“White Skin Privilege” in Rittenhouse, Arbery Verdicts

“White Skin Privilege” in Rittenhouse, Arbery Verdicts

Not guilty. Guilty. Those were the much-anticipated verdicts handed down last week by jurors in two separate high-profile cases, first in the Wisconsin trial of Kyle Rittenhouse, and then in the Georgia trial of Greg McMichael, his son Travis McMichael, and their neighbor William “Roddie” Bryan. Rittenhouse was acquitted of five charges after he fatally shot two people, and wounded a third, during protests against police misconduct in the summer of 2020 in Kenosha, Wis. The Georgia men were convicted of murder in the death of Ahmaud Arbery, shot in February 2020 while jogging through his neighborhood.

Themes of race, violence, and self defense all surfaced during the trials, and experts largely agreed with the verdicts, saying prosecutors had a much more challenging case to prove in the Rittenhouse case. But Boston University School of Law Dean Angela Onwuachi-Willig acknowledges she was nervous that the jury might also acquit the men in the Georgia case. BU Today asked Onwuachi-Willig to reflect on both verdicts and whether there might be any long-term societal impact felt by either one.

BU Today: There was some thinking that the acquittal of Kyle Rittenhouse might signal that the men accused of killing Ahmaud Arbery would also be found not guilty. But they were convicted of murder. Were you surprised at the different verdicts?
Angela Onwuachi-Willig: I was not surprised by the different verdicts, but I was definitely holding my breath as I waited for the verdict in the trial against Travis McMichael, Gregory McMichael, and Roddie Bryan for the murder of Ahmaud Arbery, plus aggravated assault, false imprisonment, and criminal attempt to commit a felony. I was worried that jurors may acquit all three defendants. I was particularly worried given the lack of racial diversity on the jury. Defense counsel had used peremptory strikes to remove most of the potential Black jurors—eight total—from the jury pool. In the end, even though Blacks comprised more than 25 percent of the population in the county, only one Black person out of 12 people was actually seated on the jury. The remaining jurors were all white.

Judge Timothy Walmsley noted that “there appear[ed] to be intentional discrimination” by defense counsel during voir dire [formal examination of potential jurors], but then he explained that he could do nothing about it because of the low threshold set by the Batson standard for challenging jury selection discrimination. Batson is supposed to prevent discrimination during voir dire but, as a number of scholars have shown, Batson essentiallyhas no bite to it. So many judges have interpreted Batson in a way that basically requires an admission from attorneys saying, “I excluded this potential juror because of their race,” (which, of course, never happens) in order for a Batson challenge to be successful.

To give you an example, counsel have been able to defend removing Black potential jurors and survive a Batson challenge when they have asserted alleged, race-neutral reasons (unrelated to the case), such as a claim that the person lacked family values, seemed nervous, had “an angry look that she wasn’t happy to be here,” graduated with a theater arts degree, wore a nose ring, and many, many other examples.

Did the acquittal of Kyle Rittenhouse surprise you?
The Kyle Rittenhouse verdict did not surprise me too much. To my mind, five distinct factors made all the difference for Rittenhouse. One was the law of self-defense in Wisconsin. Wisconsin law requires the prosecution to prove beyond a reasonable doubt that the defendant—here, Rittenhouse—was not acting in self-defense. In fact, Wisconsin law required such proof even if Rittenhouse were deemed the first aggressor. In most states, being deemed the first aggressor would, in many ways, waive a defendant’s access to a self-defense claim. Wisconsin is in the minority on this law, but it is not alone. It is one of approximately 15 states to place this burden on prosecutors.

Resources are the second factor that worked to Kyle Rittenhouse’s advantage. Supporters raised more than $2 million to support Rittenhouse’s defense, so he had the opportunity to hire the best defense that money could buy. Most defendants do not have access to the kind of defense that Rittenhouse did. Professor Paul Butler of Georgetown wrote a great opinion-editorial for the Washington Post that explains why money made a difference to Rittenhouse’s defense—from his ability to rehearse his testimony before mock jurors to the ability to hire one of the best jury consultants available.

The third set of factors that helped Rittenhouse get an acquittal was his youth, appearance, and race. Rittenhouse was a minor at the time of the tragedies. On the stand, he looked very young; in fact, he’s baby-faced. And, importantly, he’s white. To my mind, his youth made it easier for jurors to see him as a kid who found himself in a situation, as he said, where he needed to use his gun to survive. On videos from that night, he came across as naïve and confused, carrying both a medical self-aid kit to help people and an AR-15-style rifle, which, as we saw, could be used to kill.

