The opinions and statements made in this article are\u00a0solely<\/i>\u00a0those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process.\u00a0<\/em><\/p>\n Rittenhouse Trial: What to Expect As Trial Starts Today<\/p>\n Today begins jury selection in the trial of Kyle Rittenhouse, who on August 25, 2020 shot three men in riot-ravaged Kenosha WI, killing two of them and grievously wounding the third.<\/p>\n Kyle is being tried on a variety of charges, including the felonies of intentional homicide, reckless homicide, attempted intentional homicide, two counts of reckless endangerment, as well as a misdemeanor charge of weapons possession by a minor.<\/p>\n The legal defense to the felony charges will be the legal justification of self-defense.\u00a0\u00a0The legal defense to the misdemeanor weapons charge will be inapplicability on the facts, as well as unconstitutional vagueness.<\/p>\n With respect to jury selection, beginning today, Monday, November 2021, news media are reporting that the trial judge, Judge Bruce Schroeder, has ordered 150 prospective jurors to the courthouse tomorrow, to be subject to\u00a0voir dire<\/i>.<\/p>\n Judge Schroeder reportedly wants a total of 20 jurors seated, to consist of 12 who will deliberate a verdict plus 8 alternates.\u00a0\u00a0The state and the defense will each have seven peremptory strikes to remove prospective jurors for reasons of preference.<\/p>\n On the night of August 25, 2020, 17-year-old Kyle Rittenhouse travelled from his home town of Antioch IL to the neighboring border town of Kenosha WI, where he had worked as a lifeguard and spent considerable time.<\/p>\n Kyle\u2019s stated purpose was to help protect property from the riots, looting, and arson that had besieged the city since the lawful shooting of Jacob Blake by police two days earlier.\u00a0\u00a0(Blake, a 29-year-old black man, non-compliant with lawful arrest, wielding a knife in his hand, and was climbing into a car full of children when police shot him.)<\/p>\n Kyle, trained in medical care, also intended to provide such care to anyone injured that he might come across.\u00a0\u00a0For that purpose he carried with him a sizable first-aid kit.\u00a0\u00a0In recognition of the violence rampaging through the city, Kyle also armed himself with an AR-15 pattern rifle (open carry of firearms is lawful in Wisconsin).<\/p>\n Count 1. First degree reckless homicide (Rosenbaum).\u00a0At approximately 11:45pm amidst the chaos of August 25, 2020, Kyle would shoot and kill Joseph Rosenbaum, in claimed self-defense.\u00a0\u00a0This would result in the first degree reckless homicide charge against Kyle, Count 1 in the criminal complaint, under\u00a0\u00a7 940.02(1) First-degree reckless homicide.<\/a>.\u00a0\u00a0If convicted of this charge Kyle is looking at up to 60 years in prison, plus an additional 5 years for having used a dangerous weapon.<\/p>\n Count 2. First degree reckless endangering (McGinnis).\u00a0\u00a0Near to this scene was a reporter, Richard McGinnis, who had moments before been interviewing Kyle.\u00a0\u00a0McGinnis would later tell police that he did not think that Kyle was handing his rifle safely.\u00a0\u00a0This would result in the first degree reckless endangering charge against Kyle, Count 2 of the criminal complaint, under\u00a0\u00a7 941.30(1). Recklessly endangering safety<\/a>.\u00a0\u00a0If convicted on this charge Kyle is looking at up to 12 years in prison, plus an additional 5 years for having used a dangerous weapon.<\/p>\n After shooting Rosenbaum, Kyle began to run towards a line of police officers who had created a vehicle barricade a short distance down the street.\u00a0\u00a0During this flight to police Kyle was pursued by angry members of the mob, during which he would fall to the street.\u00a0\u00a0Once fallen, Kyle was subject to violent attack by several men.<\/p>\n Count 3. First degree intentional homicide (Huber).\u00a0One of the men who attacked Kyle was Anthony M. Huber.\u00a0\u00a0While Kyle was struggling to get up from where he had fallen, Huber struck at Kyle\u2019s head and neck with a heavy skateboard.\u00a0\u00a0Kyle shot Huber, with fatal results.\u00a0\u00a0This would result in the first degree intentional homicide charge against Kyle, Count 3 of the criminal complaint, under\u00a0\u00a0\u00a7\u00a0940.01(1)(a). First degree intentional homicide<\/a>.\u00a0\u00a0If convicted on this charge Kyle is looking at life imprisonment\u2014and, once again, an additional 5 years for having used a dangerous weapon.<\/p>\n Count 4. Attempted first degree intentional homicide (Grosskreutz).\u00a0Another of the men who attacked Kyle was Gaige Grosskreutz.