The two trials of Kyle Rittenhouse
Kyle Rittenhouse was put on trial for two very different offenses. The prosecution accused him of being in the wrong place for the wrong reasons and of carrying a gun to a volatile situation. Rittenhouse’s lawyers defended him against a very different charge — namely, that he did not act in self-defense during the moments when he was confronted with a skateboard and a loaded gun.
Anyone who watched biased commentators on CNN or MSNBC would have focused on the prosecution’s charges. Anyone who watched the actual trial live would have understood that the case was far narrower and that the only issue was whether Rittenhouse reasonably feared for his life during the moments before he fired the shots that killed two men and wounded a third.
Had he been tried for the prosecution’s version of the crime, I would have judged him morally guilty. He never should have gone to Kenosha. He never should have armed himself. And he never should have gotten into a situation where he might have to use lethal force in self-defense.
But those were not the charges. And, indeed, they could not be the charges, because his actions – morally wrong as they may have been – were protected by the First and Second Amendments to the U.S. Constitution.
Had I been on this jury, I would have found him not guilty because the government failed to prove beyond a reasonable doubt that he did not act in self-defense. His testimony was believable. I believed that his tears were genuine when he testified and again when the verdict was rendered.
Viewers who actually saw his testimony could judge for themselves whether television newscasters and analysts, who in many instances prejudged the case, had correctly characterized his crying as white-privileged crocodile tears. That is why live coverage of trials is important: It serves as a check on biased commentators who cheer for certain outcomes and fail to objectively report on the facts. Observers who actually watched the trial were unlikely to be surprised at the outcome. But those who received their information filtered through biased commentators were likely to be shocked.
Had Rittenhouse been convicted, it certainly is possible that his conviction would have been reversed on appeal because the prosecutors committed serious errors. They misinformed the jury about whether an armed man can claim self-defense against an unarmed assailant. (He can, under certain circumstances.) They withheld from the defense a high-quality version of a crucial video. But the double-jeopardy prohibition precludes an appeal by the prosecution from a not-guilty verdict or a second criminal trial. It does not preclude civil claims, of course, but they, too, are unlikely to succeed, based on the facts.
Kyle Rittenhouse is not a hero and should not be lionized. The last thing we need in this deeply divided nation is armed vigilantes traveling to volatile situations to protect property from rioters. That is the job of trained law enforcement officers, not 17-year-old kids with AR-15 weapons.
But a criminal trial of a particular individual for a specific crime should never be turned into a referendum on racial, social or political justice. It must focus on the specific facts and law. The verdict is not designed to send a message, or to become a rallying cry for any particular group or ideology. It is only a determination based upon admissible evidence of whether the prosecution has met its heavy burden of proving each of the elements against a defendant.
The jury in Kenosha, Wis., after a long deliberation, unanimously decided the prosecution did not meet that burden in this case. They were correct under the law.
Those who disagree with the acquittal have the right to criticize it, but they also have an obligation to get the facts right. For example, New York City Mayor Bill de Blasio said that Rittenhouse illegally crossed state lines with a weapon — but the evidence showed that the gun was always in Wisconsin.
New York’s resigned governor, Andrew Cuomo, tweeted: “Today’s verdict is a stain on the soul of America, & sends a dangerous message about who & what values our justice system was designed to protect. We must stand unified in rejecting supremacist vigilantism & with one voice say: this is not who we are.”
I agree that we must reject supremacist vigilantism, but I disagree that this verdict sends a “dangerous message.” To the contrary, if anything, it sends a positive message — namely, that jurors are capable of separating facts from ideology and can do justice in an individual case based only on the evidence and the law.
Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump in the first Senate impeachment trial. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and his podcast, “The Dershow,” is available on Spotify and YouTube. Follow him on Twitter @AlanDersh.