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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We'll begin today with issues raised in the trials of Kyle Rittenhouse in Wisconsin and the three men accused of murdering Ahmaud Arbery in Georgia. The cases are very different in some ways, but also have some major overlapping issues, including that they are both cases of alleged white vigilantes who killed people in racially charged circumstances as they assume the role of police officers, which they are not.

In both cases, the defendants are pleading self-defense. In both cases, there have been issues of racism on the jury. One juror in the Rittenhouse case has already been dismissed for telling a racist joke about the case to a court deputy, who he apparently thought would find the racist joke funny and acceptable and not report him to the Judge.

Maybe the most publicized of all the issues so far is the infuriating finding by the Judge in the Georgia case that there was intentional racism, intentional discrimination in the jury selection process, that racism did determine the composition of the jury, but there is nothing he can do about it. Here are a few clips of the Judge, Timothy Walmsley from the bench. First, the basic finding.

Judge Timothy Walmsley: This Court has found that there appears to be intentional discrimination in the panel. That's that prima facie case.

Brian Lehrer: A prima facie case, prima facie means clearly true, self-evident. Here the Judge explains a little bit of why, but says he cannot reseat the jury.

Judge Timothy Walmsley: Quite a few African-American jurors were excused through pre-emptory strikes exercised by the defense. That doesn't mean that the court has the authority to reseat.

Brian Lehrer: He doesn't have the authority to reseat, to order a new, not obviously racist jury selection process. Here, he explains a little bit of why he believes he does not have that authority under Georgia State Law.

Judge Timothy Walmsley: Again, in the state of Georgia, all the defense needs to do is provide that legitimate, non-discriminatory clear, reasonably specific and related reason. The court is not going to place upon the defendants of finding that they are being disingenuous to the court or otherwise are not being truthful with the court when it comes to their reasons for striking these jurors. Because of that and because of, again, the limitations, I think that's in places upon this Court's analysis of denying a motion.

Brian Lehrer: A motion to do something that he wasn't going to do. Judge Timothy Walmsley in the case of Gregory McMichael, Travis McMichael, they are father and son, 64 and 34 years old respectively, and William Bryan who in their cars, chase the unarmed Arbery as he was out for a run, with no evidence or any report that he committed any crime, then killed him after they caught up with him, tried to capture him for what they're calling a citizen's arrest, and Arbery apparently tried to defend himself from being abducted.

With me now, Elie Mystal, justice correspondent for The Nation. Some of you will also remember, he was a legal editor for Radiolab, Supreme Court series called More Perfect a few years ago. He also has a book coming out in January called Allow Me to Retort: A Black Guy's Guide to the Constitutional Hardcover. Elie, thanks for coming on today, welcome back to WNYC.

Elie Mystal: Hi, Brian, how are you? Sorry, I had a thing with my dog. How are you doing?

Brian Lehrer: Pick up your dog, yes. Pick up your dog, you got to pick up your dog. You got to take care of the dog first, I get it. Let's start with the clips that we played, and can you explain to the listeners how Georgia Law can allow the defense to get away with a prima facie case of intentional racial discrimination in jury selection? Do you agree with the judge that he really had no power to reverse it?

Elie Mystal: No, of course not. That was a cowardly decision by Walmsley right there. He does, in fact, have power to reseat the jury. We know he has that power because the prosecution made a motion for him to use that power that was in his discretion. He declined to use the power. This goes back to a case called Batson, you just brought up More Perfect, right? More Perfect has a beautiful episode on Batson challenges, it's called Object Anyway.

The core of the Supreme Court case is that in 1980, which just for your listeners, remember, was not that long ago. In the 1980s, there was a Supreme Court case that finally, for the first time in American history, made it really illegal to exclude jurors just because of their race. Thriller was out before we could actually have had a real good Supreme Court case on this issue, but fun.

We have this case, and it says that you cannot exclude jurors because of their race. However, when you are challenged, that you are excluding somebody for their race, the attorney who does the challenge who says, "I don't want that juror," has to give a legitimate, non-racial, race-neutral reason for excluding that juror. This is what happened in the McDaniel trial, right? They excluded a bunch of Black jurors. The defense attorney gave race-neutral reasons for excluding those Black jurors, and then they brought it to a judge.

