Understanding the Law, What Took the Rittenhouse Jury So Long, and the Appeals Process - The American Spectator | USA News and Politics
Understanding the Law, What Took the Rittenhouse Jury So Long, and the Appeals Process
by
Judge Bruce Schroeder (The Hill/Youtube)

Editor’s Note: This article has been updated to reflect the verdict in the Kyle Rittenhouse trial.

Well, what took them so long? He was clearly innocent.

Well, it’s complicated. A proper jury should take some time. Not forever and a day, but also not five minutes. A trial is built not on the falsehoods of the mainstream media but on truth and facts, at least as close as fairness can get us to them. So the Left Media lied and lied, but the jury got to the truth. That is why there are so many rules of evidence. Let’s look at some of those rules:

We all have heard of “hearsay.” Technically, every law student learns the mantra-definition that “hearsay” is an “out of court statement offered to prove the truth of the matter asserted therein.” In other words, testimony must be uttered directly in court, under oath, before the fact-finder (who can be either a jury or a single judge), in the presence of the accused. The Sixth Amendment guarantees an accused the right to have testimony against him or her presented in his or her presence, to confront his or her accuser. Sure beats Joy Reid!  The Seventh Amendment guarantees a right to a jury in criminal cases. Sure beats MSNBC!  (The Fourth, not at play here, protects against unlawful searches and seizures; the Fifth, a bit at play in Rittenhouse, protects against compelling someone to testify against himself or herself; and the Eighth, protects against cruel and unusual punishment — like having a cable-TV provider who offers only MSNBC.)

What is wrong with hearsay? Why can’t a jury hear: “Last week, at the supermarket, my friend Joe told me that Sven admitted to him what really happened”? Well, you don’t need a law degree to kind of figure this out. Every kid has had a friend who told us something that we believed, and later we saw the friend would not stand behind his or her word. Jill told me that Geraldine stole the cookie in the cookie jar. Mom and Dad come home and ask: “Who stole it?” Jill and Geraldine both are there, and I tell my parents “Geraldine stole it.” Geraldine denies and starts screaming at me. I say: “Don’t lie. Jill saw you. She was right there when it happened. She told me so.” And then Jill blurts out: “I never said that.”

But she did. She did say that. She only never expected I would disclose here, tattling in Geraldine’s presence on her tattling. So now we don’t know whether Jill was being honest then, or what.

That is why we do not accept hearsay. You may have been the tattler. Or the tattlee. It happens every day. So we require that the person reporting on the stolen cookie do so under oath, a requirement born of a time when G-d and the Bible were sacred to almost everyone, and especially the Ten Commandments (alternately, the Ten Pronouncements) that include the Divine prohibitions against bearing false witness and against taking the L-rd’s Holy Name in vain. By requiring an oath, in court, in the presence of the accused, we maximize getting truth and avoiding “I-never-said-that” falsehoods. So the one surviving guy among the three whom Rittenhouse shot was obliged to tell the truth because, otherwise, he would face at least charges of criminal perjury if not the wrath of G-d Almig-ty. Accordingly, he admitted that, as long as he had his hands up, Rittenhouse did not shoot or even point a weapon his way. And the jury accordingly found Rittenhouse not guilty, despite the months of lies up and down the Left Media.

By contrast, the pathological liars at MSNBC and CNN can lie and up and down all day. In a real way, they even seem expected to lie. They face almost no adverse consequences for lying. They are not under oath. They are not compelled to face the accused. Their only crime is bad ratings. So if they can boost ratings by lying, they do just as others do to increase Twitter followers and Facebook “friends” and “likes” by being outrageous and profane. The only possible adverse consequences MSNBC and CNN liars face would be getting sued for defamation and losing. But defamation cases are so hard to win — and are so expensive to litigate. To bring a defamation suit sounding in libel (written defamation) or slander (oral) can cost a plaintiff $100,000 unless he or she can find a lawyer who will take the case on a contingency fee. And no lawyer will go on contingency in such a matter unless he or she believes such a tough allegation will stick to a verdict — and that the defendant has deep enough pockets from which to collect enough money to justify the effort. So it takes one heck of a lot of defamation to justify suing for it. Nick Sandmann of Covington, Kentucky, was such a one. In Rittenhouse’s case, the facts always were with him, but those facts are less likely to offer him as many roads as Sandmann had to sue successfully for defamation. He might be able to get somewhere on the lie that he transported a weapon across state lines, but that may not be enough for defamation damages. And if other lies can be fudged as “opinions,” he just would not win on defamation. Nevertheless, that and the threat of post-trial prosecution on criminal perjury charges are all we have left to induce a godless liar to tell the truth in open court.

There are so many other rules of evidence. Compound questions (“Did you eat the cookie, and is today Monday?”) are out because, if the witness answers “Yes,” we don’t know whether he or she was answering the first part, the second, or both. Likewise, we bar questions or testimony that is vague and ambiguous. We do not allow guesses. (Question: “Was it a Monday?” Answer: “I guess so.” Question: “Did Rittenhouse transport that rifle across state lines.” Answer: “I imagine so. He probably did. He must have. After all, he lives in Illinois, and he ended up with it in Wisconsin.”) No speculation allowed. (Question: “On what basis do you say that Rittenhouse came to murder people?” Answer: “He obviously is a White racist who is part of an organized vigilante gang. I mean, c’mon, look at him. Listen to him. That must have been in his mind. Isn’t it obvious?” Uh, well, no. Rather, it became obvious that he was and is not guilty on all counts.)

