Fogbow

Posted: **Fri Nov 12, 2021 7:43 am**

Maybenaut wrote: ↑Wed Nov 10, 2021 5:32 pm
andersweinstein wrote: ↑Wed Nov 10, 2021 5:00 pm
LM K wrote: ↑Wed Nov 10, 2021 4:37 pm 2. The issue of provocation is key to this case.
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).

But the conditionally inserted instructions for elements like provocation do NOT seem to spell things out this way. They just basically restate the relevant part of the statute.

I do think it frames the questions a LOT more clearly to the jury to spell out (as you do) that to disprove self-defense on provocation, prosecution must prove beyond reasonable doubt that [(1) defendant provoked by illegal conduct etc; AND (2) there was a reasonable means of escape and defendant didn't take it. If you dont spell it out, then jurors have to in effect do a bit of logic to transform from the statutory language into the burdens they must check for, and that is just a little bit involved. Your way makes it stand out starkly that prosecutors must do something MORE than just show provocation beyond a reasonable doubt.

As I said, it does look to me like commenters are taking insufficient notice of the fact that even if he provoked he can still perfectly well defend himself under WI law, so whether he provoked should not be viewed as an all-important issue in this case. In particular, in this case (2) looks extremely hard to prove beyond reasonable doubt to me, given he fled and was cornered or on ground when he shot.

I don't think I've heard defense (edit) prosecution even address (2) explicitly, though I could easily have missed it. Is this just something they argue in closing arguments? I wonder, would it be possible for judge to reject the requested instruction for insufficient evidence of (2)? Or would it be taken, for example, that the videos alone might be sufficient to constitute "some evidence" a reasonable juror could use to conclude (2)?

I guess I am wondering if the prosecution has been somewhat neglecting its burden on (2). It looks to me like they've been going on like it doesn't even exist. (though, again, I could easily have missed it, I haven't viewed everything)

Posted: **Fri Nov 12, 2021 7:58 am**

I’ve been thinking about this a lot. I don’t know how many trials since 1989 have resulted in convictions, but it’s a lot.

I do know that since 1989, when the University of Michigan Law School started tracking, there have been 2,887 people exonerated of crimes they had been convicted of. Exonerated. They didn’t do it.

I’m sure at the time those people were convicted, lots of folks were saying that justice had been served because a jury of their peers heard the evidence and decided that the state had proved its case beyond a reasonable doubt. Lots of other people must have thought justice had not been served because, in spite of the verdict, they believed the person’s claim of innocence.

So even the result isn’t necessarily a reliable indicator of whether justice is served or not.

Posted: **Fri Nov 12, 2021 9:33 am**

andersweinstein wrote: ↑Fri Nov 12, 2021 7:43 am
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).
But the conditionally inserted instructions for elements like provocation do NOT seem to spell things out this way. They just basically restate the relevant part of the statute.

I do think it frames the questions a LOT more clearly to the jury to spell out (as you do) that to disprove self-defense on provocation, prosecution must prove beyond reasonable doubt that [(1) defendant provoked by illegal conduct etc; AND (2) there was a reasonable means of escape and defendant didn't take it. If you dont spell it out, then jurors have to in effect do a bit of logic to transform from the statutory language into the burdens they must check for, and that is just a little bit involved. Your way makes it stand out starkly that prosecutors must do something MORE than just show provocation beyond a reasonable doubt.

As I said, it does look to me like commenters are taking insufficient notice of the fact that even if he provoked he can still perfectly well defend himself under WI law, so whether he provoked should not be viewed as an all-important issue in this case. In particular, in this case (2) looks extremely hard to prove beyond reasonable doubt to me, given he fled and was cornered or on ground when he shot.

I don't think I've heard defense (edit) prosecution even address (2) explicitly, though I could easily have missed it. Is this just something they argue in closing arguments? I wonder, would it be possible for judge to reject the requested instruction for insufficient evidence of (2)? Or would it be taken, for example, that the videos alone might be sufficient to constitute "some evidence" a reasonable juror could use to conclude (2)?