The judge is under the impression that he has to accept, in this case, the defense attorney's reasons, non-racial reasons for excluding the jurors. The judge is acting like he cannot say, but I see what you did there. In fact, he could have said, "But I see what you did there." He could have said, "Well, not only is there a prima facie evidence that this jury was racially-biased, but the specific reasons you've given to exclude these specific Black jurors are, in fact, not reasons that I believe." He could have said that. He declined to say that.

Now, he is right. This does go back to a fundamental weakness in Batson, a weakness that Justice Thurgood Marshall pointed out in the Batson case. While he was concurring with the opinion, Marshall said, "While this opinion is absolutely necessary," unfortunately, Marshall did not think it would solve the problem because he understood that defense attorneys would give these race-neutral reasons and judges, people like Walmsley would believe them when they don't have to. That's the whole problem here.

You have a defense attorney making, again, allegedly race-neutral, but obviously disingenuous reasons. You have a judge accepting those obviously disingenuous reasons and going forward with a nearly all white jury. There's one Black juror on that jury in a county that is 26% Black. It's a weakness of our system, but sometimes when people say like, "Oh, it's the system's fault," let's not forget that there are people making decisions that are also weak, Walmsley weak. Brian, the defense attorneys said during a voir dire, which is when you question the jury. That what they needed was to get some more Bubbas on the jury. They defined Bubbas as white men, over 40 with no college education.

Brian Lehrer: Wow.

Elie Mystal: People sometimes accused me of accusing racism without evidence. If you don't think that that's racist, tell me why the defense attorney, the professional defense attorney thinks that non-college educated white men over 40 are better for his clients who have been accused of a lynching, tell me why that's going to help them? Because defense attorney certainly thinks it's going to help them. You know what? I think it's going to help them too. You know what? The judge thinks it's going to help them too, but of the people I just mentioned, the judge is the person who had the power to stop this and decided not to.

Brian Lehrer: By the way, and this is an aside that I didn't even expect to get into. Isn't this the essence of what critical race theory actually is, unlike all the myths that are being perpetrated about it out there? It's a legal theory that a law can be written to appear racially-neutral on its face, but still have discriminatory effects.

Elie Mystal: If people actually care to learn-- There's a reason why the critical race theory came up as a law school discipline and not a kindergarten discipline as the white wing would have you believe. When I learned about critical race theory in law school, this is why to try to understand how a decision like Batson, which again, on its face is a liberal decision that is one of the-- Again, we did a whole episode on it in More Perfect, that's how important this decision is.

On its face, this progressive decision, it's to learn that even this very progressive decision is built on feet of clay that can easily be overcome. I don't know if this is still true, but when I was still in law school, you could, I was going to say Google, but I'm old, so it's more like Yahoo, but [chuckles] you could look up online explainers for attorneys for how to get around a Batson challenge, for how to exclude somebody because of their race but give a race-neutral reason. There were explainers for people on the internet for that.

Let's not forget, Batson, again came out in the mid '80s. It was after that we got to a point where the court said that you couldn't exclude women from a jury just because they were women. In fact, that went all the way up to the Supreme Court, and Sandra Day O'Connor, Ruth Bader Ginsburg had to listen to their male colleagues argue, "Well, I don't know if excluding women from juries is a bad thing?" I can't even imagine being in their shoes. Even still today, Brian, I cannot tell you with certainty that if you excluded a juror just because they were in the LGBTQ community and took that case up to the Supreme Court, I can't tell you with certainty that you'd win.

Brian Lehrer: Would there be a way for jury selection laws to be written or for another Supreme Court case to come down with different guidelines than Batson to prevent that?

Elie Mystal: Well, there are two things. As I speak about in my upcoming book, allow me to retort, out January 11th. [chuckles]

Brian Lehrer: By the way, consider this a public book interview for when it comes out, so go ahead. [crosstalk] interview, I meant to say invitation, book interview invitation. Come on back next month, but go ahead.

