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I wouldn't know "Judas" now if I heard it. And I had forgotten that I was all
over Trump even way back then.
- Derek Chauvin trial thoughts since I finally saw the Court's Charge.
- That Charge is here. Haven't I preached for years that the jury instructions are the most important part of a criminal trial? As with most factually unusual criminal cases, the Charge in this case is unnecessarily long and confusing. The jury won't understand it.
- There are three counts. Count I carries with it a maximum of 40 years, Count II carries with it a maximum of 25 years, and Count III carries a maximum of 10 years.
- But before we look at each Count, here is Hot Opinion #1: The Trial Strategy That Wasn't.
- The only way Chauvin wins this case is to take the position that "I was out there doing my job. And I was doing what I honestly thought was reasonable and necessary. Yes, the man died on me. I'm very, very sorry for that. But, if I heard the doctors correctly, it looks like no one else would have died by the technique I used. But he did. I'm sick over that that. And I would take full criminal responsibility for it if my actions had been unreasonable. But they weren't. I was trying to protect the community and something horrible happened."
- I would have had Chauvin testify and be like Colonial Jessup from A Few Good Men but a sympathetic Col. Jessup. Give me the Jessup as he sat at the table with Tom Cruise early in the movie. "You need me on that wall." Give me that, just tone it down a whole lot.
- And you don't let the prosecution get away with being all High and Mighty. To paraphrase Jessup, "You sleep under the blanket of the very [protection] that I provide, and then questions the manner in which I provide it?" Just get that message across without being Jack Nicholson crazy.
- All of that might not work, and probably shouldn't, but a version of that defense is something that you have to run with. It's all you've got.
- But Chauvin's lawyer is objectively bad. For crying out loud, he started off his closing argument with, "I'm going to apologize if I get a little long winded." Good lord, man. Why don't you just announce that you intend to bore them to death? He's an idiot.
- Now to the Jury Instructions. If the jury were to follow them, then causation is a done deal in favor of the State on all of the counts. Any drug use or health issues of George Floyd becomes irrelevant. As I read it, unless Floyd would have died on the spot even without a knee on his neck, causation isn't an issue.
- But the defense lawyer is a moron and has spent much of his time fighting causation instead of stressing the reasonableness of Chauvin.
- Now with causation and lawyer bashing out of the way, let's look at each Count.
- Count I: The greatest offense the jury can select is Second Degree Murder, and it is shockingly easy to get to.
- All the State has to prove is that (1) Chauvin intended to cause Floyd pain -- an "assault", and (2) that "substantial bodily harm" which resulted in death occurred even if Chauvin didn't intend to cause substantial bodily harm. That's crazy that is all that has to be proved. Once again, it's intentional assault (causing "pain") + substantial bodily injury that results in death even if unintended. It's so nuts that the jury might ignore that part of the Charge (assuming they understand it.) That happens all the time despite their taking an oath. They will ignore crazy laws that make no sense to them.
- But let's stay with the first part -- the "assault" part -- for a moment. Doesn't an officer always intend to cause pain to an arrestee as the natural part of the job? That happens all the time and we don't have any problem with it, right? If a person isn't willingly cooperating then reasonable force can always be used to get him to comply, and that force will 99% of the time cause pain. So isn't an assault occurring all the time? Probably. But cops are never charge with causing an assault. Why? That brings us to the critical defense which applies in this case to all of the Counts. The following is taken directly from the charge:
- And even though the Charge refers to it as a "Defense", that's misleading. Chauvin doesn't have to prove he acted reasonably. No. The State has to prove he acted unreasonably. And they have to eliminate all reasonable doubt about that. That's a big deal.
- As in all the Counts, Chauvin shouldn't argue causation. He should argue his reasonableness.
- Count II is "Third Degree Murder." Honestly, this seems harder to prove than Second Degree Murder.
- Here's the definition taken straight from the Charge:
- It does not define "eminently dangerous."
- It does not, incredibly, define "a deprived mind."
- Heck, it would have been helpful to even define "evincing" (which would be nice because I didn't exactly know what it means.)
- But regardless of the vague language, the State still has to overcome the "defense" of justifiable force by a police officer. It's as important to Count II as it is to Count I.
- The final option for the jury is Count III "Manslaughter in the Second Degree."
- You know, the jury might lock on to that. There's no intent to cause harm, and they will like the word "negligence."
- But once again, the State has to over come the defense of reasonable force by a police office. Can you be reasonably negligent? That doesn't make sense. Did I mention the charge was confusing?
- So what's going to happen? Seriously, you could put these facts on a Law School exam and ask what crime, if any, did Chauvin commit. And a student could choose Count I, Count II, Count III or "Not Guilty" and still get an A on that exam. Any choice can be legitimately and intellectually argued. That makes this a dicey, dicey criminal prosecution.
- My wild guess: They convict him on Count III, Manslaughter. It will be a compromise made in all of the confusion. But don't bet the house on that.
- COVID denier Ted Nugent has tested positive.
- Lt. Gov. Dan Patrick says there are not enough votes in the Senate to pass Constitutional Carry that made it through the House.
- The book is great. The trailer looks cheesy.
- I reading the Washington Post article on "what happened to her", I was surprised to learn that she was a 14 year old runaway from Florida when the photo was snapped. She wasn't a fellow college student. When the photo hit the wire and appeared in photos all across the nation the next day, she was incorrectly identified as a "coed."
- Jocelyn White, the first female meteorologist on metroplex TV has died at the early age of 68. Man, the male audience went gaga over her back in the day.
- This is about the only dumb thing that the judge has said in the Chauvin case. That ain't gonna happen:
