The Rittenhouse jury instructions: provocation included
Andrew Branca has posted his analysis of the day’s proceedings in the Rittenhouse trial. It contains the jury instructions and is quite detailed, and I suggest you read it or at least skim it.
I wish I could say it cheered me up, but it most assuredly did not.
The comments there are worth reading, too. I’ll highlight some of them, but there are plenty more:
“andrew [Branca writes] Judge explaining lesser included offenses, notes reduces risk of a second trial due to a hung jury.”
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That is probably the most ominous thing that I have read…The judge is allowing more lesser includeds so as to increase the likelihood of a guilty verdict inorder to reduce the “risk” of a second trial. Making decisions not on “law” or the “risk” of Kyle going to prison but to increase the chance of a guilty verdict inorder to avoid the hassle of another trial!! WTF
I still have a problem with provocation with intent. KR’s statement was that he dropped the fire extinguisher because he saw Ziminski with a gun pointed at him. Ziminski proved he had a gun by firing a shot into the air several seconds later.
The state needs to disprove KR’s testimony with some evidence. Ziminski was never called to testify that KR pointed a gun at him. No witness testifiied to seeing KR point his rifle, and there were witnesses everywhere. We have a retouched photo, that now the prosecutor is going to tell the jury what it shows? That sure doesn’t sound like “evidence”, and the judge SHOULD NOT allow it.
Finally, the entire foundation for the prosecution’s close is based on a video for which we have no idea where it came from, that was only provided to the defense in the second week of the trial, immediately before the prosecution rested. So, the state charged and prosecuted KR for more than a year, and conducted the first week of the trial, without the only evidence that supposedly supports their charges? If that doesn’t prove political persecution, I don’t know what does.
As I understand things, as the trial started, the FBI unexpectedly showed up with low-res drone footage that everybody understands was from the FBI.
Then, halfway through the trial, some additional drone footage mysteriously appeared, and no one knows who took it, who stored it, who may have tampered with it, or really anything about its provenance or chain of custody.
And Kyle’s freedom is going to hinge on barely-discernable “information” recorded on that video?
How was this evidence ever accepted by the defense?
Provocation with intent occurs when the defendant deliberately provokes a violent response, with the intent of then having an excuse to use deadly force against the person provoked.
__________I don’t see how this argument is going to make any sense. If Kyle really pointed his gun at Ziminski with the deliberate intent of provoking either him or Rosenbaum to attack him so that Kyle could then shoot one or both of them, then why did Kyle run away from them, instead of just shooting them as soon as they moved towards him? The fact that Kyle tried to get away from them seems to be pretty clear and convincing evidence that Kyle had NO intent to provoke them into attacking him so he could shoot them.
The reporter witness McGinnis, who witnessed the Rosenbaum shooting, testified that when Rosenbaum first came at Kyle, Kyle “pivoted” and ran away. Kyle could have shot Rosenbaum right then, but he didn’t. When Rosenbaum caught up to Kyle, Rosenbaum came at him again and Kyle moved the barrel of his gun away from him. IOW, Kyle had yet another opportunity to shoot Rosenbaum if that was what he wanted, but he didn’t do it. Kyle didn’t shoot until Rosenbaum lunged at him and actually grabbed the barrel of his gun. Kyle’s behavior doesn’t make sense if he was just looking for an excuse to shoot Rosenbaum. Kyle did everything possible to AVOID shooting Rosenbaum for as long as possible, and only shot him when he had no other choice. That behavior is completely inconsistent with the argument that Kyle was deliberately trying to provoke Rosenbaum in order to have an excuse to shoot him.
So the Rekieta Law panel today said that the only reason provocation was allowed today is because Rittenhouse himself brought up the pointing of a gun when he took the stand. If he hadn’t have testified, it would not have come up and the state would never have been able to resurrect its dead case.