\u00a0\u00a0While Kyle was fighting off the other attackers as he struggled to rise from the street, Grosskreutz approached Kyle initially with his hands up in a peaceful gesture, but then swiftly presented a pistol and rapidly closed on Kyle.\u00a0\u00a0Kyle shot Grosskreutz, striking him in the right bicep, causing serious not but fatal injury.\u00a0\u00a0This would result in the attempted first degree intentional homicide charge against Kyle, Count 4 of the criminal complaint, under\u00a0940.01(1)(a). First degree intentional homicide<\/a>.\u00a0\u00a0If convicted on this charge Kyle is looking 60 years in prison, plus an additional 5 years for having used a dangerous weapon.<\/p>\n Count 5. First degree reckless endangerment (unknown male).\u00a0Another of the men who attacked Kyle was an unidentified male who attempted a flying drop kick onto Kyle as he lay in the street.\u00a0\u00a0Kyle shot at this attacker, but missed.\u00a0\u00a0This would result in the first degree reckless endangerment charge against Kyle, Count 5 in the criminal complaint, under\u00a0\u00a7 941.30(1). Recklessly endangering safety<\/a>.\u00a0\u00a0If convicted on this charge Kyle is looking at up to 12 years in prison, plus an additional 5 years for having used a dangerous weapon.<\/p>\n Count 6. Unlawful Weapon Possession by Minor.\u00a0Finally, Kyle also would be charged with unlawful possession of a weapon by a minor, Count 6 in the criminal complaint, under\u00a0\u00a7 948.60(2)(a). Possession of a dangerous weapon by a person under 18<\/a>.\u00a0\u00a0This the sole misdemeanor charge specified in the criminal complaint, and if convicted on this charge Kyle is looking at up to 9 months in prison.<\/p>\n Now I thought it might be useful to do a quick legal analysis of these various counts against Kyle.\u00a0\u00a0Well, brief for counts 2 through 6. With respect to Count 1, the shooting death of Joseph Rosenbaum, I\u2019ll spend more time, as this first event is to some degree a lynchpin for all the others.<\/p><\/blockquote>\n If the shooting death of Rosenbaum looks sketchy, that would tend to flow downhill to all the other defenses.\u00a0\u00a0On the other hand, to the extent that the shooting death of Rosenbaum appears legally justified, that justification also flows downhill to all the others.<\/p>\n The first man shot by 17-year-old Kyle Rittenhouse was 36-year-old Joseph Rosenbaum, in a car sales parking lot.\u00a0\u00a0The language of the criminal complaint\u2014presumably written to justify the felony charge of first-degree reckless homicide\u2014provides a telling description of the circumstances immediately preceding Kyle\u2019s shooting of Rosenbaum, much of it based video of the events as well as on the eyewitness testimony of reporter McGinnis.<\/p>\n The defendant [Kyle] is running across the Car Source parking lot.\u00a0\u00a0Following the defendant is Rosenbaum, and trailing behind the defendant and Rosenbaum is McGinnis.<\/p>\n The video shows that as they cross the parking lot, Rosenbaum appears to throw an object at the defendant.\u00a0\u00a0\u2026 A review of the second video shows that the defendant and Rosenbaum continue to move across the parking lot and approach the front of a black car parked in the lot. A loud bang is heard on the video \u2026 then Rosenbaum appears to continue to approach the defendant and get in near proximity to the defendant when 4 more loud bangs are heard.\u00a0\u00a0Rosenbaum then falls to the floor.<\/p>\n The interview of McGinnis by detectives is described in the criminal complaint as follows:<\/p>\n Before the shooting, McGinnis was interviewing the defendant.\u00a0\u00a0\u2026 The defendant had moved from the middle of Sheridan Road to the sidewalk and that is when McGinnis saw the male (Rosenbaum) initially try to engage the defendant.\u00a0\u00a0McGinnis stated that as the defendant was walking Rosenbaum was trying to get closer to the defendant.\u00a0\u00a0When Rosenbaum advanced, the defendant did a \u201cjuke\u201d move and started running.\u00a0\u00a0McGinnis stated that there were other people that were moving very quickly. McGinnis stated that they were moving towards the defendant.\u00a0\u00a0McGinnis said that according to what he saw the defendant was trying to evade these individuals.<\/p>\n McGinnis described the point where the defendant had reached the car. McGinnis described that the defendant had the gun in a low ready position. Meaning that he had the gun raised but pointed downward.\u00a0\u00a0\u2026<\/p>\n McGinnis stated that he did not hear the two exchange any words. McGinnis said that the unarmed guy (Rosenbaum) was trying to get the defendant\u2019s gun. McGinnis demonstrated by extending both of his hands in a quick grabbing motion and that as a visual on how Rosenbaum tried to reach for the defendant\u2019s gun.