Saturday, November 13, 2021

Rittenhouse Trial – Is the Judge on Trial Too?

The Kyle Rittenhouse trial concluded this week and will likely go to the jury on Monday. Interestingly, those who are following the case have asked me more questions about the judge than the case itself. Specifically, some have suggested that the judge had shown bias towards the defendant in a way that could sway the jury in its deliberations. 

If you have followed the case from the beginning, you likely have a personal opinion of Rittenhouse’s guilt or innocence—an opinion that was formed prior to the trial itself. I really do not care what that opinion is, but I suspect that it has colored your reaction to the trial strategies, demeanor of witnesses and the actions of the judge.

My goal here is to break down some segments of the trial process and, because I’m putting on my lawyer hat, to do that somewhat dispassionately. 

Let’s start with the rules for this trial. If you read my October 22 post entitled Sex Trafficking and Pre-trial Maneuvers, you will remember that a judge often sets special rules that will apply to a particular trial. In Ghislane Maxwell’s case, as here, there was much discussion about what words may be used to describe the parties involved. In Ghislane’s case, focus was on words such as “victim” and “minor victim.” In the Rittenhouse case, examples are “victim” and “looter.” 

It is immaterial whether or not you agree with what the judge decides before the trial about using those words. Those are the rules. The GOOD news for the lawyers is that they know what the rules will be before the trial begins. That gives plenty of time in trial prep to develop workarounds. 

Preparation for the trial also includes knowing the judge. Although there are generally defined rules for the conduct of a trial, much discretion is left to the judge in controlling the flow of the trial. Judges’ personalities are all over the board. Some are dour and sticklers for detail. Others take a more hands off attitude. Some even have a sense of humor. 

The point is that you know in advance how this particular judge runs their court. Consequently, if you know that particular actions or argumentation techniques bother the judge, you try to avoid them. 

Judge Schroeder who is presiding over the Rittenhouse trial is, to say the least, a character. He also tends to be a bit of a loose cannon, meaning that you can’t predict from one day to another what might set him off. It is what it is. 

I won’t detail here the things the judge has said or done during the trial. Strictly speaking, some of his remarks or actions may have crossed the line of impartiality. That is another example of “it is what it is.” Judges are given tremendous latitude in the conduct of their trials. Verdicts are overturned on appeal only in the most exceptional cases of judicial misconduct. Whether you like Judge Schroeder or not, it is unlikely that an appeals court would find his conduct to be that egregious. 

Back to the trial. As a prosecutor, you knew the special rules and you know the judge. By the conclusion of the trial, you also now have a fairly good grasp about how well the trial went. The prosecutors initially charged Rittenhouse with the severest charges possible, believing that they could prove these charges beyond a reasonable doubt. At the end of the trial, where we are today, they have the opportunity to review whether they gauged the strength of their case correctly.

From all appearances, the prosecutors aimed a bit too high. This is not unusual. Once a trial begins, it is too late to increase the severity of the charges, so overcharging is a protective measure. What the prosecutors CAN do at the end of the trial is to request jury instructions that cut back on what they are requesting. I anticipate this is what they will do on Monday. 

The jury will likely be presented with a number of guilty options. On a scale of 1 to 10, the prosecutors are probably hoping that the jury will convict at a level of 7 or 8. These guilty options prevent the worst case scenario for a prosecutor—the choice between all or nothing. 

The saddest part of the Rittenhouse case is that, regardless of the outcome, many people will be outraged. Confirmation bias. And Judge Schroeder? He’ll conduct another trial next week that virtually nobody will notice.

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