Thread by @SethAbramson

Rittenhouse’s victims, who are dead and can’t defend themselves, have been put on trial—without hearing—by a judge and deemed guilty of the crimes of (1) riot, (2) theft and (3) arson. Meanwhile Rittenhouse—who agrees he killed people—gets to pretend it was a “victim”-less crime.

https://twitter.com/ajplus/status/1453021349694279690

PS/ Please file this news under “things that would never, ever, ever, ever, ever, ever, ever, ever, *ever* happen to a Black defendant charged with killing a white person.” And I bet not *one white person* supporting this development today would cheer if the races were reversed.

PS2/ As a former public defender, I *agree* there are instances in which the word “victim” is inappropriate at trial—namely any case where the combination of allegation and defense is such that the trial’s purpose is to determine if there *were* “victims” as to *this* defendant.

PS3/ Where a defendant admits he committed a homicide but says he had a defense for doing so, it’s arguably a close call; there are definitely “victims” in the case, but the question is whether a jury can be told (yet) that they should be seen as “victims” *as to that defendant*.

PS4/ So while it’s something that can be debated, it’s in the range of something that happens for a judge to deem “victim” out of bounds at a trial like this—but to combine that borderline decision with the equivalent of trial-less criminal convictions for the victims is obscene.

PS5/ What I would expect is for a judge to order the use of the word “decedent” if “victim” is going to be precluded—though they certainly were victims of a homicide, the only question is whether it was a justified homicide—while also precluding “rioter,” “looter,” or “arsonist.”

PS6/ What this judge has done instead is removed the “victim” status from known homicide victims while also *convicting* them, without due process, of three major felonies. I can imagine no circumstances in which this is anything but an atrocity and perversion of the rule of law.

PS7/ But we must be clear in saying that the judge easily could’ve permitted the phrase “homicide victim” with an instruction to the jury that that phrase doesn’t preclude the possibility of a homicide being legally justified—and that this will be an affirmative defense at trial.

PS8/ Instead, the judge in Rittenhouse’s case has now focused the jury not on legal terms, definitions and standards but moral judgments that dehumanize the dead and implicitly valorize the defendant. Again, I’ve never seen this happen with a Black defendant in the United States.

PS9/ Here’s what Judge Schroeder said, per the AP: “If more than one of them [the homicide victims] were engaged in arson, rioting, looting, I’m not going to tell the defense you can’t call them that.”

There are so many problems with this ruling I don’t even know where to start.

PS10/ First, by imputing to the homicide victims permanent statuses that establish them as criminals, the judge allows the defense to imply to the jury that Rittenhouse had evidence of the homicide victims committing crimes at the time he killed them. But that’s a *trial issue.*

PS11/ This is like allowing a defendant to start on third base. He no longer needs to establish, if he considered it relevant to his defense, that he had personally observed these victims committing crimes—and therefore had a sense of their capacity for imminent criminal conduct.

PS12/ But it’s not clear that those crimes can be considered *violent* crimes; or that Rittenhouse was in a position to adjudicate whether they’d been committed or not; or certainly if a lawyer should be able to accuse homicide victims of crimes without establishing a foundation.

PS13/ The judge also decrees that the homicide victims need not be treated as *individuals*, as any one of them can be deemed a criminal—at once a rioter, a looter, *and* an arsonist—if any two of them, or perhaps even just one if them, committed even *one* of those major crimes.

PS14/ And let's be clear: this judge has found (without hearing) these homicide victims to be guilty of *major* felonies.

In the jurisdiction where I’m barred, Arson can put you in prison for 15 years. Looting almost always means theft of property sufficient to get you 15 years.

PS15/ And Riot, while a more confusing charge, is almost always a felony. As importantly, it suggests an individual who is demonstrably out of control—who is acting unpredictably and quite possibly violently. That’s perfect evidentiary fodder for a defendant’s self-defense claim.

PS16/ And notice the judge’s use of the weasel-word “if” in his ruling. He won't even say any party has established—at any standard of evidence, let alone the highest one—that the homicide victims committed any crime. Yet he’s letting *Rittenhouse’s* attorney *declare* otherwise.

PS17/ Certainly, we can *imagine* a situation in which a homicide victim had previously been convicted of some crime, and had been so convicted to the knowledge of the defendant, such that the use of a term *denoting* that crime would be allowable at trial.

This ain’t that case.

PS18/ Another option would be to determine what words the defense can use in *closing* (at the *conclusion* of the trial)—doing so post-evidence but pre-closing—thereby waiting to see what evidence is offered and restricting the use of the terms to argument rather than evidence.

PS19/ Arguably, the AP story is unclear on when the defense will—if at all—be permitted to begin using these terms. But the judge’s statement is bizarre either way. If an issue is not yet ripe, the judge should clearly establish what would make it ripe and when he will rule.

PS20/ Proper instruction to defense counsel would be, “I’m not going to rule on that now. If you establish that a specific crime was committed by a specific individual and that your client was aware of the commission of that crime as to that individual, we’ll address this then.”

(MORE) Here’s the Associated Press story: google.com/amp/s/abc7chic…

(MORE) Much of the new brouhaha is attributable to a deeply misleading headline from the Chicago Tribune. The article doesn’t support the headline. Having said that, it was the way the judge issued his ruling that enabled misleading headlines of this sort. chicagotribune.com/news/ct-kyle-r…

(MORE) To explain: a judge can tell defense counsel that if he wants to try to establish something via evidence, the court will rule at the conclusion of the evidence if the evidence impacts closing argument. This judge very nearly gave a ruling in advance, confusing journalists.

(MORE) This headline by the Chicago Tribune is so incredibly misleading as to be factually inaccurate. It should be changed immediately. In a case this sensitive, journalists in major media can’t be making mistakes of this sort. And unfortunately the AP story made things *worse*.

(MORE) It seems like the journalist for the AP read the story from the Chicago Tribune first and was so confused about the judge’s ruling that they decided to exclude altogether from the AP report that this was a *conditional* statement from the judge about *closing arguments*.

(MORE) But it’s also a statement the judge shouldn’t have made in the way he made it. So a combination of poor trial administration and poor major-media journalism has led to a heck of a lot of confusion among the general public. Hopefully this thread, in full, helps clear it up.