Professor Ronald S. Sullivan, Jr. is criminal law specialist who trains Harvard Law students and practices law. He has just issued a superb explanation and analysis of the Kyle Rittenhouse verdict—fair, objective, and best of all, readable by those whose eyes usually glaze over at legal scholarship.
It should, in a just and sane society, permanently shut up—embarrass, even— the politicians, celebrities, and social media dolts who are still calling the jury’s verdict “racist” or an indictment of the legal system. Of course, it won’t. If there is a more annoying example of people loudly braying uninformed opinions about a technically complex matter that they know little or nothing about, I can’t think of it right now.
On “The View,” ABC’s depressingly popular “gullible idiots watching progressive idiots” news show, panel leader Whoopi Goldberg (because in the land of the blind…well, you know the metaphor), declared that Rittenhouse was a murderer. People will take that as authority, you know. She played a video of Anthony Huber’s father on CNN holding an urn containing his son’s ashes and emoting bitterly against Rittenhouse going free, as if the lament of a parent in such situations ever is anything but an irrelevant appeal to emotion. Then, armed with this irrefutable “evidence,” Whoopi gave her verdict on Rittenhouse, saying of Huber (who was shot while beating the teen with a skateboard), “He saw someone get shot. He thought he was doing the right thing. So … even all the excuses in the world does not change the fact that three people got shot. Two people were murdered. To me it’s murder. I’m sorry.”
I’m sorry too, Whoopi. I’m sorry you lack the sense of responsibility to keep your opinions on issues you don’t have the knowledge and background to understand to yourself, and instead wield them to make the public stupid. I’m sorry you believe “thinking you are doing the right thing” is ever a justification for doing the wrong thing (and you don’t believe that yourself: were the men who lynched Emmett Till blameless because they thought they were doing the right thing?). You have no way of knowing what Huber thought anyway. I’m sorry you are so ignorant that you can say something like “if he shot them and they died, then he’s a murderer,” which is redolent of your failure to take the initiative over the years to fill the gaps in your high school dropout education. Mostly I’m sorry that you’re not getting enough work as an actress and comic, both occupations you’re brilliantly qualified to do, so you’re stuck with being an incompetent pundit for a living.
But I digress. Prof. Sullivan’s name should be familiar to readers here: he was the professor that Harvard allowed to be attacked by students and stripped of his job as one of the college’s House senior residents because he was defending Harvey Weinstein, an unpopular defendant, which is what criminal lawyers must do. His treatment is one of the main reasons I’m boycotting my class reunion next year.
Sullivan’s analysis of the Rittenhouse verdict is here. You should read it, and you should send the link out widely and with gusto. I hesitate to quote from his long essay because that will give some an excuse to not commit to the whole piece, but three excerpts should demonstrate what an excellent job he has done. For example, on the standards at issue in the trial…
The principal issues at trial were three: 1) whether or not Rittenhouse was under imminent threat; 2) whether or not Rittenhouse’s expressed fear for his life was reasonable; and 3) if Rittenhouse’s fear was reasonable, whether or not the self-defense justification is barred by Wisconsin’s doctrine of provocation.
On the first prong, a reasonable jury clearly could have found that the threat was imminent. Indeed, Gaige Grosskreutz, the government’s own witness, testified that he pointed a gun at Rittenhouse. This is a textbook case of an imminent threat. Not much additional needs to be argued with respect to Grosskreutz. It is not reasonable to argue that standing at gunpoint fails to meet the imminent threat standard. The facts regarding the other two alleged victims are also compelling on the imminent threat prong. Anthony Huber was hitting Rittenhouse with a skateboard, and at one point even touched Rittenhouse’s gun. Witnesses testified that a “hyperaggressive” Joseph Rosenbaum charged at Rittenhouse, threatened to kill him, and lunged for his gun.
On the weakness of the prosecution’s case:
The state’s case was infirm from the beginning. I cannot emphasize enough how problematic it was that the state’s star percipient witness, whom they put on the witness stand very early in the trial, admitted to pointing a firearm at Rittenhouse. This handed the jury reasonable doubt on a silver platter. Trial lawyers know and academic psychologists confirm that juries respond to concepts of primacy and recency: they remember best what they hear first and last. One of the very first things the jury heard from the prosecution’s witness was that Rittenhouse reasonably responded to an imminent threat of death. That did not bode well for the remainder of the trial.
Finally, on the often-stated assumption that a black defendant in Ritterhouse’s situation would have been convicted, with which Sullivan (wrongly, I think) concurs…
But assuming, for the sake of argument, that a black defendant would have been convicted by an overwhelmingly white jury, what does it say about the Rittenhouse verdict? What are the implications? What do we do? Normatively, is the point that we should have convicted Rittenhouse on insufficient evidence to atone for the way blacks are treated in the criminal legal system? Or, is the point merely descriptive, shining a light on an unfair system, but with no prescriptive corollary? What would we have gained with a Rittenhouse conviction? To convict Rittenhouse, a putative innocent under Wisconsin law, strikes me as a means to an end unrelated to the substance of the trial. I dare say that most people of goodwill would find that to be unethical and immoral. Kant certainly would not be happy. My view is that the aim of the criminal legal system should be to level up, not level down. We should spend our energies insisting that the system treat black defendants as Rittenhouse was treated, and not advocate for the system to treat Rittenhouse as black defendants are, and have historically been, treated. Leveling down inures to no one’s benefit. The derogation of rights would spiral downward—and quickly—such that all of our rights would be in jeopardy. And the very communities already treated badly in the criminal legal system would be treated even worse.
Again, read it all.
And somebody send it to Whoopi.