Category Archives: criminal Justice

Self-defense?

 

 

David French described Kyle Rittenhouse’s conduct this way in his illuminating article in The Atlantic:

“He didn’t impose order. He didn’t stop a riot. He left a trail of bodies on the ground, and two of the people he shot were acting on the belief that Rittenhouse himself was an active shooter. He had, after all, just killed a man…without any meaningful training, he was engaged in remarkably dangerous and provocative conduct. But that dangerous and provocative conduct did not eliminate his right of self-defense, and that self-defense claim is the key issue of his trial, not the wisdom of his vigilante presence. But that brings us to the danger of Kyle Rittenhouse as a folk hero. It is one thing to argue that the law is on Rittenhouse’s side—and there is abundant evidence supporting his defense—but it is quite another to hail him as a model for civic resistance.

It was frankly to be expected that an American jury, composed mainly of people who appeared to be white, would acquit a young “brave” hero, as Trump described him, who wanted to protect them from the black hordes. It would have been surprising had they not done that. It is also not surprising that the jury accepted the claim that Rittenhouse was acting in self-defense, even though he created the dangerous conditions by showing up where he did not belong with an automatic rifle. Did his victims not have the right to use self-defense to protect themselves against him? That’s how the law, especially in the United States, works when the police and justice officials are also infused with the same mythology. As a result, the law in its majestic manner arranged for Rittenhouse to walk away a free man while 2 men were left to die on the street as a result of his highly unreasonable actions.

 

Patriot or Martyr

 

I understand that the jury has still not rendered its verdict in the case of Kyle Rittenhouse and will resume deliberations tomorrow.  Yesterday I posted about why I thought there was a good chance he would be acquitted and made a hero.  Today I want to talk about the less likely  chance that he will be convicted and made a martyr. If he is a patriot for his actions as his supporters allege and many on the right believe to be the case, then if he is convicted  he will be hailed as a martyr. Which is it?

Personally, I don’t think a young man who travels from out of state carrying an automatic AR-15 style rifle  to an area of heated dispute   that some call riots and others protests, depending on which side of the great divide in America (and Canada) they lie, is a hero so should not be welcomed as a hero if successful  or a martyr if not.  Instead, he was a foolish young man who took a dangerous chance while endangering the lives of many others that led in fact to the deaths of 2 Americans while injuring a third.  He was not trained for this job and took it upon himself as a vigilante to “help” the police to do their job. He made things much worse as the trail of devastation behind him made clear. It is part of their belief that “the system” cannot be trusted and only private vigilantes or warriors can be trusted.

I realize that many young American men have been raised in the Marvel FantasyLand where such actions are encouraged. They think they can stand up to the evils of a corrupt or inept system that fails to protect American citizens.

Rittenhouse should not be valorized. He was hardly a peacemaker. No one should encourage other young American men (and they are largely men who do this) to take such foolhardy and dangerous actions. Such actions are not helpful. They are pouring fuel onto an already raging fire.

Rittenhouse may or may not be guilty of murder or the other crimes he was charged with, but he is neither a hero nor a martyr.  And he might be much worse.

 

Heroic Vigilantes

At the time I am writing this blog I don’t know if Kyle Rittenhouse has been found guilty of any the charges against him. I suspect he will be acquitted.  The reason is that self-defense in the US is a pretty robust defence. Added to that, the United States has a rich history of vigilantism, particularly on the border with Mexico, but really everywhere. This is particularly true where white vigilantes are defending the country against non-white threats. Vigilantes are part of American mythology. The country was built on this and frankly I think it is baked into the American DNA. As a result, I will be shocked if Rittenhouse is convicted.

If he is acquitted, I think many Americans, particularly on the right, will immediately make Rittenhouse out to be a hero. I think that would be a bigly mistake. Rittenhouse is no hero. David French wrote a fine essay on the subject in The Atlantic.  He pointed out that “For millions he’s become a positive symbol, a young man of action who stepped up when the police (allegedly) stepped aside.” This is precisely the point.  Millions of Americans don’t trust authority.  The pandemic should have by now made that clear to pretty well everybody.

In America there is a strong distrust of government and pretty well everyone in authority except a few perceived renegades, like the previous president. That distrust is the essence of vigilantism and anti-vaccism. Vigilantes are only needed because we can’t trust the authorities to do the right thing and protect us from harm. That is exactly why millions refused to get vaccinated. They refuse because the authorities tell us that is what we should do. For millions of people no more needs to be said to persuade us not to be vaccinated.

A willingness to dissent from authority can be charming. I often endorse exactly that myself. But as I have said before, it is charming only if the dissent is rational. It must be grounded on good reasons and evidence, not your uncle Ernie’s research on the internet.