At the end of the day, I suspect jurors saw him as a teenager who got in over his head, and from there, they believed that he found himself in a chaotic scene where he had to defend himself. And, of course, whiteness plays a big role here.

So you don’t think, if Rittenhouse was Black, a jury would have come to the same conclusion?
Though one would hope that race would not make a difference, I do not think jurors would have held the same empathy for a Black teenager. Just imagine if Kyle Rittenhouse had been a Black teenager. He never would have been able to even walk past officers with an AR-15-style rifle slung over his shoulder, especially after killing two people, much less make it home across state lines. Acting on negative racial stereotypes, police would have been unlikely to give a Black teenager the same benefit of the doubt that they gave Rittenhouse; the stop that likely would have occurred may have turned fatal for a Black Kyle Rittenhouse.

In fact, to see the difference that race might have made, all we have to do is consider the killing of Trayvon Martin. Many of the same people who supported Rittenhouse responded differently to Trayvon Martin and his right to defend himself against George Zimmerman. And, the facts were much more favorable for Trayvon Martin. Trayvon Martin was unarmed. He was not out on the streets during a night of unrest.

He was simply walking back to the house of his father’s girlfriend, where he was an invited guest, where he had a right to be. He tried to run away from the strange, white (and Peruvian) man who was staring at him and following him, but the man started to run after him. What teenager walking a neighborhood that they know they belong in would not think that the strange man staring at them and then running after them was not a danger to them?! Yet, some of the very same people who defended Kyle Rittenhouse proclaimed that Trayvon Martin had no right to defend himself.

You said five factors were keys to Kyle Rittenhouse’s acquittal, and you’ve named three (self-defense, appearance, resources). What were the other two?
The fourth factor that worked to Rittenhouse’s advantage is the judge in the Rittenhouse case, Judge Bruce Schroeder. Judge Schroeder has been heavily criticized for injecting bias against the prosecution and the victims in the case. For example, he did not allow the prosecution to refer to the two men who were shot and killed by Rittenhouse as “victims” (which I hear may be a practice of his), though the judge allowed the deceased men to be referred to as “rioters” and “looters.”

And, these word choices really do matter, because what trial lawyers do is tell narratives to juries about why someone should be convicted or acquitted. The words that lawyers choose to tell these narratives can make all the difference in legal outcomes. How one characterizes a subject in their story shapes how much the receiver empathizes with the person.

For example, if I call someone a “cheater” as opposed to, say, a “strategic thinker,” the people who are receiving my story will perceive that someone in one way (likely a very negative way) versus another, based on my vocabulary. The judge also heavily criticized the prosecutor in front of the jury, which can be prejudicial. Jurors look to judges for cues, and it seemed that the judge had disdain for the prosecutor, Thomas Binger in this case. The moment when he most heavily criticized Binger also seemed to be unfair; as some legal experts have contended, Binger seemed to be right that the door had been opened on Rittenhouse’s past statements about how he would use a gun to protect property. The judge’s reaction, however, made it seem like Binger was not being reasonable.

The fifth factor that worked to Rittenhouse’s advantage was that the prosecution had to rely on witnesses who were unlikely to be favorable to the prosecution. The prosecution had to rely on people who were present during the protests and who captured the videos of the events. The primary witnesses, from what I understand, were people paid by alt-right venues to film events.

These factors were different in the case of the men charged with killing Ahmaud Arbery, right?
The trial against Ahmaud Arbery’s murders, the McMichaels and Bryan, was different on all these dimensions. First, the judge was different. He was not injecting the same type of bias in the case. He seemed to be more aware of how racial bias could be creeping into the case, through jury selection, for example. He also rejected the defense counsel’s ludicrous and racist request to ban Black pastors from the courtroom.

Second, the McMichaels and Bryan also do not have the resources to pay for the kind of defense that Rittenhouse received. Travis McMichael’s testimony, while rehearsed (though not as much or with the same level of expertise), is very inconsistent from what he told the police right after the shooting, the murder. This fact is important, because it left him wide open for the prosecutor Linda Dunikoski’s excellent cross-examination. She skillfully highlighted all the inconsistencies between his statement to the police and his testimony on the witness stand.

Third, unlike in the Rittenhouse case, the prosecution here is able to describe Ahmaud Arbery as a victim. Additionally, the prosecutor was not being openly discredited by the judge in front of the jury. She did a beautiful job of presenting the case. She brilliantly played the 911 tape when the emergency, as declared by Travis McMichael himself, is simply that a Black man is running down the street.

