Rittenhouse Trial

[Downzero]

FIFY

Self defense is an affirmative defense. If it's not established, the defendant goes to prison. I'm glad you're so sure that your jury will get it right, but if it was my ass on the line, I wouldn't be.

The relevant portion of TCA-39-11-611.
(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

I had to google the letters and numbers to figure out why you thought this was relevant. As far as I know (as regards to Rittenhouse), the crime is alleged to have occurred in Wisconsin (not Tennessee), and as far as I know, there is no witness who will testify that any of this occurred "within a residence, business, dwelling[,] or vehicle...." Does it make you feel smart to bring up some other state's version of the castle doctrine when the issue presented is several shootings that occurred in the street? Because I really don't know why you thought this would have any bearing on the discussion the rest of us are having. If Rittenhouse had smoked a bunch of people in his home, I don't think we would be talking about him being on trial.

 

[fdkay]

Self defense is an affirmative defense. If it's not established, the defendant goes to prison. I'm glad you're so sure that your jury will get it right, but if it was my ass on the line, I wouldn't be.


I had to google the letters and numbers to figure out why you thought this was relevant. As far as I know (as regards to Rittenhouse), the crime is alleged to have occurred in Wisconsin (not Tennessee), and as far as I know, there is no witness who will testify that any of this occurred "within a residence, business, dwelling[,] or vehicle...." Does it make you feel smart to bring up some other state's version of the castle doctrine when the issue presented is several shootings that occurred in the street? Because I really don't know why you thought this would have any bearing on the discussion the rest of us are having. If Rittenhouse had smoked a bunch of people in his home, I don't think we would be talking about him being on trial.

The relevant statutes:
939.48  Self-defense and defense of others.
(1)  A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
(1m) 
(a) In this subsection:
1. “Dwelling" has the meaning given in s. 895.07 (1) (h).
2. “Place of business" means a business that the actor owns or operates.
(ar) If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies:
1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring.
2. The person against whom the force was used was in the actor's dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.
(b) The presumption described in par. (ar) does not apply if any of the following applies:
1. The actor was engaged in a criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time.
2. The person against whom the force was used was a public safety worker, as defined in s. 941.375 (1) (b), who entered or attempted to enter the actor's dwelling, motor vehicle, or place of business in the performance of his or her official duties. This subdivision applies only if at least one of the following applies:
a. The public safety worker identified himself or herself to the actor before the force described in par. (ar) was used by the actor.
b. The actor knew or reasonably should have known that the person entering or attempting to enter his or her dwelling, motor vehicle, or place of business was a public safety worker.
(2) Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
(3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.
(4) A person is privileged to defend a 3rd person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the 3rd person would be privileged to act in self-defense and that the person's intervention is necessary for the protection of the 3rd person.
(5) A person is privileged to use force against another if the person reasonably believes that to use such force is necessary to prevent such person from committing suicide, but this privilege does not extend to the intentional use of force intended or likely to cause death.
(6) In this section “unlawful" means either tortious or expressly prohibited by criminal law or both.

And defense of property:
939.49  Defense of property and protection against retail theft.
(1)  A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person's property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property.
(2) A person is privileged to defend a 3rd person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person's property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
(3) In this section “unlawful" means either tortious or expressly prohibited by criminal law or both.

 

[EddieNFL]

And yes, I'm a lawyer who has tried more (criminal) cases to verdict than everyone commenting in this thread combined.

Which side? How many did you win.

 

[Mike_in_FL]

McGinniss is currently testifying. It looks like the prosecutor is trying to turn this into that the pedo's momentum simply caused him to fall in the defendant's direction, i.e., not a threat, and then the defendant shot him anyhow.

I think the defendant is going to have to clearly state to the jury that he was in fear of his life because the pedo was trying to take his rifle away from him and possibly turn it on him. I don't see any other way of convincing the jury of this, nor do I see much of a defense halfway through day 3.

 

[quietmike]

I had to google the letters and numbers to figure out why you thought this was relevant. As far as I know (as regards to Rittenhouse), the crime is alleged to have occurred in Wisconsin (not Tennessee), and as far as I know, there is no witness who will testify that any of this occurred "within a residence, business, dwelling[,] or vehicle...." Does it make you feel smart to bring up some other state's version of the castle doctrine when the issue presented is several shootings that occurred in the street? Because I really don't know why you thought this would have any bearing on the discussion the rest of us are having. If Rittenhouse had smoked a bunch of people in his home, I don't think we would be talking about him being on trial.

