A Brief History
On November 15, 2021, jury instructions and final arguments occurred in the murder trial of Kyle Rittenhouse, an 18 year old defendant who was 17 years old when he shot and killed two rioters in Kenosha, Wisconsin and wounded another in a clear case of self-defense. After the unrest across the United States regarding police shootings of African Americans, numerous cities experienced protests that turned into riots, complete with vandalism, arson, looting, and violence. In August of 2020, Kenosha, Wisconsin became one of those venues of unrest and the scene of the now infamous confrontation that cost two lives. The resulting media and legal reaction has made a mockery of the American judicial system, while jurors even faced intimidation in the form of being videoed and threatened.
For starters, criminal cases should not be tried in the court of public opinion, but in a proper courtroom. Yet, our irresponsible media, celebrities, and politicians, including serving public servants, repeatedly made inflammatory comments about the 17 year old (Rittenhouse) that traveled “across state lines” to Kenosha with an AR-15 type rifle, claiming without evidence or any supporting statements (oral or electronic) by the subject that the young man was going to Kenosha for the express purpose of killing people. This allegation was made over and over and over… The fact that a 17 year old is forbidden from purchasing a firearm was conflated into the claim that a 17 year old was legally not allowed to possess a firearm, a patently false allegation. In fact, on November 15, 2021, the judge in the case ordered the charge of unlawful possession of a firearm by a minor to be dismissed, and the jury will not consider this misdemeanor charge. (Persons 16 years old or older can possess a rifle or shotgun, but not a pistol or controlled weapon such as a machine gun or “short barreled rifle.” The rifle carried and used by Rittenhouse was not a prohibited weapon.)
The media furor and irresponsible babble coming from prominent persons created a massive impression upon the American public that Rittenhouse was committing crimes by merely possessing the AR-15 and taking it to Kenosha, poisoning the atmosphere in which potential jury members would likely have their opinions already tainted against the young man. In a classic example of hypocrisy and double standard, little if any mention was made publicly by the media, politicians, activists, or celebrities that the protestors (rioters if you will) were carrying firearms as well as incendiary devices and other sorts of weapons. Why not condemn both sides for bringing weapons? Also, Rittenhouse has been repeatedly referred to as a “White Supremacist” when no evidence supports that allegation, nor is there any reason to believe he went to Kenosha with the intention of shooting anyone. In fact, he was there for hours without shooting anyone or pointing his weapon at anyone, using it only when he was personally chased and assaulted first. The irresponsibility of justice officials failing to consider the facts ahead of time resulted in the indictment of Rittenhouse on multiple felonies and misdemeanor charges in response to public outcry instead of sound legal reasoning, an all too common occurrence in the US justice system. Just think of the tremendous pressure on jury members of high profile trials (such as Kyle Rittenhouse, Derek Chauvin, the Rodney King officers, etc) when the constant refrain from the media, celebrities, and politicians is to demand a conviction. Jury members are made to feel responsible for potential riots and violence if they fail to return some sort of conviction, or in some cases fear for their own safety if an acquittal is decided upon.
Ignorance of the law, firearms, and of real life fighting situations also tainted the case of the prosecution of Rittenhouse, another common failing of our justice system. The AR-15 has assumed mythical proportions in the minds of people that know nothing about firearms, and the idea that using an AR-15 against an assailant that “only” is threating you with a pistol is ridiculous in the extreme! Do these buffoons not realize a pistol is deadly force and using a rifle in defense of one’s self is NOT somehow a mysterious legal violation, as alleged by the prosecutor in the Rittenhouse case? Seriously, does this man have any idea of what guns are and what they can do? The prosecutor also implied that Rittenhouse “should have” carefully considered each shot, reflecting after each trigger pull, if the next shot was necessary. Anyone with the smallest amount of firearms and self defense training knows how idiotic this assertion is, and yet, the jury is being told this concept with a straight face. In a real life situation in which a person uses a firearm in defense of their own life, things happen far too quickly for such measured contemplation, and circumstances dictate that shots often must be fired in as rapid a manner as possible to end the perceived threat, something I was taught in police training. (Cops are taught to shoot until the threat is stopped, which may or may not equate to actually being stopped versus the perception of realizing the threat has been stopped.) Prosecutors, judges, and defense attorneys SHOULD be aware of these facts if they are to take part in the legal process of adjudicating instances of deadly force. Sadly, often they are not, a gross failing of our justice system to logically and rationally conduct its business.
