Chauvin – Opening Statement May Signal Zenger Defense; Officer’s Lawyer Could Begin Suggesting Juror Nullification
Derek Chauvin's Trial: Defense's Opening Statement May Signal Possible Reliance
WASHINGTON, D.C. (March 29, 2021) - The defense's opening statement in the trial of former police officer Derek Chauvin, for the alleged murder of George Floyd, may signal possible reliance - in addition to more standard defenses - on a classic American tactic best known historically as that used successfully but in defiance of the judge by lawyer Andrew Hamilton in the trial of newspaper publisher John Peter Zenger.
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This trial could be derailed by - in additional to the standard legalistic defenses offered by Chauvin's lawyers - the constitutional right of juror nullification, says Banzhaf, who correctly predicted outcomes based upon the related concept of jury nullification.
Jury nullification, a constitutional right recognized and upheld by the U.S. Supreme Court, occurs when jurors, despite concluding beyond a reasonable doubt that a defendant has violated the criminal law as explained to them by the judge, nevertheless unanimously votes "not guilty"; a decision which is final and not subject to any appeal or other review.
Jurors may do this because they believe that the law is unfair or unreasonable, either in general or as applied in a specific situation, to send some kind of message to prosecutors and/or to the general public, because a conviction in a specific situation might seem "unjust" for some reason, to register strong discontent with the conduct of the prosecutor, because of public pressure for - or concern about - a finding of guilty, or for a myriad of other similar reasons.
In short, this constitutional right permits jurors to nullify the law as the legislators and judges meant it to be applied, says Banzhaf.
The Best Example Of Juror Nullification
One of the earliest and perhaps best known examples occurred in 1735 when Zenger was on trial for publishing newspapers which criticized the governor of New York. Since truth was at that time not a valid legal defense to libel, the judge told the jury that their only task was to decide if Zenger published the statements - which he obviously had - and the judge would himself decide if the statements were defamatory.
But Hamilton, skirting if not outright defying the orders of the judge that he could not tell the jury to disregard a law widely believed to be unfair, argues to the jury that “leaving it to the judgment of the Court, whether the words are libelous or not, in effect renders juries useless (to say no worse) in many cases.” The jury got the message and, not wanting to be useless, and believing the law to be unfair, found Zenger not guilty despite the clear evidence to the contrary.
Other familiar historical examples include the unwillingness of many northern juries to convict persons accused of helping slaves escape, even though that's what the law would seem to require, or the refusal of some southern juries to convict white citizens who committed crimes against Blacks in an effort to maintain what they might see as the southern way of life.
Also, jury nullification apparently played a major if not controlling role in many more recent criminal verdicts involving varied defendants including: penis-slicer Lorena Bobbitt; the Menendez brothers (Trial 1); subway shooter Bernhard Goetz; Iran-contra figure Oliver North; former Philippines first lady Imelda Marcos; New York Black activist Al Sharpton; reputed mob boss John Gotti (early trials); and the beating trials of Reginald Denny as well as Rodney King (Trial 1).
Do The Right Thing
Moreover, many also believe that jury nullification was one reason why a jury refused to convict O.J. Simpson of murder, especially after Johnnie Cochran - apparently following Hamilton's example - was able to subtlety suggest it to them by arguing that they should vote their consciences rather than being bound by the law and the judge's instructions; i.e., that they should decide guilt or innocence "where you don't do violence to your conscious (sic), but you do the right thing. And you are the ones who are empowered to determine what is the right thing."
Banzhaf notes that the phrase "Do The Right Thing" was, apparently not coincidentally, the title of a Spike Lee movie, well known to most Black jurors, in which theater goers are asked to decide whether a frustrated black teenager who threw a garbage can through a window was justified; with Lee arguing that black viewers would never vote for a conviction.
In what is probably a much larger number of situations where only one or two jurors are reluctant for such reasons to vote for a verdict of guilty, the related doctrine of JUROR nullification occurs. And this, in addition to casting reasonable doubt about whether Chauvin's actions were a substantial cause of Floyd's death, could be an additional tactic for the defense.
The one or two jurors who refuse - despite their belief that a guilty verdict is warranted by the facts and the judge's charge about the law - to vote for conviction causes a hung jury and a mistrial. While ordinarily such a defendant can be tried again, prosecutors may be deterred from trying the defendant again by many factors, including the risk that the same reasons and unwillingness to convict will affect at least one juror in a subsequent trial.
