The American World Turned Upside Down?

 In 1977, I  believe, I made the acquaintance of a Boston-area rare book and art dealer named Bill Young through Steve Flink, a mutual friend.  On the first of many afternoons that I spent at his house, it developed that he was an avid student of the case of Nicola Sacco and Bartolomeo Vanzetti, two Italian immigrants who had been executed in 1927 for a double murder during a robbery in South Braintree, Massachusetts, in 1920.  The case had been controversial for more than half a century, and I was fairly familiar with it myself.  Bill, it turned out, was convinced that both men were innocent, and that the prosecution had substituted a key piece of evidence--a bullet fired from the Colt automatic Sacco was carrying when he was arrested--to make their case.  Over the next few months, he convinced me that he was probably right.  During that same year Governor Michael Dukakis issued what amounted to a posthumous pardon to the two men, and the state released more material that revealed that the state had falsified another key part of its case.  In 1979, Bill was diagnosed with pancreatic cancer, and on the last day that I saw him I agreed to take over his research and try to turn it into a book.  Five years later, with the help of a research assistant--a former student of mine named Michael Levitin--I turned it into a book, Postmortem: New Evidence in the Case of Sacco and Vanzetti, listing Bill and myself as the co-authors.  It re-ignited the controversy and got a lot of favorable reaction, and for a while some law professors were using it in courses.

The case, it is fair to say, had become the most controversial criminal case in US history during the 1920s, triggering huge demonstrations both in the US and around the world, and retaliatory bombings by some of Sacco and Vanzetti's fellow anarchists.  I am convinced that it was a terrible miscarriage of justice, marked by a number of instances of prosecutorial misconduct. In particular, the prosecution kept critical evidence from the defense--something that the Warren Court turned into grounds for overturning any conviction in which such things occurred.  That evidence included the minutes of the grand jury inquiry into the case, which Michael Levitin discovered in the Harvard Law School library, which showed how much certain eyewitnesses had changed their story and included statements by the medical examiner tending to confirm that one bullet had been substituted by the prosecution.

Thanks to an intrepid documentary film maker named Liz Collin and her writer JC Chaix, I am inclined to believe that we have lived through a comparable miscarriage of justice over the last three years:  the convictions of Derek Chauvin and three other police officers for the murder of George Floyd.  The documentary, The Fall of Minneapolis, can be watched for free here or on youtube.  I am indebted to Glenn Loury and John McWhorter for bringing it to the attention of their listeners, including myself, on Glenn's substack and youtube channel, here.  As usual, Glenn and John repeatedly called a spade a spade rather than referring to it metaphorically as a shovel, as Mark Twain would say.  I will now try to summarize what I have learned.  Collin and Chase have also published a book laying out their findings,  It is selling very well on amazon but it is only in forty libraries in the United States so far, none of them within 300 miles of my home here in Watertown.  Collin, it should be noted, is the wife of Bob Kroll, who at the time of Floyd's death was a the president of the Minneapolis police union.

There are two critical findings in the film, one of which casts grave doubt as to how Floyd died, and the second which may lead eventually to the dismissal of the murder case.

To begin with--and I had seen this reported before--the original autopsy report, written by the Minneapolis medical examiner who performed the autopsy on Floyd, found no evidence of asphyxiation due to pressure on his neck or elsewhere.  Instead, it found that Floyd suffered from serious heart disease, and that he had methamphetamine and a large dose of fetanyl in his system when he died.  Body cam footage, of which more in a moment, shows him with some kind of drug in his mouth during his argument with the police officers.  The two doctors hired by the well-known attorney Benjamin Crump who said that Floyd died of asphyxiation did not in fact perform an autopsy, according to the film--they simply presented a different conclusion based on the medical examiner's data.  By the time the initial official report was complete, several days after Floyd's death--it took that long to get the toxicology report--the nation and the world had already decided that Chauvin had choked him to death with his knee because of the cell phone video that a bystander had recorded, and demonstrations and riots were raging in Minneapolis and elsewhere. The film leaves the impression that the medical examiner felt he had no choice but to change his original conclusion that Floyd had died of some mixture of heart disease and the effect of the drugs he had taken.  It is one of the bedrock principles of American law that no one can be convicted of murder absent clear proof of the corpus delicti, that is, that foul play caused the victim's death.  The question of how the two independent pathologists, Michael Baden and Allecia Wilson, whom Crump hired, reached their conclusion needs final clarification.  Dozens of news accounts indicated that they had performed a "second autopsy," but Collin's book, They're Lying, and the film, insist that they only reviewed the medical examiner's finding.

That is not all.  The film presents many minutes of police body cam footage of officers' attempts to detain Floyd for at least ten minutes--before Chauvin was even on the scene.  Floyd becomes extremely agitated as soon as the officers approach him in his car, and refuses all their commands.  He also says, repeatedly, "I can't breathe"--well before he is under any restraint from the officers.  Floyd was a large, powerful man--bigger than any of the officers--and the film shows how scary the whole encounter was for them.  According to the film, much of this footage had never been shown before they put it in their movie.  This is a point where I need more information--I have received Collin's book and looked for a definite statement that this footage was denied to the jury (it was definitely denied to the public before the trial), but I haven't found it. If in fact the prosecution kept this footage out of the hands of the defense, that could, it seems to me, lead to the dismissal of the entire case.

Last, but hardly least, high-ranking officers of the Minneapolis police testified that the technique Chauvin used to hold Floyd down was not part of his training or the SOPs of the police department. That, it seems, was a lie, as the film shows with pictures from a training manual.  And it also shows other angles seeming to show that Chauvin's knee was on Floyd's shoulder, not his neck.  We also know that Floyd had been repeating "I can't breathe" many minutes before Chauvin put him in that position. 

Chauvin and his three fellow officers were eventually convicted of different offenses in both federal and state courts, and are serving concurrent sentences of 22.5 years for Chauvin and several years each for the other three men.   Very recently Chauvin survived an assault in prison during which he was stabbed more than twenty times.  Meanwhile, a substantial portion of the Minneapolis police force has quit in the wake of the case and the riots that followed, in which one precinct was forbidden to try to prevent rioters from taking over and destroying their building.  (That is described at great length by officers who were on the scene, and who make impressive witnesses.)  Crime has significantly increased in Minneapolis, even though political leaders backed away from their initial enthusiasm for "defunding the police."

The death of George Floyd and the near-unanimous conclusion that a police officer had murdered him while other officers looked on had a tremendous effect on American life.  Not only did it lead to many weeks of demonstrations, some of them violent, in many American cities, but it triggered the "racial reckoning" that led to putting a new national holiday on the calendar, popularizing the 1619 project, and winning much broader acceptance for the idea of the United States as a hopelessly racist society.  And yet, it seems entirely possible that Floyd wasn't murdered at all, but simply died from a combination of hypertension, heart disease, and a combination of fetanyl and meth.  Because of the case's impact, the new documentary may turn the case into a Republican talking point for the foreseeable future--all the more so since both President Biden and Vice President Harris did not wait for the trial to jump on the bandwagon and claim that Floyd was a victim of police brutality and racism.  And in the current climate, I cannot imagine how a new investigation could possibly enjoy the trust of large numbers of the American people, for whom the Floyd case is as settled as anything could be.  The case will have far more enduing consequences than Sacco and Vanzetti ever did.  Meanwhile, I urge you all to watch the movie.