The Verdict

     Like Occam ’s razor, sometimes great complexities can be reduced to the simplest outcomes. The verdict is in, Derek Chauvin was convicted of murdering George Floyd, and will spend decades in prison, mostly in solitary confinement. Given all the facts and circumstances, the verdict was just and reasonable.

     Nonetheless, it would be misguided to ignore the complexities of this case which have far greater implications that the fate of two men, victim and assailant. America has descended into mob rule. It is obvious – and natural – that the jury would be influenced by the months of riots and mayhem in Minneapolis that followed Floyd’s death and the threat of future violence if it did not convict. They live there, work there, and own businesses and homes there. The jury was the only barrier between the match and the fuse, and the conflagration would eventually consume them as well. How could they not convict?

Obviously, there should have been a change in venue. The jury pool was contaminated, all having viewed the video and witnessed the anarchy. Obviously, the city of Minneapolis should not have paid Floyd’s family millions of dollars on the eve of the trial, essentially admitting the liability of their police officers and further tainting the fairness of the proceedings.  Obviously, politicians should not have demanded a particular verdict or else. That is not justice but mob rule, and many Democrat politicians today perceive themselves as agent provocateurs of the mob. It is equally obvious that these matters will be raised on appeal and that that appeal will be denied, and not only on the merits. Sure, expect the appellate court to trot out hoary dicta like “no trial is perfect,” but the appellate courts are subject to the same pressures as the jury. That is a sad day for the rule of law – as was police officer Chauvin’s criminal misconduct.

I was not surprised by the verdict. Asked about it for weeks, I offered one clue: Chauvin’s testimony. If he testifies, he has a slim chance of having a hung jury (an acquittal was impossible). If he doesn’t testify, he will be convicted and deservedly so.

Recall that I waded through the turbid waters of the criminal justice system for well over a decade and tried numerous cases. Unlike most attorneys, I preferred allowing my client, the accused, to testify. Yes, yes, I am well aware of the Fifth Amendment and the defendant’s right to remain silent. Yes, yes, an accused cannot be “compelled in any criminal case to be a witness against himself.” All that is true, and often, when the defendant is not just guilty but guilty as sin, he should not testify.

Yet, I always felt that human nature (and jurors are humans, after all) is such that people want to hear both sides. Jurors do not just want to have the defense attorney nibble at the prosecution’s case in order to engender reasonable doubt. Jurors want to hear the accused explain himself, tell his side of the case, defend himself on cross-examination, and offer a full perspective on the matter. Of course the defendant need not prove his innocence; it is the prosecution that has to prove the defendant’s guilt beyond a reasonable doubt. Nevertheless, human nature is human nature, and I had good success with having my clients testify.

Here, the big elephant in the room was this unanswered (perhaps unanswerable) question: why did Chauvin keep his knee on Floyd’s neck for the last 2-3 minutes? Why indeed.

Had Chauvin testified, he could have stated that there are occasions when the suspect is motionless, pressure is taken off, and then he springs back stronger and more violent. He could have stated that for most of the time his knee was not on the suspect’s neck but on his shoulder blade, pinning him down (along with the leg restraint) without impairing respiration. He could have stated that he feared that if Floyd stood up, the mob that surrounded the police might have attacked them and the suspect could have escaped. He could have said that because of the noise of the onlookers, he did not hear his fellow officer ask him to stop. He could have spoken about the difficulties of subduing an enormous man who is high on some narcotic, thereby impervious to tasering, and resisting arrest.

More pointedly, he could have repudiated the narrative that has swept the country in the last year and provoked numerous riots, caused substantial loss of life, limb and property to innocent people, and emboldened a new generation of racial hucksters: the canard that Floyd’s murder resulted from racial animus. That is an assumption embraced by racial provocateurs and their enablers for which not a shred of evidence was ever adduced.

The great myth that has been nurtured in the last year (actually, the last decade) is that because a black person is killed, it means that he or she was killed because he was black. That is both a logical fallacy and a political narrative. Certainly, Jews were killed in the Tree of Life temple because they were Jews; so too in the Chabad of Poway. But I wouldn’t affirm that every Jew killed is necessarily killed because he is a Jew.  Whites are killed by blacks – always without a racial angle. Asians can be killed, and there is no immediate assumption that they were killed because they were Asian. That narrative is limited to the extremely rare “white on black” crime. Only then is racial animus presumed, and no evidence is ever needed.

Imagine if Chauvin had testified that he has no racial animus and never did (he was married to an Asian women before she left him after his arrest), that had Floyd been a white criminal resisting arrest and high on drugs he would have dealt with him the exact same way, that he has no history of racial animus on social media or anywhere else and has worked alongside black officers and been supervised by black superiors for years without incident and with mutual respect. How that would have changed the narrative!

Defendants do not testify to avoid exposure of their prior convictions, something that was not a factor here. Defendants do not testify when they are inarticulate and cannot present their case cogently. Perhaps that played a role here. Perhaps he had no explanation at all for his conduct – but such witnesses can be coached as to what they should say (without distorting the truth, of course). Could there have been reasonable doubt because of Floyd’s medical conditions, drug use and violent resistance?  It is possible – it took four officers to pin him down – but that version needed to be communicated by Chauvin’s testimony. To be sure, the safest route was not to have him testify. But since his conviction was assumed, this was his only chance to tell his story. It was a missed opportunity, and for that alone his conviction is deserved.

The assumption that everything that happens to a black happens because they are black – that fallacy – is what is roiling America today and is the holy grail of the myth of systemic racism. Systemic racism is an indictment that requires no evidence to support. It is a presumption that need never be proven. There is no defense to it and there is no cure for it. It is an indictment that has induced an epidemic of liberal white guilt that keeps government and corporate cash flowing to the hucksters who allege it and does nothing to ameliorate black poverty or family dysfunction. It does nothing to decrease the black on black crime that devastates those communities, and it encourages the glorification of individuals such as George Floyd and others, who, notwithstanding their wrongful deaths, were career criminals and convicted felons who primarily preyed on their fellow blacks.

It is not systemic racism to note that blacks commit a disproportionate number of crimes and thus have a disproportionate number of police interactions that – for many reasons other than race – can quickly go south.

An unfortunate consequence of Chauvin’s warranted conviction is the impetus it gives to the black supremacist movement in America and its false narrative of systemic racism. Indeed, Black Lies Matter, and as a result, policing is down, crime is way up, and the biggest victims are innocent and hard-working black people and other good Americans whose stores, businesses and livelihood are subject to the whims and predations of the mob. They are defenseless against the mayhem because the authorities have backed down.

Was justice served by this verdict? Yes. It is a tragedy for Derek Chauvin and his fellow officers who will be convicted in a few months, and a bigger tragedy for George Floyd who lost his life. It is a sign that the system works. But that system is under siege and in the current political climate cannot be rectified. This conflagration shows no signs of being extinguished. For all the talk of the verdict providing closure, the true day of reckoning is still ahead.

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