https://unherd.com/2021/05/the-day-american-justice-died/ (Archive)
While the repercussions of George Floyd’s death have echoed across the world, its most profound significance has been felt inside America — albeit for an entirely un-American reason.
It will have been a year tomorrow, May 25, since Minneapolis police officer Derek Chauvin placed his knee on the neck of 46-year-old Floyd — and, in doing so, changed the course of history. Our natural human tendency on such an anniversary is to reflect with generosity on the life lost and to resist, for the moment at least, the equally human instinct to obsess on the forces that deprived that person of life.
But in this case we cannot afford that luxury, nor would it be possible if we tried. George Floyd was just a man. The facts of his life are indeed tragic, but they are also mundane. Yet he has been so valourised in death, and the events of his demise so mythologised, that meaningful attempts to reflect on his life by people who only became aware of his existence after he was gone are futile. He is, like the falling man of 9/11, confined to the reality and context of his exit.
In this era of racial hyper-awareness, bystanders who saw a white police officer kneeling on the neck of a black man made every effort to document the injustice they believed they were witnessing, as well they should have. We now use cameras worn by officers to disincentivise both police misconduct and false claims of it. More camera footage can only increase our understanding of an interaction; so these citizens, even if they could not save George Floyd, were potentially in a position to help others down the line.
But in this case, the extra cameras didn’t add information. Rather, in an odd way, they seem to have had the opposite effect. The citizen-cameras began filming late in the sequence of events, effectively editing out context that only later emerged in the officers’ body-cam footage — long after the bystanders’ videos had been broadcast to the world, and to an American public primed to see anti-black police violence. The full context of what happened that day — every exculpatory fact — faced an uphill battle to overcome the public’s overwhelming sense that they had been witnesses to a racially motivated murder.
Yes, they could and did fear deranged mobs — but surely imagined nothing on the scale of the protests and riots that unfolded in the wake of George Floyd’s death, with a global pandemic serving as the backdrop. Every American with access to a television or the internet had an opinion on Floyd’s death, as well as plenty of reason to fear what would erupt if Chauvin was, to any significant degree, exonerated. The trial, therefore, should have been moved, but there is no place in the United States — almost no place left on Earth — where the trial could have been held that would have freed it from the mass rush to judgement that had already taken place.
In some sense, of course, the public were witnesses to something, and it could have been a racially charged murder. Yet we must never proceed from such assumptions. For no matter how obvious a person’s guilt may seem, we must demand that the state be ready to go through the formal exercise of publicly proving guilt, to reasonable people with no stake in the matter, so that no substantial doubts remain. It seems to me that, in this case, we failed in our obligation; we collectively leapt to a conclusion based on an incomplete review of evidence. From then on, we allowed ourselves to presume we knew the truth.
This may all seem like a minor quibble. If, after all the evidence has been aired, I can still say that Chauvin might be guilty of the crimes for which he has been convicted, then why dwell on such technicalities as the presumption of innocence and the burden and standard of proof?
The answer is straightforward: because that presumption, burden and standard are woven into the fabric of America, and because they have been among our most important exports. If we surrender the principle that these structures guard, if we tear down the tremendous obstacles our founders built to protect citizens from the state, where does it leave the rest of us?
Derek Chauvin may have caused George Floyd’s death, but the established medical facts alone would seem to preclude certainty. According to the coroner’s report, Floyd suffered from “cardiopulmonary arrest”; he had “severe arteriosclerotic heart disease” and “hypertensive heart disease”, and had recently recovered from Covid-19, a destructive cardiovascular condition (even in asymptomatic patients).
He had fentanyl and methamphetamine in his system, a potentially lethal combination. He was obviously agitated; he physically struggled with police with enough determination to prevent them from putting him in the back of a vehicle. During a prior and very similar arrest he was hospitalised, leading to concerns about the possibility that his agitation would cause him to have a spontaneous heart attack. He complained of an inability to breathe before he was ever put on the ground.
So why did the jury convict on all counts? And how did they arrive at their decision so quickly? The probable answer is disturbing, and has deep implications for justice in America.
