(Kenosha, Wisconsin) — Kyle Rittenhouse played a direct role Tuesday in determining who will be the last 12 jurors to determine their innocence or guilt in the trial of the murders of two protesters and the wounding of a third last summer.
Under the direction of Circuit Judge Bruce Schroeder, Rittenhouse’s attorney put scraps of paper into the drawing cylinder with the number of each of the eighteen jurors who sat during the two-week trial. Tabla has been sitting on a window ledge throughout the trial but was placed in front of Rittenhouse on the defense table on Tuesday.
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Rittenhouse, with the jury watching, then chose six pieces of paper from the drum, and the court official read them out loud to be expelled: 11, 58, 14, 45, 9 and 52.
The jury will not be among the last 12 people who were deliberating on the case. But they were asked to remain in court, at the defense’s request, until the jury returned the verdict.
Robert Gamboa, the assistant district attorney for Portage County, was a Kenosha district attorney in 2008 when Mark Jensen was tried for murder in front of Schroeder. Jensen was accused of poisoning and strangling his wife in one of the most high-profile cases of getting into the Schroeder courtroom in front of Rittenhouse. Gamboa said the alternates were hired by picking numbers from the acrobat but the court clerk pulled the numbers from them, not Jensen.
“I’ve never heard of a defendant withdrawing names,” Gamboa said. “It was done by a member of the court.”
Julius Kim, a former assistant district attorney for Milwaukee County, said he had never seen a judge allow a defendant to pull numbers to determine final members of a jury.
“It’s not unusual for substitutes to be chosen by lot,” Kim said. “[But] I have never seen a judge allow the accused to withdraw those names. This might be a little funky but there’s nothing wrong with that which I can really see.”
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Tom Grieve, a Milwaukee defense attorney, said he’s never seen a defendant do this, “but it shook my shoulder at me.”
“I don’t really care,” Gref said. “The point is that they have some sort of system for getting to 12 jurors. It’s definitely unusual but I don’t see anything wrong with that.”
Ion Min, an assistant professor at the University of Wisconsin Law School, said there is no prohibition on a defendant withdrawing replacement juror numbers, but the general practice is for a court clerk to do so. “This is not really a good litigation area,” Main said.
Maine said that if this is a common practice for this judge, prosecutors may decide it is not worth contesting.
“A big risk,” Mehn said of the objection. “A lot of downsides to that.”
The group of jurors started at Rittenhouse at age 20, but one juror was dismissed for health reasons and another was abandoned after telling a joke about the case to the record.
The jury began deliberations on Tuesday, minutes after Rittenhouse pulled the numbers. The judge asked both sides to stay within 10 minutes of the courtroom in case there were questions.
Rittenhouse faces countless charges after he killed two protesters and wounded a third on the streets of Kenosha last summer. The protests were prompted by the police shooting of Jacob Blake, a black man.
Rittenhouse, who was 17 at the time, argues that he acted in self-defence. The most serious charge before the jury could lead to Rittenhouse imprisoned for the rest of his life.
Schroeder, the judge in the Rittenhouse trial, is the longest-serving circuit court judge in Wisconsin. The 75-year-old’s methods attracted attention throughout the trial, including reading jurors’ trivial questions at the start, claiming his lack of knowledge of modern technology, and asking for the applause of veterans on Veterans Day as a defense witness who served in the military. He was about to testify and sometimes speak angrily at prosecutors as they followed through on the interrogation lines he had blocked.
Power and Richmond reported from Madison, Wisconsin.