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Kyle Rittenhouse: The Media's Assault on the Rights of the Accused

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To the relief of many, the Kyle Rittenhouse trial is over and a Kenosha County, Wisconsin, jury found Rittenhouse not guilty on all counts. While they believed that Rittenhouse acted legally in self-defense, it is clear that the vast majority of progressive American mainstream journalists believed him to be a murderer and would accept no other explanation.

Now it is one thing to believe something but quite another to throw out false information in the hopes that media members can help rig a conviction, and that is what was seen in the coverage of this case, from pretrial, the trial itself, and to the current moment. Furthermore, the progressive mainstream media coverage of this case goes well beyond the simple falsehoods we heard on a regular basis and threatens the fundamental rights of the accused that have been a bedrock of US criminal law since before the founding of the republic.

Following the verdict, I turned on MSNBC, which has been a leader in the false claims that Rittenhouse was a so-called white supremacist who went to Kenosha to hunt and kill people. The network has not disappointed in its postverdict coverage, beginning with the accusations by a panel of attorneys, law professors, and an official with Black Lives Matter. We heard that this was another Emmett Till verdict, that the judge in the trial was a white supremacist who rigged an acquittal, and that the entire case was about promoting white supremacy.

Conversely, the prosecutors were heroic and the jurors simply failed to do their duties. MSNBC contributor Ja’han Jones declared: “The Kyle Rittenhouse trail was designed to protect white conservatives who kill:”

The case had the makings of an acquittal before the trial even began. The outcome seemed clear even before an almost exclusively white jury pool was selected, even before Judge Bruce Schroeder created an uproar by ruling that the slain protesters could be referred to as “rioters” and “looters” but not “victims,” even before Schroeder refused to punish Rittenhouse for what prosecutors said amounted to a violation of his bond conditions. Rittenhouse is a white teen who abides by white rules, and white people empathetic to those rules seemed poised to insulate him from repercussions.

The day he pleaded not guilty to felony homicide, Rittenhouse flashed a white supremacist symbol and was “loudly serenaded” by a group of men at a bar who belted out the anthem of the Proud Boys, a far-right extremist group, according to prosecutors.

Most likely, Rittenhouse make the “OK” sign, which until recently meant, well, OK. However, in our racially charged body politic, people must look for everything to be interpreted racially, even if no racial intent was intended or demonstrated.

Nor was MSNBC the only offender in racializing the verdict, as President Joe Biden, after earlier having falsely declared Rittenhouse to be a “white supremacist,” decided to pour even more gasoline on the fire in an official White House statement following the verdict saying that he was “angry and concerned.” In a bizarre, Bidenesque move, he then said this:

I ran on a promise to bring Americans together, because I believe that what unites us is far greater than what divides us. I know that we’re not going to heal our country’s wounds overnight, but I remain steadfast in my commitment to do everything in my power to ensure that every American is treated equally, with fairness and dignity, under the law.

I urge everyone to express their views peacefully, consistent with the rule of law. Violence and destruction of property have no place in our democracy.

Wisconsin’s Democratic lieutenant governor Mandela Barnes declares:

Over the last few weeks, many dreaded the outcome we just witnessed. The presumption of innocence until proven guilty is what we should expect from our judicial system, but that standard is not always applied equally. We have seen so many black and brown youth killed, only to be put on trial posthumously, while the innocence of Kyle Rittenhouse was virtually demanded by the judge.

These statements are mind-boggling departures from reality. While giving lip service to their “respect” for juries, Biden and Barns then officially call out jurors for giving what they clearly state is the “wrong” verdict. Afterwards, after making a divisive statement, Biden pronounces himself to be the healer of nations and then calls for the “rule of law,” forgetting that this situation came about because Biden supporters burned, looted, and destroyed a number of homes and businesses in Kenosha, many of them owned by racial minorities. Writes former New York Times reporter Nellie Bowles:

Until quite recently, the mainstream liberal argument was that burning down businesses for racial justice was both good and healthy. Burnings allowed for the expression of righteous rage, and the businesses all had insurance to rebuild. 

When I was at the New York Times, I went to Kenosha to see about this, and it turned out to be not true. The part of Kenosha that people burned in the riots was the poor, multi-racial commercial district, full of small, underinsured cell phone shops and car lots. It was very sad to see and to hear from people who had suffered. Beyond the financial loss, small storefronts are quite meaningful to their owners and communities, which continuously baffles the Zoom-class.

Indeed, the two men Rittenhouse shot to death were burning and looting, actions the mainstream media equated with protesting injustice against African Americans. Only in the bizarre world of progressivism can destroying the businesses and homes of racial minorities be considered a righteous protest against harming those same racial minorities.

As former NY Times columnist Bari Weiss points out, the media continually pushed its own version of the truth, not letting reality get in the way:

It did not help that in many places last summer, cities and police forces indicated or explicitly said they wouldn’t defend people’s property from destruction or burglary during the unrest. And it didn’t help our understanding of what transpired on August 25 that we were told repeatedly by national media outlets that there weren’t riots, and there wasn’t violence in Kenosha that night until Kyle Rittenhouse discharged his weapon. We could all see the blocks of burning buildings with our own eyes. 

To acknowledge the facts of what happened that night is not political. It is simply to acknowledge reality. It is to say that facts are still facts and that lies are lies. It is to insist that mob justice is not justice. It is to say that media consensus is not the equivalent of due process. (emphasis mine)

Unfortunately, the sins of progressive journalists and politicians did not end with false public statements about Rittenhouse but extended into the conduct of the trial itself. The media and Democratic politicians demanded a show trial in which guilt would be understood from the outset in the way the Derek Chauvin trial played out in Minneapolis. Democratic congresswoman Cori Bush of Missouri declared: “The judge. The jury. The defendant. It’s white supremacy in action. This system isn’t built to hold white supremacists accountable,” she wrote. “It’s why Black and brown folks are brutalized and put in cages while white supremacist murderers walk free. I’m hurt. I’m angry. I’m heartbroken.