Elie Mystal: I wrote about this. There are two things that we could do here. One, we could do what Marshall suggested, which was to get rid of peremptory challenges whole stop, right? The whole point of a peremptory challenge is that you've got this whole jury, it's called the veneer. Everybody who answered the jury summons is [unintelligible 00:11:51], and the defense or the prosecution, the lawyers ask them questions, and then for any reason or no reason at all, they can be like, "No, I don't want you on my jury, goodbye." Now, Batson says, "Any reason or no reason at all cannot be because they're Black."

Because we know that attorneys can get around this rule, Marshall suggestion was to take away peremptory challenges completely, a case trying to do that actually also went all the way up to the Supreme Court in like the early '90s, I believe. Marshall, last five to four, is actually one of Marshall's last cases. He dissented from that opinion as one of his last acts on the court. That would have been one way, to just get rid of peremptory challenges entirely. Another way is to really think about what the Sixth Amendment means when it says that you are entitled to a jury of your peers.

The late Antonin Scalia who I can spend easily the rest of my life arguing against, he has said that that means that you are entitled to a fair veneer. That means that all the people who answered the summons. If I send out the summons to only white people, then that according to Scalia would be violative of the Sixth Amendment, which makes sense, right? He says that the Sixth Amendment doesn't give you the right to a fair, petit jury, which is what people actually think of as the actual jury, like the 12 people sitting in the box. He says the Sixth Amendment doesn't entitle you to fairness there, which is a bonkers distinction.

He's saying that you can have a fair cross-section of the community when they answer the summons, but you're not entitled to a fair cross-section of the community when they get into the box, that's ridiculous. I think that case is wrong, I think Scalia is wrong. If we just apply the same Sixth Amendment protections that we have when we ask people to answer a jury summons, when it's time for them to get into the box, that would solve it.

If the county is 26% Black as Brunswick, Georgia is, then the jury should be somewhere around that, one in five of the jurors should be people of color, that you could just make that the rule then. That the actual jury has to represent the community, the diversity of the community, just like the veneer, just like the people who answered the summons jury. There are ways--

Brian Lehrer: That would still argue for a three-quarters white jury in a case like this.

Elie Mystal: It would, but see, here's one of my points like, you could live with that. You could live with it if the goal was just get me a jury that is representative of my community or of the community where I was alleged to have committed a crime. If that was the rule, one could live with that. If you happen to commit a crime in a predominantly Black part of town, Black community, you would have a predominantly Black jury. If you happen to commit a crime in a predominantly white community, you'd have predominately white jury. If you were accused of, I don't know, bank fraud, Brian, and you lived in, I don't know, Queens, that would be an interesting jury.

If the jury was picked based on the diversity of community, your bank fraud case in Queens would look pretty interesting, wouldn't it? We don't do that, so instead of doing that, when we are looking at predominantly white juries, we are generally looking at juries that have been selected to be predominantly white even over the general makeup of the community. Just to finish, just to square the circle on this point, this is something that white people don't experience, because that case that I just invented in my head, a real estate agent charged with bank fraud in Queens, that white real estate agent never faces an all-Black jury.

In fact, there are very few situ-- Eminem is like the only white person in America that has ever faced an all-Black jury. There was just very few situations in this society where we let Black people sit in judgment of white people, but we let white people sit in judgment of Black people all the time.

Brian Lehrer: Let's say these accused murderers are acquitted by a bias jury that even the judge said-- Well, the judge didn't say the individuals are biased, he said the jury selection was biased to wind up with only one Black person out of the 12. Let's say they're acquitted, if a defendant is found guilty, they can appeal and claim jury bias as a grounds for appeal, but if murderers are allowed to walk free because of a bias jury, the prosecution cannot appeal, that would be double jeopardy, is that correct? There would be no recourse?

Elie Mystal: That's exactly correct. Prosecution gets one shot. By the way, I'm generally in favor of that rule. The state normally has a lot of power in these situations. You get one shot to convict. You can't prosecute people again and again and again and again until you get it right, that's why the double jeopardy rule is there. The double jeopardy rule's a good rule, I don't think we should weaken that rule, but that means that in a situation like this where the judge himself has both recognized bias but refuse to do anything about the bias, that means the prosecution gets one shot at this.

