Rittenhouse Trial Day 9: Prosecution Big Win On “Provocation” Jury Instruction Saves Chance At Conviction
Lacking any factual rebuttal to self-defense, the State will argue that Kyle Rittenhouse was a “provoker with intent” eliminating self-defense privilege under Wisconsin law that cannot be regained by withdrawal from the fight.
Today was the ninth day of the trial by which ADA Thomas Binger is seeking to have Kyle Rittenhouse convicted and sentenced to life in prison for having shot three men (two fatally) the night of August 25, 2020, in Kenosha WI, when the city was suffering a tsunami of rioting, looting, and arson following the lawful shooting of a knife-wielding Jacob Blake by Kenosha police officers.
Today the parties argued over what instructions should be given to the jury for their use in deliberating the guilt (or not) of Kyle Rittenhouse for any criminal charges for which he’s currently on trial.
Naturally, the jury was not present for this discussion. The jury will return to court on Monday morning, at which point the judge will give them the final set of jury instructions, the State will present its closing argument, the defense will present its closing, and then the State will have a rebuttal argument.
At that point, the jury will begin its deliberations, and I’ll switch over to “Jury Watch!” mode.
For today, however, I wanted to share the court’s decisions on jury instructions, the jury instructions themselves, and some of the more important legal concepts to understand being applied in these instructions.
Big Win for the Prosecution: Saved by Judge Allowing Provocation Instructions
Much of the day’s argument over jury instructions centered on the instructions dealing with the legal doctrine of provocation—and that’s because an attack through the doctrine of provocation is the only desperate hope the State has for overcoming Kyle’s powerful claim of self-defense and obtaining convictions on the use-of-force charges against him.
Of the six counts brought against Kyle Rittenhouse in this trial, five are use-of-force felonies (the other is the misdemeanor gun possession charge already discussed). To each of those felony charges, Kyle has raised the legal defense of self-defense. To convict on any of those, then, the State must disprove self-defense beyond a reasonable doubt. How might the State do this, given that it has introduced little if any evidence attacking the core elements of Kyle’s self-defense?
By attacking Kyle’s claim of self-defense through the doctrine of provocation.
I expect the State’s central attack on Kyle’s core legal defense of self-defense to come in the form of a narrative of either simple provocation or provocation with intent.
Simple provocation occurs when the defendant engages in unlawful conduct likely to provoke a violent response. When that violent response occurs, the simple provoker cannot claim self-defense for resistance until they exhaust every possibility of avoiding the need to use force, including retreat–where a duty to retreat would not exist in an otherwise lawful act of self-defense.
Provocation with intent occurs when the defendant deliberately provokes a violent response, with the 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 must prove that malicious intent beyond a reasonable doubt.
I expect that the State’s argument to the jury during closing arguments on Monday will be structured around this legal doctrine provocation in one of those two forms.
This is why the “unicorn” evidence of the drone video and the “enhanced” images from that video have been so important to the State, and why they fought so hard to get them admitted into evidence. With that material in evidence, the State can at least argue provocation. Without that material in evidence, the State would have no substantive attack on self-defense at all.
For example, the State may argue that Kyle was a simple provoker who committed an unlawful act by pointing his rifle at Joshua Ziminski, thus provoking a reasonably foreseeable violent response from Rosenbaum. Although Kyle then fled, the prosecution would argue that he could have fled further than he did, and thus failed to exhaust every possible means of avoiding having to use defensive force. This would mean he had not regained the privilege of self-defense that he lost by his simple provocation.
Alternatively, the prosecution may argue that Kyle was a provoker with intent when he purportedly pointed his rifle at Joshua Ziminski, seeking to provoke a violent response against which he would then have an excuse to use deadly force. Again, this pointing of the rifle did trigger a violent response from Rosenbaum. Rittenhouse then led the provoked Rosenbaum across the parking lot, where Kyle ultimately acted on his intent to use Rosenbaum’s provoked attack as an excuse to use deadly force on Rosenbaum.
