I’m writing this blog on Wednesday, November 10th at 14:43. The Kyle Rittenhouse testimony has just concluded. Normally I tend to write these things towards the end of the week and pray that nothing major happens over the next few days that would make this blog moot. That clearly may happen in this case. The Judge ended today’s session by doing a quick calendar check and it would appear that the case is going to be handed over to the jury on Tuesday.
Based on what I saw today, the jury should be in deliberations for no more than 15 minutes before rendering a “not guilty” verdict.
I have tangentially kept tabs of this case throughout the trial, but have not been one hundred percent focused on it until today.
Today was different.
Kyle Rittenhouse took the stand in his own defense.
This is an extremely dangerous gambit for defense counsel to make. If their client wants to testify, there is nothing they can do about it. They can’t veto the wishes of their client. They can strongly admonish the client not to do it though.
As a general principle, not testifying is the best course of action. The Major and I were discussing this during the testimony and he was appalled that Rittenhouse was on the stand to begin with.
“The State has failed to prove its case! This should be a directed verdict!!! Why have Rittenhouse expose himself and give the State ammunition on cross?!?”
Normally I would completely agree with the Major.
This case is a little different, and I believe that defense counsel is playing a much more nuanced strategic game that ultimately extends beyond the verdict.
Rittenhouse needed to testify for two reasons:
First, he needed to humanize himself in front of the jury. He is eminently human and clearly was not in Kenosha to cause harm to anyone. Frankly, the jury had already seen this. The prosecution witnesses, almost to a person, ultimately turned and became defense witnesses, much the same way the prosecution witnesses turned in the Zimmerman Trial. Along with this, the villain who needed to be exposed was the prosecutor himself. Under cross-examination of Rittenhouse, the prosecutor did just that, going so far as to receive a blistering admonishment from the judge for attempting to introduce evidence already deemed inadmissible, as well as wandering into Constitutional violations of Rittenhouse by attempting to question, or at least call attention to, the fact that he had not made any statements about the events until his trial.
Second, there is the post-trial life of Rittenhouse. Many (me included) saw absolutely nothing illegal about his conduct in Kenosha. Not everyone feels the same way. Some see him as a conservative icon, and want to tear him down specifically because of that. Others are only slightly aware of his actions, but default to an assumption that if a prosecution was initiated against him, he must be guilty. Putting Rittenhouse on the stand not only humanized him to the jury… but also to the world.
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While his testimony was riveting… and it was… perhaps the most irritating aspect of today had to do with the irregular testifying of the prosecutor himself.
A prosecutor, or defense counsel for that matter, cannot “testify”. They can elicit facts from their witnesses, or from the other side’s witnesses during cross-examination. They cannot offer explanations to the jury during their questioning. The only time the fancy oratory really takes place is during closing arguments, where the lawyers are only allowed to talk about evidence the jurors heard during the trial.
The prosecutor would have none of that, though.
The most egregious one came in the form of “full metal jacket” ammo vs. “hollow-point ammo”.
During cross, the prosecutor asked Rittenhouse why he used full metal jacket. Rittenhouse explained that was what he had.
He then asked why he didn’t have the AR-15 loaded with hollow-point ammunition.
Rittenhouse explained that he only had what he had.
He then asked Rittenhouse if he knew the difference.
Rittenhouse explained that he was not an expert in ballistics and ammo.
Then the prosecutor decided to engage himself as an expert:
“Hollow-point ammunition is designed to stop when it hits someone, FMJ ammunition is designed specifically to go through someone and kill and injure others… isn’t that why you used full metal jacket?”
First off, as you know, the explanation of full metal jacket is flat out wrong and goes to the intent of the manufacturer as well as the shooter… second… who the f@#k designated the prosecutor as a ballistics expert?!
Rittenhouse comported himself extremely well.
I truly hope the jury agrees with my assessment of the trial thus far. We should know, I suspect, the ultimate verdict soon after you read this blog (if not beforehand).