Two trials are underway in two different courtrooms in two different parts of the country. Both of them involved people who killed other people. One defendant killed two people. Three defendants killed one person. In neither case are these basic facts in dispute. The question before the courts is whether they murdered people. On Wednesday, there were ominous portents from both courthouses.
In Kenosha, Wisconsin, at the trial of tourist vigilante Kyle Rittenhouse, the judge seems to be auditioning for an Arrested Development reboot. In Brunswick, Georgia, jury selection in the trial of the three men accused of murdering Black jogger Ahmaud Arbery took a severe turn into 1957. In neither case are these developments auspicious with regard to justice for the dead people.
In Kenosha, Judge Bruce Schroeder is four days into the Rittenhouse trial and he’s already drawn national attention to his eccentric manner of running it. It began when he forbade the prosecution from calling the dead people “victims,” but allowed the defense to refer to them as “rioters” and “looters” if they can prove the people shot were committing those offenses that night. He enlivened voir dire by playing Jeopardy! with prospective jurors, assuring them that he was COVID-free, and engaging in jolly banter that not only was ill-suited to a courtroom, but was ill-suited to last call at the 19th hole at any public golf course. From the AP:
One potential juror told Schroeder he had nasal surgery scheduled in 10 days. The judge asked him, “What would you rather do, be here with me or have your nose operated on?” The man responded: “I’ll be honest with you, I’m not looking forward to it.” The judge laughed and said he would take it under consideration.
On Tuesday, he defended his conduct with a howling rant against “the media” out of the presence of the jury. He went to great lengths in defending his decisions in a 13-year-old case in which a murder conviction was tossed because, according to the Wisconsin Supreme Court, Schroeder had allowed tainted evidence to be admitted during trial. Quoth Schroeder:
There are people on the media, on reputable sites, that are saying things that are totally bizarre.
To be fair, he had us there.
Finally, Schroeder explained the hearsay rule to the jury with a lengthy disquisition on the trial of St. Paul in a Roman courtroom. This is a guy who likes being live-streamed.
On Wednesday, as the trial actually began, the action centered on a number of videos taken of the events in Kenosha the night that Rittenhouse killed two people and wounded a third in the middle of the disturbances touched off by the police shooting of Jacob Blake. (The events seem to have been well-covered by dozens of amateur videographers.) But the real lawyering occurred as the two sides clashed over the official FBI video taken from a helicopter above the scene. From the Milwaukee Journal-Sentinel:
Howard also introduced an enhanced clip of infrared aerial surveillance footage from the FBI. The clip was enhanced with markings to highlight Rittenhouse and Rosenbaum's moments before the shooting. It's meant to support the prosecution theory that Rittenhouse was chasing Rosenbaum, before they swapped roles and Rittenhouse ran from Rosenbaum. On cross-examination, defense attorney Mark Richards revealed the same video with the defense's own enhancements, in different colors, that he says shows Rosenbaum lying in wait.
The defense threw long on the FBI video, arguing that the Bureau had not shown all the footage taken from the helicopter that night, and intimating that there was a cover-up underway.
Binger argued the plane's tail number was irrelevant. Richards said the defense needs it to refine its records request from FBI, which has so far rebuffed its attempts to [get] "the rest" of the video, at one point telling them it no longer exists. "I can't believe the FBI is doing surveillance of multiple homicides and gets rid of the video. That's preposterous," Richards said. Assistant District Attorney James Kraus called Richards concerns "faux outrage," and that two video discs the office turned over to the defense is hours of surveillance video, and everything prosecutors got from the FBI.
Meanwhile, down in Georgia, a jury was empaneled in the trial of Gregory McMichael, his son Travis McMichael, and their neighbor William “Roddie” Bryan in the killing of Ahmaud Arbery, who was jogging through their neighborhood. The case will be tried before a jury of one Black citizen and 11 white ones. This was so obvious a development that even the trial judge took notice, not that he thought himself capable of doing anything about it. From the Guardian:
Prosecutors had urged Judge Timothy Walmsley, who is overseeing the trial in south Georgia, to reverse the strikes of eight Black potential jurors, whom they said had been intentionally targeted over race. A landmark 1986 US supreme court decision in Batson v Kentucky ruled it unconstitutional for potential jurors to be struck solely based on race or ethnicity. But Walmsley, while acknowledging the apparent “intentional discrimination”, cited limitations spelled out in the supreme court precedent and pointed to defense lawyers’ justifications, which did not mention race or ethnicity.
The law, in these specific cases, is being more of an ass than usual.
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