Kyle Rittenhouse Verdict
Persuasive Writing Exercise
Read the following excerpt of an article by Harvard Law Professor, Ronald Sullivan, on the Rittenhouse verdict. Then in a paragraph answer the following questions: 1) In the author’s opinion, why was Rittenhouse acquitted?; 2) do you agree with the author’s assertion that if Rittenhouse was Black, he would have been convicted? Provide specific details from the article to support your conclusions. You can also use the outcome of the Ahmaud Arbery trial in Georgia (the three White men charged with his killing were convicted) to support your conclusion.
Your paragraph should be 7-10 sentences long. It should contain a topic sentence with your answer to these two questions. You have the entire hour to complete this exercise. Open a Google doc, put your name, date, period #, and my name in the header on the left. Put a title for your paragraph that is more descriptive than “LA paragraph.” I am not grading your opinion. I am grading how well you support your argument and how closely you read the article. Annotate the article before you begin writing.
Format:
Name:
Date:
Teacher Name:
Period:
Title
The Rittenhouse Trial: A Legal Scholar Responds
Ronald S. Sullivan Jr.
Ronald S. Sullivan Jr.
23 Nov 2021
The trial of Kyle Rittenhouse provides the public with a glimpse of criminal law in practice. Many think of the law as a series of rules—a set of binaries. Do this. Don’t do that. But this trial has put in stark relief the dueling values that underwrite our positive law.
Aside from the legal analysis that this article will take up later, very many citizens have a good faith belief that Rittenhouse engaged in morally blameworthy conduct. He went to a Black Lives Matter protest, as a counter-protestor, in a state different from where he lived, with an AR-style semi-automatic weapon. For many, their moral intuitions tell them that Rittenhouse was looking for trouble, inviting confrontation, and perhaps provoking (in a lay sense) violent conflict.
Of course, this view is not exclusive. An equal number of citizens hold a genuine belief that Rittenhouse is blameless. He had as much of a right to be in Kenosha as the BLM protestors. The Second Amendment and the laws of Wisconsin permitted him to carry a weapon openly. Properly at the venue and properly in possession of a gun, Rittenhouse had a statutory and common law right to protect himself from death or grievous bodily injury.
The point here is not to resolve whose moral intuitions are correct. The point is to reaffirm that our criminal law has a substantive dimension such that citizens will (and should) question the fairness of our legal regimes. Because of this, whichever verdict the jury handed down would have been subject to substantive critique by the public.
Self-defense is considered a legal justification, not an excuse. Self-defense, as a justification, sends an affirmative message to the public. The conduct in question is warranted. Desired. Justified. This is a powerful message; society is encouraging its citizens to employ deadly force in certain, albeit highly circumscribed, circumstances.
Self-defense, therefore, is an absolute defense. The structure of the law incentivizes citizens to use deadly force when certain standards are met. If the jury believes a person acted in self-defense, the jury is duty-bound to acquit. Here’s how it works. The use of force must be proportionate. If someone plucks your ear, you can’t hit them with a baseball bat. The threat that justifies the use of force must be imminent. You cannot, for example, leave the scene and come back later and settle a score. Your fear of a threat must be objectively reasonable. Your subjective assessment of the threat is not sufficient; the legal question regards whether a reasonable person, under the same circumstances, would have perceived the situation as a threat. Then, courts apply an equitable doctrine to the analysis–the first aggressor loses the ability to assert a self-defense claim. Quite simply, if you initiate the encounter, you cannot later claim self-defense.
The Rittenhouse jury instructions summarized Wisconsin’s self-defense law this way:
- The defendant believed that there was an actual or imminent unlawful interference with the defendant’s person; and
- The defendant believed the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference; and
- The defendant’s beliefs were reasonable.
- The defendant may intentionally use force which is intended or likely to cause death or great bodily harm only if the defendant reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.
Finally, Wisconsin law prevents the “first aggressor” from benefiting from the protections of self-defense law. In normal parlance, you can’t start a fight and thereafter justify killing someone in the course of the fight under a self-defense theory. Wisconsin calls its first aggressor limitation “provocation.” [It should be noted Wisconsin law allows the first aggressor to claim self-defense if he or she “reasonably believes that he or she is in imminent danger of death or great bodily harm.”]
