Hey folks,
Today I’d like to share with you my legal analysis/explanation of the Kyle Rittenhouse pre-trial evidentiary hearing that took place on September 17, 2021.
This case, of course, involves Kyle Rittenhouse’s use of force upon three individuals on August 25, 2020, during riots in Kenosha WI (as well as purportedly reckless conduct with respect to other bystanders that same night). Two of those individuals would die as a result (Joseph Rosenbaum and Anthony Huber), and the third would suffer serious bodily injury (Gabe Grosskruetz).
Rittenhouse, who was 17 years old at the time of these events, would eventually be charged with five felonies, including 1st degree intentional homicide (re: Joseph Rosenbaum), 1st degree reckless homicide. (re: Anthony Huber), attempted 1st degree intentional homicide (re: Gaige Grosskreutz), and two counts of recklessly endangering safety (re: other bystanders in the vicinity). Less importantly, Rittenhouse was also charged with unlawful possession of a weapon (a misdemeanor offense), and failure to comply with the curfew order in effect the night of these events (a fineable offense).
Rittenhouse’s criminal trial on these charges is scheduled to begin on Monday, November 1, 2021. And thanks to the kind sponsorship of Legal Insurrection, we’ll be here live.
This case, of course, involves Kyle Rittenhouse’s use of force upon three individuals on August 25, 2020, during riots in Kenosha WI (as well as purportedly reckless conduct with respect to other bystanders that same night). Two of those individuals would die as a result (Joseph Rosenbaum and Anthony Huber), and the third would suffer serious bodily injury (Gabe Grosskruetz).
Rittenhouse, who was 17 years old at the time of these events, would eventually be charged with five felonies, including 1st degree intentional homicide (re: Joseph Rosenbaum), 1st degree reckless homicide. (re: Anthony Huber), attempted 1st degree intentional homicide (re: Gaige Grosskreutz), and two counts of recklessly endangering safety (re: other bystanders in the vicinity). Less importantly, Rittenhouse was also charged with unlawful possession of a weapon (a misdemeanor offense), and failure to comply with the curfew order in effect the night of these events (a fineable offense).
Rittenhouse’s criminal trial on these charges is scheduled to begin on Monday, November 1, 2021.
This primary purpose of this pre-trial hearing was to address certain bits of evidence that the prosecution, on the one hand, and the defense, on the other, wanted ruled admissible for presentation before the jury at trial. A key role of a trial court is to act as a gate keeper on what evidence a jury will be (or will not be) permitted to see at trial. (The court also addressed a few ancillary, non-evidentiary matters in this hearing, usually without final decision, simply pushing the ball forward to a future date and decision.)
In our adversarial legal system it is common for one side to propose evidence to which the other side objects, and they are provided an opportunity to argue their respective sides in front of the hearing judge before that evidence is ever made available (or not) to a jury. That hearing judge then makes the decision on whether the proposed evidence will be admissible in its entirety, will be admissible in some limited context or form, or will be inadmissible.
While it is theoretically possible for the losing side to appeal that decision of the hearing judge to a higher level court, for practical purposes these decisions by the judge are final absent a clear abuse of discretion (a threshold almost never achieved). So, as a practical matter, the ruling of the judge in these evidentiary hearings is it—so you’d best make your best argument right then.
In order for any piece of evidence to be admissible it must be relevant, without also being excessively prejudicial—this can be thought of a balancing between these two factors.
For a piece of evidence to be relevant it must be both material and probative—material meaning it has application to an issue in dispute in the case, that sits between the facts and the law; and probative meaning that it has a tendency to prove or disprove that issue.
In this case an example of evidence that lacks relevance would be evidence of the purported bad character of the “Proud Boys” organization given the complete absence of any evidence linking Rittenhouse to that organization as of the August 25 shootings that underlie the charges against him. If Rittenhouse had a relationship with the “Proud Boys” that might be relevant to his state of mind, but such an inference would first require evidence of such a relationship.
