With CHARLIE HARPER
American politics and jurisprudence are supposed to be separate. In court cases, especially criminal cases that develop into public-relations festivals, juries are always enjoined to keep extraneous considerations out of their minds. That’s an important reason juries can be sequestered, away from media and the influence of public opinion.
These days, Court TV is in many courtrooms and included in numerous cable television packages. Proceedings in certain high-profile cases are shown live on major cable networks. The separation of politics and jurisprudence is getting quite blurry. Many judges are elected, potentially making some of them simply politicians who wear black robes at work. Even at the pinnacle of the American legal pyramid, Supreme Court justices are nominated by the nation’s chief executive and senior politician, and they are subject to confirmation by a US Senate consisting of 100 more politicians.
This pattern cascades down the extensive US federal legal structure. Senate Republican leader Mitch McConnell has often boasted that his proudest achievement has been the conservative tilt he has encouraged in the American federal judiciary.
And it’s not just the Republicans who are politicising the law. Barack Obama’s team pushed hard to install liberal judges throughout the country. It was then-Democratic Senate majority leader Harry Reid who, impatient with Republican recalcitrance in confirming Obama’s judicial choices to the federal bench, lifted the 60-vote barrier for Senate confirmation of judges. That basically removed the need for bipartisanship in federal judicial confirmations and opened the door wide for McConnell and his GOP majority during Donald Trump’s presidency, most notably with the confirmation of three new Supreme Court justices.
Still, most Americans believe in the rule of law, and that the law should be objective and not politically subjective. This belief helps to hold the country together. And it explains why several recent court cases were so closely followed, and why developments in those courtrooms were always “breaking news”.
In Charlottesville, Virginia, a milestone was reached last week in a court case that emerged from the racially - and ethnically - charged events at a 2017 Unite the Right rally that turned violent and fatal. It also signalled to many that then-President Donald Trump was either fundamentally bigoted himself or was hopelessly unable to comprehend the significance of the social justice movement in the United States. Either option was dismal, and to some observers, Trump’s grip on the presidency started to slip with that incautious tweet.
In what may come to be regarded as the most ignominious moment of his presidency until the January 6 assault on the US capitol building earlier this year, Trump tweeted after the Charlottesville rally that “there are a lot of fine people on both sides” of what appeared to most Americans as a chilling reminder of the obduracy of racial and ethnic hatred that remains part of the American social fabric.
The Charlottesville trial was brought by a well-established American civil rights group. At its end, the jury concluded that more than a dozen prominent white supremacists and miscellaneous neo-Nazi and other hate group leaders had conspired to commit racially - and ethnically- motivated violence and other offences at the rally. There were 16 days of testimony in this highly-watched trial, where the defendants played to an audience of sympathisers across the country who could tune in to the proceedings on a public access line.
The wisdom in the old adage that “a man who represents himself in court has a fool for an attorney” was certainly reinforced in this courtroom. Some defendants represented themselves, and indulged at the trial in noxious hate language and glib satisfaction at the chaos and misery they had wrought. This outrageous behaviour apparently won them no support on the jury.
The jury awarded over $26m in damages to the plaintiffs. Many hope the awards will hold up under appeal and will not only cripple the hateful haters but also put permanently out of business their sinister organisations.
Two other cases caught national attention during the last half of November. One was in Brunswick, Georgia. The other was in Kenosha, Wisconsin. Brunswick is a second-tier Atlantic Ocean port set in marshland midway between much busier rivals to the north in Savannah and the south in Jacksonville.
Brunswick sits at the gateway to wealthy playgrounds like Sea Island, Georgia, but no one would confuse the two. Parts of Brunswick are gritty and hardscrabble, as are parts of Kenosha, Wisconsin’s fourth-largest city that is located on Lake Michigan between Chicago and Milwaukee. Brunswick and Kenosha were appropriate settings for the trials that took place there, as they in some ways represent the current racial and social woes that beset the US. And both trials hinged on defendants’ claims of self-defence as they faced murder charges.
In Brunswick, in a dispiriting echo of past transgressions, three white men – a father and son and one of their neighbours – were accused of using a pick-up truck in broad daylight to block the path of 25-year-old black jogger Ahmaud Arbery in their neighbourhood and, after a brief altercation, shooting Arbery to death at close range with a shotgun. The defendants claimed self-defence in that they were seeking to make a “citizens’ arrest,” thinking Arbery was responsible for recent home break-ins in the area.
The jury convicted the defendants of felony murder, among other charges. They face life in prison without parole.
But the local prosecutor only charged the defendants ten weeks after the murder took place, when a video of the event, ironically taken by one of the defendants, appeared on the internet, essentially forcing the authorities’ hand. Until then, local authorities apparently believed “nothing to see here”.
“I don’t want to be a spoilsport, but what if that video had not come out several months later?” an observer told reporters after the Arbery verdict was announced. “A young black man would have been taken from his family and community with no one held responsible. The killers almost got away with it. That part, I can’t ignore. So, I’m happy justice was served.”
Coming as it did during the uproar over the murder by Minneapolis police of George Floyd, the Arbery case garnered national attention. And the significance of the verdict was underlined by the presence with Arbery’s family of Rev Al Sharpton, the long-time civil rights activist who has evolved from tour manager for legendary R & B singer James Brown to become host of his own national radio and TV shows. Sharpton has essentially replaced his one-time mentor, Jesse Jackson, as the newsworthy presence at black funerals and protests around the country.
In Wisconsin, some pundits and citizens argued after the Kenosha verdict that justice was denied. The case involved the shooting death of two white men and injuring of another by a white teenager. The shootings occurred at a rally in August 2020 protesting the shooting of a black man by a white local policeman.
The defendant, a white teenager named Kyle Rittenhouse, was drawn to the scene by a desire to protect local businesses from the protestors. He had been associated previously with organizations supporting local police and law and order. He carried an AR-15 semi-automatic rifle, as Wisconsin law permitted him to do.
At one point, Rittenhouse became involved in arguments with the victims, who chased him. Threats were made and shots were fired by both sides. Claiming self-defence, Rittenhouse was acquitted of all charges. This case likely gained its national notoriety, as did Arbery’s, because of its occurrence in the wake of the Floyd murder. After the verdict, the basics of the case were lost in political demagoguery.
Once the verdict was issued, Rittenhouse and his mother visited Trump in Florida and posed for photos with him. Trump told reporters Rittenhouse “called and wanted to know if he could come over and say hello”.
Trump told Sean Hannity on Fox News that Rittenhouse is a “really a nice young man” and a “really good young guy” who should “not have had to suffer through a trial” for the Kenosha shootings. Subsequent polling showed that 75 percent of Democrats thought Rittenhouse should have been convicted.
Maybe Trump was right. These three trials were all different, all with different circumstances and different outcomes. But whatever were the legal realities, politics quickly obliterated them.
That’s just the way it is in America now.