The Rittenhouse Trial - A Zero Sum Game with No Winners

Over the last few weeks, we have watched the trial of Kyle Rittenhouse unfold in my hometown of Kenosha, Wisconsin.?As I have reviewed the summaries of the testimony, the video evidence, and the public commentary surrounding the same, it seems to me that the Rittenhouse trial only functions to confirm just how damaged our justice system and public dialogue has become, especially in high-profile, politically-charged criminal cases.?Although we can expect that the jury will render its verdict in the days to come, I have sadly concluded that all interested parties have already lost and, at this point, the verdict is really just to decide who loses most. ?

The case really needs no introduction for anyone who has an internet connection.?Moreover, the core facts surrounding Rittenhouse’s conduct are largely undisputed.?Rittenhouse, then a 17 year-old young man, traveled to Kenosha in response to riots and looting that were occurring in the city due to a previous police encounter with a suspect named Jacob Blake in which Blake was repeatedly shot by an officer at the scene.?The Kenosha riots (gently reframed by some as mere “protests”) caused extraordinary economic damage to innocent businesses and residents who had nothing to do with the events of the Blake shooting.

On the evening of the events in question, Rittenhouse was in Kenosha (by his account, to provide medical support, help extinguish fires, and protect private property from looters/rioters) and armed with an AR-15 rifle.?The events of the night escalated, and Rittenhouse ultimately shot three individuals who were also present during the chaotic protests.?As to the first of these alleged victims, Joseph Rosenbaum, the undisputed record shows that he (Rosenbaum) had screamed “F*** YOU!” at Rittenhouse, threw a plastic bag at Rittenhouse, and began pursuing Rittenhouse in a menacing manner while Rittenhouse attempted to flee from him.?Rittenhouse ultimately turned and fired four times at Rosenbaum, hitting his groin, hand, thigh, head, and back.

A bystander attempted to provide Rosenbaum first aid while Rittenhouse stood by for approximately thirty seconds.?Rittenhouse did not check on the injured man or offer his first-aid kit to help save him. “Call 911!” the bystander yelled.?However, Rittenhouse called a friend instead as he sprinted out of the vicinity, stating “I just shot somebody!”

As Rittenhouse ran down the street towards police, nearby bystanders announced that Rittenhouse had shot someone.?A demonstrator pursued Rittenhouse and hit him in the back of the head.?As Rittenhouse tripped and fell, another man kicked at Rittenhouse.?In response, Rittenhouse fired twice from the ground, but missed his target.?Another demonstrator struck Rittenhouse in the head or neck with the edge of a skateboard and tried to grab his rifle; Rittenhouse responded by shooting him in the heart.?A third demonstrator approached with a handgun pointed at Rittenhouse; Rittenhouse shot him in the arm, nearly blowing it off.

Unbelievably, officers allowed Rittenhouse to leave the scene without even questioning him, much less detaining him or taking him into police custody, even after being advised by witnesses that Rittenhouse had shot demonstrators that evening.

The case has become a key battleground in the minds of prominent conservative and liberal commentators alike.?In the eyes of conservatives, Rittenhouse is the dutiful citizen, lawfully armed under the Constitution and out to provide aid to injured persons and protect private property against the thugs and hooligans wreaking havoc in Kenosha.?To the left, Kyle Rittenhouse is a white supremacist, a vigilante, and the quintessential example of white privilege – a white man who executed two people in open public with a military-grade assault rifle and wounded a third. Yet, remarkably, he was allowed to walk away completely unhindered and untouched under circumstances that a person of color almost certainly would have been arrested, if not killed on the spot. On this view, Rittenhouse went out that night looking for trouble and, indeed, hoping for it.

As with all things touched by politics, there is no intellectual honesty left in the conversation.?As such, our justice system is threatened with all sorts of illegitimate and undue pressures which contaminate it and impede it in the performance of its most essential function—i.e., allowing cases to be decided solely on the evidence.

The first loser in the case is Rittenhouse himself.?In a case where the rest of Rittenhouse’s life is at stake, one has to wonder if it is possible for him to receive a fair trial at this point.?He has been the subject of significant media criticism, with claims being made as to his character that could easily sway a jury to find Rittenhouse guilty based on the bandwagon mentality that he is an overtly bad person (i.e., a racist and a vigilante).?The widespread social pressure and commentary of this nature is truly toxic in nature, and it threatens to dismantle the burden of proof and presumption of innocence that are meant to govern the standard for conviction in criminal cases.?Indeed, Rittenhouse risks entering the courtroom with a presumption of guilt, rather than innocence, due to the salacious and irresponsible accusations being made by commentators who wield large megaphones and find themselves safely removed from cross-examination.?

