Andrew Branca, Anthony Huber, Gaige Grosskreutz, John Black, Joseph Rosenbaum, Judge Bruce Schroeder, justified deadly force, Kyle Rittenhouse, presumption of innocence, proof beyond a reasonable doubt, self-defense
My sole article on the Rittenhouse case to date is The Rittenhouse Incident: Self-Defense? posted on 09-09-20. Take that link for essential background. With this article, and the trial upcoming in a week, I’ll establish a separate archive for this case. I ended that article thus:
FINAL THOUGHTS: This is yet another politicized prosecution, different from most primarily by the fact none of those shot were black. Yet remember many Wisconsin politicians, including the Governor, are very much on the side of the “mostly peaceful protestors.” Wisconsin politics are very much leftist.
The criteria I’ve provided here are not secret, unknown to prosecutors. They’re the unchanging law. Even The New York Times’ account screams self-defense. Rittenhouse should never have been charged, and almost certainly was in at attempt to suppress further rioting, looting and arson. Appeasement of anarchic mobs never works. Those employing it hoping the mob will kill them last are virtually always killed, and virtually never last.
It is, of course, among the media, a matter of faith that Rittenhouse is a white supremacist murderer, but there is no evidence whatever of either contention, and race was not at all a factor in this case. Even if we believe Rittenhouse had no business there, and particularly not armed, that in no ways diminishes hit unassailable right to self-defense under the circumstances. It is not the responsibility of law-abiding citizens to avoid being where they are lawfully allowed to be while carrying lawful weapons for their protection, rather it is the responsibility of others not to try to kill them. Not doing the wisest possible thing does not deprive one of the right to self-defense.
We can hope reason will prevail, and the charges will be dropped. Any reasonable prosecutor must know charges are an abuse of justice, but where leftism and prosecution mix, the law usually is a distant second consideration when it is considered at all.
Take the many links I’ve provided for additional information—this twitter thread may also be helpful–and I’ll continue to report as necessary.
We begin with an October 5th report from Newsmax.com:
Rittenhouse’s attorneys have argued that he fired in self-defense after Rosenbaum, Huber and Grosskreutz attacked him. They asked Kenosha County Circuit Judge Bruce Schroeder to dismiss the weapon possession charge during a hearing Tuesday.
Corey Chirafisi, one of Rittenhouse’s attorneys, argued that the statute only prohibits minors from possessing short-barreled rifles. Rittenhouse used an AR-style semiautomatic rifle with a 16-inch barrel the night of the shootings, according to Chirafisi.
The only other prohibitions on minors possessing firearms lie in the state’s hunting statutes, which state that children under 12 can’t hunt with guns. That doesn’t apply to Rittenhouse because he was 17 on the night of the shootings, Chirafisi said.
Assistant District Attorney Thomas Binger countered that the Legislature clearly intended to bar anyone under 18 from ‘running around with a dangerous weapon’ and that the hunting statutes don’t apply because Rittenhouse wasn’t hunting on the night of the protest.
Schroeder sided with Binger, but he said he might revisit the question later because the statutes aren’t clear.
The issues here are whether the judge will abide by the letter of the law, or engage in judicial, legislative mind reading. Abiding by the letter of the law will require the judge to dismiss the misdemeanor charge, which considering the multiple felonies that make up the primary case, is little more than charge stacking, trying to make Rittenhouse seem as bad as possible to the jury by the sheer volume or charges, regardless of how applicable or legitimate they might be. Andrew Branca at Legal Insurrection provides the opposite view, where a judge might try to ignore the actual text of the law and instead apply his view of what the Legislature might have intended if they had any idea how to write clearly in English. For what it’s worth, we need to stick with the text. The average person needs to be able to rely on it to know what is unlawful. If it’s not prohibited, it’s permitted. If they can’t know that from reading the text, it’s unconstitutional–void for vagueness–and should not be subject to revision from the bench. If the legislature doesn’t like what they’ve written, they have the means to change it. It’s not the business of judges.
The attorneys also sparred over whether to allow John Black, an expert on the use of force by police, to testify for the defense at the trial. Binger maintained that it wasn’t necessary and that jurors could decide for themselves whether Rittenhouse’s actions were reasonable. Richards argued that Black could help jurors get to the facts.
Schroeder allowed Black to testify during the hearing to get an idea of what he would present at the trial. Black asserted that Rittenhouse maintained control of his gun at all times, tried to move away from Rosenbaum, Huber and Grosskreutz, and only fired when he was attacked. He noted that Huber hit Rittenhouse with a skateboard and Grosskreutz approached him with a pistol in his hand.
