Heard that Sunday--following the Packer game--things might get spicy. That would be unfortunate, as that is when the deer hunters will be returning to their homes, complete with rifles and ammo.
Anyhow......let's not forget granny-smackers, who ALSO must live in fear should they attempt to kill someone who's armed. What IS this world coming to?
It lends an interesting symmetry to the discussion of what is relevant and what is not. Whatever Rosenbaum's previous crimes, the defense is not allowed to refer to them. The prosecution cannot decline to go forward with the case because they don't like the bastard and would rather focus on crimes against more innocent citizens. The judge cannot allow them to influence him, and the jurors cannot even be told this information, for fear that it would influence them, however much they tried not to be influenced. Rosenbaum's previous character is irrelevant to this court. If his neighborhood, or the families of his victims, or those traumatised themselves by others want to be influenced by this they are free to in their personal opinions. But not in any legal and official matter.
This can be used as the instructional example for why Kyle Rittenhouse's previous actions are also irrelevant - in court. Once people start shooting at you, unless you are yourself presenting a danger or committing a crime, you have a right to self-defense. There is no expectation that he should say "Well gee, now that it comes down to it, I didn't come by gun quite cleanly. Because I shouldn't have it, I'll just put it down now." What would happen is more like "I'll risk whatever penalty I'm due about the gun. Better to be judged by twelve men than carried by six."
People can have whatever private opinions they want about him. They can say "He was trying to interfere with those noble BLM protestors who are by definition right in all things, so I hope he suffers." They just can't do anything official against him, like deny him a job on that basis.
As a side comment about the repeated pearl-clutching that he crossed state lines, Antioch is a suburb of Kenosha, a border town about eight miles away - but in Illinois. People usually regard the city that they are in a suburb of as part of their territory of interest, which might include defense. If he has technically violated some law (the judge thought it not important enough to carry forward), then it is the same as the acquisition of the gun. "I'll take my chances on the technicality, and even pay the fine and do the time if it comes to that. This is more important." And it is. Such laws are one-size-fits-all and often poor guides. It's the sort of chicken-shit crime that police get very bad press for enforcing when it is clearly politically motivated, because of race or which alderman you offended. They used to get away with that, but we have gradually cracked down on it.
It was not well-remarked, but I gathered the gas station where he was staying until the conflict started belonged to his grandparents. If that's true, he was even on family property.
As for the past character of the victims issue, I think it can be relevant to a current case. It's true that you don't know the history of a person you meet for the first time. It's also true that we often form accurate judgments about people almost instantly. The jury isn't going to be in the position to 'get a sense' of the guy you shot, so the reasonableness of feeling frightened that he would kill you might be in question. Learning that this guy was a convicted violent felon who had a habit of beating grandmothers or raping children might serve as a functional replacement. It was doubtless helpful to Kyle's case that there was video of the one guy running around acting like a violent psychopath and spitting racial slurs. They didn't get to meet that guy, but seeing him helped to convey what kind of person Kyle was encountering.
It's also true that we often form accurate judgments about people almost instantly.
It's also true that we often form wholly inaccurate judgments about people almost instantly.
The thug's prior history was properly excluded: part of a self defense allegation, at least under Wisconsin law, is whether the belief of severe risk of receiving bodily harm or death in the events was reasonable--only if it was can the application of lethal force by the defendee be judged reasonable. What Rittenhouse believed about the risk to himself can only be evaluated--guessed at--by what he knew of his assailant during the time of the assailing. The jury, being allowed to know the thug's prior history, might form an opinion of the danger to Rittenhouse, but their opinion is irrelevant to what was in Rittenhouse's mind at the time he fired.
"It's also true that we often form wholly inaccurate judgments about people almost instantly." I was implying that, but upon further review, I'm glad you mentioned it. Good on y', mate.
I understand the logic of the exclusion. I just disagree that it’s necessarily proper. This time there was video evidence to help the jury develop a picture of the encounter, and to judge how reasonable the fear was. Other times there is not, and it matters if you’d encountered a violent felon or a choir boy.
it matters if you’d encountered a violent felon or a choir boy.
