Even if all the prosecution gets is a hung jury, that’s a “win” for the prosecution; re-trial would be certain.
The Kyle Rittenhouse trial is rapidly entering the end-game, with the jury to receive its instructions on the charges on Monday morning, followed by the closing arguments of the prosecution and defense, and finally the beginning of jury deliberations sometime in the afternoon.
Given the strength of Kyle’s core claim of self-defense, and the weakness of the State’s attacks on that legal defense, it seems worth taking a look at the last desperate effort the prosecution is making to try to drag something resembling a win out of this smoking pile of a trial–and that’s to sell an incredibly weakly supported argument of provocation to at least a single juror interested in accepting such nonsense.
Kyle’s Core Claim of Self-Defense Is Extremely Robust
Kyle Rittenhouse’s legal defense to the use-of-force charges against him is, of course, centered on the privilege of self-defense under Wisconsin law. Having properly raised this legal defense at the start of these proceedings, the burden is now on the State to disprove self-defense beyond a reasonable doubt. That doesn’t mean the State has to disprove self-defense in its entirety—it merely means the state has to disprove any one of the four required elements of self-defense.
There are four core elements of self-defense under Wisconsin law that are possible targets of attack by the prosecution: Innocence, Imminence, Proportionality, and Reasonableness. I also mentioned that the fifth element of self-defense, Avoidance, does not generally apply in Wisconsin, in that there is no generalized legal duty to retreat before you can act in otherwise lawful self-defense.
As I’ve written extensively over the eight days of trial testimony the State has offered little or no evidence attacking any of the four core elements of Rittenhouse’s claim of self-defense, and certainly not evidence beyond a reasonable doubt. They did not do so for the perfectly good reason that they have no such evidence.
Provocation: Last, Desperate Gasp of a Flailing Prosecution
There is, however, what might be thought of as a “back door” avenue of attack on self-defense, and that target becomes available where the defendant can be said to have provoked the attack against which he then defended himself. Generally, I treat provocation as a facet of the element of Innocence, but Wisconsin law breaks it out as if it were a separate element, so that’s how I’ll treat it here.
If we had any doubt what the form of attack the prosecution will bring to bear in their closing argument on Monday, that was resolved during yesterday’s conference hearing—the meeting in court, outside the presence of the jury, in which the parties argue over the precise instructions that will be given to the jury for use in their deliberations.
The prosecution’s attack will come in the form of the legal doctrine of provocation.
It’s worth noting that the jury can effectively only find the defendant guilty based upon a jury instruction that they have received from the judge. An instruction withheld from the jury necessarily withholds a path to conviction. Conversely, an instruction provided to the jury necessarily provides an additional path to conviction. (Obviously, I’m talking about criminal charge instructions here, not defense instructions.)
Yesterday the State informed the court that they wanted the jury to receive the Wisconsin criminal jury instruction (WCJI) on provocation in the context of self-defense, which is known by its identifying number, WCJI 815. The defense, naturally, argued against this instruction, attempting to deny the State this path to a conviction.
The State, however, won that argument. Accordingly, the jury will be instructed on the law of provocation—and therefore, the jury has been given a provocation-based path to conviction.
This was a critical win for the prosecution. The self-defense-based defense narratives on each of the use-of-force charges against Kyle are all very robust, and not readily subject to disproof beyond a reasonable doubt.
Without provocation, the State would have found itself facing inevitable defeat attacking the core self-defense justification on any of those charges.
By winning the provocation instruction, however, the State has the potential to now simply upend the trial chessboard, and sweep away all those self-defense pieces so favorably positioned for the defense.
Provocation Upends the Trial Chessboard, Gives Prosecution Last Chance
Why? Because under the doctrine of provocation, the provocateur simply doesn’t qualify for the legal defense of self-defense at all. And if they don’t qualify for self-defense in the first place, then the merits of those four elements of self-defense—Innocence, Imminence, Proportionality, and Reasonableness—simply become irrelevant.
If the prosecution can convince the jury beyond a reasonable doubt that Kyle was provoked the attacks upon him, then it simply doesn’t matter that those attacking him might have been the first to threaten or use force, that their attacks were actually in progress, that they were threatening him with deadly force, or that his perceptions of the nature of those attacks were subjectively and objectively reasonable.
