There will be fallout from the Kyle Rittenhouse verdict, mark our words. Criminal law in the United States is shaped not by well thought out policy and initiatives, but public opinion. Why do we have minimum mandatories for crimes? Think about it. A person has been convicted or pled to a crime and presumably the judge has the job of sentencing. Why take the job away from them? Because of public criticism of a judicial action. We have minimum mandatory crimes because of public criticism of a judge exercising her discretion in the 1980's on a sentencing which caused an outrage. "The Judge let em go" people cried. And the legislature responded. Never mind that 99.9999% of the public didn't know the reasons behind the exercise of judicial discretion. The point is some defendant got a low sentence for a murder or a drug case and WHAMMO a minimum mandatory was born.
We now have minimum mandatories for bond, again because in some DUI Manslaughter case the public reacted to a defendant bonding out. We can probably get a defendant out of jail quicker on a kilo of cocaine case then if she is charged with throwing a piece of tinfoil at her boyfriend because that case is...(cue ominous music) A DOMESTIC VIOLENCE CASE dum dum da dum. And domestic violence is bad and must be punished, even pre-determination of guilt.
Which brings us to the Rittenhouse verdict. From what we saw, the verdict was supported by the evidence or lack thereof. But we were not in the courtroom. Neither were all of the people on MSNBC decrying the verdict as racial injustice-although all of the parties- the deceased and injured and the defendant were white. Rittenhouse ran into a social protest and somehow ended up shooting three people and killing two and that must be wrong AND WE CANNOT LET THAT HAPPEN AGAIN.
So there will be a fallout. What will it be? Well first we all know it is nearly impossible to prepare a good defense with a client in custody, so there will probably be the Rittenhouse Bail Reform Act which will deny release to any person accused of using a gun in which more than one person is shot.
Next will be the Rittenhouse Burden of Proof Act which which instruct a jury that in cases where a person is accused of shooting during a public protest the jury must ASSUME the defendant did not act in self defense and can only acquit the defendant if the defense proves "well beyond any possible doubt that s/he had no choice to do anything other than fire their weapon. Simple proof beyond a reasonable doubt will not be sufficient to acquit the defendant."
The division in the American public goes well beyond Red State/Blue State. It reaches deep into the criminal justice system. And for each case in which there is a verdict that one portion of the country does not support, there will be attempts to reform the criminal justice system to prevent such "injustices from occurring again."
We do not want to get too deep into this, but this brings us to the actions of the Defense Attorney Kevin Gough in the other case being watched- the killing of Ahmaud Arbery. The racial lines in this case are clear- white men are on trial for the killing of a black man who they saw running through their neighborhood. Our sympathies do not lie with the defense in this case, unlike the Rittenhouse case. But we write about Gough's ham handed attempt to ban "black preachers" from the audience of the courtroom.
The openness of courtrooms has always been an issue with us. We have gone after judges and staff who have attempted to ban family and friends from courtrooms in the name of order or space. A courtroom in the United States is open - period, unless the rules to close the courtroom are followed and then Mr. Ovalle and his Miami Herald legal team spring into action.
But while Gough is wrong, and went about it as about as wrong as possible, he has a point. We have defended clients accused of violence against law enforcement officers (Q: Officer, how did our client end up with two black eyes and a broken nose? A: When he scratched my pinkie, and realized he had committed a crime, he became so distraught that he began banging his head against the bars of the cell repeatedly"). And we have sat in courtrooms where a sea of uniformed officers sat in audience in an attempt to influence the jury. And we have complained to the Broward Judge, only to see the judge order their staff to set up more chairs for police officers while our client's family had to sit in the hallway (true story. And after our client was acquitted, the judge revoked his bond and took him into custody "for a records check").
Our point is no one should be banned from a courtroom. But what Mr. Gough was trying to do was protect his client. He was wrong. But his intentions were good - which of course triggers the "road to hell is paved with good intentions" aphorism.
That's a lot to chew on. Have at it.
And BTW why when a client is acquitted does a judge have to do anything else? In Florida they "find and adjudicate the defendant not guilty after the jury has found our client not guilty. In Wisconsin the judge dismissed the case with prejudice. Why is the jury's acquittal not enough?
10 comments:
It's worth noting that Mr. Rittenhouse, determined by a jury of his peers to be not guilty of any criminal charges, was banned from fundraising for his defense on the major digital platforms of our society. A police officer in Virginia (presumably employed by a state with governmental first amendment protections) was doxxed and fired for trying to donate to Mr. Rittenhouse's defense. (As an aside, these same platforms allowed for fund-raising for those arrested for arson, looting, and rioting).
The virtual town squares of our era -- Facebook, et al. -- removed any opinions that favored Rittenhouse's innocence. The current President of the United States, bewilderingly, called the defendant a "white supremacist" while campaigning as a private citizen.