It would matter if I knew I'd encountered a violent felon or choir boy. It wouldn't matter a whit what the jury knew that I didn't; they're required to judge what was in my mind, not what might be in their own mind. I'm the one who shot the man, not them. Indeed, if they knew the man was a choir boy, and I didn't, they'd have no way of knowing whether my fear of harm was reasonable, because they wouldn't know what I was encountering, only what they knew from their God's eye view. It's my judgment they're assessing, not their own.
Yes, but in assessing your judgment it can be helpful to know if you were right or wildly off. It’s relevant that your fear was provoked by (say) a psychotic just released from hospital with a record of violence. The standard is that a reasonable person would have felt the fear; and a reasonable person might well when confronted by such a character.
In the middle of a nighttime riot with fires and hazy smoke, I've already been threatened, had weapons raised against me--both firearm and club--been struck several times with the club, all the while being chased. In the end game, I fall, a man approaches on the run and gets close, hand raised, an object in his hand. Is he your choir boy seeking to help me or your violent felon seeking to kill me?
What the jury knows from outside doesn't matter to what I see and fear in the moments of the chase and end game. Except it does matter in this regard: it too easily can prejudice the jury for me or against me. They have to know what I know, and not know anything else if they're to remain objective. Their evaluation can't matter. Only their evaluation of my evaluation can matter.
The judge correctly allowed video of the unhinged behavior of Rosenbaum in the hours before the shooting, because Rittenhouse was aware of it at the time, so it was directly relevant to the reasonableness of his judgment that he was in acute danger when Rosenbaum finally went completely over the edge. The jury also got a good bit of video evidence of how chaotic and dangerous the general atmosphere was, which was pushing the envelope a bit, but still relevant to Rittenhouse's reasonably perception of danger. I found the video with the casual background of a whole crowd loudly demolishing cars quite devastating to the prosecution's utterly dishonest painting of the "victims" as peace-loving activists hanging out on the street to show their love and tolerance for down-trodden races.
The jury was not allowed to learn the sordid past of the three men who were shot, because Rittenhouse didn't know about it that night. It's relevant today to my own assessment of the situation, as a member of the public, and I certainly have no patience with the blue press's hand-wringing over the terrible loss to society when a young man threatened with death or serious bodily harm protects himself against three guys who shouldn't have been allowed on the street without guardians. This was not "angels vs. vigilante thugs." If we're going to draw big lessons, let's consider why our justice system can't effectively keep guys like Rosenbaum et al. away from children and taxpayers, not why gainfully employed young men find it necessary to arm themselves when cowardly, virtue-signaling politicians declare a riot holiday for peace.
The judge also properly excluded evidence of Rittenhouse's previously wishing he had his rifle on him so he could stop a CVS store from being looted. The prosecution wanted to use this video--well, frankly, for its prejudicial value--but technically, to show that Rittenhouse fully intended to use deadly force to protect property rather than his own life. The problem for the prosecution is that there was zero evidence in the record that he attempted to use any force, let along deadly force, to protect property on the night of the shootings. We don't allow "propensity" evidence except in very narrow exceptions. The jury isn't supposed to say, "There may be no evidence that Joe burglarized the Smith home on August 25, but it seems like the sort of thing he'd be likely to do, to judge from his habit of burglary in the past." Or, in this case, more like "in light of his habit of committing the completely different crime of beating up family members." You can bring that stuff up in the sentencing phase, but not before.
It might conceivably have gone to motive if Rittenhouse had been caught on camera shooting at people to stop them from lighting fires instead of from killing him, but in that case he'd never have gotten anywhere with the self-defense claim in the first place. In Wisconsin, self-defense clearly does not apply to the defense of property. You can carry arms in defense of property, and apparently even use non-lethal force in that effort, but if you're going to escalate to deadly force, you must be in reasonable fear of death or serious bodily injury. Rittenhouse stayed clearly within Wisconsin law in this context.
12 comments:
Apparently there will be no riots in Kenosha tonight, because November.
https://twitter.com/lyndseyfifield/status/1461887218792939522
Heard that Sunday--following the Packer game--things might get spicy. That would be unfortunate, as that is when the deer hunters will be returning to their homes, complete with rifles and ammo.