Evidence is deemed prejudicial when it has a tendency to unduly influence the fact-finder to decide a matter on an improper basis. A common form of prohibited prejudicial evidence is propensity evidence—evidence claiming that a defendant committed purported act X because he’d previously committed unrelated act A, and that therefore the defendant has a propensity to commit bad acts. Propensity evidence is explicitly excluded by both Federal and state rules of evidence.
In this case, an example of prejudicial evidence certain to be excluded by the court are Joseph Rosenbaum’s prior multiple convictions for pedophilia—acts which while clearly reprehensible are not relevant to the self-defense issues in this case, unless (arguably) Rosenbaum’s pedophile status was known to Rittenhouse at the time, which it was not.
The participants in this hearing included the trial judge, Kenosha County Judge Bruce Schroeder, and various representatives for the State of Wisconsin and for the defense of Kyle Rittenhouse.
The State here was represented by Assistant District Attorney (ADA) Thomas Binger, who is the lead prosecutor on this case, accompanied by ADA Jim Kraus. (Prosecutions are normally led by ADA’s, rather than by the actual District Attorney.)
The defense here was represented by Attorney Mark Richards, Attorney Corey Chirafisi, and Attorney Natalie Wisco. It is my understanding that Richards was involved in the Rittenhouse defense quite early, and brought on Chirafisi later—but I expect both consider the other equal co-counsel on the case (much like the Mark O’Mara and Don West legal team that defended George Zimmerman).
Both the prosecution and the defense had proposed various evidence to which the other had objected, and the admissibility of which was argued before Judge Schroeder.
State: “This event goes to the defendant’s state of mind in this case, because it shows that his understanding of self-defense, his understanding of the need for self-defense is a certain way, and I think it’s an improper and unjustified use of it. I also think it goes to what I will posit will be a strong theory of state’s case here, which is that the defendant is essentially a teenage vigilante involving himself in things that don’t concern him. And we have a common theme here both with regard to this incident, and the August 10 incident [CVS recording] that’s the subject of our second other acts motion. The defendant throwing himself into situations that don’t concern him, that he has no complete knowledge of, that no one asked him to be involved in, and using force or threatening to use force in an unjustified, illegal, unwarranted manner.”
Defense: “[T]he state is asking you or inferring that they’re able to ascertain Mr. Rittenhouse’s state of mind two and a half months prior to the incident. So his state of mind on June 1. And his actions on June 1 somehow play a role in his state of mind on August 25. … As it relates to motive, if they are trying to establish that he had some motive, two and a half months before, teenagers, teenagers getting into a fistfight, does that make it more or less probable, is it a fact of consequence, that he was in a fight two and a half months earlier, that he did not act in self-defense in this case? Does that make that more or less probable[meaning, is the offered evidence probative]? The answer is it does not. It doesn’t have anything to do with whether or not it makes it more or less probable, that he acted in self-defense.”
Outcome: Deemed inadmissible. Judge noted if he admitted this evidence “I get reversed” on appeal. “This to me is clearly propensity evidence. It’s exactly the kind of evidence that the rule [of evidence] is designed to prohibit.”
State: “The defense motion has acknowledged that the defendant was there, that it’s his words, that he essentially made a statement that he wished he had the same rifle that was used in this incident to kill two people, So he could shoot individuals coming out of the CVS pharmacy. This is 15 days prior to the August 25th incident. So it’s very close in time. And it’s, again, goes to the issues we talked about earlier. This is a, this is a continuing motivation here. The defendant is irresponsibly using his firearm, or threatening to use it, I should say. Talking about using it to shoot individuals who he believes are ostensibly committing a shoplifting offense from CVS in Chicago, he has no ties to the business, he has no role to play there whatsoever. But yet he wants to launch himself into the middle of it with the same gun. And it’s similar to what we have on August 25, your Honor, where the defendant is in our community, with that same gun, and using it in a manner that I think is legally unjustified. So this goes exactly the state of mind, in terms of his understanding of use of force, his understanding of self-defense, self-defense of property, by the use of deadly force is not allowed.”
