Why the adversarial system is not a reasonable solution for many painful problems

Minneapolis was poised for riots, 3,000 National Guard troops standing by, in the event that a jury did not hold former police officer Derek Chauvin legally responsible, in some form, for the slow killing of George Floyd that was videotaped in its entirety by a high school girl, Darnella Frazier. The agonizing to watch video inspired nationwide, even worldwide, demonstrations against the continual unaddressed killings of civilians, particularly Black and brown ones, by American police.

Dozens more civilians have been killed by police during the three weeks of the Chauvin trial (50% of them white!), so there’s no question that this horrific, ongoing problem of deadly, often racist, police violence persists. The trial, even the conviction, of a single guilty officer is a drop in the rapidly rising, acidified ocean that goes a very short way to addressing any part of the larger problem. The adversarial system is a supremely stupid way to try to address institutional police violence, though, in our system, convicting Chauvin for callously killing a handcuffed suspect is, of course, the right thing to do. Many people are very relieved at the verdict which proves, if you have indisputable evidence, a police hierarchy ready to testify against a killer cop and a perfectly presented prosecution case, a just outcome can be obtained.

Sekhnet, who cannot turn off an ongoing national news story, listened to the defense’s closing argument in the Derek Chauvin trial the day before yesterday. The defense, hired to raise reasonable doubt, had a very poor hand to play. They were reduced to claiming that it was reasonable for Chauvin to continue kneeling on a dead man’s neck, that the nine and a half minute slow suffocation of George Floyd was justified and that any reasonable officer would have done the same, because of what had happened twenty minutes earlier — the part the prosecution won’t let you see because nobody videotaped it. The defense’s argument echoed the original elliptical police report on the death of George Floyd [1].

The defense also argued that the officers kneeling on the face down, handcuffed George Floyd for almost ten minutes had nothing to do with his death. Nothing. The experts the prosecution produced, who testified about the prolonged denial of oxygen to Floyd’s brain caused by the weight of men on his neck and back, were merely speculating. Floyd’s death, the defense insisted, was caused by his ingestion of several illegal drugs — indisputably found during his autopsy — his heart condition, adrenaline pumping through his struggling system, carbon monoxide. The defense’s position is that George Floyd’s death was his own damned fault, actually, that his own poor choices killed him, not Derek Chauvin and his colleagues kneeling on the face down Floyd’s neck and back while the restrained man’s hands were securely cuffed behind his back and he struggled to breathe.

The Chauvin defense team was in a bad position, in light of the incriminating video that showed Chauvin’s depraved indifference to the pleading man he was kneeling on, hands nonchalantly in pockets, and the credible testimony of a strong roster of prosecution witnesses in a clearly presented case. On the bright side for Chauvin, his lawyers only had to convince one angry white man on the jury, or an angry white woman, that the giant Black ex-convict somehow deserved what happened to him when he carelessly lost his life. Fortunately, that didn’t happen.

Leaving “justice” up to the subjectively reasonable doubt of one stubborn bigot on the jury is not the way to ensure fairness, solve a gigantic problem or promote healing. The adversarial system is not the way to create real systemic change. It’s certainly not the mechanism to enforce common decency. In fact, the adversarial system often requires indecent, sometimes maddeningly absurd, arguments from lawyers and prosecutors. Desperate arguments that can make your head explode and make you want to take a baseball bat to a store window. If someone in your own life made arguments like these, you’d be within your rights to slap them out of their mouth.

The thirteen year-old recently shot dead by a policeman in Chicago while surrendering with his hands up? Obviously, claimed police, the boy “surrendered” right after he threw away his gun and turned, menacingly, in that split second afterwards, during which the officer had less than the blink of an eye to decide whether to kill the kid or risk being killed himself. The story is hotly contested, and told completely differently, by adamant adversaries insisting on their version of events– he said, we said. Something happened, there are actual facts, an actual videotape. A jury trial with each side sticking to whatever theory they can concoct, no matter how unlikely, to convince twelve people on a jury, is not the way to the truth.

It is the American way, as encompassed in the American Rule for lawsuits of all kinds — each side pays its own way, fair is fair. If you face a year or more in jail, the constitution requires that some lawyer will be provided for you. In criminal trials you get the Dream Team you can afford to pay for, or an overworked public defender with fifty other open files in her briefcase. The American Rule: a giant corporation pays its lawyers to defend a case, why shouldn’t an individual suing the corporation be held to the same standard? It’s the American way, except in rare cases where an aggrieved party, vindicated in court, can be reimbursed for legal fees, as in most other countries when you are forced to go to court by a person or entity that knows it did wrong and uses the adversarial system to fight, even bankrupt, you.

