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Commentary: Rittenhouse and Arbery cases, Jan. 6 probe reveal stench of America's broken justice system

Commentary: Rittenhouse and Arbery cases, Jan. 6 probe reveal stench of America's broken justice system

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Judge Bruce E. Schroeder admonishes Assistant District Attorney Thomas Binger, not pictured, about possible prosecutorial misconduct during the Kyle Rittenhouse trial at the Kenosha County Courthouse on Wednesday, Nov. 10, 2021, in Kenosha, Wisconsin.

Judge Bruce E. Schroeder admonishes Assistant District Attorney Thomas Binger, not pictured, about possible prosecutorial misconduct during the Kyle Rittenhouse trial at the Kenosha County Courthouse on Wednesday, Nov. 10, 2021, in Kenosha, Wisconsin.

You’ve probably heard the old political maxim, most popular in the crime-ridden 1970s, that a conservative is a liberal who’s been mugged. In the 2020s, it turns out that a criminal justice reformer is now a white dude who suddenly finds himself in jail after taking part in an insurrection to keep Donald Trump in the White House.

Right-wingers busted for taking part in the Jan. 6 riot at the U.S. Capitol — raised in their movement’s “tough on crime” agenda — are now shocked, shocked to learn about conditions in the District of Columbia jail where about 40 of the worst offenders are awaiting trial and complaining about everything from harsh treatment by guards to standing sewage and putrid food. Allies in the Trumpist movement claim this must be political retribution from big-city liberals. Extremist GOP Rep. Marjorie Taylor Greene of Georgia compared them to “prisoners of war.”

But the complaints are almost comical to D.C.-based activists who’ve been railing against these wretched conditions in their majority-Black city for years, only to have their pleas ignored. Even Washington’s attorney general had to concede that the publicity was only because of these new white inmates, that “recent reports about squalid conditions in the district jails are unfortunately not new.”

The D.C. jail situation feels like a metaphor for a much bigger American phenomenon as 2021 — in which the nation is still trying to come to terms with the upheavals of the prior year, including the violent end to a profoundly criminal presidency and a racial reckoning that sent millions of citizens out into the streets — nears an end.

After Trump and the George Floyd protests, Americans are apprehensively looking for justice — and not liking what they are seeing so far. TV viewers this month have been riveted by the trials of the right-wing vigilante Kyle Rittenhouse and the three men who killed Black jogger Ahmaud Arbery, and frequently appalled by what’s on their screen.

In the Georgia trial of the three white men who confronted Arbery with their unfounded belief he was a burglar and shot and killed him in the ensuing confrontation, the selection of a jury with 11 white members and just one African American (in a 27% Black county) and a defense lawyer’s stunning comment that he didn’t want “Black pastors” as spectators has made folks understandably question how far justice has really advanced in the American South. So far, the vibe is almost like the 1955 trial of two of the Mississippi white men who killed the Black teen Emmett Till — acquitted by a laughing jury of 12 white men in just 67 minutes, in a trial where Black spectators were largely segregated up in the balcony.

But the biggest flashpoint so far has been the Kenosha judge, Bruce Schroeder, who is presiding over the homicide trial of Rittenhouse. He’s the white Illinois teenager who crossed state lines with an AR-15-style rifle on a vigilante mission during August 2020 racial unrest — after an (ultimately unpunished) cop shot Jacob Blake, who is Black, in the back seven times — and ended up killing two men and wounding a third.

TV viewers closely following live coverage of the trial on cable news are seeing how the Wisconsin bratwurst, if you will, of American justice is made as they watch the mercurial and often imperious Schroeder — a 37-year veteran of the bench. His conduct has been weird or even appalling at times — from a cringe-invoking Asian food “joke” to asking the courtroom to applaud on Veterans Day for a vet who was also a defense witness — but also seemingly skewed toward Rittenhouse’s defense of armed vigilantism.

From preventing lawyers from calling the men gunned down by the teen as “victims” to blocking prosecutors from bringing up Rittenhouse’s past, including an association with the violent Proud Boys, and also snapping “Don’t get brazen at me!” at them, Schroeder’s conduct has done nothing to reduce fears that this Kenosha trial will put a green stamp of approval on political violence just as it becomes a key tactic of the right.

But ponder this: This is how Schroeder acts when the eyes of the entire nation are thrust upon him! Imagine how justice operates in his courtroom when nobody is looking. One fairly powerless woman — a 28-year-old Milwaukeean named Markea Brown, convicted of retail theft from a mall — found that out when she was sentenced in 2018 by Schroeder to 15 months followed by two years of supervised release in which she’d be required to tell store managers about her criminal record in order to shop. The judge insisted “embarrassment does have a valuable place in deterring criminality,” but the Wisconsin Court of Appeals struck back and tossed that provision out, noting that public shaming isn’t supposed to be part of the U.S. justice system.

It’s no wonder that a 2006 logjam in hearing cases in Kenosha County was tied to defendants desperate to have any other judge besides Schroeder hear their case, or that a Black resident of Kenosha told The Washington Post that “I think Kyle Rittenhouse is going to get off. They gave the case to the worst judge in town.”

