Beware of “Expert” Legal Commentary–A Lesson From the Chauvin Trial

          I watched little of the Derek Chauvin trial for murdering George Floyd, but I saw the verdict as it was announced and some of the subsequent commentary during the rest of the day. A great deal has been said about the trial, and I don’t mean to add to it here. Instead, I wish to comment on some of that commentary that followed the trial. Because I was a professor of criminal law, I had often been asked by reporters and producers for various news organizations to comment on criminal and jury trial matters, so I have opinions about how those commentaries should go.  

          An aside: I apparently did not attain lasting fame from my televised commentaries. This sad state of affairs was hammered home to me recently when a friend and I were having a beer at my local bar. It was the first time I had been back since the beginning of the Covid crisis. The owner came over to welcome me, and my friend Tony remarked on the establishment’s name. “DSK. Wasn’t that the French official who was charged with crimes?” “Yes,” I said, “I got a lot of calls from French media about that case.” Instead of being impressed with my fame or expertise, my friend said, “Why were they calling you?” In spite of this, our friendship endures. (I have written about some of my media experiences on this blog including Search Results for “”Meet the Press”” – AJ’s Dad (ajsdad.blog) and Search Results for “”Your Skin is Showing”” – AJ’s Dad (ajsdad.blog)

          In those past days, I had developed a few standards for my commentaries. The first was that I would not comment on the likely outcome of an ongoing trial or the correctness of a verdict unless I had watched all of the trial. From my own experience as a trial attorney, I knew that a jury would have been presented more evidence than a casual observer who had only seen or read excerpts of the trial.

          My other standard was that I would not comment about what I did not know. I knew New York criminal law and procedure. I knew the Supreme Court decisions that pertained to criminal law and procedure. I knew the practices in New York City courts. I knew the general history and practices of American jury trials, and if I could be helpful, I would tell a reporter about the things I knew. But I seldom knew in detail the law and practices of other states and localities, and I would not pretend that I did. If the news organizations wanted comments on Minnesota law or a particular Minnesota trial, I would tell them I was not their guy.

          In watching what were billed as expert legal commentators after the Chauvin verdict, I became aware how bad many of them are. I was especially concerned by those who appeared to have been regulars talking about the trial. I would have expected these attorneys to have boned up on the issues that were sure to arise. All too often, however, my expectations were disappointed, and uninformed statements were made. I could give a number of examples, but I will stick to one.

Not surprisingly, the legal “experts” were asked about sentencing. Many of the commentators pronounced that the maximum penalties for each of the three convicted crimes which were forty, twenty-five, and ten years’ imprisonment. This was informative. They had done this much homework. Many then suggested that Chauvin could be sentenced consecutively so that he actually faced seventy-five years. I wondered if that could be right. Such sentences seemed to me to violate the Constitution.

Without getting into the technicalities, the Supreme Court has concluded that the Double Jeopardy clause forbids consecutive sentences to the top count when the other charges are “lesser included offenses” to the most serious conviction. So, for example, let’s say that stealing $1000 or over is grand larceny and carries a penalty of ten years. Let’s also assume that stealing less than $1000 is petty larceny and carries a one-year penalty. However, if I steal $1000, I have committed not only grand larceny but have also committed a petty larceny. Could I be sentenced to one year for that offense and have it run consecutively to my ten-year grand larceny sentence, thus making me serve 11 years? Without going through all of the reasoning, the Supreme Court has said no, because the petty larceny is, in this scenario, a “lesser included offense.” That is basic law which anyone claiming to be an expert on criminal law should know. Many, probably most, jurisdictions avoid this issue by telling jurors to first consider the grand larceny charge and if they convict on that not to consider the petty larceny. In these states, I would only be convicted of grand larceny.

          Chauvin, however, was convicted on three charges. Not having followed the legal issues in the case, I did not know if two of the charges were lesser included crimes to the greater one. I expected, however, that a legal commentator going on the air after the verdict expecting to be asked about sentencing would have known whether the convictions were for greater and lesser offenses and told us that if so, there could not be consecutive sentences. None did that. At a minimum, I would have expected the legal commentators to explain the constitutional limitation on consecutive sentences. None that I saw did that. Instead, I got the impression that they did not know the relevant Supreme Court decisions.

