Yesterday, there was outrage because Kyle Rittenhouse picked alternate juror names from the wheel and a US Marshal purportedly overheard two jurors refusing to acquit out of fear they would be doxxed after the trial. The former was the judge’s standard practice, of no moment. The latter was obvious nonsense, as there are no US Marshals in Wisconsin courtrooms. But that didn’t stop those who sought reasons to be outraged from being outraged.
Occasionally, a trial happens that captures the imagination of a nation. The Rittenhouse trial is such a case, and it reveals what lawyers, at least those honest enough with themselves and others not to feed into the crazy in the hope of getting a primetime slot on right or left TV, fear. The idea of making a trial publicly available in real time was supposed to enlighten, illuminate, calm those prone to hysteria, by letting the public see with their own eyes how the sausage is made.
For years, this was a foundational argument by those who believed that the publics’ lack of understanding of law was due, in large part, to it happening behind closed doors. Not closed, really, but closed to them. They weren’t in the courtroom, whether because the trial was happening too far away, there weren’t enough seats or they couldn’t be bothered. If only the law, trials and appeals, were available for the public to see for themselves, it would be demystified and people would know that the process was fair. If only.
What was missing from this well-intended push to open the law to the public were two things: First, the public lacked the predicate understanding of, and knowledge about, the law to make sense of it. They didn’t go to law school to learn procedure, and the reasons why it exists. They didn’t have the experience of understanding what ordinarily happens in a courtroom and whether it’s a problem or nothing to be concerned about. Without that background, how is the public supposed to make sense of what they’re seeing?
The second problem was that people have to want to understand, want to see, understand, consider whether the things that may strike them as odd, wrong or weird, are really issues or just a reflection of their lack of understanding and appreciation of what they’re seeing.
These are not insignificant problems. The first can be overcome if the media, pundits and lawyers play fair and honest with the information they provide. While it won’t stop every knee-jerk misapprehension, it can at least provide context that the initial heat generated by what appears to be wrong is barely worth getting hot and bothered by. Unfortunately, this isn’t happening, at least not with sufficient clarity to suffice to make people understand. Indeed, there are some people in the media, lawyers included, who are spewing utter nonsense about things they should, and likely do, know to be false. But they’re invited to make an appearance to do exactly that, spin and lie to feed the outlet’s viewers what they want to believe.
As for the public, they don’t want to know. They want to believe. They want their side to be right and they have no qualms about being fed utter nonsense if it validates their priors, if it puts their tribe on the winning side.
The public has a right to see trials. The Constitution requires them to be public, and it’s the government acting in their stead. This should happen openly and since we have the technology to allow anyone anywhere in America to watch, they should not be denied this right. But anyone who still believes the experiment of allowing people to see with their own eyes “justice” being made will foster greater understanding, better appreciation of how the law works, how trials work, how “justice” is done, is wrong.
It’s not that the theory didn’t have its merits, but that people don’t want to know or understand, even if we gave them accurate analysis. Which, pathetically, too many lawyers don’t. Whether it could have worked, we could have made the public more knowledgeable and engaged with the law had the media and lawyers fought the urge to lie for their side is one question. It certainly would have helped, as opposed to validating the flagrantly idiotic claims that go spinning like endless rain across the metaverse.
But even so, would anybody want to hear something that made them smarter about the law? A decade ago, there was reason to believe they would. Today, the internet makes them stupider about law, and they like it.
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Nailed it.
Getting a glimpse into the engorged outrage glands of “people don’t want to know or understand” has been an ongoing grind.
I thought, “at least Nancy Grace isn’t explaining this to viewers,” but could she do worse than the crowdsourcing?
I think that’s really it. Since the theory was hatched, people have become stupider, and so the effort fails. You can lead a horse to water, but you can’t make it think.
So they may make you feel, but they can’t make you think?
Now I have Thick As A Brick stuck in my head…
Are you sitting on a park bench?
No, but I do have greasy fingers smearing shabby clothes.