That’s just one more small reminder that the rule of law in this country — so often a key ingredient for those who believe in American exceptionalism — is not really all that. Arguably the most exceptional thing about our legal system has been its steady decay since its ambitious creation more than two centuries ago.

You’re surely familiar with the progressive critique of American justice — a Draconian system that’s harshly punitive compared to the rest of the developed world. Among similar nations, the United States has the highest incarceration rate (and it’s not even close) and one of the few remaining death penalties as well as extreme use of solitary confinement, backed by a police force that is more militarized and more deadly. And almost every day brings new headlines about individual outrages — like a North Carolina man who spent 24 years in prison for a murder he didn’t commit, thanks to a witness who “entirely made up” her testimony.

But arguably an even deeper rot is the U.S. tendency to pat ourselves on the back for our revolutionary legal system when that revolution was in 1776 and most of the world has moved on to better, more progressive ideals. In a rare but revelatory 2008 piece, New York Times legal writer Adam Liptak pointed out the U.S. Supreme Court is increasingly ignored as a role model by the rest of the world, with nations looking instead to European precedents “in cases concerning equality, liberty and prohibitions against cruel treatment.” More narrowly, can you find a better example of the American preference for stale inertia over real reform than the fact that Schroeder — “the worst judge in town” — has been reconfirmed by voters again and again in his 37-year run?

But I also think the reason that the precarious state of American justice is provoking so much anxiety right now is part of the hazy aftermath of last spring and summer’s protests after the Minneapolis police murder of George Floyd. Despite their differences, the trials for Rittenhouse and Arbery’s killers hinge on the same dangerous 2020s-inspired ideas — a conservative belief that citizens need to become vigilantes because a more progressive state in which many political leaders endorsed (verbally, if not so much by their actions) the Black Lives Matter movement is a threat to white power. All four men in these closely watched trials were defending white supremacy — and their right to do that by any means necessary is what really is being judged this autumn.

The problem is that Rittenhouse and three Georgia defendants are waging this battle on a playing field that is heavily tilted in their favor. It starts with the notion that white vigilantism and the American way of policing that rules our modern “law-and-order” regime are both rooted in the ideology of white supremacy, dating back to 19th-century “slave patrols.” The 11-1 mostly white jury in the Arbery case reflects the reality that even a series of U.S. Supreme Court rulings and occasional stabs at legislation haven’t been able to remove the specter of rank racial discrimination either from jury selection or the courtroom writ large.

Instead, the American audience is getting a front-row seat to a warped justice system that is wired in so many different ways, large and small, to favor those in society with wealth or with white privilege, and to punish those — like a Milwaukee shoplifter or the innocent man whose life was disposable to North Carolina’s legal establishment — who are not.

And in many ways, the ongoing Jan. 6 investigation is where the rubber hits the road, since the assault on the Capitol — which ended with five dead and scores injured, many police officers — was both the extreme manifestation of the right’s political violence fantasies and possibly a trial run for a next time that could be far worse. The defendants’ pushback on awful jail conditions that none of them would have dared protest for the majority-Black population is just one sign that these white accused criminals are expecting different treatment. What’s so alarming is the very real possibility they will get what they want.

In the sentencing of the mostly smaller fish who’ve pleaded guilty so far, the punishments for participating in an insurrection against the United States government have tended to be much more lenient than for a shoplifter in Kenosha, or a black woman who mistakenly tried (unsuccessfully) to vote, also while on supervision.

This weekend, folks on the left side of the political dial did rejoice — and understandably so — over news that close Trump associate Steve Bannon, a key figure in what amounted to a coup attempt, has been indicted for contempt of Congress in refusing to testify before the House committee probing Jan. 6. But Bannon — indicted on other charges just last year only to be pardoned by Trump on the way out the door — and the other Trump associates declining to testify are playing a long game, hoping that the flaws and inherent delays built into the justice system can stall any punishments until the GOP regains control on Capitol Hill and ends the probe.

That leads to the most important question of all, which is whether President Joe Biden’s deer-in-the-headlights attorney general, Merrick Garland, will somehow summon the courage to do what his predecessors dating back to Gerald Ford’s pardon of Richard Nixon have not — hold an ex-president in Trump, as well as his inner circle, accountable for their crimes, starting with the insurrection they plotted in open view.

The public anxiety over the trials of Rittenhouse and Arbery’s killers isn’t just over the immediate prospects for injustice but also that the precedent of sanctioned political or racial violence will spread, pandemic-like, to the Jan. 6 aftermath and then to the ultimate terror — that America is lurching toward a next presidential election in which one side will see violence as a legitimate tool for gaining power. And we are seeing nothing in America’s rusted-out and badly bent system of justice that suggests any serious willpower to stop them.

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Michael Paul Williams — a columnist with the Richmond Times-Dispatch — won the 2021 Pulitzer Prize in Commentary "for penetrating and historically insightful columns that guided Richmond, a former capital of the Confederacy, through the painful and complicated process of dismantling the city's monuments to white supremacy."

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What a seismic difference a trial has made to public and media perceptions of Kyle Rittenhouse. When he was charged at age 17 with shooting three men, two fatally, during racial unrest in Kenosha, Wisconsin, last year, various media accounts described him as a rifle-toting white supremacist who drove across the border to shoot Black Lives Matters protesters in the racial unrest that followed ...

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