Anyhow......let's not forget granny-smackers, who ALSO must live in fear should they attempt to kill someone who's armed. What IS this world coming to?
It lends an interesting symmetry to the discussion of what is relevant and what is not. Whatever Rosenbaum's previous crimes, the defense is not allowed to refer to them. The prosecution cannot decline to go forward with the case because they don't like the bastard and would rather focus on crimes against more innocent citizens. The judge cannot allow them to influence him, and the jurors cannot even be told this information, for fear that it would influence them, however much they tried not to be influenced. Rosenbaum's previous character is irrelevant to this court. If his neighborhood, or the families of his victims, or those traumatised themselves by others want to be influenced by this they are free to in their personal opinions. But not in any legal and official matter.
This can be used as the instructional example for why Kyle Rittenhouse's previous actions are also irrelevant - in court. Once people start shooting at you, unless you are yourself presenting a danger or committing a crime, you have a right to self-defense. There is no expectation that he should say "Well gee, now that it comes down to it, I didn't come by gun quite cleanly. Because I shouldn't have it, I'll just put it down now." What would happen is more like "I'll risk whatever penalty I'm due about the gun. Better to be judged by twelve men than carried by six."
People can have whatever private opinions they want about him. They can say "He was trying to interfere with those noble BLM protestors who are by definition right in all things, so I hope he suffers." They just can't do anything official against him, like deny him a job on that basis.
As a side comment about the repeated pearl-clutching that he crossed state lines, Antioch is a suburb of Kenosha, a border town about eight miles away - but in Illinois. People usually regard the city that they are in a suburb of as part of their territory of interest, which might include defense. If he has technically violated some law (the judge thought it not important enough to carry forward), then it is the same as the acquisition of the gun. "I'll take my chances on the technicality, and even pay the fine and do the time if it comes to that. This is more important." And it is. Such laws are one-size-fits-all and often poor guides. It's the sort of chicken-shit crime that police get very bad press for enforcing when it is clearly politically motivated, because of race or which alderman you offended. They used to get away with that, but we have gradually cracked down on it.
It was not well-remarked, but I gathered the gas station where he was staying until the conflict started belonged to his grandparents. If that's true, he was even on family property.
As for the past character of the victims issue, I think it can be relevant to a current case. It's true that you don't know the history of a person you meet for the first time. It's also true that we often form accurate judgments about people almost instantly. The jury isn't going to be in the position to 'get a sense' of the guy you shot, so the reasonableness of feeling frightened that he would kill you might be in question. Learning that this guy was a convicted violent felon who had a habit of beating grandmothers or raping children might serve as a functional replacement. It was doubtless helpful to Kyle's case that there was video of the one guy running around acting like a violent psychopath and spitting racial slurs. They didn't get to meet that guy, but seeing him helped to convey what kind of person Kyle was encountering.
Heard that Sunday--following the Packer game....
Does anybody really pay attention to PoliticalPigskin anymore?
Eric Hines
It's also true that we often form accurate judgments about people almost instantly.
It's also true that we often form wholly inaccurate judgments about people almost instantly.
The thug's prior history was properly excluded: part of a self defense allegation, at least under Wisconsin law, is whether the belief of severe risk of receiving bodily harm or death in the events was reasonable--only if it was can the application of lethal force by the defendee be judged reasonable. What Rittenhouse believed about the risk to himself can only be evaluated--guessed at--by what he knew of his assailant during the time of the assailing. The jury, being allowed to know the thug's prior history, might form an opinion of the danger to Rittenhouse, but their opinion is irrelevant to what was in Rittenhouse's mind at the time he fired.
Eric Hines
"It's also true that we often form wholly inaccurate judgments about people almost instantly." I was implying that, but upon further review, I'm glad you mentioned it. Good on y', mate.
Just to mix Anglospheric metaphors.
I understand the logic of the exclusion. I just disagree that it’s necessarily proper. This time there was video evidence to help the jury develop a picture of the encounter, and to judge how reasonable the fear was. Other times there is not, and it matters if you’d encountered a violent felon or a choir boy.
it matters if you’d encountered a violent felon or a choir boy.
