Things get testy at Rittenhouse trial in Kenosha, Wisconsin

Kyle Rittenhouse testified he was under attack when he killed two men and wounded a third with his rifle during a chaotic night of protests in Kenosha, saying: “I didn’t do anything wrong. I defended myself,” reported The Associated Press.

In a high-stakes gamble, the 18-year-old took the stand at his murder trial to tell his side of what happened on the streets that day in the summer of 2020, sobbing so hard at one point that the judge called a break.

In an account largely corroborated by video and the prosecution’s own witnesses, Rittenhouse said that the first man cornered him and put his hand on the barrel of Rittenhouse’s rifle, the second man hit him with a skateboard, and the third man came at him with a gun of his own.

His nearly all-day testimony was interrupted by an angry exchange in which his lawyers demanded a mistrial over what they argued were out-of-bounds questions asked of him by the chief prosecutor.

The judge, though plainly mad at the prosecutor, did not immediately rule on the request. And later in the day, he instructed the jury to expect closing arguments early next week.

Rittenhouse is on trial over the shootings he committed during unrest that erupted in Kenosha over the wounding of Jacob Blake, a Black man, by a white Kenosha police officer. He could get life in prison on the charges.

Rittenhouse, who was 17 at the time, went to Kenosha with an AR-style semi-automatic weapon and a medic bag in what the former police youth cadet said was an effort to protect property after rioters had set fires and ransacked businesses on previous nights.

The case has divided Americans over whether Rittenhouse was a patriot taking a stand against lawlessness or a vigilante.

As he began crying on the stand and appeared unable to speak, his mother, Wendy Rittenhouse, seated on a bench across the courtroom, sobbed loudly. Someone put an arm around her. After the judge called a recess, jurors walked by Rittenhouse and looked on as he continued to cry.

After the morning outburst, he was largely composed the rest of the day, though his voice seemed to break at times as he came under tough cross-examination.

Prosecutor Thomas Binger went hard at Rittenhouse all afternoon during cross-examination, walking him through each of the shootings. Rittenhouse continually pushed back, saying he had no choice but to fire.

Rittenhouse said he “didn’t want to have to shoot” Joseph Rosenbaum, the first man to fall that night, but he said Rosenbaum was chasing him and had threatened to kill him earlier.

 “If I would have let Mr. Rosenbaum take my firearm from me, he would have used it and killed me with it,” he said, “and probably killed more people.”

But Rittenhouse also acknowledged that the strap holding his gun was in place and that he had both hands on the weapon. And Binger suggested that Rosenbaum might have been trying to bat the rifle away.

The prosecutor sought to drive home the state’s contention that Rittenhouse created the dangerous situation in the first place.

“You understand that when you point your AR-15 at someone, it may make them feel like you’re going to kill them, correct?” Binger asked.

Rittenhouse testified that he then shot and killed protester Anthony Huber after Huber struck him in the neck with his skateboard and grabbed his gun. Then he wounded Gaige Grosskreutz, saying the protester had lunged at him “with his pistol pointed directly at my head.”

Rittenhouse’s decision to testify carried risks, including the possibility of fierce cross-examination. And some legal experts expressed doubt about the need to put him on the stand, given that some of the prosecution’s own witnesses have already bolstered his claim of self-defense.

Much of the testimony Wednesday was centered on the shooting of Rosenbaum, since that set in motion that bloodshed that followed.

Rittenhouse said that earlier that night, Rosenbaum was holding a chain and twice threatened his life. Apologizing to the court for his language, Rittenhouse quoted Rosenbaum as saying: “I’m going to cut your (expletive) hearts out!”

Later that night, Rittenhouse said, he was walking toward a car dealer’s lot with a fire extinguisher to put out a blaze when he heard somebody scream, “Burn in hell!” He said he responded by saying, “Friendly, friendly, friendly!”

He said Rosenbaum was running at him from one side and another protester with a gun was in front of him, and he was cornered. He said he began to run, and he heard a protester tell Rosenbaum, “Get him and kill him!”

Rittenhouse said he heard a gunshot directly behind him, and as he turned around, Rosenbaum was coming at him with his arms out in front. “I remember his hand on the barrel of my gun,” Rittenhouse said.

That was when he fired, he said.

He also said he thought the object Rosenbaum threw during the chase — a plastic hospital bag — was the chain he had seen earlier.

Asked by his lawyer why he didn’t keep running away from Rosenbaum, Rittenhouse said: “There was no space for me to continue to run to.”

