Thanks, Professor: We Needed That

Professor Ronald S. Sullivan, Jr. is criminal law specialist who trains Harvard Law students and practices law. He has just issued a superb explanation and analysis of the Kyle Rittenhouse verdict—fair, objective, and best of all, readable by those whose eyes usually glaze over at legal scholarship.

It should, in a just and sane society, permanently shut up—embarrass, even— the politicians, celebrities, and social media dolts who are still calling the jury’s verdict “racist” or an indictment of the legal system. Of course, it won’t. If there is a more annoying example of people loudly braying uninformed opinions about a technically complex matter that they know little or nothing about, I can’t think of it right now.

On “The View,” ABC’s depressingly popular “gullible idiots watching progressive idiots” news show, panel leader Whoopi Goldberg (because in the land of the blind…well, you know the metaphor), declared that Rittenhouse was a murderer. People will take that as authority, you know. She played a video of Anthony Huber’s father on CNN holding an urn containing his son’s ashes and emoting bitterly against Rittenhouse going free, as if the lament of a parent in such situations ever is anything but an irrelevant appeal to emotion. Then, armed with this irrefutable “evidence,” Whoopi gave her verdict on Rittenhouse, saying of Huber (who was shot while beating the teen with a skateboard), “He saw someone get shot. He thought he was doing the right thing. So … even all the excuses in the world does not change the fact that three people got shot. Two people were murdered. To me it’s murder. I’m sorry.”

I’m sorry too, Whoopi. I’m sorry you lack the sense of responsibility to keep your opinions on issues you don’t have the knowledge and background to understand to yourself, and instead wield them to make the public stupid. I’m sorry you believe “thinking you are doing the right thing” is ever a justification for doing the wrong thing (and you don’t believe that yourself: were the men who lynched Emmett Till blameless because they thought they were doing the right thing?). You have no way of knowing what Huber thought anyway. I’m sorry you are so ignorant that you can say something like “if he shot them and they died, then he’s a murderer,” which is redolent of your failure to take the initiative over the years to fill the gaps in your high school dropout education. Mostly I’m sorry that you’re not getting enough work as an actress and comic, both occupations you’re brilliantly qualified to do, so you’re stuck with being an incompetent pundit for a living.

But I digress. Prof. Sullivan’s name should be familiar to readers here: he was the professor that Harvard allowed to be attacked by students and stripped of his job as one of the college’s House senior residents because he was defending Harvey Weinstein, an unpopular defendant, which is what criminal lawyers must do. His treatment is one of the main reasons I’m boycotting my class reunion next year.

Sullivan’s analysis of the Rittenhouse verdict is here. You should read it, and you should send the link out widely and with gusto. I hesitate to quote from his long essay because that will give some an excuse to not commit to the whole piece, but three excerpts should demonstrate what an excellent job he has done. For example, on the standards at issue in the trial…

The principal issues at trial were three: 1) whether or not Rittenhouse was under imminent threat; 2) whether or not Rittenhouse’s expressed fear for his life was reasonable; and 3) if Rittenhouse’s fear was reasonable, whether or not the self-defense justification is barred by Wisconsin’s doctrine of provocation.

On the first prong, a reasonable jury clearly could have found that the threat was imminent. Indeed, Gaige Grosskreutz, the government’s own witness, testified that he pointed a gun at Rittenhouse. This is a textbook case of an imminent threat. Not much additional needs to be argued with respect to Grosskreutz. It is not reasonable to argue that standing at gunpoint fails to meet the imminent threat standard. The facts regarding the other two alleged victims are also compelling on the imminent threat prong. Anthony Huber was hitting Rittenhouse with a skateboard, and at one point even touched Rittenhouse’s gun. Witnesses testified that a “hyperaggressive” Joseph Rosenbaum charged at Rittenhouse, threatened to kill him, and lunged for his gun.

