A miscarriage of justice in Kenosha

The unimaginable has occurred. Kyle Rittenhouse, the admitted killer of two men and maimer of a third, has been acquitted on all counts.

On Aug. 25, 2020, Rittenhouse armed himself with a borrowed AR-15-style assault rifle loaded with full metal jacket armor-penetrating ammunition and marched into downtown Kenosha, Wis., during a third night of protests following the police shooting of Jacob Blake, a 29-year-old Black man. Blake was left partly paralyzed after a white police officer shot him seven times in the back outside an apartment complex in Kenosha two days before.

Why did Rittenhouse go to the Kenosha march in the first place? He claimed he was present to help out. So why bring a gun? If he believed the situation was so dangerous as to warrant a weapon, why didn’t he just stay home?

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An AR-15 is the same kind of gun, in design and function, that our troops carry in the field. But Rittenhouse from the evidence had never undergone any training, military or otherwise, in the use and operation of the deadly weapon, which was illegally purchased and given to him by a friend.

Carrying a medical kit and with his lethal weapon strapped to his back, he traveled to Kenosha from neighboring Antioch, Ill., where he lived. He testified that his purpose was to protect businesses and provide first aid. Yet he lied to bystanders that he was an EMT worker. He had no training whatsoever as an EMT at the time of the killings.

Seventeen years old at the time, the now 18-year-old shot at four people that night, killing two and wounding a third. His gunshots, according to prosecutors, "recklessly" endangered the lives of other bystanders.

Rittenhouse said that he knew that one of his victims, Joseph Rosenbaum, was unarmed. Yet he pumped four slugs into his body, he said, in an attempt to deter him, adding that he knew pointing a rifle at someone is dangerous. One shot might have qualified as self-defense, but four shots, it would appear, doth a murder make.

"He was chasing me,” explained Rittenhouse, “I was alone. He threatened to kill me earlier that night. I didn't want to have to shoot him. I pointed at him because he kept running at me and I didn't want him to chase me."

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Although his second victim, Anthony Huber, was “armed” only with a skateboard, Rittenhouse claimed he shot him dead because he believed Huber was threatening his life.

The third victim, Gaige Grosskreutz, who was in fact a paramedic, was armed, and he said he may have unintentionally pointed his gun at Rittenhouse. But Grosskreutz didn’t point his gun at some casual onlooker; he pointed it at Rittenhouse because Rittenhouse was carrying a gun. For this, he almost had his arm blown off.

False exculpatory statements are classically viewed as preeminent evidence of guilt. Three times that night, Rittenhouse yelled at the crowd, “I didn’t shoot anyone.”

Judge Bruce Schroeder lost any pretense of impartiality. He refused to permit prosecutors to refer to those shot as “victims,” although it is quite common in criminal cases for judges to allow them to do so. The judge read to the jury a screed of instructions, which seasoned legal commentator Jeffrey Toobin found to be “incomprehensible,” declaring, “What the hell is he talking about?!”

The jury consisted of five men and seven women chosen from a group of 18. The judge allowed Rittenhouse himself to pick the six names out of a raffle drum of the prospective jurors who would not deliberate on the verdict. Most trial lawyers would find his procedure astounding and weird.

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The trial was highlighted by emotional and illuminating testimony from Rittenhouse himself, who wept as he protested that he had acted in self-defense when he fatally shot Rosenbaum not once but four times. Rosenbaum had thrown a plastic bag at him and chased him.

Schroeder asked the jury to apply Wisconsin’s law of self-defense. Under that law, deadly force is permitted if a defendant “reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.” Reasonableness is to be viewed based on “the defendant’s position under the circumstances that existed at the time of the alleged offense.” Can this definition by any stretch apply to Rittenhouse’s violent conduct?

It is hard to think that justice was done in the Rittenhouse case. Because of the double jeopardy clause of the Constitution, the prosecution has no appeal, Rittenhouse has walked out of the courtroom a free man and the public must live with the verdict’s bitter pill.

Despite the political implications, this is a verdict that stands for nothing. It is not a verdict for gun rights, it is not a verdict for vigilantism and it has nothing to do with race. It is an example of how justice can be buried in a poorly tried case. It is a strangely neglected question in the criminal justice system, namely, why the wealth of attention rightfully given to wrongful convictions has not also been awarded to wrongful acquittals.

James D. Zirin is a former federal prosecutor in the Southern District of New York