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Wednesday, April 21, 2021

FACTS ARE STUBBORN THINGS

 This the 4,310th blog post, This is the first time I am not using the "royal we" or writing under the pomposity of the Rumpole character I have developed.  

I am disheartened by the verdict in the Derrick Chauvin case, and I am having trouble sorting out my feelings. As a criminal defense attorney I have handled hundreds of cases where the racism of the arresting officers was apparent. One homicide detective I have known for decades, during a break in a deposition, made a reference to people like my client (an African American young man) as "animals". 

I once stood in a Broward court room representing a young black man beaten by the police after a bad stop. The judge decided to have some fun with a Dade lawyer and called my case out of order first, on a Monday morning with a jury box full of police officers.  The officers in the box jeered; they objected to my questions; they would yell "overruled" when I objected and the Judge lets it all happen. Afterwards I held the young man's mother as she sobbed into my arms. We were both shaken by what we had experienced. 

Like countless defense attorneys, I have seen booking photos with my client's eye swollen shut.  Once, in a case I tried I had a blow up of my client's booking photo- his  eye swollen shut. The officer had - I kid you not- a broken fingernail. The plea offer for a young African American man with no priors was five years in prison. NG. But no one should be charged and have to endure a trial on such facts. 

I am aware of the rage of decades of police officers killing young black men and being acquitted. James Chaney, Andrew Goodman, and Michael Schwerner, were arrested for registering black votes in Mississippi in the summer of 1964. The police drove them to the edge of town and then handed them over to the Klu Klux Klan who  murdered them. Several  officers were indicted and the case was assigned to Federal Judge W. Harold Cox,  an avowed racist. Seven defendants were convicted. Four were sentenced to three years (for murder!) one to six years, and two to ten years.  In the the words of the judge, all they did was "kill a n(word)  and a Jew".   Such injustice, pain, and racism burns deep in the collective conscience of our country. It is a stain upon our national soul. 

Derrick Chauvin murdered George Floyd on video. His use of force was excessive. He used his knee to squeeze the life out of a man who was considered kind and gentle and who was claustrophobic and was afraid of being handcuffed and placed in the back of a video. 

And yet....

My colleagues, who venerate John Adams successful defense of British soldiers who fired into a crowd in the Boston Massacre case were applauding as loud as President Biden and President Obama who praised the verdict. So much for the chances of an appeal and a re-trial. Public Defenders who never want to see anyone convicted have been rejoicing.  Feeling against racism run up against the legal principles we so revere. In this case, our principles have been discarded. "We got the bad guy" is the rallying cry of the world. 

The ENTIRE WORLD wanted Derrick Chauvin convicted. And this offends me and worries me. The pressure for a conviction and a severe sentence is beyond anything I have ever seen in any criminal case. The defense was laughably bad. Where was the cross examination of the  expert doctor witnesses about whether they know what it feels like to kiss their family goodbye in the morning and not know if they will return at night? How many of them have ever tried to effectuate an arrest of a suspect who outweighs them by 50 or 75 pounds surrounded by a hostile crowd? Where was the evidence of Chauvin's commendations and the times he has put his life on the line to do his job? Where was a Richard Sharpstein, slashing at the state's case, witnesses withering on the stand under a professional, experienced cross examination. Where was the Gerry Spence, telling a story about how dangerous it is to be a police officer  and developing a theme of the case?  My colleagues are nowhere to be found on this case.  No, this was not a defense. It was a slow, public plea of guilty under the guise of due process. 

My friends of color, who have endured the decades of pain and rage do not care. "He got more due process than..." fill in the blank of many black defendant's wrongfully convicted, or the many young black men and women killed by the police. 

I understand the anger. Somewhat, because I freely admit I have never been discriminated against by the color of my skin. So I cannot fully understand the anger and pain or the frustration of not having a voice that will be listened to. I grasp it intellectually. That is all I can say after deep reflection. 

But I cannot accept the concept of payback. I do not visit the sins of the father on the son. I endeavor to treat every man and woman as a unique individual, and I feel that Chauvin's outcome was pre-destined regardless of the defense, regardless of any evidence that might show he was acting lawfully to arrest someone who was resisting. And perhaps this is the worst case to make a stand because we can all see what Chauvin did and how he murdered George Floyd. 

