I was a bit surprised that Jonathan Turley didn’t weigh in on the Rittenhouse verdict on Twitter yesterday. However, he has more than made up for that by turning out two thoughtful and informed full length articles. Let’s start with his ‘What’s Next?’ article:
Rittenhouse 2.0: Threats of New Litigation Fly in the Aftermath of Rittenhouse Verdict
We’ll lead with Turley’s bottom line, then get to the specifics:
It seems likely that the case will move into a new stage of litigation, particularly civil litigation. However, advocates on both sides may be overstating the basis for a Rittenhouse 2.0.
Boom. He then discusses what those possibilities for Rittenhouse 2.0 might be. He suggests two obvious categories:
Rittenhouse as defendant, and
Rittenhouse as plaintiff.
What are the prospects that Rittenhouse could be a defendant in a federal action? Keep in mind that Double Jeopardy—forbidden under our constitution—doesn’t allow for a federal murder trial. A federal action, as I pointed out yesterday, would most likely come as civil rights action—that is, the idea that Rittenhouse deprived his attackers of their civil rights under the constitution. Turley’s skeptical:
Immediately following the verdict, House Judiciary Committee Chairman Jerry Nadler called for the Justice Department to investigate the “miscarriage of justice.” Others have called for a federal civil rights case against Rittenhouse.
The Justice Department does not have an office for the prosecution of “miscarriages of justice” due to errant jury decisions. Rittenhouse was acquitted on state charges by a state jury. … The Rittenhouse jury faithfully applied the Wisconsin law and came to a well-founded verdict of acquittal. It is a dangerous precedent to investigate jury decisions simply because you disagree with their decisions.
There is also no clear basis for a civil rights prosecution. Rittenhouse is white and shot three white men. He was not accused of a hate crime. Moreover, he is not a member of law enforcement or government agency, so he did not deprive anyone of their civil rights under federal law.
Only a fool would take legal advice or adopt legal views as propounded by Jerry Nadler.
Next, civil liability for Rittenhouse? Again, Turley is skeptical—he sees serious difficulties for any such attempt against Rittenhouse:
Rittenhouse could face lawsuits from the families of the deceased or Gaige Grosskreutz, who survived being shot in the arm. That includes wrongful death actions ...
The risk [for Rittenhouse] of such torts actions is that they proceed under a lower standard of proof. … However, that is no guarantee of conviction. All three men attacked or threatened Rittenhouse before he used his weapon. The common law protects not just self-defense but mistaken self-defense where a person may have erroneously (but reasonably) thought that he was under attack. ... While Wisconsin does not have a “Stand Your Ground” law, the common law has always recognized such a right and did not require a person to retreat before using force.
There is also more leeway in the admission of evidence in civil cases on both sides. That could further complicate any recovery by these plaintiffs. Finally, Wisconsin is a “modified comparative negligence” state. Accordingly, any plaintiff (or his estate) is barred if he is 51 percent or more at fault.
A civil action is, therefore, a serious uphill struggle.
Finally, we’ve all read the calls for a defamation case, with Rittenhouse as the plaintiff. Turley is sympathetic, but points out the difficulties under existing law. I’ll just excerpt his bottom line, but he provides an extensive discussion, including comparison to similar cases such as the Sandmann case—follow the link for all the discussion:
There is no question that Rittenhouse has been subject to false and harmful claims in the media. Indeed, many watching the trial were surprised by the sharp disconnect between what they had seen on the case in the media and what was being presented in court.
Such defamation cases however are notoriously difficult and the odds are against Rittenhouse in prevailing on these characterizations of prejudice or guilt. It is likely that Rittenhouse will be considered a limited public figure or public figure given the notoriety of the case and his public defenses. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
Such an action by Rittenhouse might serve to challenge existing law—which is under increasing attack—but would be super expensive. There is no guarantee that the SCOTUS would accept it on appeal, and that seems the only realistic way of changing existing case law.
In his second article Turley addresses what he calls “the demand for mob justice.” As is his usual style, Turley tries to be even handed, before coming down hard. Here are two tweets—one of which provides a link to the article and the other of which provides the main theme:
Briefly, I would take issue with the idea that America is “a nation addicted to rage.” The “rage” in public life is a phenomenon of the Left—indeed, rage is openly acknowledged and embraced by the Left. Political violence, the logical product of rage is almost exclusively a phenomenon of the Left. Acknowledged mental health issues are also documented to be heavily associated with Leftists.
On the other hand, Turley is unquestionably correct that “pundits and politicians [many with law degrees, be it noted, as well as Leftist creds] seem to be advocating for a form of mob justice.” Again, the dichotomy between the Right’s reaction to unpopular jury verdicts and the reaction of the Left is stark.
With that said, here is what I see as a key passage—as always, follow the link for Turley’s full discussion. As is also usual for Turley, he does address my criticisms based on his tweets:
Rittenhouse personified all of our social ills and had to be punished, sentenced to life in prison on the basis of popular opinion.
That, of course, would transcend evidence or law. It would be a system based on demand, not deliberation — the very definition of mob justice.
What is most concerning is the involvement of many in the media in this movement. …
For legal analysts, this often means “freeing” ourselves not just from objectivity but from the criminal code. Indeed, after the jury failed to convict as demanded, House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) called for the Justice Department to investigate the “miscarriage of justice.”
In this case, the legal question under Wisconsin law was neither complex nor confusing: "A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person.” Lethal force is allowed if “the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.”
Each use of force by Rittenhouse was preceded by attacks by at least four men. The jury simply had a reasonable doubt that Rittenhouse acted without a reasonable belief that he faced great bodily harm.
Not surprisingly, those facts often were not given as the context for legal analysis. Instead, more amenable hypotheticals were trotted out. After the verdict, MSNBC legal analyst Joyce Vance explained that the verdict was “something akin” to “saying if you go into a bank and rob it and people are trying to apprehend you, you can then shoot your way out and claim self-defense.” Except that Rittenhouse was not robbing a bank when he was attacked; he was not doing anything illegal in guarding a business at the owner’s request or walking down the street. The jury decided that the men he shot were not “apprehending” him but, instead, were attacking him without provocation.