Rittenhouse Trial: Jury Instructions on Gun Charge? A Gun Conviction Looks Unlikely

UPDATE 11/15/2021 11:30 EST:

After an hour of discussion of jury instructions on the morning of November 15, 2021, Judge Bruce Schroeder responded to a motion to Dismiss the weapons possession charge, charge number six, by the defense.

Judge Schroeder allowed the prosecutors an opportunity to measure the rifle which had been possessed by Kyle Rittenhouse. Given the opportunity, they did not measure it but agreed the rifle was of legal length and was not a short-barreled rifle under the law.

Judge Schroeder then dismissed the weapons charge, as the possession of an ordinary rifle by the defendant (Kyle Rittenhouse) was not prohibited by Wisconsin law.

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Rittenhouse Trial: Jury Instructions on Gun Charge? A Gun Charge Conviction Looks Unlikely IMG: iStock

U.S.A.-(AmmoLand.com)- Early in the course of the prosecution of Kyle Rittenhouse in Kenosha, Wisconsin, the prosecution decided to charge Rittenhouse with possession of a dangerous weapon by a person under the age of 18, Wisconsin statute 948.60.

Several commentators immediately noted the prosecution was misapplying the law. By the letter of the law, Rittenhouse fell under the exception in 948.60  3(c). From the statute:

(c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28.

Statute 941.28 applies to short-barreled rifles and shotguns. It is a legal definition. The rifle Kyle Rittenhouse was carrying was NOT a short-barreled rifle under the law.

SS 29.304 only applies to people who are less than 16 years of age. SS 29.593 requires a person who is hunting to possess a valid hunter safety certificate.  Kyle Rittenhouse was 17 years old. Kyle Rittenhouse was NOT hunting.

The Rittenhouse defense team attempted to have the weapons charge dismissed at the initial hearing. Then Rittenhouse changed his defense team.

The new defense team filed motions to have the weapons charge dismissed prior to the trial. During hearings on the jury instructions, Judge Schroeder was considering dismissing the charge, based on the defense motion. There was a later motion to re-consider, by the defense, based on extensive research involving the legislative history of the law.

Judge Schroeder did not dismiss the charge. He said he would wait until later to decide. On the first day of the Rittenhouse trial, Judge Schroeder said he would delay his decision further.

On November 9, more than a week into the trial, Judge Schroeder gives his decision. It is terse, at the very start of the Rittenhouse trial that day. He says:

For reasons related to the brief which was filed by Mr. Kraus (one of the prosecutors), the motion for reconsideration on count six is denied.

Count six is the weapons charge. Judge Schroeder refused to dismiss the charge.

On the next day, Kyle Rittenhouse gives testimony. There is a brief exchange about the issue between DA Binger and Rittenhouse during extensive cross-examination.

A 1:19 in this video, Kyle Rittenhouse is asked, by DA Binger, why he bought an AR15 instead of some other rifle or shotgun or pistol. From the video:

Why did you pick or want Dominick Black, to buy for you, an AR15, as opposed to a pistol a shotgun or some other type of rifle?

Rittenhouse:

I cannot legally possess or carry a pistol because I am not 18. In Wisconsin, I believe its 18 in Wisconsin for a pistol. But with the law, with the rifle, I knew I could possess that rifle, I knew I couldn’t buy it,  but I knew I could like, take it to the shooting range or possess it. And with shotguns, they didn’t have any shotguns in stock. That was my original plan to get a shotgun for trapshooting. But there weren’t any at that Ladysmith store, and I didn’t want to go to Walmart and buy one.

DA Binger:

So you’re understanding at that time, was that Wisconsin law prohibited you from having a pistol but you could have an AR15?

Kyle: Yes.

After a bit more of back and forth between DA Binger and Kyle Rittenhouse, Kyle says officers in northern Wisconsin told him he could not carry a pistol but could carry a rifle or shotgun.

