Sunday Commentary: Unequal Justice… What If Kyle Rittenhouse Were Black?

By David M. Greenwald
Everyday Injustice

The criminal justice system is not broken many say, it is working just as it was designed to work.  And for many, that means two system of justice.

As Alameda Public Defender Brendon Woods tweeted, “Today is just a reminder – there are two systems of justice.  Two system of justice.”

The Legal Aid Society of NYC tweeted, “The Rittenhouse case is a devastating reminder of the power and privilege that comes with whiteness. Black and Latinx people, including many of the New Yorkers we represent, fare worse for accusations of far less severity and are never treated with such humanity.”

As Justin Blake—the uncle of Jacob Blake—put it, “I don’t know how they came to the conclusion that he’s innocent, but this is why African Americans say the whole damn system is guilty.”

The show-stopping moment in the movie adaptation of John Grisham’s “Time To Kill” has the lawyer defending a Black man accused of killing two men who brutally raped his ten-year-old daughter, running through the litany of atrocities these men did to the man’s daughter.  And of that description of her broken, beaten body, he asked the white southern jury to “imagine she’s white.”

In the idealized world of John Grisham and Hollywood this is enough to momentarily snap the jury out of their pre-programed prejudices and see the humanity of the situation and the reality of a father defending his daughter.

Why is this inevitably always about race, some of our commenters are bound to ask yet again—because you cannot tell the story of the criminal legal system without talking about race.

The story is one of unequal justice, and race underlies that historic inequality.  That’s what the Kyle Rittenhouse verdict is about—even if you happen to believe that the jury, and thus the system, got it right.

As Bryan Stevenson put it, it’s better to be rich and guilty, than innocent and poor.

Perhaps to that we can add white.

People of color that I know have made the point throughout that if Kyle Rittenhouse were Black, had he carry a loaded weapon into a protest of white people, he probably would not have lived to have been tried, even if he managed to fire off shots and kill people in the crowd attempting to confront him as Rittenhouse did.

If Black Kyle Rittenhouse had shown up at an anti-vax rally, with a weapon and the crowd chased him down and he shot two people dead, what would have happened?  One, he probably would have been shot dead by police or bystanders and, two, he likely would have been portrayed as a thug and convicted in front of an all-white jury.

Kyle Rittenhouse benefitted of course, not just by race, but the fact that he was a cute little kid with a baby face rather than a bearded and long-haired proud boy-looking person.

But the advantage here is not just appearance and unconscious or conscious bias.

A few years ago I remember reading Anthony Ray Hinton’s book, The Sun Does Shine—he spent more than 30 years on death row before being exonerated by Bryan Stevenson.

Hinton wrote, when he talked to his attorney for the first time, his attorney said,  “Yeah, I’ll look into it. They’re only paying me $1,000 for this, and hell, I eat $1,000 for breakfast.”

“He laughed, but it wasn’t funny.”

That’s how you get the death penalty—a defense attorney who doesn’t have or fails to use the resources to do a thorough investigation, to put on an affirmative defense, to counter the prosecution’s defense.

As Supreme Court Justice Ruth Bader Ginsburg wrote in 2001, “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty.”

And who doesn’t get represented at trial?  People of Color.  The poor.

From the National Exoneration Registry: “African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in ‘group exonerations.’”

Kyle Rittenhouse benefitted because he was represented by an attorney that offered an affirmative defense, and was not an overworked attorney with 100 other clients to defend at the moment, attempting to scrap together meager resources for a critical expert.

In the case of Hinton, for example, his attorney used $500 to hire an expert on forensics to show that the bullet that killed the person could not have been fired from Hinton’s old and probably inoperative gun that had never been fired.

The person they hired was blind in one eye and easily discredited by the prosecutor.  We later found out that the judge probably would have extended the $1000 for experts and investigators if requested by the defense—the defense never did petition the court.

Hinton lost 37 years to imprisonment largely because of ineffective assistance of counsel.

One of our readers told me, citing Jonathan Capehart, that this was not unequal justice but unequal laws.

He argued that Wisconsin’s laws got Rittenhouse off, not its system of justice.

There is a large point to that.  As we noted yesterday, self-defense laws and right to carry made a lot of what Rittenhouse did legal under the law.

But they miss a fundamental point—without access to competent and vigorous defense, Rittenhouse cannot even access those laws.

Without a system that allows a basically all-white jury, Rittenhouse as a white person perhaps doesn’t get the benefit of the doubt from the jury.

A Black man in Rittenhouse’s position goes down every which way.  Rittenhouse benefitted by the laws, but he also benefitted heavily from white privilege.