Bench Blog

From the desk of CK

Hello to all.  Welcome to the Blog: From the Desk of CK.  This Blog will be my attempt to put into context things that are going on in the legal world from high profile cases in the civilian world to things as mundane as changes to the UCMJ.  My goal is to highlight issues for service members and provide information and assistance when possible.  Not every post will be a thesis on “The State of Legal Profession.”  Some post will be short.  Some will be longer.  Somethings I might post a couple times week and sometimes I might go weeks without posting.  Whenever something strikes me, that’s when I’ll post.  Some will be serious and, hopefully, some will be funny.  But all of them will hopefully be relevant to some and if I can help just one service member feel just a little bit better about their situation, it will be worth it.  A court-martial is a serious thing.  And those facing it often do so in isolation.  From the Desk of CK, I’m here to tell you: you’re not alone.  So with that.  Let’s get started. 

Rittenhouse and the Military

Is the Kyle Rittenhouse case relevant to the Military?
           From the government’s perspective, the Kyle Rittenhouse case has absolutely no relevance to the military or military courts-martial.  It’s a civilian being tried in a civilian court based on violations of civilian law.  But from a defense perspective, I would argue that the Kyle Rittenhouse case, and the subsequent verdict, is absolutely relevant to the military, military court-martial lawyers, and specifically, to any military member facing a court-martial.             The facts of the Rittenhouse case are, for the most part, not subject to disagreement.  Objectively speaking, a 17-year-old teenager takes an AR-15 style assault rifle across state lines and shoots three protestors in a city that he has absolutely no connection to, killing two of them and injuring the third.  He’s ultimately charged with multiple gun and homicide offenses.  Given these straight forward facts, the subsequent full acquittal of Mr. Rittenhouse was met with wide condemnation from most segments of society.  A multitude of reasons for the seemingly “unjust” verdict swept social media and the nightly news.  Everything from the judge being biased to the prosecutors being inept were bandied about.  What was very rarely, if ever, acknowledged however was the outstanding performance of Mr. Rittenhouse’s defense team. Perhaps this shouldn’t come as a surprise given where we are as a society in the 21st century.  Given the abundance of cable Court TV shows, the propensity of news shows to highlight high profile cases and the inundation of true crime podcasts, we currently exist in an era of presumed guilt.  Indeed, government prosecutors in all jurisdictions has used this to their advantage time and time again.  No longer are defendants presumed innocent until proven guilty; a founding bedrock of our criminal justice system.  Instead, public outrage ensues whenever a defendant is found not guilty because the incessant social media and television coverage has all but convinced society that anyone who is charged with a crime must, in fact, be guilty.  We have long ago abandoned the era of Benjamin Franklin who argued “That it is better 100 guilty Persons should escape than that one innocent Person should suffer.”  Indeed, given the annual number of overturned convictions based on new DNA evidence, it would appear that the government now operates under a philosophy of “Better 100 innocent people be convicted than one guilty person go free.”  All of which makes the Rittenhouse verdict and his defense counsels’ performance that much more impressive. Setting aside the “morality” and public outrage of the verdict, the vital question to be asked is “Why was Kyle Rittenhouse found not guilty?”  The answer is simple: the law.  Specifically, his lawyers stayed focused on the charges that Mr. Rittenhouse was facing and not on the extraneous issues that some in the public were concerned with. (A mistake made by defense attorneys in the Ahmaud Arbery case, which will be the subject of a later Blog Post).  Based on their knowledge of Wisconsin Law, the attorneys went exclusively with a self defense theory of the case.  While several states have different variations of self-defense, ranging from “stand your ground” laws to “castle” defenses, Wisconsin law only required the defense to prove that Mr. Rittenhouse’s actions were “necessary to prevent imminent death or great bodily harm,” regardless of the fact that he, himself, may have created the situation which ultimately required his use of deadly force in self-defense.  By staying focused on the letter of the law, the defense team was able to argue a single, specific point: Mr. Rittenhouse believed he would suffer great bodily harm at the hands of the protestors.  Under the law as written, such belief would have authorized him to use self-defense and did, ultimately, result in a not guilty verdict.  Similarly, the gun charge, minor in possession of a firearm, was dismissed by the judge because the Wisconsin based attorney pointed out to the court that the Wisconsin law in question only prohibited minors from possessing short barreled firearms.  Because the AR-15 assault style rifle had a barrel length in excess of 16 inches, Mr. Rittenhouse was not in violation of the Wisconsin statute: a result which may not have occurred but for the fact he was being represented by Wisconsin attorneys who were intimately familiar with Wisconsin law.  Which brings us to the significance of this case to the military, court-martial attorneys, and those service members who find themselves facing charges at a court-martial. Like Mr. Rittenhouse who, though he was a resident of Illinois, found himself charged with Wisconsin specific crimes, military members likewise find themselves charges with UCMJ specific offenses.  Regardless of the state in which a Soldier may be present, the UCMJ is the law of the land and those laws are many times unlike anything seen in civilian jurisdictions.  Only in the military can you be convicted and confined for showing disrespect to your boss; malingering on the job; wearing an unauthorized ribbon or for acting in a manner the government believes is conduct unbecoming.  While it would have been a total mistake for Mr. Rittenhouse to hire an attorney that didn’t have years of experience in Wisconsin Law, so too would it be a mistake for military members to face the prospect of a federal conviction and years of confinement without the representation of a court-martial lawyer who has years of experience in the military justice system.  Everything about the military justice system is unique, from the terminology to the specific courts.  Only a court-martial lawyer with a clear understanding of the Rules for Court-Martial, the Uniform Code of Military Justice, the Military Judges Benchbook, the preferral and referral process and the unique nature of courts-martial can provide the level of expertise and experience needed to defend military members against an all too aggressive government machinery.  In the end, that’s the true take away from the Kyle Rittenhouse case:  a defendant’s case, and the ultimate result, is only as good as the defense attorney leading it.