          Also relevant is that fact that many jurisdictions have limitations on consecutive sentences. When I regularly practiced criminal law, New York had put a cap on how high the consecutive sentences could go. If a defendant was convicted of three separate charges each with a potential twenty-five-year sentence, consecutive sentences would not lead to a seventy-five year sentence but to whatever the cap number was. When the legal experts told me that Chauvin could get consecutive sentences, I wondered if they knew whether Minnesota had similar restrictions on consecutive sentences. None told me whether that were so. If they had known, I am sure they would have shown off their knowledge.

          However, knowledgeable Minnesota attorneys posted the relevant state statute on a discussion group for criminal law professors, even retired ones like me. Minnesota law, as it turns out, forbids consecutive sentences in Chauvin’s situation. These truly expert lawyers explained that Minnesota does not follow the usual practice and asks the jury to render a verdict on each charge even if they have convicted on the top charge and the other charges are lesser included offenses. I learned in a clear and concise manner the law on this issue relevant to Chauvin. I also learned, sadly, that not knowing the law does not prevent some TV “experts” from talking when they do not know what they are talking about.

          This is hardly the most important misinformation presented on cable networks. However people who heard he could get up to seventy-five years and are pleased with that possibility and do not learn that such a sentence is impossible, may feel that an injustice has been committed when Chauvin gets a much lesser sentence. For me when legal commentators make ignorant statements about the law, my respect for the legal profession takes a hit. My takeaway for you is that even when a supposed expert legal commentator says something, take what you hear with a grain of salt.

          And if you care, those knowledgeable Minnesota attorneys report that prisoners must serve two-thirds of their sentences in jail and then are usually released to supervised release for the rest of their sentence.

The Fastball at the Head (concluded)

From my first year of umpiring when I was a teenager, I most remember Wilson, an unusual name for that day. Tall and thin, he was first baseman material, which is where he was stationed. He was a good player. He hit a line drive single to left his first time up — one of the two on his team to have gotten a bat on the ball against the opposing pitcher, Ray, who could really bring it. Ray threw one ball and then a second when Wilson was up again. His third pitch came at Wilson, came at Wilson’s head, came at Wilson’s face between his mouth and cheekbone. Wilson saw it and for the briefest of an instance he froze. He barely moved but enough so that the ball hit him hard in the face, but with a bit of a glancing blow. Wilson went down. I jumped over to him, and instinctively pulled his hands away from his face. (What good this could do, I have no idea.) Blood poured from his nose, a tooth through his lip, a tooth on the ground, more blood from the mouth. But his eye looked ok. There was an adult supervisor at the park for all the games, and I sent kids running off to him, and he came hurrying back. We got Wilson to his feet and to the supervisor’s car. Wilson was not screaming or crying, just emitting a moan barely above a whisper as he was taken off to the hospital.

          I didn’t know what to do, but thinking I was upholding the sanctity of the sport (I guess), I got the boys to finish the game. Two days later when I umpired again, I asked the supervisor about Wilson. The supervisor said the doctor was amazed that nothing was broken. Wilson had only lost some teeth, but “was going to all right.”

          Six weeks later, as the season was winding down and a new school year loomed, I was back behind the plate, and there was Wilson, his first time playing again. He was clearly terrified. He could barely step into the batter’s box much less stay in it as the ball was thrown. He almost dove out of it during the windup. I am not sure why he was there. These games were played on the mornings of workdays, and parents were seldom there. So there was not a crazed father yelling at Wilson not to be a fraidy-cat or to be a man. Perhaps he was concerned that at supper that night he would have to report that he had played again; perhaps his motivation to bat was all self-driven. Whatever the reason, he was trying to hit again, and he simply could not. I had seen him get hit, and I understood his fear, but he had more than fear. He was ashamed—not just embarrassed, but something deeper—that he could not do it. Three pitches, with his left foot well up the third baseline on each one. He waved at each of them. I wanted to go over to him and put my hand on his shoulder—in those days it never would have occurred to me to hug him—and say, “It’s all right.” I felt real sympathy for him, but the teenage manliness code prevented saying that.

