For a week now, prosecutors have argued to a Wisconsin jury that “teenage vigilante” Kyle Rittenhouse traveled across state lines last August, determined to insert himself into an already-chaotic police protest, where he murdered two people and tried to kill another.
To prove their case that Rittenhouse, 18, should be convicted of several charges, including first-degree homicide, prosecutors have called 22 witnesses to the stand to detail the Aug. 25, 2020, unrest in Kenosha, Wisconsin. The city exploded that week after the police shooting of Jacob Blake, a Black father, and prosecutors have homed in on how the then-17-year-old was the only one of a slew of self-styled militiamen who actually inflicted mortal harm amid the unrest.
At times, witnesses have appeared to bolster the prosecution’s case that Rittenhouse is at fault for fatally shooting 36-year-old Joseph Rosenbaum and 26-year-old Anthony Huber, and wounding 27-year-old Gaige Grosskreutz. Moments later, however, testimony from the same witnesses seemed to favor the defense’s argument that the teenager only fired an AR-15 in self defense.
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As the prosecution rested and defense lawyers took over on Tuesday, prosecutors were hit with a new blow: The judge accepted a defense motion to dismiss a curfew citation charge, stating that the prosecution did not provide enough evidence to substantiate it. Experts said it was just the latest indication that a criminal case that had appeared, at least early on, to be buoyed by a bevy of video evidence of brazen killings was in danger of collapsing.
“I was waiting for the knockout punch from the prosecution—but it never came,” Paul Bucher, a former district attorney in Waukesha County, Wisconsin, and a one-time state attorney general candidate, told The Daily Beast. “I was shocked that they rested. They were lightweights in this case.”
Assistant District Attorney Thomas Binger, the lead prosecutor in this case, did not respond to The Daily Beast’s request for comment.
John Gross, a clinical associate professor and the director of the Public Defender Project at the University of Wisconsin-Madison Law School, agreed that prosecutors might be in trouble. But he suggested it was less a story of strategic missteps and more about the difficulty of defanging a self-defense claim.
“All of the concerns that those of us who have experience in this area, in terms of what the law is and what we anticipated the facts to be in this case—we all thought a conviction here might be out of reach,” he told The Daily Beast.
But echoing others interviewed for this story, Gross suggested prosecutors failed to produce any new damning material in the trial. “We wanted to see the evidence the prosecution was able to put forward—but they didn’t deliver,” he said.
To argue self-defense in Wisconsin, Rittenhouse’s attorneys are trying to show that the then-17-year-old had no choice but to use deadly force “to prevent imminent death or great bodily harm to himself.” Jurors will need to put the case through a two-rule test: that Rittenhouse really believed he was in peril and had to use self-defense, and that the teenager’s actions were objectively reasonable for that situation.
To make matters more interesting, Wisconsin state law does not dictate a resident has a “duty to retreat” before using force.
“It’s a very tough case because under Wisconsin law, the prosecution has to prove lack of self-defense beyond a reasonable doubt,” former federal prosecutor Neahma Rahman told the Daily Beast on Tuesday. “I’m sure everyone knows that self-defense is a complete defense to murder. That is, if Rittenhouse reasonably believed he was in imminent danger of death or serious bodily injury, he gets an acquittal.”
Rahman noted that to prove Rittenhouse acted unreasonably, prosecutors have rightly focused on videos taken the night of the deadly shooting and using them to show the teenager’s mindset. In one Daily Caller video from that night, an armed Rittenhouse stated it was his “job” to guard a boarded-up business—though he did not say if he was asked by anyone to do so.
“So people are getting injured and our job is to protect this business,” Rittenhouse said in the video, after being asked what he’s doing at the protest. “And part of my job is to also help people. If there is somebody hurt, I’m running into harm’s way. That’s why I have my rifle, because I need to protect myself, obviously. I also have my med kit.”
After the citywide curfew went into effect that night, Rittenhouse is seen in video near a car dealership when he began to clash with a crowd, including Rosenbaum. During the scuffle, Rittenhouse shot Rosenbaum after the unarmed man tossed a plastic bag. Dr. Doug Kelley, a forensic pathologist with the Milwaukee County Medical Examiner’s office, testified that Rittenhouse ultimately shot Rosenbaum four times—including twice in the front, once in the back, and once alongside his head.
The defense has argued Rosenbaum was the aggressor in the initial shooting, a descriptor that was only bolstered by new FBI infrared surveillance video showing him chasing Rittenhouse at one point during the scuffle. The video, however, also showed that Rittenhouse had previously pursued Rosenbaum.