On the weakness of the prosecution’s case:

The state’s case was infirm from the beginning. I cannot emphasize enough how problematic it was that the state’s star percipient witness, whom they put on the witness stand very early in the trial, admitted to pointing a firearm at Rittenhouse. This handed the jury reasonable doubt on a silver platter. Trial lawyers know and academic psychologists confirm that juries respond to concepts of primacy and recency: they remember best what they hear first and last. One of the very first things the jury heard from the prosecution’s witness was that Rittenhouse reasonably responded to an imminent threat of death. That did not bode well for the remainder of the trial.

Finally, on the often-stated assumption that a black defendant in Ritterhouse’s situation would have been convicted, with which Sullivan (wrongly, I think) concurs…

But assuming, for the sake of argument, that a black defendant would have been convicted by an overwhelmingly white jury, what does it say about the Rittenhouse verdict? What are the implications? What do we do? Normatively, is the point that we should have convicted Rittenhouse on insufficient evidence to atone for the way blacks are treated in the criminal legal system? Or, is the point merely descriptive, shining a light on an unfair system, but with no prescriptive corollary? What would we have gained with a Rittenhouse conviction? To convict Rittenhouse, a putative innocent under Wisconsin law, strikes me as a means to an end unrelated to the substance of the trial. I dare say that most people of goodwill would find that to be unethical and immoral. Kant certainly would not be happy. My view is that the aim of the criminal legal system should be to level up, not level down. We should spend our energies insisting that the system treat black defendants as Rittenhouse was treated, and not advocate for the system to treat Rittenhouse as black defendants are, and have historically been, treated. Leveling down inures to no one’s benefit. The derogation of rights would spiral downward—and quickly—such that all of our rights would be in jeopardy. And the very communities already treated badly in the criminal legal system would be treated even worse.

Again, read it all.

And somebody send it to Whoopi.

28 thoughts on “Thanks, Professor: We Needed That

  1. Sullivan’s legal analysis is spot on but he fails miserably when it comes to what laws we should fix. Nowhere does he address the “moral” issues that may have been the predicate for a minor to stroll the streets of Kenosha with a firearm.

    • Are you suggesting a law to criminalize bad judgement? He was legally in the place where he was, and no law precluded his open possession of that weapon. Maybe you can explain how an addition 6 months or soon the planet might have changed things….other than the idea that most likely the riot would not have lasted that long.

      • My point was Kyle took the weapon because of the potential danger. Had there been no rioting he probably would not felt the need for a self defense weapon. He was absolutely in the right to be anywhere he wanted to be in Kenosha. What Sullivan fails to acknowledge is that the streets of Kenosha were made unsafe by rioters which technically provoked the need for self defense tools.

  2. I’m about to read the article, but just as a matter of fact: Goldberg was wrong when she said “He saw someone get shot.” That isn’t true. Huber was part of a crowd that joined in the pursuit of Rittenhouse from Site 1 to Site 2. The crowd was shouting “he shot someone” (as well as “cranium him” and a lot of other color commentary). I can’t tell you what he was thinking, but it was physically impossible for him to have seen the shooting. He probably hadn’t even heard it.

    • Well, based on that article, I wouldn’t trust him. The bottom line is that Sullivan validates the jury verdict, even with his differences on what should constitute self-defense. Branca seems to be primarily pissed off that Sullivan may have used his version of the standards for self-defense without attribution. I don’t find Branca’s version that unique, and I have seen similar versions elsewhere. Plus, this was not a scholarly version of the article, with footnotes, etc. Sullivan’s version of the Zimmerman-Martin affair is secondary to the topic at hand—yeah, I think most African-Americans can’t deal with their bias regarding this tragedy, which was best described as “two assholes got into a confrontation they both could have avoided, and one of them legally had a gun.” Whether or not Zimmerman was told not to leave his car [if I recall, the operator said “you don’t have to do that (that is, try to follow Martin)”], he did end up shooting Martin while the kid was beating his head against the concrete and he thought he was grabbing at his gun.

