A Lesson in Persuasion
A brief reflection on the trial over the tragic death of Mr. George Floyd.
Like much of the world, I have been watching portions of the trial of the former police officer accused of killing George Floyd. And, like many people, I have formed my own conclusion about his guilt, a conclusion that is hard to avoid when one looks at the video evidence.
As a citizen, I know the defendant’s fate does not rest in my hands, but rests in the hands of twelve jurors, one trial judge, and some number of appellate judges. As a lawyer, I respect the process. More than that, having seen the prosecuting attorneys in action, I have enormous respect for the job they have been doing. They have been organized, prepared, detailed, and methodical. They also have been calm, rational, and civil. I have seen no histrionics, no outbursts of prosecutorial anger, nothing that might offend or alienate jurors or judges. Rather, their presentation of the evidence and their courtroom demeanor has been heroically professional. All courtroom lawyers, even those of us whose cases bear far less public significance and arouse far less emotion, would do well to learn from them.
Although I confess to having no sympathy for the defendant, I respect the role of defense counsel. His is not an easy job, and certainly not one that I envy. Earlier in my own career, I took on the representation of a few criminal defendants, young men accused of engaging in non-violent conduct that was both unlawful and morally reprehensible, and I agonized over how I could achieve an outcome that would allow them a chance at redemption. Fortunately for them, they avoided serving any jail time, and I like to think that they have gone on to lead productive and meaningful lives.
Because my clients’ liberty was at stake, I found those cases emotionally and mentally draining. Yet my own limited experience in criminal defense work sheds only the dimmest light on the defense attorney’s position in the current trial and how much pressure he must feel as he defends an enormously unpopular client before a worldwide televised audience. From everything I have seen, like the prosecutors, he has been nothing but prepared, polite, and professional.
Of course, the comparisons I am making are not entirely apt. For one thing, we are seeing only the trial, not the pretrial hearings. There is nothing like having a jury in the box to bring out the best behavior in trial lawyers. The trial is just the tip of the iceberg; it often is preceded by bench hearings (hearings before judges with no juries present) that are more likely to be acrimonious, and simulations before mock juries and jury consultants who provide constructive criticism about the lawyers’ comportment. I have not seen the television show “Bull,” but I suppose that if you watch it you probably get the idea. Also, in contrast to my own experience when I stepped out of my civil litigation lane to represent defendants in criminal cases, a lawyer who makes their career on criminal defense work likely relishes the opportunity to work on such high-profile and high-stakes cases, so my sympathy for them is almost certainly misplaced.
Still, the professional and respectful demeanor of the attorneys on both sides of the case is particularly noteworthy given the provocative nature of the alleged crime. No one is likely to doubt that the death of a black man being held down by a white cop can stir up a lot of emotion and unrest. That is especially true where, as here, the event is televised, thanks especially to the cell phone footage filmed by one brave 17-year-old. Immediately after the video was broadcast, protests erupted all over the country, and the Black Lives Matter movement gained unprecedented momentum that continues today, nearly a year after Mr. Floyd’s tragic death. People were angry then and are angry now, and the cry for justice still rings loud.
Yet, in the confines of a courtroom in Minneapolis, under the watchful eyes of the viewing public, the prosecuting attorneys are putting on a masterful performance of how to let the evidence and the witnesses evoke the jury’s sympathies without the lawyers having to stir them up with heated rhetoric or appeals to emotion. Defense counsel also has refrained from making an emotional appeal, but likely for a different reason. After all, he must know that any attempt to conjure a sense of injustice or righteous indignation on his client’s behalf would seriously backfire when put up against more than nine minutes of video of the white cop’s knee on the black man’s neck. His only play, it seems to me, is to be the very model of polite and deferential courtroom behavior while asking questions and presenting witnesses that, he hopes, will inject sufficient doubt in at least one juror’s mind to avoid a unanimous guilty verdict. We’ll see if he agrees when he wraps up his case in closing argument.
There is a time to shout and a time to whisper, a time to express anger and a time to display calm. An angry public that protested what they saw, and what the jury may soon declare, as murder was and remains justified in its anger and its protests. But the lawyers who are trying this emotionally wrenching case are wise to keep their own emotions in check while skillfully putting on the evidence that they hope will lead the jury to a conclusion they and the people they represent can live with. I can think of some politicians and others who could learn from this master class in the power of civil, evidence-based persuasion.
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Turning to a different topic, two weeks ago I wrote a piece about forgiveness. This week, I have been reading a book that contains a passage on forgiveness I would like to add to that conversation.
The book is “Call it Grace: Finding Meaning in a Fractured World.” The author, Serene Jones, is President of The Union Theological Seminary. I discovered her and her book by listening to a podcast in which she was interviewed by Krista Tippett. Ms. Tippett’s podcast is called “On Being,” and has become the one I most look forward to listening to every week.
In the book, President Jones discusses her upbringing in Oklahoma, and connects her personal story to certain theological themes. Some of the earlier chapters focus on her paternal grandfather, Dick Jones, whose misogyny and racism she relates to her discussion of the doctrine of original sin. She also discusses her father, who rejected her grandfather’s hateful inclinations and himself became a professor of theology.
In a passage that I believe rings true about the human condition regardless of one’s religious persuasion (and even if one subscribes to no religion at all), President Jones describes what she calls “the sin-grace tension,” that is, the tension between every person’s moral failings and the availability of forgiveness for them. She places that tension in the context of numerous tensions in the human character, tensions between the positive and negative qualities and emotions contained in each of us. She writes:
The sin-grace tension that would form the basis of my theology later in life has its origins in Dick Jones. Sin is everywhere—in us and in our neighbors, in our institutions and in our gatherings—but so, too, is grace. And so, too, are all the other tensions in human nature that go along with them: innocent idealism and canny self-interest, utopianism and pragmatism, rage and release, despair and hope, fear and trust. To see ourselves for what we really are, he taught me, is the first and hardest theological lesson of all. [Theologian Reinhold] Niebuhr’s insistence on our dualistic nature—each and every one of us and of humanity in general—would someday become the basis for what I would call a theology of forgiveness. If we cannot know and forgive the messy sins of our neighbors and our enemies, I would come to realize because of Dad, we can never learn to forgive the messy mix of sin and grace inside our own selves.
Each of us is flawed, each of us is imperfect, each of us is in need of grace. Those are fundamental tenets of the Christian faith and other religious, philosophical, and psychological traditions. Once we understand that we ourselves fall short of perfection, forgiving others for their imperfections comes much more easily. The older and, I hope, wiser I get, the more I am able to let go of old grudges and forgive those who have disappointed me. I hope those whom I have disappointed can extend the same grace for my transgressions. Life is too short to do otherwise.