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How Wisconsin's self-defense law ensured Kyle Rittenhouse's acquittal

“The self-defense argument in this case only had to convince one juror,” a former prosecutor said. “That’s less of a burden.”

Red-faced and teary-eyed, Kyle Rittenhouse collapsed onto a courtroom desk Friday afternoon after he was acquitted of all charges in the shooting of three men, two of them fatally, during protests last year in Kenosha, Wisconsin. 

Two of those men died from their wounds, but it was Rittenhouse’s argument that he feared for his own life that ultimately secured him a verdict of not guilty

“He had a lot of things going in his favor,” said Dmitriy Shakhnevich, a New York-based defense attorney and an adjunct assistant professor at the John Jay College of Criminal Justice. “He was a young, empathetic witness visually, taken apart from his conduct that night."

Image: Kyle Rittenhouse reacts to the verdict during his trial at the Kenosha County Courthouse in Kenosha, Wisc., on Nov. 19, 2021.
Kyle Rittenhouse reacts to the verdict Friday. Sean Krajacic / Pool via Reuters

Rittenhouse, 18, was charged with reckless homicide in the fatal shooting of Joseph Rosenbaum, 36, and intentional homicide in the death of Anthony Huber, 26 during protests against the shooting of a Black man, Jacob Blake, by a white police officer in Kenosha. 

The jurors also cleared Rittenhouse of attempted intentional homicide for severely wounding Gaige Grosskreutz, a 27-year-old paramedic from suburban Milwaukee volunteering his medical services at the protest. 

Prosecutors attempted to paint a picture of Rittenhouse as an aggressor, who traveled across state lines with an AR-15-style semi-automatic rifle intent on adding to the chaos in the streets. 

Former prosecutor Kristen Gibbons Feden said Kenosha prosecutors had a difficult case from the beginning. They did not have clear video showing “how horrendous” the three shootings would have appeared from the victims’ perspectives. Instead, grainy video showed chaos on the streets, which could have added to the idea that Rittenhouse was the one being threatened.

“The self-defense argument in this case only had to convince one juror,” Feden said on NBC News. “That’s less of a burden.”

During closing arguments, Assistant District Attorney Thomas Binger played a video that appeared to show Rittenhouse putting down a fire extinguisher and raising his weapon. He then re-created that scene for jurors, putting down a water bottle in place of the fire extinguisher, and raised the actual weapon in court.

“That is what provokes this entire incident,” he said. “When the defendant provokes the incident, he loses the right to self-defense. You cannot claim self-defense against a danger you create.”

But Mark Richards, one of Rittenhouse’s criminal defense attorneys, argued that his client was the one facing danger, a frightened teenager threatened by an aggressive mob. In one instance, he said, Huber tried to attack Rittenhouse with a skateboard.

In another instance, Rosenbaum acted "irrational and crazy" when he chased Rittenhouse and tried to take away his gun during their fatal encounter, according to Richards. And he said Grosskreutz had a gun in hand when he approached Rittenhouse.

When taken together, Richards painted a picture of Rittenhouse defending himself from a trio of would-be attackers, a key element in why jurors acquitted Rittenhouse.

Kenosha County Circuit Judge Bruce Schroeder instructed the jury to consider whether Rittenhouse provoked the attacks. According to Wisconsin law, "a person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person."

The not guilty verdict indicates jurors believed Rittenhouse’s use of force was justified, said Paul Butler, a former prosecutor and law professor at Georgetown University Law Center.

"They found that he reasonably believed that each of the three people he shot posed a deadly threat and it also means that the jurors found that Rittenhouse was not the aggressor," he said. "He didn't provoke any of this and in the eyes of the law is now a victim."

Butler added that Rittenhouse "won this case by taking the stand."

"In a self-defense case, jurors want to hear a story. Mr. Rittenhouse’s narrative was that the first person he killed followed him and tried to grab his gun. The second person attacked him with a skateboard and a third person he shot pointed a gun at him," he said. "Apparently they found a reasonable doubt and that’s the standard for a not guilty verdict."

Wisconsin’s self-defense law is standard in putting the burden on prosecutors to disprove self-defense, according to Tali Farhadian Weinstein, a former New York state and federal prosecutor.

"In the end, his argument which prevailed is that his own gun … is what put him in danger and what justified him using deadly force," she said. "The [jurors] did not accept the theory that him just being there with a deadly weapon was provocative and when they broke it down with each of the three victims, they stepped into his shoes and they agreed with Rittenhouse that he was in danger and that he was justified in taking the violent actions that he did."