Updated: Mar 3
Kyle Rittenhouse, Ahmaud Arbery, and the 'Twitter famous' court case phenomenon
While criminal trials seizing control of the public imagination is hardly a new phenomenon – dating back to the Roman Republic at the very latest – it does seem as though the “Information Era” has led to an increasing number of cases dominating public discourse, and with an unprecedented amount of granular detail. In and of itself, an informed public is obviously valuable, and any person who understands the law and how it is applied will be better positioned to make sound political choices as well as to avoid legal problems. Still, it is difficult to avoid concluding that there is something unhealthy in the specific ways the internet – and more particularly social media and journalistic outlets – have directed discussion of legal matters.
This is a topic we have addressed before, but in the months since then, new examples have already presented themselves. At the time of writing, the verdicts in the Kyle Rittenhouse trial and that of the three men charged with the killing of Ahmaud Arbery are less than two weeks old, and both cases were hotly debated and widely discussed online. Worryingly, this kind of discussion often seems to seize onto a presumed narrative, which then, itself, becomes the object of discourse. In the process, the facts of the case are often minimized or forgotten, the better to integrate the specific case into a broader point about the state of American society.
We will not here discuss whether the outcomes of either the Arbery or Rittenhouse case were “correct,” nor those of any other case in particular, but the broader issue directly impinges on one of the core elements of the Lex Rex Institute’s mission: to promote an understanding of the American legal system and to equip the public to hold it accountable to its own principles. From that point of view, the increasing dominance of social media as both a news source and an expression of public opinion has drastic, unintended consequences, especially when involving criminal trials.
Why is this the case? First, the tendency of high-profile criminal incidents to become major topics on social media makes it extremely hard to avoid biasing the pool of potential jurors. If a given case becomes an important part of the public discourse, as any number of incidents have in recent memory (including the cases of Trayvon Martin, George Floyd, Martin Shkreli, and Kyle Rittenhouse, among many others), the odds that a given person called for jury duty will not have a preformed opinion as to the guilt or innocence of the accused drop precipitously. Indeed, in the case of Shkreli, the overwhelming antagonism of the juror pool became a story in its own right, with multiple outlets publishing pieces on the subject (with varying degrees of journalistic professionalism).
Additionally, the norms of social media – which are driven in large part by private users who are not beholden to journalistic standards of objectivity – make it extremely likely that any given person will not learn about a case as a collection of reasonably certain facts, but rather as a prepackaged whole, in which the verdict is obvious and the broader social and political lessons to be learned are already plain to see. It was all too easy to anticipate the reactions of the general public to many of the cases mentioned above. With very few exceptions, one’s political inclinations would lead one to instantaneously assume the guilt or innocence of Rittenhouse, or Derek Chauvin, the police officer who was ultimately convicted in connection with the death of George Floyd. These cases, at least as discussed by the broader public, tend to devolve into political referenda on issues like police practices, gun laws, and the role of race in America. Thus, there was, predictably, public outcry from advocates of stricter gun laws after the acquittal of Kyle Rittenhouse and, equally, much protest from public supporters of law enforcement officials after Chauvin’s conviction.
This is a dangerous precedent. When legal proceedings turn into a representative argument for political debate, it increases the likelihood that some members of the jury will have their own private reasons to decide the case in one way or another due to their personal politics (and such personal motivations are often unknown to the individual, and even when known are extremely difficult to compensate for). Additionally this carries the potential to make even a politically uninterested juror feel pressure to reach a certain verdict. Even, for instance, if a juror has no strong inclinations one way or another before a trial begins, he or she may know a number of people with very firm and very public opinions about the case. Consciously or not, jurors may be swayed to one decision or the other out of a desire not to upset these people. It is worth noting, as well, that social media platforms have a well-documented tendency to cause false impressions of unanimity due to the so-called “echo chamber” effect: given that users tend to have friends who are mostly similar in political outlook, they are likely to encounter an overwhelming number of similar opinions. Under the impression that the vast, distant majority or those close to them expect a certain verdict, a juror can thus be subtly but profoundly biased in one direction or the other.
Traditional media, as well, play a major part in shaping public opinion, and in various ways. For one thing, it seems hard to deny that news coverage – especially televised coverage – of certain trials has strange and deleterious effects on the actual courtroom proceedings. Perhaps the most famous instance is the murder trial of O.J. Simpson, in which the prosecution seemed to angle for a moment of camera-friendly drama when it asked Simpson to try on a glove allegedly used in the crime. Most commentators after the fact agree that this was a very poor choice, as numerous factors could have affected the fit of the glove, not to mention that there was no way to force Simpson to make good-faith efforts to make it fit. It may not be out of line to suggest that the prosecution was unduly enticed by the opportunity to produce a cinematic “gotcha moment.” Similarly, the prosecutors in the Rittenhouse case opted for a likewise dramatic gesture when they pointed a rifle around the courtroom, ostensibly in an effort to induce the jury to feel as the men shot by Rittenhouse might have. To put it mildly, this tactic does not seem like one well-calculated to endear the prosecution to the jury.
