When I am working on a criminal appeal and I want to raise the issue that the jury’s verdict was against the weight of the evidence, I focus on the witness’s testimony, exhibits, and the judge’s instructions to the jury focusing on the elements of the crime. Appellate Courts are loath to reverse a jury’s verdict. They like to say that a transcript is a cold record. In other words, a transcript is only a copy of what was said but not how it was said. It does not reveal the body language of the witness or the tone of voice or how the witness presented themselves. An example from the political realm of this dichotomy between the words and the seeing the person occurred in the Nixon-Kennedy debate in 1960. Polls showed that people who heard the debate on radio thought Vice President Richard Nixon won but those who watched it on television thought Senator John F. Kennedy won. Kennedy looked youthful and exuberant, and Nixon had a five o’clock shadow and looked ragged.
I am mentioning this information so you can be a smart observer when you listen to those who are describing what has happened in the Kyle Rittenhouse murder trial in Kenosha, Wisconsin. I expect by the time this article is printed that there will be a verdict. Before the jury even received the jury instructions, both sides on the case have fixed their positions. Those on the left are going after the judge. I even heard some commentators claim that he is a racist. If Rittenhouse is acquitted, this group is going to say that if he were black, he would have been convicted. Those on the right will say that he should never have been charged in the first place. The charges were politically motivated. Listening to both sides, not considering the lesser included charge, right now they both think that Rittenhouse will be acquitted.
I wonder how many of these “experts” sat in the courtroom during the entire trial. Even if they were there, they did not have access to the exhibits that were shown to the jury.
I venture that those on both extremes had made up their mind about Rittenhouse’s guilt or innocence before the trial started, and with their limited viewing have picked out pieces of the trial to support their thesis.
This reminds me of the O.J. Simpson trial, where the country was divided on the verdict based on race and political leanings. Most of the country thought that he was going to be convicted. They were not watching the trial and relied on commentators and their own preconceived notions of guilt and innocence. Concerning another area relating to law enforcement, recently, the individual who provided the information for the “Steele Dossier” was indicted for lying to the FBI. The Trumpians are trying to use this to discredit the entire Mueller investigation. I would like to give an analogy to show why this is a fallacy. It would be like a situation where an anonymous tip which later was found to be incorrect led the police to open a cold case to investigate an individual. As a result of the investigation, they found out that the person committed a crime such as murder. Would the Trumpians claim that the person could not have committed the murder because the tip which led to starting the investigation was incorrect?
However, it does not excuse the FBI for shoddy work. There must be accountability. The fact that the DOJ and the FBI did not attempt to bury their mistakes is a good sign. How often in the past have these mistakes or abuses been swept under the rug?
Likewise, the House of Representatives Select Committee looking into what happened on January 6, 2021, is investigating as to what warning the FBI had before January 6 and what they did. It appears that they did not take it seriously. The question is why. Also, who is going to be accountable for this foul up? There is plenty of blame to go around to those in law enforcement for their being unprepared for the attack on the Capitol. Hopefully, there will be a full accounting as to what went wrong and who should be held responsible. This is another example why it is important for the full story to come out.
The accountability should not stop with the FBI or state police officers. One group that seems to have been able to escape relatively unscathed from their misconduct is prosecutors. It is not an infrequent occurrence that someone who was convicted of a crime, especially a serious crime, is later found to have been innocent and was convicted because of prosecutorial misconduct. Why aren’t these prosecutors held accountable? It is very rare that these prosecutors suffer any adverse effects of their conduct such as loss of employment. One way to start is by making these errors public. District Attorneys should not be able to hide behind claims of confidentiality to bury intentional misconduct by prosecutors.
It is important for people to have confidence in our justice system. Thus, those who investigate the crimes and prosecute them, and the media who report on them, must be free from bias. When they make major errors either due to negligence or misconduct, they should publicly own up to it.
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
