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Getting Jurors To Imagine “Provocation” In Blurry Photo And Video – Rittenhouse Prosecution Endgame

Getting Jurors To Imagine “Provocation” In Blurry Photo And Video – Rittenhouse Prosecution Endgame

Even if all the prosecution gets is a hung jury, that’s a “win” for the prosecution; re-trial would be certain.

The Kyle Rittenhouse trial is rapidly entering the end-game, with the jury to receive its instructions on the charges on Monday morning, followed by the closing arguments of the prosecution and defense, and finally the beginning of jury deliberations sometime in the afternoon.

Given the strength of Kyle’s core claim of self-defense, and the weakness of the State’s attacks on that legal defense, it seems worth taking a look at the last desperate effort the prosecution is making to try to drag something resembling a win out of this smoking pile of a trial–and that’s to sell an incredibly weakly supported argument of provocation to at least a single juror interested in accepting such nonsense.

Kyle’s Core Claim of Self-Defense Is Extremely Robust

Kyle Rittenhouse’s legal defense to the use-of-force charges against him is, of course, centered on the privilege of self-defense under Wisconsin law. Having properly raised this legal defense at the start of these proceedings, the burden is now on the State to disprove self-defense beyond a reasonable doubt.  That doesn’t mean the State has to disprove self-defense in its entirety—it merely means the state has to disprove any one of the four required elements of self-defense.

There are four core elements of self-defense under Wisconsin law that are possible targets of attack by the prosecution:  Innocence, Imminence, Proportionality, and Reasonableness. I also mentioned that the fifth element of self-defense, Avoidance, does not generally apply in Wisconsin, in that there is no generalized legal duty to retreat before you can act in otherwise lawful self-defense.

As I’ve written extensively over the eight days of trial testimony the State has offered little or no evidence attacking any of the four core elements of Rittenhouse’s claim of self-defense, and certainly not evidence beyond a reasonable doubt. They did not do so for the perfectly good reason that they have no such evidence.

Provocation: Last, Desperate Gasp of a Flailing Prosecution

There is, however, what might be thought of as a “back door” avenue of attack on self-defense, and that target becomes available where the defendant can be said to have provoked the attack against which he then defended himself.  Generally, I treat provocation as a facet of the element of Innocence, but Wisconsin law breaks it out as if it were a separate element, so that’s how I’ll treat it here.

If we had any doubt what the form of attack the prosecution will bring to bear in their closing argument on Monday, that was resolved during yesterday’s conference hearing—the meeting in court, outside the presence of the jury, in which the parties argue over the precise instructions that will be given to the jury for use in their deliberations.

The prosecution’s attack will come in the form of the legal doctrine of provocation.

It’s worth noting that the jury can effectively only find the defendant guilty based upon a jury instruction that they have received from the judge.  An instruction withheld from the jury necessarily withholds a path to conviction. Conversely, an instruction provided to the jury necessarily provides an additional path to conviction. (Obviously, I’m talking about criminal charge instructions here, not defense instructions.)

Yesterday the State informed the court that they wanted the jury to receive the Wisconsin criminal jury instruction (WCJI) on provocation in the context of self-defense, which is known by its identifying number, WCJI 815. The defense, naturally, argued against this instruction, attempting to deny the State this path to a conviction.

The State, however, won that argument.  Accordingly, the jury will be instructed on the law of provocation—and therefore, the jury has been given a provocation-based path to conviction.

This was a critical win for the prosecution.  The self-defense-based defense narratives on each of the use-of-force charges against Kyle are all very robust, and not readily subject to disproof beyond a reasonable doubt.

Without provocation, the State would have found itself facing inevitable defeat attacking the core self-defense justification on any of those charges.

By winning the provocation instruction, however, the State has the potential to now simply upend the trial chessboard, and sweep away all those self-defense pieces so favorably positioned for the defense.

Provocation Upends the Trial Chessboard, Gives Prosecution Last Chance

Why? Because under the doctrine of provocation, the provocateur simply doesn’t qualify for the legal defense of self-defense at all.  And if they don’t qualify for self-defense in the first place, then the merits of those four elements of self-defense—Innocence, Imminence, Proportionality, and Reasonableness—simply become irrelevant.

If the prosecution can convince the jury beyond a reasonable doubt that Kyle was provoked the attacks upon him, then it simply doesn’t matter that those attacking him might have been the first to threaten or use force, that their attacks were actually in progress, that they were threatening him with deadly force, or that his perceptions of the nature of those attacks were subjectively and objectively reasonable.

