Court Dismisses Sixth Count Against Rittenhouse

The case against Kyle Rittenhouse just got a little smaller. I recently wrote a column stating that the sixth count appeared to be based on a factually and legally inapplicable provision of Wisconsin law.  I could not understand how the judge could allow the count to go to jury. Indeed, I am mystified how the prosecutors could have secured the count on the basis of the provision.  This is the loss of the least serious charge, but prosecutors lost more than just a misdemeanor conviction in the decision.

The sixth count alleged the possession of a dangerous weapon by a person under 18. Under state law, minors are prohibited from such possession and this can constitute a Class A misdemeanor that carries a basic sentence of up to nine months in prison, a fine of up to $10,000, or both.

The problem is that the provision was facially inapplicable to this case.

Defendants are guilty of this offense if they possess a short-barreled rifle under Section 941.28. However, the prosecutors never put into evidence that this was a short-barreled weapon. Indeed, a police officer testified it was not. Rittenhouse used a Smith & Wesson M&P 15 with an advertised barrel length of 16 inches and the overall length is 36.9 inches. That is not a short barrel.

The only other way to convict under this crime is to show that “a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593.” The defense conceded Rittenhouse was in violation of Section 29.593, which requires certification for weapons. However, he is not in violation of section 29.304, entitled “Restrictions on hunting and use of firearms by persons under 16 years of age.” As the title indicates, the section makes it illegal for persons under 16 to use firearms. Rittenhouse was 17 at the time and the prosecution has not challenged that fact.

Judge Schroeder finally ruled out the count.  That is not surprising. As I argued earlier, if the prosecution secured a conviction on this count, it would have likely faced a reversal on appeal. However, it was another blunder by the prosecution. The prosecution could have determined that this count would be invalid by simply measuring the barrel of the weapon. Instead, it went to trial and told the jury that it would prove this crime with the other crimes. Now, after the jury was brought back into the room for the instructions and closing arguments, the court informed the jurors that there would be no sixth count.

The prosecution is already facing a credibility crisis and this will only deepen that crisis. An opening statement is like an oral contract with the jury. Jurors expect lawyers to make good on what they were promised. The prosecutors fell considerably short of that mark. They promised the jury would see a gun-crazed vigilante on a type of blood-lust mission. That did not materialize. Indeed, the prosecution elicited testimony in favor of the defense.

The jury also witnessed repeated objections to the prosecution’s questions where they had to leave the room. It was clear that the court was sustaining defense objections.

Now, the jury was told that one of six counts would be dropped.

The prosecution also lost a default lesser offense in the sixth count. The removal of the misdemeanor will add to the “sticker shock” for any guilty verdict for jurors, which will likely work to the advantage of the defense. The prosecutors are clearly hoping for a compromise verdict and secured the right to argue “lesser included offenses.” However, now the cliff will be high and daunting for the jurors. Even those remaining lesser offenses are still very serious offenses.

The decision to dismiss the sixth count reaffirms the view that this case was over-charged and poorly designed. Instead, this is what engineers might call “catastrophic failure” in key supporting or necessary elements.

The over-reach on the sixth count captures much about this case. The prosecution pushed for charges within a couple days of the shootings and then overcharged this case. The speed and framing of the prosecution clearly satisfied public demand but undermined any ultimate case against Kyle Rittenhouse.

 

 

40 thoughts on “Court Dismisses Sixth Count Against Rittenhouse”

  1. Outstanding analysis Mr. Turley. My significant other, who cares nothing about this case either way, sums this up perfectly: “Why did they charge him with this to begin with? Now they look like idiots.”

