Kyle Rittenhouse Trial-Day Ten Recap

Full of sound and fury signifying little, with apologies to the Bard, would be my summary of the jury instructions and the motions conference, which occurred yesterday in the Rittenhouse trial in the absence of the jury.  Many commentators were alarmed that the Judge allowed in a provocation instruction which strips the defendant of his right of self defense if he provoked the attack.  The Judge appeared not to think much of the State’s argument, but eventually allowed a provocation instruction.  Go here for a good analysis of this jury instruction and what the State is attempting to do.

I wish the provocation instruction were not going to be given, but I think it will do little harm to the defense.  As I have noted in other posts, I have always assumed that jurors pay little heed to jury instructions.  The more arcane the legal instruction the less attention which is paid.  Self defense is a simple concept and easy for jurors to grasp.  An argument of provocation is less easy to grasp, especially where there is no overt act, like starting a fight in a bar, for example.  Most judges will allow in most instructions if any argument from the facts of the case will support it, even if the connection is tenuous.  If the prosecution goes down the provocation instruction rabbit hole, I think they will only succeed in baffling and boring the jury, especially since provocation was established by none of their witnesses, while the defense has an easily understood self defense argument, with almost all the evidence in the case supporting it.  (The old Army maxim of KISS (Keep it Simple, Stupid) is almost always the best policy in regard to closing arguments with juries.)  We shall see.

I should also note that although the Judge said he was inclined to give a provocation instruction, he also indicated that if he thought the issue of provocation was adequately covered in the other instructions, he would not, so he may have kept the door open to not giving a provocation instruction, or rather two instructions, since there are two standard Wisconsin provocation instructions.

The Judge also allowed in some lesser included offenses.  Normally it is the defense that asks for lesser included offenses.  The State doing this is an admission on their part that the murder charges are likely going no place fast.

No mention of a motion for a directed verdict, so I can only assume that the defense did not decide to make such a motion,  which I think was a mistake.  Even if denied, it helps set up in the Judge’s mind how weak the State’s case is, something that can be essential if the jury were to convict and a Motion Non Obstante Veredicto has to be made to the Court, seeking the Judge to enter a verdict of Not Guilty instead of the jury’s verdict of Guilty.  NOV motions are rarely granted, but it is always wise to do what you can to help prepare the way if such a motion has to be made.

Trial will resume on Monday with the Judge reading the instructions to the jury, which should take around 45 minutes.  Then closing arguments.  Each side has 2.5 hours.  The State opens and closes, because the State has the burden of proof.  If the defense has nerve enough, and they decided not to make a closing argument after the State opens, the State does not get to close.  This can have a devastating impact on a prosecution because often the prosecution will reserve most of their time to responding to the arguments of the defense.  It is a gambling move, and I doubt we will see it on Monday, but the look on persecutor prosecutor Binger’s face if the defense did this would be absolutely priceless.