Whom Does a Jury Serve?

 

I remember a news story from a few years ago.  If I get some details wrong, feel free to correct me.  But as I recall, a young girl, maybe 14 or 16 years old, was raped and killed, I think in Texas.  The killer got out on a technicality or something (again, I don’t remember the details). After his release, he was eating in a restaurant, and the deceased girl’s mother walked right up to his table in the restaurant, shot him six times in the chest, laid her handgun on the table, and raised her hands in surrender.  She was arrested and charged with murder and the jury found her not guilty even though an entire restaurant full of people had watched her kill the guy.  Presumably, because at least some people on that jury thought that her actions were reasonable.  As a father of daughters, I struggle to find fault with the mother’s actions myself.

That is my understanding of the importance of a jury trial.  Does a jury of your peers feel that the law is appropriately applied in your particular case?  I hesitate to write about this because Ricochet’s lawyers know a whole lot more about these concepts than I do, but I see our jury system as a buffer between the defendant and the blind justice system our founders constructed.  The only reason I bring it up is that I think the jury system is working against the defendant, rather than for him, in the Chauvin case, which may be appropriate depending on your perspective, I suppose.

Jerry pointed out early on that George Floyd’s death may not have been what it initially appeared to be.  I was skeptical of his posts initially, but sure enough, the autopsies showed that Floyd died of a drug overdose.  My wife points out that it doesn’t matter what he died of, because the jury had made up their mind before the trial started, because they’re on social media, like 95% of the US population.  I’m pointing out that I’m not sure which laws, exactly, Mr. Chauvin broke.  Although my wife may be right – it probably doesn’t matter – the jury has already decided.  He’s guilty.  Of whatever he’s charged with.  The trial is just a formality.  So the jury would seem to be shirking its duties.

Or, perhaps, is this exactly what a jury is supposed to do?

The jury in Texas found the mother not guilty, because in their community, at that time, they sort of had to.

The jury in Minnesota is going to find Chauvin guilty, because in their community, at this time, they sort of have to.

Everything is working the way it’s supposed to.  Fortunately for the mother, and unfortunately for Mr. Chauvin.  But our society lives on, according to the values which we hold important at the time.  Interpreting these changing values is difficult for a legal system, but easier for a jury of our peers.  Still difficult, but easier.

Again, I don’t claim to understand the legal side of all this.  And I’m not sure what I think about these issues.  But as you folks have probably noticed over the years, I do my best to not allow my writing to be hampered by ignorance.  I know, it’s inspiring…

What do you think?  Is our jury system working?  No system works 100% of the time of course.  But is it working in this case?

If the jury finds Chauvin guilty despite evidence to the contrary, does that mean that our jury system is broken?  Or does that mean that it’s working exactly as it was supposed to?

This is a crummy case.  I don’t like the optics any more than anyone else.  Chauvin is a difficult guy to defend.  I’m not sure what I want to happen here.  I’m even less sure what should happen here.

But that’s not what I’m talking about.  I’m just wondering what, precisely, the purpose of a jury is?  To protect an innocent man?  To uphold the current values of a society at the time?  To over-rule the justice system (even if no law is broken, this is still wrong)?  To increase faith in our justice system by involving members of the community?

Is this jury going to uphold its duty, whatever that is, in the Chauvin case?  And more importantly, should it?

What do you think?

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  1. Phil Turmel Coolidge
    Phil Turmel
    @PhilTurmel

    They may not uphold their duty.  A big chunk of society wants them to not uphold their duty, so they may think that absolves them.  It is still cowardice on a grand scale.

    • #1
  2. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Well, here’s one wrong answer:

    I should try making a gif later where Saruman asks whom a jury serves and the Uruk-Hai answers “The BLM narrative” or something like that.