You claimed self defense was near impossible to get w/o the defendant's testimony, in every state.
I told you that you were wrong and gave an example of it happening in a case I was involved with here in Tennessee.
You told me I didn't know what I was talking about, so I posted the black letter law of Tennessee.
I guess you're too much of a pompous ass to admit when your wrong.

 

[Downzero]

I think y'all are talking past each other.

If the question is whether it is impermissible under the rules of evidence and criminal procedure for fear to be presumed based on the circumstances, I am not aware of any such rule barring that inference. In fact, many evidentiary hurdles are often inferred from the circumstances.

If the question is whether it adds to the weight of the evidence and creates a stronger argument if the defendant testifies, then that is another thing and should be obvious that credible direct testimony adds to the weight of an argument which is supported by video evidence.

I think you guys are getting into the classic "weight vs sufficiency" argument.

It is possible to get an inference of a subjective element, just as it is possible to show a person feared being struck by ducking or dodging when a punch is thrown. But it's FAR stronger when someone says the reason he ducked or dodged is that he feared being punched than it is to ask the judge to infer that from the circumstances without any testimony on point. And if an inference of both that a fact happened and that a fact didn't happen are equally plausible, the judge may be inclined not to infer anything from the circumstances.

I only know of a single reported case in my state's history where a defendant even got the self defense instruction without testifying. I'm not saying that is the only case where that has happened, as most cases are not appealed and even fewer result in reported decisions (and I can't say that I've read every single case in my state's history, either). But if that is the only case in my state's 109 year history of being a U.S. state, that should tell you something about how difficult it is to demonstrate that a person acted in self defense in the absence of the defendant testifying. It can be established circumstantially, and many defendants have tried. Hardly any have ever succeeded in convincing the judge that there is circumstantial evidence of their subjective fear without testifying though. It's so rare that it's almost not worth talking about. If a person wants a jury to believe he acted in self defense, he should plan to testify.

 

[dragman]

He's getting off on everything but the gun charges. The first guy is so clear cut there is no chance he gets convicted! The other two jerk offs, While i believe he still is well within his rights at least they can mount an argument for some kind of conviction for those. Don't agree with it but it is what it is.

 

[Downzero]

You claimed self defense was near impossible to get w/o the defendant's testimony, in every state.
I told you that you were wrong and gave an example of it happening in a case I was involved with here in Tennessee.
You told me I didn't know what I was talking about, so I posted the black letter law of Tennessee.
I guess you're too much of a pompous ass to admit when your wrong.

I don't know where you got the idea that one counterexample contradicts that something is extremely rare. I didn't say it was impossible, just extremely rare. I even told you I know of a case where it has happened. That doesn't contradict anything I said, and if you can't understand that what you brought here has nothing to do with what we're talking about and doesn't contradict what I said, it's you who can't recognize you're wrong, not me. And if you think I care about what you think about my opinions (which are based on actually doing, not being a bystander), you can join my ignore list with the other people who think gotcha points are more important than an adult discussion about difficult adult things.

 

[JMGlasgow]

Downzero, I posted an article from here in Cheyenne, WY where it was self defense, no court case, no charges, nothing. It was ruled self defense on the spot.

 

[Downzero]

I think the defendant is going to have to clearly state to the jury that he was in fear of his life because the pedo was trying to take his rifle away from him and possibly turn it on him. I don't see any other way of convincing the jury of this, nor do I see much of a defense halfway through day 3.

He doesn't have to convince the jury--the prosecution has to convince the jury of it not being the case.

But your point is well taken. If he doesn't explain why he shot 3 people, he's going to prison no matter what else happens in that courtroom.

 

[quietmike]

Downzero, I posted an article from here in Cheyenne, WY where it was self defense, no court case, no charges, nothing. It was ruled self defense on the spot.

Yeah, what do you know, bystander? Did you go to law school?

I shall place you on ignore!

 

[Downzero]

Downzero, I posted an article from here in Cheyenne, WY where it was self defense, no court case, no charges, nothing. It was ruled self defense on the spot.

That happens all the time. I have been involved in making that decision literally dozens of times, many times involving police officers who use deadly force. But that has nothing to do with what we're talking about. It isn't the simple cases like that where people end up on trial. It's closer cases where there's a genuine, unresolvable dispute about exactly what happened and who should be held accountable, that go to trial. Like this one.

