The judge in the Kyle Rittenhouse case has dismissed the charge that the teen was unlawfully carrying a weapon in August 2020 – the only firearms related charge against him (count 6, possession of a dangerous weapon by a person under 18), arguing that the Wisconsin law was poorly written and that the law was not violated by the shorter barrel on the firearm.
Judge in Rittenhouse trial has dismissed Rittenhouse's gun charge. pic.twitter.com/v1x1QTBrGf
— The Post Millennial (@TPostMillennial) November 15, 2021
— Will Chamberlain (@willchamberlain) November 15, 2021
Rittenhouse still faces five charges as closing arguments begin today, including intentional homicide and recklessly endangering safety. Each side will have 2.5 hours for closing arguments, with the prosecution claiming that he was acting as a vigilante, and the defense claiming that he was acting in self-defense. Rittenhouse was 17 when he fatally shot two rioters who were chasing him during a protest over the police shooting of Jacob Blake.
…The loss of the sixth count also removes a default option for the prosecution if the more serious counts collapse. This leaves (even with lesser counts considered) a high cliff for conviction.
— Jonathan Turley (@JonathanTurley) November 15, 2021
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Jonathan Turley detailed the background to this decision over the weekend (and nailed it):
The unlawful possession of the gun has been a prominent fact cited not only by the prosecutors but the press.
At trial, however, prosecutor Thomas Binger at points seemed to be learning the governing law from Rittenhouse. For example, he pressed Rittenhouse on why he did not just purchase a handgun rather than an AR-15. Rittenhouse replied he could not possess a hand gun at his age. Binger then asked in apparent disbelief that the law allowed him to have an AR-15 but not a handgun and Rittenhouse said yes. Binger then moved on after seemingly drawing out a point for the defense.
The exchange was all the more baffling because it drew attention to the fact that one of Binger’s alleged “victims” was an adult named Gaige Grosskreutz who also decided to bring a handgun to the protests and pointed his 9mm at the head of Rittenhouse when he was shot in the arm.
However, the most damaging moment came outside of the presence of the jury when the judge drilled down on the law. He told the prosecutors “I have been wrestling with this statute with, I’d hate to count the hours I’ve put into it, I’m still trying to figure out what it says, what’s prohibited. I have a legal education.” He added that he failed to understand how an “ordinary citizen” could understand what is illegal.
It is hard to understand how the count could be given to the jury without a clear understanding of what it means. It is also hard to instruct a jury on an ambiguous statute. Criminal laws are supposed to be interpreted narrowly. It is called the “rule of lenity” and has been around in the English system for centuries.
Turley went further this morning ahead of the judge’s decision, warning that through its fumbles, the prosecution prompted its own witnesses to create layers of doubt in the case. In doing so, it seems to have reduced the range of possibilities to somewhere between a hung jury and outright acquittal on the major charges.
The problem is that many people may be unaware that the case is collapsing due to such evidentiary or tactical failures. Any hung jury or acquittal will come as a shock, and the level of outrage is likely to be greater. This case began with violent rioting in Kenosha, and the news coverage is fueling the danger of renewed violence.
It is even worse in that some coverage has dismissed the trial as an exhibition of raw racism. Some have criticized Judge Bruce Schroeder after he enforced long-standing constitutional principles and defended the core constitutional right of the defendant against self-incrimination.
MSNBC host Tiffany Cross advocated for Schroeder’s removal and called on columnist Elie Mystal to discuss the matter. Mystal, who stated earlier this month that white, non-college-educated voters supported Republicans in the 2021 races in part because they care about “using their guns on Black people and getting away with it,” not surprisingly, has written that this trial is a sham.
One man – not society – is on trial
MSNBC’s host Joy Reid also attacked the trial and suggested that Rittenhouse’s emotional breakdown on the stand was fraudulent. Her guest, MSNBC legal analyst and Georgetown law professor Paul Butler, concurred and called it “the greatest performance of (his) life.”
Butler declared Rittenhouse “was well-prepared by his defense attorneys to disrupt his image as a trigger-happy vigilante who went on a shooting rampage at a Black Lives Matter protest.”
Butler, who has written that Black jurors should use “jury nullification” to refuse to convict Black defendants in drug cases, insisted in a previous appearance that an acquittal would fuel future violence by white people.
Reid added Wednesday, “If you want to know why critical race theory exists, the actual law school theory that emphasizes that supposedly colorblind laws in America often still have racially discriminatory outcomes, then look no further than the trial of Kyle Rittenhouse.”
However, Rittenhouse is not to be judged for society’s historical racism, and such history does not change the underlying facts.
Either Grosskreutz (who is white) was pointing the gun at Rittenhouse’s head or he was not. Either Rosenbaum (who was white) was grabbing the barrel of Rittenhouse’s gun or he was not. Such facts do not change through CRT translations.
Many in the media rightly criticized those who encouraged riots on Jan. 6 with unsupported claims of electoral fraud. However, some of the same media figures offer distorted accounts of this trial. The narrative can overwhelm the facts.
Moreover, if left uninformed of the real legal deficiencies in the case, that narrative is likely to control the response to any failure to convict.
These protests are part of a larger debate on racism in our country. However, this trial is about the actions of one individual – not society – in 2020. Those actions are increasingly favoring acquittal on the most serious charges.