    • #2
  3. Midwest Southerner Member
    Midwest Southerner
    @MidwestSoutherner

    Dr. Bastiat: I’m just wondering what, precisely, the purpose of a jury is?  To protect an innocent man?  To uphold the current values of a society at the time?  To over-rule the justice system (even if no law is broken, this is still wrong)?  To increase faith in our justice system by involving members of the community?

    According to the American Bar Association, the jury listens to the evidence, decides what facts the evidence has established, and draws inferences from those facts to form the basis for their decision (guilty/not guilty or liable/not liable.)

    I agree with you on the optics of this case. I don’t envy any member of this jury or, for that matter, of any jury in today’s sociopolitical climate. In short, I’m very concerned about the future of our justice system and sadly admit that I don’t have the faith in it that I once had.

    • #3
  4. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    I have no idea what the jury will do.

    I’ve been following the trial in some detail, but not obsessively, mainly at LegalInsurrection.  The prosecution case seems to be a bit weak, but it’s hard to tell from any reporting, good or bad.  The jury will see, and hear, vastly more detail than almost any of us on the outside.  Though in this case, I think that very large portions of the trial, perhaps all of it, are available on video.

    The prosecution does seem to face some challenges.  Their theory of the case seems to be changing, or perhaps incoherent.  Was Mr. Floyd allegedly choked or strangled (i.e. restriction of his airway)?  Was the blood supply to his brain cut off by restriction of his carotid artery(ies)?  Did he suffocate due to positional asphyxia?

    The positional asphyxia strikes me as the strongest prosecution argument, but it presents some problems.  It’s been about 9 months since I read the autopsy report, but I don’t recall this being addressed.  Another problem is that, under this theory, Mr. Floyd’s death might have been caused by a combination of factors — the actions of several officers, plus perhaps the drug use (fentanyl and meth), plus perhaps the various coronary problems (blocked arteries, enlarged heart); plus perhaps the bizarre sickle-cell effect found on postmortem analysis.  With such complexity, will a jury be willing to decide that the actions of Ofc. Chauvin pushed Mr. Floyd over the edge?  Your guess is as good as mine.

    For the record, Doc, I have not concluded that Mr. Floyd’s death was caused by overdose.  To me, as a lawyer, this is an burden of proof issue.  To convict, the prosecution must prove that Ofc. Chauvin caused Mr. Floyd’s death, beyond a reasonable doubt.  The fentanyl level, alone, creates reasonable doubt in my opinion.  Another way of putting this is that the jury must acquit unless it can rule out fentanyl overdose, and it can rule out other causes of death.  There can be some doubt, but not reasonable doubt.

    The trial reports that I’ve read also suggested that the prosecution’s case on the alleged unlawfulness of Ofc. Chauvin’s use of force was pretty weak, and that the cross-examination was strong.  On the other hand, the same reporter thought that the defense use-of-force expert was not very convincing.

    Based on what I know, I will be somewhat disappointed in the jury if it convicts.  However, I won’t be in a position to make a strong criticism, because the jury will have seen and heard more evidence than I.

    • #4
  5. Dr. Bastiat Member
    Dr. Bastiat
    @drbastiat

    Jerry Giordano (Arizona Patrio… (View Comment):
    For the record, Doc, I have not concluded that Mr. Floyd’s death was caused by overdose.  To me, as a lawyer, this is an burden of proof issue.  To convict, the prosecution must prove that Ofc. Chauvin caused Mr. Floyd’s death, beyond a reasonable doubt.  The fentanyl level, alone, creates reasonable doubt in my opinion.

    Thanks for the clarification.  I didn’t intend to mis-represent your position – I apologize for my over-simplification.

    • #5
  6. Stina Member
    Stina
    @CM

    If the jury goes against Chauvin, it will be one of the first such cases.

    What of Casey Anthony and OJ Simpson?

    Juries seem to have a history of not convicting if there is even a glimmer of doubt.

    And sometimes, the prosecution is prevented from presenting certain evidence in a trial that is relevant and would sway a jury for a variety of procedural reasons. Which would certainly explain letting a rapist go free and then also his murderer.

