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Was it fair to have Kyle Rittenhouse pick the numbers that determined his jury?

The move has been criticized as a ‘piece of theater,’ and lotteries haven’t always been great in American pop culture

Kyle Rittenhouse pulls numbers of jurors out of a tumbler during his trial at the Kenosha County Courthouse in Kenosha, Wis., on Nov. 16, 2021.
Kyle Rittenhouse pulls numbers of jurors out of a tumbler during his trial at the Kenosha County Courthouse in Kenosha, Wis., on Nov. 16, 2021.
Sean Krajacic, The Kenosha News, via Associated Press

Unless they involve the chance to win large sums of money, lotteries have a bad reputation in American culture even though they’re meant to ensure fairness.

Few of us exit high school without having been gutted by “The Lottery,” the short story by Shirley Jackson in which a mother is stoned to death. Then there’s the reaping in “The Hunger Games” trilogy, in which children are chosen by lottery to kill each other as a form of sadistic entertainment that also keeps would-be rebels in line.

Against this pop-culture backdrop, it’s hard to see Kyle Rittenhouse choosing his own jury as anything other than unsettling. The teen, on trial for killing two men and wounding another during a protest in Kenosha, Wisconsin, last year, on Tuesday was asked to randomly draw the numbers of six jurors who would be dismissed, effectively choosing the 12 who are now deliberating his fate.

It would be an unusual task for any defendant, let alone one in a high-profile case like this one. The judge in the case, however, said Wednesday, “I think people feel better when they have control.”

Rittenhouse was just 17 when he was among crowds that gathered after the shooting of a Black man by a white police officer in Kenosha. Some were there to protest that shooting, which occurred just three months after the death of George Floyd. Others said they were there to defend the city and its businesses from looting and violence. What you think about the case may betray your political leaning.

The left largely sees Rittenhouse, now 18, as a radicalized, vigilante representing the worst impulses of the right, while many on the right see a young man who stepped up to defend his community and who acted in self-defense when he was attacked. Writing for The New York Times, Charles Homans correctly said that Rittenhouse has become a Rorschach test.

Regardless of one’s views on the actions of Rittenhouse that night, the decision by Kenosha County Circuit Judge Bruce Schroeder to have the teen choose his own jury, rather than a clerk, struck many people as strange.

John P. Gross, the director of the University of Wisconsin-Madison’s Public Defender Project, told NBC reporter David K. Li that the move was “an interesting piece of theater.” But Ion Meyn, an assistant law professor at the University of Wisconsin-Madison, nailed it when he said, “To me, from the optics side, it doesn’t make sense. I don’t think it was a good idea.”

Schroeder had already been the target of critics who said the trial was unfair while it was still underway. The judge has been accused of being sympathetic to Rittenhouse, who, sitting in the courtroom in a suit and tie, looked more like a contestant in a high school ethics bowl than the teen who roamed the streets of Kenosha last year carrying a semi-automatic weapon.

The judge also made headlines when he said that the three men that Rittenhouse shot could be called “rioters” or “looters” during the trial, but not “victims.” That and other decisions have been described as favorable for the defense. Then there’s the ringtone on the judge’s cellphone. It’s Lee Greenwood’s “God Bless the U.S.A.,” which The Daily Beast called “a cheesy patriotic anthem.” The song is beloved of many conservatives and has been associated with former presidents Ronald Reagan and Donald Trump.

The fate of Rittenhouse, however, is not up to the judge, but to the jury of seven women and five men that he had a hand in selecting. In photos, Rittenhouse looked as enthusiastic pulling the numbers as Tessie Hutchinson, the woman who “won” the lottery in Shirley Jackson’s famous short story. The judge should have spared him the photo op.

The teen who cried on the stand has enough on his emotional plate without wondering for the rest of his life if the verdict would have been different if he had moved his hand more to the left and a bit higher. It’s a little like letting condemned prisoners in death penalty states choose their method of execution. When in custody of the state, any power you’re given is dubious at best. The Sixth Amendment gives Americans accused of a crime the right to a speedy trial with impartial jurors. Mercifully, it doesn’t demand that we pick them.