Kyle Rittenhouse Ethics, Part 2: The Trial

Kenosha Shootings trial

The Associated Press has a handy summary of the charges brought against Kyle Rittenhouse. Three involve homicide.

Many observers, on both sides of the ideological divide, believe that Rittehouse has to be found not guilty of the homicide charges as a matter of law because there is enough reasonable doubt to build a mudhut out of. So do I. Wisconsin has a strong self-defense standard. After a defendant claims to have acted in response to a threat, the burden is on the prosecution to disprove that claim beyond a reasonable doubt. The prosecutors in the case, in addition to over-charging (I believe, as part of the post-George Floyd pandering by lasw enforcement to racial justice advocates), have not done so. In fact, they have revealed themselves as incompetent, and their own witnesses have bolstered the teen’s self-defense case.

Jonathan Turley, one of the few trustworthy legal analysts in these sad days, wrote this morning in part,

At this stage, the prosecution may celebrate even a misdemeanor conviction.

The prosecution stumbled out of the gate in the trial. Gaige Grosskreutz was the third person to be shot by Rittenhouse. Grosskreutz admitted under cross-examination that Rittenhouse did not shoot him when he had his hands up after their confrontation. He admitted that it was only after he pointed his handgun at Rittenhouse and moved toward him that Rittenhouse fired.

Likewise, a prosecution witness, Ryan Balch, testified that one of the other people shot, Joseph Rosenbaum, said that he intended to kill Kyle Rittenhouse. Other witnesses described Rosenbaum as “belligerent” or “hyperaggressive.”

Later, the prosecution called Richard McGinniss, a journalist with The Daily Caller who was reporting from Kenosha that night. He was near Rittenhouse when Joseph Rosenbaum was shot. The prosecutor told McGinniss, “I mean you have no idea what Mr. Rosenbaum was ever thinking at any point of his life. You have never been inside his head, you never met him before.”

McGinnis said, “I never exchanged words with him, if that’s what your question is.”

The prosecutor then pressed McGinnis on how he had no idea what Rosenbaum was thinking because it “is complete guesswork, isn’t it?”

That is when McGinnis delivered a haymaker, noting, “Well he said (expletive) you, and then he reached for the weapon.”

…The prosecution’s own medical expert, Dr. Doug Kelly, appeared to confirm that the forensic evidence of soot injuries on Rosenbaum’s hand could be consistent with Rosenbaum trying to grab the barrel of Rittenhouse’s rifle when the gun was fired.

Heck, Hamilton Burger, the DA who lost every case to Perry Mason, never had that many exploding witnesses in the whole run of the TV series, much less a single case.

Then the prosecutors tried to breach Rittenhouse’s constitutional rights by commenting on his decision (then) to remain silent. That’s reversible misconduct, and the judge harshly rebuked the state’s lawyers in front of the jury. This does not help their credibility.

Rittenhouse could and perhaps should be found guilty of the lesser charges. As my sister, a former federal prosecutor, pointed out, however, when juries see the prosecution whiff on the big charges, they often decide to let the defendant off the hook on the lesser charges as well.

In a late development, the judge in the  case is considering whether to allow the jury to consider lesser versions of the homicide charges that were brought. Wisconsin law allows the prosecution and defense to ask that jurors be told they can consider lesser charges as part of the instructions they receive before deliberating the case. The judge said he would issue his final rulings on Saturday.

Well, heck, there’s a lot of interesting ethics stuff I haven’t covered yet. I guess that means Part 3 is on the way…

8 thoughts on “Kyle Rittenhouse Ethics, Part 2: The Trial

  1. I think the prosecutor tried his best to loose the case and save face at the same time; he did a great job at the first and not so good at the second.

    Personally after what I’ve seen of the case, I think the Judge should call a mistrial with prejudice; however, it would be better for Rittenhouse if there was a not guilty verdict on each count.

    I think Rittenhouse needs nothing more than some community service punishment for the minor with a firearm charge if convicted on that chanrge but at this point in time it really seems futile; however, the adult person that gave the firearm to the minor knowing he was heading to Kenosha with it should have some serious consequences.

    Lastly; if Rittenhouse is put behind bars for any of this, I’ll quirte likely be one of the protesters on the Kenosha courthouse steps protesting the outcome.

  2. You opened the door, Mr. Marshall.

    While we’re discussing important questions, shouldn’t we discuss how Hamilton Burger kept his job and why Perry Mason was not elected Los Angeles County District Attorney by acclamation? Hamilton was the Washington Generals of the prosecutorial world. Not only did he consistently fail to obtain convictions, the entire police and prosecutorial establishment, which he headed, consistently (inexorably?) arrested and charged THE WRONG PERSON. It was always left to a private defense attorney to find and expose (usually at a preliminary hearing) the actual perpetrator. How did the higher ups and the people of Los Angeles County stand for such incompetence (not the mention irrelevance and immateriality) by a DA for what, eight or nine years?

    Seeing the Rittenhouse trial, I’m beginning to think prosecutors really are the JV. All the competent ones go into private defense work?

  3. Jack wrote:

    Heck, Hamilton Burger, the DA who lost every case to Perry Mason, never had that many exploding witnesses in the whole run of the TV series, much less a single case.

    What bothers me is that it seems clear the prosecution is acting in bad faith, and the judge as well. Given the late introduction of prosecution evidence (the FBI video that magically appeared on the prosecutor’s doorstep the day before the trial), the attempt to pierce the defendant’s Fifth Amendment rights, and the attempted introduction of evidence excluded in pretrial motions indicates a lawless and unethical prosecutor. Even the judge has been forced to acknowledge as much.

    I have come to the conclusion that the correct outcome is for the judge to man up and declare a mistrial with prejudice. The evidence is clearly insufficient to support the charges, and combining that with the baldly unethical actions of the prosecution, any other outcome risks a wrongful conviction and prima facia civil rights violation.

    Taking this action will imperil the life of the judge, but it will also take some of the heat off Rittenhouse and the jury. Those are ancillary benefits and the judge, of course, must not consider them, but I don’t think he needs to.

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