Why might a judge be going easy on Kyle Rittenhouse? I have a theory

Perhaps Judge Schroeder has his own career in mind

Kenosha Protest Shootings (Mark Hertzberg)

I was in England during the 2016 US election. While the most frequent question my British friends asked me was, “Donald Trump? Really?”, a close second was, “Why is your ballot so bloody long?” And it’s true, Americans vote for a lot of offices — county assessor, school board, who runs the water department — that most countries do not elect, for good reason. Ask yourself if you are truly qualified to hire a coroner.

Perhaps no elected office stands out so drastically as does that of judge. To my British friends, and the rest of the world, the idea of electing a judge seems absurd. The need to raise campaign dollars and fear of losing their job could cloud their judgment in all things from rendering verdicts in civil suits to sentencing in criminal cases. Judges, many of my friends insisted, should not be subject to the whims of popular opinion.

I quite agree. Which is why my first thought when reading about how lenient Judge Bruce E. Schroeder is being in the case of Kyle Rittenhouse, the accused gunman who allegedly opened fire on protesters in Kenosha, Washington last year – killing two men and wounding another – was to check to see if he is elected. Sure enough, in Wisconsin, circuit court judges are elected at the county level for a term of six years.

Judge Schroeder was first appointed to the bench in Kenosha County way back in 1983 by then-Democratic Governor Tony Earl. He was elected in his own right the following year and has been handily reelected as one of several circuit court judges for Kenosha County ever since. Last year, he ran unopposed in a nonpartisan election, winning 98.7 percent of the vote. (The other 1.3 percent went to write-in candidates.)

Schroeder also ran unopposed in 2008 and 2014, the most recent election data listed on the Kenosha County website. This means he has held his job with relatively little accountability since at least 2002, the most recent election Kenosha County does not provide results for. That’s nearly 20 years.

Don’t think Judge Schroeder hasn’t had his share of critics, though. A 2006 article from the Associated Press notes that “Schroeder is known for his occasional fiery style, sharp tongue and stiff sentences.” More interestingly, though, the article tells of how Judge Schroeder’s heavy-handed sentencing caused more than 250 defendants to request a different judge for their trials, a right defendants have under Wisconsin law. This created such a burden on other judges in Kenosha County that a judge from neighboring Racine County had to come in to assist.

This begs the question: Why is Judge Schroeder, famed for his “stiff sentences” 15 years ago, now so lenient with Kyle Rittenhouse?

I had a look at some data from Kenosha County. According to the US Census Bureau, 87.2 percent of the county is white. Only 7.4 percent of the county is Black. Donald Trump carried the county in 2020, but only with 50.71 percent of the vote. And lest you think that is not so bad (or not so good, if you wear a red hat), this is up from the 46.85 percent of the vote Trump received in 2016, when he defeated Hillary Clinton in Kenosha County by less than 1 percent.

If you are wondering why I am throwing so many numbers at you, it is to try to make sense of how a judge once renowned for his harsh sentencing seems to have gone so soft. This is a defendant many consider to be a right-wing terrorist and a threat to the community. He drove across state lines with firearms he had no legal right to carry. Sure, many others consider him a vigilante hero, but regardless of how you view him, Kyle Rittenhouse indisputably stands accused of a double homicide.

So why is Judge Schroeder going so easy on him?

After all this, I have no definitive answer. All I can offer is my opinion, and as an opinion writer it is in my purview to give it. My belief, after looking at all the evidence I’ve presented above, is — though he was appointed by a Democrat 40 years ago, and though he hasn’t faced a challenger in nearly 20 years — perhaps Judge Schroeder is afraid for his job.

While there isn’t any public polling available so far on how Kenosha County feels about Kyle Rittenhouse, his defense team clearly thinks the locals are on his side. In March, his attorney Robert Barnes said the defense was conducting polling in Kenosha to ensure the citizenry was not biased and Rittenhouse would receive a fair trial. Given there has been no change of venue request, clearly that polling showed at least a neutral, if not a favorable, view of Rittenhouse in Kenosha County.

I’m the first to admit all of this is circumstantial evidence, at best. My research has raised more questions than it has answered, and it proves nothing about Judge Schroeder’s motives. What I can say is that it’s a shame we even have to ask the question.

Judges should be above such concerns as public opinion. No American should ever have to question whether the verdict handed down was influenced by a judge’s desire to keep her or his job. The judicial branch is the only branch of government that is meant to be apolitical. Yet politicizing the courts by electing judges means that every sentence handed down is tainted by legitimate questions of that judge’s motives.

I’ll leave it up to you to decide why Judge Schroeder is being so lenient with Kyle Rittenhouse. After all this, I still can’t say for certain. What I can say for certain is that the question as to whether a judge is going easy on an accused killer because the killer might be politically popular is a legitimate one when that judge is elected — and that is a damning indictment of our criminal justice system.