  2. The loss here was almost the prosecutions whole case. Their hail mary was that he was a minor in possession of a dangerous weapon and therefore self defense doesn’t apply. I agree he should not have been there or armed, but he was not therre illegally and now he was not illegally armed either. He was pursued by three people who then initiated attacks on Rittenhouse whom they saw was armed. He only shot those that attacked him and each case he retreated or was in the process of retreating. That is self defense. You can’t say that he did not fear for his life. If you can see I am armed and you attack me, you are either the stupidest human on the planet or you are intent on killing me. It doesn’t even matter if Huber and Grosskreutz felt he was an active shooter. That has zero bearing on Rittenhouse defending himself, and if you use the word vigilantism in the negative, Huber and Grosskruetz both got shot because they were attempting to be vigilantes.

    1. What the prosecution is counting on is the Jury being intimidated to reach a guilty Verdict. The judge should have taken the case from the jury and ruled as a matter of law that the state has not met its burden of proof. If the judge cannot make a tough ruling like that then he should not be a judge.

  3. OT

    The proposed vaccine mandates are nothing more than an egregious, insidious and deleterious “power grab.”

    The communists (liberals, progressives, socialists, democrats, RINOs) in America are drunk with power obtained by their creation of the illicit, illegitimate, intractable and unconstitutional American welfare state.

    These are direct and mortal enemies of the Constitution and America, and they must be declared and addressed as such.

  4. Where are our usual suspects from the Left today….all seem to be AWOL!

    I forecast Not Guilty verdict on all Counts.

    If the State cannot get a simple Underage Kid with a Gun thing sorted out….and their star witness admitted he pointed a loaded handgun at the Defendant as he (the guy with the handgun) advanced in an aggressive manner towards the Defendant at close range…..not much way a legitimate Juror could find anything but self defense happened.

    To get Twelve Jurors to do so begs the imagination!

    The State was not incompetent…it was corrupt….or the charges would never have been filed.

    1. I honestly believe the country loses either way, no matter the verdict. Everything is so politicized, since it is now America’s new religion, replete with sheep and goats, that there are not enough guns, rifles and barrels of ammo to keep everyone safe from each other. None of this is going to end well.

      But at least we don’t have no stinking religion to tell us what to do! Pass the ammo, bruh

  5. Let’s talk about what a mob can do without a firearm against a single man they target, and how desperately that target needs a savior to stand beside them.

    “Around 7:40 p.m., almost an hour after Denny was rescued, another beating was filmed on videotape in that location. Fidel Lopez, a self-employed construction worker and Guatemalan immigrant mistaken by the crowd to be White American, was pulled from his GMC pickup truck and robbed of nearly $2,000. Rioters, including Damian Williams, smashed his forehead open with a car stereo[84] and one tried to slice his ear off.[85] After Lopez lost consciousness, the crowd spray-painted his chest, torso, and genitals black.[86] He was eventually rescued by black Reverend Bennie Newton, who told the rioters: “Kill him, and you have to kill me too.”[85][87] Lopez survived the attack, but it took him years to fully recover and re-establish his business. Newton and Lopez became close friends.[88]“

    https://en.m.wikipedia.org/wiki/1992_Los_Angeles_riots

    1. “Attack on Larry Tarvin Edit
      At 6:43 p.m., a white truck driver, Larry Tarvin, drove down Florence and stopped at a red light at Normandie in a large white delivery truck. With no radio in his truck, he did not know that he was driving into a riot.[79] Tarvin was pulled from the vehicle by a group of men including Henry Watson, who proceeded to kick and beat him, before striking him unconscious with a fire extinguisher taken from his own vehicle.[80] He lay unconscious for more than a minute[81] as his truck was looted, before getting up and staggering back to his vehicle. With the help of an unknown African-American, Tarvin drove his truck out of further harm’s way.[79][73] Just before he did so, another truck, driven by Reginald Denny, entered the intersection.[79] United Press International Radio Network reporter Bob Brill, who was filming the attack on Tarvin, was hit in the head with a bottle and stomped on.[82]“

