An Associated Press postmortem on the Kyle Rittenhouse trial points to something I hadn’t previously understood from my periodic attention to the case: a change in the defense team and two conflicting strategies.
Soon after a Wisconsin jury acquitted Kyle Rittenhouse of all charges against him, defense attorney Mark Richards took a swipe at his predecessors, telling reporters that their tactics — leaning into Rittenhouse’s portrayal as a rallying point for the right to carry weapons and defend oneself — were not his.
“I was hired by the two first lawyers. I’m not going to use their names,” Richards said Friday. “They wanted to use Kyle for a cause and something that I think was inappropriate — and I don’t represent causes. I represent clients.”
The angry rhetoric surrounding Rittenhouse’s case didn’t subside with the change in attorneys. But Richards, beaming as he talked to reporters outside his Racine law office after the acquittal, said that to him, the only thing that mattered was “whether he was found not guilty or not.”
Along with co-counsel Corey Chirafisi, he spent the months leading up to the case in virtual silence — “I don’t do interviews,” he said brusquely to one emailed request in December — and sought at trial to minimize the polarizing questions about Second Amendment rights.
This tells us very little about Rittenhouse but a lot about the circus that surrounded the case. Rittenhouse became an instant hero to many on the right after shooting three white Black Lives Matter protestors, killing two of them. It helped him raise a lot of money for his defense. But his trial defense was ultimately led by experienced, professional attorneys focused on convincing a jury that their client acted in self-defense, not promoting a political agenda.
It was a strategy that sometimes conflicted with other forces surrounding Rittenhouse. Fox News had a camera crew embedded with Rittenhouse at certain points, including before and after the verdict, gathering material for a documentary marketed as a “Tucker Carlson Original.” Carlson tweeted a promo for the documentary to air in December, along with teasing an exclusive interview with Rittenhouse to air Monday night.
The crew sometimes sat in on defense meetings. Richards told The Associated Press that he opposed it as inappropriate and said he tossed the crew out several times. He said it was arranged by those raising money for Rittenhouse.
“It was not approved by me, but I’m not always in control,” he said. “I think it detracted from what we were trying to do, and that was obviously to get Kyle found not guilty.”
So, again, we see a contrast between the agenda of outsiders and the professional competence of the man charged with Rittenhouse’s defense. Granted that Rittenhouse likely couldn’t have afforded Richards’ services without the circus, Richards did him a giant service by minimizing said circus to the best of his ability.
It decidedly did not start out that way.
Regardless of what was happening behind the scenes, the strategy from Richards and Chirafisi in court was clear: get the jury to regard Rittenhouse as a scared teenager who shot to save his life.
They repeatedly focused on the two minutes, 55 seconds in which the shootings unfolded — the critical moments in which Rittenhouse, then 17, said he felt a threat and pulled the trigger.
“These guys have a client who is a human being … that’s what they’re rightly focused on,” said Dean Strang, a defense attorney and professor at Loyola University Chicago School of Law. Strang, who spoke to the AP before Friday’s verdict and who wasn’t connected to the case, said Richards and Chirafisi see Rittenhouse “as an 18-year-old kid who landed in a whole lot of trouble, more than he could handle.”
In the days after the shootings, Rittenhouse — who brought an AR-style rifle to a protest, saying he was protecting a stranger’s property — was initially represented by attorneys John Pierce and Lin Wood, who painted Rittenhouse as a defender of liberty and a patriot who was exercising his right to bear arms. Pierce tweeted a video of Rittenhouse speaking by phone from a jail in Illinois, where he’s from, thanking supporters. A video released by a group tied to his legal team said Rittenhouse was being “sacrificed by politicians” whose “end game” was to stop the “constitutional right of all citizens to defend our communities.”