 

[JMGlasgow]

Yeah, what do you know, bystander? Did you go to law school?

I shall place you on ignore!

WTF!?

 

[...]

McGinniss is currently testifying. It looks like the prosecutor is trying to turn this into that the pedo's momentum simply caused him to fall in the defendant's direction, i.e., not a threat, and then the defendant shot him anyhow.

ah, going with the "i was carrying my knife and tripped and fell into the victim 36 times....it was an accident i swear" defense....

 

[Mike_in_FL]

He doesn't have to convince the jury--the prosecution has to convince the jury of it not being the case.

But your point is well taken. If he doesn't explain why he shot 3 people, he's going to prison no matter what else happens in that courtroom.

Understood. Obviously no experience with this but it looks like the prosecutor is doing a good job of that to me. I wouldn't want to be the defendant. Instead of posting scripture to me, people better start praying for him.

 

[Downzero]

WTF!?

I thought it was funny. I hope you all are laughing, too.

 

[Downzero]

Understood. Obviously no experience with this but it looks like the prosecutor is doing a good job of that to me. I wouldn't want to be the defendant. Instead of posting scripture to me, people better start praying for him.

Honestly, I hope the truth comes out. None of us really know all the evidence, so while it's fun to watch, what happens in court doesn't always look the same in the media. I know because I've been there and seen the story afterward. I sure as hell wouldn't want to be him, no matter how righteous his position.

 

[Downzero]

Many self-defense cases don't involve multiple videos of the incident and by-standers that can offer testimony. Each case is unique and it's a tactical / strategic decision in each case what to do. Certainly, there would be no issue on appeal from a sufficiency of the evidence perspective if/when a self-defense jury charge is given. Everything else is a strategic decision for the attorneys, consultants, client, etc ... as to what would be a winning strategy with the jury.


Generally, "reported" cases are appellate court cases, so it wouldn't necessarily be representative of all trial court cases.

Did you read anything I said or just write a long post without reflecting on anything?

Let's face it: he will testify in this case. No defense attorney is going to tell the jury in opening that his client will testify and then not have him testify (unless he's an idiot). My position goes even beyond that, however. Not only will he testify, he must if he wants to be successful. This isn't a case where it is a difficult tactical decision. He either testifies or he's going to prison.

 

[Downzero]

I don't disagree with that but the point is that it's a tactical decision, not a "legal" decision. I don't think anyone here would argue that if he didn't testify there would be any appellate issue for sufficiency of the evidence on the self-defense jury instruction.

I think in Kenosha, people with similar opinions as you compared to most people in this thread will probably be more likely to be on the jury so that may affect what tactical decisions are made and what counsel the defendant receives about testifying as it is only his decision at the end of the day.

It is both. If he doesn't introduce evidence of some kind that he had the subjective fear necessary to get a self defense instruction, not only will he be convicted, the issue of self defense won't even go to the jury. While that evidence may be able to be established circumstantially, perhaps through a hearsay exception or maybe the State offers his statement into evidence and allows that to go by without objection., it would be extremely risky for him not to do so by testifying, perhaps fatal to the defense entirely. If the jury never hears, somehow, the defendant's position that he was in fear and that is why he fired his rifle at the "victims," there is no self defense at all. If he wants to raise the defense, he must introduce evidence, somehow, of a direct or circumstantial nature, that he had that fear and that's why he fired. And he'll have to do it for each count against him to assert a self defense claim as to that count. This is not just my opinion--it is how an affirmative defense is raised, by presenting evidence that the defendant acted in self defense, as to each element that must be established.

Routinely, defendants want the self defense instruction even where their claim of self defense is not even remotely believable. This gatekeeping requirement often is what prevents that from happening.

 

[Downzero]

Look, an inference of fear when there is video evidence of people charging with weapons is not that complicated ....

You can dance around it all you want but I know that you will not disagree with the statement that when a self-defense jury charge is given in this case, that there is not a legitimate appellate court issue for sufficiency of the evidence on that charge

What it takes to win with the jury is complicated .....

You may think so, and many defendants have thought that. Hardly any have ever been successful with that argument. It has failed in 100% of my cases where it's been attempted.

It's going to be especially difficult in this case as to the two "victims" who did not have weapons. Because to get a self defense instruction when deadly force is used, the person must establish that they reasonably feared unlawful deadly force would be used against them.