But as a defense attorney, this is where I make my stand. In the worst cases with the clients accused of the worst crimes. 

Over these past few weeks I have been  constantly reminded of the Holocaust era poem of  German pastor Martin Niemoller- "Then they came for me." 

This week they came for Derrick Chauvin and the entire world applauded. 

And that has be worried. 

32 comments:

CAPTAIN JUSTICE said...

4272. But who’s counting.

All valid points. But in some cases the facts are so stubborn that Gerry Spence, Richard Sharpstein, and even you could not have changed the outcome.

Should there have been a change of venue. I think so.

Was the defense attorney’s performance average at best. I think so.

Should the jury have been sequestered from day one (assuming Minnesota) law permits that. I think so.

But I also think that the jury saw what they saw and no amount of great lawyering could change what they saw on that video.

Cap Out .......

Anonymous said...

John Adams' defense of the British soldiers in the Boston Massacre was itself an act of cynical race baiting.

Adams started by rejecting the characterization of those who surrounded the sentry as just a group of rowdy local teenagers—“shavers” in 18th-century parlance. “We have been entertained with a great variety of phrases,” he said, “to avoid calling this sort of people a mob.” Adams had to rectify that. In “plain English,” this was “most probably a motley rabble of saucy boys, negroes and molattoes, Irish teagues and outlandish jack tars. — And why we should scruple to call such a set of people a mob, I can’t conceive, unless the name is too respectable for them.” And then Adams likely drew a laugh by observing, “The sun is not about to stand still or go out, nor the rivers to dry up because there was a mob in Boston on the 5th of March that attacked a party of soldiers.” Here is one under-celebrated aspect of Adams’s genius on display: he transformed the crowd into outside agitators, and then he tried to make the jurors laugh. He created the intimacy of the inside joke, the coziness of a dinner table conversation among the like-minded. In doing so, he gave the jury permission to despise the victims.

...

He needed the jury to focus on the spectacle of “Attucks with his myrmidons” coming “round Jackson’s corner, and down to the party by the Sentry-box.” He wanted the jury to imagine the soldiers, already surrounded, and then seeing “reinforcement coming down under the command of a stout Molatto fellow, whose very looks, was enough to terrify any person.” Pause here, and note the echo across the ages to Ferguson, Missouri, in 2014, when Michael Brown’s killer described how he had to shoot the unarmed teen because he was terrified when Brown came charging toward him with “looks like a demon.”

Adams also described Attucks charging at the soldiers. He argued that the soldiers were justifiably frightened when Attucks “had hardiness enough to fall in upon them, and with one hand took hold of a bayonet, and with the other knocked the man down.” I would pause here again, because Adams has fastened on the least plausible version of the facts, drawn from a single witness’s description of the actions of a man he “thought” was Attucks. Many witnesses testified that they saw Attucks there, stood near him, or watched him fall, but only one described him taking part in the active fighting. Two witnesses directly contradicted Adams’s narrative. Both testified that Attucks remained 12 to 15 feet from the soldiers when the shooting began, too far away to “take hold of a bayonet” or to knock a man down. And one of them remembered that Attucks stood resting his chest on the end of a long stick, and that this was how he was shot—in a posture of repose.

But having decided on a useful story, Adams ran with it: “This was the behavior of Attucks;—to whose mad behavior, in all probability, the dreadful carnage of that night, is chiefly to be ascribed.” Again, Adams drove the wedge between Attucks and the Boston jury. The true victims here were Boston itself and white Bostonians, the jurymen included. “It is in this manner,” Adams explained, that “this town has been often treated; a Carr from Ireland, and an Attucks from Framingham, happening to be here, shall sally out upon their thoughtless enterprizes, at the head of such a rabble of Negroes, &c. as they can collect together,” and afterward many would “ascribe all their doings to the good people of the town.”

https://theamericanscholar.org/black-lives-and-the-boston-massacre/

Anonymous said...

I agree with CAPTAIN JUSTICE - 100% "...But in some cases the facts are so stubborn that Gerry Spence, Richard Sharpstein, and even you could not have changed the outcome."

Anonymous said...

I agree with a good deal you wrote, except on one point. 45% of this country wanted that guy acquitted.

