From the moment the world learned of the death of George Floyd at the hands of a Minneapolis police officer, there was a collective, and understandable, anxiety in the African American community that this death—like so many other deaths stemming from police misconduct—would either become a casualty of a white-washed investigation which ultimately cleared the officer involved, or would become the product of a limp, disinterested prosecution resulting in an acquittal of the officer. Whatever the course the case took, the results have historically been the same.
Given our judicial system’s long refusal to adequately recognize and vindicate the lives of people of color (mostly African American men), it’s no surprise that our collective psyche both expected and braced for the trauma of the loss of another Black life—that was neither acknowledged or seemed to matter to a legal system that has so often turned its back to these Black lives.
That all changed last week when a jury, more ethnically diverse than any jury to have sat in judgment of a white officer charged with killing a Black man, found Derek Chauvin guilty of the murder of Floyd. So it would seem reasonable to assume that we could now breathe a collective sigh of relief that the legal system had finally answered the door and provided a measure of accountability and justice in a moment that clearly compelled no other result.
But that is not the history of being Black in America. Every day we make, sometimes even the slightest, imperceptible calculations of our safety and our ability to trust the things we see. And so when Judge Cahill, the judge overseeing the Chauvin murder trial, openly suggested—only moments before the jury began its deliberations—that the public comments of Congresswoman Maxine Waters which encouraged demonstrators to “stay on the street” and to be more “confrontational” if the verdict was unjust were “disrespectful” to the legal system and likely provided Chauvin with a path for appeal, this was another trauma. And given the history of trauma in the African American community, it was not entirely unexpected.
But we should exhale. Because this moment is different and Judge Cahill knows it. There is virtually no legal basis to presume that Rep. Waters’ comments infected the trial or its deliberations. There just isn’t. Her 8 seconds of comments were no different than her comments of civic engagement and encouraging robust protests that have marked her long career in public service. In fact, in 1941 United States Supreme Court Justice Hugo Black—in a case involving a public official and a newspaper commenting on pending litigation—said, “It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”
Whether Judge Cahill approved or liked Rep. Waters’ comments, she had the absolute right, given the First Amendment, to make them. And on their face they were certainly not likely to have influenced the Chauvin jury.
Even assuming that Judge Cahill was genuinely asserting that the integrity of Chauvin’s right to a fair trial might have been impacted by the comments of Rep. Waters, he could have answered that question by simply polling the jury (ie. asking whether they had actually heard the comments) and if the comments had even impacted them. And so given Judge Cahill’s strong (arguably hostile) remarks about Rep. Waters’ comments, it’s nearly impossible to understand why he chose not to.
In the absence of Judge Cahill doing what many judges would have done if legitimately concerned about improper jury influence, he appears to be doing exactly what he claims to be so “abhorrent” and “disrespectful.” He is word-bombing an elected official who has chosen to exercise her right to freedom of expression in much the same way he has in responding to her comments. It’s hard not to conclude that Judge Cahill is suggesting that freedom of expression is a one-way street in Hennepin County and Rep. Waters doesn’t belong on it.
To be sure, Congresswoman Waters’ right to free speech is no greater or less than Judge Cahill’s right to make comments outside of the jury’s presence that resonate with him and reflect his views on the legal process and the respect he believes it is entitled. For Judge Cahill to argue otherwise—while doing absolutely nothing to canvass the jury about the Congresswoman’s comments—might suggest to some that his remarks were more personally motivated and not truly embedded with an eye toward justice.
It would not be much of a surprise if the next comment we hear is Congresswoman Waters repeating under her breath the same thing she recently said to Congressman Jim Jordan, who seemed to be elevating his own personal views above those of a congressional witness, when she not so-politely suggested to “shut your mouth.”
And while I am not suggesting that either Judge Cahill or Rep. Waters be muted of their freedom of expression, I am suggesting that we can all breathe … deeply … and with relief. The Congresswoman’s comments aren’t going to help Chauvin one bit, and Judge Cahill knows it.
Trent Copeland is a trial attorney and former CBS News Legal Analyst based in Los Angeles. These are his views and do not reflect the views of any other person or organization.