Does Derek Chauvin Deserve a Fair Trial? | Opinion

Does Chelsea Handler speak for most Americans when it comes to due process for unpopular defendants?

The comedian ignited a controversy last week when she tweeted that it was "pathetic" that former Minneapolis policeman Derek Chauvin was allowed a trial. She suggested that video of his fatal encounter with George Floyd last year made due process unnecessary. Many of Handler's eight million followers agreed with the sentiments.

Handler's discomfort with what high school civics classes used to teach about the rule of law generated considerable mockery of her contempt for the concept of fair trials for all defendants. But more important than the kerfuffle over this tweet is the general tenor of reactions in the press and in popular culture to the trial itself.

Handler is hardly alone in believing the video proves Chauvin's guilt. The footage is heart-rending, all the more so because those who watch it know that Floyd is dying. But just as many in the media downplayed the "mostly peaceful" protests that turned into riots throughout the country as an understandable expression of rage, they now depict the trial as a necessary evil that re-traumatizes minorities. Indeed, many of those who chided Handler also openly worried that the jury might conclude, video notwithstanding, that Chauvin did not cause Floyd's death by kneeling on his neck for nine minutes.

But just as important, Handler's sentiments reflect a general decline in liberal support for the principles of civil liberties. The American Left, especially in the decades after World War Two, placed the concept of due process and the rights of defendants at the heart of their belief system. The American Civil Liberties Union championed these ideas as being integral to democracy and the rule of law. Its advocacy met with success after success as a series of key Supreme Court decisions in the 1950s and 1960s made those principles into settled law.

A half century later, the ACLU has changed its tune. It no longer represents any person or group denied free speech—it was once willing even to defend neo-Nazis—but will only back liberal or left-wing complaints. Other liberals, including those sitting on the Supreme Court, also no longer seem to think that constitutional protections should apply across the board to all comers. People like Justice Elena Kagan are rethinking the value of the First Amendment because conservatives have "weaponized" it to defend their rights in conflicts between religious believers and advocates for gay marriage and other, more fashionable causes.

The irony is that Handler might have had her way had the federal government decided to accept a guilty plea from Chauvin last year. Three days after Floyd's death, lawyers for the former cop reportedly told the Justice Department he was willing to plead guilty to third-degree murder charges. Not yet aware that Floyd—who had resisted arrest for passing a counterfeit bill—had what may have been a fatal amount of fentanyl in his system, Chauvin believed the case against him was overwhelming.

But former attorney general William Barr refused the offer, which would have sent Chauvin to prison for 10 years. Barr understandably believed—at a time when the country was already beginning to be wracked with unrest—that the protesters and rioters already filling the streets would regard the sentence as too lenient. Instead, Barr let state authorities take over the case. The state charged Chauvin with second and third degree murder as well as manslaughter; a conviction of second degree murder could put him in jail for up to 40 years. That result might satisfy even those who think Chauvin doesn't deserve a trial, and could foreclose the possibility of a new round of riots, which many consider a certainty, especially if he is acquitted.

George Floyd
People gather during a demonstration outside the Hennepin County Government Center on March 29 in Minneapolis, Minnesota. The trial of former Minneapolis police officer Derek Chauvin, who is charged with multiple counts of murder in the death of George Floyd last May, will reach its ninth day on Thursday. Stephen Maturen/Getty Images

But now that the trial has begun, media coverage has focused not so much on whether Chauvin's defense can prove reasonable doubt with respect to the cause of Floyd's death, but on whether the entire exercise endangers the community as a whole.

Numerous commentators have depicted the trial as a "media spectacle" that is causing trauma and making it harder for Minneapolis and the entire country to heal. There is merit to arguments that decry the sensationalization of the proceedings. But criticism of the trial and its coverage is not merely focusing on the way the endless re-running of the nine-minute tape has horrified minorities and whites.

Resentment of Chauvin's defense—which, even if it is carried out in the most respectful manner possible, must discuss Floyd's drug addiction, criminal past and erratic behavior during his confrontation with police, as well as the fact that his complaints about not being able to breathe actually preceded Chauvin's pinning him down—is widespread. That's hardly unusual in highly publicized murder trials. But the stakes involved in the outcome of this trial have made it all but inevitable that the defendant's lawyers would outrage the television audience.

Hanging over the trial is the anticipation that a "not guilty" verdict won't merely be unpopular, but will lead to riots. In Minneapolis, the city government became an example of what happens when authorities and even whole neighborhoods reject the police. The city even contemplated hiring social media influencers to produce pre-packaged spin about the trial in order to counteract what it called "misinformation," although that plan for astroturfing public opinion was withdrawn in the face of criticism.

Yet there is another underlying factor legitimizing what in other circumstances might be dismissed as a normal mob mentality—whether actual or virtual.

At a time when equality is rejected in favor of "equity," and color-blind policies—including the English common law ideal of justice being blind and insensible to anything but the truth—are denounced as racist, it's clear that faith in due process and civil liberties has gone very much out of fashion. Handler may be mocked for what she tweeted, but her resentment of legal niceties is rooted in a broader decline in respect for procedure in favor of predetermined desired outcomes.

The Left believes its legal advocates must never defend those who are out of step with liberal opinion, so lawyers like Harvard University professor Alan Dershowitz, who defended President Donald Trump, are ostracized.

Optimists may hope that, if Chauvin is convicted and sentenced to a lengthy term in prison, the debate will end with the concept of due process intact. But a country in which the defense of a defendant on trial for murder is viewed as an offensive and unnecessary trauma—rather than as the obligation of a free society—there's more going on than just the understandable reaction to a video of a death. Once the greatest defenders of civil liberties abandon their principles, rallying support for the rights of those on trial becomes more and more difficult. At the heart of the demonization of Chauvin's defense is a breakdown in democratic culture.

Jonathan S. Tobin is editor in chief of JNS.org, a senior contributor to The Federalist and a columnist for the New York Post. Follow him on Twitter at: @jonathans_tobin.

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