Posted on November 2, 2021 by Andrew Branca in Uncategorized
Rittenhouse Trial Coverage by Andrew Branca: Jury Selected – Trial Begins Today
The opinions and statements made in this article are solely those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process.
Kyle Rittenhouse Jury Selected – Trial Begins Tuesday
Welcome to the Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial! I am, of course, Attorney Andrew Branca, for Law of Self Defense. Good news, the Kyle Rittenhouse trial is finally underway, with voir dire, or jury selection, having been completed in a single day yesterday. We expect to begin this morning with opening statements.
Highlights of yesterday’s voir dire include:
The defense voir dire suggesting that Kyle Rittenhouse might testify at trial
Judge Schroeder contextualizing juror security concerns by noting that even judges hardly ever get assassinated
A juror excused because Second Amendment beliefs would not allow impartiality
A juror excused because hatred of AR rifles would not allow impartiality
A juror excused because she understood “Thou shalt not kill” to be literal
Judge Schroeder instructing jurors on “semi-automatic” versus “machine gun”
And much, much more! So let’s dive right in!
Rittenhouse Jury Selection Process
Trial Judge Bruce Schroeder has decided that he wants to end up with a seated jury of 20, to include 12 jurors who will deliberate a verdict, and 8 alternates. Which specific jurors are alternates will not be determined until just before deliberations.
Judge Schroeder has also allowed each side to have 7 peremptory strikes, for a total of 14 strikes.
So, the Judge is looking to put together a group of 34 “qualified” jurors from which 14 can be struck, leaving the goal of 20 jurors to be seated.
In this context, “qualified” jurors appear to mean a group of jurors from whom the court has already removed everybody who should be struck for cause—some conflict of interest, unable to be impartial, important schedule conflict, and so forth. This is, in other words, the “general voir dire” part of the jury selection process.
Once the group of 34 have been established, the parties will engage in “individual voir dire,” or individual questioning, where each party can question individual prospective jurors to determine if they wish to exercise one of their seven peremptory strikes on that particular prospective juror.
Working towards that group of 34 “qualified” jurors is what the Jude Schroeder is engaged in today.
Outlining the Charges and General Narrative of Events
Judge Schroeder welcomed the prospective jurors, actually starting the day with an impromptu game of jJopardy as everybody got settled.
He then named the defendant, Kyle Rittenhouse, and read out the charges against him, with a brief factual description of each, carefully noting that each was at present merely an allegation by the state. These charges consisted of the six criminal charges I overviewed and analyzed in yesterday’s post (“Rittenhouse Trial: What to Expect As Trial Starts Monday”), with an additional seventh charge of violating curfew—this last charge, however, appears non-criminal in nature, as the state is required to prove it only be clear and convincing evidence. Each criminal charge must, of course, be proven beyond a reasonable doubt, or the jury is obliged to acquit on that charge.
Judge Schroeder then provided a general narrative of the events that evening of August 25, 2020 that resulted in the cited charges, mostly framed along the lines of the District Attorney’s claims of those events.
Judge Schroeder Repeatedly References Founders
Before beginning general voir dire, Judge Schroeder had some introductory remarks for the jury about the importance of jury selection, as is commonly the case at the start of jury selection. Perhaps less commonly, Schroeder went beyond the typical “it’s a civic duty” spiel, to also specifically reference the Founding Fathers, as well as ancient Greek and Roman history, as well as the period we used to refer to as the Dark Ages when I was a schoolkid.
Judge Schroeder noted that the Founders were very specific about putting a right to a jury trial in the Constitution, and not merely any jury but a fair and impartial jury of one’s peers. He also noted that the Founders risked everything in doing so, including their lives, their fortunes, and their sacred Honor, quoting from the Declaration of Independence.
Schroeder acknowledged that the case had become unfortunately politicized, and had considerable criticism for the “irresponsible and sloppy” and sometimes deliberately biased reporting of the case by the media.