\u00a0\u00a0\u2026 McGinnis said that [Rosenbaum] definitely made a motion that he was trying to grab the barrel of the gun.\u00a0\u00a0McGinnis stated that the defendant pulled it away and then raised it.\u00a0\u00a0McGinnis stated that right as they came together, the defendant fired. McGinnis said that when Rosenbaum was shot, he had leaned in (towards the defendant).<\/p>\n I\u2019ll remind everyone that this narrative of events is not the defense explanation of what happened between Kyle and Rosenbaum\u2014it\u2019s the explanation of events provided by the state that is prosecuting Kyle on a charge of murder for shooting Rosenbaum under these circumstances.<\/p>\n What\u2019s described here is a Kyle Rittenhouse desperately fleeing a relentlessly pursuing Joseph Rosenbaum, who was intent on fighting Kyle for control of the rifle.\u00a0\u00a0Unmentioned in the criminal complaint, but in evidence as a result of FBI interviews of bystanders, is that earlier in the evening Rosenbaum had threatened to kill Rittenhouse.<\/p>\n Even when faced with the relentlessly pursuing and self-declared murderous Rosenbaum, Kyle did not fire until Rosenbaum had rushed him, arms outstretched for the rifle, and actually achieved contact with the 17-year-old.<\/p>\n Kyle is, of course, justifying the shooting death of Rosenbaum as lawful self-defense.\u00a0\u00a0That means that Kyle must be acquitted of this charge of reckless homicide unless the state can meet its burden to disprove that claim of self-defense beyond a reasonable doubt.<\/p>\n It might be useful to do a quick \u201c5 Elements of Self Defense\u201d analysis of this confrontation, to assess the viability of that self-defense claim.<\/p>\n Innocence<\/strong>:\u00a0Clearly it was Rosenbaum who was the physical aggressor here, and Kyle was the victim of that unlawful attack. This element is consistent with self-defense on these facts.<\/p>\n Imminence<\/strong>:\u00a0\u00a0The attack Kyle was defending himself against was actually in progress, and so qualifies as an imminent attack. This element is consistent with self-defense on these facts.<\/p>\n Proportionality:<\/strong>\u00a0\u00a0By seeking to seize control of Kyle\u2019s rifle, Rosenbaum was apparently arming himself for the purpose of carrying out his earlier death threat against Kyle\u2014and, simultaneously, attempting to disarm Kyle and leave him defenseless.\u00a0\u00a0Rosenbaum\u2019s attack is therefore deadly in nature, justifying a proportional deadly force defense by Kyle.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Avoidance:<\/strong>\u00a0\u00a0Wisconsin is a stand-your-ground state, so the element of Avoidance would not normally apply in an otherwise lawful act of self-defense. Even if it did apply, however, Kyle was in desperate flight from Rosenbaum, who sustained his relentless pursuit until the point of actual contact.\u00a0\u00a0If Avoidance did impose a legal duty to retreat, Kyle would have met that duty.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Reasonableness:<\/strong>\u00a0\u00a0The circumstances facing Kyle would certainly justify a subjectively genuine fear of deadly bodily harm, and there is nothing about Kyle\u2019s perceptions or reactions to those events which were those of an unreasonable person\u2014this is readily assessable from the video and eyewitness accounts of what happened. This element is consistent with self-defense on these facts.<\/p>\n In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can disprove beyond a reasonable doubt Kyle\u2019s claim of self-defense with respect to Rosenbaum.<\/p>\n Conclusion:\u00a0The shooting of Rosenbaum by Kyle was lawful self-defense.<\/p>\n The sole grounds for the claim of felony reckless conduct towards Richard McGinnis appears to be found in a single sentence from the criminal complaint:<\/p>\n McGinnis stated that he (McGinnis) has handled many ARs and that the defendant was not handling the weapon very well.<\/p>\n Even taken at face value, this is not a claim of recklessness\u2014intentionally creating an unjustified risk of death or serious bodily injury, and intentionally disregarding that risk.<\/p>\n First, there is no indication of any particular intent on the part of Rittenhouse. Second, the phrase used in the criminal complaint, \u201cvery well,\u201d falls vastly short of the threshold for a claim of criminal recklessness.\u00a0\u00a0T<\/p>\n Further, to the extent any risk may have been created by Kyle merely having the gun in hand, the circumstances of the rioting, looting, and arson besieging the surrounding blocks and Kyle\u2019s subsequent need to use that rifle to save his own life would suggest that the risk was not unjustified, and therefore would not be reckless. Indeed, a great many people\u2014including Gaige Grosskreutz himself\u2014were armed in the vicinity that evening.