It would matter if I knew I'd encountered a violent felon or choir boy. It wouldn't matter a whit what the jury knew that I didn't; they're required to judge what was in my mind, not what might be in their own mind. I'm the one who shot the man, not them. Indeed, if they knew the man was a choir boy, and I didn't, they'd have no way of knowing whether my fear of harm was reasonable, because they wouldn't know what I was encountering, only what they knew from their God's eye view. It's my judgment they're assessing, not their own.
Eric Hines
Yes, but in assessing your judgment it can be helpful to know if you were right or wildly off. It’s relevant that your fear was provoked by (say) a psychotic just released from hospital with a record of violence. The standard is that a reasonable person would have felt the fear; and a reasonable person might well when confronted by such a character.
In the middle of a nighttime riot with fires and hazy smoke, I've already been threatened, had weapons raised against me--both firearm and club--been struck several times with the club, all the while being chased. In the end game, I fall, a man approaches on the run and gets close, hand raised, an object in his hand. Is he your choir boy seeking to help me or your violent felon seeking to kill me?
What the jury knows from outside doesn't matter to what I see and fear in the moments of the chase and end game. Except it does matter in this regard: it too easily can prejudice the jury for me or against me. They have to know what I know, and not know anything else if they're to remain objective. Their evaluation can't matter. Only their evaluation of my evaluation can matter.
Eric Hines
The judge correctly allowed video of the unhinged behavior of Rosenbaum in the hours before the shooting, because Rittenhouse was aware of it at the time, so it was directly relevant to the reasonableness of his judgment that he was in acute danger when Rosenbaum finally went completely over the edge. The jury also got a good bit of video evidence of how chaotic and dangerous the general atmosphere was, which was pushing the envelope a bit, but still relevant to Rittenhouse's reasonably perception of danger. I found the video with the casual background of a whole crowd loudly demolishing cars quite devastating to the prosecution's utterly dishonest painting of the "victims" as peace-loving activists hanging out on the street to show their love and tolerance for down-trodden races.
The jury was not allowed to learn the sordid past of the three men who were shot, because Rittenhouse didn't know about it that night. It's relevant today to my own assessment of the situation, as a member of the public, and I certainly have no patience with the blue press's hand-wringing over the terrible loss to society when a young man threatened with death or serious bodily harm protects himself against three guys who shouldn't have been allowed on the street without guardians. This was not "angels vs. vigilante thugs." If we're going to draw big lessons, let's consider why our justice system can't effectively keep guys like Rosenbaum et al. away from children and taxpayers, not why gainfully employed young men find it necessary to arm themselves when cowardly, virtue-signaling politicians declare a riot holiday for peace.
The judge also properly excluded evidence of Rittenhouse's previously wishing he had his rifle on him so he could stop a CVS store from being looted. The prosecution wanted to use this video--well, frankly, for its prejudicial value--but technically, to show that Rittenhouse fully intended to use deadly force to protect property rather than his own life. The problem for the prosecution is that there was zero evidence in the record that he attempted to use any force, let along deadly force, to protect property on the night of the shootings. We don't allow "propensity" evidence except in very narrow exceptions. The jury isn't supposed to say, "There may be no evidence that Joe burglarized the Smith home on August 25, but it seems like the sort of thing he'd be likely to do, to judge from his habit of burglary in the past." Or, in this case, more like "in light of his habit of committing the completely different crime of beating up family members." You can bring that stuff up in the sentencing phase, but not before.
It might conceivably have gone to motive if Rittenhouse had been caught on camera shooting at people to stop them from lighting fires instead of from killing him, but in that case he'd never have gotten anywhere with the self-defense claim in the first place. In Wisconsin, self-defense clearly does not apply to the defense of property. You can carry arms in defense of property, and apparently even use non-lethal force in that effort, but if you're going to escalate to deadly force, you must be in reasonable fear of death or serious bodily injury. Rittenhouse stayed clearly within Wisconsin law in this context.
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