Defense: “[The State] describes it as an unjustified use of a weapon and a threat. I would submit to you neither one of those things are actually true. … That video doesn’t show any of that. He didn’t have a weapon. He was sitting in a vehicle, having a conversation with someone else. He never made contact with those people at CVS. If you watch the video, they don’t know, presumably, they don’t know he’s even there. He doesn’t even step from the vehicle to verbally confront them in any way. He doesn’t do anything, he doesn’t open his window, he doesn’t honk the horn. He does nothing, but passively sit and watch what’s happening. So to say this video demonstrates his willingness to insert himself into these situations, that’s untrue. He didn’t insert himself. He could. But he didn’t. … [W]ords don’t equal action and just to admit it to say, ‘Look, he’s a guy that would shoot at someone,’ that’s [prohibited] propensity evidence.”
Outcome: Judge declined to deem admissible, as with fist fight video finds this situation and the shootings on August 25 to be “too dissimilar. It becomes [prohibited] propensity evidence.” Judge will “withhold a final decision with a bias towards refusing the receipt of the evidence,” and noted “If I had to make a decision [now] I would deny this admission of this evidence.”
State: “The second part of it that other acts motion is with regard to the incident after a court appearance in January where the defendant goes to a bar in the scene and is serenaded by members of Proud Boys. Now we have since learned that those individuals that were serenading the defendant consists of the higher, highest echelon of the Wisconsin Proud Boys chapter including their leader, their current Sergeant at Arms, their former Sergeant of Arms and other high-ranking members of that organization. This was not a random crossing of paths here in a random bar or a random time where they just happen upon one another. This was something that was coordinated. This is something where Mr. Rittenhouse intended to be there, these other individuals intended to be there.”
Defense: “For this to be considered by you there must be evidence by a preponderance that on August 25, 2020, Kyle Rittenhouse was either a member of the Proud Boys or had loyalties to that to that group. It is no different than you would make a determination if there was, for example, somebody wanted to introduce evidence of a gang membership. … Mr. Binger has provided you no information whatsoever that on the day in question, August 25, that Kyle Rittenhouse had any affiliation with that group at all. He’s asking that you take and allow evidence to be admitted over four months later about a photograph, without any information, that anything related to this case, involved the Proud Boys. There has been nothing.”
Outcome: Deemed inadmissible, absent evidence of any connection between Rittenhouse and “Proud Boys” to indicate co-location was anything but coincidence on the part of Rittenhouse. Judge notes that “there’s still no suggestion in the evidence that’s been offered to me that this was anything other than a happenstance occurrence. And even if that isn’t true, whether what the scope of the defendant’s understanding was [of the “Proud Boys” political policies and conduct]”. No such evidence has ever been produced that Rittenhouse was at the time aware others in bar were “Proud Boys” or even that he was aware of “Proud Boys” as a political entity, and it seems unlikely to be produced at this late date.
Notes: It should be noted that using stimulus funds to purchase a firearm is perfectly lawful, and if the firearm was purchased unlawfully it doesn’t matter where the funds came from. Thus, hard to see how use of stimulus funds, even if true, would be useful in determining any disputed issue of fact in the case (e.g., that the evidence is probative). Also, money is fungible—cash on hand from stimulus is no different than cash on hand from working as a life guard, it’s just cash on hand, each dollar exchangeable for the other.
It was very obvious that Judge Schroeder took an extremely skeptical view of the state’s attempt to introduce this “stimulus funds bought the AR rifle” evidence.
Judge Schroeder: “The money, the evidence that where the source of the funds, with which Mr. Rittenhouse purchased the firearm, is that he wants to prevent that from being offered. Is that any reason you want to offer that evidence?”
ADA Binger: “Absolutely, your Honor. The defendant is charged with illegally possessing a firearm. The circumstances under which he possessed that firearm are directly relevant to that charge. So how he obtained it, how we purchased it, the circumstances under which he purchased it, how we paid for it, etc. All of that is relevant. I believe that there’ll be testimony with regard to this. I don’t think there’s any dispute that the defendant turned around and used his stimulus check very shortly thereafter, to go up to Lady Smith, Wisconsin, with his good friend Dominic Black and used, essentially gave the money to Mr. Black, who then purchased it on behalf of the defendant, because the defendant was 17, he can’t legally purchase or own a firearm.”
