What the Arbery and Rittenhouse Verdicts Couldn’t Tell Us

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Nov. 24, 2021
By Sarah Lustbader

Ms. Lustbader is a writer and public defender in New York City. She has worked on and written extensively about the criminal legal system and opportunities for reform.

When public defenders go to court, we represent people who are routinely referred to as “bodies” and, just as often, treated as such. Many of us wish that the public could witness the degradation and absurdity of everyday legal proceedings.

That kind of public scrutiny, however, seems to accompany only the kinds of high-profile cases that people turn to for answers to broader societal questions. Two such cases were the recent trial of Kyle Rittenhouse for the Aug. 25 killing of two people at a Black Lives Matter protest last year in Kenosha, Wis., and that of Gregory McMichael, Travis McMichael and William Bryan for the 2020 killing of Ahmaud Arbery. But a single trial is not a referendum on social justice, and looking to criminal convictions to solve our problems will only further entrench them. Whatever the outcome — acquittal in Mr. Rittenhouse’s case and convictions for Mr. Bryan and the McMichaels — no single verdict can resolve the underlying systemic issues.

Blockbuster cases usually hinge not on lofty moral questions but on narrower factors, like the idiosyncratic laws and procedures of a particular jurisdiction. Central to the Rittenhouse case was Wisconsin’s self-defense law, which allows a person to use deadly force if he or she “reasonably believes” it is necessary to prevent “imminent death or great bodily harm.” There is no duty to retreat before using deadly force in Wisconsin, and, unlike most states, Wisconsin even allows a person who provokes violence to use self-defense after exhausting other means to avoid harm.

Convictions in high-profile cases like that of Mr. Rittenhouse are not paths to justice; they can’t be, because the jury is tasked not with deciding overarching questions of fairness but rather with applying a specific set of laws to a specific set of facts.

The first person Mr. Rittenhouse shot, Joseph Rosenbaum, was unarmed but visibly volatile — witnesses testified that he had threatened to kill multiple people, including Mr. Rittenhouse. He chased Mr. Rittenhouse into a parking lot and lunged at him and — according to Mr. Rittenhouse — reached for the barrel of his gun, after which Mr. Rittenhouse shot him. After that shooting, a group of protesters turned on Mr. Rittenhouse. Gaige Grosskreutz, who was shot by Mr. Rittenhouse but survived, had been armed with a handgun. He testified that he ran toward Mr. Rittenhouse and thought that he was “an active shooter.” While fleeing, Mr. Rittenhouse fell. Anthony Huber attacked him, hitting him with a skateboard, before Mr. Rittenhouse shot and killed him. Then Mr. Rittenhouse shot Mr. Grosskreutz after Mr. Grosskreutz pointed his gun at him and advanced. So the self-defense claim was, legally, not a stretch.

More arcane were the discussions regarding the charge of weapons possession. Adults can openly carry firearms in Wisconsin, but when it comes to minors, the law was confusing, even to the judge. Minors are not allowed to carry guns, but one subsection could be interpreted to exempt long rifles. A local attorney called it an “extraordinarily poorly worded statute.” But regardless of the clarity — or wisdom — of the law, once it was determined that the rifle that Mr. Rittenhouse carried to the protest had a 16-inch barrel, the judge dismissed the charge.

One could argue that if Mr. Rittenhouse had not brought a military-style semiautomatic weapon to a volatile situation, no one would be dead. But while this line of inquiry may be consistent with many people’s moral intuition, and might even make good policy, it is not the law, and Wisconsin’s law was not on trial.

Other features of the Rittenhouse trial were not specific to Wisconsin, and were more representative of the perniciousness of the criminal legal system as a whole. An officer testified that after the shooting, Mr. Rittenhouse approached his car with his weapon strapped to his chest and his hands up in surrender, but officers ordered him to get out of the way and rushed past him to search for the shooter. Apparently, it did not enter their minds that the baby-faced white teen could be the culprit. So Mr. Rittenhouse went home, and ultimately turned himself in.

Even after he was in custody, when it became clear that Mr. Rittenhouse did not understand his Miranda rights, officers stopped questioning him. I represent indigent defendants and have never seen an instance where police willingly passed up the opportunity to question a suspect without a lawyer present. I wish my clients would be afforded this respect, but a conviction for Mr. Rittenhouse would not have made it any more likely.

The judge, Bruce Schroeder, also made headlines for his erratic, seemingly uninformed bluster and his general quirkiness. Some of his decisions seemed biased in favor of Mr. Rittenhouse, such as when he barred prosecutors from calling the people Mr. Rittenhouse shot “victims,” saying that the term was “loaded,” but allowed defense lawyers to call them “arsonists” and “looters” if the evidence supported such labels. But Judge Schroeder is no anomaly. He is 75 years old and the longest-serving circuit judge in Wisconsin. Anyone who has practiced criminal law or even attended a trial knows that plenty of judges are not the objective and omniscient arbiters of popular imagination: They are idiosyncratic and sometimes biased. I’d like to live in a world where judges, whatever their personal quirks, are similarly respectful of indigent clients, but a conviction here would not have made it so.

Convicting Kyle Rittenhouse would have sent Kyle Rittenhouse to prison — that’s all. Laws and legal procedures are not ethical codes and cannot sustain the weight of moral reckonings on a national scale. Looking to these trials to repair social damage, answer a larger question or fulfill some notion of justice is a mistake. Beyond the futility of hope, looking to the criminal system — which was heavily influenced by slave codes and still serves to reinforce racial hierarchies — further centers it in our moral discourse.

Why do we turn to blockbuster trials to satisfy our hunger for justice? Americans are told from birth that punishment solves problems. Retribution is the closest thing we have to a common religion. Redress certainly feels good, like a sugar high; I, too, felt a wave of relief upon reading that Mr. Bryan and the McMichaels had been convicted of killing Mr. Arbery — but it does not make us stronger or healthier as a society.

The fixation on these trials also points to a dearth of justice anywhere else. Police brutality seems like an inescapable part of American life, but convicting Kyle Rittenhouse or even convicting Rusten Sheskey, the officer who shot Jacob Blake, would not have halted the abuses. Neither can criminal convictions repair the deep racial inequities that lead to Black people being killed by police. George Floyd’s killer, Derek Chauvin, was convicted of murder on April 20, 2021. That did not prevent the death of Ma’Khia Bryant, a 16-year-old Black girl who was shot by police in Columbus, Ohio, the same day.

The injustice extends beyond police abuse. Conspiracy theories exacerbate public health crises. The attack on voting rights by the right leads us ever closer to minority authoritarianism. And urgent warnings of climate disaster have gone unheeded for decades. A win for the prosecution in the Rittenhouse case may have felt vindicating for those on the left side of the culture wars, but it would not have addressed any of these problems.

Neither would it have loosened the hold of racism on our legal system.

To get a sense of the way racism pervades our criminal justice system, I would recommend paying less attention to blockbuster cases and instead visiting a local criminal court on a random day and witnessing the parade of low-income people of color shuffled before the court, most of them accused of minor, victimless offenses. Pay attention as a judge decides, within minutes, how much money will be required for each person to get out of a cage. Listen to the defense lawyer describe the life circumstances of each client. And then ask what can be done. What structures, literal or figurative, must be dismantled, built or changed in order to create the change we seek?

That work is harder, and it’s slower, but maybe one day my clients will not be called “bodies.” Maybe they will be afforded the same dignity and deference given to Mr. Rittenhouse.

https://www.nytimes.com/2021/11/24/opin ... house.html