          This made me think about major league batters. All of them get hit by a pitched ball in their career. Derek Jeter, for example, was plunked 170 times in his career, partly because he stepped towards the ball when he batted making it hard for him to get out of the way of an inside pitch. A baseball is hard, and no matter where it hits you on the body it hurts. Jeter was injured and missed games a few times from getting hit. Even so, he did not change his hitting style. Surely he had a fear of the ball; it would be unnatural not to. Nevertheless, he was able to overcome it in a way that I knew I wouldn’t be able to. (Jeter is only seventeen on the all-time list of getting hit. In the modern era of baseball, Craig Biggio leads getting hit 285 times.)

          Taking a ball on the forearm or the ribs or the backside is not the same, however, as getting hit in the head as Wilson had been. When I saw Wilson get beaned, I thought back to Joe Adcock, one of the players on my team, the Milwaukee Braves. A few years before I was umpiring, Adcock hit four home runs and a double in a game against the Brooklyn Dodgers. The next day at Ebbets Field, he led off with another homer. The next time up, he was hit in the head with a pitch that cracked his helmet at his temple, and he was carried off the field on a stretcher. I wondered how he could continue to be a feared hitter after that, but he was. (He was sensitive about getting hit, however. A few years later he was again hit with a pitch. He thought the pitcher—I think it was Ruben Gomez—was purposely throwing at him. He charged the mound. The pitcher did not wait for him to get there but hightailed it for the dugout. Adcock pursued him through the dugout into the runway at the back of the dugout leading to the clubhouse before Adcock was restrained by the opposition team. Adcock’s behavior seemed entirely understandable.) After seeing Wilson take one on the face, it seemed to me remarkable that a batter could ever still perform after getting beaned.

          Ten years later, long after I was umpiring, the Wilson experience came back to me. I was in law school, and I often broke up classes and studying by playing basketball in a small on-campus gym. The players were almost all in graduate school or college administrators, and it was interesting meeting people from the business and theological schools or who were educational professionals. The university was on a quarter system with the fall term starting late in September and ending before Christmas and the winter term ending in March. This schedule was good for some professional athletes who wanted to attend the university in their off seasons. One played for the then Washington Redskins. He was a backup center. He told me that every team needed a backup center, and he was hoping to get five seasons in because that would qualify him for a pension, but he also was getting two-thirds of a year in business school from January to June each year.

          Another of the pickup basketball players was a professional baseball player. An outfielder with solid statistics, he had worked his way up to the highest of the minor leagues. We were sitting on the floor off the court waiting for a game to end so that we could play. We exchanged the usual pleasantries after not having seen each other since the previous year, and soon I asked how his last baseball season had been. He got quiet and said not as good as he wished. His batting average had dropped quite a bit. I didn’t know what I should say, but soon he told me that he had been beaned. He was quiet again, but then said that he had “trouble” coming back from it. He said a few more things and his unspoken disappointment permeated the conversation. I could sense that he felt his baseball career was over. And it was. He played miserably for a month or two more the next season and then gave up the game. Being hit in the head had done him in.

          I did not mention Hurricane Hazle to my friend, but I thought of him. The Milwaukee Braves were in a tight pennant race with the St. Louis Cardinals when the Braves starting center fielder had a season-ending injury. The Braves called up Bob Hazle, who went on a tear batting .403 in 41 games with many crucial hits. Hall-of-Famer Eddie Matthews credited Hazle, quickly nicknamed “Hurricane,” with winning the pennant for Milwaukee. (Hazle did not have a great world series, but he got two hits in the deciding seventh game that sparked the Braves to the championship.)

          Next year, however, was different. He was beaned early in spring training, and he was beaned again a few weeks later, and it was over for him. The Braves soon sold him to Detroit where in his few plate appearances he batted a disappointing .241. Soon he was back in the minor leagues and then out of baseball. Hazle is one of those oddities—a lifetime .300 hitter (.310) who never hit .300 in a season.