Switched careers, now I repair stringed instruments. Underemployed by the way some would recon it, but that’s a comment for a different post.
I too once thought that more information, and access to more information, really would help… and then I scroll a bit on the internet. Perhaps the problem has far more to do with the shifting philosophy underpinning much of contemporary thought. The law, being underpinned with a notion of fixed truth is just incomprehensible to people raised with the idea that truth is fluid.
My son now has three guitars, two basses and a dulcimer.
The media isn’t just failing to help overcome the first problem. It is actively predatory to the point of being a third problem of its own. Anything provided to them can and will be used to stir up the public in bad faith, even if it is completely normal, a total red herring, and/or entirely contradictory to their faux-reformist attitudes. If this current social panic about misinformation were sincere, most news organizations would be banned from social media.
We’re seeing the public (a good chunk at least) act as a brake on the problem of the media here rather than the other way around. Often imperfectly, but sausage is sausage.
From my view in the left front seat of a Crown Vic it’s not so much that people, especially in groups, are stupider. It’s just that they can now broadcast that stupidity to tens of thousands of their peers with the click of a mouse.
Plus, those marginally smarter of the breed can direct that abyss of stupidity toward lining their own pockets. Used cares sales, multi-level marketers and politicians come to mind.
The last production year for the Crown Vic was 2012, old man.
Something, something pot kettle.
Thanks, GD. I learned something and feel a little less stupid.
That said,
Pops, stop bringing up topics that remind me of all the dissonance I have to deal with all the time. I know trials are public and must be open, but I want to restrict how widely they are broadcast anyway to try to avoid all the terrible things I’ve read and heard about what people think of the case. That does mean I’d be looking to curtail rights of others, which doesn’t feel great, but you know how stupid some of the hot takes are. I can’t take it anymore. I have to admit I formerly thought more exposure would be beneficial. I regret my error.
I wouldn’t really try to close any doors or turn off any cameras even if I could, but I’m disappointed that I very much want to. I’ll whack as many moles as a I can with as little as I know, but it won’t be enough.
It’s tough love, PK. You’ll survive.
How do you determine the effect of the publicity of the trial on the public as a whole? The people that are zealots will surely scream and shout for their teams (they are called fan(atic)s for a reason). But what of the others?
I talk to people in real life who seem interested in expanding their knowledge in the ways that satisfy the two criteria above, on a regular basis. Is that something others experience or am I somehow unique? Perhaps like any reader here, I’m a bad example because I fit into a small subset of the people that don’t know but wish to learn, but I tend to doubt it.
Maybe you’re right, but I question the extent to which you don’t see the nods and comments that don’t exist — because someone who learned something didn’t feel the need to scream it into the meta-ether.
(I’ll bank 2 cents for next month)
It’s my anecdotal view. Putting aside the crazies on social media, even the normies who get their news from broadcast networks and newspapers of record can no longer rely on the unvarnished truth or competent commentary.
The fix has been in for a long time.
Alas, who has the time? I’m sure many thought they were going to watch the case unfold. And then, after a few hours of boring motions and objections bringing them no closer to confirming their conclusory beliefs about how this would play out, got back to whatever it is they should be doing or would like to be doing, with their time. There’s a bumper crop of new video games released and new shows on Netflix piling up.
“No bother. I’m sure (INSERT FAVORITE TALKING HEAD) will tell me what to think on the evening talkies.”
Besides, the real courtroom action right now is unfolding in Charlottesville, where the Pro Se ‘Jews will not replace us’ guys who deigned to show up for their trial are being absolutely gored.
Why is it people are going crazy over Rittenhouse but can’t muster much interest in Aurbrey? Could it be because Aubrey is going the way it’s “supposed” to go as far as the “as long as the bad guys are convicted, law is good” crowd?
I dunno man. I’ve been reading SJ so long I forgot why I ever believed my version of ‘Justice’ was a thing, let alone allowing myself to get worked up about it. If you want my opinion, here is the most charitable analysis I can come up with. Taking a big step back from the split-second decisions, in the moments immediately before the baby-faced killer pulled the trigger, Rittenhouse fucked around. I suppose a lot of people believe that means he deserves to find out.
