From “Socialism” to “Diversity” (concluded)

          Diversity, often paired with “inclusion,” has been a favored word in academia for a long time. My former institution had a policy stating, “We will recruit and retain faculty who will bring their diverse perspectives, experiences, and expertise into the classroom and broaden the intellectual community. Therefore, the recruitment, retention, and promotion of full-time and adjunct faculty who are themselves diverse are essential functions to this Diversity Plan.”

          The full-time faculty at the law school was overwhelmingly white and disproportionately Jewish. I knew of only one colleague who had been raised Catholic, but few regularly attended religious services of any kind. Overwhelmingly this faculty had attended elite law schools. Although many of the graduates would be solo practitioners or practice in small firms, no faculty member had worked in such settings. Almost all the faculty had come from families whose incomes were well above the national median. Their political views were overwhelmingly liberal or further left. All supported LGBTQ rights; none pronounced right-to-life views. One or two may have voted for a Republican, but more likely they supported a libertarian candidate. All the rest supported Democrats. You get the picture.

          In short, there were a lot of ways of enhancing diverse perspectives and experiences within the faculty, but diversity did not mean bringing conservatives or Buddhists or those with varying legal backgrounds into the mix. It primarily meant hiring non-whites. One colleague did tell me that he wanted us to hire a black lesbian even though gays and lesbians were well represented on the faculty. I, too, was in favor of hiring non-whites, for I believed that they could add perspectives and experiences to our faculty. But I objected to the term “diversity,” for it had an Alice-in-Wonderland meaning. Throw out the dictionary; it meant only what we meant it to mean. One of the goals of a law school is to produce graduates who think and therefore write clearly, but I wondered how we could do that if this was our written product. I was embarrassed for our use of the term. (What did it mean to have faculty members “who are themselves diverse”?) It led to some strange conversations. I remember, e.g., the discussion of whether the appointment of a Cuban American from an upper-class family who had practiced in a Wall Street firm would add “diversity” to the faculty because we could check the Hispanic box for her.

          “Diversity” and “inclusiveness” have now become coded terms for the left just as socialism and cancel culture are for conservatives. I was reminded of this last year when a group in my summer community concerned about racial matters after the George Floyd murder convened. They sought a name and accepted the cliché: The Diversity, Equity, and Inclusion Committee. The community of 300 residences comprises primarily second homes. To maintain and operate the twenty-seven holes of golf, ten tennis courts, two lawn bowling greens, a restaurant, an Olympic-size pool, and miles of trails on over four thousand acres of forestland, we pay more than $15,000 in annual dues. The overwhelmingly white residents have varying political and religious allegiances and in other ways are diverse as long as we count the spectrum from the well-to-do to the very rich as diverse. To talk and strategize about diversity, equity, and inclusion in this community seems ironic. Case in point: the people who are employed by the community to give us this privileged experience are predominantly white, but they make well below the nationwide median income. If we got back to the true meanings of diversity, equity, and inclusiveness, wouldn’t we begin to make plans to pay these people more? We would be concerned about racial justice, but also about income inequality and social mobility. But is this part of the mission of this group? What do we actually mean by diversity, equity, and inclusion? They remain imprecisely defined. Do we want to subsidize low-income people to come into the community? Do we want to recruit nonwhite folks to buy in? Should we encourage Muslims? This is a group of well-meaning individuals, but because of the vagueness of the terminology – its very name — this group is likely to fail in identifying and fulfilling important – as yet undefined — goals.

          The left and the right are alike in many ways. They may use different terms, but often to the same effect. I am a believer in free speech, but I sometimes wish that we could ban the use of all meaningless or ill-defined terms that do not enlighten and cannot persuade but are only coded phrases meant to evoke emotional responses from those who already agree with the speaker.

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.