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.

THE AFGHAN EXIT

There’s a reason that Afghanistan has long been called “the graveyard of empires.”  Conquering and keeping the place (it’s not really a nation) has been tried by experts from Alexander the Great to the Mongols onward.  Some like the Russians and British have tried twice or even three times.  In that company, Uncle Sam is a latecomer who has learned precious little from the experience of others.

Without delving overmuch into the Biden administration's vast ineptitude (how about removing U.S. staffers and civilians BEFORE the panic?) I’m offering some perspective.  A bit of badly-needed background, some from my younger brother who was embedded with our hometown National Guard unit in 2005.  He brings a Stanford-Oxford approach to the subject.

“Nation building was bound to fail amid tribal societies. Afghanistan is a decentralized, tribal buffer state with boundaries drawn by the Persian, Russian and British Empires, cutting across tribal territories. So naturally the tribes ignore them. 

“It would have been cheaper just to pay provincial warlords to kill any Pakistani Pashtun invaders and local Afghan Pashtun Taliban. National army and police are bound to fail in such a decentralized entity. 

“My solution was to give Luristan, Pashtunistan and Baluchistan to Pakistan, the Sunni Tajik (Dari), Kyrgyz, Uzbek and Turkmen bits to their respective Central Asian republics and Herat to Iran. The Dari-speaking Shia Hazaras could decide whether to go with Tajikistan or Iran. 

“Dari is intelligible to Farsi speakers, but Iranians regard it as a hillbilly dialect although they’re equally valid Persian dialects. Pashtun is about equally distant from Persian and Hindustani (Hindi-Urdu), as befits the geographic position of Pashtunistan astride the Afghanistan-Pakistan border.”

So what could have been done better?

Snark alert: Just about everything.

We failed to organize Afghan defense along Afghan lines, trying to create national military and police forces in a decentralized region.  The often unpaid army troops didn't have a country for which to fight.  Our leaders never grasped that Afghanistan isn't a country, but a collection of tribes with arbitrary borders, drawn by neighboring empires. It's a nation state in name only.  Kabul's writ doesn't run in the rest of the “country.”  The Pashtuns are the largest tribal group in the world, united by a code of behavior and mutually intelligible dialects, but divided by the Afghanistan-Pakistan border, meaningless to them. 

Arming and training local militias might have stood a chance, especially if paid regularly.  But that would mean tolerating heroin trade or paying them ourselves indefinitely.  Now, under the Taliban, poppy production will increase.

Presumably we could have held the Kabul-Bagram corridor, thus keeping some aircraft to support the Afghan commandos willing to fight.  A helicopter pilot who’s been shot at on three continents adds, “I wonder if the abandonment of Bagram Air Base was just a stupid Biden blunder or part of a plan. We liked the Russian airstrips.  The Chinese are gonna love ours.  They come complete with climate controlled hangars, bombs and ammo and fully stocked with Hesco barriers and MREs.”

A couple of my DC contacts state that Biden & Co. was urged to withdraw THIS COMING WINTER.  The Taliban, and Afghans generally, live for fighting.  It’s what they’ve always done best.  (For excellent insight, read John Masters’ masterful account of the prewar Indian Army on the Northwest Frontier, Bugles and a Tiger.)  There’s always been a Fighting Season, and historically the Taliban/whatever suspend their yearly campaigns to sit out the weather, usually across the border in Pakistan.  They can regroup, re-equip, and tell war stories while enjoying their poppy product.

Sidebar: in 1839 during the First Anglo-Afghan War (there’s a clue if ever we saw one) 16,500 British— mostly civilians—abandoned Kabul, hoping to make the 73 miles to Jalalabad.  A week later one survivor reached safety; others likely were captured but disappeared.

In any case, in 2021-2022 waiting for a winter withdrawal would allow a planned, phased exit without the disastrous, panic-stricken flail we’re seeing this month.  Leaving perhaps 3,000 U.S. and 8,000 NATO troops throughout the exit process certainly could have permitted negotiating room with the Taliban, rather than re-inserting several thousand Americans at the worst possible time.

You have to wonder whether Biden & Co. was misled by exceptionally bad “intelligence” (telling the front office what it wanted to hear), contradictory conclusions, or wishful thinking.  Asked about a comparison with the Saigon evacuation of 1975, the president said “There’s going to be no circumstance where you see people being lifted off the roof of a (sic) embassy of the United States from Afghanistan.”

Days later we saw helicopters lifting off the roof of the U.S. embassy in Kabul.

