Kyle Rittenhouse, previous owner of a Smith & Wesson M&P15

[andersweinstein]

That after prosecution made all this insistence on treating it as an affirmative defense to be raised at trial, they might lose the charge for failing to meet their burden to disprove it taken as such.

It doesn’t make any practical difference. The burden never shifts to the defense. The only time it matters is when a statutory element placed any burden on the defense. As I’ve said, I think it’s odd how Wi does this.

OK, but I don't understand something then. Doesn't someone have to introduce some evidence to put the existence of the affirmative defense "into issue" (or whatever the precise term)? So doesn't it frequently wind up on the defense to put this evidence in in cases where the prosecution doesn't?

I am also unclear on what that evidence would be in the case of the rifle exception. In my amateur way I would think it just to be: here's a 17-year-old with a firearm, OK, so we can charge them without considering any possible exceptions. At trial: wait, this is a rifle. Statute includes an exception applying to teens with rifles. BOOM, prosecution now has burden of showing exception doesn't apply (showing it's either it's short barrelled or teen wasn't in compliance with blah blah blah -- show he had no hunter safety cert, perhaps.) Is that how it would go?

If so, the only thing they would need in evidence is that it is a rifle.

[Maybenaut]

That after prosecution made all this insistence on treating it as an affirmative defense to be raised at trial, they might lose the charge for failing to meet their burden to disprove it taken as such.

It doesn’t make any practical difference. The burden never shifts to the defense. The only time it matters is when a statutory element placed any burden on the defense. As I’ve said, I think it’s odd how Wi does this.

OK, but I don't understand something then. Doesn't someone have to introduce some evidence to put the existence of the affirmative defense "into issue" (or whatever the precise term)? So doesn't it frequently wind up on the defense to put this evidence in in cases where the prosecution doesn't?

I am also unclear on what that evidence would be in the case of the rifle exception. In my amateur way I would think it just to be: here's a 17-year-old with a firearm, OK, so we can charge them without considering any possible exceptions. At trial: wait, this is a rifle. Statute includes an exception applying to teens with rifles. BOOM, prosecution now has burden of showing exception doesn't apply (showing it's either it's short barrelled or teen wasn't in compliance with blah blah blah -- show he had no hunter safety cert, perhaps.) Is that how it would go?

If so, the only thing they would need in evidence is that it is a rifle.

Either side can introduce Evidence that puts an affirmative defense in issue. It doesn’t necessarily have to be put in issue by the defense. I think all the prosecution had to show is that he was 17, he was in possession of a rifle, and he hadn’t had hunter safety training or whatever the requirement. I didn’t watch all of his testimony, but I presume that they put in evidence that he hadn’t had hunter safety training. I think they just asked him? If they didn’t ask him, then they were stupid.

[andersweinstein]

Either side can introduce Evidence that puts an affirmative defense in issue. It doesn’t necessarily have to be put in issue by the defense. I think all the prosecution had to show is that he was 17, he was in possession of a rifle, and he hadn’t had hunter safety training or whatever the requirement. I didn’t watch all of his testimony, but I presume that they put in evidence that he hadn’t had hunter safety training. I think they just asked him? If they didn’t ask him, then they were stupid.

From the discussion, it sounded like this was another oopsie for the prosecution and they never did, as with the curfew. But its possible they did. As I explained, their response when lack of evidence was pointed out was not to point to that evidence, but simply to claim the exception was never put in issue at any time. And the defense responded that evidence about it being a long-barelled sufficed to put it in issue. It seemed odd to me to even need this since the rifle itself is in evidence, isn't it? It's long-barreledness is manifest on visual inspection without measurement.

I still don't understand exactly how they were planning to resolve this. The discussion wandered, they got into the argument over the statute again, and again the judge made a few remarks hinting that he might still decide the statutory language was too hard for an ordinary person to understand and rolled his eyes when prosecution asserted the language was clear. It sounded like he was starting to announce his plan to craft an instruction anyway but then said they had to go review the evidence, so I didn't understand where the matter was left.

