The Rittenhouse Trial and Other Fictions
Or the perils of viewing the criminal trial as a microcosm of American politics
“You see, it had in it wealth, degeneracy, rich old wasters, delectable young chorus girls and adolescent artists' models; the behind-the-scenes of Theatredom and the Underworld, and the Great White Way ... the abnormal pastimes and weird orgies of overly aesthetic artists and jaded debauchees. In the cast of the motley show were Bowery toughs, Harlem gangsters, Tenderloin panderers, Broadway leading men, Fifth Avenue clubmen, Wall Street manipulators, uptown voluptuaries and downtown thugs.”
-Reporter Irvin Cobb, explaining the American fascination with the trial of Harry Thaw for the murder of Stanford White
People tell stories to make meaning out of life. This habit is more than an entertaining diversion; it is, in a very real sense, part of the human condition. Telling stories provides both personal and communal meaning, including stories we tell about past events. History itself, as a word, is etymologically linked to the idea of narrative: A story that we tell about past events. And as with everything human, history requires an interpretation. The Rittenhouse trial, with the announcement of the not guilty verdict, has now passed into history. How will it be interpreted?
By now, unless you eschew social media, the interpretations of the verdict have started pouring in from friends, family and less intimate acquaintances. Some people believe that the verdict is a vindication of Rittenhouse’s actions; that, to paraphrase Rittenhouse’s attorney, his victims deserved to die, and Rittenhouse did a public service in killing them. Others may see the verdict as a vindication of a very different sort: The acquittal of an obvious murderer, perhaps even a psychopath, on the basis of his pale skin. Dueling interpretations that are correlated with identity, ideological commitments and personal experience, weaving together a number of competing stories for their audiences.
These stories are rich. They have heroes and villains, protagonists and antagonists and victims and bystanders and witnesses. Not just the defendant and the people he shot; the dramatis personae include the judge and jurors, the attorneys and experts, the witnesses and the stand-ins. In fact, the dead haunt these stories as well, and a fictionalized re-telling might involve the ghosts of Philando Castile and Trayvon Martin, or the dead and buried in the Deep South. Other victims might include the multiracial coalition of activists associated with the Black Lives Matter movement.
“No,” you might object. “It happened! It is not a story.” But to quote the professor Gary Scott from the brilliant Todd Solondz film Storytelling: “ I don't know about what happened, because once you start writing, it all becomes fiction.”
“I’m Here for Just the Facts”
There are a lot of catchphrases in popular culture. "Just the facts, ma'am" and “Beam me up, Scotty.” Both are derived from popular television series (Star Trek and Dragnet), but both are slightly wrong: No one actually said that in either. Well, not in the original; in film versions and remakes, those phrases, already popularized, appear for audiences that were already primed to hear them as a result of decades of paraphrasing.
Such things seem trivial, but they are an excellent way of reminding ourselves that our perception of reality is mediated. Not only by our senses, by the reflection of light or the aromas of a room or the sound of a voice, but also by our culture. In his 1973 paper “Thick Description: Toward an Interpretive Theory of Culture,” the anthropologist Clifford Geertz, borrowing from others, describes human beings as living life suspended in webs of significance. Culture, understood as a totality of symbols and systems (religion, economics, sports, media, and so on) supplies the framework in which people make sense of themselves and their experiences, and also represent themselves to others. They are both caught in the web and masters of it, spinning it as they are further wrapped in it. The task of the social or human sciences, or at least anthropology, is to supply a mechanism for interpreting those webs, and supplying meaning.
In another essay, Geertz uses a Balinese cockfight to illustrate these concepts. He notes that in Balinese as in English, “cock” is a double entendre, referencing both the animal as well as the primary sexual characteristic of the male sex. It serves as a symbol of masculinity, and, also, owing to other factors discussed in Geertz’s essay, a release of animal energy, a kind of blood sacrifice to dark spiritual powers and a representation of social tensions at the village level, a system of gaming and gambling, an art-form, a test of loyalty and leadership, and so on. The Balinese cockfight “is a Balinese reading of a Balinese experience; a story they tell themselves about themselves,” to quote Geertz.
American criminal trials have become a source of meaning every bit as potent as the Balinese cockfight, and the Rittenhouse trial is just the latest in a series: OJ Simpson, Trayvon Martin, Philando Castile, Brock Turner, and so on. I would suggest that this habit is no healthier than forcing animals to fight to the death, as trials are not simply games to be played. The stakes of the Rittenhouse trial were very high, but the truth is that the actual Rittenhouse trial did not involve the entire country. Rittenhouse was on trial, yes, but what we saw of that trial was a representation. And all that we can take away from it is an interpretation. Not of the trial itself, even, but an interpretation of that trial that is mediated through by a vast cultural framework, some of which we are barely conscious of.
This problem is not new. In 1967, the French philosopher Guy Debord published The Society of the Spectacle, a polemical work that argued media images and narratives had saturated everyday life in capitalist societies, altering the way that people interacted with one another. Media images, symbols and narratives are representations, but powerful ones that have the capacity to change the way that people think and even more importantly, interact, in any number of ways. Another French philosopher, Jean Baudrillard, later argued that images and symbols and narratives, as representations of reality, may be all that exists now. Facebook and other social media are perhaps the purest examples of this, where curated social profiles precede the person. Who am I, other than the representation that exists in my relations with others, mediated through a highly edited (re)presentations of my life? And in a world that is increasingly networked through these digital connections, do I even exist apart from them? What would it even mean, in America in 2021, to have social relations apart from social media?
