Self-defense
I've spent the last few hours watching testimony in the Kyle Rittenhouse trial. I'm starting to wonder whether the defense will make a successful motion for a directed verdict at the close of the state's case. Once self-defense is alleged, it is the state's burden to prove beyond a reasonable doubt that one or more of the four exceptions to the self-defense doctrine applies. Not only is it hard to imagine a reasonable jury getting beyond a reasonable doubt on any of them, I'm not sure I can see that the state has put on even a scintilla of evidence. The state's witnesses are if anything supporting the defense's case. It makes you wonder if the state was unable to find any rioters willing to testify, from among the rag-tag, hostile, erratic group caught on the Daily Caller's video that night. Instead, the prosecutor is stuck with witnesses who are at worst neutral to Rittenhouse, if not positively sympathetic. To make matters worse, they have detailed memories, they know what they saw and what the basis is for their perceptions and judgments, and they come across as highly credible.
All it will take is one sensible juror with a backbone to end this nightmare for Rittenhouse. The defendant appears to have been lucky enough to draw a judge with good sense and a strong grasp of the rules of evidence.
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"The defendant appears to have been lucky enough to draw a judge with good sense and a strong grasp of the rules of evidence."
The fact that drawing the right judge is so important makes me realize that we have chosen to ignore Thomas Jefferson's instructions to William Stephens Smith in his 1787 letter.
I'm certainly not a lawyer but it seems to me that a directed verdict is unlikely. Based on Andrew Branca's analysis, as well as your comment, I agree that the state's evidence negating self-defense so far is weak but it doesn't appear to be non-existent. Maybe I'm applying too high a standard but it seems to me that unless the judge has strong reason to believe that the jury will really egregiously misinterpret evidence from a legal standpoint(willfully or not), or nothing relevant to deliberation on the questions of fact has been presented, the judge is almost obligated to let them have a go at it. The element that concerns me the most is innocence. Certainly from the viewpoint of the specific assaults Rittenhouse does not appear in any way to be the aggressor but it's hard to square this with the fact that he did voluntarily go armed into a situation where the prospect of using force might reasonably be expected. He didn't just grab a weapon to defend against the assaults. My guess is that the judge will probably leave for the jury to balance that against Rittenhouse's conduct that night. I'm wondering if it's more likely that he will let them deliberate, and then set aside the verdict if he thinks they've misapplied the self-defense standard.
he did voluntarily go armed into a situation where the prospect of using force might reasonably be expected.
You've made Kyle's case. Thanks!!
"... he did voluntarily go armed into a situation where the prospect of using force might reasonably be expected"--And the judge knows that that is completely irrelevant legally, even if the jury may not, which is textbook directed-verdict territory. Going into a situation where the prospect of using force might reasonably be expected is nearly the definition of the right of self-defense. The only exception is when the defendant has provoked the confrontation, and carrying a gun does not constitute provoking the confrontation, whereas rioting and generally acting like an enraged psycho certainly does.
If a burglar is coming into my living room, and I enter the living room with a shotgun, that's exactly what I'm doing: voluntarily going armed into a situation where the prospect of using force might reasonably be expected. It doesn't undermine my self-defense theory that I heard the burglar break the window and was on notice that he was there. It doesn't matter that the burglar may be so enraged or threatened by my gun, or my interrupting his plan for the evening, that he loses control of himself.
The jury keeps being shown video and hearing testimony demonstrating that the rioters in that neighborhood were downright scary. The prosecutor is trying to get an honest witness, the videographer/reporter, to say that Rittenhouse and his armed buddies were scary. He's not doing it. Rittenhouse is on film trotting around yelling "friendly, friendly" and asking if anyone needs medical help. The rioters are screaming "F*** you" and "I'll kill you," or lunging at people or threatening them with rocks or setting fires.
The worst thing the videographer has to say about Rittenhouse is that he was very young and didn't seem aware of how furious the crowd was to see him trotting around offering medical help while (quite legally) carrying a gun. When he offers help and gets a cold response, he backs away and avoids confrontation. Nothing bad happened until a few of them decided it would be a good idea to get him alone, chase him down, attack him viciously, and try to grab his gun.
