I was not surprised that the jury in Kenosha, Wisconsin, chose not to convict Kyle Rittenhouse of any crimes or misdemeanors. But I am still both uncomfortable and discouraged that 12 Jurors found nothing wrong with Rittenhouse’s conduct. How could the jury excuse or overlook the killing of two men and the wounding of another? How could the jury find that nothing he did that night was improper or illegal? How could the jury accept that a 17-year-old carrying an assault-style weapon into a tense and protesting crowd was just another day in the life of an American boy?

I know that I did not see and hear all the evidence. But as an attorney, I did follow the case with uncommon interest and a trained eye. So, what do we know about the events just before and during the shootings, that both the Prosecution and the Defense agree occurred? Quite a bit.

Kyle Rittenhouse drove himself from Illinois into Wisconsin, the day before the shootings. (Note: The widespread story that Kyle’s mother drove him across state lines with his AR-15 the night of the shootings, is completely false.) Kyle spent the day at the home of an 18-year-old friend in Wisconsin, where he kept his AR-15. The gun was legally purchased by his friend, who bought it, using Kyle’s money. (That gun was an assault-style Smith & Wesson MP-15, one of many similar semi-automatic guns almost always referred to simply as an AR-15.)

From the videos and testimony in court, it is known that in the two hours before Rittenhouse shot anyone, he spent considerable time walking up and down the streets carrying his AR-15. Witness reports and video show several occasions where he pointed his gun directly at random people in the crowd.

For the first shooting incident, the video shows Rittenhouse raising his rifle towards Joseph Rosenbaum. Mr. Rosenbaum then rushes toward him and tosses a plastic bag of toiletries at him. Rosenbaum continues to move forward toward Rittenhouse, but apparently did not touch him or try to take his weapon. Rittenhouse responds to Rosenbaum’s rapid approach by shooting and killing him. Somehow the jury believed this was self-defense, even though it appears that Rittenhouse initiated the incident.

A few moments later, we see the second shooting incident, as Rittenhouse fires two shots at a man in the crowd. He missed. The identity of that man has never been determined.

In the third incident, Tony Huber rapidly approaches Rittenhouse and attacks him with a skateboard. (It appears that Mr. Huber saw Rittenhouse shoot the unarmed Mr. Rosenbaum, and while showing great courage, but little common sense, he tried disarm Rittenhouse by striking him with his skateboard.) Rittenhouse responded to Huber’s skateboard attack by shooting and killing him. Self-Defense by Rittenhouse? The jury thought it was, even though Mr. Huber only hit Rittenhouse with the skateboard after first seeing Rittenhouse shoot and kill a man.

Finally, the fourth incident occurred when Gaige Grosskreutz, armed with a hand gun, aimed his gun at Rittenhouse. Kyle Rittenhouse shot him in the arm. (This is the only incident of the four where I think that Rittenhouse could perhaps argue self-defense – but remember, Mr. Grosskreutz only pointed his hand gun at Rittenhouse after first seeing Rittenhouse shoot and kill two men!)

That, in nutshell, is what we know happened that evening.

To understand more about what transpired in Kenosha, it is also worth considering how the police responded to the presence of a boy carrying an AR-15 at a large, angry public protest, and how the trial judge responded to some key issues presented to him during the trial.

During the several hours that Rittenhouse was walking along the street before the shootings, not even one local police officer questioned him about his AR-15. None seemed concerned about his obviously youthful age. And not one police officer suggested to him that perhaps this was not a good place for a boy to be armed with a semi-automatic weapon.

Instead of questioning him, or directly asking him to leave, the local police offered Rittenhouse a bottle of water and strongly thanked him, more than once, for his assistance! After the shooting was all over, Rittenhouse walked up to the police, his gun slung around his neck, with his hands held up in the air. But instead of arresting him, or at least questioning him, the police causally waived him through their roadblock, and told him to go on his way.

I just cannot help wondering, what would have occurred that night, if Kyle Rittenhouse had been a 17-year-old black kid, walking the streets of Kenosha near midnight, carrying an AR-15. Would those same police officers have thanked that black kid, provided him with refreshments, and allowed him to just go home? I certainly don’t think so. In fact, if Rittenhouse had been a black kid with an AR-15, I expect that the police would have immediately considered him a threat, and quickly taken him down.

The judge in the Rittenhouse case, Bruce Schroeder, had a significant impact on the trial results, but not in the way most people imagine. It is true that he would not allow the Prosecution to refer to the 3 men shot as “victims,” but he seemed to be even-handed when he also would not permit the Defense to call them “looters” or “arsonists.”

And it is true that the judge singled out just one person for special applause from the jury on Veterans Day, and that person happened to be a key Defense witness. But there is no reason to believe the judge knew in advance that when he asked for any veterans in the court room to stand, that the only veteran present that day was the Defense witness.

But there was one decision by the judge that almost certainly changed the outcome of the trial. Rittenhouse was initially charged with “possession and use of a dangerous weapon by a person under 18.” That is the one charge where I am confident he would have been found guilty.

But the jury never had the opportunity to consider it. On the last day of the trial, Judge Schroeder tossed that charge entirely. His explanation for not allowing Rittenhouse to be charged with “possession and use of a dangerous weapon by a person under 18” was that he believed the law was only intended to apply to hand guns and regular rifles, but was never meant to include the AR-15 type of assault weapon.

That decision by the judge seems both unreasonable and difficult to support. And it clearly eliminated the one charge where just about everyone expected Rittenhouse to be found guilty. Only Judge Schroeder will ever really know his true intent with his decision to
drop that charge.

The trial is over now and Kyle Rittenhouse is free. Although I am saddened that he received no punishment whatsoever, that is not what continues to concern me. I am far more concerned that so many people see Kyle Rittenhouse as some kind of hero – or at least, they see him as a young citizen who acted properly and reasonably that night in Kenosha. And that leaves me feeling terribly uncomfortable, and even more discouraged.

Copyright © 2021, by Richard Kleeberg. All Rights Reserved.