As a provoker with intent, the State will conclude, the defendant is not privileged to justify his use of deadly force on Rosenbaum as justified self-defense, and no withdrawal argument can salvage self-defense for a provoker with intent. (One difficulty for the State arguing provocation with intent is that they have not charged Kyle with intentionally killing Rosenbaum, but only with recklessly killing him. Rationally, an argument of provocation with intent only makes sense if the subsequent killing was intentional–but this is not an especially rational prosecution.)
Then the State will use the killing of Rosenbaum as a purported act of provocation with respect to the attacks upon Kyle by “jump kick man,” Huber, and Grosskreutz, attempting to strip him of the legal defense of self-defense for those uses of force, as well.
The defense argued sensibly that the evidence in support of the State’s narrative of provocation—the “unicorn” drone video left by the evidence fairy on the State’s doorstep last Friday, and the “enhanced” photos produced for the first time yesterday—were too flimsy a basis to support an argument of provocation. They pointed out the poor quality of the video and images and noted that for Kyle to be raising his rifle as the State claimed he would have had to suddenly decide, for the first time that night, to handle the rifle as if he were left-handed.
Judge Schroeder essentially informed the State that he didn’t think very much of their provocation evidence, noting how blurry and indecipherable the video and photos were for purposes of determining whether Kyle had pointed his rifle at Ziminski as the State claimed.
He even took the opportunity to review the State’s video on a giant 4k television screen in the courtroom today and walked away without appearing to have seen much of what the State claimed.
Again, however, this is a judge who values the role of the jury, and who is predisposed to give more instructions rather than fewer, and ultimately he decided he would instruct the jury in the provocation doctrine, and thus saving the State from complete argumentative stasis.
It will be the job of the defense, now, to argue against the State’s expected narrative of provocation to the jury during their own closing argument Monday morning.
Monday is going to be a high-stakes day, for certain, as closing arguments always are. This is where the win or loss will ultimately be realized.
Good News for Defense: Judge Adopts Gun Charge Instruction They Drafted
The biggest jury instruction win for the defense was on the misdemeanor gun possession charge, Count 6 in the criminal complaint. The standard jury instruction for this charge would almost certainly have meant an automatic conviction for Kyle, for reasons I explain at length here: The Injustice of the Gun Charge Against Kyle Rittenhouse
Instead of that standard jury instruction, however, the judge agreed to accept a jury instruction drafted by the defense that includes as an option the exception that relieves Kyle of criminal liability for that gun possession.
It would have been best, I think, for the judge to have dismissed the gun charge in its entirely, but this is a judge who values the role of the jury, and who is predisposed to give more instructions rather than fewer—but at least with respect to the gun charge the jury will receive an instruction that, if rationally applied to the facts, should result on an acquittal on Count 6.
The Criminal Charges and the Jury Instructions Approved for Them
The criminal complaint against Kyle has six counts. Five of these are use-of-force felony counts, and one is the misdemeanor gun possession count. Today the parties argued in court over the specific jury instructions to be read to the jury for each of those counts.
The parties also argued over where the jury would be permitted to consider lesser included offenses for a particular count in the complaint. (If you’re unfamiliar with lesser included offenses, I discuss that concept below).
Ultimately the Judge decided upon what final instructions the jury will be read on Monday morning, just before closing arguments, after which the jury will begin to deliberate, applying those jury instructions to the facts of the case as they believe those facts to have been proven or disproven.
It is worth noting that the jury can only convict on charges for which they receive a jury instruction, so as you might imagine the defense was arguing against many of the instructions the State was asking for. Overall the defense won a few of these arguments and lost a few.
As already noted above, the big win for the defense was the acceptance of their version of the gun possession jury instruction—that should lead a rational jury to acquit on the gun charge—and the big win for the State was the judge agreeing to instruct the jury on the doctrine of provocation predicated on the State’s “unicorn” drone video and “enhanced” photos.
Here I’ll simply list the Counts of the criminal complaint and provide the jury instructions approved for each immediately below each count.