I’ve watched most this case, but trying to think back to this – is this true? The prosecution could not have brought it up via video? I know there was no other testimony about it. Ziminski sure as heck wasn’t there to say so.
The gun charge may be a blessing in disguise. If the jury wants to acquit on the felonies, this gives them a misdemeanor charge to convict on so they at least convict on something. That’s a better compromise than the “lesser” included offenses which are all major end-of-your-life-as-you-know-it felonies.
And I think that Kyle has something important going for him that has nothing to do with the law. He seems like a nice kid with good-hearted intentions. I think it was good that he took the stand. He presented himself well. It helped to humanize him and maybe help make it more difficult to callously ignore the evidence and the law and simply throw him to the wolves out of political bias.
Nevertheless, if they convict Kyle on the basis of this bogus evidence and ass-hat prosecution, it means they had it in for him anyways, the whole trial was an exercise in futility, and Kyle was doomed from the start. No actually fair and un-biased jury could possibly convict on the basis of what I was in this trial.
It’s that very last paragraph of that last comment that reflects my views. Short of a dismissal with prejudice by the judge – which I think should have happened but I also think was never ever going to happen – such cases come down to the jury.
And not just the jury as they watch what is revealed in the trial, either. I’ve said that “a mind is a difficult thing to change,” and it really really is. That certainly applies to jury members all of whom supposedly come to trials with open minds. Open minds would be nice, but it’s not that way and is almost never that way. It’s especially rare in a case such as Rittenhouse’s, which has been very heavily publicized and propagandized for well over a year, with even national figures such as Joe Biden weighing in to condemn him.
Disgusting, but true. At least Obama only said Trayvon Martin might have been his son; he didn’t say the “white Hispanic” Zimmerman was a white supremacist.
It is almost a certainly that the jury pool in Kenosha was tremendously tainted by all that negative publicity, and in addition there was and is the added threat of jurors knowing that riots will probably ensue without a guilty verdict. That’s mob rule, and it’s the terrible sword that hangs over our heads now that the authorities charged with keeping civil order have abandoned that endeavor in many cities and states in recent years. The original riots in Kenosha that sparked the Rittenhouse’s actions were a form of the same thing – people enraged at what they thought had happened to Jacob Blake, and already making up their minds that the police who shot him had to pay.
In Rittenhouse’s trial, the jurors brought with them into that courtroom whatever preconceptions they had, and it’s probably the case that none of them or few of them changed their minds because of the trial proceedings. I have no idea how they were originally leaning, though, and that’s the all-important question.
I can’t imagine any thinking person being persuaded of Rittenhouse’s guilt by the evidence in this trial. But what I can imagine isn’t the point. The point is: who are the jurors, what did they each think going into the trial, what will they each think at the end of it, and will at least one of them decide he is not guilty.
At a certain point people like you and people like me have to do the right thing. One example is if we are on a jury, we would need to rise above fear for ourselves.
The Prosecution is putting up a front that they actually have a criminal act to present.
As I recall, Kyle was with friends until he was cut-off and isolated by police action. Are the police guilty of conspiracy or incompetence?
The “provocation” charge is more garbage. According to that theory, if someone breaks into my home, and sees that I am armed and attacks, then the consequences are MY fault. I don’t think so.
The one thing that the video and pictures showed was that there were no police in the area. Incompetence? Conspiracy? If the police withdraw leaving the residents to fend for themselves, the Authorities can hardly complain about the outcome. The burned out buildings and cars make it clear that things were NOT peaceful.
I hope that the jury realizes that a guilty verdict sets them and their families up for the next riot and has the courage to vote “Not Guilty”. Having a Democratic Governor call out the Guard, clearly means that another “demonstration” is/was in the works. And all because they voted their conscience and swung to Trump instead of the Democratic figurehead. Hey! Elections have consequences……. just like jury decisions.
“The judge is allowing more lesser includeds so as to increase the likelihood of a guilty verdict inorder to reduce the “risk” of a second trial.”
