Self-defense on trial in Rittenhouse case
In discussing court cases, I find it prudent to offer a bit of a disclaimer. Judging a case from the living room is fraught with problems. The court-of-public-opinion is merely a form of vigilante law without the literal lynch mob. Much of public opinion is based on biases and prejudices – and ignorance of the law and facts.
Those of us who comment on cases have a responsibility to do more than take notes from the evening newscasts. We also must look at the law and not extraneous factors such as the racial make-up of those involved, political views on gun ownership and general partisanship. When I write of such cases, I try to understand what I would do if I were a juror after seeing the hard evidence and hearing the legal arguments as presented in court.
In a past commentary, I wrote about the case of Ahmaud Arbery, the young black man killed by three white men in Georgia. After a deep dive into the facts presented in the case, I became convinced that Arbery was a murder victim. In fact, the case seems clear to me. I would vote for conviction.
The case of Kyle Rittenhouse is different – as are all cases.
In the media discussions of the case, the prosecutorial side in the court-of-public-opinion spent a lot of time questioning why Rittenhouse was on the scene of the riot in Kenosha, Wisconsin. He was not even a resident of the state – having traveled from his home in Illinois.
In the court-of-public-opinion, his presence at the scene was part of the evidence against Rittenhouse. That is the problem with the public court. His presence there is meaningless to the real case in a real court-of-law. He broke no law in being on the scene – and it was recently determined that the charge of illegally possessing that particular gun was a prosecutorial mistake. That is why there are no charges relating to his presence and the gun.
The entire case is being judged on what happened in the very few minutes when Rittenhouse and three others came into contact. And the only issue is whether Rittenhouse felt in danger of physical harm or death at the hands of anyone or all of the three men.
I have no doubt that he was terrified. One man had already committed battery by hitting him with a skateboard. Another man was in the process of taking away Rittenhouse’s gun. And the third man had a handgun and was pointing it at Rittenhouse. At one point, Rittenhouse was knocked to the ground and kicked. The only survivor of the shooting – although wounded — was the fellow with the gun. He confirmed that he had pointed his weapon at Rittenhouse.
I cannot believe that any juror – or anyone for that matter – would contest that Rittenhouse had every reason to be extremely fearful – terrorized during that engagement. That is a prima facie case for self-defense.
The prosecutors are trying to prove that it was Rittenhouse that provoked the attacks on himself – and thereby no self-defense. Videos do not support that argument. Even prosecution witnesses did not help prosecutors advance that theory. He was attacked before his responded. Being on the scene with a scary gun is NOT legal provocation.
The prosecution attempted to rationalize the attack on Rittenhouse as a response to a mass shooter. The claim does not fit. Mass shooters seek peaceful venues and the shoot randomly and consistently – liking as many as possible. There is no threat to the mass shooter when they open fire.
Rittenhouse’s claim that he shot only to stop the attack on him is borne out by the evidence. As soon as the threat was neutralized, he ceased firing – even though he had a lot more ammunition – and surrendered to police.
There has been an unusual agreement among the various talking heads on both sides of the partisan divide that the defense has the advantage in terms of the outcome – based on evidence and testimony.
It is also obvious that the prosecutors believe that they have lost the case because they have pleaded for – and got – the right for the jury to consider lesser charges. They are charges that could still get Rittenhouse 60 years in the slammer – pretty close to a life sentence.
That seems very unfair to allow entirely new charges at the conclusion of the trial. After all, the defense has spent thousands of man-hours focusing on the charges that were originally brought. This is nothing more than changing the rules because the prosecutors realize that they lost the case.
Kenosha is bracing for violence in the wake of the Rittenhouse verdict. That is what the vigilante justice crowd does in the court-of-public-opinion. That is how they try to enforce verdicts in defiance of the rule-of-law. The resort to mob action because the did not get the verdict they wanted.
America’s courts tend to do a pretty good job of meting out justice – not perfect, but pretty good. They generally do not respond to the vigilante voices in the court-of-public-opinion — but rather stick to the evidence and the law. We saw it in the George Floyd case. We see it in the types of cases being brought against the January 6th rioters – not of that insurrection and sedition crap being advanced by journalist/prosecutors in the court-of-public-opinion.
For that reason, I think there will be a conviction in the Arbery case and an acquittal in the Rittenhouse case. That would prove that justice can be served even in highly charge cases. Stay tuned.
So, there ‘tis.