Another intensely irritating (to me, anyway) aspect of the American judicial system in general and to the Rittenhouse case specifically, is the tactic of “overcharging” defendants. Say for example Joe shoots his neighbor, Tom, to death one day over some minor disagreement. Investigation reveals ongoing animosity between the two men, so prosecutors decide Joe may have killed Tom in a premeditated manner, or what is commonly considered First Degree Murder. Instead of just charging Joe with First Degree Murder, he is charged with that crime, plus Second Degree Murder, Third Degree Murder, Manslaughter, Reckless Homicide, Negligent Homicide, Felonious Assault, Aggravated Assault, Assault, Aggravated Menacing, Menacing, Disorderly Conduct, Disturbing the Peace, firing a firearm within city limits, reckless endangerment for shooting toward an occupied dwelling, having a firearm within a 1000 feet of a school (a school being half a block away) and every other conceivable charge they can think of. Prosecutors use this technique to intimidate defendants into pleading guilty to at least some of the charges because of fear of being sentenced to massively long jail time for something they may not even feel they are guilty of. The technique works, and most defendants plead guilty to something, giving the prosecutors (and cops, to some extent) a “win.”
Which highlights our next major problem! Justice does NOT mean getting a conviction. Yet prosecutors (and, I am sad to admit, many police officers) often act as though the main goal of “justice” is a conviction. In fact, justice is supposed to be reaching the truth of a situation and having an appropriate, legal reaction to that truth. If the truth and law indicate that a person should not be charged, or if a person should be acquitted, then we have achieved justice and should celebrate that fact, not moan about the failure to get a conviction if such a conviction would be inappropriate. Somewhere along the way, American prosecutors and law enforcement officials have become focused on getting a conviction instead of getting the truth. In regards to this problem, we heartily recommend that prosecutors that withhold exculpatory information and evidence or that maliciously bring charges knowing the defendant is likely not guilty should be severely sanctioned, preferably with criminal charges against them. (See how they like the system!) A case in point would be the Duke Lacrosse Team scandal of 2006.
Legal double standards abound in the American justice system, as they do in many other aspects of our society. The same people that demand the January 6th Capitol rioters be hung out to dry and jailed for long terms, quite innocently decline to condemn BLM rioters that occupied and or destroyed government buildings (such as police stations), including Federal facilities. Why cannot we as a public condemn and consistently prosecute ALL rioters that destroy property and commit acts of violence? Political expediency? That is just WRONG! If all people are to be treated equally under the law, then we must all strive to consistently apply those laws to all cases and not merely those cases in line with our political views. The unfortunate man who was grievously wounded by Rittenhouse (Gaige Grosskreutz) had, by his own admission in court, pointed his pistol at Rittenhouse before Rittenhouse shot Grosskreutz. In an instance of extreme hypocrisy, Grosskreutz has not been charged with carrying his pistol illegally, though in fact he was indeed not carrying that firearm legally! Yet Rittenhouse was originally charged with illegally carrying the AR-15 when he was not actually breaking a law. Also, hypocritically, Rittenhouse was accused of breaking the law by pointing his rifle at people or “in the direction” of someone, while Grosskreutz has not been charged with pointing his pistol at Rittenhouse. Such inconsistent application of the law is indeed injustice, a regular occurrence in American legal proceedings. Similarly, in a case of ARMED protestors trespassing on private property in Missouri (2020) an adult pair of homeowners were accused of pointing loaded firearms at the menacing trespassers to discourage those trespassers from attacking the private residence of the gun wielding couple. The couple were charged with felonies and later pled guilty to reduced charges. No charges were filed for the menacing trespassers who had broken down a gate to gain access to a private drive/street.
