Rittenhouse Trial:  Defense Delivers Disappointingly Weak Closing Argument

Rittenhouse deserved a great deal more than Attorney Mark Richards delivered.

The closing statements are now done in the Rittenhouse trial, and the jury will now begin deliberations—although not until tomorrow morning.  That means, of course, that we’ll be launching or VERDICT WATCH blog post in the morning at Legal Insurrection, so keep your eyes there for breaking news on a verdict.

And with that, let’s dive into the unpleasant task of noting the poor closing argument presented by the defense in this case.

Defense Delivers Disappointingly Weak Closing Argument

This is an unpleasant task because on the legal merits Kyle Rittenhouse ought to be acquitted by a unanimous jury on every one of the five felony accounts against him, with the State having failed to prove provocation beyond a reasonable doubt and having failed to have disproven self-defense beyond a reasonable doubt.

And that may still happen. I hope it does. He deserves those acquittals.

That said, I’m well aware that sometimes defendants who deserve acquittal end up getting convicted, regardless.  There might be many reasons that could occur.  One of those reasons is a weak legal defense, and particularly a weak defense in the critical closing argument, the last opportunity the defense team has to plead their narrative of innocence to the jury.

If the legal defense effort, particularly the closing argument, is as close to perfect as a skilled attorney can hope to deliver and the client gets convicted regardless—well, at least from my perspective as a lawyer, at least I know I did the best I could, and it didn’t go sideways because I could have done more.

When an effort far short of perfect is delivered, again particularly in closing argument, and the client deserving of acquittal gets convicted, then one is always left to wonder whether a better closing argument might have made the difference, whether if more had been done the client would be free today.

Kyle Rittenhouse deserved a better closing argument than he got today, and if he’s convicted on any of these charges I would find it hard to not attribute such an injustice to much of anything except today’s weak closing argument by his Attorney Mark Richards (well, excepting, of course, for the politically-motivated prosecution itself, but that’s precisely what the defense is supposed to stop).

The weaknesses in the defense closing argument really fall into two broad categories, with a bit of overlap.

One category of weakness includes aspects that are inherent to the closing itself, aspects that diminish the closing irrespective of anything the prosecution is arguing.  These are really own-goals, and there’s no good excuse for these at all.

The second category of weakness is more of a failure to anticipate and account for the perfectly foreseeable points the State was likely to make on rebuttal—the defense must anticipate these because they will have no opportunity to speak to the jury again after that rebuttal.

Given the lateness of the hour, I’m going to focus this content solely on this kind of high-level review of the defense closing argument, to get it out to all of you in a reasonably timely manner.

Then I’ll follow up in the morning with a more detailed breakdown of the State’s closing statement (by ADA Binger, and essentially what we expected), a more comprehensive look at the defense closing by Richards, and a detailed breakdown of the State’s rebuttal (by ADA Kraus and also pretty poor).  There I’ll include the relevant video clips of the closing arguments.

Poor Choice of Tone if Goal is Persuasion of Jurors to Defense Narrative

Perhaps the single biggest weakness I saw in the defense closing argument was apparent from the first moments of Attorney Mark Richard’s speaking to the jury, and which I suppose was predictable by his generally gruff manner—and why I would have preferred to have Attorney Core Chirafisi do the defense closing argument.

And that was the angry and personal tone Richards took to the prosecution.

Let me make clear, there’s no question to my mind that the prosecution, in this case, has earned every bit of that anger.  The State has played fast and loose with both the facts and law in this case, trying to gin up a conviction from crumbs left on the bakery floor, all with the goal of putting Kyle Rittenhouse into a cage for the rest of his life by legal means not soundly based on facts and law.

And that’s horrible and wrong. The prosecution and the defense attorneys are both lawyers who work within the criminal trial setting, but their roles are very different.  The inherent power of the State means that they are more tightly constrained than is the defense, or ought to be.

The mission of the defense is a win by any means necessary—it’s the burden of the State to overcome the wily defense and achieve a conviction beyond any reasonable doubt., to get that win for their client.

For the prosecution, the mission is—or is supposed to be—much different.  The prosecution’s mission is supposed to be justice—not merely winning by any means necessary.

So, I have no doubt that Richard’s anger and resentment towards the prosecution here is genuine and well-founded.

