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\u2019 eyes] teen who did not match a stereotype of a \u2018gun-toting\u2019 marauder; and a reaction against the purported violence of racial justice protests.<\/p>\n
But those views impose social concerns on what is ultimately a trial, a process where a jury must confront two competing narratives.\u00a0 Sorting out the possible social and cognitive contributing factors cannot be done with precision and in fact such an exercise may be fruitless.\u00a0 But self-defense law Wisconsin style and the conduct of Rittenhouse\u2019s trial offer easy explanations of how a \u2018not guilty\u2019 verdict was reached either because jurors simply followed the law or made the defense story fit with their implicit (or express) biases.<\/p>\n
What were the stories?\u00a0 The prosecution\u2019s was simple, laid out in the opening statement:<\/p>\n
[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.<\/p>\n
The defense narrative was, unsurprisingly, different:<\/p>\n
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.<\/p>\n
\nMr. 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\u2019m going to go back.<\/p>\n
How did the law and the trial\u2019s conduct support accepting the latter?\u00a0 Under Wisconsin self-defense law it is the state\u2019s burden to show beyond a reasonable doubt that this was not<\/em> a case of self-defense.\u00a0 The jury was told this expressly, along with two other critical points:<\/p>\n This last point is critical.\u00a0 As described in the jury instructions, that implies that one looks to the seconds before a shot was fired.\u00a0 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.<\/p>\n Wisconsin law then goes further to increase the burden on the state.\u00a0 Jurors are told there is \u201cno duty to retreat,\u201d almost an invocation to \u2018stand one\u2019s ground.\u2019\u00a0 The possibility of retreat may be weighed when assessing the reasonableness of Rittenhouse\u2019s 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.<\/p>\n Finally, the jury was instructed on provocation and the rudimentary principle that one who provokes a fight may not then claim self-defense.\u00a0 But that was not how Wisconsin law framed it.\u00a0 Provocation negates self-defense only if the person engaged in unlawful<\/em> activity likely<\/em> to provoke others to attack.\u00a0 Rittenhouse\u2019s 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\u00a0 Under this narrow approach, it is hard to find provocation.<\/p>\n And as to the reasonable doubt instruction, the Judge added extraordinary language, directing the jury to \u201c[e]xamine the evidence and search for the truth, giving the defendant the benefit of every reasonable doubt.\u201d<\/em><\/p>\n This was the legal framework.\u00a0 It informed a trial that used stereotypes and what can only be described as over-the-top conduct to defend the accused.\u00a0 Consider the issue of mental health:<\/p>\n 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\u2019s girlfriend if he had taken medication earlier that day.\u00a0 To the judge, this \u2018opened the door\u2019 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.<\/p>\n 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.\u00a0 Remarkably, with no sanction from the Judge, defense counsel inserted the stereotype of a deranged person and the lawyer\u2019s own opinion into closing argument, telling the jury that \u201cI\u2019m glad [Rittenhouse] shot him because if Joseph Rosenbaum got that gun I don\u2019t for a minute believe he wouldn\u2019t have used it against somebody else\u2026\u201d<\/p>\n This wild west shootout approach to lawyering pushed buttons and provoked.\u00a0 All in a case where the lawyers ridiculed each other or painted the case in such extreme language \u2013 consider the prosecutor likening Rittenhouse to an \u201cactive shooter\u201d situation \u2013 that rational assessment of the evidence was less and less achievable.<\/p>\n Would an African-American defendant have received the same verdict?\u00a0 Different and powerful anti-defendant stereotypes would have controlled, so indeed social issues and biases may indeed be at the root of Rittenhouse\u2019s acquittal.\u00a0 But self-defense law and a trial that became a slugfest between the lawyers \u00a0are what lend \u2018sense\u2019 to this verdict.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" 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\u2019 eyes] teen who did not match a stereotype of a \u2018gun-toting\u2019 marauder; and a reaction<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,6,11],"tags":[],"coauthors":[330],"class_list":["post-3281","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-criminal-law","category-trial-advocacy"],"yoast_head":"\n\n