The Rittenhouse Verdicts Are Correct, Even if I Don’t Like It

Why the Kenosha shooting jury got it right …

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Before I proceed to tick off a lot of people I agree with politically while garnering attaboys from some folks I think are dead wrong about pretty much everything, there are three points I need to make clear.

First, I’m a liberal. I’m not here cheering for weekend-warrior militias or Proud Boy plebes.

Second, I do not believe justice was served in the Rittenhouse case. Kyle went to Kenosha spoiling for trouble, wanting to prove his manhood, posing preposterously as the badass he always wanted to be despite his inexperience with firearms and hostile environments. His self-absorbed, immature, and reckless actions caused the deaths of two people. He does not deserve to get off scot-free. But the primary purpose of a trial is not to establish justice. Its primary purpose is to apply the law. To quote William Munny, “deserve’s got nothing to do with it.”

Third, I entirely agree with writers like Manny Otiko that the fallout from these verdicts is likely to be an uptick in vigilantism, a surge in violence — both against those demonstrating for social justice and by opportunists who are attracted to such demonstrations — and a boost of confidence for the radical right wing. I welcome none of that.

But my father was career law enforcement, my mother was a court stenographer, one of my elder siblings is an attorney and the other is a judge. Which means I’ve grown up around discussions of the law and law enforcement. So I tend to view trials in a very different light from most folks I know, and quite often non-specialist media as well.

Charges of bias

Before I get to the verdicts, though, I’d like to deal with the widespread and largely spurious claims of judicial bias on the part of the judge. Now personally, I’m not a fan of Judge Bruce Schroeder. I find him arrogant, preening, and flippant. He allowed his cell phone to interrupt the proceedings, castigated counsel for perceived facial expressions, and played Jeopardy with the jury pool at a multiple homicide trial with himself in the role of the quiz master.

That said, the fact that he has “God Bless the U.S.A.” as a ringtone, and the fact that Donald Trump included the same song in his rally playlists, does not add up to Schroeder (who’s a Democrat, by the way) being a pro-Trump white supremacist, as some have charged. As I explained in a separate article, it just means he likes sappy patriotic songs.

Nor did he make an anti-Asian joke. He made an extremely lame and unfunny joke about the supply chain crisis when he said “I hope the Asian food isn’t coming —  isn’t on one of those boats along Long Beach Harbor.” This has nothing to do with Asian people or Asian cuisine. He could have said it about Italian food. The lame joke was to imagine that the “Asian” food was literally coming from Asia. It was not invoking any stereotypes about anybody.

I’ve also heard people criticize Schroeder for dismissing the weapons charges “on a technicality.” But the law is the law. It’s not divided into real law that counts and technicalities that don’t. The applicable statute regarding “possession of a dangerous weapon by a person under 18” does define a “firearm, loaded or unloaded” as a dangerous weapon. But when the firearm is “a rifle or a shotgun” the law explicitly “applies only to a person under 18 years of age… if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593.” Otherwise, it does not apply.

Section 941.28 concerns “possession of [a] short-barreled shotgun or short-barreled rifle.” As Rittenhouse’s rifle was not a short-barreled weapon as defined by that statute, he was not in violation of s. 941.28, therefore the prohibition of “possession of a dangerous weapon by a person under 18” does not apply to him. Nor was Rittenhouse out of compliance with s. 29.304 or s. 29.593, which concern “restrictions on hunting and use of firearms by persons under 16 years of age” (Rittenhouse was 17 at the time of the shooting) and “requirement for certificate of accomplishment to obtain hunting approval” respectively.

Then there’s the matter of not allowing the deceased to be called “victims.” Had this been a trial in which all sides agreed a homicide had occurred, but the defendant claimed not to have been involved, the use of the term “victim” should have been unproblematic. But Rittenhouse was claiming self-defense. Which means his attorneys were maintaining that the deceased were aggressors attempting to victimize Rittenhouse.

As Garvin and LeCler of the National Crime Victim Law Institute note (NCVLI News 2009), “when the use of the term ‘victim’ is at issue, courts tend to distinguish cases in which it is uncontested that a crime has occurred and only the identity of the perpetrator is at issue, from those cases that involve a question of whether a crime occurred at all…. Defendants in [the latter] cases argue that… using the term ‘victim’ denies the defendant a fair trial as it assumes facts properly left to the jury.”

And indeed, there have been cases in which “use of the term was reversible error as it may have invaded the fact-finding of the jury,” including the murder case of State v. Albino where “in an appeal of a murder conviction, the court held the prosecutor’s thirty-one references to victim improper specifically ‘in a case such as this, where the defendant has asserted a self-defense claim’.” (Garvin and LeCler argue that the term should be allowed for all persons having “legal status” before the court as plaintiffs or accusers, but the deceased had no such status in this case.)

