Below is my column in the Hill on the aftermath of Rittenhouse verdict and how the jury functioned as design to rule on the evidence and the law rather than public passions. Many have called for self-defense laws to be curtailed in light of the verdict. We can certainly have that debate. However, this jury was tasked with applying these facts to existing law. They did not have the luxury of reframing the legal standard to achieve their own concept of justice.
Here is the column:
The aftermath of the Kyle Rittenhouse verdict is a lesson in unrequited rage. After a jury of 12 citizens in Kenosha, Wis., acquitted Rittenhouse on all charges, politicians and media figures lashed out at the judge, the jury and the entire legal system.
Like our politics and our media, the legal system has become a vehicle for collective rage; there is no room for doubt or deviation from our predispositions. Yet in denouncing “vigilante justice,” pundits and politicians seem to be advocating for a form of mob justice.
The difference between vigilante and mob justice? Perspective and numbers.
For some, Rittenhouse running down Sheridan Road in Kenosha with his AR-15 is a vigilante. For Rittenhouse, people chasing him with guns and chains is a mob. Neither involves actual justice, which is what juries mete out through the dispassionate application of law and facts.
Most of us — including his defense counsel, following the verdict — were critical of Rittenhouse and his decision to take his AR-15 to a riot. However, the trial revealed key facts that sharply diverged from past media reports. For the first time, the public was not reading facts filtered and framed by the media. In a great demonstration of the value of cameras in courtrooms, the public could reach its own conclusions.
It turned out that Rittenhouse was not an “outsider” but someone with long, close ties to Kenosha. He spent much of that fateful day in Kenosha cleaning graffiti from the walls of the high school and was asked by a business owner to protect his property that night. He did not chase down his victims and shoot one, Joseph Rosenbaum, 36, in the back as Rosenbaum attempted to flee. Instead, he was attacked by all three men he shot, including one who pointed a gun at his head. Rosenbaum, a convicted child molester with a history of mental illness, threatened to kill him and others earlier.
Yet the “white supremacist” narrative was a “fact too good to check” by the media, which almost uniformly failed to report on facts supporting the claim of self-defense.
Within days of the shootings, then-presidential candidate Joe Biden referenced Rittenhouse as a “white supremacist” despite no evidence supporting that widely repeated claim.
Likewise, when the judge ruled on motions for Rittenhouse, he was declared a racist. When the jurors ruled for Rittenhouse, they — including a black juror — were declared to be racists, too. When Rittenhouse was allowed to go free, the entire legal system was denounced as racist.
Other leaders went further. New York Mayor Bill de Blasio called the verdict “disgusting” and a victory for “violent extremism from within our own nation.” Former New York Gov. Andrew Cuomo denounced the verdict as “a stain on the soul of America” and an example of “supremacist vigilantism.” (Cuomo, soon to be a criminal defendant in his own trial, may want to consider how mob justice could play out in his case.) Declared Rep. Cori Bush (D-Mo.), “The judge. The jury. The defendant. It’s white supremacy in action. This system isn’t built to hold white supremacists accountable. It’s why Black and brown folks are brutalized and put in cages while white supremacist murderers walk free.”
For Bush and others, it is just that simple: Jurors selected at random were racists because they failed to convict a white defendant who shot three white men.
MSNBC legal analyst and Georgetown law professor Paul Butler — who previously described the trial as “white supremacy on steroids” — said the verdict is a message that “vigilante justice prevailed.” MSNBC posted an opinion blog headlined “Kyle Rittenhouse Trial Was Designed To Protect White Conservatives Who Kill.”
Some were not satisfied to simply denounce the jury or judge as racists. Former NFL quarterback Colin Kaepernick declared that this was the final proof of a “system built on white supremacy” that “further validates the need to abolish our current system.” What appeared infuriating to Kaepernick about Kenosha was the absence of mob justice, not a victory of vigilante justice: Rittenhouse personified all of our social ills and had to be punished, sentenced to life in prison on the basis of popular opinion.
That, of course, would transcend evidence or law. It would be a system based on demand, not deliberation — the very definition of mob justice.
What is most concerning is the involvement of many in the media in this movement. We live in the age of “advocacy journalism,” in which figures such as former New York Times reporter Nikole Hannah-Jones are lionized for declaring that “all journalism is advocacy.” Stanford journalism professor Ted Glasser has insisted that journalism must “free itself from this notion of objectivity to develop a sense of social justice.”
For legal analysts, this often means “freeing” ourselves not just from objectivity but from the criminal code. Indeed, after the jury failed to convict as demanded, House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) called for the Justice Department to investigate the “miscarriage of justice.”
In this case, the legal question under Wisconsin law was neither complex nor confusing: “A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person.” Lethal force is allowed if “the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.”
Each use of force by Rittenhouse was preceded by attacks by at least four men. The jury simply had a reasonable doubt that Rittenhouse acted without a reasonable belief that he faced great bodily harm.
Not surprisingly, those facts often were not given as the context for legal analysis. Instead, more amenable hypotheticals were trotted out. After the verdict, MSNBC legal analyst Joyce Vance explained that the verdict was “something akin” to “saying if you go into a bank and rob it and people are trying to apprehend you, you can then shoot your way out and claim self-defense.” Except that Rittenhouse was not robbing a bank when he was attacked; he was not doing anything illegal in guarding a business at the owner’s request or walking down the street. The jury decided that the men he shot were not “apprehending” him but, instead, were attacking him without provocation.
The facts of the case are now as irrelevant as the verdict, however, because we are a nation addicted to rage — and rage does not allow for doubt. In the minds of some, Rittenhouse was a vigilante, so his acquittal was vigilante justice. However, swapping mob justice for vigilante justice lacks the same critical element: justice.