    2. “Attack on Larry Tarvin
      At 6:43 p.m., a white truck driver, Larry Tarvin, drove down Florence and stopped at a red light at Normandie in a large white delivery truck. With no radio in his truck, he did not know that he was driving into a riot.[79] Tarvin was pulled from the vehicle by a group of men including Henry Watson, who proceeded to kick and beat him, before striking him unconscious with a fire extinguisher taken from his own vehicle.[80] He lay unconscious for more than a minute[81] as his truck was looted, before getting up and staggering back to his vehicle. With the help of an unknown African-American, Tarvin drove his truck out of further harm’s way.[79][73] Just before he did so, another truck, driven by Reginald Denny, entered the intersection.[79] United Press International Radio Network reporter Bob Brill, who was filming the attack on Tarvin, was hit in the head with a bottle and stomped on.[82]“

    3. “Reginald Denny, a white construction truck driver, was pulled from his truck and severely beaten by a group of black men who came to be known as the “L.A. Four”. The attack was recorded on video from Tur’s and Gerrard’s news helicopter, and broadcast live on U.S. national television. Goldman captured the end of the attack and a close-up of Denny’s bloody face.[83]

      Four other L.A. civilians came to Denny’s aid, placing him back in his truck, in which one of the rescuers drove him to the hospital. Denny suffered a fractured skull and impairment of his speech and ability to walk, for which he underwent years of rehabilitative therapy.“

  6. “The Left chose to crucify Kyle Rittenhouse to send a message to everyone else in America that if you dare defend yourself against a criminal mob full of violent felons, you will be destroyed. Your choice? Be killed by the mob or destroyed by the government that abandoned you.” @seanmdav

  7. Kyle Rittenhouse must have been granted a change of venue to preclude the clear and present anti-American (i.e. anti white) bias extant in Kenosha, Wisconsin.

    Kyle Rittenhouse must have been granted a change of venue to the likes of Coeur d’Alene, Idaho, in order to obtain an actual American jury of his peers.

    The O.J. Simpson trial, for example, was moved from Santa Monica to Los Angeles to obtain a sympathetic demographic wherein “…a Santa Monica jury…would have given much more credence to two crucial elements of the prosecution’s case: domestic violence and DNA evidence.”

  8. Let’s hear from Silberman, Fish Wings and Nutacha. They can’t be so far around the alt-Left bend that they can’t see what is happening here. Or maybe they can be.

    1. Anonymous flatters me by requesting my opinion:

      “Let’s hear from Silberman.”

      I have no opinion. I’m not on the jury. I don’t believe these cases should be tried in the court of public opinion. I will accept the jury’s verdict whatever it is.

      The question is: will you lying Trumpists?

  9. I’m guessing a defense verdict followed by the Dim prosecutor finding 12 more prosecution votes on a table in the jury room that need counting on the following Tuesday.

    Judge! Judge! ….

    1. Perhaps a weighted average regime a la ranked voting to increase the complexity of auditing the vote, thereby increasing the margin of fraud.

      1. nn

        “Perhaps a weighted average regime a la ranked voting to increase the complexity of auditing the vote, thereby increasing the margin of fraud.”
        *********************
        I’d rank by race, gender, national origin, immigration status, time on welfare, babies out of wedlock, NRA membership and IQ in that order. It’s the Dim way!!

  10. I haven’t seen a prosecution team, this bad since the Clark-Darden clown show in the OJ trial. If on the jury, I’d vote to acquit the defendant and charge the prosecutors with capital dumb.

  11. Underage possession of a firearm was the second dropped charge. The first was for violation of curfew when the judge ruled that the prosecution had not established that a curfew was in effect that night. More food for juror cognitive dissonance with the prosecution.

    1. “It’s the [jury], stupid!”

      – James Carville
      _____________

      OJ Simpson was/is as guilty as sin and everyone knew it. The O.J. Simpson trial was moved from Santa Monica to Los Angeles to obtain a sympathetic demographic wherein “…a Santa Monica jury…would have given much more credence to two crucial elements of the prosecution’s case: domestic violence and DNA evidence.” A Santa Monica jury would have had the intellectual capacity and objectivity to admit and comprehend the evidence in contrast to that available in Los Angeles.