    • Branca is responding to a different piece than the one Jack linked to. They share some similar elements, however Jack’s link is much longer, more detailed, and doesn’t even touch on George Zimmerman. They have different posting dates, and it’s plausible he took the basic argument and developed it into something decent.

  3. “Of course, this view is not exclusive. An equal number of citizens hold a genuine belief that Rittenhouse is blameless. He had as much of a right to be in Kenosha as the BLM protestors. The Second Amendment and the laws of Wisconsin permitted him to carry a weapon openly. Properly at the venue and properly in possession of a gun, Rittenhouse had a statutory and common law right, not to mention a common-sense justification, to protect himself from death or grievous bodily injury. From this perspective, the deaths, though unfortunate, were justified. The criminal law and its self-defense doctrine help us adjudicate between the above competing claims.”

    I feel seen.

    “The point here is not to resolve whose moral intuitions are correct. The point is to reaffirm that our criminal law has a substantive dimension such that citizens will (and should) question the fairness of our legal regimes.”

    D’aww…

    “They punctuate this argument with claim that if Rittenhouse were black, he would have been convicted.”

    “On this last claim, I wholeheartedly agree. If Rittenhouse had been black, he most assuredly would have been convicted. I suspect the jury would have found—at least with respect to Huber and Rosenbaum that his fear of death or serious bodily injury was not reasonable. Or, they would have found that this hypothetical black man provoked the situation. Consider the following counterfactual. A black man is roaming the streets of a Proud Boys rally with a rifle in tow. He ends up killing two protestors and injuring another. My belief is that the exact same Rittenhouse jury would apply the law to the facts of this counterfactual case differently. The result would be conviction. Data support this view. We know that blacks are convicted for homicide at significantly higher rates when the victim is white.”

    “But assuming, for the sake of argument, that a black defendant would have been convicted by an overwhelmingly white jury, what does it say about the Rittenhouse verdict? What are the implications? What do we do? Normatively, is the point that we should have convicted Rittenhouse on insufficient evidence to atone for the way blacks are treated in the criminal legal system? Or, is the point merely descriptive, shining a light on an unfair system, but with no prescriptive corollary? What would we have gained with a Rittenhouse conviction? To convict Rittenhouse, a putative innocent under Wisconsin law, strikes me as a means to an end unrelated to the substance of the trial. I dare say that most people of goodwill would find that to be unethical and immoral. Kant certainly would not be happy. My view is that the aim of the criminal legal system should be to level up, not level down. We should spend our energies insisting that the system treat black defendants as Rittenhouse was treated, and not advocate for the system to treat Rittenhouse as black defendants are, and have historically been, treated.”

    YES! A million times yes! I’ve been banging this drum for years and Sullivan nailed it. Are there racially disparate outcomes to justice? Maybe there is. I think there is, Sullivan thinks there is, BLM protestors obviously do, your mileage may vary, but people that think that need to go one step further: Do you want to raise the floor up, or bring the ceiling down? Should more white people be convicted or fewer black people? I think fewer black people, Sullivan thinks fewer black people, BLM has no fucking clue. Their message is schizophrenic; A primal scream of “hurt them” or “help us” not depending on what’s right, but by their perception of the color of the skin that is ostensibly being hurt or helped. Justice is not a zero sum game.

    And as an aside, I purposefully didn’t read the sections of Sullivan’s piece you quoted until I was done because I wanted to view the piece fresh, I’m not surprised we disagree on the topic, but I’m at least glad we both thought it important.

    “The quarrel, I submit, is not with the jury, or with the extrajudicial commentary that preceded the trial. The better quarrel should be with Wisconsin’s gun law. Long-standing self-defense law conspired with absurdly permissive open carry laws to create the set of conditions to make the Rittenhouse affair possible.”