Judge Schroeder: “What is the source of the funds? How is that relevant?”
ADA Binger: “It’s relevant, Your Honor, because Mr. Black was working essentially as a straw purchaser, your Honor.”
Judge Schroeder: “That’s a separate issue [Black is being prosecuted separately on that allegation], that what he’s asking, that not be allowed, is evidence about fact that he used the stimulus money to buy the gun. Where’s the probative value of that?”
ADA Binger: “Well, Your Honor, I think it paints the picture for the jury of how this transaction occurred. How does Mr. Rittenhouse come into this money? It’s a lot of money. We’re not talking about 50 bucks here, we’re talking about $800 or thereabouts. So it’s a large sum of money.”
Judge Schroeder: “Actually, you’re providing the explanation. I would think that you’d want to offer “where’s he get this money?” I don’t, I don’t understand–“
ADA Binger: “We can leave the question open for the jury, Your Honor. And we can let them try and speculate if they want to. But since we already know the answer, why not tell them the truth?”
Judge Schroeder: “Why tell them anything? I mean, he got, he had money, certainly had a job as a lifeguard or something, I read. … What is the relevance of the stimulus money being used for that as opposed to being used for drugs? Or for a musical instrument or a boombox? … I do think the defense is correct. That it doesn’t sound to have much relevance. I also don’t … you’re suggesting that the reason he’s trying to do it is to denigrate the defendant for not using the stimulus money for a more altruistic purpose. I would imagine that some percentage of the American people who got money, used it for altruistic purposes, but I would bet most didn’t, including some who probably spent it on illegal drugs.”
Defense Richards: “I just don’t see how it goes to any element that’s in dispute. I mean, it’s just, I think it is to denigrate him, to try and paint him bad.”
Judge Schroeder: “I think it’s gonna elongate the trial. So I mean, it’s, you know, I, I, I’m not gonna give you a definitive ruling now, because it’s not in my estimation, it’s not that objectionable. But it’s also not that probative. And I tell you, what, we’re not going to spend as much time at the trial as we are today talking about this, because we want to move this case along. So if he asks, and you object, you’re going to get a one word response as to whether I decided at that given moment in time, whether it’s, and that may have something to do with the pace at which we’re moving. So I just don’t want to get bogged down.”
Outcome: Judge declined to deem admissible; will make final decision in the moment during the trial if issue arises; describes evidence as “not that probative.” Judge Schroeder: “What is the source of the funds? How is that relevant? … [The] fact that he used the stimulus money to buy the gun. Where’s the probative value of that? What is the relevance of the stimulus money being used for that as opposed to being used for drugs? Or for a musical instrument or a boombox? … I do think the defense is correct. That it doesn’t sound to have much relevance. I also don’t … you’re suggesting that the reason he’s trying to do it is to denigrate the defendant for not using the stimulus money for a more altruistic purpose. I would imagine that some percentage of the American people who got money, used it for altruistic purposes, but I would bet most didn’t, including some who probably spent it on illegal drugs.”
The State here is arguing that the defense should be compelled to produce the names of everyone who contributed to any of the Rittenhouse legal defense funds, particularly Free Kyle (managed by Kyle’s mother) and the Fight Back Foundation (managed, in part, by Attorney Lin Wood). Their rationale for this disclosure is that they need to ensure that no contributor is seated on the jury.
The normal way to address such a concern, of course, is to simply ask prospective jurors under oath during voir dire if they made such a contribution—their response under oath is presumed to be truthful.
A natural concern about providing these names of donors, of course, is that the list of names would be leaked to the media and anti-Rittenhouse factions (but I repeat myself) and the information used to harass and attempt to damage those contributors (e.g., try to get the fired). We’ve already seen a Virginia police officer fired for having made a $25 contribution to a Rittenhouse defense fund. If that were the fate awaiting contributors generally, one would expect these legal defense funds to have great difficulties raising money, thus damaging Rittenhouse’s ability to mount a legal defense and making the prosecution’s job that much easier.
