By: Julio Torres
Chiseled on the front face of the classical Roman temple that is the design of the United States Supreme Court are the words “Equal Justice Under Law.” The United States judiciary, both on the federal and state levels, has promulgated the notion that it does just that: apply the law equally to all people, no matter their creed, disability, gender, or race. But a recent court ruling in an ongoing, infamous criminal case undermines these ideals.
On October 27, 2021, Circuit Court Judge Bruce Schroeder of Kenosha County, Wisconsin, ruled that litigants over Defendant Kyle Rittenhouse’s criminal case cannot refer to those individuals shot by Rittenhouse as “victims.”[1]Confoundingly, however, litigants are not precluded from referring to those same individuals as “looters,” “rioters,” and “arsonists” if the evidence supports those labels.[2] According to Judge Schroeder himself, disallowing use of the word “victim” has been a long standing tradition in his courtroom.[3] Interestingly, Judge Schroeder conceded “[t]his is a long-held opinion of mine, which very few judges, I guess, share with me. I think it’s a loaded – the word victim is a loaded, loaded word.”[4]
Judge Schroeder’s ruling is dangerous precedent. Although Judge Schroeder has been consistent in that rule in his courtroom,[5] that rule nevertheless imposes a double standard that invites other judges to examine and adopt. The word “victim” does not, and cannot, imply a defendant is guilty. Any inference to the contrary is erroneous. Any concern can best be mitigated by a limiting instruction for jurors. The logic behind the ruling is simple: “the word ‘victim’ is a loaded word, and would prejudice the defendant.” But, in a classical reductio ad absurdum argument, this same logic defies common sense: “the words ‘looters,’ ‘rioters,’ and ‘arsonists’ are not loaded words, and would not prejudice the victims.” A reasonable person, lay or otherwise, would agree that these latter tags are significantly more “loaded” than the word “victim”; yet, the Rittenhouse court disagrees.
It is true that only a defendant is entitled to the presumption of innocence.[6] However, it cannot be overlooked that victims, especially those that died, will only be afforded the express labels that imply wrongdoing if the evidence supports them, and not something that is obvious as being victims of a shooting, especially when Rittenhouse’s defense counsel does not contest Rittenhouse killed them, but argues he acted in self-defense. Simply put, disallowing the word “victims” as reference to those who died conveys the appearance that victims cannot be thought of as innocent (although the evidence can certainly point to that). This is especially problematic because most of the victims cannot testify as to any lack of wrongdoing necessary to defeat a self-defense claim because they are dead. Concerningly, it is as if the victims are unworthy or less deserving of the protections of the law.
Kenosha County prosecutors charged Rittenhouse, who was 17-years of age at the time, with six criminal counts after killing two individuals and wounding a third involved in a protest, all with an assault rifle.[7] These counts include first-degree intentional homicide, first-degree reckless homicide, and attempted first-degree intentional homicide.[8]These charges came after Rittenhouse attended a series of Kenosha protests that ignited soon after local police shot Jacob Blake, a Black individual.[9] Blake was seriously injured after police unleashed seven rounds of bullets into his back. The bullets resulted in Blake’s paralysis from the waist down.[10]
Rittenhouse, originally living in Antioch, Illinois, went to Kenosha, apparently to “protect” businesses in the city from other rioters.[11] Rittenhouse was armed with a Smith & Wesson M&P 15 rifle.[12] At some point during the night of the Kenosha protest, Rittenhouse fired his rifle several times, striking three individuals.[13] Two of those three individuals succumbed to their injuries.[14] Rittenhouse’s defense counsel does not dispute that Rittenhouse killed two individuals and injured one; however, what will be hotly contested was whether he was justified in doing so.
The Kenosha protest lasted about three nights long,[15] and was only one of many global protests rebuking and resenting disproportionate police brutality against Black individuals that had erupted earlier in 2020 – namely, with the senseless, tragic, and unjustified police killing of George Floyd, as well as numerous instances throughout the decades, otherwise known as the recent Black Lives Matter movement.[16] What resulted was a seemingly dystopian environment: approximately $50 million in damages,[17] buildings burnt, debris everywhere, and streets lingering with the inescapable echoes of lamentation, frustration, and despair, yearning for racial justice. And, working off double standards such as refusing to call individuals “victims” hinders efforts to achieve justice.
[1] Julie Bosman & Dan Hinkel, Before Kyle Rittenhouse’s Murder Trial, a Debate Over Terms Like ‘Victim’, N.Y. Times (Oct. 27, 2021), https://www.nytimes.com/2021/10/27/us/kyle-rittenhouse-trial-victims.html.
[2] Id.
[3] Id.
[4] Cheryl Corley, A Look at Bruce Schroeder, the Judge in the Kyle Rittenhouse Trial, WBFO NPR (Nov. 4, 2021, 4:23 PM), https://www.wbfo.org/2021-11-04/a-look-at-bruce-schroeder-the-judge-in-the-kyle-rittenhouse-trial (emphasis added).
[5] Bosman & Hinkel, supra note 1.
[6] See Taylor v. Kentucky, 436 U.S. 478 (1978).
[7] Bosman & Hinkel, supra note 1.
[8] Id.
[9] Id.; see also Christina Morales, What We Know About the Shooting of Jacob Blake, N.Y. Times (Oct. 8, 2021) (discussing the extent of Jacob Blake’s injuries, and how his (and other Black individual’s) shooting contributed to the eruption of the Kenosha protests), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html.
[10] Morales, supra note 9.
[11] Bosman & Hinkel, supra note 1.
[12] Bruce Vielmetti, Friend Who Bought Rifle Kyle Rittenhouse Used in Kenosha Shooting Charged, USA Today (Nov. 10, 2020, last updated 9:45 AM), https://www.usatoday.com/story/news/nation/2020/11/10/kyle-rittenhouse-friend-charged-bought-him-gun-kenosha-shooting/6231407002/.
[13] Bosman & Hinkel, supra note 1.
[14] Id.
[15] Becky Sullivan & David Schaper, Kenosha Protests, Violence Expose Racial Disparities Among the Worse in the Country, NPR (Sept. 2, 2020, 12:12 AM), https://www.npr.org/2020/09/02/908605928/kenosha-protests-violence-expose-racial-disparities-among-the-worst-in-the-count.
[16] Derrick B. Taylor, George Floyd Protests: A Timeline, N.Y. Times (Nov. 5, 2021, 11:00 AM), https://www.nytimes.com/article/george-floyd-protests-timeline.html; Larry Buchanan et al., Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html.
[17] Terry Flores, Damage Due to Rioting, Unrest in Kenosha Tops $50 Million; 2,000 Guard Assisted Here, Kenosha News (Sept. 9, 2020), https://www.kenoshanews.com/news/local/damage-due-to-rioting-unrest-in-kenosha-tops-50-million-2-000-guard-assisted-here/article_26473ec9-c08a-5490-9d09-cc2b840b65f1.html.
