The closing statements are now done in the Rittenhouse trial, and the jury will now begin deliberations—although not until tomorrow morning. That means, of course, that we’ll be launching or VERDICT WATCH blog post in the morning at Legal Insurrection, so keep your eyes there for breaking news on a verdict.
And with that, let’s dive into the unpleasant task of noting the poor closing argument presented by the defense in this case.
Defense Delivers Disappointingly Weak Closing Argument
This is an unpleasant task because on the legal merits Kyle Rittenhouse ought to be acquitted by a unanimous jury on every one of the five felony accounts against him, with the State having failed to prove provocation beyond a reasonable doubt and having failed to have disproven self-defense beyond a reasonable doubt.
And that may still happen. I hope it does. He deserves those acquittals.
That said, I’m well aware that sometimes defendants who deserve acquittal end up getting convicted, regardless. There might be many reasons that could occur. One of those reasons is a weak legal defense, and particularly a weak defense in the critical closing argument, the last opportunity the defense team has to plead their narrative of innocence to the jury.
If the legal defense effort, particularly the closing argument, is as close to perfect as a skilled attorney can hope to deliver and the client gets convicted regardless—well, at least from my perspective as a lawyer, at least I know I did the best I could, and it didn’t go sideways because I could have done more.
When an effort far short of perfect is delivered, again particularly in closing argument, and the client deserving of acquittal gets convicted, then one is always left to wonder whether a better closing argument might have made the difference, whether if more had been done the client would be free today.
Kyle Rittenhouse deserved a better closing argument than he got today, and if he’s convicted on any of these charges I would find it hard to not attribute such an injustice to much of anything except today’s weak closing argument by his Attorney Mark Richards (well, excepting, of course, for the politically-motivated prosecution itself, but that’s precisely what the defense is supposed to stop).
The weaknesses in the defense closing argument really fall into two broad categories, with a bit of overlap.
One category of weakness includes aspects that are inherent to the closing itself, aspects that diminish the closing irrespective of anything the prosecution is arguing. These are really own-goals, and there’s no good excuse for these at all.
The second category of weakness is more of a failure to anticipate and account for the perfectly foreseeable points the State was likely to make on rebuttal—the defense must anticipate these because they will have no opportunity to speak to the jury again after that rebuttal.
Given the lateness of the hour, I’m going to focus this content solely on this kind of high-level review of the defense closing argument, to get it out to all of you in a reasonably timely manner.
Then I’ll follow up in the morning with a more detailed breakdown of the State’s closing statement (by ADA Binger, and essentially what we expected), a more comprehensive look at the defense closing by Richards, and a detailed breakdown of the State’s rebuttal (by ADA Kraus and also pretty poor). There I’ll include the relevant video clips of the closing arguments.
Poor Choice of Tone if Goal is Persuasion of Jurors to Defense Narrative
Perhaps the single biggest weakness I saw in the defense closing argument was apparent from the first moments of Attorney Mark Richard’s speaking to the jury, and which I suppose was predictable by his generally gruff manner—and why I would have preferred to have Attorney Core Chirafisi do the defense closing argument.
And that was the angry and personal tone Richards took to the prosecution.
Let me make clear, there’s no question to my mind that the prosecution, in this case, has earned every bit of that anger. The State has played fast and loose with both the facts and law in this case, trying to gin up a conviction from crumbs left on the bakery floor, all with the goal of putting Kyle Rittenhouse into a cage for the rest of his life by legal means not soundly based on facts and law.
And that’s horrible and wrong. The prosecution and the defense attorneys are both lawyers who work within the criminal trial setting, but their roles are very different. The inherent power of the State means that they are more tightly constrained than is the defense, or ought to be.
The mission of the defense is a win by any means necessary—it’s the burden of the State to overcome the wily defense and achieve a conviction beyond any reasonable doubt., to get that win for their client.
For the prosecution, the mission is—or is supposed to be—much different. The prosecution’s mission is supposed to be justice—not merely winning by any means necessary.
So, I have no doubt that Richard’s anger and resentment towards the prosecution here is genuine and well-founded.
But that’s not the point of the closing argument. Closing argument does not exist so that defense counsel can air out his frustrations with the game-playing of the prosecution. Closing argument exists so the defense can have that last final opportunity to compelling communicate their narrative of innocence to the jury, the last chance they will ever have to do that, to secure that acquittal for the client—even more important than usual when the client overwhelmingly is deserving of an acquittal as here.
