In this edition of The Lawfather Podcast, attorney William Franchi takes a look at the Kyle Rittenhouse Case, gives his prediction on what the verdict will be, and answers the listener question of the week. William Franchi, of Franchi Law
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This transcript was exported on Nov 17, 2021 – view the latest version here.
Welcome back to The Lawfather Podcast, as always, we are here in the new and improved Lawfather Studios, right here in Lawfather Headquarters. Special shout out to Jason for making the successful trip back from Washington, after watching that debacle of a Bucks game this past weekend, but not what we’re here to talk about today. We’re here to talk about what is being billed as really another debacle, which would be the Kyle Rittenhouse Case. We’ll talk about that and I know we were going to talk about Astroworld a little bit, but we’re going to bump that to next week because the Rittenhouse case really has kind of taken off, in terms of where it is. As we sit right now, they are in the middle of closing arguments so today is Monday, November 15th, and we’re recording this just shy of 3:00 PM.
So, just have that little time stamp in mind as we’re talking about this case, because by the end of today, when you guys are all listening to this show, except for those of you live, the day could be over in terms of the closing arguments. The jury will go out and deliberate. They’ll be out for, probably, a significant amount of time in a case like this. For those of you who are unaware of the timeline and what happened, and what this whole thing about is about. I’m going to fill in some blanks here for you, because quite frankly, and maybe I shouldn’t admit this, but this wasn’t necessarily a topic that I knew a whole lot about before jumping in and looking into it for the show today. Yeah, the headline’s great, cool, understood all of that, but it just wasn’t one of those things that necessarily grabbed my attention.
Once I started looking into it, I found a lot of this very interesting from a legal perspective. This is one where you really have to separate the legal perspective from the… We’ll call it the real-life perspective, and I’ll explain why. So here it is, we have a 17-year-old kid, lives in Illinois, travels to Wisconsin because there are some protests and uprisings and he goes to protect property, and because he was saying that he was an EMT. So, he was going to go provide medical care and treatment. Along the way, he was going to bring his AR-15. This was back, August of 2020, is when this whole thing happened. It was Kenosha, Wisconsin. There had recently been a police shooting in that area and it led to some protests. Some were civil. Some were not civil.
This has all the indications of a not civil uprising. I don’t know, uprising might not be the right word, but we’ll just call it a protest. So, he goes there, and at the end, we’ll fast forward to the end, and then let’s fill in the middle. As a result of what happened there, he was charged with first-degree intentional homicide, first-degree reckless homicide, first degree attempted intentional homicide, two counts of reckless endangerment, possession of a dangerous weapon by a person under 18, and a curfew violation, of which that curfew violation was dropped and dismissed by the judge pretty early on in this thing so that’s why we’re here, right? You’re here because of those charges. So, that’s the legal aspect of it. What we have here is we have a kid, he’s 17 years old at the time, he’s 18 now. Could even be 20 depending on when his birthdate is but anyway… No, he’d have to be, I think he’d have to be 17. I don’t know. Jason can do the math for me while I’m talking, as he’s laughing at my wonderful math skills of how old this kid is.
Anyway, at the time he’s a kid, he’s 17 years old. We have a 17-year-old bringing an AR across state lines to go to a protest, to protect property. Sounds like a really bad decision. Yeah, maybe that should be looked at, at some point, but here’s the thing, not something that comes up in terms of the legal case. In terms of these charges, we don’t care why he’s there. The charges and the facts, because yes, there are times that you would care why a person is in a place for a first-degree intentional homicide. There are times where that would become something that you would want to look at. The first-degree intentional homicide charge, that’s a capital murder charge. They just name things a little bit differently in Wisconsin, but your intentional homicide charge, that’s murder. Your reckless homicide, that would be more of your manslaughter charge.
Attempted intentional homicide means that you meant to kill the person, but you didn’t. Essentially, you failed at what you did, that would be the attempted intentional homicide. Reckless endangerment, it’s pretty self-explanatory. You did something extremely recklessly that endangered people. So that’s what that is. So, in this thought, we have to ignore the fact that yeah, not really the brightest decision ever to go somewhere with an AR. Put it like this, you don’t bring an AR to a place that you feel is going to be peaceful, like Disney World. I mean, where everybody’s happy and nobody’s arguing, or fighting, or anything else. You don’t see a whole lot of armed people at Disney World. Let’s not get lost in the fact that they wouldn’t allow it, but anyway, how about the parking lot of Disney World? You don’t see a lot of people walking around with AR-15’s there. Happiest place on earth. Well, if you feel like you need to bring an AR to a place, probably a place you shouldn’t go.
