Chauvin’s Conviction and What’s Next?

Today, David and Sarah give us their reactions to the Derek Chauvin trial verdict, talk ...

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Today, David and Sarah give us their reactions to the Derek Chauvin trial verdict, talk about potential issues on appeal, and break down Minnesota state law on the competency of a juror as a witness. Also on today’s episode, our hosts chat about an interesting court filing involving Texas Attorney General Ken Paxton and a talk about whether the law can or should protect employees from political discrimination.

Show Notes:

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  1. Avatar photo
    Jake

    Organizations should not be equal to human beings. They are not endowed with the same inalienable rights as people.

    That is all.

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    Dan

    Mr. French and Ms. Isgur--I'm listening to this excellent summation of the conviction and I'm pausing to ask: would it be possible on a future advisory opinion to have a discussion about the necessary gap between morality and law? There's several times where I've heard the two of you carefully outline legal opinion, the law, and what the law says in regards to moral matters, and I'd like to think that I've detected a very careful separation of ones morals from the law. As I'm not a lawyer, nor have I ever attended law school, and the only real exposure I've had to the subject is knowing that criminal defense lawyers represent the accused (and that sometimes the accused is guilty) I'd be really interested to hear your collective take on the necessity of separating morality from the law, and the ethics of doing so. Would that be an acceptable topic for a future podcast?

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    Larry Seltzer

    You didn't commit either way, but I assume the copy and (potentially) paramedic who donated to Rittenhouse will win any challenges because the state is engaging in viewpoint discrimination by firing them. It seems to me that you've discussed cases where employees at state universities were in such circumstances.
    Should state employees really have first amendment protections unavailable to employees in private industry? I get the conflict here, that the businesses have their own first amendment rights, but if this is just association and not speech made in the context of work, then it seems to me that employment law is more at issue than the first amendment.
    Political discrimination in private employment is an old tradition in this country. Ask any communist fired by Hollywood in the 40's and 50's. Ask Brenden Eich, who wasn't actually fired by Mozilla, but resigned under extreme pressure, and became unemployable in Silicon Valley

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  4. Nathaniel

    Just in case it wasn't clear, the "first amendment activity" mentioned at the beginning of the podcast is a euphemism for violent protests. It's sad we live in a country where ordinary people don't feel safe going out to dinner during a bad news cycle.

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  5. Pzimm7778

    My comments regard the comments of Maxine Waters and the dismissal of the impact of her words. No, I do not think her words, Biden’s words, or any other lunatics words had any impact on this case. Chauvin was guilty and rightly convicted.

    My concern is the effect it can have on future cases. If this is not called out, and refuted in haste, they will continue to make rash statements in situations like this, and the effects of these comments from previous issues can affect the mindset of jurors in future cases.

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    Guffia

    This is a comment I have saved from another blog advising people who are worried about being punitively outed as conservatives in workplace trainings, etc. Some good and practical advise here I think:

    I've spent my entire career with large companies that talk the usual talk about diversity, but it doesn't seem to loom over workaday matters all that much. My advice: If speaking up may cost you your job, then don't do it if that's going to pose a material concern for you. You are much more likely to end up being seen as an example of what happens to people who question the power structure than a free- thought martyr (and you're almost certainly not going to win). Through this, the power structure actually becomes stronger.

    Also, while it may be galling to have to go along with the corporate diktats, at least you're merely offering passive compliance instead of someone filling your role who may act to advance CRT and other nonsense. Further, if events develop in a way that presents an opportunity for more liberal approaches to get a fair hearing, you'll be there to support those. (I'm aware that this isn't exactly a Profile in Courage.)

    For diversity training and other discussions:

    1. Participate as little as you can get away with. If there are exercises to do, don't be oppositional, but phone it in. Don't chime in during Q & A sessions. People, especially perky corporate trainer- types, hate apathy and indifference more than disagreement. This will be more likely to cause them to rethink their approach than something that actually gets a lively discussion going.