There wasn’t much back and forth between the State and the defense on this issue, because Judge Schroeder more or less took it by the neck and killed it.
Outcome: Judge Schroeder declined to compel either Free Kyle or Fight Back Foundation to provide donor names. Judge Schroeder: “By what authority can I order a citizen to provide you [the State] … to provide material to the defense attorney, or to the defendant, that is her proprietary information, and command them to cough it up? The law is they can have I can make them [the defense] produce what they have. I cannot compel them to produce something [they don’t have in their possession], nor do I know of any authority that I can make them make her [Kyle’s mother managing Free Kyle] give it to them. … I do not think I have the legal authority to compel the defendant to procure information from somebody else who owns it and provide it to you, or to the court even. I don’t think I have that authority.”
If Rosenbaum’s felony convictions had been known to Rittenhouse at the time, that knowledge might have informed Rittenhouse’s decisions in self-defense, and so be relevant to the reasonableness of Rittenhouse’s state of mind. That said, Rittenhouse was not aware of Rosenbaum’s convictions, so they cannot be relevant to Rittenhouse’s state of mind.
Rosenbaum’s status as a convicted felon, however, could theoretically be relevant to Rosenbaum’s state of mind, his intent—and that is essentially the defense argument for why those convictions should be admissible as evidence.
In brief, the defense is arguing that Rosenbaum attacked Rittenhouse in order to steal the AR rifle, because as a convicted felon Rosenbaum was prohibited from simply purchasing a firearm legally. This would provide a motive for Rosenbaum’s attack, and buttress the defense narrative that it was Rosenbaum who was the initial aggressor in this event.
Note that the specific detail that the convictions were for child rape would almost certainly not be admissible, because of its prejudicial nature, and the defense was not arguing for that level of specificity. They were merely arguing for admissibility of felony convictions, generally, without reference to the child rape aspect of the convictions.
The State not unreasonably counter-argues that admission of the convictions as circumstantial evidence of an intent by Rosenbaum to steal the rifle is pure speculation, and therefore not relevant, absent any direct evidence of any such intent on the part of Rosenbaum.
Defense: “Your Honor. [Rosenbaum’s] status as a felony offender is relevant in this case, because based upon the facts of that evening and his conduct. When Mr. Rosenbaum was on the scene on the 25th he made threats to numerous people, including my client … , where he specifically said, if I get you alone, I’m going to kill you. … I received that in discovery from the government. It was from an FBI agent who interviewed [witnesses]. Mr. Rosenbaum made other threats about not being afraid to go back to jail. He stated that I just got out that day, which was overheard by my client. … Mr. Rosenbaum, because of his status as a convicted felon is unable to lawfully possess a firearm, could not purchase a firearm. He saw this as the opportunity to possess a firearm.”
State: “Kyle Rittenhouse knew none of this, knew none of this, at the time of this incident, had no idea that Joseph Rosenbaum had been ever been convicted as a felon, had no idea he was a sex offender, or anything like that. So this doesn’t go to Kyle Rittenhouse’s state of mind and that’s important for self-defense. This is not subjective issue, this is not a reasonable issue. It does not go to self-defense at all because there’s no evidence Kyle Rittenhouse knew anything about Joseph Rosenbaum’s history that night. … [There are alternative explanations that] are far more relevant in time, plausible, and consistent with the evidence than this obscure notion, this implausible and irrational notion, this unreasonable notion that Mr. Rosenbaum decided this was the night that I need to go get myself a gun illegally on the street and that’s the person I’m going to take it from. I mean, Mr. Rosenbaum, to say that the best way for him to go get a gun that night is to approach an openly armed individual carrying an assault rifle slung around his shoulder and take it from him by force. It strains credibility, your Honor.”
