We will cover the trial live beginning on November 1.
Welcome to today’s Law of Self Defense content! I am, of course, Attorney Andrew Branca, for Law of Self Defense.
Today I’d like to share with you my perspective on the most recent pre-trial hearing for the Kyle Rittenhouse trial. That hearing took place on Monday, October 25, and lasted about two and half hours. As the headline to today’s contents suggests, the hearing was a very good day for the defense—with one glaring exception—and yet another poor day for the prosecution.
I’m sure you’ve all heard my “pound the table” legal adage—if the facts are on your side you pound the facts, if the law is on your side you pound the law, and if neither the facts nor law are on your side you pound the table—and we continue to see little but “pound the table” out of this prosecution so far.
To be more specific, this prosecution faces a considerable dilemma—any objective and emotion-free view of the facts and law, in this case, can only result in the conclusion, to a reasonable degree of legal certainty, that it will not be possible for the state to disprove Kyle Rittenhouse’s legal defense of self-defense beyond a reasonable doubt.
For similar reasons, there is little basis, at least on the legal merits, to believe that the state can prove any of the recklessness charges against Kyle beyond a reasonable doubt.
With respect to the gun charge, who knows what that statutory gun law stew actually means, apparently, so the charge should rightly be dismissed for vagueness—but at worst it’s a misdemeanor.
So if this case were being judged on the legal merits, as it ought to be, there’s little reason to believe that it could possibly result in anything but an acquittal on all charges—absent, of course, a runaway jury, which is always a risk. Indeed, I expect the prosecution believes a runaway jury is his only hope for a conviction on any charge.
If the prosecution has little foundation in legal merit, that’s consistent with the case being brought for political reasons and not reasons of justice, which in turn suggests the prosecutor leading this case—ADA Thomas Binger—is pursuing the case for political and not legal reasons.
And in pursuing his political prosecution of Kyle Rittenhouse, ADA Binger faces considerable challenges.
First, as noted, he has neither the facts nor the law on his side—as I detailed in my legal analysis soon after the event itself, here:
Kyle Rittenhouse: Attacked! In-Depth Legal Analysis (August 27, 2020)
(Incidentally, all our aggregated Rittenhouse content can be found at lawofselfdefense.com/Rittenhouse.)
Second, opposing counsel—Attorneys Mark Richards and Corey Chirafisi—come across as extremely capable and savvy, and unlikely to simply fumble the case for the state to run with.
Third, Judge Bruce Schroeder is a rigorously fair, old-school trial court judge (and himself a former prosecutor) who appears to lack any political interest in this case whatever—and, most important, has little if any tolerance for theatrics and game playing in his courtroom.
That last is probably a fatal dilemma for Prosecutor Binger, because having neither facts nor law to work with, theatrics and game playing is about all he has left—and that means he finds himself getting repeatedly smacked around and embarrassed in these pre-trial hearings.
If anybody is happy that this trial is scheduled to start on Monday, November 1, it has to be Prosecutor Binger—he surely can’t want to continue going through the painful and humiliating experiences these pre-trial hearings have so often been for him.
In particular, Binger is working desperately to try to have every fiber of context stripped away from Kyle Rittenhouse’s use of force that night of August 25, 2020, because the prosecution’s entire case hinges on the notion Kyle’s use of force having been unreasonable.
The difficulty is that a key defining measure of what reasonable of any conduct is always evaluated within the context of the surrounding circumstances—the totality of the circumstances—and the circumstances surrounding Kyle Rittenhouse the night of August 25, 2020, manifestly make his use of force in self-defense, and his allegedly reckless conduct otherwise, reasonable under the circumstances.
So Prosecutor Binger is between a rock and a hard place. If the jury is allowed to hear the totality of the circumstances surrounding Kyle’s use of force the night of August 25, 2020, there seems no real prospect that he can convince that jury that he has disproven self-defense beyond a reasonable doubt, nor that Kyle’s conduct was otherwise reckless beyond a reasonable doubt.
Binger attempts to address this challenge in two ways.
First, he tries to introduce irrelevant conduct—such as the video of Kyle’s spoken statements, but no actual use of force, outside the CVS—to degrade the clarity of the actual circumstances surrounding Kyle on that fateful night. The thinking seems to be along the lines of if you add one drop of poo to a barrel of otherwise pure water, now the whole barrel is poo water.
