As jury deliberations in the Kyle Rittenhouse murder trial continued into the early evening Tuesday, speculation about whether the “lengthy” deliberations were better for the defense or the prosecution, about whether the jurors would be able to truly vote their conscience because of the publicity around the case, about whether the jurors would be adequately protected from those unhappy with the verdict after the case adjourned, and about what exactly was happening in the courtroom (since cameras weren’t on all day as they had been during testimony) reached fever pitch.

A series of tweets Tuesday evening about what was supposedly happening during jury deliberations from Jack Posobiec of Human Events was especially troubling. Citing an unnamed U.S. Marshal in Kenosha, Posobiec said that:

• Two jurors are holding up the verdict, “outright citing backlash”
• The two jurors are “worried about media leaking their names, what will happen to their families, jobs, etc”
• The jurors are specifically afraid of “‘doxxing threats by anarchist groups'”

If some or all of the jurors are struggling with voting their conscience because of potential backlash and doxxing threats, while understandable, that’s a major problem and the judge has a duty to address that with the jurors and excuse them from the case if they aren’t able to set that fear aside and render a verdict based only upon the evidence they’ve heard in the courtroom. If that happened, and if more than six of them are unable to uphold their oath (since there are six alternates who could be seated), Judge Schroeder would be forced to declare a mistrial.

In my opinion and based on my experience as a court stenographer in more than 1,000 criminal trials – including multiple live-streamed, high profile murder cases – what Posobiec is saying could not have happened the way he tweeted it did, and if some version of what he’s reporting happened, there will be a few people hauled in front of Judge Schroeder tomorrow morning and the case could possibly end in a mistrial.

Now, I’m not saying that Posobiec made it up or that he’s lying. I have no way to know how this information got to him. But here’s why I believe it couldn’t have happened.

First, as many people have pointed out, U.S. Marshals don’t interact with the jury in a state criminal case. Even if a U.S. Marshal served as a witness in the Rittenhouse case or was around the courtroom for some type of protective action, that officer would not be hanging out with court staff in front of the bar during deliberations.

Second, access to the jury room is extremely limited during any trial, civil or criminal, high profile or misdemeanor. Throughout the trial, the bailiff is the point of contact between the jury and the judge. The bailiff unlocks the jury room door in the morning and sits outside the door as the jurors arrive, ensuring that none of the parties, witnesses, court staff, media, or the public speak to the jurors and that no outside materials are brought into the courtroom. Jurors are permitted to bring their own personal effects into the courtroom – a purse, wallet, snacks, water, medication, a book or crossword puzzle, phone – but in this case they wouldn’t be permitted to have any newspapers or magazines brought in because of the nature of the trial.

Once deliberations start, things are even more serious. One bailiff sits outside the jury door as the jurors deliberate, and even other court staffers aren’t allowed to congregate near the jury room, lest they overhear what jurors are saying (occasionally the deliberations get loud/heated). If a staffer is too close to the jury room for too long, the bailiff will wave them away. Another bailiff is usually seated outside the judge’s chambers, and at least one will be inside the courtroom.

So, there is only one person who could have possibly overheard anything happening in the jury room. If that bailiff clearly overheard two jurors verbalizing these fears, and if he/she could somehow ascertain that the two jurors were holding up the verdict for that reason, if the bailiff said anything at all about what he heard it should be to the judge.

Likewise, there is only one person jurors are speaking to while they’re at the courthouse, and that’s the bailiff. They aren’t allowed to talk about the case, though, period. Hard stop. If they do, the bailiff is required to report that to the court. They are, however, allowed to share a concern with the court via the bailiff. Let’s say that two jurors were indeed holding up the verdict and for the reasons cited, and another juror wanted the judge to be aware of that. That juror could write a note and give it to the bailiff, who would give it to the judge. In multiple trials I worked on, a juror would forget that they’re supposed to write out their question and would start talking to the bailiff on their way back in or out of the jury room during a break. The bailiff would have to stop them mid-sentence and say, “Write it down, please. I’m not allowed to talk to you.” Then the juror would do just that.

The bailiff is not permitted to talk to the press about interactions with the jury.

