The Morning Jolt

Law & the Courts

The Kyle Rittenhouse Trial: A Reminder about Court Coverage

Kyle Rittenhouse pulls numbers of jurors out of a tumbler during his trial in Kenosha, Wis., November 16, 2021. (Sean Krajacic/Reuters)

On the menu today: As the country awaits the decision from the jury in Kenosha, Wis., on homicide charges against Kyle Rittenhouse, it is again time to ask if the way the news media cover these high-profile trials serves anyone but their advertisers well; there is this recurring pattern of juries that look at the entire argument and evidence from both sides, reaching decisions contrary to popular and often simplistic media narratives. Meanwhile, only 40 percent of Americans think Joe Biden is “in good health.”

Why We Should Be Wary of News Coverage of High-Profile Criminal Trials

This morning, twelve jurors in Kenosha, Wis., are gathering for a second day of deliberations in the homicide trial of Kyle Rittenhouse, who is charged with the fatal shooting of two people and wounding of another during riots in that city in August 2020. That Rittenhouse raised and fired his AR-15 and fired the shots that killed and wounded the men is not in dispute; the question is whether his actions constituted legal self-defense or first-degree intentional homicide.

As mentioned on yesterday’s edition of The Editors podcast, I don’t write about high-profile criminal trials often. I’m not a lawyer, nor do I play one on TV. Some of this is because these sorts of news stories are better handled by keener minds among my colleagues such as Andy McCarthy, Robert VerBruggen, Nate Hochman, Isaac Schorr, Caroline Downey, and others.

But my emotional disengagement from high-profile criminal trials probably also reflects a lingering lesson of 1994 and 1995, when the murder charges against O. J. Simpson trial utterly dominated the news cycle for an entire year, and offered a vivid demonstration that what you see during news media coverage of a high-profile trial is not what the jury is seeing — and not only can you not see the jury’s deliberations, you can’t see what thoughts are going through the minds of the jurors.

Those old enough to remember will recall that the country was riveted by the eight-month Simpson trial. Lots of people — particularly those who were white — thought prosecutors Marsha Clark and Christopher Darden had laid out an open-and-shut case, spotlighting a 911 call from the victim, Nicole Brown Simpson, and demonstrating an escalating pattern of domestic violence which culminated in her murder. Blood-stained clothes, DNA evidence, shoeprints, hair and fiber evidence — to many viewers, it was a slam-dunk, and the contentions of O.J.’s “Dream Team” of defense lawyers contending a police conspiracy seemed like desperate, fanciful nonsense. And yet, the jury returned with a not-guilty verdict after just four hours.

Many years later, juror Carrie Bess declared in a television interview she had voted not guilty as payback to the LAPD for the Rodney King verdict and speculated that “90 percent” of her fellow jurors felt that way. Another juror, Lionel Cryer, said years later in a separate interview that in retrospect, he would render a guilty verdict.

Attempting to predict a jury’s decision is a fool’s errand. The argument and evidence that seem overwhelming to you, watching on a screen at home, may not look the same to the jurors. And unless you’re watching gavel-to-gavel coverage, your perception of how the trial is going is based upon selected highlights of what happened in the courtroom, chosen for you by a news media that is attempting to summarize hours of testimony and arguments into a few minutes. The jury, meanwhile, sees everything, including the boring parts.

This doesn’t mean juries always make the right decision. (As Dennis Miller used to joke, how reassuring is it that if you’re ever put on trial, your fate will be in the hands of twelve people who couldn’t get out of jury duty?) But there’s always the possibility that the boring parts of the trail that media chose not to cover or emphasize actually included something consequential that changed a juror’s perceptions. As I wrote back in 2014:

We’ve seen the media’s “narrative journalism” insisting that Officer Darren Wilson’s fatal shooting of Michael Brown represented a vivid, awful example of racist police forces recklessly using deadly force against defenseless black men. The grand jury remained unconvinced. They saw too many pieces of evidence and witness testimonies that contracted that simple morality play.

The media’s “narrative journalism” contended that George Zimmerman’s shooting of Trayvon Martin represented a brutal crime, revealing a reckless, gun-toting vigilantism loose on the streets of America, preying upon innocent young black men. The jury looked at the available evidence and acquitted Zimmerman. All that one-sided “narrative journalism” left a portion of their audience completely unprepared for the jury’s decision, because it seemed so contrary to everything they had been told.

You may recall similar examples of juries rejecting a convenient narrative embraced by the media’s most powerful voices, such as the case against the Duke Lacrosse players. Jurors aren’t like most news viewers. For the purposes of the decision before them, they’re not “low-information voters.” They don’t have the option of tuning out the story when it gets boring. They have to pay attention — or at least appear to pay attention — to all of the facts and hear both the prosecution’s side and the defense’s side.

