Last week I said that the Kyle Rittenhouse trial wasn’t going well for the prosecution. Since then, Rittenhouse testified in his own defense without any serious missteps, and a minor gun charge against him was dismissed. His self-defense arguments are still generally strong.
But I wouldn’t bet on a full acquittal with complete confidence. There’s a wide buffet of options available to the jury if it wants to convict, a single dissenter can hang the jury and set the stage for a retrial, and the prosecution has made a late-in-the-game effort to advance a theory that Rittenhouse provoked his first assailant and thus forfeited his privilege of self-defense.
Rittenhouse faces five charges pertaining to the eight gunshots he fired, with “lesser included” versions of two charges available if the jury isn’t sold on the bigger accusations. While we’re waiting on them to render a verdict, let’s game out the options a little.
To acquit Rittenhouse, the jury would most likely accept the teen’s own version of events, or at least believe this account had not been disproven beyond a reasonable doubt. In Wisconsin, civilians may use lethal force in self-defense if they reasonably believe it’s necessary to stop an imminent threat of death or serious injury.
In his telling, Rittenhouse was running to put out a fire when he was confronted by an armed man, Joshua Ziminski. As he tried to retreat from the situation, a second man — Joseph Rosenbaum, who allegedly had threatened to kill Rittenhouse previously that evening — started chasing him. Rittenhouse fled, briefly turning to point his gun at Rosenbaum to deter him, but the latter continued the chase. Then, when Rittenhouse heard a gunshot behind him (fired by Ziminski) and could run no farther owing to some cars and a crowd of people in front of him, he turned around to find Rosenbaum charging at him and lunging for his gun. Fearing Rosenbaum could take his gun and use it against him, Rittenhouse fired four times in rapid succession, killing Rosenbaum.
Then, Rittenhouse ran toward the police barrier to turn himself in, but an angry mob chased him and he was struck from behind twice, causing him to become lightheaded and fall down. Three different people closed in on him and similarly posed a threat — one kicked him in the head, one hit him with a skateboard and grabbed his gun, and one advanced with a handgun — and Rittenhouse fired at them as well, four rounds in total, causing one fatality and one severe injury.
Many of the physical details of this narrative, of course, are captured on video. But there are reasons for the defense to be nervous.
For starters, many people (yours truly very much included) think Rittenhouse made an incredibly bad decision to head armed to the scene of a likely riot at the age of 17 that night — and while that isn’t legally relevant, jurors are human beings, and it may predispose them to judge Rittenhouse harshly in other ways too. Rittenhouse certainly won’t get the implicit deference that, say, a police officer would get if he used force after being deployed to the scene of a riot in uniform.
Further, the prosecutors argue that Rittenhouse provoked Rosenbaum and thus should lose his self-defense privilege. They claim a blurry drone video depicts Rittenhouse pointing his rifle at Ziminski right before the initial chase, an illegal act that in turn provoked Rosenbaum. (The defense counters that, if you interpret the video that way, Rittenhouse is aiming the gun left-handed, when in fact he’s right-handed.)
To prove provocation under Wisconsin law, however, prosecutors have to show either that (a) Rittenhouse provoked someone with the intent of using the provoked behavior as an excuse to shoot them, of which there is no evidence; or (b) that he did something unlawful to provoke an attack and then subsequently failed to retreat to the extent possible before using lethal force. The fact that Rittenhouse ran away from Rosenbaum, fired only when Rosenbaum closed in, and ran away from the later mob as well before falling down, is solid evidence against that theory, even if we assume that Rittenhouse in fact pointed the gun as alleged. The prosecution had to argue, basically, that Rittenhouse should have done a better job of running away.
Aside from the provocation argument, though, if the jury decides that Rittenhouse didn’t reasonably fear for life or limb when he took even one of those eight shots, he’s in trouble. (You can see a simple overview of the specific charges here if you feel like heading down the rabbit hole of Wisconsin homicide law.) Just one guilty verdict could put him in prison for a long time.
During closing arguments, for example, prosecutor Thomas Binger emphasized that Rittenhouse fired four times at Rosenbaum; the first shot fractured his pelvis and incapacitated him, while the “kill shot” that struck Rosenbaum in the back came (slightly) later. Binger also suggested that the people attacking Rittenhouse wanted to disarm him because they saw him as an “active shooter,” not hurt or kill him, and therefore Rittenhouse couldn’t have reasonably thought they were a real threat. Later, prosecutor James Kraus contended that Rittenhouse should have fought the unarmed Rosenbaum without resorting to his gun. I didn’t find these arguments compelling, but a jury (or a member of it) might.
Lastly, a word on the gun charge that was dismissed yesterday morning, which ultimately happened because Wisconsin’s law is incredibly poorly worded. Lawmakers apparently meant to provide a hunting exception to the rule that minors can’t go armed with dangerous weapons . . . but in writing the law, they didn’t specify that a minor had to actually be hunting for the exception to apply, and they used the word “and” in a place where they probably should have used “or.” Wisconsin should reword the law, unless the state wants it to be legal for 17-year-olds to open-carry AR-15s.
For the record: It shouldn’t be legal for minors to open-carry AR-15s. Minors shouldn’t grab guns and head into volatile situations that don’t concern them. For that matter, teenagers shouldn’t do stupid things such as fantasize about shooting at shoplifters, walk around in a “FREE AS F***” shirt when facing homicide charges, or pose for pictures in bars with Proud Boys supporters — prejudicial allegations the judge kept away from the jury.
The public, of course, is under no obligation to ignore such behavior when forming an opinion of the guy. He’s a naïve kid who did something incredibly stupid and got in over his head, not someone we should be holding up as a hero. We should just hope he learns from this experience and grows up.
Legally, nonetheless, Rittenhouse’s defense has made a strong case. But juries are unpredictable, and this one has numerous routes to a guilty verdict of some kind or another. We’ll see what they do.
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Robert VerBruggen is a fellow at the Manhattan Institute.
This piece originally appeared in National Review Online