Features Australia

American criminal justice and the media

On the Rittenhouse verdict

27 November 2021

9:00 AM

27 November 2021

9:00 AM

I’ve said it before and I’ll say it again. I am the most pro-American law professor outside the US. I defer to no one in the legal academy in thinking that the US is a force for net good in today’s world. If you think that a world dominated by China or Russia would be better, I think you’re deluded. If you can stretch your imagination into pretzels and imagine a world in which a European Union were dominant – the far-fetchedness here being due to the EU spending basically nothing on defence and to the fact its internal decision-making procedures are patently democratically deficient – well, that too would be a lot worse than one with America as the big dog.

But thinking today’s US is a force for good in the world is not the same as being blind to its faults. And two stand out in particular. One is its criminal justice system, particularly federally. And the other is the current state of its press or media.  Take them in order. For any Australian, Canadian or Brit watching a big-ticket criminal prosecution in the US all you can say is that the system is a disgrace. Prosecutors are hell-bent on conviction without any seeming regard to bigger justice-related issues or to the need for a fair trial or sometimes even the presumption of innocence. This is why federal prosecutions (not state ones) have something like a 99 per cent conviction rate. That, in itself, is embarrassing in my view. American prosecutors considerably over-charge; they offer immunity to any needed witnesses, however compromised; they don’t deal fairly with defence counsel. When all else fails they get you on process offences (see Conrad Black and a list of others) where there was no underlying substantive conviction or offence but you perhaps can be seen to have uttered some relatively minor lie to the FBI, maybe. Boom! They offer you a choice between the book being thrown at you, and at your son, or you plead guilty to this process charge. (See General Michael Flynn on this.)

Well, the exact same sort of politicised (in the small ‘p’ sense) American prosecution was on display in the big case that just reached its conclusion last week. This was the Kyle Rittenhouse verdict out of Wisconsin which received worldwide coverage. For those of you who’ve been asleep with Rip van Winkle the facts are in essence these: during the Kenosha riots triggered by the police shooting of Jacob Black, back during the height of the BLM riots, a 17-year-old, Kyle Rittenhouse, went to the Kenosha riot. He ended up shooting three people, two lethally. Rittenhouse was charged with six offences. Reckless homicide (twice), first degree; reckless endangering safety (twice), first degree; attempted intentional homicide, first degree; and a misdemeanour weapons charge. The judge threw out the last of those six when it became clear that the gun had not crossed state lines, as the prosecutors alleged but clearly knew to be wrong. The jury then delivered ‘not guilty’ verdicts on all the other five charges, any one of which alone would have seen Rittenhouse go to jail for the entirety of his life. Why? Because the jury accepted his ‘self-defence’ plea down the line.

If you followed the trial you will know that one of the three had pointed a pistol at Rittenhouse before he was shot; that the kid had been attacked and hit on the head with a skateboard; that he’d started to flee towards the police who were doing nothing about the riots; that another had lunged for his weapon before he shot.

Let me put it this way. Leave aside the ease with which you can get guns in the US and Rittenhouse looked to have an unassailable defence to all the charges against him. He ticked every box. Yet the jury was brave in bringing back these ‘not guilty’ verdicts, not least because protesters were outside the courthouse with amplified megaphones.

But back to the district attorney or prosecutors. In my view, no Australian, Canadian or British prosecutor would have chosen to bring this case in the first place (not even in ‘let’s get Pell’ Victoria, if I can accentuate the point in that manner). The prosecutors over-charged. They kept things from the defence, including the fact (and they must have known, perhaps encouraged this) that two of the prosecution witnesses were lying – the two Khindri brothers who owned a car sales lot and testified they had never met Rittenhouse and had not wanted help to defend their property. Video footage much later came out showing them chatting amiably with Rittenhouse, footage the prosecution knew about yet still put them on the stand. Prosecutors suggested the rifle was brought across state lines when they knew it hadn’t been (hence the judge threw this one out). They raised matters before the jury the judge had excluded. By the end the prosecution’s case seemed to be premised on the view that Antifa and BLM rioters have the right to take to the streets and when the police opt to do nothing no one else – however stupidly, and it surely was stupid for Rittenhouse to go there – can try to defend threatened properties. If you don’t stand aside and let the rioters do as they please then when they attack you, you cannot defend yourself. Or you will go to jail for life. And be labelled a racist.

Now to the media and press. During last year’s presidential campaign Joe Biden called Rittenhouse a white supremacist, before his trial. There was never one iota of evidence for this claim of course, Rittenhouse being of mixed race and the dead men all being whites. Biden has not recanted and the media and press have not called him on it. In fact, there have been many mainstream media reports claiming the Kenosha riots started when the police shot and killed an unarmed black man, Jacob Blake. But Blake was not killed. He’s still alive. And he has admitted to carrying a knife. And the police were called by the woman he had sexually assaulted.

President Biden, after the verdict last week, said it had left ‘many Americans feeling angry and concerned, myself included’. Barring Fox News no main-stream media in the US has called President Biden (or his son Hunter) on anything, this included. You have loads of other Democrat politicians (from Gavin Newsom to Bill de Blasio) saying the acquittal ‘was a sickening travesty of justice’ and the like. You would not find a criminal defence lawyer who agreed, not in the safety of his or her home. Meanwhile NBC, one of the four main networks, had its cable arm barred from the courtroom for trying to film (and intimidate?) the jurors.

What a mess is the US criminal justice system. The only redeeming feature? The jury system. This was a brave and correct verdict by brave people. My guess is that Mr. Rittenhouse will have a line of civil defamation lawyers outside his house begging to sue CNN and the rest of the propaganda arm of the Democratic Party (aka the media).

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