    Bit of clarity on this: I agree with Sullivan, but it’s important to note that if the Wisconsin law was obvious in that it didn’t permit 17 year olds to carry, the difference wouldn’t have been the gun charge, the difference would be that Rittenhouse probably wouldn’t have carried… And the rhetoricals go wild from there. He was asked directly by the prosecution why he was carrying a rifle and not a handgun, as a handgun probably would have gotten less in the way of his stated objective as a medic than a rifle. His answer was that he thought the state law permitted him to carry the rifle, and not the handgun… Which, funny enough, was correct. If he’d known that he couldn’t carry either the handgun or the rifle, my impression was that he’d have neither.

    “Two people are dead—forever gone from their loved ones’ day to day existence.”

    Cheap shot, but I’m not letting any of this bullshit through: Considering the amount of domestic abuse on their rap sheets, some of those “loved ones” are probably sleeping easier now than at any time in the last decade.

    • An anti-George Soros guy from somewhere in Eastern Europe who’d become wealthy said Communism’s end result is to make everyone poor. This leveling thing is pernicious. Here we see it applied to the judicial system. Good. All the Commies active in our society want to effect the same leveling in the U.S. economic system. If successful, such a leveling will be catastrophic.

    • Sullivan’s hypothetical of a black man armed with a rifle (and, to make the analogy correct, a medical kit and fire extinguisher, who was present to protect a business and provide medical care) at a Proud Boys rally who was first attacked by one of the more deranged attendees followed shortly after by two armed (yes, a skateboard can be a weapon) individuals is exactly the scenario I would use to illustrate that the dividing line in our country is partisanship more than race.

      With the above imagined facts, the media would not have labelled the black “Kyle” a white supremacist (and we would have been spared the “black face of white supremacy” talk as well), celebrities would have abstained from droning on and on about peaceful civil rights protesters being viciously gunned down by an armed “vigilante”, we wouldn’t hear a peep about “crossing state lines” or “military grade” weapons, and candidate Biden wouldn’t have defamed this imagined black “Kyle”. Rather, we would have seen endless videos of “Kyle” cleaning graffiti, putting out dumpster fires, and interviews with people he had rendered first aid to.

      I find it very difficult to imagine, in this hypothetical scenario, that charges would have been brought or, if somehow they were, that a jury would convict. The fact that Sullivan thinks a conviction likely in this case tells me he’s been living in an academic bubble for too long.

      • Agreed. It is already happening with that maniac in Waukesha who ran over a ton of people at the Christmas parade. We are hearing stories about his rage, the injustice of the Rittenhouse verdict, etc.

        jvb

      • It’s a matter of playing the odds. We don’t know for certain that a black Rittenhouse would be convicted. But on average it would be more likely.

        It’s uncontroversial to say that black people generally face harsher outcomes with the justice system; they’re more likely to be stopped, they’re more likely to be arrested, they’re more likely to be charged, they’re more likely to be convicted, and they’re more likely to receive harsher sentences than a white person for the same alleged crime. That’s not editorializing, those are just the numbers.

        Jack has previously taken the position that it’s a factor other than racism that drives those differences; That some of the difference in treatment could be attributed to social or cultural points… policemen, judges or juries might look more favorably on people who are more deferential or respectful towards them, are better dressed, or seem to have better family support.

        Sure. That’s not necessarily racism. Maybe it’s just classism, and black people as a demographic tend to be poorer. Maybe it’s cultural, and black people culturally have less respect for authority. The thing is that no one is arguing that black people aren’t given more harsh treatment, they’re arguing that it isn’t racist, while acknowledging what is functionally a two-tiered legal system based on non-legal factors. The law doesn’t have modifiers for calling a policeman “sir”. Justice is supposed to be blind. We ought to endeavor for a system where the suit that someone wears to court does not outcome their sentence.

        • If they’re judged on the content of their character and not the quality of their suit, eh?

          I think the two tiered legal system has a lot more to do with financial resources than skin color.

          And isn’t addressing state authorities as sir or ma’am generally an indicator of respect for any authority or guidelines?

          By the same general means the court and or jury system will adjust deals or penalties since the subject has had no prior contact in the criminal courts.

          Good luck taking the bias out of the system since blacks, constituting not 15% of the population, account for usually far more a percentage of total arrests for crimes, and it’s 50% for violent crime.

