They didn’t miss it at all — national media outlets just tried their best to report around it. We have covered the errors and outright violations committed by Kenosha prosecutors in the trial of Kyle Rittenhouse, and so our readers are aware of what Jonathan Turley describes as the “crash and burn” of the murder case over the past week. Most media consumers have instead been fed a narrative of judicial bias and bizarre attempts to inject race into a case where the accused, the alleged victims, and most of the witnesses are all white.
In USA Today, Turley first lays out all the ways in which prosecutors kneecapped themselves and pushed a bad case:
The prosecution stumbled out of the gate in the trial. Gaige Grosskreutz was the third person to be shot by Rittenhouse. Grosskreutz admitted under cross-examination that Rittenhouse did not shoot him when he had his hands up after their confrontation. He admitted that it was only after he pointed his handgun at Rittenhouse and moved toward him that Rittenhouse fired.
Likewise, a prosecution witness, Ryan Balch, testified that one of the other people shot, Joseph Rosenbaum, said that he intended to kill Kyle Rittenhouse. Other witnesses described Rosenbaum as “belligerent” or “hyperaggressive.” …
The prosecution’s own medical expert, Dr. Doug Kelly, appeared to confirm that the forensic evidence of soot injuries on Rosenbaum’s hand could be consistent with Rosenbaum trying to grab the barrel of Rittenhouse’s rifle when the gun was fired.
It got worse from there, including a glaring constitutional violation by the prosecution when Binger began his cross examination of Rittenhouse by commenting on his decision to remain silent.
The judge correctly tore into the prosecutor. Any first-year law student knows that you cannot comment on the silence of a Mirandized defendant after an arrest under the Fifth Amendment – let alone ignore a court order.
If you followed the case from national media outlets, you probably missed all that. You’d know about Judge Bruce Schroeder’s ring tone and about his dad joke about supply chains, but not about how prosecutors inadvertently established the necessary elements of self-defense from their own witnesses. Turley notes that Wisconsin law provides a sturdy resort to self-defense, one which the prosecution bears the burden of proving false beyond a reasonable doubt. Before the trial, the Associated Press pointed this out:
It allows someone to use deadly force only if “necessary to prevent imminent death or great bodily harm.” And it sets a two-part test for jurors.
First, they have to decide if Rittenhouse really believed he was in peril. Hindsight may show he was wrong. But did he sincerely believe it at the time?
Next, they must determine if Rittenhouse’s belief was objectively “reasonable.” To make that call, jurors will be instructed to consider whether any reasonable person in Rittenhouse’s shoes would have also felt they had no choice but to shoot.
Under that standard, all that the defense needs to do is raise reasonable doubt on those points, not “prove” it was self-defense. By the time the defense opened its case, prosecutors had already established through their own witnesses that the first “victim” had twice threatened to kill Rittenhouse, chased him down the street, and then lunged at him to grab his rifle. The second “victim” beat Rittenhouse with a skateboard, and the third pointed a pistol at Rittenhouse. All this took place in the middle of a riot after Rittenhouse tried to get away.
Does anyone think a jury will have a tough time applying the self-defense standard under those circumstances?
The media’s focus on narrative over substance will produce a very bad end, Turley warns:
Instead, 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. …
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.
Turley’s correct on this point — irresponsible coverage and narrative journalism is likely to have a real cost in Kenosha. That was true about the coverage of the police shooting that touched off the riot as well, when media outlets neglected to focus on the facts that Jacob Blake was not unarmed in that confrontation, that police had a legit felony warrant as well as the domestic dispute to resolve, and that he tried to illegally take his kids in the car in the middle of that confrontation, potentially setting up a hostage situation. Had they reported that incident responsibly, then the riots may never have happened at all, and two people might still be alive today.
Media outlets didn’t learn anything from that. They’re not likely to listen to Jonathan Turley either, unfortunately.
Update: Legal Insurrection has provided great coverage of the trial, and William Jacobson underscores Turley’s point at the New York Post:
With trial evidence inconsistent with the news’ narrative, there could have been a major media mea culpa. Instead, headlines and framing continue that pre-trial narrative, even if inconvenient facts appear deep down in the articles. As the editors who run these stories and draft the headlines know, many if not most people don’t get far beyond the headlines and opening paragraphs.
Thus, NBC News breathlessly headlines a news report about the prosecution’s forensic pathologist testifying that Rosenbaum was in a “horizontal” position, “suggesting the victim wasn’t a threat when he was gunned down.” It’s not until the bottom of the article that NBC acknowledges that same expert testified the wound positioning was consistent with Rosenbaum diving towards Rittenhouse. Left out of the story was his testimony that gunpowder residue was consistent with Rosenbaum grabbing the muzzle of the gun when he was shot, just as Rittenhouse and witnesses said.
The headline highlight of Grosskreutz’s testimony according to a Daily Beast report was that he “tried to surrender” to Rittenhouse. Similar misleading narratives frame the case at the New York Times, Washington Post, USA Today and elsewhere. Reading only these publications, it would be reasonable to believe the original story of Rittenhouse as a shooter run amok, despite the trial testimony to the contrary.
From the inception of the Blake shooting, to the riots and now to the Rittenhouse trial, media malpractice has framed a Kenosha narrative completely divorced from reality.
And that will have consequences, in Kenosha and elsewhere.