Prosecutors crash and burn in Kyle Rittenhouse case, but polarized America doesn't see it

Kyle Rittenhouse's trial is increasingly reminiscent of the parable about the blind men and an elephant. The men can only touch certain parts of an animal to describe completely different animals. One would assume that parallel trials were taking place in Kenosha and Wisconsin based on the coverage of this trial.
However, there is one consensus: The prosecution is not doing well.

The reason for this failure is dependent on the media you are viewing, not just the trial. Either systemic racism or systemic errors are responsible.

Six charges are being brought against Rittenhouse, including first-degree murder and misdemeanors of being a minor with a dangerous weapon. The prosecution could even celebrate a misdemeanor conviction at this point.

Prosecution's rough start and finish

The prosecution was unable to get out of the gate during the trial. Rittenhouse shot Gaige Grosskreutz, the third victim. Grosskreutz, who was cross-examined, admitted that Rittenhouse didn't shoot him after he raised his hands in confrontation. Grosskreutz admitted that Rittenhouse fired only after he pointed his gun at Rittenhouse, and he moved towards Rittenhouse.

Ryan Balch, a prosecution witness, also testified that Joseph Rosenbaum, one of the others who shot Rittenhouse, stated that he wanted to kill Rittenhouse. Rosenbaum was described by other witnesses as being "belligerent" and "hyperaggressive."

USA TODAY's Carli Pinson: Kyle Rittenhouse should be awarded for his dramatic performance at the witness stand.

Later, the prosecution called Richard McGinniss of The Daily Caller, a journalist who had been reporting from Kenosha on that night. McGinniss was right near Rittenhouse at the time Joseph Rosenbaum was killed. McGinniss was told by McGinniss that he had no idea what Rosenbaum was thinking at any time in his life. You've never seen inside his head and you have never met him before."

McGinnis stated, "I never exchanged any words with him, but if that's your question, I can."

Continue the story

McGinnis was then asked by the prosecutor if he knew what Rosenbaum was thinking. It "is total guesswork, it's not it?"

McGinnis then delivered a haymaker. He noted, "Well, he said (expletive), you, and then, he reached for his weapon."

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Dr. Doug Kelly, the prosecution's medical expert, confirmed that the forensic evidence of burns on Rosenbaum's hands could indicate Rosenbaum tried to grab Rittenhouse's gun barrel when it was fired.

It only got worse from there. Rittenhouse was being cross-examined by Binger, who commented on Rittenhouse's decision to remain silent.

The judge was right to attack the prosecutor. First-year law students know that it is illegal to comment on Mirandized defendants' silence after arrests under the Fifth Amendment.

Viewers of biased media

This case was difficult even without the prosecutor's unforced errors. Wisconsin has a high standard for self-defense. The prosecution must prove beyond reasonable doubt that a defendant has acted to repel a threat.

Instead, the prosecution encouraged its witnesses to add layers of doubt to the case. It seems that it has reduced the possibilities to anywhere between a hung jury and an outright acquittal of the major charges.

Kyle Rittenhouse testifies to the fact that two people were shot and killed by him

Many people might not be aware that the case is in danger due to tactical or evidentiary failures. A hung jury or an acquittal would be a shock and cause more outrage. The case started with violence in Kenosha and is now fueling fears of renewed violence.

Even worse is the fact that some media have dismissed the trial's outcome as an expression of racism. Some criticize Judge Bruce Schroeder for his long-standing constitutional principles. He also defended the defendant's core constitutional right against self-incrimination.

USA TODAY's Suzette hackney: Kyle Rittenhouse killed his victims but we don't know how to call them that. This is the kind of justice system that we need.

MSNBC's Tiffany Cross, a MSNBC host, called for Schroader to be removed and asked Elie Mystal to address the issue. Mystal, who earlier this month stated that white, non-college educated voters supported Republicans in 2021 races in part due to their desire to "use their guns on Black people" and get away with it, has now written that this trial was a fraud.

The trial of one man, not the entire society, is underway

Joy Reid, MSNBC's host, also attacked Rittenhouse's trial and claimed that Rittenhouse's emotional breakdown while on the stand was fraudulent. Paul Butler, a Georgetown law professor and MSNBC legal analyst, agreed with her and called it "the most impressive performance (of) his life".

Butler stated Rittenhouse was "well-prepared by his defense lawyers to disrupt his image of a trigger-happy vigilante that went on a shooting rampage against a Black Lives Matter demonstration."

Butler, who wrote that Black jurors should use "jury Nullification" to refuse convicting Black defendants in drug cases has previously maintained that an acquittal would fuel white violence in the future.

Reid said Wednesday that "If you want the real reason why critical race theory exists and the actual law school theory which emphasizes the fact that supposedly-colorblind laws in America often still produce racially discriminatory results, then you need to look no further than Kyle Rittenhouse's trial."

Rittenhouse's history of racism in society is not something to be held responsible for, as it does not alter the facts.

Either Grosskreutz, who is white, was pointing his gun at Rittenhouse's forehead or he wasn't. Either Rosenbaum, who was white, was grasping Rittenhouse's barrel or he wasn't. These facts are not affected by CRT translations.

Media outlets have criticized many who supported riots in January 6th with unsupported claims about electoral fraud. However, there are some media figures who offer inaccurate accounts of this trial. Sometimes the narrative can be more important than the facts.

Furthermore, if the victim is not informed of the true legal issues in the case, this narrative will likely control the outcome of any conviction.

These protests are part a wider debate about racism in the country. This trial, however, is about one person's actions in 2020. These actions favor acquittal of the most serious charges.

Jonathan Turley is a member of USA TODAY’s Board of Contributors and the Shapiro Professor of Law in Public Interest Law at George Washington University. He is also an analyst for Fox News.

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This article first appeared on USA TODAY: Kyle Rittenhouse trial - Prosecutors are crashing and burning as America watches