Why Officials Should Reserve Judgment in Criminal Cases

It used to be the norm.

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“Lock up Kyle Rittenhouse and throw away the key.” That’s what Rep. Hakeem Jeffries, Democrat from New York and fifth-ranking member of the House Democratic leadership, tweeted November 10, nine days before a jury acquitted Rittenhouse on all charges following claims of self-defense in the shooting deaths of two men during the Kenosha riots in 2020. Jeffries, a member of the House Judiciary Committee, had, ironically, made a name for himself as an advocate of defendant-oriented criminal justice reform.

The Jeffries comment, on which he later doubled down, passed with little national notice. Believe it or not, however, it was once expected that prominent elected officials in the U.S. speak in cautious and tentative tones about allegations of criminality before a verdict had been reached in court.

In 1970 President Richard Nixon imprudently suggested at a press conference that cult leader Charles Manson, then on trial for the still-infamous Tate-LaBianca murders, was in fact guilty. An outcry promptly forced Nixon to issue a statement walking back the comment. An excerpt:

“My remarks were in the context of my expression of a tendency on the part of some to glamorize those identified with a crime. The last thing I would do is prejudice the legal rights of any person, in any circumstances.

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  1. Avatar photo
    Ben Connelly

    Also Maxine Waters made comments about Derek Chauvin and some tried to use those the way Manson used Nixon’s.

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    Sean

    Well said, very much agree.

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    The Bell Tower

    On cue, a sitting US Democratic Senator openly threatens the Supreme Court with revolution:

    “I think if you want to see a revolution go ahead, outlaw Roe v. Wade and see what the response is of the public, particularly young people,” Shaheen remarked. “Because I think that will not be acceptable to young women or young men.”

    I anxiously await the Democratic party denouncing her and the many journalists who will hold her accountable for her inflammatory remarks.

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  4. Jon

    Actually Hillary did engage in actions that warranted "Lock her up". Its called Russia, Russia, Russia.

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    Phil H

    If Biden really wants to be a moderate "not Trump" as well as belie the GOP jabs of "sleepy Joe" he will tell the Democratic Left to behave themselves. The upcoming Jussie Smollett trial presents a good opportunity to do so.

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    The Bell Tower

    “Juries and judges must be free to do their work without looking like they heeded signals from political leadership.“

    And mobs, where the norm is now to politicize trials to score political points, as you note. We would be remiss to ignore the stupidity around Derek Chauvin’s trial. The correctness of the mob only serves to further radicalize the opposite faction, tainting even a just outcome.

    Of course the grandaddy of them all, Stop the Steal, is a logical outgrowth of all this norm breaking. It’s all very Roman to me. Just as the republican virtues of ancient Romans were in some ways restored by America’s founding, her decline emulates many of the same vices.

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      BWG

      I agree that there are very concerning signs of decline in the US, but I think comparison with Rome is a stretch. Yes, both world superpowers, but that's about the extent of it.

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        The Bell Tower

        We have a great deal of Roman DNA in our system. The founders revered Cato and Cincinnatus. Some of our famous quotations (give me liberty or give me death, I regret that I have but one life) were paraphrases from the Romans.

        Washington was a founder of the Society of the Cincinnati, he hosted a performance of Joseph Addison’s Cato, A Tragedy to his troops at Valley Forge.

        Surely we’re very different than ancient Rome but many of the lesson the founders applied to their statecraft came in part from their familiarity with ancient Rome and other intellectual evaluations of that civilization (IE: Montesquieu).

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  7. Alex DeLarge

    The trend of talking about a perp and his assumed guilt doesn't apply to every case. For example, the media run thousand of articles about the perp and his motives in alleged "hate crime" like the Jussie Smollett hoax, the Bubba Wallace noose hoax, the Atlanta massage parlor shooting, etc. But no one in officialdom or the media (including TD) will talk about Darryl Brooks, the Waukesha domestic terrorist who murdered six people (and counting, as some of the kids continue to fight for life in the ICU).

    There is something different about the Waukesha attack that makes it profoundly uninteresting to our diligent unbiased friends in the media. Hmmm, . . . what could it be?

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    Bill Dyer (aka Beldar)

    We sometimes speak figuratively of the "court of public opinion," in which each of us who has an opinion and wishes to share it becomes an advocate — this person's a victim, this one's a crook, that one deserves to fry, this company is liable, that one should be assessed punitive damages and its corporate charter forfeited and its executive officers reemployed as sanitation workers! (Okay, that last one is less common, but I still hold a grudge about Apple's international e-book price fixing scheme.)

    In courts of law, however, public opinion is supposed to be set aside. That's the blindfold on Lady Justice, meaning the law is "no respecter of persons," which is how we used to express our commitment to equal justice under law.

