Kyle Rittenhouse was tried for two very different crimes. The prosecution accused him of being in the wrong place for the wrong reasons and of carrying a weapon into a volatile situation. Rittenhouse’s attorneys defended him against a very different charge, namely that he did not act in self-defense during the moments when he was confronted with a skateboard and a loaded gun.
Anyone who has seen biased commentators on CNN or MSNBC would have focused on the prosecution charges. Anyone who has seen the actual trial live would have understood that the case was much narrower and that the only problem was whether Rittenhouse reasonably feared for his life during the moments before firing the shots that killed two men and wounded a third.
Had he been tried for the prosecution’s version of the crime, he would have been found morally guilty. I should never have gone to Kenosha. It should never have been armed. And he should never have gotten into a situation where he might have to use lethal force in self-defense.
But those were not the charges. And, in fact, it couldn’t be the charges, because his actions, morally wrong as they may have been, were protected by the First and Second Amendments to the United States Constitution.
Had he been on this jury, he would have been found not guilty because the government could not prove beyond a reasonable doubt that he was not acting in self-defense. His testimony was credible. I thought her tears were genuine when testified and again when the verdict was rendered.
Viewers who actually saw her testimony could judge for themselves whether the broadcasters and television analysts, who in many cases prejudged the case, had correctly characterized her crying as privileged white crocodile tears. That’s why live coverage of trials is important – it serves as a checkpoint for biased commentators who applaud certain results and fail to report factually on the facts. It is unlikely that observers who witnessed the trial were surprised by the outcome. But those who got their information leaked through biased commenters would likely be shocked.
Had Rittenhouse been convicted, it is certainly possible that his conviction would have been reversed on appeal because prosecutors made serious mistakes. They misinformed the jury as to whether a gunman can claim self-defense against an unarmed assailant. (It can, under certain circumstances). They did not give the defense a high-quality version of a crucial video. But the prohibition of dual criminality precludes an appeal by the prosecution of a not guilty verdict or a second criminal trial. It doesn’t preclude civil lawsuits, of course, but they’re also unlikely to be successful based on the facts.
Kyle Rittenhouse is not a hero and should not be praised. The last thing we need in this deeply divided nation are armed vigilantes who travel into volatile situations to protect property from rioters. That’s the job of trained law enforcement officers, not 17-year-olds with AR-15 guns.
But a criminal trial of a particular individual for a specific crime should never become a referendum on racial, social, or political justice. It should focus on the specific facts and law. The verdict is not designed to send a message or become a rallying cry for any particular group or ideology. It is only a determination based on admissible evidence of whether the prosecution has met its heavy burden of proving each of the elements against a defendant.
The Kenosha, Wis., Jury, after lengthy deliberation, unanimously decided that the prosecution did not meet that burden in this case. They were right under the law.
Those who do not agree with the acquittal have the right to criticize it, but they also have the obligation to clarify the facts. For example, the mayor of New York City Bill de Blasio said that Rittenhouse illegally crossed state lines with a gun, but evidence showed the gun was always in Wisconsin.
Resigned Governor of New York, Andrew Cuomo, tweeted: “Today’s verdict is a stain on America’s soul and sends a dangerous message about who and what values our justice system was designed to protect. We must stand united in rejecting supremacist vigilantism and say with one voice: this is not who we are. ”
I agree that we must reject supremacist vigilantism, but I do not agree that this verdict sends a “dangerous message.” On the contrary, if anything, it sends a positive message, namely that juries are able to separate fact from ideology and can do justice in an individual case based solely on evidence and the law.
Alan Dershowitz, a professor emeritus at Harvard Law School, was part of the legal team that represented President Trump in the first Senate impeachment trial. Dershowitz is the author of numerous books, including “The Case Against New Censorship,” and his podcast, “The Dershow,” is available on Spotify and YouTube. Follow him on Twitter @AlanDersh.