More precisely, the provocateur can still physically defend himself against such attacks—one assumes one would—but he cannot later justify that defense as lawful and free of criminal liability.

Simple Provocation & Provocation with Intent

Importantly, there are two types of provocation under Wisconsin law, each with different conditions:  simple provocation, and provocation with intent.

Simple provocation is engaging in unlawful conduct that would be reasonably likely to provoke a violent response.  If that occurs, the person who provoked the violent response does not have a legal privilege of justifying their use of force against that response as self-defense, unless they meet additional conditions not usually required for self-defense.

Specifically, the person who engaged in simple provocation has effectively acquired a legal duty to retreat, that element of Avoidance, that would not normally be a legal duty under Wisconsin law in the case of an otherwise lawful act of self-defense.  Before the simple provoker can justify their defense against the provoked violence as legally justified, they must withdraw from the confrontation and effectively communicate their withdrawal to the other party.

The second form of provocation is provocation with intent. This occurs when the defendant not only provoked a violent response but did so with the deliberate intent of then having an excuse to use deadly force against the person provoked.  Importantly, the provoker with intent cannot regain self-defense by withdrawal and communication—on the other hand, the State does acquire the burden prove that malicious intent, to provoke in order to have an excuse to use deadly force, beyond a reasonable doubt.

The jury instruction that addresses both simple provocation and provocation with intent under Wisconsin law is WCJI 815 Privilege: Self-Defense: Not Available to One Who Provokes an Attack: Regaining the Privilege, and it will be read to the jury Monday morning.

State: Simple Provocation Excludes Self-Defense for Every Felony Charge 

The State has explicitly informed the court that it is the State’s intent to argue that every use-of-force for which Kyle has been charged was the downstream consequence of his initial purported provocation of Joseph Rosenbaum.  So, if the State can convict on the Rosenbaum charge on the basis of provocation, they believe all the rest of their charges will also result in convictions, like a series of fallen dominoes.

It’s also been mentioned that ADA Jim Kraus explicitly informed the court during the conference hearing on jury instructions that the prosecution intends to focus specifically on simple provocation in its closing argument, rather than provocation with intent.

This makes sense, if only because of the State’s choice of charges in this case.

The shooting of Rosenbaum was charged not as an intentional homicide (as the State would charge Kyle for his fatal shooting of Anthony Huber), but as a reckless homicide.

Remember, the whole point of the doctrine of provocation with intent is that the person provokes an attack by another with the intent to then use deadly force upon them.  It naturally follows that the subsequent use of force is intentional—and not merely reckless.

Arguing provocation with intent in a use-of-force event that even the state has not charged as intentional would seem logically incoherent—so I would not normally expect provocation with intent to play a role in the State’s closing here.

That said, this prosecution had not been marked by a great deal of logical coherence at any point, so anything is possible, I suppose.

In any case, my expectation is that the State will argue simple provocation—and that’s surely the narrative that ADA Jim Kraus set out to the court during the conference meeting yesterday, telling the court:

We are saying that in the incident Mr. Rosenbaum, [the defendant] provoked it by raising his rifle and pointing it at individuals [Joshua Ziminski]. So, that is why Mr. Rosenbaum then gave chase to him. The defendant then had a duty to retreat, he retreated. Instead of giving notice of his withdrawal from the fight, he turned and pointed his gun again, at Mr. Rosenbaum, an unarmed civilian, which he admitted he knew he was unarmed. And that continued. …  We will argue that the video evidence, contrary to the defendants testimony, shows that he raised his weapon at individuals, and that is what provoked the attack by Mr. Rosenbaum.

Pretend Kyle Actually Provoked Rosenbaum: Then What?

Now, if we assume for purposes of argument that what the State is saying is true (I know, I know!), and set aside for the moment any perfectly reasonable doubts about the evidence offered to support that claim, would Kyle purportedly pointing his rifle at Rosenbaum qualify as simple provocation?

WCJI 815 tells us that:

A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self‑defense against that attack.

The State’s argument is that Kyle’s purported pointing of his rifle at Ziminski was unjustified, therefore at least a misdemeanor offense, and therefore unlawful—so it would qualify as unlawful conduct for the purposes of simple provocation.

Further, the State argues that this unlawful conduct of pointing the rifle provoked a “defense of others” response from Rosenbaum—that all Rosenbaum wanted to do was neutralize Kyle’s purported threat to innocent people in the area.

