Judge Schroeder’s decision not to sequester the jurors could be contributing to the prolonged deliberations.
Judge Schroeder’s decision not to sequester the jurors could be contributing to the prolonged deliberations.
W hen you are stubbornly determined to play with fire, you often get burned. Judge Bruce Schroeder is getting burned.
The judge has declined to sequester the jury in the Kyle Rittenhouse case — even after publicity about the case intensified as the prosecution’s case buckled and the defendant testified; even as things reached a crescendo as the judge admonished prosecutors over their misconduct and summations loomed; and even as the jury-deliberation stage brought loud, vile protesting, occasional outbreaks of violence, and frenzied police activity to the courthouse steps.
And now, Schroeder has been forced to take drastic action because the jury appears to have been dogged by the hard-left media outlet MSNBC.
At midday on Thursday, as the third day of deliberations dragged on and there grew a foreboding sense that the jury may be deadlocked over a very straightforward case, the judge announced that he had banned MSNBC from the courthouse. Schroeder elaborated that on Wednesday evening, a man who identified himself as affiliated with the network, James J. Morrison, was stopped by police as he tracked the jury at close range, running a red light in that pursuit. The jurors were in a large vehicle with covered windows, from which they have been escorted to and from court.
Schroeder added that Morrison claimed to have been acting under the direction of an MSNBC producer in New York. MSNBC’s coverage has been blatantly anti-Rittenhouse. The judge said police believe Morrison was trying to photograph the jurors. He was briefly detained and released after the issuance of various traffic citations.
In court on Thursday, Schroeder asserted, “I have instructed that no one from MSNBC news will be permitted in this building for the duration of this trial.” “This is a very serious matter,” he continued “and I don’t know what the ultimate truth of it is, but absolutely it would go without much thinking that someone who is following the jury bus — that is an extremely serious matter and will be referred to the proper authorities for further action.” (It is quite serious indeed, as our Dan McLaughlin explains.)
NBC News subsequently issued a statement, saying: “We regret the incident.” The network, apparently referring to Morrison, explained that a “freelancer received a traffic citation,” over a “violation” that “took place near the jury van.” NBC, which says it will cooperate fully with law enforcement’s investigation into the matter, maintains that the “freelancer never contacted or intended to contact the jurors during deliberations, and never photographed or intended to photograph them.”
Meantime, with each passing hour, it is more likely that the case is headed for a mistrial because of a hung jury. If that happens, it will very likely be because jurors were intimidated — believing that an acquittal of Rittenhouse, even if compelled by the evidence, would ignite more of the same violent rioting that led to Rittenhouse’s fateful confrontations on August 25, 2020.
In the last section of yesterday’s post, I suggested that a quick verdict would favor Rittenhouse, who is accused of murder, attempted murder, and reckless endangerment. If deliberations instead dragged out, there would be a greater chance of a hung jury or a compromise verdict.
In a compromise verdict, which can be scandalous but is nevertheless permissible in our system, jurors avoid a hopeless deadlock by agreeing to convict the accused on some but not other charges, or on lesser charges. That is, neither those who believe the defendant should be acquitted nor those who want him convicted on severe charges get what they want, but a verdict is reached — even if it is not rational (i.e., it’s not internally consistent or aligned with the proof). A compromise verdict sounds like a “tie,” in the sense that the defendant neither walks nor faces life imprisonment. In reality, though, it is a victory for the state: Here, Rittenhouse would stand convicted of a felony — perhaps a few of them — and face significant potential prison time.
What is a “quick” verdict? It depends on the case. I was a junior prosecutor in the longest federal criminal trial in American history, the “Pizza Connection Case” (1985–87). The jury was out for six days. For the Rittenhouse case, that would seem like an eternity; but in our case, after 17 months of trying a raft of charges against 22 defendants (19 at the end, due to causes natural and unnatural), it seemed extraordinarily quick.
As I write this piece, we are seven hours into the third day of deliberations. In the Rittenhouse trial, that already seems long.
Up until deliberations, the trial was fairly short, with less than two weeks of testimony. Furthermore, the question to be decided is straightforward: Did the defendant act in justifiable self-defense? To be sure, there are a number of counts (which are multiplied by the inclusion of lesser-included offenses), but self-defense, if established to the jury’s satisfaction, is a complete defense to every one of them.