Count 1: First Degree Reckless Homicide (Joseph Rosenbaum)
Count 2: First-Degree Recklessly Endangering Safety (Richard McGinnis)
Count 3: First Degree Intentional Homicide (Anthony Huber)
Count 4: Attempt First Degree Intentional Homicide (Gaige Grosskreutz)
Count 5: First Degree Recklessly Endangering Safety (“Jump Kick Man”)
Count 6: Possession of a Dangerous Weapon by a Person Under 18
WCJI 2176 Possession of a Dangerous Weapon by a Child is the standard instruction for this offense—but if applied on the facts of this case, it would certainly result in an unjust conviction, for reasons I discuss in detail here: The Injustice of the Gun Charge Against Kyle Rittenhouse
Fortunately, this is not the instruction the jury will be given for Count 6. Instead, the jury will be given a customized jury instruction drafted by the defense that presumably accounts for Kyle being exempt from the gun possession statute being applied against him. If properly drafted and applied by a rational jury, this customized gun possession instruction should lead to an acquittal on this charge.
Self-Defense & Provocation Instructions
Legal Concepts Need to Understand the Jury Instructions
Now I’d like to explain some legal concepts that may make it easier to understand how those jury instructions are intended to be applied.
Intent is a mental state in which the person intends a particular outcome. Further, we are all considered to have intended the reasonably foreseeable consequences of our actions. Of course, none of us can read minds, so intent is invariably inferred from a person’s words or conduct. Normally, for example, if you point a gun known to be loaded at someone and pull the trigger discharging the weapon at them, it will be inferred that you intended that person deadly injury.
In this case, Rittenhouse is charged with the intentional homicide Anthony Huber (Count 3) and the attempted intentional homicide of Gaige Grosskreutz (Count 4).
Several of the criminal charges, in this case, are based on recklessness. Recklessness can be thought of as an aggravated form of simple negligence. Where negligence only creates civil liability, however, recklessness creates criminal liability.
In the case of negligence, we all have a basic legal duty to not cause unjustified harm to others, and we are all presumed to know this.
To illustrate, if you are driving down the road, and glance down for a moment to change radio stations, and while doing this your car moves onto the shoulder and takes out somebody’s mailbox, your conduct was negligent and you are liable to pay for the damage caused.
Recklessness differs from negligence in both the degree of harm caused (or threatened) and the mental state of the person causing (or threatening) the harm. Where negligence arises in the context of almost any unjustified damage, recklessness generally involves a danger to human life. Also, where a negligent person is merely being careless or thoughtless, the reckless person is actually aware of the risk being created by their conduct and chooses to ignore that risk.
To illustrate, if you drink to the point of intoxication, decide to drive your car through town, and run over a group of nuns using a pedestrian crosswalk, your conduct is reckless. Everyone knows that driving drunk creates an unjustified risk of death or serious injury to others, and so by driving you intentionally ignore that risk.
Wisconsin law has two different degrees of recklessness, first degree recklessness and second degree recklessness.
Second degree recklessness is essentially what I’ve just described—the creation of an unjustified risk of death, and the deliberate disregarding of that risk.
First degree recklessness can be thought of as an aggravated form of second degree recklessness. Whereas second degree recklessness requires the creation of an unjustified risk of death and the deliberate disregarding of that risk, first degree recklessness also requires that you acted with an utter disregard for human life.
Utter disregard might best be explained with an illustrative example. Imagine you are in the woods and have brought a rifle to do some target practice. Your target consists of a soup can, which you hang from a tree branch using a string. You begin shooting at the can. Naturally, both the bullets that strike the can and those that miss continue moving with considerable energy past your target.
Unfortunately, a short distance past your target, hidden by the thin stand of trees behind your target, is a school, and one of your bullets strikes and kills a student.
Your killing of that student is certainly not an intentional homicide—a murder—because you never had any particular intent towards that student, and indeed never knew the student existed.
The killing, however, is likely criminally reckless. You know that firing bullets at a target with an inadequate backstop means the rounds will continue downrange with considerable energy until they hit something with sufficient resistance to stop them. If that something is a person, they are likely to die. Guns are inherently dangerous instruments, and it is your responsibility to use them in a manner that does not unjustifiably endanger others. The enjoyment of recreational target shooting cannot justify a human death.
In short, by shooting at the can on a string without an adequate backstop you know or should know that you are creating unjustified risk of death, and you intentionally disregarded that risk—the very definition of recklessness.