If both of those claims are believed to be true, then the conditions for a simple provocation that loses Kyle the legal defense of self-defense have been met—and self-defense collapses.

Certainly, if one believes the State’s claim that Kyle pointed his rifle for no justifiable reason, that would be an unlawful act reasonably likely to provoke a response—though, believing that claim is a pretty big ask. Nevertheless, again, for our purposes here, we are analyzing the argument as if the claim was provable.

Provoker Regaining Innocence: Withdrawal & Communication

Even if Kyle was a simple provoker, it is possible for someone who has engaged in simple provocation to regain their privilege of self-defense.  How?

WCJI 815 tells us that:

A person who provokes an attack may regain the right to use or threaten force if the person in good faith withdraws from the fight and gives adequate notice of the withdrawal to his assailant.

(Emphasis added.)

So, even if Kyle was a simple provoker, he can regain his privilege of self-defense by withdrawal and communication.

The defense will naturally argue that Kyle’s flight across the Car Source parking lot with the murderous Rosenbaum in hot pursuit should qualify as withdrawal and communication.

Maybe—but maybe not.  The policy behind allowing the regaining of self-defense by withdrawal and communication is to reward the person who may have provoked a fight for their willingness to withdraw from that fight in good faith.  A bad faith withdrawal—a momentary withdrawal to reload one’s weapon with the intent of returning to the fight—would not qualify for purposes of regaining self-defense.

The State here plans to argue that Kyle’s flight across the Car Source parking lot was not, in fact, a good faith withdrawal from the confrontation he had purportedly provoked.  Their evidence for this is that when Kyle was roughly halfway across the lot he briefly turned and purportedly pointed his gun back at Rosenbaum (the defense would say “showed,” not “pointed,” but that’s a factual dispute for the jury).

That act of pointing the rifle back at Rosenbaum, the State will argue, was either a continuation of the initial provocation or a new provocation, but in any case it did mean that Kyle’s flight was not a good faith withdrawal from the fight.

But wait, there’s more!

In addition to the requirement of good faith withdrawal, this provision to regain the privilege of self-defense also requires that the provoker give “adequate notice” of that withdrawal.

In the real world, it is common to accept as “adequate notice” what the law would call “constructive notice.”  Notice is “constructive’ when it is not stated explicitly, but can be readily understood from the circumstances.  Here, a provoker who is in full flight from the conflict is usually deemed to have given constructive notice sufficient to qualify as “adequate” for these purposes—a notarized letter is not required.

This trial is not a normal proceeding, however, so expect that the State will claim that Kyle failed to give Rosenbaum “adequate notice” of his withdrawal.

Overall then, I expect the State to argue that purported simple provoker Kyle cannot regain his privilege of self-defense under the withdrawal and communication provision because his withdrawal was not in good faith and his communication “adequate notice” for that purpose.

Provoker Regaining Innocence: Exhausting Ever Other Means to Escape

There is a second way that a simple provoker can regain their privilege of self-defense, and that’s under circumstances where the provoked response comes in the form of a deadly force attack.  We know the State intends to argue that Rosenbaum’s fighting Kyle for his gun was purely defensive in nature, and not an attack at all—but the defense has argued that Rosenbaum’s attack was deadly in nature.

When the provoked attack is deadly in nature, WCJI 815 tells us that then the provoker:

“ …may lawfully act in self‑defense.  But the person may not use or threaten force intended or likely to cause death unless he … reasonably believes he … has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.

On this point, the State plans to argue that purported simple provoker Kyle cannot regain his privilege to self-defense under this provision, because although he fled a short distance to the spot where he ended up shooting the pursuing Rosenbaum, he had not actually “exhausted every other reasonable means to escape.”

Indeed, at the charging conference, the State claimed that when Kyle stopped and shot Rosenbaum he was among a group of loosely spaced cars with plenty of open space in front of him to continue his flight.  Naturally, the defense contests this characterization of the circumstances, noting the very large group of people on the edge of the lot in the process of violently smashing the vehicles there.  Again, however, that’s now an issue in dispute, and therefore a fact question for the jury.

Even Laughable Evidence Sends Issue to the Jury

Indeed, that’s the core problem for the defense on this provocation attack—the prosecution has been able to orchestrate—to the satisfaction of Judge Schroeder, in any case—a sufficient series of issues in dispute around the doctrine of simple provocation that the judge agreed to submit the provocation instruction to the jury.

It is notable that Judge Schroeder has a tremendous amount of respect of the province and prerogatives of the jury as the finder of fact.

