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Reviews |  What the Arbery and Rittenhouse trials can’t do for America


Some on the political right see Rittenhouse’s acquittal as proof that the racial justice protests two summers ago were lawless mobs – and that armed resistance to the protest is not just defensible, she is virtuous. Some on the political left see Arbery’s accusation as a dagger at the heart of the implicit (and often explicit) association between blackness and crime. If the defendants are convicted, they will read the result as proof that the citizen arrest that the men claim to have carried out is only a modern form of slave patrol.

As a law professor and criminal defense lawyer who has spent a long career confusing the recurring collision between justice and the law, I understand the desire to permeate high profile trials – especially criminal trials like Rittenhouse and Arbery, or Derek Chauvin’s trial for the murder of George Floyd earlier this year, or the Trayvon Martin trial – with broader and conclusive social significance.

These legal battles, with their drama and finality, offer more than the prospect of justice in an individual case. For some, they promise a solution to our most intractable problems – problems that otherwise prove to be intractable.

There is a reason we look to the courts for these solutions. Because we are so bitterly divided, the mechanisms and institutions by which we might otherwise reach social consensus have collapsed. The elections do not end our arguments, as made clear on January 6. In the age of post-truth, neither will the reliance on shared facts or widely trusted voices. In short, we rely on criminal trials because everything else has collapsed.

But like any quick fix, relying on a criminal trial to do the job of democracy is a wild ride.

For starters, those looking for more important answers from a criminal trial seem to fail to understand what goes on inside a trial. Criminal trials ask one question, and one question: Did the prosecution bear its burden? Has the state proven that this person, at that time, committed a crime? A sane judge will keep the jury focused on this issue, and for good reason. Everything else raises the possibility that an accused will be convicted of evils that he did not commit and that he does not have the power to control.

Kenosha’s trial was not the occasion to question whether gun control is a good idea, whether the right-wing media has too much power, or whether Antifa is a threat. Jurors did not proclaim Rittenhouse a hero. They did not appoint him to a public office. They didn’t even say he did the right thing when he shot and killed two people. They said the state had failed to meet its burden of proof. That’s it.

Because the focus of a lawsuit is so deliberately narrow, it rules out almost everything that society should care about in the future. Derek Chauvin’s trial did not examine the culture of the Minneapolis Police Department. It didn’t – and couldn’t – explain how someone like Chauvin rose through the ranks to a position of authority. He has not tried to understand the long history of animosity between the police and communities of color in Minneapolis. He did not take into account the pressures exerted on the police by politicians, prosecutors and the public to be “tough on crime”, nor did he ask how these pressures have distorted police practices.

Any questions we might ask ourselves if we want to create systemic change are deliberately left out of the jury’s thinking. Chauvin’s trial asked him if he murdered George Floyd – a backward question of unprecedented importance – but that’s it. Because a criminal trial blames it for what happened yesterday, it cannot decide what it takes to make society better tomorrow.

Not only can not criminal trials make these decisions; they should not. There is only one way to decide what is best for the country. It is the difficult, messy, unsatisfactory and imperfect work of democracy. The capacity for autonomy, deliberation and compromise for the sake of consensus, without vitriol and without violence, must be constantly renewed. It doesn’t come easily. It may not even come naturally. But democracy is a muscle that atrophies with disuse. Whenever we imagine a criminal trial as the path to national change, we weaken the only power that can lift us out of darkness.

That is why a verdict in Brunswick, whatever it is, cannot solve our problems. He cannot answer the racist questions of belonging and rights at the heart of the matter. He cannot tell us whether white men safe in their white suburbs should be empowered to decide whether a blameless black man “belongs” to their space. Or if they should have the power to act on that judgment by arming and hunting. Or if they should be free to kill the black who resists. It won’t answer those questions any more than George Zimmerman’s trial for the murder of Trayvon Martin. Most importantly, it cannot shed light on the story that would make these white men think their behavior was right, or describe the future that makes that horror impossible.

Brunswick’s verdict may do Ahmaud Arbery justice, but it will not solve our woes. This is our job.

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