          And let’s face it, that’s not black on white crime, it’s black on black.

          The celebration/riots for Jacob Blake, that totally innocent and angelic being, are the primary problem. That such a culture exists is just poison, and no group of people that believed anything similar could successfully make its way in society.

          It’s the racial equivalent of “its my parents fault”. As my new squeeze says, the statute of limitations on that runs out when you hit 25. When blacks who now come from Africa do far better on average than American blacks, the statute of limitations on blaming racism for everything gone wrong has run out.

          • When blacks who now come from Africa do far better on average than American blacks, the statute of limitations on blaming racism for everything gone wrong has run out.

            Ah… there’s a confounding factor at work here, which I can illustrate from my first hand albeit teenaged knowledge of Nigeria. The Yoruba tribal structure has an inner core, analogous to an upper class in a class system. Various things (acculturated inclination, resources, etc.) make members of that disproportionately likely to travel or even emigrate, e.g. when I bumped into one here in Australia I said his full name was almost certainly very long and had “oba” (king) somewhere in it, i.e. I was guessing he was of that inner core, as his larger size also suggested; he laughed, and said his full name was indeed long but had “ade” (prince) in it. So, it certainly holds of Yoruba in the U.S.A. that they are disproportionately likely to arrive with cultural and resource advantages even though they have a cultural gap of their own to overcome, and the same may well hold of other African arrivals.

          • Tell me that you haven’t read my comment without telling me that you haven’t read my comment.

            You: “I think the two tiered legal system has a lot more to do with financial resources than skin color.”

            Me, a psychic, knowing two hours before you said it that you would say that: “Sure. That’s not necessarily racism. Maybe it’s just classism, and black people as a demographic tend to be poorer.”

            You: “And isn’t addressing state authorities as sir or ma’am generally an indicator of respect for any authority or guidelines?”

            Me, still psychic: “The thing is that no one is arguing that black people aren’t given more harsh treatment, they’re arguing that it isn’t racist, while acknowledging what is functionally a two-tiered legal system based on non-legal factors. The law doesn’t have modifiers for calling a policeman “sir”.”

            And again… If you could point to me the section of law that says that sentencing guidelines are different for people dressed on their appearance, or level of deference to authority, I’ll cede the argument… But you can’t, because that language doesn’t exist.

            The closest you actually came to interacting with my argument was when you said “Good luck taking the bias out of the system”, because I agree, that’s going to be rough. And this is something that I think American conservatives struggle with: The left has you on this. You don’t have answers to the problem, so you get lost in the semantics of the problem: “It’s not X, it’s Y”. This is the EXACT same thing I criticize progressives on with CRT… The problem isn’t what you call it. The problem is the problem, and the solution isn’t the label.

  4. I wouldn’t expect a law professor to be obviously and egregiously wrong on the law, but here it is:

    And, finally, before courts authorize the use of deadly force by civilians, in most instances, you have a duty to safely retreat.

    Nope. That is true in only 15 of the 50 states as of 2020, so the statement is objectively incorrect. And it wasn’t a one-off, because several paragraphs later:

    Most US jurisdictions impose a “duty to retreat” on defendants who seek to rely on the self-defense doctrine for their use of deadly force.

    Because Harvard, I guess…

    Then this:

    Rittenhouse, the argument runs, is morally blameworthy for coming to a chaotic situation with a gun and a design to engage in private law enforcement. The jury charge reads, “[a] person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten the use of force in self-defense against the attack.” Arguably, Rittenhouse’s conduct fits the definition of provocation.

    Professor, how might such an argument be made? You stated earlier he was a) in a place he was lawfully entitled to be with b) a firearm he was lawfully entitled to possess at said place. It is also a fact based on objective evidence that Rittenhouse did not initiate any of the confrontations in which he felt required to defend himself. So what was the “unlawful conduct” by Rittenhouse required to meet the definition of provocation?