The rhetoric is well beyond the pale and it tells us something about how progressive Democrats plan to govern in the future, and it also says something sinister about how they regard the rights of the accused in our courts. First, let us look at what the Daily Beast called “shocking moments” of Judge Bruce Shroeder, who presided over the trial.

Shroeder, who is, by the way, a Democrat, took fire for his ruling that forbade prosecutors from referring to the men shot by Rittenhouse as “victims,” but did not rule out being able to call them “rioters” or “looters.” His rulings on nomenclature should surprise no one who is familiar with the rules of evidence in criminal courts.

Rittenhouse did not deny having shot the three men (killing two of them) but contended that he was engaged in lawful self-defense and that the people he shot posed a danger to his life. In that situation, the use of “victim” would not only be prejudicial to his defense but also would be grounds for reversing a guilty verdict. Likewise, if the men he shot could be shown to have been engaged in rioting and destroying property and attacking other people, such information would bolster his claims. And, indeed, the men who were shot not only had criminal records (that information was withheld from jurors), but eyewitness testimony along with photos and videos documented they were engaged in violent behavior that fateful night long before they saw the defendant. They decidedly were not the “peaceful protesters” that the media and Democratic politicians have continued to claim they were even in the face of incontrovertible evidence.

Then there was the supposed “racist” statement against Asians. Here is what he said: “I hope the Asian food … isn’t on one of those boats in Long Beach Harbor.” Yes, this is what the Daily Beast claimed was “shocking.”

The exchanges between Shroeder and the prosecutors—condemned by the media and Democratic politicians—involved prosecutors violating the rules of evidence and disobeying direct orders from the judge, orders that applied both to the prosecution and the defense. Furthermore, when Thomas Binger publicly condemned Rittenhouse for invoking his Miranda Rights, he committed an offense for which a prosecutor can be disbarred. Shroeder had every right—and duty—to dress down Binger publicly.

Prosecutorial sins were not limited to disobeying the judge’s orders and attacking a defendant for exercising legal rights. They also committed a Brady violation when they turned over an inferior drone video compared to what they had in their own possession, and other evidence helpful to the defense turned up at questionable times as well.

At the press conference after the verdict, Mark Richards, one of the defense attorneys claimed that the prosecution put two witnesses on the stand knowing that two police detectives who had interviewed them wrote that the witnesses were lying. Speaking of his own career past as a prosecutor, he said:

I never went after somebody like they did. And when they put on the Khindri brothers, knowing they were lying, that is a problem. You’re playing with an 18-year-old’s life and they were willing to put those guys on. They put them on knowing they were lying, and that’s garbage.

If what Richards said is accurate (and he had written evidence to back his claims), then the prosecution knowingly suborned perjury, which is a felony in Wisconsin. At the very least, if Richards made a true statement, then the prosecutors in this case should face disbarment. This will not happen, of course, which also tells us something about the commitment of progressives to the rule of law that they claim to support.

The Rittenhouse case has uncovered a major threat to modern American jurisprudence, but not the threat that progressives are claiming. Attorney Scott Greenfield in his blog Simple Justice wrote chilling words during the trial:

As a general proposition, it is a tenet of progressive thought that the end justifies the means, such that the only “good” outcome is a “good” outcome, regardless of what it took to get there. Consequently, a trial ruling, a perception of evidence or a verdict that fails to comport with the desired outcome is inherently bad and wrong, since it’s impossible to be good or right if it doesn’t achieve the desired goal. Lie, cheat or steal, the only thing that matters is that the right outcome is achieved. In this case, the only acceptable outcome would be a verdict that Kyle Rittenhouse is guilty of murder. And that does not look likely at the moment.

He continues:

When a bad outcome appears inevitable, rationalizations appear out of the ether to explain how things could possibly go so very wrong. After all, a fair legal system couldn’t possibly acquit Rittenhouse because he’s guilty. Not because of what happened, not because of the law, but because that’s the verdict reached in the Court of Social Justice. No matter how many lawyers explain that the judge’s rulings, from the in limine motion to preclude the prosecution from calling the deceaseds “victims” to Judge Schroeder’s admonishing the prosecutor, Thomas Binger, for trying to use Rittenhouse’s exercise of his Fifth Amendment right to remain silent as evidence of guilt, to seeking to use propensity evidence that had been precluded against him, were both correct and within the bounds of normal trial practice, these are seen as absolute outrages by the unwary. Each instance that “surprises” the unduly passionate by not coming out the way their motivated reasoning would suggest becomes another piece of irrefutable evidence of how broken, how “fixed,” the legal system is.

To add insult to injury, it’s not just the unduly passionate activists crying that this is a travesty of “justice,” but it’s being supported by some lawyers of the left and progressive prawfs. And those pundits who are trying to smooth over, at least a little bit, the more outlandishly ridiculous claims of impropriety are being denigrated as closet racists for not joining the chorus of this grave injustice being perpetrated by white supremacists.

Thus, we have the president of the United States and the lieutenant governor of Wisconsin calling out jurors for doing what they were charged to do: examine the evidence and reach the best verdict they could. Progressive rhetoric aside, this was no Emmitt Till and the mixed-race jury that acquitted Rittenhouse did not engage in race-based jury nullification. Unfortunately, progressive journalists and politicians will not be satisfied until high-profile criminal trials resemble Stalin’s Moscow show trials. That may be our future sooner than we might think.

Author:

Contact William L. Anderson

William L. Anderson is a professor of economics at Frostburg State University in Frostburg, Maryland.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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