Brian Lehrer: We're talking about issues raised in the Kyle Rittenhouse case in Wisconsin, and the trial of the McMasters, and William Bryan in Georgia for the murder of Ahmaud Arbery. We've spent almost half our time already just talking about jury selection in the Arbery case. We are going to get to some other issues with Elie Mystal, justice correspondent for The Nation and we can take your phone calls. Listeners, do you have questions about any of the issues being raised in either of these alleged white vigilante cases? 212-433-WNYC. 212-433-9692 or tweet your question @BrianLehrer and we'll continue in a minute.

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Brian Lehrer on WNYC with Elie Mystal, justice correspondent for The Nation as we talk about issues in the Kyle Rittenhouse murder trial and the trial of the three men in Georgia accused of murdering Ahmaud Arbery. We've been talking about jury selection so far and of course, there are other issues in these cases. The central one, I guess is that and to stay with the murder of Arbery case for a minute, they're claiming self-defense in the process of making a citizen's arrest. When would three non-police officers be allowed to make a citizen's arrest, basically abducting and imprisoning another private citizen who hasn't been charged with anything?

Elie Mystal: Yes, I know, that's a term, citizen's arrest, I think that people got from like watching too much Batman as a kid. That's called kidnapping, is what they were trying to do. They shot him instead. For the self-defense claims, both of the cases, and this is maybe a way that we can transition, both the McDaniel's case which are name of two of the three people who were accused of lynching Arbery, and the Rittenhouse case, both of these self-defense claims require you to basically start the clock right before they fire their guns.

You only look at the situation, what they're both asking you to do is to only look at the situation, the second or two before they fire. Now, in the McDaniel's case, even that doesn't help them at all, but that's what they want you to do to look at the two seconds before, as opposed to the entire encounter, the entire altercation, who started it, who caused it, they don't want you to look even one minute before they fired the gun, a minute and a half, 90 seconds, that's too long. Don't think of it that way.

That's what both of these defendants are asking you to do, which again, you don't have to. You don't have to be like, "Well, it's self-defense because in the exact moment right before I fired that shot, I can make this claim." You're allowed to look 5 seconds before, 10 seconds before, 15 seconds before. You're allowed to look at their state of mind when they got themselves into the altercation in the first place to weigh the sincerity of their self-defense claims and intent. That's how I would look at it if I was on the jury, but I'm not.

Brian Lehrer: In this case, this is how the two cases might be different, but you'll give me your take. In the McMaster case, if they chased and then stopped Arbery, who was simply running on the road, tried to forcibly abduct him, they started it. I didn't even think that's in dispute. Then Arbery does something to resist being abducted, which could be physically threatening to the kidnappers and they defend themselves. You're talking about where the clock starts and that whole sequence, is that self-defense under the law.

Elie Mystal: No, because for a couple of reasons. First of all, that resisting being kidnapped is not a violent threat with deadly force. Arbery was unarmed. There's no indication they did anything to-- Everybody's seen the videos, no indication they did anything to become-- It's not like he pulled a gun out of-- turned his fist into a stabbing weapon like he's the Terminator 2000. There's nothing there. For them to respond with deadly force for a non-deadly altercation I think throws their self-defense claim just completely out of the window. I don't see how you get there.

Really, the only way you get there, the only way to make the self-defense claim is if you believe as these, I believe racist white people did seem to believe that Black people are inherently dangerous and should be put down in the street. If you believe that, then I guess you can make this self-defense claim. If you're defending a white ethno-state, I guess you can make that claim, but if you're doing anything along the normal thinking and course of the law, there is no self-defense claim here. This was just a lynching.

Brian Lehrer: I'm haunted though by the specter of the Trayvon Martin case in 2013, which I think really launched the modern Black Lives Matter movement. Martin was walking through a neighborhood, people may remember, no evidence he committed a crime, a local self-appointed resident watchdog, George Zimmerman, not a police officer, went out to accost him. Martin defended himself, and in the altercations, Zimmerman killed him. Zimmerman was acquitted in that case on the grounds of self-defense, if I remember correctly. Legally speaking, how much is this like that?