I think it's entirely reasonable to use deadly force against a person where the person is armed and fears someone else will take the weapon and use it against him. I also think that is easy to establish if the person is angry, making angry sounding statements, and reaching for your weapon. Those of us who go armed know that there's a gun in any fight we get into--ours.

But if the judge and jury never hear that, good luck establishing it. Watching movies doesn't tell you what a person was thinking. And if there isn't any evidence of what he was thinking when he fired those shots, the defense fails for 100% certain.

The reason there will not be an issue is that he will testify and he must if he wishes to win.

When people are charging at you with weapons and you are on video retreating from them, an inference of fear is not going to be an issue with the appellate courts when the trial court gives a self defense jury charge

That might sound sexy and exciting, but retreating from unarmed people doesn't establish that you feared they would use unlawful deadly force against you.

There may also be, from what I've heard, an issue regarding the initial aggressor situation, but since I'm not watching the trial, I'll have to defer to all of you on that. But if it turns out he was pursuing someone or is somehow found to be the initial aggressor, that may kill his defense, too, or it might result in a convoluted requirement that the jury make a factual finding about who the initial aggressor was and if that resolves against him, the defense will fail.

 

[Downzero]

I will say that I've never met a successful trial attorney that believes they can accurately predict the future with respect to what a jury might do in any individual case. Sure, if a case were tried 100 times, you might be able to give percentages of what the expected results might be but never in a single case.

If you are a prosecutor, which it sounds like you are, it sounds like you would be making an argument to the judge that the elements of self-defense have not been met by the video alone. I don't see how you could make that argument in good-faith but it sounds like you have done it before. It's a common practice, especially by prosecutors, to argue that a jury may make inferences from the circumstances. There is no reason why the circumstances cannot be used for an inference of fear in this case. You've admitted this several times but I'm still unclear about what actual point you seem to think you're making.

If you are a prosecutor, some prosecutors, especially older prosecutors get a warped sense of the law and the rules of evidence. Sometimes prosecutors are assigned to practice in front of a particular judge only so they don't have a broad knowledge of what a wide range of judges might do as they get so focused on one particular judge.

It sounds to me like you're just not internalizing exactly what must be subjectively shown to raise the issue of self defense.

In a few days, when this issue is being argued before the court in this case, my point will make perfect sense. When the self defense instruction is given, it will include an element, a subjective element that requires the state to disprove the defendant's fear beyond a reasonable doubt. It will require the jury to weigh the defendant's fear and view it objectively, to determine whether that fear was reasonable. Exactly what he feared will become the central issue in deciding whether he acted in self defense.

Self defense involves the deliberate choice, based on one's fear, to use otherwise unjustifiable force against other human beings. It would be foolish and stupid to rely purely on circumstantial evidence to establish that. 100% of the people who have tried in my cases have found it more than that though, they've found it impossible because the judge refused to infer the fear they needed to get that self defense instruction.

As to the personal stuff, I know exactly where I stand before the many judges I have argued these sorts of issues in front of. My experience is from doing, not being a bystander.

 

[LawnMM]

He's probably an ambulance chaser pretending he knows as much about criminal law as the podiatrist that stands up on a plane when somebody's having a heart attack and some woman screams, "Is anyone a doctor?!?"

 

[Downzero]

If you think a broad range of judges would make a fact determination based on sufficiency of the evidence not to give a self-defense jury charge when there is a video admitted of the defendant retreating while being charged at with weapons, there is no helping you

there is zero legal reason why fear cannot be inferred from the circumstances alone

Of course not, because you've presupposed the outcome through your spin on the facts. You saw people "charging" at him with "weapons" on the video. How do you establish, even if those things occurred, that he saw it and acted as a result of what he saw? The answer is the side of this that you're ignoring. Even if an angry mob is chasing a person with pitchforks, it is up to the person chased to take the stand and tell the jury that he shot the pitchfork-wielding nutjobs because he thought they were going to beat him to death. And if that doesn't happen, it isn't the role of the judge to infer, even through a video, as to why, in that particular instant, the defendant responded violently.

If you want to establish what the defendant saw and why he responded violently, there's really only one way that happens in the real world, outside of movies, tv, and law school classrooms: the defendant testifies.

Even if I agreed with your point in principle, realistically, juries don't decide hypotheticals. This isn't a law school classroom. If he wants the jury to believe he feared and he responded violently based on that fear, he needs to tell them.

