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Trial By Jury Needs No Fixing

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eye on the news

Trial By Jury Needs No Fixing

Outraged by the Kyle Rittenhouse verdict, the Left claims that the American justice system is illegitimate. November 22, 2021
The Social Order
Politics and law

The acquittal of Kyle Rittenhouse on charges of first-degree murder has prompted anguish from commentators on the left, who characterize the jury’s acceptance of Rittenhouse’s self-defense claim as evidence of the corrupt, racist nature of the justice system and America in general. Protesters around the country condemned the verdict’s “white supremacy,” and cable news voices have been unrestrained in denouncing the racism that the trial supposedly demonstrated.

New York mayor Bill de Blasio tweeted, “This verdict is disgusting and it sends a horrible message to this country.” Vice President Kamala Harris said that “the verdict really speaks for itself” and cited her own professional experience in fighting to make the “criminal justice system more equitable.” New York State Attorney General Letitia James, who is running to be governor, made the extraordinary claim that “this is a dark day for our justice system . . . yet another reminder that our system needs to be uprooted and reformed.”

These and other critics of the American justice system, however, did not identify specific flaws with the process of the Rittenhouse trial, except to note that they disagreed with the outcome. Harris appears to think that the problem is self-evident; Attorney General James says that she wants to “uproot” the entire system, but it’s unclear what changes she has in mind. Trial by jury, the right to confront one’s accusers and mount a defense with the assistance of counsel, and the presumption of innocence are essential elements of common law and generally held to form the basis of any civilized system. What happened in the Rittenhouse case that demands a total revolution of jurisprudential norms?

Kyle Rittenhouse and the people he shot were all white, so casting the incident in racial terms seems preposterous on its face; by means of justification for this premise, critics of the verdict have resorted to a counterfactual. Were Rittenhouse black, they suggest, it is inconceivable that he would have been able to offer a credible self-defense plea, much less have survived the fateful night. Bubba Wallace, a black NASCAR driver who was at the center of a high-profile hate-crime investigation, tweeted, “Ha, let the boy be black and it would’ve been life . . . hell he would’ve had his life taken before the bullshit trial.” Wisconsin Lieutenant Governor Mandela Barnes commented, “We have seen so many black and brown youth killed, only to be put on trial posthumously, while the innocence of Kyle Rittenhouse was virtually demanded by the judge.” Similarly, Jumaane Williams, New York City public advocate, also a candidate for governor, compared the Rittenhouse incident with the 2012 death of Trayvon Martin: “A white seventeen-year-old killing protesters with a weapon of war is celebrated and acquitted. A black seventeen-year-old walking the community with a bag of Skittles is criminalized and murdered.”

The comparisons are odious, and these parallels seem suspiciously like the “Whataboutism” that the Left found so objectionable as a rhetorical technique throughout the Trump years. But what of the claim that black killers would have no luck in offering a claim of self-defense akin to Rittenhouse’s? As it happens, numerous such cases exist, and they don’t all wind up as expected. In August 2017, Devon Dunham, who is black, approached Ernest Martin Stevens, a white, 77-year-old volunteer fire chief who was sitting in his pickup truck in a parking lot near his home in Hardeeville, South Carolina, and either asked for a ride or tried to carjack the vehicle. When Stevens began to drive away, Dunham shot him eight times, killing him. Dunham confessed to shooting Stevens but claimed he only did so because he went into a “blind panic” and feared that Stevens might harm him. In May 2021, Dunham was acquitted of all charges by a Jasper County jury that found his claim plausible.

Similarly, in St. Paul, Minnesota last year, immediately following the death of George Floyd, black resident Jaleel Stallings approached a SWAT team, which fired a rubber bullet at him; he responded by shooting back multiple times with an “AK-47 style Mini Draco Style pistol.” He was arrested and charged with attempted murder and multiple charges of assault. He pled not guilty on the basis of self-defense and was acquitted in September.

These cases don’t prove that the American justice system is free of racism; but neither does the Rittenhouse case prove that the whole system needs to be transformed. One can pick and choose individual cases for scrutiny and hold them up as examples of what’s wrong with America, but that’s a divisive practice that elides the fact-finding process that each trial represents. The Rittenhouse trial did not send a “horrible message,” as de Blasio claims, because the jury’s deliberation and verdict concerned only the guilt or innocence of one person in one situation. Though this wasn’t her intended meaning, Vice President Harris is right that the verdict “speaks for itself”—and only itself.

The myth of white impunity and black hyper-criminalization is heady stuff for ideologues eager to promote a vision of America as a place where racism has not abated in the last 100 years, where lynching is still common, and where white people are routinely set free for murder while black people are jailed for failing an emissions test. But our nation of 330 million people has an almost equivalent number of police-civilian interactions annually, and almost none results in arrest, much less brutality or an unjust conviction. Confirmation bias is hard to avoid, for any of us. It gets no easier when elected officials and media figures embrace it as a basis for their worldview.

Photo by Sean Krajacic - Pool/Getty Images

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