    2. As others have said, record or take notes on everything suspect to the extent local law allows.

    3. If you're asked to make a diversity statement, I'd suggest something like "We're in a time where our both our customer base and employee talent pool are becoming increasingly diverse. It makes good business sense to have a corporate culture that doesn't drive good potential customers or employees away." This happens to be true, and doesn't involve any self-abasement or commitments to the nuttier aspects of diversity-think.

    4. If you must ask questions, I'd suggest the following.

    a. What particular suggestions regarding employee behavior do you have? Is it the company's position that I should treat people of a different [race, religion, sex, etc) differently than others? If so, how? [This is a perfectly reasonable question, though tone is important. Doe-eyed innocence is better than confrontational. It's also a legal minefield for any company to answer.]

    b. What are the metrics by which we'll know we're being successful as a company in these efforts?

    c. Which of our competitors, other industries, or even other countries are we trying to catch up to with respect to DEI, and what did they do that made them successful?

    These last two cue the other members of the audience (at least the smarter ones) to think about DEI efforts as they would any other aspect of business: product offerings, use of technology, store footprint. When the diversity trainer gives a gobbledygook answer, that'll help clue them in that it's all BS.

    If you are ever compelled, by the company or your own conscience, to go into further details on your thoughts on the matter - always preface it by saying that you are making recommendations to improve workplace conditions. (And make sure your comments actually do this rather than just slagging the company). This may actually provide some legal protections, and it lets HR know that you're aware of your rights under the law, which scares them to death. But, consult with an employment law attorney in your state to be certain.

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      Dan

      Speaking as a liberal--it should not be allowed to out and punish conservatives simply for being conservative in a workplace. Nazis, yes. Neo-Nazis, yes. Incel alt-right dudes with a penchant for harassing women and demanding recognition of their perception of entitlement, yes. But being a conservative? No. None of what I typed above should be considered "Conservative" positions. Those are people who hid behind either the "conservative" or the "libertarian" moniker until Sarah Palin and Donald Trump made it okay for the racist white nationalists to finally emerge.
      Example: I had a socially conservative nurse help me with an STI screening at Planned Parenthood yesterday. Pro-military, pro-cops, and pro-health care and safe sane sexual health--it was an absolutely delightful conversation, and she made it clear she both supported PP and was a social conservative and that the two aligned in her mind. I felt heard, safe, and welcomed; it was safe for me to talk about my sex life, what I do, the care I can take as a middle-aged male, and the considerations I have for a vasectomy. She's a credit to Planned Parenthood and to conservatives. I'm tired of racists and nazis and bigots smearing conservatives; I want my brethren back.

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    2. BadgerBill

      Absolutely excellent advice. I closely followed the same strategy. I told my employees (high level professionals) that they could speak up and the may even be right. However, I pointed out they would be dead right. The company will get you in many ways. To quote Chris Rock: “let it slide”, it’s not worth it to get fired to fight The Man. You will lose.

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    Bill Dyer (aka Beldar)

    A pox on Paxton. I remain a fan of Gov. Greg Abbott, before whom I used to appear when he was a civil district judge in Harris County. But Paxton and former talk radio shock-jock Dan Patrick, our Lieutenant Governor, seem to be competing to see who can be the Trumpiest — and therefore most outrageously rabble-rousing and short-sighted. I hope to see both effectively primaried in 2022, although that's probably wishful thinking on my part.

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    Bill Dyer (aka Beldar)

    Good job, yet again and as we've come to expect, Ms. Isgur and Mr. French. My deep well of appreciation and affection for you both, and these podcasts, isn't even much depleted by your frolicsome detour into the briefly-famous Kato Kaelin.

    The Maxine Waters comments were icing on a cake. Likewise the calling out of the national guard in anticipation of violent riots in response to any other potential verdict than conviction on the most serious charge. It was a cake that had been baked 11 months ago, when the lawless elements engaging in violence and property damage after Floyd's killing demonstrated to the rest of the world, but most vividly to the residents and public officials of Hennepin County, MN, that they must expect vastly more violence and property damage if Chauvin were acquitted or, indeed, convicted of anything less than the most serious charges made against him.

