By Nathan Layne
KENOSHA, Wis. (Reuters) - The judge in the trial of Kyle Rittenhouse said on Friday he would instruct the jury they can consider the prosecution's argument that the teenager provoked an encounter with one of two men he fatally shot during protests in Wisconsin last year.
The ruling is a boost for prosecutors because it opens the door for them to argue that Rittenhouse was the aggressor, which would raise the bar for the teenager's effort to convince the jury that he acted in self-defense.
The decision comes after nearly two weeks of testimony that included considerable evidence supporting the teen's argument that he fired after being attacked.
Ahead of the trial, some legal experts told Reuters that prosecutors faced a formidable challenge https://www.reuters.com/world/us/prosecutors-face-tough-test-trial-us-teenage-protest-shooter-rittenhouse-2021-10-28 in bringing a successful prosecution.
"Now it's a fair fight," said Patrick Cafferty, a criminal defense attorney in Wisconsin, referring to the lift the ruling would give the prosecution. "Without that instruction they would have zero chance."
Rittenhouse, 18, is charged in the killing of Joseph Rosenbaum, 36, and Anthony Huber, 26, and the wounding of Gaige Grosskreutz, 27, in Kenosha on Aug. 25, 2020. The shootings took place during sometimes violent protests that followed the police shooting and wounding of a Black man, Jacob Blake. Rittenhouse has pleaded not guilty.
Kenosha County Assistant District Attorney James Kraus showed grainy drone video of the Rosenbaum shooting as he argued that Rittenhouse raised his AR-15-style rifle shortly before the encounter and pointed it at some people, including another man, Joshua Ziminski, who fired a gunshot in the air.
"The simple argument is there's plenty of evidence that the state has brought in that he raised his gun," Kraus said. "We have evidence of provocation.
Rittenhouse testified earlier this week that Ziminski pointed a gun at him as he approached the parking lot where the Rosenbaum shooting happened
Kenosha County Judge Bruce Schroeder stepped down from the bench to watch the video on a TV with Rittenhouse standing close behind him leaning in and looking on. The judge agreed the issue should be up the jury to decide.
"It's the jury's case and I think they should make the critical decisions," Schroeder said. "My decision will be to submit the case to the jury with the provocation instruction and you can argue the strength or lack of strength of the evidence."
The shootings, which took place against a backdrop of days of rioting and arson, have divided the United States. Supporters of Rittenhouse saying he was justified in defending himself, while critics say he was a vigilante who illegally possessed a firearm and inserted himself into a violent situation.
Under Wisconsin law, if someone provokes a confrontation they are required to exhaust all other options before using deadly force in self-defense. So if the prosecution can argue Rittenhouse was the aggressor, it could raise the bar for the defense.
But the defense can point to the evidence indicating that Rosenbaum was looking for trouble that night. Several witnesses told the court Rosenbaum was making death threats and that he chased Rittenhouse and lunged for his gun before the teen fired.
Rittenhouse himself testified that Rosenbaum, the first man he shot, threatened his life and grabbed the barrel of his gun.
Cafferty said the prosecution may try to argue that by provoking Rosenbaum, Rittenhouse also raised the bar for self-defense in the subsequent shootings of Huber and Grosskreutz, who prosecutors will say were trying to disarm the teenager.
Rittenhouse is charged with first-degree reckless homicide in the death of Rosenbaum, first-degree intentional homicide in the death of Huber and attempted first-degree intentional homicide in the shooting of Grosskreutz, who was holding a handgun when he was shot in the arm. Rittenhouse faces life in prison if convicted on those counts.
Earlier, Schroeder had ruled against the prosecution's request to allow the jury to consider a lesser charge in the killing of Rosenbaum, but he said he would allow the inclusion of two lesser charges in the killing of Huber, who was shot after swinging a skateboard at Rittenhouse.
He did not rule on a request for lesser charges regarding Grosskreutz.
With Huber, Rittenhouse's lawyers agreed to lesser charges as long as they did not include second-degree reckless homicide, because that charge does not require proof that the teen exhibited an "utter disregard" for human life. The defense wanted to retain that high hurdle for the prosecution, and the judge ruled in line with that wish.
(Reporting By Nathan Layne; Editing by Ross Colvin and Alistair Bell)