In other words, prohibiting the use of the term in this trial was a safeguard against possible reversal of a potential guilty verdict on appeal. This decision did not bar the prosecution from using other terms to describe the deceased, such as “persons killed by Kyle Rittenhouse,” as the fact that Rittenhouse did indeed kill them was not at issue. Schroeder even explicitly allowed the term “cold-blooded killer” with regard to the defendant.

I should note that, according to Forbes, “Kenosha defense lawyer Michael Cicchini [stated] that Schroeder usually bans the word ‘victim’ in his courtroom.” Again, the purpose for this is almost certainly to take an opportunity for reversal on appeal — which no judge likes — off the table. But I happen to agree with Garvin and LeCler that typically, in the bulk of cases where the commission of a crime is not itself at issue, barring the use of “victim” is, let us say, problematic. (Yet another reason for me to dislike Schroeder.)

Much has also been made of Schroeder allowing the terms “rioter,” “looter,” and “arsonist” to describe the deceased. But all too often, key details get omitted. These terms were disallowed in opening statements, but allowed in closing arguments, where attorneys have more latitude, if evidence had been presented at trial to substantiate them. As it turned out, Mark Richards did not use the terms “arsonist” or “looter” in closing arguments, but did refer to Rosenbaum, Grosskreutz, and Huber each as a “rioter” and to the crowd in general as “rioters”:

They’re destroying property. Ladies and gentlemen, Mr. Binger and I will go round and round about it until the cows come home. They were rioters. They weren’t demonstrators. Were the demonstrators down by the courthouse earlier in the night? Yes. There were people doing legitimate demonstration. These people were rioting. And you see in his tape, they’re hitting the cars with pipes. You hear the glass breaking. You see the people jumping on it.

Other accusations have been made against Schroeder, but so far I haven’t seen any that hold up as a smoking gun evincing bigotry or anti-prosecution bias. He notably denied the defense’s motion for a mistrial, despite raking a prosecuting attorney over the coals, after the prosecution violated the court’s orders not to try to use the defendant’s Constitutionally protected post-arrest silence against him. And he instructed the jury that they may take into account whether Rittenhouse provoked the attacks in their deliberations, as well as giving them the option of finding him guilty on lesser charges if they could not agree on the more serious ones, which increased opportunities for the jury to convict.

And frankly, I find it curious that so many people express dismay that a judge in a criminal case might appear to be deferential to the defense. Regardless of what you and I might think of Kyle Rittenhouse’s actions that night, he’s still under a presumption of innocence until and unless a jury finds him guilty of a charge. If you ever find yourself dragged into court on criminal charges, deference to the defense will likely start making a whole lot more sense — just sayin’.

Aggression and self-defense

There’s a lot of “just stands to reason” punditry going on regarding Rittenhouse’s self-defense claims. Problem is, the law doesn’t necessarily agree with our personal notions of what makes sense.

To understand whether the law applies to Rittenhouse’s actions, we actually have to go to the trouble of examining the law. Here, in a nutshell, are the relevant statutes, excerpted from s. 939.48: “Self-defense and defense of others”:

A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

In short, all that’s required to justify “force which is intended or likely to cause death or great bodily harm” is a “reasonable belief” by the defendant that:

• someone is unlawfully interfering with their person;
• this interference is “intended or likely” to cause great bodily harm or death;
• such force is necessary to prevent or stop this interference.

Note that none of this has to be objectively true. It just has to be a belief by the defendant which, under the circumstances, is not unreasonable. So, for example, if someone invades your home and threatens you with a toy gun that looks like a real gun, and you maim or kill that person, you can’t be held liable for murder or manslaughter or battery, as it was reasonable for you to believe that the gun was real.

OK, but what about provocation? Did Rittenhouse provoke his attackers in a way that invalidates his claim of self-defense? Let’s see what the law says.

A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.

As we’ve seen, openly carrying his firearm was not unlawful conduct, so that fact cannot invalidate his self-defense claim. He was out after curfew, but that hardly qualifies as “unlawful conduct of a type likely to provoke others to attack him.” And even if it did, it still would not matter as long as Rittenhouse believed that (a) he was “in imminent danger of death or great bodily harm” as a result of the attack, and (b) that he had no “reasonable means” to escape the attack at that moment. Note that the obligation to exhaust “every… reasonable means to escape” only applies if this section of the statute applies, which it doesn’t.

I will point out here that the wording of this particular subsection is critical to the jury’s consideration of the timeline of events. Why? Because if the jury finds that Rittenhouse acted in self-defense when killing Rosenbaum, then he has not engaged in “unlawful conduct,” which means that the people pursuing him after Rosenbaum’s death, regardless of what they may believe, cannot be legally considered to have been provoked under this statute. If you think that’s splitting hairs, I’m sorry, but this is how trials work. And now we’re seeing why deliberations took so long and why the jury asked to review the statutes.