Representation vs Reality
Key to the arguments of these philosophers and others in critical theory is the saturation of the everyday in mass media imagery, as well as the production of imagery for consumption. The Rittenhouse trial is not simply an event happening right now in Kenosha, but a commodity that is valuable in the media marketplace. In other words, there are very few actual parties to the Rittenhouse trial, but it has become an event that is being consumed by billions of people as a representation of reality. In this sense we can speak of the actual Rittenhouse trial, a localized event taking place somewhere in Kenosha, and the curated “Rittenhouse trials” that are being sold in a highly decentralized and balkanized media environment. These “Rittenhouse trials” are representations that exist as fodder for discourse communities, which are essentially special interest groups with a shared understanding of norms, style and purpose of their communications.
Algorithms and “big data” play a substantial role in this new environment. Using these algorithms, the corporations behind social media aim to deliver content that users find relevant, and keep them coming back. Their viewing, reading and social reaction habits can then be used to generate more information, which can be sold and used to refine existing algorithms in order to procure even more data, which can be sold, etcetera. Extremely large datasets are mined for this information according to certain computational and mathematical principles in order to create an analysis of user behavior that will assist in marketing, academic study, political campaigns, and so on. This will also lead to the refinement of the algorithms, as their findings are incorporated into machine learning and artificial intelligence.
Adding another layer to algorithms is the effect of operant conditioning. Operant conditioning is simply the way that our behavior is shaped by positive reinforcement and punishment, but as expressed in social media our circles help determine what is true, what we identify with and what we believe. Not only are “liked” and “shared” posts a method of reinforcement, they are determining what kind of content will be presented to us in the future. For example, if I post content that is opposed to “critical race theory,” and that content is shared and proliferates in my network, my social media ecosystem will become increasingly filled with content that is also opposed to “critical race theory.” As the content opposed to “critical race theory” zig zags through the ecological field of digital media, “critical race theory” becomes another product, another representation.
The Rittenhouse Fallout
This case and others like it have profound and often hidden impacts on our culture and our politics. While very few legal experts are surprised by the Rittenhouse verdict on the grounds that determine guilt or innocence in a criminal trial, the social and cultural interpretations of this trial are far more significant, contested and potentially consequential. Judge Schroeder’s “bias” for Rittenhouse has become a truism in certain circles, with certain practices and admonishments paraded out as evidence in the event the proposition is questioned: He did not allow the prosecutor to refer to the alleged victims as victims, he allowed Rittenhouse to randomly draw the straws that excused alternate jurors, he admonished the prosecution for referring to Rittenhouse’s silence in the face of police questioning and he excluded videotape evidence of Rittenhouse making comments about shooting shoplifters. Based on a fair assessment of Judge Schroeder’s record, his explanations and knowledge of criminal law, these actions could suggest (and I think, more likely suggest) a critical perception of the need to regulate all criminal trials from prosecutorial overreach, the perception of racial bias in juror selection and diminishment of a defendant’s constitutional rights to remain silent and to have his actions assessed based on what he did instead of irrelevant character evidence, qualities that the left usually praises in a judge.
What makes the Rittenhouse affair or the fights over critical race theory in schools dangerous is the same thing that made the divergence between social media representation and reality dangerous in the ongoing Covid pandemic: What we like to hear, or the narrative frames that we use, are personally satisfying but highly deceptive accounts of reality. We can never escape the need to interpret facts or to tell stories, but we can and should exercise greater restraint, judgment and, where appropriate, deference to expert opinion. If the Rittenhouse verdict results in more armed vigilantes parading through racial justice protests, we should be concerned about that. Just as we should be concerned by the verdict resulting in distrust of the rights of criminal defendants, or by the moral panic over critical race theory resulting in distrust of educated professionals instructing our children on America’s history of racism. This is especially true if you are concerned about the existence of structural racial inequalities and disparities in education, criminal justice and the like. What would we say if a judge behaved the way that Schroeder did in a trial involving a black or Latino defendant?
American criminal trials are designed to adjudicate guilt. For this they are imperfect mechanisms, but they are even worse at resolving social injustices. In fact, they were never designed to do that in the first place, and expecting a single case or even series of high profile cases to solve our political and social disputes is silly. I would argue that the only reason we entertain these notions is because we have been primed by our cultural to see a certain kind of trial as a commentary on the times. At this point, we do not even remember the OJ Simpson trial clearly, but only in light of the many interpretations that followed it, including an award winning television series that used the trial as a storytelling device to comment on the intersections of criminal justice with celebrity, race, class and gender. But even if it was the role of American Crime Story to render an artistic interpretation of the OJ Simpson trial, neither the Simpson nor the Rittenhouse jury were charged with resolving the culture wars.
People say that the road to hell is paved with good intentions. I would add that it is easier to get lost on the road to heaven and end up in hell when you misinterpret the signposts along the way. We should all be careful to put down our cell phones and other distractions and grab our reading glasses before we commit ourselves to the next story.
"I don't know about what happened, because once you start writing, it all becomes fiction.”
AMEN!