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The Limits of the Law, and Getting Led Down Rhetorical Alleyways
Was Kyle Rittenhouse acting in self-defense when he shot Joseph Rosenbaum, Anthony Huber, and Gaige Grosskreutz on August 25, 2020? That is the question the jury will have to answer. That is the only question the jury has to answer. The trial as envisioned by most news outlets and Twitter will, or at least should, settle an array of other questions. Should Kyle Rittenhouse have traveled to Kenosha that evening? Was he planning on being a vigilante? Does he suffer from a hero complex? Is he a good person?
Those asking these questions aren’t stroking their chins while deep in thought, they aren’t poring over the evidence, they aren’t asking. They’ve long had their answers—the trial is just a formality. These questions are interesting in a philosophical sense. They are irrelevant to the trial. Kyle Rittenhouse is not my friend, acquaintance, family member, coworker, employee, lover, or peer. I’m in no need to assess his character, judgment, intellect, or moral compass. He isn’t in the news because the country sees in his case grist for a hearty debate about ethics. He’s in the news because it is being decided whether the state will use taxpayer money to keep him locked in a cage for years.
Since the trial started, progressive commentators have shed the prosecutorial skepticism that was once a mainstay of liberal thought and which made the ACLU the bête noire of tough-on-crime conservatives. There was uproar when Judge Bruce Schroeder forbade the prosecution from referring to the men shot as “victims.” No one disputes Rittenhouse shot them. If he shot them in self-defense they are not victims. Referring to them as such before the verdict is begging the question (in the original sense of the phrase).
A similar outcry was made when Judge Schroeder ruled against entering into evidence Rittenhouse’s connections to the Proud Boys. The criminal histories of Rosenbaum, Huber, and Grosskreutz were also barred from discussion before the jury. Though it betrays their hypocrisy, progressives can’t be faulted for not objecting to the latter despite their complaints about the former. The criminal records of the three men are not justification for shooting them. Rittenhouse did not know Joseph Rosenbaum was a registered sex offender and, even if he had, he would not have the legal authority to mete out capital punishment.
Progressives understand this principle. After George Floyd was killed, they shot down anyone bringing up his rap sheet. They were right that the law isn’t exclusive to only the most upstanding citizens, that you need not be sympathetic to be a victim. They understand the principle but are selective in applying it. Hence they deem relevant a video of Rittenhouse punching a woman (filmed prior to the shooting in August), but not Anthony Huber’s felony convictions for strangulation and suffocation. A principle selectively applied ceases to be a principle.
A lot of the pushback from the right addresses the tangential arguments at the object level. I refuse to get dragged into these rhetorical alleyways. They’re dead ends. Are the Proud Boys white supremacists and, by association, Rittenhouse too? I don’t know enough about the group to say. Nor do I care. Arguing over it would concede that the point is relevant, as if being racist forfeits basic rights. A fundamentalist Muslim holds beliefs I and most on the left, right, and center find deplorable. If hooligans attacked such a Muslim in the street, it would be sick to expect him to take the beating because I don’t approve of his homophobia and support of blasphemy laws.
As the trial went on and it became clearer how weak the prosecution’s case was, greater focus was put on Kyle Rittenhouse as a person. Some admit he was in the right legally which comes with the usual brainstorming to come up with laws broad enough they could prevent this specific event from happening again. This flows from an unconstrained vision of government and the law where it doesn’t merely proscribe specific behavior but determines the good and bad people, the deserving and undeserving victims. The thought that maybe Justice should peek under her blindfold sometimes is a dangerous one. Did Rittenhouse reasonably fear for his life when he pulled the trigger is a straightforward question, certainly more so than the question of whether it was advisable for him to attend the protest or whether he hoped to be attacked. Those bring a high level of subjectivity and with that bias. It’s a strange precedent to want from the people who argue society is inherently racist.