What is the proper way to address a plague like police violence against mostly poor and “nonwhite” people? It will take a massive overhaul of how things are done. It will be a very heavy lift, but it needs to be done.

My best idea, once the filibuster is lynched (and don’t think McConnell won’t do it, the second he gets a majority back) and the George Floyd Justice in Policing Act of 2020 becomes law, is an independent commission, composed of experienced police officials who have demonstrated their ability to be objective (I’m thinking of someone like Minneapolis police chief Medaria Arradondo who, whatever his faults, drew the line at what Chauvin did and testified against it) about the need for systemic changes to ensure better police-civilian relations, and civilians who have shown the same impulse to be fair and find sustainable solutions. The commission would also be free of police union influence.

This commission would review the evidence and make a finding about every instance of police use of violence against civilians. No jury would have to be convinced of anything, no intelligence-insulting counterfactual arguments would be heard, no jury to convince, no blue wall of silence to be breached. An investigation would yield actual facts and the committee would have the final say as to discipline, dismissal and/or prosecution of officers. Early on this commission would be very busy, but as time went on, and the certainty of consequences for bad apple cops became a reality, instances would dramatically decline. The findings of the commission would help legislators pass laws to to find the best way forward.

There are cases when the police are justified in fearing for their lives and resorting to deadly violence (many involve the War on Drugs, which is a whole other subject). There are cases where the police have no demonstrable fear for their own safety when people are nonetheless roughed up or even killed. You can watch the videotape, like those two bad apple cops who pulled over an active duty military man, in uniform, who’d broken no laws. They threatened him, shouted contradictory orders (show your hands! Reach down and take off your seat belt!) pepper sprayed him in the face, forced him to lie on the ground, handcuffed him. Peace officers who responded to this brown-skinned man’s entirely reasonable fear by telling him he ought to be afraid, one telling him he was going to “ride the lightning.” That particular case will go in front of a jury, or be quietly settled, but the deadly problem is institutional.

Aside, while we’re talking about the adversarial system that assholes are constantly exploiting to hide and distort the truth, Mitch McConnell’s Kentucky colleague Rand Paul singlehandedly blocked a vote on a federal anti-lynching bill, part of a new hate crimes law, approved 410-4 by the House, shortly after the killing of George Floyd [2]. Paul objected to, among other things, calling it the Emmett Till Act, after a Chicago boy lynched in the former Confederacy in 1955. Rand Paul also voted, more recently (and with fellow Big Lie supporting senators Cruz, Hawley and Lee), against enhancements of federal hate crime law to better protect American Asians during a rash of violence against Asians by angry Americans galvanized by Trump’s racist rhetoric about Covid-19.

Politics is now a completely adversarial system. A small handful of diehard pieces of shit suffice to block laws that virtually all Americans are in favor of.

There are things too important to leave in the hands of a few lifelong partisans, or juries.

Like the political party that controls presidency and the Senate, even by a single vote, choosing members of an unappealable court that has the final say on the constitutionality of many life and death human rights issues every day. The adversarial process is no way to choose these powerful justices. An independent commission is needed, a bipartisan committee, a non-partisan group preferably (career partisans like Boof Kavanaugh, lifelong right-wing activist, would be disqualified, based on their history of partisanship), to ensure that fairness in the selection process prevails and that only the most qualified, least ideologically pure, judicial candidates are appointed to their limitless posts.

I’m writing, of course, as though we live in a world where Reason prevails over ignorance, superstition and conspiracism. If you live in a world where powerful Jews and our Satanist pedophile cannibal coconspirators are plotting your replacement by Colored people, stupid pliable robots who will vote for whatever these Jews tell them to, you might have a good shot at representing constituents in a gerrymandered 70% Red district in Georgia, but you are unlikely to be able to prove this replacement theory based on evidence or even common sense. To replace you, I have to put someone there in your place and get rid of you. Nothing short constitutes actual “replacement”, but that’s not really crucial to the “theory” of the case now, is it, darling?

Save babies. Protect the filibuster!

[1]

When they released information about Floyd’s death on May 26, the Minneapolis police department described it like this: “Two officers arrived and located the suspect, a male believed to be in his 40s, in his car. He was ordered to step from his car. After he got out, he physically resisted officers. Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress. [He was, in fact, dead.] Officers called for an ambulance. He was transported to Hennepin County Medical Center by ambulance where he died a short time later.”

source

[2]

Amid the visceral national outcry for racial justice in the wake of the police killing of George Floyd, a lone US senator is standing in the way of a bill that would make lynching a federal hate crime.

Rand Paul, a Republican with a reputation as a one-man awkward squad in the US Senate, has put the historic legislation into limbo, frustrating black colleagues and civil rights leaders, including the Rev Jesse Jackson.

source

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