    I find juries can be quite surprising.

    • #6
  7. W Bob Member
    W Bob
    @WBob

    Jerry Giordano (Arizona Patrio… (View Comment):

    I have no idea what the jury will do.

    I’ve been following the trial in some detail, but not obsessively, mainly at LegalInsurrection. The prosecution case seems to be a bit weak, but it’s hard to tell from any reporting, good or bad. The jury will see, and hear, vastly more detail than almost any of us on the outside. Though in this case, I think that very large portions of the trial, perhaps all of it, are available on video.

    The prosecution does seem to face some challenges. Their theory of the case seems to be changing, or perhaps incoherent. Was Mr. Floyd allegedly choked or strangled (i.e. restriction of his airway)? Was the blood supply to his brain cut off by restriction of his carotid artery(ies)? Did he suffocate due to positional asphyxia?

    The positional asphyxia strikes me as the strongest prosecution argument, but it presents some problems. It’s been about 9 months since I read the autopsy report, but I don’t recall this being addressed. Another problem is that, under this theory, Mr. Floyd’s death might have been caused by a combination of factors — the actions of several officers, plus perhaps the drug use (fentanyl and meth), plus perhaps the various coronary problems (blocked arteries, enlarged heart); plus perhaps the bizarre sickle-cell effect found on postmortem analysis. With such complexity, will a jury be willing to decide that the actions of Ofc. Chauvin pushed Mr. Floyd over the edge? Your guess is as good as mine.

    For the record, Doc, I have not concluded that Mr. Floyd’s death was caused by overdose. To me, as a lawyer, this is an burden of proof issue. To convict, the prosecution must prove that Ofc. Chauvin caused Mr. Floyd’s death, beyond a reasonable doubt. The fentanyl level, alone, creates reasonable doubt in my opinion. Another way of putting this is that the jury must acquit unless it can rule out fentanyl overdose, and it can rule out other causes of death. There can be some doubt, but not reasonable doubt.

    The trial reports that I’ve read also suggested that the prosecution’s case on the alleged unlawfulness of Ofc. Chauvin’s use of force was pretty weak, and that the cross-examination was strong. On the other hand, the same reporter thought that the defense use-of-force expert was not very convincing.

    Based on what I know, I will be somewhat disappointed in the jury if it convicts. However, I won’t be in a position to make a strong criticism, because the jury will have seen and heard more evidence than I.

    Do you know if the defense brought up the fact that Floyd was having difficulty breathing before he was restrained? Based on the video which clearly showed him saying that? That fact alone would seem to create reasonable doubt. But I haven’t seen anyone mention it. 

    • #7
  8. Gumby Mark (R-Meth Lab of Democracy) Thatcher
    Gumby Mark (R-Meth Lab of Democracy)
    @GumbyMark

    To convict Chauvin on any of the counts the jury must conclude beyond a reasonable doubt:

    That Chauvin’s conduct was a substantial contributing factor in Floyd’s death

    and

    Chauvin’s use of force was not legally justified.

    All the commentators I read (Andrew Branca at Legal Insurrection, a criminal defense lawyer and who has also been a reliable commentator on many use of force and self defense cases; shipwreckedcrew and Andrew McCarthy – both federal prosecutors) agreed that Chauvin’s use of force expert was very weak – I think it’s fair to say they were surprised at how bad he was, though they all agreed Chauvin’s medical expert was much stronger.

    • #8
  9. Hoyacon Member
    Hoyacon
    @Hoyacon

    The jury should exercise its duty based on the evidence and consistent with the charges made by the judge before deliberation.  Unfortunately, it doesn’t happen that way.  OJ’s case made me opposed to jury “nullification,” but unfortunately legitimized it in the view of many–particularly when the matter of race is involved.  I believe that Chauvin is “only” guilty of manslaughter in the second degree, but have little faith that he can get a fair trial on the issue since Ellison wants murder. He’ll probably get it because of an unfair venue.

