I previously wrote a column indicating that media coverage of the George Floyd trial of Derek Chauvin was dangerously incomplete and skewed. The concern was that the public was not being informed of strong defensive arguments that would be used during the trial. The danger is that any acquittal or hanging jury will be an even bigger surprise and add to more unrest and violence. Reporting on the final day of the trial only heightened these concerns as legal experts and journalists seemed more concerned with it than reporting on the underlying issues.
These concerns were evident within minutes of the defense’s concluding argument. Defense attorney Eric Nelson did a remarkably good job defending his client. However, Laura Coates, senior legal analyst at CNN, stated, “The defense begins the close by defining reasonable doubt, not why #DerekChauvin is innocent. Think about it.”
Many of us have thought about it, especially those of us who are criminal defense lawyers.
I suspect that over 90 percent of the defense arguments begin with defining reasonable doubt, as that is the framework for the jury to decide. It is the virtual mantra of defense. We start by reminding the jury of their burden, especially after a prosecutor has more fluently understood this standard. The last thing you want to do as a criminal defense lawyer is to suggest that the jury should focus on whether a defendant is innocent. The prosecutor has to prove that he is guilty. The defense does not have to prove an acquittal. As pointed out by Judge Peter Cahill (and all American judges), the jury must focus on the burden of proof borne by the prosecutor. The accused is considered innocent. . . at least outside of CNN.
Another such moment occurred with Yamiche Alcindor, a correspondent for PBS NewsHour, who was repeatedly criticized for bias in her reporting during the Trump administration, the riot, and the Biden administration, including designating Biden officers as virtual ” Superheroes ”. Alcindor also defended Rep. Maxine Waters after her inflammatory call to protesters to become “more confrontational” and not to accept an acquittal in the Chauvin case.
As with Coates, Alcindor attacked the moment the defense rose to advance the final argument. Alcindor stated, “Chauvin’s attorney said it was against common sense to say that Floyd’s death was not caused, at least in part, by his underlying medical conditions or drug use. That argument is in direct contradiction to the prosecutor’s case, which said, believe your eyes, Chauvin’s knee killed Floyd. “
The statement is so bizarre that it is breathtaking. Alcindor appears to be annoyed that the defense had the audacity to directly contradict law enforcement on the guilt issue.
The coverage was conspicuous in the glowing reports of the prosecutor’s concluding arguments as opposed to criticism of the defense. More importantly, the coverage shows little concern about the rights of defendants or the recognition of the defense counsel’s position.
We saw the same trend during the Trump administration, when legal experts, blindly obsessed, adopted ridiculously broad interpretations of criminal law in order to find a way to prosecute Donald Trump or his family. Some of us in the Defense Chamber warned how dangerous such interpretations would be – and how we ignored both the Element and the controlling jurisprudence. Legal experts rejected abuses uncovered in previous investigations involving defendants such as Michael Flynn and Carter Page. They ignored the implications of broad definitions of crimes such as disability or Logan’s Law. They defended the judiciary’s prejudice when it worked against Trump officials.
The saddest aspect of this trend is that legal analysis was once largely immune to such overt prejudice. I worked as a legal analyst on television in various networks for 30 years. I’ve watched legal analysts become part of the echo journalism model on both television and print – a comforting analysis for viewers looking to continually affirm their own political preferences. We have now lost any semblance of objectivity or neutrality. This is in line with the general trend in journalism of increasing demands for advocacy in journalism. This includes scholars who reject the concept of objectivity in journalism in favor of open advocacy. Even the dean of Columbia Journalism and New York writer Steve Coll denounced how freedom of expression is being “armed” to protect disinformation. The result, however, has been a steady loss of confidence in the media.
The cost of such distortion is often ignored. However, the failure to inform the public of the counter arguments in legal proceedings such as the trial of Eric Chauvin is fueling our social divisions and the ongoing violence in our cities.