- Judge Bruce Schroeder said he would not include a lesser charge in the shooting of Joseph Rosenbaum but would include two lesser charges in the shooting of Anthony Huber.
- Kyle Rittenhouse is facing intentional, reckless, and attempted murder charges. He also faces reckless endangerment and attempted homicide accusations. Closing arguments will be held Monday.
- A win for the prosecution is the addition of other lesser charges: USA TODAY’s legal expert said, “Throw even more against the wall and see if that sticks.”
The judge in the Kyle Rittenhouse murder trial said Friday he would allow jurors to consider some lesser charges against the Illinois teen charged with shooting three men, two fatally, last summer in Wisconsin.
With jurors dismissed until Monday, attorneys for both sides returned to the Wisconsin courtroom to work through the technical legal arguments surrounding what instructions the jury should receive and whether to add lesser included charges.
Closed arguments will also be heard Monday. Gov. Tony Evers on Friday ordered 500 Wisconsin National Guard troops to the Kenosha area to assist “hundreds of officers from volunteering law enforcement agencies” in case of unrest following a verdict.
Judge Bruce Schroeder said he would not include a lesser charge in the shooting of Joseph Rosenbaum but would include two lesser charges in the shooting of Anthony Huber.
Lesser included charges are a way for the prosecution to give a jury more to consider and, possibly, find a defendant guilty, according to Milwaukee criminal defense attorney Craig Mastantuono, who is also an adjunct professor at Marquette University Law School. The instructions to the jury prior to deliberations start include less serious charges.
“Could the prosecution be asking for lesser included charges because they’re not as confident that an all-or-nothing gambit on the originally filed – particularly homicide-related charges – is a good, safe bet for them? Mastantuono stated that they are asking for less included because of this.
He said, “Turn more against the wall and see if that sticks.”
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Rittenhouse was not accused of two of the lesser charges in the Huber case, but he did object to one in the Rosenbaum case. Schroeder said the evidence did not support that the jury could acquit Rittenhouse on the more serious count but find him guilty on the lesser in the Rosenbaum charge.
In the case of Huber, a lesser included charge of second-degree intentional homicide instead of first-degree intentional homicide would mean the jury would still have to find that Rittenhouse intentionally took Huber’s life, but that he did believe he was acting in self-defense.
Mastantuono explained that in order to have a second degree charge, the jury had to determine that Rittenhouse thought he was self-defense but his conviction was not reasonable.
Mastantuono explained that they will first have to look at the initial charges. If they do not find him guilty, they can move onto each of the lesser charged.
Rittenhouse is accused of fatally shooting Rosenbaum, 36, and Huber, 26, and wounding Gaige Grosskreutz, 27, during a night of violent protests in Kenosha after a white police officer shot and seriously injured Jacob Blake, a Black man, two days earlier.
Rittenhouse, now 18, faces intentional, reckless and attempted homicide charges and reckless endangerment charges. A misdemeanor, Rittenhouse also faces charges of possession by an under-18 person with a dangerous firearm.
“By having a lesser included offense included, you’re raising the risk of conviction, although you are avoiding the possibility that the jury will end up compromising on the more serious crime,” Schroeder told Rittenhouse directly Friday.
“You’re also decreasing the risk that you’ll end up with a second trial because the jury was unable to agree,” he added.
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On Wednesday, Rittenhouse testified he feared for his life and acted in self defense. Rittenhouse said, “I did nothing wrong.” Rittenhouse said that he defended himself to the jury.
Prosecutors argued for the lesser charges to be included in case the jury would not convict Rittenhouse on more serious charges. Rittenhouse’s lawyers argued that the lesser charges should not be included in order to keep the jury focusing on the original charges.
Mastantuono stated that “it’s a strategic consideration by both sides whether to request lesser included jury instructions.”
Legal observers noticed that Rittenhouse’s claims of self-defense were difficult to prove by the prosecution. At some points, the prosecution’s own witnesses even made claims that bolstered Rittenhouse’s case. Witnesses said Rosenbaum threatened to kill Rittenhouse and that Grosskreutz pointed a gun at him before Rittenhouse fired.
Contributing: Bruce Vielmetti, Milwaukee Journal Sentinel; The Associated Press