Unfortunately for Binger, Judge Schroeder correctly excluded the varied “other acts” evidence offered by Binger as either irrelevant or excessively prejudicial or both. So that didn’t work for Binger.
Second, if Binger is unable to taint the actual circumstances of the night in question, he’s going to try to have those actual circumstances stripped out as evidence so that the jury never sees them.
As one example from this past Monday’s hearing: The police that night told Kyle they appreciated what he was doing. That’s an undisputed fact, caught on video, but this week Binger fought to have that video excluded from evidence—because he knows the effect that evidence will have on the jury to reinforce the perceived reasonableness of Kyle’s conduct that night.
Unfortunately for Binger, Judge Schroeder recognizes that reasonableness is based upon the totality of the circumstances, and understands that the jury must be provided with evidence of those circumstances if they are to be able to evaluate reasonableness—the reasonableness that is a necessary core component of both Kyle’s use-of-force justification, as well as a key negative element of the three recklessness, charges Binger has brought against Kyle.
Indeed, at times Judge Schroeder’s demeanor towards Binger’s circus-like antics was a little short of contemptuous.
I share that top-level view with you to provide you with a kind of broad framework in which to understand the events of the rather lengthy, two-and-a-half-hour hearing this past Monday. With that framework in place, let’s step through some of the highlights of the hearing in more detail.
Binger Attempts to Have Officer Amanda Franco Excluded As Defense Witness
One of the witnesses the defense plans to call on behalf of Kyle Rittenhouse is Kenosha Police Officer Amanda Franco. I don’t know exactly what they plan to have her testify about, but we can be assured that if the defense is calling her as a witness their expectation is that her testimony will be favorable to Kyle.
Prosecutor Binger knows this, too, of course. So, what to do? It turns out his answer was to attempt to use an extremely convoluted and not entirely rational basis to try to get Officer Franco excluded as a witness.
And I mean extremely convoluted and not entirely rational.
As background, one of the “other acts” evidence that Prosecutor Binger had sought, unsuccessfully, to inject into this trial involved an incident in which Kyle had come to the defense of his sister, who he saw engaged in a physical confrontation with another young woman. Binger wanted to introduce this event as evidence that Kyle had a vigilante-like attitude and a practice of injecting himself unnecessarily into other people’s fights.
The defense, particular Attorney Chirafisi argued against the admission of this evidence as being irrelevant to the facts of the case and too remote from the nature and facts of the case, to be admissible
And Judge Schroeder agreed with Attorney Chirafisi. So, Chirafisi won that argument. The “sister fight” other acts evidence was ordered excluded.
Now, it turns out that Officer Franco had responded to the scene of the “sister-fight,” and had encountered Kyle there, where they had a cordial conversation. It was because of that encounter that she would recognize him again on the night of August 25, 2020, in arson-lit Kenosha—where she would, again, have a cordial conversation with him.
This past Monday Binger attempted to argue that she should be excluded as a witness about the night of August 25, 2020, because the defense had only called her as a witness in a backdoor attempt to introduce evidence about the “sister fight.”
That’s right, Binger is arguing that the same defense that successfully fought to exclude the evidence around the “sister fight” is now suddenly pulling a fast one to try to get evidence of the “sister fight” into the trial. Specifically, that the defense was trying to re-litigate (meaning to re-argue) the issue of the “sister fight” evidence, but this time to get it into court, rather than excluded from court.
Here’s that argument by Binger.
If that doesn’t make any sense to you, it didn’t make sense to anyone else either.
Indeed, when asked for a response Chirafisi drily noted, “Judge, I would never re-litigate a motion that I’ve won.” Hearing this, Judge Schroeder literally laughed out loud.
Here’s that LOL moment:
Here’s Chirafisi’s response in greater length, and Binger further arguing that Franco’s testimony should be excluded:
When Binger realized he wasn’t getting any traction with this argument in his effort to get Franco excluded, he decided to try a different argument—that her testimony could not be relevant to Kyle’s use-of-force decisions, because she was not present at the precise moment that Kyle made those decisions.
