Rittenhouse judge made important decisions about jury instructions. These could impact the outcome of the case.
The prosecution first asked for a reading by the judge of lesser charges during Monday’s jury instructions. While it’s normal for the prosecution to ask for such a reading, it’s also an indication in this case that they believe that they have problems in their case and so are trying to get a conviction even if it isn’t on the top charges that they originally charged.
Rittenhouse was charged with first-degree reckless murder, using a deadly weapon (for Joseph Rosenbaum’s shooting); first-degree insanity, use a hazardous weapon (for Anthony Huber’s shooting); two counts first-degree recklessly endingaffecting safety, use a danger weapon (for Rittenhouse’s alleged endangering two other people while shooting, Richie McGinniss, and Gaige Grosskreutz); and one count each of attempted first degree intentional homicide
In the Joseph Rosenbaum case, the prosecutor requested that a second-degree reckless murder charge be added. The prosecutors would have to not prove Rittenhouse’s utter disregard of human life as is required for the first-degree count. The defense objected and Schroeder said that he wasn’t likely to allow that because he thought if there was a guilty verdict on that it would be overturned on appeal.
Schroeder said he was inclined to allow a lesser charge of second-degree reckless endangerment when it came to endangering McGinniss, but that the attorneys shouldn’t be surprised if he doesn’t allow it. He also said he wouldn’t allow the lesser charge in the case of the unidentified man who tried to kick Rittenhouse.
Huber’s shooting was not a serious matter, but the judge accepted other lesser charges. The Rittenhouse defense agreed to allow second-degree intentional homicide and first-degree reckless homicide as it relates to Huber but they did not agree with second-degree reckless homicide, because that charge does not require proof that the teen exhibited an “utter disregard” for human life. The defense didn’t want to remove that high standard which the prosecution would have to satisfy.
Grosskreutz’s case was under investigation by prosecutors who requested lesser charges of first-degree reckless and second-degree intentional murder, second-degree attempted homicide, second-degree intentional homicide, and second degree reckless endangerment. The defense did not object to the second-degree attempted homicide count, but they did object to adding the reckless endangerment counts, saying they didn’t believe someone can “attempt to be reckless.” The judge did not rule publicly as to that argument.
The judge’s decisions could thus be a critical issue for Rittenhouse. If the jury, for example, would have let him walk on a higher charge, they could be willing to compromise on a lesser charge if they didn’t think a higher charge fit. The theory is that it could improve his chances of conviction.
Rittenhouse could have made a worse choice and changed the entire nature of his trial. The judge’s provocation instruction to jurors was the worst. As we have mentioned, this could be the direction that Rittenhouse was taking. This might allow the prosecution to ultimately prevail if they can convince the jury that Rittenhouse “provoked” the attack. Instructing the jury to think about whether Rittenhouse created the problem, as well as Rosenbaum’s involvement in it, the prosecution requested that they be instructed by the prosecution. Rittenhouse, according to the prosecution had pointed the gun towards people before Rosenbaum was shot. This claim is refuted by defense. Only the grainy images that were presented by the prosecution seemed to be open for interpretation. The judge Rittenhouse and his lawyer are examining the photos.
One shot’s from Getty, the other from Reuters. In both, no surprise, we see an unusual proximity & alignment between Rittenhouse and the judge as they watch evidence video. That’s KR’s lawyer to the right. pic.twitter.com/3RISlkzAWQ
— Reading The Pictures (@ReadingThePix) November 14, 2021
He said the judge would give the provocation instruction and allow the jury to examine the question.
The instruction for the jury is as follows:
815 PRIVILEGE: SELF-DEFENSE: NOT AVAILABLE TO ONE WHO PROVOKES AN ATTACK: REGAINING THE PRIVILEGE — § 939.48(2)
[ADD THE FOLLOWING TO WIS JI‑CRIMINAL 800, 801, OR 805 WHEN SUPPORTED BY THE EVIDENCE.]
Provocation
It is also important to consider whether or not the attacker provoked it. Unlawful conduct[1] of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self‑defense against that attack.
[USE ANY OF THE FOLLOWING PARAGRAPHS THAT ARE SUPPORTED BY THE EVIDENCE.]
[However, if the attack which follows causes the person reasonably to believe that he or she is in imminent danger of death or great bodily harm, he or she may lawfully act in self‑defense. But the person may not use or threaten force intended or likely to cause death unless he or she reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.]
[A person who provokes an attack may regain the right to use or threaten force if the person in good faith withdraws from the fight and gives adequate notice of the withdrawal to his assailant.]
[A person who provokes an attack whether by lawful or unlawful conduct with intent to use such an attack as an excuse to cause death or great bodily harm to another person is not entitled to use or threaten force in self‑defense.]
So you can see this makes the case much more difficult for the defense if the jury buys this provocation argument — it could effectively take away self-defense as an argument except under the above strictures. It looked as though Rittenhouse would be acquitted. However, if Rittenhouse is convinced by the prosecution that this argument will work for her, Rittenhouse may get an extremely poor result.
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