The Kyle Rittenhouse Trial: Em Carpenter’s Blunt Take On The Whole Thing

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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146 Responses

  1. InMD says:

    You’re 100%, outrageously, egregiously wrong about the Seinfeld thing. So much so I can’t believe they allowed this to be published.Report

  2. I’m assuming “Seinfeld” was a typo for “A Separate Peace”.Report

  3. Dark Matter says:

    The fact that he appears to be about 12 years old is an added bonus.

    Ouch. Rosenbaum’s sex convictions are of raping boys about that age.

    I am at a loss to understand why he decided to chase a guy with a rifle, unless he just did not think the kid would actually use it.

    Rosembaum was a-political, homeless, bi-polar, & suicidal. The NYT claimed that plastic bag was from the mental hospital he’d just been released from after his suicide attempt. He was making threats against Rittenhouse personally earlier in the evening.

    “Why” is going to come down to mental illness. His actions don’t make sense but that’s not a new thing for him.Report

  4. Koz says:

    This is an interesting post, and at the risk or making you write more words after you have already killed a million pixels, I’d like to hear more about the prosecutors and the judge.

    I find the prosecutors to be very distasteful, and tbh I’m hoping they get disbarred but that is probably in vain. In any event, it’s gone largely unremarked that these prosecutors look incompetent or committing malpractice, or whatever because they are force-feeding a prosecution where they have no case. If they actually did have a real case things might look a lot different.

    There’s been a lot of complaints about the judge, mostly from libs. But I have a hard time seeing what the substance is. I hope you don’t believe that having “God Bless the USA” as his ringtone is important. And in the circumstances where he’s losing his shtt against the prosecutors, it’s been pretty cut-and-dried that he ought to be rebuking them. Meanwhile, his actual rulings have if anything been favorable to the prosecutors, at least that’s how it seems to me. Did you have anything in particular in mind?Report

  5. Jaybird says:

    One of the takes that happened online was something to the effect of “has there ever been a high profile case that was not prosecuted ineptly?”

    The Chauvin case was the most common answer to that but people had a lot of fun mentioning their favorite bungled prosecutions.

    One thing that I’d wonder is whether we really benefit from having televised cases like this. I mean, we should either not televise them *OR* we should televise a hell of a lot more than just the big ones.Report

    • PD Shaw in reply to Jaybird says:

      One take away is that this explains the importance of “harmless error.” There are too many moving parts and mistakes made in any complex case, and the institutional interest is going to strongly be against retrying every case.Report

      • Koz in reply to PD Shaw says:

        As far as this case goes, I think it illustrates the opposite. Ordinarily, trials are such big productions that you don’t want them to be derailed by small issues, of one kind or another.

        But especially in the context of this particular judge, I’m not havin’ it. Judge Schroeder just wants to keep the trial on an even keel and let the jury roll with punches and sort it out. And that’s a reasonable thing to want to do, but sometimes things just don’t play out that way. Judge Schroeder isn’t restoring order by yelling at the prosecutors in the face of misconduct. He’s got other remedies and he ought to be using them: disallow their “evidence”, throw out their charges, show cause the prosecutors and send their arse to the Bar Disciplinary Committee or whatever Wisconsin has.Report

    • Dark Matter in reply to Jaybird says:

      One of the takes that happened online was something to the effect of “has there ever been a high profile case that was not prosecuted ineptly?”

      OJ effect. High profile cases WILL have really competent defense and resources. Worse, even winning against Rittenhouse could damage your career. If you’re the top guy in the DA’s office then you should be dodging that bullet.Report

      • Jaybird in reply to Dark Matter says:

        Competent defense is competent defense. More power to them.

        I’m asking about stuff like the prosecution arguing with their own g-darn witnesses on the g-darn stand.Report

        • InMD in reply to Jaybird says:

          I’ve made my feelings as a person known on Em’s other post, but as a lawyer I think the facts of this just are what they are. Even the best lawyers can only do so much. And these guys probably aren’t the best.

          But we also don’t really know what they would take as a win here. It’s entirely possible they know the chances of convicting on the homicide charges is unlikely but they need to try it anyway to see if they can get this to a plea on the reckless endangerment charge (still a felony with real time attached to it).

          Lastly, I’m hesitant to say state courts are just like this…. but sometimes state courts are just like this. Go sit in one sometime and just see what you see. It can be quite educational.Report

          • Oscar Gordon in reply to InMD says:

            The whole thing could just be a political show, a warning to others that should they decide to try something similar, they too will face a trial.

            The state doesn’t win every such trial, but they win enough that it should give rational folks pause to consider.Report

        • Dark Matter in reply to Jaybird says:

          I’m asking about stuff like the prosecution arguing with their own g-darn witnesses on the g-darn stand.

          The seriously competent lawyers in the office didn’t show up. We’re looking at the B team.

          We’re also looking at them overmatched, with a really bad case (which normally they’d settle or drop), on public TV. They’re cutting corners, they’re taking risks, they’re making mistakes, and they’re losing their composure.

          And they’ve had NO experience in the whole “TV” thing.

          I talked to a professional concert pianist-in-training once. Sat next to her on an airplane for 9 hours. She said a big part of her training wasn’t “don’t make mistakes”, but rather, “what do you do when you make them in front of a crowd”.Report

    • Douglas Hayden in reply to Jaybird says:

      I was in a jury earlier this year for an aggravated murder case. It wasn’t that high a profile case, no media in the court, but even still the prosecution was not very good – and even the judge admitted it. We wasted a day on watching interrogations that went absolutely nowhere. They relied heavily on experts while failing to present any real evidence of what caused the child’s death. The result was a couple days of us playing Columbo in the jury room trying to figure out what actually happened. We finally found not guilty on the aggravated murder charge and hung on child endangerment and felony murder. It was a mess, and I’m wondering how much of that started when the defendant brought legit defense attorneys and not a public defender.Report

      • Brandon Berg in reply to Douglas Hayden says:

        Broke: We don’t need to fund public defenders.

        Woke: We need to fund public defenders to give low-income defendants a fair chance.

        Bespoke: We need to underfund public defenders to give prosecutors a fair chance.Report

      • Dark Matter in reply to Douglas Hayden says:

        I sat on a drunk driving jury a few years back.

        The defendant was a college football player with no neck. He passed the physical “drunk” tests but he’s also an almost pro athlete.

        Defendants lawyer seemed competent, short, and had a room filling personality.

        The prosecution was obviously sick and not functioning at 100%. She sort of phoned it in.

        The Judge seemed fine but we really struggled with the jury instructions.

        The cops beclowned themselves repeatedly, but it was a rookie cop and his supervisor was trying to use it as a training session. They were clearly star-struck dealing with him, they even paid his fine and let him go after they picked him up. Got the feeling a lot of what they’d done had been excluded because we were missing why he was pulled over and a lot of other real basic info.

        The expert witness was unreal. She ran the blood test lab and his test weeks later. Degree beyond a phd in blood chemistry and the running of the lab equipment. Attractive female hyper-competent and hyper-composed. IMHO this wasn’t her first time in front of a jury and it wasn’t her 50th either. She was only testifying on a very narrow point of whether or not a piece of paper showing his blood alcohol levels should be admitted.