The second loser in this case is the prosecution. According to defenders of Rittenhouse, such as Ben Shapiro and Tucker Carlson, the prosecutor should be disbarred for even having brought the case because the evidence leads only to one conclusion – i.e., that Rittenhouse acted in self-defense. By delegitimizing the prosecution in this regard, these commentators are sowing the seeds of mass cynicism and doubt in the ability of prosecutors to faithfully discharge their roles in the judicial system.?Should Rittenhouse ultimately be convicted, the fallout in this respect would be substantial. Rather than trusting that the justice system had done its job, the public would be inundated with (and even persuaded by) a narrative alleging that the prosecutor was acting at the whims of the woke mob.?Far from being a criminal, Rittenhouse is an the innocent victim caught in the left’s crosshairs.?His conviction would be portrayed as an affront to the rights of gun owners and property owners—the hallmark of a justice system which favors looters and robbers over law-abiding citizens.

I could not disagree more with his rhetoric. Although I do think the prosecution engaged in improper conduct during the course of the trial, it seems to me that there was more than sufficient evidence to initiate the prosecution in the first place. Here, a critical piece of evidence was excluded from the trial. Namely, in a video filmed several weeks before the events in Kenosha, Rittenhouse can allegedly be heard remarking that he wished he had his AR-15 on hand so that he could shoot shoplifters. The trial judge in the case, Judge Schroeder, excluded that video evidence from trial and I believe mistakenly so.

To me, such a statement is compelling evidence of malicious and even murderous intent directed toward a particular demographic, one which the jury might have found translated to the “victims” in this case. If such malice is present, and I believe the video is sufficient evidence to infer that it was, one might reasonably believe that Rittenhouse entered the fray on the night in question with the intent of causing bodily harm to demonstrators and that his flight from Rosenbaum was mere posturing in the sight of other witnesses to create plausible deniability of his true intentions. Of course, that is not a necessary conclusion from the evidence, but it is a reasonable one and a reasonable belief of success on the merits is all that is needed to ethically initiate a criminal prosecution. This conclusion is underscored by the fact that the prosecution would not have known at the time that it initiated the prosecution that Judge Schroeder would exclude this important evidence of intent.

A second, critical piece of evidence in the case is Rittenhouse’s actions after shooting Rosenbaum. Specifically, as Rosenbaum lay dying from his injuries, Rittenhouse had the means to provide both direct medical care (his first aid kit) as well as summon first responders (via his cell phone). Yet, he did neither—despite the insistences of a bystander who immediately attempted to provide first aid to Rosenbaum and who yelled at Rittenhouse to call 911. Rather, Rittenhouse merely stood over Rosenbaum doing nothing as Rosenbaum bled out for approximately 30 seconds.?He then took flight and called a friend (instead of law-enforcement authorities or EMS providers).

This type of evidence is what the law calls “circumstantial evidence.” Because criminals are not typically in the business of admitting they are criminals, there is usually no “direct evidence” of criminal intent or wrongdoing.?For that reason, the law allows the jury to look at the circumstances (i.e., circumstantial evidence) surrounding a defendant’s conduct and make reasonable inferences about what the defendant’s intent or state of mind might have been at the time of the conduct issue.

It seems to me that one reasonable explanation of Rittenhouse’s conduct after shooting Rosenbaum is that it was his dominant intent all along to kill Rosenbaum rather than defend himself. According to his own testimony, Rittenhouse had immersed himself in the chaos to provide first aid to injured persons. Yet, when confronted with Rosenbaum’s grievous injuries, Rittenhouse did exactly the opposite and instead chose a course of action that would delay the provision of life-saving care to the person he had just shot multiple times. In my opinion, a jury could reasonably infer from such conduct that Rittenhouse’s actions were motivated by an intent to kill rather than defend himself (otherwise, he would have done whatever was possible to save Rosenbaum after the fact). To that end, I also think the number of times that Rittenhouse shot Rosenbaum could be evidence the jury would consider on that point – namely one wonders how many shots from an AR-15 Rittenhouse could have reasonably believed were necessary to incapacitate the approaching threat.?Whatever that threshold is would be for the jury to decide, but if Rittenhouse’s act of shooting Rosenbaum four times exceeded it, the jury would be entitled to infer that his objective during the encounter with Rosenbaum was something more than merely defending himself.

