Rittenhouse, Competence, and Crusade

A contrast in styles.

An Associated Press postmortem on the Kyle Rittenhouse trial points to something I hadn’t previously understood from my periodic attention to the case: a change in the defense team and two conflicting strategies.

Soon after a Wisconsin jury acquitted Kyle Rittenhouse of all charges against him, defense attorney Mark Richards took a swipe at his predecessors, telling reporters that their tactics — leaning into Rittenhouse’s portrayal as a rallying point for the right to carry weapons and defend oneself — were not his.

“I was hired by the two first lawyers. I’m not going to use their names,” Richards said Friday. “They wanted to use Kyle for a cause and something that I think was inappropriate — and I don’t represent causes. I represent clients.”

The angry rhetoric surrounding Rittenhouse’s case didn’t subside with the change in attorneys. But Richards, beaming as he talked to reporters outside his Racine law office after the acquittal, said that to him, the only thing that mattered was “whether he was found not guilty or not.”

Along with co-counsel Corey Chirafisi, he spent the months leading up to the case in virtual silence — “I don’t do interviews,” he said brusquely to one emailed request in December — and sought at trial to minimize the polarizing questions about Second Amendment rights.

This tells us very little about Rittenhouse but a lot about the circus that surrounded the case. Rittenhouse became an instant hero to many on the right after shooting three white Black Lives Matter protestors, killing two of them. It helped him raise a lot of money for his defense. But his trial defense was ultimately led by experienced, professional attorneys focused on convincing a jury that their client acted in self-defense, not promoting a political agenda.

It was a strategy that sometimes conflicted with other forces surrounding Rittenhouse. Fox News had a camera crew embedded with Rittenhouse at certain points, including before and after the verdict, gathering material for a documentary marketed as a “Tucker Carlson Original.” Carlson tweeted a promo for the documentary to air in December, along with teasing an exclusive interview with Rittenhouse to air Monday night.

The crew sometimes sat in on defense meetings. Richards told The Associated Press that he opposed it as inappropriate and said he tossed the crew out several times. He said it was arranged by those raising money for Rittenhouse.

“It was not approved by me, but I’m not always in control,” he said. “I think it detracted from what we were trying to do, and that was obviously to get Kyle found not guilty.”

So, again, we see a contrast between the agenda of outsiders and the professional competence of the man charged with Rittenhouse’s defense. Granted that Rittenhouse likely couldn’t have afforded Richards’ services without the circus, Richards did him a giant service by minimizing said circus to the best of his ability.

It decidedly did not start out that way.

Regardless of what was happening behind the scenes, the strategy from Richards and Chirafisi in court was clear: get the jury to regard Rittenhouse as a scared teenager who shot to save his life.

They repeatedly focused on the two minutes, 55 seconds in which the shootings unfolded — the critical moments in which Rittenhouse, then 17, said he felt a threat and pulled the trigger.

“These guys have a client who is a human being … that’s what they’re rightly focused on,” said Dean Strang, a defense attorney and professor at Loyola University Chicago School of Law. Strang, who spoke to the AP before Friday’s verdict and who wasn’t connected to the case, said Richards and Chirafisi see Rittenhouse “as an 18-year-old kid who landed in a whole lot of trouble, more than he could handle.”

In the days after the shootings, Rittenhouse — who brought an AR-style rifle to a protest, saying he was protecting a stranger’s property — was initially represented by attorneys John Pierce and Lin Wood, who painted Rittenhouse as a defender of liberty and a patriot who was exercising his right to bear arms. Pierce tweeted a video of Rittenhouse speaking by phone from a jail in Illinois, where he’s from, thanking supporters. A video released by a group tied to his legal team said Rittenhouse was being “sacrificed by politicians” whose “end game” was to stop the “constitutional right of all citizens to defend our communities.”