<\/p>\n In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can prove Kyle\u2019s conduct with respect to Richard McGinnis to constitute reckless endangerment.<\/p>\n Conclusion:\u00a0\u00a0Kyle\u2019s conduct with respect to McGinnis does not constitute reckless endangerment.<\/p>\n With respect to the shooting death of Anthony Huber, the evidence in support of self-defense is, if possible, even stronger than it was in the shooting of Joseph Rosenbaum.<\/p>\n At this point Kyle was in full flight towards the police line a block or so down the street, clearly fleeing for purposes of safety after having survived the attack by Rosenbaum.<\/p>\n He was being pursued by an angry and violent mob, during which he fell to the street\u2014whether pushed or tripped, the fall was clearly the result of fleeing his pursuers.<\/p>\n Once fallen to the street, Kyle was immediately attacked by Huber, who swung a heavy skateboard at Kyle\u2019s head, and Kyle shot him in response to this attack.<\/p>\n Innocence:\u00a0Clearly Huber was the initial aggressor in this confrontation, as Kyle was not threatening Huber in any way until Huber struck with his skateboard.\u00a0\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Imminence:\u00a0\u00a0Huber\u2019s attack was in progress, and therefore imminent. This element is consistent with self-defense on these facts.<\/p>\n Proportionality:\u00a0Striking someone in the head with a skateboard is readily capable of inflicting death or serious bodily injury, and thus a deadly force attack justifying a deadly force defense. This element is consistent with self-defense on these facts.<\/p>\n Avoidance:\u00a0Again, Wisconsin is a stand-your-ground state, but in any case safe retreat was not possible under the circumstances, and so Kyle would have satisfied any duty to retreat had it existed.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Reasonableness:\u00a0The circumstances warranted a subjective fear of imminent death or serious bodily injury, and there would have been nothing unreasonable about such a perception.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can disprove beyond a reasonable doubt Kyle\u2019s claim of self-defense with respect to Huber.<\/p>\n Conclusion:\u00a0The shooting of Huber by Kyle was lawful self-defense.<\/p>\n Near simultaneously with Huber\u2019s attack upon Kyle, Gabe Grosskreutz also closed on the fallen Kyle.\u00a0\u00a0Initially Grosskreutz displayed his hands, palm forward, in an inoffensive manner.<\/p>\n This, however, was merely a ruse to close proximity, as Grosskreutz quickly produced a pistol in his right hand as he reached Kyle.\u00a0\u00a0Kyle responded by shooting at Grosskreutz, striking him in the bicep and causing the injured Grosskreutz to drop his pistol to the street.<\/p>\n Innocence:\u00a0Clearly Grosskreutz was the initial aggressor in this confrontation, closing rapidly on the fallen Kyle with pistol in hand, as Kyle was not threatening Grosskreutz in any way until Grosskreutz approached him with pistol in hand.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Imminence.\u00a0The attack by Grosskreutz was in progress, and therefore imminent. This element is consistent with self-defense on these facts.<\/p>\n Proportionality:\u00a0Grosskreutz attacked Kyle with a pistol in hand, clearly a deadly force attack justifying a deadly force defense. This element is consistent with self-defense on these facts.<\/p>\n Avoidance:\u00a0Again, Wisconsin is a stand-your-ground state, but in any case safe retreat was not possible under the circumstances, and so Kyle would have satisfied any duty to retreat had it existed.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Reasonableness:\u00a0\u00a0The circumstances warranted a subjective fear of imminent death or serious bodily injury, and there would have been nothing unreasonable about such a perception.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can disprove beyond a reasonable doubt Kyle\u2019s claim of self-defense with respect to Grosskreutz.<\/p>\n Conclusion:\u00a0The shooting of Grosskreutz by Kyle was lawful self-defense.<\/p>\n Among the first attacks upon Kyle when he initially fell to the street while running to the safety of the police line was a flying stomping attack by an unknown male.\u00a0\u00a0Kyle fired at this individual, but apparently missed.<\/p>\n Innocence:\u00a0\u00a0Again, clearly the unknown male was the initial aggressor in this confrontation, jumping on a fallen Kyle who was no threat to him prior to his attack.