I have a professional interest in the Kyle Rittenhouse trial in Kenosha, Wisconsin. Having heard the prosecutions’ actual evidence (not the media fabrications) and observed their conduct during the trial, in my expert opinion the prosecutors should be disbarred.
I was a State prosecutor for 30-plus years, during which time I also trained prosecutors throughout Florida. The Florida Supreme Court has designated me a Board Certified Expert in Criminal Trials, since 1993. After retirement I taught Trial Advocacy in a law school, and still teach continuing legal education (including ethics) to prosecutors. The conduct of the Rittenhouse prosecutors is the most unethical I’ve ever witnessed.
Rittenhouse was on trial for what occurred during the 2020 riots in Kenosha. He was accused of murdering two rioters who attacked him — both with criminal histories — and attempting to murder a third felon who admitted under oath that he threatened Rittenhouse with a gun before being shot. The prosecution’s own evidence refuted the charges by proving Rittenhouse acted entirely in self-defense.
The prosecutors either didn’t properly investigate before indicting Rittenhouse, or knew the evidence didn’t support the charges and prosecuted him anyway. Either conduct is unethical. Falsely charging a citizen with a crime the evidence doesn’t support is the worst possible ethical violation by a prosecutor. Doing so for purely political reasons, as was apparently done here, makes the prosecutors’ conduct even more egregious.
One witness testified about how, before trial, a prosecutor tried to get him to change his story. The prosecutor’s conduct (which the witness described under oath) may have been solicitation to commit perjury – a felony in Wisconsin.
As unethical as the conduct of the prosecutors was before trial, it was as bad during the trial in the presence of the jury. During the cross-examination of Rittenhouse, the lead prosecutor first violated one of an accused’s most fundamental constitutional rights, and then ignored one of the judge’s pre-trial orders. After the first instance, the Judge admonished the prosecutor. The second time the Judge had heard enough and chastised him. That prosecutor was lucky to have gotten off with an ass-chewing. I practiced before old-school judges who would have held him in contempt for such unethical conduct.
Then, during their closing argument, the prosecutors improperly mischaracterized those Rittenhouse shot – describing them as “heroes”, without mentioning their significant criminal record which the prosecutors specifically kept from the jury during the trial. On top of that, it was discovered the prosecutors deliberately withheld exculpatory evidence from the defense, which, again, violates a constitutional right of an accused.
Don’t even get me started on the prosecutor’s reckless handling of the rifle during his closing argument. Seeing him pointing it at the jury, with his finger on the trigger, literally made me cringe.
That obviously theatrical stunt violated the basic rules of firearm safety, and courtroom decorum. I know a prosecutor who got chewed out by a judge for simply waiving a knife at jurors from 6 feet away.
Long ago, the United States Supreme Court made it clear that, in our criminal justice system, the prosecutor’s role “is not that it shall win a case, but that justice shall be done”… and that, “It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Based on the evidence the prosecutors presented at Rittenhouse’s trial, there was no “legitimate means” to pursue his prosecution. Anyone who still believes this prosecution was justified understands nothing about the law, and is blinded by partisan politics to the point of terminal ignorance.
Such a travesty can happen only when prosecutors become politicized and abandon the pursuit of justice. Mob rule (which in this case includes too many in the media) takes over, and the fundamental concept that an accused citizen is “innocent until proven guilty” evaporates. The Rittenhouse prosecutors pandered to the mob.
Now that Rittenhouse has been rightfully acquitted, the mob has focused their collective infantile machinations on the Judge, and “the system”. They condemn him as biased because, instead of becoming part of the mob himself, he did his duty as an impartial arbiter assuring the accused’s rights were protected.
This case illustrates why, to work properly, our criminal justice system depends on an independent judiciary. Part of a Judge’s duty is to make sure the government follows the law if the prosecutors fail to fulfill their ethical duty to do so themselves.
But the mob would rather have a justice system like those under totalitarian regimes where — if the accused is not of the politically approved ideological persuasion — the trial is merely a show in which the Judge assists the persecutors, and the accused is presumed guilty. As Noble laureate lawyer Frederich Hayek wrote in The Mirage of Social Justice, that’s where “social justice” inevitably leads.
This trial re-affirmed that a citizen jury is, in Lysander Spooner’s words, the “palladium of liberty” against government tyranny.
My faith in the jury system is such that I wrote the foregoing, including reference to the acquittal, days before the verdict was announced. During my career, I never predicted the outcome of my own cases because juries are so unpredictable. But I was that confident in this instance because the evidence of innocence was so compelling.
By sheer coincidence, on the afternoon the verdict was announced, I was teaching a class on ethics to a group of prosecutors. I told those in attendance that this case provided so many instances of prosecutorial misconduct, that in the future I wouldn’t need to come up with hypothetical examples to illustrate my teaching points.
One thing I always stress is that juries will never convict if they think the prosecution is being dishonest or breaking the rules. Both were blatantly apparent to the jury (and the whole world) in this case.
The group I was teaching — which included both rookie prosecutors, and those with decades of experience — unanimously agreed both with the verdict, and with my assessment of the misconduct of the prosecutors. The Rittenhouse prosecutors were judged by “a jury of their peers” and found guilty of multiple ethical violations.
The judge in the Rittenhouse trial, and citizens on the jury, did their duty. The prosecutors flagrantly shirked theirs to pursue a dangerous political agenda.
In Greek mythology, “justice” is embodied by the goddess Themis holding a scale to weigh the evidence.
Nowadays her stripper name is Kharma.