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

[LM K]

Not too sure about these folks legal chops, but here's the video.

These tweeters are absolute idiots.

[LM K]

Still thinking about this illegal gun business…

Back in 2012, 17-year-old Marcus Fultz lived with his grandmother in Milwaukee. Someone reported to the police that a rifle had been passed through a window of the grandmother’s house. The police searched Marcus’s room and found a bolt-action .22 caliber rifle hidden behind a dresser in the bedroom. Marcus admitted that the gun was his, and he was charged with being a minor in possession under Wis. Stat. 948.60.

Presumably it was not a “short-barrel” gun because he apparently wasn’t charged with being in violation of section 941.28.

Marcus pled guilty, and his appellate counsel filed a “no merit” appeal, meaning that, although Marcus wanted to appeal the validity of his guilty plea, in the counsel’s view any appeal would be frivolous. On appeal the appellate court found no reason to question the validity of the guilty plea.

In Marcus’ case, he wasn’t even holding the gun, let alone walking around in public with it. But by affirming the conviction, the appellate court necessarily must have concluded that found that the statute applied to 17 year olds.

Fascinating! Thanks, Maybenaut!

[raison de arizona]

Why come it's cool for RIttenhouse to point his gun at people but not ok for people to point their guns back? It seems like they are saying Grosskreutz would have been justified in plugging Rittenhouse, but Rittenhouse got Grosskreutz first so finders keepers losers weepers.

[LM K]

Why come it's cool for RIttenhouse to point his gun at people but not ok for people to point their guns back? It seems like they are saying Grosskreutz would have been justified in plugging Rittenhouse, but Rittenhouse got Grosskreutz first so finders keepers losers weepers.

EXACTLY!

[RVInit]

The characterization that Grosskreutz has admitted that Rittenhouse did not shoot him until after Grosskreutz points the gun at Rittenhouse is a mischaracterization. I need to eat lunch, but I can give more details later. He admitted to no such thing.

He is holding his weapon in the same hand as the arm that Rittenhouse has vaporized. He effectively lost control of his arm and yes, as the top of his arm is already exploding, his hand drops and in one photo looks at that point as if it's pointing at Rittenhouse. But his hand doesn't drop until AFTER Rittenhouse has already shot him and he's now missing most of his bicep and can no longer control his arm.

Edit - And the decision Rittenhouse made to re-rack his gun and shoot Grosskreutz was made while Grosskreutz' hands were in the air.

So, I wouldn't take those tweets all that seriously. They are mischaracterizing what happened and what Grosskreutz has admitted to.

[andersweinstein]

Still thinking about this illegal gun business…

Back in 2012, 17-year-old Marcus Fultz lived with his grandmother in Milwaukee. Someone reported to the police that a rifle had been passed through a window of the grandmother’s house. The police searched Marcus’s room and found a bolt-action .22 caliber rifle hidden behind a dresser in the bedroom. Marcus admitted that the gun was his, and he was charged with being a minor in possession under Wis. Stat. 948.60.

Presumably it was not a “short-barrel” gun because he apparently wasn’t charged with being in violation of section 941.28.

Marcus pled guilty, and his appellate counsel filed a “no merit” appeal, meaning that, although Marcus wanted to appeal the validity of his guilty plea, in the counsel’s view any appeal would be frivolous. On appeal the appellate court found no reason to question the validity of the guilty plea.

In Marcus’ case, he wasn’t even holding the gun, let alone walking around in public with it. But by affirming the conviction, the appellate court necessarily must have concluded that found that the statute applied to 17 year olds.

Does not look like the gun law was an issue in the appeal:

In his no-merit report, counsel addresses whether there would be any arguable merit to an appeal on three issues: (1) the validity of Fultz’s pleas; (2) the circuit court’s exercise of sentencing discretion; and (3) whether Fultz’s trial counsel was ineffective. For reasons explained below, we agree with the conclusion that there would be no arguable merit to pursuing these issues on appeal.Additionally, although counsel does not address it, we discuss at the outset the circuit court’s denial of Fultz’s motion to suppress.

https://law.justia.com/cases/wisconsin/ ... -crnm.html

[RVInit]

A quick update while my soup is heating up.

So, because there is video, the defense is able to go frame by frame through that video and take a screen shot of a moment that, while Grosskreutz has lost control of his arm it's dropping down and oh, yeah, if you take a screenshot at just teh exact right moment you can find one where the gun appears to be pointing at Rittenhouse. I don't expect this to fool the jury. Grosskreutz is clearly missing most of his upper arm in that same screen shot. This is be talked about effectively during re-direct I have no doubt whatsoever.