Personally, I agree with French that “the Trumpist right is wrongly creating a folk hero out of Rittenhouse.” That does not mean he should be convicted.  I have been trying to follow the case in the newspapers and online. Frankly, I find the evidence mixed. There is significant evidence that Rittenhouse was asking for trouble. He went to Kenosha carrying an AR-15 style automatic rifle to defend American businesses from left wing rioters. So he thought. Then in defence of those businesses he was chased by at least 3 and maybe 4 protesters (or rioters if you like) one of whom had a gun and one of whom assaulted him with a skateboard. He may have legitimately feared for his life even though he had been immensely foolish to go to a riot (as he perceived it, not entirely without justification) with a rifle and basically without being trained to do so.

There are many cases of Americans doing very foolish and even dangerous things and getting shot at as a result, who nonetheless had a reasonable case for claiming self-defence. Remember the police officers who barged into the home of Breanna Taylor without knocking and unsurprisingly were met with gunfire in return from the occupant of her house?  The police fired back and were successful with their claim of self-defence to a murder charge even though they killed her boyfriend in his home. The police initiated the entire incident and were in my opinion entirely at fault, yet they were acquitted.

 

I think the same thing might happen to Rittenhouse. He was white and shot at 4 white men not a black man, so he will have a harder time making the defence work, but it certainly could. Added to that, he was defending white citizens from a perceived black mob. I don’t think he was justified in going to the city with a gun, but I think that defence might work. The American mythology might save him.

None of this makes Rittenhouse hero material. In much of white America though a young man carrying an automatic rifle to defend whites is automatically hero material. As French said,

“Most of the right-wing leaders voicing their admiration for Rittenhouse are simply adopting a pose. On Twitter, talk radio, and Fox News, hosts and right-wing personalities express admiration for Rittenhouse but know he was being foolish. They would never hand a rifle to their own children and tell them to walk into a riot. They would never do it themselves.”

 

That will not stop them from broadcasting their hypocritical support for Kyle Rittenhouse. And if Rittenhouse is made into an American folk hero, as I expect he will be, this will be a dangerous precedent for the next foolish young white man who steps into the next fray to defend his country from the perceived ravages of the next black militant.

As French explained,

“But these public poses still matter. When you turn a foolish young man into a hero, you’ll see more foolish young men try to emulate his example. And although the state should not permit rioters to run rampant in America’s streets, random groups of armed Americans are utterly incapable of imposing order themselves, and any effort to do so can lead to greater death and carnage. In fact, that’s exactly what happened in Rittenhouse’s case. He didn’t impose order. He didn’t stop a riot. He left a trail of bodies on the ground, and two of the people he shot were acting on the belief that Rittenhouse himself was an active shooter. He had, after all, just killed a man.”

Americans who encourage young white men to become vigilantes will have a lot on their conscience when the next young man, whether a white vigilante, or a black victim of vigilantism, is killed.

As French said,

“If the jury acquits Rittenhouse, it will not be a miscarriage of justice. The law gives even foolish men the right to defend their lives. But an acquittal does not make a foolish man a hero. A political movement that turns a deadly and ineffective vigilante into a role model is a movement that is courting more violence and encouraging more young men to recklessly brandish weapons in dangerous places, and that will spill more blood in America’s streets.”

 

I am very interested to see what justice comes out of this trial. it will tell us a lot about that country.  I fear the “justice” will be a pretty thin and toxic gruel. After all, vigilantes are rarely heroes.

What will the jury do in the Rittenhouse case?

 

I have been fascinated by the case of Kyle Rittenhouse since the day I heard about it.  I think the Associated Press captured the issue well: “the shootings that left Americans divided over whether he was a patriot taking a stand against lawlessness or a vigilante.” That is exactly what I have been trying to figure out. It seems everyone on the left thinks he is a crazed self-appointed vigilante while those on the right see him as a glamorous defender of life and property. Which is it?

Rittenhouse testified on his own behalf, which is always a risky move. Yet an innocent man should be entitled to present his own defence. That is what Rittenhouse did. He told the jury under oath that he was defending himself when he used the rifle he brought to the Kenosha from the neighbouring state of Illinois where he lived declaring his intentions on the internet to defend property.  A true public protector, or a true vigilante?  The judge was expected to give his final instructions to the jury today.

The prosecutors tried to portray Rittenhouse as the instigator of the bloodshed. There was video footage of 3 people coming after Rittenhouse and one tried to grab his rifle. He said he heard a shot and turned to the pursuers and shot at them. He killed two people and injured a third. The jury “appeared largely white” according to the Associated Press reporters. That is not surprising since Wisconsin is largely white.

One of the final witnesses for the defence was a use-of-force expert, John Black, who testified that less than three seconds elapsed between the time somebody fired a bullet in the air and Rittenhouse opened fire on the first man he shot, Joseph Rosenbaum. Rittenhouse testified that he heard a gunshot directly behind him as he was being chased by Rosenbaum. It is not clear who made shot, but apparently it was none of the three men chasing Rittenhouse.

