LIVE VERDICT WATCH: Jury deliberations enter day 3 in the trial of Kyle Rittenhouse: www.wisn.com…
The judge presiding over the Kyle Rittenhouse trial banned MSNBC from the courtroom on Thursday after a man claiming to be a producer for the network was accused of following jurors.
The man, who identified himself as James Morrison, was pulled over Wednesday after he allegedly blew a red light while pursuing a bus that transports jurors from the Kenosha County Courthouse, Judge Bruce Schroeder said.
“He stated that he had been instructed by a superior in New York to follow the jury bus,” Schroeder said.
Police confirmed Thursday that there was an “incident with a person who is alleging to be affiliated with a national media outlet” and the suspect was issued several traffic citations.
“Police suspect this person was trying to photograph jurors. This incident is being investigated much further,” police said.
On the surface, it looked like prosecutors’ easiest task at Kyle Rittenhouse’s murder trial would be convicting him of a much less significant charge — being a minor in possession of a firearm.
Rittenhouse was 17 when he shot three people, killing two, with a semi-automatic rifle on the streets of Kenosha, Wisconsin, during a protest against police brutality last year. Prosecutors brought multiple charges against him, including first-degree intentional homicide, attempted homicide, reckless endangerment and the firearm possession count.
With legal experts saying prosecutors struggled to counter the Illinois man’s claims of self-defense, the best bet for a conviction looked like the gun charge. But Rittenhouse’s defense team dug up an exception to the prohibition and Judge Bruce Schroeder dismissed the count Monday, just hours before jurors got the case.
“It’s very significant,” former federal prosecutor Phil Turner, who is not involved in the case, said of Schroeder’s decision. “It sounds like he’d be guilty of that and he’d get a conviction. You can at least assuage the public you’ve got something as opposed to coming away with absolutely nothing, which is a distinct possibility in this case.”
Under Wisconsin law, anyone under 18 who possesses a dangerous weapon is guilty of a misdemeanor punishable by up to nine months behind bars.
On its face, convicting Rittenhouse on that count looked like a legal slam dunk. No one contested that he was 17 the night of the protest in August 2020. Bystander and surveillance video clearly shows him walking around with the rifle strapped to his chest before the shootings, using the gun to shoot and kill Joseph Rosenbaum and Anthony Huber and wound Gaige Grosskreutz.
But Rittenhouse’s attorneys seized on a subsection of the Wisconsin law that they argued limited it to short-barreled shotguns or rifles. Rittenhouse’s AR-15-style rifle was not short-barreled.
They asked Schroeder to dismiss the possession count on those grounds at a pretrial hearing in October. The judge acknowledged the intersection of the statutes was murky but ultimately refused to toss the charge. He said he might revisit the defense request, however.
As Schroeder and attorneys from both sides debated the wording of jury instructions on Monday the defense renewed its request to dismiss the possession charge. Assistant District Attorney James Kraus argued that reading the statute to allow minors to carry any weapon except a short-barreled rifle or short-barreled shotgun basically negates the prohibition on minors carrying weapons.
“I believe that this . . . essentially swallows the entire statute,” Kraus said.
But this time Schroeder dismissed the charge after Kraus acknowledged that Rittenhouse’s rifle wasn’t a short-barreled. The judge noted that prosecutors filed a “very nice brief” laying out their arguments but that it should have been clear he had a “big problem” with the prohibition statute.
He said prosecutors could have asked a state appeals court to rule on whether the charge was valid “all along.” Then he caught himself, noting that he never issued a ruling against the prosecution that might have triggered such a request until just then with closing arguments minutes away.
“I think it ought to have been mighty clear that I had big problems with this statute,” Schroeder said. “I made no bones about that from the beginning. And there always was access to the court of appeals all along here. Well, I guess that’s not fair for me to say because I was sitting on it. So shame on me.”
Kenosha defense attorney Michael Cicchini, who is not involved in the case, said legal doctrine demands that when statutes aren’t clear they must be read in favor of the defense.
“This is the price the government must pay when it is incapable of drafting clear laws,” Cicchini wrote in an article discussing the doctrine.
Prosecutors can ask a state appeals court for clarifications and rulings in the middle of a case; they don’t have to wait until a verdict comes down. But usually prosecutors don’t make such a move unless a judge hands down an adverse decision, Cicchini said. In Rittenhouse’s case, Schroeder didn’t rule against Kraus until minutes before closing arguments began.
Turner, the former federal prosecutor, said prosecutors should have realized the issue wasn’t settled and headed Schroeder off by asking an appellate court for a ruling or filing more briefs.
