Judge opens path for jury to clear Kyle Rittenhouse on firearm possession charge

The judge in the Kyle Rittenhouse trial on Friday said he'll instruct the jury that unless the state proved the teen's AR-15-style rifle had an unlawfully short barrel, he can't be convicted of being a minor in possession of a firearm.

No such evidence was introduced, so it seems likely Rittenhouse will be acquitted on the one charge that seemed obvious to everyone but his lawyers who challenged it from the very start. It might not even get to the jury.

Rittenhouse was 17 when he killed two people and wounded a third during protests in Kenosha in August 2020. He testified he feared for his own life in each instance.

Gov. Tony Evers on Friday said he mobilized about 500 troops to be on standby in the area to help local law enforcement agencies if there is unrest following the verdict.

“We continue to be in close contact with our partners at the local level to ensure the state provides support and resources to help keep the Kenosha community and greater area safe,” Evers said in a statement. “I urge folks who are otherwise not from the area to please respect the community by reconsidering any plans to travel there and encourage those who might choose to assemble and exercise their First Amendment rights to do so safely and peacefully.”

The legal fight in the case continued in the courtroom, only this time it was outside the jury's earshot.

Judge Bruce Schroeder had denied earlier motions to dismiss the misdemeanor count based on the same defense argument that an exception in the poorly-worded statute allows 16- and 17-year-olds to carry long guns in public.

Prosecutors have argued repeatedly the statute clearly makes that a crime, and that an exception the defense cites applies only to teens those ages when they're hunting, and have a hunter safety certificate.

To interpret the statute otherwise, they said, results in the exception swallowing the rule, and makes it a crime for a 17-year-old to carry brass knuckle or nunchucks, but okay to carry assault-style rifles.

Schroeder's refusal to dismiss the count left the defense to argue its interpretation of the statute's exception as an affirmative defense, and to ask that the judge explain that to the jury.

Prosecutors said the defense never raised the defense during trial, so they weren't entitled to the instruction.

Defense attorney Corey Chirafisi said he did bring it up when he asked a detective if there was anything illegal about the weapon when he recovered it as part of the investigation. The detective said no.

Assistant District Attorney James Kraus cited testimony from several witnesses who said they knew Rittenhouse couldn't possess the rifle last year because he was only 17. He had a friend buy it and store it for him in Kenosha until they each took rifles downtown on the third night of violent protesting in the wake of a police officer shooting Jacob Blake Jr.

Schroeder made a host of other rulings during Friday's session, which was held without the jury. Prosecutors sought to have lesser-included offenses added to several the original charges.

Rittenhouse is charged with first-degree reckless homicide in the death of Joseph Rosenbaum. To prove that charge, the state has to show Rittenhouse acted with utter disregard for human life.

Prosecutors want the jury to find Rittenhouse guilty of second-degree reckless homicide if they found all the other elements of the crime except utter disregard for human life.

Schroeder declined that request, and will give the standard instruction for first-degree reckless homicide and one about self-defense. Rittenhouse maintains all eight shots he fired that night of Aug. 25, 2020 were in self-defense.

Another count charges first-degree intentional homicide of Anthony Huber. Without objection from the defense, Schroeder will allow two possible lesser included offenses — second-degree intentional homicide and first-degree reckless homicide.

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The nonfatal shooting of Gaige Grosskreutz was charged as attempted first-degree intentional homicide. Prosecutors want to add attempted second-degree intentional homicide and first-degree reckless homicide as jury options.

The defense objected only to the reckless homicide option. Schroeder said he was leaning toward granting prosecutors' requests, but planned to do more research.

Rittenhouse is also charged with two counts of first-degree reckless endangerment, for shots fired toward a videographer who was in the line fire when he shot Rosenbaum and for two shots fired an unidentified man who jumped over Rittenhouse and kicked him in the face.

Schroeder said he's inclined to instruct on second-degree reckless endangerment in the videographer count, but said he would not give it for the kicker count.

Schroeder said he would send his final proposed jury instructions and verdict forms to the lawyers on Saturday and would address any final objections and changes Monday before reading them to the jury ahead of closing arguments.

Also Friday, the Kenosha County Sheriff's Department confirmed it has been monitoring social media after the home address of Assistant District Attorney Thomas Binger was posted on a messaging platform favored by extremists.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.

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This article originally appeared on Milwaukee Journal Sentinel: Jury instruction may clear Kyle Rittenhouse on gun possession charge