Consistency is Not Always a Hobgoblin
Progressives are showing a disquieting inclination toward situational ethics in the Kyle Rittenhouse trial
I’m Michael A. Cohen, and this is Truth and Consequences: A no-holds-barred look at the absurdities, hypocrisies, and surreality of American politics. If you received this email - or you are a free subscriber - and you’d like to subscribe: you can sign up here.
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Apologies for the late post today, but my kids were out of school today for Veterans Day, and I decided to take most of the day off and spend it with them. I’ll be Zoom Casting tomorrow at 12:30. Link to come in the AM.
Stupid, But Perhaps Not Criminal
In August 2020, Kyle Rittenhouse grabbed a Smith & Wesson M&P 15 rifle, jumped in a car, and drove to Kenosha, Wisconsin to “patrol” the town’s streets after protests broke out following the police shooting of Jacob Blake. Rittenhouse’s actions were stupid, reckless, and immature. They led to the deaths of two men, who Rittenshouse shot and killed. As his trial for murder unfolds in a Wisconsin courtroom this week, what's far less clear is whether he committed a crime.
I had not followed the Rittenhouse case very closely and largely assumed that he was guilty. But upon closer examination, I’m not so sure. Whatever my personal feelings about his actions, it is clear that Rittenhouse’s claims of self-defense, as bizarre as they might seem, have validity under Wisconsin law. It’s very difficult to see how prosecutors get a guilty verdict from the 12-person jury.
I’m relying today on the write-up of the case by Isaac Saul, who runs a fantastic Substack newsletter called “Tangle” (you should subscribe). Saul is as non-partisan and even-handed as they come, and he brilliantly lays out the case's particulars.
I had not fully realized until reading Saul’s piece that Rittenhouse was physically attacked by both men he shot.
While patrolling the streets, Rittenhouse was confronted first by Joseph Rosenbaum, a 36-year-old who had spent most of his adult life in prison for sexually assaulting children, and had been released from a Milwaukee mental hospital that day after attempting suicide. Rittenhouse testified that in his first interaction with Rosenbaum, the man threatened Rittenhouse's life. Later that night, Rittenhouse and Rosenbaum had a second confrontation in the parking lot of a car dealership, surrounded by demonstrators and militia members.
Rosenbaum was carrying a plastic bag the hospital had given him, which contained deodorant, underwear, and socks. Rosenbaum threw the bag at Rittenhouse, and then charged him. Rittenhouse testified that Rosenbaum tried to grab his gun, and Rittenhouse then fired, hitting Rosenbaum in the back and groin, and then the head. Immediately after the shots were fired, Rittenhouse began jogging away from the scene. Protesters surrounded Rosenbaum, trying to stop the bleeding. Rittenhouse was seen in a video on his cell phone, telling a friend "I just killed somebody." Rosenbaum died from his wounds. “Get his ass!” someone yelled as Rittenhouse fled.
The second incident is even more clear-cut.
One of the men who began to pursue Rittenhouse was Anthony Huber, who was attending his second protest, prompted to attend by his personal relationship he said he had with Jacob Blake, the man whose death had sparked the civil unrest … Huber was an avid skateboarder and pursued Rittenhouse with his skateboard in hand. As Rittenhouse jogged down the street, he passed Gaige Grosskreutz, a regular demonstrator who had actually worked as a paramedic, had attended over 100 protests, and was carrying tourniquets and a medical kit. Grosskreutz was also armed with a pistol … “I am going to get the police,” Rittenhouse replied. As Grosskreutz realized what was happening, he began to give chase as well.
As Rittenhouse ran past Grosskreutz, he stumbled and fell. One man tried to deliver a flying kick to Rittenhouse but missed. Rittenhouse, now on the ground, fired at the man but missed. Then Huber approached, swung his skateboard at Rittenhouse and tried to grab his rifle. Rittenhouse fired again, hitting Huber in the chest. Finally, Grosskreutz approached, running toward Rittenhouse with his gun drawn. Rittenhouse fired again, hitting Grosskreutz in the right bicep. This entire sequence happened in a matter of seconds.
In court this week, Grosskreutz acknowledged that he pointed a gun at Rittenhouse and advanced toward him — and it was only then that Rittenhouse fired his weapon.
The prosecution has argued that by traveling to Kenosha with a semi-automatic rifle and seeking to patrol the city’s streets, Rittenhouse created the deadly situation that led to Huber and Rosenbaum’s deaths. They argue that Rittenhouse’s actions invalidate his claims of self-defense. These arguments are compelling.
The problem is that in Wisconsin, the bar for arguing self-defense is incredibly low. Deadly force is allowed if deemed “necessary to prevent imminent death or great bodily harm.” Jurors must decide if Rittenhouse sincerely believed he was in danger and whether that belief was reasonable. I struggle to see how the shooting of Huber and Grosskreutz could be considered anything but self-defense. Whatever my personal feelings about Rittenhouse’s actions, he fired his weapon at someone swinging a skateboard at him and another who had a gun in their hand. That sounds a lot like self-defense.
The first shooting is more complicated, as a plastic bag of deodorant, underwear, and socks is hardly a deadly weapon. But did Rittenhouse legitimately fear that Rosenbaum would take his gun and try to shoot him? Perhaps and in that uncertainly likely lies a not guilty verdict.
To be clear, I’m not defending Rittenhouse’s actions. I find it utterly insane that we allow teenagers to walk America’s streets with high-powered rifles. In no normal and healthy society would Rittenhouse be allowed to do what he did. But I am trying to honestly assess the facts in evidence. It’s logical to view Rittenhouse’s actions as incredibly stupid and reckless. But generally speaking, stupidity is not a crime in America.