Rivers of money flowed to a legal defense fund — more than enough for Rittenhouse to post his $2 million bail — but Wood left the case and became active in pressing the false claim that Donald Trump had won the presidential election. Pierce left the criminal case in December after prosecutors said he shouldn’t be allowed to raise money for Rittenhouse, but he stayed on the civil side of things until Rittenhouse said he fired him in February.

On Friday, Richards recounted his first meeting with Rittenhouse: “I told him when I first met him, if he’s looking for somebody to go off on a crusade, I wasn’t his lawyer.”

Now, I suppose, it’s possible that a mostly-white Wisconsin jury would have been amenable to a 2nd Amendment crusade. But that’s a hell of a lot more risky strategy than the one Richards pursued: arguing the law which, like it or not, was on his client’s side.

They came to court prepared. Richards used several videos during his opening statement — over the objection of prosecutors who did not seize on that opportunity.

They argued vehemently for a mistrial when they felt prosecutors were acting in bad faith, and appeared to outmaneuver prosecutors in getting a gun charge dismissed.

That actually undersells what happened. While I commend the linked AP story to you, the bottom line is that, while most of us just naturally assumed the weapons charge was a slam dunk, it actually wasn’t illegal for a 17-year-old to openly carry an AR-15 in Wisconsin and he shouldn’t have been charged with a crime to begin with. It turns out, that minors are only prohibited from carry long guns with barrels shorter than 16 inches.

As to what most of us thought was just a bizarre move,

And they made a careful calculation with perhaps their biggest decision: whether Rittenhouse should take the stand, risking a potentially damaging cross-examination. Richards said they tested their case against a pair of mock juries and found it was “substantially better” with Rittenhouse testifying.

“It wasn’t a close call,” he said.

Again, Rittenhouse’s amateur hour original lawyers would not have engaged in this sort of preparation. And, to return to a theme, indigent clients wouldn’t have the luxury of this level of defense, as public defenders, even if they had the expertise and foresight to set up these focus groups, wouldn’t have the time or money to do it.

Richards is a courtroom veteran and was a prosecutor in Racine and Kenosha counties in the late 1980s before he opened his own firm in 1990 that specializes in criminal defense. Chirafisi is also a former prosecutor and has been practicing law for more than 20 years. His law firm is in Madison.

The attorneys repeatedly pushed back against prosecutors’ notion that Rittenhouse was an outsider drawn to Kenosha by the chaos, noting that although he lived in nearby Antioch, Illinois, his father lived in Kenosha and Rittenhouse worked in Kenosha County as a lifeguard. Richards shared his own distress at watching the violence in Kenosha from his home in Racine after the shooting of Jacob Blake, a Black man, by a white police officer.

Here, the media narratives did the public a huge disservice. I frequently repeated the “crossed state lines” mantra, completely unaware that the shootings took place 20 miles from Rittenhouse’s home and in a community he was part of.

Richards and Chirafisi split the duties at trial, with Richards doing the opening statement and closing argument and Chirafisi handling much of the witness testimony. Richards said the two argued over who would question Gaige Grosskreutz, the man who had a gun in his hand when Rittenhouse shot and wounded him.

Richards said Chirafisi won — and did a better job than he would have. Chirafisi got Grosskreutz to admit that he had pointed his gun at Rittenhouse.

“It wasn’t until you pointed your gun at him, advanced on him … that he fired, right?” Chirafisi asked.

“Correct,” Grosskreutz replied. Under follow-up questioning from the prosecutor, Grosskreutz said he never meant to point his weapon at Rittenhouse.

Many commenters have pointed to a biased judge and incompetent prosecutors. But, in hindsight, it simply seems that the facts were on Rittenhouse’s side. As outrageous as his actions that night were, they were perfectly legal. My strong suspicion is that the overcharging that I’ve referred to many times in my commentary on this case was a function of political pressure rather than an honest judgment that they had a good case. But, again, a less-well-financed, less-well-represented defendant might well have been found guilty or coerced into pleading guilty to avoid maximum sentencing.