The prosecution doesn’t have to specifically “mention” any of this before they start working on jury instructions. If the prosecution thinks that there’s some evidence of provocation, and that there’s some evidence that he didn’t reasonably use any means of escape, or whatever the standard is, they’ll ask for an instruction.

I guess I am wondering if the prosecution has been somewhat neglecting its burden on (2). It looks to me like they've been going on like it doesn't even exist. (though, again, I could easily have missed it, I haven't viewed everything)

I don’t think the prosecution has glossed over any of this at all. I think he knows exactly what the issues are, and I think there is enough evidence for the issue to be in front of the jury. What is not clear to me is whether, under Wisconsin law, they are bound to just give the jury instructions as they currently exist, or whether they can tailor the instructions to the case. In the military, where I practice, the military judge is not only allowed to tailor the instructions to the case, he’s required to do so. So if the instructions aren’t clear enough, the judge has an obligation to make them clear. If I was the prosecutor in this case I’d be asking for that. I assume that that’s also true in Wisconsin, but I don’t know for sure. But this is one of the areas where, in my appellate cases, I would expect to see a fight between the prosecution and the defense over how the instruction should be worded.

Posted: **Fri Nov 12, 2021 9:56 am**

Dave from down under wrote: ↑Fri Nov 12, 2021 1:46 am else we become like Kyle

Posted: **Fri Nov 12, 2021 10:07 am**

Maybenaut wrote: ↑Fri Nov 12, 2021 9:33 am
The prosecution doesn’t have to specifically “mention” any of this before they start working on jury instructions. If the prosecution thinks that there’s some evidence of provocation, and that there’s some evidence that he didn’t reasonably use any means of escape, or whatever the standard is, they’ll ask for an instruction.

Thanks. Another question: I assume in asking for such an instruction, prosecution must specify exactly what illegal behavior constituted the provocation, right? And here prosecution might claim that his simply carrying weapon was provocation, and illegal in his case because a minor. But it seems to me a challenge might be raised to that: open carry is legal for an adult, so could not constitute provocation if it were done by an adult. But no one could tell his age so his behavior was indistinguishable from legal behavior so should not be allowed to constitute "provocation" in this context. I would think this could be argued to be a matter of law. Could that be in issue in the process?

I don't know how good an argument that is, but it seems intuitively to have some go. Just philosophically, the wording of the provocation clause seems odd to me in seeming to reference an *objective* fact -- whether the conduct was in fact illegal -- rather than something about what it would be reasonable to believe. If that were really what were meant, it means that whether something did or did not constitute provocation for the purpose of evaluating a self-defense claim could depend on an objective fact wholly unknown to any of the participants involved, and that seems absurd. Even for an adult, the legality of possession could depend on, say, whether a permit has expired, which nobody might know. It could also depend on something not-yet-adjudicated, as defense argues about the legality of the gun. So any reference to an *objective*, possibly unknown fact of legality seems odd to me in this context.

Posted: **Fri Nov 12, 2021 10:11 am**

andersweinstein wrote: ↑Fri Nov 12, 2021 10:07 am
Maybenaut wrote: ↑Fri Nov 12, 2021 9:33 am
The prosecution doesn’t have to specifically “mention” any of this before they start working on jury instructions. If the prosecution thinks that there’s some evidence of provocation, and that there’s some evidence that he didn’t reasonably use any means of escape, or whatever the standard is, they’ll ask for an instruction.

Thanks. Another question: I assume in asking for such an instruction, prosecution must specify exactly what illegal behavior constituted the provocation, right? And here prosecution might claim that his simply carrying weapon was provocation, and illegal in his case because a minor. But it seems to me a challenge might be raised to that: open carry is legal for an adult, so could not constitute provocation if it were done by an adult. But no one could tell his age so his behavior was indistinguishable from legal behavior so should not be allowed to constitute "provocation" in this context. I would think this could be argued to be a matter of law. Could that be in issue in the process?

