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Post Rittenhouse Trial as Grand Guignol
Created by John Eipper on 11/23/21 3:02 AM

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Rittenhouse Trial as Grand Guignol (David Duggan, USA, 11/23/21 3:02 am)

The verdict in the Kyle Rittenhouse case highlights a fundamental flaw in our nation's criminal justice system. That he was acquitted after four days of deliberation does not redeem the fact that in the view of many the case should not have been brought in the first place. The prosecution's abhorrent behavior, both in its pre-trial conduct and in its courtroom "tactics," only highlights the unfortunate ordeal that Mr. Rittenhouse endured at the hands of a mobocratic official trying to curry favor with an uninformed electorate.

The flaw is that from the get-go, there was no neutral in the process leading to the charges filed and the trial. The Kenosha County prosecutor is elected, the judge was elected (after an initial term of appointment), the mayor of Kenosha is elected and appoints the police chief. None of these officials gets his job by being "soft on crime." After two persons were killed and another wounded, the prosecutor rushed to charge the alleged offender, without bothering to read the gun possession statute. This statute gave rise to the misdemeanor weapons charge allowing all sorts of evidence to be admitted that was irrelevant to the murder and attempted murder charges. A measuring tape would have disclosed that the AR-15 rifle in police custody had a 16" barrel, perfectly legal for a 17 year old--regardless of state of residence--openly to possess. Because this charge remained in the case until the day of closing arguments, the state was able to offer evidence as to Rittenhouse's age, state of residence and type of ammunition, all irrelevant to whether his shooting the so-called victims was in self-defense. The prosecutor's failure to perform this basic investigation shows not only incredible incompetence but malice toward those from out of state exercising constitutionally protected rights.

Let's consider an alternative scenario. Instead of a politically motivated elected prosecutor, imagine that like the French system, there was a "juge d'instruction," an examining magistrate, who had the power not only to investigate the alleged crime, but also to prefer charges to a separate prosecutor. Under this system, the subject of the investigation would have the right to give his side of the story, with lawyer present, without prejudice to taking the stand at trial. The advantage is that the magistrate would have had the defense lawyer's interpretation of the gun possession statute (which the Kenosha prosecutor evidently overlooked), and the legal standard of self-defense under Wisconsin law--that it is the state's burden to disprove self-defense beyond a reasonable doubt (which the Kenosha prosecutor blithely ignored in the face of clear video and ballistic evidence that the "victims" were the aggressors).

Some people will say that this upsets the applecart of the American system of justice, where the accused is presumed innocent until proven guilty. This is a shibboleth, a bromide used to defend a system that has led to untold numbers of coerced confessions by the police and wrongful convictions by prosecutors using perjured testimony. Anyone who has tried criminal cases knows that unless the defendant can produce an alternative narrative or another suspect, whether through cross-examination or the defendant's testimony, conviction is almost guaranteed. The presumption of innocence is a fig leaf; relying on that and the otherwise inexplicable standard of proof beyond a "reasonable doubt" to secure an acquittal is folly.

One thought that has not been examined by the so-called experts is whether the prosecutor, Thomas Binger, tanked the case, not only because it was going badly, but also because he was a political rival of the elected District Attorney. It is a well-known prosecutorial tactic to commit "reversible error" in a case that doesn't unfold as the prosecution hoped, angling for a mistrial and a re-do having had a "free look" at the defense case without the glare of an appellate court's censure. The reference to Rittenhouse's pre-trial silence, the failure to turn over the state's enhanced video evidence, the legally insufficient gun possession charge all show a casual approach to rights and legal norms. The best that can be said after this Grand Guignol of a case is that because the state lost, it cannot appeal, and the errors that the prosecutor committed will not be documented in the legal texts and history books.

JE comments:  David, don't you mean that the prosecutor's errors will be documented in legal texts?  Regardless, what do you say to those who believe that Rittenhouse was looking for a fight, and got away with murder?  Each criminal case of course should be tried on its "own merits," but what about the backlash (which we already saw in nearby Waukesha) and the inevitable copycat events?  How many more people will die when the next punk brings an AR-15 to a protest?  Isn't there a parallel with yelling "fire" in a crowded theater--meaning, the crime is not in the act itself, but in the avoidable mayhem it creates?

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  • Rittenhouse Trial: Parallels with Bernhard Goetz? (David Duggan, USA 11/24/21 3:22 AM)
    To answer John E, I meant what I wrote that the Rittenhouse case creates no precedent for the history books or legal texts. There is nothing to study.