    • #9
  10. The Reticulator Member
    The Reticulator
    @TheReticulator

    Hoyacon (View Comment):
    He’ll probably get it because of an unfair venue.

    I wonder if there will be any appeals made on this basis. 

    • #10
  11. Henry Castaigne Member
    Henry Castaigne
    @HenryCastaigne

    Dr. Bastiat: After his release, he was eating in a restaurant, and the deceased girl’s mother walked right up to his table in the restaurant, shot him six times in the chest, laid her handgun on the table, and raised her hands in surrender.  She was arrested, and charged with murder.  The jury found her not guilty.

    • #11
  12. Doug Watt Moderator
    Doug Watt
    @DougWatt

    The jury system is not perfect, and I’m surprised that Chauvin did not ask for a bench trial. Prosecutors and defense attorneys will try to play the emotions game. The jurors have to go back to their neighborhoods, and they have to hope they won’t be doxxed if they find for Chauvin. This trial should have been moved out of Hennepin County.

    We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read. – Mark Twain

    A jury is the most ingenious and infallible agency for defeating justice that human wisdom could contrive. – Mark Twain

    • #12
  13. Fritz Coolidge
    Fritz
    @Fritz

    Stina (View Comment):

    If the jury goes against Chauvin, it will be one of the first such cases.

    What of Casey Anthony and OJ Simpson?

    Juries seem to have a history of not convicting if there is even a glimmer of doubt.

    And sometimes, the prosecution is prevented from presenting certain evidence in a trial that is relevant and would sway a jury for a variety of procedural reasons. Which would certainly explain letting a rapist go free and then also his murderer.

    I find juries can be quite surprising.

    One never knows what a jury will do, for sure. Here I expect either a hung jury or conviction on the lowest charge only.

    As for the Casey Anthony case, I think there were two major problems that led to the acquittal. One was the state had overcharged, seeking the death penalty and declining to agree to any jury instruction on any lesser included homicide offense, because it feared a compromise verdict.

    Second, despite its thirst for Casey Anthony’s execution, the state never was able to prove how the child had died, let alone that her mother was the one responsible. Yes, she engaged in extremely bizarre behavior in the weeks the kid was not seen, but that does not necessarily provide proof beyond a reasonable doubt that the mother was a killer.

    • #13
  14. kedavis Member
    kedavis
    @kedavis

    Jerry Giordano (Arizona Patrio… (View Comment):

    I have no idea what the jury will do.

    The prosecution does seem to face some challenges. Their theory of the case seems to be changing, or perhaps incoherent. Was Mr. Floyd allegedly choked or strangled (i.e. restriction of his airway)? Was the blood supply to his brain cut off by restriction of his carotid artery(ies)? Did he suffocate due to positional asphyxia?

    The positional asphyxia strikes me as the strongest prosecution argument, but it presents some problems. It’s been about 9 months since I read the autopsy report, but I don’t recall this being addressed. Another problem is that, under this theory, Mr. Floyd’s death might have been caused by a combination of factors — the actions of several officers, plus perhaps the drug use (fentanyl and meth), plus perhaps the various coronary problems (blocked arteries, enlarged heart); plus perhaps the bizarre sickle-cell effect found on postmortem analysis. With such complexity, will a jury be willing to decide that the actions of Ofc. Chauvin pushed Mr. Floyd over the edge? Your guess is as good as mine.

    For the record, Doc, I have not concluded that Mr. Floyd’s death was caused by overdose. To me, as a lawyer, this is an burden of proof issue. To convict, the prosecution must prove that Ofc. Chauvin caused Mr. Floyd’s death, beyond a reasonable doubt. The fentanyl level, alone, creates reasonable doubt in my opinion. Another way of putting this is that the jury must acquit unless it can rule out fentanyl overdose, and it can rule out other causes of death. There can be some doubt, but not reasonable doubt.