Elie Mystal: It's exactly like that. You're right to point out that Zimmerman in Florida he walked. I believe that because people like Zimmerman walked, it made these people like McDaniel's feel even more empowered and emboldened to go out and do what they did. I also think that Zimmerman case is one of the reasons why Kyle Rittenhouse felt empowered and emboldened to go out and do what he did. If McDaniel's and Rittenhouse both walk, then more people will create another generation of white people who feel emboldened to go out to the streets and find Black people to shoot and kill.

There's no mystery here in terms of what's happening. There's no real mystery here in terms of why it's happening. The only mystery is whether 11 white people in a jury in Georgia will finally say no, this far and no further, this is the line. That's the only mystery, and we'll see.

Brian Lehrer: Now, let's transition to the Rittenhouse case in Wisconsin, also a self-defense claim, but arguably more complicated. He killed two people, all his victims were white, by the way, he killed two people during that chaotic protest, but the third person he shot, who survived, testified in court yesterday that he was pointing his gun at Rittenhouse when Rittenhouse fired on him, but after Rittenhouse had killed the two other people and the third victim perceiving that Rittenhouse was an active shooter, but Rittenhouse was having a gun pointed at him when he fired on that third person. Here is a clip from that testimony. The man who was shot is named Gaige Grosskreutz. He's being questioned by Rittenhouse's defense attorney, Corey Chirafisi, who speaks first showing a video and asking, "Does this look like your arm being shot?"

Corey Chirafisi: Does this look like right now your farm is being shot?

Gaige Grosskreutz: That looks like my bicep being vaporized. Yes.

Corey Chirafisi: Okay, and it's being vaporized because you're pointing your gun directly at him? Yes?

Gaige Grosskreutz: Yes.

Corey Chirafisi: Okay. When you were standing three to five feet from him with your arms up in the air, he never fired, right?

Gaige Grosskreutz: Correct.

Corey Chirafisi: It wasn't until you pointed your gun at him, advanced on him with your gun, now your hands down and pointed at him that he fired, right?

Gaige Grosskreutz: Correct.

Brian Lehrer: Elie, self-defense?

Elie Mystal: Yes, so that's a tougher case, at least as it pertains to Gaige, right? Gaige was armed and advancing upon Rittenhouse. Now, again, I would argue that there's a duty to retreat, that there are other things that Rittenhouse could have done in that situation other than try to kill the man, but I would have a tougher argument to make, right? You just experientially, people need to believe that if somebody is coming at you with a gun, that the right thing to do in that situation is to blow their brains out, right?

Again, this is a question of starting, where do you start the clock? The defense attorney wants to start the clock 10 seconds before Rittenhouse shot. They don't want to start the clock when Rittenhouse was seen earlier in the evening, chasing those very people around the streets. They don't want to start the clock when Rittenhouse cross the state lines with the unlicensed gun to join the protests in the first place. They don't want to start the clock two weeks before the protests in Kenosha where Rittenhouse is on video watching people leave CBS and saying to his friend on a camera, "I wish I had a gun so I could go shoot those looters."

They don't want to start the clock there in terms of Rittenhouse's overall state of mind and propensity to violence. They want to start in the clock the 10 seconds before Rittenhouse shoots. If you start the clock, the 10 seconds before Rittenhouse shoots Gaige, sure, you can make a color unlike the Arbery situation. You can make a colorable claim for self-defense there. For the one guy that he shot, but didn't kill, but there are two other people that he actually killed, which is where I think his self-defense games start to fall apart.

Brian Lehrer: Let's take phone call. Here is Paula Whitney in Crown Heights, who says she's a former Manhattan prosecutor. Paula Whitney, you're on WNYC, and that's like a hyphenated first name. I don't think I'm using your whole name. That's [crosstalk]

Paula Whitney: Good morning, Brian.

Brian Lehrer: Hi.

Paula Whitney: Good morning, Brian.

Brian Lehrer: Hi. Good morning.

Paula Whitney: Hi, it's two. It's my first name separated by a space.

Brian Lehrer: Got you. Welcome.

