December 3, 2021

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‘Piece of theater’: Legal experts weigh in on Kyle Rittenhouse seating jurors deciding his fate by lottery – NBC News

3 min read

Kyle Rittenhouse could spend the next several decades of his life behind bars or soon walk free from a Wisconsin courthouse.

And pieces of paper grabbed at random by his right hand will have played a major role in this life-turning outcome.

In an “interesting piece of theater” to his high-profile trial, Rittenhouse on Tuesday was directed to blindly pick the seven women and five men who will decide whether he’s criminally responsible for killing two men during protests last year over the police shooting Jacob Blake, a Black man in Kenosha.

Eighteen prospective jurors sat through two weeks of testimony and arguments before Rittenhouse was told to pick six numbers out of a tumbler. Those six numbers corresponded to jurors who were then stricken from the panel, leading to the 12 who were sent into deliberations.

Wisconsin courts regularly seat more jurors than necessary before randomly striking extras at a trial’s end to get down to 12 for deliberations, lawyers told NBC News on Tuesday.

John P. Gross, director of the University of Wisconsin-Madison’s Public Defender Project, said he’s only seen judges do the picking, but he didn’t object to Rittenhouse having the heavy hand of selection.

“It’s completely random and whoever is picking is picking,” Gross said. “It was an interesting piece of theater having the judge inviting the defendant to make the draw.”

The tumbler used to select the numbers of the alternate jurors who will be excused when the Kyle Rittenhouse case goes to the jury.Mark Hertzberg / Pool via AP

But Ion Meyn, who also teaches law at the UW-Madison, said he was jarred by the judge having Rittenhouse handle the lottery. It’s always been the courtroom clerk who does the draw in his experience, the attorney said.

“I know it’s a random selection, but I have some concerns about it,” Meyn said. “To me, from the optics side, it doesn’t make sense. I don’t think it was a good idea.”

Michael D. Cicchini, who practices criminal law in Kenosha, said he’s always seen judges or bailiffs doing the selection. But he had no issue with Rittenhouse conducting Tuesday’s drawing.

“It’s not very consequential, it’s all blind,” Cicchini said. “I don’t see anything off about it. I mean it is the defendant’s trial.”

And Michael O’Hear, who teaches criminal law at Marquette University, said he isn’t worrying about who owns the five fingers selecting juror numbers.

“As long as the process is random, whose hand goes into that hopper, it doesn’t matter,” said O’Hear. “Maybe optically it looks unbalanced, but that’s getting into minutia.”

Kenosha County Circuit Court Judge Bruce Schroeder has been center stage of the trial since the start, for a number of rulings and attention-grabbing courtroom outbursts.

“Does (having Rittenhouse make the draw) have any legal significance? No,” Gross said. “For this case, with this judge, is it a fitting final note? Yes. ”

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