It’s easy to see why Americans are divided about the acquittal of 18-year-old Kyle Rittenhouse. There is understandable outrage among the millions of Americans, Black and white, who feel that Rittenhouse was, by bringing an AR-15 style to a volatile situation in Kenosha, Wis., a provocateur who got away with murder. Many also feel that the judge in the case tilted the playing field too steeply in favor of Rittenhouse’s defense.
There are two things on which all sides should agree. First, deep sympathy for the families of Joseph Rosenbaum, 36, and Anthony Huber, 26, whom Kyle Rittenhouse killed, and demonstrator Gaige Grosskreutz, now 28, whom he wounded, during a 2020 Black Lives Matter protest in Kenosha.
Second, once emotions subside, everyone might step back and appreciate this incontrovertible demonstration of a fundamental precept of American justice. By design, the government, with its enormous resources, is meant to face an onerous burden when it attempts to convict anyone of a crime and take away a person’s most precious asset, their liberty. As the18th-century legal authority Sir William Blackstone memorably put it, “The law holds that it is better that ten guilty persons escape, than that one innocent suffer.”
Thus, good criminal defense lawyers, like the ones here, serve all of us by testing the government’s proof. That’s what this former federal prosecutor, who never defended a person accused of crime, believes.
The real injustice is that the heavy burden of proving guilt beyond a reasonable doubt has not regularly been a feature of criminal justice when the defendant is a person of color, particularly Black. Thursday’s commutation of Julius Darius Jones’s death sentence is Exhibit A in that case. The governor of Oklahoma acted after the state’s Pardon and Parole Board recommended that he commute Jones’ sentence, and after “[s]everal members of the panel said they doubted the evidence that led to Jones’ conviction.” But he was denied any possibility of parole after 20 years in prison for a crime where the burden of proof appears not to have been met. So now he has no immediate opportunity to demonstrate his innocence in a fatal shooting during a carjacking in 1999.
The Rittenhouse jury agreed unanimously that the prosecution failed in meeting that burden. Whatever we might feel about the judge, or about the ability of a then-17-year-old to carry a gun to a protest, we have to appreciate that the jury’s unanimous agreement on that point is difficult to ignore when the jury knew that two people are dead and another was wounded as a result of Rittenhouse’s actions.
Some say that 3½ days of deliberations was long. In fact, the time taken demonstrates a level of consciousness in wrestling with an extraordinarily difficult decision. It would have helped Americans’ trust in the verdict if there had been more than one Black juror in a pool of 20, even acknowledging that Kenosha is only 12 percent Black.
The jury obviously believed that at least the evidence created a reasonable doubt, including testimony that the survivor whom Rittenhouse had shot pointed a gun at him. We can blame the prosecutors or judge all we want, but that stubborn fact was almost surely insurmountable in a self-defense case.
The jury also watched Rittenhouse lose control on the witness stand. While the cynical prosecutor in me wondered how carefully Rittenhouse had been prepared, it’s hard to dispute that he felt remorse for the deaths he caused.
Remorse is not a legal defense to crime, but jurors are human beings who cannot be expected to put aside their feelings. It’s a very hard thing for jurors to know that their guilty verdict can subject a young person to a lifetime in prison.
We must allow for those hurt and offended by the verdict to experience their loss and anger, and to demonstrate it peacefully for as long as their grief lasts. Ultimately though, Americans need reasons to come together. Holding up together the ideal of innocence until proven guilty beyond a reasonable doubt should be common ground for all of us.
Dennis Aftergut is a former federal prosecutor.