To this the defense counter-argued that she was present in the general area throughout the night, had personal experience with the chaotic circumstances of that night, the same circumstances that the defense will argue makes Kyle’s conduct that night reasonable and not reckless, and therefore her testimony is extremely relevant.
Judge Schroeder didn’t buy the prosecution argument as a good reason to simply exclude her testimony entirely. He conceded that if her testimony began to wander into inappropriate or irrelevant areas, he would sustain objections to those wanderings, but he wasn’t inclined to simply pre-emptively exclude her testimony entirely.
Then Binger tried yet another argument—now his position was that this offered testimony from Officer Franco was really just a backdoor attempt by the defense to put the Kenosha police department on trial, and divert the jury’s attention from the actual defendant, Kyle Rittenhouse.
Chirafisi responded by essentially noting that it was Prosecutor Binger who chose to charge Kyle with three counts of reckless conduct, and that the very jury instructions for recklessness tell the jury to consider the totality of the circumstances—and Officer Franco’s testimony is, again, highly relevant to the totality of the circumstances:
Prosecutor Binger then suggests the defense is making an argument they are not, in fact, making. He argues that allowing Officer Franco to testify how reasonable Kyle seemed when she encountered him earlier in the evening to then suggest that he must have been acting reasonably when he shot three men later in the evening, is akin to a police officer telling a driver in the afternoon that he’d stopped safely at an intersection to later suggest that the driver was acting reasonably when he ran over three people later that night.
Indeed, if the defense were actually to attempt to make that argument, it likely would be objectionable to have Officer Franco testify for such a purposes. But that’s not the purpose for which her testimony is apparently being offered. Rather, it’s being offered as evidence of the generalized chaos in the area that evening, the area in which all the relevant interactions and confrontations occurred.
Binger further argues that the location where Franco encountered Kyle that night was “behind police lines” and in a relatively safe area, and therefore did not reflect the circumstances as they existed in the more distant location where Kyle is accused of having acted recklessly and to have killed without justification:
Unfortunately, to Binger’s horror, Judge Schroeder took this line of argument as an invitation to talk about the general state of lawlessness in Kenosha that night, and indeed to compel Binger to talk about the general state of lawlessness in Kenosha that night.
In a desperate effort to head off this line of discussion Binger changes arguments again, now claiming that Officer Franco’s testimony offered by the defense is really just a tricky way to suggest to the jury that Kyle had the approval of the police for his conduct that night, including the shooting of the three men and his alleged recklessness:
Judge Schroeder recognizes that it would be impermissible for Officer Franco’s testimony to be offered for the purpose of suggesting generalized police approval of Kyle, but that for the purpose the testimony was being offered by the defense it certainly seemed relevant:
As has become a familiar pattern, Binger then shifted to yet another argument, raising the issue that perhaps it was appropriate for Kyle to be armed and defending property where he encountered Officer Franco, but then he engaged in reckless conduct when he left that location and wandered into the chaos, acting “outside his purview,” to protect a different location. But Judge Schroeder wasn’t having any of this.
Instead, Judge Schroeder referred to the specific language of the jury instructions on reckless, noted they told the jury to consider a wide variety of circumstances, and that Officer Franco’s testimony was likely admissible for that purpose. Of course, the Judge reserved the right to sustain an objection if the testimony went beyond appropriate bounds while she was on the witness stand, but he denied Prosecutor Binger’s motion to exclude Officer Franco’s testimony entirely.
So, count that as a win for the defense, and a loss for the prosecution.
State Use-of-Force Expert Witness Robert Willis: A Total Dud
Next, the hearing turned to the issue of the state’s use-of-force expert witness Robert Willis, who participated via Zoom. I will embed the video of the portion of the hearing on Mr. Willis in one large chunk at the end of this section, but I’ll just briefly summarize my observations of this part of the hearing.
Frankly, it was my sense that just about the last thing in the world Prosecutor Binger wanted to do was have Mr. Willis actually have to testify for the state on use-of-force issues. Unfortunately for Binger, he’d trapped himself into retaining Mr. Willis as an expert, believing it would be necessary to counter the defense use-of-force expert, Dr. Black.