I don't know how good an argument that is, but it seems intuitively to have some go. Just philosophically, the wording of the provocation clause seems odd to me in seeming to reference an *objective* fact -- whether the conduct was in fact illegal -- rather than something about what it would be reasonable to believe. If that were really what were meant, it means that whether something did or did not constitute provocation for the purpose of evaluating a self-defense claim could depend on an objective fact wholly unknown to any of the participants involved, and that seems absurd. Even for an adult, the legality of possession could depend on, say, whether a permit has expired, which nobody might know. It could also depend on something not-yet-adjudicated, as defense argues about the legality of the gun. So any reference to an *objective*, possibly unknown fact of legality seems odd to me in this context.

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.

Posted: **Fri Nov 12, 2021 10:15 am**

p0rtia wrote: ↑Thu Nov 11, 2021 8:02 pm Sam speaks truth.

There are many ways to look at what is happening, and I value the wisdom of our generous lawyers and do not doubt that they are correct. They enrich my life daily.

But Sam speaks truth. Justice is fading all over the country. By design.

Here comes the cockeyed optimist: The awareness and acknowledgment of injustice in the system is greater than any time in history. State Innocence Commissions exist even in Arkansas to undo the wrongs of the past. Before, folks relied upon Innocence Projects associated with law schools. Some states have statutory awards for those imprisoned wrongly.
Congress passed criminal law reformation years ago which requires all interrogations to be recorded via audio and visual which protects the accused and is used to discipline law enforcement. DNA is used to find the correct criminal and to exculpate the wrongly accused or imprisoned. Police officers are more likely to be charged and found guilty for wrongful conduct. Police body cams capture events as they happened and catch police who lie about what happened.

Domestic abuse patterns are understood and statutory procedures are in place to help the victim and to prevent a more serious crime. Stalking is better understood and its high risk is acknowledged in newer statutes.

These are just a few. I would not want to be charged with a crime in the U.S. especially if I were a person of color. BUT there are more protections and more ways to be exonerated than ever before.

SO SAITH this Tired Retired Lawyer.

Posted: **Fri Nov 12, 2021 10:34 am**

Maybenaut wrote: ↑Fri Nov 12, 2021 10:11 am 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.

If they are NOT going to ask for provocation instruction on Rosenbaum, then it ought to be completely irrelevant under the law whether Rittenhouse provoked or didn't, right? I mean, in that case it doesn't alter any question the jury must address if he did or didn't.

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.

This comes up also on the idea that folks attacking him thought he was an active shooter. That also seems enitrely irrelevant to any question the jury has to answer as far as I can tell, because the only mental state that matters for those is Rittenhouse's. But I find it hard to believe juries will not be swayed by considerations like that.

[Edit: I realize that if provocation is claimed on shootings 2 and 3, the mental states of others could be relevant to showing that his illegal action did in fact what provoke the attack. I guess I should say it is not of central relevance to whether his self-defense was justified, though it is relevant to provocation. For example, it is not true that he loses if it is judged to be proved that their attacks were fully rationally justified on that basis.]

Posted: **Fri Nov 12, 2021 10:39 am**

: D04A8721-EC60-4805-9A8D-7F15CC4E9B99.png (511.11 KiB) Viewed 844 times

Posted: **Fri Nov 12, 2021 11:26 am**

andersweinstein wrote: ↑Fri Nov 12, 2021 10:34 am 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.

And here we see why the defense made such a perplexingly big deal about this, and its intended audience. The image was not magic, or even 'just the right way', it was processed using techniques so standard that the expert witness seemed really dumbfounded how to describe it. But the defense created some plausible doubt based off how passionate their complaints about 'the colours!' and 'adding pixels' that now people are describing it as being something unusual.

In this, you are not speaking as a 'layman', you are speaking as the audience for which the misinformation was intended, and that people are actually using this argument is infuriating.

Posted: **Fri Nov 12, 2021 11:27 am**

On count 1, first degree reckless homicide, state wants lesser offense 2nd degree reckless included; defense doesn't. Second degree omits "utter disregard for human life". Judge doesn't see how that could be absent when firing four times at someone. They're sort of arguing whether saying "I had to do it/I didn't want to do it" might be taken to show some regard for human life.

Judge also thinks if he gave this instruction over defense objection and defendant were convicted on lesser, it would be overturned.