It’s fine if the prospective jurors had been exposed to such coverage, and even fine if they had developed opinions based on such exposure, but they would need to be able to set aside any such exposure and opinions and arrive at a verdict based solely on the evidence and legal arguments made in court, and the law as Schroeder instructed them.
General Voir Dire & Witness Lists
Judge Schroeder then began general voir dire of the group of 34 prospective jurors, first asking if any of them might be unable to disregard what they had previously leaned about the case, and unable to decide the case solely on the evidence in court.
At least seven of the group of 34 raised their hands on this question.
Rather than dive into these concerns in detail in the moment, however, Judge Schroeder first had the state and then the defense read out their respective lists of possible witnesses they might call, asking the prospective jurors to raise their hands if they were related to or knew any of the persons named. This took a while, as it seems the state alone had some 150 possible witnesses on their list (only a small fraction of which will actually be called to testify at trial).
There were occasional prospective jurors who raised a hand at a name, and these were flagged for further questioning during individual voir dire.
Many Prospective Jurors Had Formed an Opinion on Guilt
After the reading of the witness lists, Judge Schroeder returned to general voir dire, asking if any of the prospective jurors had previously formed or expressed an opinion as to the guilt or innocence of the defendant.
And here is where the court began to excuse for cause a substantial number of prospective jurors from the group of 34, replacing each with another prospective juror drawn from the spectator area of the court to maintain a constant figure of 34 in the “well” of the court.
Not everyone who professed to have previously expressed or formed opinion as to guilt was excused for cause—if they were able to tell the court that they could set that opinion aside and deliberate the case on the evidence in court, they made it past general voir dire.
That said, at least 10 prospective jurors were excused for cause because they insisted that they could not set aside their formed opinion on guilt, regardless of what evidence they might see in court. Most of these had apparently come to an opinion of guilt based upon the year or so of propaganda in which Kenosha County has been awash since the shooting.
One male prospective juror (#17), however, professed that he could not be impartial because of his abiding faith in the Second Amendment.
Schroeder quickly interrupted #17, pointing out that this was not a political trial, despite the extent to which the media and politicians had sought to make it political. In this courtroom, Schroeder told him, we care only about the evidence and the law. Schroeder wrapped up his remarks by noting specifically that Second Amendment issues were not at the core of this case. Unfortunately, that several minute talk by the judge had little effect on this prospective juror, who was firm that he could not be fair and impartial, and was dismissed for cause.
A female prospective juror (#10) had an interestingly ill-informed understanding of the 6th of the 10 Commandments. Although the 6th Commandment is commonly written out as “Thou shalt not kill,” it is more properly understood to mean that one shall not kill unlawfully. There are few followers of the 10 Commandments who do not acknowledge a privilege to kill in lawful defense of innocent life, for example, or to kill in necessary combat in defense of one’s nation.
Juror #10, however, took the absolute literal view that “God’s law” informed her that one may not kill under any circumstances, even under conditions of lawful self-defense. Judge Schroeder respectfully suggested that the court was a secular entity within a society that allows for killing, if necessary, in lawful self-defense, but juror #10 could not be budged. So, she was dismissed for cause.
About that time the court recessed for lunch. When the court returned from lunch there were a handful of additional general voir dire from the court, a few more prospective jurors were dismissed for cause, and then it was the state’s turn for general voir dire.
State General Voir Dire: ADA Timothy Binger
Prosecutor Binger reminded the prospective jurors that the “protests” last August had been the result of a Kenosha police officer shooting Jacob Blake on August 23, 2020.
He asked if any of them had participated in those protests. None had, but several had friends or relatives who had participated or attended. One prospective juror was dismissed for cause when she indicated that her granddaughter attending made her unable to be fair and impartial.
Binger asked if any of the prospective jurors had been personally impacted by the property damage that resulted from the “protests,” and none had, although several had friends or family who had been personally impacted. None of the prospective jurors indicated this would keep them from being fair and impartial.