Enlightened people, as most defense lawyers and liberals are, watched that video and understood him to be guilty of murder. I am not going to shed a tear that he could have had a better defense. The jury should have convicted him because he is guilty. Deal with it on the ineffective motion, and I hope it gets good and fair consideration.

That cop is a product of a system that values police life, and the brotherhood of cops, above the truth, empathy and decency.

He is a product of a system where all cops can say “I walk out the door and don’t know if I am coming home”, and be excused for horrendous atrocities. The courageous cops who die in the line of duty protecting others, provide cover and excuse for the timid majority of them who tolerate lies and vicious behavior from the minority among them, who like that cop in Minnesota, enjoy inflicting pain and controlling other human beings, and who lie, cheat and steal, and who too often needlessly murder black Americans.

You call a cop brave, I ask when was the last time she reported her colleague for making up shit on an a-form, or told them to stop when their brother cop was beating the shit out of some poor black guy, or telling some guy on the side of the road who he just sprayed with mace that we can let this go, or you can complain and go to jail.

Everything they do is done to make sure they-not somebody else, go home.

Cops do do good work, necessary work, but I am sick and fucking tired of that good work being used as license to lie and do whatever the fuck they want to whomever they want.

Until the police begin to hold each other accountable, and to a higher standard, which means decency and honesty, we are good and truly fucked.

On a side note, I am not some cop hater, I value and appreciate good law enforcement. One recent example being the cop in Ohio who is getting pilloried for shooting that poor girl. What was he supposed to do? Stand by and let her murder another human being? But I also expect that cops view mistreatment by other police officers of helpless people the same way he viewed the young lady charging with a knife-as something that must be stopped to protect victims.

Anonymous said...

Brave post. I had the same sentiments. He will not survive long enough to finish that sentence unless he's in solitary confinement the entire time.

Anonymous said...

I actually think that the only stubborn fact in the entire case was the video - but for which Chauvin would’ve been acquitted. I agree with the broader concerns in your argument, however this isn’t the right case to beat yourself up. Chauvin’s fate was pre-determined because he was videotaped killing a defenseless man. The world wanted him convicted because he’s on video killing a defenseless man. I do hope that they come for everyone who is captured on video killing another under the same circumstances - for not to do so would be equally worrisome.

Anonymous said...

We are coming for the fat white cats. From the ME TOO movement to Black Lives Matter to the LGTBQT movement. All of you fat white cats should be shaking in your polished leather shoes. Too long have we had to endured your patronizing leering stares. Too long have we had to step aside as you stare down your patrician noses while we clean your homes and your offices.
You filled the legislatures by denying our right to vote; you filled the law firm leadership because you refused to hire women and then didn’t promote them because they were just baby factories; you filled the judiciary because there weren’t any women lawyers; you even filled the posts of the patrons of the arts because you needed some tax deductions; and you filled the school principals office. You told us how to walk and how to think how to learn and who we could love and then judged us and beat us if we did not conform to you white cat world.
Well, you are learning that we can fight back and you will learn that we come in all different shapes and sizes and colors. We will no longer be pushed aside and discounted and we will fill Congress and the Judiciary and the schools and we will teach a different message. The message is clear, we are all different but we all want freedom from fear and judgment. We are all humans and we should judged on our own lives not on your preconceived notions of me based on my color or my gender. Let us be known for our efforts to be kind and be loving and to create a world where all people have the right, the expectation, the desire, and the freedom to walk without fear and judgment.
Spare me your intellectual consideration of my feelings. You don’t have to grab your keys as a weapon when you walk to your car after work. You don’t have to cover up your body to make yourself hidden from leering eyes. You don’t have cops follow you in the store just because you are black or brown. You don’t have to teach your sons to fear the police, You don’t have to teach your daughters to not say what they think unless asked.
As for the white police officer who kneeled on a mans neck while a child told him he was wrong, he was not lynched, he did not waste away in jail waiting for his day in court, he didn’t have a lawyer thrust upon him he met the day before, he was afforded a choice and he was judged for who he was and was convicted by a jury.

Anonymous said...

