EXPLAINER: Could jury weigh lesser charges for Rittenhouse?
Prosecutors in Kyle Rittenhouse's murder trial could ask the jury to consider lesser charges when it gets the case, a move that could secure a conviction for some crime but take a possible life sentence off the table.
Kenosha County Assistant District Attorney Thomas Binger has struggled to counter Rittenhouse's self-defense arguments during the Illinois man's trial, raising questions about whether his office overcharged Rittenhouse. Daniel Adams, a former Milwaukee County assistant district attorney who isn't involved in the trial, described Binger's case as “incredibly underwhelming.”
“He's got nothing,” Adams said. “I just don't understand it. What are we doing here? We're all kind of scratching our heads.”
Rittenhouse shot and killed Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreutz during an August 2020 protest against police brutality in Kenosha, a city in southeastern Wisconsin that's not far from Rittenhouse's hometown of Antioch, Illinois. Rittenhouse was 17 years old at the time.
Binger's office, led by Democratic District Attorney Michael Graveley, charged Rittenhouse with multiple counts less than 48 hours after the shootings.
The most serious charges Rittenhouse faces are first-degree intentional homicide, which carries a mandatory life sentence, and attempted first-degree intentional homicide and first-degree reckless homicide, which are both punishable by up to 60 years in prison. He is also charged with first-degree reckless endangerment, which carries a maximum prison term of 12 years and requires prosecutors to show that Rittenhouse put someone in harm's way by showing an utter disregard for life.
Rittenhouse testified that he fired in self-defense after the three men attacked him. If jurors find that he sincerely believed his life was in danger when he pulled the trigger and any reasonable person in his situation needed to use deadly force, they must acquit him of the most serious charges.
One lesser charge Rittenhouse already faces is possession of a dangerous weapon by a person under 18, which is punishable by up to nine months in prison. Prosecutors took pains to establish evidence for the charge, which was part of their argument that Rittenhouse wasn't legally allowed to have the gun and inserted himself in a situation where he didn't belong and wasn't qualified to be.
Binger spent the first seven days of Rittenhouse's trial trying to portray him as a wide-eyed, inexperienced kid who shouldn't have been on the streets that night and who overreacted when he fired.
But multiple witnesses have described Rosenbaum as angry and out of control that night, saying they heard him threaten to kill Rittenhouse if he got him alone and challenging other armed people at the protest to shoot him. Video shows Rosenbaum chasing Rittenhouse across a parking lot before Rittenhouse shoots him.
Bystander video of Huber running up to Rittenhouse and hitting him in the head with a skateboard as he apparently reaches for Rittenhouse's gun has also hurt Binger's case.
Binger called Grosskreutz to the stand on Monday. Grosskreutz testified he thought Rittenhouse was going to kill him, but on cross-examination he acknowledged that he ran up close to Rittenhouse and pointed a pistol at him a split-second after Rittenhouse shot Huber.
“That's a pretty clear case of self-defense,” said Paul Bucher, a former Waukesha County district attorney who isn't involved in the case. “When he has a handgun (and) was in the process of pointing it, that would give me great pause as to whether I'd even charge that.”
Rittenhouse testified Wednesday that Rosenbaum threatened to kill him twice, that Huber hit him with the skateboard twice before he shot him, and that Grosskreutz pointed his pistol at him after first raising his hands in a “surrender” gesture.
Rittenhouse said he did what he had to do to protect himself. He cried as he began to describe how Rosenbaum chased him down.
Prosecutors or defense attorneys would have to ask Judge Bruce Schroeder to inform jurors as they begin deliberations that they could consider finding Rittenhouse guilty of lesser charges rather than the original counts. The judge would then have to weigh whether the evidence the jury had seen supports those lesser charges before instructing the jury to consider them.
Adams said Binger will “100%” ask Schroeder to include lesser charges in the jury instructions, most likely second-degree versions of the homicide and endangerment counts.
Second-degree homicide charges could apply if jurors determined that Rittenhouse sincerely believed his life was in danger but used an unreasonable amount of force, University of Wisconsin-Madison criminal law professor Cecelia Klingele said. Second-degree reckless endangerment could apply if jurors found that he put someone in harm's way but did so without showing utter disregard for human life, she said.
Second-degree intentional homicide carries a maximum 60 years in prison. The maximum sentence for second-degree attempted intentional homicide is 30 years. Second-degree reckless endangerment, meanwhile, carries a maximum prison term of 10 years.
A life sentence wouldn't be an option if prosecutors sought convictions on lesser charges, but they would give jurors the flexibility to convict him of something, said Adams.
“It gives the jury negotiation room,” he said. “They think something bad happened but they're not convinced the level of force was necessary. And that gives prosecutors two kicks at the cat.”
Bucher said Rittenhouse's team also could ask jurors to consider second-degree versions of the charges in hopes of avoiding a life sentence.
But Binger has already “muddled” the case with multiple charges and asking jurors to consider even more counts risks confusing jurors further, Bucher said.
“As a prosecutor, you charge more counts than necessary because you don't have a strong case,” he said. “You know the old saying, throw as much as you can against the wall and see what sticks. It's confusing for me. Imagine what it's like for the jury. You almost need a statute book to go through all this.”