This confirms for me that the judge has caved to the pressure.
I now expect the jury will find Rittenhouse guilty of at least the lesser charge(s). I do not expect an appeal to succeed.
If so, the rule of law in America is dead and Civil War now inescapable without surrender to tyranny. Those who surrender demonstrate their unfitness for liberty. Go and “Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.” Samuel Adams
Just going to drop this here —
https://notthebee.com/article/cnn-panel-calls-kyle-rittenhouse-a-vigilante-and-completely-misses-the-irony-of-that-statement
Grosskreutz can’t wait for the verdict for fear of acquittal – has to get the narrative embedded in the Democrat media watchers’ heads.
https://notthebee.com/article/the-news-media-doesnt-want-you-to-know-how-bad-the-testimony-for-the-prosecution-was-in-the-rittenhouse-case-so-they-invited-the-witness-on-to-change-his-testimony
On another thread, Richard Aubrey mentioned another case of self-defense that ended in acquittal.
https://www.thenewneo.com/2021/11/12/rittenhouse-and-the-right-to-self-defense/#comment-2588702
I had to look up the defendant, Roderick Scott, because I hadn’t heard his name before.
This post had a good article supporting Scott, and the details of his case are not really important.
What grabbed my attention were the comments comparing his situation to George Zimmerman’s, and how many of them continued to parrot the media narratives despite Zimmerman’s acquittal.
The author must have had his reply on boilerplate for cut-and-paste, he had to deploy it so often.
This is not a fight for legal justice; it is a fight to control the minds of the public and make sure they have only the approved version to remember.
http://themartialist.net/roderick-scott-trial-whats-wrong-with-new-york/
Babylon Bee for the Win
https://babylonbee.com/news/liberals-accuse-rittenhouse-of-trying-to-avoid-punishment-through-legal-loophole-known-as-trial
Doc Zero ‘splains that Americans walking in American cities have no obligation to justify themselves to rioting thugs.
Which used to be obvious.
But he puts it so well —
https://threadreaderapp.com/thread/1458783971039498242.html
The capture of the drone footage, according to the prosecution, shows Rittenhouse supposedly raising his AR at Ziminsky. As Andrew Branca says, maybe you can see that. I cannot. I can’t either. If Kyle was there to kill, he had a target rich environment, but only fired at those who attacked him.
Aesopfan.
You don’t mention it, but Scott was black and the guy he killed was white.
Scott left a place of safety and put himself in a position where he had to shoot someone, unnecessarily, and over a property matter. Major, major no-no in citizen carry.
Also, NY is a Duty to Retreat state. Failure to retreat is itself and solely sufficient to make one guilty. Scott did not retreat. He didn’t even maintain his position. He went looking for trouble. I can’t emphasize this enough: Even staying where you are (stand your ground) makes you culpable. Scott went out of his way.
But Scott, not being half hispanic and blacker than Homer Plessey–‘scuse me, I mean not white–and the dead guy not being black, it was not murder most foul.
It’s sort of like running the same experiment but only varying the variable you’re concerned with.
I am unable to predict where this case will wind up, but regardless of the verdict it won’t be any place good. One outcome will convince many of the ceaseless perversion of justice by The Left; another outcome will convince many of the unbridled power of The Right.
Had “government,” and “media” performed their proper tasks over a year ago we would not be where we are now; having confirmed the extreme distrust both have rightfully earned, I fear the future will be in the hands of neither entity shortly.
At least Obama only said Trayvon Martin might have been his son;
Which was absurd. Trayvon Martin was the issue of a long-haul trucker and a school district bureaucrat. He spent the bulk of his upbringing in the home of his father and his father’s 2d wife. His father’s 2d wife’s occupation was never stated, but her speech patterns suggested wage-earning office employee. His father’s 3d wife owned a suburban townhouse in a neighborhood occupied by common-and-garden middle class people.