        We found him guilty. Facts are facts.Report

      • Em Carpenter in reply to Douglas Hayden says:

        Public defenders are legit defense attorneys. In fact, they are the experts in criminal defense.Report

        • Douglas Hayden in reply to Em Carpenter says:

          True. My apologies.Report

        • Brent F in reply to Em Carpenter says:

          To many people take the point that public defense is often overall subpar (because they are ludircrosly overworked because of inadequate funding) to be that public defense lawyers are subpar.

          In my own jurisdiction, when I’m doing duty counsel work I get people asking me about Legal Aid versus private lawyers frequently. I tell them firstly, usually they’re the same lawyers, most defense counsel in my city do both, and secondly, the counsel that take public money are often just as a good or better than the ones that only take paying clients.

          In particular, criminal trials are a specialized skill and people who do only that, public or private, are way ahead of anyone of anyone who doesn’t do only that.Report

    • CJColucci in reply to Jaybird says:

      Most high-profile cases end in convictions. By a huge margin. Unless by “high profile” you mean “I’ve seen it on TV.” Which probably covers most of the “online takes.” So much the worse for the online takes.Report

  6. Kazzy says:

    Thanks for everything here. IANAL so it is very helpful to hear from real legal eagles to make sense of all this.

    Based on everything, here and elsewhere, I’m hardpressed to disagree with any of the following:

    “ Wow Em, so you think it’s ok that he came to that protest with a gun?

    I think a 17 year old kid had no business being there at all, armed or not, and his mother is derelict in her parental responsibilities for allowing — nay, facilitating — his presence that night. I don’t care how “civic minded” my kid may be, or how badly he wants to patrol the streets of Kenosha to defend dumpsters and car dealerships. If he’s not 18, he’s not going there on my watch. But he did not break the law merely by being at a protest. Whether Kyle Rittenhouse broke the law by having the gun there, I don’t think so, but even if he did it does not mean Kyle Rittenhouse is guilty of the other charges.

    Em, are you a supporter of armed right-wing vigilantes?

    I am not. I am a supporter of examining the facts without considering the political leanings of those involved.

    Right on, Em! Those guys were scumbags anyway and they deserved it.

    Completely irrelevant.”Report

  7. Damon says:

    You’re 100%, outrageously, egregiously CORRECT about the Seinfeld thing. It was the stupidest show on TV including those sappy Hallmark love stores.Report

  8. CJColucci says:

    While I haven’t been following the case closely, I get the impression that if Rittenhouse had been the one that ended up dead, whoever shot him would have had as good a self-defense case.Report

  9. Jaybird says:

    Apparently the judge and his kids are now getting death threats.

    That’ll help.Report

    • Dark Matter in reply to Jaybird says:

      CNN just reported that the gun charge was dismissed. Gave the usual incorrect summation on what the law is. Didn’t say why the charge was dismissed (i.e. that everyone agrees that the rifle wasn’t short barreled so the law doesn’t apply).

      If that’s your only source for what’s going on, then the judge had a whim.Report

    • Pinky in reply to Jaybird says:

      Reported death threats are definitely a sign of a troubled society, but I’m starting to discount them because (a) it’s an easy claim to make, and (b) they’re often used to defend the supposed recipient’s arguments. Probably neither of those apply in this case, though, but still, all this report tells us is that there are bad people in the world, which I already knew.Report

  10. Jaybird says:

    And we’re kicking off Monday with a bang.

    Count 6 has just been dismissed.

    Report

    • Kolohe in reply to Jaybird says:

      Huh, this does relate to what I just wrote below. It seems to me that you can see the shape of the intention of the law, in that having too short of rifle/shotgun is illegal, but a longer one ok. As the longer gun is more difficult to conceal, etc, and so one’s intentions and escalation/provocation status probably become more ‘level’ – i.e. with a big gun, it’s always going to be visible from the outset, and your handling of it more obvious.Report

      • PD Shaw in reply to Kolohe says:

        Child possession of a dangerous weapon refers to a lot of types of weapons, including brass knuckles, shurkens, nunchaku, and manrikigusari.

        Guns themselves are only dangerous weapons in one of two situations: (1) its a short barreled rifle or shotgun (having certain measurements); or (2) not in compliance with youth hunting regulations, which are applicable to children under 17. It appears that the guns were too long and either Rittenhouse wasn’t hunting or perhaps more importantly he was 17 years old.

        This all reads to me as juvenile misdemeanor type offense that is primarily used to authorize seizure of weapons from kids before someone gets hurt or compel counseling. It was possibly not written very well, but I think that’s more common for misdemeanors like this.Report

        • Douglas Hayden in reply to PD Shaw says:

          I don’t know. Maybe its my Jane Coaston Libertarianism showing, but my general thought is to see how this law is applied in practice. Is everyone either getting a not guilty or misdemeanor, and if not – who in particular isn’t?Report

          • Jaybird in reply to Douglas Hayden says:

            I googled how many people were arrested in Kenosha. The answer was about 250. I don’t know if I’m reading this right but it seems that most of them were for curfew violations but there were a number of charges related to looting.

            I wish there were an easier way to figure out what happened with these 250 arrests.

            How many of these charges were dropped?
            How many went to trial?
            How many went on to plead guilty?

            I can find some onesy-twosy answers but nothing really in one place.Report

            • InMD in reply to Jaybird says:

              Someone would have to comb the records for each defendant one at a time. Not sure how Wisconsin is but the ease in doing that varies. Some states have searchable databases anyone can get into. Others make them pretty difficult to access. At this point it’s also possible that people have had things expunged, or put on a stet docket or something similar that might make it hard to decipher what happened without a lot of work.Report

              • Jaybird in reply to InMD says:

                It’s like the system deliberately makes it difficult to find out how the law is applied in practice.Report

              • InMD in reply to Jaybird says:

                Where it’s like that I think it’s usually a combination of really inept implementation of technology (possibly due to funding) and to a lesser degree privacy concerns. IIRC I used to have a hell of a time figuring out what was going on with a criminal case in DE. If WI makes it as easy as MD does though anyone could pretty easily figure out what happened with anything that hasn’t been expunged with name and DOB.*

                I really don’t see anything nefarious though. All of the accused are individuals responsible for their own specific conduct. My guess is most of the charges are misdemeanors of a nature that shouldn’t haunt people forever and are easy enough to remove after a short period of time or completion of probation or diversion or whatever. The toughest part would probably be getting a list of people arrested. Maybe someone could do a FOIA request or something then take it from there. You’d think investigative journalists might look into it.

                *I have come across things that seem to have vanished or that I know happened but no longer appear for unexplained reasons. I attribute this to the bureaucratic shortcomings of state judiciaries but don’t really know for sure.Report

          • PD Shaw in reply to Douglas Hayden says:

            Juvenile arrest and court records are confidential, so I’m not sure if that is knowable about a statute that is mostly targeted to that group. I suspect they only pressed charges on that law here to leverage it for felony convictions for killing people.Report

          • Chip Daniels in reply to Douglas Hayden says:

            Tamir Rice was not available for comment.Report

  11. Kolohe says:

    There is still the debate over whether he was legally armed; however, as a question of law, there is not and should not be a standard that mere presence of a weapon is provocation.