I suggest that using the closing argument as a forum to bitch at the prosecution does not do much, at all, to help secure that acquittal for the client, especially not when a better choice of tone would likely have been far more effective.
Taking the tone of “those rioters, looters and arsonists were all scumbags, and this prosecution is just a suit-wearing version of the same chaos!!!!!!” may feel good, and may even be to some degree true—but does it help sell the narrative of innocence to a jury that is looking at all this through entirely different eyes than those of the lead defense counsel?
I’ll note here that the State has repeatedly referenced Kyle as a kind vigilante, out looking for trouble until he found it, expecting to be treated as hero, and “just tryna be famous,” per Kyle’s own TikTok profile. To the extent that the defense is presenting Kyle as someone they believe should be perceived as a heroic defender and the people he shot or endangered as miscreants who had it coming only helps the prosecution paint their client in this negative light. (And it doesn’t matter that the defense portrayal of Kyle is true.)
Drive a Narrative of Innocence Consistent with, not Contrary to, the Jurors’ Sympathies
If this jury convicts on any of these charges—and they well might—it will be because the prosecution has been successful in fostering some degree of sympathy among the jurors for the people killed, maimed, and purportedly endangered at the hands of Kyle Rittenhouse.
To put it another way, unless that’s happened an acquittal is already secured, and the defense need not engage in the fire-and-brimstone display at all. But we can’t know that, of course, so we must assume that some degree of sympathy for the “victims” has been successfully fostered by the prosecution.
If that’s so, you don’t make ground with those jurors in particular by shouting your outrage about those horrible people. Instead, you just come across as unsympathetic—which, of course, reflects on your client.
A better approach, in my humble opinion, is to approach the jury not from one’s own position as a righteously outraged defense attorney with a client facing a potentially cataclysmic conviction for no good reason, but rather from the position of those jurors themselves.
Acknowledge that the people who died were human beings, and you and your client wished they were still alive today. Even with respect to the initial aggressor, Joseph Rosenbaum, whose attack on Kyle triggered all else that followed, everyone would prefer that he were alive today. Everyone wishes that nobody died that night in Kenosha, and that’s particularly true of your client.
That said, it wasn’t your client’s choice that these tragic events occurred—it was the result of the choices of those others, choices that compelled your client to exercise his privilege under Wisconsin law to defend himself from violent, life-threatening attack.
Acknowledge that perhaps those people who attacked Kyle, especially at the second location, might have genuinely believed that they were acting to stop some kind of active shooter. They were mistaken, of course, Kyle was as far from an active shooter as it was possible to be, for reasons you’ll detail in a moment. Perhaps even Rosenbaum’s attack was triggered by personal demons that nobody but he could understand, but which he found impossible to resist.
Whatever the reasons for their attacks, no matter how well-intentioned or compelled by personal demons they might have been—none of that, not one bit of it, in any way diminishes the privilege of your client to defend himself from their attacks.
There’s nothing my client wishes more than that Joseph Rosenbaum and Anthony Huber were still alive and with their loved ones, and that Gaige Grosskreutz was unmaimed. That’s the world he would have chosen to exist today—if only those people, and others, had not violently stripped that option from him by their attacks, however motivated, that threatened him with apparent imminent death.
Failure to Step Methodically Through the Elements of Self-Defense
My next point may be more a reflection of my own temperament, and is perhaps just a personal or professional preference on my part—but I would have been far more detailed and specific in stepping through the elements of self-defense as applied to each of these felony charges.
For each count, I would have made clear in plain language exactly what circumstances would lead Kyle to believe he was facing an unlawful forcible attack (Innocence), that the harm feared from that attack was either already being inflicted or apparently immediately about to occur (Imminence), how the nature of the threat presented an apparent risk of death or serious bodily injury (Proportionality), and how all of this was not just genuinely believed but objective reasonable (Reasonableness).
Example: Failing to Address with Specificity the Issue of an “Unarmed” Rosenbaum
This would have been particularly useful in addressing the all-critical first attack by Joseph Rosenbaum. We have seen how throughout the trial ADA Binger has been making much of the argument that some of the people attacking Kyle were “unarmed.” Indeed, at one of the pre-trial hearings, Binger had actually argued that it could never be lawful for an armed man to shoot an attacker who was unarmed.