Where there is no relevant fact in dispute, then is no fact-finding to be done, and the issue is simply a matter of law that should be decided by the judge alone, without the participation of the jury. That should have been the outcome on the gun possession charge, by the way—there is no issue in dispute, so there is no role for the jury, the charge is simply inapplicable to Kyle’s circumstances and should have been dismissed by the judge as a matter of law.

Once there is even a hair of evidence on an issue in dispute, however, the slightest baby breath of evidence, then the matter arguably falls to the jury to make the finding of fact on that issue.

So, many of us may find the evidence in support of the proposition that Kyle pointed his rifle at Ziminski, provoking Rosenbaum’s attack—the Rorschach photo of the purported—event to be laughable.  But it is evidence on an issue in dispute, however, laughable, and so the issue in dispute goes to the jury.

The same is true for the State’s other propositions here—that Kyle’s retreat was not in good faith, that his notice of withdrawal was inadequate, that he failed to exhaust every other possible means of escape—perhaps many of us find the evidence in support of those propositions to be similarly laughable.   But there exists evidence (mostly, I guess) to support these propositions, however laughable that evidence may be, and so they properly go to the jury.

The Danger of the “Interested Juror” Who Does Not Laugh

And there’s the great risk to the defense generally, and Kyle in particular: the jury may not laugh.

My sense is that even the prosecution doesn’t believe in the merits or truthfulness of the arguments they are putting forward here on provocation as a justified reason to deny Kyle the privilege of self-defense.

They are, however, determined to have him convicted, by any means necessary.  And these arguments on provocation appear to be the only means at hand—certainly an attack on the elements of Kyle’s claim of self-defense has no likelihood to any degree of reasonable certainty of being successful in meeting the State’s burden to disprove self-defense beyond a reasonable doubt. It’s not even close.

With provocation, however, the State is able to offer an interested juror the thinnest of threads by which they might pull themselves to a conviction.

By “interested juror” I mean a juror that may be unwilling to convict Kyle if there’s absolutely no rationale to justify a conviction—as is the case with the legal defense of self-defense itself—but who would be willing to convict if even the slightest rationale is offered.

It’s like a recently quit smoker who is trying to do the right thing and not pick up a cigarette in the absence of any reason at all—but who finds that even the slightest reason is sufficient for one quick smoke.

Given the nature of the broadcast of these proceedings, none of us not in the courtroom can see the faces of the jurors, can see how they react to testimony, to video evidence, to the questioning by the lawyers.

But the lawyers certainly can, and use their perceptions of the juror’s reactions to craft their own legal strategy.

Ideally, of course, ADA Binger would like to convince all 12 jurors to unanimously agree that Kyle’s guilt has been proven beyond a reasonable doubt, and obtain his desired convictions.

Perhaps that seems unlikely, given the paucity of evidence inconsistent with self-defense, and the flimsiness of the evidence in support of provocation. Maybe Binger sees an outright conviction by a unanimous jury as out of reach—at least, in this courtroom, with this judge, with this jury.

But perhaps ADA Binger has seen what he believes to be an “interested juror” sitting before him—and he just wants to offer that “interested juror” the slightest pretext by which to vote for guilt.

And, really, all Binger needs is one “interested juror” to take his offer—because if he gets one, he gets a hung jury and a mistrial.

Mistrial Normally a “Win” for the Defense, But Not This Time

Now, normally I would call a mistrial a win for the defense—but that’s normally because most defendants are guilty, so the mistrial is a gift that avoids an outright conviction.

In Kyle’s case, a mistrial is a win for the prosecution—because Kyle appears, by the overwhelming weight of the evidence, to be innocent, so the mistrial is a thief that takes from Kyle an outright acquittal.

Worse, it simply puts him right back in the tender hands of ADA Binger, who is entirely free to put Kyle through another full-blown trial again—perhaps with a different, more amenable judge, and certainly with a different, perhaps more amenable jury.

And every re-trial is a trial that ADA Binger is fighting with the same resources with which he’s always provided in his office as a prosecutor—but which Kyle fights with whatever resources might be left from the prior fight.  And those resources diminish with each battle, making him more vulnerable with each successive re-trial.

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.

Stay safe!


Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.


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29 min ago Judge said he is “getting all kinds of disturbing and threatening emails.”

getting ready to dismiss with prejudice was my first hit from the start.

You point a gun at Larry. (or in this case walk by Larry while you are carrying a gun)

By doing this, you have provoked Curly and Moe to chase you down and attack you.

The Red Queen prosecution rests.