    The interests of the public in holding Minnesota law enforcement officers accountable to the criminal laws they're charged with enforcing is shared by everyone who lives in that state. About four-fifths of Minnesotans, however, live in counties other than Hennepin, and ANY of those counties, but especially any of the rural ones, would have been a demonstrably fairer venue than Hennepin County could ever be, given the history of this particular case.

    And therefore, in my judgment, Chauvin's strongest arguments aren't based on what Waters did, nor on President Biden's comments, nor on any other pretrial or mid-trial publicity. It's based on the denial of Chauvin's initial motion for a change of venue, and then, especially, his renewed motion for a change of venue, and for a continuance, when the City — literally in the midst of jury selection — announced its utter and enthusiastic capitulation in the civil suit brought by Floyd's family against the City, and the City's effective joinder thereby with those who demanded a firm and unswerving prejudgment that Chauvin was guilty.

    If I'd been the trial judge, I'd have issued a bench warrant for every member of the City Council and for its counsel in the civil suit, directing that they be apprehended and brought to my courtroom to show cause why they shouldn't be held in contempt for attempted jury tampering. I'd have publicly dressed them down; I am sure I would at least have fined them individually, perhaps suspending that punishment for some stipulated period to help ensure they didn't immediately repeat their jury tampering. Because that's what the timing of that event was, friends and neighbors. It was the City Council's best attempt to put in the fix in favor of the prosecution and against its former police officer.

    Regarding Ms. Isgur's observation about the trial judge's obvious displeasure with Rep. Waters' dramatic efforts to poison the trial with promises of violence: I agree entirely that it would be an exceptionally rare trial judge who'd grant a mistrial on those grounds, and that no seasoned trial lawyers were surprised that this judge denied Chauvin's lawyers' mistrial motion.

    That ruling, though, doubtless also reflects the trial judge's knowledge that even if he denies a mid-trial mistrial motion, the entire subject might be mooted by the jury's verdict, and if it isn't (i.e., if the jury convicts), he can revisit afresh the merits of the mistrial motion when it's re-urged as part of a motion for new trial.

    It's THAT upcoming motion that interests me, and it will precede the sentencing hearing that Ms. Isgur pointed to as the next big event.

    Perhaps these subpoints will be addressed when Ms. Isgur and Mr. French revisit the question of the Chauvin trial, and what to look for next, during the Friday night streaming show.

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    1. BadgerBill

      So you had me until you went off the rails regarding the civil settlement by the city council. I’m unaware of any duty they have to deal with the city’s potential liability in a case against one of their employees that the city was clearly going to lose with a preponderance of the evidence standard for proving wrongful death, violation of state civil rights, and whatever other causes of action were going to be brought by the Floyd family. They made a decision to settle the case before the trial as settling after a guilty verdict would likely have been even more expensive and damning against the city. I can’t imagine any judge taking the incredible and abusive step of hauling the city council into court. That’s just not ever going to happen.

      As for reversal based on a denial of a change of venue, nah, no chance. What indication was there the jurors were so prejudiced that they couldn’t reach a sound verdict in Hennepin County?

      There may be grounds for reversal in this case. Settlement of a civil case or denial of a motion for change of venue are not among those reasons.

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        Bill Dyer (aka Beldar)

        We emphatically disagree, Badger Bill. The city council — in conjunction with Floyd's family's lawyers — made a decision to settle not just before a verdict, BUT DURING JURY SELECTION. Eleven months they had before trial to consider a settlement. Only the willfully naive could miss the significance of this very specific timing.

        And did you somehow miss the violent, deadly rioting in Hennepin County immediately after Floyd's death? The explicit threats of more violent rioting if Chauvin wasn't convicted? You're blinding yourself to the obvious, sir. Would you like you own adult child, hypothetically, to be tried before a panel of jurors who know that if they fail to convict on the most serious charge, there will instantly and undoubtedly be more violence and bloodshed? I respectfully repeat: That's not an environment in which ANYONE can expect a fair trial, regardless of the best efforts of the jurors and indeed, the judge to ignore those threats.