    I think the “assumption of risk” issue that applies to regular people, cannot be equally applied to police.  The way I read it many years ago was that the “thin skull defense” is not acceptable: that if the home-invading criminals hit the homeowner on the head with a hammer to knock him out, but due to like a congenital “thin skull” it ends up killing him, the criminals can’t argue that a NORMAL person would not have died so therefore they cannot be charged with murder/whatever.

    Or maybe what I’m saying is that the issue should always be resolved against the criminal, which in this case would be Floyd.  The key is “assumption of risk,” which in the first case rests on the criminal home-invaders, and in this case rests on Floyd.

    I don’t think it makes sense in a system where you actually want law and order, to prosecute police not for what they objectively did, which would not be fatal to a regular person, but because the criminal was unusually susceptible to it for reasons the police had no knowledge of or control over.

    • #14
  15. Flicker Member
    Flicker
    @Flicker

    Dr. Bastiat: Chauvin is a difficult guy to defend.

    Why do you say Chauvin is a difficult guy to defend rather than that the charges are hard to defend against?  Just curious.

    • #15
  16. Brian Wyneken Member
    Brian Wyneken
    @BrianWyneken

    I think your larger question has been addressed by others except that the purpose of having juries at all is so that not all decision-making will necessarily reside in government officials.

    In my opinion (and it is an informed opinion) I believe Officer Chauvin was over-charged, but of course it is possible and maybe even likely that he will nonetheless be convicted of the murder charges. It is difficult for me to have much confidence in the jury system under the current conditions in Hennepin County, MN. It is not difficult for me, however, to have nothing but contempt for any prosecutor who knowingly pursues charges not fully supported in law and in fact. That a conviction may be won anyway only increases my disgust.

    • #16
  17. kedavis Member
    kedavis
    @kedavis

    Brian Wyneken (View Comment):

    I think you larger question has been addressed by others except that the purpose of having juries at all is so that no all decision-making will necessarily reside in government officials.

    In my opinion (and it is an informed opinion) I believe Officer Chauvin was over-charged, but of course it is possible and maybe even likely that he will nonetheless be convicted of the murder charges. It is difficult for me to have much confidence in the jury system under the current conditions in Hennepin County, MN. It is not difficult for me, however, to have nothing but utter contempt for any prosecutor who knowingly pursues charges not fully supported in law and in fact. That a conviction may be won anyway only heightens my disgust.

    I can’t help wondering sometimes if some things going on – such as the refusal to sequester the jury – might be intentional so that an appeals court can overturn the conviction while the prosecutor and everyone else claim they did their jobs and “justice denied” is only the fault of the appeals court/judge(s).

    • #17
  18. Randy Webster Member
    Randy Webster
    @RandyWebster

    Can the judge enter a judgement notwithstanding the verdict?  Or is that just in civil cases?

    • #18
  19. Doug Watt Moderator
    Doug Watt
    @DougWatt

    Randy Webster (View Comment):

    Can the judge enter a judgement notwithstanding the verdict? Or is that just in civil cases?

    Not on guilt, or innocence in a criminal trial. A judge can admonish the jury, and express his/her disappointment in the verdict, and mitigate the sentence.

    • #19
  20. kedavis Member
    kedavis
    @kedavis

    Randy Webster (View Comment):

    Can the judge enter a judgement notwithstanding the verdict? Or is that just in civil cases?

    At least in some places – maybe state by state – I think a judge might be able to make a “directed verdict” or something, if the jury hasn’t yet decided.  Like if the prosecution obviously hasn’t made a case.  But that might not be possible once the jury has made a decision.  Maybe that’s just in criminal cases though, in civil cases it seems like the judge can set aside the jury verdict too.

