The Rittenhouse case is now with the jury. Below is my column in The Hill on the Rittenhouse trial and how the case follows a troubling pattern in high-profile cases where prosecutors rush charges and overcharge cases. This is a textbook case of the perils of weighing public opinion before the evidence in such cases.
Here is the column:
With closing arguments scheduled for Monday in the Kyle Rittenhouse trial, the jury will soon get one of the most politically and emotionally charged cases in history. The question, however, is whether the prosecutors practically closed this case before it began in 2020. They followed a long pattern of prosecutors rushing indictments and overcharging defendants in high-profile cases. Even with the court agreeing to a key favorable instruction, the prosecution may have doomed this case by responding to the weight of public opinion rather than to the weight of the evidence.
Rittenhouse fatally shot Joseph Rosenbaum, 36, and Anthony Huber, 26, on Aug. 25, 2020, during rioting in Kenosha, Wis., following a fatal police shooting. He also wounded Gaige Grosskreutz, 27.
The still photos of Rittenhouse walking on a street with an AR-15 rifle strapped to his back triggered widespread outrage. Then-presidential candidate Joe Biden labeled Rittenhouse a “white supremacist” in a tweet showing his photo and demanded to know why then-President Trump did not “disavow white supremacists.”
Prosecutors sought to quell the public outrage by charging Rittenhouse, 17, on Aug. 28. He was charged as an adult with first-degree intentional homicide, first-degree reckless homicide, first-degree attempted intentional homicide and two counts of first-degree reckless endangerment. While charged as an adult on the murder counts, he also was charged with possessing a weapon while under the age of 18.
What is most striking about the trial is that, even more than a year later, prosecutors seem to be learning critical details at the same time as the jury. A strikingly different image of the victims and shootings quickly emerged. There also were glaring prosecution blunders, including a potentially case-ending violation of a court order — and long-standing constitutional law — in using Rittenhouse’s post-arrest silence against him.
Judge Bruce Schroeder was criticized for telling prosecutors that, like many judges, he objects to using the term “victim” when the jury has not ruled in the case. The trial seemed to bear out that judgment.
From the outset, Rosenbaum, 36, was portrayed as a menacing, violent actor. A convicted child molester, he was described by various witnesses as threatening Rittenhouse and others and engaging in random violence. At one point, Rosenbaum pushed a burning dumpster into a police cruiser with officers inside. Prosecutors tried to rehabilitate him, with disastrous results. They called Richard McGinnis, a journalist who was next to Rittenhouse when he shot Rosenbaum. One prosecutor confronted McGinnis and declared, “You have no idea what Mr. Rosenbaum was thinking at any point of his life. You have never been inside his head. You never met him before.” McGinnis shrugged and said he “never exchanged words with him, if that’s what your question is.” The prosecutor then pressed further, saying McGinnis had no idea what Rosenbaum was thinking because it “is complete guesswork, isn’t it?” McGinnis dryily responded, “Well, he said, ‘F–k you’ and reached for [Rittenhouse’s] weapon.”
Witnesses described Rosenbaum as brandishing a chain and threatening to kill others.
Prosecutors then asked Rosenbaum’s girlfriend, Kariann Swart, if he had taken medication earlier on the day he was shot. That “opened the door” for the defense to ask Swart what the medication was for, and she revealed that Rosenbaum suffered from bipolar disorder and depression.
Grosskreutz fared little better. He admitted under cross-examination that Rittenhouse did not shoot him when he had his hands up after a confrontation. Instead, he admitted, Rittenhouse shot only after Grosskreutz pointed his own 9mm handgun at Rittenhouse’s head.
The jury heard how Rittenhouse was chased as Huber struck him repeatedly with a skateboard and someone else hit him in the head with a rock.
Even the prosecution’s medical witness proved beneficial to the defense after he admitted forensic evidence would support claims that Rosenbaum was grabbing the barrel of Rittenhouse’s rifle when he fired.
One prosecution witness, photographer Nathan DeBruin, caused a stir when he accused prosecutors of pressuring him to change his statement on what occurred that night. Assistant District Attorney James Kraus reviewed DeBruin’s account and asked, oddly, “We didn’t ask you to change it?” — to which DeBruin said, “Yes, you did.”
Given the weak prosecution case, it would have been tempting not to put Rittenhouse on the stand. However, the defense clearly believed it had passed the line for a hung jury and wanted to push for an outright acquittal. Rittenhouse described how he spent the day cleaning off graffiti from the high school and how he was asked by a business owner to protect his building. He also described how he brought a medical kit and gave aid to people injured during the rioting.
For those watching the trial, there was a shocking disconnect from prior news coverage and the actual evidence. There was an even greater disconnect with the charges.
It is a familiar pattern. In the Trayvon Martin case, George Zimmerman was charged with first-degree murder; some of us criticized prosecutor Angela Corey for pursuing first-degree murder in a classic self-defense case. With only Zimmerman surviving the encounter and exhibiting injuries from the struggle, a first-degree conviction was extremely unlikely as opposed to a manslaughter conviction — but the lesser charge would not have satisfied many in the public. The result was an acquittal.
Overcharging may please the public, but it can demolish a case. While jurors can convict on “lesser included” offenses, the credibility of the prosecution is established by the lead charge. Jurors tend to start at the top and work their way down on the charges. If the first-degree charge is wildly out of reach, they are more likely to doubt the lesser charges, too.
Even with some lesser included offenses, it will be hard for prosecutors in the Rittenhouse case to make this cat walk backward. They promised the jury that it would see a vigilante rampaging in utter disregard of human life. Instead, the jury saw a much more confusing, chaotic scene in which Rittenhouse was threatened with a gun, hit repeatedly and chased down a street.
On Friday, prosecutors pushed to add lesser charges; the defense waived objections to the consideration of lesser counts on some but not all of the charges. While allowing such consideration, the judge pushed back on considering a lesser charge of second-degree reckless homicide because that would not require proof that the teen exhibited an “utter disregard” for human life.
Prosecutors did win a fight for a “provocation instruction.” Under Wisconsin law, if someone provokes a confrontation, they are then required to exhaust all other options — such as retreating — before using deadly force in self-defense. However, prosecutors agreed (despite media reports to the contrary) that there was no provocation in the mere fact that Rittenhouse appeared in the midst of the protest with his weapon. Moreover, the prosecution’s own witnesses described Rosenbaum and others threatening and chasing Rittenhouse.
Absent a prosecution save, the Rittenhouse case may prove, yet again, how a prosecutor satisfying public outcry can wind up sacrificing a criminal case.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.