Below is my column in USA Today on the collapse of the Kyle Rittenhouse trial due to a series of prosecutorial blunders.
What is worrisome is the highly slanted coverage over the last year, particularly during the trial itself. Many in the media have not focused on the countervailing facts in the case.
Today the jury will get the case following closing arguments and jury instructions. One issue to watch is how Judge Bruce Schroeder handles the gun count, which is based on what I believe is a flawed legal interpretation by the prosecution.
Here is the column:
The trial of Kyle Rittenhouse increasingly seems like a legal version of the parable of the blind men and the elephant. By only touching discrete parts of the animal, the men describe vastly different animals. In coverage of this trial, one would think that there were parallel trials occurring in Kenosha, Wisconsin.
One consensus however is emerging: Things are not going well for the prosecution.
But the reason for this developing failure depends greatly on what media you are watching other than the trial itself. It is either the product of systemic errors or systemic racism.
Rittenhouse is facing six charges that range from first-degree homicide to a misdemeanor of being a minor in possession of a dangerous weapon. At this stage, the prosecution may celebrate even a misdemeanor conviction.
Prosecution’s bumpy start, and finish
The prosecution stumbled out of the gate in the trial. Gaige Grosskreutz was the third person to be shot by Rittenhouse. Grosskreutz admitted under cross-examination that Rittenhouse did not shoot him when he had his hands up after their confrontation. He admitted that it was only after he pointed his handgun at Rittenhouse and moved toward him that Rittenhouse fired.
Likewise, a prosecution witness, Ryan Balch, testified that one of the other people shot, Joseph Rosenbaum, said that he intended to kill Kyle Rittenhouse. Other witnesses described Rosenbaum as “belligerent” or “hyperaggressive.”
Later, the prosecution called Richard McGinniss, a journalist with The Daily Caller who was reporting from Kenosha that night. He was near Rittenhouse when Joseph Rosenbaum was shot. The prosecutor told McGinniss, “I mean you have no idea what Mr. Rosenbaum was ever thinking at any point of his life. You have never been inside his head, you never met him before.”
McGinnis said, “I never exchanged words with him, if that’s what your question is.”
The prosecutor then pressed McGinnis on how he had no idea what Rosenbaum was thinking because it “is complete guesswork, isn’t it?”
That is when McGinnis delivered a haymaker, noting, “Well he said (expletive) you, and then he reached for the weapon.”
The prosecution’s own medical expert, Dr. Doug Kelly, appeared to confirm that the forensic evidence of soot injuries on Rosenbaum’s hand could be consistent with Rosenbaum trying to grab the barrel of Rittenhouse’s rifle when the gun was fired.
It got worse from there, including a glaring constitutional violation by the prosecution when Binger began his cross examination of Rittenhouse by commenting on his decision to remain silent.
The judge correctly tore into the prosecutor. Any first-year law student knows that you cannot comment on the silence of a Mirandized defendant after an arrest under the Fifth Amendment – let alone ignore a court order.
Biased media viewers
Even without the unforced errors by the prosecution, this was always a difficult case. Wisconsin has a strong self-defense standard. After a defendant claims to have acted to repel a threat, the burden is on the prosecution to rebut that claim beyond a reasonable doubt.
Instead, the prosecution prompted its own witnesses to create layers of doubt in the case. In doing so, it seems to have reduced the range of possibilities to somewhere between a hung jury and outright acquittal on the major charges.
The problem is that many people may be unaware that the case is collapsing due to such evidentiary or tactical failures. Any hung jury or acquittal will come as a shock, and the level of outrage is likely to be greater. This case began with violent rioting in Kenosha, and the news coverage is fueling the danger of renewed violence.
It is even worse in that some coverage has dismissed the trial as an exhibition of raw racism. Some have criticized Judge Bruce Schroeder after he enforced long-standing constitutional principles and defended the core constitutional right of the defendant against self-incrimination.
MSNBC host Tiffany Cross advocated for Schroeder’s removal and called on columnist Elie Mystal to discuss the matter. Mystal, who stated earlier this month that white, non-college-educated voters supported Republicans in the 2021 races in part because they care about “using their guns on Black people and getting away with it,” not surprisingly, has written that this trial is a sham.
One man – not society – is on trial
MSNBC’s host Joy Reid also attacked the trial and suggested that Rittenhouse’s emotional breakdown on the stand was fraudulent. Her guest, MSNBC legal analyst and Georgetown law professor Paul Butler, concurred and called it “the greatest performance of (his) life.”
Butler declared Rittenhouse “was well-prepared by his defense attorneys to disrupt his image as a trigger-happy vigilante who went on a shooting rampage at a Black Lives Matter protest.”
Butler, who has written that Black jurors should use “jury nullification” to refuse to convict Black defendants in drug cases, insisted in a previous appearance that an acquittal would fuel future violence by white people.
Reid added Wednesday, “If you want to know why critical race theory exists, the actual law school theory that emphasizes that supposedly colorblind laws in America often still have racially discriminatory outcomes, then look no further than the trial of Kyle Rittenhouse.”
However, Rittenhouse is not to be judged for society’s historical racism, and such history does not change the underlying facts.
Either Grosskreutz (who is white) was pointing the gun at Rittenhouse’s head or he was not. Either Rosenbaum (who was white) was grabbing the barrel of Rittenhouse’s gun or he was not. Such facts do not change through CRT translations.
Many in the media rightly criticized those who encouraged riots on Jan. 6 with unsupported claims of electoral fraud. However, some of the same media figures offer distorted accounts of this trial. The narrative can overwhelm the facts.
Moreover, if left uninformed of the real legal deficiencies in the case, that narrative is likely to control the response to any failure to convict.
These protests are part of a larger debate on racism in our country. However, this trial is about the actions of one individual – not society – in 2020. Those actions are increasingly favoring acquittal on the most serious charges.