With closing arguments scheduled for Monday in the Kyle Rittenhouse trial, the jury will soon receive one of the most politically and emotionally charged cases in history. The question, however, is whether prosecutors practically closed this case before it began in 2020. They followed a long pattern of prosecutors rushing indictments and overburdening the defendants in high-profile cases. Even with the court’s agreement with a key favorable instruction, the prosecution may have condemned this case responding to the weight of public opinion rather than the weight of evidence.
Rittenhouse shot dead 36-year-old Joseph Rosenbaum and 26-year-old Anthony Huber on August 25, 2020, during riots in Kenosha, Wisconsin, following a fatal shooting by police. He also wounded 27-year-old Gaige Grosskreutz.
Still photos of Rittenhouse walking down a street with an AR-15 rifle strapped to his back sparked widespread outrage. Then presidential candidate Joe bidenJoe Biden Federal Appeals Court Says Business Biden Vaccine Remains Mandate Why Democrats’ Prescription Drug Pricing Would Have Hurt Older People Tennessee Governor Signs Law Restricting Terms of COVID-19 MORE labeled Rittenhouse a “white supremacist” in a tweet showing your photo and demanded to know why then-President TrumpDonald Trump Former Chicago-area CEO Sentenced to 30 Days in Prison for Involvement in Jan. 6 Attack Noem Formally Launches Overnight Health Care Re-election Campaign – Presented by Rare Access Action Project – Biden Reveals FDA Choice PLUS He did not “repudiate white supremacists.”
Prosecutors tried to quell public outrage by indicting 17-year-old Rittenhouse on Aug. 28. He was charged as an adult with first degree manslaughter, first degree reckless manslaughter, first degree attempted manslaughter and two first degree counts. degree of reckless danger. Although he was charged as an adult on the murder charges, he was also charged with possession of a weapon when he was under the age of 18.
What’s most surprising about the trial is that, even more than a year later, prosecutors appear to be learning critical details at the same time as the jury. A strikingly different image of the victims and the shooting quickly emerged. There were also glaring errors by the prosecution, including a possible violation of a court order, and a long-standing constitutional law, which could end the case, by using the post-arrest silence of Rittenhouse against him.
Judge Bruce Schroeder was criticized for telling prosecutors that, like many judges, he opposes the use of the term “victim” when the jury has not ruled in the case. The trial seemed to confirm that judgment.
From the beginning, the 36-year-old Rosenbaum was portrayed as a violent and threatening actor. A convicted child molester, he was described by multiple witnesses as threatening Rittenhouse and others and engaging in random acts of violence. At one point, Rosenbaum pushed a burning dumpster into a police vehicle with officers inside. Prosecutors tried to rehabilitate him, with disastrous results. They called Richard McGinniss, a reporter who was by Rittenhouse’s side when he shot Rosenbaum. A prosecutor confronted McGinniss and stated that he “has no idea what Mr. Rosenbaum was thinking at any point in his life. You’ve never been inside his head, you’ve never met him before. “McGinnis shrugged and said that” he never exchanged words with him, if that’s your question. “The prosecutor then pressed further, saying that McGinnis had no idea what. what Rosenbaum was thinking because “it’s a complete conjecture, isn’t it?” McGinnis replied dryly, “Well, he said ‘Fuck you’ and looked [Rittenhouse’s] weapon.”
Witnesses described Rosenbaum as brandishing a chain and threatening to kill others.
Prosecutors then asked Rosenbaum’s girlfriend, Kariann Swart, if she had taken medication the day she was shot. That “opened the door” for the defense to ask Swart what the medication was for, and she revealed that Rosenbaum suffered from bipolar disorder and depression.
Grosskreutz did a little better. He admitted during questioning that Rittenhouse did not shoot him when he had his hands up after a confrontation. Instead, he admitted, Rittenhouse fired only after Grosskreutz aimed his own 9mm pistol at Rittenhouse’s head.
The jury heard how Rittenhouse was chased when Huber repeatedly hit him with a skateboard and someone else hit him on the head with a rock.
Even the prosecution’s medical witness proved beneficial to the defense after he admitted that forensic evidence would support claims that Rosenbaum was grasping the barrel of Rittenhouse’s rifle when he fired.
A prosecution witness, photographer Nathan DeBruin, caused a stir when he accused prosecutors of pressuring him to change his statement about what happened that night. Assistant District Attorney James Kraus reviewed DeBruin’s account and asked, curiously, “Didn’t we ask you to change it?” – to what DeBruin said, “Yes, you did it.”
Given the weak prosecution case, it would have been tempting not to put Rittenhouse on the stand. However, the defense clearly believed that he had passed the line for a hung jury and wanted to press for an absolute acquittal. Rittenhouse described how he spent the day cleaning high school graffiti and how a business owner asked him to protect his building. He also described how he brought a medical kit and helped people injured during the riots.
For those who saw the trial, there was a shocking disconnect between the previous news coverage and the actual evidence. There was an even bigger disconnect with the charges.
It is a familiar pattern. In the Trayvon Martin case, George Zimmerman was charged with first degree murder; some of us criticized prosecutor Angela Corey for pursuing a first degree murder in a classic self defense case. With only Zimmerman surviving the encounter and exhibiting wounds from the fight, a first-degree conviction was extremely unlikely compared to a manslaughter conviction, but the lesser charge would not have satisfied many in the public. The result was an acquittal.
Overloading may please the public, but it can demolish a case. While jurors can convict of “misdemeanor” crimes, the credibility of the accusation is established by the main charge. Jurors tend to start at the top and work their way down to charges. If the first-degree charge is tremendously out of reach, they are more likely to doubt the lesser charges as well.
Even with some misdemeanors included, it will be difficult for prosecutors in the Rittenhouse case to get this cat to walk backwards. They promised the jury that they would see a vigilante rampaging with total disregard for human life. Instead, the jury saw a much more confusing and chaotic scene in which Rittenhouse was threatened with a gun, repeatedly beaten, and chased down a street.
On Friday, prosecutors pushed to add lesser charges; the defense waived objections to the consideration of lesser charges on some but not all charges. While allowing such consideration, the judge declined to consider a lesser charge of reckless murder in the second degree, because that would not require proof that the adolescent exhibited a “total disregard” for human life.
Prosecutors won a fight over a “provocative instruction.” Under Wisconsin law, if someone provokes a confrontation, they must exhaust all other options, such as retreat, before using deadly force in self-defense. However, prosecutors agreed (despite media reports to the contrary) that there was no provocation in the mere fact that Rittenhouse appeared in the middle of the protest with his gun. In addition, the prosecution’s own witnesses described Rosenbaum and others threatening and persecuting Rittenhouse.
In the absence of a safe prosecution, the Rittenhouse case can prove, once again, how a prosecutor who satisfies public outcry can end up sacrificing a criminal case.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find their updates on Twitter. @JonathanTurley.