Moreover, news outlets have a tendency – perhaps an ineradicable one – to fit individual events into a grander narrative, which both extends the shelf-life of older coverage and generates greater interest in the reading or viewing public. In and of itself, this exacerbates the tendency to see criminal trials as political events. Isolated incidents rarely become the basis of political campaigns, but if a pattern can be detected, it may serve as the catalyst for a broad movement. Additionally, this mode of coverage may produce anxiety about the fallout of a verdict of one sort or another. If, for instance, one is constantly exposed to footage of rioting following the exoneration of police officers who kill civilians in the course of an arrest, one may fear that acquitting another such police officer will lead to the endangerment of one’s local community. On the other hand, if one frequently reads or watches reporting that emphasizes the dangers of allowing law enforcement to use excessive force, one may fear that failure to convict in a similar case will embolden police to go even further in the future. (These examples are, of course, only two among many possibilities.)
Whether these fears are founded or not is beside the point. It is imperative that the verdict reached in any given trial be founded solely on the jury’s best interpretation of the facts at hand, not by worries over potential blowback in an imagined future. The accused must be treated as fairly and even-handedly as possible, and the integrity of the trial must not be sacrificed to some notion of a greater good. There is, after all, no political good greater than impartial and even-handed justice.
The potential that any specific trial may be tainted by bias is an issue on its own, but the politicization of legal proceedings can cause further pernicious effects. As is often the case when the legal system becomes politicized, the perception creates the reality: the more thoroughly the public becomes convinced that the courts are playing a partisan game, the more determined any given juror (or judge, or prosecutor) will be to ensure that at least his side will not lose. If it’s really all about political outcomes, anyway – if the courts’ pretensions to impartiality are just a smokescreen for “activist judges” or a rigged system – why not at least make sure that the right political outcome prevails? The temptation to put one’s finger on the scale is understandable, if not laudable.
But this perception is in many regards a false one. This is not to say that the courts never reach questionable (not to say absurd) conclusions. They sometimes do, and it is necessary for the health of the country that all parties use their best efforts to forestall miscarriages of justice. But it is also clear that there is no inevitability in the legal system. A cynical mind might suggest, for instance, that a mostly white jury would be unlikely to convict white defendants of the murder of a black man - as, indeed, NPR’s coverage all but implied at the beginning of the proceedings in the case of Ahmaud Arbery. However, the jury returned guilty verdicts on nearly all of the charges. (Similarly, despite unprecedentedly low public faith in the Supreme Court, according to Gallup - mostly due to the impression that the Court has become excessively partisan - unanimous decisions are nearly always the most common outcomes for the Court in a given year.)
Why, then, does it seem that the loudest voices in the public square proclaim that the legal system is hopelessly riven by political strife? On the one hand, this is a very natural side effect of the innate human tendency to notice the exceptional and not the routine. That someone has not been murdered is all but infinitely more commonplace than that someone has been - but the latter is news, and the former is not. Likewise, an uncontroversial conviction will never seize headlines, but a contentious one will.
On the other hand, it is clearly in the interest of both news media and the major political parties to promote the view that American society is arranged into hostile camps, split along fault lines of intractable political and cultural enmity. It is difficult to fault them too much for this – after all, no one is likely to read news they think is dull, and voters and fundraisers perfectly satisfied with the political status quo are unlikely to expend much effort for their side. But this only makes it all the more necessary for the public to ensure that it is well-informed and attentive. This is by no means an attempt to claim that there are no substantive differences between the parties, nor that the American public is not divided on any number of issues. It is, however, a plea to remember that problems are not best solved by reference to “sides,” particularly when the issue is only tangentially political. This is nowhere truer than in the justice system: no one is guilty by virtue of their alignment on wider issues.
What, then, are we proposing? Not that the public should refuse to follow the news. Not that the public should keep political opinions a purely private matter as a general rule. Not even that everyone refrain from discussing such things on social media. What we propose is simply this: that we all strive to remember that dealing fairly with others, including our ostensible political opponents, is not impossible, but that it does take effort. Civil society can only be maintained so long as we are able to hold ourselves and one another, not to private codes of conduct or factional loyalty, but to an open, acknowledged, and (in broad strokes) agreed-upon standard. This standard is codified as law. It, and it alone, must be the measure of guilt and innocence in the courts. Ensuring that it remains so is not an idealistic fantasy, but it cannot be done without commitment from the American people. We ask that you join us in the effort.