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Law & the Courts

The Rittenhouse Prosecution Is Not Going So Well

Kyle Rittenhouse, the teenager charged with killing two people and injuring another during riots on the streets of Kenosha, Wis., attends his extradition hearing in Lake County, Waukegan, Ill., October 30, 2020. (Nam Y. Huh/Reuters Pool)

Today, the judge dismissed a minor charge against Kyle Rittenhouse. The prosecution had charged Rittenhouse with violating Kenosha’s curfew that fateful night but failed to document the curfew’s existence before resting its case. Whoops.

It’s a small thing, but it’s generally representative of how this trial has been going.

Rittenhouse killed two people, injured a third, and took shots at a fourth; prosecutors allege that none of this was justifiable. He’s also accused of endangering a bystander via one of the shootings and violating Wisconsin’s gun laws, bringing the remaining charges up to six in total. And of course, legalities aside, his decision at the age of 17 to head to the scene of a likely riot with a gun was idiotic and dangerous. If the jury dislikes even one shot he fired, he could do serious time.

But the prosecution’s own witnesses kept saying things that helped the defense. Richie McGinnis, a Daily Caller videographer, testified that the first person Rittenhouse shot had chased him and lunged for his weapon. (When a prosecutor tried to cast doubt on whether McGinnis could know what the guy was trying to do, he memorably replied, Uh, well, he said [f***] you,’ and then he reached for the weapon.) Gaige Grosskreutz, the armed man Rittenhouse shot in the bicep, admitted that Rittenhouse had not fired when he had his hands up, and shot only when Grosskreutz’s own gun was pointed at Rittenhouse.

As I noted when I wrote about this case back in August of last year, Rittenhouse is on video running away from angry protesters in the seconds leading up to each of the two separate shooting incidents. While the available videos and testimony don’t perfectly capture everything that happened and how it got started, they certainly do show that he fired under duress, with people closing in on him and attacking. In addition to seeing a gun pointed at him and having someone lunge for his own gun, he was chased, pounced on by a skateboard-wielding assailant, and kicked.

To get Rittenhouse on the biggest charges, prosecutors needed to disprove his self-defense claims beyond a reasonable doubt. They needed to show that he didn’t reasonably fear for life or limb when he fired, or that he’d provoked his attackers in a way that, under Wisconsin law, would eliminate his right to use lethal force in self-defense. (For example, if he did something unlawful to provoke them and then failed to retreat from their attacks, or if he provoked them with the intent of using the behavior he provoked as an excuse to kill them. Legal Insurrection has a deep dive into how “provocation” works in this case here.) I don’t see how they’ve done that with respect to any of the shootings.

But we’ll see what the defense portion of the trial brings.


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