I previously wrote a column warning that media coverage of the George Floyd trial of Derek Chauvin was dangerously incomplete and slanted. The concern was that the public was not being informed of strong defense arguments that would be used at the trial. The danger is that any acquittal or hung jury would then come as an even greater surprise — contributing to more rioting and violence. The coverage of the final day of the trial only magnified those concerns as legal experts and journalists seemed more set on advocating than reporting on the underlying issues.
Those concerns were evident within minutes of the defense starting its closing argument. Defense attorney Eric Nelson did a remarkably good job in defending his client. However, CNN’s senior legal analyst, Laura Coates declared “Defense begins the closing by defining reasonable doubt, not with why #DerekChauvin is innocent. Think about that.”
Many of us did “think about that,” particularly those of us who are criminal defense lawyers.
My guess is that over 90 percent of defense arguments begin with defining reasonable doubt since that it is the framing standard for jury decision. It is the virtual mantra of the defense. We start by reminding the jury of its burden, particularly after a prosecutor has given a more fluid understanding of that standard. The last thing that you want to do as a criminal defense attorney is to suggest that the jury should focus on whether a defendant is innocent. The burden is on the prosecutor to prove that he is guilty. The defense does not have to prove a thing for acquittal. As emphasized by Judge Peter Cahill (and all American judges), the jury must focus of the burden of proof shouldered by the prosecution. The defendant is presumed innocent . . . at least outside of CNN.
Another such moment arose with “PBS NewsHour” correspondent Yamiche Alcindor who has been repeatedly criticized for bias in her coverage during the Trump Administration, the riots, and the Biden Administration, including referring to Biden appointees as virtual “superheroes.” Alcindor also defended Rep. Maxine Waters after her inflammatory call for protesters to get more “confrontational” and not accept an acquittal in the Chauvin case.
As with Coates, Alcindor went on attack the minute the defense rose to make its closing argument. Alcindor declared: “Chauvin’s lawyer said it flies in the face of common sense to say Floyd’s death was not caused at least in part by his underlying conditions or drug use,. This argument is in direct contradiction to the prosecution’s case which says believe your eyes, Chauvin’s knee killed Floyd.”
The statement is so bizarre that it is breathtaking. Alcindor appears aggrieved that the defense had the temerity to directly contradict the prosecution on the question of guilt.
The coverage was striking in the glowing accounts of the prosecution’s closing arguments as opposed to the criticism of the defense. More importantly, the coverage shows little concern over the rights of criminal defendants or appreciation for the position of defense counsel.
We saw the same trend during the Trump Administration when legal experts adopted ridiculously broad interpretations of criminal provisions in a blind obsession to find any way to charge Donald Trump or his family. Some of us from the defense bar warned how dangerous such interpretations would be — and how they ignored both the element and controlling case law. Legal experts dismissed abuses disclosed in prior investigations involving defendants like Michael Flynn and Carter Page. They disregarded the implications of sweeping definitions of crimes like obstruction or the Logan Act. They defended judicial bias when it worked against Trump officials.
The saddest aspect to this trend is that legal analysis was once largely immune from such open bias. I have worked as a television legal analyst for thirty years on various networks. I have watched as legal analysts in both television and print have become part of the echo journalism model — offering reassuring analysis for viewers who want continual reaffirmation of their own political preferences. We have now lost any semblance of objectively or neutrality. That is consistent with the trend in journalism at large where there are growing calls for advocacy in journalism. This includes academics rejecting the very concept of objectivity in journalism in favor of open advocacy. Even Columbia Journalism Dean and New Yorker writer Steve Coll denounced how the First Amendment right to freedom of speech was being “weaponized” to protect disinformation. The result however has been the steady decline in trust for the media.
The cost of such bias is often ignored. However, the failure to inform the public of the countervailing arguments in trials like the trial of Eric Chauvin fuels our social divisions and the ongoing violence in our cities.