I'm not quite sure how my statement "makes Kyle's case."
The prosecution is unlikely to negate any of the other elements of a self-defense claim (Imminence, Proportionality, Avoidance, Reasonableness) based on the information I have seen. The only one that is even slightly shaky in my (yes, non-lawyer) opinion is Innocence. While you can be breaking the law and still act in self-defense, you can't go 'looking for a fight' and then claim self-defense when someone throws a punch. The only avenue that the prosecution appears to have to negate Innocence is an argument that, either in the totality of circumstances or maybe specifically with respect to Rosenbaum, Rittenhouse was to some degree 'looking for a fight' that night. Do I think that's the right judgement? No but I do think the prosecution has introduced evidence, however weak, that the judge is likely to think the jury should consider. "Not Guilty" verdicts are returned all the time, and I'm sure judges have opinions on the evidence presented in those cases. That the judge might consider the prosecution case to be ineffective doesn't seem to be a reason to think he'd give a directed verdict.
(Speculation about a directed verdict in this case feels an awful lot like the quadrennial speculation that for this or that reason, one of the parties will have a 'brokered convention'. It's been seventy years since the last one and it ain't happened yet but people still predict one like clockwork.)
he did voluntarily go armed into a situation where the prospect of using force might reasonably be expected.
So, what--he has some sort of obligation to not go into any such situation? Or he has some sort of obligation to go into such situations unarmed and hope no violence will ensue, or something will fall to hand should violence occur?
Or is it that prior planning is the definition of premeditation only; it cannot be a plan for defending oneself?
And never mind that at least one of the rioters appears to have brought a loaded firearm to bear on Rittenhouse before he brought his own weapon to bear. Rittenhouse appears, in fact, to have been trying to depart the area, at the run, when the fatal encounters occurred.
Still, I agree with the opening point: the case should go to the jury. A judge should direct an acquittal only when the prosecutors have made the most egregious error-based case, not because they've prevented an egregiously bad one. What should happen, were the jury to return an acquittal on all counts after about five minutes of deliberation, would be for the judge, using both the poor case and the jury's prompt decision, to heavily sanction each of the prosecuting lawyers and call the prosecutor office chief (Head District Attorney?) on the public carpet for his decision to let the case go forward.
To make matters worse, they have detailed memories....
That, to me, deprecates their credibility. Detailed memories at this remove from the events? How much have they been rehearsing those memories--even for the best of motives and not at all under lawyerly guidance--and how much error have those rehearsals injected into their memories? Of course, that deprecation further weakens what the prosecutors are pleased to call their case....
Eric Hines
Early on, I worried about the "looking for a fight angle." I was afraid he'd turn out to be a yahoo looking for excitement instead of an EMT-trained kid already serving as a lifeguard. After watching the videos and listening to the testimony, I'm going out on a limb and saying I see not just poor evidence but zero evidence that he was looking for a fight.
The only sense in which he was looking for a fight is that he went into the riot to defend property and offer medical aid, carrying a firearm, as is legal under state law. I hope that never becomes part of the legal definition of looking for a fight for the purpose of negating innocence in self-defense case. It's too much like saying a black man shouldn't have walked into Woolworth's, knowing that the customers would lose their minds over it. Not everything that puts you in danger from bad people is a negation of innocence. There's ample video showing how far Rittenhouse's behavior was from instigating confrontations with individuals, or even letting jerks get a rise out of him. He seemed to have no ego at stake at all. He was there to do a job, a service. For a brave 17-year-old young man, he was remarkably calm.
I know how rare a directed verdict is. It's a measure of how empty the state's case is, how unbelievably the prosecutor is letting his own witnesses make the defense's case instead of his own, and how careful this judge is proving to be, that I would dream of making such an extreme suggestion. A motion for directed verdict should always be attempted when the state's case collapses like this, because you never know. The next step is a judgment n.o.v., to set aside the verdict if the jury does the wrong thing, clearly having judged on the hype instead of the evidence and the true legal standard. These are ways to preserve rights on appeal.
