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A number of years ago I testified at a murder trial. As with the Rittenhouse trial, there was no question as to whether the defendant had committed the physical act, rather the issue was why, what was his mental state, etc. Without getting into specifics, the striking thing was the work-a-day nature of it all. None of the lawyers were Clarence Darrow, the judge wasn’t Cato, but everyone was, in fact, trying to do their best and, in the end, there was, I would submit, something approaching justice.
While one might argue, as I have heard several astute lawyers argue, that the prosecutor’s performance in the Rittenhouse trial was below what one might reasonably expect, in the end the system seems to have worked: people are not supposed to be convicted unless the state can show guilt beyond a reasonable doubt. 12 jurors, voting on 5 different charges, failed to find for the state in any way. One might have supposed that at least one person would find for one charge just to be ornery, but 60 votes came down on the side of the defendant.
So, all in all, the system worked.
As for those who still insist that Rittenhouse is guilty, a few thoughts:
First, the law requires proof. The concept of law that has evolved over the last 2,500 years brings us today to a point where the state must demonstrate to 12 reasonable adults that the law was broken. If the state fails to show that, then the state fails to show that. That may cause some unease, but the principle remains that it is “better that 100 guilty go free than that 1 innocent man go to prison.” The system must therefore be weighed on the side of insisting that the state prove its argument. All the defense need do is show that the state has not made its case.
In this instance the defense did more than that, but the fundamental point remains: the state has the burden of proof.
Second, there is a lesson here on overly complex law. When it requires some 30+ pages of instruction from the Judge, and the Judge adds that the instruction from the legislature is confusing, there’s something wrong with the law itself. If I were on a jury and the Judge presented the jury with 30 pages of confusing instructions my immediate default position would be that accused was innocent simply because it would be impossible to understand, and therefore adhere to, the law. If the law cannot be understood, it probably can be broken without you knowing it. That’s ridiculous.
This sort of thing is probably true in many, perhaps all the states. And certainly in regard to Federal Law; this quote from Justice Breyer is illuminating:
The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.
For instance, did you know that it is a federal crime to be in possession of a lobster under a certain size? It doesn’t matter if you bought it at a grocery store, if someone else gave it to you, if it’s dead or alive, if you found it after it died of natural causes, or even if you killed it while acting in self defense. You can go to jail because of a lobster.
If the federal government had access to every email you’ve ever written and every phone call you’ve ever made, it’s almost certain that they could find something you’ve done which violates a provision in the 27,000 pages of federal statues or 10,000 administrative regulations. You probably do have something to hide, you just don’t know it yet.
If there is any response by legislatures - state and federal - in the wake of the this decision, it should begin with: simplify our laws. This, of course, comes in the wake of a 2,000 page funding bill, which, of course, adds to the above laws and regulations.
Third, the question of what actually happened...
F. Lee Bailey, the late Boston lawyer, used to give a guest lecture at various law schools on the subject of evidence. He would begin it by telling the law students that he was going to stage a demonstration and that they need to pay attention. Then he would have several folks stage a crime, an assault or an armed theft or some such thing, and the “perpetrators” and “victims” (actors) would run off the stage.
Then Bailey would start asking questions, recording what various members of the audience had witnessed. Invariably what one person had witnessed was not what others had witnessed. Few if any were ever to accurately describe the bad guy, even in the most basic of terms, how tall, what color shirt did he have on, etc.
The point Bailey was making was simple, but one few people really believe: no one really is very observant, even when warned; eye witnesses are horribly unreliable. Yet people will assert with absolute confidence that what they just said is “exactly what happened.”
And despite what we want to believe, videos do not make this much better. And can make it worse. If the video is crystal clear, and manages to take in the entire scene, and somehow manages to provide context, it may be adequate. But a lot can be missed despite the best of intentions. If you don’t believe this, consider the soldiers and sailors and airmen who were actually watching the video of that white SUV in Kabul several months ago. Remember, they were focused and trained, they were trying their best to get it right. No one wanted to put a round down range on the wrong target. And they got it wrong. There are all sorts of reasons why they might have, I don’t know what they are. I can guess, but I won’t. All I know is that they got it wrong; I don’t know why.
Now, switch to a 15 or 20 second slice of video at night, on a street in a Mid West city. The video as seen by most was not the original, relatively high resolution video, but most likely one that had been passed from server to server multiple times, cut down in resolution to make transmission easier, and provided with little to no context.
But people were willing to provide commentary, to pontificate, as if they had a direct link with the Burning Bush, as to the guilt of Rittenhouse. And the media and various politicians piled on, “convicting” Rittenhouse based on their own “Perfect Knowledge.” Yet, in the end their “perfect knowledge” wasn’t, and the state failed to prove its case.
The media needs to get their own houses in order. And for politicians who are sworn to protect the Constitution, the real lesson here is that they need to first protect our system of laws, not try to score points with their voting base.
About Pete O'Brien
Peter O’Brien has more than 30 years of successful leadership and planning experience in a wide range of organizations afloat and ashore on three continents. Mr. O’Brien’s Navy career included ten years at sea, more than a dozen years stationed overseas and multiple ...