Outcome: Deemed inadmissible. Judge finds defense rationale too speculative absent direct evidence consistent with that characterization of Rosenbaum’s intent. Would have been an easy denial, but was complicated by evidence of Rosenbaum’s statements about just getting out of jail made in presence of Rittenhouse. Judge Schroeder: “I started by saying that I had extreme bias against the defense position. But I’m struggling now a little bit because I’m hearing about this statement allegedly made by Mr. Rosenbaum about having just gotten out that day and not afraid to go back. If that is in fact, testimony that’s going to be offered at the trial, it does put a different light on it.” Nevertheless, as noted, Judge Schroeder ultimately deemed this evidence inadmissible.
Notes: It is notable that Judge Schroeder seems unimpressed with the very notion of the relevance or appropriateness of a use-of-force expert witness at all, from either party. Judge Schroeder: “I think we need to have a full-fledged Daubert hearing on this. And I need to see the report that would be on page one, is I have not seen the report. What is it 28 pages? I haven’t seen it. And I don’t know what it says. And I’ll have a better understanding of what you propose to prove. Certainly the law, is that when it comes to use of force? No. When it comes to use of force, I’m the expert. Not because I’m so bright, but because the Supreme Court says I’m the expert, and I’m the only one who’s going to be defining what is reasonable under the law, what constitutes self-defense. So I won’t, I’m not going to have competition in the courtroom. So we’re not going to have any evidence on that subject. On the other hand, just as in sexual assault cases, we get, state brings in witnesses to prove a variety of things from people who are experienced in the field. So this use-of-force may have kernels that would be admissible. And I won’t know that until I see the report and have the hearing.”
Outcome: Daubert hearing October 5, 2021, (also on state’s expert) A Daubert hearing is one in which the scientific credibility and relevance of a proposed expert is established (or not).
Notes: Each party is supposed to provide the other party with a list of their intended witnesses, so that the other side can prepare beforehand to cross-examine them. Prosecutors sometimes pull the ploy of padding their witness list to make it impossible for the defense to adequately prepare. Long standing case law is supposed to prohibit this practice, but it appears the prosecution was doing exactly this padding in this case. Also notable that the prosecution appears to be unnecessarily complicating the ability of the defense to locate the state’s witnesses. My sense on this issue was that the Judge was giving the state an opportunity to “make this right” (my words). I would not expect the Judge to be understanding if the prosecutors continue to obfuscate on this issue.
Outcome: Ambiguous outcome, informal (?) reduction to 27 “primary” state witnesses. I’m not sure what this means—are the other some 150 witnesses on the list still subject to being called and trial, such that the defense needs to prepare for them?—and I’m not sure anybody else at the hearing does either—so there was really nothing definitive done with this issue at the hearing. I expect we’ll hear more about this issue moving forward, in subsequent pre-trial hearings, if not also actually at trial if one of the “non-primary” witnesses is actually called.
Notes: This involves the class A misdemeanor weapons charge brought against Rittenhouse by the state, essentially arguing that his possession of the AR rifle that night was unlawful given his age of 17 years.
I’ve previously done an extensive legal analysis of this issue, and it’s my professional legal opinion that, under Wisconsin’s admittedly very complicated gun possession laws, Kyle’s possession of the rifle was entirely lawful. You can find that legal analysis here: Rittenhouse: Gun Possession, Even if Unlawful, Irrelevant to Self-Defense Claim.
It seems the defense agrees that Kyle’s possession of the rifle falls within Wisconsin law, and wants this charge dismissed for lack of probable cause to support the charge.
At the time of this September 17 evidentiary hearing the defense had filed its motion to dismiss the charge, but the state had not yet filed its response in support of the charge.
One might argue that the State’s failure to be prepared to defend that charge means it should have been dismissed outright for failure to show probable cause to support the charge—however, this particular hearing was an evidentiary hearing, not a probable cause hearing. The State has not yet formally submitted their response to the defense motion to dismiss this charge. As a practical matter it seems that Judge Schroeder prefers to make his decision on this issue only after being fully informed on both side’s positions. Until he has seen both sides of the argument, a decision on whether probable cause exists to support the gun charge is arguably premature.
Outcome: No decision until Judge Schroeder can review state’s motion supporting that charge (not yet submitted to the court).
