The judge in the Rittenhouse case made some decisions regarding jury instructions that could have a critical impact on the case.
First, the prosecution asked the judge to include a reading of some minor allegations to the jury during his jury instructions Monday. While it is common for the prosecution to ask for such a reading, it is also an indication in this case that they believe they have problems in their case and therefore are trying to get a conviction even if it is not in the first charges that they originally charged.
Rittenhouse was uploaded with charge of manslaughter of first degree, use of a dangerous weapon (for the shooting of Joseph Rosenbaum); first degree voluntary murder, use of a dangerous weapon (for the shooting of Anthony Huber); two first-degree charges for endangering security, use of a dangerous weapon (for allegedly endangering two others during filming, reporter Richie McGinniss and the man who kicked Rittenhouse in the head); a count of attempted voluntary first degree murder (in the Gaige Grosskreutz shooting) and possession of a dangerous weapon by a person under the age of 18.
The prosecutor asked to add a second degree manslaughter charge in the case of Joseph Rosenbaum. This would not require prosecutors to prove that Rittenhouse showed a total disregard for human life, which is required in the first instance count. The defense objected and Schroeder said it was not likely to allow it because he thought that if there was a guilty verdict on this it would be overruled on appeal.
Schroeder said he was inclined to allow a minor charge of reckless second-degree danger when it came to endangering McGinniss, but that attorneys shouldn’t be surprised if he doesn’t allow it. He also said he would not allow the minor prosecution in the case of the unidentified man who tried to kick Rittenhouse.
However, the judge allowed other minor charges in Huber’s shooting. Rittenhouse’s defense agreed to allow intentional second-degree murder and first-degree reckless murder in regards to Huber, but they disagreed with second-degree reckless murder, because that charge does not require proof that the teenager showed an “absolute contempt” for human life. The defense did not want to remove the high level that the prosecution should have met.
As for Grosskreutz, Prosecutors called for lower counts of intentional second-degree manslaughter, first-degree manslaughter and second-degree reckless danger. The defense did not object to the count of the attempted second-degree murder, but objected to the addition of the reckless danger counts, saying they did not believe anyone could “try to be reckless”. The judge has not publicly ruled on this matter.
The judge’s decisions could therefore be a critical issue for Rittenhouse. If the jury, for example, had allowed them to uphold a higher charge, they might be willing to compromise on a lesser charge if they didn’t think a higher charge was suitable. So theoretically it could increase his chances of being convicted.
But perhaps the worst decision for Rittenhouse that could change the very nature of the trial was a judge’s decision on a provocative statement to the jury. We have mentioned before this could be where the accusation was going. This could allow the prosecution to ultimately prevail if they can convince the jury that Rittenhouse “provoked” the attack. The prosecution demanded that the jury be tasked with considering whether Rittenhouse had caused the situation regarding Rosenbaum. The prosecution alleged that Rittenhouse had aimed the gun at people prior to the Rosenbaum shooting. The defense denies. All the prosecution had were grainy images that seemed open to interpretation. You can see the judge, Rittenhouse, and his attorney checking the photos.
One shot is from Getty, the other from Reuters. In both, no surprise, we see an unusual closeness and alignment between Rittenhouse and the judge as they watch the evidence video. The one on the right is KR’s attorney. pic.twitter.com/3RISlkzAWQ
– Read images (@ReadingThePix) November 14, 2021
The judge said he would allow the jury to consider the question and give them a provocative instruction.
That instruction to the jury says the following:
815 PRIVILEGE: SELF-DEFENSE: NOT AVAILABLE TO ANOTHER CAUSES AN ATTACK: RETURN THE PRIVILEGE – § 939.48 (2)
[ADD THE FOLLOWING TO WIS JI‑CRIMINAL 800, 801, OR 805 WHEN SUPPORTED BY THE EVIDENCE.]
You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and whoever provokes an attack is not authorized 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 that this makes the case much more difficult for the defense if the jury accepts this provocative argument – it could actually eliminate self-defense as an argument except under the restrictions above. Previously it seemed an acquittal on foot but if the prosecution sells the jury on this, Rittenhouse could potentially do poorly.
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