How the self-defense argument played out in Rittenhouse, Arbery trials

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• Judy Woodruff:

  Even as many are still assessing the Kyle Rittenhouse trial verdict, another closely watched legal case is expected to go to the jury tomorrow. That's involving the three men charged with the murder of Ahmaud Arbery in Georgia.

  The two homicide trials are different in many ways, but, as William Brangham reports, both touch on fundamental issues for the country.

• William Brangham:

  Claims of self-defense are central to the defense in both of these high-profile cases.

  But what exactly constitutes a self-defense claim? When can you legally use lethal force against another person?

  Stephen Saltzburg is a law professor at George Washington University. In his career, he's served as both a prosecutor for the Department of Justice, as well as a defense attorney.

  Professor Saltzburg, very good to have you on the "NewsHour."

  Obviously, these cases are both very different. But, as I mentioned, they both have central to their defense a claim of self-defense. When someone makes that claim, what, in essence, are they arguing?

• Stephen Saltzburg, George Washington University Law School:

  They are arguing that they have a right under the law to protect themselves when they reasonably believe that their own life is in danger and that, if they don't act, they could, in fact, be killed.

• William Brangham:

  So, there's — as I mentioned, there is some similarities in these cases.

  Both of the shooters made that claim, that they felt that they were threatened and had to use deadly force. But there is also meaningful differences in these two cases. Could you explain those differences?

• Stephen Saltzburg:

  Sure.

  They're actually — the similarities in some ways outweigh the differences. But, in both instances, Kyle Rittenhouse injected himself into a demonstration knowing there could be violence. He brought a high-powered rifle with him. He said he did it for self-protection, even though he didn't expect to use it, he said. But he had it there because he knew he might have to.

  And then he got into a situation in which he thought that the first of his victims was trying to take away that gun and, if that happened, the victim would use it against him. And so he fired. And he continued to fire and kill one more person and wound another, all because he said he feared for his own life.

  In the Arbery case, the shooter, Mr. McMichael who testified in the case, basically said that they were — he was trying to make a citizen's arrest, which came out for the first time really at trial, and that, in the very end, when he struggled with Mr. Arbery, they were both struggling for a gun, and McMichael feared that, if Mr. Arbery got the weapon, McMichael would be the one who would be shot, and so he, too, feared for his own life.

• William Brangham:

  So, it sounds like in both of these cases, it is the person who uses the force, it is their testimony that says: I felt threatened, thus I acted.

• Stephen Saltzburg:

  They do not have to testify in their own defense.

  But when they raise self-defense as a defense, it is much harder to make out that kind of a defense if you don't get on the stand and explain how scared you really were.

  And that is why at least the shooters in both cases, Mr. Rittenhouse and Mr. McMichael, both chose to testify.

• William Brangham:

  Does the circumstances in which — that got you into those circumstances matter at all? Does it matter that you're a teenager and took a semiautomatic weapon and went to what was a violent protest? Does it matter if you were trying to execute a citizen's arrest against someone?

  Does anything about those circumstances that gets you to the point of a conflict matter in a self-defense case?

• Stephen Saltzburg:

  If you are the first aggressor, if you put yourself in a position where the person that you shoot is acting because that person really has no choice, you put that person in such danger, you basically can't make out a valid self-defense case.

  In the Rittenhouse case, he basically said he was there to do good. He was there to protect a car dealership. And so he wasn't trying to do anything wrong, he said. And, therefore, when he felt under attack, he could fire.

  In the Arbery case, the defendants' claim is that they thought that there might have been a burglary and that they were also responding, not intending to put anyone in danger, mortal danger.

• William Brangham:

  Some people have argued that the Rittenhouse decision, while it may fall under Wisconsin's self-defense claim, that it could create something of a slippery slope, where more people feel emboldened to go into tricky, potentially violent circumstances armed, knowing that the law has their back in some way.

  Do you agree that that is an issue, a concern?

• Stephen Saltzburg:

  I regret to say that I do.

  My belief is that the Rittenhouse verdict is going to have ramifications, regardless of what happens in the Arbery case. And that means that there are more people who are going to say, I'm going to be like Kyle Rittenhouse. I'm going to go protect the community. And if I have to shoot somebody to do it, I will.

  I don't think they will say that about Arbery, no matter what happens, because it is a very different case. It really looks like three white men going after a Black jogger. And, whatever happens, people will never accept that as being a reasonable thing to do.

• William Brangham:

  All right, Stephen Saltzburg at George Washington University, thank you so much for your time.

• Stephen Saltzburg:

  Thank you.