U.S. judge in Rittenhouse trial says jury can consider teen provoked attack

KENOSHA, Wisconsin, Nov. 12 (Reuters) – The judge in the Kyle Rittenhouse trial said Friday he would instruct the jury to consider prosecutors’ argument that the teen provoked an encounter with one of two men he was Wisconsin got fatally shot during protests last year.

The ruling gives prosecutors a boost because it opens the door for them to argue that Rittenhouse was the attacker, which would raise the bar in the teen’s efforts to convince the jury that they acted in self-defense.

The decision comes after nearly two weeks of testimony that contained substantial evidence to support the teen’s argument that he fired after being attacked.

Ahead of the trial, some legal experts told Reuters that prosecutors were facing a daunting challenge in bringing a successful indictment.

“Now it’s a fair fight,” said Patrick Cafferty, a Wisconsin criminal defense attorney, citing the overturning of the sentence for the prosecution. “Without this instruction they would have no chance.”

Rittenhouse, 18, is charged with killing Joseph Rosenbaum, 36, and Anthony Huber, 26, and Gaige Großkreutz, 27, in Kenosha on August 25, 2020 Police shot and injured a black man, Jacob Blake. Rittenhouse has pleaded not guilty.

Kenosha County’s Assistant District Attorney James Kraus showed a grainy drone video of the Rosenbaum gunshots as he argued that shortly before the encounter, Rittenhouse raised his AR-15-style rifle and aimed it at a few people, including one other man, Joshua Ziminski firing a shot in the air.

“The simple argument is that there is a lot of evidence that the state raised its gun,” said Kraus. “We have evidence of provocation.

Rittenhouse testified earlier this week that Ziminski had a gun pointed at him as he approached the parking lot where the shooting of Rosenbaum took place

Kenosha District Judge Bruce Schroeder stepped off the bench to watch the video on a television while Rittenhouse stood close behind him, leaning forward and watching. The judge agreed that the question should be left to the jury.

Kyle Rittenhouse gets emotional a second time when he sits on the witness stand during his trail at the Kenosha County Courthouse in Kenosha, Wisconsin, on November 10, 2021. Sean Krajacic / Pool via REUTERS

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“It’s up to the jury and I think they should make the critical decisions,” said Schroeder. “My decision will be to bring the case to the jury with the provocation instruction and you can argue the strength or lack of strength of the evidence.”

The shootings, which took place amid days of unrest and arson, divided the United States. Rittenhouse supporters say he is entitled to defend himself, while critics say he is a vigilante who illegally owned a firearm and threw himself into a violent situation.

PROVOCATION

If someone provokes a confrontation, Wisconsin law requires them to exhaust all other options before using lethal force in self-defense. So if prosecutors can argue that Rittenhouse was the attacker, they could raise the bar on the defense.

But the defense can point to evidence suggesting Rosenbaum was looking for trouble that night. Several witnesses told the court that Rosenbaum made death threats and that he followed Rittenhouse and reached for his gun before the teenager fired.

Rittenhouse himself testified that Rosenbaum, the first man he shot, threatened his life and snatched the barrel of his gun.

Cafferty said prosecutors could try to argue that by provoking Rosenbaum, Rittenhouse had also raised the bar for self-defense in the subsequent shootings of Huber and Großkreutz who tried to disarm the teenager, prosecutors said.

Rittenhouse is charged with negligent first degree homicide in the death of Rosenbaum, willful first degree homicide in the death of Huber, and attempted first degree homicide in the shooting of Großkreutz, who was holding a pistol when he was shot in the arm. Rittenhouse faces life imprisonment if convicted.

Previously, Schroeder had ruled against the prosecutor’s motion to allow the jury to consider a lesser charge in the Rosenbaum murder, but said he would allow the inclusion of two lesser charges in the murder of Huber, who was after swinging a skateboard Rittenhaus was shot.

He did not decide on a demand for lower fees for Großkreutz.

With Huber, Rittenhouse’s attorneys agreed to a lesser charge, as long as they did not include a reckless second degree homicide, as those charges did not require evidence that the teenager “completely disregarded” human life. The defense wanted to keep this high hurdle for the prosecution, and the judge ruled on this request.

Reporting by Nathan Layne Editing by Ross Colvin and Alistair Bell

Our Standards: The Thomson Reuters Trust Principles.

https://www.reuters.com/world/us/judge-rittenhouse-trial-will-not-allow-jury-consider-lesser-charge-shooting-2021-11-12/