To make matters messier, Rosenbaum’s fiancée, Kariann Swart, disclosed on that stand that Rosenbaum was on medication for bipolar disorder and depression—but could not fill up his prescriptions from a local pharmacy that was boarded up due to the days-long unrest.
Experts told The Daily Beast that Swart’s account, in which she described Rosenbaum as a “very animated person,” was one of at least two chunks of testimony that seemed to hurt the prosecution’s case. The other witness’s account that muddied the waters, several experts agreed, was that of Grosskreutz, the paramedic who survived being shot by the teenager.
“The witnesses that the prosecutors had to deal with in this case, for the most part, were defense-oriented,” Bucher said. “I don’t know if prosecutors put them on the stand so the defense did not have the chance to, but it didn’t help their case at all.”
Arguably the most important prosecution witness—as someone who was shot by the defendant—Grosskreutz took the stand on Monday to detail how he believed Rittenhouse was an “active shooter” that night. He further testified that the teen did not initially accept his attempt to surrender when Rittenhouse pointed an AR-15 at him.
Prosecutors say Grosskreutz was shot moments after Rittenhouse shot Huber, who appeared to hit the teen defendant in the head with his skateboard. Huber is also seen in video reaching for the teen’s gun after Rittenhouse stumbled to the ground. Later, Grosskreutz is seen in video running toward Rittenhouse—and holding his own handgun.
“I was never trying to kill the defendant,” Grosskreutz said of his own actions in the moments before he was shot. “In that moment, I was trying to preserve my own life, but doing so while taking the life of another is not something I am capable or comfortable with.”
But his testimony may have ended up lending support to the crux of Rittenhouse’s self-defense argument after he admitted that he was armed the night of the shooting—and that he had initially falsely told investigators his pistol had fallen out of his holster.
On the stand, he admitted that he pulled out the firearm and pointed it at Rittenhouse.
“So when you were standing three to five feet from him with your arms up in the air, he never fired, right?” defense attorney Corey Chirafisi asked Monday, to which Grosskreutz answered that was “correct.”
“It wasn’t until you pointed your gun at him, advanced on him with your gun—now your hands down, pointed at him—that he fired, right?” Chirafisi then said.
“Correct,” Grosskreutz responded.
Rahman argued that while Grosskreutz “wasn’t the best witness” for the prosecution, they had no choice but to call him since his shooting was part of the criminal case. “You can’t let him be a defense witness,” Rahman added. “I like that he was a real medic and was actually treating people, unlike Rittenhouse.”
But Gross argued that Grosskreutz was supposed to be their star, and instead ended up “describing a self-defense theory for Rittenhouse.”
The often-complex witness testimony put forth by the prosecution makes “an already complicated case more complex,” Bucher said. Rahman agreed, saying that with the evidence that was presented, right now it is “going to be tough to get a unanimous murder verdict.”
If Kenosha County Circuit Court Judge Bruce Schroeder is any indication, the prosecution's case so far has been weaker than the charges suggested.
After the prosecution rested their case Tuesday, Schroeder swiftly accepted the defense’s motion to dismiss a curfew-citation charge. Agreeing with the defense, Schroeder said that prosecutors failed to present any evidence that a city-wide curfew was in place when Rittenhouse traveled from Illinois to Kenosha.
Gross explained the loss of that charge stemmed from the prosecution’s failure to submit the emergency order from last August that showed a city-wide curfew was in effect during the night of the shooting. To prove Rittenhouse violated the temporary order, Gross said, all prosecutors had to do was provide a copy of a valid order prohibiting people on the street.
“Curfew violation was the only thing they were 100 percent sure of. All they needed to do was submit one piece of paper, and they didn’t do it. It’s a massive problem!” Gross said.
“In a case of this magnitude, when you have months to prepare and your office is laser-focused and the eyes of the world are on you—this is an unforced error,” he added. “It’s shocking that they didn’t do it.”
All is not lost for the prosecution. One major way the defense may show the teenager’s mindset, legal experts previously told The Daily Beast, is having Rittenhouse himself take the stand—which could provide prosecutors with the best opportunity to poke holes in the theory that the teenager was scared for his life that night.
“Kyle Rittenhouse testifying may be the prosecutor’s last real shot to make their case—but they only get it if he decides to testify,” Gross said.
During opening statements, the defense suggested that Rittenhouse would testify. But that was ages ago in the annals of a murder case like this one.
“I have to think the defense feels pretty good right now [with] what they were able to accomplish through cross-examination. Testifying now might be an afterthought,” Gross said.
Bucher, however, noted that as in every murder trial, the mindset of the jury is impossible to discern.
As the former district attorney told The Daily Beast, “All I know is that no matter what the jury decides, people will be angry.”
