Friday, November 19, 2021


One comment on the Rittenhouse verdict before I give my analysis: To paraphrase the Old Bailey barrister Horace Rumpole, “A criminal trial is a pretty blunt instrument for settling questions of public policy.” The acquittal of Rittenhouse does not mean that the Civil Rights movement is dead. It does not mean that it’s open season for would-be vigilantes to go around shooting people. All it means is that the prosecution failed to prove Rittenhouse guilty beyond a reasonable doubt.  

Let me begin my critique with a digression:

In December of 1946, 5’7”, 130-pound Medal of Honor winner Audie Murphy, who had a baby face and was dressed in a business suit, picked up a 6’2” 190-pound hitchhiker. The hitchhiker shoved a .45 into Murphy’s ribs and attempted to carjack him. When Murphy was ordered to stop the car, he grabbed the man’s gun hand and punched him, knocking him out of the car. Then Murphy went into the ground-and-pound offense and eventually knocked the man out. As the news photo taken at the jail showed, Murphy’s suit was unruffled. We can’t say the same for the carjacker who experienced what Jeff Cooper called “a critical breakdown in the victim selection process.” If Murphy had been 6’2” himself with a scarred face and bulging muscles, the robber probably wouldn’t have attacked him.

If Kyle Rittenhouse had been a muscular behemoth with scars on his face and tattoos on his arms, it is unlikely he would have been attacked. Instead, he was a slightly built, baby-faced youngster who looked like he was not “man enough” to use the semi-automatic rifle he was packing. He had exercised abominable judgement in going to Kenosha, abominable judgement in arming himself with an “assault rifle,” and abominable judgement when he went into harm’s way looking like a wannabe bad guy who had jumped in way over his head by carrying a rifle into a riot. But stupidity is not yet a criminal offense. It's a pity that some police officer didn’t tell him, “Son, you’d better go home before someone takes your rifle away and gives you an AR-15 suppository.”

Rittenhouse was a sitting duck for “tough guys” who might think they could take him down a peg without running the risk of serious injuries. I don’t know what motivated the men who confronted Rittenhouse. They may have acted from motives as pure as the driven snow, but they too were exercising abominable judgement by violently engaging a man armed with a semiautomatic rifle. He may have looked like a wimp, but it doesn’t take Man Mountain Dean to operate the 5.5 to 9.5 pound trigger pull on an AR-15 style weapon.

In a series of confrontations with men exercising judgement as poor as his own, Rittenhouse acted like a youngster who had jumped in over his head, but he followed up his series of bad decisions with a prudent series of acts. He tried to disengage. He proclaimed his lack of aggressiveness, and he ran away. Then he did something unexpected—he fired his rifle in self-defense. When the dust settled and the smoke cleared, two men lay dead and another was critically injured. A Medical Examiner friend of mine once told me "It takes three screwups to make a disaster." There were far more than three screwups in this scenario, and they culminated in a disaster of monumental proportions.

I prosecuted for 30 years, and I defended for two years before that, and I have lost count of the number of homicide cases I prosecuted and defended over the years. I have seen juries acquit on grounds of self-defense in cases where the defendant had done far less to try to defuse and withdraw from a confrontation. If the Rittenhouse case had come across my desk, I would have resisted the filing of charges against Rittenhouse with all my heart and soul and sinew. If I were ordered by my superiors to prosecute the case, I would have told them that I could not. And they wouldn’t have had to ask me why I refused. I would have told them. I would have said, “I believe Kyle Rittenhouse is not guilty of murder.” If there had been a law on the books in Wisconsin prohibiting “Stupidity Resulting in Death,” I would gladly have prosecuted Rittenhouse for that, but life is too short and jobs are too plentiful for me to be coerced into prosecuting someone I believe to be innocent of murder.

Thankfully, I don’t believe it would have come to that if the case had come into our office. Both the elected prosecutors for whom I worked were men of sterling reputation and excellent judgment. They would never aggressively pursue charges against someone who had done so much to avoid having to use deadly force.

After I retired from active practice, I taught a class on prosecution at a law school for ten years. One principle I tried to drill into the heads of aspiring prosecutors was this: Sometimes prosecutors do their best work when they resist political pressure and refuse to file iffy charges.



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