It is no surprise that many feel dismay over the acquittal of Kyle Rittenhouse and see the verdict as resulting from the American tolerance of gun culture; a nearly all-white jury favoring a white defendant; a baby-faced [in the jurors’ eyes] teen who did not match a stereotype of a ‘gun-toting’ marauder; and a reaction against the purported violence of racial justice protests.

But those views impose social concerns on what is ultimately a trial, a process where a jury must confront two competing narratives.  Sorting out the possible social and cognitive contributing factors cannot be done with precision and in fact such an exercise may be fruitless.  But self-defense law Wisconsin style and the conduct of Rittenhouse’s trial offer easy explanations of how a ‘not guilty’ verdict was reached either because jurors simply followed the law or made the defense story fit with their implicit (or express) biases.

What were the stories?  The prosecution’s was simple, laid out in the opening statement:

[T]he defendant Kyle Rittenhouse, who was 17-years-old at the time, had armed himself with an AR-15 style semi-automatic rifle loaded with 30 rounds in the magazine. And using that rifle, he shot and killed Joseph Rosenbaum, an unarmed man. The shot that killed Mr. Rosenbaum was a shot to the back. This occurred after the defendant chased down Mr. Rosenbaum and confronted him while wielding that AR-15.

The defense narrative was, unsurprisingly, different:

The defendant believed that the amount of force which he used or threatened to use was necessary to prevent or to terminate the interference, and that his belief was reasonable. You as jurors will end up looking at it from the standpoint of a 17 year old under the circumstances as they existed on August 25th of 2020.

Mr. Binger makes a big thing out of Kyle Rittenhouse was the only per who shot somebody that evening. True, Mr. Rittenhouse was the only person who was chased by Joseph Rosenbaum that evening. Mr. Rosenbaum was at a location and Mr. Rosenbaum had, along with other individuals, started a dumpster on fire. When somebody put that dumpster that was very close to a gas station out, Mr. Rosenbaum became enraged. I’m going to go back.

How did the law and the trial’s conduct support accepting the latter?  Under Wisconsin self-defense law it is the state’s burden to show beyond a reasonable doubt that this was not a case of self-defense.  The jury was told this expressly, along with two other critical points:

  • The belief in the need to use deadly force may be reasonable even if mistaken; and
  • “reasonableness” must be determined “at the time of the defendant’s acts…”

This last point is critical.  As described in the jury instructions, that implies that one looks to the seconds before a shot was fired.  Not the decision to bring a military type firearm to a fluid, potentially explosive situation; not the decision to carry that gun on the streets; and not the decision to approach individuals.

Wisconsin law then goes further to increase the burden on the state.  Jurors are told there is “no duty to retreat,” almost an invocation to ‘stand one’s ground.’  The possibility of retreat may be weighed when assessing the reasonableness of Rittenhouse’s belief in the need to fire, but mixing it into that calculus may be too complex for a lay juror, particularly one who was emphatically told that no retreat is required.

Finally, the jury was instructed on provocation and the rudimentary principle that one who provokes a fight may not then claim self-defense.  But that was not how Wisconsin law framed it.  Provocation negates self-defense only if the person engaged in unlawful activity likely to provoke others to attack.  Rittenhouse’s jury was not instructed that carrying the rifle was such an act. That charge was dropped before the case went to the jury – the barrel length put the weapon out of the reach of the statute banning minors from possessing dangerous firearms  Under this narrow approach, it is hard to find provocation.

And as to the reasonable doubt instruction, the Judge added extraordinary language, directing the jury to “[e]xamine the evidence and search for the truth, giving the defendant the benefit of every reasonable doubt.”

This was the legal framework.  It informed a trial that used stereotypes and what can only be described as over-the-top conduct to defend the accused.  Consider the issue of mental health:

After a pre-trial ruling excluding evidence that one of the shooting victims had been diagnosed as suffering from bipolar disorder and depression, the prosecution asked that victim’s girlfriend if he had taken medication earlier that day.  To the judge, this ‘opened the door’ for the mental health diagnosis even though there was no proof that Rittenhouse was aware of that and thus could have factored it into his own assessment of danger.

Making matters worse, with no medical/expert testimony on what these conditions entail, defense counsel then used them to support a claim that this victim was a danger to Rittenhouse.  Remarkably, with no sanction from the Judge, defense counsel inserted the stereotype of a deranged person and the lawyer’s own opinion into closing argument, telling the jury that “I’m glad [Rittenhouse] shot him because if Joseph Rosenbaum got that gun I don’t for a minute believe he wouldn’t have used it against somebody else…”

This wild west shootout approach to lawyering pushed buttons and provoked.  All in a case where the lawyers ridiculed each other or painted the case in such extreme language – consider the prosecutor likening Rittenhouse to an “active shooter” situation – that rational assessment of the evidence was less and less achievable.

Would an African-American defendant have received the same verdict?  Different and powerful anti-defendant stereotypes would have controlled, so indeed social issues and biases may indeed be at the root of Rittenhouse’s acquittal.  But self-defense law and a trial that became a slugfest between the lawyers  are what lend ‘sense’ to this verdict.