ABATTBQ11 said:
NASAg03 said:
EDIT: All that to say, once the judge allowed the vagueness of "provoking" to enter deliberation discussions, we knew this was going to be hung. Provoke is in the eye of the beholder and the law isn't defined well enough. As such, here we are.
Provoke is pretty well defined, legally speaking. I think the issue is that the judge didn't do a good enough job of explaining it and the defense didn't do a good enough job of countering it. What they should have said and never touched on is that the police witnesses testified there were more armed than unarmed people that night and Rosenbaum was undeniably around dozens of other armed individuals, yet their being armed was never provocation enough for him to attack them prior to his attack on Rittenhouse. Logically, the mere act of being armed was thus not provocative to him.
Rittenhouse raising his gun could be the only distinguishable provocative act, but whether he even did so is a matter of debate, and thus in reasonable doubt. The defense should have said, unless every juror sees it, unquestionably, then the doubt that it even happened is reasonable and every juror must act and vote as if it did not because the state has failed to prove beyond a reasonable doubt that it did.
IMO, Richards did a bad job of spelling out his arguments in unequivocal terms that addressed the state's arguments and positions. He should have put himself in the jury's shoes and thought, "What sentence do I need to hear to conclude or be persuaded of _____?" or come up with statements that force the jury's hand on logic (If the glove does not fit, you must acquit).
This is all Monday morning QBing to some extent.
The provoking argument appeared out of thin air over the weekend after the State was getting smashed. The defense was not well prepared to handle it on short notice.
That said, that is part of the process. You need to be able to pivot. What we got was an angry Richards yelling at the prosecution during his close for playing dirty, instead of a methodical destruction of their provocation argument.
Now that this is over, its a lot easier to see the right way forward. But, I'm not a lawyer for a living, either. And no one here has been living this case 24/7 (at least I hope not) for the last year. The defense team should have been able to pivot their case, especially by the time they got to close.
It's a shame that Kyle didn't get a better defense, and that is on both the lying, scummy prosecutors and the defense's inability to change direction. Wisco gets high marks for doing her job as 3rd chair, with a solid command on what and what was not in evidence, and ready to speak up boldly on the fly when it mattered most.