    .

    What is, is. and I am of course going to defer to your expertise.

    But what ‘should be’ is a proposition that, well, is and should be an opinion that any layperson could have.

    Which is to say I disagree with the statement ‘the mere presence of a weapon should not be considered a provocation’ I’m not sure I’m in agreement with it’s complete opposite (i.e. the mere presence of a weapon should *always* be considered a provocation). But I’m not at all willing to give carte blanche to any and all escalations, which displaying a weapon (especially when not previously displayed), I’d say usually is. (and isn’t that part of the law, ‘brandishing’?)Report

    • DensityDuck in reply to Kolohe says:

      That someone is carrying a weapon openly is absolutely a statement, but thus far there is not a legal doctrine for presenting “I assaulted him because of his statement” as a defense. “Fighting words” is about inciting immediate criminal action against a third party, not “talk shit, get hit”.Report

    • Kazzy in reply to Kolohe says:

      This is something I wrestle with, especially as a non-gun owner who has never really lived in a gun happy area.

      On the one hand, open carry feels “scarier” because, well, there you are with a gun on your hip or shoulder or in your hand.

      On the other hand, concealed carry feels “scarier” because, well, who knows if you even have a gun!

      Would we prefer that folks who carry guns have to do so openly? Or discretely?

      Would someone who wants to carry a gun feel better doing so openly? Or discretely?

      There isn’t any “right” answer since there is so much subjectivity involved. But it does really make you think about how our laws should be structured and which behavior they should incentivize, when, and where.

      “Which is to say I disagree with the statement ‘the mere presence of a weapon should not be considered a provocation’ I’m not sure I’m in agreement with it’s complete opposite (i.e. the mere presence of a weapon should *always* be considered a provocation).”

      This is what I touched on elsewhere. If we say the mere presence of a weapon defaults someone to being “provocative”, then we really curtail gun rights because we risk giving carte blanche to anyone taking action against them.

      And *NOW* I’m wondering if anyone has ever argued that carrying a weapon is a mode of “expression” and therefore protected speech. Oy…Report

      • InMD in reply to Kazzy says:

        Context matters a lot. I don’t think any reasonable person perceives a few guys in orange vests standing in a field with long guns as a threat. Same guys with the same weapons walking into a bank will likely, and not unreasonably, create a different perception about what is happening. Unfortunately the law is a blunt tool for these sorts of things. My guess is when the Wisconsin statute was written they really were thinking about hunting and something like this incident never even crossed their minds.Report

        • Kazzy in reply to InMD says:

          But, for instance, is it illegal to carry a gun into a bank?

          I believe that individual businesses retain the right to restrict guys on their property… though I do think there was some attempt to push back on this. But if the bank itself doesn’t bar the weapons, do any states make it an actual illegal act? And if it isn’t an illegal act then don’t we need to protect it, the same way we protect those guys in the field?Report

          • InMD in reply to Kazzy says:

            I don’t know what every state does but where I practice it falls under the general laws about carrying (which as a rule is greatly proscribed except for the very specific purposes for which it isn’t). SCOTUS will of course be looking at this issue soon due to the challenge to the NY law.

            But to the larger questions I think there are only 2 sets of people with simple answers, that being those who believe there should be no restrictions whatsoever and those who believe it should never be allowed at all.Report

          • Oscar Gordon in reply to Kazzy says:

            AFAIK, there is no law against carrying in a bank, specifically, but banks tend to not permit it except for employed guards (for obvious reasons).Report

    • Oscar Gordon in reply to Kolohe says:

      Brandishing usually has a pretty specific definition. For handguns, it usually means the firearm is removed from it’s holster and held in the hand(s). For a long gun, it’s a bit more contextual; was the gun slung over the shoulder, then brought to the hands; or was the gun already in the hands, but pointed in a safe direction, then brought to bear; etc.?Report

  12. DensityDuck says:

    “Seinfeld” hitting big makes sense when you realize that everyone who watched the show thought they were Kramer.

    Which, as someone on Twitter said: “Anyone who self-diagnoses as Kramer is wrong. Everyone who self-diagnoses as Elaine is right.”Report

    • Pinky in reply to DensityDuck says:

      We may need a separate thread about Seinfeld. The cultural phenomenon of a “must-see” night of TV, the continued dominance and current reconsideration of Friends, The Office marking the end of sitcoms, the evolution of standards from the regular guy / hot girl sitcom to the Marvel abs…there are a lot of potential topics for an article.Report

      • InMD in reply to Pinky says:

        Now Friends is the one I thought was crap from the beginning, and not for any of the dumb, vaguely social justice-y reasons people give in recent reassessments. It just plain old wasn’t funny.Report

        • Pinky in reply to InMD says:

          One day you and I will discuss a matter of taste and we’ll agree. At least you can give me that all the 8:30pm and 9:30pm filler sitcoms were bad, right? Just Shoot Me? Suddenly Susan? I’m not asking for much here.Report

          • InMD in reply to Pinky says:

            Yes, on that we are in complete agreement, they were all awful. Wasn’t there a joke even at the time that they could put a chicken walking around a barn during that slot and it would rate well? In retrospect that would have been better than what they actually aired.Report

          • Oscar Gordon in reply to Pinky says:

            Third Rock From the Sun?Report

            • Jaybird in reply to Oscar Gordon says:

              Community (or so I have been told).Report

            • Pinky in reply to Oscar Gordon says:

              I don’t think it was ever part of the Thursday lineup. That was NBC’s dynasty. The kind of dynasty that can have a few real low points and still be remembered as strong.

              I liked the show. It was an acting workshop, where John Lithgow taught the three others just how far over the top you could go. And it was glorious. He could go toe-to-toe with Shatner and Cleese.

              I never watched Community. Joel McHale rubs me the wrong way, and it always seemed to be winking. This is what I meant by The Office being the first post-sitcom sitcom. The format was over.Report

        • Kazzy in reply to InMD says:

          I’m with you on this. I put Friends in the same category as “Big Bang Theory”: I just don’t get the appeal. Literally every joke is obvious a mile away and even then, still aren’t funny.Report

          • Philip H in reply to Kazzy says:

            Us science geeks universally LOVE Big Bang Theory, as its people we work with. Seriously. I know every one of those characters, several times over. Which makes it hilarious as escapist fantasy.Report

            • DensityDuck in reply to Philip H says:

              eh. “Futurama” was the Nerd Show With Nerds Jokes For Nerds. “Big Bang Theory” was a little too willing to go back to the “haha, smart people are PHYSICALLY-INEPT IMMATURE SLOBS” well.

              My experience with extremely smart people has been that they’re a lot more like Egon from “Ghostbusters” than they are like anyone on Big Bang Theory.Report

            • Jaybird in reply to Philip H says:

              I have a co-worker who qualifies as Offically Aspy. When normal co-workers talk to him, they can get offended. I don’t even notice. (I think he’s funny and insightful!) But I can do the thing where people talk to me and I talk to him and then translate what he says into something that I wouldn’t mind being read aloud to an HR representative.