  12. Judge Schroeder Instructs Jury…….

    “Please be fair and impartial,” he said to the jurists, who were all wearing Kevlar helmets and body armor. “Just ignore the bloodthirsty mob of communists threatening to terrorize you and your family forever if you don’t find Rittenhouse ‘guilty’. That should not factor into your decision at all.” The jurists have asked for a 20-minute head-start to get in their cars and drive to the nearest bomb shelter before the verdict is revealed. They have also asked for 24/7 armed security provided by Kyle Rittenhouse.

    https://babylonbee.com/news/judge-instructs-jury-to-ignore-angry-mob-outside-threatening-to-burn-down-courthouse

    1. The judge should give all the jurist a new loaded Armlite Rifle15 w/ 4 extra 30 round clips in case they have to fight their way past the Dim/Rino’s Antifa/BLM street goons to get out of the court house.

  13. Well, real life court is nothing like the movies. In the movies, when a prosecutor finds his case collapse to the point that the supposed victim admits he pointed a loaded gun at a guy who shot him, he would have dismissed all charges. The court would have erupted in cheers because the jury and attendees would have felt that the dismissal was justice for a wrongfully charged man.

    But in real life, the media and activists have whipped people up into a frenzy with tales of a white supremacist vigilante. There are many people who think Rittenhouse committed a mass shooting against black people peacefully protesting. But he wasn’t a white supremacist. He didn’t shoot any black people. He only shot people who were attacking him amid a violent mob screaming for his death. His first victim was a convicted pedophile who was threatening to kill people. The convicted pedophile ran him down.

    It appears the prosecutor didn’t even read the law against minors carrying firearms, as the law did not even apply to Rittenhouse.

    It would also appear that the politicians in charge in Kenosha dearly wish to keep public scrutiny away from why they told police to stand down, and allowed rioting, looting, and arson to run rampant. This led to the people of Kenosha left to their own devices to protect themselves, their property, and their businesses as criminals ran amok with total impunity. There was no law enforcement stopping them. No 17 year old should feel like it’s up to him to create an armed defense against anarchy in the streets of his Dad’s neighborhood. But that’s what happens in lawless countries, which the US is rapidly becoming. People are just left to their own devices. Having the rage of a violent mob pointed at you must be the loneliest, most vulnerable feeling.

    However, it’s those who stand up to the mob who get prosecuted, like the McCloskeys of St Louis. Politicians are protecting the criminals, and punishing those who would prevent criminal activity.

    This isn’t supposed to be a sports game, where the prosector’s team should stay in the game to fight for a win at all costs against the defense’s team. This is supposed to be an honest effort to convict someone the prosecutor believes to be guilty of a crime. Yet although his own witnesses supported that this was self defense, the prosecutor keeps pushing. He wants a conviction on something, anything. This feels more like a game with a young man’s life than actual civic justice.

    Vote responsibly.

    1. This is what happens when charges are hastily brought to appease a violent Leftist mob threatening to burn down entire cities unless they get their sacrifice. The mob isn’t interested in justice, either, but rather appeasement.

      It doesn’t matter they were told lies. The conclusions drawn from those lies demand satisfaction.

    2. Yes, it is telling when the objective standing of a case hinges on diversity [dogma] (i.e. color judgment).

      One caveat, Rittenhouse did not intend an armed defense, but rather an armed deterrence in support of his mission to offer aid to those affected by the violence. The self-defense was forced by persons who respected neither people, property, or even children.

      1. Good point.

        This reminded me of the 1992 LA riots, where armed Koreans protected their businesses from a crazed mob looting, rioting, and committing arson.

        The problem is that Rittenhouse got cut off from his group. That made him vulnerable.

