Tuesday, November 16, 2021

Rittenhouse Trial, Day Nine: Jury Instructions on Gun Charge make Conviction Unlikely!

Image from facebook, page taken down. Cropped, scaled, and green text added by Dean Weingarten.

Update: (the gun possession charges were dismissed by Judge Schroeder just before final arguments, on 15 November)

Early in the course of the prosecution of Kyle Rittenhouse in Kenosha, Wisconsin, the prosecution decided to charge Rittenhouse with possession of a dangerous weapon by a person under the age of 18, Wisconsin statute 948.60. Several commentators immediately noted the prosecution was misapplying the law. By the letter of the law, Rittenhouse fell under the exception in 948.60  3(c). From the statute:

(c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28.

Statute 941.28 applies to short barreled rifles and shotguns. It is a legal definition. The rifle Kyle Rittenhouse was carrying was not a short barreled rifle under the law. 

SS 29.304 only applies to people who are less than 16 years of age. SS 29.593 requires a person who is hunting to possess a valid hunter safety certificate.  Kyle Rittenhouse was 17 years old. Kyle Rittenhouse was not hunting.

The Rittenhouse defense team attempted to have the weapons charge dismissed at the initial hearing. Then Rittenhouse changed his defense team. 

The new defense team filed motions to have the weapons charge dismissed prior to the trial. During hearings on the jury instructions, Judge Schroeder was considering dismissing the charge, based on the defense motion. There was a later motion to re-consider, by the Defense, based on extensive research involving the legislative history of the law. 

Judge Schroeder did not dismiss the charge. He said he would wait until later to decide. On the first day of the Rittenhouse trial, Judge Schroeder said he would delay his decision further.

On November 9, more than a week into the trial, Judge Schroeder gives his decision. It is terse, at the very start of the Rittenhouse trial that day. He says: 

For reasons related in the brief which was filed by Mr. Kraus (one of the prosecutors), the motion for reconsideration on count six is denied.

Count six is the weapons charge. Judge Schroeder refused to dismiss the charge.

On the next day, Kyle Rittenhouse gives testimony. There is a brief exchange about the issue between DA Binger and Rittenhouse during extensive cross examination.

A 1:19 in this video, Kyle Rittenhouse is asked, by DA Binger, why he bought an AR15 instead of some other rifle or shotgun or pistol. From the video:

Why did you pick or want Dominick Black, to buy for you, an AR15, as opposed to a pistol a shotgun or some other type of rifle?


I cannot legally possess or carry a pistol because I am not 18. In Wisconsin, I believe its 18 in Wisconsin for a pistol. But with the law, with the rifle, I knew I could possess that rifle, I knew I couldn't buy it,  but I knew I could like, take it to the shooting range or possess it. And with shotguns, they didn't have any shotguns in stock. That was my original plan to get a shotgun for trapshooting. But there weren't any at that Ladysmith store, and I didn't want to go to Walmart and buy one.

DA Binger:

So you're understanding at that time, was that Wisconsin law prohibited you from having a pistol but you could have an AR15?

Kyle: Yes. 

After a bit more of back and forth between DA Binger and Kyle Rittenhouse, Kyle says officers in northern Wisconsin told him he could not carry a pistol, but could carry a rifle or shotgun.

DA Binger asks the judge to strike that testimony as hearsay. Judge Schroeder says, "you asked him". Then Judge Schroeder gives an explanation that only He is allowed to tell the jury what the law is. Not the defendant, not the prosecutor, not the defense. Then he gives this instruction: 

Judge Schroeder:

I will tell you, when I instruct you what the law of Wisconsin is pertaining to the possession of a firearm by a person under 18, and that will be the source of your knowledge.

Judge Schroeder, a little later:

It is quite complicated, hopefully it will sort out when I instruct you at the end.

After the prosecution and the defense have rested their cases, and all evidence has been submitted, Judge Schroeder schedules Friday, November 12, for the prosecution, the defense, and the Judge, to work out the jury instructions. He anticipates the instructions for charge six will be the most time consuming.

On the morning of November 12, there are some unanticipated motions by the prosecutor to add additional lesser charges. This is allowed under the law if elements of the lesser charge can be found to be relevant, independent of the greater charge. Then they start considering the weapons possession charge, charge 6. 

The prosecutors spring a surprise. 

They say, ordinary jury instructions will do. They did not prepare any special instructions, because the defense never presented any evidence of a weapons charge defense! Therefore the defense has no say in jury instructions in the matter! 

Ordinary Wisconsin jury instructions for the charge do not mention any exceptions to the law.

Judge Schroeder says, is that true?, directed at the defense. 

Defense attorney Corey Chirafisi, responds. He says, we did bring up the defense on that issue! He asked a detective if he thought the rifle barrel was of legal length. Later, he says they brought up the age issue of Kyle Rittenhouse being under age 18 but more than 16.

No one seems to remember that Kyle himself brought up the affirmative defense (I would argue it is an exception in the law) in his own testimony, and the judge remarked on it!

Judge Schroeder tells everyone, ordinary people are expected to be able to read the law and understand what it means. 

Defense Attorney Chirafisi reminds Judge Schroeder of the motion to reconsider, and of all the legislative history and research.  He expounds on how the exception in 3(c) applies to Kyle. The only way it does not apply, is if he violates the short barreled rifle statute or both the hunting certificate statute and 29.304, the age restriction statute. As he is 17, he cannot violate 29.304, which is all about age restrictions.

Judge Schroeder states he denied the motion to reconsider because the charge was properly made by the prosecutors office. Therefore, he could not dismiss it out of hand.

Judge Schroeder waxes eloquent, in the video, for some time, on how important it is that ordinary citizens be able to understand the law.  Judge Schroeder in the video, about 1:16:

I have been wrestling with this, and I know there's  a lot brighter  judges in this world  than me; I have been wrestling with this  statue, I hate to count the hours I have put into it.  And, I am still trying to figure out what it says, what is prohibited?  Now, I have the good fortune to have some experience, and a liberal education. How is the ordinary person supposed to acquaint themselves with what this law says.

In the ensuing exchange, DA Kraus says, speaking of a part of SS 648:60: 

2(a) is very clear.

Judge Schroeder says, responding to DA Kraus stating 948.60 "2(a) is very clear": 

I wish it were to me.  

Then Judge Schroeder makes his decision. 

My intention is to instruct on what he (Defense Attorney Chriafisi) has submitted, without page numbers, I might add.  

Looks like the third page, which starts statutory definition of crime, down to where it says "or". 

So it will be "exception, the state must prove", etc. Then number 1, the defendant was under 18, number 2 and that the dangerous weapon, was either a rifle, etc. And you can search the evidence to find out if you can prove beyond a reasonable doubt that is true, so that it can go to the jury. 

Alright, now, is that it?

Jury instructions are held fairly tight to the vest, so to speak, so even here, Judge Schroeder is not allowing the public to see the entire jury instructions for charge 6, until they are given to the jury, presumably Monday morning the November 15, 2021.

This is a major win for the defense team. It is not particularly surprising, because Judge Schroeder has been hinting at it for months. In addition, it is precisely the letter of the law. 

This is very good news for Kyle Rittenhouse, but it is superb, supremely excellent news for his friend, Dominick Black.

If Kyle is convicted of the gun possession charge, which now seems very unlikely, Kyle has a penalty of a Class A misdemeanor, which could be a fine of up to $10,000, 9 months in jail, or both. 

If Kyle is convicted of the gun possession charge, Dominick Black can be convicted of two felonies, with potential penalties of up to six years in prison for each.

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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