We do allow bonafide experts to testify, but only in areas of their expertise. I am an expert in aspects of Judaic religion, secular complex business litigation, writing commentary, baseball history, and football history until Colin Kaepernick took his knee and much of the NFL followed suit. However, I am not an expert on how internet algorithms operate. Therefore, if a court needs an outside expert to explain a matter requiring more than common lay knowledge, an expert’s testimony may be adduced at trial. But, even then, a court typically will limit each side to introducing only one expert per each matter requiring distinct expertise. The court’s goal is to obtain clarity for the lay fact-finder — judge or jury — but to avoid a situation where a long line of Harvard or Yale Ph.D.’s start testifying to the same thing, such that their value becomes cumulative just by overwhelming intimidation rather than by the expertise they offer. And the court will stop the expert the moment she or he tries testifying beyond that expertise into matters that are more mundane. We don’t need an expert to tell us that the car hit the plaintiff; that is for an eyewitness who saw the accident and is unrelated to any expertise needed to explain what transpires under an automobile hood.

Once all admissible evidence has been presented and all inadmissible has been stricken or barred, the jury goes to work as it did with Rittenhouse. In the jury room, some of the jurors may have started by saying they were persuaded by a certain piece of testimony, and then another may have pointed out that, “Hold on, that testimony was stricken. For whatever his reason, the judge said we have to ignore that.” So that takes time and clarifying. Sometimes the jury needs to ask the judge for the pertinent pages in the trial transcript, where the judge made that ruling of inadmissibility — or overruled the objection and allowed it in.

Likewise, many of us now were fixated throughout on one side of the trial. The pro-Rittenhouse universe was fixated that he was not a vigilante member, did not come to kill anyone, worked in Kenosha anyway, has all kinds of very close friends and neighbors and family in Kenosha, had stayed overnight in Kenosha, legally possessed the gun, a gun that had been stored properly in Wisconsin, shot and killed one guy who was a full-scale violent sick-o who had just been let out of a mental institution that very morning, shot and killed another guy who also was a violent sick-o with a rap sheet the length of the Mexican border and who even had pleaded guilty in a strangulation case, and shot a third guy who came at him and pointed a gun within 3-5 feet of him in a menacing way threatening to kill. So, for many of us, Rittenhouse was not guilty from Day One, so obviously so, that we may have expected a “not guilty” verdict within five minutes after closing arguments ended. But we see why, as explained above, it took a few days to get the verdict.

But there were the others who saw some drone video, heard other testimony from prosecution witnesses, and they inclined to believe that Rittenhouse perpetrated murder. Outside the court, in the world of MSNBC and CNN, that never was OK because, by the time of trial, everyone was learning better. But uncertainty still was OK for a while in the jury room, where the jurors were themselves characters in a play and were told they may not read articles like this one that discuss and analyze the case. Many jurors may have forgotten tidbits of testimony that we on the outside had read over and over again these past two weeks. So jurors needed to refresh and review the facts. Get a sense of each others’ perspectives, and hash it out. This understandably could have taken some a few days. It is not surprising. It actually is responsible jury behavior.

When a jury cannot come to an agreement on various charges, sometimes they compromise. The ones who want a more severe verdict trade in their preference to induce those pressing for acquittal to agree on convicting at least on something. In such cases, no juror may be happy with the final verdict, but that compromised and bartered verdict is what becomes attached to the defendant, perhaps for life. In other cases, the jury just cannot come to consensus, and they tell the judge as much. Most judges never would let a jury off the hook that easily after the first report of dead end. Too much time, energy, and money has been invested in the trial and in the lead-up preceding it to throw everything out and just “call it a day.” So the judge typically sends the jury back to keep deliberating — just figure out something, maybe even cut a deal among yourselves without disclosing to the rest of us how you got there. But, if after several efforts, the jury just cannot come to a consensus, the judge ultimately will have to order a mistrial over a hung jury. At that point, the prosecution has to decide whether to do it all over again, this time with new witnesses and a new jury — or just to fuggediboudit because next time will be the same. After all, certain testimony has been given under oath, and it cannot simply be changed the next time. That is what makes the Rittenhouse verdict of “Not Guilty” so powerful: the jury emerged in its first week with no compromise, no partial vindication but a complete exoneration.

A prosecutor needs to win to advance professionally in his or her own career. They cannot just keep emerging with hung juries. That is why so many prosecutors are cowards and will not even bring initial charges in any situation where they are not 99 percent certain at the outset that they will win. When they seek election to higher office (district attorney, attorney general) and advertise a “99 percent conviction record,” know that they typically never prosecuted dozens of heinous crimes that demanded to be prosecuted because, if they were not 99 percent certain at the outset they would win, they would not risk their won-lost record. So most prosecutors do not re-try hung-jury cases unless (i) they are pretty sure they can avoid mistakes the second time that they made the first, and that (ii) the mistakes from the first do not leave them handcuffed with evidence they cannot overcome on retrial, and (iii) the whole electorate — city or state — are watching. Here, the jury was not hung.

