Kyle Rittenhouse stands with his attorneys, Corey Chirafisi, and Natalie Wisco, as the jury leaves to deliberate during his trial at the Kenosha County Courthouse in Kenosha, Wisc., November 16, 2021. (Sean Krajacic/Pool via Reuters)

It is always important to distinguish between your perspective of an ongoing trial and the perspective of the jury.

It is always this way with high-profile trials: They grip our attention for a few days, then a sense of frenzied boredom sets in if the jury takes a few days to decide the case.

That is usually what happens. By contrast, as I argued during Derek Chauvin’s trial for killing George Floyd, a quick verdict and lack of jury deliberation notes in a complex case that takes many days to try are signals that a jury may have been swayed by prejudicial outside influences. Chauvin may not have gotten due process (which, of course, is a different issue from whether he was guilty). Most of the time, though, juries do their best to shut out the noise and take seriously their obligation to give defendants a fair trial.

Your Perspective v. the Jury’s Perspective

Over the last few days, I’ve offered this caution to people who are totally convinced about what the Rittenhouse outcome should be: It is always important to distinguish between what you know (or think you know) about the case as an analyst or consumer of news and the perspective of the jury.

The jurors, unlike virtually all of us, have lived with nothing but the case for the last few weeks. They are aware of seemingly small things that happen in the trial — things perhaps not significant enough to get much press coverage, but that are highly significant to the jury watching the case get built.

On the other hand, the jury (we must presume) does not know what we know from the coverage of the case — particularly matters that were excluded from evidence, or that are debated through the prism of the case and that become central to the public discussion.

To take a concrete example, many people (myself included) who are persuaded by Rittenhouse’s self-defense claims have been flabbergasted by the conduct of the prosecutors. It is basic to what we think about the trial and its likely outcome. So it bears emphasizing: Your impression is apt to be very different from the jury’s impression.

The jury, for example, saw some of Judge Bruce Schroeder’s scolding of ADA Thomas Binger, but not most of it. Indeed, the worst of the scolding was because Binger broached matters that should not have been mentioned in the jury’s presence, so the jury was sent out of the room for the better part of the woodshed sessions. For the most part, juries try in good faith to follow the judge’s admonition to avoid media coverage (including social media) of the case. So they are not privy to the hot takes on Binger’s performance and that of the other lawyers. They don’t know, for example, how bizarre many commentators (including yours truly) found Binger’s Bungalow Bill routine with the Rittenhouse rifle during summations.

Bottom line: Don’t assume that because you’ve formed strong impressions about evidence or players in the drama that the jurors share those impressions. Their experience of the case is both more intense and less expansive than yours.

This Jury May Not Need to Send Deliberation Notes

Now what’s going on in the deliberations? The short answer is: We don’t know. We never do — not really — until there is reporting on them afterwards. But here, things may be even more opaque than usual.

See, most of the time, when there are no major factual disputes in a case, the law is clear, and the defendant pleads guilty. This is the unusual case that goes to trial under circumstances where the facts are fairly clear and, but for a few points, not subject to much credible dispute. (The prosecutors maintain that Kyle Rittenhouse was the assailant, not the assailed, in the fateful encounter with the first man shot and killed, Joseph Rosenbaum, but that is not a rational interpretation of what happened — which is why the prosecutors spent so much time demagoguing Rittenhouse for choosing to be on the scene with a gun in the first place.)

That is, this is a case where the evidence is clear, and the principal dispute is a point of law: Did Rittenhouse’s actions constitute self-defense as a matter of law, such that he has a complete defense to murder, attempted murder, and reckless-endangerment charges?

What’s the relevance of that in terms of our analysis of what’s happening in the jury deliberations?

Well, most of the time, the window we get into deliberations is the notes that juries typically send to the judge, asking for read-backs of testimony, or an opportunity to review physical evidence, or to rehear the judge’s instruction on a point of law. But here, in a case where the facts are pretty clear, the judge provided the jurors with a copy of the legal instructions at the start of deliberations. The only things these jurors have asked for are extra copies of the instructions (which are about 40 pages long). Obviously, individual jurors want to be able to read for themselves as their discussions take place.

That is to say: In this case of a dispute on a point of law, not matters of fact, the jurors may have everything they need for the purpose of their deliberations by having the court’s legal instructions. They may not send out many notes, if any, asking about testimony and exhibits in evidence.

Significance of ‘Lesser Included Offenses’

A last point. There has been some discussion of the fact that the prosecutors asked for the jurors to be instructed on so-called lesser-included offenses — e.g., to be advised that even if they find Rittenhouse did not commit an offense such as intentional murder, he may be guilty of some subset form of homicide that is less serious than murder.

My hypothesis about this is the following: Self-defense is an all-or-nothing defense. If Rittenhouse had a right of self-defense, then he is not guilty of the charges the state brought, including the less-included offenses within those charges. End of story.

Nevertheless, the prosecutors obviously asked for instructions on the lesser-included offenses because they calculated that if the jury were struggling with a straight-up choice — murder or self-defense — there’s a high probability they’d opt for self-defense and acquit Rittenhouse of all charges. Consequently, by inserting the lesser-included offenses into the deliberations, they give jurors a middle-ground of conviction to settle on. That would be a victory for the state — not the serious convictions prosecutors were hoping for, but serious enough that Rittenhouse would face significant prison time (though not life imprisonment).

I do not think the lesser-included offenses are a factor at the early stages of deliberations. It’s guilty or not guilty on everything. But if it turns out that the jury is deadlocked, the lesser-included offenses could become a big factor as the deliberations drag on . . . because at that point, it’s either a compromise verdict or a hung jury.

No one would be happy about that. But a compromise verdict would be deemed vindication for the state. A hung jury would be a victory for Rittenhouse — though not the acquittal he wants and which I believe he should get based on the evidence.

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