Written by: Kayla Sleeper
Edited by: Sean Tonra
“Each case is distinct, but they weave together the fraught era of reckoning over issues of race and justice -- something taking place nationwide . . .”
- TV producer and CNN writer, Zachary B. Wolf
Within five days last fall, the nation heard two consequential verdicts regarding high-profile and polarizing cases from 2020: the Kyle Rittenhouse trial and the trial of Ahmaud Arbery’s killers, Gregory and Travis McMichael and William “Roddie” Bryan Jr. Following Rittenhouse’s acquittal on all charges, a conviction of Arbery’s killers seemed less certain, and so an atmosphere of relief was apparent that Wednesday morning when the flood of guilty charges was read at Glynn County Courthouse. Convicted of the majority of charges, including malice murder in the case of Travis McMichael, the prosecution in the Arbery trial secured a major success that juxtaposed the Rittenhouse trial’s prosecution’s devastating loss just days prior.
Why was the verdicts of these two cases so vastly different? Perhaps in Arbery’s case, the racism caught on camera was just so blatant that even a 92% white jury could agree on the reprehensibility of the crime. Or perhaps Rittenhouse was made out to be too much of a far-right hero, garnering support from conservatives to post bail and even receiving donations from celebrities, such as actor Ricky Schroder and MyPillow CEO Mike Lindell, known for being pictured in his company’s TV commercials. While the role of white privilege in Rittenhouse’s acquittal should not be understated, there seem to be other surprising courtroom blunders that may have driven the result as well.
Before the Rittenhouse trial began, the use of the word ‘victims’ was banned in the courtroom by Judge Bruce Schroeder—a rule he stands by in all his criminal cases. Yet the judge’s impartiality became suspicious when he allowed the terms ‘looters’ and ‘rioters’ to be used in reference to the three men shot by Rittenhouse: Joseph Rosenbaum and Anthony Huber who were killed, and Gaige Grosskreutz who was injured. This was a damaging blow to the jury’s perception of them, exacerbated by the prosecution’s video evidence. The ambiguous footage seemed to bolster Rittenhouse’s self-defense claim by characterizing the night’s chaos rather than explaining the series of his own movements that the prosecution claimed escalated violence that night. John Gross, associate professor at University of Wisconsin and director of the Public Defender Project, commented on the use of video evidence, saying that “jurors could easily see that this was a tense, rapidly evolving situation where there was the potential for violence from multiple sources”—quite the opposite effect the prosecution intended.
The prosecution’s evidence continued to backfire on them throughout witness testimonies; each one “put forward did something to help their case but also did something that was harmful to their case,” said civil rights lawyer and former prosecutor Charles Coleman Jr. During Grosskreutz’s testimony, defense attorney Corey Chirafisi got him to admit that Rittenhouse did not shoot at him until he pointed his own gun at Rittenhouse. Though Grosskreutz claimed a lack of intent to fire, one can imagine the jury’s burgeoning sympathy for Rittenhouse's self-defense claim. Videographer Richie McGinniss—called by the prosecution itself—admitted to Assistant District Attorney Thomas Binger that Rosenbaum said ‘Fuck you’ before reaching for his weapon. Binger needed to make clear that Rosenbaum’s intent was unknown—at a minimum—but this response from his own witness was a detriment to their argument’s credibility. The last testimony-gone-wrong came in the form of Rosenbaum’s fiancee, Kariann Swart’s. The prosecution themselves opened the floor for a conversation of Rosenbaum’s state of mind by asking Swart if Rosenbaum had taken any medication that day, which allowed the defense to question what kind of medication. Rosenbaum had taken prescription medication for bipolar disorder and depression that day, and in our society still marred by stigmas surrounding mental illness, this concession only worked to further develop the narrative of Rosenbaum as an “unstable aggressor” and a threat to Rittenhouse
These errors in the prosecution’s case made it harder on them to prove without a reasonable doubt that Rittenhouse did not act in self-defense and that he intended to kill the men in question, necessary provisions for the first-degree intentional homicide charge. Thus, another critique of the prosecution is that they “overshot” their case with that lofty goal instead of going after second-degree intentional homicide. This might have been more achievable, containing the mitigating circumstance of unnecessary defensive force. Under second-degree, the prosecution could instead have argued that while Rittenhouse may have acted in self-defense, his use of force was disproportionate to the perceived threat.
Further, two additional mishaps that occurred were grounds for the defense to appeal for a mistrial, of which they took immediate advantage by filing for a mistrial with prejudice. Had a mistrial have been declared, prosecutors would have been unable to retry Rittenhouse on these shootings. In one instance, Binger questioned Rittenhouse about his silence following his arrest, a right provided under his Miranda rights. Judge Schroeder was so inflamed by the question, he asked the jury to leave in order to upbraid the prosecution for attempting a prohibited line of questioning. The second overstep was that the prosecution shared a compressed version of the video evidence file to the defense, thus preventing equal access to evidence, though unintentional. Despite the outcome of the trial, some justice may still be acquired through civil lawsuits against Rittenhouse.
Comparatively, the success of the prosecution in the trial of Arbery’s killers can be attributed to the more obtainable charges and the undeniable evidence brought forth. The charges of felony murder required the prosecution to prove that the accused committed a felony—false imprisonment or assault in this case—that brought about Arbery’s death, and given video evidence of the assault that occurred, this proved to be quite achievable. Under the malice murder charge, the prosecution was able to prove that Travis McMichael intended to kill Arbery in the struggle as well.
Armed with video evidence and over 400 exhibits in their evidence list, the prosecution brought forth a compelling argument, while the defendants’ argument was based largely on a Georgia “catching-fleeing-slave” citizen’s arrest law that was appealed shortly following the emergence of the case and proved to be unfounded by the prosecution regardless. Equipped with only surveillance footage of Arbery visiting a home under construction on occasion, the defense failed to bring forth any evidence of Arbery committing a crime, let alone a felony, which the citizen’s arrest law required. Even if it could have been proved Arbery was trespassing, that still would have only been a misdemeanor. Also, the killers’ intent to only detain and not harm became muddled by their failure to announce their intentions to Arbery before approaching and instigating the altercation.
Despite the odds against the Arbery case prosecution team—before prosecutor Dunikoski, two county prosecutors recused themselves, as did five judges in the Brunswick Judicial Circuit—they were able to help deliver a verdict that bends toward racial justice. They expounded a compelling evidence list and delivered a closing statement perfected by extensive preparation, unlike the Rittenhouse prosecution, whose closing arguments seemed to sum up not only their damaged arguments but their courtroom errors as well, when they had to take a break for technical difficulties in showing their video footage—footage that proved to be the final blow to their argument built on a stack of cards.
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