Much of the evidence is on video, which shows Rittenhouse trying to resist assailants. There is not much dispute in the fact-witness testimony — though, as I have explained in another column today, prosecutors have managed to fabricate a factual dispute by their highly questionable use of some video evidence. Aside from Rittenhouse’s own testimonial assertions of innocence, even the testimony offered during the state’s case was surprisingly favorable to the defense. In fact, the state’s star witness, anti-cop radical Gaige Grosskreutz, admitted that Rittenhouse did not shoot him until, at point-blank range, he pointed the handgun he was illegally carrying right at the defendant.
Could the jury still be deliberating because they are simply taking their obligations seriously and considering the evidence diligently? Of course. We should all hope that is the case. But there is only so long you can do that.
Their continued deliberation suggests that there is a deadlock. Sometimes that happens because jurors have good-faith but unbridgeable disagreements about how to construe the evidence, in accordance with the applicable law. Sometimes, though, a deadlock results from a refusal on the part of one or more jurors to deliberate because of some concern that is unrelated to the facts and law of the case.
Viewers of Fox News’s trial coverage have heard me raise alarms about outside pressures on the jury.
Recall that the jury in the Derek Chauvin trial for killing George Floyd was subjected to egregious extrajudicial influences. But remember, too, that the trial occurred during a time of tight COVID restrictions. There were not many in attendance to speak of, just court personnel, lawyers, witnesses, and the defendant — the minimum necessary for the trial to take place, with public accountability assured by television coverage.
Passions are not quite at George Floyd–level intensity in the Rittenhouse case. Yet, the jurors have not only been subjected to the same types of malign outside influences, including asinine commentary by the White House — President Biden having labeled the defendant a “white supremacist,” a suggestion his spokeswoman, Jen Psaki, sought to . . . er . . . soften this week by portraying him as a “vigilante.” There has been the added element of spectators in the courtroom, gawking at the jurors. Grosskreutz, for example, acknowledged in his testimony that some of his comrades were scattered about the courtroom in a show of solidarity. People are staring at the jury up close. Television cameras are present as well, and though purportedly anonymous, the jurors must worry that their faces could be broadcast for all to see.
The jurors have to contend with not only with the outside voices in politics and punditry but with the threat of violence to boot. Loud demonstrations on the courthouse steps have turned violent. Black Lives Matter (of course) has been chanting, “If Kenosha don’t get it, shut it down,” among other charming ditties that insist Rittenhouse must be convicted because he dared to intrude on riotous protests over the police shooting of Jacob Blake. Paralyzed upon being fired upon, Blake was resisting arrest on a pending warrant while trying to get away in a car that did not belong to him (in which his young children, who were not in his custody, were passengers).
In short, there is bedlam around the courthouse that jurors must enter and exit . . . when they’re not being hounded by, you know, “freelancers.”
Here, I am constrained to observe that one’s assessment of Judge Bruce Schroeder does not improve with extended observation. His incessant whining about press coverage of the trial — and, particularly, of his performance — is grating. Most judges don’t have time to digest much media during a trial; confident judges don’t worry about it, since they know more about the case than the pundits do, and their job is to ensure due process, not influence the punditry.
In his latest gripe session, Schroeder bleated about how he’d been criticized for his handling of a defense motion for a mistrial that, he said, he hadn’t even had a chance to read yet since it had only been filed the previous day. Really? The motion (if you ignore the caption and signatures) is fewer than six pages long — double-spaced. For even a slow reader (I plead guilty) it takes fewer than five minutes, which means it would take Schroeder less time than whatever stories in the Milwaukee Journal Sentinel, the American Law Journal, and CNN are giving him agita today.
Here’s a thought: Maybe the judge could tend to the things that are actually in his control and stop worrying about what isn’t. What is in his control, his top responsibility right now, is the jury. Why hasn’t he sequestered them?
It appears that Schroeder made up his mind before the trial that there would be no sequestration, and he is mulishly sticking to that. As the local and national publicity intensified, as the protests boiled into violence, the judge continued sending the jurors home to marinate in the tension. Even as they are deliberating — the critical time when good judges go the extra mile to shield the jury — Schroeder calls it a day at dusk and sends them out of the courthouse, past the beleaguered police trying to control mobs with the “Killer Kyle” placards and “F*** Kyle” T-shirts . . . only to come back through the same scene the next morning.
And now, whaddya know: We have a straightforward case of self-defense in which a verdict can’t seem to be reached . . . under circumstances in which the jurors are being pressured . . . and the mob promises to riot if there is an acquittal.