Between April and November of this year, Americans were fixated on three criminal murder trials: Derek Chauvin in Minneapolis, Kyle Rittenhouse in Kenosha Wisconsin, and the Georgia trial of three man accused of murdering African-American jogger Ahmaud Arbery.
Issues of race, inequities in the criminal justice system, and laws governing self defense and open or concealed carry laws lurked in the background of all three cases, but the facts and circumstances of each were very different. They should be evaluated in light of their specific facts and laws at issue before predicting they establish new precedents. All three cases were ultimately decided by videos, and all defendants argued they were acting lawfully. The actions and inactions of law-enforcement before charges were filed is a serious issue in all three but were not dispositive of the issues at trial. The cases were decided by the juries, based on the evidence they were shown and the laws on which they were instructed. This is how trials America are supposed to be decided.
I won’t spend much time on the Chauvin verdict, as it was the least controversial of the trials, although the matter of African-Americans dying at the hands of police was the most important issue raised by any of the cases. Chauvin’s defenses were that his choking to death of George Floyd was both necessary and within department guidelines, and that his choking Mr. Floyd to death was not really what killed him. Virtually no one from any political quarter defended this rogue police officer; his cruel and deprived act of murder was seen on video with scores of citizens pleading with him to stop. What makes the trial unique in the annals of American legal history was the more than just an officer being held accountable for their actions. The willingness of fellow officers, from the top ranks to the street officers, to testify against Chauvin may turn out to be the most significant impact of any of these three trials and would indeed be a fine precedent.
The Rittenhouse Trial Was About Self-Defense, So the Verdict Is Neither Surprising Nor a Precedent.
While many pundits declared the Rittenhouse case the beginnings of a new wave of judicially approved vigilantism, this retired criminal defense lawyer isn’t quite so certain. Days after Rittenhouse’s acquittal, a Georgia jury with eleven whites convicted three white men of murdering Ahmaud Arbery in cold blood. The self-defense law in Georgia wasn’t all that different from Wisconsin’s; there is no duty to retreat to the wall before using deadly force, and the Georgia law allow the alleged self-defender to shoot the purported aggressor even as they flee and all danger is gone. (Called “Stand Your Ground” in Florida, the law that allowed George Zimmerman to kill Trevan Martin and be acquitted.) The Georgia killers also had the assistance of a Jim Crow law that allowed anyone to make a citizen’s arrest under the weakest of suspicion. (It was repealed after this case was filed.) The jury didn’t believe there was any reason to arrest Mr. Arbery because there wasn’t. They saw the tape and they heard one of the defendants-the actual shooter-explain his alleged fear that justified deadly force, which they rejected. In the Rittenhouse case, there was also a compelling video and testimony by the defendant, but the video and the testimony helped the defense in Rittenhouse’s case and buried the defense in Georgia.
There’s no question the judge put his finger on the scale and tipped things in favor of Rittenhouse, but it’s not so clear any of it would have made a difference. There wasn’t any evidence presented at trial that Rittenhouse had any particular racial or political animus; we can speculate all we want based on who supports him and who he seems to support, but that wasn’t before the jury. All three victims were white. And yes, there is a built-in prejudice within the criminal justice system that gives greater credibility and respect to a clean cut looking, well-spoken white youth than to someone of a different race or demographic, I have little doubt that a young African-American youth seen carrying a firearm at a demonstration would be stopped by police if not killed, and if a minor like Rittenhouse, at a minimum, the weapon would be seized. Surely, after shooing three people and killing two, it is impossible to believe the police would have released a young African-American male to return home to a different state. It’s by no means assured a mostly white jury would view a young African-American male the same way they viewed Mr. Rittenhouse. These are serious problems, horrendous examples of unequal justice, but they were not facts relevant to whether on that day the defendant was acting in self defense under Wisconsin law. Wisconsin laws on self-defense and open carry of weapons at demonstrations need to be addressed and changed, but that is not the role of the courts; it is up to Wisconsin voters to elect state legislators to change the laws.
One thing that surprised me was that local officials in Rittenhouse’s home town didn’t take any action against the adults who induced impressionable young men like Rittenhouse to take rifles they weren’t old enough to possess, and travel two hours to Kenosha on some bogus property protection scam. A Kyle Rittenhouse doesn’t appear out of thin air; others created him.
I’d also like to see a serious investigation of the Kenosha police who allowed Rittenhouse to walk around with a deadly weapon in the midst of unfolding violence, and then allowed him to go home after the shooting. However important, those issue played no role at trial.