              (That said, I have gotten chewed out by HR a non-zero number of times for “insensitivity”.)

              “Oh, so you’re Leonard?”
              (sigh)
              “Yes. I’m Leonard.”Report

              • Philip H in reply to Jaybird says:

                I’m a lot closer to Sheldon . . .Report

              • Kazzy in reply to Jaybird says:

                I’ve heard/read mixed takes on how Sheldon is received among the neurodiverse set. Some seem to see him as much-needed representation while others seem to think “Ugh, this shit again?”

                Regardless, if folks enjoy the show, have at it. I’m not opposed to it. I just watch it and think, “Nothing here is original!” Same as “Friends.”Report

              • Jaybird in reply to Kazzy says:

                I don’t think I’ve ever watched a complete episode.

                Some of the clips I’ve seen tells me that it was written by people who knew people like that rather than written by people like that, if you know what I mean.

                “Oh my gosh! This guy I know could talk about the Star Wars extended universe for *HOURS*! I still have scars! Ha ha!”
                “Oh, jeez. If I never hear about Bossk ever again, it’ll be too soon!”
                “Baby Yoda is cute, though.”
                “Oh, adorable.”Report

              • Pinky in reply to Jaybird says:

                I’m not just Philip-bashing here, but I’ve never met a smart person who has said anything good about that show. Actually, I think the one positive thing I’ve ever heard about the show is that it’s possible to endure it to get to the scenes with Kaley Cuoco.Report

              • CJColucci in reply to Pinky says:

                Pauline Kael would like a word with you.Report

              • DensityDuck in reply to Jaybird says:

                My take:

                Futurama was made by nerds.

                Big Bang Theory was made by jocks.Report

              • Jaybird in reply to DensityDuck says:

                Nah, the jocks were in sales.

                Big Bang Theory was made by theater kidz.Report

  13. Jaybird says:

    If you’re hoping for a bright side, there is good news from Politifact regarding the legality of Rittenhouse carrying the gun.Report

  14. Jaybird says:

    A bold prediction:

    Report

    • Saul Degraw in reply to Jaybird says:

      This guy seems to have a clear bias and it shows your Trumpy undies. When are you going to just come out and admit it? You hardly pull from neutral sources and it is very easy to find out how Trumpy or Trump friendly these tweets are considering the first reply is “he will be the next Facui for about a month.”Report

      • Jaybird in reply to Saul Degraw says:

        If Binger does *NOT* start appearing as a guest on CNN & MSNBC, this hypothesis will be well and truly falsified.Report

        • Saul Degraw in reply to Jaybird says:

          He might. I don’t really care but this tweet is about the Trumpiest take on the Rittenhouse trial I can imagine and pretty much rightist propaganda. It is not a unite everyone against “the system” argument. It is a “when can we send the libs to camps?” argument.Report

          • Pinky in reply to Saul Degraw says:

            Yes. You are correct. That post was identical to sending liberals to camps.Report

          • Jaybird in reply to Saul Degraw says:

            Please understand that I read it not as a take asking when libs might be sent to camps but as a prediction that Binger would be showing up on MSNBC and CNN soon explaining how awful Rittenhouse is.

            If Binger doesn’t show up on either? Hey, this prediction is falsified. (I dunno how to interpret him only showing up on one… partially falsified, maybe, but not entirely.)

            If he does show up, that does expose parts of the system that are embarrassing, true… but that would kind of show the need for sunlight rather than the need to keep those parts from being exposed.

            (And, again, we don’t know whether the guy is paranoid until, oh, February 1st and neither prosecutor has shown up on CNN/MSNBC.)Report

            • CJColucci in reply to Jaybird says:

              Binger will likely get calls from a number of news organizations, since he is newsworthy. He may say yes to some of them, though we don’t know which. How he will be treated and what he might say is up in the air. Does any of that enter into the prediction, or just whether he shows up at all, or only on MSNBC or CNN?Report

              • Jaybird in reply to CJColucci says:

                I admit that I am interpreting the tweet like it was saying the following:

                “Rittenhouse is going to be acquitted and then Binger is going to go on CNN and MSNBC and explain that the prosecution did nothing wrong, Rittenhouse was a murderer, they had *PROOF* that he was a murderer and the judge didn’t allow it, and the system is rigged to protect White Supremacy. He will be praised for this by the Totebag set and his statements will be taken at face value.”

                I mean, hey, maybe he’ll get called onto CNN and he’ll say “Hey, when the law is on your side, hammer the law. When the facts are on your side, hammer the facts. We did our damnest to hammer the table and he had a competent defense team that did a good job of communicating to the jury what they needed to communicate to establish the affirmative defense where it needed affirming and to establish reasonable doubt where it needed doubting. Yogi Berra said ‘good pitching beats good hitting, and vice-versa’ and that applies to our judicial system as well. The system works. Our trial proves it.”

                I mean, if Binger does the latter (even if he only shows up on CNN and MSNBC to say it), I would argue that the prediction made by the original tweet will be pretty well falsified as well (even if he only shows up on CNN and MSNBC to say it).Report

              • Saul Degraw in reply to CJColucci says:

                “Never believe that anti-Semites are completely unaware of the absurdity of their replies. They know that their remarks are frivolous, open to challenge. But they are amusing themselves, for it is their adversary who is obliged to use words responsibly, since he believes in words. The anti-Semites have the right to play.

                “They even like to play with discourse for, by giving ridiculous reasons, they discredit the seriousness of their interlocutors. They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert. If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past.”Report

              • Jaybird in reply to Saul Degraw says:

                If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past.

                Man, I hate it when people do that.Report

              • Pinky in reply to Saul Degraw says:

                Seriously, is there a story here? Is Martyr Made an anti-Semite or something? Because I don’t see anything in this thread that would make someone drop that quote. As for the tweet, I doubt that any of the prosecutors are going to use this as a jumping point. I’m not sure they’ll even hang around at the prosecutors’ office.Report

              • Jaybird in reply to Pinky says:

                He’s not using it against Martyr Made. He’s using it against me (loftily indicating by that phrase that the time for argument is past).Report

              • Pinky in reply to Jaybird says:

                When have you ever fallen silent? 🙂Report

              • Pinky in reply to Jaybird says:

                He may have used that quote in response to me as well, but I think it was in reference to a source I quoted. There’s an old line that the definition of a racist is someone winning in an argument against a liberal. But that line, just like Saul’s quote, doesn’t constitute proof of anything. He’s got to defend his position.

                I’ve certainly thrown up my hands at people, but I hope I’ve both made my assertions and backed them up with somewhat coherent argument and passable data. Saul didn’t do that here. In fact, below, it looks like he’s questioning the system on the basis of his assertions and accusations alone. I want to be careful not to turn this into a personal attack, but it just doesn’t seem like he’s doing the legwork.Report

      • Jaybird in reply to Saul Degraw says:

        (Oh, for me, the first reply is not “he’ll be the next Fauci for a month” but a link to a tweet that predicts more riots in the wake of this trial that will result in more shootings and then some more trials.)Report

  15. Burt Likko says:

    Em’s writeup is, as always, an excellent and dispassionate look at a passion-inducing case. All props to her for this.