    • #20
  21. Hoyacon Member
    Hoyacon
    @Hoyacon

    The Reticulator (View Comment):

    Hoyacon (View Comment):
    He’ll probably get it because of an unfair venue.

    I wonder if there will be any appeals made on this basis.

    I can’t remember if defense counsel made a pre-trial motion for a venue change, but I assume so.  That should mean a post-trial appeal is likely.

    • #21
  22. The Reticulator Member
    The Reticulator
    @TheReticulator

    kedavis (View Comment):

    Brian Wyneken (View Comment):

    I think you larger question has been addressed by others except that the purpose of having juries at all is so that no all decision-making will necessarily reside in government officials.

    In my opinion (and it is an informed opinion) I believe Officer Chauvin was over-charged, but of course it is possible and maybe even likely that he will nonetheless be convicted of the murder charges. It is difficult for me to have much confidence in the jury system under the current conditions in Hennepin County, MN. It is not difficult for me, however, to have nothing but utter contempt for any prosecutor who knowingly pursues charges not fully supported in law and in fact. That a conviction may be won anyway only heightens my disgust.

    I can’t help wondering sometimes if some things going on – such as the refusal to sequester the jury – might be intentional so that an appeals court can overturn the conviction while the prosecutor and everyone else claim they did their jobs and “justice denied” is only the fault of the appeals court/judge(s).

    That very thought has occurred to me regarding the refusal to change the venue.

    • #22
  23. The Reticulator Member
    The Reticulator
    @TheReticulator

    Hoyacon (View Comment):

    The Reticulator (View Comment):

    Hoyacon (View Comment):
    He’ll probably get it because of an unfair venue.

    I wonder if there will be any appeals made on this basis.

    I can’t remember if defense counsel made a pre-trial motion for a venue change, but I assume so. That should mean a post-trial appeal is likely.

    I saw a headline to that effect, probably in the WSJ as those are the only headlines I allow myself to see on a regular basis. I didn’t read further. 

    • #23
  24. Brian Wyneken Member
    Brian Wyneken
    @BrianWyneken

    kedavis (View Comment):

    Brian Wyneken (View Comment):

    I think you larger question has been addressed by others except that the purpose of having juries at all is so that no all decision-making will necessarily reside in government officials.

    In my opinion (and it is an informed opinion) I believe Officer Chauvin was over-charged, but of course it is possible and maybe even likely that he will nonetheless be convicted of the murder charges. It is difficult for me to have much confidence in the jury system under the current conditions in Hennepin County, MN. It is not difficult for me, however, to have nothing but utter contempt for any prosecutor who knowingly pursues charges not fully supported in law and in fact. That a conviction may be won anyway only heightens my disgust.

    I can’t help wondering sometimes if some things going on – such as the refusal to sequester the jury – might be intentional so that an appeals court can overturn the conviction while the prosecutor and everyone else claim they did their jobs and “justice denied” is only the fault of the appeals court/judge(s).

    There are things that make us wonder, but in this case the actions of government officials at the city, county and state level give every indication that there is very little interest in seeing this defendant treated with any presumption of innocence. They have become part of a braying mob. I have not agreed with every decision of the presiding judge, but he does compare favorably to the aforementioned. Still, my sense is that some weight has favored the prosecution – and if my sense is correct that is not admirable, but there is tremendous pressure to find this defendant guilty. I would be doubtful of any reversals on appeal (noting however that closing arguments and jury conduct are pending).

    The purpose of having laws and courts and process is an imperfect attempt to settle our disputes peacefully (probably deserves a citation but I don’t know the origin of this observation). Achieving “justice” is more of an aspirational notion. But, when the executive officials and prosecutors willingly give their roles over to mob demands and forsake their oaths, then I expect that that these disputes will not be settled peacefully and that only the coarsest notions of justice will be be attained.

    • #24
  25. D.A. Venters Member
    D.A. Venters
    @DAVenters

    kedavis (View Comment):

    Randy Webster (View Comment):

    Can the judge enter a judgement notwithstanding the verdict? Or is that just in civil cases?

