The Rittenhouse Trial

I’ve been wanting to write a few words regarding the Rittenhouse trial. As someone who has served the role of defense counsel in numerous criminal jury trials, for the most part I find the way our media covers such “stories” less than enlightening. The media in general seems either uninterested in explaining the legal issues involved, or ignorant of them, and seems much more interested in inflaming their target audience, whether on the Left or the Right.

I won’t offer an opinion on whether or not I agree with the jury’s verdict. Even if I had followed the trial as closely as possible through the media, I could never say whether or not the jury came to the correct decision. I’m not the most seasoned attorney, but I’ve conducted many jury trials as a defense attorney and have obviously spoken with many criminal defendants. I’ve spent thousands of hours reviewing evidence, that presented at trial and that which was not. I’ve examined and cross-examined witnesses in too many cases to remember. Rarely can I say I’m near 100% confident of whether the defendant is guilty or not.

Contrary to what many think, defendants typically do not go to their defense attorney and admit guilt, and then go to trial. Defendants want their own attorneys to believe they are not guilty so the attorney will work hard on the defendant’s behalf. Many defendants are also very suspicious of their attorney and think if they make an admission that admission will be relayed to the prosecutor. The defense attorney’s role is to present the evidence in the light most favorable to the defendant, not determine whether the defendant is guilty or not. That is the jury’s role.

What I hope comes out of the Rittenhouse case is that many on the Right will gain a better appreciation for the value of the due process rights guaranteed to all citizens by our Constitution. What I fear is that many on the Left will continue to drift towards devaluing those rights. Our media, both Left and Right, tries cases in the public with little or no apparent thought to due process.

To many on the Right, the Rittenhouse case is seen as a vindication of the 2^nd Amendment right to bear arms. This may be true, and I think the 2^nd Amendment is an important guarantor against overreach by the State. But Constitutional rights other than the right to bear arms, such as the right to be represented by counsel, the presumption of innocence, the right of a criminal defendant to remain silent and against self-incrimination, etc., etc., etc., have value. Too often, those on the Right, and increasingly the Left, have been dismissive of these due process rights which are also important guarantors against overreach by the State.

For example, I often have worked as court appointed counsel for indigent defendants, citizens like you and I who were charged with a criminal offence but could not afford an attorney. Too often the attitude toward the State providing an attorney for indigent criminal defendants is why should the taxpayers need to pay for their defense? Providing criminal defendants with attorneys helps force the State to prove their case beyond a reasonable doubt. Where criminal defendants have a weak or nonexistent defense, prosecutors get sloppy. Sloppy prosecutors are a danger to all of us who believe in due process and our Constitution. I hope we all come to appreciate that paying for the poorest amongst us to have attorneys when charged with a crime protects all of us against overreach by the State, and works to assure that all of our Constitutional rights are upheld.

Another example is the presumption that the defendant is innocent. The Judge in the Rittenhouse case did not allow the prosecutor to call the three men who had been shot “victims.” As a defense attorney I always thought that the prosecutor calling the alleged victim of a crime the “victim” while addressing the jury was highly prejudicial. The defendant in all cases is afforded by our Constitution the presumption of innocence. During the jury trials I would try to face this issue head on and tell the jury that it wasn’t for the prosecutor to determine if there was a victim, or me as the defense attorney, or even the judge. The Constitution gives the jury the responsibility of determining if a criminal defendant is guilty of a crime, and therefore whether there is a victim of that crime.

Our Constitution also affords all of us the right to remain silent when questioned by the police. My understanding from the coverage of the trial is that the prosecutor asked the defendant, in effect, why he hadn’t told anyone else the details of what happened prior to testifying at trial. This is something that should never happen, but unfortunately does at times, sometimes in very subtle ways. To imply someone is lying when testifying at trial because they didn’t tell something to the police earlier eviscerates the right to remain silent. If the defendant talks to the police during the investigation and then says something different under oath at trial, that is fair game for the prosecutor to ask about and comment on. But if the defendant simply remains silent, the prosecutor should not seek to punish the defendant for exercising the Constitutional right to remain silent.

For the Left, I hope this case doesn’t lead to a further abandonment of an emphasis on Constitutionally guaranteed due process in criminal cases. The jury determined that Rittenhouse was “not guilty.” All twelve sat through the whole trial and were presented with all the evidence. Both sides were represented by presumably competent attorneys. Both sides had the opportunity to question the jurors and ask the Judge to exclude those who exhibited bias. My understanding is at least one potential juror was excluded by the Judge for racial bias due to a comment made to a Sheriff’s Deputy. The prosecutor and defense counsel also almost certainly had a number of opportunities to exclude potential jurors for other reasons without the permission of the Judge. Due process seems to have been followed.

I hope as well that those who argue that Rittenhouse had no business being in Kenosha that night rethink the wisdom of that argument. To imply that someone “gets what’s coming to them” if through a series of bad decisions they put themselves in harms way is a really dangerous argument to make at a criminal trial. If a woman out drinking with her friends is accosted on the way back to her apartment at 2 AM, no one should make the argument at trial that her own decisions put her in harms way. If an African-American Jets fan goes to Foxboro for a Jets-Patriots game and is attacked while cheering for the Jets surrounded by Patriots fans, no one should argue he had no business being there. Whatever I or anyone else may think of Rittenhouse’s actions or motivations in going to Kenosha, the “you had no business being there” argument is a dangerous argument to give credence to, especially for women and minorities.

I’ve seen multiple headlines where the “not guilty” verdict is somehow attributed to White Supremacy. The jurors consisted of seven woman and five men, presumably all registered voters and all residents of Kenosha County Wisconsin. Kenosha County voted in 2020 for Trump (51%) over Biden (48%), but also elected Democrats as the County Clerk, County Treasurer, District Attorney, State Senator and two of four Representatives to the State Assembly. In the 2016 Presidential election Trump also defeated Hillary Clinton but by a very close margin, 46.85% to 46.52%. Tellingly, in a county that is over 88% White and only a little over 5% African-American, Barrack Obama won the county in 2012 with 55% of the vote and in 2008 with 58%.  Hard to understand how Obama won those elections so handily if the county is rife with White Supremacy, whatever that really means. The Judge in the case, Bruce Schroeder, was also appointed by a Democratic Governor. Such arguments are counterproductive and do more to obscure than explain.

Our judicial system is not always as efficient or as fair as it should be. Due process is not always as strictly adhered to as it should be. The answer is to strive to uphold the due process principles laid forth in our Constitution more closely, not to cast them aside. Reforming and perfecting our justice system entails working to understand how it is intended to function and how it actually does function, and not simply reacting to our preferred media’s characterization of a particularly “newsworthy” case. A recommitment to the principles set forth in our Constitution is our best path forward.