DA Binger asks the judge to strike that testimony as hearsay. Judge Schroeder says, “you asked him”. Then Judge Schroeder gives an explanation that only He is allowed to tell the jury what the law is. Not the defendant, not the prosecutor, not the defense. Then he gives this instruction:

Judge Schroeder:

I will tell you, when I instruct you what the law of Wisconsin is pertaining to the possession of a firearm by a person under 18, and that will be the source of your knowledge.

Judge Schroeder, a little later:

It is quite complicated, hopefully it will sort out when I instruct you at the end.

After the prosecution and the defense have rested their cases, and all evidence has been submitted, Judge Schroeder schedules Friday, November 12, for the prosecution, the defense, and the Judge, to work out the jury instructions. He anticipates the instructions for charge six will be the most time-consuming.

On the morning of November 12, there are some unanticipated motions by the prosecutor to add additional lesser charges. This is allowed under the law if elements of the lesser charge can be found to be relevant, independent of the greater charge. Then they start considering the weapons possession charge, charge 6.

The prosecutors spring a surprise.

They say ordinary jury instructions will do. They did not prepare any special instructions, because the defense never presented any evidence of a weapons charge defense! Therefore the defense has no say in jury instructions in the matter!

Ordinary Wisconsin jury instructions for the charge do not mention any exceptions to the law.

Judge Schroeder says, is that true? …directed at the defense.

Defense attorney Corey Chirafisi, responds. He says we did bring up the defense on that issue! He asked a detective if he thought the rifle barrel was of legal length. Later, he says they brought up the age issue of Kyle Rittenhouse being under age 18 but more than 16.

No one seems to remember Kyle himself brought up the affirmative defense (I would argue it is an exception in the law) in his own testimony, and the judge remarked on it!

Judge Schroeder tells everyone, ordinary people are expected to be able to read the law and understand what it means.

Defense Attorney Chirafisi reminds Judge Schroeder of the motion to reconsider, and of all the legislative history and research.  He expounds on how the exception in 3(c) applies to Kyle. The only way it does not apply is if he violates the short-barreled rifle statute or both the hunting certificate statute and 29.304, the age restriction statute. As he is 17, he cannot violate 29.304, which is all about age restrictions.

Judge Schroeder states he denied the motion to reconsider because the charge was properly made by the prosecutors’ office. Therefore, he could not dismiss it out of hand.

Judge Schroeder waxes eloquently, in the video, for some time, on how important it is that ordinary citizens be able to understand the law.  Judge Schroeder in the video, about 1:16:

I have been wrestling with this, and I know there’s  a lot brighter judges in this world than me; I have been wrestling with this statue, I hate to count the hours I have put into it.  And, I am still trying to figure out what it says, what is prohibited?  Now, I have the good fortune to have some experience, and a liberal education. How is the ordinary person supposed to acquaint themselves with what this law says.

In the ensuing exchange, DA Kraus says, speaking of a part of SS 948:60:

2(a) is very clear.

Judge Schroeder says, responding to DA Kraus stating 948.60 “2(a) is very clear”:

I wish it were to me.  

Then Judge Schroeder makes his decision.

My intention is to instruct on what he (Defense Attorney Chriafisi) has submitted, without page numbers, I might add.  

Looks like the third page, which starts statutory definition of crime, down to where it says “or”. 

So it will be “exception, the state must prove”, etc. Then number 1, the defendant was under 18, number 2 and that the dangerous weapon, was either a rifle, etc. And you can search the evidence to find out if you can prove beyond a reasonable doubt that is true, so that it can go to the jury. 

Alright, now, is that it?

Jury instructions are held fairly tight to the vest, so to speak, so even here, Judge Schroeder is not allowing the public to see the entire jury instructions for charge 6, until they are given to the jury, presumably Monday morning November 15, 2021.

This looks to be a major win for the defense team. It is not particularly surprising, because Judge Schroeder has been hinting at it for months. In addition, it is precisely the letter of the law.

This is very good news for Kyle Rittenhouse, but it is superb, supremely excellent news for his friend, Dominick Black.

If Kyle is convicted of the gun possession charge, which now seems very unlikely, Kyle has a penalty of a Class A misdemeanor, which could be a fine of up to $10,000, 9 months in jail, or both.