Chauvin, it seems, was pre-judged — exactly the thing our system of jurisprudence was designed to prevent. And I don’t mean this in abstract terms: the jury’s unusual rush to judgement was also manifest in almost every conversation I had about Floyd’s death with people who would normally have retained the formality of saying Chauvin was “accused of”, “suspected of” or “charged with” murder. In this case, however, people simply insisted that Chauvin was guilty of murder.
Perhaps even more unsettling was how this sense of prejudgment was mirrored in the many claims of victory by protestors, rioters and their prominent supporters who, following the verdict, were quick to take credit for forcing the outcome. In other words, they sought to influence the jury’s verdict, and were sure that they had.
Until recently in America, it was understood that, even when the facts made a person’s guilt seem inescapable, the accused was formally innocent right up until the moment that they were convicted by an impartial jury of their peers. And conviction in America was no small formality. Our founders bent over backwards to give the accused the absolute benefit of even a single, reasonable doubt.
That counterintuitive structure of our legal system, burdening the state and arming the defence, exists for a crucial reason: to protect citizens from the vast power of the state and its frightening capacity to usurp liberty. But America allowed itself to skip the formalities when it came to Derek Chauvin; we all knew, thanks to a shocking video, what had happened before any of the considerable exculpatory context was known.
Stacking the deck in favour of the accused is not a perfect solution. It doesn’t always work, and when it does the results can be decidedly unjust. But that strong preference for freeing the guilty over incarcerating the innocent is arguably the most civilised thing about us. The fact that it actually structures the proceedings in all our criminal courts, and that it has for two and a half centuries, is proof of our conviction in the lofty promises of our founding documents. It is the principle on which we must agree, and to which we must aspire. Indeed, to surrender it would lead us quickly backward, to a much more primitive and brutal society.
And here with this trial we seem to have taken the first step. We, collectively, have relaxed the most fundamental rule. Today, if the mob is convinced and motivated enough, their cause becomes the righteous one. Whether jurors accede to this out of fear for their own safety, or out of fear of the damage that may be done to innocent people if their verdict reignites violence, or because they are convinced by the mob that there is some higher principle whose value exceeds their duty to the accused, it must not stand. The will of the mob has no place in court. Likewise, no conviction that emerges from a mob-influenced court can be legitimate.
For as hard and uncomfortable as it may be to accept, the best chance that men like George Floyd have is a justice system so impartial and robust that it can protect people like Derek Chauvin. That is what is now in jeopardy.
And so the conviction of Derek Chauvin sets a disturbing precedent. Today, when people are angry enough to demand something — when they are willing to march and burn and disrupt and intimidate — their understanding of events becomes gospel, and a trial is just one more tool at their disposal. The right to a fair trial is suddenly turned into a mere privilege — something that is only guaranteed so long as the mob isn’t against you.
America’s founders were a living paradox: though upstanding statesmen of wealth and privilege, they were obsessed with the rights that protect the powerless. And it is the powerless — the downtrodden, oppressed and marginalised — who will suffer most if we renounce these protections. If we allow exceptions to our once-universal commitment to the rights of the accused, if we agree that prejudice has a legitimate role inside our courts, the greatest burden is sure to fall on populations that face the most prejudice outside our courts. In America, at least, it is safe to assume that the lives that will be worst-harmed will be black lives.
A year on from Floyd’s death, it is not the frightening tyranny of the state to which we have surrendered, nor is it the mob’s terrifying thirst for vengeance. Rather, it is a combination of the two: the desperation that justice would be delivered to a man whom they believed so depraved that he was willing to rob another of his life while the world watched on.
While the repercussions of George Floyd’s death have echoed across the world, its most profound significance has been felt inside America — albeit for an entirely un-American reason.
It will have been a year tomorrow, May 25, since Minneapolis police officer Derek Chauvin placed his knee on the neck of 46-year-old Floyd — and, in doing so, changed the course of history. Our natural human tendency on such an anniversary is to reflect with generosity on the life lost and to resist, for the moment at least, the equally human instinct to obsess on the forces that deprived that person of life.
