Rittenhouse Trial Day 9: Prosecution Big Win On “Provocation” Jury Instruction Saves Chance At Conviction
Excerpt:
...Much of the day’s argument over jury instructions centered on the instructions dealing with the legal doctrine of provocation—and that’s because an attack through the doctrine of provocation is the only desperate hope the State has for overcoming Kyle’s powerful claim of self-defense and obtaining convictions on the use-of-force charges against him.
Of the six counts brought against Kyle Rittenhouse in this trial, five are use-of-force felonies (the other is the misdemeanor gun possession charge already discussed). To each of those felony charges, Kyle has raised the legal defense of self-defense. To convict on any of those, then, the State must disprove self-defense beyond a reasonable doubt. How might the State do this, given that it has introduced little if any evidence attacking the core elements of Kyle’s self-defense?
By attacking Kyle’s claim of self-defense through the doctrine of provocation.
I expect the State’s central attack on Kyle’s core legal defense of self-defense to come in the form of a narrative of either simple provocation or provocation with intent.
Simple provocation occurs when the defendant engages in unlawful conduct likely to provoke a violent response. When that violent response occurs, the simple provoker cannot claim self-defense for resistance until they exhaust every possibility of avoiding the need to use force, including retreat–where a duty to retreat would not exist in an otherwise lawful act of self-defense.
Provocation with intent occurs when the defendant deliberately provokes a violent response, with the intent of then having an excuse to use deadly force against the person provoked. Importantly, the provoker with intent cannot regain self-defense by withdrawal and communication—on the other hand, the State must prove that malicious intent beyond a reasonable doubt.
I expect that the State’s argument to the jury during closing arguments on Monday will be structured around this legal doctrine provocation in one of those two forms.
This is why the “unicorn” evidence of the drone video and the “enhanced” images from that video have been so important to the State, and why they fought so hard to get them admitted into evidence. With that material in evidence, the State can at least argue provocation. Without that material in evidence, the State would have no substantive attack on self-defense at all.
For example, the State may argue that Kyle was a simple provoker who committed an unlawful act by pointing his rifle at Joshua Ziminski, thus provoking a reasonably foreseeable violent response from Rosenbaum. Although Kyle then fled, the prosecution would argue that he could have fled further than he did, and thus failed to exhaust every possible means of avoiding having to use defensive force. This would mean he had not regained the privilege of self-defense that he lost by his simple provocation.
Alternatively, the prosecution may argue that Kyle was a provoker with intent when he purportedly pointed his rifle at Joshua Ziminski, seeking to provoke a violent response against which he would then have an excuse to use deadly force. Again, this pointing of the rifle did trigger a violent response from Rosenbaum. Rittenhouse then led the provoked Rosenbaum across the parking lot, where Kyle ultimately acted on his intent to use Rosenbaum’s provoked attack as an excuse to use deadly force on Rosenbaum.
As a provoker with intent, the State will conclude, the defendant is not privileged to justify his use of deadly force on Rosenbaum as justified self-defense, and no withdrawal argument can salvage self-defense for a provoker with intent. (One difficulty for the State arguing provocation with intent is that they have not charged Kyle with intentionally killing Rosenbaum, but only with recklessly killing him. Rationally, an argument of provocation with intent only makes sense if the subsequent killing was intentional–but this is not an especially rational prosecution.)
Then the State will use the killing of Rosenbaum as a purported act of provocation with respect to the attacks upon Kyle by “jump kick man,” Huber, and Grosskreutz, attempting to strip him of the legal defense of self-defense for those uses of force, as well.
The defense argued sensibly that the evidence in support of the State’s narrative of provocation—the “unicorn” drone video left by the evidence fairy on the State’s doorstep last Friday, and the “enhanced” photos produced for the first time yesterday—were too flimsy a basis to support an argument of provocation. They pointed out the poor quality of the video and images and noted that for Kyle to be raising his rifle as the State claimed he would have had to suddenly decide, for the first time that night, to handle the rifle as if he were left-handed.
Judge Schroeder essentially informed the State that he didn’t think very much of their provocation evidence, noting how blurry and indecipherable the video and photos were for purposes of determining whether Kyle had pointed his rifle at Ziminski as the State claimed.
He even took the opportunity to review the State’s video on a giant 4k television screen in the courtroom today and walked away without appearing to have seen much of what the State claimed.
Again, however, this is a judge who values the role of the jury, and who is predisposed to give more instructions rather than fewer, and ultimately he decided he would instruct the jury in the provocation doctrine, and thus saving the State from complete argumentative stasis.
It will be the job of the defense, now, to argue against the State’s expected narrative of provocation to the jury during their own closing argument Monday morning.
Monday is going to be a high-stakes day, for certain, as closing arguments always are. This is where the win or loss will ultimately be realized.
bttt
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