Through the looking glass at the Rittenhouse trial

John has written about Kyle Rittenhouse’s decision to take the witness stand today, and about the cross-examination of Rittenhouse. Andy McCarthy’s column on the same subjects is also worth reading.

McCarthy offers several reasons why Rittenhouse, with the advice of his lawyers, could reasonably have decided to testify even though the burden of proof is with the prosecution and the prosecution doesn’t seem to have made its case. One of the reasons is this:

The prosecutors in this case have been ineffective. Judges, no matter how annoyed they get at the lawyers, try not to bash them in front of the jury. But Judge Bruce Schroeder has lost his patience with these prosecutors a few times. And the worst episodes have involved badgering witnesses — including the prosecutors’ own witnesses — who have not testified as the prosecutors hoped. One defense witness even claimed, credibly, that the prosecutors pressured him, in a private prep session, to change his version of events.

Rittenhouse’s able defense lawyers clearly calculated that their client would be obnoxiously badgered by the prosecutor, that Rittenhouse could handle it, and that the defendant would become more sympathetic in the jury’s eyes, while the state seemed more desperate.

It was a good bet. Even in their wildest dreams, the defense lawyers couldn’t have imagined that a prosecutor would flirt with reversible constitutional error by arguably using Rittenhouse’s Fifth Amendment privilege against him, as Caroline’s report details.

Rittenhouse’s testimony is not over yet, but at the moment it seems to be helping the defense materially.

I only saw a few minutes of the cross-examination, so I probably shouldn’t add my thoughts. However, I was struck by a line of questioning in which the prosecution tried to get Rittenhouse to admit that there was “friction” between the BLM protesters and the group Rittenhouse was with before Rittenhouse shot anyone.

Apparently, Rittenhouse denied on direct examination that there was such friction. On cross-examination, the prosecutor played a video of the two groups shouting at each other. It seemed that the BLM mob was loudly warning Rittenhouse’s group to stay on the property they were protecting and not to go into the street. Nothing in the video showed that Rittenhouse was part of this verbal confrontation.

After seeing the video, Rittenhouse agreed that there was a little bit of friction. But so what?

If Rittenhouse initially denied there was friction, I suppose it’s fair to question him about this testimony. But is the existence of friction relevant? I hope the prosecution isn’t claiming that Rittenhouse’s self-defense claim fails because if he had obeyed the instructions of a mob he wouldn’t have had to shoot anyone in self defense.

I can’t help but wonder what a normal juror is supposed to make of this case. It seems perfectly clear that Rittenhouse had to use his gun to protect himself from each of the three people he shot. And I’m hard pressed to understand why it matters how Rittenhouse found himself in the position that he had to use the gun to protect himself.

George Floyd found himself being choked by a police officer because he tried to pass counterfeit currency and then violently resisted arrest. At the officer’s trial, Floyd’s criminal behavior didn’t matter in assessing the officer’s conduct once he had Floyd under control.

Why, then, does it matter how Rittenhouse got to the point where he had to shoot the three guys who threatened him with lethal force? He’s not being tried for trespassing on a riot.

It strikes me that with this trial (but not only with this trial), we are through the looking glass. Let’s hope the Rittenhouse jury helps pull us back to the right side of it.

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