The Public And A Public Trial

The trial of Kyle Rittenhouse has been fairly interesting for lawyers, particularly given the decision to put the defendant on the stand given that the trial had been going quite well for the defense and there is nothing more risky than having a defendant testify. No matter how well prepped, how sincere, how innocent (or guilty), it’s a crap shoot. One never knows what will come out of a defendant’s mouth under the stress of courtroom testimony. Even the best defendant can implode on the stand.

But the notion of a public trial includes not only the defendant’s interest in not being railroaded behind closed doors, but that the public has faith in the legal system reaching a fair verdict by hearing with its own ears, seeing with its own eyes, the testimony proffered, the arguments made, the instructions given, so that the public understands how a verdict was reached. How’s that going?

Social media has a wealth of people on the left, the same ones who are deeply empathetic to defendants of color, to end mass incarceration, to abolish police, to elect progressive prosecutors, and a litany of other progressive outcomes, who have lost their minds over this trial. There appear to be a few “beliefs” that are so deeply embedded and widely spread that they have become immutable truths in the narrative. They include:

  • The judge is completely biased in favor of Rittenhouse
  • The prosecution is part of the grift, throwing the case
  • The law favors white supremacist vigilantes who kill black people and protesters
  • When a person breaks the law by illegally possessing an assault rifle, crossing state lines, going to a place where violence is imminent for the purpose of “hunting” protesters to kill, the person should not be allowed to avail himself of self-defense

The trial is being broadcast for all to see, for the sake of making this extremely controversial trial public so that people will understand both the law and the facts, and thus have faith that the legal system will produce a fair and proper outcome. Is it working?

As a general proposition, it is a tenet of progressive thought that the end justifies the means, such that the only “good” outcome is a “good” outcome, regardless of what it took to get there. Consequently, a trial ruling, a perception of evidence or a verdict that fails to comport with the desired outcome is inherently bad and wrong, since it’s impossible to be good or right if it doesn’t achieve the desired goal. Lie, cheat or steal, the only thing that matters is that the right outcome is achieved. In this case, the only acceptable outcome would be a verdict that Kyle Rittenhouse is guilty of murder. And that does not look likely at the moment.

When a bad outcome appears inevitable, rationalizations appear out of the ether to explain how things could possibly go so very wrong. After all, a fair legal system couldn’t possibly acquit Rittenhouse because he’s guilty. Not because of what happened, not because of the law, but because that’s the verdict reached in the Court of Social Justice. No matter how many lawyers explain that the judge’s rulings, from the in limine motion to preclude the prosecution from calling the deceaseds “victims” to Judge Schroeder’s admonishing the prosecutor, Thomas Binger, for trying to use Rittenhouse’s exercise of his Fifth Amendment right to remain silent as evidence of guilt, to seeking to use propensity evidence that had been precluded against him, were both correct and within the bounds of normal trial practice, these are seen as absolute outrages by the unwary. Each instance that “surprises” the unduly passionate by not coming out the way their motivated reasoning would suggest becomes another piece of irrefutable evidence of how broken, how “fixed,” the legal system is.

To add insult to injury, it’s not just the unduly passionate activists crying that this is a travesty of “justice,” but it’s being supported by some lawyers of the left and progressive prawfs. And those pundits who are trying to smooth over, at least a little bit, the more outlandishly ridiculous claims of impropriety are being denigrated as closet racists for not joining the chorus of this grave injustice being perpetrated by white supremacists.

Like other well-intended ideas about the law, that having statutes and caselaw online would enable non-lawyers to become more legally literate, more capable of understanding how the law works and why, the public trial has fallen prey to ideology. It’s bad enough that non-lawyers promote and spread legal gibberish among themselves despite the fact that the law is readily available for them to see, to read, to learn, to understand, if they chose to do so. Why bother to know when it’s easier, and far more fun, to just spew whatever nonsense supports your ends?