But that’s not the point of the closing argument.  Closing argument does not exist so that defense counsel can air out his frustrations with the game-playing of the prosecution. Closing argument exists so the defense can have that last final opportunity to compelling communicate their narrative of innocence to the jury, the last chance they will ever have to do that, to secure that acquittal for the client—even more important than usual when the client overwhelmingly is deserving of an acquittal as here.

I suggest that using the closing argument as a forum to bitch at the prosecution does not do much, at all, to help secure that acquittal for the client, especially not when a better choice of tone would likely have been far more effective.

Taking the tone of “those rioters, looters and arsonists were all scumbags, and this prosecution is just a suit-wearing version of the same chaos!!!!!!” may feel good, and may even be to some degree true—but does it help sell the narrative of innocence to a jury that is looking at all this through entirely different eyes than those of the lead defense counsel?

I’ll note here that the State has repeatedly referenced Kyle as a kind vigilante, out looking for trouble until he found it, expecting to be treated as hero, and “just tryna be famous,” per Kyle’s own TikTok profile.  To the extent that the defense is presenting Kyle as someone they believe should be perceived as a heroic defender and the people he shot or endangered as miscreants who had it coming only helps the prosecution paint their client in this negative light. (And it doesn’t matter that the defense portrayal of Kyle is true.)

Drive a Narrative of Innocence Consistent with, not Contrary to, the Jurors’ Sympathies

If this jury convicts on any of these charges—and they well might—it will be because the prosecution has been successful in fostering some degree of sympathy among the jurors for the people killed, maimed, and purportedly endangered at the hands of Kyle Rittenhouse.

To put it another way, unless that’s happened an acquittal is already secured, and the defense need not engage in the fire-and-brimstone display at all.  But we can’t know that, of course, so we must assume that some degree of sympathy for the “victims” has been successfully fostered by the prosecution.

If that’s so, you don’t make ground with those jurors in particular by shouting your outrage about those horrible people. Instead, you just come across as unsympathetic—which, of course, reflects on your client.

A better approach, in my humble opinion, is to approach the jury not from one’s own position as a righteously outraged defense attorney with a client facing a potentially cataclysmic conviction for no good reason, but rather from the position of those jurors themselves.

Acknowledge that the people who died were human beings, and you and your client wished they were still alive today.  Even with respect to the initial aggressor, Joseph Rosenbaum, whose attack on Kyle triggered all else that followed, everyone would prefer that he were alive today.  Everyone wishes that nobody died that night in Kenosha, and that’s particularly true of your client.

That said, it wasn’t your client’s choice that these tragic events occurred—it was the result of the choices of those others, choices that compelled your client to exercise his privilege under Wisconsin law to defend himself from violent, life-threatening attack.

Acknowledge that perhaps those people who attacked Kyle, especially at the second location, might have genuinely believed that they were acting to stop some kind of active shooter.  They were mistaken, of course, Kyle was as far from an active shooter as it was possible to be, for reasons you’ll detail in a moment.  Perhaps even Rosenbaum’s attack was triggered by personal demons that nobody but he could understand, but which he found impossible to resist.

Whatever the reasons for their attacks, no matter how well-intentioned or compelled by personal demons they might have been—none of that, not one bit of it, in any way diminishes the privilege of your client to defend himself from their attacks.

There’s nothing my client wishes more than that Joseph Rosenbaum and Anthony Huber were still alive and with their loved ones, and that Gaige Grosskreutz was unmaimed.  That’s the world he would have chosen to exist today—if only those people, and others, had not violently stripped that option from him by their attacks, however motivated, that threatened him with apparent imminent death.

Failure to Step Methodically Through the Elements of Self-Defense

My next point may be more a reflection of my own temperament, and is perhaps just a personal or professional preference on my part—but I would have been far more detailed and specific in stepping through the elements of self-defense as applied to each of these felony charges.

For each count, I would have made clear in plain language exactly what circumstances would lead Kyle to believe he was facing an unlawful forcible attack (Innocence), that the harm feared from that attack was either already being inflicted or apparently immediately about to occur (Imminence), how the nature of the threat presented an apparent risk of death or serious bodily injury (Proportionality), and how all of this was not just genuinely believed but objective reasonable (Reasonableness).

Example: Failing to Address with Specificity the Issue of an “Unarmed” Rosenbaum

This would have been particularly useful in addressing the all-critical first attack by Joseph Rosenbaum.  We have seen how throughout the trial ADA Binger has been making much of the argument that some of the people attacking Kyle were “unarmed.”  Indeed, at one of the pre-trial hearings, Binger had actually argued that it could never be lawful for an armed man to shoot an attacker who was unarmed.