    There is no stage during any civil or criminal trial in which the judge says, "And now counsel shall take their seats, and we'll hear from the audience." The only people allowed to speak "on the record" — to participate in the trial — are the litigants, the witnesses, and the officers of the court. The latter phrase includes counsel for both sides and the judge him- or herself, and it signifies the professional training they've received, the ethical obligations they've undertaken, and the profound oaths they've sworn to respect and promote and protect the system of justice.

    Like virtually every trial lawyer and many educated laymen, I was astonished — gob-smacked, pole-axed — when Rittenhouse's prosecutor suggested in the presence of the jury that his silence in response to police questions was evidence of his guilt. When said prosecutor then defied a direct court order "in limine" — an order of limitation on what may be even mentioned in the jury's presence — by referring to evidence the court had already determined to be inadmissible, I was frankly surprised that there wasn't a mistrial and an instruction from the judge to the bailiff to take the prosecutor in cuffs to a holding cell to await trial on charges of criminal contempt of court. The prosecutor had deliberately and willfully thrown off all his training, all his ethical commitments, and the oaths he took when he became a member of the bar and when he became a prosecutor. Rittenhouse's acquittal leaves open the question of what penalties, if any, that prosecutor should pay for those lapses; were it up to me, I'd suggest a year without his bar card doing unpaid penance at law schools around the country.

    Members of the general public, by contrast, are perfectly free to have, and express — outside the literal courtroom, in that figurative court of public opinion — opinions which would be verboten during trial proceedings. And indeed, a substantial majority of the public discussion about Rittenhouse has focused on press reports, and even rumors, that were no part of his actual trial, no part of the evidence admitted for and against his guilt or innocence on the very specific charges against him.

    But public officials who aren't direct actors in the system of justice nevertheless undertake obligations with respect to it. And the only fault I have to find with Mr. Olson's fine essay here, which makes exactly that point very clearly and forcefully, is its end, in which he refers to these principles as a collapsed "norm." That's too weak and squishy a word for a set of rules that could and should have had Rittenhouse's prosecutor obliged to find a new career without his bar card, and that should, at a minimum, draw the appalled disapproval of public-minded citizens — regardless of their own opinions — when any public official violates them.

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      Ben Connelly

      May I asked what bothers you about Apple’s ebook pricing scheme? Haven’t published anything on Apple Books but I plan to, perhaps sooner rather than later.

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        Bill Dyer (aka Beldar)

        Apple organized, directed, and publicly bragged about orchestrating an international conspiracy to artificially inflate and fix at artificially high levels the prices of all e-books sold by its fellow conspirators, the major international publishing companies, and to give unearned market power to Apple's own iBookstore at the expense of the company trying most aggressively to foster price competition in e-book sales, Amazon. Quoting from the district court opinion:

        ===begin quote===
        Jobs himself was frank in explaining how this scheme worked when he spoke to biographer Walter Isaacson the day after the Launch. Jobs described it as an "a[i]kido move" to move all retailers to agency and eliminate price competition with Amazon. In Jobs's own words:

        ===begin internal quote===
        Amazon screwed it up. It paid the wholesale price for some books, but started selling them below cost at $9.99. The publishers hated that—they thought it would trash their ability to sell hardcover books at $28. So before Apple even got on the scene, some booksellers were starting to withhold books from Amazon. So we told the publishers, "We'll go to the agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that's what you want anyway." But we also asked for a guarantee that if anybody else is selling the books cheaper than we are, then we can sell them at the lower price too. So they went to Amazon and said, "You're going to sign an agency contract or we're not going to give you the books."
        ===end internal quote===
        ===end quote===
        link: https://scholar.google.com/scholar_case?case=3005749933787253302

        This was a flagrant, deliberate violation — in broad daylight, as it were, and bragged about by Jobs — of American antitrust law, specifically, the granddaddy of all antitrust laws, section 1 of the Sherman Act of 1890 as a price-fixing "contract, combination ..., or conspiracy, in restraint of trade or commerce among the several States."

        Apple was charged by the DoJ with violation of that statute, and by the Attorneys-General of 33 states and territories, led by a Republican AG from Texas (now-Gov. Greg Abbott) and a Democrat AG from Connecticut, George Jepsen, for violation of their parallel state criminal antitrust laws. After an extensive bench trial resulting in an exhaustive opinion with meticulously detailed findings of fact and conclusions of law, the court found that Apple had indeed violated Sherman section 1 and the parallel state price-fixing laws, and that its conspiracy and "changed the face of the e-book industry" and caused e-book purchasers to pay artificially inflated prices even from the company trying most aggressively to compete on price terms, Amazon, "in some cases 50% or more for an individual title."

