The Rittenhouse Trial
A 3L’s take.
A quick disclaimer before diving in…
This post contains my perspective and opinion on the Kyle Rittenhouse trial, and mine alone. I am not a barred attorney (am I even an ‘experienced’ law student? Unclear) but I’ve been asked to share my thoughts several times, so a post seems appropriate. This is MY personal, legal take based on Wisconsin law, limited trial footage, and available news coverage, so please take or leave whatever you see fit.
On August 25, 2020, 17-year-old Kyle Rittenhouse fatally shot Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreutz. He was tried for first-degree intentional homicide, first-degree reckless homicide, first-degree attempted intentional homicide, and two counts of first-degree reckless endangerment in a three-week trial that ended on Friday, November 19. A unanimous, twelve-member jury found him Not Guilty on all five counts.
THE CHARGES
The charges against Kyle Rittenhouse are based in Wisconsin law. Here’s a quick (simplified) breakdown of each one:
CHARGE 1: First-Degree Reckless Homicide
Allegation - Kyle Rittenhouse did not intend to kill Mr. Rosenbaum, but rather caused Mr. Rosenbaum’s death under circumstances showing an utter disregard for human life.
CHARGE 2: First-Degree Recklessly Endangering Safety
Allegation - Kyle Rittenhouse recklessly endangered the safety of Mr. McGinness when he shot at Mr. Rosenbaum, as Mr. McGinness was in the immediate area.
CHARGE 3: First-Degree Recklessly Endangering Safety
Allegation - Kyle Rittenhouse recklessly endangered the safety of “Jumpkick Man” when he fired two shots in his direction, after Jumpkick Man approached and tried to kick him but before Mr. Huber approached with his skateboard.
CHARGE 4: First-Degree Intentional Homicide
Allegation - Kyle Rittenhouse intended to kill Mr. Huber after Mr. Huber approached, hit him with his skateboard, and attempted to grab his gun - to which Rittenhouse responded by pointing his weapon in Mr. Huber’s direction and firing.
CHARGE 5: Attempted First-Degree Intentional Homicide
Allegation - Kyle Rittenhouse intended to kill Mr. Grosskreutz after Mr. Grosskreutz approached him with a pistol, but instead wounded him by shooting him once in the arm.
Note: there were two additional, less severe charges, dismissed during the trial by Judge Schroeder. Additionally, these are listed in the order that they allegedly occurred.
In addition to these five charges, the jury was also instructed to consider “lesser included” offenses within the allegations of homicide. For example: if the jury had found Kyle Rittenhouse did NOT intend to kill Mr. Huber, but also did NOT act in self-defense AND acted under circumstances showing a serious disregard for human life, they could have returned a guilty verdict for first degree reckless homicide.
The jury requested multiple copies of the 30-ish page legal instructions while deliberating; one juror even took his copy home, proving just how complicated and difficult these concepts can be.
THE SELF-DEFENSE DEFENSE
In this trial, Kyle Rittenhouse’s counsel chose the only plausible argument under the circumstances - self-defense. This is called a “justification” defense because it literally justifies the action taken; other defenses, like mental insanity, are called “excuse” defenses because the argument isn’t that the alleged action is justified, but rather that the underlying condition (i.e., insanity) excuses the defendant’s culpability.
Any other defense, like misidentification, just wasn’t plausible here. Too many cameras and eyewitnesses saw Kyle Rittenhouse shoot the three men to argue anything other than self-defense.
WISCONSIN LAW RE: SELF-DEFENSE
Wisconsin self-defense law allows a person to intentionally use force against someone else if
The person believes there was an actual or imminent “unlawful interference” with their person;
The person believed the amount of force they used was necessary to prevent or terminate that interference; and
The person’s belief was reasonable.
Furthermore, a person can only use “deadly force” if they reasonably believe that force was necessary to prevent imminent death OR great bodily harm to himself. Finally, the law only imposes a duty to retreat before using such force if the person can do so with absolute safety.
*This is a simplified version of the S-D requirements based on the jury instructions - lots of language doesn’t apply to this particular situation*
This is where things get tricky. Because the burden of proof ALWAYS rests with the prosecution, the defense did NOT have to prove that Kyle Rittenhouse acted in self-defense beyond a reasonable doubt. Instead, they just had to introduce said reasonable doubt about the prosecution theory that Rittenhouse did NOT act in self-defense. Does your brain hurt yet?? Because mine does.