Another sad commentary on the so called “justice” system of the United States is the gross discrepancy in legal representation based on economic standing. Rich people (think OJ Simpson) can afford the finest celebrity attorneys, while poor people (often persons of color) are left with court appointed attorneys that rarely put together a coherent case for the defense, let alone wield the pull of their own celebrity on the court system and influence on the jury. Compounding this problem, we even witnessed a discrepancy and double standard in social media driven voluntary funding of legal defense when some defendants are allowed to raise money online while others are cut off by online donation agencies such as GoFundMe. (In fact, the witnesses against Derek Chauvin in the George Floyd murder case amassed a whopping $750,000 in donations to help them convict Chauvin of the murder of George Floyd! Chauvin’s defense fund on a different platform raised a paltry $15,375.) Meanwhile, a GoFundMe account for a George Floyd Memorial raised over $13 million, a record for such crowd funding drives. (While Floyd should not have been treated quite the way he was treated by Officer Chauvin, the fact is Floyd is not a martyr to any social cause or some sort of minding his own business citizen but was a miscreant that was a convicted felon and had just committed a felony when Chauvin and the other officers tried to take him into custody.) Chauvin was unable to afford an attorney for an appeal he intended to file after being refused a public defender for his appeal. (He eventually found an attorney to represent him,) During his unsuccessful defense against the charge of murdering George Floyd, Chauvin was represented by an attorney from his local police union, which was presented to the public as a “million dollar” legal fund, without the context that this fund was NOT merely for the defense of Chauvin but the extent of the fund to cover all member police officers. The difference in quality and quantity of legal defense when gross differences in money spent on lawyers is clearly in favor of those with money. The lawyer for one of the officers involved in the Chauvin/Floyd case said per a Fox News article, “Lane’s defense attorney, Earl Gray, told USA Today that defense lawyer up against prosecution by the state and federal government is a “David and Goliath” scenario, with the defense as the “underdog.” Therefore, the $1 million in funding will help the defense offset the vast resources already available to prosecutors, including both funding and investigators. Chauvin also suffered the damning concoction of public commentary by the media and politicians (including President Joe Biden!) who demanded a conviction in the case while the trial was still ongoing, not to mention internet trolls that created false messages that Chauvin was a racist White supremacist. How can anyone get a fair trial under these circumstances? Not only does GoFundMe have a double standard of refusing to allow those accused of committing acts of violence the opportunity to raise funds, it seems they are selective about exactly whom they apply that “rule” to, inconsistently denying people like Rittenhouse but allowing other accused people of funding. Additionally, there is a gross inconsistency and double standard in what other social media sites (Facebook and Twitter, for obvious examples) allow and disallow on their sites, claiming to deny haters the opportunity to post violence inducing posts and yet refusing to remove blatant violence inducing posts by BLM supporters and others. This skewed social media platform has the potential to grossly influence the course of criminal cases, let alone inducing violence.
Another aspect of the failure of American justice is a topic we have touched upon in the past, that of traffic enforcement cameras. Sure, you can fight a ticket you are issued for an alleged red light or speeding violation, but realistically that is not a process any sane person would go through. Having to report to traffic court, wait for hours, and then be rescheduled for a later date means missing a couple days of work and tremendous inconvenience that few people would ever consider, leaving us at the mercy of a system rigged to make money, NOT to enhance public safety. In fact, such systems benefit private companies, not an end result intended by the justice system. Inaccurate speed devices and “red light” cameras combined with yellow lights changed to display the yellow (amber) light for a shorter time in order to trap motorists into “violations” are a despicable misuse of alleged “law enforcement.” For that matter, cities and other jurisdictions that base police overtime for special details to write as many tickets as possible makes police officers have an incentive to write tickets instead of using traffic laws to protect the public. Some jurisdictions use part-time traffic cops merely to write tickets for revenue, and only those part-time officers that “produce” are given the work time, creating an unsavory condition that calls into question the legitimacy of such citations. (We are not fond of having part-time police at all, anyway.) While we are at it, private prisons are another self-serving institution designed to make money at the expense of the incarcerated. Please say NO to private prisons!
While many have repeated the mantra that the American judicial system may be flawed, but that it is still the best in the world, they miss the point that drastic reforms are necessary! When it comes to justice, just ok is not good enough. We must always strive toward a more perfect system and do so with the aim of equitable justice for all citizens, regardless of race, creed, color, political leanings or economic situation. Feel free to offer your advice as to how we can achieve this lofty goal!
Question for students (and subscribers): What do you think of the US justice system? What improvements would you recommend? Please let us know in the comments section below this article.
Your readership is much appreciated!
For more information, please see…
Roth, Mitchell. A History of Crime and the American Criminal Justice System. Routledge, 2018.
Stuntz, William. The Collapse of American Criminal Justice. Belknap Press (Harvard University), 2013.
Here are also some insightful analyses of the prosecution and defense’s closing arguments in the trial of Rittenhouse:
The featured image in this article, a photograph by Lightburst of a Kyle Rittenhouse supporter in Kenosha, Wisconsin standing near Bradford High School hoping to get a glimpse of President Trump’s motorcade, is licensed under the Creative Commons Attribution-Share Alike 4.0 International license.