Comments on: The Rittenhouse jury instructions: provocation included

By: Wendy Laubach

Wendy Laubach — Sun, 14 Nov 2021 20:44:31 +0000

“I don’t think the prosecution should be allowed to ask”–agreed.

By: Kate

Kate — Sun, 14 Nov 2021 12:12:44 +0000

Richard Aubrey, I guess we’ll see this coming week. This jury is from Kenosha. They remember their city burning, and this isn’t Madison or Minneapolis.

By: Richard Aubrey

Richard Aubrey — Sun, 14 Nov 2021 12:03:47 +0000

Kate. I was wondering if the jury decided to convict of “something”, an idea some observers think happens in complicated cases, to make a point or get away with acquitting on other charges. Then, that disappears, too.

By: Kate

Kate — Sun, 14 Nov 2021 01:22:06 +0000

Jonathan Turley seems to think that the prosecution shot itself in the foot when it rushed to charge Rittenhouse with first-degree only three days after the shootings. He says, based on the evidence, that they grossly overcharged, and that juries tend to start with the most serious charges and work their way down. If there’s no credibility on the worst charges, juries tend to discount lesser charges as well.

https://thehill.com/opinion/judiciary/581411-rittenhouse-trial-perils-of-weighing-public-opinion-over-evidence

By: Kate

Kate — Sun, 14 Nov 2021 00:25:06 +0000

I think I saw a report that the judge intends to instruct the jury on that gun charge, to the effect that Kyle, at age 17, without a sawed-off long gun, was not covered by the law.

By: Richard Aubrey

Richard Aubrey — Sun, 14 Nov 2021 00:20:43 +0000

Couple of thoughts: The uncertain meaning of the gun charge statute might allow the jury to convict and the judge to set aside. Is that technically possible? Wouldn’t that be a hoot?

Would putting out an arsonist’s fire be “provocation”? Ten to one, should the situation arise.

By: neo

neo — Sat, 13 Nov 2021 20:33:18 +0000

Wendy Laubach:

It depends who asks for the lesser charges, doesn’t it? I don’t think the prosecution should be allowed to ask, after the trial is over and it realizes it’s made a weak case for the greater charges. I think only the defense should be allowed to ask. In this case, I don’t think this was the defense’s request.

As I said, though, it’s a bit unclear, but I think that’s the way it went down.

By: Wendy Laubach

Wendy Laubach — Sat, 13 Nov 2021 20:16:00 +0000

I agree the lesser included charges have a terrible effect in terms of giving the jury an out to convict of something. That’s why it’s an agonizing choice for the defendant. I guess I’m less sure it would be good for the defendant to take the agonizing choice away. I’d rather see a simple acquittal in this case, but I’m not the one facing the risk of a life sentence. There’s no safety net here, until Wisconsin rises up, elects a better governor, and persuades him to grant a pardon.

By: Kate

Kate — Sat, 13 Nov 2021 20:05:30 +0000

Because I am a logical person, I cannot imagine finding provocation in a very indistinct video, when all other evidence supports self defense.

Where did the prosecution get this FBI video? Why was it suddenly available, in the middle of a trial in which the prosecution was spectacularly failing to disprove self defense? Something stinks here, perhaps.

By: neo

neo — Sat, 13 Nov 2021 19:51:20 +0000

Wendy Laubach:

Yes, Rittenhouse could have said “no.” The problem, though, is that although such a decision is rational in light of the fact that for example one of the original charges against him carries a mandatory life sentence, in fact the extra charges do have a terrible effect in terms of giving the jury an out to convict him of something. When I was reading about this, I read (don’t remember where) that ordinarily it’s the defense that wants to add new intermediate charges. The article seemed to be indicating that it’s never the prosecution, although I don’t know whether that’s true. At any rate, this time it was the prosecution trying to add the charges – apparently, anyway.

It’s hard to get good information on this, at least so far.