 

[Downzero]

Your issues are with the rules of evidence and with the rules of criminal procedure then.

They do allow inferences from the circumstances. Hundreds of thousands if not millions of defendants have been convicted in this country when the prosecution offered circumstantial evidence only. This case is no different, all of the elements of self-defense can be proven circumstantially.

Whether that is a winning strategy with the jury is for defense counsel and defendant to decide but you were wrong about the law

Also, the judge, not the jury, decides what jury instructions will be given. You continue to conflate jury instructions with a jury verdict. You still won't directly say that the judge would be in error by giving self defense charges on the video alone.

No, my issues are with actually having done it instead of talking about it.

Inferences are allowed, and that has been discussed, but making an inference about what someone thought is not easy. That is why many criminal trials are ultimately all about the mens rea element, because infering intent from actions is hard enough. But inferring perception is another thing entirely. I have never said it was impossible, but many have tried and almost all have failed. It's not just a bad strategy, it is absolutely stupid.

I have never said that the elements couldn't be established circumstantially, so you're arguing with a straw man there. If a lawyer is depending on that, the lawyer is an idiot and ought to serve the prison sentence for the client. Unfortunately that's not how it works.

And absolutely wrong. The jury doesn't even get to consider self defense unless these gatekeeping functions are satisfied. The jury is sworn to decide the case purely based on the evidence and law. And if the "law" of self defense is not given to them, because the issue hasn't been properly raised, which as discussed above is rare (almost impossible) in the absence of the defendant testifying, then they never get to consider that (and such is their oath).

He will testify and he must if he expects to win.

No judge would give the self defense instruction if giving it is opposed based on that video alone unless the judge simply refused to follow the law.

 

[Jigstick]

Kyle is going to get so much pussy after the acquittal

 

[LawnMM]

Kyle is going to get so much pussy after the acquittal

 

[HeavyAssault]

Something I noted from a news story today: Part of Wednesday’s video included an infrared video made by an FBI surveillance plane from almost 9,000 feet above the spot where Rittenhouse shot 36-year-old Joseph Rosenbaum.

This tells you they have known from the beginning the real deal as to what was going on, why, and they let the circus continue.

 

[hollowoutadime]

Rosenbaum shooting.
Malicious prosecution. Prosecutor not acting in good faith. Rosenbaum definitely got what he deserved, what he fought for(the AR). 4 bullets.

 

[The King]

That happens all the time. I have been involved in making that decision literally dozens of times, many times involving police officers who use deadly force. But that has nothing to do with what we're talking about. It isn't the simple cases like that where people end up on trial. It's closer cases where there's a genuine, unresolvable dispute about exactly what happened and who should be held accountable, that go to trial. Like this one.

I would be the first person to say the political aspects of this case are very difficult to resolve.

Additionally, there are many career lawyers here on all sides of the bench and a fair amount of judges. This isn't AR15.com.

If anything, I feel the commentators who think this is going to go well for Rittenhouse are displaying that they still have "Hope For Our Country-TM".

Genuine Hope.

Almost everyone with real deep experience in the courtroom realizes that our Justice System became a Legal System long ago, and is effectively a violent predator that gets to decide for itself who gets eaten and who gets away. If it were a product you were selling, you couldn't legally advertise it as a Justice System.

 

[Downzero]

I would be the first person to say the political aspects of this case are very difficult to resolve.

Additionally, there are many career lawyers here on all sides of the bench and a fair amount of judges. This isn't AR15.com.

If anything, I feel the commentators who think this is going to go well for Rittenhouse are displaying that they still have "Hope For Our Country-TM".

Genuine Hope.

Almost everyone with real deep experience in the courtroom realizes that our Justice System became a Legal System long ago, and is effectively a violent predator that gets to decide for itself who gets eaten and who gets away. If it were a product you were selling, you couldn't legally advertise it as a Justice System.

I don't really think this would be all that political if it happened here. I have sincere doubt that this would have been charged, even in the very blue places in my state.

I agree with your basic idea though, the criminal law is rotten to its core, and it's not getting better. Most of my disagreement with you guys is because of what is, not because of what I wish was.

 

[ChezJfrey]

There are some people that have .gov jobs that operate in good faith but the majority do not.

Prosecutors will, on one hand, jump through hoops and make strained arguments using mental gymnastics about how circumstances allow a jury to make inferences, routinely convicting on only circumstantial evidence.

