so what the fuck just happened here?

A week and a half ago I wrote, “…don’t be surprised if Rittenhouse walks.” And yet, I was sorta kinda surprised. Because, c’mon…how could this ridiculous doofus illegally buy an assault-style rifle, carry it across a state line, insert himself into a volatile environment, carry it while claiming to offer medical care he wasn’t trained or qualified to give, carry it while claiming to protect property nobody asked him to protect, then using it to shoot three people, killing two of them, and NOT suffer any consequences? It just ain’t right.

But yeah, that’s basically what happened. But WHY did it happen? I’m not a lawyer, but I’ve been around the criminal justice block a few times, and I have opinions. It begins with the Wisconsin law on self defense, which essentially says a person can use deadly force to defend themselves if that person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.”

A lot of self-defense laws, including Wisconsin’s, include an exception for provocation and/or criminal conduct. You can’t provoke an attack, then kill your attacker and claim self-defense; you can’t engage in criminal conduct that would cause an attack, then kill your attacker and claim self defense. Makes sense, right? Okay, here we go.

Wisconsin’s self-defense law states: “A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack…”

That seems pretty clear, doesn’t it. But it continues: “…except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant….” So the law says yeah, you CAN defend yourself if you provoke an attack, but LIMITS the amount of force you can use. You can fight back, but you can’t kill your attacker.

But wait. Again, it continues with another caveat: “…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.” So even if you’ve provoked an attack through illegal behavior, you can only use deadly force to defend yourself after you’ve exhausted your other options for escape.

What does that mean in the Rittenhouse case? If he’d engaged in unlawful conduct that provoked an attack, he was only justified in using deadly force to defend himself IF he’d exhausted every reasonable means to escape. He DID try to run away before the second killing, but he tripped and fell, then shot Huber and Grosskreutz. That very possibly could fall under the Wisconsin self-defense law–tried to escape, but couldn’t. But in the initial killing, Rittenhouse was running away from Rosenbaum, then stopped, turned, shot and killed him. That seems likely to fall under the unlawful conduct exception, which would prevent him from using the self-defense claim. BUT ONLY if Rittenhouse was engaged in unlawful conduct. Like, say, illegally carrying a rifle.

The judge, remember, dismissed the illegal rifle charge. Which removed the unlawful conduct exception. Which meant Rittenhouse only had to feel his life was in danger to kill Rosenbaum. Hey bingo, he walks.

That’s how I see it. Again, I’m not a lawyer. My reasoning may be flawed. But that’s how I see it. It sucks. It’s wrong. It’s obscene on a number of levels. But that seems to be how the law is written.

There’s a lesson here. If you want to stop vigilante tourism, enact better laws. If you want better laws, vote for better legislators. You want better laws, prevent outside money and outside interests from influencing weak-ass greedy legislators.

Kyle Rittenhouse didn’t walk because he was innocent. He walked because of the motherfuckers who wrote Wisconsin’s self-defense law .

8 thoughts on “so what the fuck just happened here?

  1. And the judge. The judge throwing out the weapons charge set the stage as you described.
    I’ve also read that the prosecutor was not exactly *vigorous* in pursuing the case, but I never followed that up in detail.


    • BTW – do we know if the weapons charge can be pursued since it got tossed out? Or is it off the table in the “one bite at the apple” rule since the charge got into court before the judge tossed it?


    • Before I answer, I feel I should re-state my perspective: I’m a criminal defense guy. I spent several years as a criminal defense investigator; my initial sympathies in almost any criminal case is for the defense. NOT the defendant, but the defense and the defense team. With that in mind…

      I thought the prosecution did a pretty good job. Part of the problem for them is the fact that prosecutors almost NEVER have to face a well-funded defense team. They’re accustomed to having an advantage in terms of preparation. First off, they have a team of investigators (and uniformed police supporting those investigators) who have the weight of the State behind them when they question witnesses. They have access to forensic specialists, and laboratories, and expert witnesses supplied by the State. They have a team of lawyers supported by interns, and immediate and easy access to a law library.

      The defense is usually limited to a single underpaid, overworked lawyer. If they’re lucky, they have a single investigator (without any extraordinary authority of the State to get witnesses to answer questions).

      So the prosecution is used to that advantage, and are unaccustomed to having to face an equal opposing team. On top of that, the prosecution has to consider public opinion. Had they charged Rittenhouse with a lesser crime–like reckless or negligent homicide, which has a lower standard for criminal intend–they’d have had a MUCH greater chance of conviction, but it would have been seen as not taking Rittenhouse as a serious crime. So politically, they had to charge him with a more serious crime, which is harder to prove beyond a reasonable doubt.

      Given all that, I think they did a pretty good job. It didn’t help that they had a judge who was sympathetic to the defense. For example, the judge refused to let the State present a video of Rittenhouse–taken a couple of weeks before he shot and killed people–watching a riot on television and saying “If I had my rifle, I’d kill those people” (or words to that effect). That video goes DIRECTLY to Rittenhouse’s state of mind, which is necessary to prove first degree murder. If the judge had allowed that video, we may have had a different verdict.

      At least that’s my opinion. As to the weapon’s charge, I doubt the State will re-charge him with that (even if they could, and I don’t know if it was dismissed with prejudice or not). However, the stupid motherfucker who BOUGHT the firearm for Rittenhouse will be tried for the crime soon. How’s that for irony?

      Liked by 1 person

      • Thanks for that perspective, which is more nuanced than I could have gotten by just reading more thoroughly for myself. It is both mollifying and disturbing.
        Mollifying – prosecution did a fairly good job considering the unusual constraints of this case.
        Disturbing – prosecution is so accustomed to inadequate defenses that they did not have the tools or experience to deal with this kid having the backing he did.


      • Remember too that while the State has most of the advantages, the also shoulder the burden of proof. The defendant is (at least in theory) presumed to be innocent. The State has to prove every element of a crime beyond a reasonable doubt.

        We hear a lot about defendants ‘getting off on a technicality.’ That almost never happens, but when it does it’s worth remembering that those technicalities are actually the law.

        Liked by 1 person

      • That’s a point I hadn’t considered.
        It seems the prosecution holds all the cards, but, apparently, that is not always true.
        I appreciate you Greg. It’s often an education reading your posts. I especially appreciate your endless supply of “What in the…[add unique modifier]” modifiers.

        Liked by 1 person

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