His family life was mix-and-match as those of black kids typically are. His mother lived with his older brother, the issue of a tryst which antedated her marriage; the older brother is an articulate sort who earned a computer science degree. He was under the supervision of his step-mother, his paternal uncle, and the uncle’s wife when his father was out of town. The paternal uncle was retired military. He had a paternal-side cousin who was closer to him than was his brother. Not-ideal-but-you-can-work-with-it situation until his father elected to blow up his marriage in 2011. He had behavioral problems, a matter which distressed both parents. He was in Orlando at his father’s fiancee’s because his mother in a rage had put him on a bus and told his father to take him for a while.
All the people supervising him were black American in an uncomplicated way and in some obscure ways the larger world knows little of (e.g. papa being members of fraternal lodges) Father and uncle grew up in East St. Louis in the most viperous slum in America, and built satisfactory lives for themselves. The Obama girls never lived this life.
“regardless of the verdict it won’t be any place good. One outcome will convince many of the ceaseless perversion of justice by The Left; another outcome will convince many of the unbridled power of The Right.” Constantine
To equate a fact based, logically consistent conclusion that the Left is committed to a ceaseless perversion of justice with an ignorant, deluded conclusion is logically untenable.
The Left has descended into an utter rejection of objective reality. The Left’s leadership knows full well of that which reality consists. It advances their agenda of seizing absolute power to pretend otherwise.
All my hopes are for Rittenhouse’s acquittal.
There is a despairing tone in most of the above comments. The appropriate emotion in this case is anger.
Virginia got angry with the school boards and the pipsqueak Merrick Garland. The result was an unexpected and exultant victory for justice.
It’s time to get angry Neo. Sorrow is not the emotion to carry into this ongoing war.
It all comes down to a reasonable jury. Often, I’m disappointed at how many people on the right detest jury service, yet then complain about jury decisions.
If I was on this jury, the video would be meaningless to me. As another noted, I can’t even tell from the video who is who without bringing together multiple angles, matching time, and annotation. The one video that is clear is the shooting of Huber, Kyle, and Grosskreutz, which shows Rittenhouse on the ground with three attackers. How this was ever considered first degree murder with intent is beyond me.
The unfortunate part to me is the bigger context missing from the trial. It’s there, but it isn’t with the jury instructions. We have a riot that was allowed by politicians. As AesopFan’s NottheBee links notes, the rioters were acting as vigilante’s for the shooting of Blake, and those rioters were making clear they were punishing the people of Kenosha , WI. The jurors are also people of Kenosha. Do they reasonably believe the action of the rioters were justified, along with those of the politicians to withdraw police, so that if anybody deems to not stand-by and do nothing, then they chose to be a provocateur and can no longer claim self-defense?
I’m expecting hung jury on most if not all counts. There will be some jurors who believe that KR had no business being where he was with a weapon, and therefore anything bad that happens after was his fault.
There were some that will follow the law, and vote to acquit.
I imagine the jury deliberations to be a Thanksgiving dinner of an extended family, half progressive and half patriotic, with all the arguments, and no turkey.
Second most likely outcome is conviction on some of the less serious charges, with jail term of 3-5 years. The Wisconsin electorate gets red-pilled, and the next (R) governor issues a full pardon. A smart pol might make that part of his campaign- ads showing the burning and the chaos, the cops standing aside, maybe maybe a few headshots and quotes of UW professors.
I wish I was as optimistic as WTIC. The model for this trial is the Chauvin trial. No change of venue, jury intimidation, a more sympathetic defendant here. Maybe less bullying prosecutors. He will be very lucky to get off with the lesser charge. The facts matter less in these political trials. The only thing he has going for him is that none of the men killed were black.
Jury is in a no-win situation as they already have been threatened if they should acquit. Legal experts: can a judge set aside a guilty verdict?
“provocation” could be anything the prosecutor says it is. It’s one of those things you just know. Actual evidence is unnecessary.