[Maybenaut]

Still thinking about this illegal gun business…

Back in 2012, 17-year-old Marcus Fultz lived with his grandmother in Milwaukee. Someone reported to the police that a rifle had been passed through a window of the grandmother’s house. The police searched Marcus’s room and found a bolt-action .22 caliber rifle hidden behind a dresser in the bedroom. Marcus admitted that the gun was his, and he was charged with being a minor in possession under Wis. Stat. 948.60.

Presumably it was not a “short-barrel” gun because he apparently wasn’t charged with being in violation of section 941.28.

Marcus pled guilty, and his appellate counsel filed a “no merit” appeal, meaning that, although Marcus wanted to appeal the validity of his guilty plea, in the counsel’s view any appeal would be frivolous. On appeal the appellate court found no reason to question the validity of the guilty plea.

In Marcus’ case, he wasn’t even holding the gun, let alone walking around in public with it. But by affirming the conviction, the appellate court necessarily must have concluded that found that the statute applied to 17 year olds.

Does not look like the gun law was an issue in the appeal.

In his no-merit report, counsel addresses whether there would be any arguable merit to an appeal on three issues: (1) the validity of Fultz’s pleas; (2) the circuit court’s exercise of sentencing discretion; and (3) whether Fultz’s trial counsel was ineffective. For reasonsexplained below, we agree with the conclusion that there would be no arguable merit to pursuing these issues on appeal.Additionally, although counsel does not address it, we discuss at the outset the circuitcourt’s denial of Fultz’s motion to suppress.

https://law.justia.com/cases/wisconsin/ ... -crnm.html

Well, it was the statute he was convicted of violating, and the appellate court said,

Our independent review of the record reveals no other potential issues of arguable merit.

One would think that if the appellate court thought the statute didn’t apply to 17–year-olds they would have set aside the conviction for failure to state an offense.

[andersweinstein]

Not too sure about these folks legal chops, but here's the video.
...

I've checked that feed now and again, and even I find it annoying. They're treating it like sportscasters -- and the type of sportscasters who make no pretense of impartiality but root shamelessly for one team. Also, these lawyers sometimes shout "object!" at the defense counsel repeatedly as if he ought to be objecting every other minute.

[andersweinstein]

Does not look like the gun law was an issue in the appeal.

Well, it was the statute he was convicted of violating, and the appellate court said,

Our independent review of the record reveals no other potential issues of arguable merit.

One would think that if the appellate court thought the statute didn’t apply to 17–year-olds they would have set aside the conviction for failure to state an offense.

OK. It is something that an appellate court failed to spontaneously notice the argument existed. But how significant is that really? Wouldn't one expect they would be extremely unlikely to spontaneously come up with this argument on the defendant's behalf if no one ever spelled it out for them? It's far from obvious on its face. And isn't it true that, in this context, they don't really scour the statutory text for any possible loophole with anything like the same energy as a defense lawyer fighting a charge?

[bob]

Does not look like the gun law was an issue in the appeal:

In his no-merit report, counsel addresses whether there would be any arguable merit to an appeal on three issues: (1) the validity of Fultz’s pleas; (2) the circuit court’s exercise of sentencing discretion; and (3) whether Fultz’s trial counsel was ineffective. For reasons explained below, we agree with the conclusion that there would be no arguable merit to pursuing these issues on appeal.Additionally, although counsel does not address it, we discuss at the outset the circuit court’s denial of Fultz’s motion to suppress.

That's not how no-merits briefs work, as the court doesn't rely on counsel's recommendation that there are no arguable issues. The court also will satisfy itself there are no issues.* So the court reviewing this no-merit brief also did not see an issue with the statute's validity.

But, please, continue to tell a criminal appellate specialist how criminal appeals work.


* If the court does see an argument-worthy issue overlooked by counsel, it'll issue an embarrassing "well, actually...." order.

[andersweinstein]

Does not look like the gun law was an issue in the appeal:

In his no-merit report, counsel addresses whether there would be any arguable merit to an appeal on three issues: (1) the validity of Fultz’s pleas; (2) the circuit court’s exercise of sentencing discretion; and (3) whether Fultz’s trial counsel was ineffective. For reasons explained below, we agree with the conclusion that there would be no arguable merit to pursuing these issues on appeal.Additionally, although counsel does not address it, we discuss at the outset the circuit court’s denial of Fultz’s motion to suppress.

