Stephen Colbert: "We should change the law."

 Are you part of the mob criticizing the verdicts of the jury in the Kyle Rittenhouse trial? President Biden was.

"While the verdict in Kenosha will leave many Americans feeling angry and concerned, myself included, we must acknowledge that the jury has spoken ....," he said.

Biden then added, "I didn't watch the trial." Of course, the jurors did.

And then there was Stephen Colbert's inane criticism. 

"Cards on the table, I am not a legal expert so I can't tell you whether or not Kyle Rittenhouse broke the law. But I can tell you this, if he didn't break the law we should change the law."

OK, Mr. non-legal expert. Since you don't know "whether or not Kyle Rittenhouse broke the law," why do you want it changed? And exactly what do you want changed?

Perhaps we should begin by abolishing the right to self-defense? Or maybe just the right to use deadly force when acting in self-defense? Or the right to use a gun in self-defense?

Or maybe we should change the procedures of trial?

Perhaps instead of the "presumption of innocence," all persons charged by the government with serious crimes, should be presumed guilty? After all, if the President or one of his U.S. Attorneys thinks you're guilty, don't they have solid evidence to back that up?

If a grand jury finds probable cause to indict you, aren't you probably guilty?

And if you are probably guilty, shouldn't you be presumed guilty?

Perhaps the requirement that the defendant be proved guilty beyond a reasonable doubt should be abolished. Many defendants who are probably guilty are found not guilty because of that rule. And when grand jury has found that the defendant is "probably guilty," shouldn't the defendant have to prove himself not guilty beyond a reasonable doubt? Or at least prove himself to the jury's satisfaction that he is not guilty.

Or maybe we should abolish the rules of evidence? Why shouldn't the government be able to use a little hearsay if that will help convict a defendant who has already been found "probably guilty" by the grand jury's indictment, or the prosecutor's information?

In America, the judge is the sole judge of the law, and the jurors are the sole judges of the facts. The judge is a government official; the jurors aren't. And until twelve jurors – your fellow citizens – find you guilty, no judge can deprive you of your life, liberty or property.

Perhaps comedian Colbert would like to see that changed? How about allowing a simple majority of the 12 jurors to find you guilty? How about giving the judge the right to disregard the jury's verdict, and pronounce guilt himself?

How about allowing the judge to direct the jurors to enter a verdict of "guilty?"

How about abolishing the jury altogether? Why not get rid of an "independent judiciary?" Allow the President to appoint any of his officials to preside over your trial, even if the President, as in the case of Rittenhouse, used his photo in a 2020 campaign ad, claiming President Trump supported white-racism?

Or maybe an indicted man should be required to face trial without an attorney?

If you think such "improvements" could never be a part of American law, you are woefully ignorant of the history of Anglo-American law.

We have a record of the 1603 trial of Sir Walter Raleigh for treason. During that trial, the judges considered themselves part of the prosecution. They helped gather statements from witnesses to be used against Raleigh. They deemed it their duty to see that an indicted man was found guilty. Raleigh was denied counsel.

Because the judges believed a man on trial for his life might lie under oath, he was denied the right to testify under oath on his own behalf. Given the grand jury indictment, Raleigh was presumed guilty. The requirement of proof beyond a reasonable doubt was at the time, unknown. Hearsay and hearsay upon hearsay were admitted into evidence against Raleigh. He was not allowed to confront and cross-examine his accusers. He was not allowed to call Lord Cobham into court to allow Cobham to testify that his deposition gathered and used by the prosecution against Raleigh was made after one of the judges told Cobham that he could face the rack if he would not testify against Raleigh.

Add to that the fact that the jurors knew that they could be punished by fine or jail for "perjury" if they returned a "false verdict" – if their verdict displeased the King.

So which of these improvements would funnyman Colbert opt for? It is easy to criticize a jury when in Biden's words, you "did not watch it." But that jury sat and heard all the evidence the prosecutor could adduce against Rittenhouse.

It watched numerous videos of the shootings. And then deliberated for three days before rendering its verdicts.

It is good that President Biden said, "we must acknowledge that the jury has spoken." But for him to be "angry" with the jury without having seen nor heard the evidence that the jury did, is disgraceful. For Colbert to want to change the law with no specification of what he would change, is bizarre — not funny.

Copyright 2021, John Donald O'Shea

First Published in the Moline Dispatch and Rock Island Argus on December 3, 2021