The principal issues at trial were three: 1) whether or not Rittenhouse was under imminent threat; 2) whether or not Rittenhouse’s expressed fear for his life was reasonable; and 3) if Rittenhouse’s fear was reasonable, whether or not the self-defense justification is barred by Wisconsin’s doctrine of provocation.
On the first prong, a reasonable jury clearly could have found that the threat was imminent. Indeed, Gaige Grosskreutz, the government’s own witness, testified that he pointed a gun at Rittenhouse. The facts regarding the other two alleged victims are also compelling on the imminent threat prong. Anthony Huber was hitting Rittenhouse with a skateboard, and at one point even touched Rittenhouse’s gun. Witnesses testified that a “hyperaggressive” Joseph Rosenbaum charged at Rittenhouse, threatened to kill him, and lunged for his gun.
The Huber and Rosenbaum matters are closer calls. Does being hit by a skateboard constitute deadly force that justifies deadly force in response? Does being chased constitute an imminent threat that justifies deadly force in response? I believe Rittenhouse has the stronger argument on the former, and a much weaker argument on the latter two. It is important to note here that because this was a criminal case, the jury question is not who had the better argument, but whether or not the government could prove its argument beyond a reasonable doubt.
Provocation was the prosecution’s best chance at securing a conviction, and its best arguments map onto the moral intuitions of the many who objected to the verdict.
Rittenhouse, the argument runs, is morally blameworthy for coming to a chaotic situation with a gun and a design to engage in private law enforcement. Arguably, Rittenhouse’s conduct fits the definition of provocation. Counterarguments assert that Rittenhouse’s intent on possessing the gun was defensive. It was for protection. The jury, obviously, credited the latter argument and, as a matter of law, such an analysis is not unreasonable.
In our criminal legal system, the state has the burden to prove all aspects of its case beyond a reasonable doubt. This means that once Rittenhouse put forward enough evidence to permit him to argue self-defense, the state had the obligation to prove the absence of self-defense beyond a reasonable doubt. So, even if one believes that one argument is slightly better than another, the state had the burden to prove beyond a reasonable doubt that Rittenhouse was not reasonably in fear of life or limb.
After watching the Rittenhouse trial gavel-to-gavel, the most plausible explanation for the verdict is that the prosecution did not prove its case, and the jury did what it swore to do when it was empaneled: render a not-guilty verdict if the state failed to meet its burden.
Viewed in this light, Rittenhouse’s acquittal comes as no surprise. The state’s case was infirm from the beginning. I cannot emphasize enough how problematic it was that the state’s star percipient witness, whom they put on the witness stand very early in the trial, admitted to pointing a firearm at Rittenhouse. This handed the jury reasonable doubt on a silver platter.
The Rittenhouse trial did not take place in a vacuum. Many read this verdict as an indictment on race relations in the country. They contend that this is yet another example of white people manifesting their privileged status in America—so privileged that they can kill with impunity. They punctuate this argument with claim that if Rittenhouse were black, he would have been convicted.
On this last claim, I wholeheartedly agree. If Rittenhouse had been black, he most assuredly would have been convicted. But assuming, for the sake of argument, that a black defendant would have been convicted by an overwhelmingly white jury, what does it say about the Rittenhouse verdict? Is the point that we should have convicted Rittenhouse on insufficient evidence to atone for the way blacks are treated in the criminal legal system? To convict Rittenhouse, a putative innocent under Wisconsin law, strikes me as a means to an end unrelated to the substance of the trial. Shall we advocate that juries disregard their instructions in cases tried in the wake of racial unrest? That seems ill-advised.
The anger with the Rittenhouse verdict is understandable. The result feels antagonistic to our moral sensibilities. The quarrel, I submit, is not with the jury. The better quarrel should be with Wisconsin’s gun law. I see nothing in the text of the Second Amendment or its doctrinal exegesis that compels states to permit minors to stroll about town with a rifle strapped across their shoulder. It makes no sense, and the unintended consequence of such a legal regime is a Wild Wild West mentality where citizens feel emboldened to engage in private law enforcement.
Our society cannot and will not survive a polity that permits armed children to walk the streets and kill with impunity. Our moral sensibilities push in a different direction, and we must take action to ensure that our moral sensibilities are adequately reflected in our positive law.