LockeNLoad
| Favorite team: | Texas A&M  |
| Location: | Omnipresent |
| Biography: | One of the Greatest Political Philosophers of all Time |
| Interests: | Truth, Objectivity, and Rebutting Nonsense |
| Occupation: | |
| Number of Posts: | 235 |
| Registered on: | 10/26/2021 |
| Online Status: | Not Online |
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re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/4/21 at 8:03 am to troyt37
quote:Time will tell, because some contingent fee lawyer somewhere in Wisconsin will almost certainly be willing to roll the dice on this case. When that civil court eventually rules on the inevitable motion for summary judgment from the civil defendants, we will have our final answer.
Malicious prosecution is exactly what this is
2
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/4/21 at 7:49 am to Blizzard of Chizz
quote:Agreed. Rittenhouse should and will be acquitted, based upon “perfect” self-defense.
Bottom line, you cannot change the video. Everyone can see exactly how it played out in real time. This isn’t a far fetched defense theory. It is cold hard mutha frickin facts. Everyone has a right to self defense and to deny Kyle that right is UNfrickIN AMERICAN.
The “parsing” of legal arguments you referenced, relates to whether he will be able to maintain a civil tort action for recovery against local government related to their decision to pursue this case.
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/4/21 at 7:47 am to Lightning
You say that we have interacted in the past, but I have absolutely no recollection whatsoever of your existence.
In any case, the authority you are citing is related to an “imperfect“ self-defense claim, as opposed to a “perfect“ self-defense claim. Yes, under Wisconsin law, the State carries the burden of proof on an “affirmative defense“ which directly attacks an element of the underlying cause of action. This makes perfect sense, because it is a challenge to an element of the states case, but also this is not such a case. (Legal theorists could argue all day as to whether an attack on an element of a claim is even an “affirmative defense“ at all, Given that a true “affirmative defense” accepts that the underlying claim is valid, but reasons that the responsive behavior is nonetheless justified. But that debate has no bearing upon today’s discussion”)
As to “self-defense” claims, a “perfect“ self-defense is a situation in which the defendant is OBJECTIVELY correct in believing himself to be in danger. And “imperfect“ self-defense is a situation in which the jury determines that belief not to have been objectively accurate, but instead that the defendant DID believe himself SUBJECTIVELY to be in danger. The net effect of an “imperfect“ self-defense claim in a Wisconsin case like Rittenhouse is to reduce the charges from first degree to second- degree.
In this case, the Rittenhouse team (correctly, in my view) has elected not to pursue an “imperfect“ self-defense argument, focusing instead (“rolling the dice“ if you will) on the “perfect” self-defense. .
I would also know that the language upon what you rely is simply a report from a state bar committee regarding jury instructions, whereas the case I cited was actual appellate court authority on the point, In which the appellate court explicitly disagreed with the reasoning of that committee.
The law you outline is certainly interesting, but it has no bearing whatsoever on this case.
I honestly do not know whether you do not understand this distinction, or just did not see it during your research. Either way, I feel no need to insult you. I see no need to question your manhood. I see no need to insult your ancestry. I see no need to insult your intelligence. None of that is necessary, in any attempt to engage in reasoned discussion of an interesting issue.
I have outlined Wisconsin law, as I believe it to be applicable, And I remain 100% convinced that I am correct. You believe otherwise. Neither of us is going to change our minds, so I wish you a good day.
Locke
In any case, the authority you are citing is related to an “imperfect“ self-defense claim, as opposed to a “perfect“ self-defense claim. Yes, under Wisconsin law, the State carries the burden of proof on an “affirmative defense“ which directly attacks an element of the underlying cause of action. This makes perfect sense, because it is a challenge to an element of the states case, but also this is not such a case. (Legal theorists could argue all day as to whether an attack on an element of a claim is even an “affirmative defense“ at all, Given that a true “affirmative defense” accepts that the underlying claim is valid, but reasons that the responsive behavior is nonetheless justified. But that debate has no bearing upon today’s discussion”)
As to “self-defense” claims, a “perfect“ self-defense is a situation in which the defendant is OBJECTIVELY correct in believing himself to be in danger. And “imperfect“ self-defense is a situation in which the jury determines that belief not to have been objectively accurate, but instead that the defendant DID believe himself SUBJECTIVELY to be in danger. The net effect of an “imperfect“ self-defense claim in a Wisconsin case like Rittenhouse is to reduce the charges from first degree to second- degree.
