Yesterday, there was outrage because Kyle Rittenhouse picked alternate juror names from the wheel and a US Marshal purportedly overheard two jurors refusing to acquit out of fear they would be doxxed after the trial. The former was the judge’s standard practice, of no moment. The latter was obvious nonsense, as there are no US Marshals in Wisconsin courtrooms. But that didn’t stop those who sought reasons to be outraged from being outraged.
Occasionally, a trial happens that captures the imagination of a nation. The Rittenhouse trial is such a case, and it reveals what lawyers, at least those honest enough with themselves and others not to feed into the crazy in the hope of getting a primetime slot on right or left TV, fear. The idea of making a trial publicly available in real time was supposed to enlighten, illuminate, calm those prone to hysteria, by letting the public see with their own eyes how the sausage is made.
For years, this was a foundational argument by those who believed that the publics’ lack of understanding of law was due, in large part, to it happening behind closed doors. Not closed, really, but closed to them. They weren’t in the courtroom, whether because the trial was happening too far away, there weren’t enough seats or they couldn’t be bothered. If only the law, trials and appeals, were available for the public to see for themselves, it would be demystified and people would know that the process was fair. If only.
What was missing from this well-intended push to open the law to the public were two things: First, the public lacked the predicate understanding of, and knowledge about, the law to make sense of it. They didn’t go to law school to learn procedure, and the reasons why it exists. They didn’t have the experience of understanding what ordinarily happens in a courtroom and whether it’s a problem or nothing to be concerned about. Without that background, how is the public supposed to make sense of what they’re seeing?
The second problem was that people have to want to understand, want to see, understand, consider whether the things that may strike them as odd, wrong or weird, are really issues or just a reflection of their lack of understanding and appreciation of what they’re seeing.
These are not insignificant problems. The first can be overcome if the media, pundits and lawyers play fair and honest with the information they provide. While it won’t stop every knee-jerk misapprehension, it can at least provide context that the initial heat generated by what appears to be wrong is barely worth getting hot and bothered by. Unfortunately, this isn’t happening, at least not with sufficient clarity to suffice to make people understand. Indeed, there are some people in the media, lawyers included, who are spewing utter nonsense about things they should, and likely do, know to be false. But they’re invited to make an appearance to do exactly that, spin and lie to feed the outlet’s viewers what they want to believe.
As for the public, they don’t want to know. They want to believe. They want their side to be right and they have no qualms about being fed utter nonsense if it validates their priors, if it puts their tribe on the winning side.
The public has a right to see trials. The Constitution requires them to be public, and it’s the government acting in their stead. This should happen openly and since we have the technology to allow anyone anywhere in America to watch, they should not be denied this right. But anyone who still believes the experiment of allowing people to see with their own eyes “justice” being made will foster greater understanding, better appreciation of how the law works, how trials work, how “justice” is done, is wrong.
It’s not that the theory didn’t have its merits, but that people don’t want to know or understand, even if we gave them accurate analysis. Which, pathetically, too many lawyers don’t. Whether it could have worked, we could have made the public more knowledgeable and engaged with the law had the media and lawyers fought the urge to lie for their side is one question. It certainly would have helped, as opposed to validating the flagrantly idiotic claims that go spinning like endless rain across the metaverse.
But even so, would anybody want to hear something that made them smarter about the law? A decade ago, there was reason to believe they would. Today, the internet makes them stupider about law, and they like it.
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