More precisely, the provocateur can still physically defend himself against such attacks—one assumes one would—but he cannot later justify that defense as lawful and free of criminal liability.
Simple Provocation & Provocation with Intent
Importantly, there are two types of provocation under Wisconsin law, each with different conditions: simple provocation, and provocation with intent.
Simple provocation is engaging in unlawful conduct that would be reasonably likely to provoke a violent response. If that occurs, the person who provoked the violent response does not have a legal privilege of justifying their use of force against that response as self-defense, unless they meet additional conditions not usually required for self-defense.
Specifically, the person who engaged in simple provocation has effectively acquired a legal duty to retreat, that element of Avoidance, that would not normally be a legal duty under Wisconsin law in the case of an otherwise lawful act of self-defense. Before the simple provoker can justify their defense against the provoked violence as legally justified, they must withdraw from the confrontation and effectively communicate their withdrawal to the other party.
The second form of provocation is provocation with intent. This occurs when the defendant not only provoked a violent response but did so with the deliberate intent of then having an excuse to use deadly force against the person provoked. Importantly, the provoker with intent cannot regain self-defense by withdrawal and communication—on the other hand, the State does acquire the burden prove that malicious intent, to provoke in order to have an excuse to use deadly force, beyond a reasonable doubt.
The jury instruction that addresses both simple provocation and provocation with intent under Wisconsin law is WCJI 815 Privilege: Self-Defense: Not Available to One Who Provokes an Attack: Regaining the Privilege, and it will be read to the jury Monday morning.
State: Simple Provocation Excludes Self-Defense for Every Felony Charge
The State has explicitly informed the court that it is the State’s intent to argue that every use-of-force for which Kyle has been charged was the downstream consequence of his initial purported provocation of Joseph Rosenbaum. So, if the State can convict on the Rosenbaum charge on the basis of provocation, they believe all the rest of their charges will also result in convictions, like a series of fallen dominoes.
It’s also been mentioned that ADA Jim Kraus explicitly informed the court during the conference hearing on jury instructions that the prosecution intends to focus specifically on simple provocation in its closing argument, rather than provocation with intent.
This makes sense, if only because of the State’s choice of charges in this case.
The shooting of Rosenbaum was charged not as an intentional homicide (as the State would charge Kyle for his fatal shooting of Anthony Huber), but as a reckless homicide.
Remember, the whole point of the doctrine of provocation with intent is that the person provokes an attack by another with the intent to then use deadly force upon them. It naturally follows that the subsequent use of force is intentional—and not merely reckless.
Arguing provocation with intent in a use-of-force event that even the state has not charged as intentional would seem logically incoherent—so I would not normally expect provocation with intent to play a role in the State’s closing here.
That said, this prosecution had not been marked by a great deal of logical coherence at any point, so anything is possible, I suppose.
In any case, my expectation is that the State will argue simple provocation—and that’s surely the narrative that ADA Jim Kraus set out to the court during the conference meeting yesterday, telling the court:
We are saying that in the incident Mr. Rosenbaum, [the defendant] provoked it by raising his rifle and pointing it at individuals [Joshua Ziminski]. So, that is why Mr. Rosenbaum then gave chase to him. The defendant then had a duty to retreat, he retreated. Instead of giving notice of his withdrawal from the fight, he turned and pointed his gun again, at Mr. Rosenbaum, an unarmed civilian, which he admitted he knew he was unarmed. And that continued. … We will argue that the video evidence, contrary to the defendants testimony, shows that he raised his weapon at individuals, and that is what provoked the attack by Mr. Rosenbaum.
Pretend Kyle Actually Provoked Rosenbaum: Then What?
Now, if we assume for purposes of argument that what the State is saying is true (I know, I know!), and set aside for the moment any perfectly reasonable doubts about the evidence offered to support that claim, would Kyle purportedly pointing his rifle at Rosenbaum qualify as simple provocation?
WCJI 815 tells us that:
A person who engages in unlawful conduct 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.
The State’s argument is that Kyle’s purported pointing of his rifle at Ziminski was unjustified, therefore at least a misdemeanor offense, and therefore unlawful—so it would qualify as unlawful conduct for the purposes of simple provocation.
Further, the State argues that this unlawful conduct of pointing the rifle provoked a “defense of others” response from Rosenbaum—that all Rosenbaum wanted to do was neutralize Kyle’s purported threat to innocent people in the area.