During cross-examination, Binger asked Rittenhouse about whether it was appropriate to use deadly force to protect property, and also posed questions about the defendant’s silence after his arrest.

At that, the jury was ushered out of the room, and Circuit Judge Bruce Schroeder loudly and angrily accused Binger of pursuing an improper line of questioning and trying to introduce testimony that the judge earlier said he was inclined to prohibit — video made some 15 days before the shootings, in which Rittenhouse watches men leave a CVS Pharmacy and is heard commenting that he wished he had his rifle so he could shoot them because he thought they were shoplifters..

Rittenhouse lawyer Corey Chirafisi all but suggested prosecutors were deliberately trying to cause a mistrial because the case is “going badly” for them and they want a do-over. The defense asked for a mistrial with prejudice, meaning that if one is granted, Rittenhouse cannot be retried.

When Binger said he had been acting in good faith, the judge replied: “I don’t believe that.”

As he first took the stand, Rittenhouse was asked by his attorney whether he came to Kenosha looking for trouble, and he responded no.

He testified that he saw videos of violence in downtown Kenosha on the day before the shootings, including a brick being thrown at a police officer’s head and cars burning in a Car Source dealership lot.

Rittenhouse said the Car Source owner “was happy we were there” that night.

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SCOTUS about to stir the pot of guns and political extremism

Over the past decade, amid rising mass shootings and fierce debate over America’s gun laws, the claim that “nothing ever changes” became a political cliché, reported Mother Jones. The frustration was aimed in particular at the federal government—foremost at the failure by Congress to mandate a stronger and more comprehensive background-check system for gun buyers, a policy with long-standing bipartisan support among Americans, including gun owners. Much has changed in recent years, in fact, at the state and local levels, where governments adopted hundreds of regulations either tightening or loosening restrictions on firearms, a mix defined largely along partisan lines. From a national perspective, however, the picture has been evolving more recently in some ominous ways.

The US Supreme Court, now tilted decisively to the right with three Trump-appointed justices, will soon rule on a case widely expected to open the floodgates for many more Americans to carry loaded guns whenever and wherever they want. Broad scientific research has long since confirmed that the presence of more guns throughout society correlates with more gun injuries and deaths.

Since the coronavirus pandemic began in early 2020, gun sales have boomed. “Today, we remain in an unprecedented surge in firearm purchasing that shows no sign of abating and risks becoming part of a new normal for the USA,” observes Garen Wintemute, a leading expert on gun-violence research, in an analysis published in early November in the journal of Injury Epidemiology.

FBI background checks on gun buyers during the first three quarters of 2021 were 60 percent higher than the expected level, with 12.5 million “excess” checks among 33.4 million total, according to the analysis. Even those numbers underestimate purchases, Wintemute notes, since they don’t account for purchases of multiple firearms in a single transaction, nor for the estimated 20 percent of transactions that don’t involve any background checks, such as those between private parties or at gun shows. A least 20 percent of gun purchasers during the pandemic have been first-time buyers, according to multiple surveys included in the analysis, expanding the ranks of the roughly one-third of all Americans who own firearms.

“If that still sounds like unrealistic pessimism, consider what will happen next year when armed voter suppression (surely that’s coming) meets armed voter support.”

America now has nearly 400 million guns in the hands of citizens, the most of anywhere in the world by far and more than enough to arm every man, woman, and child. But concern about an ever-more locked and loaded nation goes beyond those numbers to include escalating political extremism and rates of homicide in the United States—a convergence of conditions that Wintemute says puts the country “at risk for disaster in the months ahead.”

This could include large-scale political violence, he says. “If that still sounds like unrealistic pessimism, consider what will happen next year when armed voter suppression (surely that’s coming) meets armed voter support. Perhaps vaccine or mask mandates will trigger more than isolated outbreaks of violence. Or perhaps the flashpoint will be a more focused conflict, such as private enforcement of an abortion ban in Texas or the fight over water rights in the ever-hotter and -dryer West.” 

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Mangino provides trial analysis for Law and Crime Network

Watch my segment on the Law and Crime Network talking about the Markieth Loyd's trial for the murder of a police officer in Florida.

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New York's new governor wants to repurpose closed prisons as rehabs

Last month, Gov. Kathy Hochul raised the possibility of closing more state prison facilities in New York, continuing a decade-long effort by her predecessor amid a decline in the overall population of incarcerated people, reported Spectrum News. 