Utter disregard for human life occurs when it is not merely reasonably possible that your recklessness may cause a human death, but highly likely.
Imagine that you’re shooting at your tin can in the woods again, but this time you know there is a school on the other side of the thin stand of trees. Further, you can hear children in the playground between you and the school building, and even get glimpses of them through the trees. Despite this, you shoot at your can, anyway., with the same result that one of your bullets strikes and kills a student.
Now you’re not merely knowingly creating a risk of death and intentionally ignoring that risk, you simply have an utter disregard for the people you know are being placed in danger of dying by your actions.
In this case, the charges against Rittenhouse include the reckless homicide of Joseph Rosenbaum (Count 1), the reckless endangering of safety of Richard McGinnis (Count 2), and the reckless endangering of safety of “jump kick man” (Count 5). All of those counts are premised on first-degree recklessness, arguing that Rittenhouse was not merely reckless but showed an utter disregard for human life.
Self-Defense is a legal justification or privilege that relieves you of criminal liability for having used force upon another in specific circumstances. At Law of Self Defense we define those specific circumstances using what we refer to as the five elements of a claim of self-defense. These are Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. I’ll explain these briefly here. (Get your “Five Elements of Self-Defense Infographic” here.)
Innocence requires that the person claiming self-defense not have been the initial physical aggressor in the confrontation.
Imminence requires that the threat you were defending against was either in progress or immediately about to happen.
Proportionality requires that your defensive force be proportional to the force threatened against you, and particularly that deadly defensive force can be used only to stop a deadly force threat.
Avoidance asks whether you had a legal duty to retreat before using deadly force in self-defense—only 11 states impose such a generalized legal duty to retreat in cases of otherwise lawful self-defense, and Wisconsin is not one of those, so we can disregard the element of Avoidance for purposes of the Rittenhouse trial (except in the context of provocation, which I’ll come back to in a moment).
Reasonableness requires that the defender’s perceptions, decisions, and actions were both subjectively genuine believed by the defender, and that this belief was also objectively reasonable—that a reasonable and prudent person in the same circumstances would have shared that subjective belief.
These elements are cumulative, meaning that the claim of self-defense is valid only if all the required elements are present. It is the burden of the prosecution to disprove self-defense beyond a reasonable doubt, but he need not disprove beyond a reasonable doubt self-defense in its entirety, he need merely disprove beyond a reasonable doubt any single element of self-defense.
Accordingly, each of the required elements of a self-defense claim can be thought of as a target of attack for the prosecutor. If he can disprove any single required element—in Wisconsin the four elements of Innocence, Imminence, Proportionality, or Reasonableness—he will have defeated the legal defense of self-defense.
If the prosecutor cannot disprove any one of these elements beyond a reasonable doubt, however, then the underlying use of force is deemed to have been justified, and the defendant will have zero criminal liability for his use of force. That use of force is simply not a crime. The jury will be instructed that under those circumstances they must acquit the defendant of the use-of-force criminal charge in question.
Because an undefeated claim of self-defense results in an acquittal and zero legal liability for the defendant, self-defense is said to be a perfect defense.
Remarkably, after eight days of trial testimony the prosecution has introduced little if any substantive evidence that attacks any of the four required elements of self-defense under Wisconsin law, and certainly not anything like the evidence required to disprove any one of these elements beyond a reasonable doubt.
The self-defense jury instruction for Wisconsin is: 805 Privilege: Self-Defense: Force Intended or Likely to Cause Death or Great Bodily Harm
This instruction will be read to the jury.
There is a variant of self-defense recognized by many states, among which is Wisconsin. Whereas self-defense is a perfect defense that allows for an acquittal and zero legal liability, imperfect self-defense does not allow for an acquittal. Instead, imperfect self defense can only mitigate what would otherwise have qualified as a first degree intentional murder to some lesser killing charge—second degree intentional murder, manslaughter, first-degree reckless murder, and so forth.
Imperfect self-defense can be thought of as a claim of self-defense that’s almost complete, but not quite—just short of perfect.
Wisconsin law recognizes several flavors of imperfect self-defense that can mitigate a first degree intentional homicide to a lesser killing charge.