FILED UNDER: Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    As outrageous as his actions that night were, they were perfectly legal.

    It seems to me the lesson is clear. If you see someone carrying a gun, shoot first. Carry a concealed weapon and put a ballet in the head of anyone you see with an open carry. Plead self defense because you feared for your life.

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  2. Mikey says:

    @MarkedMan: Indeed. Gaige Grosskreutz’s mistake was not firing.

    put a ballet in the head of anyone you see with an open carry

    That might actually solve all the problems…lol

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  3. Sleeping Dog says:

    @MarkedMan:

    By spring the supremes will likely let any doofus carry a gun(s) and strip the states of a tool to provide safety to their communities. From there it is not hard to see a dystopian path where citizens need to take into account the potential random violence when planning their day. Even if the police performed as our most fervent hopes desired, it will be beyond their ability to minimize the risk.

    I was in Mpls a few weeks ago for a funeral and stayed with a friend. On a Friday afternoon and evening, there were 4 armed, car jackings w/in 10 blocks of his house. Needless to say, that after seeing that in the morning paper Saturday, I checked to make sure there was no one around or idling in cars when I went out to mine. Unsettling. And then there was the random gunfire…

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  4. drj says:

    @MarkedMan:

    Plead self defense because you feared for your life.

    The end goal is to be able to shoot certain people without even having to profess fear (which is quite unmanly, after all).

    See:

    Rittenhouse became an instant hero to many on the right after shooting three white Black Lives Matter protestors

    Rittenhouse […] was initially represented by attorneys John Pierce and Lin Wood, who painted Rittenhouse as a defender of liberty and a patriot who was exercising his right to bear arms.

    And this:

    As outrageous as his actions that night were, they were perfectly legal.

    …shows the amount of leeway the legal system already provides to people who might take a chance on committing violence against perceived political enemies.

    Riitenhouse may have had competent counsel, but his acquittal will be seen as an encouragement to commit similar actions.

    The GOP will even give you a job.

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  5. Mikey says:

    Contrast all the due process and stellar legal representation Rittenhouse got with the treatment given Michael Reinoehl, who shot a far-right protester in Portland.

    ‘Straight to Gunshots’: How a U.S. Task Force Killed an Antifa Activist

    On Sept. 3, about 120 miles north of Portland, Mr. Reinoehl was getting into his Volkswagen station wagon when a pair of unmarked sport utility vehicles roared through the quiet streets, screeching to a halt just in front of his bumper. Members of a U.S. Marshals task force jumped out and unleashed a hail of bullets that shattered windows, whizzed past bystanders and left Mr. Reinoehl dead in the street.

    Attorney General William P. Barr trumpeted the operation as a “significant accomplishment” that removed a “violent agitator.” The officers had opened fire, he said, when Mr. Reinoehl “attempted to escape arrest” and “produced a firearm” during the encounter. But a reconstruction of what happened that night, based on the accounts of people who witnessed the confrontation and the preliminary findings of investigators, produces a much different picture — one that raises questions about whether law enforcement officers made any serious attempt to arrest Mr. Reinoehl before killing him.

    22 witnesses say there was no attempt to arrest him at all.

    President Trump, who has described the racial justice protests that have roiled the nation as the work of lawless criminals, praised the operation.

    “This guy was a violent criminal, and the U.S. Marshals killed him,” the president told Fox News. “And I will tell you something, that’s the way it has to be. There has to be retribution when you have crime like this.”

    Retribution. Not an arrest, not a trial, not a scintilla of the due process the Constitution supposedly guarantees. Just an extra-judicial execution.

    Reinoehl claimed he fired in self-defense when he killed the far-right protester. Maybe he did, maybe he didn’t, but we’ll never see it decided in court because the same people who hold up Kyle Rittenhouse as a hero just smiled and nodded when the worst President we’ve ever had said “retribution.”

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  6. James Joyner says:

    @Mikey: This seems incredibly tangential to the discussion at hand. That police frequently pose more danger to society than the criminals really has nothing to do with how Rittenhouse’s defense attorneys managed a completely different sort of case.

