Posted on November 16, 2021

Rittenhouse Trial: Defense Delivers Disappointingly Weak Closing Argument

Andrew Branca, Legal Insurrection, November 15, 2021


Kyle Rittenhouse deserved a better closing argument than he got today, and if he’s convicted on any of these charges I would find it hard to not attribute such an injustice to much of anything except today’s weak closing argument by his Attorney Mark Richards (well, excepting, of course, for the politically-motivated prosecution itself, but that’s precisely what the defense is supposed to stop).

The weaknesses in the defense closing argument really fall into two broad categories, with a bit of overlap.

One category of weakness includes aspects that are inherent to the closing itself, aspects that diminish the closing irrespective of anything the prosecution is arguing.  These are really own-goals, and there’s no good excuse for these at all.

The second category of weakness is more of a failure to anticipate and account for the perfectly foreseeable points the State was likely to make on rebuttal—the defense must anticipate these because they will have no opportunity to speak to the jury again after that rebuttal.


Perhaps the single biggest weakness I saw in the defense closing argument was apparent from the first moments of Attorney Mark Richard’s speaking to the jury, and which I suppose was predictable by his generally gruff manner—and why I would have preferred to have Attorney Core Chirafisi do the defense closing argument.

And that was the angry and personal tone Richards took to the prosecution.

Let me make clear, there’s no question to my mind that the prosecution, in this case, has earned every bit of that anger.  The State has played fast and loose with both the facts and law in this case, trying to gin up a conviction from crumbs left on the bakery floor, all with the goal of putting Kyle Rittenhouse into a cage for the rest of his life by legal means not soundly based on facts and law.


The mission of the defense is a win by any means necessary—it’s the burden of the State to overcome the wily defense and achieve a conviction beyond any reasonable doubt., to get that win for their client.

For the prosecution, the mission is—or is supposed to be—much different.  The prosecution’s mission is supposed to be justice—not merely winning by any means necessary.

So, I have no doubt that Richard’s anger and resentment towards the prosecution here is genuine and well-founded.

But that’s not the point of the closing argument.  Closing argument does not exist so that defense counsel can air out his frustrations with the game-playing of the prosecution. Closing argument exists so the defense can have that last final opportunity to compelling communicate their narrative of innocence to the jury, the last chance they will ever have to do that, to secure that acquittal for the client—even more important than usual when the client overwhelmingly is deserving of an acquittal as here.


Taking the tone of “those rioters, looters and arsonists were all scumbags, and this prosecution is just a suit-wearing version of the same chaos!!!!!!” may feel good, and may even be to some degree true—but does it help sell the narrative of innocence to a jury that is looking at all this through entirely different eyes than those of the lead defense counsel?


If this jury convicts on any of these charges—and they well might—it will be because the prosecution has been successful in fostering some degree of sympathy among the jurors for the people killed, maimed, and purportedly endangered at the hands of Kyle Rittenhouse.

To put it another way, unless that’s happened an acquittal is already secured, and the defense need not engage in the fire-and-brimstone display at all.  But we can’t know that, of course, so we must assume that some degree of sympathy for the “victims” has been successfully fostered by the prosecution.

If that’s so, you don’t make ground with those jurors in particular by shouting your outrage about those horrible people. Instead, you just come across as unsympathetic—which, of course, reflects on your client.

A better approach, in my humble opinion, is to approach the jury not from one’s own position as a righteously outraged defense attorney with a client facing a potentially cataclysmic conviction for no good reason, but rather from the position of those jurors themselves.

Acknowledge that the people who died were human beings, and you and your client wished they were still alive today.  Even with respect to the initial aggressor, Joseph Rosenbaum, whose attack on Kyle triggered all else that followed, everyone would prefer that he were alive today.  Everyone wishes that nobody died that night in Kenosha, and that’s particularly true of your client.

