I love jury duty!
I know. Nobody loves jury duty. (Perhaps I should have been a lawyer…) So I suppose it is not surprising that I was captivated by the Kyle Rittenhouse trial. I actually took a break from my writing to watch gavel-to-gavel coverage, captivated not only by what happened in the courtroom but also by live commentary given by a wide variety of lawyers.
The last time I watched a trail on TV was the OJ Simpson murder persecution, as KTLA in Los Angeles televised the entire trial. At the time, I was what people called a “freeway flyer,” a college instructor with adjunct positions at four different colleges across the city. So my hours were irregular, giving me the opportunity to watch much of the trial.
Probably the most egregious aspect of that trial was the media coverage. As anyone knows who has been a part of or witness to a news event, the media’s rendition of what happens is nearly unrecognizable. The same was true of the OJ trial. I would watch the news after the court closed for the day and would shake my head in disbelief: “Had I just watched the same court proceedings that the media did??”
Needless to say, the same thing happened in the Kyle Rittenhouse trial. In fact, the media coverage was so bad that there are many people who thought, up until the trial, that some, if not all, of the victims were African America (none of them were).
Much of my interest in such trials derives from my career as an English professor. It should be no surprise that as such, I love the study of the use of language, logic, and rhetorical strategies to make arguments, to persuade. I love watching the decisions that lawyers make, deciphering how they come to those decisions and how they execute those decisions. I love witnessing how the decisions land on the audience. I love hearing the narratives that are weaved from disparate pieces of evidence by both the prosecution and the defense.
I have often used examples from trial lawyers in my classroom when teaching persuasive writing. I am not teaching right now, but if I were, one of the things I would do today is distribute to my students the motion for mistrial with prejudice filed by the defense of Kyle Rittenhouse. And then we could go through it line by line, discussing the strengths and weaknesses of the writing: the use of passive vs. active voice, the typos, the grammar choices, the organization of information, the use of quotes, the word choice, etc. Another consideration for discussion would be the language used in the charges against Rittenhouse: “First-Degree Reckless Homicide: Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.” What does recklessly mean? What does utter disregard look like? These are certainly up to interpretation.
Another document that would be interesting to look at would be the jury’s questions, such as the request to review video evidence, and to note what the word choice reveals. So often, students find the concern with word choice in particular to be nit-picky, but a document such as this can display just how important each word can be.
What great real-life documents to analyze!
I have had the opportunity to serve on a jury three times, and each time was an enlightening window into our justice system.
The first time was when I was in my early twenties. I was selected for a jury in which the plaintiff, a young woman about my age, was suing State Farm for a pain and suffering payout that was in addition to the money she had already been granted by the insurance company. She was asking for the settlement because she had been in two accidents.
In the first, someone had hit her, and she suffered a neck and/or back injury. And she received an insurance claim as a result. Then she got into a single-car accident, when she hit a wall. The accident led to…you guessed it: a neck and/or back injury.
So she was in court suing the insurance company from the first accident, not her insurance company from the second accident. Her claim was that her injury from the second accident was only bad because of the injury from the first accident.
The discussion in the deliberation room included a variety of statements that can be summarized as “It’s a big company – they can afford to pay her whatever she wants.” My argument was that it was impossible to differentiate what was a new injury and what was a result of the old injury. And she had already received a payout from the first accident. Besides, the fact that it was a big company was irrelevant. This should be about the company’s rightful responsibility only.
After much discussion, the decision was that each juror would announce the amount of money they thought she should receive for her pain and suffering, and then we would average those amounts. Ugh. That seemed like the most ridiculous means to come up with a judgement. But I was not going to win this argument. So I did the only thing I could do. I voted for $0. I figured I would do my part to pull down the average as much as possible.
I don’t remember the exact numbers that everyone suggested, but let’s say the numbers, excluding my $0, ranged from $50,000 to $500,000. And the spread was just that crazy. The foreman did the math and declared the average to be $450,000. Everyone said, “Great,” collected their belongings, and got up to return to the court. I stopped everyone and told them that there was a problem with the math. There was no way that could be the average – it made no sense! So I redid the math and came up with half as much. It was a huge difference. If I had not been there, she would have received over twice as much for basically no logical reason other than a math error.
The second trial featured a defendant soliciting prostitution. During voir dire, I told the attorneys that I didn’t necessarily believe prostitution should be illegal. I didn’t say that as an attempt to get out of jury duty – it was simply the truth. Shockingly, I was still picked. After testimony we retreated to the jury deliberation room, and the first thing everyone said to me was that they could not believe that I actually got picked for the jury after I made that admission.
The other important element of this case was that it was the result of a sting operation. The lawyers didn’t ask me about that, but I was prepared to also indicate that I was uncomfortable with the ethics of sting operations. (Today, my view has solidified on both these issues. I am against prosecuting victimless crimes and opposed to sting operations.)
The State sought to arrest “Johns.” So the police set up a surveillance van, complete with a female cop dressed up as a prostitute. Then she would approach men at a gas station. A Spanish-speaking middle-aged man was pumping gas, and the mic’d cop approached him. What happened between her walking up to him and his arrest was never made quite clear. And the reason it wasn’t clear is because the recording of the interaction mysteriously disappeared. All that was left was a transcript, written in English. Yet the entire episode took place in Spanish, for the defendant didn’t speak English. So he couldn’t even read and confirm what the State claimed he said.
The other curiosity about this particular case was that it had even advanced to a jury trial. How could it be possible that this had not been settled? This was such a small charge that it seemed hardly worth the State spending all of the money and time required to bring this to trial. The only conclusion I could draw from this is that this man felt he was innocent of the charge and refused to be coerced into pleading guilty. He felt so strongly about this that he was willing to take the risk of a jury trial. His defense was that a pretty woman walked up to him, and he engaged her in conversation. He claimed (through a translator) confusion as to how that turned into solicitation.
