When killings are murders, and BLM...
When killings are murders, and BLM...
On two recent trials...
Hi! Ari here with a new edition of my newsletter.
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Murder Trials and BLM
The most serious process in any justice system is a murder trial.
In a U.S. murder trial, the government calls on citizens to decide:
If the defendant is the killer;
and if so, was that killing a murder, or was it justified?
In two recent murder trials that captivated the nation, there was no question about who did the killing. It was all on tape. So the juries were focused on the legal question:
Was the killing a murder, or justified violence?
Both cases were racially charged. Both involved white defendants who deployed violence against Black lives — literally, in the trial for the killing of Ahmaud Arbery, and “politically,” in the trial for the killing of two people who were marching in a Black Lives Matter protest when they were gunned down.
One jury acquitted Kyle Rittenhouse of murdering those protesters, Joseph Rosenbaum and Anthony Huber; another jury found all three men who attacked Arbery were guilty of murder (William Bryan, Greg McMichael, and Travis McMichael).
A common reaction to these verdicts was the claim that the system ‘failed in the Rittenhouse case and worked in trial of Arbery’s killers.’
That is not true, legally.
Offense or Self-Defense?
Kyle Rittenhouse is a killer. He obtained his deadly weapon illegally. He lied about his activities on the night of the killing. And he acted in a wider political context of opposing the BLM movement and invoking an armed and sometimes violent Right Wing vigilantism.
That makes him a controversial figure and potentially unsympathetic defendant.
The jury, however, found his two killings were justified.
They also acquitted him on lesser crimes. That’s important, because they had the option to find a “middle ground,” like clearing him of murder while convicting of him of a lesser crime, such as endangering the public. Instead they cleared him of all five charges.
The rule of law dictates accepting the validity of that outcome, even (and especially) if one disagrees.
The U.S. system also “errs” on the side of defendants, which is why an acquittal is not appealable—it’s over—but convictions are always appealable (and can be reversed by several layers of courts, for years). So the Rittenhouse verdict stands.
But what does it reveal about the justice system today?
An enduring double standard, especially in cases involving violence.
This case has a tragic symmetry, because it grew out of largely peaceful protests against police brutality and racism.
Those protests were then met with documented force and violence. We’ve covered many of those stories on the news—higher rates of arrest and force at BLM protests than other gatherings; the use of force against protesters, Black and white, who advocated Black lives; disturbing excessive force on tape—in states “Red” and “Blue”—like New York officers slamming a 75-year-old man to the ground. It is glaring that this killing took place at a BLM rally, against two white protesters advocating for Black lives.
The Rittenhouse defense appealed to the idea that the armed vigilante can legally kill in self-defense, even when he is the only armed person in the situation. And they won.
A trial that was never supposed to happen
In the murder trial of Ahmaud Arbery’s killers, a different jury heard a very similar defense.
They claimed they were defending themselves, even though they were all armed and he wasn’t; and they claimed a kind of police-style right to force, by invoking a “citizen’s arrest” (which was factually contested), and their own links to law enforcement.
They lost.
The case’s facts were even more incriminating than the Rittenhouse case (they outnumbered the victim and chased him down). Their lawyers used tactics to secure a mostly white jury, and injected race into the case, but the jury looked at the evidence and found this was murder, not justified self-defense.
The jury system literally “worked,” or functioned, in both trials. And statistically, the Georgia guilty verdict is unusual. Civil rights advocates touted it as progress showing “even” a mostly White jury could accept the evidence and act on it. That is a fair point about the jury part of the process.
The System
But when people talk about The System, and systemic racism, it is precisely about the powerful, enduring structures beyond individual people.
And the justice system did not work in this case. It failed repeatedly, and potentially criminally.
The local authorities acted to prevent this indictment and trial from ever happening in the first place. There was a plot to protect the killers that was so dirty, it has now been indicted as a separate crime.
Consider a few facts:
The original prosecutor overseeing the case ordered that the killers not be arrested.
Then she recused herself from the case.
The original probe treated Arbery as the potential criminal.
The authorities had legally dubious conflicts of interest tying them to the killers.
A second prosecutor stepped in, provided a cover story for the killers, then also recused over conflicts.
The damning video evidence was initially hidden — and only came out because a representative of the killers leaked it, adding public pressure.
One of the original prosecutors has now been indicted for obstruction and violating her oath in this case.
It is incredibly rare for prosecutors to be indicted over conduct in their cases. After all of the above, an independent investigation was launched which led to the indictments and trial.
Those early stages of the probe get less attention, for many reasons, but they comprise the pre-requisites to prosecution and trial. If any one of these developments did not occur—a new prosecutor, a leaked tape—there may have been no trial.
There’s no way to evaluate the entire criminal justice system by looking at trials, which are its endpoint. Consider all the incidents and potential crimes that are never charged in the first place, as the authorities intended in this incident, which a Georgia jury has now found to be a murder.
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Do you think the trial of Arbery’s killers would have occurred without the tape leaking? Answer in the comments and I will respond to some…
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Thank you Ari. It was extremely painful to watch the trial. Almost as difficult as watching the January 6th Insurrection.
Hi Ari . In my opinion and closely following the Rittenhouse case , I feel
the Justice System failed. I’m from Wisconsin and he should of been charged with murder, opening carrying an assault weapon across state line , under age illegally. Self defense I disagree with. He came there with intent to use the assault weapon in tact to use. He was playing policeman.
Then the police let him leave. He went to a bar, underage in Wisconsin, and celebrated with the militia group that he joined up with attacking protestors.
I’m happy with justice served in the Arbery case. If there would not been a video showing the murderers attack on Arbery, they would of got off , Scott free.