Rittenhouse juror dismissal shows risk of bias in big cases

The juror dismissed from Kyle Rittenhouse’s murder trial apparently was trying to be funny when he cracked to a court security officer about a police officer’s shooting of Jacob Blake, the event that set off the protests where Rittenhouse shot three people, two fatally.

Blake, who is Black, was shot by a white officer three months after the murder of George Floyd by a white officer in Minneapolis prompted protests over racial injustice nationwide. When Judge Bruce Schroeder said Thursday that the joke — which the juror didn’t want to repeat in open court — showed bias that “would seriously undermine the outcome” of the Rittenhouse trial, the man objected.

“It wasn’t anything to do with the case,” the juror told Schroeder Thursday. “It wasn’t anything to do with Kyle.”

The moment captured the bias — sometimes explicit, but often implicit or unconscious — that experts say is especially damaging in criminal proceedings. Jurors who may not see their biases as problematic or even realize they exist are asked to weigh witness testimony and ultimately decide a defendant’s fate. And while the juror in Kenosha, Wisconsin, may have vocalized his beliefs, sharing the joke while being escorted to his car after jury duty, in most cases these biases are difficult or impossible to detect.

“It’s one of the most significant problems facing the criminal justice system in both state and federal courts,” said Mark Bennett, a retired federal and state judge who directs the Institute for Justice Reform & Innovation at Drake University Law School in Iowa.

In some places, courts and judges have taken steps to educate jurors, attorneys and others about implicit bias. Questions to potential jurors go well beyond asking if they can be impartial, instead asking about stereotypes they may hold or their interactions with others.

In part of Washington state, potential jurors are shown a video about implicit bias, and attorneys are encouraged to ask questions during jury selection such as what they thought about the video. It’s not clear whether that happened in Kenosha, Wisconsin, where 20 people were seated for the Rittenhouse jury in one day. The 12 who decide the case will be announced later, the judge said.

Bennett, who wrote a jury instruction on implicit bias and has studied bias in judges, said Schroeder did the right thing in dismissing the juror. Any person who would joke about Blake while at the courthouse during jury duty doesn’t have “the kind of mindset a judge would want” on the case, he said.

But Bennett also said a one-day jury selection isn’t enough time to root out people with explicit or implicit biases, particularly in racially polarizing cases. In one major federal trial, Bennett took 14 days to select a jury. He also has had potential jurors fill out a questionnaire — one as long as 99 questions — at home, where they’re more likely to answer candidly, before coming to the jury selection.

“You cannot do it in one day,” he said. “I’m sorry, you just cannot.”

Margaret Russell, a professor at Santa Clara University School of Law and co-founder of the Equal Justice Society, agreed, saying the jury selection “seems astonishingly quick” for a case that involves some of the most “contentious, inflammatory issues of our day.”

Rittenhouse is white, as are the three men he shot in August 2020. But the case has raised questions about racial justice, policing, firearms and white privilege that have polarized people far outside Kenosha.

Blake, who was shot by the officer two days before Rittenhouse shot the three men, was partially paralyzed in the shooting. Police say it occurred while they responded to a domestic disturbance call and that Blake was holding a knife. The county prosecutor later declined to charge the officer.

Protests following the Blake shooting at times turned violent and destructive, with rioters setting fires and ransacking businesses. Rittenhouse, then 17, traveled to Kenosha from his home in Illinois, just across the Wisconsin state line. The former police youth cadet said he went to Kenosha to protect property. As he walked the streets he carried an AR-style rifle.

Prosecutors have portrayed Rittenhouse as the instigator of the three shootings, while his lawyer says Rittenhouse acted in self-defense. He could be sentenced to life in prison if convicted.

After his arrest, conservatives called Rittenhouse an American patriot, with people contributing millions of dollars to a legal defense fund and helping the now 18-year-old post a $2 million bail to leave jail.

Russell said she also believed Schroeder was correct to dismiss the juror Thursday, saying his actions show “a shockingly ignorant sense of the case and the issues involved.” The fact that the man didn’t want to repeat his joke in open court suggests he knew it was inappropriate, she said.

Russell also was troubled by the juror’s use of Rittenhouse’s first name as he referred to the defendant. Calling him “Kyle,” she said, showed a sense of familiarity that “perhaps means he’s not viewing the case through an unbiased lens.”