Michael Gaynor
Justice ultimately prevailed in the Kyle Rittenhouse case
But the indictment for illegal possession of a weapon was a travesty of justice that should be investigated instead of ignored
By Michael Gaynor
November 19, 2021

Will there be any consequences for anyone in the prosecutor's office for seeking and securing an indictment on a fatally flawed charge?

The Kyle Rittenhouse case ended with a dismissal of a shameless weapon charge and acquittal on the remaining charges.

That shameless charge—that Rittenhouse was carrying a weapon that he was not entitled to possess – should never have been brought, because it was lawful for him to be carrying the weapon, but the prosecution shamelessly got a grand jury to indict on it anyway, presumably in the belief that it would buttress the prosecution case on the other, more serious charges.

As former New York State Court of Appeals Chief Justicer Sol Wachler observed in 1985: “If a district attorney wanted, a grand jury would indict a ham sandwich.”

As Toni Messina wrote in 2016 (https://abovethelaw.com/2016/02/criminally-yours-indicting-a-ham-sandwich/): "Grand juries are the prosecutor’s babies. They decide who gets picked, what evidence gets presented, and what gets left out. There’s no judge, no defense attorney, and generally a defendant only testifies in rare circumstances — his story is so air tight that there’s no down side in putting him in. There’s no necessity for unanimity among the 23 or so jurors, and the standard of proof is so low — that probable cause exists to believe a crime has been committed — anyone, for the merest hint of an offense, can get indicted."

In the Rittenhouse case, two key facts were readily ascertainable: (1) Rittenhouse was 17 years old on the date he allegedly committed serious crimes with a rifle that was in the possession of the prosecution and available to be measured, and (2) that rifle was lawful for Rittenhouse to possess in Wisconsin after he became 17.

Whether intentionally or not, the prosecution secured indictments on all of its charges against Rittenhouse by deceiving the grand jurors into believing that Rittenhouse had entered Wisconsin with an illegal weapon and thereby substituted a presumption of guilt for the presumption of innocence.

One may reasonably wonder why Rittenhouse's trial lawyers did not move to dismiss the unlawful rifle possession charge before the trial.

Perhaps they did not check the applicable law because they could not imagine that the prosecution would have failed to make sure that Rittenhouse's possession of the rifle was unlawful instead of lawful since he was 17.

Whatever, fortunately that charge was dismissed after testimony had ended and before jury deliberations began.

Kudos to the jurors for their apparently thorough deliberations and a just verdict.

Question: Will there be any consequences for anyone in the prosecutor's office for seeking and securing an indictment on a fatally flawed charge?

Will there be an investigation into who was responsible for misinforming the grand jurors, who look to the prosecution for guidance on the applicable law and cannot reasonably be expected to realize that they are being misled as to the applicable law.

Second Question: Would the defense lawyers have been sued for malpractice if the flaw in the indictment had not been discovered and Rittenhouse had been wrongly convicted on all charges?

Hopefully any lawyer who Rittenhouse retains to sue any person who he reasonably believes violated his rights will take care to pursue only legitimate charges.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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