Critical Justice Thinking
Terry H. Schwadron
Nov. 25, 2021
These hyped attempts to read broad political and racial conclusions into individual jury decisions in the various legal trials that managed to coincide on the trial calendar in three separate states feel like overreach.
Indeed, together, these verdicts pull in different directions.
Legally speaking, the jury in the Kyle Rittenhouse trial in Kenosha only cleared him of the specific charges of intentionally killing two and injuring a third; however the verdict is being celebrated in conservative quarters, it was not a blanket promotion of self-defense laws as a blind for carrying semi-assault weapons in a protest over another racial policing incident.
In Charlottesville, the jury decision in a lawsuit that slapped $25 million in penalties on nine White supremacists for organizing hate rioting that ended in a fatality specifically stopped short of finding broader hate crimes at play.
And in Georgia on Wednesday, state prosecutors won guilty findings against three White defendants who chased and killed Ahmaud Arbery for jogging while Black, but race was specifically downplayed through a trial that almost never came about. And the jury decision could not be read as a broad rejection of laws allowing citizen arrest.
What we should take away from all three trials is that Race is a live issue in America, critical theories taught or not, and that our state and federal lawmakers and courts are ill prepared or ill motivated to fix the root problems.
Even those who want to clap the justice system on the back a couple of times in praise that “the system worked” as intended. If anything, the system barely worked in each of these cases.
Taking a Closer Look
On cue, after each individual decision, we see the pundits, the hangers-on, the official trial watchers take the verdicts as a Go sign to launch broadsides about the state of American values. It may be a valiant effort to find meaning, but these are opinions based on too little information.
In Kenosha, the prosecutors proved inadequate, and the defense managed to turn a story about a teen crossing state lines to pick up a rifle into the specific couple of moments before the gun went off — three times — each time in self-defense. Donald Trump unartfully even told his followers that Rittenhouse never should have been prosecuted in the first place, and the political Right is falling over itself to make Rittenhouse a hero rather than worrying about the obvious conclusion that the self-defense argument is going to spawn more incidents.
In Charlottesville, the lawsuit seeking financial penalties came about because the feds could not prosecute a criminal case. And there is no chance that a White nationalist movement will go out of business; it will continue to return, as it is in Europe, under different stripes.
And in Georgia, the county district attorney who had original control of the case did not bring charges at all, botched the investigation, and now faces criminal charges herself. The prosecution itself flowed by several offices before a state agency took it out of the hands of local district attorneys.
It doesn’t sound like the justice system working as intended; it sounds more like something between luck and persistence to even get these cases into court.
And it will require another federal prosecution of the same circumstances to even air the arguments about race and seeing this killing as a hate crime.
Perhaps the best television comment was that the guilty verdicts in Georgia represented relief, not rejoice.
Hyper-sensitivity on Race
We’ve become hyper-sensitized to these individual trial outcomes, just as we are to so many other localized election decisions or state laws or protests that become nationalized by television. They have become our surrogates for national discussions and our leaders, our businesses, our academics all become invested in using their pretext to push a point of view.
Just as America complains through school board protests and book bans that it is upset just to hear about Race and Divide, we are fixated exactly on Race and Divide.
So, half the country is delighted that there is no legal problem with teen Rittenhouse deploying and shooting a semi-assault rifle to defend against Black Lives Matter protesters. Half the country celebrates joyously that three self-styled enforcers are convicted for chasing down jogger Arbery in the wrong neighborhood.
The difference between conviction and blanket release may lie in the weirdness of jury makeup or whether the prosecution picked the right charges for this jury or over the procedural rulings of the individual trial judge or over whether there were enough citizen-generated video to show more than one version of events. The trials are not wide plebiscites about policing or race or public policies over stand-your-ground laws.
The sadder truth in all these trials is that the incidents should never have happened, the teen had no business being in Kenosha in the first place, and the three guys in Georgia had no business stalking Arbery.
We continue to see these aberrant trials because we have accustomed ourselves to fear of The Other, and the need for self-protection and self-comfort in all things. That, in turn, has created an interpretation of the Second Amendment to allow and encourage vigilantes, to spread concealed carry permissions for legal guns, to put police and protesters alike in personal danger, to create laws that should have no need to exist, particularly with loose language that can be stretched to absurdity.
It’s time for some critical justice thinking.