    A friend exchanged messages with me today about the case.

    HE: They aren’t going to do the right thing today in Wisconsin, are they? I don’t trust the Wisconsin justice system after ‘Making of a Murderer.’
    ME: I have some bad news for you. It’s not just Wisconsin.

    As for the defendant, it really seems like Rittenhouse went “hippie hunting” and I find that morally odious as should even people who had profound objections to the protests that were then underway. But that doesn’t mean I don’t see a reasonable doubt about his in-the-moment fear and thus a significant self-defense claim to be made. One either believes in reasonable doubt or one doesn’t.

    “But he took a gun into a situation where he knew there was a significant potential for violence! He knew what was waiting for him at that protest! His claims of wanting to protect people and property are transparently false!” Maybe so. But I think we need more than “Rittenhouse armed himself and went into a dangerous, likely violent situation, and so he deserves to be treated like an aggressor.” Consider this: “My husband beats me, and I’m going to leave him. The police say they can’t help me. Can you please come with me to keep the peace while I gather my things?” The person who answers that call for help is (at least potentially) a hero.

    As for the prosecution, I recall there was a case in California in which people accused the prosecutors of making mind-boggling mistakes in the face of what a lot of public opinion deemed an open-and-shut case of the high-profile defendant allegedly murdering two people. Quite a few people seem to have forgotten the lessons of that case, including the prosecutor here, as well as a lot of people who are becoming upset at how the prosecutor is handling it.

    The legal system appears to be working as intended in the case of young Mr. Rittenhouse. Whether it would work equally well for someone of a different background than him is not currently being tested in anything like the public way his case is.

    The judge is… well, pretty average in my estimation. This is basically what you get in a lot of courts in a lot of states around the country. Is it what happens when you elect judges? Hard to say. I don’t think judges should be elected because I think they are likely to have to make calls about cases before them which are not particularly politically popular but legally correct. Which may well be the case with the guns charge. Or the “victims” thing (which, I hear, is part of how he handles all of his criminal trials). If he makes calls that are plausibly within the realm of what’s legally correct, well, sometimes you have to set your political preferences and even your moral preferences aside and just accept the results, because the law demands what the law demands.

    I’m not really sure how to react to the Seinfeld thing though. A lot of it was inanity about inane people in inane, mundane situations. But that’s no different than a lot of other kinds of sitcoms.Report

    • Saul Degraw in reply to Burt Likko says:

      The question I have though and it is a very hard answer question is whether it is good that the system is working as intended. Or are anti-democratic/fascist elements able to exploit the current system in ways that we might regret a lot later?

      I am not fully on board with the idea that the Constitution is reactionary but it is clear that there are lots of anti-majoritarian elements built in and these are nearly impossible to change. It should not be controversial to suggest that the Trumpian forces are currently very good at exploiting those aspects.

      It is also clear that a lot of our legal system is essentially built on an honor system and bad faith actors and hack judges can easily exploit that if necessary. Alex Jones was just found liable on default via a terminating sanction for failure to comply with discovery orders. This is good but now we are in the territory to see how much he has hidden and wrapped up his assets. I have a suspicion that they are very wrapped up and this will be an example of the plaintiffs winning the battle but losing the war. Same with Bannon and the contempt of Congress indictment.

      Liberals and liberal lawyers seem to have a heavy tendency towards institutionalism and get very defensive when you critique the institutions as insufficient. Look at the defenses that offered for Breyer and RBG not retiring or that Breyer can seemingly state with a pollyanna straight face that Bush v. Gore was not a partisan or political decision. Hell, very liberal Harvard Law Professor Noah Feldman gets very upset when people accuse ABC of being a political hack. It seems like a lot of liberal lawyers would rather do anything but admit that the stuff they got about the glories of the American legal system in law school might not be true because it means their whole career was a lie or something.

      I am not sure that dispassionate analysis is what the current time needs. What might be needed more is an examination of all the forces giving rise to and encouraging political violence. Or whether “objective, dispassionate” analysis is really such at all.

      But these are much harder questions that might make a lot of well compensated lawyers, journalists, and professors feel bad about their life choices so….Report

      • Burt Likko in reply to Saul Degraw says:

        …[A] lot of our legal system is essentially built on an honor system and bad faith actors and hack judges can easily exploit that if necessary.

        Oh my yes. If one didn’t believe that in 2015, one has little choice but to believe it now.

        It’s not that I refuse to see politics infiltrating the Courts, particularly but not limited to SCOTUS. It’s that I don’t see anything novel about this. The idea of a High Court that is actually committed to imbuing Constitutional liberties and practical equality for all into the law seems like a noble lens with which to view even the Warren Court, which was thoroughly political. To admire Earl Warren as some sort of avatar of the legal profession realizing its potential as a sentinel of the Republic’s promises is to ignore that he was a politician through and through; a former Governor of a large state and a former candidate for President and Vice President. My great hero on the Court, Thurgood Marshall, was the spearhead litigator for the NAACP on its flagship cases before he took the bench. Another hero from the Court, Sandra Day O’Connor, I admire for finding ways to see where the political center of gravity was and to steer her legal reasoning towards it as a fulfillment of democracy. Stephen Breyer tries to do the same thing today, despite his rather circuitous way of describing it in his book “Active Liberty,” but he’s not nearly so graceful at it.

        It’s always politics there and always has been. It’s very easy to admire John Marshall as the great Chief Justice, the one who laid the groundwork for the understanding of the Federal government as we have all come to accept it. But he was John Adams’ Secretary of State, which at the time was the job held by the President’s second-in-command and hatchet man — his relationship to Adams was very similar to that of Dick Cheney to GWB the Younger. And he didn’t leave the Secretary of State job (as a practical matter) even after taking office as Chief Justice, which is really a problem from both a judicial ethics and a separation of powers perspective. He didn’t steer power to the judiciary because he had some abstract notion that was where it properly belonged; he did it because Thomas Jefferson was President and he wanted to put as many sticks in Jefferson’s bicycle wheels as he could. Maybe he was better at the job than his successor Roger Taney, but they both got where they did, running SCOTUS, because they were trusted political henchmen, most certainly not because they were brilliant lawyers or principled jurists.

        Principled jurists sometimes make decisions that displease their political sponsors, after all.Report

        • Saul Degraw in reply to Burt Likko says:

          I guess my blunt question is at what point do court decisions/the law lose their legitimacy because they are no longer following democratic principals but seem to be mainly about the erosion of democracy/enabling of white supremacy/Evangelical theocracy?

          This is not an easy question to answer and there might not be good answers but it occurs to me that there are several facts on the ground:

          1. Democrats have consistently won the majority of votes in Wisconsin at nearly all levels for many years;

          2. The Wisconsin GOP gerrymandered their state at all levels so well that they have solid majorities in what might be close to perpetuity in the state legislature;

          3. Self-defense laws as they stand do not mesh with an increasing right-wing judiciary holding for an absolutist second amendment with open carry.’

