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Law & the Courts

Rittenhouse Judge Lets Jurors Go Home . . . with the Jury Instructions

udge Bruce Schroeder speaks to the attorneys about how the jury will view the evidence as they deliberate during Kyle Rittenhouse’s trial at the Kenosha County Courthouse in Kenosha, Wis., November 17, 2021. (Sean Krajacic/Pool via Reuters)

Well, here’s a new one. In a case where the jury should be sequestered while deliberating, Judge Bruce Schroeder is allowing them to go home . . . and take the jury instructions with them.

In the Kyle Rittenhouse murder trial, Judge Schroeder granted the request of “a female juror” to bring home a full set of the court’s instructions on the law when he once again ended the trial day before dusk on the third day of deliberations.

Apparently, defense lawyers were too nonplussed to articulate a cogent objection (not for the first time). Rather than registering a formal objection, they reportedly were seen by the judge “slightly shaking their heads no.” To be fair, it appears that the jury was in the courtroom with the judge and the lawyers for at least some of this discussion, and lawyers understandably hate to object in front of the jury regarding something the jury — or at least some jurors — want.

A good judge would have either sent the jurors out of the room or taken the lawyers to a sidebar where the request could be discussed without the jurors being apprised of which side was objecting and why. (For that matter, a good judge would not have needed input from the lawyers to understand why a request of this sort should be politely denied.) Schroeder, by contrast, pondered the matter in his ponderous way and foolishly agreed to the request without asking for counsels’ positions. He allowed the jury, with the instructions in tow, to head to their homes, where they can be further immersed in the neighborhood tensions and prejudicial media coverage after dodging whatever MSNBC “freelancers” may be chasing them down.

That is, Schroeder first made the bad decision and only then made a record about why it was a bad decision. When he noted the defense lawyers’ apparent but muted disapproval when the juror made the request, Mark Richards, one of Rittenhouse’s attorneys, opined that the jurors might do an Internet research on the instructions.

I suppose that’s possible, but it’s not a very persuasive argument. The jurors have been ordered not to do Internet and dictionary-type research. That’s a standard directive — you want the jury deciding the case on the record developed in the trial. If we are assuming the jury follows the court’s orders, then the mere possibility of Internet research is not a concern. On the other hand, if we’re going to assume the jurors are flouting the court’s order about Internet research, then they wouldn’t need to take the judge’s instructions home, since there’s plenty of reporting about them on . . . the Internet.

The proper objection would have been that the jury is supposed to deliberate as a jury. Jurors are being allowed to go home — just as they would break for the night at some point if sequestered — in order to get a mental break from arduous deliberations. If a juror wants to continue working through the instructions, then she should be doing that with the other eleven jurors as they try to resolve the case. Moreover, if jurors are looking to continue working through the instructions during the late afternoon and into the evening, that is a good reason to keep deliberating.

This is a jury that should be sequestered in the first place, for all the reasons we’ve discussed. To send them home given the intolerable risks of extrajudicial influences is bad enough. But to send them home at 4 o’clock in the afternoon? If Judge Schroeder actually believed it would be a good idea for jurors to keep studying the legal instructions and thinking about such key concepts as self-defense, how about having them work until . . . oh, I don’t know . . . 5 o’clock . . . 7 o’clock. . . .

In about an hour, the fourth day of deliberations is scheduled to begin. We shouldn’t be surprised.

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