The Deceased, By Any Other Name

Outrage struck again, which would ordinarily make this a day like any other, but this time it was over rulings in limine by Kenosha County Circuit Court Judge Bruce Schroeder in advance of the trial of Kyle Rittenhouse.

The motion asks that the defense “be prohibited from referring to Joseph Rosenbaum, Anthony Huber or Gaige Grosskreutz* as ‘rioters,’ ‘looters,’ ‘arsonists’ or any other pejorative term. Much like this court prohibits the state from referring to anyone as a “victim,’ these terms prejudice the status of these individuals.”

The motion also asks that all parties in the case refer to Rittenhouse, the witnesses and the men shot “formally by their last names.” Throughout the case, supporters of Rittenhouse have typically referred to him as Kyle, emphasizing his youth.

It’s been the judge’s practice to prohibit the prosecution from using the word “victim” to characterize those whom the prosecution seeks to have the jury find to be victims. That’s the point of trial, to determine whether they are the victims of a crime or the aggressors against whom the defendant used self-defense.

At an earlier hearing in the case, Schroeder told prosecutors they could not refer to any of the men shot in the case as victims. That is Schroeder’s standard practice in criminal cases and is not unique to his handling of the Rittenhouse case.

This shocked many people for whom the conclusion is already obvious, and who can’t conceive of how someone killed could be anything other than a victim. While that’s the very question to be decided by the jury, and the burden to be proved by the prosecution at trial beyond a reasonable doubt, this was so contrary to their outcome-oriented beliefs that it smacked of the judge tilting the playing field in favor of the defense, tying the prosecution’s hand behind its back by preventing the use of such an obvious descriptor.

The ruling was neither shocking nor unusual, and as noted, this was the judge’s ”standard practice.” The point of the trial is to determine whether the deceased were victims or not; to call them victims before the jury found that a crime had occurred is to beg the question. Proof first, characterization after.

Does it matter? That’s a harder question to answer. For those familiar with the rhetoric of Title IX cases, the accusers invariably describe themselves as “victims” and “survivors,” even if their claims were never tested or were tested in prejudiced proceedings. They appreciate the power of the word, and that it’s served them well in creating a widespread belief that they are, indeed, “victims” for no better reason than they say so. Who needs evidence when rhetorical prejudice will do?

Every competent defense lawyer will challenge the prosecution’s effort to use the device of rhetorical repetition, to call the deceased “victims” over and over, and over, in order to create an indelible mark in the mind of the jury that they are, indeed, the victims. At the same time, the defense seeks to prevent that from happening, from implanting a belief in the jurors’ heads based not on evidence, but on language.

Whether it really matters, whether it changes the outcome, is harder to know. The rhetoric is one of a thousand things happening simultaneously at trial, each of which may matter and all of which affects every other thing happening. To isolate one thing, like using the word “victim,” and claim that it’s so prejudicial as to overwhelm the jury’s ability to otherwise fairly assess the evidence, is hard if not impossible. No doubt academics will conduct empirical studies to prove the point, but they’re of dubious value as they don’t really reflect the thousand collateral and contingent things happening simultaneously at trial.

Yet, every competent lawyer turns over every possible stone for the benefit of his client. You never know what will be a big deal or a “nothingburger,” but why take a chance? If there is any possibility that it could have a negative impact on the defendant, fight it. And, indeed, calling the deceased “victims” serves no legitimate purpose at trial and is designed to create as much of a prejudicial conclusion in the minds of jurors as possible. Just as the defense seeks to prevent this from happening, the prosecution seeks to make it happen. That’s how adversary systems work, using whatever is available within the bounds of the law to make the case.

But then, the other motion, to preclude the defense from “referring to Joseph Rosenbaum, Anthony Huber or Gaige Grosskreutz as ‘rioters,’ ‘looters,’ ‘arsonists’ or any other pejorative term,” inflames the rhetorical concerns. No jury has concluded that any of the deceased were “rioters, looters or arsonists,” each of which is a crime, making the perpetrators thereof criminals, thus tainting the deceased for conduct for which they were not convicted. Of course, they aren’t on trial, both because this is the trial of Kyle Rittenhouse and because they’re deceased.

