As our Jack Crowe reports, Judge Bruce Schroeder has removed the misdemeanor possession of a firearm charge from the jury’s consideration. As I’ve been arguing (see, e.g., here and here), the statute is muddled, and a conviction would be susceptible to a constitutional vagueness challenge — based on the principle that, to be actionable, a criminal law must put people of ordinary intelligence on notice of what the law prohibits.
There is also, it turns out, yet another problem, which came to a head, finally, during legal arguments this morning, before the judge started instructing the jury on the law. It turns out that the prosecution failed to establish that the AR-15-style weapon Rittenhouse possessed was a short-barrel rifle as defined under Wisconsin law — the gun itself was admitted into evidence but there was no testimony on this point. Professor Jonathan Turley has a great post on his website, explaining that, in essence, Wisconsin bars minors from possessing short-barrel rifles.
At one point in this morning’s to-and-fro, Judge Schroeder asked, “Why don’t we just measure the gun?” Obviously, it didn’t measure up because, once the jury entered the courtroom, the judge instructed them that the misdemeanor count is no longer part of their consideration of the case.