Meanwhile, In The Peanut Gallery
However, because Rittenhouse is white and holds right-wing views, his trial has become yet another national flashpoint. Conservatives rallied around Rittenhouse, defended his actions, and raised tons of money for his legal defense fund. Liberals have argued that he is an unrepentant racist and white supremacist and have complained that if he were black, the particulars of this case would be very different. I am highly sympathetic to the latter argument. However, the first two are tangential to the legal issues of the case. Rittenhouse may be a racist or a white supremacist, but that is not the issue at hand. The question for this jury to decide is one of law: whether he had a right to defend himself from two attackers or whether his actions were so reckless that self-defense cannot protect him from responsibility.
But again, in our highly polarized times, that’s not how progressives are viewing this trial. Indeed, I was horrified to see this tweet from Democratic Rep. Hakeem Jeffries, who has been at the forefront of criminal justice reform efforts in Congress.
Putting aside the fact that members of Congress should not weigh in on ongoing criminal trials, this is the kind of bloodlust that I’ve seen repeatedly on Twitter about this case — and which has left me appalled.
As a progressive, I believe that criminal defendants have the right to due process and the right to be presumed innocent. I lament long prison sentences that remove the potential for those found criminally responsible to be rehabilitated for their crimes. I believe the criminal justice system is fundamentally biased against people of color. There’s something else too — I think, unequivocally, that children should not be prosecuted as adults.
Rittenhouse was 17 when these events took place. Wisconsin is one of only three states that consider 17-year-olds to be adults. Most states give prosecutors discretion in how they prosecute those under the age of 18, which in my view, they shouldn’t — because 17-year-olds are children, not adults. Indeed, there is significant scientific research that shows human brains at the age of 17 have not fully developed. They may not reach full maturity until 25. One could even argue that trying 18-year-olds as adults is wrong. So whatever my feelings about Rittenhouse’s crime or him personally, I stand firm in my belief that 17-year-olds should not be prosecuted as adults or face lengthy prison sentences.
When I pointed this out on Twitter yesterday, I received a predictable torrent of whataboutist attacks — many from people who, with a different and more sympathetic defendant, would likely take the position that 17-year-olds should not be tried as adults. But Rittenhouse is a snot-nosed kid who acted like a tough guy with a gun and got two people killed in the process. I get it. He’s completely unsympathetic, but that’s why prosecutors shouldn’t be charging children as adults. The more heinous the crime, the more unlikable the defendant, the more likely it is that a child will be treated like an adult.
It’s also why adherence to fundamental principles is so important. If you believe that children should not be prosecuted as adults, then you shouldn’t fall victim to situational ethics simply because a defendant is unlikable. It’s the same reason you can’t jump to conclusions without evidence — as I did. Consistency, as an attribute, tends to be overrated because people would be better off if they evolved in their views rather than stubbornly adhering to a particular position. But here, constancy is essential. Principles become meaningless if you suspend them in difficult situations like this case. Progressives do themselves and the causes they hold dear no favors by rooting for blood in the case of Kyle Rittenhouse.
What’s Going On?
Read Jeremy Stahl on why the accusations of bias against the judge in the Rittenhouse case are offbase.
Read the Kenosha News on why Rittenhouse’s assertion of self-defense might work.
The Washington Post has a good rundown of the legal issues at play in the Kenosha trial.
Lovely piece in Spin magazine on Dead and Company
Whoa! Former prosecutor and former criminal defense attorney here (and a big fan of your work.) I don't understand these two people you bring to your case analysis. Your criticism of your former self is valid; you jumped to the guilty assumption way too fast. But the criticism is coming from your newer self who is jumping to the innocent assumption way too fast. The statement that "what's far less clear is whether he committed a crime," strikes me as almost absurd. Had you just written "first degree murder" instead of "a crime," you might have pulled this column off, but even then, you are walking where juries and fact-finders tread, with a bit too much self assurance. Also, your indictment of Wisconsin as being one of only three states that consider 17-year olds adults implies that other states would handle this differently. In my own state--which isn't one of those three--Rittenhouse would certainly have been waived up and tried as an adult. I imagine that is true in most, if not all, other states. I see your disagreement with the concept, but juvenile justice systems generally are not set up to handle an almost 18-year old who killed two people regardless of your conclusion that he is innocent. If you are going to take all the people who are in this situation and keep them out of adult court, so be it but you will need to design some sort of new system to pick up the old juveniles. I assume that you are ready to do that. Fine with me, but it doesn't exist in my state and probably doesn't exist in most others. Try him as a juvenile here and if convicted, he will serve no time whatsoever. Prosecutors need to work with the system that they have. Your conclusion about self-defense would be fine except that this is what juries do. It looks like Rittenhouse has enough facts to make out his case but you don't get to decide it. Was he really threatened to that degree or not? You have decided to accept his portrayal of what happened over the prosecution's portrayal of what happened I don't have any idea whether he will be convicted. You don't have any idea whether he will be acquitted. Finally, it is not blood lust to be this sick and tired of a system that consistently convicts young black men while acquitting young white men of the same acts. It is frustration, it is exhaustion. Those are not the same as blood lust.
What Kyle Rittenhouse did was wrong, granted the people who should actually be prosecuted are his parents. What parents in their right mind would think it's OK for their (under age) son to patrol the streets of a distant city with an AR-15? Furthermore, what political movement in their right mind thinks rioting is appropriate, which overwhelms our police, and causes the violence which drove American citizens to "take the law into their own hands" and defend private property? Finally: since (unfortunately) America is a highly armed and dangerous society, defunding the police (ahem: the people meant to protect citizens) is perhaps not the best idea because if they were properly equipped to handle this situation then Kyle may not have gone to Kenosha in the first place.
What Kyle did was idiotic and, I would argue in a just society, wrong. That doesn't make the current case a good legal one.