Pundits play with numbers all the time, and the oft-cited stats for the conquest of Afghanistan are 300,000 Afghan Army troops (trained and lavishly equipped by We The People for 20 years) versus maybe 75,000 Taliban.  How is that possible?

It has to do with motivation.  The Afghan mujahadeen had almost no parity with the Soviets but wore them down over nine years, possessing a righteous belief in Holy Islam.  By nearly every current account, the Afghan National Army suffered from problems endemic to the region: massive corruption, incompetence, and poor leadership, relying on U.S. air and artillery.  This month apparently almost the only exception was several thousand special forces, many of whom literally fought to the last round, then were slaughtered by the Taliban.

At the operator level, the U.S. military still pulls off some spectacular feats.  None moreso than the Air Force C-17 transport that somehow staggered into the air with 640 refugees aboard.  (Early reports said 800; the published max capacity is 188.) Because the neighboring borders are closed—THERE is something for the U.S. Government to ponder about Our Border—air evacuation has to go elsewhere, such as Qatar.

But what of the Americans stranded in hostile territory?  On August 15, shortly before closing, the embassy issued a notice: “The security situation in Kabul is changing quickly including at the airport.  There are reports of the airport taking fire; therefore we are instructing U.S. citizens to shelter in place.”  That means: “You’re on your own.”

Incidentally: the Russian consulate and Chinese embassy remain open.

Meanwhile, China shares a short border with Afghanistan along the narrow Wakhan Corridor.  While hostile to Islamic militants, at least in China, Beijing will take advantage of the situation.  Afghanistan offers the PRC another route to their port in Pakistani Baluchistan and for pipelines to Iran, plus natural resources. 

In summarizing America’s chaotic, humiliating Afghan exit, we should remind the puppet masters in Washington:

THE ENEMY ALWAYS CASTS A VOTE.

THE BEST FIRE I EVER ATTENDED

 

My father Jack (1922-2014) just loved his projects.  And among his favorites was his fire engine.  He formed the Sand Hollow Volunteer Rural Fire Department in Umatilla Country, Oregon, before I was born; he was the chief because he owned the truck.  He’d attended a two-week fire science program at Purdue in the early 50s, prompting the state publication to opine, “Chief Tillman is a very progressive fire fighter.”

Eventually the war-surplus truck wore out and Dad needed a replacement.  Early 70s he got a deal-deal on a well used flatbed that he towed from Walla Walla Grain Growers while I steered, relying on marginal brakes to keep some tension on the tow chain.

When the engine was repaired, Dad outfitted the rig with a 1,200-gallon water tank, pump and hoses plus a siren, light bar and rotating red flasher.  Decked out in ranch colors of yellow and white, it was quite the image of agricultural flame suppression.  We attended about 25 crop, structure, and vehicle fires over the decades, as I applied stencils commemorating each run.

In the list of Fires I Have Attended, I’d rate the Rugg wheat blaze of August 1975 as the most memorable.  We had been finished with harvest for several days and had moved the truck into town.  That was regular procedure since it put us in easier range of the more likely trouble spots.

At 7:30 that evening we were sitting on the carport sipping iced tea or whatever was going.  Dad with his usual Jack Daniels and 7-Up, when Rollin Suenkel stopped by.  As the Western Farmers office manager in Athena, he was concerned with some matter about the elevator.  Dad offered him to sit down and have a brew, which he did.

Minutes later Rollin, who was facing east toward the edge of town one block away, saw smoke.  Excepting Dad, due to his polio, we all jumped up and ran a few steps on the driveway.  Sure enough, a healthy-sized wheat fire was blazing in the middle of Quentin Rugg’s field.  It had just started, but there were only a couple of hands on the scene and they had no equipment.

“Let’s go,” Dad said, and we piled on the truck.  Rollin jumped on back with my brother Andy and me, and as we started up, Dad shouted to Mother.  “Wait by the phone.  If Quentin calls for help, tell him we’re on the way!”  Then he punched the siren button and the rotating light started to flash.

Despite his infirmity, my dad still could enjoy himself at fifty-three.

Though the fire was probably less than a half-mile from the house, we couldn’t get directly out to the field.  Dad drove down Fifth Street, slowed at Fred’s Market, and turned left onto Main heading out of town.  Rollin, Andy and I hung on to the handholds, trying to keep our balance as the truck rocked back and forth.

Just past the “Welcome to Athena” sign, Dad turned hard left again and was bouncing across the field toward the fire.  The two kids we’d seen before were beating at the edge of the blaze with gunny sacks, apparently forgetting the combine directly in the fire’s path about 300 yards away.

