Will the Rittenhouse circus come to Colorado?
We are at an inflection point with the credibility of American jury trials. The most significant impact of whatever verdict is rendered in the trial of Kyle Rittenhouse will not be about the Second Amendment or self-defense or race. It will be about what has taken place outside of the courthouse.
And I fear the Rittenhouse circus will be coming to our town with the yet-to-be-scheduled trial about the death of Elijah Mcclain?
I wrote this op-ed while the Kenosha jury was in its third day of deliberations. The 10-day murder trial for Rittenhouse was compelling, including rare testimony by the defendant. The prosecution endured several well-publicized errors during trial, including the court dismissing two charges for failing to prove them, having a witness’ testimony struck, and the judge loudly admonishing the lead prosecutor for unethical questioning and then, when the prosecutor stated that he had acted in “good faith,” the judge responded, “I don’t believe you.”
In 27 years of courtroom work, I have never heard of that happening. Without being in the courtroom and seeing the jurors’ reactions to the presentation of evidence, trying to guess at their verdict is more of a fool’s errand than normal.
Nonetheless, while the outcome is yet unknown, there is serious public doubt about whether the 17-year-old who shot three people — killing two — with a semi-automatic rifle will be convicted of anything.
The growing concern about a potential acquittal has caused many in the mainstream media to begin the steady drumbeat of a corrupted and biased system from which no justice can be rendered. A prominent CNN host even wondered aloud if the judge was “racist” and treated the shooter “as if he’s his grandson,” despite the fact that every person involved — victims included — in the trial is white (one juror is a person of color).
The growing corruption of our criminal justice system is not coming from judges with Lee Greenwood ringtones on their phones. It is coming from outside the courtroom.
Communities involuntarily hosting cases falling under the “social justice” umbrella have witnessed first-hand the efforts to convert our due process-protecting justice system into an ends-justify-the-means demand for convictions long before any trial begins. These demands are accompanied by veiled — and not-so-veiled — threats of violence if the verdict is less than what protestors have demanded as “justice.” Justice for these extremists is only about convictions and maximum incarceration. The facts are as they collectively believe them and the law is irrelevant.
The justice they demand is anathema to our system of justice. We believe that our process — our deliberately inefficient, defendant-protecting, rule
heavy, adversarial process — generates justice under the law. The system does not exist to render ultimate justice, or street justice, or after-life justice. The protestors demand a specific outcome, process be damned. They are cognizant — and encouraging — of the potential impact the fear of their wrath and its resulting aftermath may have on jurors. Far from her district in Los Angeles, Congresswoman Maxine Waters traveled to Minneapolis to demand the officer who killed George Floyd be convicted of murder and encouraged protestors to be “more confrontational. We’ve got to make sure they know we mean business.”
Who is “they?” The jury hearing the case? The judge?
To be clear, every effort outside of the courtroom to influence what takes place inside the jury deliberation room risks corrupting the justice system and imperils the future credibility of any jury verdict on cases of great importance to our community. Such efforts should be universally condemned, regardless of ideological persuasion. The alternative is the erosion and death of our court-based justice system.
How will we impanel an unbiased jury of a defendant’s peers with the risk of “confrontation,” civil unrest, property destruction, and personal harm hanging over potential jurors merely for serving as a jury in a social justice, politically-charged trial? Will we trust verdicts that are generated under the dark cloud of impending lawlessness?
Citizens could not be blamed for saying anything to get out of jury service on such cases. What impact will the risk of such anarchy, loss of property and even life have on the decisions of a judge in deciding what evidence to admit or sentence to hand down? What impact on a prosecutor sworn to only bring charges based on a good faith belief in a defendant’s guilt and a reasonable likelihood of success at trial? We will risk weak cases being prosecuted to assuage the rage of those who would choose a lawless response to a lawful, but unfavorable prosecutorial decision or verdict.
In Colorado, we have already seen how fear of the social justice mob impacts decision-makers — in Adams County, in 2022 the cases involving the death of innocent Elijah Mcclain.
Last year, we witnessed Gov. Jared Polis buckle to a change.org national petition and appoint the state attorney general to investigate and prosecute a case already investigated by a real prosecutor with decades of experience. Polis can now claim that he took action, whatever happens afterward is not his fault. “Don’t blame me,” he’ll say.
This year, we witnessed an attorney general with zero prosecutorial experience gobble up months of a statewide grand jury’s time to make a charging decision he himself should have made. Weiser can now claim he took action, whatever happens in court is not his fault.
In fact, I’ll speculate that the only reason the Mcclain case will not proceed to trial next year is so Attorney General Phil Weiser does not have to risk a possibly disastrous courtroom outcome while seeking re-election.
We will likely witness the Minneapolis-kenosha style social justice protesters descend on Brighton, demanding convictions before the jury is seated. Unlike the politicians who occasioned the trial, the Mcclain case jurors will have nobody else to hand the decision to. They, like the Kenosha jurors, will be told to fashion a verdict solely on the evidence and the law without regard for the 500 Army National Guard troops summoned by their governor and stationed outside the courthouse to quell a presumably violent response to the wrong verdict.
When we have finished destroying any trust in our courts to render justice, or worse, we have redefined justice as a specific outcome, instead of the result of due process, we will have no more need for courts or its jesters.
We can end the charade of a process-driven justice system and turn to vigilantism, each person or group left to craft their own version of justice to fit whichever wrong they deem committed. We could save billions in taxpayer dollars. What is at stake in each successive social justice trial is far more than the verdicts rendered.
What is at stake in the Kenosha and Mcclain cases is not justice, but the justice system.