Closing arguments, and then some: Judge drops weapons charge against Rittenhouse; Update: Win on self-defense instruction?

It’s all over but the shouting in Kenosha — shouting outside the courtroom and inside it as well. Closing arguments begin today in the murder trial of Kyle Rittenhouse, with jury deliberations expected to begin as early as this afternoon.

They will have one less charge to consider after Judge Bruce Schroeder dismissed a weapons charge that seemed like the prosecution’s only clear potential win:

Ahead of closing arguments and jury deliberations in the Kyle Rittenhouse trial in Kenosha, the judge dismissed an illegal gun possession charge against the teen.

While discussing the instructions that will be given to the jury on Monday, Judge Bruce Schroeder dismissed a count of possession of a dangerous weapon by a person under 18 against Rittenhouse. He has said the Wisconsin law was poorly written, and that the shorter barrel size of the rifle Rittenhouse carried meant he didn’t violate that law.

The dismissal of the gun charge against Rittenhouse leaves five counts for the jury to consider, ranging from intentional homicide to recklessly endangering safety.

It’s not in question that Rittenhouse carried a “dangerous weapon” in Kenosha, nor that he was under 18 at the time. So why drop the charge? If it looks a bit like judicial activism at first blush, Legal Insurrection’s Andrew Branca had long wondered why prosecutors charged it in the first place:

The first question is, upon close examination does it appear that evidence exists to support probable cause to believe that Kyle Rittenhouse even violated this gun law at all?

More specifically, the defense is arguing that a plain-English reading of the statute rather obviously excludes the conduct of Rittenhouse on the night of August 25, 2020. Accordingly, the defense filed a motion with Judge Schroeder to have this particular misdemeanor charge dismissed, and the arguments made on October 5, 2021 around this motion are what we cover here in today’s content. …

For what it’s worth, Assistant District Attorney Binger himself appears to largely concede that that § 29.304 does not apply to Rittenhouse, for the reasons stated by the defense—by its own plain-English reading § 29.304 does not apply to 17-year-olds, and one cannot be found to be in “non-compliance” with a statute that doesn’t apply to you in the first place.

He does, however, hedge his bets by arguing that § 29.304 was intended to apply only to hunting activities, and Rittenhouse was not hunting, so Rittenhouse should qualify for the exception of § 29.304—but this is not an entirely coherent argument.

As for the second hunting-related statute, § 29.593, non-compliance of which could make Rittenhouse subject to misdemeanor conviction under § 948.60, the defense argues that § 29.593 applies only to hunting activities, that Rittenhouse was clearly not engaged in hunting activities, and therefore § 29.593 does not apply to Rittenhouse any more than does § 29.304. In short, once again one cannot be found to be in “non-compliance” with a statute that doesn’t apply to you in the first place.

At the time, Schroeder seemed skeptical about the defense argument about the gap in the statutes. Clearly, though, Schroeder has rethought the issue and decided to stick with a strict application of the plain-English text of the statutes. It was ADA Thomas Binger who wanted Schroeder to engage in a little judicial activism and ignore the clumsy structure of the statute under which Binger charged Rittenhouse with the weapons charge.

After helping Rittenhouse establish the necessary elements of self-defense through their own witnesses — and direct testimony! — Binger now has to rely on a provocation argument to negate it. Apparently that has its problems, too; after Schroeder allowed some grainy photos and videos into evidence for Binger’s argument, he tightened the leash during jury instructions, Branca notes in his live blog:

Big wins for #KyleRittenhouse defense on final jury instructions on:

  • McGinnis reckless endangerment charge
  • Gun possession charge (dismissed entirely!)
  • Provocation charge (State took a big hit here!)

Not being an attorney (and having missed those instructions), it’s not clear what Branca sees here as “a big hit.” Getting the photos and video into evidence was a clear win for Binger, one that Rittenhouse’s attorneys fought hard to prevent. It’s also clearly a fallback position for Binger, as was his effort to allow the jury to consider lesser included charges — a position usually reserved for the defense.

