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Unusual Decision to Let Kyle Rittenhouse Participate In Selecting Final Jurors Raises Eyebrows as Judge Pushes Back on Claims He’s Delaying Response to Mistrial Request

A Wisconsin juror selection law is causing eyebrows to raise all across the country after its application in the Kyle Rittenhouse trial, but that entire proceeding could be rendered moot as the trial judge continued to consider a defense mistrial that was lodged earlier this week. 

While the practice is legal, many find Circuit Judge Bruce Schroeder’s actions that allowed Rittenhouse, a white teen who shot and killed two men last summer during unrest in Kenosha, Wisconsin, to randomly pick the alternate jurors in his case on Tuesday, Nov. 16, odd and bad “optics.”

Judge Bruce Schroeder listens as attorneys argue about items that could be considered for a mistrial at the Kenosha County Courthouse on November 17, 2021 in Kenosha, Wisconsin. (Photo by Sean Krajacic – Pool/Getty Images)

After a two-week-long trial, both sides had given closing arguments and the time had come for the jury to dwindle from 18 to 12, in accordance with the state’s legally binding practice regarding the selection of a jury (756.06 Jury Selection.) Schroeder shocked many as he allowed the 18-year-old, who is facing two homicide charges, among others, to randomly select the six people from a raffle drum to be dismissed as alternates.

The Associated Press reports this is a practice the judge says he has engaged in for approximately two decades. However, one former Kenosha prosecutor and now Portage County Assistant District Attorney, Robert Jambois, says this was not what Schroeder did when he tried a case before him. Also, that is not the norm. The statute states that a “clerk from the court” should perform an important task.

Jambois said he was prosecuting a homicide case before the same judge and during that case he had a clerk of courts pull the numbers from its bin. This case involved a man named Mark Jensen who was accused of poisoning and smothering his wife.

Adding to this backdrop of courtroom sensation, another matter that could threaten the whole trial remains on the table.

On Monday, November 15, attorneys for Rittenhouse asked the Schroeder to declare a mistrial without prejudice.

Corey Chirafisi, one of the attorneys representing the Illinois teen, says that he would have had a different defense strategy if he had earlier access to the higher-quality video used by the prosecution.

Adding to his mistrial request the notation of “without prejudice,” allows the prosecution to retry the 18-year-old man that shot and killed two men last year, during the civil unrest around the shooting of Jacob Blake by a police officer in Kenosha.

The prosecution notes that the jury saw the higher quality version of the video during the trial and also that the video was shown to them uninterrupted.

By Wednesday Schroeder still had not ruled on the request, and he bristled at media reports calling out his delay in deciding on the matter, saying from the bench he didn’t get the mistrial motion until Tuesday and he needed more time to consider it.

“I really think before I rule on motion, I should let the state respond,” he said. “So why anyone would think that it’s odd for a judge to sit on a motion to dismiss, I have no idea.”

Schroeder’s defensiveness on Wednesday came after a full day of a media cycle analyzing his decision to let Rittenhouse be involved in the final jury selection. Various reports harped on how unusual it was for a defendant to participate in this action.

NBC News cited observers who said that usually a bailiff or maybe a judge completes the task. While attempting to explain if it was legal or appropriate for the defendant to draw the numbers, Ion Meyn, who teaches classes such as civil procedure and race and the law, at UW-Madison, said that even if the defendant’s selection was arbitrary, it was an odd decision for the seasoned judge to make.

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

He is not the only one that thought it didn’t look good.

Already a racially charged case, people believe that this move played into a strategy to paint him as a young innocent boy defending himself. Twitter exploded with people weighing in on the fairness of it being random vs. the appearance of favoritism.

Carolyn Dunleavy wrote in a reply to the news, “Absolutely a mistake to make an acception (sic) and allow Rittenhouse to have any involvement with Jury selection.”

The jurors remain in deliberations. Wednesday was their second day to consider the charges.

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