Rivers of money flowed to a legal defense fund — more than enough for Rittenhouse to post his $2 million bail — but Wood left the case and became active in pressing the false claim that Donald Trump had won the presidential election. Pierce left the criminal case in December after prosecutors said he shouldn’t be allowed to raise money for Rittenhouse, but he stayed on the civil side of things until Rittenhouse said he fired him in February.
On Friday, Richards recounted his first meeting with Rittenhouse: “I told him when I first met him, if he’s looking for somebody to go off on a crusade, I wasn’t his lawyer.”
Now, I suppose, it’s possible that a mostly-white Wisconsin jury would have been amenable to a 2nd Amendment crusade. But that’s a hell of a lot more risky strategy than the one Richards pursued: arguing the law which, like it or not, was on his client’s side.
They came to court prepared. Richards used several videos during his opening statement — over the objection of prosecutors who did not seize on that opportunity.
They argued vehemently for a mistrial when they felt prosecutors were acting in bad faith, and appeared to outmaneuver prosecutors in getting a gun charge dismissed.
That actually undersells what happened. While I commend the linked AP story to you, the bottom line is that, while most of us just naturally assumed the weapons charge was a slam dunk, it actually wasn’t illegal for a 17-year-old to openly carry an AR-15 in Wisconsin and he shouldn’t have been charged with a crime to begin with. It turns out, that minors are only prohibited from carry long guns with barrels shorter than 16 inches.
As to what most of us thought was just a bizarre move,
And they made a careful calculation with perhaps their biggest decision: whether Rittenhouse should take the stand, risking a potentially damaging cross-examination. Richards said they tested their case against a pair of mock juries and found it was “substantially better” with Rittenhouse testifying.
“It wasn’t a close call,” he said.
Again, Rittenhouse’s amateur hour original lawyers would not have engaged in this sort of preparation. And, to return to a theme, indigent clients wouldn’t have the luxury of this level of defense, as public defenders, even if they had the expertise and foresight to set up these focus groups, wouldn’t have the time or money to do it.
Richards is a courtroom veteran and was a prosecutor in Racine and Kenosha counties in the late 1980s before he opened his own firm in 1990 that specializes in criminal defense. Chirafisi is also a former prosecutor and has been practicing law for more than 20 years. His law firm is in Madison.
The attorneys repeatedly pushed back against prosecutors’ notion that Rittenhouse was an outsider drawn to Kenosha by the chaos, noting that although he lived in nearby Antioch, Illinois, his father lived in Kenosha and Rittenhouse worked in Kenosha County as a lifeguard. Richards shared his own distress at watching the violence in Kenosha from his home in Racine after the shooting of Jacob Blake, a Black man, by a white police officer.
Here, the media narratives did the public a huge disservice. I frequently repeated the “crossed state lines” mantra, completely unaware that the shootings took place 20 miles from Rittenhouse’s home and in a community he was part of.
Richards and Chirafisi split the duties at trial, with Richards doing the opening statement and closing argument and Chirafisi handling much of the witness testimony. Richards said the two argued over who would question Gaige Grosskreutz, the man who had a gun in his hand when Rittenhouse shot and wounded him.
Richards said Chirafisi won — and did a better job than he would have. Chirafisi got Grosskreutz to admit that he had pointed his gun at Rittenhouse.
“It wasn’t until you pointed your gun at him, advanced on him … that he fired, right?” Chirafisi asked.
“Correct,” Grosskreutz replied. Under follow-up questioning from the prosecutor, Grosskreutz said he never meant to point his weapon at Rittenhouse.
Many commenters have pointed to a biased judge and incompetent prosecutors. But, in hindsight, it simply seems that the facts were on Rittenhouse’s side. As outrageous as his actions that night were, they were perfectly legal. My strong suspicion is that the overcharging that I’ve referred to many times in my commentary on this case was a function of political pressure rather than an honest judgment that they had a good case. But, again, a less-well-financed, less-well-represented defendant might well have been found guilty or coerced into pleading guilty to avoid maximum sentencing.
