Would Kyle Rittenhouse Have Been Acquitted in Michigan?

The only way to know the answer to this question would be to actually try the case in front of a Michigan Jury. One thing for certain however is that Kyle Rittenhouse would have been allowed to raise a claim of self defense had the case happened here in Michigan. Presumably, if it was the exact same testimony and evidence, same jurors, judge and prosecutor, then yes, Kyle Rittenhouse would have been acquitted here in Michigan too.

This is all speculation, but a brand-new case in Michigan may shed light on the question. The name of the case is People of the State of Michigan v Leandrew Martin. The case arose out of the Jackson County Circuit Court, and was decided on November 18, 2021. In this case, the Michigan Court of Appeals set aside multiple felony convictions because the defendant’s lawyer had failed to request a jury instruction for self-defense despite the fact that a claim of self-defense had been established at trial.  The court held that this mistake was so bad that the verdict had to be set aside finding that the defendant’s attorney was “ineffective.”

The case arose out a bar fight and during the fight the defendant shot ten times into a crowd, leaving one person with a serious injury caused by ricocheted bullet that struck the foot. The defendant was a felon and was not in lawful possession of the pistol. Because of this the defendant’s lawyer thought he was not entitled to raise self-defense. It’s not clear why the defendant’s lawyer believed this to be true because Michigan’s laws of self-defense do not require that a defendant be in lawful possession of the weapon in order to raise a claim of self defense.

In the Martin case the defendant had a “common law” right to self-defense even though he unlawfully possessed the gun. This unlawful possession however did preclude him from being able to raise a statutory right of self-defense. Michigan’s statutory right of self-defense, as set forth in MCL 780.972 provides that a person may raise a claim of self defense only if they are not committing a crime at the time the defense is raised. Consequently, this defendant, who was committing a crime by being a felon in possession of a firearm, could not raise a statutory self defense claim under Michigan’s Self Defense Act, also known as the Michigan Stand Your Ground Law.

However, Michigan law provides that a claim of self-defense can be based on either the Michigan Self-Defense Act or common law. There are subtle differences in the showing necessary to establish the defense under each legal theory. A common law self-defense claim requires that:

  1. The defendant must have an honest and reasonable belief they are in danger of death or serious injury.
  2. The defendant’s actions must appear to be immediately necessary to eliminate the threat of injury or death.
  3. The defendant cannot be the initial aggressor.

Both the Michigan Stand Your Ground Law and Michigan’s common law self-defense are broadly applicable, but there are subtle differences, and this might be one reason Martin’s lawyer made the mistake they did.

Also, both are “subjective” defenses, meaning the facts are construed based on how the circumstances appeared to him or her at the time of the self-defense act. The Martin opinion also supports the contention that there is no absolute duty to retreat under either the Stand Your Ground law or common law. Under common law, there is a duty to retreat. However, as this case references, a sudden attack may preclude the common law duty to retreat.

Also, the Court of Appeals points out in its decision that when a defendant wishes to raise a claim of self-defense, it is not for the judge to decide the merits of self-defense, including whether the accused should have retreated. Questions such as whether the defendant was the initial aggressor and whether they could have or should have fled are questions of fact for the jury not questions of law for the judge.  Once the judge determines that the defendant has presented sufficient evidence that they are entitled to a claim of self-defense, the rest is for the jury.

Applying all of this to the Kyle Rittenhouse case, it appears that Rittenhouse would have been able to raise a self-defense claim based on Michigan law. Consequently, like it or not, all other things exactly the same, yes Kyle Rittenhouse would likely have been acquitted here in Michigan.

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