The Nature of Reasonable Doubt

Introduction

So let me begin with the part that a lot of people are going to want to ignore. They will have to ignore it in order to say things like “how dare you?” but the need to say “how dare you?” will be so pressing that ignore it they will.

Here is the obvious point, and I think it is what pretty much everyone sees. We should have no problem whatever with the arrest of Derek Chauvin or with the murder charges. I have no problem with him being arrested and charged. Where the consensus breaks down is seen in the fact that I think he ought to be tried, fairly and in open court, while a good part of the country is acting as though a trial has already happened.

The mob has proceeded straight to sentencing, which is not how our process ought to work. When you proceed straight to sentencing what you are doing is called lynching. Lynching refers to the process, and not to the guilt or innocence of the accused. There have been many times in American history where the lynched individual was guilty as charged. That does not matter — a lynching remains what it is.

And that has nothing to do with the rule of law.

Ostensible Justice

Rioting broke out, or so the reasoning goes, in order to get the authorities to do something. Everybody knew what had happened, and so everybody demanded that something be done about it.

But what? What was the demand for? Was the demand for a fair trial so that we might determine whether or not Derek Chauvin should walk away as a free man or not? Or was the demand for something more, a demand for a hard conviction? Run a little thought experiment with me, will you? Suppose that for various reasons Derek Chauvin is tried and acquitted, and the acquittal is not self-evidently a judicial travesty. And suppose he walks free.

If the country goes up in a sheet of flame again, then what we are actually dealing with is a trial where the judge and jurors have a gun pointed at their respective temples. We are demanding a sentence, and we want it to be the right one.

Now suppose further that you are a juror in that trial. You managed to get on the jury because attorneys for the defense neglected to review your Twitter feed, which at regular intervals was calling for Chauvin’s head on a pike. Never mind how you got there, you are now on the jury. And let us suppose that the defense laid before you a number of facts that had somehow never made it into the news reports. These facts were a complete novelty to you, and they proved to you, incontrovertibly, that George Floyd did not die because of Chauvin’s knee on his neck.

This would not automatically make Chauvin a good cop. It would not mean that he did what he ought to have done. It would not mean that he couldn’t be charged with something else. It only meant that he could not be charged with the murder.

Now what? What do you do? The right thing under such circumstances would be to vote for acquittal. I used the word incontrovertible above, but in our system of justice, the threshold would even be significantly lower than that. All you would need is reasonable doubt that Chauvin had murdered Floyd.

The Nature of Reasonable Doubt

What you would probably do is reassure yourself that such a thought experiment could never come to pass. You saw the video footage. You heard the “can’t breathe.” You saw Floyd not responsive, and have read that Chauvin kept the pressure on even after another officer could not find a pulse. All of that.

So any evidence to the contrary is simply impossible. But if any such evidence is impossible, then why go through the charade of a trial for Chauvin? And the answer to that is that we now live in a country that wants to capitulate to the mob without looking like it is capitulating to the mob. We are no longer intent on seeing justice done, but we are intent on saving the appearances.

Okay, then, the crowd says, in a bad mood and somewhat surly. Have your fair trial then. Let’s see what you’ve got.

Suppose the defense shows that Chauvin followed his training closely, and violated no policies. Suppose it is proven that what Chauvin applied was a movement restriction hold, and not a choke hold. Suppose further autopsies reveal that Floyd had drugs in his system that were “likely” the cause of death. Returning to the top, I am not asserting any of these. I am simply asserting that the raising of issues like these are what trials are for.

But if you already have the answers to all such questions, then go right ahead. Proceed to sentencing.

Honest Answers

Everybody knows that there is a possible conflict of interest when the coroner on staff says that Floyd did not die of asphyxia. So another medical expert is brought in, and he says that it was too asphyxia. Good. Let’s get a third opinion.

I am not talking here about whether Floyd died of asphyxia or not. I am talking about whether or not — because of everyone’s ungodly behavior thus far — it would be possible to find a medical expert who wouldn’t have a dog in the fight.

If you are the coroner for the Minneapolis police, then the answer you brought back was the wrong one. Does that mean that there would be no pressure on a medical examiner brought in by the family? Suppose you were that guy, and you were brought in, and you found (medically speaking) that the official coroner got it right. I am not saying he did. I am simply asking whether you would be allowed to come to that conclusion. Are you a disinterested examiner, free from all contextual pressures?

When riots are tearing the country apart, one of the first things to go up in flames is the essential element of honest answers. I am not talking here about this answer or that one. I am talking about the climate of lawlessness that destroys the very possibility of honest answers. And even if you happen to get an honest answer by accident somehow, the climate has destroyed any possibility of trusting it as such.

I am not telling you that if I were a juror in Chauvin’s trial that I would vote for acquittal. I am telling you that it is possible that I would. I am telling you that it is possible that I would vote for a guilty verdict. I am telling you that I believe that I could serve as an impartial juror.

But as we look at the turmoil our country is currently in, and we look at how everybody is reacting to the turmoil, good luck finding twelve people like that.