For example, imagine a defendant who used deadly force in self-defense. Per the element of Reasonableness, perfect self-defense requires the defendant had both a genuine subjective belief in the need to use deadly force in self-defense, and that this subjective belief was objectively reasonable.
Where the defendant has that genuine subjective belief, but that belief is objectively unreasonable, however, he has failed the element of Reasonableness, and therefore does not qualify for perfect self-defense.
If that lack of objective reasonableness is the only defect in his otherwise valid claim of self-defense, however, he can argue that what would otherwise have been deemed a first degree intentional homicide is mitigated to a second degree intentional homicide.
In this case, Rittenhouse is charged with the first degree intentional homicide of Anthony Huber. If the jury were to find that Rittenhouse had an otherwise valid self-defense justification for his shooting of Huber, except that his use of deadly defensive force was objectively unreasonable, they could acquit him of the charge of first degree intentional homicide and instead find him guilty of second degree intentional homicide.
The jury instruction that addresses this concept of imperfect self-defense under Wisconsin law is: 1016 First Degree Intentional Homicide: Self-Defense
This instruction will be read to the jury.
I mentioned earlier that 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.
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.
I noted earlier that over eight days of trial testimony the State had 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.
Instead, the State is putting all its chips on attacking Kyle’s claim of self-defense through the legal doctrine of provocation. If they can prove provocation beyond a reasonable doubt, Kyle becomes effectively ineligible to claim self-defense.
Specifically, the State is arguing that as Kyle approached the four cars in which Rosenbaum was concealed at the corner of the 63rd Street Car Source parking lot, Kyle raised his gun and pointed it at Joshua Ziminski—this is the why the State fought so hard to get the “unicorn” drone video and “enhanced” images into evidence, as purported evidence of this conduct by Kyle.
This pointing of the rifle, the State claims, provoked Rosenbaum into a use of force in defense of Zimkinski, and as a result of that act of provocation Kyle should be unable to justify his use of force upon Rosenbaum’s provoked attack as lawful self-defense.
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 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 jury instruction that addresses simple provocation under Wisconsin law is: 810 Privilege: Self-Defense: Retreat
This jury instruction will be read to the jury.
Provocation with Intent
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 must prove that malicious intent beyond a reasonable doubt.
The jury instruction that addresses provocation with intent under Wisconsin law is:
This jury instruction will be read to the jury.
Lesser Included Offenses
Many criminal offenses come in several degrees, as we’ve already seen with respect to recklessness coming in both a “standard” second-degree form and an “aggravated” first degree form where there is an utter disregard for human life. Between the two forms all the criminal elements are identical, except for the addition of utter disregard to first-degree recklessness.
If a defendant is charged with first degree recklessness, and the jury finds that all the elements of that crime have been proven beyond a reasonable doubt except for utter disregard for human life—well without utter disregard the defendant cannot be found guilty of first degree recklessness. He still, however, meets all the conditions for being found guilty of second-degree recklessness.
In such a case the crime of second degree recklessness is said to be a lesser included offense of first degree recklessness.
In this case, Rittenhouse is charged with several charges based on recklessness, all in the first degree claiming utter disregard for human life, including the shooting death of Rosenbaum, endangerment of McGinnis, and the endangerment of “jump kick man.”
To all these charges of recklessness Kyle has raised the legal defense of self-defense. For each charge, if the jury finds the state has failed to disprove any one element of self-defense beyond a reasonable doubt, the jury will be instructed to acquit Rittenhouse of that charge.
In other words, recklessness requires the creation of an unjustified risk of death, but if the death was the result of lawful self-defense the risk created was justified and therefore not a crime.
Of course, if self-defense is found to have been disproven beyond a reasonable doubt, then Rittenhouse will be found guilty of the charge.
But guilty to what degree? Both first and second degree recklessness require that Rittenhouse created an unjustified risk of death and ignored that risk. But first degree also requires utter disregard for human life.
If the jury is considering a charge of first degree reckless, and finds it has been proven with the exception of the element of utter disregard, they can acquit Rittenhouse of the first degree charge and instead find him guilty of the lesser included offense of second degree recklessness.
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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