KENOSHA, Wis. – Kyle Rittenhouse played a direct role in choosing, albeit randomly, the final 12 jurors who are deciding his innocence or guilt in the murder trial over his killing two protesters and wounding a third last summer.
At the direction of Circuit Judge Bruce Schroder, Rittenhouse's attorney placed slips of paper into a raffle drum with the numbers of each of the 18 jurors on it who sat through the two-week trial. The drum had been sitting on a window ledge throughout the trial but was placed in front of Rittenhouse at the defense table Tuesday.
With the jury watching, Rittenhouse then selected six pieces of paper from the drum, each bearing a number that corresponded to a juror. A court official then read aloud the numbers of the jurors being dismissed: 11, 58, 14, 45, 9 and 52. The names of the jurors have not been made public.
The dismissed jurors aren't among the final 12 deliberating the case. But they were required to remain in the courthouse, at the request of the defense, until the jury returned with a verdict.
On Tuesday afternoon, in response to questions about the drawing hours earlier, Schroeder said he’s been having defendants pull the numbers of alternate jurors from the drum for roughly 20 years.
Without the jury present on Wednesday, Schroeder again defended the unusual arrangement, saying critics were trying to “undermine the result of the trial.” Schroeder said he had read news accounts “about how bizarre and unusual it was to have the defendant pick the numbers out of the tumbler yesterday. And I would admit that I don’t know that there’s a large number of courts to do that, maybe not any.”
Schroeder said he started allowing defendants to draw the alternates after one trial in Racine, when the defendant was Black and there was only one Black juror — at the time, the clerk drew the number and the only Black juror was dismissed.
“What do they talk about, ‘optics,’ nowadays? Is that the word for things?” Schroeder said. “That was a bad optic, I thought.”
Portage County Assistant District Attorney Robert Jambois was a prosecutor in Kenosha in 2008 when he tried Mark Jensen for homicide in front of Schroeder. Jensen was accused of poisoning and smothering his wife in one of the highest-profile cases to land in Schroeder’s courtroom before Rittenhouse.
Jambois said alternates were designated by picking numbers from a tumbler but that the clerk of courts pulled the numbers from it, not Jensen.
“I’ve never heard of a defendant pulling the names,” Jambois said. “That’s done by a member of the court.”
Julius Kim, a former Milwaukee County assistant district attorney, said he’s never seen a judge allow a defendant to draw the numbers to determine who the final members of a jury will be.
“It’s not unusual to select alternates by lot,” Kim said. ”(But) I’ve never seen a judge allow a defendant to draw those names. That might be a little unconventional but there’s nothing wrong with it that I could really see."
Milwaukee-based defense attorney Tom Grieve also said he’s never seen a defendant do that, “but it's a shoulder shrug for me.”
“I don’t really care," Grieve said. "The point is they have some system to arrive at 12 jurors. It’s certainly unusual but I don’t see anything wrong with it.”
There’s no prohibition on having the defendant draw the numbers of alternate jurors, but the general practice is to have the clerk of courts do it, said Ion Meyn, an assistant professor at the University of Wisconsin Law School.
“This is not really a well-litigated area,” Meyn said.
If it is common practice for that judge, prosecutors may decide it’s not worth objecting to, Meyn said.
“Too risky,” Mehn said of objecting. “Too many downsides to that.”
The Rittenhouse jury pool had started at 20, but one juror was dismissed for health reasons and another was let go after he told a joke related to the case to a bailiff.
The jury began deliberations on Tuesday, minutes after Rittenhouse drew the numbers. The judge asked both sides to remain within 10 minutes of the courthouse in case there were questions.
Rittenhouse faced multiple charges after he killed two protesters and injured a third on the streets of Kenosha last summer. The protests were spurred by the police shooting of Jacob Blake, a Black man.
Rittenhouse, who was 17 at the time, argues he acted in self-defense. The most serious charge before jurors could put Rittenhouse in prison for the rest of his life.
Schroeder, the judge in Rittenhouse's trial, is the longest-serving circuit court judge in Wisconsin. The 75-year-old's methods have drawn attention throughout the trial, including reading trivia questions to jurors at the outset, professing his lack of knowledge about modern technology, asking for applause for veterans on Veterans Day as a defense witness who served in the military was about to testify and sometimes speaking angrily at prosecutors when they pursued lines of questioning he had barred.
Bauer and Richmond reported from Madison, Wisconsin.
Find the AP’s full coverage of the Rittenhouse trial: https://apnews.com/hub/kyle-rittenhouse