This was a unique case in many respects but the most interesting part of it was that pretty much everybody in the country was a first hand witness to the murder and participated in some way or another in the heated discussion afterward. It was as if we were all jurors and witnesses at the same time. This is not the case where publicity was poisoning the public mind in the community where it happened and diminished with distance. In terms of knowledge of the offense, every major city in the country was the same. Other than the array of excellent medical experts there was no new evidence submitted to the jury that hadn’t been already consumed and considered by everybody. With that said, there were no Cochran’s or F. Lee’s or even Dardens and Clarks, the flash and sizzle came from the witness stand and not the lawyers. The drumbeat for Chauvins conviction and punishment was loud and steady but legitimate and reasonable just the same. It is a testament to the greatness of our nation that the defendant was released on bond, received a fair trial and the process played out without interference, in spite of the general outrage.
Chauvin will be fortunate if he is sentenced only for the murder and not for the damage he was directly responsible for. He joins Oswald and Manson in the annals. I wonder what goes through his mind as he considers his fate and his contribution to the human family.

Anonymous said...

This trial has set a new precedent: the validation of mob justice.

Anonymous said...

When we give police uniforms with the power to carry weapons and to order us around in the name of public safety, then they must be held accountable for how they wield that power. Too often they are not. This time one was. Don't wax poetic to me about the demise of liberty, rather celebrate that justice was done and this officer was convicted for what he did. Because what he did was murder even as he wore a uniform.

Anonymous said...

Two things can be correct here:
1. He did not have the best defense attorneys who did not present the best defense.
2. He was guilty
The impression I was left with after your post was that you think if some hotshot super legal mind put on a better defense, then he would have been found not guilty.
In many of the other publicity filled similar cases, police officers have had effective counsel; and the cases against the officers were not as strong - thus the not guilty verdicts we have seen.
The public reaction to those other cases is what bothers me. 'Justice' is not always a guilty verdict as the public outcry suggest.
In this case, I think the verdict was correct

Anonymous said...

@8:25am: I do not understand how this case validates mob justice. Were people invested in this trial? Yes. Did people have strong opinions about what the outcome should be? Yes. That's what happens in high-profile cases.

But did the fact that this particular case received a lot of media attention and cause substantial public outcry even remotely affect the outcome? Certainly not. The evidence supporting conviction was overwhelming.

8:25's statement seems to suggest that any conviction in a high-profile case constitutes "mob justice." Talk about hyperbole.

Anonymous said...

So the person at 6:44 who wrote:

“We are coming for the fat white cats. . . . . All of you fat white cats should be shaking in your polished leather shoes.”

Also wrote:

“We are all humans and we should [be] judged on our own lives not on your preconceived notions of me based on my color or my gender.”


So, which is it? Are you a skilled literary ironist? Or just a another hateful bigot?

Or can you simply admit that it isn’t racial or gender bias you oppose at all, but merely racial and gender bias directed at those whom YOU do not hate for THEIR race and gender?

Anonymous said...

12:02 fat white cats are disdainful of all, even those who feed them and pet them and clean up after them. Fat white cats sit in their penthouses and look down on the world not because of any great achievement but by accident of birth or luck. If the description fits you or someone you know then so be it.

Anonymous said...

Fake Alex Michaels says: video schmiddio. I win trials wit videos all z time. Me chauvin lawyer- me vin case.

Anonymous said...

I doubt that the Broward incident ever happened. Why would there be an evidentiary hearing on a busy Monday morning?

Anonymous said...

11:49-"45% of this country wanted that guy acquitted"? Site your source. I would say less than 1% wanted that guy acquitted.

Anonymous said...

11:49 - Tucker Carlson. The mouth piece for 45% of the country. Remember, that is not all republicans. Only the ones who took a loyalty oath to DJT.

Anonymous said...

Oops, sorry, I should have written 70% of republicans don't believe it was murder.

https://www.ipsos.com/sites/default/files/ct/news/documents/2021-04/Chauvin%20verdict%20snap%20poll%20042121_0.pdf

BTW - my number (45% of all Americans) is much closer to the correct number (30%+/-) than your 1%

Sir Wilfred said...

Look at the pictures and video from behind the cops , by the passenger side. There arev2 other cops pressing down on his lower and upper back. That is what caused the heart to fail and Te poor man dying. He could not fill his lungs with air nor use his diaphragm and abs to breath. There was no bruising on the neck, no clot or hemorrhage to the brain, which is what would happen by restricting blood flow through the neck to the brain . Chauvin did not kill Mr. Floyd
the other guys did. His mistake was delaying CPR and obstructing the EMTs. As to change of venue, remember Luzano, The McDuffie riots...