In this case, the Rittenhouse team (correctly, in my view) has elected not to pursue an “imperfect“ self-defense argument, focusing instead (“rolling the dice“ if you will) on the “perfect” self-defense. .
I would also know that the language upon what you rely is simply a report from a state bar committee regarding jury instructions, whereas the case I cited was actual appellate court authority on the point, In which the appellate court explicitly disagreed with the reasoning of that committee.
The law you outline is certainly interesting, but it has no bearing whatsoever on this case.
I honestly do not know whether you do not understand this distinction, or just did not see it during your research. Either way, I feel no need to insult you. I see no need to question your manhood. I see no need to insult your ancestry. I see no need to insult your intelligence. None of that is necessary, in any attempt to engage in reasoned discussion of an interesting issue.
I have outlined Wisconsin law, as I believe it to be applicable, And I remain 100% convinced that I am correct. You believe otherwise. Neither of us is going to change our minds, so I wish you a good day.
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 9:01 pm to troyt37
quote:You are mistaken. I cited the relevant Wisconsin statute in the other thread. The burden of proof is not complex, but rather a matter of black letter law. Again:
Pretty sure the burden of proof still lies on the prosecution to prove that it wasn’t justified, and therefore criminal.
quote:it is NOT the burden of the State to DISPROVE the affirmative defense. It is the burden of the defendant to affirmatively PROVE the defense.
When a defendant successfully makes self-defense an issue, the jury must be instructed as to the state's burden of proof regarding the nature of the crime, even if the defense is a negative defense. Wisconsin JI-Criminal 801 informs the jury that it “should consider the evidence relating to self-defense in deciding whether the defendant's conduct created an unreasonable risk to another. If the defendant was acting lawfully in self-defense, [his] conduct did not create an unreasonable risk to another." This instruction implies that the defendant must satisfy the jury that the defendant was acting in self-defense and removes the burden of proof from the state to show that the defendant was engaged in criminally reckless conduct. State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, 12-0011.
In the fewest possible words:
quote:As an aside, there ARE states in which the prosecution has the burden of disapproving a claim of self-defense, once the defense has been presented. Wisconsin is simply not such a state.
the State has to prove he killed someone. They have done that. Rittenhouse has to prove it was justified. He will do so.
Locke
re: Ruggs bail was only $150,000
Posted by LockeNLoad on 11/3/21 at 8:46 pm to TigerTee
quote:Bail is not punishment and is set at a figure likely to assure that the defendant will appear for trial.
After driving over 150mph while under the influence!??? Someone explain to me how that is rational.
This guy was a drunk arse, but he is not a flight risk.
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 8:20 pm to troyt37
quote:Because the prosecution only has to establish “probable cause“ on the homicide. To establish “probable cause,” they do not have to negate any affirmative defense that the Defendant might raise, in order to avoid liability for malicious prosecution.
How does defending your life against armed attackers provide probable cause for any charges whatsoever?
So, what is the “probable cause” on homicide? He killed two people. Everyone in the court room has admitted that, including the Defendant’s own attorney. That matter is not even IN ISSUE. The state has not just established “probable cause;” it has met its burden of proof on the entire case.
The burden has now shifted to the Rittenhouse team to establish the elements of their affirmative defense. If they fail to do so, they lose the case, and Rittenhouse goes to prison.
I think the Defense will do so, but that has absolutely nothing to do with the validity of a malicious prosecution claim. “Probable cause” on the homicide charge is utterly and completely independent of the validity of the affirmative defense.
