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Post Rittenhouse Trial: Parallels with Bernhard Goetz?
Created by John Eipper on 11/24/21 3:22 AM

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Rittenhouse Trial: Parallels with Bernhard Goetz? (David Duggan, USA, 11/24/21 3:22 am)

To answer John E, I meant what I wrote that the Rittenhouse case creates no precedent for the history books or legal texts. There is nothing to study.

The judge didn't rule on whether the prosecutor's atrocious behavior violated Rittenhouse's constitutional rights by commenting on his failure to open up to the authorities before he testified in his own behalf, or by not turning over the enhanced video until right before closing argument, or by arguing an incorrect legal standard in his closing argument, that self-defense does not apply if you provoke the attack by bringing "a gun to a fistfight," or by failing to measure the barrel length of the AR-15 which led to the jury's hearing utterly irrelevant evidence. These errors get "lost in the verdict and the judgment of acquittal." The state cannot appeal the verdict, so any historian or legal "expert" would be only speculating that any of these would have caused an appellate court, looking at the stone cold record, to reverse because these errors violated Rittenhouse's fundamental rights to a fair trial.

Evidently Binger, the Assistant District Attorney, has a history of "pushing the envelope" in his trial tactics, and while I tried to get another example, it doesn't matter: his deportment during this case is evidence enough of trying for a win rather than to do justice. There is really nothing new about this. Locally, the entire Cook County State's Attorney's office, headed by Richard M. Daley, later Chicago mayor, had a reputation of "getting the conviction": we'll defend it on appeal. Dozens of defendants were convicted with fabricated evidence, either tortured confessions or perjured testimony, under this standard, and languished in jail waiting for the Innocence Project to take note and get exonerations. According to the National Registry of Exonerations (a UMich and Mich State Law School project, probably the only time those schools have collaborated on anything), Cook County leads the country with 230 convicted persons walking out of prison because their rights were violated.

Even if Rittenhouse had been convicted, his conviction would not have been final until upheld on appeal. Kenneth Lay, the former head of Enron, died while his appeal was pending, and his conviction was expunged. What difference does it make? Any order of restitution would also have been remitted. (His co-defendant Jeffrey Skilling--younger brother of long-time Chicago weatherman Tom--appealed all the way to the Supremes which reversed his conviction for "honest services fraud," a long-time appellate issue in criminal law as prosecutors continue to charge officials, both corporate and government, under this statute, regardless of whether they personally profited from the fraud.) But his defense lawyer didn't try the case to the appellate court and was rewarded for his judgment to put Rittenhouse on the stand. The appellate court would have had to decide whether the manifest errors were "harmless beyond a reasonable doubt" or the equally impossible counter-factual analysis: whether, given the evidence that was properly admitted, a properly charged jury would have had sufficient grounds on which to render a guilty verdict. Of course, the jurors aren't asked whether they would have convicted without the evidence; they've done their service and how could anyone answer that question anyway? At best this is a thought experiment worthy of Einstein or Schrodinger, not a jury of laypeople.

Since there is no "legal precedential value" to this case, at best you'll have to look to similar cases for any lessons. Thirty-five years ago, Bernhard Hugo Goetz was tried on charges relating to his shooting four men in a New York City subway who he claimed were menacing him. He was acquitted on attempted murder and 1st degree assault charges, but convicted on a weapons charge and served 8 months in jail. A subsequent civil suit resulted in a $43 million judgment which Goetz hasn't paid a penny of. New York has changed its standard for self-defense (it used to be "retreat to the wall"; now it's what a reasonable person would have done in the circumstances). And the crime rate in NYC has dropped to 1960s levels (but it has rebounded in recent years thanks to Covid and an end to the "stop and frisk" police tactics under thankfully departing Mayor deBlasio). Since 1984 so far as I can tell, nobody has been shot on the subway. Goetz had that beneficial effect on the city that never sleeps.

JE comments:  Ah, Goetz.  Haven't thought about him in awhile.  David, I appreciate your legal insight into the trial, although I'm still at a loss how self-defense can apply to someone literally looking for a fight.  Legal standards are one thing, but common sense another.  Perhaps it's good I don't practice law.

But let's let it rest and turn to the certainty of a civil case against Rittenhouse.  He is enjoying his 15 minutes of fame at present, and it will prove lucrative.  He is probably considering ways to hide his newfound wealth from the inevitable civil judgment.  Here's my question:  should the case go against Rittenhouse, can they force him to pay--for starters, from his crowd-sourced legal fund?


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  • Thomas More and the Rittenhouse Verdict (Mendo Henriques, Portugal 11/24/21 6:22 AM)
    The infamous outcome of the Rittenhouse trial is encapsulated in summum jus summa injuria, a formula coined by someone who knew a thing or two about law, Thomas More.

    I am amazed by the self-defense laws in Wisconsin.


    JE comments: A gloss:  The law, when applied in its strictest sense, can also lead to extreme injustice. Mendo, your interpretation is probably generalized throughout Europe:  how can an assault-rifle toting hooligan be acquitted on self-defense?  With the Rittenhouse judgment, many stereotypes about American society have been confirmed--for starters, vigilantism and our obsession with guns.

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