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On Kyle Rittenhouse Verdict, ‘It’s Hard to Prove a Negative’

Prosecutors had a tough task ahead of them to defeat self-defense claims, former Supreme Court justice says.

Prosecutors faced an uphill battle, one they ultimately didn’t win, in convincing a jury that Kyle Rittenhouse didn’t reasonably fear for his life or that he’d be seriously injured when he shot and killed two men and severely injured another on the streets of Kenosha in what defense attorneys argued were acts of self-defense.

“The state had to prove a negative, that Kyle Rittenhouse was not under the protection of self-defense and that he did not reasonably believe that his life was in danger,” retired Wisconsin Supreme Court Justice Janine Geske told Milwaukee Magazine on Friday. “It’s hard to prove a negative.”

Geske, who also served as a professor at Marquette University Law School and was director of the school’s Restorative Justice Initiative, said the state faced a high burden of proof in the case.

Under Wisconsin law, deadly force is permitted if a defendant reasonably believes it to be necessary to prevent death or great bodily harm. Prosecutors argued that Rittenhouse acted as an aggressor and instigator and therefore wasn’t protected by the self-defense standard.

“It’s a very high burden, particularly when you have a defendant like Mr. Rittenhouse, who takes the stand and who was consistent in his testimony and clearly talked about his fear and his desire to stop the aggression on him,” Geske said.



Now, Geske said she’s worried about how the public will view the decision handed down early Friday afternoon that acquitted Rittenhouse of all criminal charges against him.

“I am concerned, personally, about whether people see this as some kind of message, that protesters and counter-protesters can come into turmoil and bring loaded AR-15s or other types of dangerous weapons,” she said. “As soon as people start using force and threats against each other, then we’ll wind up with people that are unfortunately either injured or killed. I’m worried that some people are going to see that as the message. I don’t think it is. The message is that the state didn’t prove [Rittenhouse] guilty.”

The verdict ended a case that drew nationwide attention for its ties to the uprisings that occurred in the summer of 2020 over police brutality and racial injustice. Rittenhouse, now 18, had been charged with homicide, attempted homicide and recklessly endangering safety.

Rittenhouse fatally shot Joseph Rosenbaum and Anthony Huber and injured Gaige Grosskreutz in downtown Kenosha on the night of Aug. 25, 2020. Kenosha had erupted into chaos after a white police officer shot Jacob Blake, a Black man, seven times in the back, leaving him partially paralyzed, two days earlier. Tensions already had been high throughout the summer after George Floyd died under the knee of a Minneapolis police officer in May, sparking nationwide protests.

Rittenhouse, who traveled to Kenosha from Antioch, Illinois, and was armed that night with an AR-15-style rifle, contended that he was called on to protect property. He also claimed he was there to serve as a medic, although he had no formal training. Others cast him as a vigilante who fueled the situation that led to the shootings.

Jurors debated the case behind closed doors for more than 25 hours over four days before reaching a unanimous verdict.

“It looks, at least from the outside, that the jury did exactly what a jury is supposed to do, which is seriously deliberate on the facts,” Geske said. “They clearly, at least in my view, were not unanimous at the beginning of their deliberations. They additionally looked at evidence, they re-looked at jury instructions, they went home when they were tired and came back again.”

As the jury deliberated into a fourth day, Geske said she assumed it favored the state in the case.

“Obviously, that wasn’t true,” Geske said. “However, I think it shows that there was a least one juror, if not more, who thought [Rittenhouse] was guilty of something. That can take some time. Sometimes, jurors just won’t budge. The jury could have come out and said they couldn’t reach a verdict. Whatever jurors were objecting to finding him not guilty obviously were convinced by the end.”

Geske said she was surprised, given how long the jury was out, that Judge Bruce Schroeder, the judge in the case, didn’t individually poll the jury.

“Usually, particularly in a first-degree homicide case, you ask each juror ‘Was this and is it still now your verdict?’ just to make sure they are all solid in it,” Geske said.

Geske described Rittenhouse as “one of the best prepared witnesses I’ve ever seen.”

“He stuck to what I call a script and his answer of ‘I was just trying to stop the threat.’ No matter how the state asked a question or changed the question, he never varied from that answer,” Geske said. “He really gave the state nothing in terms of his cross-examination and obviously his direct [examination]. I’m sure that it contributed to the jury finding him not guilty.”

Schroeder attracted attention for some of his rulings and other behavior in his courtroom throughout the trial.

“Most of his legal rulings were correct and I agree with them, but he certainly walks to the beat of a different drummer and handles his courtroom different than many of us would,” Geske said. “Losing his temper, although it was outside the presence of the jury, got everybody riled up. I worry that when a judge loses his or her temper, then the lawyers react in kind and things can disintegrate.”

Geske had concerns over some of Schroeder’s actions. His phone rang out “God Bless the USA” while court was in session, for instance, and he joked about a lunch order of Asian food being delayed in Long Beach Harbor.

“Some of the things I was worried about included applauding for a defense witness on Veterans Day,” she said. “His ringtone was unfortunate and his joke around food was unfortunate. But I thought one of the biggest questions was letting the jurors take the jury instructions home. I thought that was inviting trouble. The whole idea is that they do this together and work it through together. There weren’t any egregiously bad rulings by him, but he’s certainly a character.”

Rittenhouse originally faced another charge, which Schroeder dismissed due to a confusingly worded law. Although the law states that anyone under 18 – Rittenhouse was 17 at the time of the shootings – who possesses a dangerous weapon is guilty of a misdemeanor, there are exceptions for hunting and target practice. But Rittenhouse’s attorneys successfully argued that another exception allows 16- and 17-year-olds to carry rifles and shotguns as long as they aren’t short-barreled.

“One thing clearly that would have made a big difference here is that they could straighten out the statute that deals with minors possessing dangerous weapons,” Geske said. “I think the judge was right, legally, to dismiss that case but that also sent a bad message that bringing in an AR-15 to the streets as Rittenhouse did, that it’s somehow lawful. The Legislature needs to change that.”



Rich Rovito is a freelance writer for Milwaukee Magazine.