    At least in some places – maybe state by state – I think a judge might be able to make a “directed verdict” or something, if the jury hasn’t yet decided. Like if the prosecution obviously hasn’t made a case. But that might not be possible once the jury has made a decision. Maybe that’s just in criminal cases though, in civil cases it seems like the judge can set aside the jury verdict too.

    Yes, I think in most states the way this plays out is that the defense moves, at the close of the state’s case,  for a directed verdict. This is basically an argument saying the state has failed to carry its burden and no reasonable jury could find otherwise. This motion is always made, extremely rarely granted.

    • #25
  26. kedavis Member
    kedavis
    @kedavis

    Brian Wyneken (View Comment):

    kedavis (View Comment):

    Brian Wyneken (View Comment):

    I think you larger question has been addressed by others except that the purpose of having juries at all is so that no all decision-making will necessarily reside in government officials.

    In my opinion (and it is an informed opinion) I believe Officer Chauvin was over-charged, but of course it is possible and maybe even likely that he will nonetheless be convicted of the murder charges. It is difficult for me to have much confidence in the jury system under the current conditions in Hennepin County, MN. It is not difficult for me, however, to have nothing but utter contempt for any prosecutor who knowingly pursues charges not fully supported in law and in fact. That a conviction may be won anyway only heightens my disgust.

    I can’t help wondering sometimes if some things going on – such as the refusal to sequester the jury – might be intentional so that an appeals court can overturn the conviction while the prosecutor and everyone else claim they did their jobs and “justice denied” is only the fault of the appeals court/judge(s).

    There are things that make us wonder, but in this case the actions of government officials at the city, county and state level give every indication that there is very little interest in seeing this defendant treated with any presumption of innocence. They have become part of a braying mob. I have not agreed with every decision of the presiding judge, but he does compare favorably to the aforementioned. Still, my sense is that some weight has favored the prosecution – and if my sense is correct that is not admirable, but there is tremendous pressure to find this defendant guilty. I would be doubtful of any reversals on appeal (noting however that closing arguments and jury conduct are pending).

    The purpose of having laws and courts and process is an imperfect attempt to settle our disputes peacefully (probably deserves a citation but I don’t know the origin of this observation). Achieving “justice” is more of an aspirational notion. But, when the executive officials and prosecutors willingly give their roles over to mob demands and forsake their oaths, then I expect that that these disputes will not be settled peacefully and that only coarsest notions of justice will be be attained.

    It may not be their plan, but if someone thinks that getting a conviction at the first stage only to be reversed on appeal because of denying change of venue, is a big win, welll….  I wouldn’t put it past Keith Ellison to be that dumb, but I can also imagine a judge realizing that setting it up for overturn on appeal is one way to have “justice done” (ultimately) without cities burning again.

    • #26
  27. D.A. Venters Member
    D.A. Venters
    @DAVenters

    As Bryan Wyneken indicated above, the main purpose of juries is to take the power to convict someone of a crime away from government officials. That is, of course, the most dangerous power the government can have. It was a major limitation on the King’s ability to lock up his enemies on fake charges, and a way to preserve local liberty. 

    In that sense it has the advantage of reducing politically motivated false convictions. 

    I do think there has always been a sort of common sense of the common people benefit to it as well. 

    It’s not perfect, obviously, you gotta take the good with the bad. As Doug Watt pointed out, at least the defendant can choose to be tried by the judge instead. Whether that’s a good idea or not can vary greatly from case to case, judge to judge.

    • #27
  28. Henry Racette Contributor
    Henry Racette
    @HenryRacette

    Interesting take on the topic of the hour, Doc.

    Because our legal system embraces a presumption of innocence, I see the criminal jury as an asymmetric institution, one that should try to err, when it thinks it might err, toward lenience and away from a wrongful conviction.