Will the jury hear “Yanny” or “Laurel”?

    Ben Kent in reply to murkyv. | November 14, 2021 at 12:09 pm


    The prosecutors are figuratively throwing shit against the wall to see what sticks. Their hatred and animus against this defendant is clear. The are not seeking justice – they have personal animus and this is just a political show trial – a la USSR.

Great read.

There are, I believe, 19 jurors remaining. So when they draw lots to reach the final 12, there are odds that an interested jurors may not be selected for deliberations.

In each of the last two days, Kraus has been bringing texts to the judge that he has been receiving about jurors. One was something like someone that knows someone that knows a juror.

It seems they are working to remove as many jurors they don’t see as interested jurors to increase the odds that the ones they deem in their favor are selected.

    As far as I know, there are 18 left. 1 was dismissed for telling a Jacob Blake joke and the other was a pregnant girl due to being uncomfortable or something.

    luckystars33 in reply to pchase9401. | November 13, 2021 at 9:45 pm

    Barnes Law said ‘out of 18 jurors, 5 are wearing masks when it is not mandatory.’
    We know what that is saying.
    I have heard the filming of the jurors was to dig up dirt on them and they will be dismissed on Monday.

I think the defense’s best shot at killing the idea of provocation during closing is pounding the fact that there are numerous videos of that night, multiple witnesses, and the only “evidence” the state can produce to suggest that kyle was acting provocatively is an unidentified man in a video claiming that kyle pointed a gun at him, which they did not call to testify, and to which kyle responded to the accusation sarcastically and walked away. The only other piece of “evidence” is a blurry, image that the prosecution claims shows kyle pointing his rifle at someone they admit isn’t even in the picture. The person who produced this image can’t explain how it was produced or in what way it admittedly might have been altered from the original. Also, unlike the only other person claiming Kyle pointed his gun at them, they know exactly who the supposed victim of Kyle’s alleged intimidation was: Joshua Ziminksi. Why wasn’t he called to testify? Or his wife, who was standing right next to him? The prosecution at the beginning of the case said that Ziminski fired his gun into the air, so they know exactly who he is and yet did not call him. Out of all the videos, out of all the witness testimony, this is all the state could come up with to suggest that Kyle was the aggressor.

At least, That’s what I would suggest. I don’t know if Kyle’s defense will do anything like that, but who knows, maybe they won’t completely fuck up the closing.

    luckystars33 in reply to jmare. | November 13, 2021 at 9:48 pm

    The defense is doing nothing but mistake after mistake.

      Richards has not grasped that Binger is not even arguing that Kyle did not act in self defense. He is almost stipulating it. Binger is saying Kyle acted in self defense but was not entitled to do so. Richards has no clue.
      Richards is a natural born loser.

      TargaGTS in reply to luckystars33. | November 14, 2021 at 9:55 am

      Irrespective of the couple of ‘downvotes’ your comment has received, I think a fair evaluation of the performance of the defense isn’t materially different than your characterization. Put as charitably as I can, the defense has not been sharp throughout the trial beginning with voir dire.

      In fact, some of the moments when the most damage was done to the state’s case, was done while Binger was on DIRECT. They owned themselves, mostly…likely due in large part to the facts just not being there for them.

      The defense has missed MANY opportunities to object or to make compelling arguments during the objections they did make and during several key hearings before and during the trial. This is particularly damaging as there were compelling arguments for them to make. They just didn’t.

    buck61 in reply to jmare. | November 13, 2021 at 11:26 pm

    I’m no lawyer but if it was legally possible and I was representing Kyle, I would hammering home the fact that there was a group of people near Kyle when state claims that the gun was raised including Ziminski. There is no direct testimony by anyone in the area to confirm that the gun was raised and aimed at someone. The state had time to identify those in the footage but failed to have them testify. I would ask the jury the simple question multiple times, why didn’t Ziminski testify if the state is sure he raised his weapon at Ziminski.

      Wilmore in reply to buck61. | November 13, 2021 at 11:51 pm

      The trial testimony suggests that the FBI began investigating right away. They had surveillance video of the area. Do they have full cell phone location data? How could they not find at least a couple of the other bystanders unless they weren’t looking very hard?

    Elzorro in reply to jmare. | November 14, 2021 at 3:34 am

    I know exactly what this hoax image shows. The Provesiac video shows it clearly. The Zaminskis are behind and to the Kyles right standing by the SUV and Rosenbaum is behind Kyle hot on his heels. Kyle is running like a scared rabbit with his gun pointed down and to his left away from all of them. Case closed. Kaminski is 15 feet behind Kyle and so is Rosenbaum.