    The judge didn't rule on whether the prosecutor's atrocious behavior violated Rittenhouse's constitutional rights by commenting on his failure to open up to the authorities before he testified in his own behalf, or by not turning over the enhanced video until right before closing argument, or by arguing an incorrect legal standard in his closing argument, that self-defense does not apply if you provoke the attack by bringing "a gun to a fistfight," or by failing to measure the barrel length of the AR-15 which led to the jury's hearing utterly irrelevant evidence. These errors get "lost in the verdict and the judgment of acquittal." The state cannot appeal the verdict, so any historian or legal "expert" would be only speculating that any of these would have caused an appellate court, looking at the stone cold record, to reverse because these errors violated Rittenhouse's fundamental rights to a fair trial.

    Evidently Binger, the Assistant District Attorney, has a history of "pushing the envelope" in his trial tactics, and while I tried to get another example, it doesn't matter: his deportment during this case is evidence enough of trying for a win rather than to do justice. There is really nothing new about this. Locally, the entire Cook County State's Attorney's office, headed by Richard M. Daley, later Chicago mayor, had a reputation of "getting the conviction": we'll defend it on appeal. Dozens of defendants were convicted with fabricated evidence, either tortured confessions or perjured testimony, under this standard, and languished in jail waiting for the Innocence Project to take note and get exonerations. According to the National Registry of Exonerations (a UMich and Mich State Law School project, probably the only time those schools have collaborated on anything), Cook County leads the country with 230 convicted persons walking out of prison because their rights were violated.

    Even if Rittenhouse had been convicted, his conviction would not have been final until upheld on appeal. Kenneth Lay, the former head of Enron, died while his appeal was pending, and his conviction was expunged. What difference does it make? Any order of restitution would also have been remitted. (His co-defendant Jeffrey Skilling--younger brother of long-time Chicago weatherman Tom--appealed all the way to the Supremes which reversed his conviction for "honest services fraud," a long-time appellate issue in criminal law as prosecutors continue to charge officials, both corporate and government, under this statute, regardless of whether they personally profited from the fraud.) But his defense lawyer didn't try the case to the appellate court and was rewarded for his judgment to put Rittenhouse on the stand. The appellate court would have had to decide whether the manifest errors were "harmless beyond a reasonable doubt" or the equally impossible counter-factual analysis: whether, given the evidence that was properly admitted, a properly charged jury would have had sufficient grounds on which to render a guilty verdict. Of course, the jurors aren't asked whether they would have convicted without the evidence; they've done their service and how could anyone answer that question anyway? At best this is a thought experiment worthy of Einstein or Schrodinger, not a jury of laypeople.

    Since there is no "legal precedential value" to this case, at best you'll have to look to similar cases for any lessons. Thirty-five years ago, Bernhard Hugo Goetz was tried on charges relating to his shooting four men in a New York City subway who he claimed were menacing him. He was acquitted on attempted murder and 1st degree assault charges, but convicted on a weapons charge and served 8 months in jail. A subsequent civil suit resulted in a $43 million judgment which Goetz hasn't paid a penny of. New York has changed its standard for self-defense (it used to be "retreat to the wall"; now it's what a reasonable person would have done in the circumstances). And the crime rate in NYC has dropped to 1960s levels (but it has rebounded in recent years thanks to Covid and an end to the "stop and frisk" police tactics under thankfully departing Mayor deBlasio). Since 1984 so far as I can tell, nobody has been shot on the subway. Goetz had that beneficial effect on the city that never sleeps.

    JE comments:  Ah, Goetz.  Haven't thought about him in awhile.  David, I appreciate your legal insight into the trial, although I'm still at a loss how self-defense can apply to someone literally looking for a fight.  Legal standards are one thing, but common sense another.  Perhaps it's good I don't practice law.

    But let's let it rest and turn to the certainty of a civil case against Rittenhouse.  He is enjoying his 15 minutes of fame at present, and it will prove lucrative.  He is probably considering ways to hide his newfound wealth from the inevitable civil judgment.  Here's my question:  should the case go against Rittenhouse, can they force him to pay--for starters, from his crowd-sourced legal fund?

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    • Thomas More and the Rittenhouse Verdict (Mendo Henriques, Portugal 11/24/21 6:22 AM)
      The infamous outcome of the Rittenhouse trial is encapsulated in summum jus summa injuria, a formula coined by someone who knew a thing or two about law, Thomas More.

      I am amazed by the self-defense laws in Wisconsin.

      JE comments: A gloss:  The law, when applied in its strictest sense, can also lead to extreme injustice. Mendo, your interpretation is probably generalized throughout Europe:  how can an assault-rifle toting hooligan be acquitted on self-defense?  With the Rittenhouse judgment, many stereotypes about American society have been confirmed--for starters, vigilantism and our obsession with guns.