But in this case we cannot afford that luxury, nor would it be possible if we tried. George Floyd was just a man. The facts of his life are indeed tragic, but they are also mundane. Yet he has been so valourised in death, and the events of his demise so mythologised, that meaningful attempts to reflect on his life by people who only became aware of his existence after he was gone are futile. He is, like the falling man of 9/11, confined to the reality and context of his exit.
In this era of racial hyper-awareness, bystanders who saw a white police officer kneeling on the neck of a black man made every effort to document the injustice they believed they were witnessing, as well they should have. We now use cameras worn by officers to disincentivise both police misconduct and false claims of it. More camera footage can only increase our understanding of an interaction; so these citizens, even if they could not save George Floyd, were potentially in a position to help others down the line.
But in this case, the extra cameras didn’t add information. Rather, in an odd way, they seem to have had the opposite effect. The citizen-cameras began filming late in the sequence of events, effectively editing out context that only later emerged in the officers’ body-cam footage — long after the bystanders’ videos had been broadcast to the world, and to an American public primed to see anti-black police violence. The full context of what happened that day — every exculpatory fact — faced an uphill battle to overcome the public’s overwhelming sense that they had been witnesses to a racially motivated murder.
Keep in mind that this was utterly unanticipated by the structure of the American legal system. Our founders, brilliant and perceptive as they were, could not have imagined a scenario in which hundreds of millions of Americans genuinely believed that they had seen a notorious crime that, for most of them, took place hundreds of miles away. Nor could they have anticipated the effect of a nation coming to such a conclusion on Twitter and Facebook, with Google’s search algorithm acting as Deus Ex Machina.Yes, they could and did fear deranged mobs — but surely imagined nothing on the scale of the protests and riots that unfolded in the wake of George Floyd’s death, with a global pandemic serving as the backdrop. Every American with access to a television or the internet had an opinion on Floyd’s death, as well as plenty of reason to fear what would erupt if Chauvin was, to any significant degree, exonerated. The trial, therefore, should have been moved, but there is no place in the United States — almost no place left on Earth — where the trial could have been held that would have freed it from the mass rush to judgement that had already taken place.
In some sense, of course, the public were witnesses to something, and it could have been a racially charged murder. Yet we must never proceed from such assumptions. For no matter how obvious a person’s guilt may seem, we must demand that the state be ready to go through the formal exercise of publicly proving guilt, to reasonable people with no stake in the matter, so that no substantial doubts remain. It seems to me that, in this case, we failed in our obligation; we collectively leapt to a conclusion based on an incomplete review of evidence. From then on, we allowed ourselves to presume we knew the truth.
This may all seem like a minor quibble. If, after all the evidence has been aired, I can still say that Chauvin might be guilty of the crimes for which he has been convicted, then why dwell on such technicalities as the presumption of innocence and the burden and standard of proof?
The answer is straightforward: because that presumption, burden and standard are woven into the fabric of America, and because they have been among our most important exports. If we surrender the principle that these structures guard, if we tear down the tremendous obstacles our founders built to protect citizens from the state, where does it leave the rest of us?
Derek Chauvin is not a textbook case of an innocent man falsely accused of a crime he did not commit. It was him; his actions are not in dispute. But though his role in the events is well-known, his impact on the functioning of George Floyd’s heart is much less clear, and his deepest motivations remain a mystery. It seems to me, therefore, a textbook case of reasonable doubt. Not only are there reasons to question Chauvin’s guilt, but it is hard to imagine how an impartial jury, following standard instructions, could have escaped that conclusion.Derek Chauvin may have caused George Floyd’s death, but the established medical facts alone would seem to preclude certainty. According to the coroner’s report, Floyd suffered from “cardiopulmonary arrest”; he had “severe arteriosclerotic heart disease” and “hypertensive heart disease”, and had recently recovered from Covid-19, a destructive cardiovascular condition (even in asymptomatic patients).
He had fentanyl and methamphetamine in his system, a potentially lethal combination. He was obviously agitated; he physically struggled with police with enough determination to prevent them from putting him in the back of a vehicle. During a prior and very similar arrest he was hospitalised, leading to concerns about the possibility that his agitation would cause him to have a spontaneous heart attack. He complained of an inability to breathe before he was ever put on the ground.