Then the Rugg-Barnett foreman arrived in his pickup.  Dad passed close aboard the starboard beam and slowed just long enough to shout, “Never fear, Tillman’s here!”  At the same time I was tugging on the tope to start the pump while Rollin opened the big valve at the base of the tank.  In seconds we were ready to engage.

The first priority was to cut off the fire’s path toward the parked combine.  So Dad swung wide to the east and then cut sharply back to the west, giving us time to set up on the right side of the truck bed.  Rollin and Andy were to starboard and I had one of the port-hand hoses at the rear.  

Dad was yelling instructions, which we couldn’t hear very well over the truck’s engine, the whine of the pump, and the crackle of the fire.  But I knew what he wanted.  I got Rollin’s attention and yelled, “Use a heavy stream to knock down the flames.”  Rollin nodded and pulled the brim of his green WFA hat down over his eyes.  The heat was getting painful as we neared the flames.  Both Rollin and Andy opened their nozzles about a quarter turn, producing a strong stream from their hoses.  I turned my nozzle about three-quarters for a heavy spray.

Then we were in it.  The thick, characteristically black smoke swirled around us, and the flames glowed bright orange.  Dad drove close up to the edge of the burning Hyslop wheat to get maximum advantage from the heavy pressure of the water.  But he was in the cab; we were exposed to the full effect of the searing heat.

Andy was up front, training his hose at the base of the flames ahead while Rollin followed up and swept along the line as we passed by.  I trailed my spray off the starboard quarter and behind, saturating the ground to prevent a subsequent flare-up.  It was strategy based on years of experience.

The fire couldn’t have been more than 200 yards long.  But you don’t fight wheat fires in a hurry.  For results, you have to go slowly, allowing maximum exposure time to beat down the flames and saturate the soil.  At first the heat was merely bad, but it became intense and then almost unbearable.  I felt certain we’d all receive blisters.  And in the smoke it was difficult to tell how much progress we were making.  Wouldn’t we ever break into the clear?

I looked up forward.  Andy and Rollin were both stooped, frequently turning their faces from the flames.  I swung my nozzle in their direction, allowing the spray to whip over them.  Then I had to turn around myself.  With less pressure to handle, I could hold the hose with one hand and partially shield my face with the other arm.

Then we were out of it.  Andy shut off his nozzle while Rollin and I continued spraying toward the rear.  We all breathed deeply in the fresh air.  Dad turned right this time, heading to the rear of the fire.  We were glad of that; the heat wouldn’t be as bad.

This time we all sprayed the base of the fire, moistening the unburned wheat.  There was no point fighting the flames themselves from this side, since whatever was beyond the burned line in front of us was already destroyed.  The concern here was to deluge the blackened earth and surviving wheat to retard the fire’s progress if the wind shifted.

Then Dad shouted that he was going round the front again.  I don’t know if Rollin or Andy had any thoughts on the subject, but I almost said aloud, “Oh, no!”

Our first pass had largely checked the fire’s progress but it was still burning wildly within its borders.  Again we passed close alongside and were exposed to the searing, radiating heat.  The three of us aimed our hoses at the base of the flames again, waving the streams of water back and forth.  For a moment in the smoke and spray I had the weird illusion that we were hacking down flames with scythes of water.  We were harvesting fire instead of grain.

As before, it was a long, uncomfortable trip down the face of the blaze.  The bright early evening sunlight was mottled and obscured by the dense, black smoke, and it was another week of hours before we were again clear of the wretched heat.

By now help had arrived.  Another rig was on the scene—one of Johns-Smith-and Beamer’s, I thought, from the other side of town.  And one of the kids who’d been flailing the fire with a gunnysack was plowing the circumference of the burned area, turning up dry dirt in the path of the flames.

In a few more minutes the last of the blaze was out, and we surveyed the aftermath of every wheat fire.  The blackened, scorched, over-cooked heads and charred earth.  The smell of a huge outdoor oven.  Rows of unburned grain trampled beneath the wheels of tractors, fire trucks and pickups.  Rollin took off his soot-grimed hat and wiped his reddened face.  “Well, that’s not so bad,” he said in his Midwest accent.  “Only about six acres.”

Andy confessed that he did not want to fight another fire like that one again soon.

We began coiling up the hoses, securing them to the truck bed.  Water dripped everywhere.  And with the pump shut off, the evening was strangely quiet.

The foreman drove up once more, his face and glasses covered with dust and soot.  He leaned out the window, “Thank you, boys, until you’re better paid.”

“No charge,” Dad replied.

It had been a great fire.