But unlike former Gov. Andrew Cuomo, who did not want prisons to be a jobs plan for upstate communities, Hochul acknowledged the fallout from the loss of prisons on an area's economy. 

Many of the former prisons closed by the Cuomo administration remain vacant sites, with few interested buyers willing to purchase the land and develop it for something else. 

So Hochul is considering ways of converting the sites to be used for other uses, such as providing help for people who face addiction. Hochul didn't offer many details as the plan remains under development.

"We want to get creative with this. I don't know if some of these can be used as substance abuse treatment centers, residential facilities," she said. "These are buildings I'm looking at the cost and also the opportunity of converting them to a different purpose."

Hochul pointed to the falling population of the state prison system overall, and many facilities are currently half full. 

Closing prisons has been largely applauded by criminal justice reform advocates as a needed corrective, though opposed by the labor union that represents corrections officers. 

"Incarceration is where we are at this point," said Neil Berry, an activist with the group VOCAL New York who was once incarcerated himself. "It's proven this type of system is not working and we have to do a more holistic aproach."

But Berry is concerned with using former prisons to provide treatment to people. Instead, Berry says those services should come to where people live. 

"It's traumatizing for a person because the person has been in the prison system before," he said. "As a person who has been directly impacted, I can tell you that's no the place to be when you're seeking treatment."

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Pittsburgh police investigating Lieutenant for affiliation with Oath Keepers

Pittsburgh police Lt. Philip Mercurio once signed up to join the far-right, anti-government militia group the Oath Keepers, according to a USA Today report and PublicSource.

The Oath Keepers, founded in 2009 to protect its members’ rights from what it viewed as a tyrannical government, is now under intense scrutiny for its role in the Jan. 6 attack on the U.S. Capitol.

Cara Cruz, a spokesperson for the city’s Department of Public Safety, confirmed that Mercurio is on the city’s force and said the Office of Municipal Investigations is investigating the matter. Pending the investigation, he has been reassigned to an "administrative assignment."

Rolling Stone first reported last week that a Pittsburgh Police officer used their city email address to sign up for the group. Cruz said the email address was in a format last used by city employees at least a decade ago.

Mercurio was first hired by the city in 1988, according to public records. He did not reply to requests for comment. USA Today reported that Mercurio hung up on its reporter.

A spokesperson for Mayor Bill Peduto confirmed that the city has launched a “comprehensive investigation” but made no other comment.

Mayor-elect Ed Gainey said he would not tolerate having an officer tied to an extremist group. "You can't uphold your position if you believe that people who don't look like you are bad, or wrong, or should be discriminated against. There's no room in our police bureau where we want that type of cop. That's not the police officer that we want. My administration won't tolerate that."

Gainey acknowledged that state law makes firing officers difficult but called the issue a "public relations nightmare" for the police.

According to the USA Today report, Mercurio described himself as a firearms instructor in the sign-up form, and said he would “spread the word” to his “students.” It’s unclear when Mercurio made the statement or if he had any ongoing involvement with the group.

USA Today found 65 people who identified themselves as law enforcement trainers in a leaked list of people who signed up for the Oath Keepers, including Mercurio.

The Pittsburgh Citizen Police Review Board has opened an inquiry into Mercurio's ties to the group. “Of course it’s a concern," executive director Elizabeth Pittinger said. "It presents a challenge to the credibility of the officer, which of course reflects back to the bureau itself, and it undermines the public's confidence of the bureau when there appears to be an expression of blatant bias.” The board's next meeting is Dec. 7, when it will consider the OMI investigation and determine how to proceed on its inquiry.

Robert Swartzwelder, the president of the police union, told PublicSource: “I don’t know what he’s being accused of” when asked for comment on the USA Today report regarding Mercurio, and when asked about the prospect of an officer being involved with the Oath Keepers, he said, “I don’t know who they are.” 

The Oath Keepers website describes the group as “current and formerly serving military, police, and first responders, who pledge to fulfill the oath all military and police take to ‘defend the Constitution against all enemies, foreign and domestic.’’’

Activists who demonstrated against police violence said they were concerned for residents.

“Ultimately, as a Black resident of Pittsburgh, this makes me feel extremely unsafe," said Jasiri X, founder and CEO of 1Hood Media, who called on the officer to be fired and questioned why an investigation is needed. "He used his Pittsburgh police email address to sign up for the Oath Keepers. So what do you have to investigate?”

