Derek Chauvin Needs Due Process | Opinion

A true measure of the American people is our commitment to affording due process to even the most sinister, the most patently guilty and thus the most unpopular defendants. That was the mantra of the 1990s, when I was a prosecutor handling cases involving terrorists who had mass-murdered Americans.

Do we still believe it? The ongoing proceedings against former Minnesota police officer Derek Chauvin make you wonder.

Chauvin, of course, is charged with murder in the death of George Floyd, after a forcible detention caught on video. Can video be deceiving? Sure...but the last excruciating minutes of footage in this one certainly appear to depict four police officers, led by Chauvin, applying excessive restraint to Floyd—who'd plaintively told them he was having trouble breathing before drifting out of consciousness and losing his pulse.

According to prosecutors, Chauvin's neck hold was against police guidelines under the circumstances. Yet, he maintained it even after one of his fellow cops suggested rolling Floyd over on his side, which makes breathing easier. According to prosecutors, Chauvin even maintained the hold for a minute after the ambulance had arrived. Floyd was pronounced dead at the hospital less than an hour later.

The evidence appears damning. But even if the adage that there are two sides to every story is an exaggeration, it is the received wisdom of our criminal justice system that the accused is presumed innocent and the entirety of the burden is on the state to prove guilt beyond a reasonable doubt to the unanimous satisfaction of a dozen members of the community.

That is the way our system works. But do we still believe in it?

Back when I was a prosecutor, progressives argued that, regardless of how we felt about terrorists—about the fact that, given their druthers, they would destroy the very Bill of Rights whose protection they now invoked—we had a responsibility to be an example for the world.

According to this thinking, we were obliged to grant the gold-standard of due process even to aliens who regarded themselves as at war with the United States—and note that more Americans were killed in the 9/11 attacks than at Pearl Harbor. Indeed, when the Bush administration endeavored to move away from civilian due process and try some captured terrorists by military commission, the Left mutinied—with progressive lawyers volunteering their services to represent remorseless terrorists. The commentariat insisted that we were betraying our duty to be a beacon unto the world.

Makeshift gas station sign in March 2021
Makeshift gas station sign in March 2021 CHANDAN KHANNA/AFP via Getty Images

That argument made little sense to me. Having spent years interacting with terrorists and closely studying the fundamentalist cultures in which they'd been bred, I knew they were not the slightest bit influenced by American examples. They held us in contempt, seeing every extension of civility and solicitude as weakness.

Nevertheless, there was wisdom in the odes to due process. That wisdom lay in what the exercise of affording justice to those we despised told us about ourselves—about what makes our constitutional republic and its commitment to due process the envy of the world. That was why the trials needed to be a model: not as an example for the world, but as a reaffirmation of who we are.

That is at stake in Minnesota, where jury selection is underway and Chauvin's trial is scheduled to soon begin in earnest. Opening arguments are on March 29.

So far, the signs are not promising.

Chauvin is charged with two counts of unintentional murder. A second-degree charge alleges that what began as a lawful use of force against a suspect who was resisting arrest evolved into a criminal assault. A third-degree charge alleges that Chauvin exhibited depraved indifference to human life. The former is a tough case for prosecutors on intent grounds, because police are allowed to use reasonable force. The latter raises a disputed issue of state law: "Depraved indifference" traditionally refers to reckless acts that endanger everyone in the vicinity, not those that target a specific person.

In a normal case, prosecutors might thus have charged manslaughter—negligent homicide—on which the proof seems very strong. But the explosive politics of the Floyd case would not have allowed for that.

Witness our summer of rioting last year, which left parts of Minneapolis looking like a third-world city. For much of the nation, and its editorial boards, Chauvin's trial is not so much a legal case as a racialized morality play involving a vicious white cop and a helpless black victim. Nothing less than a murder conviction will do, regardless of what the evidence shows. That is why owners have boarded up what property is left: They know what will happen if the jury renders the "wrong" verdict.

It is thus impossible to take a benign view of the recent announcement that Minneapolis has agreed to pay Floyd's family $27 million. That settlement could have been done at any time, including after the trial. City officials obviously did it now for the same reason prosecutors have aggressively pushed for the dubious third-degree murder charge: The state is putting its thumb on the scale to assure that Chauvin is convicted of murder.

That is not due process. When the accused was a terrorist rather than a cop, we used to know this.

Andrew C. McCarthy is a bestselling author, contributing editor at National Review, and a Fox News contributor.

The views expressed in this article are the writer's own.