    I can imagine situations in which a deliberate wrongful (that is, contrary to the evidence) acquittal might serve the public interest, instances such as your anecdotal Texas illustration, for example. I have a much harder time justifying a wrongful conviction: in my own view, a jury is not “working correctly” if it convicts what it believes to be an innocent man, whether it does so out of concern for race relations, fear of reprisals, or for any other reason.

    Libertarians have from time to time pushed what is known as the Fully Informed Jury Amendment, which is intended to compel judges to inform criminal juries about the nature of their duties — in particular, to tell the jury that both the defendant and the law are on trial, and that the jury can acquit if it feels that the law is unjust or that its application in this instance is inappropriate. To the extent that that’s true (and I seem to recall reading about it decades ago and concluding that it probably is), that justifies a jury finding for the defendant despite the case against him.

    But it isn’t consistent with our sense of justice to sacrifice a man because to do otherwise would cause an unpleasant backlash in the broader society. I just can’t see a properly functioning jury choosing to do that.

    (I can, however, see normal flesh and blood humans making that decision in order to save their own skins. I don’t like it, but I can understand it.)

     

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  29. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    Dr. Bastiat (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):
    For the record, Doc, I have not concluded that Mr. Floyd’s death was caused by overdose. To me, as a lawyer, this is an burden of proof issue. To convict, the prosecution must prove that Ofc. Chauvin caused Mr. Floyd’s death, beyond a reasonable doubt. The fentanyl level, alone, creates reasonable doubt in my opinion.

    Thanks for the clarification. I didn’t intend to mis-represent your position – I apologize for my over-simplification.

    Doc, no problem. You didn’t misrepresent my position. You stated your own conclusion, which is a bit beyond what is supported by the evidence, in my view.

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  30. Brian Wyneken Member
    Brian Wyneken
    @BrianWyneken

    kedavis (View Comment):

    Brian Wyneken (View Comment):

    kedavis (View Comment):

    Brian Wyneken (View Comment):

    . . .

    I can’t help wondering sometimes if some things going on – such as the refusal to sequester the jury – might be intentional so that an appeals court can overturn the conviction while the prosecutor and everyone else claim they did their jobs and “justice denied” is only the fault of the appeals court/judge(s).

    There are things that make us wonder, but in this case the actions of government officials at the city, county and state level give every indication that there is very little interest in seeing this defendant treated with any presumption of innocence. They have become part of a braying mob. I have not agreed with every decision of the presiding judge, but he does compare favorably to the aforementioned. Still, my sense is that some weight has favored the prosecution – and if my sense is correct that is not admirable, but there is tremendous pressure to find this defendant guilty. I would be doubtful of any reversals on appeal (noting however that closing arguments and jury conduct are pending).

    . . . 

    It may not be their plan, but if someone thinks that getting a conviction at the first stage only to be reversed on appeal because of denying change of venue, is a big win, welll…. I wouldn’t put it past Keith Ellison to be that dumb, but I can also imagine a judge realizing that setting it up for overturn on appeal is one way to have “justice done” (ultimate) without cities burning again.

    We seem to share the same fine opinion of the Minnesota Attorney General. If there is a reversal on appeal in this case, the most likely result would be a remand for a new trial. I think there would have to be one – no way this settles unless Officer Chauvin folds on murder charges. I cannot think why he would do that as the mob wants this man in prison for a long time.

    I have been consistently wrong in underestimating the duration of the mob outrage.

    What will be most interesting will be the effects of the aftermath on the other three defendants. Officer Chauvin was the face and the knee in the video [the knee on the neck “I can’t breath” theory has now been largely abandoned by the prosecution] which still leaves him extremely vulnerable as the focus of outrage. Officer Lane and Thao (in my opinion) clearly never should have been charged with anything, and I only withhold opinion on Officer Keung because there may be evidence of which I am unaware (which is doubtful at this point).

    • #30