If both of those claims are believed to be true, then the conditions for a simple provocation that loses Kyle the legal defense of self-defense have been met—and self-defense collapses.
Certainly, if one believes the State’s claim that Kyle pointed his rifle for no justifiable reason, that would be an unlawful act reasonably likely to provoke a response—though, believing that claim is a pretty big ask. Nevertheless, again, for our purposes here, we are analyzing the argument as if the claim was provable.
Provoker Regaining Innocence: Withdrawal & Communication
Even if Kyle was a simple provoker, it is possible for someone who has engaged in simple provocation to regain their privilege of self-defense. How?
WCJI 815 tells us that:
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.
So, even if Kyle was a simple provoker, he can regain his privilege of self-defense by withdrawal and communication.
The defense will naturally argue that Kyle’s flight across the Car Source parking lot with the murderous Rosenbaum in hot pursuit should qualify as withdrawal and communication.
Maybe—but maybe not. The policy behind allowing the regaining of self-defense by withdrawal and communication is to reward the person who may have provoked a fight for their willingness to withdraw from that fight in good faith. A bad faith withdrawal—a momentary withdrawal to reload one’s weapon with the intent of returning to the fight—would not qualify for purposes of regaining self-defense.
The State here plans to argue that Kyle’s flight across the Car Source parking lot was not, in fact, a good faith withdrawal from the confrontation he had purportedly provoked. Their evidence for this is that when Kyle was roughly halfway across the lot he briefly turned and purportedly pointed his gun back at Rosenbaum (the defense would say “showed,” not “pointed,” but that’s a factual dispute for the jury).
That act of pointing the rifle back at Rosenbaum, the State will argue, was either a continuation of the initial provocation or a new provocation, but in any case it did mean that Kyle’s flight was not a good faith withdrawal from the fight.
But wait, there’s more!
In addition to the requirement of good faith withdrawal, this provision to regain the privilege of self-defense also requires that the provoker give “adequate notice” of that withdrawal.
In the real world, it is common to accept as “adequate notice” what the law would call “constructive notice.” Notice is “constructive’ when it is not stated explicitly, but can be readily understood from the circumstances. Here, a provoker who is in full flight from the conflict is usually deemed to have given constructive notice sufficient to qualify as “adequate” for these purposes—a notarized letter is not required.
This trial is not a normal proceeding, however, so expect that the State will claim that Kyle failed to give Rosenbaum “adequate notice” of his withdrawal.
Overall then, I expect the State to argue that purported simple provoker Kyle cannot regain his privilege of self-defense under the withdrawal and communication provision because his withdrawal was not in good faith and his communication “adequate notice” for that purpose.
Provoker Regaining Innocence: Exhausting Ever Other Means to Escape
There is a second way that a simple provoker can regain their privilege of self-defense, and that’s under circumstances where the provoked response comes in the form of a deadly force attack. We know the State intends to argue that Rosenbaum’s fighting Kyle for his gun was purely defensive in nature, and not an attack at all—but the defense has argued that Rosenbaum’s attack was deadly in nature.
When the provoked attack is deadly in nature, WCJI 815 tells us that then the provoker:
“ …may lawfully act in self‑defense. But the person may not use or threaten force intended or likely to cause death unless he … reasonably believes he … has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.
On this point, the State plans to argue that purported simple provoker Kyle cannot regain his privilege to self-defense under this provision, because although he fled a short distance to the spot where he ended up shooting the pursuing Rosenbaum, he had not actually “exhausted every other reasonable means to escape.”
Indeed, at the charging conference, the State claimed that when Kyle stopped and shot Rosenbaum he was among a group of loosely spaced cars with plenty of open space in front of him to continue his flight. Naturally, the defense contests this characterization of the circumstances, noting the very large group of people on the edge of the lot in the process of violently smashing the vehicles there. Again, however, that’s now an issue in dispute, and therefore a fact question for the jury.
Even Laughable Evidence Sends Issue to the Jury
Indeed, that’s the core problem for the defense on this provocation attack—the prosecution has been able to orchestrate—to the satisfaction of Judge Schroeder, in any case—a sufficient series of issues in dispute around the doctrine of simple provocation that the judge agreed to submit the provocation instruction to the jury.