According to the Associated Press,

 

“The account Rittenhouse gave has largely been corroborated by a wealth of video and the prosecution’s own witnesses: Rittenhouse said that Rosenbaum cornered him and put his hand on the barrel of his rifle, the second man hit him with a skateboard, and the third man came at him with a gun of his own. At one point Wednesday, his lawyers demanded the judge declare mistrial and bar Rittenhouse from being retried — essentially asking that the case be thrown out. They accused the chief prosecutor of asking Rittenhouse out-of- bounds questions. The judge lambasted the prosecutor but pressed on with the case.”

 

I am particularly interested in the question of vigilantism that is so prominent in the US. It arises because of a distrust in the government that is also so prevalent in cases of people who refuse to be vaccinated. These issues are related.  There is another case going on right now as well in Georgia that raises similar issues. It is quite possible that those who don’t like the result will protest vigorously. That seems to happen with every trial in the US where the country is so deeply divided and polarized. We certainly live in interesting times.

This is not an easy case. The onus of proof is on the prosecutors who must prove beyond a reasonable doubt that Rittenhouse is guilty. If not Rittenhouse will be a hero! Even if he doesn’t deserve to be. It will be interesting to see what the jury does.

 

Over Representation of Indigenous people in Canadian jails and prisons.

 

In April 1988, the Manitoba Government created the Public Inquiry into the Administration of Justice and Aboriginal People, commonly known as the Aboriginal Justice Inquiry (‘AJI’). The co-Chairs of the AJI were Associate Chief Justice Hamilton of the Court of Queen’s Bench and Judge Murray Sinclair at the time the Associate Chief Judge of the Provincial Court. Murray Sinclair later served as the Chair of the Truth and Reconciliation Commission and is now a Senator of Canada.

The Inquiry was created in response to two main incidents:

  • the trial in November 1987 of two men for the 1971 murder of Helen Betty Osborne in The Pas. Allegations were made that the identity of four people present at the killing was known widely in the community shortly after the murder.
  • The death (March 1988) of J.J. Harper, executive director of the Island Lake Tribal Council, following an encounter with a Winnipeg police officer. Many people, particularly in the Aboriginal community, believed many questions about the incident were left unanswered by the police service’s internal investigation.

The Inquiry issued its report in the fall of 1991. I was a bencher of the Law Society of Manitoba at the time. The Law Society is the governing body of the legal profession of Manitoba tasked with regulating the legal profession in the interests of the people of Manitoba. I am not proud to say what our governing body did with that report after it was delivered in 1991. The short answer is not much. Our inaction is part of the problem. I understand that now. I did not really appreciate it then, as did few of my colleagues.

The report of the AJI was one of the first reports to draw serious attention to the over representation of indigenous people in Manitoba’s jails and prisons. Almost 30 years later on the CBC radio program The Sunday Edition, which aired on August 2, 2020, guest host Elamin Abdelmahmoud asked Murray Sinclair, now a Senator, some pointed questions. He asked him this, “Senator you were one of the first judges to write about the over representation of indigenous people within the criminal justice system. You did this way back in the 1990s. Why has so little changed this since?”

The answer might surprise you. It surprised me. This is what he said in reply,

“Actually there has been quite a significant change, but the change has been upwards. When we reported on the over representation of indigenous people, the number of indigenous people in provincial jails in Manitoba was just around 60%. About 62%. Now it’s over 77%! And in the case of indigenous women represented about 78% of those who are incarcerated in the case of the AJI report, now its well over 90%! And youth numbers have gone up as well.”

Of course even these glaring figures don’t tell the whole story. In Manitoba  75% of all prisoners are indigenous and across Canada indigenous people make up a 25% of the prison population despite the fact that they represent only 4% of the country’s population. I think the percentage is about 11% in Manitoba.

Not only is this horrendous we have to understand the intergenerational impact of locking up so many indigenous people. Some more shocking numbers might make that clear too. Whether or not indigenous children themselves get involved with the Canadian justice system, indigenous children are 12 times more likely to have their family life disrupted by an agency of government such as a police officer or Child Welfare officer or some official who shows up at their house and takes somebody away or threatens to do so. These are horrendous disruptions and affect children powerfully. As Senator Sinclair said,

“You become the subject of a social control system virtually from the time that you are born until the time you yourself become an adult. So that impact is quite dramatic. You basically come to dislike or distrust those agencies who are doing that because as a child first of all you don’t understand what is going on, but more importantly you often get to resent it because you know that the person being dealt with often is a person that you don’t want taken away and you don’t want to lose in your live and yet you do. Or you yourself get taken out of the household and you don’t want that to happen and you know that things can always be fixed if only somebody would do the right thing and help the family”

Helping families is that not what it should be about?

Does anyone out there suggest that such massive over representation of indigenous people in jails  and prisons is a sign of systemic racism? Is there any other reasonable explanation?