You know far better than I do that while you and the other legal professionals around here have forgotten more about why it is a possible outcome he won’t find out than most laymen will ever know, it doesn’t stop us from having feelings.
I care about your feelings, Jake. The law does not.
Plus bad arguments make better loyalty tests. Good arguments make inconvenient allies.
Not a lawyer, just sleeping with one for 42 years, but this is exactly why I read SHG
I’m sorry, but I’m happily married and will not sleep with you.
That’s a lot of billable hours.
Some people like getting f-ed by lawyers, ok?
They’re called “Pro se litigants”
The irony, if I may be so bold as to use that phrase, is that most people summed for jury duty will do almost anything to get out of it yet will spend hours glued to the boob tube in order to watch a televised trial.
It’s like trying to explain the offside rule to a non-football fan. Or offensive pass interference to a non-football fan. Or why a pitcher in the American League doesn’t bat except if playing in a National League park during the World Series to a non-baseball fan. Or why cricket.
At least most people would admit they don’t understand the rules that govern a sport with which they aren’t familiar before making some grand pronouncement about whether the rule is good for the sport.
Yet with law, reading one tweet about a trial seems to be all the justification anyone needs before giving their opinion about rules that developed out of hundreds of years of jurisprudence. Because law is easy.
Law is sexy. Hard, but sexy.
But not lawyers. We’re not at all sexy.
The issue with lawyers (not representing the parties) who utter the most hackish statements in the media is a real problem for the profession, I think. And though I don’t think we should or could, consistent with the First Amendment, discipline lawyers for this, it should at least be something State Bars talk about. Lawyers who appear in the media (other than those with disclosed connections to a case) or discuss matters online should have an ethical obligation to discuss the law honestly, distinguish between what the law is and what they might like it to be, and not incite the public with false and misleading statements. That should be an expressed professional ideal, because there are way, way too many lawyers who surely know better spreading the most hackish takes in an attempt to confer a short term benefit to their “team”.
I’d wager the difference between now and ten years ago is that ten years ago, many in the media, Nancy Grace aside, had some semblance of respect for how courts operate, legal rights, civil and criminal procedure, etc. But given how #MeToo and the various sexual assault/harassment civil and criminal cases preceding it (Jian Ghomeshi in Canada, Bill Cosby, the Ke$ha/Dr. Luke contract dispute, Stanford swimmer case, and so on) tended to founder or otherwise not turn out “right” at actual trial compared to trial by media, now most in the media don’t care at all for legal procedure, rights, evidentiary rules, the authority of judges, why lawyers do the things they do. So the public doesn’t learn anything from people who have respect for the legal system.
Courts are quite often arbitrary and unfair, they are not entitled to the publics’ respect and have to earn it and keep it like any other institution.
Quite often? Cite?
There are tons of problems with the judicial branch, and yet they beat the hell out of the alternative despite all the failings.
Sure, the courts aren’t entitled to the public’s respect. But if a strong majority of the public prefers trial by media to actual trials, then the public doesn’t deserve respect either. Earning respect is a two-way street.
Perhaps we should also consider the effects of the cameras on the behavior of the lawyers — including the judges.
Like, for example, the elected judges. And even the appointed ones.
We should. Do you think it influenced the trial?
You can’t tell from here. Maybe he is this way in every trial. And I see only the “exciting” moments they put on the news — are you allowed to yell at attorneys? Someone should have told me…. But: those exciting moments may indeed be due to a national audience.
If not in this case, surely in others. I have no doubt that the camera impacts many lawyers, judges, and witnesses. Even lawyers are human, and a few of us are venal. I never allowed cameras. Not even video for the nightly news. Until sentence, if any. The first amendment permits access, to the public and especially to the press. Madison forgot to add the “TV” part. Amen.
Carol Berkman was known to raise her voice once or twice, but I’ve long been concerned that TV cameras in the courtroom distort the players’ behavior. On appeal, too.