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  7. Mikey says:

    @James Joyner:

    This seems incredibly tangential to the discussion at hand.

    I suppose it would be better-placed in the open thread rather than here. I was just struck by the similarities in the circumstances of the shootings but the differences in how the two men were treated.

    I can “move” (i. e. copy-paste) it over to the open thread, feel free to pull it down from this one.

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  8. JKB says:

    The charges were posted within hours of the shooting. Long before any investigation could be reasonably conducted. That locked the prosecutors in early with threat of BLM/Antifa/MSM condemnation if the charges were amend down or dismissed for obvious self defense.

    The real blow was, in open court, the defense showed that the prosecutor didn’t even know the law in regards to the gun charge. Nor had they actually measured the barrel length. “Short-barrel rifle” has a specific meaning in the law and put the rifle in the realm of federal firearms licensing. Most states as a matter of form deny ownership to minors.

    One thing likely intentionally overlooked, is that state and federal law prevented Kyle from possessing a handgun or carrying it concealed. Open rifle carry was the only way he could have a firearm for self defense, which proved necessary to save his life.

    Independent journalist have characterized Kenosha on the 3rd night of rioting as a “war zone” and it was similarly described in a New York Times article written at the time but withheld from publication until after the presidential election.

    As for poor defendants being able to afford good representation, we should not forget GoFundMe and other popular crowd funding sites shutdown efforts to raise money for Kyle’s defense. And a Norfolk VA police officer who contributed to Kyle’s defense was fired from his job, though is now demanding reinstatement by the corrupt, outside-influenced, politically motivated police chief. It has not gone unnoticed the Democrats, up to Kamala Harris, will work to secure bail and defense funds for rioters and looters, but seek to interfere with those they disfavor from receiving donations for their defense.

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  9. HarvardLaw92 says:

    @Mikey:

    What similarities? Reinoehl (who has an interesting past which is being left out of this narrative and seems pretty clearly to have been mentally ill to some degree) laid in wait in a premeditated fashion, ambushed Danielson, then fled in an attempt to avoid prosecution. Rittenhouse responded to active threats by attempting to flee from them, acted in force when finally denied the ability to flee further, then immediately attempted to turn himself in to police officers. The two scenarios couldn’t really be more different. Maybe you’re layering your politics onto them?

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  10. HarvardLaw92 says:

    @JKB:

    Not really. It’s pretty standard practice for prosecutors to aim for the highest possible level of offense which is marginally supported by the facts in seeking indictments / proffering charges. Doing so both allows them the latitude necessary to motivate defendants to plea bargain as well as putting lesser included charges that would otherwise potentially be taken off of the table with a lower level of offense onto the table. They didn’t err in charging at all. They did precisely what they should have done in that regard. Aside from some bonehead procedural missteps, the facts simply supported Rittenhouse’s self defense assertion and there wasn’t much in the way of argument available to them with respect to undermining it.

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  11. Tlaloc says:

    Rittenhouse wasn’t a bystander caught in a bad situation. He saw black people protesting for their lives, grabbed a gun, and decided to go kill them.

    But, like OJ, he got away with it.

    Hopefully his actions follow him the rest of his short and miserable life.

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  12. Tlaloc says:

    @HarvardLaw92:
    You leave out the part where Rittenhouse chose to go into a dangerous situation, armed, where he had no stake except his clear intent to kill. He was only there because he wanted to shoot people for being black and daring to protest. He ran because he was out numbered and only intended to fight the helpless. He’s the worst kind of coward, bully, and psychopath.

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  13. Mikey says:

    @HarvardLaw92: Apparently I went a little too “meta” for the point I was trying to make. Mea culpa.

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  14. HarvardLaw92 says:

    @Tlaloc:

    Speaking of layering politics onto the facts… I don’t see any reason to respond any further to that.