The idea that use of force experts shouldn’t be allowed to testify in a self-defense case is a flashing red light and siren indication the prosecution doesn’t have a case and knows it. In such cases, it is not only common, but virtually certain the Prosecution and Defense, if possible, will have their own use of force experts. Such testimony is not only probative and relevant, it’s usually essential. Binger did have his own use of force expert who testified remotely, but he was such a disaster, Binger withdrew him! It’s hard to adequately explain how bizarre a prosecutor withdrawing their own use of force “expert” is. He obviously realized their testimony was going to be torn apart on cross-examination, so obvious are the facts, and so supportive of Rittenhouse’s self-defense claim. This is obviously shaping up to be another backward case, where the prosecution behaves like sleazy defense lawyers, trying to distract the jury with emotional appeals and confuse them with misstatements, exaggerations and hysterics, and the Defense relies on the law and the facts, which just happen to be entirely on their side.
We now turn to another article by Andrew Branca, of Law of Self Defense fame, at Legal Insurrection, commenting on the evidentiary hearing. The article not only provides a link to a transcript of the hearing, but provides useful commentary on the legal issues and norms involved. But to summarize:
The prosecution tried to get a variety of things blatantly prejudicial and having no bearing on the August 25th incident admitted at trial, such things as a video of Rittenhouse stopping a fist fight between his teenaged sister and another girl months earlier, comments Rittenhouse made weeks earlier about rioters looting a CVS pharmacy, photos of Rittenhouse at a bar where some supposed members of the “Proud Boys” were present–there was no apparent proof of any reliationship between them and Rittenhouse–an argument the rifle Rittenhouse used was purchased with stimulus money(?!), and compelling the Defense to release the names of people donating money to Rittenhouse’s defense fund.
All of these motions were either denied, or Judge Schroeder, expressing doubt about their admissibility, reserved judgment for later. That the prosecution is trying to get such obviously non-relevant, and blatantly prejudicial matters before a jury again indicates they know how weak is their case. There are several other issues worthy of your time gentle readers. By all means, take the link.
Fox News reports Gaige Grosskreutz, who was shot in the arm by Rittenhouse and survived, is suing:
Gaige Grosskreutz, 27, was volunteering as a medic for the Black Lives Matter movement when Kyle Rittenhouse, 18, shot him in the arm during the second night of civil unrest in Kenosha on Aug. 25, 2020, following the police shooting of a 29-year-old Black man, Jacob Blake.
Now, Grosskreutz is suing the city of Kenosha, Kenosha County, Kenosha County Sheriff David Beth, retired Kenosha Police Chief Daniel Miskinis and interim Chief of Police for the Kenosha Police Department Eric Larsen, as well as other Kenosha officers, according to the complaint filed in a Wisconsin federal court.
‘Defendants did nothing to stop Rittenhouse’s illegal conduct. They did not arrest him for illegally carrying a gun. They did not disarm him,’ the lawsuit reads. ‘…Instead, Defendants deputized Rittenhouse and other armed individuals, conspired with them, and ratified their actions by allowing them to patrol the streets with deadly weapons and shoot and kill innocent victims.’
The Kenosha County Sheriff’s Office said the allegations against the agency and Beth ‘are false.’
‘The lawsuit also fails to acknowledge that Mr. Grosskreutz was himself armed with a firearm when he was shot and Mr. Grosskreutz failed to file this lawsuit against the person who actually shot him,’ the office said. ‘Sheriff Beth and Kenosha County plan to promptly file a motion to dismiss this case.’
While Fox provides the bare minimum facts of this encounter, they omit the vital context that Grosskreutz approached Rittenhouse and pointed a handgun at him at close range before Rittenhouse fired. Like the other two rioters to attacked Rittenhouse, he chose…poorly. Also omitted is this is an issue already argued before Judge Schroeder, who is going to allow testimony that the police not only gave Rittenhouse and other armed citizens water, but at least one officer expressed appreciation for their presence–it’s on video!–which is something the prosecution very much did not want admitted.
It should be noted the police did not arrest or otherwise remove Rittenhouse or other armed citizens because they were not breaking the law, and because they probably did appreciate having them around, since they weren’t being allowed to enforce the law. Consider this October 26th Cam Edwards article from Bearing Arms:
Next Monday, Illinois teen Kyle Rittenhouse is scheduled to go on trial for the deaths of Joseph Rosenbaum and Anthony Huber along with the wounding of Gaige Grosskreutz last August as riots and looting were erupting across Kenosha, Wisconsin. Rittenhouse’s defense got a big boost this week when the judge overseeing the case ruled that, while prosecutors cannot refer to the three men shot by Rittenhouse as ‘victims’ because it could be prejudicial to the jury, defense attorneys can describe the trio as rioters and looters.
Circuit Judge Bruce Schroeder cautioned the defense team against using pejorative terms during opening statements, but he said they could use them in their closing arguments if the evidence suggested the men engaged in criminal acts.
‘He can demonize them if he wants, if he thinks it will win points with the jury,’ Schroeder said.
In another ruling that could help Rittenhouse’s legal team make the case that their client was acting in self-defense, Judge Schroeder weighed in on what the jury will be allowed to hear about police interactions with Rittenhouse before the shootings took place. Once again, Assistant District Attorney Thomas Binger wasn’t happy with the judge’s decision.