Edit to add: I noticed he also said he denied the defense motion because it "attacked the complaint" and that "the pleading was in order", but now "the rubber hits the road" and state must prove all elements. I think that means denial of motion to reconsider was not necessarily based on deciding the argument lacked merit.

[p0rtia]

No, legal process will have been served. That is not the same as justice being served, unless you redefine justice as nothing more than a procedural construct.

***

Valuing process over outcome risks entering a moral and ethical vacuum.

While we all want justice, the best we can do as imperfect humans is to have general procedures in place to (hopefully) make it likely that justice is reached in specific cases.
To paraphrase Robert Bolt from A Man for All Seasons, there is a danger associated with viewing justice as something separate and apart from the laws and procedures:

Roper: So now you’d give the Devil benefit of law?
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And, when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and, if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

My position is that indeed, the laws and procedures are breaking down, not that we have any other recourse beyond those laws and procedures.

From where I sit, which is on the outside of the legal community, we are well over the tipping point. This is what it looks like when the rule of law is crumbling. I continue to hope I'm wrong.

[RVInit]

When is the rebuttal case going to happen, does anyone know. Have I missed it? I have been too busy the last three days to watch much video, I caught some of yesterday's testimony on and off yesterday. But none at all today.

[p0rtia]

When is the rebuttal case going to happen, does anyone know. Have I missed it? I have been too busy the last three days to watch much video, I caught some of yesterday's testimony on and off yesterday. But none at all today.

Today. I'm pretty sure rebuttal is over, because I heard on the news that final arguments are Monday.

[neeneko]

My position is that indeed, the laws and procedures are breaking down, not that we have any other recourse beyond those laws and procedures.

From where I sit, which is on the outside of the legal community, we are well over the tipping point. This is what it looks like when the rule of law is crumbling. I continue to hope I'm wrong.

Is it really breaking down though, or is the visibility simple better? I always got the impression that the additional scrutiny and distrust is resulting in people getting upset over things that have, well, always been happening but were kinda hidden behind the romance.

[filly]

Sometimes bad lawyering leads to bad results.

[Volkonski]

Right-wing chat group posts home address of Rittenhouse prosecutor

https://www.rawstory.com/prosecutor-tho ... um=twitter

A user in the 159-member group Kenosha Strong Patriots shared a picture of prosecutor Thomas Binger along with his home address.

Another user commented: "This is absolutely not an encouragement to violence. Just would be nice to see a peaceful protest outside his home like the left does every time they don't like something."

As the Journal Sentinel points out, Binger was made aware of the threats and says he's taken steps to protect himself.

[Dave from down under]

I hear that Kyle may be available to protect someone’s property from protesters.

Of course he will need an illegal gun and to be scared by the protesters so that he can start killing.

[LM K]

Either side can introduce Evidence that puts an affirmative defense in issue. It doesn’t necessarily have to be put in issue by the defense. I think all the prosecution had to show is that he was 17, he was in possession of a rifle, and he hadn’t had hunter safety training or whatever the requirement. I didn’t watch all of his testimony, but I presume that they put in evidence that he hadn’t had hunter safety training. I think they just asked him? If they didn’t ask him, then they were stupid.

From the discussion, it sounded like this was another oopsie for the prosecution and they never did, as with the curfew. But its possible they did. As I explained, their response when lack of evidence was pointed out was not to point to that evidence, but simply to claim the exception was never put in issue at any time. And the defense responded that evidence about it being a long-barelled sufficed to put it in issue. It seemed odd to me to even need this since the rifle itself is in evidence, isn't it? It's long-barreledness is manifest on visual inspection without measurement.

The prosecution did ask Rittenhouse about the curfew. Rittenhouse said he was aware of the curfew and received a cell phone alert about it. But that was as far as the questioning went regarding curfew. The curfew charge was already dropped at that time.