Once we got into the deliberation room, we took a straw poll, and only two or three voted guilty. So began the back and forth. I don’t remember participating in the discussion very much. I was mostly listening. Eventually, only one juror remained who wanted to vote guilty. It was time for me to swoop in. Her complaint was that she felt like the man probably did solicit the cop for prostitution.
“You know what?” I said. “I think he probably did it too. But the prosecution did not prove that he did. You can’t find him guilty because you ‘feel’ like he probably did it.”
And she agreed. Not guilty.
The last time I was on jury duty was a case of armed robbery. This was the most serious case I had served on, which actually made it more difficult because the stakes were higher. We would determine if someone would go to prison. And in a calculated emotional move, the defendant’s partner and children sat in the courtroom. I was an alternate juror, which meant that I did not participate in deliberations, but the case was settled before jurors agreed on a verdict.
As a kid, I of course trusted our judicial system. As I have aged and gained experience, my confidence has continued to deteriorate. But I have also come to understand that people come to these realizations at their own pace.
For those who have seen the corruption for decades, I understand the knee-jerk reaction to be pissed that I am late to the game. I have experienced this myself. For example, having worked in education since 1991, mostly at the college level, I have been speaking out about the corruption of and indoctrination in the educational system since at least 2000. Until 2020, most people ignored me, dismissed me, or considered me to be engaging in preposterous hyperbole. However, remote learning has revealed, thankfully, to many people what I have known for twenty years. And I feel vindicated! And it feels good!
But, I quickly realized that I needed to change my mindset. My instinct is to look down my nose at people who are just now figuring this out. My instinct is to brag, and honestly with the intention of shaming, that I knew about this years ago! Like, “Where the hell have you been??” However, once I work my way past my instinctive reflex, I understand that this is the worst response. After all, what is my end goal? My end goal is for others to see the state of education as I see it. So does it matter if someone came to an understanding ten years ago, last year, or yesterday? No. Of course not. I know that my attitude needs to be one of gratitude and welcoming. Now we can fight together.
And besides, the most humbling part of all of this is that I keep seeing people pointing to the 1960s as the origins of the collapse of our educational system. That means I wasn’t early to understanding; I was forty years late.
We are seeing this same reaction during the Kyle Rittenhouse trial. No matter whether people think he should be found guilty or not guilty, it appears that everyone agrees that what we are watching in the courtroom is appalling and should not be considered “justice.”
In a country that seems almost irreparably divided, this should be an important moment to pull together. Whether you think the judge is biased in favor of Rittenhouse or the prosecution is corrupt and not interested in the “truth,” at the end of the day, both the judge and the prosecutor (and the police!) are on the side of the State. We are fighting against the same thing – the government that is too powerful and arrogant about its overreach.
Unfortunately, so many people are tied in knots about two things: race and history. Some simply look at the race of those involved and decide who is good and who is evil. They want Rittenhouse to hang, regardless of the evidence, simply because of history of African Americans being victimized by a corrupt justice system.
This results in fighting each other, with an anger flamed by the media and our politicians, convinced that the other is nothing less than evil. It is the classic strategy of divide and conquer. And there’s a snarkiness that is not helpful. It goes something like this: “Oh, so NOW you see injustice? You weren’t concerned when a black person was railroaded by the courts. Well tough shit now. Kyle should hang.” Instead, we all need to understand that, believe it or not, no one wants a corrupt justice system. No, seriously. No one does, no matter the color of the defendant. And if it takes a certain percentage of the population longer to finally see the corruption, they should be welcomed with open arms; we should be happy that they have finally seen behind the curtain.
This is about individuals, not tribes. An individual is being prosecuted. An individual whose life matters and who deserves to have his or her rights honored. But when we devolve to collectivism, all that matters for justice is whether or not the defendant is on our team. And that is exactly how these injustices continue.
And one day, that individual could be you. You might proclaim that you haven’t done and never would do anything wrong and as a result have nothing to worry about; you would never find yourself facing prosecution. This is simply naïve. I hear this from people all of the time. “I don’t care if the government has my emails (or texts or phone calls or photos or any other data). I have nothing to hide!”
I learned long ago, from personal experience, that when a government official has decided they do not like you, for any reason whatsoever, they will find something they can pin on you. It is inevitable. When I experienced this type of witch hunt, one that can only be characterized as an investigation in search of a crime, I saw colleagues drop, one by one. And this was during the pre-smart phone era! Just imagine how easy it is now to find a crime: a breaking of the law, a violation of a regulation, an ignoring of guidelines, a breaking of a code, a failure to follow a rule. Or a mandate.
What are the chances that you know all of the rules and laws you are required to follow? Pretty slim. In fact, Harvey Silvergrate wrote a book titled Three Felonies in a Day: How the Feds Target the Innocent. He claims the average person in America unknowingly likely commits three felonies a day, thanks in part to an explosion of vague and broad federal criminal laws as well as overreach. Consider the Department of Justice whistleblower who revealed that the FBI is now compiling a list of parents at school board meetings to be tagged as “threats” through the authority of the Patriot Act. Think about that. Believe me. None of those parents believe they have done anything wrong.
So believing that none of this applies to you or to those you love is wishful thinking.
If you have not yet come to the conclusion that the State has too much power and that it is willing to do just about anything to not only keep its power but to wield it, I would ask you to take some time to study history, take some time to serve on jury duty, take some time to watch a documentary about people exonerated and released from prison after decades of imprisonment. Stop and think about the State pitting us against each other by categorizing us as “essential” vs. “nonessential” and by vaccinated vs. unvaccinated.
Don’t let them fool you. We have the same enemy. This is a war we must fight together.