Schroeder also rejected the prosecution’s request to block any evidence that local law enforcement provided water to vigilantes the night of the shooting and thanked them for their presence. In video taken before Rittenhouse fired his gun, officers in an armored vehicle tossed bottles of water to him and other armed civilians who were clearly violating the city’s 8 p.m. curfew.
One officer can be heard on the recording expressing his gratitude to the group.
‘We appreciate you guys,” the officer said. ‘We really do.’
In considering such things, keep in mind Rittenhouse has the presumption of innocence. It’s the prosecution’s burden to prove him guilty beyond a reasonable doubt, and self-defense is an absolute defense. Unless the prosecution can overcome that, it’s all over. These rulings are entirely reasonable and in keeping with the presumption of innocence.
In opting to allow the evidence, Schroeder said he wouldn’t permit the defense to argue the encouraging words reflected the police department’s overall opinion. It could, however, help explain Rittenhouse’s mindset that night.
‘I would not let it be used to prove that the entire police presence on that evening appreciated Mr. Rittenhouse’s behavior or his presence,’ he said. ‘Relevance is another matter.’
Quite so. Edwards illustrates a central issue:
I’ve felt since the beginning that [self-defense and the presumption of innocence] was going to be a high bar for prosecutors, given the video evidence that has come to light so far, which clearly shows Rittenhouse was walking down the street when Rosenbaum began chasing him, eventually attracting a larger crowd which tailed along.
While Mr. Rittenhouse is being pursued by the group, an unknown gunman fires into the air, though it’s unclear why. The weapon’s muzzle flash appears in footage filmed at the scene.
Mr. Rittenhouse turns toward the sound of gunfire as another pursuer lunges toward him from the same direction. Mr. Rittenhouse then fires four times, and appears to shoot the man in the head.
Rittenhouse is being chased by a mob, and hears the sound of a gunshot fired close behind him. As he turns, Rosenbaum reaches for his rifle. Only then does Rittenhouse fire.
Edwards makes other reasonable points:
Was Rittenhouse the aggressor in this case? It doesn’t look like it to me. Was Rittenhouse in fear for his life at that point? Well, he was being chased by an angry mob, and someone had just fired a shot. I don’t think it’s unreasonable to believe that in those moments Rittenhouse was afraid that he was at risk of great bodily harm or even death if the crowd got ahold of him. The same is true for the shooting of Huber, who actually assaulted Rittenhouse with a skateboard before he was shot. Rittenhouse’s wounding of Gaige Grosskreutz could be the most difficult to defend, but use-of-force expert John Black has provided pre-trial testimony supporting Rittenhouse’s actions.
Note that Huber actually hit Rittenhouse, who was on the ground, in the head and neck with a very large skateboard, a blow that could easily have been crippling or deadly. He had not stopped his attack and attempted to take Rittenhouse’s rifle when Rittenhouse shot him.
Bystander video showed that after Rittenhouse shot Rosenbaum, he ran down the street. At one point he stumbled and a man came out of the crowd and kicked him in the face, Black said. Rittenhouse fired at that man but missed.
A moment later Huber hit Rittenhouse in the neck with a skateboard and tried to grab Rittenhouse’s rifle, prompting Rittenhouse to shoot him, Black said. Grosskreutz approached with his hands raised in an ‘I surrender’ motion but he had a handgun in his right hand. He backed up before he stepped forward and lowered the pistol. Rittenhouse then shot him in the arm.
Black said Rittenhouse maintained control of his rifle throughout and didn’t just spray the crowd randomly with bullets.
As I noted in the original article, and after viewing video of the incident, though I don’t know that I’ve seen all available video, this very much appears to be a classic case of self-defense. Rittenhouse was lawfully present, and attacked by an angry and violent mob, some of who actually tried to wrest his rifle from him, repeatedly finding himself on the ground and under assault, and even approached by a man who pointed a handgun at him from close range, Rittenhouse used appropriate force to save his life. He was, particularly considering his age, remarkably calm and careful. The prosecution’s motions thus far indicate they know it too, but have strong political motivation to seek Rittenhouse’s scalp.
As Black testified, Rittenhouse was only trying to escape. In fact, he was desperately trying to get to the police, who were not then doing anything to stop the riot. When he reached them, he tried to turn himself in–hardly the actions of a cold-blooded killer–but they had other things on their minds. He showed no hostile intent and did not fire indiscriminately, only at people who represented an imminent threat of serious bodily injury or death. There is no known indication Rittenhouse was looking for trouble. Rather, he carried medical equipment to provide help to others.
It will be interesting to see to what degree Judge Schroeder allows information about the criminal histories of the three men shot by Rittenhouse into evidence. All had histories of violence; none were angels by any stretch of the imagination. Another factor that will likely be helpful to the defense is Rittenhouse’s attackers were all white. The media will surely try to inject a racial angle, but there isn’t going to be one in evidence. The first week of trial will mostly consist of choosing a jury, but I’ll continue to report as information becomes available.