This was a very brief issue during Rittenhouse's testimony, and easily missed.

I still don't understand exactly how they were planning to resolve this. The discussion wandered, they got into the argument over the statute again, and again the judge made a few remarks hinting that he might still decide the statutory language was too hard for an ordinary person to understand and rolled his eyes when prosecution asserted the language was clear. It sounded like he was starting to announce his plan to craft an instruction anyway but then said they had to go review the evidence, so I didn't understand where the matter was left.

Edit to add: I noticed he also said he denied the defense motion because it "attacked the complaint" and that "the pleading was in order", but now "the rubber hits the road" and state must prove all elements. I think that means denial of motion to reconsider was not necessarily based on deciding the argument lacked merit.

I hope WI legislators rewrite this law. Every literate citizen needs to understand a law without interpretation of that law by legal experts. Gun laws should be crystal clear.

[LM K]

From what I can see, it is not that crucial under WI law. Under WI law, even if he provoked the attack, he could still act in self-defense against a death/bodily harm attack. ...

... The burden is on the prosecution to prove beyond a reasonable doubt that the defense of self-defense did not exist. With respect to provocation as it relates to losing the right to claim self-defense, I believe the burden is on the prosecution to prove that he provoked the attack by engaging in unlawful conduct, and that there were other unexhausted reasonable means of escape.

Thanks again for framing this so carefully and precisely in terms of the prosecutor's burden. That really does highlight the issues as they appear to a professional with that concern always at the forefront.

So I'm kind of interested in this. One thing I notice: the model instructions for the main charges do helpfully spell questions out for the jury in terms of the burden of proof this way. For example, from instructions for first degree intentional homicide:

The third element of first degree intentional homicide requires that the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to (himself) (herself). This requires the State to prove either:
1) that the defendant did not actually believe (he) (she) was in imminent danger of death or great bodily harm; or
2) that the defendant did not actually believe the force used was necessary to prevent imminent danger of death or great bodily harm to (himself) (herself).

Remember, the jury has to evaluate perceived threat as a threat that a reasonable person would interpret the claimed threat to be an actual threat.

The jury must determine if Rittenhouse's perception of threat was reasonable and if a reasonable person feel that lethal force was the only way to protect themselves from being killed. Rittenhouse may have felt the need for self-defense. But was he reasonable and would a reasonable person have used lethal force?

[LM K]

That is why this exercises me a bit and I suspect they are trying to sway the jury by appealing to "folk morality" -- the commonsense morality that if you are the one who provoked an attack, you shouldn't be able to claim self-defense. I find it hard to believe the jury really going to focus like a laser beam ONLY on the other questions about Rosenbaum shooting and not let themselves be swayed in any way of whether they think Rittenhouse provoked it.

I find your assertion about "folk morality" to be absurd. The core of your claim is that if a juror disagrees with your interpretation of the law, that juror must have been rendered dumb by their emotions and incapable of critical thinking.

[LM K]

I think in this case the provocation only applies to Huber and the other guy. The provocation is that he shot Rosenbaum. And then people started chasing him. I don’t think there’s a good argument for provocation with respect to Rosenbaum. But that’s just me, I have no idea what the prosecution is going to argue.

Well they've seemed to be placing a lot of weight earlier on the claim that the FBI footage shows Rittenhouse "chasing down and confronting" Rosenbaum and even more on the magic new drone footage, which, if enlarged and enhanced in just that right way, produces a blurry picture suggesting Rittenhouse raising his rifle at Ziminski. Speaking as a layman, I'd be a little surprised if they didn't seek it after all that.

Drone footage 2 is quite inconvenient for you, eh, Anders? It sure does clarify a lot about what happened when Rittenhouse pulled the trigger repeatedly, shooting Rosenbaum 4 times.

At this time I'm not sure what I think about the portion of footage involving Ziminski.

But that drone footage makes your claims about ambush and attack much less convincing.

