Outrage struck again, which would ordinarily make this a day like any other, but this time it was over rulings in limine by Kenosha County Circuit Court Judge Bruce Schroeder in advance of the trial of Kyle Rittenhouse.
The motion asks that the defense “be prohibited from referring to Joseph Rosenbaum, Anthony Huber or Gaige Grosskreutz as ‘rioters,’ ‘looters,’ ‘arsonists’ or any other pejorative term. Much like this court prohibits the state from referring to anyone as a “victim,’ these terms prejudice the status of these individuals.”
The motion also asks that all parties in the case refer to Rittenhouse, the witnesses and the men shot “formally by their last names.” Throughout the case, supporters of Rittenhouse have typically referred to him as Kyle, emphasizing his youth.
It’s been the judge’s practice to prohibit the prosecution from using the word “victim” to characterize those whom the prosecution seeks to have the jury find to be victims. That’s the point of trial, to determine whether they are the victims of a crime or the aggressors against whom the defendant used self-defense.
At an earlier hearing in the case, Schroeder told prosecutors they could not refer to any of the men shot in the case as victims. That is Schroeder’s standard practice in criminal cases and is not unique to his handling of the Rittenhouse case.
This shocked many people for whom the conclusion is already obvious, and who can’t conceive of how someone killed could be anything other than a victim. While that’s the very question to be decided by the jury, and the burden to be proved by the prosecution at trial beyond a reasonable doubt, this was so contrary to their outcome-oriented beliefs that it smacked of the judge tilting the playing field in favor of the defense, tying the prosecution’s hand behind its back by preventing the use of such an obvious descriptor.
The ruling was neither shocking nor unusual, and as noted, this was the judge’s ”standard practice.” The point of the trial is to determine whether the deceased were victims or not; to call them victims before the jury found that a crime had occurred is to beg the question. Proof first, characterization after.
Does it matter? That’s a harder question to answer. For those familiar with the rhetoric of Title IX cases, the accusers invariably describe themselves as “victims” and “survivors,” even if their claims were never tested or were tested in prejudiced proceedings. They appreciate the power of the word, and that it’s served them well in creating a widespread belief that they are, indeed, “victims” for no better reason than they say so. Who needs evidence when rhetorical prejudice will do?
Every competent defense lawyer will challenge the prosecution’s effort to use the device of rhetorical repetition, to call the deceased “victims” over and over, and over, in order to create an indelible mark in the mind of the jury that they are, indeed, the victims. At the same time, the defense seeks to prevent that from happening, from implanting a belief in the jurors’ heads based not on evidence, but on language.
Whether it really matters, whether it changes the outcome, is harder to know. The rhetoric is one of a thousand things happening simultaneously at trial, each of which may matter and all of which affects every other thing happening. To isolate one thing, like using the word “victim,” and claim that it’s so prejudicial as to overwhelm the jury’s ability to otherwise fairly assess the evidence, is hard if not impossible. No doubt academics will conduct empirical studies to prove the point, but they’re of dubious value as they don’t really reflect the thousand collateral and contingent things happening simultaneously at trial.
Yet, every competent lawyer turns over every possible stone for the benefit of his client. You never know what will be a big deal or a “nothingburger,” but why take a chance? If there is any possibility that it could have a negative impact on the defendant, fight it. And, indeed, calling the deceased “victims” serves no legitimate purpose at trial and is designed to create as much of a prejudicial conclusion in the minds of jurors as possible. Just as the defense seeks to prevent this from happening, the prosecution seeks to make it happen. That’s how adversary systems work, using whatever is available within the bounds of the law to make the case.
But then, the other motion, to preclude the defense from “referring to Joseph Rosenbaum, Anthony Huber or Gaige Grosskreutz as ‘rioters,’ ‘looters,’ ‘arsonists’ or any other pejorative term,” inflames the rhetorical concerns. No jury has concluded that any of the deceased were “rioters, looters or arsonists,” each of which is a crime, making the perpetrators thereof criminals, thus tainting the deceased for conduct for which they were not convicted. Of course, they aren’t on trial, both because this is the trial of Kyle Rittenhouse and because they’re deceased.
It’s unclear that the defense had any intention of using those words, although there was reason for concern in anticipation of trial.
At another hearing, defense attorney Mark Richards, while arguing that Rosenbaum’s criminal history should be heard by the jury at trial, called Rosenbaum a rioter. “These were not protesters, they were rioters,” he said at the time while arguing that he believed Rosenbaum was trying to steal Rittenhouse’s gun.
Whether Rosenbaum was a “rioter” isn’t itself in issue, but would serve the defense in its effort to show that he was inclined to violence and his motives during his interaction with Rittenhouse were salutary.
Are these mere games being played? To some extent, sure, but they can also produce unnecessary and improper issues at trial. If Rittenhouse takes the stand and is asked, “did you shoot the victims?” will he respond “no,” not because he didn’t shoot but because there were no “victims”?
From the court’s perspective, keeping the trial focused on the evidence rather than whatever influence gaming rhetorical devices may have will best serve reaching a legitimate outcomes. By limiting words that inflame or prejudice, and substituting neutral and accurate words in their place, the judge can prevent needless issues and prejudice. But if the lawyers want to call their client “Kyle” rather than “Mr. Rittenhouse,” that really isn’t anyone’s call but their own. It’s not as if the jury can’t see that he’s a kid.
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