So the defense ought to have had every expectation that much would be made in closing about the “unarmed” nature of Rosenbaum’s attack on Rittenhouse, and it should have been made crystal clear to the jury how deceptive this framing was.
In particular, Rosenbaum was not merely fake-rushing Kyle, or poking Kyle with an index finger, or even shoving Kyle forcibly backward—Rosenbaum was fighting Kyle for control of his rifle, and in the context of the death threats Ryan Balch and Kyle himself had testified about.
The moment Rosenbaum is fighting for the control of the rifle, he is no longer “unarmed” in any meaningful sense of the term. Instead, he’s in the process of arming himself. With a rifle. With Kyle’s rifle.
If Rosenbaum were picking up a dropped rifle from the ground under those circumstances nobody would doubt that he was arming himself for the purpose of using that rifle on Kyle.
By not merely picking up some other rifle, but fighting Kyle for his own rifle, Rosenbaum is actually creating a greater threat than that, because he’s simultaneously disarming Kyle while he’s arming himself.
No such argument was made by Richards during his close. And I expect I know why—because he approached this closing argument from his own perspective, as someone to whom this argument is obvious and intuitive, rather than from the perspective of jurors who had developed some sympathy for these “victims” and their families, and for whom this notion of “arming oneself with the other guy’s gun” might not be so obvious and intuitive.
By addressing this issue only vaguely or not at all, Richards left a gaping opening for Kraus to wobble through in his own State rebuttal argument, where he went on at length about Rosenbaum’s status as “unarmed.” Kyle brought a gun to a bar fight, he could have punched Rosenbaum, or kicked him the testicles, or struck him with the rifle as an impact weapon—anything other than fire four rounds into him for the purported offense of merely chasing him.
Failure to Concretely Define Imminence to Jury
The failure to make the legal concept of imminence clear also left another gaping opening for Kraus to suggest to the jury that Kyle was not permitted to defend himself against an attack that was immediately about to occur, and avoids injury entirely. Rather, Kraus suggested, sometimes we just have to take a beating before we’re privileged to defend ourselves, and Kyle didn’t do that. Frankly, that’s just an outright misstatement of the law. In fact, a defender need not suffer so much as a scratch before being privileged to use even deadly force in self-defense.
In any case, the defense is unable to respond to any of this nonsense by ADA Kraus, because they don’t get to rebut the State rebuttal, so by necessity, such things must be addressed prior, to the defense closing argument. And they were not.
My Preference: A Less Wandering, More Methodical Guide for the Jury
Personally, I would have preferred to have seen a much more methodical progression through each of the elements of self-defense for each of the criminal charges, so that the jurors had an easy, well-marked trail to a justification acquittal on each of them.
You don’t want the jury to spend hours in deliberations hacking through those 36 pages of jury instructions with a lay person’s understanding (and misunderstanding) of the legal concepts, especially when they were so confusingly communicated by Judge Schroeder, in the first place.
Instead, you want to show the jury the way, in a step-by-step fashion. See, you start here, and this is how we (the defense) see the evidence apply to this legal condition, and that brings us right over here, where we think this happens, and then over here, and then here, and ACQUITTAL! Now let’s do Count 2.
Reasonableness Assessed from Kyle’s Perspective, Age, Circumstances
Also, an absolutely critical facet of any claim of self-defense is that the perceptions, decisions, and actions be assessed from the perspective of the actual defendant, given their particular attributes, the surrounding circumstances, abilities & disabilities, training and experience, and so forth.
In this particular case, we have a 17-year-old Kyle Rittenhouse who found himself isolated and alone in horrifically chaotic circumstances, not of his own making and facing a series of apparently lethal attackers.
Did Kyle make the best of all possible decisions in each of these use-of-force encounters? Frankly, I think he probably did—but that’s not the point. Our concern is that a jury might not think so, that a juror might have thought that with hindsight there was a better option available.
We can see how the prosecution pounded home on this point when they kept coming back to the idea that the first round to strike Rosenbaum broke his pelvis and probably left him instantly unable to further threaten Kyle—yet Kyle shot him three more times, including the fatal shot to the back, the “kill shot!”