Be that as it may, this is where we are. I drive this point home and I go into that detail on that, to get to none of that matters. It doesn’t matter how poor of a judgment decision that was. Yes, maybe, I’m Monday morning quarterbacking it, but I can tell you, being someone who owns an AR, as being someone who worked in law enforcement, who was issued an AR-15. If you feel like you have to bring an AR-15 to the party, it’s a bad party. Look, I can tell you in six years in law enforcement, I had one that was locked behind my head in a gun lock, and I can tell you the number of times I took it out at work. It was zero. Not because we’re in bad situations necessarily sometimes, part of it was that I had a zone partner who I trusted with my life. He was always the one that would go grab the AR, and I was always the one that would be the hands-on person.
When he had it, we weren’t there because things were going particularly well. We were there generally, oh I don’t know, somebody else had a gun and we needed a bigger gun so, that is my point there. Look, whatever your political stance is on ARs, let’s put that aside for a second. Also, not really a good choice of weapon either for something like this. Look, you got to strap it on you. You have to throw it over your shoulder. It’s just, it’s not really conducive, for that type of thing. It’s just not. A handgun? Okay, because you can holster, you can put it away, you have your hands free, whatever else. Just not a real good choice there. Plus, they’re really good for long-distance. Not really good for close combat. Not really good in terms of the fact that, oh I don’t know, those 223 and the 556 rounds have a tendency to go through people, into other things that are unintended targets. So maybe a bad decision all around from a, why are you there and why are you choosing that particular weapon, standpoint?
Ignore that for the moment, because we have to, because the law says, we have to ignore those facts and those opinions, why? Because what goes into these things? What goes into an intentional homicide charge? Said another way, what goes into a murder charge? Hear on it on TV, first-degree murder, those type of things. It’s the same thing. Just named a little bit differently because states can have their own statutes, and they can name things in different ways. So what is that? That means that he went in to be convicted of a first-degree murder charge. Then, like I said, it is the same as intentional homicide, which means the same thing. You have to go in with what’s called, malice is aforethought. Big, fancy term of saying, you did this and you meant to do this. You went in you, you essentially or not essentially, you came up with a plan. Now you think, okay, he sat in his room and he drew it on a piece of paper and he came up with a plan. That’s a plan.
It doesn’t always have to be that detailed. You can develop that plan in the split second before something happens. I could think of examples, but I don’t know, just not going to go there right now. Something happens, you see something, you react to it and it’s because of that, you came up with a plan in the instance before you took action. That’s what that malice of aforethought is. In a lot of times, you have to have, what’s called a depraved mind. Meaning you went in with the intent that not only did you come up with this plan, you thought of this plan before you took action on it, but you had some intent to kill the person or cause great… Well, in this case, in order to have a murder, you have to kill a person. There’s no alternative to murder. It’s murder, or it’s not murder. You could have the attempted, but we’ll touch base on that because we do have somebody that, that was attempted on. So, when you look at it from a case perspective, that’s going to be very, very, very tough to prove.
We’re going to look at some of the evidence here that’s been presented because look, we’re at closing arguments today. So, that means a lot of evidence has gone out there. What Rittenhouse has put forward, is he was in danger. His life, his safety, his own personal safety in life, was in danger. Not some property. Not some other individual, but you could actually have self-defense of another individual. Not what we have, so we’re not going to deal with that. Keep this in mind. Let me just throw this little tidbit out there for you, and this is basically a law school textbook example. You can’t protect property through lethal force. So think about it like this. You have a shed in your backyard with a bunch of tools in it, and you set up some sort of booby trap. That guy opens the door to break in and you have a gun set up. As soon as he opens the door, it triggers it and it goes off. Fires, kills him. Boom, done.