    If the foregoing facts are stipulated, there is no moral argument to be made. While we attempt to codify morality by reason of laws, they are insufficient do so. Laws are blunt instruments, particularly criminal laws, and moral judgments often require a scalpel.

    You cannot say, for example, that it is a provocation that invalidates a self-defense doctrine for a person to lawfully be in a place with a lawful instrument of defense. That makes the entire law subject to value judgments, and the law requires objective reasoning rather than a “moral” one, which are usually far more subjective than otherwise.

    I’m don’t have time to “fisk” the whole thing, but I must say, on the whole, I am not impressed with Sullivan’s reasoning. On the criminal elements, he was accurate and logically sound, but taken as a whole, his piece has far too many mistakes of both fact and reason to be cheered very much, in my opinion.

    There is a lot of blame to go around in this affair: Rittenhouse for his youthful stupidity in being there at all,armed or otherwise; the dead and maimed men who criminally assaulted Rittenhouse; the police, for failing to protect property and citizens and enforce the curfew; local government for cowing before brigands; state government for failing to defend their citizens and cowing before activist pressure; and even President Trump for not even trying to lower the temperature.

    That’s all I have to say about that.

    • You would be surprised at how many law professors and judges get the law wrong. There are a few people who know it, a lot of people who are close to right, and some more who are just off. The law can be complicated and ambiguous. This leads to all kinds of misunderstandings.

    • I find it extremely helpful that Sullivan is bending over backwards and touching his forehead to his toes to give maximum weight to all the anti-Rittenhouse arguments, even the really bad ones. It’s a classic legal device–even if I conceded that everything you claim is true, you STILL don’t have a valid case. And that’s where he ends up. It’s not an argument to convince those who are capable of objective thought and who know the law. It’s an argument for those who are biased against Rittenhouse.

      His error regarding the states with a duty to retreat was careless, but that happened because he was going from memory about a topic that isn’t relevant to the case anyway. It doesn’t matter if 49 states have a duty to retreat or none: what matters is that Wisconsin doesn’t.

    • Well put Glenn. You captured many of my sentiments. Thank you for pointing out the incorrect statements in Sullivan’s essay as I would not have known them. I do have to rely on the integrity of lawyers to instruct me on the law so when when makes a statement that is rebuttable it harms my ability to make a proper assessment.

  5. On the same day Rittenhouse was found not guilty on all charges, a jury found Andrew “A.J.” Coffee IV, a black man, not guilty of second-degree felony murder, three counts of attempted first-degree murder of a law enforcement officer by discharging a firearm, and one count of shooting or throwing a deadly missile. I won’t go into the legal details, but yes, our jury system does work for both whites and black, Mr. Sullivan. MSM failed us once again, and not one major news outlet reported on Mr. Coffee’s verdict.

      • To my Rush-and-Dr.-Pepper deprived mind, it is a First Amendment/Speech chilling ruling. The jury verdict seems to say (1) “well, you were there when that Proud Boy maniac ran over that girl, so you’re liable”, and (2) “well, we don’t like what you believe, stand for and/or say, so, yeah, you’re liable for that maniac’s actions.” While the Left is celebrating this version of justice, it might just behoove them to, perhaps, think about the broader implications, and wonder when BLM/antifa will get whacked for burning, pillaging and marauding in Minneapolis, Kenosha, Waukesha, Seattle, Chicago, et al.

        jvb

  6. I read the essay and certainly appreciated the easy to understand explanations of excuses and justifications. However, the professor, in my opinion, veered well off course into BS land with his presumption that a black man in a similar circumstance would have been convicted. Especially considering that in the Breonna Taylor case in Kentucky a black man was exonerated after shooting at police when they entered his home with a no-knock search warrant. Just today the three white men who shot Ahmaud Arbery were convicted. It seems a shame the professor felt the need to pollute an otherwise well written essay with fake news crap.

  7. Regarding Kyle Rittenhouse’s level of maturity: He has admitted (although, thankfully, being too young to vote) to being a supporter of Andrew Yang.

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