          I think of Hurricane Hazle and realize that sometimes life might throw you a curve ball but sometimes it throws a fastball at your head.

Snippets

Old joke: I dreamt God sneezed. I didn’t know what to say.

I grew up saying Gesundheit after someone sneezed. When I moved to New York, I taught myself to change this reflexive Germanic response to “God Bless You.”

Why do we say “God bless you” after someone sneezes but not after a cough? A hiccup? Or a fart?

“Truth rests with God alone, and a little bit with me.” Yiddish proverb.

I was watching The Simpsons show with the homage (or at least I think it was an homage) to My Fair Lady. After the Pygmalion transformation, however, the Groundskeeper Willie reverts from the new gentleman created by Lisa to his old self because he is happier that way. I realized that we have no sequel or updating to the classic musical or straight play where it is explained what happened with Eliza Doolittle for the rest of her life. How do you think she ended up?

There may be no free lunch, but apparently there is free shipping.

I am sparkling; you are unusually talkative; he is drunk.

A spokesperson for the FDA had posted on her Facebook page: “I prayed hard for God to use my professional and personal experiences with crisss (sic) to serve Him. . . . In May, the White House called me to ask and asked if I would consider a high level communication role at the FDA. I knew God was directing my path, and I had to come back to DC to work. . . . I will not lie. I will not do anything that violates my personal ethics and values. I ask all day that my Lord and Savior direct my words and actions to do what’s right and to help others through these difficult times for our nation.” Her personal ethics and values and her request that Jesus direct her words did not prevent her from promulgating misleading statements. She was dismissed a few weeks into her tenure. God, apparently, prescribed a short path for her. Or perhaps He slapped his knee and chuckled, “That was a good one.”

Was the Heavenly Father upset when His only Son converted to Christianity?

The right wing spews that Democrats are “socialists.” In the next breath, they shout that Democrats are “anarchists.” You can be neither. You can be one or the other. But you can’t be both at the same time. But then again, if facts don’t matter, why should language or logic?

A young friend told me that he was in a band that does a mashup of surf and punk music. And I wondered: Is this like the Sex Pistols performing Little Deuce Coupe?

A Sausage Made It Famous

          Sheboygan is famous for one thing, at least in its eyes. No, it’s not me even though I was born and raised there.

          Sheboygan, Wisconsin, sits on the shores of Lake Michigan halfway between Milwaukee and Green Bay, about fifty miles from each. Growing up this location was a boon. We could get television stations from both places, but this was the days of over-the-air and required an antenna. The father installed a rotor that could shift the antenna’s direction south towards Milwaukee or north towards Green Bay. Most often, this did not matter much because each city had the three networks showing the same shows, and while Milwaukee had an independent station, the networks were where it was at.

Occasionally, the rotor would malfunction, and the father would get out a long ladder and climb onto the roof to make adjustments. This being snow country, the roof was steeply pitched. I should have been concerned that this job held some danger, but I had a child’s faith in his father. The repairs, however, were a three-person job. With him on the roof, one of us watched the TV and shouted when the rotor had the antenna in exactly the right position to get Milwaukee. Another of us would be outside the window and relayed the message to the roof man. Then the inside person would move the rotor through some sort of device towards Green Bay, and the same shouting ensued.