I think this touches on the issue I wondered about of whether imperfect self-defense is available as a mitigation to 1st degree reckless. Apparently it isn't in WI, but here's an argument that it ought to be. According to that argument, imperfect self-defense negates the utter disregard element. If this were accepted in WI law they'd have a clear basis to include it and wouldn't have to have this discussion.

Posted: **Fri Nov 12, 2021 11:56 am**

andersweinstein wrote: ↑Fri Nov 12, 2021 11:27 am Judge also thinks if he gave this instruction over defense objection and defendant were convicted on lesser, it would be overturned.

A key point here : the judge did not say they believe it would be overturned, they said they would overturn it.

Posted: **Fri Nov 12, 2021 12:01 pm**

Oh, maybenaut will love this on gun charge. State says exception is affirmative defense. Defense says that means state has burden of proof to show it didnt apply and state didnt give any evidence to disprove it. State says defense didn't put in evidence to raise the issue. Question is now whether there was evidence about length of the barrel that is enough to raise the issue. Was some mention of length by a detective. Also evidence of age was introduced, which defense believes enough (under their interpretation).

Hilarious after all the discussion of the law.

[Edited: they are also getting into the interpretation of the exception again as well.]

Posted: **Fri Nov 12, 2021 12:19 pm**

andersweinstein wrote: ↑Fri Nov 12, 2021 12:01 pm Oh, maybenaut will love this on gun charge. State says exception is affirmative defense. Defense says that means state has burden of proof to show it didnt apply and state didnt give any evidence to disprove it. State says defense didn't put in evidence to raise the issue. Question is now whether there was evidence about length of the barrel that is enough to raise the issue. Was some mention of length by a detective. Also evidence of age was introduced, which defense believes enough (under their interpretation).

Hilarious after all the discussion of the law.

[Edited: they are also getting into the interpretation of the exception again as well.]

Please clarify. Is the exception your referring to is the "under" 18 unless hunting with a specific length barrel?

What is hilarious?

Posted: **Fri Nov 12, 2021 12:22 pm**

They're talking about provocation instruction on Rosenbaum. Weirdly, in fighting this Chirafisi seems to accept that on that instruction, if jury finds he provoked, they could only acquit if he withdrew and gave adequate notice. I think he may be swallowing this from prosecution. But that is only one way in statute to regain right of self-defense. Seems a like a serious error of his to forget he would only need to have exhausted all alternatives. Are they contemplating instructions without this, or did he just miss an OR? The model instructions include this a clause with this..

Posted: **Fri Nov 12, 2021 12:25 pm**

LM K wrote: ↑Fri Nov 12, 2021 12:19 pm
andersweinstein wrote: ↑Fri Nov 12, 2021 12:01 pm Oh, maybenaut will love this on gun charge. State says exception is affirmative defense. Defense says that means state has burden of proof to show it didnt apply and state didnt give any evidence to disprove it. State says defense didn't put in evidence to raise the issue. Question is now whether there was evidence about length of the barrel that is enough to raise the issue. Was some mention of length by a detective. Also evidence of age was introduced, which defense believes enough (under their interpretation).

Hilarious after all the discussion of the law.

[Edited: they are also getting into the interpretation of the exception again as well.]
Please clarify. Is the exception your referring to is the "under" 18 unless hunting with a specific length barrel?

Yes, although the accuracy of that description might be disputed.

LM K wrote: ↑Fri Nov 12, 2021 12:19 pm What is hilarious?

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.

(In fact it does not seem the issue is being resolved that way, but I find it hard to understand exactly what they are doing. I think they are going to review the evidence, so perhaps this could yet happen.)

Posted: **Fri Nov 12, 2021 12:32 pm**

andersweinstein wrote: ↑Fri Nov 12, 2021 12:22 pm They're talking about provocation instruction on Rosenbaum. Weirdly, in fighting this Chirafisi seems to accept that on that instruction, if jury finds he provoked, they could only acquit if he withdrew and gave adequate notice. I think he is swallowing this from prosecution. But that is only one way in statute to regain right of self-defense. Seems a like a serious error of his to forget he would only need to have exhausted all alternatives.

Are you sure it is an error, or do you think it could it be that the defense, prosecution, and judge all have a different interpretation of the statute than do you?

