Wednesday, March 31, 2021

Determining Guilt

As Axios reports

Darnella Frazier, now 18, who recorded the harrowing cellphone video of George Floyd's death that moved the world, testified:

"When I look at George Floyd, I look at — I look at my dad. I look at my brothers. I look at my cousins, my uncles. Because they are all Black. I have a Black father. I have a Black brother. I have Black friends. And I look at that, and I look at how that could have been one of them."

"It's been nights I've stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life."

"But it's like — it's not what I should have done. It's what he should have done," she added, referring to Chauvin.

In response to Frazier's testimony, CBS News "legal expert and analyst" Rikki Klieman effectively promotes her agenda as a lawyer when she remarks (at 1:56 of the video below)

And when you watch it as a lawyer, one of the things that you would say is number one, "why didn't the defendant's lawyer file a motion to keep out any of the evidence about later thoughts of any of the eyewitnesses?" They are irrelevant in terms of a trial.

Exactly. It is irrelevant in a trial- or should be, if as we always hear, the jury must confine itself to facts. Yet, Klieman added

One of the other things I thought, and I certainly get texts all the time from my former law partners as well as other lawyers, is exactly what you point out, Vlad, which is to say "oh, this is really trouble, why did he go down this track as a defense lawyer because he has, as we say in the law business, opened the door to redirect. And the redirect examination was just chilling.

A moment earlier, the evidence about later thoughts was irrelevant. Now it's "chilling." However, she continues in the latter vein, remarking

The reaction of the youngster, whether she was 17, now 18, let alone a 9-year-old those kinds of young witnesses and child witnessses- if you watch and listen to their anguish and you're a juror, it has to get you not only in your head but in your heart and in your gut.

Now the later thoughts of eyewitnesses, once irrelevant, cry out in "anguish."  As Klieman recognizes, they (presumably) affect a juror's heart and gut.  Moreover, these irrelevant thoughts must affect a juror's head.

False- or as they say in the non-law business, b _ _ _ _ _ _ _.  They don't have to impress a juror's mind, nor are they intended to, because they are a flat-out appeal to an individual's emotion.

Klieman continues "and these are the kinds of witnesses who will persuade the jury to convict of the top count." That may be accurate, for Frazier- whose eloquence Tuesday was impressive, if likely rehearsed- had stated "it's not what I should have done. It's what he should have done."  

And Klieman added "so the defense has to walk down a very narrow road here and unfortunately, the road they walked down is a major highway." 

If honest, she would have continued "and that's because the issue in this case is not the guilt or innocence of the defendant but whether he should be convicted."

Strictly on the facts- perhaps in another universe- two of the things Frazier stated would work in favor of the defendant. If an individual concedes she is guilty of "not doing more," it suggests that the accused does not bear complete responsibility because his actions were not so egregious as to prevent witnesses from intervening. Moreover, Frazier is acknowledging that she could have chosen not to stand by but to act in such a manner as "physically interacting" and "saving his life."

Further, Frazier emphasized that she was reacting as she did precisely- and perhaps solely- because she could relate to the victim on the basis of race. In a jury system dominated by facts and rationality, that would be seen as detrimental to the prosecution.

Nonetheless, that is not the jury system we have.  Instead, we have- or at least the prosecution seems to believe we have- one in which the jury is persuaded of a defendant's guilt partly because a fine young woman is hostile to the defendant. "It's what he should have done" is a powerful statement of opinion by someone whose opinion (as contrasted with observation) is- as they say in the law business- irrelevant.

The prosecution may be making a good bet here, arguably fortuitous given that common sense suggests that Chauvin did commit murder. This may not be a trial which turns on whether the defendant is guilty, but upon which is the preferred outcome.

On March 7, I wrote of a USA Today/Ipsos Poll in which

Nearly two-thirds of Black Americans, 64%, view Floyd's death as murder; fewer than one-third of white people, 28%, feel that way. White Americans are more likely to describe it instead as the police officer's "negligence," 33% compared with 16% of Black respondents.

Nonetheless, I noted that USA Today had revealed

That said, Americans who have heard at least something about Chauvin's trial say 4 to 1, or 60%-15%, that they hope Chauvin is convicted. That included 54% of white Americans and 76% of Black Americans.

That's a lot of Americans- maybe even a few on the jury- who believe that Derek Chauvin is innocent and hope that he is convicted. Wrap your head (or heart or gut) around that one. many people believe a fellow who didn't murder anyone should be convicted of murder and (very likely) sent to prison.

The prosecution almost certainly either has seen this poll or recognizes the sentiment(s), in which innocence or guilt is not of the highest priority.

White Americans are not oblivious to how blacks would feel or think- or what we think they will- if Chauvin is let off the hook.  And if the jurors don't know- or do and wish to disregard it- the prosecution will make sure they know. Of course, it won't do so directly, for a variety of reasons.  But those "irrelevant" thoughts are, as Klieman clearly understands, not irrelevant in terms of the judgement the jury may pronounce upon a defendant.

Frazier made clear how blacks would feel upon a conviction, emoting

When I look at George Floyd, I look at — I look at my dad. I look at my brothers. I look at my cousins, my uncles. Because they are all Black. I have a Black father. I have a Black brother. I have Black friends. And I look at that, and I look at how that could have been one of them.

Americans remember, somewhat imperfectly, the events of last summer. The protests after the killing of Floyd were overwhelmingly non-violent. However, over the course of the last seven months we have seen relatively little of the non-violent protest, instead witnessing on social media, mainstream media, legitimate cable news, and especially on Fox News (probably, too, Newsmax and OANN) the violence of the loud and highly visible violent minority.

There are few Americans who want to see that side of the Black Lives Matter/black lives matter protests repeated; And they believe, accurately or otherwise, that it would be; hence, the perspective that Chauvin may be innocent but, oh, do we hope he is convicted and sent up the river.

Nevertheless, the charade must go on.  Rikki Klieman, as with other legal analysts, recognizes what is simultaneously irrelevant and emotionally powerful. Regrettably, as someone vested in the legal system, she won't explicitly acknowledge that it often operates not on facts and evidence but on emotion and/or the effort of some individuals to even the score.

That occurred when in 1995 O.J. Simpson was found not guilty, notwithstanding overwhelming evidence that he had wantonly murdered two (white) individuals.  Some whites- and blacks, overwhelmingly- realized the criminal justice system, indeed society generally, had railroaded (still, in some places) blacks for hundreds of years. Whether the jury itself worried about ruling against Simpson, among the American people generally

Fears grew that race riots, similar to the riots in 1992, would erupt across Los Angeles and the rest of the country if Simpson were convicted of the murders. As a result, all Los Angeles police officers were put on 12-hour shifts. The police arranged for more than 100 police officers on horseback to surround the Los Angeles County courthouse on the day the verdict was announced, in case of rioting by the crowd. President Bill Clinton was briefed on security measures if rioting occurred nationwide.

The primary responsibility of the prosecution is to present a case sufficiently persuasive to obtain a conviction. Even without the overwhelming video evidence smacking us in the face, the prosecution is taking no chances because, contrary to what Klieman and other television lawyers want us to believe is customary, facts frequently are insufficient. If provoking the fears of ordinary Americans is required, the prosecution may be comforted by assurance that history is written by, and only by, the victors.


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