THE RITTENHOUSE TRIAL

Guest appearances are rare on my blog (which is rarely published on schedule) but this contribution requires dissemination.  If you are of a particular vintage, you recall the late Warren Zevon’s hit, Lawyers Guns and Money.  The following analysis is from  "Charles M. Strauss," my attorney friend, shooting partner, and estate planner.  He comments on the Kyle Rittenhouse trial now underway in Wisconsin.

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Since you didn’t ask, I will give you my opinion anyway.

 

If facts mattered, the jury would find Rittenhouse not guilty on all counts, except for possession by a minor.  However, facts don’t matter.  If facts mattered, he would not have been charged.  So, there is always the possibility that the jurors are a bunch of nitwits who believe in their hearts that possessing an AR15 is prima facie proof of homicidal intent, or that going into a danger zone with a gun is prima facie proof of homicidal intent. (Except for Grosskreutz, of course.  Rittenhouse’s lawyer never asked him why he brought a gun into the situation.  Why not?)

 

My prediction is that the jury finds not guilty on all counts (except for possession by a minor), for two reasons:

• The verdict needs to be unanimous, and although I believe there are many stupid people in the world, and some on juries, I think it unlikely that all 12 would be that dumb.  So worst case, hung jury, which is the same as acquittal except the prosecutor could refile the charges.  (Unless the judge grants the motion for dismissal at that point.)
• The prosecutor needs to prove “beyond a reasonable doubt” that Rittenhouse was not acting in self defense.  If a juror says “I think Rittenhouse may not have been acting in self-defense, but I admit it’s at least plausible that he was acting in self-defense,” then that is supposed to be a not guilty verdict.  For a verdict of guilty, the jurors would have to believe “No reasonable person could possibly think this was self-defense.  Self-defense?  That’s crazy talk.  That’s like claiming space aliens pulled the trigger.”

 

However, at the last minute, the prosecutor proposed reduced charges, so jurors could feel sorry for the prosecutor, and want to give him a consolation prize.  Or they could be afraid of rioters/retribution, and want to throw the wolves a bone to take heat off themselves.  Or they could say, “I think he’s not guilty, but surely the DA would not have brought this case if there was nothing there, right?  He must be guilty of something.”  It’s easy for them to say “I don’t think he’s guilty, but let’s give him ‘only’ ten years in prison instead of life in prison.  He’ll only be 28 when he gets out, so no big deal.”

 

About the prosecutor:

It’s hard to believe he is that incompetent.  Any lawyer knows Thou Shalt Not bring up the subject of invoking the right to remain silent.  You can get suspended for that.  And on and on.  This guy is stunningly horrible.  But, is he really that bad, or is he throwing the case on purpose?  It’ll be interesting to see if he brings up verboten material in his closing argument, causing the defense lawyer to object (something rarely done) or more likely, causing the judge to interrupt him.

 

About the defense lawyer:

Not bad, but not great.  Did a good job getting the witnesses to say the right things.  Did a great job prepping Rittenhoue.  (Especially Grosskreutz.)  But there are a couple of things I think he could have done better.

• The self-defense case re Rosenbaum is based on whether a reasonable person could believe that Rosenbaum was (a) grabbing for the gun and (b) would have used it to shoot Rittenhouse if he had gotten it, versus he was not grabbing for the gun, or he was grabbing for the gun just to disarm Rittenhouse and he would not have used the gun himself.  IOW, was the unarmed Rosenbaum defending himself against the armed Rittenhouse?  (Will the prosecutor lay it out like that in his closing argument?)  
• That’s a good argument, because it is not clear “beyond a reasonable doubt” that Rosenbaum was not grabbing the gun or would not have used it.  Nevertheless, the defense should have had a backup plan – having an expert witness dispel the myth that you can’t shoot an unarmed man because an unarmed man does not present “deadly force.”  The expert should have educated the jury that 6-700 people a year are killed by people who are unarmed vs. maybe half that by people with AR15s.  Because the defense did not bring it up, the prosecutor is likely to raise it in his closing argument.
• The prosecutor intends to make a big deal about Rittenhouse using full metal jacket (FMJ) ammunition, which is evidence that he recklessly disregarded the risk of bullets over penetrating and hitting a bystander.  Because the charge of reckless endangerment was added at the last minute, that gives the prosecutor an opening.  The defense lawyer should have gone after that in the argument for jury instructions.  
• “Your honor, there are only two kinds of ammunition: hollow point and non-hollow point.  If a defendant uses hollow point ammunition, the prosecutor can claim that is evidence that the defendant wanted to inflict maximum pain and death.  If a defendant uses non-hollow point ammunition, the prosecutor can claim that the defendant recklessly disregarded the risk of over penetration.  No evidence was presented at trial to show that FMJ ammunition fired from an AR15 penetrates more (or significantly more) than hollow point, so the prosecutor should not be able to make that argument.”  
• Alternatively, the defense lawyer should have gotten an expert to talk about the likelihood of over penetration of that brand of ammunition from that barrel length, in comparison with other types of ammunition.  At the very least, the defense lawyer better be prepared in closing argument to tell the jury that there was no such testimony, but that in any case, they could interpret the use of FMJ as evidence that Rittenhouse did not want to use “more deadly” hollow point ammunition.  
• I remember how Harold Fish got screwed when the prosecutor raised the subject of hollow point ammunition for the first time in his closing argument, and how the judge let it go, and Fish’s lawyer let it go.  I hope the prosecutor doesn’t get away with it this time. See this link: https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4266 
• There was a better answer to “Why did you have a gun?”  Answer:  “I thought it would be a deterrent.  I thought rioters and arsonists would see people with guns and decide to go somewhere else and leave that business alone.  I never thought I would actually have to shoot somebody.”  
• “Then why did you load the gun?”  “Just in case I ran across some psychotic violent criminals, off their meds, who would be crazy enough to try to kill me while I was carrying a gun.”  “OBJECTION!”  “Sustained.  The jury will disregard the statement about psychotic violent criminals off their meds.”

 

About the judge:

He knows that this is a bullshit case, which should never have been brought.  He has left open the defense motion to dismiss.  I would not be too surprised if, after closing arguments, the judge says “I have made a decision regarding the motion to dismiss.  The prosecutor’s conduct has been so egregious that I grant the motion to dismiss, with prejudice.  Rittenhouse is a free man, and I will be recommending that the Wisconsin Bar investigate the prosecutor’s unethical misconduct.”  I would especially expect that if the prosecutor steps over the line again during his closing argument.

 

The judge really would prefer to pass the buck to the jury, and let them come back with a not guilty verdict.  So, if he reads the jury as being inclined to not guilty, he may let the jury decide the case, knowing that if they do find Rittenhouse guilty, he has an ace in the hole, a judgment notwithstanding the verdict – effectively overruling the jury.  That is almost never used, but I’m thinking this guy is 75 years old.  He is ready to retire, and he is pissed off at what he sees as a gross miscarriage of justice.  “Let the heathen rage” – his pension is secure.  He can move to Florida, and he can supplement that fat pension with consulting expert fees on Fox News and elsewhere.

 

My revised prediction:  The jury finds Rittenhouse guilty on a lesser charge.  IMO, that would be a terrible injustice; this is as clear a case of self-defense as ever there way.  But, sometimes injustice prevails.  Sometimes the bad guys win.

 

Now let’s just wait and see how wrong I was.