Editor’s note: The views expressed in the following article are that of attorney Anthony L. DeWitt and do not reflect an official stance from the USCCA.
If you watched any part of the Kyle Rittenhouse trial, you know there were some tremendous takeaways for concealed carriers. What follows is my analysis of the six most important lessons as a legal professional.
1. You Can Be in the Right and Still Be Wrong
Kyle Rittenhouse was attacked by four different people on the night he had to shoot to save his life. His trial illustrates quite well how a person can have good intentions yet still wind up in a heap of trouble. Rittenhouse went to Kenosha, Wisconsin, expecting to protect property and potentially help injured people. He gave up a bulletproof vest to a friend. Yet, a prosecutor described him as chasing down a protester for the sole purpose of killing him. Phrasing such as this does not happen by accident.
Attorney Thomas Binger told jurors they would hear evidence Rittenhouse chased down Joseph Rosenbaum, knowing the video showed Rittenhouse running away from Rosenbaum. He was relying on his ability to set the narrative and have the jury see what he wanted them to see. As someone famous once said, a lie can get around the world twice while the truth is still putting on its shoes. Binger knew that video would show Rittenhouse running. Rittenhouse was running away, but Binger told jurors he was chasing Rosenbaum. He did this with the expectation that when the jury saw Rittenhouse running, the members would reach the erroneous conclusion he was chasing rather than being chased.
The prosecution closed with the argument that Kyle Rittenhouse should have taken a beating instead of killing someone. That’s a ridiculous premise, but a prosecutor’s main objective is to win.
Everything you do in a self-defense situation can be framed negatively, even running away. That’s why immediate legal help is so important.
2. Never Expect the Media to Be Fair
Many who watched the trial on YouTube with the benefit of lawyers alongside to point out the prosecution’s strategic and tactical missteps understood the trial was not going well for the state. But anyone watching a major media outlet was convinced Rittenhouse was headed for maximum security at the state prison. The media only covered testimony that was good for the prosecution.
While not all media outlets did so, the vast majority simply tailored coverage to predict a conviction — even knowing one was unlikely given the testimony.
Rosenbaum lunged for Rittenhouse’s rifle and had said he was going to kill him. Rittenhouse fired off four rapid shots in less than 3/4 of a second. It was clear self-defense. However, the media only reported on people like Gaige Grosskreutz, saying “I thought I was going to die.” Many outlets did not report on his later admission that Grosskreutz wasn’t shot until he pointed his gun at Rittenhouse’s head. The media has the ability to manipulate the truth by what they omit as much as by what they choose to cover.
3. Who You Retain for a Lawyer Matters
Kyle Rittenhouse, by his account, was treated very badly by his original lawyers. They left him in jail instead of bailing him out. In fact, there are allegations they used Rittenhouse to feather their own nests. His lawyers made statements and admissions that would later be used against Rittenhouse and allegedly never advanced the goal of getting him free.
Actual defense work began when Mark Richards and Corey Chirafisi got involved. Witnesses were interviewed, statements taken, video reviewed and trial plans made. Juror consultants were brought in to do mock trials and take note of demographic information. This helped find a fair jury for Rittenhouse. (It is not unusual for attorneys to rely on juror consultants to help select an impartial jury when dealing with high-profile cases that provoke strong sentiments, such as in Rittenhouse’s case.) The lawyers did not seek to make the case about a cause or about themselves. They worked for Rittenhouse and prepared him to testify.
There are thousands of lawyers who would be excellent at trying a breach of contract case or a slip and fall lawsuit. However, they shouldn’t be within 1,000 miles of a criminal courtroom. While trial skills are, to a certain extent, transferrable, understanding how firearms work and knowing the law of self-defense with its many twists and exceptions are key in winning an acquittal in a self-defense situation. Anyone who watched the trial cringed when Binger began talking about exploding bullets and pointed the rifle directly at the jury. If a defense lawyer had done any of that, the case would likely have been over before it began.
Your lawyer should know more about how your firearms work, what happened at the scene and what the key facts are than the prosecution does. He or she will have to question on the witness stand investigators who are trained not to give an inch under cross-examination. Lawyers will need to be at the top of their games to do this. Who you hire for your lawyer matters — a lot!
4. A Case That Takes a Year to Get to Trial Takes a Great Deal of Money
The defense had to hire an expert witness in this case. When my firm hires a medical expert for a medical negligence case, we often expect to pay $5,000 just to get a report. When someone’s life is on the line and the question is the reasonable use of force, those experts do not come cheap. An expert will have an extensive background in the sciences involved, will have testified previously, will be well-spoken and be able to withstand cross-examination. You don’t find those folks standing on the street corner with a sign that says, “will testify for food.” You find them in universities or the private sector, where they are already making a six-figure salary. Asking them to take days, sometimes as long as a week to sit through a trial means paying them a sizeable fee.
As well, the jury consultants, pollsters, data analysts, forensic video analysts and court reporters all have to be paid. These people are also paid well for what they do. When your life is on the line and Brutus is coming at you with a machete, you don’t want ammunition you bought at the Dollar Store in your firearm. Likewise, when your life is on the line, you want the very best people proving your innocence. And that kind of help costs money.
5. If It’s Funny and Irreverent, Do Not Wear It or Say It
At trial, we were treated to the fact that Rittenhouse’s TikTok handle was “Four Doors, More Whores.” To a 17-year-old boy in high school whose peer group has a higher testosterone level than IQ, that kind of humor is clever and genuinely funny. To a group of women on a jury, the idea that someone may have referred to a young lady in that way could well be shocking.
Similarly, we were able to see a photo of Rittenhouse, taken after he was able to post bail, in a T-shirt that read “FREE AS F***.” The photo was taken and found its way to the prosecutor. Rittenhouse had to answer for that on the stand.
Signs that say “keep honking, I’m reloading” are funny. But they say something about the person who puts that kind of bumper sticker on his or her car. And prosecutors are always happy to make a person look bad for no other reason than to secure a conviction. Rittenhouse’s shirt had no bearing whatsoever on his guilt or innocence. Neither did his TikTok handle. But they made Rittenhouse squirm on the witness stand.
6. Stay Home, Be a Good Witness
Probably the most important lesson to be learned from Rittenhouse’s acquittal is that it never needed to happen. In much the same way that many folks are killed in their own front yards by going out to investigate strange noises instead of alerting the police, Rittenhouse should never have been anywhere near Kenosha, Wisconsin, on August 25, 2020. He should never have agreed to help protect property. The adults in Rittenhouse’s life failed him by failing to keep him at home.
Riots where police officers abdicate their duty to the public and let miscreants burn cars, houses and gas stations are awful reminders that who you elect to positions of trust in your county is important. But there is a big difference between protecting your dwelling from people intent on taking your life and protecting someone’s car inventory. Everyone understands the former. Apparently 12 good people understood the latter as well and gave Rittenhouse the acquittal the evidence demanded. But that result is less likely to occur in states like Illinois, New York, California or Massachusetts. And that’s the real danger in generalizing the Rittenhouse case.