Here & Now

Ground Rules for the Rittenhouse Trial

Frederica Freyberg:

The murder trial for Kyle Rittenhouse starts in Kenosha next week. Rittenhouse is charged with homicide and attempted homicide in the shooting deaths of two people and the wounding of another during fiery protests in that city last summer following the shooting of Jacob Blake. A pretrial ruling this week sparked controversy when the judge in that case ruled that attorneys could not refer to the men shot as victims, but could refer to them as rioters, looters and arsonists. What’s the take on this from a former trial lawyer and prosecutor? We asked Lanny Glinberg, clinical professor and director of the UW Law School Prosecution Project. Thanks very much for being here.

Lanny Glinberg:

Thanks for having me.

Frederica Freyberg:

So why wouldn’t attorneys be able to refer to people who are shot and killed, the crime for which Rittenhouse is charged, as victims?

Lanny Glinberg:

So the ruling is uncommon but not unprecedented in this state. I don’t want to speak for the judge but I expect the concern goes something like this. That to identify someone as a victim is to conclude that a crime was committed and perhaps indicate who committed it. And at this trial, the judge’s job is to ensure that Mr. Rittenhouse gets a fair trial as well as to ensure the state gets a fair trial and to say the word victim might suggest to a jury that the decision they’re to make – whether a crime was committed – perhaps the court or whoever is saying the word is making an opinion on that. So the judge is ordering that the term be not used, I would say in the interest of impartiality. Again, not unprecedented, but not particularly common in the state courts.

Frederica Freyberg:

If calling someone a victim biases the jury against the defendant, why isn’t calling them rioters, arsonists or looters biased the other way, like they deserved it?

Lanny Glinberg:

Indeed and that’s the concern over the use of those terms as I’ve heard other report and as was argued in court that day. If the judge’s position is that you shouldn’t use the term victim until there’s already been proof of a crime, you ask a fair question, why would we identify someone as an arsonist unless there’s been proof that they’ve burned down a building? So at least — and I’m not familiar exactly with the judge’s reasoning on this, but by that reasoning, the rule would seem to apply or should perhaps apply universally in a given case.

Frederica Freyberg:

You know, back to the victim thing. If someone is shot dead by gunfire, I just fail to understand how they are not victims.

Lanny Glinberg:

Well, I tend to agree with you by any regular use of the term victim. Even a person shot dead in a justified act of self-defense, they’re still a victim of a gunshot wound. But I think what a judge in a circumstance like this may be doing is taking extra care to make ensure that the defendant’s presumption of innocence is not in any way biased by a term like victim, concluding or suggesting that the court has concluded that a crime was committed. Again, the judge’s job is to ensure that both Mr. Rittenhouse gets a fair trial and the state gets a fair trial.

Frederica Freyberg:

Clearly Kyle Rittenhouse is claiming self-defense in this. How hard will it be for the prosecutor to convince the jury it wasn’t self-defense?

Lanny Glinberg:

The prosecutor’s job will be to prove that Mr. Rittenhouse’s actions were unreasonable in several ways. That his belief he faced a threat of imminent death or great bodily harm, that’s the requirement for someone to use deadly force in the self-defense context. The state will have to prove that if he believed that, that that wasn’t reasonable or that the amount of force that he used was unreasonable in that circumstance. And the state will have to prove that like every other element of the offense that he caused the death of those that he shot.

Frederica Freyberg:

So the eyes of the nation are on this case. Is that a consideration inside the courtroom?

Lanny Glinberg:

Well, I think realistically everybody in the courtroom knows that. This is a significant case about issues that are highly charged and very significant and fraught in our society. Still, though, everybody in the courtroom will have to do their job and will be focused on it. The judge’s job is to ensure a fair trial for both sides. The state’s job to prove each element of the offense. And Mr. Rittenhouse’s counsel to defend him from the charges that the state is bringing.

Frederica Freyberg:

We leave it there. Lanny Glinberg, thanks very much.

Lanny Glinberg:

Thank you for having me.