So the defense ought to have had every expectation that much would be made in closing about the “unarmed” nature of Rosenbaum’s attack on Rittenhouse, and it should have been made crystal clear to the jury how deceptive this framing was.

In particular, Rosenbaum was not merely fake-rushing Kyle, or poking Kyle with an index finger, or even shoving Kyle forcibly backward—Rosenbaum was fighting Kyle for control of his rifle, and in the context of the death threats Ryan Balch and Kyle himself had testified about.

The moment Rosenbaum is fighting for the control of the rifle, he is no longer “unarmed” in any meaningful sense of the term.  Instead, he’s in the process of arming himself. With a rifle. With Kyle’s rifle.

If Rosenbaum were picking up a dropped rifle from the ground under those circumstances nobody would doubt that he was arming himself for the purpose of using that rifle on Kyle.

By not merely picking up some other rifle, but fighting Kyle for his own rifle, Rosenbaum is actually creating a greater threat than that, because he’s simultaneously disarming Kyle while he’s arming himself.

No such argument was made by Richards during his close. And I expect I know why—because he approached this closing argument from his own perspective, as someone to whom this argument is obvious and intuitive, rather than from the perspective of jurors who had developed some sympathy for these “victims” and their families, and for whom this notion of “arming oneself with the other guy’s gun” might not be so obvious and intuitive.

By addressing this issue only vaguely or not at all, Richards left a gaping opening for Kraus to wobble through in his own State rebuttal argument, where he went on at length about Rosenbaum’s status as “unarmed.”  Kyle brought a gun to a bar fight, he could have punched Rosenbaum, or kicked him the testicles, or struck him with the rifle as an impact weapon—anything other than fire four rounds into him for the purported offense of merely chasing him.

Failure to Concretely Define Imminence to Jury

The failure to make the legal concept of imminence clear also left another gaping opening for Kraus to suggest to the jury that Kyle was not permitted to defend himself against an attack that was immediately about to occur, and avoids injury entirely.  Rather, Kraus suggested, sometimes we just have to take a beating before we’re privileged to defend ourselves, and Kyle didn’t do that.  Frankly, that’s just an outright misstatement of the law. In fact, a defender need not suffer so much as a scratch before being privileged to use even deadly force in self-defense.

In any case, the defense is unable to respond to any of this nonsense by ADA Kraus, because they don’t get to rebut the State rebuttal, so by necessity, such things must be addressed prior, to the defense closing argument.  And they were not.

My Preference: A Less Wandering, More Methodical Guide for the Jury

Personally, I would have preferred to have seen a much more methodical progression through each of the elements of self-defense for each of the criminal charges, so that the jurors had an easy, well-marked trail to a justification acquittal on each of them.

You don’t want the jury to spend hours in deliberations hacking through those 36 pages of jury instructions with a lay person’s understanding (and misunderstanding) of the legal concepts, especially when they were so confusingly communicated by Judge Schroeder, in the first place.

Instead, you want to show the jury the way, in a step-by-step fashion.  See, you start here, and this is how we (the defense) see the evidence apply to this legal condition, and that brings us right over here, where we think this happens, and then over here, and then here, and ACQUITTAL!  Now let’s do Count 2.

Reasonableness Assessed from Kyle’s Perspective, Age, Circumstances

Also, an absolutely critical facet of any claim of self-defense is that the perceptions, decisions, and actions be assessed from the perspective of the actual defendant, given their particular attributes, the surrounding circumstances, abilities & disabilities, training and experience, and so forth.

In this particular case, we have a 17-year-old Kyle Rittenhouse who found himself isolated and alone in horrifically chaotic circumstances, not of his own making and facing a series of apparently lethal attackers.

Did Kyle make the best of all possible decisions in each of these use-of-force encounters? Frankly, I think he probably did—but that’s not the point. Our concern is that a jury might not think so, that a juror might have thought that with hindsight there was a better option available.

We can see how the prosecution pounded home on this point when they kept coming back to the idea that the first round to strike Rosenbaum broke his pelvis and probably left him instantly unable to further threaten Kyle—yet Kyle shot him three more times, including the fatal shot.

