As jury deliberations in the Kyle Rittenhouse murder trial continued into the early evening Tuesday, speculation about whether the “lengthy” deliberations were better for the defense or the prosecution, about whether the jurors would be able to truly vote their conscience because of the publicity around the case, about whether the jurors would be adequately protected from those unhappy with the verdict after the case adjourned, and about what exactly was happening in the courtroom (since cameras weren’t on all day as they had been during testimony) reached fever pitch.
Twitter series Tuesday night about the alleged happenings during juror deliberations Jack Posobiec of Human EventsParticularly troubling. An unnamed U.S. Posobiec stated, Citing an unnamed American Marshal in Kenosha:
- Two jurors are holding up the verdict, “outright citing backlash”
- The two jurors are “worried about media leaking their names, what will happen to their families, jobs, etc”
- The jurors are specifically afraid of “‘doxxing threats by anarchist groups’”
If some or all of the jurors are struggling with voting their conscience because of potential backlash and doxxing threats, while understandable, that’s a major problem and the judge has a duty to address that with the jurors and excuse them from the case if they aren’t able to set that fear aside and render a verdict based only upon the evidence they’ve heard in the courtroom. If this happened Judge Schroeder would have to declare a mistrial since all the other jurors had been disqualified.
In my opinion and based on my experience as a court stenographer in more than 1,000 criminal trials – including multiple live-streamed, high profile murder cases – what Posobiec is saying could not have happened the way he tweeted it did, and if some version of what he’s reporting happened, there will be a few people hauled in front of Judge Schroeder tomorrow morning and the case could possibly end in a mistrial.
Now, I’m not saying that Posobiec made it up or that he’s lying. This information was not available to me. But here’s why I believe it couldn’t have happened.
First of all, many people pointed out that U.S. Marshals don’t interact with the jury in a state criminal case. A U.S. Marshal could not interact with the jury in a state criminal case. Although a Marshal may have been a witness to the Rittenhouse case and was present for protective actions, he would not be sitting with the staff behind the bar while deliberations were taking place.
Access to the jury chamber is restricted for any civil, criminal or high-profile trial. The bailiff acts as the contact point between the jurors and the judge throughout the trial. In the morning, the bailiff opens the jury room’s door and waits for the jurors to arrive. He ensures that the jury is not harmed by witnesses or court staff. Jurors are permitted to bring their own personal effects into the courtroom – a purse, wallet, snacks, water, medication, a book or crossword puzzle, phone – but in this case they wouldn’t be permitted to have any newspapers or magazines brought in because of the nature of the trial.
Things get more complicated once deliberations begin and alternates have been excused. One bailiff sits outside the jury door as the jurors deliberate, and even other court staffers aren’t allowed to congregate near the jury room, lest they overhear what jurors are saying (occasionally the deliberations get loud/heated). A bailiff can wave staffers away if they are allowed to be too close the jury room. Another bailiff is usually seated outside the judge’s chambers, and at least one will be inside the courtroom.
There is one person that could have heard anything in the jury chamber. The bailiff should have clearly heard two jurors expressing their fears. If he/she can ascertain that jurors are holding up verdicts for this reason, any information he/she has about it should be given to the judge.
Likewise, there is only one person jurors are speaking to while they’re at the courthouse, and that’s the bailiff. They aren’t allowed to talk about the case, though, period. It is a hard stop. They are required to inform the court if they have done so. The bailiff is allowed to communicate with them if they have a concern. Let’s say that two jurors were indeed holding up the verdict and for the reasons cited, and another juror wanted the judge to be aware of that. This juror could make a note, and hand it over to the bailiff. The judge would then receive it. In multiple trials I worked on, a juror would forget that they’re supposed to write out their question and would start talking to the bailiff on their way back in or out of the jury room during a break. The bailiff would have to stop them mid-sentence and say, “Write it down, please. I’m not allowed to talk to you.” Then the juror would do just that.
It is forbidden for the bailiff to speak to the media about any interactions with jurors.
In state criminal cases, bailiffs are local or state law enforcement officers and not U.S. Marshals, so no U.S. A Marshal wouldn’t have any first-hand knowledge about what any juror would say. But what if the bailiff said something to the U.S. Marshal, though? It’s not unheard of for bailiffs to share with court staffers things they overhear from the jury room, even though it’s not proper. But the Marshal would be going rogue and risking their career to feed this information to the media, if it’s information that was overheard. If it’s information that the bailiff supposedly told a U.S. The Marshal could state that one or more jurors had told him, and he would have to notify the judge.
And it’s not just bailiffs or other law enforcement officers that are obligated to bring information about a juror discussing the case outside of deliberations to a judge. Any court officer – clerk, court reporter, Assistant DA, defense attorney – is obligated to bring such information to the judge, and journalists watching court proceedings would be aware of this. Members of the general public should do so as well, but they might not understand that they should, so they’re not under the same obligation as an officer of the court.
The judge has to inform both counsel and the bailiff if they have information on contact with jurors or possible juror misconduct. This is especially true in murder trials due to constitutional questions. This can happen in chambers or off-the-record. After the judge and counsel have decided how to proceed, the judge will call everyone into courtroom and make a statement. In murder cases and other serious felony cases, especially if they’re high profile, the judge won’t do anything off the record. It is then standard that the court be summoned back to session with the information being presented in open Court (in this case, by the bailiff who states what was said to him). This allows both sides to hear the information concurrently and then counsel and judge would talk about what to do.
If the information was provided by a juror, it would be a problem. Marshal directly from a juror, that’s an even larger problem. At the end of today’s proceedings, Judge Schroeder reminded the jury that since deliberations have now begun the only time they’re allowed to discuss the case is when they’re in the jury room, with all 12 jurors present, AND only after the judge has given them permission to begin deliberations for the day. Clearly, speaking to someone about what’s happening in deliberations is a complete violation of Judge Schroeder’s instructions and could subject that juror to dismissal and potentially a contempt charge.
How can we be certain that Rittenhouse’s officers will bring to court any communications with jurors concerning the case? Judge Schroeder already fired one juror for making jokes about Jacob Blake.
Retired white male juror made the joke while being escorted to his vehicle by a police officer on Wednesday afternoon. Judge Bruce Schroeder received the report from the officer.
Binger requested the judge to disqualify the juror saying that the joke implied racial bias.
Rittenhouse’s defense lawyers initially opposed the dismissal, but they ultimately declined to object after the juror refused to repeat the joke, saying that his unwillingness to do so “could be taken in a worse light.”
“Regardless whether the issue is as grave as [Binger] presented it in terms of inner feelings, it’s clear that the appearance of bias is present, and it would seriously undermine the outcome of the case,” said Schroeder as he dismissed the juror. “The public needs to be confident that this is a fair trial.”
The public should be confident that there will be fair trials for all sides. Instead of tweeting these rumors, which should lead to a mistrial if true and which will further polarize the country – possibly leading to outright violence if Rittenhouse is convicted – Posobiec should have gone straight to Judge Bruce Schroeder. Given the way Schroeder reacted when Assistant DA Thomas Bringer embarked on a line of questioning could have caused the case to end in a mistrial, if Schroeder hears about what Posobiec is tweeting, my bet is that Posobiec will wish he’d gone straight to Schroeder with the information instead of to the tweet machine.
NOTE: I was the court reporter on two high-profile, livestreamed trials. These were the Brad Cooper trial, which resulted in his conviction for murdering his wife and Ryan Hare’s trial as Ryan Hare the teen mastermind behind a plot against a classmate.
About Post Author