Strictly speaking, with perfect hindsight, we can see that those successive three shots were probably not actually necessary. Does that make them unlawful? After all, isn’t lawful self-defense conditioned on necessity.
Well, no, actually. Lawful self-defense is conditioned upon apparent necessity. And there was no way, in that brief 0.76 seconds in which Kyle fired his first and lost shot into Rosenbaum, that Kyle could have known that his first-round had effectively knocked Rosenbaum to the ground.
During that 0.76 seconds, Rosenbaum continued to present as apparently diving and lunging for control of Kyle’s rifle, and thus continued to present as an apparent deadly force threat for each of those four rounds.
Four Shots is Fine, After All, Jacob Blake Took Seven
Binger touched on the question of whether all four of these rounds were genuinely necessary and therefore lawful, or whether that third or fourth shot, the “kill shot to the back,” was unnecessary and unlawful as the State argued.
Richard’s response wasn’t just not helpful, it might well have been harmful—and again because he approached the issue from his own perspective, rather than from the perspective of one a juror who had perhaps developed some sympathy for the “victims” in this case.
Instead of speaking to this issue on the basis that self-defense law provides for—the reasonable perceptions of Kyle of apparent circumstances, and in the context of his age, prior experiences (death threat), current chaotic circumstances, and so forth, Richards used an argument that likely angered one more jurors.
Let me take a step back for a moment. Recall that these Kenosha riots were over the police shooting of Jacob Blake, something the prosecution touched upon repeatedly. Well, the prosecution is not repeatedly mentioning the Jacob Blake catalyst of those nights of chaos because it’s harmful to the prosecution.
In fact, much of the world believes the false narrative that Jacob Blake was wrongfully shot seven times in the back by Kenosha police officers (later deemed justified), and that therefore there was certainly genuine legitimacy to the protests that followed, and perhaps a bit of “I don’t like it, but I understand where it is coming” from even for some of the less prominent property damage caused by actual rioters.
In other words, there are a lot of people who genuinely, if mistakenly, believe that the shooting of Blake was, as they might put it, a profound social injustice.
With this background in mind, and assuming that there are prospectively several people like that on the jury, how did Richards decided to contextualize Kyle’s firing four rounds into Rosenbaum?
Well, he told the jury, four rounds can’t be that bad, he’s seen cases right there in Kenosha where someone shot another person seven times, and that was deemed to be fine.
Now, he didn’t say the name Jacob Blake—but I’m pretty sure everybody in Kenosha knows the name of the guy who was shot seven times in what was later deemed a justified shooting.
It should go without saying that anybody who believes that the shooting of Jacob Blake seven times in the back was an obvious social injustice is going to feel any more favorable to Kyle for having shot Rosenbaum four times, including in the back, in an analogy made by his own defense attorney.
A Gun is a Gun, a Bullet is a Bullet
Another dropped ball was in the context of the “AR versus handgun” issue raised by the prosecution numerous times throughout the trial. Binger suggested to the jury that, hey, all Grosskreutz had was a pistol, and in contrast, Kyle had this giant powerful AR-15 round rifle with a 30 round magazine loaded with full metal jacket bullets. That can’t be fair!
Richards’ only response to this was a dismissive “hey, guns are guns, bullets are bullets.” And from his own perspective as a criminal defense attorney, that’s pretty much 100% right. From a legal perspective, it’s all deadly force, both pistol and rifle are readily capable of causing death or serious bodily injury under the circumstances in place, and so there’s really no legal distinction between them.
But that’s not how a jury is going to look at it. A pistol and a rifle, in fact, are different, with different capabilities, and there was testimony to this at trial Typical police body armor can stop pistol rounds, but not AR rounds. Pistols are routinely carried for personal protection in public, and ARs only rarely so. Pistols have a relatively short range, but an AR can shoot out to 550 yards.
In many obvious ways, the Glock pistol of Grosskreutz and the AR-15 of Kyle are substantively different. And simply dismissively saying “guns are guns, bullets are bullets” doesn’t adequately address this.
Instead, Richards should have conceded that it’s true that in many respects the pistol and rifle here are very different—but that they were not different in any way that applied in these particular circumstances. This was not a case where the two men were 550 yards apart, for example, so that the rifle was effective but the pistol harmless. Under these circumstances either weapon was readily able to inflict death or serious bodily injury to another, and therefore there was no meaningful distinction between them for the purposes of this trial.