Then there’s this:

A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.

Did Rittenhouse intend, or at least hope, to rile people up that night so that he could shoot at someone? Personally, I think it’s highly likely. Did the prosecution prove beyond a reasonable doubt that he did? Absolutely not. And if you think they did prove that, with respect to the individuals Rittenhouse shot at specifically, it’s your obligation to demonstrate how, despite a jury unanimously disagreeing with you.

What happened

All of which brings us, at last, to the particular events of that night. I won’t bother to rewind all the way to Rittenhouse’s trip to Kenosha because, under the law, nothing matters until he comes face to face with Joseph Rosenbaum.

The key witness to that confrontation was Richard McGinniss. And his testimony was devastating for the prosecution. Here’s how his exchange with prosecuting attorneys was reported by Reuters [expletive deleted]:

McGinniss… told defense attorney Mark Richards that Rosenbaum appeared “very angry” as he screamed an expletive and lunged for the barrel of the teen’s gun.

Kenosha County Assistant District Attorney Thomas Binger then began to question his own witness aggressively, suggesting McGinniss had engaged in “complete guesswork” in speculating as to Rosenbaum’s intent.

The question hit a nerve.

“Well, he (Rosenbaum) said ‘**** you,’ and then he reached for the weapon,” McGinniss responded before bristling again at a question implying that he had offered a view on why Rosenbaum had lunged for the teenager’s gun.

“When did I say that I gave a reason? I just said what he was trying to do,” McGinniss said. “I will say that as many times as you want me to, but I have no clue why he was doing what he did, but I saw him go for the front portion of the weapon.”

So, Rittenhouse is legally (regardless of what you or I think about the law) carrying a rifle. At one point during the night, he is confronted by an angry stranger who chases him. Hearing a gunshot, Rittenhouse turns around. His pursuer curses at him and attempts to grab his weapon. At that point, his belief that this person intends to do him harm cannot be called unreasonable. And under Wisconsin law, he is justified in defending himself against the attack, even if such defense is likely to cause grievous bodily harm or death. And he has no legal obligation to attempt to escape.

It doesn’t matter that Rittenhouse had no business being there, or that he didn’t know how to handle the weapon he was carrying, or that he was out after curfew, or that he liked to bully kids weaker than him, or that he found self-validation in guns and violence, or that he would later gleefully rub shoulders with Proud Boys while flashing a white power hand sign. It doesn’t matter that Rosenbaum was unarmed. All that matters to that jury, all that legally can matter to them, is that Rosenbaum pursued Rittenhouse, confronted him, and “reached for the weapon.”

After shooting Rosenbaum, Rittenhouse fled and was pursued by people who were chasing him and shouting “Get that dude!”, “He shot someone!”, and “Get his ass!” He crosses paths with Gaige Grosskreutz who asks him “Hey, what are you doing? You shot somebody?” Still running, Rittenhouse responds, “I’m going to the police.”

Someone gets close enough to punch him, knocking his hat off. He then trips and is on the ground, on his back.

Someone leaps at him and tries to kick him, and Rittenhouse responds with two shots that miss. Anthony Huber swings a skateboard at his head, grazing him. Rittenhouse shoots and kills Huber. Grosskreutz has now caught up with him.

Under examination by prosecutors, Grosskreutz testified that he believed Rittenhouse needed to be stopped and he had never intended to use the handgun he was holding, only moving toward the teen because he thought Rittenhouse was preparing to fire.

Then defense attorney Corey Chirafisi elicited a major concession. Using still images of the seconds before Rittenhouse fired a bullet into Grosskreutz’s arm, Chirafisi pressed the witness twice on what triggered the shot.

“When you were standing three to five feet from him with your arms up in the air, he never fired, right?” Chirafisi asked.

“Correct,” Grosskreutz responded.

“It wasn’t until you pointed your gun at him, advanced on him, with your gun, now your hands down pointed at him, that he fired, right?” Chirafisi continued.

“Correct,” Grosskreutz said.

Benjamin Van Severen, a defense attorney in Milwaukee, said it was an “Oh my goodness” moment for prosecutors, playing right into Rittenhouse’s self-defense argument.

The prosecution was also hurt by Grosskreutz, a trained paramedic, testifying that he feared for Rittenhouse’s safety when he saw a crowd chasing the teenager, yelling at him.

“Him being the paramedic in fear for (Rittenhouse’s) safety,” Van Severen said. “That’s another one of those ‘Oh crap’ moments.”

Again, regardless of what you or I or anybody else may think about Rittenhouse as a person, or about whether he had any business being where he was, or about the wisdom of the law or the wisdom of running around in the middle of a scene like that armed with a gun one isn’t trained to use, legally speaking in that moment Rittenhouse is within his rights to defend himself with potentially deadly force against people who clearly are threatening or attempting to do him grievous bodily harm or menacing him with a firearm, even if those people believe themselves to be protecting others with their actions. Whether that “makes sense” or constitutes “justice” is irrelevant.