Could certainly be used, as here, to do a 180 in the logical progression of the trial.
“He shouldn’t have dissed the guy.”
T-Rex,
Jury is in a no-win situation IF they place safety above integrity.
“The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke.
T-Rex:
Judges can set aside a jury’s guilty verdict. But it’s exceedingly rare.
LeClerc:
I have no idea why you assume I’m not angry.
I’ve been angry for a long time about the way this country is going. Anger and sadness can coexist, you know. I don’t tend to rant and rave in my posts; that’s not my style.
I’m reading a lot of anger here and elsewhere about the lesser included charges, and the possible motive for agreeing to them as a way of making a hung jury and a second trial less likely. The defendant has the right to refuse, even if his counsel strongly urge him that this is a good risk trade-off. That’s why the judge explained the trade-off again and asked the defendant to come clean if he had any doubts at all. A rational defendant can decide he’d rather give the jury a lesser charge to compromise with, instead of insisting on an all-or-nothing choice between acquittal and life in prison, or a new and even more punishing trial if the jury can’t agree.
Wendy Laubach:
Yes, Rittenhouse could have said “no.” The problem, though, is that although such a decision is rational in light of the fact that for example one of the original charges against him carries a mandatory life sentence, in fact the extra charges do have a terrible effect in terms of giving the jury an out to convict him of something. When I was reading about this, I read (don’t remember where) that ordinarily it’s the defense that wants to add new intermediate charges. The article seemed to be indicating that it’s never the prosecution, although I don’t know whether that’s true. At any rate, this time it was the prosecution trying to add the charges – apparently, anyway.
It’s hard to get good information on this, at least so far.
Because I am a logical person, I cannot imagine finding provocation in a very indistinct video, when all other evidence supports self defense.
Where did the prosecution get this FBI video? Why was it suddenly available, in the middle of a trial in which the prosecution was spectacularly failing to disprove self defense? Something stinks here, perhaps.
I agree the lesser included charges have a terrible effect in terms of giving the jury an out to convict of something. That’s why it’s an agonizing choice for the defendant. I guess I’m less sure it would be good for the defendant to take the agonizing choice away. I’d rather see a simple acquittal in this case, but I’m not the one facing the risk of a life sentence. There’s no safety net here, until Wisconsin rises up, elects a better governor, and persuades him to grant a pardon.
Wendy Laubach:
It depends who asks for the lesser charges, doesn’t it? I don’t think the prosecution should be allowed to ask, after the trial is over and it realizes it’s made a weak case for the greater charges. I think only the defense should be allowed to ask. In this case, I don’t think this was the defense’s request.
As I said, though, it’s a bit unclear, but I think that’s the way it went down.
Couple of thoughts: The uncertain meaning of the gun charge statute might allow the jury to convict and the judge to set aside. Is that technically possible? Wouldn’t that be a hoot?
Would putting out an arsonist’s fire be “provocation”? Ten to one, should the situation arise.
I think I saw a report that the judge intends to instruct the jury on that gun charge, to the effect that Kyle, at age 17, without a sawed-off long gun, was not covered by the law.
Jonathan Turley seems to think that the prosecution shot itself in the foot when it rushed to charge Rittenhouse with first-degree only three days after the shootings. He says, based on the evidence, that they grossly overcharged, and that juries tend to start with the most serious charges and work their way down. If there’s no credibility on the worst charges, juries tend to discount lesser charges as well.
https://thehill.com/opinion/judiciary/581411-rittenhouse-trial-perils-of-weighing-public-opinion-over-evidence
Kate. I was wondering if the jury decided to convict of “something”, an idea some observers think happens in complicated cases, to make a point or get away with acquitting on other charges. Then, that disappears, too.
Richard Aubrey, I guess we’ll see this coming week. This jury is from Kenosha. They remember their city burning, and this isn’t Madison or Minneapolis.
“I don’t think the prosecution should be allowed to ask”–agreed.