        After another detailed opinion, the Second Circuit affirmed the district court's decision, and the SCOTUS refused certiorari. Link: https://scholar.google.com/scholar_case?case=1610466760546019683

        Of course, anyone who's looked at Apple's corporate history can find countless other examples of anticompetitive, anti-consumer behavior. In its most recent big court case, a federal district judge in California found that Epic Games had failed to prove that Apple had illegally gained monopoly power in the relevant market, which the court defined as "digital mobile gaming transactions." But it was hardly a ringing endorsement: "The Court does not find that it is impossible; only that Epic Games failed in its burden to demonstrate Apple is an illegal monopolist." The court went on to find that "Apple is engaging in anticompetitive conduct under California's competition laws [and] that Apple's anti-steering provisions hide critical information from consumers and illegally stifle consumer choice. When coupled with Apple's incipient antitrust violations, these anti-steering provisions are anticompetitive and a nationwide remedy to eliminate those provisions is warranted." Link: https://scholar.google.com/scholar_case?case=3462284300073408989

        There is no American corporation which I so comprehensively abhor as law-breaking scoundrels, no matter how "cool" the Apple fanboys think its products are; no matter how much above fair market prices they're willing to pay for that "coolness"; and no matter that Apple's walled-garden approach to restraining competition generally, and price competition in particular, is flagrantly illegal. It's an arrogant company that consistently acts as though it's above the law. Indeed, the Epic dispute began not long after the full-time federal antitrust compliance monitor decreed by the e-book price-fixing judgment had left its campus. Had I been in charge of the remedy in the e-book case, it would have gone considerably farther — including the mandatory forfeiture of Apple's corporate charter and the break-up and sale of the company into component divisions under completely new management.

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          Ben Connelly

          Thanks for your detailed response. Wow. Didn’t know all that. Never been a big fan of Apple and I knew about some other examples of anti-competitive behavior. But I also use their products and I’m typing this on an iPhone (and just bought a new one).

          Never used Apple Books before and I don’t plan to. I may try to publish on it, but I can’t remember if you need a Mac to do that (I don’t have one and don’t want one). And the other markets/platforms are all more important for me to be in/on anyway.

          Traditional publishing houses have long tried to set high ebook prices because, as Jobs notes, they want to sell $28 hardbacks. Some traditionally published books will still be more for an ebook than a paperback (or hardback) whereas indie authors and small presses tend to do the opposite.

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            Bill Dyer (aka Beldar)

            You're very welcome!

            I'm all in favor of price competition among and between book publishers and e-book publishers. I'm in favor of letting the markets set prices, and when they're functioning efficiently, both buyer and seller think themselves better off after each transaction — creating wealth in the process.

            What I oppose, and the law forbids, is overt conspiracies to set prices at artificial levels, the purpose and effect of which is to prevent that competition. And that's exactly what Apple intended, and for a time, did.

            The last time I considered buying an Apple product was in the early 1980s. I was the first associate lawyer at any of the big Houston law firms to have a firm-supplied PC at my desk, and it of course was an IBM PC-XT running DOS 2.0, with a 10MB hard drive and two 5-1/4" floppy drives for backup. I soon wanted a computer for my home too, and my best friend from college — an engineer who'd taught me BASIC and FORTRAN in the mid-1970s so we could write computer games to be run from the UT-Austin mainframe over dial-up connections — was (and remains) an Apple enthusiast. He suggested that I buy an Apple IIe to be my home computer.

            But even a tiny amount of investigation revealed to me that I'd be buying something made deliberately incompatible with IBM or IBM-clone products running MS-DOS. And if I ever wanted to replace, or upgrade, any of the hardware or peripherals for an Apple product, my only choice would be to buy from Apple: There were no "Apple clones," again based on Apple's deliberate choice. My friend said, "Well, that's how Apple makes sure its quality standards are met."

            My response was "[Expletive deleted]! If quality is inadequate, the market will either fix that product or run it out of business. This is a transparent attempt to get around the antitrust laws by contractual tying arrangements whose purpose and effect is to screw the consumer out of the most money possible, and to prevent price competition among head-to-head comparable products." In general, though, the "we're protecting quality for the benefit of our consumers" has continued to be Apple's excuse for its walled garden; Apple made those same arguments in the Epic case just this year.

            And it's still a lie, a transparent one in my opinion. I do give Apple credit for being consistent, at least.

            You may find the district court opinion to be interesting reading. It's very specific about who said what to whom and why, and although it effectively reveals Apple as the evil mastermind of the conspiracy, the publishing companies — who settled out via consent decrees rather than fight — look exceptionally stupid, shortsighted, and greedy in the telling of the whole tale.

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        Anne W (Raw5254)

        I missed that, and now I’m curious, too.

