Rittenhouse judge says, ‘This is not a political trial’; but can jurors leave their beliefs at the courtroom door?

KENOSHA, Wis. — As attorneys worked to pick jurors for Kyle Rittenhouse’s murder trial, a prosecutor asked the randomly summoned Kenosha County residents whether any of them were worried that reaching a verdict in the case would lead to a confrontation with friends or family members.

“I won’t want to be hosting Thanksgiving,” said prospective Juror No. 31, who described how her nephew used to work as a police officer and now suffers from post-traumatic stress disorder.

“You are concerned that if you are a juror and you make a decision one way or the other in this case, it may cause some discomfort or make it awkward with family at the holidays. Is that fair to say?” asked Assistant District Attorney Thomas Binger.

“Yes,” the woman answered, before referring to her nephew. “It’s one of the reasons why he left the police.”

Kenosha County Judge Bruce Schroeder has insisted on preventing politics from playing a role in Rittenhouse’s high-profile trial. Jurors will decide whether the teenager fired his AR-15-style rifle in self-defense or broke the law in fatally shooting two men and wounding a third amid the often-destructive social unrest that followed the police shooting of Jacob Blake, a Black man who remains paralyzed below the waist.

Schroeder has noted how Rittenhouse’s actions that night became an issue in last year’s presidential race. He has acknowledged how the case is viewed by some as a referendum on the Second Amendment right to bear arms. And he has complained frequently about media coverage — going so far as to stop testimony in the trial to rail against a cable news network’s criticism of a pretrial decision he made.

But none of it, Schroeder said, should influence the case.

“This is not a political trial,” the judge often refrains. “This is not going to be a political trial.”

Legal experts and even some of the jurors, however, have suggested the highly charged political environment will be hard to cast aside, with jurors bringing to the case their own political beliefs, previously held viewpoints on the police and activist groups such as Black Lives Matter, and their own experiences with the riots that left dozens of Kenosha businesses looted and burned. Bolstering this notion was Schroeder’s decision Thursday to dismiss a juror for joking about Blake’s shooting.

Further complicating matters is widespread public knowledge about Rittenhouse — how he crossed state lines to patrol Kenosha’s streets with a semi-automatic weapon he was too young to lawfully own, how he benefited from fundraising tied to far-right interests that tried to overturn the 2020 presidential election and how he flashed a hand sign appropriated by white supremacist groups while drinking in a Wisconsin bar following his arrest.

“I’m always amused when a judge asks if a juror can set something aside and promise to give a fair trial. What do the jurors do? Come in in the morning and there’s a bag marked ‘feelings,’ and they just dump them in there and walk into the jury room?” said veteran Chicago defense attorney Andrea Lyon, who worked on the team that represented convicted former Illinois Gov. George Ryan.

“It is impossible to think of a criminal case that I’ve tried that hasn’t had some kind of political element to it,” Lyon said. “I don’t know that it’s possible for this case not to have political implications or for people who sit on that jury to be able to separate the political implications from what they’re considering, because they bring their life experiences into the jury room with them, as they should.”

Without being prompted by the judge or attorneys, several potential Rittenhouse jurors raised the political atmosphere swirling around the trial, bringing up the Second Amendment, the Founding Fathers’ intent, the Federalist Papers and, yes, the potential for ruined holidays.

“This country is divided by politics. Whatever the verdict is, half the country is going to be up in arms about it,” said one potential juror, who later was selected to hear the case. “And we saw what that did to the city of Kenosha last year.”

“This isn’t a political case, but it doesn’t stop the politics from outside the courtroom,” said another.

The comments prompted Schroeder to address the elephant — or perhaps donkey — in the room, depending on political persuasions. Wisconsin’s longest-serving circuit court judge launched into a lecture about how “the trial is about the Constitution. It’s about the right to a fair trial.

“I want this case to reflect the greatness of Kenosha and the fairness of Kenosha,” Schroeder told potential jurors. “I don’t want it to get sidetracked into other issues.”

The judge suggested the deeply divided country might even calm down if Americans conclude a fair trial had been held.

“That would be amazing,” said one clearly unconvinced potential juror, who later was selected to serve on the panel of 12 and eight alternates. “I appreciate your optimism.”

The controversy and unrest in Kenosha began on Aug. 23, 2020, when Officer Rusten Sheskey, who is white, fired seven bullets into Blake, a Black man who was carrying a knife but had his back turned. Prosecutors decided in January not to press charges against Sheskey, saying they could not disprove his self-defense claims.

