It was once said that in war the first casualty is the truth. This principle also applies to the culture wars in which we find ourselves. The trial of Kyle Rittenhouse has become the latest focal point in the conflict between opposing cultural forces, and as a plethora of experts weigh in, the concept of a fair, public trial has taken a back to the political agenda of the talking heads that litter the news cycle.
As one who has spent his entire professional life as an attorney in the courtroom, there is a lot that troubles me about the conversation surrounding the Rittenhouse trial. We are continuously subjected to commentators—former prosecutors, law professors and “defense counsel”—some of whom I know—who themselves are not distinguished trial attorneys and who appear to be presented simply to further the agenda of whomever the program’s talking head happens to be. In the process, disinformation is presented as fact, constitutional trial processes are misrepresented or ignored, and the public’s confidence in a fair trial is undermined.
Here are some of the more significant problems I see:
1. Trials are not Arenas to Resolve Political Disputes.
One of the larger problems I see is the attempt to distort this trial into a referendum between “good and evil” with good and evil defined by whichever side a particularly divisive commentator happens to sit. We are told either that Kyle Rittenhouse was a domestic terrorist that went to Kenosha, Wisconsin, with an assault weapon to kill innocent people or that he was a patriot who left his home to exercise his constitutional right to bear arms in defense of his fellow citizens who were under attack by ANTIFA and Black Lives Matter.
Neither of these narratives are true. Rittenhouse responded to an ill-advised call-to-action and lacked the maturity, training, and life experience to handle the situation he found himself in. This does not mean that he was a murderer. It also does not mean that he was not a murderer. Whether or not he is guilty of a crime depends upon his actions on August 25th
, 2020, and his intent at the time he fired those fateful shots.
What is not relevant to the case is the shooting of an unarmed African American man by police in Kenosha on August 22, 2020, and whether that shooting was justified. It has nothing to do with Rittenhouse’s actions or intent. Rittenhouse’s political orientation is irrelevant as is the political orientation of the individuals he shot. The protests and property damage in Kenosha that occurred after the police shooting is also irrelevant.
The use of force by the police is an important issue in this country and should be debated and acted upon in city councils and state legislatures throughout this country, but existence of a problem (or the absence of a problem) has nothing to do with whether Rittenhouse committed murder. The issues the trial will decide are Rittenhouse’s intent and whether he acted in self-defense. Rittenhouse will be found guilty of murder, guilty of manslaughter or not guilty. That is what the trial is about, and it is the only thing the trial is about.
2. The Media Always Gets It Wrong; Social Media is Worse.
I have had the privilege to serve as either a prosecutor or a defense attorney in over 200 trials, and the one thing I can say with certainty is that trials are long and boring. In an effort to find the drama associated with TV legal shows, reporters tend to pick out a few comments, perhaps a single answer, to focus upon in the news coverage. In so doing 98% or more of what was said is ignored, even by professional, neutral reporters. Talking heads with a political agenda are far worse. It is important to understand when listening to anything that is reported that you are never hearing the full story.
Trials begin and end with the Judge reading pages of legal instructions to the jury. These legal instructions are vital to the trial, but anyone who has sat through more than one trial would rather watch grass grow than listen to a dry recitation of the jury instructions again. The facts that drive a jury’s decision are not always obvious to reporters (or attorneys or judges for that matter), and key evidence is likely to be missed in news coverage.
Reporters are human. Unlike jurors who come to a case with no preconceived ideas about what happened (at least that is the goal), reporters come to a trial with a substantial knowledge base, especially in a high-profile case like Rittenhouse’s. They have reviewed videos, talked to witnesses, and heard commentary from experts outside of the trial. Therefore, when they are listening to the trial testimony, they tend to focus on pieces of evidence that validate what they already believe to be true and ignore other evidence.
This is neither to suggest that reporters are corrupt or act with an intentional political agenda. In my experience, the vast majority of reporters attempt to report trials fairly and accurately. Nor am I suggesting that news reports should be ignored. They are important; however, we must always realize that a three or four minute segment on the news cannot possibly cover the eight hours or so of trial testimony and evidence that was presented in court.