It is notable that Judge Schroeder has a tremendous amount of respect of the province and prerogatives of the jury as the finder of fact.
Where there is no relevant fact in dispute, then is no fact-finding to be done, and the issue is simply a matter of law that should be decided by the judge alone, without the participation of the jury. That should have been the outcome on the gun possession charge, by the way—there is no issue in dispute, so there is no role for the jury, the charge is simply inapplicable to Kyle’s circumstances and should have been dismissed by the judge as a matter of law.
Once there is even a hair of evidence on an issue in dispute, however, the slightest baby breath of evidence, then the matter arguably falls to the jury to make the finding of fact on that issue.
So, many of us may find the evidence in support of the proposition that Kyle pointed his rifle at Ziminski, provoking Rosenbaum’s attack—the Rorschach photo of the purported—event to be laughable. But it is evidence on an issue in dispute, however, laughable, and so the issue in dispute goes to the jury.
The same is true for the State’s other propositions here—that Kyle’s retreat was not in good faith, that his notice of withdrawal was inadequate, that he failed to exhaust every other possible means of escape—perhaps many of us find the evidence in support of those propositions to be similarly laughable. But there exists evidence (mostly, I guess) to support these propositions, however laughable that evidence may be, and so they properly go to the jury.
The Danger of the “Interested Juror” Who Does Not Laugh
And there’s the great risk to the defense generally, and Kyle in particular: the jury may not laugh.
My sense is that even the prosecution doesn’t believe in the merits or truthfulness of the arguments they are putting forward here on provocation as a justified reason to deny Kyle the privilege of self-defense.
They are, however, determined to have him convicted, by any means necessary. And these arguments on provocation appear to be the only means at hand—certainly an attack on the elements of Kyle’s claim of self-defense has no likelihood to any degree of reasonable certainty of being successful in meeting the State’s burden to disprove self-defense beyond a reasonable doubt. It’s not even close.
With provocation, however, the State is able to offer an interested juror the thinnest of threads by which they might pull themselves to a conviction.
By “interested juror” I mean a juror that may be unwilling to convict Kyle if there’s absolutely no rationale to justify a conviction—as is the case with the legal defense of self-defense itself—but who would be willing to convict if even the slightest rationale is offered.
It’s like a recently quit smoker who is trying to do the right thing and not pick up a cigarette in the absence of any reason at all—but who finds that even the slightest reason is sufficient for one quick smoke.
Given the nature of the broadcast of these proceedings, none of us not in the courtroom can see the faces of the jurors, can see how they react to testimony, to video evidence, to the questioning by the lawyers.
But the lawyers certainly can, and use their perceptions of the juror’s reactions to craft their own legal strategy.
Ideally, of course, ADA Binger would like to convince all 12 jurors to unanimously agree that Kyle’s guilt has been proven beyond a reasonable doubt, and obtain his desired convictions.
Perhaps that seems unlikely, given the paucity of evidence inconsistent with self-defense, and the flimsiness of the evidence in support of provocation. Maybe Binger sees an outright conviction by a unanimous jury as out of reach—at least, in this courtroom, with this judge, with this jury.
But perhaps ADA Binger has seen what he believes to be an “interested juror” sitting before him—and he just wants to offer that “interested juror” the slightest pretext by which to vote for guilt.
And, really, all Binger needs is one “interested juror” to take his offer—because if he gets one, he gets a hung jury and a mistrial.
Mistrial Normally a “Win” for the Defense, But Not This Time
Now, normally I would call a mistrial a win for the defense—but that’s normally because most defendants are guilty, so the mistrial is a gift that avoids an outright conviction.
In Kyle’s case, a mistrial is a win for the prosecution—because Kyle appears, by the overwhelming weight of the evidence, to be innocent, so the mistrial is a thief that takes from Kyle an outright acquittal.
Worse, it simply puts him right back in the tender hands of ADA Binger, who is entirely free to put Kyle through another full-blown trial again—perhaps with a different, more amenable judge, and certainly with a different, perhaps more amenable jury.
And every re-trial is a trial that ADA Binger is fighting with the same resources with which he’s always provided in his office as a prosecutor—but which Kyle fights with whatever resources might be left from the prior fight. And those resources diminish with each battle, making him more vulnerable with each successive re-trial.
OK, folks, that’s all I have for you on this topic.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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