        We emphatically disagree, and such is your right, but you're arguments haven't altered my own opinion a wit. Best wishes to you.

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          Bill Dyer (aka Beldar)

          Your also wrong in your premise that a conviction would necessarily have hurt the City's chances in its civil case. To the contrary, the proof that Chauvin acted culpably and outside the rules tends to show that it was he, rather than the City, at fault. Whether a conviction would have resulted in a higher or lower settlement is certainly speculative; that this one was timed to be announced during jury selection ISN'T at all speculative, it's an indisputable fact.

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          Bill Dyer (aka Beldar)

          *whit #editbutton

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  9. Pogo

    The funny thing about all this is that, if they wanted and were willing to compromise (though we might as well stop at that hypothetical, given the current system), Republicans could **easily** pull together Democratic votes for bills limiting the ability of corporations to express opinions. Like, idk you probably couldn’t get it past the SC, but I’m positive that you could pull together at least 40-50 Democrats for a “companies can’t comment on election laws or fire people based on political opinions if they also have to comply with Obamacare’s contraception mandates and accept campaign contribution caps” compromise or something.

    But otherwise, as far as I’m concerned, Republicans have brought this ‘corporations can opine on the controversies of the day’ practice on themselves, and are suddenly finding they don’t like it.

    I’m also interested to hear the podcast on Monday. I disagree with your position and would like them to rule in California’s favor, but I see a roughly 0% chance of that happening. It’ll be interesting to hear oral arguments at least though, and I hope to hear CA put on a good showing of it for the record.

    Also curious to hear you guys discuss the really atrocious decision the court handed down today in Jones v Mississippi, and whether you agree with the majority.

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      Kmregan7

      Yes...I just heard about Jones v. Mississippi. I too would like to hear about it. It sounds horrible.

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    Dan Jett

    Hi, guys. I have to disagree with your protection of corporate “associational” rights. David correctly points out that California has protected employee rights to engage in lawful activities outside of work and to participate in partisan organizations and activities without reprisal. Lawful activities include not just political demonstrations, but also smoking, for instance. The National Labor Relations Act protects employees’ rights to engage in protected concerted activities in the workplace, some of which may be characterized as borderline political. I think these are important protections for employees. I’m a lawyer, I live in Los Angeles, and I’ve definitely felt political bias from potential employers who’ve interviewed me and pressed me about my employment history in DC. When I tell them I used to work on Capitol Hill, they insist I identify my bosses. Once I disclose that information, an initially positive interview turns decidedly negative, and I am not asked to return for a further interview. Simply because of my past association with a mainstream Republican past national figure. And it happened more than once or twice. As a labor and employment lawyer, I know their questions were illegal. I’m pretty sure my interviewers knew their questions were illegal. I didn’t sue, as I don’t really want to do that. But I think it can be an illegitimate barrier to employment and certainly chills employees’ participation in partisan political activities that have no bearing on their ability to do their jobs. Corporate employers can have opinions on public issues, I agree, but they cannot vote; employees can vote and should not be inhibited from exercising their participation in our political system.

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      Dan

      If that mainstream figure is who I think it is, then as a liberal I would agree that an injustice has been done to you and it's not fair. I'd think by now it's pretty clear who the real rats are on the Republican side of things, and who it was who did the best they could to promote governance and actually do their job in generating and driving policy. And employers who work in the legal industry and have connections to lobbyists, Congress, and the Executive Branch ought to know that very well. They should *know* who the weasels are... and in typing this I will cheerfully admit that I may be a Pollyanna about all of this. That said, listening to Jonah and the various pundits talk, I'd say the grapevine is alive and well with who should be shunned and who isn't. And my guess it that you should not have been discriminated against.

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