It’s unclear that the defense had any intention of using those words, although there was reason for concern in anticipation of trial.

At another hearing, defense attorney Mark Richards, while arguing that Rosenbaum’s criminal history should be heard by the jury at trial, called Rosenbaum a rioter. “These were not protesters, they were rioters,” he said at the time while arguing that he believed Rosenbaum was trying to steal Rittenhouse’s gun.

Whether Rosenbaum was a “rioter” isn’t itself in issue, but would serve the defense in its effort to show that he was inclined to violence and his motives during his interaction with Rittenhouse were salutary.

Are these mere games being played? To some extent, sure, but they can also produce unnecessary and improper issues at trial. If Rittenhouse takes the stand and is asked, “did you shoot the victims?” will he respond “no,” not because he didn’t shoot but because there were no “victims”?

From the court’s perspective, keeping the trial focused on the evidence, rather than whatever influence gaming rhetorical devices may have, will best serve reaching a legitimate outcomes. By limiting words that inflame or prejudice, and substituting neutral and accurate words in their place, the judge can prevent needless issues and prejudice. But if the lawyers want to call their client “Kyle” rather than “Mr. Rittenhouse,” that really isn’t anyone’s call but their own. It’s not as if the jury can’t see that he’s a kid.

*As correctly noted in the comments, Grosskreutz was shot but not killed.

12 thoughts on “The Deceased, By Any Other Name

  1. Hunting Guy

    Ritterhouse and the men he shot are best described as idiots.

    WTH would any sane person want to be anywhere near a riot?

    1. hal

      Actually, Rittenhouse is best described as a “male teenager”, though some might argue this is a distinction without a difference.

    2. Elpey P.

      There were quite a few black men who similarly armed themselves with rifles and patrolled areas at risk of looting and rioting during last years unrest to protect local businesses.

  2. John Barleycorn

    Prosecutors, ‘competent’ CDLs, and judges too…

    Now we are talking….

    P.S. Do starving etymologists hang out in courthouse cafeterias and if so who buys them lunch most often?

  3. Elpey P.

    More good examples of arguments and outrage driven by identity instead of principle, from yet another situation where if you reverse the identities, the masses of pseudo- and supra-liberal social justice crusaders (and their media hegemony) would be required to do a complete reversal in their analysis to avoid displaying a stratospheric level of bigotry. (Still true in this particular case even though all parties are white, because of the ideological context.)

    Meanwhile, the hardcore white supremacists would also be forced to reverse their analysis, while the rest of us could simply be consistent.

    1. PseudonymousKid

      “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Ralph Waldo Emerson

      “Pseudo-liberals” or “supra-liberals” or “social justice crusaders” have “media hegemony” or so you say. Then apparently there are not only white supremacists but “hardcore white supremacists”. Why do you then group the rest of us with the not hardcore white supremacists? Hardcore white supremacists are not consistent, but “normal” white supremacists are? All of this is nonsense and makes me question your connection to reality. Are you ok?

      I don’t know if the Emerson quote fits, but I like it and your comment made me think of it. I’ve got to remember to use it when Pops goes on a consistency trip.

      1. Elpey P.

        Emerson said “foolish consistency,” not “consistency.” He wasn’t ridiculing the notion of an individual being guided by principles. The opposite, in fact. A jury that renders verdicts based on identity and groupthink instead of analyzing the merits of each case could be an excellent example of his target.

        The scare-quoted phrases were to be fair to liberals, and to acknowledge the self-righteousness and systemic nature (the news coverage would also change dramatically) of the narrative. Didn’t really see an argument there.

        As for “‘normal’ white supremacists,” I initially made reference to the folks who would simply become apathetic, whether because they prefer to mask their white supremacy or because they simply don’t notice it, but decided to leave them out to keep things simpler. Their apathy would also be inconsistent, and there are probably many others who would be consistently apathetic across the board. My main point is about the loudest voices who would be compelled to do a complete 180, whether to avoid being an obvious raging racist or to more fully embrace it.

  4. John Barleycorn

    I have been cutting wood all day and it dawned on me that I better get me one of those, I AM NOT AN ARSONIST patches for my coat, just incase I run into any teenage crime fighters at the Co-Op this winter loading pre-paid chicken feed after hours.

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