Bailiffs in state criminal cases are state or local law enforcement officers, not U.S. Marshals, so no U.S. Marshal would have firsthand knowledge of what any juror said. What if the bailiff told the U.S. Marshal, though? It’s not unheard of for bailiffs to share with court staffers things they overhear from the jury room, even though it’s not proper. But the Marshal would be going rogue and risking their career to feed this information to the media, if it’s information that was overheard. If it’s information that the bailiff supposedly told a U.S. Marshal, saying that a juror or two jurors told them, the Marshal would be obligated to inform the judge.

And it’s not just bailiffs or other law enforcement officers that are obligated to bring information about a juror discussing the case outside of deliberations to a judge. Any court officer – clerk, court reporter, Assistant DA, defense attorney – is obligated to bring such information to the judge, and journalists watching court proceedings would be aware of this. Members of the general public should do so as well, but they might not understand that they should, so they’re not under the same obligation as an officer of the court.

When the bailiff or another court official brings information about contact with a juror or potential juror misconduct to the judge, the judge must (especially in a murder trial due to constitutional issues) inform counsel for both sides. Sometimes this occurs in chambers and off the record, and after the judge and counsel decide how they should go forward the judge will bring everyone into the courtroom and enter a statement on the record. In murder cases and other serious felony cases, especially if they’re high profile, the judge won’t do anything off the record. The standard procedure then is for the court to be called back into session, the information presented in open court (in this instance, that would be by the bailiff stating what was told to him) so that both sides are hearing the information for the first time concurrently, and then the judge and counsel would discuss what should be done.

If this information came to the U.S. Marshal directly from a juror, that’s an even larger problem. At the end of today’s proceedings, Judge Schroeder reminded the jury that since deliberations have now begun the only time they’re allowed to discuss the case is when they’re in the jury room, with all 12 jurors present, AND only after the judge has given them permission to begin deliberations for the day. Clearly, speaking to someone about what’s happening in deliberations is a complete violation of Judge Schroeder’s instructions and could subject that juror to dismissal and potentially a contempt charge.

How do we know that the officers in the Rittenhouse trial would bring any communications they had with jurors about the case to the court? Well, Judge Schroeder has already dismissed one juror in this trial for making a joke allegedly about Jacob Blake.

The juror, a retired white man, made the joke to a court police officer as the officer escorted him to his car on Wednesday afternoon. The officer reported the joke to Judge Bruce Schroeder.

Binger asked the judge to dismiss the juror, saying the joke suggested racial bias.

Rittenhouse’s defense lawyers initially opposed the dismissal, but they ultimately declined to object after the juror refused to repeat the joke, saying that his unwillingness to do so “could be taken in a worse light.”

“Regardless whether the issue is as grave as [Binger] presented it in terms of inner feelings, it’s clear that the appearance of bias is present, and it would seriously undermine the outcome of the case,” said Schroeder as he dismissed the juror. “The public needs to be confident that this is a fair trial.”

Yes, the public needs to be confident that this is a fair trial for both sides. Instead of tweeting these rumors, which should lead to a mistrial if true and which will further polarize the country – possibly leading to outright violence if Rittenhouse is convicted – Posobiec should have gone straight to Judge Bruce Schroeder. Given the way Schroeder reacted when Assistant DA Thomas Bringer embarked on a line of questioning could have caused the case to end in a mistrial, if Schroeder hears about what Posobiec is tweeting, my bet is that Posobiec will wish he’d gone straight to Schroeder with the information instead of to the tweet machine.

UPDATE, 1:15 AM EST, 11/17/21: This piece has been edited to remove the reference to alternate jurors being dismissed. The fact that there are alternate jurors, though, doesn’t remove the possibility of mistrial if a juror or jurors are holding up the verdict due to fears of backlash or doxxing and if said juror or jurors have articulated that fear to the other jurors and especially if a juror told someone about that. The entire jury could be tainted by those events and, based on my experience in hundreds of jury trials, the judge would likely call the jurors into the courtroom and ask them individually if they could put aside the things that happened in the jury room related to a few jurors allegedly holding up a verdict, AND if they could put aside any fears of what the consequence of any verdict might be and return a verdict based on the court’s instructions and the evidence in the trial.

(NOTE: Two of the high profile, live-streamed trials I served as the court reporter for were the trials of Brad Cooper, who was convicted of murdering his wife, and the trial of Ryan Hare, the teenage mastermind of a plot to kidnap and murder a classmate.)