Posted: **Fri Nov 12, 2021 12:38 pm**

raison de arizona wrote: ↑Fri Nov 12, 2021 12:32 pm
andersweinstein wrote: ↑Fri Nov 12, 2021 12:22 pm They're talking about provocation instruction on Rosenbaum. Weirdly, in fighting this Chirafisi seems to accept that on that instruction, if jury finds he provoked, they could only acquit if he withdrew and gave adequate notice. I think he is swallowing this from prosecution. But that is only one way in statute to regain right of self-defense. Seems a like a serious error of his to forget he would only need to have exhausted all alternatives.
Are you sure it is an error, or do you think it could it be that the defense, prosecution, and judge all have a different interpretation of the statute than do you?

Always possible. This interpretation was presupposed in posts from maybenaut as well, so I thought it reliable -- but maybe my own statements were his only source. But it is possible the clauses in the statute should be taken as cumulative so conjunctive: you have to BOTH exhaust all alternatives AND withdraw and give notice. That would be news that would seriously undermine the formulation in our earlier discussion of prosecutor's burden. Not sure where to find authoritative info.

I think the jury instructions make it look like you could put in one paragraph about exhausting alternatives without putting in the "withdraw and give notice" paragraph. It has them bracketed separately under instructions to "USE ANY OF THE FOLLOWING PARAGRAPHS THAT ARE SUPPORTED BY THE EVIDENCE"

Edit: But yes, 100% it would be me that was operating with a serious misunderstanding of that section, which has been posted here several times.

Posted: **Fri Nov 12, 2021 12:42 pm**

raison de arizona wrote: ↑Fri Nov 12, 2021 12:32 pmAre you sure it is an error, or do you think it could it be that the defense, prosecution, and judge all have a different interpretation of the statute than do you?

Now that is hilarious.

Posted: **Fri Nov 12, 2021 12:50 pm**

andersweinstein wrote: ↑Fri Nov 12, 2021 12:25 pm
LM K wrote: ↑Fri Nov 12, 2021 12:19 pm
andersweinstein wrote: ↑Fri Nov 12, 2021 12:01 pm Oh, maybenaut will love this on gun charge. State says exception is affirmative defense. Defense says that means state has burden of proof to show it didnt apply and state didnt give any evidence to disprove it. State says defense didn't put in evidence to raise the issue. Question is now whether there was evidence about length of the barrel that is enough to raise the issue. Was some mention of length by a detective. Also evidence of age was introduced, which defense believes enough (under their interpretation).

Hilarious after all the discussion of the law.

[Edited: they are also getting into the interpretation of the exception again as well.]
Please clarify. Is the exception your referring to is the "under" 18 unless hunting with a specific length barrel?
Yes, although the accuracy of that description is disputed.

LM K wrote: ↑Fri Nov 12, 2021 12:19 pm What is hilarious?
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.

In fact it does not seem the issue is being resolved that way.

Thank you for clarifying, Anders.

During his testimony, Rittenhouse tried to argue that possessing the weapon was ok at 17 even though he knew that purchasing the gun was illegal.

Then Rittenhouse opened an interesting door. He claimed that he wanted to purchase a shot gun. His verbage raised the issue that he knew he couldn't purchase any long gun that the purchase was his. Then he claimed he bought the AR because the gun store was "out of stock" of shotguns.

Then Rittenhouse agreed that the gun was his and not Dominic's. Rittenhouse confirmed that he kept the AR at Dominic's because he couldn't legally have it at his home in Illinois. But why did Dominic buy the gun for him if Rittenhouse thought it was legal for him to have the AR?

WI law doesn't adequately address what "possession" is; is it ownership or use of the gun?

The fact is that the jury will have to decide this. I think they'll see the issue as an affirmative defenses that never was addressed with evidence that supports an affirmative defense..