Your downvotes simply confirm that you are posting from emotion rather than from even the most rudimentary effort to understand the issues.
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 6:05 pm to BeefDawg
quote:I am saying that he has no tort claim for malicious prosecution.
You’re telling me when he’s acquitted he has no civil case for restitution against a political hit job?
Maybe a hypothetical lawyer on a contingent fee can craft some other clever theory or argument … but I doubt it.
Take this thread, for example. Lots of downvotes, but no substantive refutation of the premise, no contrary authority and no alternate theory of recovery.
“But it FEELS like he SHOULD get a check!!!!”
Locke
re: History buffs are gonna love the 2nd amendment trial
Posted by LockeNLoad on 11/3/21 at 5:57 pm to Kjnstkmn
quote:You are certainly entitled to your opinion, but in 1833 SCOTUS ruled that the Bill of Rights was limited in application to the central government. Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)
2nd Amendment interpreted correctly = nation-wide constitutional carry
quote:This was settled law for a century, until some moron decided to argue that the Civil War Amendments expanded the Bill of Rights as applicable to State governments.
The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
It was a major blow in the destruction of our formerly-federal system.
All Hail DC (sarcasm)
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 3:25 pm to lsufball19
quote:You are mistaken.
The lacrosse players didn't file suit against the state, the DA's office, or Nifong.
He was sued in federal court, and the claims against him survived dismissal based upon immunity. He was eventually dismissed from the case because he had filed bankruptcy. LINK
Yes, he was disbarred. Yes, Duke was also sued.
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 3:08 pm to udtiger
quote:Zero chance of success
malicious prosecution
quote:This case does not give rise to even a good faith argument that there was no probable cause for the primary charges. Like it or not, Rittenhouse killed two people. The prosecution proved the elements of its case before this trial ever started. In essence, defense counsel admitted this in his opening statement.
Under Wisconsin law plaintiff Kaminske's claim for the tort of malicious prosecution requires six elements: (1) a prior institution or continuation of judicial proceedings against Kaminske; (2) the former proceedings were "by, or at the instance of," WCL; (3) the prior proceedings terminated in Kaminske's favor; (4) malice on the part of WCL in instituting the former proceedings; (5) a want of probable cause for the institution of the former proceedings; and (6) injury or damage resulting to Kaminske from the former proceedings. Strid v. Converse, 111 Wis.2d 418, 423, 331 N.W.2d 350 (1983).
This entire trial is about Rittenhouse’s affirmative defense, which DOES have merit. But failure to exercise prosecutorial discretion and to elect not prosecute based upon an affirmative defense (no matter how meritorious) is never going to give rise to a malicious prosecution case, because the failure to exercise prosecutorial discretion is not remotely the same thing as “lack of probable cause“ on the underlying crime. It is not even an element of the tort.
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 3:05 pm to jchamil
quote:Nifong lost absolute immunity because he engaged in a whole HOST of extrajudicial activities, taking advantage of the case for personal gain ... including his political race.
He could sue Kenosha and the DA. Remember Nifong?
I've not seen anything of the sort in this case.
But that point is mostly for Boudin. I was more addressing the substantive nature of the tort, as opposed to the immunity issue.
Locke
re: Taco Bell with the jokes today
Posted by LockeNLoad on 11/3/21 at 2:59 pm to deltaland
quote:"that good?"
If it’s fake he stole it from somewhere cause I know his dumbass can’t photoshop that good
The font isn't even close to correct.
re: Witness: Man Rittenhouse Fatally Shot Acted ‘Erratic’; Hurled N-Word, Shouted ‘Shoot Me’
Posted by LockeNLoad on 11/3/21 at 2:54 pm to phaz
quote:Almost certainly true.
worse, everyone he shot (families of the dead) will sue him after he is found not guilty.
Same thing happened to OJ. Acquitted of the crime, but got sued and spent the rest of his life barely able to afford green fees for visiting every golf course in the country to search for the real killer.
