The judge in the United States murder trial of Kyle Rittenhouse, who is charged with killing two people during racial justice protests last year, has ruled he would allow the jury to consider that Rittenhouse had provoked one encounter.
The ruling on Friday is a boost for prosecutors because it opens the door for them to argue that Rittenhouse was the aggressor, which would raise the bar for Rittenhouse’s argument that he was ambushed and acted in self-defence.
Rittenhouse, 18, is charged in the killing of Joseph Rosenbaum, 36, and Anthony Huber, 26, and the wounding of Gaige Grosskreutz, 27, in Kenosha on August 25, 2020.
“It’s the jury’s case and I think they should make the critical decisions,” Judge Bruce Schroeder said on Friday. “My decision will be to submit the case to the jury with the provocation instruction and you can argue the strength or lack of strength of the evidence.”
The shootings, which took place against a backdrop of days of rioting and arson in Kenosha, Wisconsin, have divided Americans over whether Rittenhouse was a patriot who took a stand against lawlessness or a vigilante who brought a gun to a protest.
The events took place in the wake of the killing of George Floyd in Minneapolis and other police violence against Black people across the US.
Kenosha County Assistant District Attorney James Kraus on Friday showed grainy drone video of the Rosenbaum shooting as he argued that Rittenhouse raised his AR-15-style rifle shortly before the deadly encounter, initiating the confrontation.
Schroeder stepped down from the bench to watch the video on a television, with Rittenhouse standing close behind him leaning in and looking on. The judge agreed the issue should be up to the jury to decide.
Earlier, Schroeder had ruled against the prosecution’s request to allow the jury to consider a lesser charge in the killing of Rosenbaum, but he said he would allow the inclusion of lesser charges in the killing of Huber, who was shot after swinging a skateboard at Rittenhouse.
Prosecutors were seeking approval for less serious charges to be considered after days of testimony in which considerable evidence was presented to support the teen’s self-defence argument. Lesser charges lower the burden of proof for conviction.
Under Wisconsin law, if someone provokes a confrontation, they are required to exhaust all other options before using deadly force in self-defence. So if the prosecution can argue Rittenhouse was the aggressor, it could raise the bar for the defence.
But several witnesses told the court that Rosenbaum was making death threats and that he chased Rittenhouse and lunged for his gun before the teenager fired.
Rittenhouse himself testified that Rosenbaum, the first man he shot, threatened his life and grabbed the barrel of his gun.
Rittenhouse, who was 17 at the time of the shooting, is charged with first-degree reckless homicide in the death of Rosenbaum; first-degree intentional homicide in the death of Huber, and attempted first-degree intentional homicide in the shooting of Grosskreutz. He faces life in prison if convicted.
Jurors are expected to begin deliberating after closing arguments are heard on Monday.