Comment by maxlybbert | Hacker News Reader

Comment by maxlybbert | Hacker News Reader

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Prosecutors are supposed to bring charges based on “the interests of justice.” I can’t say that they actually meet that standard. They famously bring harsh charges and try to negotiate plea deals. They also famously get creative with how to interpret different laws.

There is the concept of malicious prosecution ( https://en.wikipedia.org/wiki/Malicious_prosecution ), but that only applies when the prosecutor pursues a case without proof of even the basic elements of the crime. If they filed charges that they were incredibly unlikely to prove (which is what I heard from all the commenters on this case: “the prosecution has a hard case to make” or something similar), then they spent a lot of time and money, caused somebody to spend a lot of money for the defendant, etc., but they didn’t cross the line into malicious prosecution.

Rittenhouse was charged with violating a law that only applies if you're younger than 17 years old or have a rifle with a barrel less than 16 inches. Since both of those things are trivial to disprove (the prosecutor admitted that Rittenhouse was 17 at the time and the rifle was longer than 16"), would that be considered malicious prosecution?

I would love to learn the answer to this: if some charges are arguably justified, but others aren’t, can you claim malicious prosecution for the ones that aren’t? I would think so.

Unfortunately, for this specific case, I don’t think it qualifies. The judge only dismissed the charge because he couldn’t write clear jury instructions for it ( https://apnews.com/article/why-did-judge-drop-kyle-rittenhou... ). I think that could be enough to say “we brought the charge because we honestly thought it applied; the confusion wasn’t malice, it was just difficulty understanding a convoluted law.”

I don’t know about Wisconsin, and I don’t know if Rittenhouse has some way to afford bringing a malicious prosecution lawsuit or some other lawsuit against Kenosha. I get the feeling that kind of reaction (followed by a negotiated settlement) is more common in some parts of the country than others.

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