Rittenhouse, Arbery, Race and Lady Justice

John Grisham wrote a novel set in the south called “A Time to Kill.” In it, a group of white men brutally rape an 11-year-old Black girl, after which they urinate on and throw beer bottles at her. Her father exacted his revenge and was tried for murder. It was an all-white jury, and during deliberation, one woman asked her fellow jurors to imagine if the victim was blonde and blue-eyed with pigtails. The jury came back with a verdict of not guilty.

Now close your eyes and imagine if Kyle Rittenhouse was Black and shot three Black people. Do you think his case would have made national news? Do you think that every news organization would have been covering the trial and commenting on each witness and ruling of the judge? Do you think the pundits would be pontificating? Black teenagers kill other Black teenagers in this country with alarming frequency. Most of the time, these shootings don’t even make the local news.

Imagine if you can that Ahmaud Arbery was a white man jogging around his neighborhood. Would three white men have stopped him for allegedly robbing a construction site? Would a white Arbery have even been shot?

I had a race discrimination case before the late Judge Wilkie D. Ferguson that I ended up losing. Ferguson commented to another Black lawyer that I put on a tremendous case, but I lost the trial at jury selection. I had an all-white jury and learned from that trial that many jurors are not color blind.

I also remember a particular white male juror. He looked like a born-again racist to me. During the selection process, he stood up and said that he did not think he could be fair and unbiased. I was positive he would say that he was racist and could not judge a race discrimination trial fairly. To my surprise, he said he was dating a Black woman and saw how unfairly she was treated and how people treated them as a mixed race couple. He felt that this biased him against the defendant in my trial. I learned from him not to stereotype.

The O.J. Simpson trials are classic examples of race and justice in America. Before a jury with Black women on the panel for his criminal trial, Simpson was found not guilty. Before an all-white panel in his civil trial, he was hammered and found guilty. The Ronald Goldman and Nicole Brown Simpson families were awarded $8.5 million in compensatory damages and $25 million in punitive damages.

I view the Rittenhouse trial with jaundiced eyes when the judge admits that perhaps it’s unconstitutional to sit an all-white panel and where he smacks the prosecution for violating his order, but remains mute when the defense is guilty of doing so.

In my experience, his all-white jury was always going to be more likely to acquit Rittenhouse, who appears as a chubby, cherubic teenager and who cried on the stand.

The jury ignored the fact that it is illegal for teenagers to buy or carry AR-15 style rifles. It also ignored that his mother drove him to the area where protests were taking place and allowed him to bring his weapon. Justice would have returned guilty verdicts for Rittenhouse, and brought charges to his mother for bringing an armed minor to a protest. The jury ignored that Rittenhouse is a white vigilante who went to an area of protest armed and ready to kill. Finally, the jury missed that he murdered two men and wounded a third.

In the Arbery case, I am praying that the jury, now in deliberation, convicts three armed white men who killed a Black man in jogging clothes – running through his neighborhood and carrying no burglary tools or any items that would implicate him in a robbery.

Lady Justice is depicted as a woman who has her eyes covered and holds the scales of justice, but that’s a fantasy. In the real world, Lady Justice is conservative judges, racially biased juries and witnesses who lie. Despite this reality, I still believe that a jury of peers can render a fair and impartial verdict. Our problem is that in many cases, we are not judged by our peers.

Reginald J. Clyne is a Miami trial lawyer who has practiced in some of the largest law firms in the United States. Clyne has been in practice since 1987 and tries cases in both state and federal court. He has lived in Africa, Brazil, Honduras and Nicaragua.