November 29, 2021

The Kyle Rittenhouse Case Is Putting the American Justice System on Trial

If this is what they do in a high-profile case, just imagine what goes on when they’ve got a poor defendant with a public defender who is juggling hundreds of cases.

A Wisconsin jury on Friday reached a verdict in the trial of Kyle Rittenhouse, finding the teen not guilty on all counts, including homicide charges. 

America loves nothing more than a scandalous criminal trial. And this year, the people are getting two: Rittenhouse’s, and defendants Travis McMichael, Gregory McMichael and William “Roddie” Bryan (the men accused of murdering Ahmaud Arbery).

Both trials have already made their share of headlines, but Rittenhouse’s went first and has dominated the news cycle in recent weeks.

It’s safe to say that most Americans had their minds made up about Kyle’s actions before the trial even began, and those opinions were split down political lines.

Progressives were inclined to believe the mainstream media narrative, which was that Kyle illegally crossed state lines with a gun looking for trouble in the midst of the Black Lives Matter protests in Kenosha, Wisconsin last year. They held that he was acting as a vigilante and shot three people (killing two) in the process. Certainly guilty. Maybe even a white supremacist, though it’s worth-noting that the people he shot were all white. (I can’t explain their narrative, just report on it).

Conservatives saw a different scenario altogether: a young man who was determined to defend his community when it was overwhelmed by violent rioters and who only shot in self-defense. They’ve also noted that one of the men he shot was a convicted violent offender who was pursuing him at the time.

I’ve worked around the criminal justice system for years, and I learned early on that it’s wise to hold one’s tongue and reserve judgement until all case details are presented. That proved to be the most prudent position yet again, as the Rittenhouse trial has been a wild ride with much of the original narrative being debunked along the way.

Throughout the past couple of weeks, the trial has turned into a bit of a circus. The prosecutor, Assistant District Attorney Thomas Binger, acted erratically and desperately at times, frequently being turned into memes and viral videos that have spread across the internet showcasing his antics in the courtroom as a result.

He was pictured pointing a gun at members of the jury with his finger on the trigger. (This of course breaks both of the basic rules for holding a gun: never point a gun at anyone unless shooting and keep your finger off the trigger unless you intend to shoot. (Ironic for a trial that revolved so much around gun rights and the reckless use of firearms.)

Binger also made several ridiculous statements. He told Rittenhouse, “You lose the right to self-defense when you’re the one who brought the gun.” (This is of course wildly untrue.) And Binger attempted to downplay the danger Rittenhouse was in that evening while being pursued by a man he ultimately killed, Joseph Rosenbaum, stating, “Oh, let me tell you all the awful things Joseph Rosenbaum did. He tipped over a Port-a-Potty that had no one in it. He swung a chain. He lit a dumpster on fire. Oh, and he said some bad words. He said the N-word.”

…that doesn’t exactly paint Rosenbaum as non-threatening.

It also came out during the course of witness testimony that the third man whom Kyle shot (who was not killed) was in fact pointing a gun at Rittenhouse when the 17-year-old opened fire. All in all, the prosecution did nothing to prove Kyle acted in anything but self-defense.

Lastly, the prosecutor committed prosecutorial misconduct—attempting to introduce a question with information the judge had prohibited, and questioning the defendant on his (constitutionally protected) choice to remain silent before the trial. This prompted the judge to kick the jury out of the room in order to dress-down the prosecutor.

For good reason. Prosecutorial misconduct is one of the most prevalent problems in our justice system, and it has been responsible for at least 18 percent of wrongful convictions, according to the Innocence Project. But thanks to qualified immunity it rarely gets punished. And, thanks to the cozy relationship between judges and prosecutors (many judges are former prosecutors themselves), judges frequently fail to call out prosecutorial misconduct when it does occur. In this instance, the prosecutor very well could have caused a mistrial with his actions.

And the prosecutor isn’t the only actor going rogue in this process. Other governmental chicanery has been revealed in the process as well. For example, footage taken by the FBI of the night in question was allegedly “lost” and therefore never turned over to the defense for months before the trial took place. How convenient.

The humiliation of the government’s prosecutors has been thorough, and it has left most Americans marveling at how such a shoddy case ever moved forward. Some have conceded that the facts of the case were not what they were led to believe, including The Young Turks’ Ana Kasparian.

For the Biden Administration’s part, they’ve dodged questions about the President’s claims that Kyle was a white supremacist.

Nothing New Under the Sun

For those of us who’ve worked around the country’s justice system (which many prefer to refer to as a legal system as it is hardly just), this case, while a laughable circus, is actually just another day in our courtrooms.

First and foremost, it is rare for a case to even go to trial—which may be one reason the government’s attorney was so rusty. An estimated 95 percent of cases are now plead out in our system. This means the government rarely has to prove its case, and it means they can persecute, ahem, I mean prosecute far more people than they could if they actually were behaving constitutionally.

Even when defendants do have the money and willpower to insist on their right to a jury trial, they are usually met with the trial penalty. This refers to the fact that defendants receive much harsher sentences when they do go to trial, in large part thanks to the fact that prosecutors will throw harsher charges at them when they won’t play ball.

Additionally, all of the elements of corruption that were present in Kyle’s trial are commonly found throughout those of many others. Prosecutors commit misconduct with impunity. The government frequently hides evidence (known as a Brady violation) from the defense, and the majority of public defenders are too overloaded with cases to even know.

As happened here, the media almost always presents a one-sided narrative of cases—usually acting as the mouthpiece for police and prosecutors. And this narrative can have serious implications on verdicts, as well as the public’s perception of our system.

All in all, the government puts thousands of innocent people in jail as an end result of these kinds of actions.

The Rittenhouse case ought to give all Americans pause over just how much authority and power prosecutors possess. If this is what they do in a high-profile case, just imagine what goes on when they’ve got a poor defendant with a public defender who is juggling hundreds of cases.

It’s Time to Put the Justice System on Trial

Most are familiar with the notion that it is better to let 100 guilty men go free than let one innocent person perish. This pillar was one that our system was supposedly built upon and it comes from the work of the English jurist William Blackstone.

Unfortunately, our founders did not do a good enough job of restraining government power in our system and protecting the rights of the defendant to ensure we lived up to this standard. In fact, we have consistently struggled to bring even our basic Bill of Rights to fruition, with essential rights—like that to an attorney—not even being recognized until 1963.

Voters have not made this better by typically giving unearned trust to police, prosecutors, and judges. And as a result, we now have tens of thousands of innocent people in our jails, prisons, and death rows.

One cannot claim to believe in limited government and continue to support this system or its actors. And one cannot hope to truly achieve the systemic, large-scale reforms we need to rein in government authority if we only care about these injustices when the defendant fits our political profile.

After watching what transpired in the Rittenhouse case, we can hope that Americans will take the lessons they’ve learned here into the forthcoming trial of the men accused of murdering Ahmaud Arbery, which is already rife with its own prosecutorial misconduct from the very beginning.

Until we get in lockstep and demand reforms in our system, we will continue to see such injustices play out time and again, and unfortunately, most of the time, the vast majority of the country won’t even be watching.

This article, The Kyle Rittenhouse Case Is Putting the American Justice System on Trial, was originally published by the Foundation for Economic Education and appears here with permission.  Please support their mission.