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Imminence:\u00a0The attack by the unknown male was in progress, and therefore imminent.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Proportionality:\u00a0\u00a0A full-body falling drop kick of this type is readily capable of causing serious bodily injury, making it a deadly a deadly force attack, justifying a deadly force defense.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Avoidance:\u00a0Again, Wisconsin is a stand-your-ground state, but in any case safe retreat was not possible under the circumstances, and so Kyle would have satisfied any duty to retreat had it existed.\u00a0\u00a0This element is consistent with self-defense.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Reasonableness:\u00a0\u00a0The circumstances warranted a subjective fear of imminent death or serious bodily injury, and there would have been nothing unreasonable about such a perception.\u00a0\u00a0This element is consistent with self-defense.\u00a0\u00a0This element is consistent with self-defense on these facts.<\/p>\n Criminal recklessness is based upon the unjustified creation of a risk of death, and intentionally ignoring that risk.\u00a0\u00a0In this case the risk of death created by Kyle towards the unknown male was, to a reasonable degree of legal certainty, lawful self-defense, therefore legally justified, and therefore by definition not criminally reckless.<\/p>\n Conclusion:\u00a0\u00a0Kyle\u2019s conduct with respect to the unknown male attacker does not constitute reckless endangerment.<\/p>\n Given that this charge is a mere misdemeanor, and that I have previously done a comprehensive legal analysis of this charge elsewhere, I\u2019ll simply direct you all to that analysis at\u00a0lawofselfdefense.com\/ Further, a conviction on this charge would in no way diminish the self-defense justification and lack of criminal recklessness we\u2019ve already discussed with respect to the other charges.<\/p>\n I will note in passing that at a recent pre-trial hearing even Judge Schroeder himself expressed confusion at how the relevant gun law statute was to be applied, suggesting that the statute in question is unconstitutionally vague on its face. If so, the charge should be dismissed before trial, or alternatively the jury not instructed on the charge before\u00a0 its deliberations.<\/p>\n The bottom line is that if the verdict in this case is based on actual merit, and on the actual evidence on applicable law, the outcome ought to be not guilty on every felony count.<\/p>\n As for the gun charge, nobody seems agreed on how that law is to apply, but my own analysis suggests it\u2019s simply inapplicable on the facts of the case, or unconstitutionally vague.<\/p>\n OK, folks, don\u2019t forget to join us all starting today for our daily coverage of the Rittenhouse trial, starting from jury selection and continuing through the verdict (and, heaven forbid it should come to this, sentencing).<\/p>\n OK, folks, that\u2019s all I have for you on this topic.<\/p>\n Until next time:<\/p>\n Remember<\/p>\n You carry a gun so you\u2019re hard to kill.<\/p>\n Know the law so you\u2019re hard to convict.<\/p>\n Stay safe!<\/p>\n \u2013Andrew<\/p>\n Attorney Andrew F. Branca<\/p>\n Attorney Andrew F. Branca\u00a0is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert.\u00a0 Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media.\u00a0 Andrew is also a host on the Outdoor Channel\u2019s TV show\u00a0The Best Defense and contributor to the National Review Online.<\/p>\n Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation\u2019s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter\/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.\u00a0 Andrew teaches\u00a0lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country.<\/p>\n In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter\/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.<\/p>\n Recently, Andrew won the UC Berkeley Law School Debate on \u201cStand-Your-Ground,\u201d and spoke\u00a0at the NRA Annual Meeting on self-defense law.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\nJury Selection Begins with 150 Prospective Jurors<\/h3>\n
Overview of the Events & Charges<\/h3>\n
The Shooting of Joseph Rosenbaum: Count 1<\/h3>\n
5-elements<\/h3>\n
Reckless Conduct Towards Richard McGinnis: Count 2<\/h3>\n
Shooting of Anthony Huber:\u00a0\u00a0Count 3<\/h3>\n
The Shooting of Gabe Grosskreutz: Count 4<\/h3>\n
Reckless Conduct Towards Unknown Male: Count 5<\/h3>\n
The Unlawful Possession of a Gun Charge: Count 6<\/h3>\n
Bottom Line<\/h3>\n
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\n <\/td>\n \n ANDREW BRANCA<\/h2>\n