[RVInit]

It's not magical. Even the judge, after watching it several times grudgingly had to side with the prosecutor regarding Rittenhouse putting down the fire extinguisher in order to be able to raise his gun and point it at the Ziminiskis. The worst part of that part of the video for Rittenhouse is that he is traveling in a direction AWAY from the Ziminski's, they are BEHIND him. He turns around, puts down the extinguisher and points the gun. And, this is for anders - quit lying about the source of this video. This is NOT FBI footage that magically showed up. This is footage from a private citizen, who supplied it to white supremacist Tucker Carlson in an effort to help Rittenhouse. The fact this very footage is allowing the jury to hear about provocation is a win for the prosecution.

Anyone who doubted the judge is pulling for the defense should be completely disavowed of that notion after yesterday and today. I haven't watched all of what happened yesterday but it was really disturbing to me to see the judge continue efforts to help the defense and hamstring the prosecutor. And he was visibly angry at having to admit that based on his own viewing of the drone video that it is appropriate to give the jury instruction as to provocation by the defendant. They very judge that is trying so hard to help the defendant.

[Maybenaut]

... The burden is on the prosecution to prove beyond a reasonable doubt that the defense of self-defense did not exist. With respect to provocation as it relates to losing the right to claim self-defense, I believe the burden is on the prosecution to prove that he provoked the attack by engaging in unlawful conduct, and that there were other unexhausted reasonable means of escape.

Thanks again for framing this so carefully and precisely in terms of the prosecutor's burden. That really does highlight the issues as they appear to a professional with that concern always at the forefront.

So I'm kind of interested in this. One thing I notice: the model instructions for the main charges do helpfully spell questions out for the jury in terms of the burden of proof this way. For example, from instructions for first degree intentional homicide:

The third element of first degree intentional homicide requires that the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to (himself) (herself). This requires the State to prove either:
1) that the defendant did not actually believe (he) (she) was in imminent danger of death or great bodily harm; or
2) that the defendant did not actually believe the force used was necessary to prevent imminent danger of death or great bodily harm to (himself) (herself).

Remember, the jury has to evaluate perceived threat as a threat that a reasonable person would interpret the claimed threat to be an actual threat.

The jury must determine if Rittenhouse's perception of threat was reasonable and if a reasonable person feel that lethal force was the only way to protect themselves from being killed. Rittenhouse may have felt the need for self-defense. But was he reasonable and would a reasonable person have used lethal force?

Maybe. Intentional murder can be mitigated to “imperfect self-defense manslaughter.” His belief that he “was preventing or terminating unlawful interference with his person” must be reasonable. If he can show that, he’s entitled to mitigate murder to manslaughter if he can also show either that he had an actual but unreasonable belief that force was necessary; or he had a reasonable belief that force was necessary, but an actual but unreasonable belief that deadly force was necessary.

We don’t have this rule where I practice, so I’m not sure I fully understand how it works.

[RVInit]

I am really disappointed in the prosecutor's rebuttal case. They could have brought in two witnesses to testify that the defendant lied to the jury. Why didn't they do this? He lied about being a nursing student at University of Arizona and he lied about the police department issuing him a bullet proof vest. Among other lies. Lying on the night of is bad enough. Lying to the jury is utterly reckless and stoopid.

[Maybenaut]

I am really disappointed in the prosecutor's rebuttal case. They could have brought in two witnesses to testify that the defendant lied to the jury. Why didn't they do this? He lied about being a nursing student at University of Arizona and he lied about the police department issuing him a bullet proof vest. Among other lies. Lying on the night of is bad enough. Lying to the jury is utterly reckless and stoopid.

I didn’t get a chance to watch any of it today. I was out playing music with my friends, which is infinitely preferable to watching the Rittenhouse trial.

[Foggy]

Lying on the night of is bad enough. Lying to the jury is utterly reckless and stoopid.

You'd think so, huh?

[pipistrelle]

Lying on the night of is bad enough. Lying to the jury is utterly reckless and stoopid.

You'd think so, huh?

