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I have tuned in to an awful lot of Court TV this week watching the Kyle Rittenhouse trial kicking off up in Kenosha Wisconsin. I am keenly interested in this trial, and as it turns out it is getting nationwide daily headlines.

This is one of two homicide and self-defense trials Court TV is covering this week-a rather rare occurrence. The other trial is down in Glynn County GA, and apparently Georgia has the better film crew and director. The Kenosha trial camera man has real trouble trying to decide whether to show the in courtroom videos vs showing the defendant or witness faces and is slow to switch between the two. It is also quite evident the audio drops off consistently for a few seconds at a time during various clips when things are getting interesting. Reminds me of the old Jr high PE coach reading to us from the Sex Ed book when he got to the actual procreation stuff…we suspected something was going on there, but dang if we could figure out what it was and the old Coach was not adlibbing any of it or taking questions.

I am a good TV watcher, but am not just a fan. I am a bit of a player, being a former Assistant State’s Attorney and retired U.S. Special Agent. The network does not call me to provide commentary or my opinions, but for free I will provide a couple of items to watch for in this trial and yes, I don’t know how it will turn out any more than you do. It will all be up to the jury.

1. Aggressor vs Self Defense. The state has taken a very hard line and has been trying to paint 17 yr old Kyle Rittenhouse as the aggressor, despite huge amounts of eyewitness videos which capture almost the entire sequence of events. I think I have the time line correct here: Rittenhouse was chased by the first now deceased subject who was hit by four rifle shots, was chased down the street by a loose mob, fell down and an unknown attacker tries a flying kick-couple rounds were fired and missed. Then another attacker hit Rittenhouse in the head while on the ground with a skateboard (to his fatal gunshot detriment), and then another potential attacker approached the downed Rittenhouse with a Glock pistol pointed at the boy, and Rittenhouse shot him in the gun arm. Rittenhouse then fled down the street towards the police lines. None of this is in much dispute. The trial is all about whether Rittenhouse could use deadly force as self defense with each of the people who chased and attacked him.

2. Video, video, video. Have you ever watched a TV show and then argued with someone who also watched the same show? How could they see it any different than you did? Happens all the time in court. The state, which had to do something with the city burning down and riots going unchecked for days, arrested the defendant and charged him with 7 counts from 1st Degree Reckless Homicide down to violating the emergency curfew (so did hundreds of other anarchists, protestors and rioters.) The defense watches the same videos, and said this kid went there to help out, painted over graffiti, helped guard car lots, and even went out on patrol with a medical bag offering medical care to rioters before being chased and beaten. After the first two days of the trial, it was obvious the poor jury will have to watch the same video footage over and over. The trial is expected to run two weeks- that’s a lot of video.

3. Video is better than real life. This may or may not be a strange thing for you to believe, but Americans trust TV more than they trust human witnesses. Both sides will argue vigorously through ardent attorneys, the way they watch the video clips is the correct one. But in this case those jurors will decide what they believe from watching TV- not from witness testimony.

4. Humans make terrible witnesses. Well known in the law enforcement and court house communities, you can count on witnesses to be only about 60-70% accurate when they recount drama events. There is just too much going on to process it objectively. A good witness can provide details easily. A poor witness stands out like a sore thumb. Mix in some social media and spin that up, and you have no idea if you are seeing any truth before the actual trial starts. Remember all the hype about the “street witnesses” down at the Ferguson MO trial? When they got into the courtroom, it was nailed down to the actual facts and testimony-many people had previously made up their minds and were quite upset that the justice process had failed, but real testimony and a real trial are what counts, not just street rumors.

5. The jury won’t hear about the backgrounds and criminal history of the rioters/attackers/social justice advocates. Media outlets reported Joseph Rosenbaum was a convicted felon child rapist with multiple victims and was released from the hospital the morning of the riot/attacks/shootings. The judge eliminated any comments on his treatment. According to several news reports, Anthony Huber, the skateboard attacker was a convicted felon for strangulation and had a recent case of domestic abuse opened just prior to his death. Gaige Grosskreutz, the pistol wielder who got shot in the arm, was not a convicted felon as previously reported in the media, but had a 2016 case of being armed with a firearm while intoxicated and had some non-prosecuted Facebook threats prior to the shooting. He is suing the police, city and county for creating the situation where he was shot. I searched online, and have not found any charges ever filed against Grosskreutz for bringing his gun and aiming it at Rittenhouse. The state will obviously be counting heavily on Grosskreutz, the only surviving gunshot victim to prove Rittenhouse was the bad guy in a sea of rioters.

The defense will be able to introduce evidence of good character for Rittenhouse, and show his lack of a record and how he went to help people and offer medical assistance in addition to being an armed guard, but this of course opens the door to the state getting to contradict the good character evidence. The state wanted to introduce some potentially damaging video clips of Rittenhouse from other dates, but the judge denied them at pre-trial hearings so they will not be allowed in to this trial.

6. Expert Witness impact. With all the video being played over and over, I can see much of the live human testimony being largely ignored. Both sides offered to bring expert witnesses to testify-people who can bring extra detailed knowledge and experience, which juries tend to treat as extra believable witnesses. The state’s proposed expert witness fizzled out before the trial started, so they won’t have one. The defense got an expert in self defense involved in pre-trial hearings and will be looking to use one who deals with videography, cutting out still photos and measuring time periods between actions and gunshots etc. How important would that type of testimony be in a trial defined by blurry cell phone video clips?

7. Wisconsin self defense law. Self defense is an affirmative defense, meaning the defendant admits the did the acts but believes they were justified because they were defending themselves from death or grievous bodily injury. The state will try to say Rittenhouse created the deadly situation by brining his gun and being present with bad attitude and thus forfeits protection from self defense claims. The jury will get instructed on two points, 1. Did Rittenhouse believe he was in peril? and 2. Was this belief “reasonable” in light of the situation, which includes his young age. Wisconsin does not require someone to retreat, and the jury will have to look at the video to see if Rittenhouse was fleeing danger prior to the shooting as proof of his intentions-which of course could change in an instant.

8. Proof beyond a reasonable doubt, is a stiff level the state has to carry to get the conviction. Beyond a reasonable doubt however does not mean proof beyond all possible doubt, just reasonable doubt. If the jury sees the first shooting as a criminal homicide they will probably find all three shootings to be crimes, either the charged crimes or lesser included offenses. But if even one juror holds out, they can’t convict, and I think they will see so much video footage they will have strong opinions on what they saw-over and over for two weeks. If they find it all to be a self defense situation, my personal belief is they will still convict on the possession of a weapon charge by a minor and the paltry curfew law.

My ideas on what might happen are just that, my ideas, but this is a very interesting trial to watch no matter how it comes out, and like many people I watch it and think “What would I have done?” and I think I know how I would vote if I was on the jury.

4 thoughts on “Watching the Rittenhouse Trial Unfold”
  1. Excellent article, Mike. You have provided more clarity on the Rittenhouse episode than all of the combined overpaid talking heads on TV. If only the national media had your clarity of vision and observation, we would all be a lot better off.

  2. Rittenhouse is not guilty of possession by a minor under a plain text reading of the applicable WI law. If you read the entire section there is a specific exception that states possession of rifle or shotgun by someone under 18 is only prohibited if the rifle or shot gun is a short barrel rifle or shotgun. Rittenhouse was prohibited from possessing a hand gun but not the rifle.

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