When Pundits Express Joy at Derek Chauvin's Conviction

Among the dalliances of the season, none so enraptured a certain kind of political commentator as the conviction on all counts of Officer Derek Chauvin.  To such authorities, it was not so much a trial as a ritual sacrifice to the god of racial justice, in which, presumably, Chauvin should have been proud to play his indispensable role.  "We witnessed something good this week," intoned Peggy Noonan.  "To my mind it was a kind of triumph."

It was a triumph to Miss Noonan because "[i]t meant that black lives matter, George Floyd's life mattered, the police aren't above the law, the system worked ... a jury of your peers confirmed what your eyes saw ... the American nation, which spends so much time putting itself down, retains something that long distinguished it: a conscience to which an appeal can be made," and "the entire nation saw that video and did not look away." 

Certainly, it would have been less of a triumph had the jurors (or just one of them) found reasonable doubt as to any of the counts.  But among the "elements of inspiration" delighting Miss Noonan was the "unanimous verdict from a unanimous jury that had spent the trial taking notes," whose members "were varied in every way — race, ethnicity, sex, profession, neighborhood," and who "came to peaceful and emphatic agreement and spoke with one voice."

They indeed reached "emphatic agreement and spoke with one voice" after but a few hours of deliberation.  As Andrew McCarthy points out, they did so following a three-week trial, without asking for any portion of the transcript to be read back or requesting any further legal instruction from the court.  That was a little unusual, after a trial of such evidentiary and legal complexity.

But Miss Noonan discerned no complexity — she saw the video and could determine cause of death on her own ("what your eyes saw"), the medical testimony in the trial, apparently, being a formality.  And while she does, in fairness, spend some time lamenting the plight of police officers in today's climate, Miss Noonan ignores the possibility that the jury was intimidated or biased.  The fact that one juror recently was shown to have attended a rally sporting a BLM t-shirt would not bother her, since she rejoices that the diverse jury included both "relatives of cops" and "admirers of Black Lives Matter."

Peggy Noonan, at least, never lauds the riotous conduct that may have impacted the trial.  The New York Times' David Brooks, appearing on the PBS NewsHour, was a little bolder.

Brooks observed that the important thing was what did not happen.  "We didn't get an acquittal.  We didn't get civil unrest."  We had to pay a price for peace, and we nobly bellied up and paid it.  "And so we can look with some satisfaction at a trial where I think most people agree justice was done."  That is not all: "we can look back on an episode in American life, from the time of George Floyd's killing until the conviction when race was on the table in a way it hasn't been, in my view, since 19 — mid-1960s."  And that has been "an overall positive, really positive development in American life."

It really is necessary to stand back and perceive the depravity of these words, as one would scrutinize a great painting.  Allowing for the imprecision that can creep into extemporaneous speech and searching for a different interpretation, Mr. Brooks still appears to rejoice that civil peace was purchased by a criminal conviction and to esteem the elevated racial consciousness that followed George Floyd's death — riot, mayhem, murder, and arson notwithstanding — a "really positive development in American life."  He acknowledges that it all presented an "awkward set of circumstances for a lot of people" (the victims of the riots, perhaps?), but certainly not for anyone very important.    

In a nation of laws, a jury renders its verdict not to satiate the bloodlust of an angry mob.  The maxim fiat justitia ruat coelum ("let justice be done though the heavens may fall") is not mere pedantry.  Courts, exercising their criminal jurisdiction, have one job: to look back upon what already occurred and to determine guilt or innocence, the just consequences of completed actions.  It is the Legislature that looks forward and determines what measures will advantage or disadvantage the society.  The day that men are convicted because the verdict will accomplish a grand public purpose, or avoid a public threat, is the day that we dispense with due process of law.

Criminal due process comprises procedures that must be followed if a trial's result is to have validity.  For what distinguishes a legitimate trial from a lynching if not a series of procedures and procedural safeguards that occur in the former?  Obviously, the difference is not that the victims of lynching are always innocent.  The crime may be committed before a multitude, or on film, or on live television and still the strictures of the Sixth Amendment, the most fundamental code of criminal due process in the United States, apply.  It begins, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed" (emphasis supplied).

Due process of law is granted not only out of care that the innocent be spared conviction.  According to the political philosophy that underlies our civilization, we agree to be governed by a sovereign on condition, among others, that it not take away our life, liberty, or property except by legal process.  This is inscribed in the Fifth and Fourteenth Amendments as well as in the natural expectation of a free people.

In the Chauvin trial, the judge would order neither a change in venue nor sequestration of the jurors, which might have shielded them from the prejudicial influences all around them.  These included, without limitation, the recurrent cries for conviction and violent behavior of the mob, the civil settlement with the Floyd family announced by the City of Minneapolis during the trial, yet another nearby police shooting incident involving a black suspect, and the prudent musings of Congresswoman Maxine Waters.  Miss Waters's cry for blood led the trial judge to opine that she may have given the defense a strong basis for appeal, though he declined to obviate that appeal by granting a new trial himself.

Will an appellate court find that Derek Chauvin was tried before an impartial jury?  It is likely to do so if it concludes that the evidence against him was compelling — that is what both National Review's editors and Mr. McCarthy surmise.  As a practical matter, it may be so.  The trial court's decision not to sequester the jury will be deemed "harmless error" — that is, an impartial jury presented with such evidence would have convicted.  Or maybe the actual jury was impartial and the conviction was attributable to the strength of the prosecution's case.   

That is not how it should be, however.  A violation of the defendant's right to be tried before an impartial jury cannot be "harmless error," it being intrinsic to due process of law.  So said the Supreme Court in Gray v. Mississippi (1987).  A man accused of a crime has the right to be tried before a jury not predisposed against him, not predisposed by animus, corruption, or fear, and that is all.  If the evidence is so strong, another jury, one that is impartial, will convict after the new trial, to which Chauvin would seem entitled.

There is here no expectation that the defense actually will win such a new trial.  Nor is there affirmation of the defendant's innocence.  But the trial and conviction of Derek Chauvin, enacted with the Damoclean sword of BLM raised above the courthouse, was not a "triumph" or a "positive development," no matter how many elegant paragons come to dance around Chauvin's remains.

Image via Flickr, Public Domain.

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