The Chauvin trial for the killing of George Floyd generated extreme interest, but the trial was far more competently prosecuted, the evidence of guilt was more clear, and the outcome was a conviction, so as much as it raised concerns and attacks against the defense lawyers for that thing the progressive public rejects, defending the “guilty,” it always seemed that the “right” outcome would happen and it did, as the defendant was found guilty.

This time is different. This time, there appears to be a possibility, if not a probability, that the verdict will be not guilty. This time, the rationalizations for why the system is so terrible and cannot be allowed to continue have become ubiquitous. The public trial isn’t doing the trick of allowing people, no matter which side they favor, to see “justice” being done so that they can rest assured that the legal system, with all its warts, works. This time, watching the system work hasn’t given rise to public confidence in its integrity, but to prove that the system is fixed.

And if this isn’t bad enough, there is a threat that the identities of jurors, should there be an acquittal, will be made public so their lives can be ruined if they reach the “wrong” verdict. After all, if an acquittal is bad, then the jurors must be evil and deserve to be the outed and destroyed.

66 thoughts on “The Public And A Public Trial

  1. David Meyer-Lindenberg

    You know what I’d consider doing if I were a partisan legal authority in this situation? Advocating that the jury nullify, and maybe making a push for jury nullification more generally. That way, I’d get to burn the bad guy while still appearing progressive on criminal-justice issues.

    I wonder if it’s a good sign that this hasn’t happened yet (at least as far as I can tell). You frequently raised the specter of juries nullifying “in the wrong direction” because the defendant’s hated, back when I was helping Clark write his jury-empowerment law-review article. Is calling for this to happen a step too far even for committed legal partisans?

    Reply
    1. PseudonymousKid

      Please don’t give them any ideas. Like televising murder trials, discussing this concept does more harm than good. You’re drawing pentagrams, lighting candles, and chanting and it’s making me scared, in other words. I’m too superstitious sure, but what you’re playing with is dangerous.

      Reply
    2. SHG Post author

      If the goal is making sure the side you prefer wins, then the nullification would be the perfect answer. If only you can control which way the jury swings the sword.

      Reply
    3. Bryan Burroughs

      It might be a step too far, but “nullifying” in the opposite direction requires the judge to go along with it. You might win the marginal cases, but how far towards the obviously innocent can you go before judges clamp down?

      Reply
  2. Hal

    There’s been talk that the prosecutor, seeing that he was losing the case after his own witnesses supported the claim of self defense, tried to tank the case/ cause a mistrial asking questions he knew to be out of bounds.

    IANAL, but it seems like “Hanlon’s Razor” applies. What say you?

    Reply
      1. Hal

        I thought this was a blawg about legal questions and, frankly that what I asked was something of a softball.

        Here’s an easy one w/ AFAICT no legal implications. Ginger or Mary Ann?

        Enquiring minds want to know…

        Reply
  3. Derek

    My takeaway is those of us on the left should arm ourselves and be prepared to kill right wingers at protests who threaten us, just like the right are doing to those on the left.

    For instance, the crowd could have easily shot and killed Rittenhouse using the same justification he used to kill — that they felt threatened by an armed person.

    Self defense killing of right wingers might be the only lawful way to prevent right wingers murdering protestors.

    Reply
      1. Paleo

        Yeah there’s an tsunami of right wingers shooting protesters. It’s happened…..well, this once. And I wonder if Derek bothers with the distinction between protesters and rioters.

        Rittenhouse is not a hero. He went looking for trouble and found it. But the best I can tell, as the news from the trial filters through our appallingly awful media, he didn’t just willy nilly start shooting people, only those that attacked him. If he didn’t commit a crime then he shouldn’t be punished for shitty judgement.

        There’s a group of loud people out there for whom everything is about race and politics. Those people are ruining everything for the rest of us.

        Reply
        1. SHG Post author

          Much as the left has ignored/denied the rioting and burning, that provides no basis for a claim of self defense, no matter how bad it was.

          Reply
          1. Hal

            Scott,

            First, I think that your assertion is wrong. I think, certainly as a matter of conscience and common sense, that there is a point where rioting and burning is bad enough that it provides a rationale for self defense. Though, from what I’ve seen from Kenosha that night, it doesn’t seem like this point was reached.