Strictly speaking, with perfect hindsight, we can see that those successive three shots were probably not actually necessary.  Does that make them unlawful? After all, isn’t lawful self-defense conditioned on necessity?

Well, no, actually.  Lawful self-defense is conditioned upon apparent necessity.  And there was no way, in that brief 0.76 seconds in which Kyle fired his first and last shot into Rosenbaum, that Kyle could have known that his first-round had effectively knocked Rosenbaum to the ground.

During that 0.76 seconds, Rosenbaum continued to present as apparently diving and lunging for control of Kyle’s rifle, and thus continued to present as an apparent deadly force threat for each of those four rounds.

Four Shots is Fine, After All, Jacob Blake Took Seven

Binger touched on the question of whether all four of these rounds were genuinely necessary and therefore lawful, or whether that third or fourth shot, the “kill shot to the back,” was unnecessary and unlawful as the State argued.

Richard’s response wasn’t just not helpful, it might well have been harmful—and again because he approached the issue from his own perspective, rather than from the perspective of one a juror who had perhaps developed some sympathy for the “victims” in this case.

Instead of speaking to this issue on the basis that self-defense law provides for—the reasonable perceptions of Kyle of apparent circumstances, and in the context of his age, prior experiences (death threat), current chaotic circumstances, and so forth, Richards used an argument that likely angered one or more jurors.

Let me take a step back for a moment.  Recall that these Kenosha riots were over the police shooting of Jacob Blake, something the prosecution touched upon repeatedly. Well, the prosecution is not repeatedly mentioning the Jacob Blake catalyst of those nights of chaos because it’s harmful to the prosecution.

In fact, much of the world believes the false narrative that Jacob Blake was wrongfully shot seven times in the back by Kenosha police officers (later deemed justified), and that therefore there was certainly genuine legitimacy to the protests that followed, and perhaps a bit of “I don’t like it, but I understand where it is coming” from even for some of the less prominent property damage caused by actual rioters.

In other words, there are a lot of people who genuinely, if mistakenly, believe that the shooting of Blake was, as they might put it, a profound social injustice.

With this background in mind, and assuming that there are prospectively several people like that on the jury, how did Richards decide to contextualize Kyle’s firing four rounds into Rosenbaum.

Well, he told the jury, he’s seen cases right there in Kenosha where someone shot another person seven times, and that was deemed to be fine.

Now, he didn’t say the name Jacob Blake—but I’m pretty sure everybody in Kenosha knows the name of the guy who was shot seven in what was later deemed a justified shooting.

It should go without saying that anybody who believes that the shooting of Jacob Blake in the back was an obvious social injustice is going to feel any more favorable to Kyle having shot Rosenbaum four times, including in the back, in an analogy made by his own defense attorney.

A Gun is a Gun, a Bullet is a Bullet

Another dropped ball was in the context of the “AR versus handgun” issue raised by the prosecution numerous times throughout the trial.  Binger suggested to the jury that, hey, all Grosskreutz had was a pistol, and in contrast, Kyle had this giant powerful AR-15 rifle with a 30 round magazine loaded with full metal jacket bullets. That can’t be fair!

Richards’ only response to this was a dismissive “hey, guns are guns, bullets are bullets.”  And from his own perspective as a criminal defense attorney, that’s pretty much 100% right. From a legal perspective, it’s all deadly force, both pistol and rifle are readily capable of causing death or serious bodily injury under the circumstances in place, and so there’s really no legal distinction between them.

But that’s not how a jury is going to look at it. A pistol and a rifle, in fact, are different, with different capabilities, and there was testimony to this at trial  A typical police body armor can stop pistol rounds, but not AR rounds.  Pistols are routinely carried for personal protection in public, and ARs only rarely so.  Pistols have a relatively short range, but an AR can shoot out to 550 yards.

In many obvious ways, the Glock pistol of Grosskreutz and the AR-15 of Kyle are substantively different. And simply dismissively saying “guns are guns, bullets are bullets” doesn’t adequately address this.

Instead, Richards should have conceded that it’s true that in many respects the pistol and rifle here are very different—but that they were not different in any way that applied in these particular circumstances.  This was not a case where the two men were 550 yards apart, for example, so that the rifle was effective but the pistol harmless.  Under these circumstances either weapon was readily able to inflict death or serious bodily injury to another, and therefore there was no meaningful distinction between them for the purposes of this trial. (read more)