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Would Kyle Rittenhouse have faced a trial if his case were in Utah? Maybe not. Here’s why

SHARE Would Kyle Rittenhouse have faced a trial if his case were in Utah? Maybe not. Here’s why
Kyle Rittenhouse waits for the judge.

Kyle Rittenhouse, center, waits for the judge before the jury is relieved for the day during his trial at the Kenosha County Courthouse in Kenosha, Wis., on Thursday, Nov. 18, 2021. A jury on Friday acquitted him on all charges.

Sean Krajacic, The Kenosha News via Associated Press

The Kyle Rittenhouse trial in Wisconsin has focused attention on self-defense laws around the country.

But if his case were to have occurred in Utah, it might not have gone before a jury at all.

Under a new state law that took effect in May, a claim of self-defense allows a person charged with a crime involving the unlawful use of force to request a justification hearing in front of a judge up to 28 days before a case goes to trial. The law shifts the decision about whether someone acted in self-defense from a jury to a judge, who might have to rule based on limited pretrial evidence.

In the hearing, prosecutors must prove with clear and convincing evidence — a high legal bar — that the person did not act in self-defense or was not justified in the use of force. If prosecutors are not able to meet that burden of proof, the judge must dismiss the charges with prejudice, meaning they cannot be refiled.

If prosecutors prove their case, they are prohibited from relying on the outcome in a jury trial, where the defendant can once again claim self-defense.

Defense attorney and former state prosecutor Greg Skordas said Rittenhouse “absolutely” would have had that hearing if the case were in Utah.

“What you’re saying is, ‘Judge, the self-defense here is so overwhelming, it shouldn’t even get in front of a jury,’” he said. “It’s no-lose for the defense. It gives you two bites of the apple.”

The law allowing for a justification hearing in self-defense cases doesn’t exist in Wisconsin where Rittenhouse faced multiple charges after he killed two protesters and injured a third on the streets of Kenosha, Wisconsin last summer. Utah and Florida are the only two states with the law.

Rittenhouse, a former police and fire youth cadet, went to Kenosha from his home in Antioch, Illinois, in what he said was an effort to protect property after rioters set fires and ransacked businesses on previous nights. He retrieved an AR-15 rifle from a friend’s house in Kenosha before they both headed downtown to help guard a used car dealership that was damaged in a prior protest. The protests were spurred by the police shooting of Jacob Blake, a Black man.

Rittenhouse, who was 17 at the time, argued he acted in self-defense.

A jury Friday acquitted him on all charges.

Rittenhouse faced two felony counts of first-degree recklessly endangering safety, first-degree reckless homicide and first-degree intentional homicide and attempted first-degree intentional homicide, claiming he shot three men, two fatally, in self-defense during a 2020 protest.

What is Utah’s self-defense law?

Under Utah’s self-defense law, a person can use force when he or she reasonably believes it’s necessary to prevent harm from imminent danger serious enough to cause injury or death. Force is also justified to prevent a felony, including violent crimes such as carjacking, assault or kidnapping.

“If you attack me with a newspaper, I can’t defend myself with a gun,” Skordas said. “But if you attack me with a knife, I can defend myself with a gun because you’re using an object that could cause death or serious bodily injury.”

Utah also is a “stand your ground state.” That means that a person does not have to retreat before resorting to force. A person must be in a place where he or she has a legal right to be whether it’s private or public property.

A person cannot use force in self-defense when he or she has initiated a conflict, is committing a felony crime or has agreed to combat. An exception to the rule prohibiting a self-defense claim in a mutual fight allows an aggressor who formally withdraws from the fight and is attacked to rely on self-defense.

Aaron Turner, a certified Utah firearms instructor, said he listened to quite a bit of the testimony in the Rittenhouse trial. He said the case would be a good one to apply the new Utah self-defense law permitting a justification hearing.

“You have to say on the face of the facts at the time that we knew it, this was either a self-defense case or not a self-defense case,” he said. During the course of the trial, the prosecution, he said, has been able to present an argument that Rittenhouse’s actions weren’t self-defense and that he purposefully put himself in harm’s way.

Turner can also see some of the unintended consequences of the new law or as Salt Lake County District Attorney Sim Gill calls “collateral impact.”

Gill said in a KSL-TV report that people charged with all kinds of serious violent crimes are now demanding justification hearings under the new law. Victims, he said, are questioning why they’re being taken through that process.

In some cases, Gill said the process could lead to charges being dropped as evidence is still being gathered.

“We warned of these collateral consequences, those were ignored,” he said. “And now the taxpayers are going to pay for it and our victims are going to pay for it.”

‘Spiraled out of control’

As he followed the Rittenhouse trial, Turner said part of him thinks the teenager put himself in the situation that ended up going awry.

“It’s a situation that nobody intended to go in this direction, but it spiraled out of control,” Turner said. “And once it starts that spiral, nobody can stop it.”

Rittenhouse, he said, was part of the problem, not part of the solution.

Turner said Rittenhouse is within the law to stand in front of the car dealership with a rifle to discourage bad behavior, but doesn’t have the right to fire a gun to protect those vehicles.

“As far as stand your ground law, I don’t know. I’ve been on the fence with him,” he said, noting some analysts have speculated that Rittenhouse might have developed a “not on my watch” mentality through the youth cadet programs he participated in.

“Unfortunately, when you take that mental stand, you don’t always say, ‘Hey, you know what? Is that car really worth somebody else’s life?’ and that’s the bottom line,” he said. “In Utah, they say there’s no property that ever holds as much value as a human being’s life, and they stress that clearly in the laws.”

If a car is empty, it’s property, Turner said. “If your family is in it, and you’re carjacked or something, you do what you have to do to defend yourself and your family. I think that’s a God-given right.”

Turner said people just can’t go out looking for a fight.

“That’s what I feel Rittenhouse almost did,” he said. “He almost went looking for that fight, and there’s a very fine line there.”