Both Jasiri X and Brandi Fisher, president and CEO of the Alliance for Police Accountability, called on the city to create a policy that states officers who are found to be members of white supremacy will be immediately fired. The Oathkeepers are generally described as an extremist anti-government group.

“The idea that we just have this handful of apples, and the majority of people are OK, is false," Fisher said. "There is a violent culture of policing, there is a racist culture in policing. And there are individuals who use the law, who use policing, to enact that violence and racism.”

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SCOTUS hears Second Amendment case

The Supreme Court of the United States on Wednesday heard oral arguments in New York State Rifle & Pistol Association v. Bruen, a case involving a 108-year-old handgun-licensing law, reported Jurist.

The law requires any person who desires a license to carry a concealed handgun to show “proper cause” for the license. According to New York courts, “proper cause” is defined as an applicant showing a special need to defend themselves, rather than simply wanting to protect themselves or their property.

The case was brought by a New York gun-rights advocacy group, New York State Rifle & Pistol Association, and two men whose applications for unrestricted concealed-carry licenses were denied. The group and men’s lawyer told the Justices that the text of the Second Amendment “enshrines a right to bear arms” and the history and tradition of the United States confirm that the text protects an individual right to carry a gun for self-defense. “Carry a gun outside the home is a fundamental right that people in 43 other states enjoy.”

Justice Sonia Sotomayor pushed back on these statements citing “the plethora of regimes” that legislatures have chosen with regard to the carrying of weapons, from “English law through the colonies . . . to even now.” Justice Sotomayor stressed that “there were so many different regulations” and she was wary about the notion that history confirms what the defense is arguing. However, Justice Brett Kavanaugh stressed that the question before the court did not relate to the plethora of regimes Justice Sotomayor contends and is limited to the constitutionality of the New York permitting regime. If the only question before the court was the constitutionality of the permitting regime, Kavanaugh said the court would not need to address “all of the ‘sensitive places’ questions.”

The solicitor general of New York, Barbara Underwood, argued that English and American laws have limited the carrying of guns in public for the protection of public safety for centuries. She stated that the New York law was well within the tradition of regulating public carry and rejected the defense’s argument stating history and tradition show otherwise. The principal deputy solicitor general of the United States, Brian Fletcher, emphasized the history of gun regulations is not as one-sided as the defense made it seem. Fletcher listed various 19th-century state laws that he characterized as analogous to the New York law.

A decision in the case is expected by Summer of 2022.

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Citizen reporter wins First Amendment victory in the Fifth Circuit

 Priscilla Villarreal’s 2019 federal lawsuit came after she was charged two years earlier with two felony counts of misuse of information after she published the names of victims in a suicide and car crash on Facebook before they were made public, reported Courthouse News.

While Villarreal said she got the names from a Laredo police officer, Texas law makes it a Class 3 felony to seek and receive information from an official that has not yet been made available to the public. The statute was later found to be unconstitutional, and the criminal charges were dropped.

Monday’s 2-1 ruling from the Fifth Circuit renews the lawsuit Villarreal filed against officials in Laredo over claims that she was wrongly arrested and retaliated against in violation of her constitutional rights to free speech and protection from unlawful seizure.

A federal judge had extended qualified immunity to the officials, but the New Orleans-based appellate court ruled that “obvious violations of the Constitution” are not shielded by immunity.

“Priscilla Villarreal was put in jail for asking a police officer a question,” U.S. Circuit Judge James Ho, a Donald Trump appointee, wrote for the majority. “If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”

At oral arguments in February, lawyers for the city said officials were simply enforcing a statute and that Villarreal should not have sought the names of the deceased before they were made public, or published them on Facebook.

But in finding for Villarreal, the panel concluded that it was “hard to imagine a more textbook violation of the First Amendment.”

U.S. Circuit Judge James Graves, a Barack Obama appointee, joined Ho in the majority. U.S. Circuit Judge Priscilla Owen, appointed by George W. Bush, dissented, but the court said her opinion would be filed at a later date.

Unsurprisingly, Villarreal took to her Facebook page to spread news of the ruling. She also seized the opportunity to savor her victory.

“I’m obviously very happy with this decision,” Villarreal told her followers. “To be honest with you, I’m just freaking out right now. We won guys; we won in the Fifth Circuit Court of Appeals. You know what that is called? That’s called [expletive] karma.”

Villarreal was represented by Austin-based attorney J.T. Morris.

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