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Paul Butler: When the defendant provokes the incident, he loses the right to self-defense. You cannot claim self-defense against a danger you create.

Melissa Harris-Perry: Kyle shot Joseph Rosenbaum to stop a threat to his person, and I'm glad he shot him because if Joseph Rosenbaum had got that gun I don't for a minute believe he wouldn't have used it against somebody else.

Melissa Harris-Perry: You're listening to some of the final arguments delivered by the prosecution and defense during the trial of Kyle Rittenhouse. Now, there's no dispute about the basic facts of this case. In the summer of 2020, Rittenhouse, who was then 17 years old, left his home in Antioch, Illinois. He drove across state lines to Wisconsin transporting along with himself an AR-styled semi-automatic rifle. After crossing state lines with this weapon written house shot and killed two people and he shot and injured a third person.

Now, it's easy to see why an outsider would assume this is a non-controversial case. One where the clarity of such key facts would leave little room for disagreement, and it would mean the case barely received media attention. Instead, the trial of Kyle Rittenhouse on five felony charges, including first-degree intentional homicide has captivated the American public for weeks. The trial is much less about what has happened and far more about why. Context, motivation, precipitating, and mitigating factors all are core considerations for the jury now deciding Rittenhouse's fate.

The trial has never been about who, what, when, or how. This is a trial about why, and that means the jury's decision will be less about Rittenhouse and more about America. I'm Melissa Harris-Perry, and that's where we start on The Takeaway. Here with me now is Paul Butler, the Albert Brick Professor of Law at Georgetown University Law Center. He's also the author of Chokehold: Policing Black Men. Welcome professor Butler. How are you?

Paul Butler: I'm doing great, Melissa. It's great to be back on The Takeaway.

Melissa Harris-Perry: It's always nice to have you, even in a tough moment like this. Let's just start with the oddity that this is a case where the defendant is white, the victims are white, and yet, somehow this is a case about race. How'd that happen?

Paul Butler: This case grew out of a protest inspired by the movement for Black lives about Kenosha police shooting an African-American person. There were protests many nights and on one of those nights, Mr. Rittenhouse showed up with an AK-15 and shot three people killing two of them and blowing the arm off another person. Melissa, as this was happening, the crowd turned on Mr. Rittenhouse after they seen his acts of violence, and Mr. Rittenhouse went to the police with his gun in the air, the crowd shouting, "He just shot three people." The police told Mr. Rittenhouse, 17-year-old White man, "Make sure you don't get tear-gassed and go home." It's impossible to imagine a young 17-year-old Black man approaching the cops with a gun, crowd screaming, "He just shot three people," and the police tell him that young man go home. To a lot of people, this is a case about equal justice under the law.

Melissa Harris-Perry: To be fair, the prosecution, the DA, did in fact charge Rittenhouse, though. It's not as though, obviously, if we remember back a decade now with the case of George Zimmerman, who was also told to go home after shooting and killing someone, in that case, a teenager, Trayvon Martin, and it took an entire social movement to get Mr. Zimmerman even arrested and charged. In this case, there was eventually an arrest. There was eventually a charge, but at least in reviewing how this case is being covered in media, how people are responding to it in social media, it does seem that there's a real possibility that Mr. Rittenhouse will be told to go home at the end of this jury deliberation as well.

Paul Butler: I do think it's a sign of progress that this case was brought at all. Its far from a slam dunk for the prosecution. Mr. Rittenhouse has a credible defense. In his closing statement, the prosecutor told a compelling story about a reckless 17-year-old who took a semi assault weapon to a protest spoiling for a fight. I thought the best line of the closing argument was when the prosecutor said hundreds of people were out in the street experiencing chaos and violence, but the only person who killed anyone was the defendant, Kyle Rittenhouse, but of course, the defense has an answer, and that's why this is going to be, I think, a difficult case for the jury.

The defense really went after the first person who Mr. Rittenhouse killed. A man who's seemed to be experiencing a mental health crisis. The defense said that that man attacked Mr. Rittenhouse, tried to get his gun. Mr. Rittenhouse's second victim attacked Mr. Rittenhouse with a skateboard and the third victim had a gun, and so Mr. Rittenhouse is claiming self-defense. His argument is that he faced deadly force and under the law he was allowed to use deadly force in return in order to save his own life.

