The Rittenhouse Trial Controversies

For the last several weeks, the nation’s attention has been drawn to the criminal trial of Kyle Rittenhouse, who faced five charges for the homicide of two men and the injury of a third during last summer’s protest/riot in Kenosha, Wisconsin. Rittenhouse was 17 when he traveled from Illinois to Wisconsin during the incidents. Rittenhouse obtained an AR-15 rifle and said he was in Kenosha to protect a car dealership from being vandalized. Rittenhouse claimed he was acting in self-defense during the incidents.

As the trial progressed, it became clear that Rittenhouse had a strong argument for self-defense. Video evidence showed Rittenhouse being chased. The prosecution’s lead witness testified he pointed a gun at Rittenhouse before Rittenhouse shot him. The trial culminated in the jury finding Rittenhouse not guilty on all charges. Nevertheless, the trial itself was very controversial with both Judge Bruce Schroeder and the prosecution team criticized by news outlets for their performance.

The Judge

Judge Schroeder has been heavily criticized by some media outlets for displaying bias in the defendant’s favor during the trial. Below are the alleged displays of bias:

1. Jury Raffle

• The final jury members were selected by lottery. The jurors’ numbers were written on a slip, tossed into a tumbler, and Rittenhouse himself reached in and pulled the slips of the excess jurors who were to be sent home. It is questionable whether the defendant himself should have been permitted to decide which of the jurors left should hear his case.
• While it might have been preferable to use a neutral person to draw the juror slips, such as the bailiff or a court clerk, no rules were violated in letting the accused draw the slips so long as the drawing itself was random.

2. Excluding reference to the deceased and injured persons as victims

• The judge did not permit anyone from referring to the deceased and injured persons as “victims.”
• This was the correct ruling as calling these persons “victims” would imply that Rittenhouse had attacked them or that he was guilty. However, Rittenhouse was being tried for his actions and even during trial he is presumed innocent until the jury actually declares he is guilty.

3. Permitting reference to the deceased and injured persons as arsonists, rioters, or looters

• The judge permitted the defense to refer to the deceased and injured persons as arsonists, rioters, or looters “if more than one of them were engaged in arson, rioting, looting.”
• The judge should not have permitted this. First, calling those persons arsonists, rioters, or looters implies that they are guilty even though they have the same presumption of innocence as Rittenhouse. Second, most of these persons were not in the courthouse (because some of them were dead) and thus could not speak on their own behalf against Rittenhouse’s accusations. Third, none of these other persons have had their day in court so it highly premature to call them arsonists, rioters, or looters. If some people were mistaken in believing that Rittenhouse was an active shooter or murderer, then surely it was premature to assume that other persons had committed crimes.

4. Veteran’s Day Salute

• On Veteran’s Day, the judge asked whether anyone in the courtroom was a veteran. One person acknowledged he was a veteran – the defendant’s use of force expert. The expert was set to testify that same morning. The judge requested that everyone stand up and give him a standing ovation.
• The judge should not have done this. While it may have been traditional in Wisconsin to honor veterans, this was not the time, place, or circumstance to do so. Making everyone in the room, including the jury, stand up and clap for a defense expert because he is a veteran gives the expert more creditability than he should have and calls the judge’s own impartiality into question. The gesture by nature was not wrong, but the judge should have waited until the trial was over to do so.

5. God Bless the USA Ring Tone

• During the trial, the judge’s cellphone rang and “God Bless the USA” was the ringtone. Some people believe the ringtone implies he wanted the defense to win.
• This controversy is absolutely moronic. While the judge’s cellphone should have been on silent mode or turned off completely, there is nothing wrong with having a ringtone for a song that is over a century old and played in many official state proceedings.

6. Dismissing the firearm possession charge

• The judge dismissed a misdemeanor charge that Rittenhouse was a minor in possession of a dangerous weapon (AR-15). However, Wisconsin law permits minors to carry a shotgun or rifle as long as they’re not short-barreled. The prosecution conceded that the AR-15’s rifle barrel was longer than 16 inches. Rittenhouse was a minor last year.
• This was the correct ruling as Judge Schroeder was applying the black letter text of the law. If state residents don’t like this exception, they can ask their lawmakers to change it.

Overall, the judge made some errors in his oversight of the case, but given the overwhelming evidence against conviction, these errors did not unduly influence the jury into rendering a “not guilty” verdict.

The Prosecution

Some persons on Twitter have called the prosecution team the best defense attorneys they have seen. Rittenhouse remarkably took the stand to testify in his own defense, a rarity in criminal trials, and the prosecution still failed to get him convicted on a single charge.

1. Referring to the Defendant’s Invocation of the Fifth Amendment

• The prosecution commented on Rittenhouse’s silence after he was arrested. The judge scolded the prosecution, after the jurors left the room, for violating basic Fifth Amendment rights on not equating silence with guilt.
• The judge was correct in reprimanding the prosecution for attempting to infer guilt from silence. The right to remain silent is a constitutional right that the prosecution had no grounds for potentially violating.

2. Giving lower quality video to the Defense

• The prosecution obtained a drone video that showed Rittenhouse being chased. The prosecution allegedly played a high quality version for the jury but emailed a lower quality version to the defense. The defense moved for a mistrial based on this video. The prosecution stated that emails sometimes condensed videos and lead to a slightly lower quality version. The judge did not rule on the mistrial motion prior to the jury rendering its verdict.
• Having watched the video, it is unclear exactly what the difference is between the two versions. It is also unclear how the lower quality version impacted the case. Nevertheless, the jury rendered a not guilty version so this “error” seems rather trivial.

3. Pointing a gun in a crowded room

• During closing arguments Assistant DA Thomas Binger demonstrated to the jury how the AR-15 worked. He had a finger on the trigger and he pointed it around the room where several people were.
• Binger should have reframed from placing his finger on the trigger especially since Alec Baldwin’s firearm mishap was only a few days prior. If the firearm had discharged, Binger would have faced several liability for violating one of the basic rules of firearm safety.

4. Asking the Defendant if he plays Call of Duty

• The prosecution asked Rittenhouse if he played regularly Call of Duty, a video game that involves shooting targets with guns, including an AR-15. Rittenhouse responded that he did but that he knew it was only a video game.
• This line of question was bizarre as playing video games, even first person shooter games, has no relevance to whether a person is more likely to commit murder.

5. Not accepting the Defense’s offer to call a mistrial without prejudice

• Prior to the jury’s verdict, the defense actually offered to have the case declared a mistrial without prejudice. In other words, the prosecution could have gotten another opportunity to put on a less embarrassing case. The prosecution declined and Rittenhouse was subsequently acquitted of all charges.
• After all the mistakes and controversies, one would think the prosecutors would be happy to have a do-over. Instead, Rittenhouse prevailed and there is no chance that he will be tried again for the same offenses because of double jeopardy.

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