You can’t do that. That’s actually not a correct way to protect property and that example is more or less the law school textbook example of that. You can protect yourself. You can use lethal force to protect yourself. So we have all these charges that come down to, Hey, he did something intentionally. Intentional homicide, murder. We explained, we talked about, first-degree reckless homicide. Yeah, you were negligent in what you were doing, but you meant to take the action. Different from, maybe you get in a fight and you’re fighting somebody, but you don’t actually push him down. As a result of the fight, he trips and falls, bangs his head, and dies. That would be somewhere along the lines of a reckless homicide, a manslaughter. So you could have… And they break it down differently in Wisconsin but generally, you have voluntary manslaughter and involuntary manslaughter. That, what I just described was more of like that involuntary, you didn’t mean to.
Voluntary, you’re in that same fight but you push him, and he falls and hits his head. Now you have more of a voluntary type. That would be more of your first-degree reckless homicide, so that’s how that would work. So you did something, you intended to do something, but your mindset wasn’t that you were going to kill the person. So think about it like that. What we are concerned about is his mindset at the time. Not why he was present there, not why he traveled from Illinois to Wisconsin. Not why he brought an AR to the party. What his mindset, what was going on in his head, what his intent was at the time. Now with the evidence, and I’m going to boil down a week’s worth of testimony into a really short period of time. Why? Because I don’t want to bore you all with a week’s worth of testimony. There are plenty of avenues to go get that weeks worth of testimony, but I want to keep it concise.
Here’s what I have here. The video and photographic evidence, that’s been presented at trial, so this is what the jury’s looking at. So start thinking about in your mind, what we’ve talked about. He was there, this is what he brought the party, everything else. Boom, boom. Here we are. Now, we have three victims. Two people are dead and one was shot and hurt, but not killed. It was as a result of Rittenhouse shooting them. So those are the facts that you know, he’s guilty. Got to be guilty, he brought an AR to the party. Why was he at that party? How dare he be there? He must be guilty. Well, now think about this, the video and the photographic evidence show one of the victims being aggressive and chasing after Rittenhouse. Another one of the victims hit Rittenhouse with a skateboard, and a third victim pointed a pistol at Rittenhouse. So, we’re not talking about a bunch of choir boys here, and I’m including Rittenhouse in that. There is not anybody who is without any fault whatsoever, but does it rise to the standard on a criminal case?
Because on a criminal case, your standard is much, much higher. Beyond a reasonable doubt. There is no other alternative as to what could have happened. Other than, that he had that intent and that mindset. That is what the standard is. There’s no other alternative, reasonable doubt. The highest of high standards because as a justice system we would rather set a guilty man free. Then to imprison a not guilty man, or an innocent man or woman, but we’re talking about a man here. So anyway, that is the premise of our justice system. So that said, let’s look at it… I’m going to take one little blurb of testimony, and I think this sums the entire thing up. This comes from, this was… Mind you, think about this for a second, this was the state’s witness. Meaning that the state, that is prosecuting Rittenhouse, thought that this guy was going to win the case for them, or at least help advance their case. I shouldn’t say win their case for them, but that this guy was going to advance the case for them.
It was one of the victims, so yeah you would think, okay you’re one of the victims, you’re going to help make the state’s case stronger. Normally that’s what happens at least. This comes from the cross-examination. So, the state goes first, they do what’s called direct examination. It’s their witness, so they do the kind of, lob-up softball questions. Basically open-ended questions, you let the witness speak and tell their story [inaudible 00:17:03] off and on, on you go. Then it moves to cross-examination. In cross-examination, you, as the lawyer, you’re telling the story. That’s really the difference. It is, as in cross-examination, you, as the lawyer are asking your questions because you can’t testify. You’re asking your questions in a way that essentially, you’re testifying. That’s the premise behind how we handle cross-examination.
This is the exchange between Rittenhouse’s attorney, the defense attorney, and the state’s witness, one of the victims. One of the victims, the state’s witness. This is Rittenhouse’s attorney, “It wasn’t until you pointed your gun at him, advanced on him with your gun, now your hands down pointed at him, that he fired, right?” Now in that, that him, is Rittenhouse. So, I’m going to read it again to give it a little bit more context, and I’m going to change him to Rittenhouse. It wasn’t until you pointed your gun at Rittenhouse, advanced on Rittenhouse with your gun. Now your hands down, pointed at Rittenhouse, that he fired, right? That Rittenhouse fired, right? That was the defense attorney. The response from the victim, “Correct.”
