Carson’s Commentary: Prosecutors’ approaches determine Arbery, Rittenhouse verdicts

This photo combo shows, from left, Travis McMichael, William “Roddie” Bryan, and Gregory McMichael during their trial at at the Glynn County Courthouse in Brunswick, Ga. Jurors on Wednesday, Nov. 24, 2021 convicted the three white men charged in the death of Ahmaud Arbery, the Black man who was chased and fatally shot while running through their neighborhood in an attack that became part of the larger national reckoning on racial injustice. (Pool, file)

Happy belated Thanksgiving, and welcome to the holiday season. The long-awaited end of this semester is coming in just two weeks! 

Speaking of long-awaited events, the month of November gave us verdicts in two of this year’s most highly publicized trials. On Nov. 19, 18-year-old Kyle Rittenhouse was acquitted after killing two men and injuring another during the August 2020 protest in Kenosha, Wisconsin. And, on Nov. 24, three White men were convicted for the February 2020 murder of Ahmaud Arbery, an unarmed 25-year-old Black man, in Glynn County, Georgia. 

I will begin by discussing the latter case. On Feb. 23, 2020, Arbery was jogging on a residential street in Satilla Shores, an unincorporated community about 80 miles southwest of Savannah. Believing that Arbery may have committed a burglary, 50-year-old William Bryan began to follow him in a vehicle and record on his cell phone. Bryan’s video shows the encounter between Arbery and two other White men, father and son Gregory and Travis McMichael, aged 64 and 34, respectively. Also believing that Arbery was a burglar, the McMichaels attempted to conduct a citizen’s arrest (legal in Georgia at the time), which the confused Arbery resisted. A struggle ensued, and it ended with Travis McMichael fatally shooting Arbery at point-blank range. 

Though Bryan’s full video was not released until May 2020, the outrage over three White men killing an unarmed, innocent Black man was swift and severe. Georgia Gov. Brian Kemp (R) said “Georgians [deserved] answers” about the shooting, while then-presidential candidate Joe Biden told a crowd that Arbery was “essentially lynched before our very eyes.” 

With such bipartisan outrage, one would think Georgia attorneys would line up to prosecute Bryan and the McMichaels to the fullest extent of the law. After all, securing a conviction in this racially-charged case would undoubtedly boost the career of any successful prosecutor in the increasingly progressive Peach State. Indeed, Kemp signed expansive hate crime legislation and repealed Georgia’s 1863 “citizen’s arrest” law within 15 months of Arbery’s death. 

However, lead prosecutor Linda Dunikoski surprised most observers by adopting a cautious approach that largely avoided any racial issues. Dunikoski, a senior district attorney in Democratic-leaning Cobb County, recognized focusing on the fact that Arbery’s killers had actively pursued him for several minutes was the best way to win over the conservative, mostly White jury. Only once during the entire trial did Dunikoski claim Arbery was killed “because he was a Black man running down the street,” and her strategy even won the praise of Bryan’s attorney, the Brunswick-based Kevin Gough.  

Superior Court Judge Timothy Walmsley is handed the jury’s verdict from a bailiff during the trial of Greg McMichael and his son, Travis McMichael, and a neighbor, William “Roddie” Bryan in the Glynn County Courthouse, Wednesday, Nov. 24, 2021, in Brunswick, Ga. The three men were convicted of murder Wednesday in the fatal shooting that became part of a larger national reckoning on racial injustice.(AP Photo/Stephen B. Morton, Pool)

“She found a clever way of bringing the issue up that wouldn’t be offensive to the right-leaning members of the jury,” Gough told The New York Times last week. “I think you can see from the verdict that Dunikoski made the right call.” 

Officially, Bryan and the McMichaels each faced five state charges, including malice murder, felony murder and false imprisonment, as well as three additional federal charges. Travis McMichael was convicted on all eight charges, while Gregory McMichael was convicted on all charges except malice murder. Bryan was found guilty of felony murder, aggravated assault and criminal attempt to commit a felony. 

Now to the Rittenhouse trial. After the Aug. 23, 2020 police shooting of Jacob Blake, a 29-year-old Black man, protests occurred in Kenosha. Some demonstrators looted stores, set fires and caused more than $50 million worth of damage in just four days. 

Enter Kyle Rittenhouse, then a 17-year-old high school student from Antioch, Illinois. Apparently feeling a responsibility to restore order, Rittenhouse drove 20 miles northeast to Kenosha on Aug. 24, where he met up with his friend, 18-year-old Dominick Black. Black, a Wisconsin native, had purchased a gun for Rittenhouse, which he had agreed to give to him on his 18th birthday. (For this, Black was charged with a felony and was the first witness called by prosecutors.) 