Melissa Harris-Perry: What should we expect that the jury is talking about? Based on what you know about juries and how they deliberate, will race be center? Will they actually put race on the table and have a conversation about it or will it simply be lurking in the background as they're deliberating?

Paul Butler: Melissa, in this case, the jury was selected in a day and we can compare that to the three-week selection process in the trial of Derek Chauvin for the murder of George Floyd, and also about three weeks to pick that jury in Georgia for the killers of our Ahmaud Arbery. There's not as much information about the jurors in the Rittenhouse case. Reportedly one is African-American out of the 12 who will decide the fate of the case. In a lot of criminal trials that have come about during the Black Lives Matter era, race is the reason that people are interested in these cases. It's why they're so high profile. The irony is that race rarely comes up in the courtroom, and the Rittenhouse case is no exception.

I don't think race was brought up once. All of the principal parties are white. We know that the jurors have deliberated one full day. That suggests that this isn't a simple case just based on the law they're facing. Mr. Rittenhouse is facing long, complicated charges. Melissa, sometimes jurors go into that room where they deliberate right after they've been instructed by the judge and they look at each other and they have a sense of what's happening, what they think the verdict is. This doesn't seem to be one of those cases just based on the fact that the jurors have already deliberated a whole day.

Melissa Harris-Perry: Their deliberation is now longer than it took to select them as a jury. Is that right?

Paul Butler: That's right.

Melissa Harris-Perry: I'm wondering, obviously the judge, Bruce Schroeder, has made headlines a lot, but presumably the jury is not paying attention to or don't know about those headlines. Is there anything about the judge's behaviors, actions, instructions in court that could have an effect on how the jury deliberates over the next hours or days?

Paul Butler: During the trial, prosecutors fought to get in evidence that the judge wouldn't allow. This evidence presents a different picture of Rittenhouse than the boy scout who was at these protests to render medical aid that the defense portray. Among the videos that the prosecutor wanted the jurors to see is Mr. Rittenhouse beating up a teenage girl who had gotten into a fight with his sister and another video where Mr. Rittenhouse observing people who he thinks are looting a CVS drugstore and Mr. Rittenhouse says, "Man, I wish I had my AK-15 because I would shoot them."

That's very probative evidence in a sense, but you can understand the judge's concern that that might be too much for the jury. It might prejudice them. The judge has made a number of rulings that favor the defense. Because this is a political trial, some people have questioned whether the judge is tipping the scales in favor of the defendant but there're some acts he's taken that he does in every trial. He got a lot of attention for not allowing the people who Mr. Rittenhouse killed to be called victims but the truth is the judge does that in every self-defense case that he presides over because he thinks victim is something that the jury has to determine.

Melissa Harris-Perry: I have struggled with this case a bit because Mr. Rittenhouse is 18 and was 17 at the time of killing these individuals and I guess it is hard to take race out of something. I just simply don't even quite believe in that idea of taking it out but I do have to say, just in the coverage I've done over the years and the research I've done over the years, we are supposed to think about young people, and young is still 17, 18 years old, a bit differently in the criminal legal system. Do you have any advice for how we should be contemplating and thinking about Mr. Rittenhouse's age?

Paul Butler: I think we should think about adjudication and sentencing differently. Adjudication is what's happening now. It's the process of deciding whether Mr. Rittenhouse did it, whether Mr. Rittenhouse is a murderer. If the jury convicts him, then he'll go on to a sentencing phase. In notorious cases that inflame passion, sometimes the instinct is to throw the defendant under the jail. We know that based on the values of the movement for Black lives, those kinds of tough sentencing practices always end up impacting African-Americans and Latinx people, Native Americans more adversely.

If Mr. Rittenhouse is found guilty, and that's a big if, I think that it's important to understand that this was a young person. Spiritual people say God isn't through with him yet. At the same time, he took two lives and forever altered the life of the other person who he shot. The same judge who's presided over the trial, if there's a conviction, will have to decide what are Mr. Rittenhouse's just desserts. What it means to bring justice in a case like this.

Melissa Harris-Perry: Paul Butler is Albert Brick Professor in Law at Georgetown University Law Center. Professor Butler, thank you so much for joining us today.

Paul Butler: Melisa, it's always a pleasure.

[00:12:52] [END OF AUDIO]

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