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  • Rittenhouse is Not a "Punk" (Francisco Wong-Diaz, USA 11/24/21 3:52 AM)
    David Duggan should notice that the opposite occurs in many Democratic-controlled cities like San Francisco, Portland, Los Angeles, Chicago, etc., where Blacks and other minorities are released without bail after committing felonies.

    Look at the case of Waukesha (Wisconsin), where despite its mostly GOP government the elected officials had kowtowed to the woke mob and released someone with a long history of criminal behavior so he could then kill a bunch of people.

    Regarding JE's response--the "punk" is actually a nursing student at Arizona State and he should also look at the widely available footage of BLM Marxist rioters wearing camo and carrying AR-15s.

    JE comments: Rittenhouse sort of "goes" to Arizona State--it's an online program. His latest plan is to change his name and pursue in-person nursing studies.  Punk or no punk, I hope I never have to put my life in his caring hands.

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    • Rittenhouse's Online Studies (Francisco Wong-Diaz, USA 11/25/21 4:25 AM)
      Re Rittenhouse's online studies: There are now thousands of Americans holding online graduate and undergraduate degrees. I will not challenge their validity or quality, but as a traditionalist I value more personal class attendance and teaching.

      After working on a Juris Doctor at UC Berkeley and Masters and PhD Degrees at University of Michigan, I appreciate the difference of being able to "press the flesh."

      JE comments:  We're on the same page here, Francisco.  Online education is not my cup of tea, although I will acknowledge that you can learn anything on YouTube.  Just yesterday I figured out how to purge and reset a computer, without calling in the specialists.  Another pedagogical triumph for the 'Tube.  Otherwise here in Delaware, I would have had to go to Hunter Biden's computer guy.

      The skinny on Rittenhouse's studies:  He enrolled just last month in a non-degree program through Arizona State.  The University is careful to point out that Rittenhouse has neither applied nor been admitted as a regular student.  Given the timing, I suspect he became a "student" on his lawyer's advice, to make him seem like a wholesome, normal kid.

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  • In Rittenhouse Case, the Jury Heard All the Evidence; the Public Did Not (George Aucoin, -France 11/25/21 3:54 AM)
    Reading through the WAIS commentary on the Kyle Rittenhouse acquittal on charges of murder as well as JE's comment, "I'm still at a loss how self-defense can apply to anyone literally looking for a fight" is emblematic of the Left's disillusionment and confusion over the jury verdict.

    Of course, the confusion was duly sown by the corporate media who apparently cannot find their way out of Wikipedia as a source reference. Let's try Black's Law Dictionary, 11th Edition, on-line no less, which defines "Aggressor" thus: "The party who first offers violence or offense. He who begins a quarrel or dispute, either by threatening or striking another."

    There are those that actually believe that openly carrying a legal firearm, absent any other physical act, is violence. And double that if the firearm wearer is a Caucasian male at a Black Lives Matter riot.

    The concept of self-defense (actually a legal "right" in certain circumstances) doesn't support that conclusion. Black's defines "self-defense" as: "The protection of one's person or property against some injury attempted by another." John Eipper's "looking for a fight" is at the crux of the confusion and no doubt at the core of some of the jury instructions hammered out between attorneys and the judge.

    Was Kyle Rittenhouse looking for a fight? The jury heard all the evidence adduced at trial. Rittenhouse's own testimony offered on the stand contradicted that speculation. Evidence offered at trial was Rittenhouse went to protect others from the mob. The jury had the opportunity to review video taken of the of the interaction between the defendant and the men killed, which undoubtedly informed their twelve individual conclusions as to who the aggressor was in each instance of violence.

    Furthermore, the State was obligated to prove Kyle Rittenhouse had the required mental state (mens rea) to inflict grievous bodily harm, beyond a reasonable doubt. Black's Law Dictionary further defines the right of Self-Defense as "An excuse for the use of force in resisting an attack on the person, and especially for killing an assailant," citing Whart. Crim. Law.

    However, as David Duggan aptly points out, prosecutorial overreach can spoil (unintentionally or otherwise) the juridical balance of weighing evidence and is non-reviewable if the jury votes to acquit the defendant of the charges.

    Finally, to place Black's Law Dictionary back on the shelf and to close with an oft-repeated line from one of my Cajun criminal law professors: "The Facts make the Law Walk and Talk."  The jury heard all the evidence at trial, we didn't.

    JE comments:  I don't see how disillusionment over the verdict is a "Left" thing, but almost nothing remains in today's America that hasn't been politicized. Let's at least try to keep Thanksgiving free of partisanship.

    George, you speak of prosecutorial overreach.  Do you believe a lesser charge against Rittenhouse could have "stuck"?

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