Binger’s next question would consume quite a chunk of his time on voir dire—he asked if any of the prospective jurors had taken affirmative steps to protect their property or themselves in response to the “protests”—and a large proportion of the group raised their hands.
Several moved vehicles from the front of their property to the rear. One removed a blue “support the police” porch light and replaced it with a regular bulb. Some helped board up their businesses, or those of friends and relatives. Some moved their families out of the county for a few days, others stayed overnight at their local church. Another worked with neighbor to establish a neighborhood watch.
Female Juror Buys Gun Rather Than Take Down American Flag
One female prospective juror told the court that her neighbors had urged her to take down the American flag on the front of her home, in fear that it would make her a target for attack. Instead, however, she went out, purchased her first-ever firearm, and left her flag exactly where it was.
Binger asked if any of the group were familiar with guns, and a large portion were, either through hunter safety courses, hunting, target shooting, and several for personal protection purposes.
When asked about medical issues that might interfere with their jury service, several prospective jurors claimed such conditions. A few were excused for cause, others not.
A few prospective jurors expressed concern about how family would react if they came back with a verdict the family didn’t agree with—one woman was concerned about how her husband would react given his extremely strong position on the case, and another worried about what Thanksgiving Dinner with the family would be like with her PTSD-retired officer relative present (PTSD in part because of the Kenosha “protests”).
Binger spent a considerable time collecting employment and highest-degree-of-education information from the pool of prospective jurors.
And that was about it for the state’s general voir dire.
Defense General Voir Dire: Attorney Corey Chirafisi
The general voir dire questions of the defense seemed largely focused on fear the prospective jurors may have felt during the riots—whether for themselves, their children, their relatives, their neighbors, their friends—as well as fear they may be feeling even today if called to serve on the jury.
This is a smart play by the defense, as it helps replicate the emotional state many people would have been feeling at the time of the “protests,” and certainly that Kyle Rittenhouse was feeling as he was repeatedly attacked with deadly force on the night of August 25, 2020. The more the defense can put the prospective jurors “in Kyle’s shoes,” the better the prospects for acquittal, and the more difficult the challenge for conviction.
Chirafisi also asked the prospective jurors about guns, and again many indicated a substantial degree of familiarity with firearms, and at least one female juror noted once more than she’d never owned a gun previously but had purchased one for personal protection precisely because of the perceived danger presented by the “protests.”
Chirafisi asked if any of the prospective jurors believed that someone who brought a firearm downtown must be guilty of something, but no one indicated that they did.
Similarly, he asked if any of the group believed that if someone violated the curfew, a ticketing offense rather than a crime, that they were responsible for everything that happened afterwards, and again no one indicated that they did.
The AR-15 Exchange: “I’d Find Kyle Guilty Based On That Alone”
Interestingly, prospective juror #30, a woman, reacted poorly to Chirafisi informing the group that the firearm in this case was an AR style rifle. He pointed out that the particular rifle in question was technically called an MP-15, but that it might be referred to as an AR-15 during the trial.
She announced that, yes, she did have a problem with it, saying that she didn’t believe that a weapon like that should belong to the generally public, even if it was legal to purchase.
When asked by Chirafisi if she thought she could judge the case fairly if it involved a legal firearm that she thought should not be legal, she answered, “No.” Not surprisingly, Chirafisi immediately moved to strike her for cause.
Judge Schroeder appropriately enough asked if the state had any objection to this, and Binger took the opportunity to dig a little deeper on this question.
He asked the woman whether just the simple fact that if the evidence showed the defendant possessed an AR-15, did that mean she would just find him guilty of all the charges, based on that fact alone.
“Pretty much,” she answered.
And that was it for prospective juror #30, who was dismissed for cause without objection from the state.
Here’s that exchange:
The Machine Gun Exchange: “Taking Everybody Out”
Later another female prospective juror stated that she felt much the same about the case if a machine gun was involved. Of course, Kyle’s MP-15 was merely a semi-automatic rifle, not an actual machine gun, but many people not very knowledgeable about firearms might perceive an MP-15 as a “machine gun” simply because of its appearance.
