In the courtroom and in politics, when you got nothing, you gotta give em something

October 21, 2020 7:00 am

WASHINGTON, DC – OCTOBER 02: U.S. President Donald Trump leaves the White House for Walter Reed National Military Medical Center on the South Lawn of the White House on October 2, 2020 in Washington, DC. Photo by Drew Angerer/Getty Images.

A recent Minnesota Reformer piece cited Bob Dylan’s “Like a Rolling Stone” — when you ain’t got nothing you got nothing to lose — as one of the songs which describes our current political moment.

I agree. But we should not lose track of the implied corollary: When you ain’t got nothing, you gotta give em something.

It appears not to matter if that something is provable, arguable, or even plausible. Simply the straight-faced earnest act of asserting an argument can appear to create a baseline of credibility. And if you can tap into predisposed biases of the listener, then Presto! You have a potentially winning argument.

Before I move on to politics, I will start with an area I have had more direct exposure to: lawyers — and more specifically — criminal defense lawyers. When a defense lawyer has little basis to challenge prosecution evidence at trial, the case does not end with a concession speech. Instead, the challenge is to come up with something that may distract or confuse a jury. Or, to put it more professionally, to allow a jury to latch on to something in the totality that obscures problem particulars.  

Remember, success at trial is not an objective triumph of an argument, but a process of winning over a jury. In the criminal context, that means winning only the smallest number necessary — possibly just one — who can hold firm even if a majority of jurors disagree. 

A judge can remove some arguments from consideration for various reasons established by law, but the right to present a defense and allow jurors to make the final determination on validity and credibility is a paramount value. The jury is of our peers, after all, not officials. 

So consider how the lawyers for Derek Chauvin — the former Minneapolis Police officer accused in the killing of George Floyd — must proceed: Something has to be argued. 

While pretrial filings might not give away the full strategy, what they have already presented appears to offer two items to distract a jury. One is that the medical examination detected some drugs in George Floyd’s body. Never mind that the same examination labeled the manner of death a homicide — which technically means a human caused the death of another human — and indicated the cause of death was that the heart stopped due to police restraint that included neck compression. 

A second and related distraction: The claim that the failure of the first officers on the scene to immediately call an ambulance for a suspect with possible medical problems delayed the emergency response that would have prevented death.

Not much of an argument when compared to 8:46 of video and the medical examiner’s conclusions, but they gotta say something. And if jurors have predisposed racial biases, defense of cop biases, biases against those who have used illegal drugs? Still an incredibly difficult persuasion task, but from a lawyer’s point of view: is there any better option?

Finding a response to overwhelming negative evidence can also be a challenge in politics. With our current president, the examples are too numerous to track. Need to say something about COVID-19 response? Keep talking about ending flights from China (which didn’t actually happen, but anyway…) and change the subject.

The President’s law and order campaign focus is most centrally substituted as a distraction from the coronavirus, implied to be the primary basis for re-election despite the astounding lack of any objective reasoning. There is no mention of the conditions which led to uprisings across the country, or the fact that as president he could neither change such conditions nor otherwise prevent or address uprisings. In short, no argument for how his failure to prevent uprisings in his first term would be any different in his second.

Meanwhile, his statements and tweets persistently reveal he is fueling further anger and division rather than projecting calm and seeking a peaceful path forward. It is beyond illogical for President Donald Trump to suggest that his opponent Joe Biden exposes us to the threat of future uprisings, using as examples the very uprisings that have arisen during Trump’s own leadership. Still, you gotta give em something.

And the voters he has in mind may not be too different than the jurors Chauvin’s lawyers hope for: Those who can find an argument credible simply because it is allowed to be presented as if it is — and thereby providing the minimum basis for predetermined biases to form a totality that obscures all the particulars.

Hearing irrational arguments — whether from politicians or lawyers — can feel very demoralizing and damaging for those of us who believe we are applying more logical reasoning and better considering facts (though not immune from alternative biases). When they seek to tap into racial biases, we may even be fearful. 

But perhaps it helps to maintain our awareness that just because an argument is raised, it does not automatically become half of a reasonable debate, or even plausible. Take a deep breath and recognize that someone simply had to say something. 

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Michael Friedman
Michael Friedman

Michael Friedman is the former executive director of the Legal Rights Center. He previously served as chair of the Minneapolis Civilian Police Review Authority, serving in that capacity for three years.