The Week that Was

“That Was the Week that Was” was a satirical television show that began in Britain in 1962 and then had a run here in an Americanized version for around 20 years. This essay is not trying to be satirical except, possibly, toward the end.

The most visible event during the past week was the conviction of a former Minneapolis police officer for murder and manslaughter by the use of excessive and unreasonable force; that is, by kneeling on an arrested person for a time long after the suspect apparently ceased to be resisting arrest. The former officer, whose name is Derek Chauvin was found guilty of three charges: second degree murder, third degree murder and second degree manslaughter. Under Minnesota law, it appears he could be sentenced for consecutive terms to more than 100 years in prison. That probably will not happen, but he will doubtless receive a substantial sentence.

It could be reversed on appeal, but probably will not be, at least not in its entirety. Jury verdicts are resolution of factual disputes in the context of law given by the court; that is, the presiding judge in the case. A fact finder — the jury — is given a lot of deference, and its decision is overturned only if the judge made an error of law in the jury’s instructions, the verdict is unsupported by relevant evidence, or the trial was manifestly unfair.

Regarding the first two counts charged, the legal definition of “murder” has different nuances throughout the 50 states and in federal jurisdiction, but all appear to involve some degree of intent to kill or do an act that is substantially certain to result in death. What is called at common-law “felony murder” does not require that intent, but deems it murder if the death is caused by a perpetrator or accomplice in the course of committing a felony, for example, burglary, robbery, or, perhaps, an aggravated assault. Manslaughter involves the mental state of recklessness; i.e., conduct that involves an act that is unjustified and is consciously committed when it creates substantial risk of harm.

Based on what we know, it is possible that the facts and circumstances submitted to the jury would support a manslaughter conviction. There does not seem to be any evidence that Chauvin intended to kill his prisoner. While aggravated assault, if charged as a felony, might support a “felony murder” conviction, in this case, that might be a stretch.

Not having watched the entire trial we should not second-guess the jury. That is for the appeals court, and they usually loathe doing so. Even then, so much depends on the correctness of the jury instructions.

What appears to be the most troubling, and best ground for appeal, is the failure of the trial court to move the location of the trial in the face of pretrial publicity, the perceived necessity of essentially fortifying the courthouse, and the presence of a mob outside during the trial. In the 1966 case of Sheppard vs. Maxwell, the U. S. Supreme Court overturned the Ohio conviction of Dr. Samuel Sheppard for murdering his wife.(1) The Court cited that conducting the proceedings and atmosphere in such high charged atmosphere deprived the defendant of a fair trial.

The atmosphere in Minneapolis, far worse than that surrounding the Sheppard trial (which occurred decades pre-Internet and before even broadcast television became ubiquitous) together with the court’s refusal to grant a mistrial after a U. S. Congresswoman loudly demanded a conviction and the President of the United States echoed her demand, could be serious grounds for a reversal new trial in a different venue. Even the judge opined that this could be a point on appeal.

Then there is the concept of “harmless error” in appellate jurisprudence. The appeals court could decide that there was an error by the trial court, but the error could not have changed the outcome. The harmless error doctrine does not apply, however, where substantial rights of the defendant have been violated.

The only definite statement as to what happens next, is: We will see.

Subsequent to the Chauvin trial verdict, the Associate Press, repeated in The Dallas Morning News under a headline declaring “Police killings unabated after Chauvin case” reported five cases of police killing suspects throughout Texas, Massachusetts, North Carolina, California, and Ohio.(3) Based on the facts reported, which are probably incomplete, the deadly force used in those cases was justifiable and necessary.

The case that received the most publicity was the Columbus, Ohio police officer, who undoubtably saved a young woman from death or serious bodily injury. According to video and bystander statements, a teenage girl wielding a knife was about to stab another when the officer shot and killed her. The incident brought screeches from the usual suspects about brutality and “systemic racism” (both the perpetrator and the intended victim happened to be black).(4) The idiotic reaction and inane statements, one from the Speaker of the U. S. House of Representatives no less, were mind boggling. No sane person disputes that knives are deadly weapons, and can cause terrible and permanent injuries. That officer deserves a medal for quick action to save a life in a chaotic situation. He had to use force that was in fact deadly take an unjust aggressor’s life to do so. Anyone who believes differently is a fool or has evil premises.

On a different, but related subject, the Beatles were certainly prescient about our current President;
He’s a real nowhere man
Sitting in his nowhere land (except for his basement equivalent in the White House)
Making all his nowhere plans for nobody (other than his puppet-masters)
Doesn’t have a point of view (unless it’s woke)
Knows not where he’s going to (or where he is most of the time)
Isn’t he a bit like you and me? (Certainly like most of the left-coast country)


(1) 384 U.S. 333 (1966), the case that made F. Lee Bailey famous. The Sheppard saga spawned the television series (and later big-screen production) The Fugitive.

(2) While the 1970 trial of Charles Manson and three of his acolytes was in progress, then President Nixon publicly declared Manson to be guilty. The defense motion for mistrial was denied. In that case, however, the jury was sequestered for the entire trial, and cellular telephone were unheard of.

(3) DMN 4/25/2021, p. 6A. (print edition); various websites.

(4) See previous post

By bobreagan13

My day job is assisting individuals and small businesses as a lawyer. I taught real estate law and American history in the Dallas County Community College system. I have owned and operated private security firms and was a police officer and criminal investigator for the Dallas Police Department.

I am interested in history and historical research, music, cycling, and British mysteries and police dramas.

I welcome comments, positive, negative, or neutral, if they are respectful.

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