MADISON, WIS. On the surface, it appeared that the simplest task for prosecutors at Kyle Rittenhouse’s murder trial would be to convict him on a far less significant charge: being a minor in possession of a firearm.
Rittenhouse was 17 when he shot three people, killing two, with a semi-automatic rifle on the streets of Kenosha, Wisconsin, during a protest against police brutality last year. Prosecutors have brought several charges against him, including first degree voluntary murder, attempted murder, reckless endangerment, and possession of a firearm.
With legal experts claiming prosecutors struggled to thwart the Illinois man’s self-defense claims, the best bet for a conviction seemed to be the firearms charge. But Rittenhouse’s defense team uncovered an exception to the ban and Judge Bruce Schroeder dismissed the count on Monday, just hours before jurors received the case.
“It’s very significant,” said former federal prosecutor Phil Turner, who is not involved in the case, of Schroeder’s decision. “It looks like he would be guilty of this and would get a conviction. You can at least reassure the audience that you have something instead of coming away with absolutely nothing, which is a real possibility in this case. ”
Under Wisconsin law, anyone under the age of 18 possessing a dangerous weapon is guilty of an offense punishable by up to nine months behind bars.
At first glance, convicting Rittenhouse on that count seemed like a legal slam dunk. No one disputed that he was 17 on the night of the protest in August 2020. Surveillance and passerby video clearly shows him walking with his rifle strapped to his chest before the shooting, using the gun to shoot and kill Joseph Rosenbaum and Anthony Huber and wounding Gaige Grosskreutz.
But Rittenhouse’s attorneys seized a subsection of Wisconsin law that states that the ban on minors from possessing dangerous weapons applies to minors armed with shotguns or shotguns only if those guns are short-barreled. The language comes from a bill that the then Republican governor. Tommy Thompson signed in 1991. Lawmakers across the country were trying to find ways to curb gang violence at the time. Kenosha’s defense attorney, Michael Cicchini, said the law was likely meant to prevent young people from carrying shotguns.
Rittenhouse’s AR-15-style rifle was not short-barreled.
They asked Schroeder to dismiss the possession tally for these reasons at a preliminary hearing in October. The judge acknowledged that the intersection of the statutes was murky, but ultimately refused to charge. He said he might review the defense’s request, however.
While Schroeder and attorneys on both sides discussed the wording of the jury’s instructions on Monday, the defense renewed its request to dismiss the possession charge. Assistant District Attorney James Kraus argued that reading the statute to allow minors to carry any firearm except a short-barreled shotgun or short-barreled shotgun essentially denies a ban on minors from carrying firearms.
“I believe this. . . essentially swallows the whole statute, “Kraus said.
But this time Schroeder dismissed the charge after Kraus acknowledged that Rittenhouse’s rifle was not short-barreled. The judge noted that prosecutors presented a “very nice memoir” setting out their arguments, but that it should have been clear that he had a “big problem” with the prohibition statute.
He said prosecutors could have asked a state appeals court to rule on the validity of the allegation “all along”. He then recovered, noting that he never issued a ruling against the prosecution that could have triggered such a request until then with the concluding discussions just minutes away.
“I think it should have been very clear that I had major problems with this statute,” Schroeder said. “I made no secret of this from the start. And there has always been access to the court of appeal from the very beginning. Well, I guess it’s not fair of me to say this because I was sitting on it. So shame on me. ”
Cicchini, who is not involved in the case, said the doctrine requires that when the statutes are not clear they should read in favor of the defense.
“This is the price the government has to pay when it is unable to come up with clear laws,” Cicchini wrote in an article discussing the doctrine.
Prosecutors can seek clarification and decisions from a state appellate court in the middle of a case; they don’t have to wait until a verdict comes. But prosecutors usually don’t make such a move unless a judge issues an adverse decision, Cicchini said. In the case of Rittenhouse, Schroeder did not rule against Kraus until minutes before the start of the final discussions.
Turner, the former federal prosecutor, said prosecutors should have realized that the matter had not been resolved and dismiss Schroeder by asking for a ruling in the appeals court or by filing more briefs.
“I’m reluctant to jump to the conclusion that the judge is doing something unfair to (the prosecutors),” Turner said. “When the judge expressed skepticism in advance, they should have done something to make sure it was clear. In a case of this magnitude, if I am the prosecutor and the judge has expressed skepticism or doubt about this, I will do everything possible to support that count. When you first felt that there were doubts, you have to give it your all. ”
Prosecutors could immediately ask the appeals court to stop the proceedings pending a decision on the validity of the charge, but on Monday there was no indication that they intended to do so.
Former Waukesha County District Attorney Paul Bucher downplayed the rejection of the indictment. He argued that he could also clarify the case for the jurors.
“You’re talking about this extremely minor charge,” Bucher said. “(Prosecutors) are missing the boat. This is a murder case. We have two people killed and one nearly killed and they are focusing on possession of a firearm. If the government thought this was the only count on which could have happened, damn it. ”