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  15. HarvardLaw92 says:

    @Mikey:

    No worries. There are legitimate concerns about how the last act of that Reinoehl scenario played out IMO, and they should be investigated. I just didn’t see any basis for equating the two situations. Speaking frankly, Reinoehl is a better argument for expanded gun control legislation than Rittenhouse could possibly be.

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  16. steve says:

    While it is not possible to know what Rittenhouse was thinking it is possible to know that you generally cannot become policy officer until you are 21. You cant become a security guard until age 18 and generally not an armed one until age 21. In Wisconsin you need 36 hours of firearms training if you are going to be an armed security guard. So absent the age and maturity we expect for someone carrying a gun when dealing with people (not hunting or target shooting) and no training he decided to go out by himself into an angry mob. What was his plan other than shooting someone if he ran into problems?

    Unfortunately our laws as they stand allow someone to something as stupid, irresponsible and reckless as this, but it is legal. We really need a law to cover something like this but not likely we get one. The gun advocates want it stacked in their favor so that if they start something or take a gun into an inappropriate situation it will be legal for them to shoot people.

    Steve

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  17. Mikey says:

    @HarvardLaw92:

    I just didn’t see any basis for equating the two situations.

    I understand, certainly. I guess I just saw them in the overall context–both shootings occurred during BLM demonstrations, only a couple days apart, the fact both men claimed self-defense (although only one got to test his claim in court), both initially fled the scene–but how differently they ended up. I mean, sure, Reinoehl took off, but they knew where he was for several days. He wasn’t posing any danger as he walked to his car eating gummy worms (according to a neighbor who witnessed the incident). Why not just arrest him?

    It just looks a whole lot like in law enforcement’s eyes Rittenhouse shot the “right” kind of people and Reinoehl the “wrong” kind, and the latter got some Presidentially-endorsed “retribution.”

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  18. Hal_10000 says:

    One note on the judge: Slate actually interviewed local attorneys and they said this is the way he usually rolls. He frequently sides with the defense and does not allow alleged victims to be called victims. So he’s consistent on that part. And we frankly need more judges who side with the defense.

    My problem is not that Rittenhouse was acquitted. He should have been. My problem is that the vast majority of people don’t get anywhere near that competent a defense. In fact, most just plead out.

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  19. MikeSJ says:

    @Tlaloc:
    FYI the people Rittenhouse killed were white. Just saying…

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  20. Gustopher says:

    @MikeSJ:

    FYI the people Rittenhouse killed were white. Just saying…

    So, you’re saying they’re race traitors? Because that’s what a lot of Rittenhouse’s new Proud Boy friends are saying…

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  21. Dude Kembro says:

    As outrageous as his actions that night were, they were perfectly legal.

    Perfectly legal if you’re a white boy in Amerikkka. It was “perfectly legal” for black Tamir Rice to be minding his business playing with a toy gun, and police killed him without consequence. Perfectly legal for black John Crawford to be shopping for a toy gun, and police killed him without consequence too.

    If it were turban-headed, brown-skinned Muslim Omar Abdulhouse who was on video saying “Bro, I wish I had my f–g AR, I’d go shoot them,” and then showed up at a Stop the Steal protest menacing conservatives (assuming he’d have managed to not be killed on the spot by cops) and everything else played out exactly the same, Abdulhouse would be headed to prison right now for murder + terrorism.

    And the same white Americans rationalizing Rittenhouse’s actions would be condemning the threat he posed and hailing his victims for their heroic “perfectly legal” attempts to disarm and defend themselves and others from a dangerous terrorist.

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  22. Dudley Sharp says:

    @MarkedMan:

    Boy, how you got that lesson is bizarre.

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  23. Dudley Sharp says:

    James:

    Nice review and comments.

    Helps to have video.

    Evidently, the wounded person, totally, changed his story because of the video.

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  24. Dudley Sharp says:

    @HarvardLaw92:

    Excellent summation. Thank you.

    ReplyReply

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