There are also more malignant actors in society: social media influencers, political talk show hosts, radio personalities, etc. These people peddle outrage and thrive off of division they can create. In the Rittenhouse case, they routinely mischaracterize evidence without regard for the truth. They are not to be trusted and should be ignored.
3. The Judge is Attempting to Ensure that Rittenhouse has a Fair Trial.
Many commentators have focused upon the judge and the fact that he “yelled at” the prosecutor as evidence that the judge is prejudiced against the state and favors Rittenhouse. However, a close review of the judge’s comments indicated that he is merely attempting to ensure that Rittenhouse has a fair trial. Ensuring a fair trial is not evidence to bias.
It should first be noted that it is juries in jury trials that determine guilt or innocence, not judges. When I try a jury trial, I try to be professional and courteous to the judge, but I present my case to the jury. If a judge rules against my client on an objection, I make sure the issue is preserved for appeal and continue trying my case. In a jury trial, the jury is more important than the judge. As one who experiences the ire of judges on occasion, I can say that the judge’s happiness is not a matter of major concern to me when trying a case.
More to the point, in reviewing the rulings of the judge in the Rittenhouse case, they seem to be consistent with general principles of criminal law. The defense in this case is obviously self-defense, and the judge has made evidentiary rulings allowing the defense to present that case. This does not mean that the judge believes Rittenhouse acted in self-defense. It only means that the judge has made rulings consistent with the law. Whether Rittenhouse acted in self-defense or not will be decided by the jury, not the judge.
The one thing that all judge’s want is a clean trial without error. Much has been said about the judge admonishing the prosecutor for making a “grievous constitutional error”. As explained in greater detail below, the prosecutor did commit an error. Furthermore, the judge has already ruled against the prosecutor twice on the admissibility of the evidence, and the prosecutor nevertheless went into the prohibited line of questioning without notice to the judge that he intended to do so. In the 200 jury trials I have tried, I have never ignored a judge’s order, nor have I ever seen a prosecutor so brazenly ignore a judge. The admonition from the judge was relatively mild under the circumstances.
4. The Law of Self-Defense is Complex and Fact-Driven.
After hearing some of the evidence in the Rittenhouse case, to me at least, the case is not open and shut from either side. The most serious charges against Rittenhouse are murder. In order to be convicted of murder, the state would have to prove beyond a reasonable doubt that Rittenhouse had the specific intent to kill the victims he shot. Intent is almost always proven by circumstantial evidence, but it requires a jury to look inside Rittenhouse’s head to understand his motivation. While there are circumstances that suggest an intent to murder, i.e., the fact that he travelled to Kenosha with a semi-automatic rifle, certain social media posts, etc., these circumstances are not dispositive. A jury could see Rittenhouse as a naïve and misguided kid motivated by a desire to help others and discount the circumstantial evidence of intent. It will be up to the jury.
The defense of “self-defense” will also give the jury something to consider. In order for self-defense to apply, the jury will have to find that Rittenhouse had an imminent fear of death or grievous bodily harm and that his fear was reasonable. There may be other nuances of Wisconsin law that come into play, but generally speaking, when one is reasonably placed in imminent threat of death or bodily harm, he may use deadly force to protect himself. I have used self-defense successfully in two murder trials and in two aggravated assault trials where citizens used force to defend themselves from the police. It is a powerful defense, and one which juries tend to understand.
The issues for the jury will be at the time Rittenhouse pulled the trigger, was he under attack from his purported victims, did he actually believe that he was in danger, and, if he did believe he was in actual danger, was his use of force reasonable. If he actually believed he was in danger, but his belief was not reasonable, then he could be convicted of manslaughter rather than murder. There is video evidence to support Rittenhouse’s version of events, but ultimately, it will be up to a jury to decide.
My intent is not to suggest guilt or innocence but to sensitize the reader to the complexity of the law and the difficulty of the jury’s decision. Regardless of what the jury decides, it will be a difficult decision, and the jury should not be faulted for its ultimate decision.