Jury “selection” procedure, and jury questionnaire.
Notes: The Judge seemed unconvinced that a pre-voir dire questionnaire would be all that useful in this case. Both the state and defense, however, felt strongly that the questionnaire was important. Each side had submitted proposed questions to the judge, who will consolidate approved questions into a unified questionnaire sent to prospective jurors.
Outcome: 100-150 person jury pool; questionnaire likely to be used despite Judge Schroeder’s misgivings.
I found this exchange interesting for two reasons. First, because it illustrates the prosecution rather flagrantly mischaracterizing the evidence. Second, because Judge Schroeder’s response suggests he’s not likely to put up with such nonsense.
Specifically, ADA Binger argues that the bag thrown at Rittenhouse by Joseph Rosenbaum could not possibly have been reasonably perceived as a deadly force threat that would justify Kyle’s use of deadly defensive force because “obviously” a mere plastic bag thrown at someone cannot cause death or serious bodily injury.
Of course, it’s rather obvious from the available video showing the trajectory of the thrown bag that it did not fly through the air as would a merely empty plastic bag—it’s trajectory requires that there was some substantive item within the bag. ADA Binger pretends this not to be the case until challenged directly on this point by Judge Schroeder.
ADA Binger: “Mr. Rosenbaum is running through the 63rd street Car Source chasing after Mr. Rittenhouse, he throws a plastic bag, it’s not a metallic bag, it’s a plastic bag, towards Mr. Rittenhouse, which lands harmlessly 10 feet behind Mr. Rittenhouse. … It flies into the air it lands about 10 feet behind the defendant, the defendant is running away. I don’t think anyone can reasonably argue that it was a risk to cause bodily harm at any level to the defendant. I suspect Mr. Rosenbaum threw it out of frustration or anger. But it’s, but it’s not a reasonable threat to the defendant’s safety.”
Judge Schroeder: “I’ve read that have read that over and over again about the plastic bag being thrown somebody. Now I’m, when I if I throw a plastic bag at you it’s I guarantee it’s not going to hit you. And that would be true if you’re standing two feet ahead of me. So I guess I’m interested in what the motion, what the images show about the course of the plastic bag. I mean, did it just project a foot and then drop to the ground? Or did it act like a missile in the direction of the accused?”
ADA Binger: “There was something inside the plastic bag.”
Judge Schroeder: “There was something inside, okay.”
ADA Binger: “We have never been able to determine exactly what it was because it was not recovered in evidence.”
Defense Richard: “The bag incident [ADA Binger] can, the state can talk about it not being or meaning anything. It was a metallic bag you can clearly see it fly through the air, lit up from the lights that were in that area. And the client will testify that he had seen Mr. Rosenbaum, this is on video right in front of Car Source #2, walking down the road with a huge chain that had been taken off a trailer that Mr. Rosenbaum and other individuals have threatened. So he knows he has something metallic.”
I found this exchange interesting because it appears to involve video evidence of a purported interaction between Rosenbaum and Rittenhouse that was only recently made available to the defense (there was some dispute over the timing of this), and not yet substantively reviewed by the defense. In the absence of an informed review by the defense, the prosecution’s characterization may well prove to be a wild exaggeration in favor of the state that will prove illusory upon closer examination—such is common in cases where the prosecution lacks strong direct evidence and therefore seeks to make more out of ancillary evidence than is reasonable. Here’s that exchange
Defense Richards: “Your Honor, our client leaves from 60th and Sheridan with a fire extinguisher. He runs or trots down Sheridan Road, passing Mr. Rosenbaum, this is all on video. There is no interaction between my client and Mr. Rosenbaum. Then Mr. Rosenbaum gives chase and it’s in the video where Kyle drops the fire extinguisher right as he enters the lot of Car Source #3 with Mr. Rosenbaum in hot pursuit of my client. There’s nothing on the tape, any tape I’ve seen, if they have something I haven’t seen. I’d love to see it, where he has any interaction with Mr. Rosenberg. And the State says that he was down there earlier with Mr. Baulch. I don’t know when they’re talking about what when he left the 59th Street Car Source and went down. The whole thing is on video. He goes to that parking lot, which would be the south west corner of 60th and Sheridan. There’s somebody who confronts Kyle and he walks away from them goes over to the gas station. That’s where the call comes in. He’s never down to the 63rd Street Car Source. He never has any interaction with Mr. Rosenbaum until Mr. Rosenbaum gives chase to Kyle. That’s all on video.”
