A MARTINEZ, HOST:
Lawyers for the prosecution and defense in Kenosha, Wis., begin to deliver closing arguments in the trial of Kyle Rittenhouse today. Ahead of the verdict, Wisconsin's governor has also activated the state's National Guard. Rittenhouse faces multiple charges for killing two protesters and wounding a third during demonstrations in August 2020. The prosecution has tried to portray Rittenhouse as a teenage vigilante acting recklessly. Meanwhile, his attorneys say he has acted in self-defense. For more on this, we're joined by Keith Findley. He's a law professor at the University of Wisconsin who's been keeping track of the trial. Professor, what could be making this case complicated for the jurors?
KEITH FINDLEY: Well, you know, factually, it's really not complicated. We all pretty much know what happened. But what makes it really, really complicated is not just that there are multiple counts with what in the law we know as lesser included offenses, which means different levels of the offenses. But really, it's a case that's complicated by the fact that the law does not provide the jury a whole lot of guidance in how to decide it. And that's because the real complicated question is not what happened but, what do we make of what happened? That is to say, was what happened actually reasonable? That's the question the jury has to answer.
But the law does not really inform that question too much but rather leaves it to the jury to be the arbiters of reasonableness, to bring their own values, the community values the socially constructed norms that they all have to the task of figuring out what is reasonable. And, of course, in a politically charged climate, an incident like this one - what's reasonable is going to vary wildly based on your own personal political beliefs, perspectives and whatnot.
FINDLEY: And that makes it really challenging for them to all come to an agreement on that very important question.
MARTINEZ: So, professor, is it reasonable to say that the jurors are almost, in a way, being put in Kyle Rittenhouse's position? What would they have done? What would they have thought in his situation?
FINDLEY: Yes, absolutely. Their task is to determine not only, what did he subjectively believe? But from his perspective, in his shoes, being the person he was, was that objectively reasonable for him to fear if, as he claims, that he - his life was in jeopardy and to believe that he had to use deadly force to protect himself?
MARTINEZ: Now, the judge is making a decision on whether the jury can consider lesser charges. What does that mean, and why is that important?
FINDLEY: So in the law, for many offenses, there are - what you can think of it as several levels of offenses. And each higher level includes all of the elements. That is the things the prosecution must prove, plus an additional one or more. And what the prosecutors typically will do is charge the highest level of those layered offenses that they think they can prove. And then at the end of the trial, if one or the other parties wants to give the jury the option of convicting on one of the lesser charges within that hierarchy of offenses, they can ask the judge to instruct that. It - what it does is it basically allows the jury to consider the essential crime charged but to compromise on something that's a little less serious. And they'll do that either because they truly believe, which is what's supposed to happen, that the element that makes it the most serious offense simply hasn't been proven, but the rest have. But they will also sometimes do it simply as a matter of compromise.
MARTINEZ: It sounds like a high-stakes poker game in a way.
FINDLEY: Absolutely, absolutely. The lawyers and the parties in those circumstances often have to gamble on whether they want to go for broke, that is let the jury consider only the highest level of offense, betting on whether or not the jury will find all of those elements, or whether they want to compromise on a lesser offense that doesn't require quite as many things to prove and gives the jury an opportunity to compromise, to settle on something in between.
MARTINEZ: If Rittenhouse escapes the most serious charges, I mean, what kind of a precedent could that set? I mean, what could it mean in broader terms of armed people at venues or other places?
FINDLEY: Well, there's two kinds of precedents we have to keep in mind here. One is legal precedent. And legal precedent actually creates a kind of law. It's something that can be binding, that other courts will follow in the future. And a jury verdict is not the kind of precedent that will create that because that's usually based on written decisions, most often appellate decisions. And so that won't happen. But really, what's at stake is really more of a sort of a societal precedent, a norm that's being established. And certainly, whichever way the trial turns out here, this will affect the way that our community approaches volatile public protests in the future and whether or not we think as a community it's acceptable for armed - heavily armed people to attend these very, very volatile, potentially violent situations.
MARTINEZ: One more thing, professor - the jury in this case has not been sequestered. And given that we've seen interviews from Rittenhouse's mom and even a witness from the trial on television during the trial, could that be an issue?
FINDLEY: You bet it can be. You know, the jury has not been sequestered, so they will have the ability to hear other information. The judge has instructed them not to talk to people, not to listen to news. And that's very important. But it's kind of on the honor system on that.
MARTINEZ: That's Keith Findley, law professor at the University of Wisconsin. Thank you very much.
FINDLEY: Thank you.
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