A judicial error in Kenosha

The unimaginable has happened. Kyle Rittenhouse, the admitted killer of two men and mutilator of a third, has been acquitted in all aspects.

On August 25, 2020, Rittenhouse armed himself with a borrowed AR-15-style assault rifle loaded with penetrating metal jacket armor ammunition and marched into downtown Kenosha, Wisconsin, during a third night of protests following the police shooting. against Jacob. Blake, a 29-year-old black man. Blake was partially paralyzed after a white police officer shot him seven times in the back out of an apartment complex in Kenosha two days earlier.

Why did Rittenhouse go to the Kenosha march in the first place? He stated that he was present to help. So why bring a gun? If you thought the situation was dangerous enough to warrant a weapon, why didn’t you stay home?

An AR-15 is the same type of weapon, in design and function, that our troops carry in the field. But according to the evidence, Rittenhouse had never received any training, military or otherwise, in the use and operation of the deadly weapon, which was illegally purchased and given to him by a friend.

With a medical kit and his deadly weapon strapped to his back, he traveled to Kenosha from neighboring Antioch, Ill., Where he lived. It stated that its purpose was to protect businesses and provide first aid. However, he lied to passersby that he was an EMT worker. He got Is not raining not at all like EMT at the time of the murders.

Seventeen at the time, the now 18 shot four people that night, killing two and wounding a third. His shooting, according to prosecutors, “recklessly” endangered the lives of other passersby.

Rittenhouse said he knew that one of his victims, Joseph Rosenbaum, was unarmed. However, four bullets were inserted into the body, he said, in an attempt to dissuade him, adding that he knew that pointing a rifle at someone is dangerous. One shot might have qualified as self-defense, but four shots appear to be murder.

“He was chasing me,” Rittenhouse explained, “he was alone, he threatened to kill me earlier that night. I didn’t want to have to shoot him. I pointed him out because he kept running towards me and I didn’t. I want him to chase me.”

Although his second victim, Anthony Huber, was “armed” only with a skateboard, Rittenhouse claimed that he shot him dead because he believed Huber was threatening his life.

The third victim, Gaige Grosskreutz, who was in fact a paramedic, was armed and said he may have inadvertently pointed his gun at Rittenhouse. But Grosskreutz did not point his gun at any casual bystander; He targeted Rittenhouse because Rittenhouse was carrying a gun. Because of this, his arm was almost blown off.

False statements of exoneration are classically regarded as preeminent evidence of guilt. Three times that night, Rittenhouse yelled at the crowd, “I didn’t shoot anyone.”

Judge Bruce Schroeder lost all claims to fairness. He refused to allow prosecutors to refer to those shot as “victims,” ​​although it is quite common in criminal cases that judges allow them to do so. The judge read a rulebook to the jury, which the experienced legal commentator Jeffrey toobin turned out to be “incomprehensible”, declaring “What the hell is he talking about ?!”

The jury was made up of five men and seven women chosen from a group of 18. The judge allowed Rittenhouse himself will choose the six names of a raffle drum of potential jurors who did not deliberate on the verdict. Most trial attorneys would find his procedure astonishing and bizarre.

The trial was highlighted by the emotional and enlightening testimony of Rittenhouse himself, who wept as he protested that he acted in self-defense when he shot and killed Rosenbaum, not once, but four times. Rosenbaum had thrown a plastic bag at him and chased him.

Judge Schroeder asked the jury to apply Wisconsin self-defense law. Under that law, deadly force is permitted if a defendant “reasonably believes that the force used was necessary to prevent imminent death or great bodily harm.” Reasonableness must be considered based on “the position of the accused in the circumstances that existed at the time of the alleged crime.” Can this definition be applied in any way to Rittenhouse’s violent behavior?

It’s hard to think that justice was served in the Rittenhouse case. Due to the dual criminality clause of the Constitution, the prosecution has no appeal, Rittenhouse left the courtroom a free man, and the public must live with the bitter pill of the verdict.

Despite the political implications, this is a worthless verdict. It is not a verdict on gun rights; It is not a verdict for vigilantism; and it has nothing to do with race. It is an example of how justice can be buried in a poorly judged case. It is an oddly neglected question in the criminal justice system, namely why the vast amount of attention that has been legitimately paid to wrongful convictions has not been given to wrongful acquittals as well.

James D. Zirin is a former federal prosecutor in the Southern District of New York


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