        NPR interviewed one of the Korean shop owners who organized an armed protection of their property during the 1992 riot. It was total anarchy. No police for days. Tragically, he lost a security guard to friendly fire.

        63 people died in the ‘92 riots, 2383 injured, $1 billion in property damage, and the neighborhood experienced blight as jobs and businesses left.

        And anyone wonders why there was an armed resistance to yet another riot?? The Left seems to expect black people and their supporters to riot, but they most certainly do not hold such permissive views towards whites in general and conservatives specifically. This should offend black Americans.

        https://www.npr.org/2012/04/27/151526930/korean-store-owner-on-arming-himself-for-riots

        “MARTIN: You were saying that, listen, it took 20 years to build up these businesses and to just walk away and watch it turn to ash, you weren’t going for that. Can I ask you, though: Why did you feel you had to defend your store yourself? Did you just have a feeling? I was just wondering why you didn’t feel the authorities would do their job.

        HA: From Wednesday, I don’t see any police patrol car whatsoever. That’s a wide-open area, so it is like Wild West in old days, like there’s nothing there. We are the only one left, so we have to do our own (unintelligible).

        MARTIN: Well, you just told us that the security guard at your store was killed. This must have been very traumatic for you. Do you mind telling me how this happened?

        HA: The riot people took the next building, put it on fire. Then these people want to come to our store. Then we are shooting each other. Somehow, the people stationed on roof, then their line of fire got my security guard, and he really get blown off. So…

        MARTIN: Oh, I’m sorry.

        HA: …I was standing a few feet away, so I see that his body has fallen down on the ground, but I was so scared. I – we tried to call the fire department. Please help us. But nobody listen. Then maybe after five or six hours in the evening – it start around the afternoon, about 1:00 or 2:00 p.m. But actual – the fire truck coming about 7:00 o’clock, late evening. So five hours, of course, is sitting between us and them.

        MARTIN: Five hours. And so the security guard – you were not even able to evacuate his body, I assume, for five hours.

        HA: No, no.“

    3. Karen says:

      “There are many people who think Rittenhouse committed a mass shooting against black people peacefully protesting.”

      What’s your point?

      There are many Republicans who think that Trump lost the election because of massive voter fraud despite no proven evidence.

  14. (OT)

    “Look, our view is that the rise in gas prices over the long term makes an even stronger case for doubling down our investment and our focus on clean energy options . . .” (Psaki)

    Good, lord. That’s like Tonya Harding claiming: “See, Kerrigan’s injured. I should be national champion.” (“Can we just ignore the whole knee-capping thing?”)

    1. YouTube operates under the umbrella Alphabet Corporation, through steering, censure, and only indirect editing or editorializing content.

  15. Regardless of where one stands on this case, a good question is did the Prosecution hurt itself so badly that it cannot overcome its blunders? Asking for lower charges at this point seems to be trying to cut the tail off the dog. I cannot have what I want, but I will take anything. That actually bothers me because it seems more like trying to save face than prosecute a crime.

  16. This is what Yahoo writes and seems to be MSM agenda. “It’s affected the energy of the city in a negative way. It’s not the same. Everyone is trying to avoid the situation as well as keep an eye out on the situation,” Lewis said. “We’re a little dismayed by the situation. This case should have been cut and dry. You kill two people in the street, you get punished for it, end of story.” Yep, attitude is, the law and US Constitution just be damned.

    Bringing in the National guard and increasing other law enforcement personnel there, in anticpation of a not guilty verdict. If there is rioting and looting and those perpatrartors not punished, then rule of law is gone, and let them just South Africa burn the cities down.

  17. The case was a partisan political football from the beginning. Perhaps the prosecutor hoped it would be tried in the media instead of the courtroom? The liberal media certainly tried its best to gaslight, lie and distort the evidence. Let’s hope the jury is smarter than Joy Reid and Sunny Hostin.

  18. Rittenhouse got an honest judge.

    Sad commentary on our legal system that defendants are not assured that judges will be honest.

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