Anonymous said...

I remember watching that video the first time and the look on Chauvin's face as life was draining out of George Floyd's body. No amount of expert lawyering could overcome my visceral reaction. I doubt any jury anywhere would have reached a different result.

Anonymous said...

Case in point. One cop in this video is brave. The other is not. Hint, the brave one is not the one punching the woman in the head:

https://www.tmz.com/videos/2021-04-22-042221-westminster-police-1071726/

Anonymous said...

Supreme Court told Marty Zilber to resign. They disapproved the deal.

Marty will resign next week.

Anonymous said...

Don’t resign Judge Zilber.

You are my hero. You are courageous. If you resign - the Bar will move to disbar you immediately and never let you practice. Hold your head up high. Stay a world class Judge. We all love you and forgive you.

Anonymous said...

It is a fair assumption that pretrial, the prosecutors tendered Chauvin a maximum jail sentence. Of course, the defense declined, calculating that they could do no worse by going to trial. The evidence in this circus trial was overwhelming. Guilt was a foregone conclusion. The primary purpose of the trial was to stir National passions. I believe that the poster child example of Chavin will deter some of those sworn to protect and serve from arbitrarily killing their African American detainees.

Anonymous said...

The entire Chauvin trial reminded me of an old western movie; The honorable sheriff arrests the stage coach robber and puts him in jail to wait the arrival of the circuit riding judge. The robber is guilty and we all know he will be convicted, but the mob refuses to wait. The mob attacks the jail, grabs the robber, and hangs him believing that "justice" has been done.

Chauvin is obviously guilty of Manslaughter. But that trial was a horror show. Civilians testifying about their "feelings" instead of what they saw/heard, a 9yo child was put on the stand to relay cumulative evidence and be used as a catchphrase in closings, multiple "experts" testifying that [heart disease + overdose levels of illegal drugs in the Victims system + high blood pressure + blocked arteries (one 90% one 75%)] all had NOTHING to do with Mr. Floyd's death, the original medical examiner and his report being "interpreted" by another witness... we could go on and on. I do not understand how anyone can call that mess a "fair trial."

And lets not forget that the prosecution team of 13 lawyers only had THREE actual prosecutors on it, the rest were pro bono special appointees, including a (famous for Minn.) Civil Rights lawyer and a former solicitor general who has argued before the USSC at least 10 times. The defense got ONE guy who was "allowed to consult with members of his law firm."

Our legal system is based on the core principal that everyone deserves a fair trial, even the obviously guilty. Chauvin did not get a fair trial. So while Chauvin deserves to rot in a cell for the next couple decades for his grossly negligent behavior that resulted in the death of George Floyd, this trial was an embarrassment to the entire legal system.

Anonymous said...

Martin Zilber: "Okay Florida Supreme Court, how about I admit I lied, I pay back 30k for what you caught me stealing and I come back in 60 days? If you need to reach me, I'll be on my yacht in Malibu or in my house on Martha's Vineyard counting my millions. And can I pay the fine on my platinum Amex so I can get the miles? The Wife and I want to get out to Aspen for the weekend. As you can see from my social media, the family and I love to travel, especially when I can get paid for it."

Florida Supreme Court: "No soup for you."

Martin Zilber: "But I promise I'll do better"

Florida Supreme Court: "Sorry Marty, coach wants to see you in his office. Bring your robe and your playbook."

BR said...

Did Chauvin's lawyer seek to admit Minnesota police training manuals or or any training videos showing the use of the neck restraint? Did he pull prior BWCs showing it being used by other Minnesota police officers?

Anonymous said...

If Zilber wasn’t an asshole, none of this would have happened. He’s also in the pocket of Lombana and Dorta and there young minions being trained how to be unscrupulous lawyers.

Anonymous said...

I think the defense lawyers for Chauvin were horrible. They should have put him on the stand to explain his fear. That would have reduced it to manslaughter.

Anonymous said...

I know dorta. You sr, are no dorta.

Anonymous said...

I agree with 8:52:00, the jury needed to hear Chauvin explain why he did what he did. Even at risk of cross by the state. Instructions to not put any weight on decision to not testify do not cut it in this case. Prolly would still be convicted on the lesser charges, but not on the 2nd degree.