          This rotor business was essential for one very, very important reason—the Green Bay Packers. I can hardly overstate the obsession with the Lombardi-era team of my youth, although a similar obsession for each era of Packers has continued. Back then, Green Bay played half its home games in Green Bay and half in Milwaukee. The NFL then had a blackout policy that prevented hometown television stations from broadcasting games for a team’s home games. However, Green Bay was outside the blackout zone when the Packers played in Milwaukee, and the CBS station could carry Ray Scott announcing the game, and the Milwaukee station carried it when the game was in Green Bay. With that blessed rotor we could get all the games in the comfort of our home. (The Packers have played many famous games. Among them is the Ice Bowl when the Packers met the Dallas Cowboys for the NFL championship on the last day of 1967. On that morning, the father got a call from an acquaintance and was asked whether he wanted to go. Showing wisdom I did not always give him credit for, he declined and said that we would watch the game from the comfort of home. It was not that we were not experienced with cold. The average high for three winter months in Sheboygan was in the mid-twenties with the average low fifteen degrees colder. Whenever there was a cold snap, we would wake up to below-zero days, and I can regale you, as I have the NBP (nonbinary progeny) and the spouse many times, about how I walked to school in that cold, although I lied if I ever said that I had to do it without shoes. We knew cold, but we also had an understanding of cold, and December 31, 1967, was extraordinary. The temperature at kickoff was minus fifteen, but, of course, there was a wind, which plunged the wind chills into the minus forty ranges. I can go on about that game, but you can read about in the pioneering book by Jerry Kramer, who made the key block, and Dick Schaap, Instant Reply, but I don’t think that book contains this nugget. In those long-ago days, spectators could carry beer into the stadium. I was told that those who did found their six-packs frozen before the first quarter ended. For Wisconsites, that brought on real suffering. But I digress. Let me move onto my next digression.)

          For me, however, the defining aspect of Sheboygan was not that it was a half-way point between two other places but that it was on Lake Michigan. Those who consider a place like Wisconsin flyover country do not understand the beauty, power, and importance of the Great Lakes (or the Mississippi River.) I spent many hours on the shore and piers of Lake Michigan. (My bedroom has a series of pictures of the Sheboygan lighthouse.) My childhood would have been much different without Lake Michigan (and the myriad inland lakes, Elkhart Lake, Crystal Lake, Little Crystal Lake, Random Lake, and many others within a half-hour of the hometown.) Whenever I returned after leaving Sheboygan, I would first head to Lake Michigan and drive up the lakeshore starting at the Armory where the Sheboygan Redskins played in the first year of the National Basketball Association (you can look it up) past the beach and up the hill to Vollrath Bowl before heading home. (There is a lot of good literature about the oceans, seas, rivers, lakes, marshes, and swamps. I don’t know any about the Great Lakes. Give me suggestions if you know some.)

(continued June 3.)

A Mexican-American Thanksgiving

          I had forgotten the German-Turkish-American server’s name at my local biergarten, DSK. She feigned being upset. I said, referring to the Mexican-American server/busboy standing next to her, “I have known him longer, and I still forget his name.” She replied, “We call him Doughnut.” I looked at him and asked, “Why is that?” He just smiled, and she explained. “He went to a house of pleasure, and instead of giving out dollar bills, he handed out doughnuts.” The Colombian-American bartender said that it was a strip club near a Costco. The Mexican-American server/busboy had bought the doughnuts at a fancy neighborhood shop, and he had given them out to the strippers. He would not tell me what kind of doughnuts they were—I thought that they should have been Boston cream–but his English is limited, and he might not have understood the question. A few minutes later, however, he looked at me with his perennially sweet smile and said, “Now I am a VIP.”

          He seemed to be working every time I went into the biergarten, and I talked with him more. I think his name was Michael. His girlfriend worked, as he put it, for “a Jewish family” in the Sunset Park region of Brooklyn. Their dream was to save money and move back to Mexico, but I never understood his English or Mexican geography well enough to know where.

On the evening before a Thanksgiving, I asked him if he celebrated the holiday. He nodded, but with slight tone of disgust said, “No turkey.” He clearly did not like that traditional bird and carefully asked me if I liked it, as if he could not imagine anyone enjoying it. He told me that instead his family of aunts and uncles who resided in Brooklyn had a barbecue and would do so on Thanksgiving even though the temperature was going to be in the 20s. Clearly it was a big gathering. He told me that there would be pork and beef and chicken and salmon. I asked if the food was going to be spicy, and he said, “Oh, yes,” but then revealed that there was, as there are at many Thanksgiving dinners, a controversy. He told me that an uncle worked in a Japanese restaurant and had access to teriyaki sauce, which he was bringing for the salmon. Apparently, this was not part of the family tradition and not everyone approved or even liked teriyaki sauce. But Michael concluded, “It is a day for the family to get together and that is good.” I asked if they would discuss our president, or immigration policies, or other politics. He said that they did at other times but not on a family holiday.