The shooting led almost immediately to protests, followed by riots. By the third night of demonstrations, Rittenhouse took it upon himself to patrol the town with a semi-automatic weapon, which police say a friend illegally purchased for the 17-year-old.

Shortly before midnight Aug. 25, 2020, Rittenhouse fatally shot demonstrators Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreutz. The prosecution has painted Rittenhouse as a “chaos tourist” seeking to impose his own sense of justice while the defense has portrayed him as a selfless, if naive, teenager who was forced to stop people from taking his gun and using it against him.

Rittenhouse’s actions drew international attention and were thrust into a hotly contested campaign between then-President Donald Trump and then-Democratic candidate Joe Biden. Both Trump and Biden visited Kenosha in the days following the shooting of Blake and the deaths of the protesters.

Biden’s campaign featured a photo of Rittenhouse in an ad that criticized Trump for refusing to condemn white supremacists. Trump defended Rittenhouse’s actions, saying the teen had acted in self-defense as protesters “violently attacked him” and suggested the teen was “in very big trouble” and “probably would have been killed” during the confrontation.

During jury selection, Schroeder complained about how the case was mentioned by both campaigns, “and in some instances very, very imprudently.”

“You know, there are important issues for those who seek to lead our country to discuss,” Schroeder told prospective jurors. “The innocence or guilt of an individual accused of a crime is not one of them.”

The political interest in Kenosha didn’t just center on Blake’s shooting and Rittenhouse’s case, but also on the city’s status as a swing area in a key political swing state.

Trump returned to Kenosha for a rally on the eve of the election, holding up the city’s unrest as a foil for his law-and-order campaign message.

In 2016, Trump had become the first Republican since Richard Nixon in 1972 to carry Kenosha County, winning by just 255 votes out of 72,000 cast as he went on to narrowly win Wisconsin. In 2020, Trump lost the state but again won Kenosha County, this time by a larger margin of three percentage points.

The county is anchored by Kenosha, a Democrat-leaning city of 100,000 people halfway between Chicago and Milwaukee that is surrounded by more conservative small towns and rural areas. The jury pool for Rittenhouse’s trial randomly pulled residents from the county as a whole.

Former Kane County State’s Attorney Joe McMahon said “it’s impossible to eliminate” the political views and experiences jurors and witnesses bring to Rittenhouse’s trial. McMahon, who served as the special prosecutor in the historic murder trial of former Chicago police Officer Jason Van Dyke, said “it would be shortsighted” for attorneys not to acknowledge those political factors as they try the case.

“The lawyers have to almost embrace those other outside issues, those political, racial, social economic issues, because those were factors in the decision-making process and how Rittenhouse and witnesses reacted to different situations,” said McMahon, who is now in private practice. “The challenge for the lawyers, the judge and the jurors is to not let those other factors override the facts of the case. It’s going to take a really focused effort to get the jury to focus on what happened here, but those outside factors are going to have an impact on the jurors’ decision-making process.”

Prior to the trial, Schroeder made several rulings in a bid to prevent politics from clouding the case.

Prosecutors said they had evidence Rittenhouse met for lunch after a hearing earlier this year with several high-ranking members of the Proud Boys, a far-right group known for street fights that the Anti-Defamation League characterizes as “misogynistic, Islamophobic, transphobic and anti-immigration,” with some members espousing “white supremacist and anti-Semitic ideologies.”

Upon his arrival at a Wisconsin bar, Rittenhouse posed with two men while flashing the “OK” sign, which prosecutors described as “co-opted as a symbol of white supremacy/white power.” The defense argued against allowing the evidence, contending the prosecution was trying to inject race into the trial.

Schroeder sided with the defense and barred reference to Rittenhouse’s association with the Proud Boys. The judge also granted a defense request that prevented prosecutors from telling jurors Rittenhouse bought the rifle with his unemployment and federal stimulus money.

In addition, Schroeder gave defense attorneys latitude in how they refer to the three men Rittenhouse shot, ruling they can be described as “looters” and “rioters” if the evidence supports it. And the judge ruled the prosecution cannot call the people who were shot “victims,” a decision that frustrated prosecutors but experts called relatively common in self-defense trials.

The veteran judge also sought to remove discussion of political beliefs from the jury selection process.

Prospective jurors were given basic questionnaires to fill out, noting age, occupation and little else. The judge required the lawyers stick to a broad set of questions and not ask about political beliefs or membership in specific organizations, such as the National Rifle Association or Black Lives Matter.

As a result, the jury was selected in one day, without much in the way of specific questions delving into the jurors’ personal histories. McMahon said that stands in contrast to the Van Dyke trial, where prospective jurors answered more than 100 questions on a form before they even showed up for jury duty.