The prospects that any genuine expert in use-of-force could look at the actual evidence in this case and conclude that Kyle’s conduct was unreasonable under the circumstances is vanishingly small—and if they dared to try, they would be crucified on cross-examination by a well-informed defense. There was nothing about Mr. Willis’ demeanor or testimony in this hearing that suggested to me the wiles to successfully push the prosecution narrative while subject to vigorous cross-examination—and I expect Prosecutor Binger was fully aware of this.
Indeed, with Mr. Willis on Zoom, Prosecutor Binger did far less advocating for Willis as a use-of-force expert than he did continue to argue that he actually simply didn’t believe that use-of-force experts were required at all.
Of course, Judge Schroeder had already said that he found value in the analysis of defense expert Dr. Black, so this line wasn’t going to sell in this courtroom.
Nevertheless, Binger tried to re-argue the “no experts needed” issue yet again, focusing on the claim that no expert looking at the same video that the jury would be shown would see anything that a normal juror couldn’t see, so why need them?
In response to this “no experts needed” issue, the defense pointed out a great many technical types of analysis done by Dr. Black that would not be obvious to a layperson.
Binger then seized the rhetorical life preserver that had been thrown to him. Hey, if Dr. Black was going to limit himself to technical analysis, that was fine with him—he just didn’t want Dr. Black making conclusory statements that Kyle’s use of force was lawful, as that was the ultimate question for the jury to decide.
Of course, Judge Schroeder had long ago, in prior hearings, made clear that he wasn’t going to allow any expert to make some pronouncement on a key issue in the case, like whether Kyle’s use of force was lawful self-defense, period. So that possibility wasn’t even on the table. Indeed, the defense announced that they’d never intended to use Dr. Black for such conclusory purposes, but merely for his technical expertise.
You could almost see and hear Prosecutor Binger sigh in relief at this path of escape from his own entrapment of having retained Robert Willis as a use-of-force expert. He informed the court that if the defense was only going to use their own expert, Dr. Black, as a technical expert, then he didn’t feel he needed his own expert at all, and would the court mind very much if they didn’t actually go through defense cross-examination of MDr. Willis at all?
And that’s how the prosecution avoided what I would have expected to be a huge embarrassment. Indeed, the defense was frantically chomping at the bit to get at Mr. Willis on cross-examination. When Prosecutor Binger started reading through Willis’ 60-some-page CV, defense Attorney Richards interrupted, said the defense was willing to stipulate to everything in the CV, accept it all as true without objection, but could we please just hurry up and move this along?
Yeah, I laughed out loud.
Even better, when the defense stepped through why Dr. Black’s testimony would be relevant, they also took the opportunity to run through once again their evidence-supported narrative of how Kyle was repeatedly attacked and repeatedly compelled to reasonably defend his life, so that’s worth hearing again all by itself.
I’ve embedded below the video of the entire “use-of-force expert witness” exchange at last Monday’s hearing. Amazingly, this line of conversation circled the bowl for nearly a full hour before finally being flushed, much to Prosecutor Binger’s apparent relief. Here’s that near-hour:
So, ultimately the state withdrew its use-of-force expert Willis—meaning that the only use-of-force expert the jury will now be hearing from is the defense use-of-force expert, Dr. Black.
I count that as another win for the defense, and another loss for the prosecution.
Use of “Looters,” “Rioters, “Arsonists” and “Victims” at Trial
The next issue covered by the hearing was a state in limine motion asking Judge Schroeder to prohibit the defense from referring to Rosenbaum, Huber, and Grosskruetz as “looters,” “rioters,” “arsonists,” or other pejorative terms.
One of the rationales presented by Prosecutor Binger for this request was that, after all, Judge Schroeder had prohibited the state from referring to these men as “victims,” and therefore it was only “fair” that the defense be prohibited from referring to them by pejorative terms.
These are not equivalencies at all, of course, but I’ll come back to that in a moment.
Ultimately Judge Schroeder denied the state motion to prohibit the defense from referring to the three men using these pejorative terms.
Unfortunately, this denial has been widely reported as Judge Schroeder ruling that the defense has a blanket license to refer to these men using those terms.
That is not the case.
In effect, Judge Schroeder simply said he’s going to allow both parties to use whatever terms can be supported by the evidence. If there’s evidence that any three of the men were engaged in looting, rioting, or arson, then Judge Schroeder will allow those terms to be used. But there must be such evidence in order to make the terms permissible. The defense does not have a blanket license to use such terms—first they have to show some evidentiary foundation.
