Risky decision to testify pays off for Rittenhouse, law professor says

Public anger would be ‘better directed’ at Wisconsin law that protects active shooters

By: - November 11, 2021 11:40 am
KENOSHA, WISCONSIN - NOVEMBER 10: Kyle Rittenhouse becomes emotional describing events leading up to the shooting of Joseph Rosenbaum as he testifies during his trial at the Kenosha County Courthouse on November 10, 2021 in Kenosha, Wisconsin. Rittenhouse shot 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 police attempted to arrest him 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 Mark Hertzberg-Pool/Getty Images)

KENOSHA, WISCONSIN – NOVEMBER 10: Kyle Rittenhouse becomes emotional describing events leading up to the shooting of Joseph Rosenbaum as he testifies during his trial at the Kenosha County Courthouse. Rittenhouse shot 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 police attempted to arrest him 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 Mark Hertzberg-Pool/Getty Images)

In testimony that took nearly all of Wednesday, 18-year-old Kyle Rittenhouse detailed step-by-step his actions on the day he killed two people and wounded a third during protests against police brutality last summer in Kenosha. 

Rittenhouse got emotional as he tried to describe the first shooting and during cross-examination his attorneys filed for a mistrial during what UW-Madison School of Law professor Ion Meyn says was a confusing day for the prosecution.

Rittenhouse, who is facing charges of reckless, intentional and attempted homicide, repeatedly said he didn’t do anything wrong and only shot his AR-15 rifle because he believed his life was in danger. Late in the afternoon, lead prosecutor Thomas Binger, showing a number of videos of the night, questioned Rittenhouse about why he needed to be carrying the rifle and why he considered the men he shot a threat. Meyn says this line of questioning was one of the few times the prosecution made up some ground, but it took too long to get to those questions and by then Binger may have lost the attention of the jury. 

“I didn’t understand where the prosecutor was going with his cross,” Meyn, who has worked for the Wisconsin State Public Defender and the Wisconsin Innocence Project, says. “There should be no guessing. The general rule in cross-examination is, either you know the answer or don’t care what the answer is. I felt that rule was not being followed. There was always one question too many, even if the prosecution sort of made a point, he asked that one additional question to further explain what he meant. By the time they got to what I thought was their most effective cross-examination of the day, it was the very end of the day. By that time you might have lost half the jury. To lose half the jury during a cross-examination of the defendant himself is a problem.”

Binger started his cross-examination by asking about events much earlier in the night and occasionally took tangents into topics such as Rittenhouse’s video game preferences or the fact that he ignored the citywide curfew in Kenosha that night. 

“If that’s what you’re basing your murder charge on, then you have big problems,” Meyn said. “I don’t know what that was supposed to accomplish except sympathy for the defendant. The optics for the prosecution would be terrible, the last thing they want to emphasize is that it’s a kid.”

“They started with the curfew, oh my gosh,” he adds. “You have a murder case and you’re talking about a curfew violation first? Who cares if someone’s not supposed to be there, what does it have to do with intentional homicide?”

Instead of focusing on video games or curfew violations, Meyn says he would have focused more on why Rittenhouse thought his life was threatened and how he could claim that he himself wasn’t a threat to Joseph Rosenbaum, Anthony Huber and Gaige Grosskreutz, his victims. 

“I would have gone through each of these things, these people aren’t related, aren’t together, aren’t in a gang, none of them know each other,” Meyn says, “That should be the emphasis of the cross. You shot three people in three minutes. You describe a mob, no one here knew each other. These incidents had space between them. And then the first two didn’t have a weapon.” 

“How strong does that get after he shoots someone, after he’s running down the street with an AR-15?” he continues. “That is a threat. I would’ve focused on Grosskreutz, when you saw him with a gun he became a threat, yes? So it’s OK that you — it’s reasonable when you see someone with a gun [to view them as a threat] but not when he sees someone with a gun?” 

The decision over whether or not a defendant should testify is always a risky one for the defense, but according to Meyn it mostly paid off for Rittenhouse. 

“Rittenhouse as a witness did phenomenal,” he says. “[He] maintained control of his narrative during the entirety of cross. Never waivered, regardless how many times he was asked to admit x, y or z. That’s extraordinary.”