Anyone who is committed to our line of work ought to worry. We have seen juries return verdicts supported by the law and the facts in the Rittenhouse case, in the Zimmerman case (another example where a sitting President of the United States weighed in)... We have seen Grand Juries decide not to indict in inflammatory situations like the Ferguson shooting (also based on facts and the law). But imagine what we do not see. The cases that slip by.
The illiberality of the contemporary Left is the primary threat to due process today. I imagine many of the blog readers, including its creator, identify sincerely as Progressives or Liberals or men and women of the Left. I do not presume to question the life experiences and wisdom of their politics, even though I disagree.
But I do urge everyone to consider the sacred nature of what we do in REG every day, and the climate that is worsening outside the courthouse and around us in the United States on a daily basis. The basic premises of our work -- that defendants are presumed innocent, that the state bears the entire burden, that race, ethnicity, and political ideology do not belong in deliberation -- are undeniably under attack.
Just today I have read the Governor of California, the Mayor of NYC, the President of the United States, and representatives from the New York Times, the Washington Post, CNN, NBC, and CBS all express anger over a verdict expressly supported by facts and law.
If you read To Kill a Mockingbird as a kid, if you were ever inspired by the ACLU (who now condemn the Rittenhouse verdict) protecting the rights of Neo-Nazis, if you ever imagined your legal work to be a manner of standing up for the little guy, I would hope you see the danger with the progressive Leviathan we see today, in which the mass media, corporations, technology, and the ruling political party all chip away at criminal due process.
The finding is one thing and the adjudication or judgment is another.
In a bench trial the judge is trier of facts and law and finds the defendant guilty/not guilty and then adjudicates or adjudges the defendant guilty/not guilty.
In a jury trial, the jury is trier of facts only and finds the defendant guilty/not guilty. The judge, then, adjudicates or adjudges the defendant guilty/not guilty. The proper way for the judge to state it is "Upon the jury verdict finding the defendant guilty/not guilty the court adjudicates/adjudges the defendant guilty/not guilty".
The judge may also withhold adjudication or grant any reserved motion for judgment of acquittal or mistrial or, also, a motion for arrest of judgment.
Monetary "fallout" is already happening. Rittenhouse's former erstwhile lawyers, John Pierce and Lin Wood, are sniping over the bail money.
https://nypost.com/2021/11/20/rittenhouse-former-lawyers-in-dispute-over-who-gets-2m-bond-money/
Lin Wood may have been a legit lawyer at one point, but now he's more of a showboat mess.
I believe the lawyer who set up the internet fundraising stole most of the money he handled. The shutdown of the go fund me , or whatever, was not simply an attempt to prevent him from funding his defense. You can’t have these websites assisting open theft.
Zimmerman is a child murderer, verdict or not. You’re not doing Rittenhouse any favors by lumping him in with the Zimmerman piece of shit.
Sad to say, Rittenhouse is the best example of Stand Your Ground laws. This kid gets told he can grab his rifle and go patrolling around to stop property crime. The evidence was he conscientiously avoided going nuts or endangering innocents. So he kills two people and one survives. Under Florida law he lawfully defended himself even though he certainly instigated the violence. This kid is probably ready to kill himself though. What Stand Your Ground changed from the common law is the idea that it is better to not kill people who are, for example, committing property crimes because they temporarily lost their temper or have mental illness. And anyone you accidentally shoot while playing Batman is also not a crime.
Great post
2 systems of justice. If you're white, you get the benefit of the doubt. If you're black, and not shot dead beforehand, you're liable to get convicted whether you did it or not.
"Why do we have minimum mandatories for crimes? Think about it. A person has been convicted or pled to a crime and presumably the judge has the job of sentencing. Why take the job away from them?"
If you think judges should have total discretion for sentencing defendants for all crimes, why have maximum allowable sentences either? Why should the legislature cap a sentence for any offense and take the job away from the judge? If a judge thinks the defendant is some irredeemable degenerate, shouldn't he be able to give him decades in prison for a misdemeanor?
There should be some consistency in punishment for the same crimes, whether they are minor or major offenses. Defendants convicted of murder or rape should get a commensurate sentences with those convicted of similar crimes. If judges have carte blanche to impose any sentence between probation and life for any felony, then of course the clean cut rich white boy who reminds the white judge of his own son gets off easy and the homeless black man who reminds the white judge of Willie Horton gets hammered, even though they both got convicted for the same offense.
Of course, mandatory minimums never ended sentencing disparity because prosecutors retain total discretion of how to charge defendants, and if certain defendants are privileged and connected, the prosecutors make sure to undercharge to avoid any mandatory minimum offense. And of course, they overcharge defendants to keep them in jail before trial and coerce them into pleas. The solution to that problem would require some major curtailment of prosecutorial discretion.
https://www.ojp.gov/ncjrs/virtual-library/abstracts/prosecutorial-discretion-and-plea-bargaining-united-states-france
Defense attorneys would love for prosecutors to stop overcharging, but they probably wouldn't like something that stopped prosecutors from undercharging or dismissing.
Someone’s been drinking the Fox News Kool Aid
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