Difficult To Criminally Convict Police
Legal experts know that, historically, it has been notoriously difficult to criminally convict police who have killed suspects in confrontations, especially if the victims are criminals or are otherwise seen or made to seem as less than model citizens; a tactic almost certain to be employed in this case.
This is especially true if the victims seem to have contributed to their own deaths - e.g., by refusing to follow police commands or otherwise being confrontational, being under the influence of alcohol or illicit drugs, being engaged in criminal activities, etc., says Banzhaf.
Also, many jurors routinely feel that law enforcement officers must be given considerable leeway and discretion because they are seen as standing between the criminal element and law-abiding citizens, because the officers are often required to make decisions under stressful and sometime ambiguous circumstances, so as not to unreasonably deter them from taking forceful action when it may seem to be required to enforce laws and protect the public, etc.
In other words, jurors may apply a policy similar to that used in self defense situations - a person is not to be convicted of using force, including deadly force, when he reasonably believes it may be necessary to protect himself or others, even if he makes an honest mistake. Here it probably will be argued that, although Chauvin may have made a fatal mistake, he was, after all, simply using a tactic which he had been trained to use, and which was generally accepted by police officials at the time.
Refusal To Vote Guilty
For these general reasons, and possibly for others specific to the Floyd case, one or more jurors may refuse to vote guilty despite the weight of the evidence and the judge's charge.
For obvious reasons, they may decline to disclose their real motivations to fellow jurors and others, even if based upon arguments by highly regarded legal experts which they might have followed, especially if their justifications for refusing to vote "guilty" are based upon direct defiance of the judge's charge and other judicial decisions.
For example, renowned lawyer and constitutional scholar Alan Dershowitz has publicly charged that the trial judge's decision not to grant a change of venue - e.g., to try the case in a more rural area where the risk of violence to jurors and to their families in the event of an acquittal is arguably less - was not only wrong but outright unconstitutional.
In Dershowitz's words, "not only is the thumb on the scale, but the elbow is on the scale. No juror should have to worry that if they acquit there will be consequences to them outside of the courtroom. That's why this trial should be held in a rural area, far away from where there may be violence."
The decision as to the proper location for a trial is a legal one made by a judge which, by conventional law, jurors must accept. But nullification doctrine permits jurors to override this legalistic decision, and to refuse to vote for a conviction, if they believe that it was unfair to the defendant to try him in a jurisdiction where it is more likely that jurors might feel pressured to convict him out of fear for their own safety, employment, or social relationship, and similar concerns related to family members.
Chauvin May Have Been Overcharged
Similarly, criminal law expert and law professor Jonathan Turley, among others, has publicly suggested that Chauvin may have been overcharged; i.e., charged with more serious crimes than can reasonably be expected to be proven beyond a reasonable doubt.
This is an all-too-common tactic for prosecutors to engage in, says Banzhaf, either as a reaction to public pressure calling for more serious charges, or to put undue and perhaps unfair pressure on defendants to agree to plead guilty to a lesser charge.
Although the propriety of the charges permitted to go to trial is ordinarily also a legal matter to be determined by judges, any juror who feels that Chauvin has been unfairly overcharged can, despite a judge's instructions, simply refuse to convict on some or even all of the charges as a way of expressing strong displeasure with the prosecutor's tactics.
Even race may be a factor regarding trials in many ways, including on the issue of juror nullification, says Banzhaf. He notes, for example, that criminal law expert and law professor Paul Butler has publicly urged African American jurors in certain situations to refuse - despite overwhelming evidence - to convict defendants who are Black, especially of charges involving alleged violations of criminal laws related to drugs - in other simpler words, to engage in juror nullification based upon race.
According to Banzhaf, a recent example of that concept might have been the criminal trial where jurors refused to convict former D.C. Mayor Marion Barry despite a videotape showing him smoking crack.
Thus one or two jurors who might come to believe that race was a factor, in charging and then trying Chauvin for crimes such as murder, might utilize their right of juror nullification by refusing to convict him of several - or even all - of the charges against him, warns Banzhaf.
Jury nullification or juror nullification, whether based upon race or other factors, can be a powerful two-edged sword, and its use is often shrouded in mystery and silence, says Banzhaf, but it could play an important role in Chauvin's criminal trial.
Indeed, he notes, there may be hints of the tactic and argument in opening statements; only hints, because an attorney cannot expressly urge jurors to deliberately disregard the evidence and the law, even though jurors do have this important constitutional right.