Not if the jury doesn’t know they’ve been lied to.

[Maybenaut]

I meant to ask… what did the State do in rebuttal?

[andersweinstein]

Well they've seemed to be placing a lot of weight earlier on the claim that the FBI footage shows Rittenhouse "chasing down and confronting" Rosenbaum and even more on the magic new drone footage, which, if enlarged and enhanced in just that right way, produces a blurry picture suggesting Rittenhouse raising his rifle at Ziminski. Speaking as a layman, I'd be a little surprised if they didn't seek it after all that.

Drone footage 2 is quite inconvenient for you, eh, Anders? It sure does clarify a lot about what happened when Rittenhouse pulled the trigger repeatedly, shooting Rosenbaum 4 times.

At this time I'm not sure what I think about the portion of footage involving Ziminski.

But that drone footage makes your claims about ambush and attack much less convincing.

I didn't see anything in the drone footage inconsistent with the ambush theory. It starts with him running away along the well known chase. So I honestly don't know why you say that.

[RVInit]

I meant to ask… what did the State do in rebuttal?

The only rebuttal I saw was their video expert, who wasn't really well versed in the nuts and bolts of how extrapolation works. As far as I know that was their only rebuttal. Unless they put something on today. But I kind of forwarded through today's video and I did not see any time when any witness was on the stand. Granted, if they had brought someone from the University and someone from the police department, that questioning would have taken only minutes, it would have been a single question for each of them. Maybe that's why they didn't do it. But damn, they NEEDED to do that. I do know they will be able to show that he lied about other things, but these are two things that don't even make sense that he lied about them. Sort of. The bullshit "I'm in the nursing program at the University of Arizona" was designed to show what a great citizen he is, he wants to help people, and he had to do something to counter how utterly and completely ridiculous his medic cosplay was next to Gaige Grosskreutz actually and truly being a paramedic EMT. I think he decided to "conveniently" sign up for the online class he's taking at U of A in order to impress the jury with how serious he is. Of course, he also was trying to show the jury how immature he was, how he didn't know anything about ammunition, he was a poor victim that someone forced a gun (that he didn't want to buy) into his hands and then some other bad people forced him to pull the trigger eight times killing two and seriously wounding a third.

[scirreeve]

Ammon (Eggs) Bundy and his daddy were acquitted.

Sorry to contradict you Dick Tater but Ammon's daddy was not acquitted - was a mistrial (Ammon was acquitted in OR but not in NV).

[andersweinstein]

For example, from instructions for first degree intentional homicide:

The third element of first degree intentional homicide requires that the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to (himself) (herself). This requires the State to prove either:
1) that the defendant did not actually believe (he) (she) was in imminent danger of death or great bodily harm; or
2) that the defendant did not actually believe the force used was necessary to prevent imminent danger of death or great bodily harm to (himself) (herself).

Remember, the jury has to evaluate perceived threat as a threat that a reasonable person would interpret the claimed threat to be an actual threat.

The jury must determine if Rittenhouse's perception of threat was reasonable and if a reasonable person feel that lethal force was the only way to protect themselves from being killed. Rittenhouse may have felt the need for self-defense. But was he reasonable and would a reasonable person have used lethal force?

That excerpt was only one part of the instructions for first degree intentional homicide where self-defense is an issue and second degree intentional homicide is a lesser included offense. The first degree charge requires a certain intention so it is refuted by a merely actual belief as described, whether or not that belief was reasonable. So that is why this portion is in there as written.

But that leaves open the possibility that it is still a case of what is called "imperfect self defense" which is second degree intentional homicide in WI (fierceredpanda explained this earlier in the thread; evidently they don't have manslaughter in WI). If first degree murder is not proved, the the jury is instructed to go on to consider the charge second degree intentional homicide. It is at that point the requirement of reasonableness of the beliefs comes in. You can see this in the full set of instructions at https://wilawlibrary.gov/jury/files/criminal/1016.pdf