5. Rittenhouse’s Decision to Testify was a Reasonable and Probably Correct Decision.
One of the more puzzling statements I have heard from commentators is that a criminal defendant
should never testify in his or her own behalf. While there are times when it is prudent to not have a defendant testify, in most of my cases where a defendant is actually innocent, I encourage the defendant to take the stand. Ultimately, it is always the defendant’s decision to testify or not, but no one can tell an innocent defendant’s side of the story better than the defendant himself or herself.
In Rittenhouse’s case, where the defense is self-defense, the mental state of the defendant is the issue in the case, and who better to explain the defendant’s state of mind than the defendant. Only Rittenhouse could explain what he saw and what he felt, and his testimony is likely the most impactful to the jury. It seems foolhardy to me to raise the defense of self-defense and then rely upon a defendant’s silence. The jury needs to hear from the defendant.
When would I not call a defendant? There are several common scenarios. First, I would not call a defendant if he was going to lie. I would not a call a defendant if he had provided a confession that was suppressed. I would not call a defendant if the defendant had an extensive criminal record that would come into evidence if he or she testified. If a defendant suffers from a mental disability or a personality disorder, I may not call them as a witness. Most of the time, however, I recommend the defendant testify.
Some commentators have suggested that cross-examination from a prosecutor is to be feared. For former prosecutors who make this argument, most are misremembering their cross-examination skills. A prosecutor may be able to trip up a guilty defendant, but an innocent defendant who is well prepared from cross-examination has nothing to fear from the prosecutor.
6. The Prosecutor Violated Rittenhouse’s Right to Remain Silent.
One should not need a law degree to understand that anyone in police custody who is questioned has a right to remain silent. I first learned of the right to remain silent when I was about 12 from watching police procedural on TV. “You have the right to remain silent
. Anything you say can and will be used against you…” When Rittenhouse was arrested, he elected to remain silent. There is no question.
To a layman, or an inexperienced lawyer, it may seem reasonable to ask a defendant, if he testifies, why he didn’t tell the police his story when he was arrested. To ask about the defendant’s decision to remain silent or to comment on his silence is, as the judge indicated, “a grievous constitutional error”, and the courts have made it clear that it is an intolerable error well before the Rittenhouse prosecutor was born. There is no question that the prosecutor was wrong.
So, if this rule is so well established, how could the prosecutor make such an error
? There are several potential explanations. The simplest is that the prosecutor simply did not know the rule. During my career, criminal law has changed from a trial-based practice to a plea-based practice, and it is now possible to find prosecutors and defense counsel who have done hundreds or thousands of plea bargains
but few if any trials. It had led to a deterioration in trial practice skills and a lack of knowledge of constitutional criminal procedure. It is also possible that an advocate simply gets caught up in the heat of battle and makes a mistake.
These explanations would seem strained in the Rittenhouse case, because the specific line of questioning the prosecutor sought to pursue had already been excluded by the judge. It would seem to be difficult for the prosecutor to plead ignorance. The defense has argued that the actions of the prosecutor were deliberate and intended to provoke a mistrial. A prosecutor may sometimes provoke a mistrial to avoid a “not guilty” verdict. It will be for the judge to determine the prosecutor’s motive if there is a conviction.
This does not mean that Rittenhouse gets off or that the judge will grant a mistrial. At the time the judge has taken the motion under advisement, meaning he will decide it later. Often times, the judge will wait until after a jury verdict to decide these types of motions. If the jury acquits Rittenhouse, the judge will not have to decide the motion. The judge could also determine that the prosecutor’s question was fleeting and not impactful to the judge and deny the mistrial motion on that basis. Time will tell.
A jury trial, particularly a criminal jury, is one of the most important events a criminal defendant faces in his or her life, but a jury trial is also of extreme importance to society as a whole. It is a forum where disputes are resolved free from bias or prejudice, and confidence in the trial process is important for our society to function as a society. There are those who seek to undermine this truth-seeking process for their own gains. It is important that we prevent them from succeeding.
Trials are not perfect; no human institution is. I am also not suggesting that improvements in our system of justice cannot or should not be made or be attempted to be made. The common law system of justice has been around for over 800 years with successive generations improving on what came before. We need to continue to do the same with honesty and integrity.