KENOSHA, WISCONSIN – NOVEMBER 05: Kyle Rittenhouse looks back as the late Anthony Huber’s great aunt, Susan Hughes, enters the courtroom during his trial at the Kenosha County Courthouse on November 5, 2021 in Kenosha, Wisconsin. Rittenhouse is accused of shooting three demonstrators, killing two of them, during a night of unrest that erupted in Kenosha after a police officer shot Jacob Blake seven times in the back while being arrested in August 2020. Rittenhouse, from Antioch, Illinois, was 17 at the time of the shooting and armed with an assault rifle. He faces counts of felony homicide and felony attempted homicide. (Photo by Sean Krajacic-Pool/Getty Images)
After one week of testimony in the trial of 18-year-old Kyle Rittenhouse, who is charged with multiple counts of homicide after killing two people and wounding a third during a protest against police violence in Kenosha last year, the contours of each side’s case have come into view.
For the prosecution, a lot of testimony has focused on the actions of other individuals in Kenosha that night and why, amid all the chaos, Rittenhouse was the only person who shot anyone. For the defense, which is making the claim that Rittenhouse acted in self-defense, the case has hinged on breaking down the shootings into the few seconds before Rittenhouse decided to shoot and why his decisions were reasonable.
“On one side you have the state, the general theme, we have an individual who has shot three people in the span of three or four minutes and the people he shot had no relationship to each other,” Ion Meyn, a professor at UW-Madison School of Law, says. “He wasn’t being attacked by a gang, a mob, an organized group of people. Each [was] shot within three or four minutes. And the defense is supposed to be saying, under the law, it was justified to shoot them. It was a tough atmosphere to deal with for the defense.”
“The defense is trying to look at each incident in a microscope and completely separately in a few seconds,” Meyn continues. “Just that moment right before the shot was fired as if the other context doesn’t matter. They said in the pre-trial they’re going to take that three of four seconds and analyze frame by frame. To decontextualize these encounters, to see from a straightforward view, action and reaction.”
The entire case, according to Lanny Glinberg, director of the Prosecution Project at UW-Madison School of Law, will come down to what was happening in the moments before each shooting.
“What he was aware of is what matters,” Glinberg says. “He has to, in order to get the benefit of the privilege, the actor had to realize he had the reasonable belief of death or great bodily harm and acted reasonably to stop that threat. This is going to turn on what was going on in the moments leading up to his firing his shots.”
Throughout the trial, both sides are trying to shape the narrative around the actions of law enforcement in Kenosha and whether the occasionally explicit approval from the cops toward firearm-wielding counter protesters contributed to an environment that led to the deaths.
As the case went through its pre-trial process, the prosecution and defense fought over whether or not the jury would be able to hear evidence of law enforcement’s role in the chaos. Videos showed officers offering Rittenhouse water and saying they “appreciate” him and the other armed citizens he was with. Earlier this year, internal text messages between the officers that were obtained by the Wisconsin Examiner showed that the armed citizens were considered “friendly.”
On Friday, Kenosha Police officer Pep Moretti testified that the Kenosha streets were like a “war zone” that night.
Assistant District Attorney Thomas Binger said before the trial that he didn’t want the case to become about “what law enforcement did or didn’t do that night.”
“Officers thought open-carry folks were part of the havoc, versus preventing the havoc,” Meyn says. “As you know, this is a contested issue. The defense is going to show video of the officers offering water and saying thank you. The defense is going to say they were emboldened by the officers. That’s one big theme that’s contested by both sides.”
The high-profile trial has gotten national attention after the Rittenhouse incident became a flash point in America’s racial reckoning in the summer of 2020. Meyn says he thinks it’s “extraordinary” that our society is litigating issues such as race and gun ownership in a trial that could send Rittenhouse, who was 17 at the time of the shootings, to prison for life.
“You’re a minor, for purposes of whether or not you can carry a weapon you have to be 18, for the purposes of being prosecuted you’re charged as an adult,” Meyn says. “Because the law is treating this individual as an adult we all get behind it. This is a kid that’s really susceptible and feeling a sense of camaraderie with these older adults. You can see the draw for a kid. There’s no accountability for these guys, they let a 17-year-old roam around with an AR15 in a situation that could pop off in a second. What are we doing as a society allowing this kid to walk around with an AR15 and incarcerate him for life? What are we doing?”
“These are problems created by these unbelievably defensive, violence-prone, fear-based adults,” he continues. “Now this societal fight is being played out in this case, and we’re forgetting the individual involved is a minor. That kid was way over his head through and through. Whether or not he was justified or not, he was panicking, scared and had a 17-year-old brain. Part of this is on us. Whenever I see a 17-year-old walking around with an AR15, a certain part of that is on us.”
The prosecution is planning to rest its case on Tuesday and then the defense will get a chance to bring its own witnesses. Rittenhouse’s attorneys have said he will take the stand and testify, a decision that might be needed to help bolster his claim of self-defense, but one that may be fraught for the defense, according to Meyn.
“If Rittenhouse testifies it’s going to be a disaster for the defense,” Meyn says. “As a defense attorney, no matter what, it’s going to be the decision that hurts you. Either way there’s going to be damage. Especially here, by the way, with an 18-year-old kid on the stand against a seasoned prosecutor in cross [examination]. I’d be terrified as a defense attorney.”
For the prosecution, cross-examining Rittenhouse comes with its own challenges. For one, the prosecutor doesn’t want to appear to the jury as if he’s being a bully to a teenaged defendant, according to Glinberg, a former Dane County assistant district attorney.
“They don’t want to come across [as a bully],” Glinberg says. “In terms of cross examining Rittenhouse, they would have to, to the extent they can, pull out a few themes they want to identify and draw out from him. It could be about his credibility, is he credible when he’s testifying? And, on direct examination, in a way that’s self-serving? Similarly they would want to draw out or identify why his beliefs that he faced that threat may have been unreasonable.”
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