The jury got it right. According to the instructions they received, the laws of the state of Wisconsin, and the evidence presented at trial, Rittenhouse was acting in self-defense. To decide otherwise would be an act of judicial vigilantism. And even if you believe that Rittenhouse himself was playing vigilante, countering vigilantism in the street with vigilantism in the deliberation chamber is more destructive to our system of justice than is the acquittal of one grossly misguided, gun-obsessed teenager who went looking for trouble and found it.

But what about justice?

So, do we just walk away from this case? Throw up our hands and say, “Well, that’s how it is?”

I hope not.

Prior to the verdict, John Gross of the University of Wisconsin Law School and director of the Public Defender Project accurately predicted the trial’s outcome. His view of the matter is worth quoting at length.

Criminal trials are not referendums on political or social movements. In a criminal case, a single person is on trial. In Kenosha, Kyle Rittenhouse is on trial.

What is not on trial is our First Amendment right to free speech or assembly, or our Second Amendment right to bear arms. The only message a verdict in a criminal trial sends is that the jury was either convinced of the defendant’s guilt beyond a reasonable doubt or it was not….

The issue to be decided in a criminal trial is extremely specific: Did the prosecution prove every element of the offense or offenses charged beyond a reasonable doubt. The jury is only permitted to render one of two verdicts: guilty or not guilty. By finding a defendant not guilty a jury is not saying that the defendant is innocent. Innocent isn’t an option. The jury is not deciding whether someone is morally blameworthy, they are deciding whether a legal standard has been met….

To a minority [of Americans], Rittenhouse is a hero who exercised his Second Amendment rights to uphold law and order. To a majority, he is a vigilante who went to Kenosha with the intent to kill protesters who were justifiably outraged by yet another unjustified shooting of a person of color by law enforcement.

That majority is highly skeptical, if not outright dismissive, of Rittenhouse’s claim that he acted in self-defense. But this view of the case against Rittenhouse is not based on what happened that night in Kenosha, it is based on what led Rittenhouse to be in Kenosha…. These beliefs are reasonable but they do not reflect the current state of the law….

If the jury acquits Rittenhouse, then they will be doing what the law requires them to do. That should prompt us to ask why the law dictates this result, and how the law might be changed to discourage people from resorting to deadly force — and if they do, to hold them more accountable….

If the jury acquits Rittenhouse, it will not be a mistake. They will have properly applied the law to the facts of the case. If you think a verdict of “not guilty” was the wrong result, your quarrel is not with the jurors who decide the case but with the law as it is written. That law is not set in stone. It is dictated by statute, not by our state or federal constitutions. It can, and should, be changed to discourage the use of deadly force and to hold those who resort to the use of deadly force accountable.

Those on the right who think Rittenhouse is a hero, or that his trial was about Second Amendment rights, are dead wrong. But so too are those on the left who believe this trial was about white supremacy, or that Rittenhouse should have been convicted so as not to encourage right-wing extremists, or to atone in some way for injustices perpetrated upon people of color.

Who among us would want to face a jury under such conditions? Who would want the jury to decide, well, according to the law this person must be acquitted, but because doing so might embolden the radical right wing, or spark street violence, or because others have been denied justice or might be denied justice in the future, we will send the defendant to prison anyway? Not I. And I’m betting, not you either.

I know there are people who will accuse me of “making excuses” for Rittenhouse and for Schroeder. But reality is not an excuse. And the reality is, the jury made the right call, like it or not.

It’s easy to be outraged by this verdict. It’s not so easy to do the difficult, long-term, frustrating work of changing the law.

We’ve seen what has happened to the political right in this country as they’ve gone down the slippery path of outrage. Of enforcing political orthodoxy even when it differs from the facts. That path has led us to climate change denial, covid denial and the needless deaths of hundreds of thousands of Americans, the election of a sociopathic grifter to the highest office of the land, and the Big Lie of a stolen election which sparked a deadly coup attempt and even now threatens to dismantle our democracy. That is inevitably where such thinking descends to, sooner or later.

Should the left take the same path, preferring self-righteous anger and moral affront over a sober evaluation of the facts such as they are, and a determination to do the hard work of shaping our future with our feet solidly on the ground, absent the self-indulgent high of ideological tribalism, then all hope is lost.

And that is why this trial really matters. That is why it is a test of our resolve.

The choice is ours. To be swept up by the tide of blind indignation and ride it to our own destruction, or to learn the real lesson and put our shoulders to the wheel of history and do what we can to move it in a better direction, toward a more just and humane future.

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Header image: Kyle Rittenhouse posing with Proud Boys, January 2021 (Wikimedia Commons)

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