Of course, as with the video evidence mentioned above, these are not necessary conclusions from the circumstantial evidence.?A jury might conclude that Rittenhouse was simply a young kid who was in shock in the moments after the shooting and that he froze. That would also be a reasonable interpretation of the evidence. My point here is not to argue a side, but simply point out that anyone who claims the case never should have been brought in the first place is templating their interpretation of the evidence on to that conclusion.?That is not the right analytical framework.?Rather, we need to seek a full inventory of all reasonable interpretations that could be made from the evidence.?I genuinely believe the evidence can be reasonably interpreted to sustain a finding of guilt or innocence.?And, for that reason, I believe the prosecution is one of many losers in this case.?It is inexcusable (and, indeed, despicable) that so many high profile commentators (with an incomplete and biased analysis of the case) have wrongly castigated them and accused them of bringing a case based on political motive rather than a good faith desire to fulfill their prosecutorial obligations.

This postures our discussion nicely to turn our attention to whom I believe is the third loser in the case—Judge Schroeder (and, in a wider sense, the judiciary in general).?Judge Schroeder has been the subject of significant public vitriol for his conduct during the trial, most of which (with the exception of the evidentiary ruling I mentioned above—which I do believe was wrong) is entirely innocuous and in any routine criminal case likely would not have raised any eyebrows.?But his every move and word is now a matter of national import (and criticism) by commentators of all kinds.?He has been accused of being a Trump sympathizer, a racist, and a conservative Manchurian candidate on the bench. If Rittenhouse is acquitted, there will no doubt be widespread public outcry that Judge Schroeder improperly pressed his thumb on the scales of justice to secure that result.

This would be all too emblematic of how judges are perceived on a larger scale in the present day.?In the current public dialogue, jurists are not regarded as objective arbiters and expositors of the law.?Rather, any time a disagreeable result is reached, they are labeled as partisans who seek to pervert the justice system and impose their own will and agenda upon it. Should this view of our courts truly take hold in society, the results for the long-term civil health of our nation would be devastating. The public needs to believe that there is equal justice under the law for citizens to be properly incentivized to abide by and maintain loyalty to the rule of law. Once the citizenry has been convinced that the judiciary is corrupt and biased, it only follows as a matter of course to conclude that the entire governmental system is broken because the oppressed have no place to seek a redress of grievances and the system must therefore be torn down.

The final loser in this process are the citizens summoned to serve on juries every day in this country. Fortunately, the vast majority of them will not be cursed with attempting to handle a high-profile case and their jury service will be interesting, but uneventful. However, in cases like the Rittenhouse case and other high-profile cases, the polarized and incendiary dialogue surrounding such cases is unavoidable. It seems impossible that a jury could insulate itself from that rhetoric, certainly prior to being empaneled, and even during the course of the trial.?And, where a trial becomes associated with politically significant terms such as “racism,” “white supremacy,” or “Second Amendment rights,” as well as other inflammatory subjects, jurors are at heightened risk of having their personal safety become a consideration in their decision rather than looking only to the evidence itself to guide their verdict.

For example, during Derek Chauvin's trial, one juror acknowledged feeling a tremendous pressure to convict and a fear for her safety if she did not. That is not to say the jury reached the wrong result in that case, but true justice is not merely a result. It is the right result for the right reason. Due process demands that the defendant be convicted on the evidence and the evidence only, and if a defendant is convicted because a juror rightly fears for his or her safety rather than the merits of the evidence, there has been a miscarriage of justice even if the result itself is one that was objectively warranted under the circumstances. The reason for this is quite simple. ?If it becomes commonplace to secure jury results by exerting undue pressures and fears upon the jury, there will eventually be cases in increasing number in which the wrong result is reached for those very reasons. That, indeed, would represent the bleakest state of affairs – a sort of mob rule in which public opinion rather than the rule of law dictates what happens in the courtroom. That evil must be avoided at all costs and we will all lose if it is not.