This led to a bit of an unwieldly exchange, as Chirafisi clearly wanted to inform the woman that the rifle involved was not a machine gun, but generally speaking the lawyers during voir dire are not supposed to touch upon specific facts of the case.
This led to Judge Schroeder interjecting to get the process over this bit of an procedural hump, and he took a few moments to explain the technical distinction between a genuine machine gun and a mere semi-automatic rifle.
Ultimately the woman indicated that she wouldn’t have a problem with the firearm in particular if it took a deliberate decision to fire each shot, as opposed to it “just taking everybody out.”
Here’s that exchange:
Might Kyle Testify In His Own Behalf?
Interestingly, Chirafisi also asked the prospective jurors whether, should Kyle choose to testify, that they would find his testimony less credible simply because he was charged in this case? No one of the group said they would, which is not surprising. What is surprising is the question itself—because it suggests that the defense is holding open the option that Kyle himself may take the witness stand and testify in his own behalf, always a high-risk gambit.
Chirafisi also asked several questions about medical training, particular in the context of gunshot wounds (GSWs), such artifacts of GSWs as stippling, but none of the prospective jurors expressed any particular expertise or experience on the subject—including the two pharmacists and (surprisingly) the Emergency Medical Technician, who had training on GSWs but not much experience.
Judge Schroeder: “Assassinations Hardly Ever Happen”
A bit later, a couple of jurors spoke to what seemed the be the elephant in the room, noting that given how divided the community and the country were on such cases, no matter what verdict they returned fully half the country would hate them—and they were concerned for their personal safety, as well as for the safety of the community if there were renewed “protests.”
One particularly vocal prospective juror on this issue, a woman, referred to her concern about “the crazies” who had rioted, looted, and burned the city the year before returning to do the same if there was a verdict they didn’t like.
A couple of female jurors also indicated that they’d declined to drive their own cars to the courthouse for jury selection, out of fear that someone might identify them, or damage their vehicle.
Judge Schroeder interjected here, attempting to assuage some of these fears—but frankly, he did not show the smoothest touch. At one point he tried to put the threat in a reasonable context by noting that he’d been in the law for 50 years, 38 years as a trial judge, and no juror had ever been harmed.
Which is all well and good, but then he added, rather unhelpfully I thought, that even judges only get assassinated maybe once every 10 or 15 years. I can only imagine what the concerned jurors now thought of their personal risks when even the judge himself might be the target of an assassination!
Chirafisi wrapped up with some routine questions on reasonable doubt, noting that the prosecution bore that burden both to prove the criminal charge beyond a reasonable doubt and also to disprove self-defense beyond a reasonable doubt. He also spoke to the presumption of innocence, ensuring that the prospective jurors were not expecting that the parties were both starting in “the middle” but that the defense started with that presumption of being innocent.
And that was about it for general voir dire by the defense.
Individual Voir Dire: In the Library (with the Candlestick?)
With general voir dire over, the jury selection process next transitioned over to individual voir dire. This was not conducted in the courtroom. Rather, the “qualified” jurors were left in the courtroom, and individual members were brought into the courthouse library for individual questioning. Unfortunately, this was not broadcast, so I’ve not much to comment on here.
Finally, the entire jury of 12 who will deliberate and 9 alternates was chosen by the end of the court day, allowing the substantive trial to being tomorrow.
TUESDAY: More LIVE Coverage of the Trial Proceedings
Join us Tuesday once again, for our LIVE coverage of the day’s proceedings, as the substantive trial begins this morning with opening statements.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Law of Self Defense © 2021
All rights reserved.
Attorney Andrew F. Branca is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert. Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media. Andrew is also a host on the Outdoor Channel’s TV show The Best Defense and contributor to the National Review Online.
Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions. Andrew teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country.
In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.
Recently, Andrew won the UC Berkeley Law School Debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting on self-defense law.