for fear of mass violence, the jury must be sequestered throughout the entire trial. If this is not mandated, the constitutional rights of defendants in such cases may well be compromised.

Citizens have the constitutional right to protest outside a courthouse. Even a congresswoman has that right. No one should try to curtail the First Amendment. The correct constitutional approach is to permit protests while insulating the jury from them. Sequestration strikes the appropriate constructional balance between the right of protesters to demand convictions and the right of a defendant to a fair trial that is uninfluenced by those same demands.

Among the casualties in Minneapolis was the right to a fair trial. Unhinged rhetoric has consequences. Legitimizing political violence has consequences. Obviously, those who believe in summary justice do not care about minor matters like criminal procedure. And yet, criminal procedure and the due process of law is what protects us from justice by lynching.


Sam L. said...


I used to read of "Minnesota Nice". Clearly, "It's DEAD, Jim."

Sam L. said...

What we lost is Minneapolis? Sanity. Buried in an unmarked grave.

n.n said...

An em-pathetic judgment. The direct evidence does not support the verdicts. A progressive adverse reaction started inside the police car and probably earlier. The probable causes are drug overdose, comorbidities, stress (e.g. criminal conscience) forcing, and a Covid-19 case. The knee across the shoulder blades to restrain violent action, and a lack of forensic evidence of physical trauma, suggests that the alleged cause was unlikely to be a factor in his death.

That said, Chauvin was presumed guilty, and his innocence was not proven beyond a reasonable doubt to appease the mob. Burn the warlock.

n.n said...

A trial by press, a trial by jury, a verdict that is apparently supported by tbe mob ("democracy") in denial of the direct evidence. A witch hunt. A warlock trial. A multitrimester protest, in progress, to stoke diversity, inequity, and exclusion.