Paula Whitney: You're correct. I am a former Manhattan prosecutor on the late Robert Morgenthau. I'm also African, Caribbean American. As far as I'm concerned, these two cases already decided. I liked to refer to them as simultaneous [unintelligible 00:28:30] trials. When your cases stand to trial, the first thing you do-- only thing you want to know is, who is the judge? Given who these two judges are on these cases, I'm completely given up. Thank you for taking my call,

Brian Lehrer: Do you share her hopelessness, Elie?

Elie Mystal: Certainly for Rittenhouse's case, right? The judge Brian Schroeder up in Minnesota is a real problem. He has a history of ignoring civil rights decisions. People might remember a couple of weeks ago, there was a big kerfuffle where he refused to allow the prosecutors to call the victims of Rittenhouse's violence "victims", that he said that word couldn't be used to describe the people he killed.

Now, there's some nuanced there. Look, they were clearly victims of a homicide, right? They were alive. Now they're dead and they're dead because they were shot. That's a homicide, right? They were victims of homicide, but whether or not-- The point of the trial is not to determine whether or not a homicide was committed, because it clearly was, the question is whether or not that homicide was justified. Calling them victims would be okay. However, there is nuance, I understand from a defense attorney point why in a self-defense case you don't want to use the word "victims" to describe people that your client is accused of murdering. I get that.

The problem is to me is that Schroeder disallowed the use of the word "victims", is that he allows defense, Rittenhouse's lawyers to call the victims "arsonists", "looters", and "rioters", which is ridiculous because the victims are not on trial, in fact, the surviving victim has not been charged with arson or looting or rioting. For Rittenhouse's lawyers to call them that, that's where the prejudice can be seen.

Since the trial has started, this Judge Schroeder has been quoting Bible verses at the jury. He's a problematic individual. I agree with Paula, your last caller, that when you get a judge that is that bias, that has their thumb so heavily on the scale for one side or the other right at the start, it's hard to fight both the defense attorneys and the judge. That's a hard hill to climb.

In the McDaniel case, I disagreed with Walmsley's Batson decision, I haven't seen other clear convincing evidence, to me at least, that he is otherwise biased against the victim in that case and for the defense.

Brian Lehrer: Well, that's the judge, then there's the jury who actually has to make the decision. Maybe this is my white innocence, Elie, but I don't see how the McMasters get off.

Elie Mystal: There are two things though, right? First of all, remember, it's the judge who instructs the jury what the law is, right? Not every juror, most jurors, in fact, do not come and are picked specifically to not come to the jury box with any real understanding of the law or legal concepts so they can be told that all by the judge. We still don't know what the jury instructions are going to be or that kind of thing.

Then remember, it's the McDaniels are on defense here, this is not the prosecution. You might say that you think that you find it hard to believe that these people will acquit the McDaniels. It only takes one angry jury, they got to get one Bubba, their word not mine, in Georgia to think that it's okay to shoot Black people in the street.

Brian Lehrer: A fairly large percentage chance.

Elie Mystal: I like you, Brian, I like to think that just the video alone is so obvious as to what happened, that even a nearly all-white jury in Georgia has to say like, "That's going too far." I have to still believe that, but that's one of those things where you want to hedge your bet a little bit. I'm not going to bet my lunch money on.

Brian Lehrer: I hear you. Norris in Jersey City. You're on WNYC with Elie Mystal, justice correspondent for The Nation. Hello, Norris.

Norris: Hi, Brian. My question is, why can't jury selection be more neutral? For instance, like a blind selection, the way symphony players are chosen, they audition behind a screen. Thanks.

Brian Lehrer: Thank you. Good idea even, Ellie?

Elie Mystal: I'd love it. That would be great. That'd be one way to fix it, right? Blind selection, so you don't get to know what-- Blind selection, voice masking technology, the whole thing. All you know are their answers to questions and not anything else, that would be acceptable to me. The problem is that it's not acceptable, it's not what the Supreme Court requires. [crosstalk] Go ahead.

Brian Lehrer: It does raise an issue too, doesn't it, that whenever we're talking about representation and trying to get to decent percentages of representation, are you really going to get there through blind interviewing for a job, for college admissions, for a jury, or do you need to be more intentional, in fact, in order to see the representative jury or any other group?