The old broadcast, now web-based channel “Court TV,” combined two institutions with two contradictory objectives. The purpose of the court is to determine truth, to the extent that task is possible, and to apply the law and adjudicate justice. The purpose of television is to inform, entertain, and, some might argue, distract. A good judge does not care in the slightest if the trial before him is entertaining. More than a few talking heads and legal and political commentators are heavily invested in simplistic narratives of heroes, victims, and villains. The movie Gone Girl offered a vivid satire of a voracious, amoral news media eager to shoehorn complicated human beings into simple labels and identities.

The result is a court system that keeps reaching decisions that are contrary to media narratives, even when the courts are run by figures in the political party the media prefers. The U.S. Department of Justice, under Attorney General Eric Holder, did not press charges against George Zimmerman. The DOJ under Holder also released a report clearing Officer Darren Wilson of any wrongdoing in the shooting death of Michael Brown. Holder also declined to prosecute anyone at the CIA alleged to have tortured or abused captured terrorists at “black sites.” It’s a lot easier to convict someone in the court of public opinion than in the court of law, and the court of public opinion has a messier appeals process.

Social media has exacerbated this; no doubt in every high-profile murder case, someone who sympathizes with the victim and rages at the brutality of the crime expresses a desire to personally inflict vengeance. (“Man, if you gave me ten minutes alone in a room with that guy, I’d make him sorry for what he did,” etc.) The overwhelming majority of the time, this is someone blowing off steam — venting anger at a heinous crime and not particularly harmful or dangerous to others. Except now, in the era of social media, people blow off steam in a way that the whole world can see, wishing death upon strangers based upon what they think they know — If Kyle Rittenhouse doesn’t get convicted, I hope somebody in his community jumps up and kills him.” And we’re not sure how harmful or harmless it is to have significant numbers of people on social media wishing for the violent death of a particular person. Maybe it’s no more harmful than an arena full of sports fans screaming in rage at a referee — or maybe this gathering maelstrom of social-media demonization will spur some nut to attempt to harm Rittenhouse.

Jury decisions can have consequences well beyond the courtroom. Right now, 500 members of the Wisconsin National Guard are on standby, ready to mobilize if the verdict in the case spurs unrest and violence. One can fairly wonder whether, if Wisconsin governor Tony Evers had deployed the National Guard at the start of the rioting in Kenosha, Rittenhouse’s shooting would have happened. John McCormack reminds us that shortly after a Kenosha police officer shot African American Jacob Blake, Evers didn’t deploy the National Guard and instead sent out an inflammatory tweet suggesting that police may have behaved “mercilessly” in their encounter with Blake. Dan McLaughlin observes that armed young men in the streets, taking the law into their own hands, are what happens when government leaders choose to literally or metaphorically “defund the police.”

Questions about Biden’s Health Aren’t Just Going to Go Away

Hey, remember when writing “something is wrong with the president” in terms of his physical or mental health was just about the worst thing a journalist could do? Remember when Chris Cillizza declared that writing about Biden’s physical or mental health was “the sort of gross, lowest-common-denominator politics that drive people away from public life”?

Good times, good times:

Voters have increasing doubts about the health and mental fitness of President Joe Biden, the oldest man ever sworn into the White House, according to a new POLITICO/Morning Consult poll.

Only 40 percent of voters surveyed agreed with the statement that Biden “is in good health,” while 50 percent disagreed. That 10-percentage-point gap — outside the poll’s margin of error — represents a massive 29-point shift since October 2020, when Morning Consult last surveyed the question and found voters believed Biden was in good health by a 19-point margin.

That Politico story quotes Democratic pollster Celina Lake dismissing questions about Biden’s health as the work of “the right-wing disinformation machine.” But the survey found that independents — by a margin of 23 points — don’t agree that Biden is mentally fit now.

Since becoming president, Biden’s public comments have grown stranger and more meandering even by his usual standards. He has odd angry outbursts — “That was four or five days ago!” He holds to a light schedule, almost never does nighttime events, hasn’t sat down for an extended on-camera interview with any major journalist, and is spending as much time as possible at his Delaware home. He keeps insisting that he was never briefed on his options in Afghanistan, even as his military advisers have testified before Congress that he was.

Joe Biden has been in the public eye for decades; we know what is normal for this man. He’s not the same guy he was when he was vice president.

Biden turns 79 on Saturday. He pledged to release the results of a complete checkup earlier this year, but that checkup hasn’t occurred yet.

ADDENDUM: Katie Pavlich offers an update on that alleged U.S. Border Patrol whipping of Haitians. The Department of Homeland Security “initially referred the investigation to DHS’s Office of Inspector General (OIG). The OIG declined to investigate and referred the matter back to CBP’s Office of Professional Responsibility.” And apparently, the Office of Professional Responsibility is still working on it, two months later, even though DHS secretary Alejandro Mayorkas pledged to Congress that the investigation would be completed in “days, not weeks.”

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