            Second, Paleo’s point about Rittenhouse seems apt. “[H]e didn’t just willy nilly start shooting people, only those that attacked him. If he didn’t commit a crime then he shouldn’t be punished for shitty judgement.”

            The prosecutor has made the point repeatedly, that there were others on the street that night who were also armed w/ AR-15s yet Rittenhouse was the only one who killed anyone. AFAIK, none of the others were chased by a “hyperaggressive” jackass who’d prev’ly threatened to kill them, nor struck w/ a skateboard, nor had a pistol pointed at them by a member of a mob who’d been chasing them.

            At the risk of being accused of blowing smoke up the pants of your bespoke suit, if you were Rittenhouse’s attorney, I’d give odds on acquittal.

            JMO

            Reply
    1. Bryan Burroughs

      That assumes that this was murder. Which is what the trial is supposed to determine. Begging the question, aren’t we?

      Reply
    2. Skink

      Was it murder, or do you assume that to be the case because it fits the result you’ve already chosen? That’s the point of the post and you clearly fit the definition of a law dope.

      This is something of a sacred place, where judges and lawyers discuss the law and whether we can do better to educate non-lawyers about how law works and why. The latter is most important. It’s the process that matters because embedded in the process are the glorious protections afforded individuals against the power of the government. Or the power of the mob, interested only in the outcome it sees as valid.

      There are places for you to learn the how and why of law. This might be one of those places. But it won’t work if you insist on remaining a law dope.

      Reply
      1. PseudonymousKid

        Not to rub it in or anything, but you told me the other day prejudgment wasn’t an issue. I know you meant it wasn’t for the people actually making the sausage, but it is for poor Derek who you are trying to help. You can whack Derek, but what about all the other moles who refuse to stop popping up? If we’re trying to help them understand better, we might not want to broadcast murder trials widely and might do better to spell things out as simply as possible in the hopes they understand just a tiny bit better.

        Derek might be too emotional to reason things out. Murder trials are terrible things and two people are dead. It’s a lot to deal with and some aren’t willing to let the formalistic process take over. Individualism and self reliance suck sometimes.

        Reply
    3. Elpey P.

      Forget the ignorance in that comment about what actually happened for a moment, and imagine how much unfiltered racism it would take to hold that position if a black person were standing where Rittenhouse is. And as has been pointed out, there were black people who took up arms to protect businesses and residents in riot zones.

      Reply
    4. karl william

      what about “killing right wingers at looting? ” There was more than just “protest” going on, and you know it.

      Reply
    5. B. McLeod

      Isn’t self-defense killing of right wingers exactly what got Rittenhouse in trouble? He was with volunteers protecting a car lot owned, as it has developed, by people of color. This so outraged the late Rosenbaum that he threatened to kill several of the volunteers, addressing them with racial epithets, including the dreaded N-word. Eventually that evening, he ran at Rittenhouse, and Rittenhouse, believing Rosenbaum was trying to take the gun and make good the earlier threats, opened up on Rosenbaum, killing him.

      Isn’t Rosenbaum the right-wing kluxer in this picture? As for the others who subsequently attacked Rittenhouse because he had put down Rosenbaum, there has been no evidence of their political alignment, but their actions suggest they must have been aligned with Rosenbaum.

      So, apart from the media portrait of the case, Rittenhouse is actually a “white ally” who stands in peril for helping people of color, and the people he shot appear to be the white supremacist extremists. Count on the press to get the facts wrong.

      Reply
    6. Richard Parker

      When asked to explain the causes of the Spanish Civil War, General Franco’s brother-in-law and former Foreign Minister Ramon Serrano Suner replied: “We simply couldn’t stand each other”.

      If there was a practical way to divorce the country, I would support it. There isn’t.

      Reply
  4. Proudly Progressive

    You lost me when you wrote that progressives believe the end justifies the means. That’s a lie that only a right winger would say.