That's not how no-merits briefs work, as the court doesn't rely on counsel's recommendation that there are no arguable issues. The court also will satisfy itself there are no issues.* So the court reviewing this no-merit brief also did not see an issue with the statute's validity.

But, please, continue to tell a criminal appellate specialist how criminal appeals work.

* If the court does see an argument-worthy issue overlooked by counsel, it'll issue an embarrassing "well, actually...." order.

I'm just pointing out it's not a case of the appeals court explicitly considering and rejecting the argument. It's a case of them not finding it on their own as a possible issue when no one has brought it to their attention.

[RVInit]

Now we have a second police officer testifying under oath that he does not consider Rittenhouse to be making an attempt to surrender on the night he killed two people and seriously wounded a third. Although at times he did raise his hands he was also consistently ignoring commands he was being given by the police. So much so that one of them discharged a gas canister at him.

So, now two officers have effectively debunked right wingers claims that Rittenhouse was attempting to turn himself in, surrendering, etc. His behavior was not that of a person who is trying to surrender or turn himself in. Both officers testified that a person who intends to turn themselves in not only would raise their hands, but would be following instructions being given to them by police officers.

Oops.

[filly]

Does not look like the gun law was an issue in the appeal:

In his no-merit report, counsel addresses whether there would be any arguable merit to an appeal on three issues: (1) the validity of Fultz’s pleas; (2) the circuit court’s exercise of sentencing discretion; and (3) whether Fultz’s trial counsel was ineffective. For reasons explained below, we agree with the conclusion that there would be no arguable merit to pursuing these issues on appeal.Additionally, although counsel does not address it, we discuss at the outset the circuit court’s denial of Fultz’s motion to suppress.

That's not how no-merits briefs work, as the court doesn't rely on counsel's recommendation that there are no arguable issues. The court also will satisfy itself there are no issues.* So the court reviewing this no-merit brief also did not see an issue with the statute's validity.

But, please, continue to tell a criminal appellate specialist how criminal appeals work.


* If the court does see an argument-worthy issue overlooked by counsel, it'll issue an embarrassing "well, actually...." order.

Yeah, everybody's an expert! Who needs to go to stinking law school or practice law?

[bob]

It's a case of them not finding it on their own as a possible issue when no one has brought it to their attention.

Again:

The court also will satisfy itself there are no issues.

Ignoring that doesn't make it any less true.

[raison de arizona]

Doesn't sound like that is exactly what he said to me, Jacky.

[LM K]

The characterization that Grosskreutz has admitted that Rittenhouse did not shoot him until after Grosskreutz points the gun at Rittenhouse is a mischaracterization. I need to eat lunch, but I can give more details later. He admitted to no such thing.

He is holding his weapon in the same hand as the arm that Rittenhouse has vaporized. He effectively lost control of his arm and yes, as the top of his arm is already exploding, his hand drops and in one photo looks at that point as if it's pointing at Rittenhouse. But his hand doesn't drop until AFTER Rittenhouse has already shot him and he's now missing most of his bicep and can no longer control his arm.

Edit - And the decision Rittenhouse made to re-rack his gun and shoot Grosskreutz was made while Grosskreutz' hands were in the air.

So, I wouldn't take those tweets all that seriously. They are mischaracterizing what happened and what Grosskreutz has admitted to.

I was pretty certain those tweet accts were bullshit. I've just struggled to find good live coverage.

[Dave from down under]

But I did my own research on FOX!

[LM K]

CNN Written Live Coverage

[pipistrelle]

Now we have a second police officer testifying under oath that he does not consider Rittenhouse to be making an attempt to surrender on the night he killed two people and seriously wounded a third. Although at times he did raise his hands he was also consistently ignoring commands he was being given by the police. So much so that one of them discharged a gas canister at him.

So, now two officers have effectively debunked right wingers claims that Rittenhouse was attempting to turn himself in, surrendering, etc. His behavior was not that of a person who is trying to surrender or turn himself in. Both officers testified that a person who intends to turn themselves in not only would raise their hands, but would be following instructions being given to them by police officers.

Oops.

Someone here (Sugar?) said something like people who’ve accidentally killed someone tend to behave in a certain way. I wish I could remember the details but I thought it was immediately going into what would look like a submissive posture.

[noblepa]

Still thinking about this illegal gun business…

Back in 2012, 17-year-old Marcus Fultz lived with his grandmother in Milwaukee. Someone reported to the police that a rifle had been passed through a window of the grandmother’s house. The police searched Marcus’s room and found a bolt-action .22 caliber rifle hidden behind a dresser in the bedroom. Marcus admitted that the gun was his, and he was charged with being a minor in possession under Wis. Stat. 948.60.