However, most prosecutors will not operate in good faith and will not apply the law consistently. This is what is to be expected. Prosecutors who routinely convict on circumstantial evidence alone from inferences from the jury also arguing that the circumstances of being charged at with a weapon is not enough to show fear.

This is what is to be expected from prosecutors on gun forums much less flaming lefties, it just gets worse.

I'm finding this case so far to be illustrative of the "strained arguments." @Maser mentioned the other day, that the prosecutor's opening statement was "good." Yeah, it was good...a good story, but the curious thing is that the story does not actually comport with the video evidence we've all seen.

First, he said that Rittenhouse chased Rosenbaum...only if they play the video to the jury backwards. Sure, they have that new infrared, aerial footage that showed some brief time where Rittenhouse was behind Rosenbaum, however Rittenhouse was not in any way actually engaging the distant Rosenbaum; street footage just prior to the catalyzing moment, shows that Rittenhouse was oblivious to any trouble, and Rosenbaum notices Rittenhouse, it is Rosenbaum that yells, then starts chasing Kyle...and at the outset, Kyle keeps yelling, "Friendly! Friendly!" as he's fleeing from Rosenbaum.

Also note that new photos have emerged that Rosenbaum was armed with a heavy chain in several shots, yet the prosecutor kept mentioning that he just carried this innocuous little, plastic bag; he made it a point to describe this bag in detail, with many mentions.

He claims Rosenbaum simply raised his hands when approaching close to Rittenhouse, yet the nearby witness McGinnis, whom the prosecutor acknowledges as being there, stated to police that Rosenbaum yelled, "Fuck you!" and grabbed for the gun.

The prosecutor then mentions that Huber simply grabbed Kyle's rifle, completely omitting that it was Huber that smacked Kyle in the head with a skateboard...but he was "unarmed" per prosecutor.

The prosecutor does admit that Grosskreutz had a pistol, but after his surrender move, he merely "bladed" his body and grabbed for Kyle's gun, except that video and still shots show that he did blade, but he did not grab for the gun, but jumped sideways, using his bladed body to shield the view and the fact that he was pointing his pistol toward Kyle.

The prosecutor also mentions that Kyle did not render aid to Rosenbaum, yet claimed to be a "medic" that night. There is plenty of video evidence showing Kyle rendering aid to people that night, and he did stop for Rosenbaum, post-shooting, but it was McGinnis (also nearby and ran to help Rosenbaum, which the prosecutor already acknowledged) that told Kyle to get out of there, due to the mob; that is in his police statement.

All of these omissions and falsities of the prosecutor's opening narrative are vividly clear in the available video and stillshots widely available, and undoubtedly will be presented by the defense, so I'm not sure @Maser's point that the, "prosecutor is gaining trust," with the jury hold up, as it would become soon clear to the jury, that much of that story is bunk.

In any case, I do believe that @Downzero is probably correct, that in order to satisfy many jurors, he would need to testify to his fear. As long as he's smart enough not to divulge more than the minimum during questions about "why were you there/why did you not leave/etc." and just keep it simple that he wanted to aid if he could, supported their right to "protest." There is also plenty of pre-incident video/interview with Kyle that night that shows this, and he was only armed to protect himself if things should go sideways; turned out to be prescient. A simple mention of how things have gone for other, unarmed people in similar circumstances during that time, where the victims get hospitalized and/or killed, like in Portland, with videos of such all over the internet, should help establish the fear of the mob to anyone that has seen them.

 

[Downzero]

Everyone is going to be inclined to think the prosecution is winning while the prosecutor is putting on his case anyway. Of course the witnesses are going to testify well for the state--they are the state's witnesses. All of your opinions will change when the defense puts on their case. Obviously every defendant doesn't put on a case, but it will happen in this case, because the defense has good evidence and is going to want to show it to the jury, and those witnesses and exhibits are going to be things that the state would be fools to present. For those of you new to this, just stay tuned. The whole tone of the trial will change after the state rests.

 

[The King]

I don't really think this would be all that political if it happened here. I have sincere doubt that this would have been charged, even in the very blue places in my state.

I agree with your basic idea though, the criminal law is rotten to its core, and it's not getting better. Most of my disagreement with you guys is because of what is, not because of what I wish was.

The same is true here. Until you are 50 miles away, then the exact same situation presented to the chain of roles involved in determining if a charge is filed would likely result in charging and a conviction + seeking the death penalty.