I saw him a week after Thanksgiving and asked him how the day was. It was great. I asked him how he liked the salmon. It was terrific. I said, “Oh, you liked it with the teriyaki sauce.” He paused and smiled. “No teriyaki. We had it without teriyaki.”

Joesph and the Amazing Williamsburg Bank Building

I met Joseph in DSK, my local bar. He had just moved into the neighborhood. He said he was getting out as much as he could. His wife was expecting in two months, and he knew that nights out would soon be rare.

He had recently moved into a building that now goes by its street address, but what we older Brooklynites still think of as the Williamsburg Bank Building. Its official name when it opened, at the quite inauspicious time of April 1929, was the Williamsburg Savings Bank Tower. At thirty-seven stories, it dominated the skyline. It was the tallest building in Brooklyn until 2010. Now several buildings are taller, but I am glad to report that my view of it from my back window remains unimpeded.

Occupying most of a block, the building ascends straight up for about twenty stories and then has a few setbacks. A tower a fraction of the building’s base then goes up for, perhaps, ten floors more with a dome at the top. To me this architecture creates an amusing sight because from a distance the building with its middle tower looks as if it were flipping the bird, although I never could determine to whom it was saying, “Screw you.”

A four-sided clock is just below the dome. The clock can be seen from quite a distance, and I have checked it many times. It is always disconcerting to look up and realize that the clock is malfunctioning, which happened frequently a decade ago.

The lobby was a banking hall, the place for transactions with the Williamsburg Saving Bank. The hall was sixty feet high and ringed at the top by a mezzanine that contained banking offices. The ceiling had mosaics and wall frescoes. The use of marble was not stinted. This was a bank in the old-fashioned manner with openings in grillwork for teller after teller after teller. This was never my bank, but I opened an account for the daughter there, and every so often I would go with her there to make a deposit or withdrawal. We always felt a bit in awe of the surroundings. In such a place, money was never a frivolous thing; you had to feel that money approached the sacred, a feeling that I never have scooping bills out of an ATM.

The building’s upper floors had offices many of which, for reasons I don’t know, housed dentists. I went to one there a couple times a generation ago, and I swear that when I got off the elevator to go my scheduled appointment, I could smell ether in the corridor.

The building has a wonderful observation deck, but I only remember the one time that it was opened as part of a community house tour. I could walk in a circle, well really a rectangle, around the building. The views were unimpeded in all directions. Look, there is the Empire State Building. There is the Verrazano-Narrows Bridge. Am I deceiving myself, or can I really see planes taking off at JFK and LaGuardia?

Ten or fifteen years ago the building was sold. The Williamsburg Savings Bank would no longer be there, and the building was rebranded as One Hanson, and that is the only way my bar companion knew it. The upper floors were converted to apartments. The daughter, her then girlfriend, and I went to look at some, and they seemed a bit cramped and shoddy. Then again, many New York City apartments feel that way to me. I have gotten spoiled by the gracious feel of my nineteenth-century townhouse. I have lived for a half century with ten, eleven, and twelve foott ceilings, and where a normal sized room is twenty feet by twenty feet or even larger. The floors are a foot or more above the ceiling below with insulation in between, and the walls give off the solid feel that only real plaster can do. Sheetrock, lower ceilings, and smaller rooms always make me think a place is cramped and shoddy, but the converted apartments may not feel that way to others, and the apartments did have spectacular views of New York City.

The lobby was closed on the day of our real estate visit. For a while, however, the Brooklyn Flea, a trendy and large operation, used that space as its winter base. With the craftsman, peddlers, browsers, and gawkers crowded into it, the lobby felt different, but much of the hall’s grandeur was still startingly evident. The Brooklyn Flea also used the basement, and for the first time, I saw the vault with its massive, gleaming door.

This old banking hall is one of Brooklyn’s marvels. When I considered putting a tour together of my neighborhood, I enquired if I could bring groups to see the lobby, but I was told that it was now closed to one and all. That’s sad. Maybe it could somehow at least be rented out for weddings and the like.

(Concluded January 30.)