ADA Binger: I’ll submit that Mr. Richards is right, he hasn’t seen what I’m referring to, although he’s got access to it. But on this particular evening, the FBI had a fixed wing aircraft hovering above Kenosha. We have the footage from that. Counsel can obtain it from joint services, I emailed counsel a few weeks ago and let them know about it. “
Defense Richards: Yesterday. Yesterday.
ADA Binger: “It shows—no, I can pull up the email, Mark, I emailed you several weeks ago and let you know about it. The video is an infrared video. And what it shows –
Judge Schroeder: Well, let’s get settled when you, video, when you sent it to him.
Defense Richards: I haven’t received it yet. We’re picking it up after today’s hearing.
Judge Schroeder: But I mean, when was, when were you notified that it’s available?
ADA Binger: I emailed Mr. Richards on–
Defense Wisco: September 3, Your Honor. And this was also emailed to me directly. I was out of the office.
Judge Schroeder: OK. Go ahead.
ADA Binger: What that footage shows, and it’s an infrared video because this is nighttime, so infrared is the best way to capture what’s going on. What it shows is Mr. Rosenbaum running south towards the 63rd street Car Source location. Behind him probably 20 to 30 feet is the defendant. Mr. Rosenbaum, upon reaching that location immediately runs near a parked car. Mr. Rittenhouse follows him, runs to the other side of that parked car and appears to turn and confront Mr. Rosenbaum. I will note that where Mr. Rittenhouse stops near that parked car is exactly where that fire extinguisher is later found. Okay, so Mr. Rosenbaum hadn’t even gotten to that car source yet. Hadn’t had the opportunity to do anything, hadn’t done any fires got a property damage did nothing. Mr. Rittenhouse is following him with the fire extinguisher probably because he thinks Mr. Rosenbaum’s going to do something. But Mr. Rosenbaum never does. What happens is when they arrive at the Car Source location, Mr. Rittenhouse turns and confronts Mr. Rosenbaum from across this parked car, says something to him. Of course we can’t see, it’s a video from an airplane. So we don’t know what happened. But we know immediately upon that confrontation, Mr. Rosenbaum then runs around behind a parked car. And the chase starts at that point in the parking lot. But prior to that Mr. Rosenbaum was running, first, Mr. Rittenhouse was running after him. And I would note he’s running after him with an AR 15 rifle openly displayed and Mr. Rosenbaum, at no time has a weapon. In this entire incident. We know this because obviously the defense wanted to introduce he was trying to get a weapon, so he never had a weapon at any point. So Mr. Rosenbaum is being chased by an armed individual who is assuming Mr. Rosenbaum is going to do something wrong and wants to stop him and does in fact confront Mr. Rosenbaum at that parking lot. That is the context here. And the FBI video gives us the context here that we didn’t previously have.
Judge Schroeder: Okay. And you said that the Mr. Rosenbaum, then circled the car. And then the chase began and who’s chasing whom?
ADA Binger: At that point, then Mr. Rosenbaum goes around behind the car starts to chase Mr. Rittenhouse. They run into the street briefly then cut across the car source parking lot. It’s at that point that Mr. Rosenbaum throws that plastic bag towards Mr. Rittenhouse. They then run in between some parked cars and Mr. Rittenhouse shoots and kills Mr. Rosenbaum.
Caution!: Having not seen this video myself, and knowing that the defense also hadn’t yet seen it as of this hearing and so can’t make its own informed characterization of what this video shows, I would urge you to take the State’s characterization of this video with an enormous grain of salt.
OK, folks, that’s all I have for you on this topic.
Until next time:
Remember
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
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