In my mind a few things would help our Legal System regain its "Justice" system branding are:
-Loser Pays in Criminal Cases
-Jury Nullification being emphasized as an instruction
-Changing the relationship of self defense to murder charges to reintroduce the innocent until proven guilty aspects of the case. The Prosecution should have to prove it was not self defense, not the defense prove that it was.

That said, most of my experience with criminal cases weren't even close to questionable about what had happened - which is probably one of the things most wrong with our Legal system when it accidentally encounters someone who is innocent. It has been trained to bite, every time.

 

[Downzero]

The same is true here. Until you are 50 miles away, then the exact same situation presented to the chain of roles involved in determining if a charge is filed would likely result in charging and a conviction + seeking the death penalty.

In my mind a few things would help our Legal System regain its "Justice" system branding are:
-Loser Pays in Criminal Cases
-Jury Nullification being emphasized as an instruction
-Changing the relationship of self defense to murder charges to reintroduce the innocent until proven guilty aspects of the case. The Prosecution should have to prove it was not self defense, not the defense prove that it was.

That said, most of my experience with criminal cases weren't even close to questionable about what had happened - which is probably one of the things most wrong with our Legal system when it accidentally encounters someone who is innocent. It has been trained to bite, every time.

"Loser pays" in criminal cases is inconsistent with the entire history of our criminal tradition. The king cannot be sued unless he consents.

Jury nullification is part of the jury instructions in many states. Google "constitutional jury nullification" for details. Indiana is one such state that I'm personally aware of, and I'm sure there are many others.

Self defense is already as you describe. I heard that Ohio was an outlier but I believe that has been changed. Certainly in the other 49 states, the State has to prove a negative beyond a reasonable doubt to defeat a self defense claim. Which is why it is so important that the self defense instruction is never given unless evidence has been presented that a defendant acted in self defense.

And certainly, actual innocence is not a situation our criminal system was developed to deal with at all--because criminal prosecution was extremely rare a long time ago, and the modern world is way better at criminalizing everything and cashing in on it.

 

[TheGerman]

After watching the videos when it happened, I always figured the crux of the issue for the defense was to simply prove that:

- He wasn't the instigator and even though armed, was not being threatening

- While armed, he had a group of people literally circling him and being aggressive (this leads to the gang mentality/overall mentality of people instigating shit with a guy with a fucking rifle)

- The atmosphere for blocks in every direction was violence and gun fire to a point where the police made a green zone and stayed in it. Hell, you can hear rounds in the background during his video.

- The main thing: Had he been successfully put on the ground and disarmed and kept there; what would have happened to him? Given that people were coming at him with weapons (melee and firearms) even after firing (when people generally run the fuck away), that should not be that hard to connect the dots.

I don't see how the existing videos do not basically prove all of these points and pretty easily.

 

[The King]

"Loser pays" in criminal cases is inconsistent with the entire history of our criminal tradition. The king cannot be sued unless he consents.
-Snip-
And certainly, actual innocence is not a situation our criminal system was developed to deal with at all--because criminal prosecution was extremely rare a long time ago, and the modern world is way better at criminalizing everything and cashing in on it.

My desire for loser pays comes into play because of the truth of your last statement - and the abuse of plea bargaining.

Prosecutors would stop trying to bankrupt defendants because their case is weak and they just want a conviction of any sort at any cost, and start doing honest work again.

 

[theLBC]

 

[Downzero]

All very good points.

I think there has been some equivocation going on as what to what goes towards strategic and tactical decisions which I never disputed versus what is allowable under the rules of evidence and criminal procedure as a matter of law, which there were clearly some mistaken beliefs that got sorted out.

It is truly scary, that given a "criminal justice system" that has convicted millions upon purely circumstantial evidence where prosecutors have argued for the jury to make inferences from the circumstances that a case where video evidence shows the defendant retreating while being charged at with weapons, then prosecutors think that "no judge" would give a self-defense jury instruction based on the circumstances. It boggles the mind how someone could not see the inconsistencies and how that is not operating in good faith. It truly is scary the prosecutors on gun forums have made these arguments in court and have taken people's freedom away using these arguments. It gets even more malicious from there.

This is interesting from a sort of faux "focus-group" perspective what people will think will be persuasive to a jury. Opinions represent how a potential juror might think about the case so there really is no wrong opinion in that context. However, there were absolutely some mistakes about what is allowable under the rules of evidence about what was stated earlier about inferences being made from the circumstances for a self defense jury charge.