          4. The right-wing has become increasingly more comfortable with casual threats of violence against Democrats/liberals/the left. See examples from Boebert/Gossar/MTG, the guy who asked Kirk “when can we start killing Rufo?” etc.

          There is no evidence that this is getting better, it is getting worse. I think a lot of people are in denial of this and/or a psychological state of shock where they think adhering to old ideas on open debate/free speech can work in defeating bad ideas/violent ideas.Report

          • InMD in reply to Saul Degraw says:

            Saul, this may be my provincial third tier toilet pedigree speaking, but have you ever actually appeared in a state court? Maybe even outside of a major metro? Because if you’re basing your views of the entire legal system’s legitimacy on how it handles this one bizarre case I think it speaks more to your own inexperience than anything else.

            And I don’t want to be glib here. I actually think there is a good case for judging the legal system significantly based on how it works in practice at these lower levels, where most of the time no one is watching. God knows I saw some things that pissed me off before I became a wimpy in house lawyer. But IMO any objective person has to conclude it held up well when it really counted over the last year, with these bogus election fraud claims. They are very, very far from perfect but they still ask for evidence in these places, and expect some level of proving your case, and that matters.

            Yet you want to throw it all out over the potential failure (which by the way still hasn’t happened) to convict some kid under highly unusual facts in some backwater? And if by some chance, the jury comes back with a conviction are you still going to take this stance? Or is it all just some outcome based analysis where it’s good only to the extent it sorts the winners and losers based on your personal politics?Report

            • Brandon Berg in reply to InMD says:

              Is there any credible argument to be made that they should convict? Even if the prosecution had done a better job, there just doesn’t seem to be a case there.Report

              • Jaybird in reply to Brandon Berg says:

                “If you don’t convict, we will set your house on fire.”

                Pretty persuasive!Report

              • InMD in reply to Brandon Berg says:

                From what a layperson would call a technical legal perspective there’s absolutely a case. Keep in mind who has what burden of proof.

                The state has to prove beyond a reasonable doubt that Rittenhouse committed all of the elements of each crime he is charged with. The burden of proof for the affirmative defense of self-defense is on Rittenhouse. The problem for the state is not that they can’t prove the elements of the crimes it’s that Rittenhouse has a strong affirmative defense.

                To overcome that with these facts they probably need to be able to show that Rittenhouse’s mere presence with a weapon was sufficient provocation that he cannot prevail on a self defense claim. Essentially you can’t pick the fight then win on self-defense, absent reasonable attempts to retreat.

                These are all ‘questions of fact’ for a jury. Bottom line is the state could win this in an abstract, law school exam sense. Their chances in the practical reality of the actual evidence are of course not so great. But it’s not totally implausible in terms of what the law is.*

                *Note, this is all what I’d call ‘general’ legal principles and how you’d try to prosecute it in an old school common law state like Maryland, I’m not familiar with the particulars of WI law and cannot speak to that.Report

              • Brandon Berg in reply to InMD says:

                To overcome that with these facts they probably need to be able to show that Rittenhouse’s mere presence with a weapon was sufficient provocation that he cannot prevail on a self defense claim.

                Isn’t that nonsense, though? If open carry is legal, then how can open carry be considered provocation? If something effectively makes you an outlaw, then it’s not legal.

                When I said it didn’t look to me like the prosecutor had a case, I didn’t mean that it was literally impossible for him to get up and BS his way through a closing argument. I meant that he does not appear to me to have the evidence necessary to justify a conviction, that AFAICT no such evidence exists, and that the people saying that acquittal would be an obvious miscarriage of justice have no idea what they’re talking about.

                If anyone actually has one, I would be genuinely interested to see a substantive argument for conviction that’s consistent with the available evidence and doesn’t rely on made-up crimes like crossing state lines or carrying a gun.Report

              • Dark Matter in reply to Brandon Berg says:

                Assume you live in a seriously anti-gun state which effectively has no open carry. Openly carrying a gun starts to look pretty “looking for a fight”(ish).

                Add to that the concept that the protesters were non-violent, and their cause was just.

                The only reason for Rittenhouse to be there opposing them is if he’s a counter protesting white supremist. Just doing that is definitely looking for a fight (because our cause is just).

                So he pointed at gun at Rosenbaum and the fight was on.

                Oh, and the non-violent protesters will burn down your city if you don’t do the right thing here.Report

              • Koz in reply to Dark Matter says:

                So he pointed at gun at Rosenbaum [Joshua Ziminsky, I think – ed] and the fight was on.

                This is the key point as to where the case is now. Ie, the prosecution is arguing that because Kyle Rittenhouse pointed the rifle at Joshua Ziminsky, that instigated Joseph Rosenbaum into attacking Kyle Rittenhouse, and everything followed from that.

                It seems to me to be a dubious argument, but with the video in evidence the prosecution at least gets to argue it. If the video wasn’t admitted (as it should not have been imo) then the prosecutors would have nothing to argue.

                This is a big reason why I don’t believe the idea that the judge as been unfair towards the prosecution. To me, he has been unfair to the defense. He has rebuked the prosecution for its misconduct, but he has been extremely reluctant to do anything meaningful about it.Report

              • Dark Matter in reply to Koz says:

                Rosenbaum hits the radar as someone who could attack people basically at random.

                I very much doubt the jury was told he had serious mental illness problems, an absurd history of violence, and was seriously heinous.

                If we’re working off of what Rittenhouse knew, then he knew none of that.

                Which doesn’t change that Rosenbaum was crazy and violence prone and the prosecutor is arguing with a straight face that his attack was provoked.Report

              • Koz in reply to Dark Matter says:

                Well yeah, that’s another problem with the prosecution’s theory. If Rosenbaum is a live wire by himself, then idea that Rittenhouse provoked him is even more absurd.

                Push comes to shove, I’d say the probability that Rittenhouse is convicted of something has gone up over the last three days, but if he is convicted he’ll get a mistrial without prejudice shortly thereafter.

                It’s going to be hard for the prosecution to argue harmless error when their entire case is the result of evidence they improperly withheld from the defense.Report

              • InMD in reply to Brandon Berg says:

                To reiterate those are questions of fact for a jury. Absent an applicable law on which the judge must instruct, if the jury says it was then it was, and if they say it wasn’t then it wasn’t.* The existence of open carry is not conclusive on the law. We’re talking about 2 different questions.

                *Not going to go down the road of appealable issues on a case that has not yet reached verdict.Report

              • PD Shaw in reply to InMD says:

                Except the state has the burden of proof on self-defense. The jury instruction reads that “the State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant did not act lawfully in self-defense.”

                I think this is odd, but I guess its the law in most states. The defendant has to present some evidence to trigger the defense, at which point disproving the defense shifts to the prosecution.Report

              • InMD in reply to PD Shaw says:

                Interesting. I guess my rust is showing. Nevertheless I still think that’s the approach the prosecution has to take.Report

          • Dark Matter in reply to Saul Degraw says:

            The bulk of the violence in Wisconsin came from the Left.

