Kyle Rittenhouse’s lawyers can refer to the men he shot as “rioters” and “looters,” but prosecutors still may not call them “victims” at any time during the teen’s upcoming murder trial, a judge ruled Monday.
Circuit Judge Bruce Schroeder cautioned the defense team against using pejorative terms during opening statements, but he said they could use them in their closing arguments if the evidence suggested the men engaged in criminal acts.
“He can demonize them if he wants, if he thinks it will win points with the jury,” Schroeder said.
Rittenhouse has pleaded not guilty to the charges and says he acted in self-defense when he fatally shot Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreutz in August 2020.
Then 17 and living in Antioch, Rittenhouse fired the shots while patrolling downtown Kenosha with an AR-15-style rifle amid the turmoil surrounding the shooting of Jacob Blake, a Black man, by a white police officer. Despite not being old enough to openly carry a gun, Rittenhouse volunteered as an armed security guard after businesses had been burned and vandalized during demonstrations held the previous night.
Schroeder earlier had ruled the three men cannot be referred to as “victims” during the trial because it would be prejudicial to Rittenhouse. Such rulings are not uncommon in self-defense cases where there is a dispute over who bears responsibility.
In allowing the defense to describe the people Rittenhouse shot in pejorative terms, the judge stressed that he had not changed his mind about calling them victims.
“The word victim is a loaded, loaded word,” Schroeder said.
The ruling — among the last issued by Schroeder before jury selection begins Nov. 1 — clearly frustrated prosecutors, who suggested the judge was creating a double standard by allowing Rosenbaum and Huber to be disparaged when they could not defend themselves.
“The terms that I’m identifying here such as rioter, looter and arsonist are as loaded, if not more loaded, than the term victim,” Assistant District Attorney Thomas Binger said.
The defense intends to argue that Rosenbaum, in particular, posed a danger that night as he threatened to kill people and engaged in arson. None of the acts, however, occurred in the moments immediately preceding the shooting.
“The behavior of many people there was lawless,” defense attorney Mark Richards said. “Mr. Rosenbaum was at the top of that list.”
Schroeder indicated he would allow evidence of bad behavior that night by the men Rittenhouse shot because it could speak to how dangerous they would have seemed to the teen. Prosecutors failed to convince the judge that the defense wanted to sully Rosenbaum’s reputation so the jury could more easily justify the shooting.
“This is an attempt to tell the jury that Mr. Rosenbaum was a bad guy who deserved to die,” Binger said. “That’s really what’s going on here, your honor.”
Schroeder also rejected the prosecution’s request to block any evidence that local law enforcement provided water to vigilantes the night of the shooting and thanked them for their presence. In video taken before Rittenhouse fired his gun, officers in an armored vehicle tossed bottles of water to him and other armed civilians who were clearly violating the city’s 8 p.m. curfew.
One officer can be heard on the recording expressing his gratitude to the group.
“We appreciate you guys,” the officer said. “We really do.”
“I’m concerned this is going to be turned into a trial over what law enforcement should or shouldn’t have done that night,” Binger said. “And I don’t think that’s what this court or this trial should be deciding.”
In opting to allow the evidence, Schroeder said he wouldn’t permit the defense to argue the encouraging words reflected the police department’s overall opinion. It could, however, help explain Rittenhouse’s mindset that night.
“I would not let it be used to prove that the entire police presence on that evening appreciated Mr. Rittenhouse’s behavior or his presence,” he said. “Relevance is another matter.”
sstclair@chicagotribune.com