The rules of evidence and criminal procedure have nothing to do with the elements of a self defense claim.

 

[EddieNFL]

My desire for loser pays comes into play because of the truth of your last statement - and the abuse of plea bargaining.

Prosecutors would stop trying to bankrupt defendants because their case is weak and they just want a conviction of any sort at any cost, and start doing honest work again.

The system has become the punishment.

 

[Downzero]

Lol

They absolutely do. That’s a kindergarten argument to say what evidence is allowed to be shown for the elements of statute have nothing to do with that statute. They are so connected as to be inseparable.


You’re upset because you were mistaken before when you said fear can’t be shown circumstantially and called out on it and you can’t admit you were wrong. You have admitted that you have prosecuted people and convicted them for making self defense claims that you admitted thought were justified but since the defendant didn’t testify, you think there is no way for fear to be shown. You have to live with that. It’s certainly allowable for fear to be shown circumstantially.

It’s absolutely allowable under the rules of evidence and criminal procedure for fear to be inferred from the circumstances. Your decision to prosecute people claiming self defense because they don’t want to testify is your own discretion. It certainly is allowable to show fear circumstantially.

The rules of criminal procedure and evidence are not "statute" in the sense you use the word.

I'm not upset that you don't know what you're talking about.

That inferences can be drawn from evidence is also not part of the rules of evidence. It may very well be part of the jury instructions, but it has nothing to do with rules of criminal procedure (which do things like set deadlines for motions, dictate the order of trial procedure, explain how and when discovery is made) or the rules of evidence (which explain what the jury is allowed to hear, and set rules for how the judge is to decide disputes about that).

You use these words and phrases, but they don't mean what you seem to think they mean.

 

[AngryKoala]

I don't think the prosecution is trying to win this case. Their arguments are lazy and easily countered through witness testimony and video evidence. This case was brought to appease the woke masses.

 

[Downzero]

T

Seriously????? You’ve got to be shitting me?

Most states have a rule of evidence that literally defines what an “inference” is.

I'd love to see an example of that. Most states have rules modeled after the federal rules, and there is no such rule in the federal rules.

 

[Downzero]

There’s no way that you can expect to be taken seriously if you’re argument is that the jury instructions which hinge on which statute the defendant is being charged under are not part of the rules of criminal procedure.

It's not an argument, it's a statement of fact. The substantive law of a case has nothing to do with "procedure." In fact, almost all of law school is teaching people the difference between "substance" and "procedure." The procedural rules tell you how to count days, when and how to present motions, etc. They do not define the law that applies to the case (which is generally the role of a legislature, not the courts).

 

[theLBC]

Bas on Gab: 'Rittenhouse Trial Update: Eyewitness testifies t…'

Bas on Gab: 'Rittenhouse Trial Update: Eyewitness testifies that Rosenbaum told him and Rittenhouse, "If I catch any of you guys alone tonight, I'm going to f***ing kill you."'

gab.com

 

[theLBC]

 

[308pirate]

Self defense is already as you describe. I heard that Ohio was an outlier but I believe that has been changed.

Yes, it was fixed 1 or 2 years ago. Which pissed me off to no fucking end. We still don't have a codified set of conditions under which deadly force can be applied. It's all a hodgepodge of state supreme court decisions.

 

[KZP]

Still not enough to infer fear from the circumstances according to our internet law professor

Kyle would have a much stronger, but not bulletproof defense, if he just let Rosenbaum kill him first prior to shooting Rosenbaum. Hindsight is 20/20 I guess...

 

[308pirate]

Moral of the story is operate like this guy, who is still free (unless he's a fed)

 

[TheGerman]

I dont have facebook or twatter or any of that bullshit.

But if anyone has a way to contact the kid or knows him/the family, tell him that after hes free, I'd be more than happy to have him come out to our facility and show him how to CQB and really run that gun both during the day and at night with night vision.

 

[ChezJfrey]

Kyle would have a much stronger, but not bulletproof defense, if he just let Rosenbaum kill him first prior to shooting Rosenbaum. Hindsight is 20/20 I guess...

Agreed. The prosecutor in this case did say that the three people Kyle shot that night were not shooting at him first, so that does imply that in his mind, you have to let them shoot you first, and if you live, then maybe you can shoot back.