            You can’t burn down dozens of buildings, enable a serial rapist to attack people, and then claim any act to stop this is an act of white supremacy and an erosion of democratic principals.Report

          • Jaybird in reply to Saul Degraw says:

            I guess my blunt question is at what point do court decisions/the law lose their legitimacy because they are no longer following democratic principals but seem to be mainly about the erosion of democracy/enabling of

            Do you think this is how evangelicals felt after Roe?Report

    • Saul Degraw in reply to Burt Likko says:

      “If he makes calls that are plausibly within the realm of what’s legally correct, well, sometimes you have to set your political preferences and even your moral preferences aside and just accept the results, because the law demands what the law demands.”

      I am going to inject a bit of CRT here but what happens if the law demands something that is immoral or unjust in a particular circumstance or in general. This is a heart of the current debate at the moment. The law has and can either explicitly mandate or condone activities that are discriminatory or unjust. This is not a new or original insight. Hence the old quote about how the law in all its majesty forbids the rich man and the poor man from sleeping under the bridge without noting that “hey, maybe the poor man has nowhere else to go and something needs to be done about it.”

      This weekend a fringe candidate in Ohio wondered whether someone like Josh Mandel was really fit for office and representing Christians or some such because Mandel is Jewish. What happens when it becomes a more accepted line of “You know, maybe non-Christians should not be allowed to run for political office” or if the Supreme Court decides 6-3 that not only is Roe v. Wade overturned but abortion violates the 14th amendment rights of the unborn and/or Griswold might be wrongfully decided as well. How should solid blue states react?

      I know a lot of people think that the Supreme Court could not be that hackish or that these are too well-established in American law and life and they might be right but there have also been a healthy-sized contingent of reactionary conservatives that hated Griswold since it was decided and people who at least get defense on behalf of those reactionary conservatives for reasons.

      Basically, I am not sure that merely stating that legally correct might not cut it anymore. Obviously the retort is this is a double-edged sword and that is correct but sucking up the erosion from democracy from the inside is not the answer either.Report

      • Dark Matter in reply to Saul Degraw says:

        what happens if the law demands something that is immoral or unjust in a particular circumstance or in general.

        The best example of this would be the homeless and things that we got rid of in the 1960’s (this is not the 1960’s). What happens is heinous and unacceptable outcomes.

        The issue is what do we do about it? Find Rittenhouse guilty because there is a narrative that says he must be? Rosenbaum’s vast criminal and mental illness history hasn’t been given to the jury, that’s already a lot.

        Big picture a lot of these narratives, from both sides, are wrong. There was no big steal, the vaccinations work, America is not just as racist as in the 1960’s, the police don’t stalk and kill people based on their race, Rosenbaum wasn’t an innocent protester.

        I am VERY good with the idea that we need to stamp down on political violence. Presumably that means holding the rioters at the capital accountable, which we are. It should also mean holding the people burning down buildings accountable, which we’re not.Report

        • Philip H in reply to Dark Matter says:

          since the Kenosha protests, over 300 people have been arrested – mostly locals — for everything from curfew violations to weapons charges. There is, sadly, no reporting on the prosecution rates, but those arrests include about 250 at the time and another 55 in early 2021.

          The arrest total in Minneapolis is up over 1200 from a series of protests since George Floyd was killed. Prosecutors are only recently getting to trying the arson charges – which include 55 people from the initial protests.

          My conclusion is that arrests and prosecutions are happening, not just getting press.

          Your mileage may vary.Report

        • Saul Degraw in reply to Dark Matter says:

          Those are not the best examples.Report

      • Jaybird in reply to Saul Degraw says:

        I have been arguing this for DECADES. It doesn’t matter what the law says. It doesn’t matter what precedent says. What matters is what is Right.

        (I’ll grant, the Evangelicals were arguing this too but that’s different.)Report

    • Koz in reply to Burt Likko says:

      The judge is… well, pretty average in my estimation. This is basically what you get in a lot of courts in a lot of states around the country. Is it what happens when you elect judges? Hard to say. I don’t think judges should be elected because I think they are likely to have to make calls about cases before them which are not particularly politically popular but legally correct. Which may well be the case with the guns charge.

      https://www.youtube.com/watch?v=XaCGpS8wdig

      Have you seen this Burt, this part of the trial regarding the gun charge? Ie, not just the ruling, but the part leading up to that. It’s the oddest thing. The judge is meandering, explaining to the prosecutors and the defense why the count is bogus according to the law. Then, he tries to say a few things, no particularly intelligible regarding why, in spite of that he denied the defense motion to throw it out. Then, almost as an afterthought, he throws it out. Is there some timing thing I’m missing, ie why it’s procedurally correct to deny the defense motion where the parties briefed but nonchalantly grant it in open court a few days later?

      I can’t buy the idea that the judge is unfairly impartial towards the defense and against the prosecutors. He left the defendant on the hook for that charge until like ten minutes before the case went to the jury. And that sort of indulgence toward the prosecutors has basically governed his entire approach to the whole trial.Report

  16. Saul Degraw says:

    Another way in which our legal system might not be up to snuff, judges keep accepting non-sense reasons to exclude minorities from juries which makes it easy for people accused of hate crimes to stack the deck in their favor:

    “More than thirty years after Batson, trial judges continue to accept nonsensical reasons from lawyers utilizing peremptory challenges to exclude African Americans from juries. A prosecutor in Missouri struck two Black men from a jury, explaining, “Those are the only two people on the jury with facial hair. I don’t like the way they looked.” The trial judge found the explanation to be race-neutral. A Pennsylvania lawyer used a peremptory challenge against an East Indian man, explaining, “ I feel that he is probably Hindu in religion and Hindus tend, in my experience … to have feelings a good bit different than ours about all sorts of things… and I can be more certain with an American juror, and that was my primary reason for striking him. He may have religious beliefs that may affect his thinking.” Once again, the trial judge deemed the reason to be race-neutral.”Report

  17. Jaybird says:

    Here’s one prediction I got wrong:

    I figured that deliberation would be one day or less.

    It looks like deliberation continues tomorrow.Report

    • Dark Matter in reply to Jaybird says:

      I think they didn’t start in the morning so if they’re out before lunch you’re still good.Report

      • Jaybird in reply to Dark Matter says:

        Right-Wing Twitter has started talking about the jurors being intimidated by the protests.

        Which is the first sign I’ve seen on their side about how they think he’s not going to be acquitted.

        (If you know nothing at all about a sport. Not the rules, not how it’s scored, not even what the current score is, you can get a good feel of who is winning and who is losing by noticing which team is complaining about the refs.)Report

        • Kolohe in reply to Jaybird says:

          Right wing twitter was clearly making shit up (quelle surprise) because they ‘source’ was an impossibility.Report

          • Jaybird in reply to Kolohe says:

            I am not saying that the source was good. It does not matter if they were making shit up for the purposes of this observation.

            I am saying that they have started complaining about the refs.Report

            • Kolohe in reply to Jaybird says:

              “started’?

              The foundation of the modern conservative movement is ‘complaining about the refs’.

              And it’s well before Limbaugh went national and gave diatribes against ‘the liberal media’

              https://en.wikipedia.org/wiki/God_and_Man_at_YaleReport

              • Jaybird in reply to Kolohe says:

                Okay.

