Oliver Wendell Holmes correctly pointed out: due process simply cannot be achieved for any defendant in the presence of hostile crowds ready for violence if a verdict of not guilty is rendered. Pictured: Protesters outside the Hennepin County Government Center in Minneapolis, Minnesota, where the jury announced its verdict in the Derek Chauvin trial, on April 20, 2021. (Photo by Scott Olson/Getty Images)
"I very seriously doubt if the petitioner ... has had due process of law ... because of the trial taking place in the presence of a hostile demonstration and seemingly dangerous crowd, thought by the presiding Judge to be ready for violence unless a verdict of guilty was rendered."
No, this is not your author complaining about the lack of due process in the trial of Derek Chauvin in 2021. It Is the great Oliver Wendell Holmes describing the trial of Leo Frank, a Jew convicted of murder in 1913 and eventually lynched by a mob that included prominent officials, after the governor commuted Frank's sentence from death to life imprisonment.
For generations, the scene that we saw in Minneapolis, with demands for a guilty verdict or else, by Congresswoman Maxine Waters and other prominent people, has been played out, especially but not exclusively in the deep South. The Supreme Court reversed the Ohio conviction of Dr. Sam Sheppard in 1966, in part because the trial judge did not sequester the jury and keep it from being influenced by outside pressures.
It does not matter to due process whether the crowd is right or wrong, Black or white, well-intentioned or malevolent. Nor does it matter whether the defendant is guilty, innocent or somewhere in between. Oliver Wendell Holmes correctly pointed out: due process simply cannot be achieved for any defendant in the presence of hostile crowds ready for violence if a verdict of not guilty is rendered.
Every police chief and mayor of a large city understood that a verdict of not guilty for George Floyd's murder would result in demonstrations and perhaps violence. They, along with the president, understandably prayed for the right verdict -- which they defined as a conviction for murder regardless of whether the evidence supported that result, rather than a verdict of manslaughter, which the evidence clearly did support.
Like Oliver Wendell Holmes, every American should "very seriously doubt" if Chauvin had "due process of law." He may well be guilty of at least manslaughter, but the process by which he was convicted was fatally flawed, in the same way that the process was flawed in the Leo Frank, Sam Sheppard and other cases. The ACLU, if the shoe were on the other foot, would be demanding a new trial — if the defendant were black, and white crowds were demanding a conviction or else. But the ACLU is no longer a neutral civil liberties organization. It has become a partisan claque that espoused due process for "me but not for thee." Real civil libertarians, who demand due process for all, including guilty police officers, must now take over where the ACLU has left off.
Oliver Wendell Holmes was correct in expressing his serious doubts, and you can be correct in expressing the same feelings, regardless of the negative feelings you may have toward Chauvin and what the videotape showed he unjustly did to George Floyd.
Whether guilty or not, Chauvin must be given a new trial at which the jury is sequestered, as it should have been from the beginning of this one. As an alternate juror candidly acknowledged, she had "mixed feelings" about jury duty, because of concerns about "disappointing" either side and the possibility of "rioting." There is no reason to believe that the unsequestered jurors who actually decided the fate of Chauvin were oblivious to this concern.
The appellate courts should use this case to establish a clear rule that jurors must always be sequestered in racially charged cases where outsiders are threatening violence in the event of a not guilty or reduced verdict. In that way, protesters will have their First Amendment right to demand a conviction, and the defendant with have his constitutional right to due process and a jury that is not influenced by the protesters. In the absence of sequestration, the legitimate protests of the outsiders may well deny the defendant his equally legitimate right to a fair trial. That is unacceptable under the Constitution.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, The Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives and Universities, Hot Books, April 20, 2021. His new podcast, "The Dershow," can be seen on Spotify, Apple and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.