Posted: **Fri Nov 12, 2021 12:53 pm**

andersweinstein wrote: ↑Fri Nov 12, 2021 12:38 pm
raison de arizona wrote: ↑Fri Nov 12, 2021 12:32 pm
andersweinstein wrote: ↑Fri Nov 12, 2021 12:22 pm They're talking about provocation instruction on Rosenbaum. Weirdly, in fighting this Chirafisi seems to accept that on that instruction, if jury finds he provoked, they could only acquit if he withdrew and gave adequate notice. I think he is swallowing this from prosecution. But that is only one way in statute to regain right of self-defense. Seems a like a serious error of his to forget he would only need to have exhausted all alternatives.
Are you sure it is an error, or do you think it could it be that the defense, prosecution, and judge all have a different interpretation of the statute than do you?
Always possible. This interpretation was presupposed in posts from maybenaut as well, so I thought it reliable -- but maybe my own statements were his only source. But it is possible the clauses in the statute should be taken as cumulative so conjunctive: you have to BOTH exhaust all alternatives AND withdraw and give notice. That would be news that would seriously undermine the formulation in our earlier discussion of prosecutor's burden. Not sure where to find authoritative info.

I think the jury instructions make it look like you could put in one paragraph about exhausting alternatives without putting in the "withdraw and give notice" paragraph. It has them bracketed separately under instructions to "USE ANY OF THE FOLLOWING PARAGRAPHS THAT ARE SUPPORTED BY THE EVIDENCE"

You obviously haven't been paying attention.

Posted: **Fri Nov 12, 2021 1:00 pm**

LM K wrote: ↑Fri Nov 12, 2021 12:50 pm During his testimony, Rittenhouse tried to argue that possessing the weapon was ok at 17 even though he knew that purchasing the gun was illegal.

Interesting. I wonder if that would be enough to constitute "raising the issue" of the exception also.

LM K wrote: ↑Fri Nov 12, 2021 12:50 pm WI law doesn't adequately address what "possession" is; is it ownership or use of the gun?

I don't think it is in dispute he "possessed" the gun in WI for the purpose of the law.

Posted: **Fri Nov 12, 2021 1:18 pm**

William Kennedy was acquitted.

OJ Simpson was acquitted (the first time).

Michael Jackson was acquitted.

Ammon (Eggs) Bundy and his daddy were acquitted.

Live long enough, you're gonna see a lot of that.

They say if'n you sit by the river long enough, you can watch the body of your enemy float downstream. I wonder about that one. No, I'm not asking my staff. Me, I'd sit there a few hours, and then go get something to eat.

Posted: **Fri Nov 12, 2021 1:40 pm**

LM K wrote: ↑Fri Nov 12, 2021 12:53 pm You obviously haven't been paying attention.

I may have interpreted that section in a significantly erroneous way and that is disconcerting -- I just took it for granted one way without ever noticing any possible ambiguity. That clause has been posted here several times. I wonder what people think: do (a) and (b) look like conjunctive requirements? The case law listed on the statute page doesn't obviously reference anything concerning the provocation section.

(2) Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
(c) 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 his or her assailant is not entitled to claim the privilege of self-defense.

https://docs.legis.wisconsin.gov/statut ... 939/iii/48

Posted: **Fri Nov 12, 2021 1:49 pm**

andersweinstein wrote: ↑Fri Nov 12, 2021 12:25 pm
LM K wrote: ↑Fri Nov 12, 2021 12:19 pm
andersweinstein wrote: ↑Fri Nov 12, 2021 12:01 pm Oh, maybenaut will love this on gun charge. State says exception is affirmative defense. Defense says that means state has burden of proof to show it didnt apply and state didnt give any evidence to disprove it. State says defense didn't put in evidence to raise the issue. Question is now whether there was evidence about length of the barrel that is enough to raise the issue. Was some mention of length by a detective. Also evidence of age was introduced, which defense believes enough (under their interpretation).

Hilarious after all the discussion of the law.

[Edited: they are also getting into the interpretation of the exception again as well.]
Please clarify. Is the exception your referring to is the "under" 18 unless hunting with a specific length barrel?
Yes, although the accuracy of that description might be disputed.

LM K wrote: ↑Fri Nov 12, 2021 12:19 pm What is hilarious?
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.

(In fact it does not seem the issue is being resolved that way, but I find it hard to understand exactly what they are doing. I think they are going to review the evidence, so perhaps this could yet happen.)

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.

Fogbow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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