If Kyle is convicted of the gun possession charge, Dominick Black can be convicted of two felonies, with potential penalties of up to six years in prison for each.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering and retired from the Department of Defense after a 30-year career in Army Research, Development, Testing, and Evaluation.

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Tank
Tank (@voodoo6actual)
14 days ago

Yawn. Deep State theatre.

Watching a synthesized event exploited by the media to for new people to learn the laws & see how it all works.

nrringlee
nrringlee (@nrringlee)
14 days ago

Done deal. Now watch the house of cards come crashing down on an ideologically motivated, incompetent crew of prosecutors. They need to be disbarred.

Qui Bono?
Qui Bono? (@ctyankee1976)
14 days ago

I believe Rittenhouse acted in self defense, but I also wonder why either he or his mother thought it wise or appropriate for an armed 17 year old to cross state lines and place himself in jeopardy by attending a demonstration that was likely to turn violent? This was no place for self-appointed vigilantes. If he had been at home, defending his own or a neighbors’ business or property, that would have been different.

Tionico
Tionico (@tionico)
14 days ago
Reply to  Qui Bono?

Try to keep up. It was well estabilshed months ago that the rifle never left the state of Wisconsin. It had been kept in a private home in or near Kenosha. SO have done with your “interstate” nonsense. It also came out n testimony during the trial, that the owner of the car lot/mechainc shop had ASKED several people to show up at his place that night. The night before he had had a jumber of cars burnee, attempts to burn down the main building,which was wood. He faared the goons were coming back to finish the job they’d failed… Read more »

Qui Bono?
Qui Bono? (@ctyankee1976)
14 days ago
Reply to  Tionico

I know that – that’s not the point. I didn’t say he brought a weapon across state lines, so lose the condescending tone. HE crossed the state line, and I maintain that as a minor, he had no business even being there.

Charlie Foxtrot
Charlie Foxtrot (@charliefoxtrot888)
13 days ago
Reply to  Qui Bono?

You stated “for an armed 17 year old to cross state lines“. The fact is that no armed 17 year old to crossed state lines in this case!

Kyle worked in Kenosha and his father lives there! He “crossed state lines” on a regular basis.

He wasn’t attending a “demonstration” either. He volunteered to defend his neighbors businesses in the city where part of his family lives and where he works.

Maybe get some facts, instead of repeating debunked nonsense?

WI Patriot
WI Patriot (@wi-patriot)
14 days ago

“Anyone born on or after Jan. 1, 1973, must complete a hunter education course and have a hunter education safety certificate on file to purchase any hunting license in Wisconsin.”

Considering that the law in question doesn’t apply in this case, there is no viable “charge”…

Montana454Casull
Montana454Casull (@rld454c)
14 days ago

I watched enough of this circus to know Kyle is innocent and Binger is a complete idiot . The Binger clownshow should yield a jail sentence for Binger not Kyle . Prosecutor Binger is a disgrace to the word justice and needs to be tried and jailed for his unethical bullshit .

TStheDeplorable
TStheDeplorable (@tvsteinke)
14 days ago

Earnestly pray for Kyle, because this is a spiritual battle as much as a legal one.

Duane
Duane (@duane)
14 days ago

As I watched the trial.

The DA’s were far more interested in getting a conviction then finding then the truth and having justice served.

Our system is broken the checks and balances are gone.

TexDad
TexDad (@texdad)
14 days ago
Reply to  Duane

Exactly. Binger and Krause proved at length that they are willing to make any argument or mischaracterize any evidence it takes to get a win, with zero conscience as to whether or not it is true.

Tionico
Tionico (@tionico)
14 days ago
Reply to  TexDad

these two were handpicked to “make Kyle go away permanently”. Looks like they’ve failed. Good work, boys. I hope they will hve ended up digging their own holes into which to crawl. Neitehr should see the inside of a courtrooom again, unless THEY are in the dock

Russn8r
Russn8r (@russn8r)
13 days ago

“Clair! Chew got som ‘splaining to do!”