Explainer: Why did the judge refuse to charge Kyle Rittenhouse’s pistol?

MADISON, Wis. (AP) – At first glance, it seemed that the prosecutors’ easiest task in the Kyle Rittenhouse murder trial would be to charge him with the much less significant charge of underage firearms.

Rittenhouse was 17 when he shot three people, killing two, with a semi-automatic rifle on the streets of Kenosha, Wisconsin, during a protest against police brutality last year. Prosecutors have brought several charges against him, including first-degree murder, attempted murder, reckless threat-making, and firearm possession tally.

As legal experts say prosecutors are struggling to refute the Illinois man’s self-defense claims, the best option for a charge was a gun charge. But the Rittenhouse defense team found an exception to the ban, and Judge Bruce Schroeder dismissed the bill on Monday, just hours before the jury accepted the case.

“This is very important,” said former federal attorney Phil Turner, who is not involved in the case, of Schroeder’s decision. “It looks like he would have been guilty of this and would have received a guilty verdict. You can at least reassure the audience that you have something instead of leaving with nothing, which in this case is a great opportunity. “

Under Wisconsin law, anyone under the age of 18 who is in possession of a dangerous weapon is guilty of an offense punishable by up to nine months’ imprisonment.

At first glance, Rittenhouse’s conviction on this point looked like a legitimate dunk. No one disputed that he was 17 on the night of the August 2020 protest. Eyewitnesses and surveillance videos clearly show him walking with a rifle strapped to his chest before shooting, firing a pistol and killing Joseph Rosenbaum and Anthony Huber and wounding Gaige Grosskreutz.

But Rittenhouse’s lawyers took advantage of a portion of Wisconsin law, which they argued was limited to short-barreled shotguns or rifles. The Rittenhouse AR-15 rifle was not a short-barreled rifle.

They asked Schroeder to cancel the ownership count on these grounds at a pre-trial hearing in October. The judge admitted that the overlap of statutes was unclear, but ultimately refused to drop the charge. However, he said he could return to the defense request.

WATCH: Why Kyle Rittenhouse’s murder trial got heated after he took the position

While Schroeder and lawyers on both sides were discussing the wording of the jury’s instructions on Monday, the defense renewed its motion to dismiss the custody charge. Assistant District Attorney James Kraus argued that reading the law allowing minors to carry any weapon other than a short-barreled rifle or handgun effectively nullifies the ban on minors from carrying weapons.

“I believe it is. … … essentially swallowing the entire statute, ”said Kraus.

But this time, Schroeder dismissed the charge after Kraus admitted that the Rittenhouse rifle was not a short-barreled rifle. The judge noted that the prosecutor’s office had submitted a “very nice note” outlining their arguments, but it should have been clear that he had a “big problem” with the ban law.

He said prosecutors could ask the state appeals court to rule on whether the accusation was substantiated “from the outset.” He then caught himself remarking that he had never ruled against a prosecution that might have prompted such a request until there was a closing argument in a few minutes.

“I think it should have been pretty clear that I had big problems with this law,” Schroeder said. “I did not hide it from the very beginning. And there has always been access to the court of appeal. Well, I guess it’s unfair of me because I was sitting on it. So shame on me.

Kenosha defense attorney Michael Cikchini, who is not involved in the case, said legal doctrine requires that when statutes are unclear, they must be read in favor of the defense.

“This is the price that the government must pay when it is unable to develop clear laws,” Cicchini wrote in an article on doctrine.

Prosecutors may apply to the State Court of Appeals for clarifications and orders during the course of a case; they don’t have to wait for the verdict. But usually prosecutors don’t take these steps unless the judge issues a negative decision, Cikchini said. In the case of Rittenhouse, Schroeder ruled against Kraus just minutes before closing arguments began.

Turner, a former federal prosecutor, said prosecutors should have realized the problem had not been resolved and recalled Schroeder, asking the appellate court to rule or submit additional inquiries.

“I hesitate to conclude that the judge is doing something unfair to (the prosecutors),” Turner said. “When the judge early expressed skepticism, they had to do something to make sure it was clear. In a case of this magnitude, if I am a prosecutor and judge expressed some skepticism or doubt about this, I will do everything in my power to confirm this account. When you find out early that there is some doubt, you have to accept it. “

Prosecutors could immediately ask the appellate court to discontinue the proceedings pending a ruling on the well-foundedness of the charges, but there was no indication on Monday that they were planning to do so.

Former Waukesha District Attorney Paul Bucher has downplayed the dismissal. He argued that it might even clear up the case for the jury.

“You are talking about this extremely minor charge,” Bucher said. “(The Prosecutor’s Office) are missing. This is a murder case. We had two killed and one nearly killed, and they focused on keeping firearms. If the government thought it was the only account they could do well, damn it. “

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