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          Bill Dyer (aka Beldar)

          Happy to explain; see above.

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            Anne W (Raw5254)

            Darn, there are so many things I like about Apple’s products. But I’ve been disappointed by plenty, too. Thanks for taking the time to go into detail; it’s important to have an understanding or at least an awareness of what it is we’re investing in.

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      Anne W (Raw5254)

      I especially appreciate reading the comments when they are this well articulated. Thanks!

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      Richard Maxton

      Bill,

      Care to hazard a guess as to WHY the prosecutor was given such free reign with what I thought was such egregious actions? Granted, I am one of the aforementioned (barely) educated laymen on the subject of law.

      But - as my kids say - BUT DAMN. The "his silence is sign of guilt" thing I actually didn't believe until I saw the clip as it's so just basic. Anybody that watches Law & Order or any other crime show knows that one. . .

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        Bill Dyer (aka Beldar)

        He certainly got chewed out by the judge, outside the presence of the jury. I watched only a little of the evidence in the case, but I watched the full video of the second chewing-out.

        Experienced trial judges usually withhold their power to punish trial misbehavior until after jury proceedings are finished. It was no surprise at all the Rittenhouse's lawyers moved mid-trial to have the charges thrown out for prosecutorial misconduct, nor that they renewed that motion after the second offense; but it was likewise no surprise that neither motion was immediately granted. Had the verdict been to convict Rittenhouse, his lawyers would have moved yet again, post-verdict but before entry of judgment, for a dismissal with prejudice on grounds of prosecutorial misconduct. The acquittal, however, spares the judge a ruling on such extreme relief as setting free someone whom a jury had just seen fit to convict.

        I haven't read anything since the verdict about the judge initiating further proceedings, post verdict and judgment of acquittal, on the subject of the prosecutor's misconduct. But there's no doubt that this trial judge, or any such trial judge, has ample power to still do that.

        I think were I in the trial judge's shoes, I would schedule and give both sides notice of a "show cause" hearing, which would impose on the prosecutor the burden of coming back to court with his best evidence and personal testimony to try to justify himself. But frankly, there just AREN'T any plausible justifications. And his efforts to explain his misconduct during the trial outside the presence of the jury, if anything, simply further confirmed how gross his misconduct was. But an evidentiary hearing would give the prosecutor the due process, the fundamental fairness and protection of constitutional rights — that the prosecutor twice attempted to deprive Rittenhouse of.

        As for punishments, trial judge have inherent power, often augmented by state laws and/or state bar rules, to impose fines and jail time. I wouldn't be surprised to see a fine. Potentially worse, the judge could make factual findings and refer those to the relevant state bar authorities, with a recommendation that the bar consider whether those findings call into question the prosecutor's continued fitness to practice law. That could be career-ending; and if you ask me what possible reason there can be that they OUGHT NOT be career-ending, I have nothing for you but a disbelieving shrug of my shoulders.

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          Richard Maxton

          Appreciate your time, Bill. Thanks for your knowledgeable POV.

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            Anne W (Raw5254)

            I appreciate your question and Bill’s response. My cousin said she watched the trial and thought Rittenhouse should have gotten a life sentence. I actually listened to a liberal lawyer defend the outcome, along with explanations for those of us whose legal knowledge is very limited. Thanks to social media, everyone seems to think he/she is an *expert* on how the law should work.

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      Aylene Wright

      Unfortunately too many people these days actually think mob justice is true justice. On the other hand, Arbery's and even Floyd's killers would likely be walking free if not for viral videos that resulted in public pressure for an investigation and trial. That's the double edged sword of the "trial by viral video" age.

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        The Bell Tower

        Social justice and mob justice are one in the same.

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          Man-Eating Cow

          Not quite synonymous, but related. Mob justice is applied by a faceless group; social justice, to a faceless group.

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            The Bell Tower

            Hmmm. An interesting distinction.

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  9. Natty Bumpo

    Good piece, thank you. I typically do not follow court cases that closely (even OJ), because I try to maintain an attitude of trust in our trial by jury system. I am not naive enough to believe that it always turns out right, which is why I have come to be against capital punishment.

    I was not sympathetic to Rittenhouse for travelling to Kenosha with a weapon in the first place. However, I have seen the videos of the demonstration and Rittenhouse with his gun and I believe that he was retreating from the victim in at least one of the cases. I believe this makes a critical distinction from the actions in the Georgia shooting.

    I share the apprehension of many that, while justice may have been truthfully served in this case, the results may encourage more 'public minded citizens' to trot out to protests with arms. Not a good thing. We are better off leaving the protection of property to the police, even if the police are understaffed.

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    Bill Dyer (aka Beldar)

    Very glad to see Walter Olson writing for TheDispatch.com! More, please!

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