    Reply
    1. SHG Post author

      If progressives were principled, they would be liberals and would believe that the same principles apply to everyone, whether you love them or hate them.

      Reply
      1. Elpey P.

        And a lot of people who call themselves liberals would have a special hatred for them if they did. This is the problem when adjectives become nouns and nouns become identities.

        Reply
          1. Skink

            No. The new bartender was selling chemicals formerly known as spice. The union says he can’t be fired, but Bruce approved moving him to the tiki bar at the grease pond. The manager that hired him has been sent to his room.

            Sorry, Innkeeper.

            Reply
    2. Paleo

      Victim 1 was out of control on video and attacked Rittenhouse on video which lead to his being shot. Victim 2 was videoed hitting Rittenhouse with a skateboard and trying to take his gun. Victim 3 admitted in court that he wasn’t shot until he raised his pistol at Rittenhouse.

      There are no good guys here. All four looked to stir up shit and got more than they bargained for. Neither you or I would have done what Rittenhouse did and inserted ourselves into that mess full of violent people ( mostly of the left BTW). But having done so, what are you going to do. Let the guy beat you unconscious with a skateboard? Let the guy point his gun at you? No, you wouldn’t.

      So yeah, progressives just want a conservative scalp regardless of what actually happens. Not a right winger, but just observing progressive attitudes here.

      Reply
      1. B. McLeod

        Although this was set up by the media and the somewhat dull prosecutor along those lines, it must have been apparent to the jurors early on that someone got the team jerseys wrong here.

        Reply
      2. Andy

        I don’t know about you, but I absolutely would have done what he did, ie, come out to help protect local businesses from looting, if it happened here. I am connected to various groups nationwide who exist to protect local businesses, provide security for protests, and so on. The media is always dishonest about them.

        Reply
  5. Keith

    “Like other well-intended ideas about the law, that having statutes and caselaw online would enable non-lawyers to become more legally literate…”

    I think we need a version of Blackstone’s ratio for legal publicity.

    “It is better that a thousand twits rant into the metaverse than one non-lawyer lose the ability to become better educated as to why the system is far more complicated than it appears at first glance.”

    Anyway, as I haven’t commented in a while, I thought I’d note that it isn’t because I had a lack of what to say – just that I had a better understanding of the context, which is why I didn’t say it.

    Reply
    1. SHG Post author

      Nothing here suggests that white supremacists, Republicans or even conservatives are virtuous. This is the “tu quoque” logical fallacy, that deflecting to the other side somehow makes your failing less of a failing.

      But then, there is a difference here. Neither white supremacists, Republicans nor even conservatives are marching for criminal law reforms, to abolish the police, to “reimagine” everything. When that’s your cry, you have to own the hypocrisy that goes with it.

      Reply
      1. Kofiman

        Is it? His acquittal for reasons of self-defense was not automatically unacceptable by virtue of it being a criminal defense.

        What I’m not going to do is celebrate the events. If Rittenhouse is acquitted, I expect to see more imitators, among people who think cities are trash hellholes filled with people who don’t count as human. Some of them would kill people, and some of them may well be convicted. That doesn’t mean anyone should be happy about it.

        If Rittenhouse is convicted, then I expect to see him treated as a martyr for the cause, someone who must be avenged, along with a constant stream of agitprop about how such a conviction is an unacceptable restriction of one’s civil rights.. this happened after Chauvin, and Chauvin’s guilt was far more clear. His conviction is also not something I’m going to be happy about.

        What we need is a fair system where Rittenhouse gets a vigorous defense and an equally dedicated prosecutor, and where the result is determined by the facts and the law.

        Reply
        1. PseudonymousKid

          If you’re saying the system isn’t fair, come out with it and try to back it up. I don’t think you can. No one is asking you to be happy, that’s not what the trial is about, but I’m concerned that you would even suggest that it’s a sham.

          Reply
  6. Drew Conlin

    Simple minded non lawyer here. If we don’t respect courts, judges, trials etc and are reduced to mob behavior and rule … we’re screwed.

