Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
With closing arguments in the Kyle Rittenhouse homicide trial complete, the jury now faces the monumental task of delivering a verdict. The facts in this case are challenging. Any fair analysis of the evidence suggests this will be a complex deliberation.
It’s one made all the more difficult by the burden of expectations.
Intense media coverage pushes a public already sharply divided by political differences to expect a social and political message from the jury’s verdict. But the law requires something entirely different: a strict analysis of the facts and law by 12 ordinary citizens insulated from outside pressure.
The evidence presented during the trial has put a full menu of political issues front and center, triggering a divisive national debate. Should Americans, including a then-17-year-old, be permitted to police the streets of a town in a neighboring state when law enforcement appears to some to be inadequate? Was Kyle Rittenhouse acting as a vigilante when he chose to arm himself and enter the fray of protestors and others, claiming his purpose was to protect property and provide first aid? Should this be legal if he was? Was Rittenhouse looking for trouble, and should this restrict his right to assert self-defense? Are we headed toward an America where openly armed political factions and protesters can roam the streets openly carrying AR-15s like militias in other lawless and war-torn countries?
Yet the verdict sheet has no section devoted to social messaging. The jury’s only job is to render a unanimous verdict of “guilty” or “not guilty” on each of the five felony charges Rittenhouse faces, including first-degree intentional homicide.
On August 25, 2020, Rittenhouse armed himself with an AR-15-style assault rifle and carried a medical kit as he went into downtown Kenosha, Wisconsin. Rittenhouse, who’d traveled there from Antioch, Illinois, testified he intended to protect businesses and provide first aid during a third night of protests following the police shooting of Jacob Blake. The now 18-year-old shot at four people that night, killing two and wounding a third. Prosecutors also allege the gunshots “recklessly” endangered the lives of other bystanders.
While the prosecution has argued that by arriving at the protests with a weapon he was provoking confrontation, Rittenhouse has made an extraordinarily powerful self-defense claim. During the two-week trial, Rittenhouse testified that one of the men he killed, Joseph Rosenbaum, threatened to kill him and chased him. Rittenhouse testified that he feared that Rosenbaum would be able to get his rifle and kill him. He also testified that Anthony Huber was shot and killed only after hitting Rittenhouse in the neck with a skateboard and grabbing his gun.
The jury will need to evaluate the validity of his self-defense claim and other disputed testimony. The man who was wounded by Rittenhouse’s gunfire, Gaige Grosskreutz, said on cross-examination that he approached within five feet of Rittenhouse, first with his hands up in surrender and then lowering his hands, during which his Glock handgun pointed at Rittenhouse. The defense noted that this was different from Grosskreutz’s earlier accounts.
Then there’s the fact that Wisconsin is an open carry state, and Rittenhouse’s AR-15-like rifle was a legal weapon within those borders. Complicating the case even more is the dispute over one of the best options jury members have to assess Rittenhouse’s actions: the video evidence.
Rittenhouse’s attorneys have argued that the “grainy” video that captures Rittenhouse’s actions the night of August 25 is unreliable because it was enhanced by “artificial intelligence” software. The defense attorneys claimed this added pixels to the photographic material now used against their client to prove he “pointed” his weapon, provoking Rosenbaum to attack him; the prosecution didn’t offer any expert testimony to the contrary.
With this tangle of complexities in the Rittenhouse case, to hope for grander symbolism from the verdict would be foolhardy. If there’s any lesson to be found, it’s not in the outcome but in the evidence presented at trial. Whether Rittenhouse is found guilty or innocent, one thing remains clear: The video footage introduced, mostly by the prosecution, depicts a frightening, dystopic view of Kenosha’s streets that August evening. Law and order had collapsed with heavily armed, militia-like civilians assuming the role of law enforcement.
The only thing that would have been worse would have been if several other demonstrators had also elected to carry and fire AR-15-like assault weapons in Wisconsin on that violent night. Then the city could conceivably have plunged into a condition of open warfare. If the trial should send any message, let it not be to the public but to those who interpret how to apply the Second Amendment to the streets of America in the 21st century. Let’s hope the Supreme Court justices now deciding whether it should be easier to carry weapons in heavily populated urban settings were tuned in to the Rittenhouse trial.
Kenosha feels like a microcosm of the heavily divided American nation. And as the nation awaits a verdict, 500 National Guard troops are on standby to ensure that the verdict is accepted and enforced regardless of outcome. If the nation is to survive and prosper in the future, this is how we must resolve our disputes: In courts of law, not with armed citizens patrolling the streets.
