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We have had some animated discussion on this blog about whether the trial of Kyle Rittenhouse was “fair,” since he walks away a free man despite murdering two men and maiming a third.
Paul Butler, a law professor at Georgetown University and a contributing columnist to the Washington Post, wrote on this subject today:
Kyle Rittenhouse beat his case because he put on the best defense money can buy.
Don’t believe the hype that Rittenhouse, who was prosecuted for homicide after shooting three people at a Black Lives Matter protest in Kenosha, Wis., in August 2020 was acquitted because self-defense cases are tough for prosecutors to win. More than 90 percent of people who are prosecuted for any crime, including homicide, plead guilty. The few who dare to go to trial usually lose — including in murder cases.
Rittenhouse’s $2 million legal defense funds enabled his lawyers, before his trial, to stage separate “practice” jury trials — one in which 18-year-old Rittenhouse took the stand and one in which he did not. The more favorable reaction from the pretend jurors when Rittenhouse testified informed the decision to let the teenager tell his story to the real jurors. His apparently well-rehearsed testimony was probably the most important factor in the jury ultimately letting Rittenhouse walk.
All that money also allowed Rittenhouse’s lawyers to retain O.J. Simpson’s jury consultant — and arguably her skills helped the defense win the same “not guilty” verdict. Now, in the eyes of the law, Kyle Rittenhouse is just as innocent of homicide as O.J. Simpson.
Most criminal defendants cannot afford those kinds of resources. Rittenhouse, raised in a working-class family, could not have either but for influential people such as former president Donald Trump and Rep. Matt Gaetz (R-Fla.) acting as his cheerleaders.
On Monday night, Rittenhouse — in the tradition of dancing with the one who brung you — will be interviewed by Fox News host Tucker Carlson. Regardless of whether Rittenhouse wants or deserves to be, he is now the poster child for reactionary White men who seek to take the law in their own hands, who want to patrol Black Lives Matter protests with assault weapons and who think that violence is a legitimate form of political discourse.
Some people have questioned how this case, in which a White man killed two White men and severely wounded another, implicates race. But it is impossible to imagine the right embracing the cause of a young Black man who brought a semiautomatic rifle to, say, a “Stop the Steal” rally and ended up killing two people and blowing the arm off another. For Rittenhouse’s supporters, his Whiteness is an integral part of his appeal.
Here’s where I am supposed to say that the issue is not that Rittenhouse had the funds to bankroll his defense but, rather, that other accused persons should enjoy that same benefit. To be sure, I do wish that each of the 10 million-plus people arrested in the United States every year — most of whom are poor people of color — actually were extended their constitutional right to effective assistance of counsel. Too many are forced to rely on underfunded public defenders or overburdened appointed lawyers — no match for the prosecutor’s budget.
Still, I’m okay that not every armed White man who kills people while playing the role of a wannabe cop gets millions of dollars to turbocharge his privilege. I am glad that the defense is not as well-financed for the three men on trial for murder in Georgia after they killed Ahmaud Arbery as he jogged through their neighborhood.
When defendant Travis McMichael took the stand, his testimony was not nearly as smooth as Rittenhouse’s — perhaps because McMichael did not have as many chances to practice. Indeed, McMichael, testifying about how he, his father and a neighbor hunted down a Black man and demanded that he stop and justify his presence on public streets, sounded like a slave catcher. This was fitting because empowering White civilians to apprehend runaway slaves was the origin of the Georgia citizens’ arrest law — since revised — that is the linchpin of the defense.
That defense appears to be floundering. Maybe that is why, with closing statements scheduled for Monday, the lawyer for defendant William “Roddie” Bryan reportedly asked prosecutors if his client could cop a plea.
All criminal defendants have a right to spend as much money as they want on their case, but it’s a fanciful right for most defendants of color. Let them eat cake, and let them hire jury consultants. There is nothing wrong with begrudging all the resources Rittenhouse was provided to fight his case when those resources are a product of his Whiteness. Maybe that’s not the high road, but the high road is not leading to equal justice.
In the Georgia trial, in a sign of its confidence, the prosecution reportedly turned down Bryan’s late request for a plea. Perhaps if those defendants had Kyle Rittenhouse’s kind of money, things would be going differently. I am glad they don’t.