By Olatunji Dare
As I watched the lead attorney Eric J. Nelson grind out before a Minnesota court his case for exculpating his client police officer Derek Chauvin in the murder of George Floyd two weeks ago, my mind flashed back and forth to a passage in Chief Obafemi Awolowo’s classic memoir AW0, published some six decades ago.
Awolowo, who had given up legal practice for a political career that culminated in his premiership of Western Nigeria and Leader of the Opposition in Nigeria’s first post-colonial government, was reflecting rather nostalgically, on the joys of lawyering.
Here is the passage:
“To engage , without bitterness or animosity, in the fiercest contention; to cultivate the habit of always examining both sides of a problem, and to present the side you espouse with forensic forcefulness and assuredness; to identify yourself with your client and to enter into his feelings as if you were the plaintiff or the defendant or the prisoner at the Bar; to propound and urge points of law which are sometimes difficult, sometimes not all too tenable, or sometimes so fine and abstruse that it is not at all easy to distinguish one point from another; to be utterly fearless and unsparing in combat; to acquire an independence of outlook in all things and to enjoy immunity in all you say and do as long as it is legitimate and within the bounds of professional etiquette; to take part in fostering the cause of justice and equity in their total impartiality before the very bulwark of the citizens’ liberty and individual freedom – all these and more are the inherent and distinctive attributes of a noble profession which I love and will forever cherish.”
That is a whale of a sentence, but also a beauty. Only a gifted writer could have pulled it off.
In writing classes, student are admonished not to write sentences that contain more than 25 words, or more than 40 if the teacher is the indulgent type. It is a useful rule, but it is not iron-clad. The best test in these matters is clarity, and one cannot err by following Anatole France who, when asked to state the three most important characteristics of French prose, replied: First, and above all, clarity. Second, clarity. And finally, clarity.
On that score, the passage from Awo is a model of clarity.
But I digress.
As he laid out his case for his client, Nelson was a picture of imperturbability, even as witness after witness presented in chilling detail, evidence that pointed unwaveringly to his client’s culpability. But Nelson would not to allow the facts get in the way of the most far-fetched improbabilities.
Forget the knee that Chauvin pressed and pressed on Floyd’s neck as Floyd lay prone on the tarmac handcuffed, with one officer sitting on his back and another holding his feet together. Forget his heart-rending cries that he could not breathe. Forget his writhing, his pathetic plea for his mother who had been dead for four years to come deliver him. Forget those bulging eyes that seemed in imminent danger of popping out of their sockets.
Forget the tongue hanging out like that of a parched animal. Forget the anguished entreaties of passers-by watching in horror what seemed like an execution in progress. Forget that Floyd’s neck remained jackknifed by Chauvin knee even after his accomplices reported that Floyd’s pulse had stopped. Forget that Chauvin, striking a pose not unlike that of a game hunter in a safari posing triumphantly with the prostrate body of his trophy, kept his neck grinding into Floyd’s neck for nearly five minutes after Floyd had stopped showing any signs of life.
Forget that, in their official account, Chauvin and company had reported tersely that Floyd had died from a “medical incident,” following his arrest for purchasing cigarettes with a counterfeit $20 bill. Forget that there was not the slightest indication in that account of any physical encounter with Floyd. Forget police testimony that Chauvin’s conduct violated the official rules through and through.
Forget a young Black woman’s plea to Chauvin to “get off of” Floyd’s neck, a woman who realised that the Black man pleading for his life to the extent that he could still draw some air into his lungs, could have been her father or uncle or brother or neighbor. Ignoring that plea would seal Chauvin’s doom.
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That young woman Darnella Frazier, 17, who was going to a candy store with a younger relation, had the presence of mind to set her camera rolling to record live in chilling detail, all nine minutes and more of it, what is likely to go down as one of the most gruesome pictures of our time. The video constituted perhaps the decisive piece of evidence in the trial.
But Chauvin’s counsel urged the court to discount it. Chauvin’s knee lay on Floyd’s collar bone, not on his neck as the video would seem to suggest, he contended; plus, Chauvin’s foot was resting on the tarmac, so that his body weight was not actually impressed on Floyd’s. Again, Chauvin weighed a mere 144 pounds. So, how much damage could that weight have done to the neck of a giant possessed of super-human strength?
Forget appearances; forget even commonsense, Nelson urged the court. The knee locked on Floyd’s neck for almost ten minutes had nothing, absolutely nothing, to do with Floyd’s death. Floyd was a notorious drug user. Even at the time of his arrest, illegal drugs had been found on his body. His dissolute lifestyle also contributed mightily to his fate.
He was overweight and diabetic; he smoked, and he was not in the habit of exercising regularly. Because of these and other pathologies, he had an enlarged heart that made him a candidate for premature death, regardless of what Chauvin and company did or failed to do.
There was also the carbon monoxide factor, remember? Floyd was held down on the tarmac close to the exhaust of a motor vehicle that was belching out a mixture of toxic effluents. It was this mixture that poisoned the very air Floyd was breathing. Throttling him with a knee to his neck for almost 10 minutes had nothing to do with the difficulty of breathing, the asphyxia that was alleged to have resulted in Floyd’s death.
Nor should the jury set any store by the so-called video evidence, which can be manipulated and was in all likelihood heavily doctored. When the prosecution urges you to believe only your eyes, they are asking you in effect to believe in doctored evidence. Remember: not everything that happened that day could be seen or heard or even remembered.
Thus did Nelson the lead defense counsel grind on poker-faced, and relentlessly and unflappably. The way he carried on, a person unfamiliar with the actual circumstances might have been led to conclude that Floyd had somehow connived in his own death and that Chauvin was the wronged party, to whom society owed an apology.
It required just one person among the 12-member jury to embrace Nelson’s theory, and his client would have been pronounced not guilty. All the posturing, all the appeal to racial tropes and caricatures, was designed to appeal to the one juror who might be of a prejudicial cast of mind. Chauvin was only doing his job, as the law prescribed.
It did not work. The jurors chose to believe what they had seen in vivid, excruciating detail.
I doubt whether Nelson ever came across the passage I quoted from Awolowo, on the joys of lawyering. He was hewing to the tested courtroom strategy spelled out by Awolowo: “to present the side you espouse with forensic forcefulness and assuredness; to identify yourself with your client and to enter into his feelings as if you were the plaintiff or the defendant or the prisoner at the Bar; to propound and urge points of law which are sometimes difficult, sometimes not all too tenable. . .”
Chief Richard Akinjide (SAN) employed it successfully in the 1979 presidential election case. Johnnie Cochran relied on it in part in the OJ Simpson’s case until the glove that didn’t fit cast a grave and indissoluble doubt on the prosecution’s case.
Nelson failed in his attempt to press it into Chauvin’s service. But as they say here, you can’t blame a guy for trying.