OK, folks, I do have more to say on this topic, but the hour is getting late, the team will want to get this published tonight, so I’ll follow up with further thoughts in the morning.
Until next time:
Remember
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Sounds logical to me.
On the issue of a rifle v handgun the defense should have made the jury aware of the fact that the person with the rifle is at a disadvantage in close range combat. And yes, the defense should have been prepared to agrue everything that a good use of force expert would have put on the record if the judge had allowed him to do so. I might have even played the jury a video of the Arbery shooting if I could just to demonstrate how dangerous a charging attacker is at close range and how hard it is to maintain possession of a long gun and use it in self defense at bad breath distance.
And on the issue of a man armed with a rifle v an unarmed man in a fist fight, the unarmed man has the advantage because the armed man doesn’t have any fists, he has to try to maintain possession of his rifle.
“Failure to Step Methodically Through the Elements of Self-Defense” stemmed from exactly the point you make about use of force experts.
The defense clearly failed to consult sufficient use of force experts who can discuss not only the tactical principles, but many previous cases of self defense. Many instances self-defense involve pointing guns before the critical decision to pull the trigger. You don’t even need an expert to see for yourself: search it on youtube. (Doughnut operator’s channel can provide many examples.)
No competent expert would omit the importance of the “disparity of force” principle. An unarmed mob is perfectly capable of ripping a person apart. Lethal force in response to a kick would generally be considered inappropriate. Lethal response in response to multiple attackers has passed that test. Similarly, when a small woman is attacked by a large and powerful man, this has been found to meet the definition.
Use of force experts, plural, should have been the lynchpin of the defense.
The prosecution in the Zimmerman case was not only unethical but incompetent. So after reading this blog post I’m beginning to see Trayvon as similar to Rittenhouse and his use of force was reasonable in light of the same reasons Rittenhouse’s use of force was reasonable. Now the Zimmerman’s defense didn’t really have to do too much because the murder charge was so absurd, but the defense did two things with respect to showing Zimmerman’s force was reasonable: that Zimmerman was very weak and soft for a man AND the jury ended up being 6 women that would view using a gun as reasonable force when a male is on top of them punching down. So in that case the prosecutor needed to concede Zimmerman was on bottom but bring in an expert to counteract Zimmerman’s MMA instructor who acted as an expert. So the prosecutor’s expert could have testified that Trayvon was in a very vulnerable position in a street fight and that very early in self defense courses people are taught to strike the throat or groin of a male assailant which Zimmerman could have easily done in the position he was in. Remember Zimmerman was the adult that instigated the altercation and created a tense situation knowing Trayvon was a teen.
I have heard that there are three law enforcement people on the jury. Hopefully they will have had a little use of force training and be able to educate the jury.
We don’t actually know who is on the jury yet. A third of the jurors who sat through the trial get set aside as alternates tomorrow morning.
I’m reading all of this and everything is so common sense and clear that Rittenhouse was engaged in self defense, but I’m also troubled because much of it also applies to the then 17 year old Trayvon Martin. So in that case Zimmerman was like Rosenbaum in that he was an adult engaged in erratic behavior that instigated an altercation with a teen! And in that case we judged Trayvon based on his brushes with the law…but everyone can see video of Rittenhouse punching a girl in the face and another video of him overtly saying he wants to shoot people. I even remember we thought Trayvon’s interest in guns showed he was a “thug”…Rittenhouse testified in court that he bought a gun because he thought it was cool and we have other photos of him with guns.
So if we use the same standards for Trayvon then Zimmerman was an adult that instigated an altercation with a teen and then the teen engaged in self defense with his fists which was just as reasonable as Rittenhouse firing a weapon…but Zimmerman shot and killed the teen engaged in self defense whereas Rosenbaum was killed by the justified self defense! Did we get that case all wrong??
There are two things to keep in mind about Trayvon Martin.
First, is that it’s entirely possible that Trayvon Martin could have acted in self defense, and that Zimmerman could still have a right to self defense as well. Such scenarios occasionally happen, and Andrew Branca likes to call them “awful but lawful” events, because everyone involved is innocent, yet everyone becomes the victim of legal violence.
