More Rittenhouse: Why Prosecutors Brought a Case They Wouldn’t Win

When prosecutors lose a high-profile case such as the murder trial of Kyle Rittenhouse, the blame game kicks into high gear. 

Following Rittenhouse’s acquittal, some are pointing at Judge Schroeder’s sometimes questionable actions during the trial. Other are dissecting what they see as prosecutorial missteps during the trial. There is plenty of fodder for discussion in both instances. 

However, the biggest problem is that prosecutors brought a case that they had little chance of winning and failed to amend the charges before trial when it was clear that there would be problems. 

The context of the Rittenhouse case was emotionally charged. This was the third night of chaotic and violent protests that occurred in the context of the shooting of Jacob Blake. Kyle Rittenhouse, a 17-year-old from Illinois, inexplicably walked into the area with a semiautomatic rifle. During the ensuing hours, Rittenhouse shot three people, killing two. 

There was no middle-of-the-road reaction. These deaths were emblematic of a much deeper societal divide. 

Attorney L. Lin Wood (who is currently facing disbarment proceedings for his abuse of the legal system in the 2020 election contest cases) stepped in for the defense and argued that Rittenhouse should be kept in custody for his own safety rather than being released on bond, due to what he described as the “impending Armageddon” that would follow the 2020 election results. 

On the other side, prosecutors were being bombarded by calls for justice due to the apparently random vigilante actions of Rittenhouse. Justice, in this context, meant to charge Rittenhouse with murder. For prosecutors to do anything other than to file the most severe charges possible would have resulted in an outcry of favoritism towards a white defendant. 

Prosecutors charged Rittenhouse with five felonies that were equivalent to murder charges. They also charged him with a misdemeanor that was later dismissed by agreement of the parties. 

Within the next few months, Rittenhouse fired Wood as his attorney and was released on bond. At the same time, prosecutors began sorting through the volume of evidence. 

In the process of gathering evidence, prosecutors soon realized that this was not an open-and-shut murder case. Rather, it was apparent that defense would be able to argue self-defense to show “reasonable doubt.” We know that from later trial testimony. 

For example, videographer Richie McGinness described Rosenbaum chasing Rittenhouse and lunging for Rittenhouse’s gun. When pressed by the prosecutor about Rosenbaum’s intent, McGinniss quickly answered: “Well, he said ‘F--- you.’ And then he reached for the weapon.” 

The key moment in this case may have actually occurred at the final pre-trial conference. This is a meeting of the judge and attorneys where the guidelines for the trial are all set. 

If the prosecutors were to change what they were charging Rittenhouse, this would be the time. Prosecutors could have elected to reduce the charges against Rittenhouse, substituting charges where self-defense claims would be irrelevant. This was a winnable case. But this would have taken murder off the table, an option that would have caused a tremendous outcry from those who thought that a murder conviction was the only acceptable outcome. 

Prosecutors held firm and rolled the dice. 

The Rittenhouse case is a cautionary tale. We all have our own ideas of what justice looks like. However, what you can prove legally may not match those ideas. The prosecutors in the Rittenhouse case were pushed to prove a certain result, not to produce the best result with the evidence they had.

We know the result.