Rittenhouse Jury Instructions Include One That Could Be a Big Problem for the Defense

Mark Hertzberg/Pool Photo via AP

The judge in the Rittenhouse case has made some decisions in regard to the jury instructions that could have a critical impact on the case.

First, the prosecution asked the judge to include a reading of some lesser charges to the jury during his jury instructions on Monday. While it’s normal for the prosecution to ask for such a reading, it’s also an indication in this case that they believe that they have problems in their case and so are trying to get a conviction even if it isn’t on the top charges that they originally charged.

Rittenhouse has been charged with a count of first-degree reckless homicide, use of a dangerous weapon (for the shooting of Joseph Rosenbaum); first-degree intentional homicide, use of a dangerous weapon (for the shooting of Anthony Huber); two counts of first-degree recklessly endangering safety, use of a dangerous weapon (for allegedly endangering two others while shooting, reporter Richie McGinniss and the man who kicked Rittenhouse in the head); one count of attempted first-degree intentional homicide (in the shooting of Gaige Grosskreutz) and possession of a dangerous weapon by a person under 18.

The prosecutor asked to add a second-degree reckless homicide charge in the case of Joseph Rosenbaum. This would not require prosecutors to prove that Rittenhouse had shown an utter disregard for human life, which is required in the first-degree count. The defense objected and Schroeder said that he wasn’t likely to allow that because he thought if there was a guilty verdict on that it would be overturned on appeal.

Schroeder said he was inclined to allow a lesser charge of second-degree reckless endangerment when it came to endangering McGinniss, but that the attorneys shouldn’t be surprised if he doesn’t allow it. He also said he wouldn’t allow the lesser charge in the case of the unidentified man who tried to kick Rittenhouse.

However, the judge did allow other lesser charges in the shooting of Huber. The Rittenhouse defense agreed to allow second-degree intentional homicide and first-degree reckless homicide as it relates to Huber but they did not agree with second-degree reckless homicide, because that charge does not require proof that the teen exhibited an “utter disregard” for human life. The defense didn’t want to remove that high standard which the prosecution would have to satisfy.

As to Grosskreutz, prosecutors asked for lesser counts of second-degree attempted intentional homicide, first-degree reckless endangerment, and second-degree reckless endangerment. The defense did not object to the second-degree attempted homicide count, but they did object to adding the reckless endangerment counts, saying they didn’t believe someone can “attempt to be reckless.” The judge did not rule publicly as to that argument.

The judge’s decisions could thus be a critical issue for Rittenhouse. If the jury, for example, would have let him walk on a higher charge, they could be willing to compromise on a lesser charge if they didn’t think a higher charge fit. So it theoretically could increase his chances of being convicted.

But perhaps the worse decision for Rittenhouse that could change the very nature of the trial was a decision by the judge as to a provocation instruction to the jury. We mentioned before that this might be where the prosecution was going. This might allow the prosecution to ultimately prevail if they can convince the jury that Rittenhouse “provoked” the attack. The prosecution asked that the jury be instructed to consider whether Rittenhouse provoked the situation to start with as to Rosenbaum. The prosecution claimed that Rittenhouse had pointed the gun at people prior to the shooting of Rosenbaum. The defense denies it. All the prosecution had were grainy pictures that seemed open to interpretation. You can see the judge, Rittenhouse, and his lawyer checking out the pictures.

The judge said he would allow the jury to consider the question and give them a provocation instruction.

That instruction to the jury says the following:

815 PRIVILEGE: SELF-DEFENSE: NOT AVAILABLE TO ONE WHO PROVOKES AN ATTACK: REGAINING THE PRIVILEGE — § 939.48(2)

[ADD THE FOLLOWING TO WIS JI‑CRIMINAL 800, 801, OR 805 WHEN SUPPORTED BY THE EVIDENCE.]

Provocation

You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct[1] of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self‑defense against that attack.

[USE ANY OF THE FOLLOWING PARAGRAPHS THAT ARE SUPPORTED BY THE EVIDENCE.]

[However, if the attack which follows causes the person reasonably to believe that he or she is in imminent danger of death or great bodily harm, he or she may lawfully act in self‑defense. But the person may not use or threaten force intended or likely to cause death unless he or she reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.]

[A person who provokes an attack may regain the right to use or threaten force if the person in good faith withdraws from the fight and gives adequate notice of the withdrawal to his assailant.]

[A person who provokes an attack whether by lawful or unlawful conduct with intent to use such an attack as an excuse to cause death or great bodily harm to another person is not entitled to use or threaten force in self‑defense.]

So you can see this makes the case much more difficult for the defense if the jury buys this provocation argument — it could effectively take away self-defense as an argument except under the above strictures. Previously it looked like a walk-away acquittal but if the prosecution sells the jury on this, Rittenhouse could potentially get a very bad result.

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