Dear Colleagues,
Throughout the trial of State of Wisconsin vs. Kyle Rittenhouse I received E-mails, calls and text messages relating to a case in which I had no involvement or particular opinion as to the defendant’s guilt or innocence. I do, however, have some observations about the hype and misinformation and fears that violence would again mar the courthouse I worked in for most of my adult life.
To begin, at 100,000 population Kenosha is neither a “small town” or “close knit” as described in some media accounts. Actually, in the three counties adjacent to Lake Michigan between Cook County (Chicago) and Milwaukee County (Milwaukee) there are more than a million residents living in dozens of communities often separated by little more than a sign.
Like much of the country, Kenoshans had divided opinions about whether the defendant was guilty of homicide or exercising his privilege of self-defense. Asked for mine I uniformly replied it was up to the jury to hear all the evidence at trial and make a decision. I wasn’t at the scene or privy to the investigation.
What frightened me more than the prospect of violence – the Wisconsin National Guard was standing by when the verdicts were announced – was the shameless public display of people trying to usurp the jury’s function. Thankfully the protests this time were almost entirely peaceful, but it seemed almost like anarchy for people who never heard all of the evidence to be picketing and shouting about what they wanted the jury to do. The cacophony could be heard inside the courthouse. It was scary to see freedom of speech and assembly colliding head-on with the right to a fair trial by an impartial jury, some of whom during voir dire admitted concerns for their own safety.
Likewise annoying was the media frenzy, usually by ill-informed reporters, accompanied by misinformation and blind speculation. Any seasoned trial lawyer will say that juries are unpredictable. Cases that seem like a “slam dunk” sometimes result in acquittal and you win cases you never thought you had a prayer of winning. My experience from three decades of prosecuting cases in that courthouse was that juries tend to take their responsibilities very seriously and seldom rush to judgment in complicated cases yet there were dozens of news stories speculating about what was “taking the jury so long.” And then there were comments – many off-base – about the presiding judge.
A Saturday Night Live script portrayed Judge Bruce E. Schroeder as a jurist who puts his thumb on the scales of justice to unfairly benefit defendants, a suggestion that left the local legal community aghast. Wisconsin law allows defendants one opportunity to request that another judge hear their case. Judge Schroeder is one of the most frequently substituted judges in the state. Many defendants are put off when they are scolded for their misbehavior.
Having tried many cases in his courtroom I know Judge Schroeder does not suffer excuses well and will “hold your feet to the fire” regardless of whether you are a prosecutor or defense attorney. A devout family man, he is particularly concerned about parents setting a good example for youth. One of his favorite expressions is “one good father can take the place of a dozen social workers.” And despite the image of being stern Judge Schroeder’s courtroom is far from “stuffy.” During breaks between cases he’ll engage attorneys and court staff with trivia or Jeopardy questions. In return attorneys, knowing that he is an avid Milwaukee Brewers fan, occasionally pepper arguments with baseball analogies.
On the Friday that the Rittenhouse jury returned its verdicts, I was filling in for one of the family court commissioners, sitting one floor above Judge Schroeder’s courtroom. Thankfully the protests and celebrations outside the building were not violent. Some of the media folks who stayed in Kenosha afterward seemed almost disappointed the peace had been kept.
The two-block lineup of satellite trucks is gone. Left behind is a sense that we have work to do. Those who protested seeking “justice” in reality wanted the jury to call the case their way. In our system juries decide cases based on the evidence at trial and the law upon which they have been instructed – not by how loud or disruptive a crowd gets.