1,000,000%
Lawyers stand in front of a judge and jury, working the case to those two, only. Sure, the media reports, but it’s secondhand. It ain’t necessarily believable.
Now do it with the Hollywood lights. It isn’t reported, with all those weaknesses, but eyeballs are on it. You stand there, feeling the eyeballs. Are the arguments of the same tenor? Do the rulings contain the same “stop being a dumbass” warnings? Nope. At least since O.J., And it’s important because it keeps us coloring within the lines. It’s an easy nudge to go from trying the case to a jury to trying it to the masses.
Like so much, it seems good in theory, but practice is so much different.
I’m not sure it’s as doom and gloom as you make it out to be here. If I may be permitted your favourite device, the personal anecdote (and a lot of first person singular pronouns), I submit that I’ve learned a great deal about the law from the interwebs. Maybe I fit into your second caveat of someone who gives a damn about being informed, but it’s not unusual for me to cosy up to an appeals court decision before bed, or to take a dive down one of Bennett’s rabbit holes and need a shower at the end of it. More than one lawyer friend has commented that I’m more knowledgeable than some of their law school classmates, which I know gets me a cup of coffee if I’m willing to pitch in an extra 5bux. I’d never be dumb enough to prepare my own fillings or go pro se, as I’ve been smart enough to see just how much I don’t know, but I’m not fooled by the talking heads at this point. Schroeder’s “victim” ruling was just common sense to me, and I’ve talked more than one colleague off the ledge about that without yet seeing your comments here about it.
My word-murdering point here is that I suspect there are quite a few folks who have been bettered by the interwebs. Maybe not enough to beat back the tide of the blithering idiots who never wanted to be informed anyway, but hey, what hope did you have against them anyway?
Anyway, I figured I would congratulate you on a SJ-trope two-fer today. You got the “PDs as judges ain’t all its cracked up to be” one AND the “Internet didn’t save us all” in the same day. Way to go! I bet you can pull out the “I was gonna post but I chucked four of em the memory hole” tomorrow to complete the SJ hat trick! Keep up the good work and thanks for letting us rubes listen in, maybe I’ll find that damn tip jar for this here bar some day. Gotta keep gas in the Healy!
I get to use my “favourite device” because it’s my blawg. Hit the tip cup. And it’s spelled “Healey.”
There are things in this trial unique to Wisconsin, and this judge. I listened to his explanation of why he has the defendant pick the numbers that determine which jurors deliberate. It immediately made a lot of sense.
All most people know about the law and courts is gleaned from Law and Order or other TV shows. They only bear a passing resemblance to reality and you’re right that the talking attorneys on TV have not done the profession proud in this trial. Something Court TV used to do was have a local attorney, familiar with state law and how that court operated do commentary. That seems preferable to me since laws and customs vary quite a bit.
You don’t have a twitter account or a subscription to the NY Times, do you?
Did you know I have a Court TV mug? It’s a great receptacle for brandy and milk.
I do too, along with a lot of other mugs from various tv and cable outlets. I usually asked for one whenever I did an appearance.
I would take a picture of them (they’re sitting on a shelf), but I would have to turn on my cellphone and then it makes all sorts of unpleasant noises.
Edit: You little thief, you.
Hamilton Burger.
“Incompetent, irrelevant, and immaterial!”
No, I don’t; and I can’t say I want either one.
The prosecution showed a marked misunderstanding of criminal law. It’s unlikely their ignorance was due to what they read on the internet or the papers, since they all went to law school and passed the bar exam.
An educated guess: you’ve either never been to law school or never tried a bunch of cases. Despite your likely lack of education and experience, you know your opinion will be accepted by those that have done both.
You are wrong.
I am educated, but in maths not law. With respect, the legal professional are not a league of superhumans and it doesn’t require a formal legal education to recognize a farce of a prosecution.
And I certainly recognize poor logic and in particular the ad hominem fallacy accompanied by the sneering tone. I am not intimidated.
If you’re going to reply to someone, you should reply to someone. And don’t be so sensitive.