This standard makes the defense’s job far, far easier than that of the prosecution. In this case, the jurors basically put themselves in Kyle Rittenhouse’s shoes to assess if they - as a “reasonable person” - could’ve felt they were in danger, serious enough to warrant the use of force. The legal question isn’t whether they WOULD have felt the same as Rittenhouse; it’s just whether or not a reasonable person COULD have felt that way. In closing arguments, the defense attorney showed a lot of video and used language to convince the jurors that yes, they absolutely could have.
THE PROSECUTION
Again, it is ALWAYS the prosecution’s job to prove that a defendant committed an offense beyond a reasonable doubt. In cases involving self-defense, like the Rittenhouse trial, the burden does NOT shift to the defense. Instead, the prosecution has to prove - beyond a reasonable doubt - that Kyle Rittenhouse did NOT act in self-defense on August 25, 2020.
The prosecution attempted a number of tactics to do just that. In closing statements, lead prosecutor Thomas Binger argued that Kyle Rittenhouse lost his right to self-defense because he created the danger himself. While that legal concept is correct, the application to these circumstances was a tough sell. Furthermore, Binger tried to show that Rittenhouse’s belief in the necessity of self-defense was objectively unreasonable. However, their own witnesses made several damning statements to the contrary and Kyle Rittenhouse’s own testimony was very compelling, by all accounts.
THE JUDGE
Interestingly, the media portrayed the decisions and actions of Judge Schroeder as a central part of the trial. I obviously don’t know Judge Schroeder or his rationale for the following, but a few moments did strike me as unusual:
Allowing the defense to call Mr. Rosenbaum, Huber, and Grosskreutz “looters and rioters” but denying the prosecution’s motion to call them “victims.” While it’s very common for defense attorneys to keep the word “victim” out of a trial, not ruling the same way about “looters and rioters” created a perceptible imbalance from Day 1.
Showing open hostility towards prosecutor Thomas Binger. It’s not uncommon for judges to grow impatient with parties, but I think it IS rare to completely lose their cool - especially in such a publicized proceeding.
Waiting to rule on motions for mistrial until hearing the verdict. Despite two defense motions for a mistrial, Judge Schroeder postponed his ruling until after the jury reached a verdict. While this is legally allowed, it created somewhat troubling optics regarding the judge’s personal belief in Kyle Rittenhouse’s innocence, and potential to overrule the jury if they found otherwise.
Letting Kyle Rittenhouse randomly select his twelve jurors from the 18 present throughout the trial. Judge Schroeder said he always does with his defendants, but I’ve never heard of that before.
WHAT NOW?
As far as these specific criminal charges go, Kyle Rittenhouse has been found not guilty; “double jeopardy” prevents him from being tried again for the same offenses. However, he could plausibly be tried for civil offenses regarding the same incident. The most notable example of this is OJ Simpson, acquitted of murder in 1994 but subsequently tried and found liable in a wrongful death lawsuit.
The verdict has also fueled further discussions about racial disparities within the American justice system. Additionally, though the First Amendment right to assembly and Second Amendment right to bear arms were not implicated (nor, to be clear, did the trial affect these rights in ANY way) those rights have been referenced when discussing the circumstances surrounding Kyle Rittenhouse.
In my opinion, the largest effect of the Rittenhouse trial will be seen through debate about current self-defense laws. It will likely be discussed in conjunction with the ongoing trial of Gregory McMichael, Travis McMichael, and William Bryan Jr., accused of chasing and killing 25-year-old Ahmaud Arbery in February of 2020. The Georgia defendants are using a similar self-defense argument (although GA self-defense law is even more permissive than Wisconsin’s) and the result of that trial, so close in time to the Rittenhouse verdict, will certainly spur some critique. Closing arguments for that trial are set for Monday, November 22.
FINAL THOUGHTS
As a nation, we have always placed great weight on the power and judgment of the jury. If we aren’t happy with this particular verdict, now is the time to question why. What about our existing laws allowed this outcome? Many legal scholars have stated their belief that the jury acquitted Kyle Rittenhouse because they did exactly what the law, as it stands, required them to do so. This is my view as well. But are we satisfied with that? Are the laws themselves problematic, or is it the way we interpret and apply them? Additionally, were there things about the trial itself that we’d like to see done differently? Should we consider widespread change to the adversarial process more generally, or are we happy with the current state of affairs?
I don’t have any answers (if that’s what you came for, then I’m sorry!). But regardless of your feelings or views on the outcome of this specific trial, I’d urge you to reflect on why you feel that way and what that says about our legal system as a whole.
“Never mistake law for justice. Justice is an ideal. Law is a tool.”
- L.E. Modesitt, Jr.