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 2:51 pm to boudinman
quote:And "on what legal theory" ... what tort?quote:From whom? DA's and their office have immunity from lawsuits.
Kyle about to get paid Sandmann style
This kid got put through the wringer, and that should not have happened. But he has no justiciable civil case against anyone in state or local government.
re: Witness: Man Rittenhouse Fatally Shot Acted ‘Erratic’; Hurled N-Word, Shouted ‘Shoot Me’
Posted by LockeNLoad on 11/3/21 at 2:46 pm to Tigers2010a
quote:I am not aware of any such tort.quote:How about a case for a political prosecution which is what we are seeing.
There is no case here for malicious prosecution
Most States have criminal statutes for abuse of office, and I suppose that someone could TRY to argue that the DA should be prosecuted, but that does not put money in Rittenhouse's pockets.
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 2:40 pm to Ace Midnight
quote:Sure, the State can dismiss the case if the prosecutor wants to stop embarrassing himself.
Can he entertain a motion to dismiss?
Locke
re: Witness: Man Rittenhouse Fatally Shot Acted ‘Erratic’; Hurled N-Word, Shouted ‘Shoot Me’
Posted by LockeNLoad on 11/3/21 at 2:27 pm to teke184
quote:This kid has been put through the wringer, and he should not have been. But he has no justiciable legal claim for malicious prosecution.
does anyone know of a case of malicious prosecution which got to trial and resulted in the accused getting paid off without them actually going to jail?
Because this farce seems to be grounds for one if it hasn’t happened before.
quote:This case does not give rise to even a good faith argument that there was no probable cause for the primary charges. Like it or not, Rittenhouse killed two people. The prosecution proved the elements of its case before this trial ever started. In essence, defense counsel admitted this in his opening statement.
Under Wisconsin law plaintiff Kaminske's claim for the tort of malicious prosecution requires six elements: (1) a prior institution or continuation of judicial proceedings against Kaminske; (2) the former proceedings were "by, or at the instance of," WCL; (3) the prior proceedings terminated in Kaminske's favor; (4) malice on the part of WCL in instituting the former proceedings; (5) a want of probable cause for the institution of the former proceedings; and (6) injury or damage resulting to Kaminske from the former proceedings. Strid v. Converse, 111 Wis.2d 418, 423, 331 N.W.2d 350 (1983).
This entire trial is about Rittenhouse’s affirmative defense, which DOES have merit. But failure to exercise prosecutorial discretion and to elect not prosecute based upon an affirmative defense (no matter how meritorious) is never going to give rise to a malicious prosecution case, because the failure to exercise prosecutorial discretion is not remotely the same thing as “lack of probable cause“ on the underlying crime. It is not even an element of the tort.
Locke
re: Kyle Rittenhouse Trial - Day 4 (made the thread title more accurate)
Posted by LockeNLoad on 11/3/21 at 1:42 pm to CAD703X
I have seen cases through the years where the case being presented by the plaintiff or the prosecution did not make a lot of sense for the first few days, until all the pieces started to click together
Thus far, this does not look like one of those cases.
Locke
Thus far, this does not look like one of those cases.
Locke
re: Witness: Man Rittenhouse Fatally Shot Acted ‘Erratic’; Hurled N-Word, Shouted ‘Shoot Me’
Posted by LockeNLoad on 11/3/21 at 12:55 pm to Frank Black
quote:Well, he was called to the stand by the prosecution, but it would not be unreasonable to consider him a defense witness ... based upon his testimony. (that is sarcasm)quote:I believe he testified for the defense
Was he a witness for the prosecution?
Locke
re: Kyle Rittenhouse Trial StartingToday
Posted by LockeNLoad on 11/3/21 at 12:54 pm to Badface
quote:I watched the CourtTV live feed yesterday. Have not had the opportunity today to see whether it is streaming there.
How do you watch the trial online today?
Locke
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