A Tale of Two Juries

Posted in: Criminal Procedure

Like the United States as a whole, the American jury system rendered a split verdict last week on race, guns, vigilantism, and self-defense.

In Brunswick, Georgia, a jury convicted three defendants of killing Ahmaud Arbery, a twenty-five-year-old Black man out for a jog. Jurors rejected the defendants’ claim that they acted in self-defense while purporting to make a citizen’s arrest of Arbery for allegedly going into an empty house under construction to commit a burglary.

The jury found Travis McMichael, the defendant who fired the fatal shots, guilty of deliberately intending to murder Arbery. The jury convicted the other two defendants of felony murder, meaning that the defendants caused Arbery’s death while committing a felony such as aggravated assault.

But in Kenosha, Wisconsin, a jury acquitted Kyle Rittenhouse, who had been charged with killing two protesters and wounding a third at a protest rally over an earlier police shooting in the back of Jacob Blake, a Black man. The jury accepted Rittenhouse’s claim that he needed to use deadly force from an AR-15-style rifle to shoot, kill, or wound three people.

Why did one jury convict and the other acquit? Each case was about self-defense, the supposed need for vigilante justice, the right to bear arms, and possible racial motivations. And yet, despite the surface similarities, the cases developed differently.

Consider the following:

In the Arbery trial, the judge did his job and took eleven days to question potential jurors about bias, dismissing those who could not be impartial in the matter. By contrast, the judge in Kenosha completed jury selection in one day, not enough time to question jurors one by one about their impartiality. The examination of jurors was so inadequate that, during the first week of testimony, a seated juror had to be dismissed for telling a racially insensitive joke making light of Blake’s killing.

In the Kenosha trial, the judge betrayed hostility to the state by instructing prosecutors not even to refer to the three people Rittenhouse shot as “victims.” We have no way of knowing whether the jury would have felt differently about Rittenhouse’s actions if the victims had been properly identified as such. But the judge’s Orwellian doublespeak about what to call people shot or wounded by the defendant certainly did not help.

In the Kenosha trial, the jury never got to decide whether Rittenhouse, who was 17 and a minor when he came to the rally carrying a military assault rifle, was guilty of violating Wisconsin law prohibiting minors from possessing firearms. The judge tossed that charge, accepting a hyper-technical argument from the defense that the restriction on minors did not apply to long rifles for hunting. But of course, an AR-15 style rifle is not a long hunting rifle. Had the illegal possession charge been presented to jurors, they may have understood why Rittenhouse was the initial aggressor when he came to the demonstrations heavily and illegally armed, and hence less entitled to argue self-defense. Many judges would have let the jury decide the entire case and considered, after any guilty verdict on the gun possession count, the defendant’s motion to dismiss it.

In the Arbery trial, cellphone video showed that the victim was clearly unarmed. In Kenosha, the one victim who survived testified that he was armed and went chasing after Rittenhouse. The prosecution seemed taken by surprise when its own witness buttressed Rittenhouse’s self-defense claim. In addition, other witnesses supported Rittenhouse’s claim that one of the two men he fatally shot had chased after him down, threatening to grab his gun, and acting erratically.

By contrast to evidence that arguably supported Rittenhouse’s self-defense claim, the prosecution in the Arbery trial demolished one defendant’s claim that that Arbery sought to seize his gun. Travis McMichael, the man who shot and killed Arbery, took the stand on his own behalf. The prosecutor got McMichael to admit that Arbery had not brandished a gun but “just ran.” And yet McMichael shot him twice, missing a third time. The video established beyond a shadow of a doubt that McMichael had no need to use deadly force against an unarmed man.

The difference between the Arbery convictions and the Rittenhouse acquittal fits with what jury scholars called the “liberation hypothesis.” When the evidence is strong, as it was in the Arbery trial, a juror’s own political leanings do not matter, and the evidence determines the verdict.

But when the evidence is borderline, as it was in the Rittenhouse trial, jurors are “liberated” to decide on the basis of their own sentiments and values.

This is why the rushed jury selection in the Kenosha trial mattered so much in the end. The trial judge was aware that views on the Second Amendment and the right to bear arms were likely to influence how jurors viewed a 17-year-old Rittenhouse’s decision to place himself in a volatile situation armed with a Smith&Wesson military assault rifle. But instead of making sure that jurors understood that Rittenhouse, and not the right to bear arms, was on trial, the judge cut off questioning at one point by saying “I don’t care what your views on the Second Amendment are.”

He should have cared. A properly screened jury might still have acquitted Rittenhouse. But the families of his victims—and that is what they were—deserved a trial that did not double as a political referendum on the Second Amendment.

Fortunately, the Arbery convictions tell us that, in a properly conducted jury trial, jurors can speak loud and clear for all of us in rejecting a killer’s view that jogging while Black is a capital offense.

Meanwhile, Donald Trump invites Kyle Rittenhouse to Mar-a-Lago to celebrate him as a Second Amendment hero.

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