Meaning, that when bad boy Rittenhouse, who brought his AR to the party, shot the one victim. The one, who as a result, he was charged with first-degree attempted intentional homicide, meaning he meant to kill him but he didn’t. He shot him in the arm. This guy had a gun pointed at him, so in what world do you go, man, how dare that guy shoot the other guy who had a gun? Now look, they’re all wrong. Let’s just go with that. Everybody in this situation is wrong, but is it, self-defense? If I’m a defense attorney, that is my beginning, middle, and end of the entire case. You, Mr. Victim, had a gun. You, Mr. Victim, had your gun pointed at my client and you expected him not to shoot you? Did you miss the big AR that he was holding? It’s not like he confused it. It’s not like it was a surprise. Like, oh, surprise! I pulled this AR out of nowhere. No. I mean they’re long. They’re about 18, 19, 20 inches long, maybe even a little bit longer. It’s big. You don’t miss that type of thing.
It’s not like he had a handgun hiding behind his back and you go pull a gun. Then you’re surprised he pulls a gun on you. No, come on. All right. So look, long story short, the state has major hills to climb. Anytime you’re talking about a first-degree murder charge, you’re talking about a really difficult charge to prove because you have a lot of elements you have to prove, and rightfully so. Because it’s a mandatory life sentence in Wisconsin for that first-degree intentional homicide. So, you know what, you’re going to put somebody away for life, you better get it right. I just, I don’t see it. I don’t see any of these. Now, here’s where you go. Oh, they got them, they got them on this one. Possession of a dangerous weapon by a person under 18. Aha. Was he under 18 at the time? Yes, he was. Did he have a dangerous weapon? Yes, he did. There was some back and forth banter with the state attorney on this.
One of the reasons why Rittenhouse says he didn’t have a handgun with him, why he chose the AR… Great choice, as I’ve clearly mentioned that he legally couldn’t own a handgun. Well, he was actually right about that. Rittenhouse was actually right that in Wisconsin, he actually couldn’t own a handgun. He also couldn’t own an AR. Except for the fact that this little word, and. Now, a lot of times in the real world, we’ll call it and not the legal world, the word and doesn’t mean a whole lot yet. It puts two pieces… It puts things together, this and that, assault and battery, you could go on and on. I’m sure there’s a laundry list of and you could put in. Here’s the thing, two words that are really small that can change the entire dynamics of the way a statute is written, and or, five total letters. Five total letters that can change the course of a case, change the course of a statute.
Why am I harping on this? Because Wisconsin law allows for short-barreled rifles to be owned by individuals who are under 18. All right, there’s a provision in there. It’s an exception provision. Meaning that you can’t own it unless these conditions are met and it goes on. There is an and, within a subsection of that statute. You’re concerned with the connecting points of that and. What it says, is that a gun of the size of an AR would be prohibited if one Wisconsin statute is satisfied, and the person was 16 years old or younger. Boom, done, game over. We don’t even care what that other statute is, I could care less. Quite frankly, I don’t know what it is. I didn’t even look it up. Do you know why? Because there is no evidence and both sides in the case stipulated to the fact that Rittenhouse was 17 at the time this all happened, and because we have an and, the other part doesn’t matter because he had to also be 16 or younger. So, that charge was also dismissed.
So, now we’re only dealing with the self-defense, which we really talked a lot about. I was going to use a pun there but I really don’t feel like it would’ve been in good taste to use a pun that… We really covered that whole topic, so anyway, that is the breakdown there. So look, my prediction, he we are it is the 15th of November, I expect a jury to be out by the end of this week. I expect for you to see a not guilty, on all charges. Look, this is not a political thing. I know this case has become highly politicized. My thought process on the fact of whether or not Rittenhouse is guilty or not guilty has, literally, zero to do with politics and a 100% to do with a legal analysis of the case, and oh I don’t know, one of the victims admitting to, “Yeah, I pointed a gun at him and my gun was pointed at him when he shot me.” That to me, textbook self-defense and there we go.
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