That said, it wasn’t your client’s choice that these tragic events occurred—it was the result of the choices of those others, choices that compelled your client to exercise his privilege under Wisconsin law to defend himself from violent, life-threatening attack.

Acknowledge that perhaps those people who attacked Kyle, especially at the second location, might have genuinely believed that they were acting to stop some kind of active shooter.  They were mistaken, of course, Kyle was as far from an active shooter as it was possible to be, for reasons you’ll detail in a moment.  Perhaps even Rosenbaum’s attack was triggered by personal demons that nobody but he could understand, but which he found impossible to resist.

Whatever the reasons for their attacks, no matter how well-intentioned or compelled by personal demons they might have been—none of that, not one bit of it, in any way diminishes the privilege of your client to defend himself from their attacks.

There’s nothing my client wishes more than that Joseph Rosenbaum and Anthony Huber were still alive and with their loved ones, and that Gaige Grosskreutz was unmaimed.  That’s the world he would have chosen to exist today—if only those people, and others, had not violently stripped that option from him by their attacks, however motivated, that threatened him with apparent imminent death.


My next point may be more a reflection of my own temperament, and is perhaps just a personal or professional preference on my part—but I would have been far more detailed and specific in stepping through the elements of self-defense as applied to each of these felony charges.

For each count, I would have made clear in plain language exactly what circumstances would lead Kyle to believe he was facing an unlawful forcible attack (Innocence), that the harm feared from that attack was either already being inflicted or apparently immediately about to occur (Imminence), how the nature of the threat presented an apparent risk of death or serious bodily injury (Proportionality), and how all of this was not just genuinely believed but objective reasonable (Reasonableness).


This would have been particularly useful in addressing the all-critical first attack by Joseph Rosenbaum.  We have seen how throughout the trial ADA Binger has been making much of the argument that some of the people attacking Kyle were “unarmed.”  Indeed, at one of the pre-trial hearings, Binger had actually argued that it could never be lawful for an armed man to shoot an attacker who was unarmed.

So the defense ought to have had every expectation that much would be made in closing about the “unarmed” nature of Rosenbaum’s attack on Rittenhouse, and it should have been made crystal clear to the jury how deceptive this framing was.

In particular, Rosenbaum was not merely fake-rushing Kyle, or poking Kyle with an index finger, or even shoving Kyle forcibly backward—Rosenbaum was fighting Kyle for control of his rifle, and in the context of the death threats Ryan Balch and Kyle himself had testified about.

The moment Rosenbaum is fighting for the control of the rifle, he is no longer “unarmed” in any meaningful sense of the term.  Instead, he’s in the process of arming himself. With a rifle. With Kyle’s rifle.

If Rosenbaum were picking up a dropped rifle from the ground under those circumstances nobody would doubt that he was arming himself for the purpose of using that rifle on Kyle.

By not merely picking up some other rifle, but fighting Kyle for his own rifle, Rosenbaum is actually creating a greater threat than that, because he’s simultaneously disarming Kyle while he’s arming himself.

No such argument was made by Richards during his close. And I expect I know why—because he approached this closing argument from his own perspective, as someone to whom this argument is obvious and intuitive, rather than from the perspective of jurors who had developed some sympathy for these “victims” and their families, and for whom this notion of “arming oneself with the other guy’s gun” might not be so obvious and intuitive.


Also, an absolutely critical facet of any claim of self-defense is that the perceptions, decisions, and actions be assessed from the perspective of the actual defendant, given their particular attributes, the surrounding circumstances, abilities & disabilities, training and experience, and so forth.

In this particular case, we have a 17-year-old Kyle Rittenhouse who found himself isolated and alone in horrifically chaotic circumstances, not of his own making and facing a series of apparently lethal attackers.

Did Kyle make the best of all possible decisions in each of these use-of-force encounters? Frankly, I think he probably did—but that’s not the point. Our concern is that a jury might not think so, that a juror might have thought that with hindsight there was a better option available.