George Floyd
Protester holds portrait of George Floyd. Photo credit: NBC

By UCHE CHRIS

For the second time in my life time, a racially oriented judicial trial is underway in the U.S.; this time the eyes of global audience is trained on the country over the trial of police officer Derek Chauvin for the killing (murder) of Mr. George Flyord on May 25, 2020, 26 years after the first trial in 1993. Since the proceedings opened on Monday March 29, 2021, 10 months after the incident in the state of Minnesota, the world has been treated to a spectacle that is just unfolding but whose ramifications for judicial integrity and racial harmony will outlive the event.

It does not really matter how the trial ends, it has already exposed the worst of the common law justice administration system, which America, most ably and extremely, represents. It calls so vividly to mind an earlier equally racially charged and televised trial of Mr. O.J. Simpson, a black football hero, for the brutal double murder of his ex-wife, Nicole Brown, and Ronald Goldman, her white boyfriend.

It was a trial that provided so much legal and media sensationalism, racial sensitivities, and emotional drama, but the outcome was outrageously embarrassing to, not only to the U.S., but all common law countries, as the verdict was morally, socially and philosophically bankrupt and untenable; but that is the common law, which is an ass.

Most fair minded people who watched the O.J. trial in U.S. and around the world, believed in his guilt and culpability, and the verdict a travesty of justice, because the defence thoroughly discredited the victim(s) and it took just one juror to acquit him on the legal basis of “reasonable doubt”. In the jury system decision must be unanimous and by consensus, and a dissent by one member out of over a dozen could lead to a hung jury and a mistrial, and the end of the matter. There could be a retrial by another jury where necessary.

O.J., as he is popularly known, was freed because just one member exercised the right of reasonable doubt, which is a defeat of justice because it undermines the right of the majority to have their way and the minority its say – a major legal principle of liberal democracy. This is also playing out in the American legislative, which informs the current debate over filibuster, where the minority can scuttle any legislation by the majority.

For us as a common law country but non jury justice system, the implication is even more far-reaching because instead of many people exercising the right, it is one person – a judge – who could be simply bias, subjective and fickle, as has been proved by several appeal cases.

So how then, is the O.J. case very important and relevant to the present trial? First, both cases are racial in nature with the defendants in reverse positions: O.J. is black, while Chauvin is white. Second, both are televised live to global viewers, apparently to ensure transparency and avoid racial undertones in the verdict. Third, both would have produced the same outcome – a mistrial and acquittal – but for the video footages that captured the incident live for posterity, and exposed the atrocity of the police officers.

The mistrial and acquittal of O.J. – as would have been expected in this case – challenges and questions the basis of the fundamental legal planks upon which the common law justice system is founded. And here is the reason: The common law justice system protects the defendant more than the victim and allows the defence counsel every right and opportunity to demonise the victim as if he/she is on trial, and impeach the integrity and character of prosecution witnesses.

In other words, the system makes it easier for the defendant to escape justice, so defined, than receive conviction. First, the concept of ‘reasonable doubt’ is in his favour, rather than the victim or prosecution. Second, against liberal democratic tradition, the jury system entrenches the tyranny of the minority, which means that one negative vote can vitiate the relevance of the 12 or 13 positive votes of other members. Third, the public cost in time, efforts and resources is so huge and burdensome that a retrial is rarely ordered.

Fourth, the defendant is also protected by law to remain silent, thus foreclosing the right of the public to know the actual truth. Fifth, by focusing on justice, rather than truth, the system achieves neither, because without truth justice cannot be attained. Justice, which is a biblical concept, is literally or purports to give the defendant his/her due reward for the action taken. But this is near impossible without the truth because only the truth would determine the appropriate reward (punishment).

So to give a reward or punishment without the truth is a mere supposition, assumption or compromise; it is not justice. Therefore, the justice system defeats and undermines its very purpose of achieving justice, because of the overemphasis on the right of the defendant, and process or procedure, rather than the actual truth and motive.

This also derives from another idealistically nonsensical legal plank which insists that it is better for 10 criminals to be free than one innocent person to be convicted. Again, this is morally, socially and philosophically illogical, but it is beyond the scope of the present subject. Obviously, there is a big challenge of establishing motive or truth without the defendant testifying and being subjected to rigorous cross examination. It is the truth, not conviction that is justice for the victim.

Reasonable doubt is a nullification of the basic foundation of justice. It is doubt based on common sense and reason, and rightly presupposes that there are two sides to every case. It is the application of sound judgment and logic. However, it is utopian, because common sense is hardly common. Again, it empowers the defence to go on a ‘fishing expedition’ by throwing anything that could muddle the water and cause confusion in the mind of jurors in an attempt to create doubt.

According to legal defence strategy, “if you don’t have the facts on your side, then try to distract from the facts of the case by taking the focus away from the damaging evidence as much as possible to create reasonable doubt”. To acquit, therefore, you need only reasonable doubt; to convict you need beyond reasonable doubt. So there is a higher judicial standard to convict than to acquit.

The Bible, from where common law was adopted and adapted, demands rigorous investigations but only two or three witnesses, including the testimony of the accused person. (Numbers 35:20-32; Deut. 13:14, John 8:17, 1Cor. 13:1). So, why do we need tens and, even hundreds, of witnesses to prove a case?

The simple answer is that the prosecution is at a disadvantage, because the law protects the defendant; the prosecution does not know the truth because the defence that has it would not make it available and known; and the defence is authorized to use every tactics to disparage and damage the witnesses and the victims. Also prosecutors have to anticipate all the legal ambushes or land mines that may be laid by the defence.

All these have already played out in the one week old trial of Officer Chauvin and the outcome would have been so predictable than even the O.J. case. But thank God for the technology that afforded people the truth. The crux of the matter is the cause of death – whether Flyord died due the action of officer Chauvin – which, after a week, has not even been addressed.

From evidence and testimony already presented, especially given the autopsy report, the cause of death would have been drug overdose and heart failure, no matter how long the officer’s knee was on his neck. But again, thank God, we have the video clips.