Now for my disclaimer that juries are made of people, and have the flaws that come with that. They can be swayed by superficial factors like charisma and good looks. Some jurors are dumb or prejudiced. The justice system is set up to minimize the effect of bias. The state can rule on whether Rittenhouse is guilty of murder. It is outside their purview if I would want to buy him a drink or have my nephew look up to him as a role model. I am not going to debate every life choice he made before arriving in Kenosha, WI, as I wouldn’t argue about whether George Floyd should’ve used a counterfeit $20 bill or taken Fentanyl. I do not have to be his cheerleader to defend him. My only concern is whether he broke the law. That is the only matter of public interest.
Published in Law
The judge should direct a verdict of “not guilty.” There was no way Rittenhouse could get a fair trial after the MSM onslaught, even with the US President calling him a “domestic terrorist” (or something like that). I’d like to know how many jurors were thinking about the safety of their family, homes, and jobs if they came up with a “not guilty” verdict. Don’t even get me started on the actions of the prosecutor.
You’re right, though. The only thing the jury should be thinking about was if Rittenhouse acted in self defense. Whether or not a seventeen-year-old taking a rifle to a protest is a smart move is irrelevant . . .
And not whether the mob is coming to burn their house and kill their family next week. Since the state is corrupt and the state is charge of the safety of jurors, the last refuge for liberty, the juries themselves, are also tainted.
Great post.
I disagree with your final sentence: there’s quite a lot that’s legitimately in the “public interest” about the case. But I absolutely agree with you that, from the perspective of the jury, all that matters — all that should matter — is the immediate legality of the young man’s actions.
I felt the same way about Zimmerman – don’t care what he should have been doing or not doing before Travon Martin began to try to kill him. Once he was at that point he had one reasonable choice.
The point is that Rittenhouse was not aggressing. He was withdrawing and trying to disengage. The people that he shot were aggressing toward him. They can not claim self defense if they were pushing forward while he was withdrawing. It is not how his thing works. I am told that the prosecuting attorneys are interested in Justice but I have never seen it. What I have always seen is what we are seeing here. A prosecuting attorney lying and twisting words and the law, to lock somebody up and the truth be damned. Our system is not just flawed but is now corrupt also.
In the words of that great (fictional) detective/philosopher Harry Bosch: “Everybody matters or nobody matters.”
If I ever commit a crime, that prosecutor is the one I would want prosecuting me at trial.
Of course you are correct. One can only hope that the jury keeps this in mind. They should not have to contemplate being the cause of riots, doxxing, or anything other than the facts and the law of self-defense. That is, however, a lot to ask.
I think I understand your point. You are intimating that this prosecutor sucks. But I doubt you really mean what you say. “If you commit a crime” and get this prosecutor, he will inflate the charges, twist the story and attempt to lie about basic laws to get your neck in a guillotine. He will enflame and confuse the jurors about your rights and the law.
No, I do not think you really want this pathetic evil man prosecuting you, or anyone else. He should never be allowed into court again.
I agree. Perhaps we should prevent lawyers from seeking office lest their damage spread further into the system.
Exactly. A person may do dumb things to put themselves in a bad position (and yes, there are limits), but once the assault begins, self defense is validated . . .
Excellent, well written post!
Next time I have to brief the court on character evidence, I’m using it!
I was going to mention George Zimmerman, but forgot it in my rush to get something posted before the verdict. Given his age and the fact we don’t know the exact events from when he called 911 to when he shot Martin, Zimmerman is much more open to criticism, or at least suspicion, about his actions/motives. His was also a case that seemed to be brought more because of media outrage than the facts on the ground. People all over social media were spreading and believing all kinds of misinformation. God, that was so long ago, I was one of those believers.
No, I think we need to bring back some old school wrath, you F me and mine over get removed from the game field. This BS occurs because their is no cost to their actions.
You mean there is no cost to THEM for their actions.
Their actions have plenty of cost.
I’m using “public interest” in the narrow sense of things the government is justified in acting upon to protect or further the welfare of the public.
My point was that he appears to be a very inept and unlikable prosecutor. He may be a nice person; I don’t know him.