Vargas: Lessons from the Rittenhouse and McMichael trials

On Feb. 23, 2020, Travis McMichael, Gregory McMichael and William Bryan, Jr. hunted and killed Ahmaud Arbery, a Black man out for a run in a small Georgia town. The three white men, with no evidence, believed him to be a man who broke into a nearby construction site.

On Aug. 25, 2020, Kyle Rittenhouse drove to Kenosha, Wisconsin with an illegally obtained AR-15 assault rifle, and joined a group of white supremacist agitators at a peaceful Black Lives Matter protest. After instigating an altercation with protestors, Rittenhouse opened fire, killing two people and injuring a third.

The trials of these four men, which occurred back-to-back in November, set off a media frenzy. It was a rare opportunity for Americans to get an inside view into our justice system. Here are some lessons I took from these trials:

Let’s start with the prosecutors. In the American legal system, prosecutors have tremendous power. They have almost complete control over if and when charges are filed. The McMichael trial illustrates how this prosecutorial discretion can be abused. The district attorney, Jackie Johnson, initially refused to bring charges against the trio—one of whom was a former employee. It was not until cellphone video footage of the incident went viral that the state took over the case and brought charges.

This is not the first time prosecutorial discretion has come under scrutiny in the growing docket of anti-Black violence cases. Prosecutors were criticized for declining to charge the police officers in the shooting death of Breonna Taylor, an unarmed Black woman sleeping in her apartment when officers broke in and opened fire.

Professor Bruce Green argues an informed public is the best antidote to prosecutorial misconduct. The challenge is that, outside of these cases, prosecutorial misconduct occurs within the opaque confines of DA offices. Prosecutorial decisions are rarely explicit, and even when they are explicit, they may be pretext. Still, the McMichael case should remind the public we have a duty to monitor our elected prosecutors and their offices.

Now let’s move on to judges. In the Rittenhouse trial, Judge Bruce Schroeder raised eyebrows early on with an order preventing the prosecution from referring to those killed as “victims,” but allowing the defense to call them “looters” or “rioters.” As law professor Mary Fan points out, this actually isn’t an uncommon move, as the use of the term victim could prejudice the jury. In fact, many of the judge’s decisions, including throwing out the gun charge late in the trial and chastising the prosecutor for trying to sneak in excluded evidence, were consistent with criminal procedural rules.

That doesn’t mean Schroeder is a good judge. In addition to his misunderstood rulings, there was also a lot of nonsense, including his jokes about Chinese food, his insistence that the courtroom applaud a defense witness because he was a veteran, his angry rant about the media, his rambling fascination with his cellphone and his Trump rally song ringtone.

When asked whether quietly terrible judges are common, former prosecutor Ken White tweeted, “YES. In fact… MOSTLY THEY ARE WORSE.” But there’s good news. Most trial court judges in the United States, including those in California, are elected, so let’s remember we can choose not to re-elect the bad ones.

Finally, let’s talk juries. President Joe Biden responded to the Rittenhouse verdict by saying, “The jury system works, and we have to abide by it.” While the comment probably doesn’t rise to the level of a “gaffe,” it’s almost entirely beside the point. No one was calling for an end to the jury system. Critics have, however, challenged many elements of the jury system that can be unfair and may be appropriate candidates for reform.

For example, both the Rittenhouse and McMichael juries were almost all white. All white juries are the result of many factors, including housing insecurity in minority communities, making it harder to deliver summonses; economic insecurity, making racial minorities less likely to respond for fear of having to miss work; and distrust of the legal system.

That lack of diversity has real consequences. Not only does it create a perception of bias that reinforces distrust of the criminal justice system, but a Duke University study suggests all-white juries do, in fact, convict Black defendants at higher rates. So, with all due respect to the president, these cases should be a reminder that the jury system is not perfect and there are ways to improve it.

There’s so much more that could be written about these cases, but I will leave that to others. These are just a few of the lessons that jumped out at me as I watched coverage of these cases.

San José Spotlight columnist Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce. His columns appear every second Thursday of the month.