Pictured: National Guardsmen and other law enforcement officers stand guard outside the Hennepin County Government Center in Minneapolis, Minnesota, where former police officer Derek Chauvin was convicted of murdering George Floyd, on April 20, 2021. (Photo by Chandan Khanna/AFP via Getty Images)
The convictions of Derek Chauvin might not mark the end of this racially divisive case. The US Supreme Court might ultimately decide whether to uphold the convictions.
Congresswoman Maxine Waters (D-Calif.) made a statement — while jurors in the trial of former Minneapolis police officer Derek Chauvin were not yet sequestered — which demanded street confrontations unless Chauvin were found guilty of murder. The trial judge correctly suggested that any conviction in the case might ultimately be thrown out on appeal, based on what Waters said. He condemned Waters' remarks in the strongest terms, but he did not have the courage to grant a defense motion for a mistrial. Had he done so, that almost certainly would have led to riots — which would have been blamed on the judge, not on Rep. Waters. So he left it to the court of appeals, months in the future, to grant a new trial -- which he should have granted.
The Minnesota appellate courts might not reverse the conviction but the United States Supreme Court well might, as they have done in other cases involving jury intimidation.
In seeking to put her thumb on the scales of justice, Rep. Waters perhaps unwittingly borrowed a tactic right out of the Deep South of the early 20th century. Though her motives and intentions were far better than those of the white southerners, the tactic is essentially the same. In the Deep South during the 1920s and '30s, elected politicians would organize demonstrations by white voters in front of courthouses in which racially charged trials were being conducted. The politicians then threatened, explicitly or implicitly, that violence would follow the acquittal of a black defendant or the conviction of a white defendant. The U.S. Supreme Court and other federal courts reversed several convictions based on these tactics of intimidation.
The judge in the Chauvin trial made a serious error in not sequestering the jury during the entire trial. Instead, he merely told them not to read or watch the news. That is not nearly enough; even if the jurors scrupulously followed the judge's narrow instruction, it is inconceivable that some of them did not learn what was going on outside the courtroom from friends, family, media and TV shows that were not "the news." It is safe to assume that many if not all of the jurors were fearful — either consciously or unconsciously —that a verdict other than the one desired by Waters and her followers would result in violence that threatens them, their homes, their businesses and their families.
Already, we have seen blood sprayed over the former home of a witness who testified for Chauvin; the defendant's lawyers have received threats. An aura of violence is in the air. Jurors breathe that same air, and the guilty verdict in this case — whether deserved or undeserved — should be scrutinized carefully by the appellate courts.
This is not the Deep South in the 1920s. It is the "Identity Politics" of the 21st century. But the motives of the protesters are not relevant to whether jurors in the Chauvin case could be expected to consider the evidence objectively without fear of the kind of intimidation threatened by Waters.
Both the prosecution and the defense put on effective cases. The evidence, in my view, supports a verdict of manslaughter, but not of murder. Any verdict that did not include a conviction for murder was likely to be unacceptable to Waters and her followers, however, even if the facts and the law mandate that result. Waters is not interested in neutral justice. She wants vengeance for what she and her followers justifiably see as the unjustified killing of George Floyd.
Yet, justice is not black and white. It requires calibration, common-sense nuance and a careful evaluation of all the evidence presented by both sides. There can be no assurance that this jury was capable of rendering justice without the threatening sword of Damocles — unsheathed by Waters — hanging over their heads. That is not the rule of law. That is the passion of the crowd.
We must do a better job of insulating jurors from outside influences in racially charged cases. We must be certain that threats of intimidation do not influence jury verdicts. That certainty does not exist now in the Chauvin case, thanks largely to the ill-advised threats and demands of Maxine Waters and others.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. His new podcast, "The Dershow," can be seen on Spotify, Apple and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.