“To treat this like jury selection on the run-of-a-mill burglary, DUI or even another murder ignores the reality that prospective jurors have a lot of access to information in a high-profile case like this that they wouldn’t otherwise have,” McMahon said. “That lends to the argument that the questioning in a case like this should be a little more inclusive and a little more intrusive than in other cases.”

Lyon, the veteran former defense attorney, agreed. She said a more thorough jury selection process would have given attorneys on both sides the opportunity to discuss in detail with jurors what preconceived notions or political beliefs they may have and how to hold those views while also serving as an impartial juror.

Without that, Lyon said what beliefs jurors have and how deeply they are held is largely a mystery to prosecutors and Rittenhouse’s defense team.

“There are likely people on that jury who have just not said anything, who have very strong feelings about the police, about vigilantism, about the Second Amendment, and the question becomes how do you make room for that without allowing for it to take over?” Lyon said.

Without the detailed questioning in jury selection, she said the only option is for both sides to nod to the dynamic as they argue the case.

A more thorough jury selection process may or may not have screened out a juror who was dismissed from the case Thursday after attempting to tell a joke about Blake’s shooting to a police officer working at the courthouse.

According to prosecutors, the so-called joke was “Why did the Kenosha police shoot Jacob Blake seven times?” It’s unclear if the man gave the punchline or was stopped before he finished, but the answer was “because they ran out of bullets,” said Binger.

The juror, an older white man, acknowledged he told a joke about Blake, but declined to repeat it. In defending himself, the juror said the joke “has nothing to do with Kyle and his seven charges,” referring to Rittenhouse by his first name.

Schroeder had the juror removed, saying “it is clear that the appearance of bias is present, and it would seriously undermine the outcome of the case.”

Blake’s uncle, who has held small demonstrations outside the courthouse during the trial, said the juror’s comment “gives you an insight to what kind of people we’re dealing with and how racist they are.”

“The audacity that (he) was sitting in that jury box says a lot,” Justin Blake said. “It shows that this process of picking a jury in one day is flawed.”

While the trial has drawn little in the way of demonstrators so far, Blake’s uncle said he has been at the courthouse daily to demand justice for those who were shot by Rittenhouse. He rejected efforts from those on the right to portray the case as a referendum on the right to bear arms.

“This isn’t about the Second Amendment,” he said. “This is a murder trial. These people were murdered.”

During jury selection, a prospective juror told Schroeder he couldn’t be impartial because he believes in the right to bear arms.

“My biases go back to 14 months ago,” the man said. “I’ve been commenting consistently on news feeds and Facebook. It also goes a little further to my belief in the Second Amendment.”

That prompted Schroeder to launch into his lengthy lecture about media coverage of the case and how believing in the Constitution was not disqualifying. The judge concluded by asking the man whether he really thought other people in the jury pool would be more fair than him.

“I would hope so,” he said, before being promptly dismissed.

A woman also exited the jury pool after she told prosecutors she couldn’t judge the case fairly because Rittenhouse had walked the streets carrying a semi-automatic rifle.

“I don’t think a weapon like that should belong to the general public,” she said before leaving.

Dr. Ziv Cohen, a New York forensic psychiatrist who has consulted on more than 50 murder cases, acknowledged the difficulty of jurors divorcing their own politics during a trial. Even if successful, he said, it doesn’t mean jurors won’t worry about how others will perceive them once a verdict is reached.

“In a sense, it will make them think about how their decisions impact people they know in their community and those individuals are going to respond to them after the trial,” Cohen said. “So it certainly increases the tension around whatever the outcome is going to be from this trial and makes the jurors probably more anxious about whatever decision they’re going to render.”

That was the case for Juror No. 31, who worried about what Thanksgiving might look like should she serve on the Rittenhouse jury. Sitting in a wooden armchair in the jury box, she told the judge and attorneys that she could be fair and set aside the fact that her nephew is a former police officer suffering from PTSD.

Under further questioning from the defense and prosecution privately in a library outside the courtroom, the woman revealed she knew many details about the case. That included her opinion on the type of gun Rittenhouse carried, as she told the court, “There’s no need for someone to have that type of weapon.”

The prospective juror also said she was not impressed that Rittenhouse had been hanging out with the Proud Boys and been photographed in a bar wearing a T-shirt that said “Free as F--k.”

“Being out there killing two people and being proud of it was hard to see,” she told the lawyers. “In self-defense or not, it’s still a person.”

Soon after, Juror No. 31 was dismissed.

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