There’s certainly plenty to dissect as we attempt to answer the question of why a jury found Kyle Rittenhouse not guilty on all charges in an Aug. 25, 2020, confrontation at a protest against the police in Kenosha, Wisconsin. The jury acquitted Rittenhouse of reckless homicide in the slaying of Joseph Rosenbaum, 36, and intentional homicide in the death of Anthony Huber, 26, and of the attempted intentional homicide for severely wounding paramedic Gaige Grosskreutz. Perhaps some of Kenosha County Circuit Judge Bruce Schroeder’s controversial rulings played a role. I, for one, was stunned when he ruled that prosecutors could not refer to the three men Rittenhouse shot, two fatally, as “victims” but that the defense attorneys could refer to them as looters, rioters and arsonists.
The jury’s resolution of the charges may also have been complicated by the wildly divergent views of the case.
By allowing the defense attorneys to use the words they wanted and denying prosecutors the opportunity to use the words they wanted, the judge gave the defense the opportunity to create a perception that the folks who were shot deserved it or brought it on themselves, and in so doing, demonstrated a kind of judicial favoritism that I rarely saw in my 30 years of prosecuting cases.
Or maybe the acquittals had something to do with Schroeder on Veterans Day inviting everyone in the courtroom to join him in a round of applause recognizing the military service of a defense witness about to testify. This was inarguably inappropriate judicial conduct.
The jury’s resolution of the charges may also have been complicated by the wildly divergent views of the case: based not on facts but on the politics or ideology of the person following the case. Some people hail Rittenhouse as a vigilante hero of sorts, a free-agent crime fighter determined to protect property and promote order in a city taken over by lawless rioters. Though Rittenhouse’s victims were white, there are others who label him a young racist with an itchy trigger finger who opened fire without cause on people protesting police abuse. This latter view paints the shooting victims as heroes who were chasing down and trying to disarm an active shooter after Rittenhouse fired his assault-style rifle at the first victim.
Only the jurors know why they had reasonable doubt about Rittenhouse’s guilt. Let’s hope the jury’s decision was based exclusively on the evidence introduced during the the trial.
But clearly, the prosecutors in Kenosha failed to counter the defense’s argument that Rittenhouse, a teenager with an assault-style rifle, was in fear for his life. Rittenhouse, of course, was in no way associated with the police, and yet his defense strategy sounds quite familiar for those who have watched the trials of police accused of illegally shooting or killing someone. The American legal system, and Wisconsin state law, give defendants a huge advantage in shootings such as these. Prosecutors must prove that the armed aggressors overreacted when using lethal force. More specifically, prosecutors are required to disprove self-defense beyond a reasonable doubt.
Often, as was the case here, prosecutors don’t succeed. Moreover, there are times prosecutors decline to even bring criminal charges, apparently believing a trial would be futile, inevitably resulting in an acquittal. It’s a deadly cycle that seems to have America in its grips. One can’t help but feel that we are forever sacrificing the lives of men and women, boys and girls, in our country’s determination to worship at the altar of unrestricted gun rights.
As we watched the trial unfold on television, we learned that two of Rittenhouse’s victims were unarmed (though one was holding a skateboard he reportedly swung at Rittenhouse). The third victim had a gun but did not fire it at Rittenhouse. How, we are left to ask, can Rittenhouse be justified in shooting three protestors — killing two of them — under those circumstances?
Let’s hope the jury’s decision was based exclusively on the evidence introduced during the the trial.
One thing’s for sure: Disproving self-defense beyond a reasonable doubt, particularly when there is video showing the victims acting aggressively toward, and, arguably, even assaulting Rittenhouse as he was firing his weapon, made a conviction difficult. And that’s before the judge’s (let’s call them) peculiarities.
In many criminal cases I tried, defense attorneys would tell the jury: Ladies and gentlemen, you must be satisfied that the evidence proves my client’s guilt beyond a reasonable doubt. That means if you think my client “might be guilty” you must vote not guilty. If you think my client’s “probably guilty” you must vote not guilty. If you think my client is “very likely guilty” again, you must vote not guilty. Because none of those conclusions satisfy the extremely high evidentiary burden of proof beyond a reasonable doubt. In reality, the viability of a self-defense claim doesn’t turn on subjective views of the relative righteousness of the conduct of Rittenhouse versus that of the protesters. Indeed, in a very real sense, two competing views of the equities of the situation can coexist: the protesters/victims could have believed they were lawfully, even heroically, chasing down an active shooter, and Rittenhouse could have believed he was justified in firing his weapon the first time and was then being chased by an angry mob against which he defended himself by continuing to discharge his weapon. Resolving these competing views is precisely what juries are for. The jurors saw all the videos, reviewed all the evidence and made their all-important credibility determinations about the testimony of each witness who took the stand. Perhaps most critically, they evaluated the testimony of Rittenhouse himself when he said he was in fear of death or serious bodily injury on each occasion he fired his weapon. Even if the jury was not entirely convinced of the persuasiveness of his self-defense claim, they may not have been able to reject it beyond a reasonable doubt. Thus, a not guilty verdict. That is our jury system. Regardless of how we may feel about the result, borne of politics, tribalism, sympathy or antipathy for one party or another, we must accept the jury’s verdict. But it does raise questions about the wisdom of unrestricted gun access and the way self-defense is defined in this country, especially when the “fight” is, seemingly, hopelessly lopsided.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