Of course, the defense explicitly states that they have the evidence needed for such a foundation.
Incidentally, Judge Schroeder also said that if the prosecution can show evidence that clearly indicates Kyle committed the crime of murder in cold blood, he will allow the state to refer to Kyle as a “cold-blooded killer,” even over the objection of the defense. So, the same standard is being applied to both parties.
And what about the Judge’s prohibition on the state using the term “victim” for the three men, isn’t he being hypocritical?
No, because the situations are not equivalent. The jury isn’t being asked to decide beyond a reasonable doubt whether Rosenbaum, Huber, or Grosskreutz were looters, rioters, or arsonists. That’s not the question before them. And because the jury isn’t being asked to make those decisions, they are simply descriptors, and not terms of legal consequence.
The jury very much is, however, being asked to determine if Kyle’s use of force against those men was lawful. If it was lawful, that necessarily means that it was Kyle who was the “victim” of the three men’s unlawful force upon him, against which he lawfully defended himself. On the other hand, the state argues that Kyle’s use of force was unlawful, in which case it would be the three men who were the “victims” of Kyle’s use of force.
The term “victim” then ties directly to the fundamental legal question that the jury is being asked to decide, and allowing its use to describe the three men would clearly be unfairly prejudicial to the defendant—hence, the prohibition.
Here’s the exchange, largely between Prosecutor Binger and Judge Schroeder on this portion of this issue:
Having lost on this line of argument for prohibiting the use of the terms “looters,” “rioters,” and “arsonist,” Prosecutor Binger once again shifted to an independent rationale for the same requested prohibition.
He argued that the conduct of the three men being described by these pejorative terms could not be relevant to Kyle’s use of force unless he had personally witnessed that conduct—and given that there was no evidence yet that he had, and unless he testified at trial there wouldn’t be any such evidence, that there was insufficient evidentiary foundation to make the men’s rioting, looting, and arson conduct—even if demonstrably true—admissible as relevant evidence. Indeed, Binger argues, these characterizations of the three men are only intended to disparage them, as if that alone justified Kyle shooting them.
Here’s Binger’s argument on this point:
In response to this, the defense once again argues that the three men’s rioting, looting, and arson goes to the totality of the circumstances, and should be admissible for that purpose, on the same basis that Officer Franco’s testimony of her experiences at the scene that night is relevant.
Judge Schroeder then accurately notes, and cites Wisconsin Supreme Court case law, that allows for the admissibility of the character or reputation evidence of the victim of a use of force, usually prohibited, in the case of self-defense—even if that person’s character or reputation was not known to the defendant at the time he used force against that person.
In law, there are two grounds for offering such character or reputation evidence, generally of a violent character or reputation.
The first goes to the defendant’s state of mind, and therefore would require that the defendant possessed that knowledge at the time he used force.
But the second ground does not require that the defendant possessed that knowledge at the time of the use of force, because for this purpose it is focused not on the defendant’s state of mind, but on the state of mind of the person against whom the defendant used force.
This second reason exists if the question of who was the initial aggressor is in dispute. In that case, that the purported victim had a violent character would be relevant to determining which of the parties was more likely to have been the initial aggressor:
I did want to carve out a particular portion of this part of the hearing, because it’s so fascinating.
Prosecutor: Armed Man Cannot Shoot Unarmed Man, Ever
Prosecutor Binger actually argues to Judge Schroeder that there are no circumstances under which an armed man can lawfully shoot an unarmed man, period.
I’ll count that as another win for the defense, and another loss for the state.
State Argues Aggressor Not An Issue in Self-Defense Cases
At this point, Prosecutor Binger rather goes off the rails, by actually arguing that the question of who was the initial aggressor is not an element of the legal defense of self-defense. I know you don’t believe me, so of course I’ll include the relevant video here. Yes, everyone in the courtroom was incredulous, and arguably even Judge Schroeder was outraged:
A Huge Missed Opportunity by the Defense
Unfortunately, this leads us to the one spot of poor performance by the defense at this hearing.