So why did the jury convict on all counts? And how did they arrive at their decision so quickly? The probable answer is disturbing, and has deep implications for justice in America.
Chauvin, it seems, was pre-judged — exactly the thing our system of jurisprudence was designed to prevent. And I don’t mean this in abstract terms: the jury’s unusual rush to judgement was also manifest in almost every conversation I had about Floyd’s death with people who would normally have retained the formality of saying Chauvin was “accused of”, “suspected of” or “charged with” murder. In this case, however, people simply insisted that Chauvin was guilty of murder.
Perhaps even more unsettling was how this sense of prejudgment was mirrored in the many claims of victory by protestors, rioters and their prominent supporters who, following the verdict, were quick to take credit for forcing the outcome. In other words, they sought to influence the jury’s verdict, and were sure that they had.
Until recently in America, it was understood that, even when the facts made a person’s guilt seem inescapable, the accused was formally innocent right up until the moment that they were convicted by an impartial jury of their peers. And conviction in America was no small formality. Our founders bent over backwards to give the accused the absolute benefit of even a single, reasonable doubt.
That counterintuitive structure of our legal system, burdening the state and arming the defence, exists for a crucial reason: to protect citizens from the vast power of the state and its frightening capacity to usurp liberty. But America allowed itself to skip the formalities when it came to Derek Chauvin; we all knew, thanks to a shocking video, what had happened before any of the considerable exculpatory context was known.
Stacking the deck in favour of the accused is not a perfect solution. It doesn’t always work, and when it does the results can be decidedly unjust. But that strong preference for freeing the guilty over incarcerating the innocent is arguably the most civilised thing about us. The fact that it actually structures the proceedings in all our criminal courts, and that it has for two and a half centuries, is proof of our conviction in the lofty promises of our founding documents. It is the principle on which we must agree, and to which we must aspire. Indeed, to surrender it would lead us quickly backward, to a much more primitive and brutal society.
And here with this trial we seem to have taken the first step. We, collectively, have relaxed the most fundamental rule. Today, if the mob is convinced and motivated enough, their cause becomes the righteous one. Whether jurors accede to this out of fear for their own safety, or out of fear of the damage that may be done to innocent people if their verdict reignites violence, or because they are convinced by the mob that there is some higher principle whose value exceeds their duty to the accused, it must not stand. The will of the mob has no place in court. Likewise, no conviction that emerges from a mob-influenced court can be legitimate.
For as hard and uncomfortable as it may be to accept, the best chance that men like George Floyd have is a justice system so impartial and robust that it can protect people like Derek Chauvin. That is what is now in jeopardy.
Liberty is precious. It is not a privilege granted by the state; it is a right of every citizen, and the power to deprive a person of it carries with it an immense moral burden to ensure that their guilt is “beyond a reasonable doubt”. That is our Founding Fathers’ brilliant insight; that is the wisdom we now find endangered.And so the conviction of Derek Chauvin sets a disturbing precedent. Today, when people are angry enough to demand something — when they are willing to march and burn and disrupt and intimidate — their understanding of events becomes gospel, and a trial is just one more tool at their disposal. The right to a fair trial is suddenly turned into a mere privilege — something that is only guaranteed so long as the mob isn’t against you.
America’s founders were a living paradox: though upstanding statesmen of wealth and privilege, they were obsessed with the rights that protect the powerless. And it is the powerless — the downtrodden, oppressed and marginalised — who will suffer most if we renounce these protections. If we allow exceptions to our once-universal commitment to the rights of the accused, if we agree that prejudice has a legitimate role inside our courts, the greatest burden is sure to fall on populations that face the most prejudice outside our courts. In America, at least, it is safe to assume that the lives that will be worst-harmed will be black lives.
A year on from Floyd’s death, it is not the frightening tyranny of the state to which we have surrendered, nor is it the mob’s terrifying thirst for vengeance. Rather, it is a combination of the two: the desperation that justice would be delivered to a man whom they believed so depraved that he was willing to rob another of his life while the world watched on.