                But, so far in the trial, the modern conservative movement has been something to the effect of “This is a good trial! The system is working! The prosecution sucks! The judge is a little wacky, sure, but generally okay! The prosecution is inept! Their own witnesses are undercutting them! The judge should call for a directed verdict!”

                But when the jury went in to deliberate, that shifted.

                “Man, those refs. Pfeh. Probably scared.”Report

    • DensityDuck in reply to Jaybird says:

      I felt like that as well.

      And I think that a long deliberation means we’re heading for a hung jury, with people who just can’t bring themselves to let him walk, they just can’t, no matter what the evidence says and what the law is and what precedent suggests, they just can’t let him walk, he did a bad thing and he has to get got.Report

  18. Jaybird says:

    ABC news is reporting that the jurors are not being sequestered.

    I don’t know how to feel about that. My immediate inclination is to say that sequestration is probably better than non-sequestration but I don’t know how much of a hardship continued sequestration would be. I mean, I know that *I* would want to talk about the case and read about it and see any and all evidence that had been denied me. Maybe those jurors are better people than I am, though.Report

    • InMD in reply to Jaybird says:

      Keep in mind if you do that and get caught you’ll be dismissed for an alternate and have no say in the outcome. If too many of them do it then it’s probably a mistrial. Why spend 2 weeks immersed in all that hot air for nothing?Report

    • CJColucci in reply to Jaybird says:

      Maybe those jurors are better people than I am, though.

      If they do what they are supposed to, which is not talk about the case, read about it, or seek out any evidence the judge didn’t let them see, then yes, they are.Report

  19. Jaybird says:

    Daily Mail reports that the prosecution withheld evidence from the defense.

    Interesting if true.Report

    • Koz in reply to Jaybird says:

      Yeah, maybe but what’s more interesting for me is what that “evidence” actually shows.

      At the end of the trial, according to the prosecutors, the super hi-def drone footage shows Rittenhouse pointing his rifle at Joshua Ziminski. The defense is arguing a bunch of algorithmic and procedural things against admission, which basically they lost on. I personally haven’t seen this video and I don’t know if it’s even been published on the internet yet.

      But, the judge got off the dais and stood about 5 inches away from this huge 4 ft wide 4K monitor and watched the video. And it’s pretty clear that he can’t see what the prosecution alleges. I’ll very interested to see exactly what’s in that video when and if it’s ever made public.Report

    • Kolohe in reply to Jaybird says:

      Well, honest question, for anyone willing to answer – what is the actual legal standard? My understanding is that if evidence is exculpatory, and the prosecution hides that from the defense, yeah, that’s a big no no.

      But what if the evidence is inconclusive, and/or doesn’t reveal very much at at all? Is that still a Brady(?) violation?Report

      • Jaybird in reply to Kolohe says:

        Here’s my understanding:

        This is not new footage that has been withheld from the defense, but hi-res footage that was not shared (when low-res footage was).

        Copied/pasted from the story:

        ‘The problem is the prosecution gave the defense a compressed version of the video. What that means is the video provided to the defense was not as clear as the video kept by the state.’

        So my immediate take, assuming the story is accurate, is that the prosecution is deliberately throwing this.Report

        • DensityDuck in reply to Jaybird says:

          As I said elsewhere, angling for a mistrial means that this is hanging over Rittenhouse’s head for another few years, which means that he basically can’t make any plans to do anything because at any point he might have to go back to sit in a courtroom for another month or two (and might even be convicted of something and sentenced to a prison term.)

          Which is a great plan if you just want to fuck the kid’s life. Maybe you won’t win, but a succession of mistrials means he just has to keep dealing with it forever until he gives up and pleads guilty just to get it over with.

          Which is the whole point of the Sixth Amendment, but, y’know, dem racists are always bitchin’ about their rights and shit…Report

          • Oscar Gordon in reply to DensityDuck says:

            Isn’t there a case in MS or AL where the prosecutor was/is on attempt 6 to convict a man of something, and each time it’s a mistrial?Report

            • You’re probably thinking of the Curtis Flowers case in Mississippi. Flowers was tried six times — two were declared mistrials and four convictions were overturned on appeal. The Mississippi AG took over prosecution of the case, has announced she will not seek a seventh trial, and dropped the charges. The state has announced they will pay $500,000 in compensation for holding Flowers on death row for 20 years.Report

              • Dark Matter in reply to Michael Cain says:

                Interesting case. Going by wiki and not the podcast.

                4 dead innocent people killed over a few dollars. Prosecutor engaged in misconduct. Lots of marginal evidence that he did it.

                Case might be makeable without the misconduct.Report

              • Oscar Gordon in reply to Michael Cain says:

                That’s the one!

                I know we have double jeopardy and all, but there should also be a rule about how many times the state gets a crack at a defendant when it comes to mistrials and overturns for prosecutorial conduct.Report

      • Koz in reply to Kolohe says:

        My understanding is the prosecution is required to give the information to the defense, for slightly different reasons, and simpler ones at that. Ie, the prosecution intends to introduce it as evidence, so it’s part of their case. So exculpatory or otherwise, they are obligated to disclose that to the defense, either the evidence itself if it is copy-able information, like here, or otherwise, like a knife or gun, that they have it and under some circumstances the defense gets access to inspect it themselves. Ie, Brady is about exculpatory evidence, this is different obligation.

        It’s probably dirty pool in any case to give the defense a compressed file. But it’s much worse here, because the prosecution’s use of the video explicitly depends on the super hi-dif version (and even then I don’t think it shows what the prosecutors say but that’s another issue). I think maybe the prosecution’s justification of this has to do with their use of this video as rebuttal evidence, though tbh I’m getting pretty quickly out of my depth here.Report

    • Pinky in reply to Jaybird says:

      The prosecution withheld all the evidence from the jury, too.

      You need to take some time off Twitter, Jaybird.Report

  20. Jaybird says:

    Welp.

    Report

    • Jaybird in reply to Jaybird says:

      Semi-confirmed, maybe.

      Report

      • Jaybird in reply to Jaybird says:

        Here’s the judge banning MSNBC from the courtroom after the freelancer said that his supervisor’s instructions were to follow the van.

        Report

        • Dark Matter in reply to Jaybird says:

          Irene Byon is a real MSNBC supervisor/producer.

          Judge has said he thinks the media coverage and reporting of what has come out of his court has been grossly irresponsible and frightening.Report

        • Dark Matter in reply to Jaybird says:

          …the freelancer never contacted or intended to contact the jurors during deliberations, and never photographed or intended to photograph them

          At best this was “learn their names and home addresses so we can interview them first right after the trial”.

          Now that’s like one mis-step away from “publish their addresses right now and just be shocked when protesters camp outside their homes and threaten their children”.Report

  21. Jaybird says:

    Information that I haven’t seen anywhere else:

    Report

  22. Dark Matter says:

    Kyle Rittenhouse found not guilty on all charges in Kenosha shootings
    https://www.cnn.com/2021/11/19/us/kyle-rittenhouse-trial-friday/index.htmlReport