Second, however, as anyone who paid attention to the Trayvon Martin trial would know (and, like Rittenhouse, it’s very easy to be ignorant of the details, because the Media has deliberately lied about most of them), Zimmerman didn’t do anything to provoko Martin to attack. Like Rosenbaum, Martin hid himself and then ambushed Zimmerman, and started beating Zimmerman’s head in the concrete — which is sufficient lethal force in and of itself — and like Rosenbaum, Martin didn’t get shot until he reached for Zimmerman’s gun, proclaiming that Zimmerman was going to die as he did so.
So, no, we didn’t get the Zimmerman case wrong. Furthermore, his prosecution, and the politicization of it, was just as wrong as Kyle Rittenhouse’s prosecution was. Neither case should have gone to trial.
Hadn’t thought about that, I guess that’s why you get the big bucks.tS
Started a little guilty or innocent facebook poll about an hour ago. So far I’ve got 32 innocent and 0 guilty.
I expect so, but we need to beware confirmation bias. When we’re in a bubble, we get the answer that bounces back from wall of the bubble.
Yea, I don’t expect to many liberals get my posts.
I agree with much that you are saying here. No one in the courtroom seemed to know anything about firearms. When I heard Kraus assert that there was no such thing as left handed guns, as a lefty, I almost fell over.
There was a tension between working through the witnesses chronologically and working through the events that way.
No one seemed capable of working systematically like you describe.
But I do have one question. Given that the prosecution was being allowed to present what was essentially evidence, which I understand they may not do; was it not important for the defense to impeach the credibility of the prosecutors they way you work over a witness?
Richards was clearly scoring heavy blows to the prosecution motivations and the bias of the case. Bringer looked as if he might have a stroke in his seat.
But, I agree with you that after he landed those shots, he should have turned to a delivery as you have stated. He had time. Move all the information from the people and timeline to the charge framework. That would have allowed him to offer more clarity to those ridiculous instructions.
But, with his attack on Binger and Krause, it was clearly effective in so far as Krause was left spend8ng his time trying to redeem their reputations.
He was just an incoherent mess. But you are correct he got mileage out of the holes Richards left.
I also thought the crack about the seven shots and the cavalier attitude about Rosenbaum not being around to testify were real mistakes.
Before closing arguments my own observations kept me anxious. The sequence of events, videos with little circled dots, the free lance characterizations by the prosecution (some of which were unchallenged by the defense) and difficulty in appreciating time spacing, distances, and differences between things like “chasing”, “running after”, “jogging”, “fleeing” etc. kept adding complexity to the case, but not clarity. What I feared happened, the defense closing statement did not meticulously shape the battlefield with the required elements of self defense, and define it by examples. As such, they let the prosecution run wild with tropes that have no grounding in the five elements, nor in law.
Mr. Branca is right. The Zimmerman trial attorneys gave us a classic model for arguing self defense in a highly politicized environment. You don’t bash the victim. You don’t treat the prosecution with contempt . You shape the battlefield to your strengths, boxing the prosecution in with law and the supporting facts. You educate the jury (which is why a jury member later reported that try as they might, they couldn’t get around the fact the Martian’s killing was lawful).
Sad, I fear a 17 year old boy will be going to prison for 10 to 30 years because on of this attorneys was an idiot.
Wait, Trayvon Martin was younger than Kyle Rittenhouse! Zimmerman was the adult in that instance and like Rosenbaum Zimmerman was the party that instigated an altercation with a teen and created a very tense situation with erratic behavior. Reading MR. Branca’s analysis in this post I’m beginning to think we were wrong about that case and that Trayvon was defending himself from an adult engaged in erratic behavior that created a tense situation. The only similarity I see between these two cases is that both Zimmerman and Rittenhouse were overcharged by unethical prosecutors…it’s just Zimmerman got lucky that the prosecutors were not only unethical but grossly incompetent.
I remember the Zimmerman trial, and the Rittenhouse trial was similar in how it seemed the Prosecution was making the case for the Defendant’s innocence in both cases. I do not think this was due to gross incompetence, however: in both cases, the Prosecution was trying to convict an innocent man of murder, and the alleged “incompetence” was a direct result of all evidence pointing to “innocence”.
In both cases, the Prosecution was doing the best they can, because the “evidence” they had to work with was so scant.
