What makes a trial fair?
Madison, Wes. At one point, the 18-year-old defendant in the murder stood behind the sitting judge in black and peered over to review the evidence. Another day, on Veterans Day, the judge led the jury and others in the courtroom to the applause of the veterans just as a defense witness who served in the military was about to testify.
As the case drew to a close, the judge allowed the defendant to draw numbers from the drawing cylinder to determine which jurors would serve as a surrogate—creating the appearance, however small, that the defendant was helping to run his trial.
As Kyle Rittenhouse’s trial began in Circuit Judge Bruce Schroeder’s Kenosha courtroom, moments of apparent respect for the defendant have curiously shocked many observers as to how often the murder proceedings are conducted. Schroeder addressed some of those remarks on Wednesday, saying “people should trust the outcome of the trial.”
He described some coverage of the case as “scary”.
Schroeder, Wisconsin’s longest-serving circuit judge, said he has allowed defendants to draw alternate jury numbers for an estimated 20 years. He explained on Wednesday that he began doing so after a black man’s trial when there was only one black person on the jury and that person was fired after a court clerk directed the juror as a substitute. Schroeder said that while there was nothing wrong with the way the alternative was chosen, the optics looked poor. He has since said he has a near-universal policy of appointing defendants as alternates.
Legal experts said this may be unconventional, but not necessarily wrong. Schroeder said he had no complaints in the case, and noted that those who were dissatisfied were trying to undermine the outcome of the trial.
But if the judge had led the jurors to applause when a proof witness took the stand, making that witness appear more commendable or credible, then surely it would be one of the reasons why defense attorneys should appeal the conviction, noted Robert Weisberg, the college’s co-director for the offender. Center for Justice at Stanford University School of Law. However, the plaintiffs cannot appeal the acquittal.
If nothing else, the discussion about a judge’s behavior has emphasized the importance of how to understand the judicial system—particularly in a high-profile case where the outcome can exacerbate societal tensions over issues such as race, guns, protests, vigilance, law and order.
“It is our hope that the court system and our judges, although human beings, will uphold the role of an impartial arbiter so that everyone gets a fair trial – the defendant and the people – and that we can come to a decision we can all agree on,” said Marie de Vane, federal prosecutor. A former law school teacher at the University of Washington, “Ali Can Project.”
“When people have doubts about this impartiality, it undermines our confidence in the justice of the judgment,” Fan said.
Rittenhouse, a young former police student who faces life in prison if convicted of the most serious charge against him, used an AR semi-automatic rifle to kill two men and injure a third during a night of protests against racial injustice in the summer. The year 2020. Rittenhouse is white, as are those who were shot. The killings came after police shot Jacob Blake, a black man, during a domestic disturbance in Kenosha.
Rittenhouse testified that he acted in self-defence. Prosecutors say he went to the protest looking for a reason to shoot.
Their rights are protected by law, not by prosecutors, and judges must carefully guard them. Legal experts said Schroeder did so appropriately in some cases, such as when he reprimanded Attorney General Thomas Binger for asking why the shootings were not discussed before taking the witness stand. Defendants have the right to remain silent.
But judges should not so obsess over the defendant that it raises questions about the fairness of the trial. Budgeting can be difficult, particularly when the jurist’s decisions are subject to such national scrutiny. Closely aligning with the defendant may lead to a false acquittal or inflame societal tensions, while a clear alignment with prosecutors can lead to a tainted — and ultimately overturned — conviction.
“The judge should be as close as possible to the invisible,” Weisberg said.
Schroeder wasn’t anything but. He laughs a lot, asks frivolous questions to jurors, talks about his difficulty with technology and makes an interesting comment suggesting that he hopes Asian food coming for lunch isn’t stuck in the backlog of West Coast ports. He often quarrels with the prosecution.
The 75-year-old Schroeder, on the bench since 1983, is not known for being soft on the accused. In 2018, a woman convicted of theft was ordered to tell the manager of any store she entered that she was being supervised for the theft.
Schroeder told the woman that “embarrassment is of value in deterring crime”. A government appeals court overturned the ruling.
Some of his pre-trial rulings in the Rittenhouse case also drew attention. He ruled that prosecutors could not argue that Rittenhouse was affiliated with the Proud Boys or that he attacked a woman months before the shooting. Nor will it allow people whom Rittenhouse called “victims” to be referred to.
Facts about the defendant’s background are often excluded from trial if they are not relevant to the charges at hand, and “victims” can be considered a harmful term when the defendant claims self-defense.
On Wednesday, Schroeder said: “How would you like to be tried for a crime? … Is it difficult to use only the term complainant witness, rather than prejudge … Whether there was a victim and whether there was a crime committed?”
Other judgments were even more unusual.
Awaiting trial, Rittenhouse was out on bail. When he moved and failed to update his address – a clear violation – prosecutors sought to have him re-arrested, with an increased bail.
During an investigative hearing earlier this year, the judge refused — and will not share the address of the new defendant with prosecutors, citing defense arguments that Rittenhouse was in hiding because of the threats.
“I hope you’re not suggesting that sharing this with our office will lead to more violence,” Binger said at the time. “I’ve never heard of a situation where information was withheld from my office.”
The optics questions in the Rittenhouse case date back to the moments after the shooting. Soon, a video emerged of Rittenhouse walking by police with his hands raised and his rifle strapped to his chest as witnesses identified him as the shooter. The police did not immediately arrest him, and he later turned himself in.
An officer testified that he did not hear witnesses screaming that Rittenhouse had fired, but in the following days many people wondered if the black gunman had received such hands-off treatment.
Aspects of the trial were similarly noteworthy. At one point, Rittenhouse stood behind Schroeder while reviewing evidence – a moment that happened outside the presence of the jury, but it was nonetheless captured in news photos and seemed remarkable for having a murder suspect so close to the judge.
Phil Turner, a former federal prosecutor who now works as an attorney in Chicago, said he doesn’t believe Schroeder sided with Rittenhouse without justification. He noted that judges’ behavior varies greatly in a system in which they win their seats through electoral politics, not necessarily legal merit.
He suggested that lawyers simply adapt to each courtroom.
“You learn the music the judge plays, and then you dance to it,” he said.
Johnson reported from Seattle. Forletti reported from Minneapolis.
Find AP’s full coverage of the Rittenhouse experience: https://apnews.com/hub/kyle-rittenhouse
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