Attorney Chirafisi responds to Prosecutor Binger’s argument by circling back to reasonableness, and saying it is up to the jury to decide whether Kyle’s use of deadly force was reasonable, and so who was the aggressor is relevant to that issue of reasonableness.
In fact, who was the initial aggressor goes directly to the core element of Innocence, it is a required element of self-defense always.
Binger claims that the issue of the aggressor is merely a way to lose self-defense, not to prove self-defense. In fact it’s just two sides of the same coin. A person who is the initial aggressor cannot claim self-defense, so the issue of the aggressor is always relevant—well, almost always.
And here was a real missed opportunity by the defense
The issue of who was the initial aggressor is always relevant—UNLESS the state is willing to concede the element of Innocence to the defense, and stipulate that it was the other party, and not the defendant, who was the initial aggressor.
In this context, this would require Binger to concede that it was Rosenbaum, Huber, and Grosskreutz who were the initial unlawful aggressors in each instance. If he does that, he takes Innocence off the table, and who was the aggressor is no longer an issue in dispute.
And the defense should have offered Prosecutor Binger the opportunity to do precisely that. You want to take the aggressor issue off the table? Fine. Concede the element of Innocence.
Either the state agrees to concede the element of Innocence, and take aggression of the table as an issue in dispute, or refuses to concede the element of Innocence, and leaves aggression on the table as an issue of dispute and the door open for the defense to admit evidence on the issue of aggressor.
A win-win for the defense—but they apparently failed to spot the opportunity.
After the defense counter-argument, Prosecutor Binger goes back and forth with the judge for some time, so this video clip is longer than most others embedded here (other than the use-of-force expert clip):
In any case, Judge Schroeder clearly finds that the question of initial aggressor is an issue in self-defense, and will allow relevant evidence on that issue.
So, although the defense missed an opportunity here, they did win on the ultimate issue, so I’ll count that as another win for the defense, another loss for the state.
Prosecutor Binger Says Arson No Big Deal
I did want to highlight the last couple of moments of that last clip, because it is so laughable.
Here we actually see Prosecutor Binger attempt to argue to Judge Schroeder that arson is no big deal, it’s just a bunch of kids being loud and disorderly. Judge Schroeder actually responds to Binger, “I can’t believe some of the things you’re saying.” After going back and forth on this for a couple of minutes, Judge Schroeder simply dismisses Binger as one might dismiss an ex-spouse—it’s pretty funny.
I’m going to go ahead and count this as another win for the defense, and another loss for the state.
State Asks to Prohibit Mention of Lawsuits by the Three Men
Next, the state asked Judge Schroeder to prohibit the defense from mentioning to the jury that the families of Rosenbaum and Huber, and that Grosskreutz himself, all had active civil lawsuits seeking damages from various parties over their losses the night of August 25, 2020.
The defense wants to reserve the right to mention these lawsuits if any of the family of the two dead men take the stand to testify, or if Grosskreutz himself takes the stand, because it goes to bias—if Rittenhouse is convicted, they essentially win their lawsuits automatically, so they have an incentive to lie.
Judge Schroeder ruled that the defense would be allowed to introduce evidence of the civil suits for that limited purpose under those specific circumstances.
That’s another win for the defense, another loss for the state.
Defense Permitted to Refer to “Kyle” In Front of Jury
Finally, the state asked Judge Schroeder to prohibit the defense from referring to their client as “Kyle”, and to require that everyone be referenced in a formal manner, such as “Mr. Rittenhouse,” “Mr. Grosskreutz,” and so forth.
The concern of the state, of course, is that referring to Kyle as “Kyle” may remind the jury of his youth—he was legally a child on the date in question—and garner him sympathy from the jury.
The response from Judge Schroeder was that he was, indeed, going to require that everyone be referenced in the formal manner—except for allowing the defense to refer to Kyle as “Kyle.”
The rationale for the exception is that he does not expect a lawyer, given the close relationship with the client, to only refer to the client in a formal manner.
Therefore the defense will be permitted to refer to Kyle as “Kyle” in front of the jury.
Another win for the defense, another loss for the state.
And on that point, this most recent pre-trial hearing, this past Monday October 25 was no different—a very good day for the defense, and a very bad day for the prosecution. The defense earned 100% wins, the prosecution 100% loses.
OK, folks, that’s all I have for you on this topic.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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