Elie Mystal: That's an interesting question to me, because in a job situation, I would say, obviously, you need to be more intentional with that. In most situations in life, I would say, obviously, you need to be more intentional than that. In jury selection, I don't know, Brian. To kind of go out to 30,000 feet here, the theory of a jury is one of the oldest legal concepts in the world. Athens did this. The thought that you'd be judged by a jury of your community is a very long standing thought in human society. When you think about what it's designed to do, it's designed to hold you not to the arbitrary magistrate laws, but just the general laws of your community.

That might be the one time where I think even just a random spin of the wheel could get us to what we're trying to get to, as long as that spin is actually random. My problem with our current American jury selection is that it is not random. It is racist by design and it's trying to take those design elements out and get us back to maybe an Athenian version of randomness. That would be my baseline.

Brian Lehrer: One more call, Sandra in Manhattan, you're on WNYC. Hello, Sandra.

Sandra: Hi, good morning. Hi. My question is I haven't heard anything about Kyle Rittenhouse's mother who drove him across state lines to commit this crime. She seems to be an accomplice and conspired with him to commit these crimes. I was wondering, do you know anything about her? Has she been arrested, or will she be on trial for this for the same crime? Also, does anybody know how Kyle Rittenhouse was dressed, was he dressed like a law enforcement agent or not? Was he dressed like a civilian? Thank you so very much.

Brian Lehrer: Thank you very much for those questions.

Elie Mystal: Thank you, Sandra. As I understand it, his mother drove him has been debunked, I believe. I believe that it turns out his mother didn't drive him to the actual protests, that he drove with friends across state lines to the actual protests. I don't think that the mother actually did the driving, and even though if she did, look, we don't generally prosecute parents for the sins of their children in this society, I have two kids, perhaps I'm biased when I say that, but we generally don't do that, and I don't know that this would be the test case to test that out.

One thing though, that people I think have forgotten is that Rittenhouse was carrying an unlicensed assault rifle. It wasn't his, he was gifted the assault rifle by an older friend who had the authority to buy it. It's both a case of Rittenhouse should at least be convicted for carrying an unlicensed assault rifle, the friend who gave him that rifle should be held accountable for giving out an unlicensed rifle. By the way, could we perhaps fix the huge loopholes in our gun laws, so that this kind of thing didn't happen.

Because we can talk about this from a racial angle, from a police brutality angle, from all these different angles, if Rittenhouse didn't have an assault rifle, two more people would be alive, period. If Rittenhouse wasn't able to so easily access the gun, two more people would be alive, and if we don't, at some point in our society, wrestle with that, these killings will keep happening.

Brian Lehrer: One more thing as we're running out of time, I just want to mention this and get your take on it, one of the defendant's vehicles in the McMaster case had a confederate flag decal on it, and apparently that's been deemed admissible as evidence. Can you explain the context of that as evidence?

Elie Mystal: Evidence is state of mind, right? Look, in these cases, what the person's intent was in the moment is always important, and when you're rolling around your former confederate state in your generally confederate memorabilia vehicle, that gives you an indication as to what their intent was while to commit the crime. To say nothing of it, gives you an indication of Arbery's state of mind, right?

If I'm jogging down the street and somebody in a confederate flag car comes hauling after me, what am I going to do? Am I going to be like, "Oh, those are probably just concerned citizens, let me explain to them why I'm jogging through their lovely community." No, I'm going to run, I'm going to run as fast as I can. I'm very slow, in fact, so I wouldn't get very far. If I see a confederate flag vehicle coming at me, I'm going to do everything I can in my power to get away. That's the other reason why that's admissible, that's important evidence in this crimes. It shows why Arbery took the actions he took in the heat of the moment.

Brian Lehrer: On issues in the Rittenhouse and McMaster cases, Elie Mystal, justice correspondent for The Nation. Some of you will also remember he was the legal editor for Radiolab's Supreme Court series called More Perfect a Few Years Ago. He also has a book coming out in January called Allow Me to Retort: A Black Guy's Guide to the Constitutional Hardcover. Elie, please come back then.

Elie Mystal: Thank you so much for having me, Brian. Hope to see you soon.

 

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