One reason I don’t see the Rittenhouse verdict as ushering in a wave of vigilante killings-in addition to the Georgia verdict — is because they have already been occurring regularly. The neo-Nazis who killed people at prayer in synagogues in Pittsburg and San Diego and in a church in Charleston didn’t need a verdict to inspire them. Nor did the Nazis and white supremacists who were just found liable for death and mayhem in Charlottesville. We can never forget the maniacal mob of Nazis and white supremacists Trump unleashed on the Capitol on January 6. None of those criminals needed a Kyle Rittenhouse acquittal. The Rittenhouse case should be seen as limited to its facts because of the self-defense issue and the favored stature that a young white man like Rittenhouse carries into a criminal trial. But as three racist murders in Georgia just learned, it doesn’t work out the same way when you’re a different defendant under a different set of facts.
The racial issue in the Wisconsin case is too say the least unclear. Rittenhouse traveled almost a hundred miles to carry a firearm in a demonstration protesting the killing of an African-American at the inducement of adults and with the apparent approval of the Kenosha police. The evidence showed he was given a rifle and induced to travel to a neighboring state to protect property against looters. A more mature person might have asked if that weren’t properly the job of local and state law enforcement, but this was an impressionable teenager whose judgment is not the same as an adult’s. (How many times have we defense layers made this argument on behalf of minors charged with felonies?) The victims were all white, and two of them were armed.
The evidentiary stars were aligned for Mr. Rittenhouse before he got even luckier and drew this particular judge and prosecution team. To make matters even worse for their case, the prosecution promised in their opening statement to present a witness who would testify he heard Rittenhouse say he wanted to kill protesters. The problem was that this witness said under oath at trial that he lied and Rittenhouse never made the statement. By the time the jury got the case, it’s inevitable that the prosecution had a credibility issue while the defense lawyers had great credibility with the jury
The Ahmaud Arbery Case Was All About Race
There were racial issues hovering over all three cases, but were front-and-center only in the Georgia trial. Two Georgia prosecution offices declined to file charges in Mr. Arbery’s death. One office falsely said the killing was justified because Mr. Arbery was a burglar, and the second office declined because their elected DA was close with two of the defendants, who had worked in law enforcement. One line prosecutor goes on trial next week for obstructing the investigation in order to avoid charges being filed. This is the kind of justice African-American face when they are murdered in the streets for no reason whatsoever; Chauvin’s conviction was a rare instance of a white police officer held accountable for murdering an innocent African-American. There was a clear racial component to the Georgia trial, and the defendants’ racism was evident to all. They weren’t charged with hate crimes in state court because Georgia has no such statute. (They face a federal hate crimes trial early next year.)
In the Georgia case, there was nothing on the video to suggest any defendant had a rational basis for fearing Mr. Arbery, who in fact was seen trying to avoid any contact with them. There was zero evidence of a crime that justified invoking the racist citizen’s arrest law. (They did not raise this claim until they were charged, and never mentioned it when questioned by police.) There isn’t any doubt the convicted killers were hunting a Black man as if it were a sport. The Arbery family persisted until they found an able and honorable prosecutor and a fair trial before an impartial judge, but the road was rocky. In other words, the verdict in Georgia was a great moment for equal justice, and the commitment of the Arbery family, but the difficult road and the resistance from those who are supposed to help shows there is more work to do.
There’s Still no Trial System Better Than the Jury
Let’s hope that the Chauvin case represents a new page in American policing, where the Blue Wall and the Mafia-like Code of Silence is ending, and racist police will be held accountable bye their fellow officers. Let’s hope that the Georgia verdict results in a deep examination of the kinds of prejudices that almost allowed this case to not be filed. Let’s hope that the reexamination of bad laws like the Georgia citizens arrest law causes more repeals, and leads to changes in self-defense laws and when guns can be openly carried, starting with Wisconsin and Georgia. Self-defense should be exactly what it calls itself, and not an opportunity to kill someone when the danger is gone or there never was any. This probably would not have made a difference in the Rittenhouse case, as there was aggression from both sides, but a more traditional self-defense law in Georgia would have made it much harder for those prosecutors to decline the case.
In other words, the American jury system, with all its faults, still seems to be working. It can surely be improved, and there are needed changes in laws and societal attitudes, but based on the evidence and the laws, looks like these three juries got it right.