Presumably it was not a “short-barrel” gun because he apparently wasn’t charged with being in violation of section 941.28.

Marcus pled guilty, and his appellate counsel filed a “no merit” appeal, meaning that, although Marcus wanted to appeal the validity of his guilty plea, in the counsel’s view any appeal would be frivolous. On appeal the appellate court found no reason to question the validity of the guilty plea.

In Marcus’ case, he wasn’t even holding the gun, let alone walking around in public with it. But by affirming the conviction, the appellate court necessarily must have concluded that found that the statute applied to 17 year olds.

Does not look like the gun law was an issue in the appeal.

In his no-merit report, counsel addresses whether there would be any arguable merit to an appeal on three issues: (1) the validity of Fultz’s pleas; (2) the circuit court’s exercise of sentencing discretion; and (3) whether Fultz’s trial counsel was ineffective. For reasonsexplained below, we agree with the conclusion that there would be no arguable merit to pursuing these issues on appeal.Additionally, although counsel does not address it, we discuss at the outset the circuitcourt’s denial of Fultz’s motion to suppress.

https://law.justia.com/cases/wisconsin/ ... -crnm.html

Well, it was the statute he was convicted of violating, and the appellate court said,

Our independent review of the record reveals no other potential issues of arguable merit.

One would think that if the appellate court thought the statute didn’t apply to 17–year-olds they would have set aside the conviction for failure to state an offense.

IANAL, but can an appellate court rule on a point that was not included in the appellant's filing? IOW, if the appellant (or his lawyer) didn't raise the issue of the applicability of the statute to the case, could the court even look at that issue?

Even if the court CAN make such a ruling, how likely are they to say "Mr. Lawyer, you didn't mention this, but, upon reading the trial transcript and filings, we found something important that we think you missed"?

[Suranis]

What I wanna know is whether the spray from the upper arm getting blown off shows off the Scuba diver that was going to Kill him, or just Harry Potter.

(Old timer birther joke. They were convinced that Loretta Fuddy was killed becasue in one frame of a video of her in the water the waves looked like a scuba diver. Another frame looked like harry Potter but they ignored that one somehow.)

[Patagoniagirl]

Uh, Supreme Court in Citizens United. Corporations are people, my friend.

[bob]

IANAL, but can an appellate court rule on a point that was not included in the appellant's filing? IOW, if the appellant (or his lawyer) didn't raise the issue of the applicability of the statute to the case, could the court even look at that issue?

For criminal defendants with a court-appointed lawyer,* yes. The defendant still has a constitutional right to competent counsel. And of course the constitutional right not to be punished if there's a valid legal defense.

Which is why the court double-checks the lawyer's work, and doesn't rely on the lawyer's representation.

Even if the court CAN make such a ruling, how likely are they to say "Mr. Lawyer, you didn't mention this, but, upon reading the trial transcript and filings, we found something important that we think you missed"?

It is unusual, but it happens. (And not all lawyers are men.)


* Presumably if a defendant is paying for the appeal, the defendant would just instruct the lawyer to dismiss the appeal. Or hire a different lawyer who did see an issue.

* * *

They were convinced that Loretta Fuddy was killed becasue in one frame of a video of her in the water the waves looked like a scuba diver. Another frame looked like harry Potter but they ignored that one somehow.)

HARRY POTTER KILLED LORETTA FUDDY?

[Maybenaut]

Does not look like the gun law was an issue in the appeal.

Well, it was the statute he was convicted of violating, and the appellate court said,

Our independent review of the record reveals no other potential issues of arguable merit.

One would think that if the appellate court thought the statute didn’t apply to 17–year-olds they would have set aside the conviction for failure to state an offense.

OK. It is something that an appellate court failed to spontaneously notice the argument existed. But how significant is that really? Wouldn't one expect they would be extremely unlikely to spontaneously come up with this argument on the defendant's behalf if no one ever spelled it out for them? It's far from obvious on its face. And isn't it true that, in this context, they don't really scour the statutory text for any possible loophole with anything like the same energy as a defense lawyer fighting a charge?

No, that’s not true. When counsel filed a “no merits” brief, the court was obligated under California v. Anders, 386 U.S. 738 (1967), to independently review the entire record for appellate issues, which it did in Fultz’s case.

But what the fuck do I know about criminal appeals?