When O.J. beat the criminal rap on murdering Nicole with his “Downtown Jury” the first time, Marcia Clark and Chris Darden may have believed there was a strong probability they would lose again with such a jury pool or may have believed they could nail him if given a second opportunity. Regardless, since he now had been found “not guilty,” his protection against “double jeopardy” barred the prosecution from ever trying him again on those charges. Yes, he later could be sued in Nevada for a different, though related, incident when he entered a hotel room to secure certain memorabilia at gunpoint. Yes, the family of the deceased Ron Goldman could sue him separately in civil court for monetary damages, but the government could not again sue him criminally. And note that the burden always lies on the government to prove guilt, not on the accused to prove his or her innocence. That is why the verdict is to be “Guilty or Not Guilty” — not “Guilty or Innocent.”

As for appealing a verdict, there will be no appeal here because Rittenhouse is free, and the government has no right to appeal when a jury finds an accused not guilty. The rule is that a losing accused cannot appeal merely on grounds that the jury got the facts wrong. Rather, both sides are stuck with whatever the jury says are the facts that emerged at trial. After all, the only way we can revisit trial testimony on appeal after any trial is by reading the transcript, and no transcript ever gives the appellate court judges a sense of witnesses’ vocal tones, sarcasm, rolling eyes, or fidgeting during trial. Unlike the appellate judges, the jury of fact-finders have been in the courtroom during the actual trial and have seen and heard all non-spoken aspects of trial testimony, the stuff of which cannot be conveyed to appellate judges reviewing a dry transcript. (Think back even to the disparate reactions to the 1960 Nixon-Kennedy debate, where radio listeners thought Nixon had won, but TV viewers gave it hands-down to JFK.) So the only kinds of facts that ever can be relitigated on appeal are those that are “clear error” — so obviously wrong that even a dry transcript could leave no doubt that the jury was nuts. Otherwise, all that can be appealed from are errors of law, like: the judge allowed the jury to hear or see evidence that the law prohibits (like hearsay testimony), or barred evidence that the law permits, or allowed as an expert someone who was not expert in that area, or admitted an expert in a uniform or lab coat to testify to matters that did not even require expertise, or allowed an opening statement or closing argument that included forbidden assertions. (E.g., an attorney may not tell the jury, “I don’t know about you guys, but I personally sure would vote to convict.”) Or maybe the judge agreed to read certain jury instructions that should not have been read or refused others that should have been, or otherwise allowed the jury to be prejudiced and thus swayed from deliberating solely and purely on the facts.

In the Rittenhouse case, the prosecution was barred from showing photos and film of the defendant from days before the night of the Kenosha riot when Rittenhouse made certain obscene comments and was in the presence of some members of the Proud Boys. In a similar vein, the judge barred defense attorneys from disclosing to the jurors what we all know about the violent criminal pasts of the two who were shot and killed. The jurors had no idea that one was a viciously violent child rapist and the other likewise a violent convict who even had pleaded guilty in a strangulation case. So the jury dealt without certain facts we know — and still found Rittenhouse completely not guilty on all charges.

Sometimes, it may be prejudice to allow too much of the same evidence to be compounded by too many witnesses. In a murder case with bloody gory photos, it may be prejudicial to allow the prosecution to show too many of the photos if fewer equally convey adequately. It may be prejudicial, sufficient to overturn a verdict on appeal, for a jury to see an accused brought into the courtroom wearing orange prison clothes. During the year I clerked in the federal appellate courts, my judge acquiesced to a request that he also try a district court case. Word reached the court that the accused had been transported in, wearing prison garb. Thinking quickly — as he always did — my judge asked me to grab an extra sweater I kept in my office drawer at the courthouse so the accused could appear in “civvies.”

Thus, when a losing lawyer tells TV reporters on the courthouse steps that he or she immediately will appeal because the jury got the facts wrong — well, ain’t happening. That won’t cut it. The appeal almost always will have to be based on claims that the judge ruled wrongly on a critical aspect of law, whether regarding evidence admissibility, attorney or other courtroom conduct, or the like.

We now are at trial’s end, and the verdict is an unequivocal Not Guilty. If there are any riots in Kenosha stemming from the jury’s judicious fact findings, let it be clear and known that justice was done in the courtroom, but criminal incitement was perpetrated outside for months by the lying Left Media. And they better hope that Rittenhouse is not on the streets with his AR-15.

Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. In his rabbinical career, Rabbi Fischer has served several terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on regional boards of the American Jewish Committee, B’nai Brith Hillel, and several others. His writings on contemporary political issues have appeared over the years in the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, The Weekly Standard, and in Jewish media in American and in Israel. A winner of an American Jurisprudence Award in Professional Legal Ethics, Rabbi Fischer also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit.
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