Is The AR-15 on Trial or a Defendant? thumbnail

Is The AR-15 on Trial or a Defendant?

By Charles M. Strauss

OK, I want to write this before the jury reaches a verdict.

From the closing arguments, I conclude:

  • The prosecutors are complete idiots.
  • The defenders are no prizes. They may have snatched defeat from the jaws of certain victory.

Here are the biggest errors that I thought the defenders made. (Keep in mind that I am not a criminal defense lawyer and I have never tried a case in court.)

  • They based the self-defense case re Rosenbaum on the premise that Rosenbaum “might have” taken Rittenhouse’s gun and used it against him. That should have been their secondary, backup argument. Their primary argument should have been “It is a myth that you cannot shoot an unarmed man.”  The prosecutors made a huge deal about that, going on and on about how Rittenhouse brought a gun to a fistfight, and he was too cowardly to duke it out like a man, and even saying “you cannot shoot an unarmed man like that.” Right after the closing arguments ended, Katie Pavlich, on Fox News, pointed out that “more people are killed with hands and feet than with AR15s.” She was right, and the prosecutor was wrong, but the jury doesn’t know that, because the defenders didn’t tell them. The defenders should have had an expert witness telling the jury, “More people are killed with hands and feet than with AR15s.” 

They should have emphasized that there is a difference between “deadly force” and a “deadly weapon.” The law says you can shoot somebody to protect yourself against “deadly force”; it says nothing about a “deadly weapon.” Defense lawyer: “Can an unarmed man kill you?” Expert witness: “Hell yes. Here are the stats.” That would also have neutralized the prosecutor’s assertion that Huber’s skateboard was not a deadly weapon because parents buying their children skateboards for Christmas are not buying them deadly weapons. We can hope that the jurors are smart enough to figure out that parents buy their children baseball bats (and many other things), which can be used as deadly weapons. The defenders should also have asked the jurors if they would be OK with being hit in the head with a skateboard swung full force. (And asked the prosecutors if they would like to demonstrate to the jury how harmless a skateboard is, by volunteering to be hit in the head with one.) However, “deadly weapon” is beside the point; the issue is “deadly force,” not “deadly weapon.” The defenders should have said that over and over. Rosenbaum and Huber were both quite capable of inflicting deadly force on Rittenhouse without taking his gun away.

Also, the definition of “deadly force” includes not only death but “serious bodily injury.”  The defense needed to emphasize that. The expert witness should have told the jurors that people who get beaten with hands and fists sometimes die, but more often they get fractured skulls, permanent brain damage, loss of vision (or loss of an eye), broken jaws, crushed testicles, broken backs, lacerated livers, collapsed lungs, and occasionally they end up confined to wheelchairs as quadriplegics, being fed with a spoon for the rest of their lives. Let the jurors imagine themselves like that. That would have neutralized the prosecutor’s stupid “duke it out like a man” argument.

  • The defenders, in their closing argument, should have said the words “beyond a reasonable doubt” over and over. “Ladies and gentlemen of the jury, the defense does not need to prove that Rittenhouse acted in self-defense; the prosecution needs to prove that Rittenhouse did not act in self-defense. And they need to prove that ‘beyond a reasonable doubt.’ Of course, if you think Rittenhouse acted in self-defense, then your verdict is Not Guilty. But if you think there is at least a reasonable possibility that Rittenhouse acted in self-defense, then your verdict is also Not Guilty. The only way to arrive at a verdict of Guilty is if you think that it’s ‘beyond a reasonable doubt,’ preposterous, outlandish, unreasonable to even think that Rittenhouse might have acted in self-defense; that no reasonable person could see anything that looked like self-defense.”
  • They could have done a better job addressing the “provocation” instruction that the prosecutors sneaked in at the last minute. “Imagine somebody who holds up a liquor store at gunpoint. A customer pulls a gun, but the robber shoots him first. Can the robber claim self-defense, because he only intended to rob, not shoot, and he was forced to defend himself against the customer? Of course not. That would be absurd. The provocation law was designed to avoid such absurd results. It certainly does not apply to Rittenhouse. And if Rittenhouse’s only “provocation” was having a gun, then why did all the many, many other people carrying guns not provoke many, many other attacks? You saw the videos. Did you see Rittenhouse provoke anybody? No, you didn’t. Did you see him provoke anybody beyond a reasonable doubt? No, you didn’t. This provocation business is a desperate, last-minute Hail Mary tactic by the prosecution. Not Guilty.”
  • When your enemy is destroying himself, don’t interfere. The prosecutor acted like a jerk, and surely alienated the jurors. But then the defenders came along and also acted like jerks. They got personal, for no good reason. Just point out that the prosecutor said the video would show Rittenhouse chasing Rosenbaum, but the video shows Rosenbaum chasing Rittenhouse. Leave it there. There is no reason to say “The prosecutor is a liar.” Let the jury figure that out for themselves.

You watched the trial; you know this is an open and shut case and that Rittenhouse should never have been charged, much less tried. But what about the jurors? Maybe they have the common sense to figure out for themselves that a skateboard can inflict deadly force, and so can an unarmed man. (“Poll the jurors, Your Honor. How many have been in bar fights?”) Maybe they will read the jury instructions and figure out the “beyond a reasonable doubt” standard by themselves, without being reminded by the defenders. Maybe. But maybe not. The prosecutors’ arguments were foolish, but there are plenty of foolish people in the world who think it perfectly reasonable to say “A 17-year-old with an Assault! Rifle! automatically forfeits the right to claim self-defense. I mean, come on, it’s an Assault! Rifle! Guilty by reason of possession of an Assault! Rifle!” Are there such people on the jury?