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“To put a defendant on the stand is such a risk,” Meyn adds. “Putting an 18-year-old in with a seasoned prosecutor of a homicide division of an urban city, that’s a recipe for disaster.”

Early in his testimony, Binger started down two paths of questioning that lead to the defense’s request for a mistrial with prejudice — which would prevent the state from bringing Rittenhouse to trial a second time. 

In the first, Binger started asking Rittenhouse about the fact he hadn’t publicly spoken about the events of Aug. 25, 2020 for more than a year — which Meyn sees as edging toward asking him about his constitutional right to remain silent. 

“The prosecutor was, through his questioning, commenting on, allegedly, the defendant’s right to silence, which is absolutely forbidden and everyone knows it,” he says. “So if you’re up against experienced defense attorneys, you don’t try it, it was too obvious to the judge and the defense. You might get away with something like that in a misdemeanor trial but these are high-level guys.”

The second infraction came when Binger started to ask about an event that occurred in the weeks before the shootings and was recorded on video. Rittenhouse and a friend were sitting in a car across the street from a CVS store when they saw people they believed to be shoplifting. 

“I wish I had my AR, I’d fire some rounds at them,” Rittenhouse said about the apparent shoplifters. 

Before the trial, Judge Bruce Schroeder had already ruled that this incident would likely not be able to be admitted as evidence. According to Meyn, this incident counts as “other acts,” and the general rule is that something a person did in the past does not have any bearing on why they committed a crime later. Judges have to rule on whether or not “other acts” evidence will be admitted. 

Despite Schroeder’s previous ruling, Binger started asking a question that would have touched on this incident — without asking permission from the judge first — and the defense immediately objected. After the jury left the courtroom, the defense requested a mistrial with prejudice and Schroeder admonished Binger. 

“I don’t believe you,” Schroeder yelled at Binger after he’d said he was making his arguments in good faith. 

Meyn says he has no idea what the prosecution was doing unless they were purposefully trying to get a mistrial because they don’t believe the trial is going well and want another shot at it. In order to grant a mistrial with prejudice, Schroeder would have to rule that the prosecution is tanking the trial intentionally in order to get a “second bite at the apple.” 

“Both those things, the first one has been doctrine for 50, 60 years and the other one was already decided,” Meyn says. “To start down that road without even checking in with the judge on why the judge should reconsider his motion, he’s asking for trouble. The only thing that could explain this is the prosecution is intentionally trying to get a mistrial because it’s too obvious. The judge is super mad. It’s not the first time. I’ve been on the receiving end of a mad judge, when you’re on homicide trials you’re going to be vigorous and right up against the line and it was too much for the judge.”

Schroeder allowed the trial to go on and gave Binger time to come up with an argument against the motion for a mistrial. 

Meyn says he isn’t sure the case against Rittenhouse is being argued to its full potential, but he also sees an issue with Wisconsin’s laws and how it values a human life. 

Wisconsin’s self-defense statutes allow a person, even if they were the first aggressor, to still claim self-defense if they can’t escape the situation. 

“The person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant,” the statute states. 

Meyn says the defense is doing a good job highlighting this part of the statute, arguing that when Rittenhouse shot Rosenbaum he was cornered against parked cars and when he shot Grosskreutz and Huber he had fallen in the ground in a vulnerable position. 

But ultimately, Meyn says, the state’s laws could make it impossible to stop an active shooter from killing more people. 

“At a certain point we have to look at the law in Wisconsin,” he says. “I can tell you talking with law professors, I’m in awe of the statute in Wisconsin, and in the end it’s very forgiving. I’m wondering how cheap life is in Wisconsin.”

“It doesn’t matter if he was the first aggressor,” Meyn continues. “He never waives his right to self-defense, even if other people are in fear because of his actions. It’s an extraordinary thing, it means you can’t disarm an active shooter who’s on his butt. What are we doing? That’s the law. This is playing out, and again it’s a kid, but i think it’s time, we’re mad about this situation, it’s tragic. Are we mad at Rittenhouse? Yes, a lot of people are. But is your anger better directed not at a 17-year-old kid but how cheap life is in Wisconsin?”

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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.

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