The Associated Press acknowledges the uphill battle that prosecutors created for themselves with the jury:

Rittenhouse testified that he feared for his and life and acted in self-defense. Prosecutors have contended he was the aggressor that night and created a dangerous situation by showing up with a rifle.

But some of the prosecution’s own witnesses — and a wealth of video — largely supported his claims of self-defense.

Perhaps in recognition of that, prosecutors asked the judge to let the jury consider several lesser charges if they acquit him on the original counts. Schroeder agreed to do so Monday.

In his instructions to the jury, the judge said that to decide that Rittenhouse acted lawfully in self-defense, the jury must find that he believed there was an actual or imminent unlawful threat to him and that the amount of force he used was reasonable and necessary.

Among the prosecution witnesses was videographer Richie McGinniss, who testified that Rosenbaum chased Rittenhouse and lunged for his rifle right before Rittenhouse shot him. Ryan Balch, a military veteran in Rittenhouse’s group that night, testified that Rosenbaum threatened to kill Rittenhouse and others if he got them alone.

The self-defense evidence against the murder charges seems well established now. There is a risk for Rittenhouse on reckless endangerment for having fired shots near McGinniss and at someone called “jump-kick man,” which self-defense might mitigate:

Judge: That defendant maybe allowed to use force re: Rosenbaum, doesn’t mean any endangerment re: McGinnis was lawful. Defendant does not have privilege of self-defense with respect to McGinnis.

Judge: However, you must consider law of self-defense in deciding if conduct re: McGinnis was criminally reckless.

This should serve as a reminder for those who carry that every single shot could result in prosecution. Even if elements of self-defense can explain all the others, the last shot could still put you in prison.

That seems unlikely in this case. Rittenhouse did a good job in his testimony, so good in fact that Binger shifted his strategy to provocation, which he hadn’t even mentioned prior to Rittenhouse taking the stand. Binger and his team mainly established the necessary elements for self-defense through their own witnesses (especially McGinniss). The surviving party, Gaige Grosskreutz, not only admitted lying about the encounter to police but also admitted that Rittenhouse didn’t fire until Grosskreutz pointed his own pistol at Rittenhouse. All of this got caught on video, including Rittenhouse’s attempt to flee the dispute with Rosenbaum.

Still, juries do unpredictable things. Even if this jury convicts Rittenhouse on anything, Binger’s attempt to impeach Rittenhouse for relying on his right to remain silent while in custody is a basic and very reversible error. Obviously Rittenhouse doesn’t want to have to rely on an appeal, but it’s clearly going to be available if necessary.

Anyway, stay tuned. If the jury gets this in the afternoon, we might have a decision by tonight or tomorrow morning. If it goes much longer than that, get ready for some sort of middle-ground decision.

Update: Branca sees a big win for Rittenhouse at the end of the tussle over jury instructions. After a lengthy debate, Schroeder has adopted a new instruction to the jury to consider self-defense on every point before any other deliberation:

Judge: With any individual count, with multiple possible verdicts, if decide the defendant acted lawfully in self-defense, done, can return not guilty with no further deliberations.

Binger had wanted the instruction to say that the jury should then consider lesser included charges at that point and reconsider self-defense on each. With the prosecution more or less providing the self-defense elements themselves, that does look like a pretty big concession to the defense.

Not to mention, although of course Schroeder does in his instructions, that the prosecution has to pierce self-defense beyond a reasonable doubt. The defense does not have to “prove” self-defense. Binger provided enough reasonable doubt on each of these counts through which a juror can drive a Mack truck, but …. we’ll see.

Update: I’m not live-blogging the trial or the closing arguments, and in fact I’m pretty much figuring that there won’t be much in the way of substantive news from this phase of the trial. However, Townhall’s Julio Rosas is reporting live from the trial, so follow him on Twitter. (Branca’s continuing his live blog, too.)

This, however, got my attention:

Carrying a firearm does not in itself “create danger” and does not preclude a claim of self-defense. As for the other point:

Furthermore, the autopsy confirmed McGinniss’ testimony that Rosenbaum tried to grab the gun while lunging at Rittenhouse. I suspect this will open up a line of argument for the defense that impugns the integrity of the prosecutors, because these claims certainly undermine it.