The law of self-defense is also better here. The prosecution did not have to prove that the defendants were not acting in self-defense, though to my mind, she did. Also, the first aggressor law is different in Georgia. The prosecution witnesses were also better here. Importantly, the property owner whom the McMichaels claimed they were working to protect did not corroborate their story, noting that he never authorized them to act on his behalf or confront anyone about the property.

The defense counsel themselves also employed racist tropes that brought the racism underlying the tragic murder to the surface. Judge Walmsley already had to reject defense attorney Kevin Gough’s request to ban Black pastors from the courtroom, which was a dog whistle (or more blatant than that), on more than one occasion. Of course, defense counsel Laura Hogue’s closing comment and attack on the murder victim, Ahmaud Arbery, was atrocious. What she said about Ahmaud Arbery “in his khaki shorts with no socks to cover his long, dirty toenails” was stunning. It was downright shameful, but, luckily, the jurors saw through it.

Do you think there was one element to each case, more than anything else, that weighed on jurors the most in their verdicts?
It’s hard to isolate one element. If I had to choose one factor, I would say that the law of self-defense in Wisconsin was the most critical factor in the Rittenhouse case, because it placed the burden of disproving self-defense at the prosecution’s feet. That’s critical. As University of Wisconsin law professor Cecelia Klingele has explained, the Wisconsin law of self-defense required the jurors to resolve any doubts about whether Rittenhouse acted in self-defense in his favor.

Even assuming Rittenhouse as the first aggressor, the question before the jury was not even whether Rittenhouse had “exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm,” but instead whether he believed that he had done so.

In the case concerning the murder of Ahmaud Arbery by Travis McMichael, Gregory McMichael, and Roddie Bryan, the one element I would choose would be Linda Dunikoski’s cross-examination of Travis McMichael, along with the video that the Bryan captured. Dunikoski did an excellent job of highlighting the inconsistencies between Travis McMichael’s police statement and trial witness testimony, particularly in showing that there was no threat posed by Ahmaud Arbery, that Ahmaud Arbery was simply trying to run away, and that McMichael had no probable cause to think a crime had been committed or that Ahmaud Arbery had committed one.

Will these two verdicts, in very different cases, have any lasting impact on conversations happening in this country around race and violence?
Yes and no. Yes, because the case concerning the McMichaels’ and Bryan’s murder of Ahmaud Arbery helps to place limits on what arguably seemed to be few limits on people taking the law into their own hands and killing Black people with impunity. This decision was highly critical in that way.

They also importantly reveal how white skin privilege functions in our society. For example, if we change the races of the three defendants who murdered Ahmaud Arbery and make Ahmaud Arbery a white man, could you ever imagine there be 70-plus days before there was an arrest in such a situation? There had to be a movement and protests for there to be simple arrests in this case. As I noted above, if Kyle Rittenhouse had been Black, would he have even survived that night? Could he have walked past police officers with an AR-15-style rifle? Would people have raised $2 million for his defense? Whether or not you think the right outcome was reached in that trial, one has to look at how whiteness functioned to his advantage on so many levels.

Time will tell. Depending on what happens in the future, the case concerning the conviction of the McMichaels and Bryan, along with the conviction of Derek Chauvin for the murder of George Floyd, may be discussed as a turning point. Think about it. These men felt so safe doing what they did that they taped their murder of Ahmaud Arbery, perhaps expecting to be cheered on as heroes. It’s eerily reminiscent of past lynchings, which white people would bring their families to, grabbing body parts of lynched Black people as souvenirs and making and selling postcards and other products out of photos taken at lynchings.

That said, the answer is also no. Despite the progress we have made, we have a long way to go in our nation. I certainly pray that there are no more such tragedies, but if recent history repeats itself, new tragedies will replace them in this very sad conversation, which needs to change.

Lastly, in both cases, the defense attorneys tried to argue their clients were not guilty because they acted in self-defense. It worked in the Rittenhouse case but not the Arbery one. Why is self-defense so complicated to prove, or disprove, in cases like these, and do you think the current laws adequately protect the innocent?
In the Rittenhouse case in Wisconsin, self-defense was complicated to disprove because the burden of disproof was placed on the prosecution, even in the case of a first aggressor. The verdict may push legislators to act to try to change current self-defense law in the state.

The current laws are less likely to adequately protect the innocent when the innocent are traditionally marginalized people like Black people. Race complicates these questions even more because of racial bias, both conscious and non-conscious. We know from social science research that people are more likely to see the exact same act by a white person and a Black person and view the Black person’s act as more hostile and aggressive.

We know that Black people will not be given the same benefit of the doubt. We know that people are more likely to associate criminality and danger to Black people than white people. It’s why people have different instinctual reactions when you change the race of the actors in a case or scenario.

Doug Most