“I’m hesitant to jump to the conclusion that the judge is doing something unfair to (prosecutors),” Turner said. “When the judge expressed skepticism early, they should have done something to make sure it’s clear. In a case of this magnitude, if I’m the prosecutor and the judge has expressed some skepticism or doubt about this, I’m going to do everything I can to sustain that count. When you heard early on there was some doubt, you’ve got to get on this.”
Prosecutors could immediately ask the court of appeals to stop the proceedings pending a ruling on the charge’s validity, but there was no indication Monday that they planned to do so.
Former Waukesha County District Attorney Paul Bucher downplayed the dismissal of the charge. He argued that it might even clarify the case for jurors.
“You’re talking about this extremely minor charge,” Bucher said. “(Prosecutors) are missing the boat. This is a homicide case. We had two individuals killed and one almost killed and they’re focusing on possession of a firearm. If the government thought this was the only count they could succeed on, yikes.”
The jury in Kyle Rittenhouse's homicide trial concluded its third day of deliberations Thursday without a verdict in a day that featured the judge's decision to ban MSNBC from the courtroom for allegedly following a jury bus.
The 12-person jury, made up of five men and seven women, deliberated from 9 a.m. to about 4 p.m. CT on five felony charges related to the killing of two people and the wounding of another during last year's unrest in Kenosha, Wisconsin.
Jurors have deliberated for an estimated 23 hours total on Tuesday, Wednesday and Thursday. The jury is expected to resume deliberations at 9 a.m. CT Friday.
What we know about the deliberations In court Thursday, Kenosha County Circuit Court Judge Bruce Schroeder said a man was driving about a block behind the jury bus on Wednesday evening and went through a red light. The man was pulled over by police and told them he worked for NBC News and had been instructed by his boss to follow the jury bus, the judge said.
Schroeder said no one from MSNBC would be permitted into the building for the rest of the trial as the matter is under further investigation. He said following a jury bus is an "extremely serious matter" and would be referred to authorities for further action.
Facebook Inc said on Wednesday it removed a page for the Kenosha Guard, a group which had posted a “call to arms” in Kenosha, Wisconsin, saying the page violated its policy against “militia organizations.”
The company’s action followed the shooting deaths on Tuesday night of two people during protests in Kenosha, which broke out in response to the police shooting of a Black man earlier this week.
Authorities charged a 17-year-old from Illinois with homicide on Wednesday in connection with the deaths.
Militias organized rapidly on Tuesday on Reddit and Facebook, where users shared coverage from Infowars, a right-wing conspiracy site. Infowars in turn amplified the Kenosha Guard’s Facebook post and said the groups were “recruiting citizens to patrol.”
Though Facebook banned Infowars’ page long ago, tracking tool CrowdTangle showed its article on Kenosha was shared 274 times, according to the Atlantic Council’s Digital Forensics Research Lab. It was also posted nine times to pages with a combined audience of more than 103,000 people.
Many of the pages contained threats of violence.
One commentor wrote on the Stand Up Kenosha page on Facebook: “Shoot to kill folks. Cause they won’t give you a second chance.”
A Facebook spokeswoman said the company had not found evidence suggesting the shooter followed the Kenosha Guard page or had been invited to its event.
She said Facebook was also removing content tied to the shooting, including the suspect’s page, which previously showed him posing with rifles.
Reddit did not respond to a request for comment, although posts threatening to bring guns and pipe bombs and to “cleanse Kenosha of the rioters” were deleted there too.
Before its removal from Facebook, the Kenosha Guard’s profile photos featured a large American flag and a man holding a military-style rifle.
"Any patriots willing to take up arms and defend out (sic) City tonight from the evil thugs?" one post read, according to the Milwaukee Journal Sentinel. (bit.ly/2YC9uGJ)
The group, which identified itself as a “social club,” also created a Facebook event called “Armed Citizens to Protect our Lives and Property” on Tuesday and warned police they would be “outnumbered.”
Created on June 2, the page had nearly 3,500 followers as of Wednesday morning.
After the shooting, the group posted a statement saying it was “unaware if the armed citizen was answering the Kenosha Guard Militia’s call to arms.”
Reporting by Katie Paul and Joseph Menn; Editing by Franklin Paul, David Gregorio and Richard Pullin
Watch Live: Law&Crime Network is Live With Kyle Rittenhouse Verdict Reaction!
REMINDER of the judge's ruling in defense use of force expert testimony: Schroeder told the attorneys that Black wouldn’t be allowed to testify about what Rittenhouse was thinking when he pulled the trigger or whether he definitively acted in self-defense.
[img src="" alt=" "]
Assistant District Attorney Thomas Binger said if Schroeder allowed Black to testify only about the timeline of events that night he wouldn’t call his own expert to the stand. Defense attorney Mark Richards agreed to the deal.