Kyle Rittenhouse, left, with backwards cap, walks along Sheridan Road in Kenosha, Wis., Tuesday, Aug. 25, 2020, with another armed civilian. The trials of Rittenhouse and three men accused of killing Ahmaud Arbery had vastly different outcomes. But coming just days apart, they laid bare a dangerous and long-running current in the fight for racial equality: The move by some white Americans to grab guns and take their own stand against perceptions of lawlessness, particularly by Black people. (Adam Rogan/The Journal Times via AP, File)

When unrest broke out the next evening, Black and Rittenhouse armed themselves and travelled to a used car dealership for reasons that are still unclear. Witnesses testified that the dealership asked Rittenhouse to defend their property from riots, but the owner’s son denied this. Regardless, what happened next is clear — Rittenhouse fatally shot two men, 36-year-old Joseph Rosenbaum and 26-year-old Anthony Huber. He also wounded another, 26-year-old Gaige Grosskreutz, who testified he was filming the unrest for the American Civil Liberties Union and thought Rittenhouse was an active shooter. 

For his actions, Rittenhouse faced several charges, including first-degree intentional homicide, which could have imprisoned him for 60 years. Several of the smaller charges, such as underage possession of a dangerous weapon and failure to comply with Kenosha’s emergency curfew, should have resulted in no-doubt convictions for Rittenhouse. 

However, the case’s lead prosecutor, Kenosha County Assistant District Attorney Thomas Binger, found his case weakened by a brilliant defense team. For one, Judge Bruce Schroeder dismissed the underage gun possession charge after Rittenhouse’s lawyers argued that Wisconsin law only prevents minors from carrying rifles if the barrel is less than 16 inches long — the length of Rittenhouse’s barrel exceeded 16 inches. 

When this approach failed, Binger’s team pivoted, attempting to assert Rittenhouse had “provoked bloodshed” by coming to the riot fully armed and leaving the scene “like a hero in a Western, without a care in the world for anything he’s just done.” 

Based on the evidence I’ve seen, I’m inclined to agree with this characterization of Rittenhouse’s actions. But my own deductions do not translate into laws on the books in Wisconsin, on which a jury must base its verdict to ensure a fair trial. Specifically, once a defendant has made a self-defense claim in Wisconsin, prosecutors must “disprove it beyond a reasonable doubt.” 

Binger could have certainly done this, had his own legal strategy not actively worked against him. For one, Binger relied too heavily on unclear drone footage in building his case, particularly the video of Rittenhouse shooting Rosenbaum. I’m not going to analyze this footage more than the courtroom already has, but it raises more questions than it answers. Was Rosenbaum really within arm’s length of Rittenhouse’s gun when the teenager turned around and shot him? Did Rosenbaum actually lunge for the gun? Different sides interpreted the footage differently, meaning that nothing here was “disproven beyond a reasonable doubt.” 

Kyle Rittenhouse, center, looks over to his attorneys as the jury is dismissed for the day during his trial at the Kenosha County Courthouse in Kenosha, Wis., on Thursday, Nov. 18, 2021. (Sean Krajacic/The Kenosha News via AP, Pool)

Even some of Binger’s witnesses seemed to undermine his argument. The testimony of another armed citizen, Ryan Balch, painted the picture of a hostile Rosenbaum, who Balch said was “hyperaggressive and acting out in a violent manner” before Rittenhouse shot him. And the testimony of Grosskreutz seemed to confirm that Huber was trying to harm Rittenhouse. In another key moment for the defense, Grosskreutz confirmed Rittenhouse only shot him when he pointed his own gun at the teenager, in an apparent attempt to disarm him. 

Some will argue that Judge Schroeder inherently favored the defense. This is a topic that deserves its own column as I can certainly understand the argument. The optics of both Schroeder yelling at Binger over Rittenhouse’s Fifth Amendment rights and his MAGA-adopted “God Bless The U.S.A.” phone ringtone are terrible. I encourage anyone interested in these issues to read MSNBC opinion columnist Jessica Levinson’s take on Schroeder’s conduct as she discusses it in greater detail than I ever could here. 

So, what is the lesson in this? Beyond the obvious that Binger could learn a thing or two from Dunikoski, prosecutors must be just as shrewd and thorough in their work as defense attorneys. After all, they operate within a justice system that is theoretically designed to free 100 guilty men before it convicts one innocent man. They must base their arguments in reason and not emotion, as Binger could never recover from the inherent emotional undertone of calling Rittenhouse a remorseless Western outlaw. In a courtroom, what is true and what is proven are often two completely different things. 

I will release my final column of the semester next week. Given that Jussie Smollett and Ghislaine Maxwell are currently facing trial, and that the Supreme Court is hearing a challenge to Roe v. Wade, I’m sure I’ll have plenty more legal news to discuss soon. 

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