    Reply
  7. Robert Parry

    Were you to pay attention to the testimony, you’d know politics had nothing to do with it.

    But, if you must align yourself in a partisan manner, opposed to anything pro-Rittenhouse, you’d be taking up arms along side the child rapist Rittenhouse killed, who was actively working to destroy a town of innocent people.

    Rittenhouse was unwise and poorly considered the realities of the situation. But the child-raping rioter was not the good guy here.

    Reply
    1. B. McLeod

      Most of what is going on out in social media is from people continuing to comment on the politicized caricature of this case, oblivious to the facts that have been developed in the testimony. Watching the trial is doing nothing for these people, because they either aren’t watching it, or they are simply disregarding everything that is contrary to the media-spun preview on which they formed their opinions.

      Reply
      1. James

        …”they are simply disregarding everything that is contrary to the media-spun preview on which they formed their opinions.”

        New trail information is still media-spun. People not watching the actual trail may have no reason to change their opinions because they are presented with no reason to change their opinions.

        Reply
  8. orthodoc

    at the risk of being sent down the hall to the question and answer department, I must ask: is there not an organization to which one can formally complain about lawyers who support the unduly passionate with legal nonsense? Spouting bullshit ex cathedra should be a violation of professional ethics. I am thinking of a legal equivalent of the Goldwater rule ….which sort of went out the window…. because Trump. Actually, now that I type that last sentence, I realize my question answers itself. I will send myself to the dunce corner.

    Reply
    1. PseudonymousKid

      Don’t be so hard on yourself, doc. Do be careful about what you call “legal nonsense” because it might be hard to tell what’s what as a layperson. We police ourselves is the simple answer, and yes there is somewhere you can complain, but spouting bullshit isn’t the best basis on which to make a complaint. You’re trying to understand which is far better than everyone else in here today. I’m embarrassed because the dumbest ones are calling themselves leftists like I do. It’s shameful.

      Reply
  9. John Barleycorn

    What’s up with judge’s anyway?

    One would think that if you are gonna roll out the “don’t get brazen with me” line to scold the prosecution, while the jury is away in their cave, it would be delivered with thunderous style, not whimpered from the bench and then followed up with some incoherent ass-covering self-rambling.

    There ought to be a law about that or at least a footnote in them there courtroom rule books….

    Reply
  10. Candide

    I don’t think you can say that Derek Chauvin was convicted so there’s really no issue with the legal system because sometimes it’s not totally tipped in favor of police/conservatives/white people. For one, Chauvin was only convicted after setting off the largest wave of protests in US history. For another, it wasn’t “clearly” worse what he did. If you ask him, Chauvin will say he had to do that to protect his own life or safety.

    I fully expected Chauvin to either walk free or just get manslaughter charges because we don’t live in a comic book world where truth and right always prevails in the end. I thought that the in-built biases of the US legal system, both for the things Derek Chauvin is and against the things George Floyd was, would either free him or give him a minor punishment just to avoid more riots. That he was actually convicted of murder for doing a murder while on-duty as a police officer was shocking, because that’s just not what we’ve come to expect out of the US courts. For every Derek Chauvin getting his due, we can point to another case where the officers weren’t charged (Breonna Taylor) or were acquitted despite damning evidence (Rodney King).

    Reply
  11. Igor Kaplunov

    The ugly truth is that incarceration and punitive retribution has become baked into the culture of this country. It is the thoughts and the attitude that lives in the subconscious. It’s in the tv drama, it’s on the lips of the majority of news anchors. Our intense individualism makes us suck at empathy and ignore how close we are to that situation where prosecutorial or police misconduct affects us.

    Reply
  12. Rengit

    The most incomprehensible criticism of Judge Schroeder I’ve seen is that he’s “old”, “old-school”, or “runs his courtroom like it’s 1980.” What is this supposed to mean? That he doesn’t hold group therapy sessions, tell the lawyers they did a “great job” after every argument, and applaud each and every witness for their bravery in testifying? What is a courtroom of 2021 supposed to look like?

    Reply

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