Some jurors no doubt will never get past the idea that "none of it would have happened if he'd stayed home where he belonged," just as some people will never get over thinking Trayvon Martin would be alive today if George Zimmerman had "taken his beating." The law does not, thank Heavens, require us to avoid responding to dangerous criminal behavior no matter how crazy it gets, no matter how thoroughly the police have given, and no matter how much politicians and the press cheer it on. We do not have to cede the streets to nut jobs.
Eric, I can't agree with you about the clarity of the witness's memories. The reporter, in particular, simply seems to have a firm habit of saying only what he can actually remember. He thinks carefully about questions; you can see him reviewing the memory in his mind. If he was distracted in that moment and can't honestly say he saw something or can remember it in detail, he says so. He distinguishes between what he remembers from that night and what he later saw on video. He remembers being interviewed by police and others and can explain any discrepancies the prosecutor tries to exploit. He doesn't answer on autopilot; if he disagrees with the premise of a question he speaks up firmly. He doesn't guess or speculate; if he draws conclusions he explains what led him there.
He's really quite amazing to watch on video. In future if I see a news report under his by-line, I'll pay close attention.
The standard for a DV is that we can take every piece of evidence the state puts on as literally true, and it's still not enough to sustain a conviction. A DV can't be used when there's only weak evidence, or mixed evidence. The state has the burden of proof here, though, and if you can accept all its evidence as true and it still can't move the needle--let alone move it past reasonable doubt--the defense is not supposed to be required to put on a case at all. The only way the state's evidence works here is if you apply the wrong legal standard to "looking for a fight."
The next step is a judgment n.o.v. ....
Isn't a JNOV, though, coming after the fact as it does, appealable by the prosecution? What could an appellate court do with that, though, besides return the case to the district court for a whole new trial? Aren't appellate courts barred from reviewing the facts of the case, only being able to adjudicate on the basis of trial error other than the jury's evidence assessment?
The reporter, in particular....
Yeah, but the reporter hasn't spent all this time rehearsing his memories. He has notes to refer to during pretrial prep (and coaching by the relevant lawyers), and while that might help him remember during his testimony, what he's remembering on the stand are what his immutable notes have told him; he's not remembering directly and solely from events that occurred those years ago. Of course I'm speculating here, but reporters, good and bad, take fairly thorough notes as events and interviews occur.
Other witnesses' memories, on the other hand....
One of the things that came out of the child care/abuse trials of a few years ago was that the clearer the memories of events deep in the past, the less accurate they are, and not just because of the coaching those children in particular got. Adults are just as susceptible because rehearsals after the fact inevitably inject error, sometimes trivial, sometimes significant. We're just more subtle about it.
Also, the more traumatic the events, the more likely memories are to drift from the facts as the individual seeks to minimize the trauma suffered. Hence the importance of the reporter's notes in this case.
Also, I'm not watching the trial; your evidence here is better than mine.
Eric Hines
I was willing to acquit him simply because he shot rioters, which is the appropriate thing to do with rioters. Defense of community against lawless violence is also a proper use of firearms.
I do think that the claim of self defense is well founded, though.
So if he is acquitted, any guesses how long it will take before he faces Federal charges?
Since the FBI is involved with this prosecution, the charges are probably already written. Some sort of ‘hate crime’ bull, I imagine.
So if he is acquitted, any guesses how long it will take before he faces Federal charges?
I would be willing to guess that even if he is CONVICTED, Rittenhouse will be facing Federal charges. Too.
He is an enemy of the state. A strange fate for a 17 year old who wanted to try to help his neighbors in the face of riots. The real question should be, "What can we do to force them to back off and let him go?"
More likely, he'll face civil suits if he's acquitted. Were he convicted, he wouldn't have any assets to sue over.
Eric Hines
I am already burning down this system. Kyle or no Kyle.
The feds are goners.
Amazing testimony today, and amazing misbehavior from the prosecutor. I have never seen a judge so angry. He hasn't yet ruled on the defense's motion for a mistrial with prejudice to refiling, but the prosecutor did argue that he was acting in good faith, only to draw the judge's cold response, "I don't believe you."
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