I can see you are getting stuck on the ages of the individuals involved in trying to determine who’s guilty — age has nothing to do with it — unless we’re evaluating “disparaty of force” considerations. Zimmerman keeping an eye out for unusual behavior in a neighborhood riddled with crime may have “instigated” the behavior that caused Martin to attack, just as Rittenhouse’s putting out a dumpster fire about to be rolled into a gas station may have “instigated” the behavior that led to Rosenbaum to attack Kyle — but the “instigating” behaviors nonetheless do not justify a lethal force attack in either case.
Given the right to be silent issue and admonishment of the prosecutor by the judge that was raised during the trial will an appeal if necessary likely be successful?
Andrew, is there any chance you are going to get and post the copies of the ACTUAL jury instructions. The reason I am interested in the actual jury instructions is the state approved jury instructions do not correctly state the law in Wisconsin and I would be interested in seeing if the judge corrected the jury instructions or if there was prejudicial error in instructin the jury.
Loose lips sink ships, so I don’t want to talk about it until the jury has been discharged.
Fox News says: “Forty-five minutes into deliberations, the jury in the Kyle Rittenhouse trial has asked for 11 copies of jury instructions, particularly pages 1-6 which go over the terminology of self-defense”. Defense in closing arguments could have helped the jury understand self defense basics which is what the trial was about.
I don’t think Wisconsin has 6 pages of terminology relating to self defense. Probably not over half a dozen words in the self defense law that have a statutory definition. Not really sure there are any. I would really like to see a copy of the actual jury instructions provided to the jury by the court.
Question for you lawyers: Can the misrepresentations made by the state during closing arguments serve as the basis for an appeal? When Binger tells the jury that the defendant should have just taken his licks, or that you don’t get to shoot people who are unarmed, wouldn’t that taint the jury’s deliberations? I am not asserting that this is true; I am asking the experts. (Paul Broshear)
Yes, it is my understanding that this is indeed the case, although I don’t know about the specific arguments that the Prosecutor made against Kyle (and I am not a lawyer, to boot).
However, when Andrew Branca was covering the Chauvin trial, he made it very clear that certain things the Prosecution did in closing statements alone could very well result in mistrial upon appeal. (There were about half a dozen or so more grounds for appeal beyond that, so I’m wondering when news of the appeal is going to surface in the news cycle.). (In the case of Chauvin, the issue was that the Prosecution repeatedly questioned the honesty of the Defense in closing arguments — something that can be done in Civil cases — the lawyer making the closing statements was a civil attorney normally — but not in Criminal cases, as it can unfairly bias the jury towards conviction.)
For an appeal, the defense has to object. If he doesn’t, there is no grounds for an appeal, generally. An objection preserves the matter for appeal. This smells like a hung jury – the easy way out for them, a disaster for justice for Kyle.
For an appeal, the defense has to object. If he doesn’t, there is no grounds for an appeal, generally.
I started this reply to tell you that your statement wasn’t correct, but then I noticed that you had qualified it with the word “generally.” My apologies.
I believe there is enough plain error in this case to prejudice the defendant’s right to a fair trial and I believe prejudicial error is an appealable issue.
I think most successful appeals are based on judges rulings on defense motions such as a motion to dismiss or motion for judgment of accquital on the grounds of lack of sufficient evidence. It is plain error and prejudicial error to instruct a jury to make a finding of fact when there is insufficient in the record to support the finding of fact.
The State is obligated to produce clear and convincing evidence, not some fuzzy indescifrable picture that not even an expert when consulted about its content could figure out what’s in the picture. To allow the drone picture at all by this “common sense” judge was a miscarriage of justice, and will endlessly confused the jury. Look and look and look and look. Sentenced to life over a abstract meaningless mess of color and fuzzy nothing. Then the State speculates it to be provocation to Rosenbaum who tired to bury police officers alive, and threatened to kill the defendant. The only provocation was the defendant putting out the fire of an arsonist Rosenbaum. If that’s the best the State and do, they have no case.
All the defense had to do in closing arguments was to help the jury see and feel what the defendant saw and felt. Defense choose not to do that, but to mess in politics.
Nate the Lawyer was wrong about the Arbery case. The McMichaels needed “reasonable and probable grounds of suspicion” to make an arrest, not “probable cause”. Anyway, the McMichaels didn’t move to Arbery in the video. Arbery doubled back and ran over 30 yards to the McMichaels parked car and grabbed the gun in Travis’ hands while punching his head.