    ScottTheEngineer in reply to jmare. | November 14, 2021 at 2:54 pm

    Did I miss something? The blurry image showing him holding a dark line in what would be his left arm cannot possibly be a gun because he has it clearly attached to his right arm with a sling. The sling is not long enough to allow him to use his left arm to shoot. Why didn’t the defense bring that up? That crap should have been thrown out. Also, There is a large pink flying elephant in the left corner of the screen.

The provocation angle seems silly because the same card could be played against Gaige Grosskreutz, at least to some degree.

The Judge asked the prosecutor about Rosenbaum’s previous threats and whether “adequate notice” had been provided. If notice wasn’t provided, can such an individual come to the aid of a third-party against the threatened individual? The prosecutor claimed an hour was sufficient for threats to lapse.

Was this video entered as evidence or is it something different?

Also, did the persecution say ANYTHING about Kyle supposedly pointing his rifle at Ziminski before a couple of days ago?

    Elzorro in reply to darwin. | November 14, 2021 at 6:03 am

    A little then they ambushed Richards who walked/ran right in to the trap. I doubt he even realizes what is going on and his close will probably be all about self defense that is not even what Binger is going to base his close on. Hope someone on the jury can figure it out.

When Kyle was yelling, “friendly, friendly, friendly,” was that while running from Rosenbaum or during some other incident? Certainly sounds like constructive notice to me.

Further, the State argues that this unlawful conduct of pointing the rifle provoked a “defense of others” response from Rosenbaum—that all Rosenbaum wanted to do was neutralize Kyle’s purported threat to innocent people in the area.

You mean, the guy who started off by saying, “If I catch you alone, I’ll kill you,” then conspired with Ziminski to distract Kyle while he lay in ambush, then actually ambushed Kyle, then concluded his legacy by screaming “shoot me, nigger, shoot me!” was earning his Good Samaritan Merit Badge?


This is a find the face of Jesus in the tortilla move. Even those who only see a blurry outline will do what they must to avoid being labeled an apostate. The idea is not to prove the face is there but to prove you believe in the face.

The jurors must be aware of what is at stake. Kyle’s lack of guilt and justified self defense are likely not enough to tamp down their fears and risk the city burning.

    JMark in reply to JRaeL. | November 13, 2021 at 10:07 pm

    I keep thinking of Fr. Guido Sarducci’s Find the Popes in the Pizza contest, but all I really see in the “photo” is a tall, thin man leaning against a pole while being punched in the crotch by a white shirted Hervé Villechaize.

Is Al Charlatan trying to provoke a mistrial in the Ahmaud Arbery case?

theuncoveredlamp | November 13, 2021 at 10:04 pm

It’s probably a good thing I’m not a lawyer, but here’s my thought, what would happen if the Defense were to in not so many words call the prosecutor a liar in their closing? To make the argument against provocation by saying “can you even tell who is who in this video? in this blurry photo that the state’s own “expert witness” can’t say with certitude is an fair an accurate representation of what actually happens and didn’t even bother to compare with the original for accuracy? your eyes are telling you ‘this is a blurry mess and ‘I can’t see a thing” Don’t let the DA who tried to get one witness to change his testimony to succeed in getting you see what you don’t see on your own and that isn’t corroborated by any other video or witness testimony.”

    Add in a Johnny Cochran buzz phrase that will resonate, like “if the picture ain’t it, you must acquit”.

    Anyway, the non-lawyer agrees with you and hopes a real attorney will chime in with the likely effectiveness of this approach.

    Colonel Travis in reply to theuncoveredlamp. | November 13, 2021 at 11:25 pm

    On Friday, Chirafisi tried to do exactly what you said but wasn’t forceful enough and Richards didn’t do squat then except help the judge over the goal line in deciding whether to allow it.

    Looking back at the entire week, this defense team really screwed their client. It is incomprehensible. If Rittenhouse is acquitted it will be because they didn’t need the defense to see how idiotic the state’s case is. Good luck with that outcome.

    luckystars33 in reply to theuncoveredlamp. | November 13, 2021 at 11:31 pm

    The Judge himself said “I can’t see anything” after watching it 3 times.
    Yet he allowed it into evidence and the prosecution can’t even tell you where this video came from.

      luckystars33 in reply to luckystars33. | November 13, 2021 at 11:33 pm

      Clown trial, in a clown world.
      As you would expect, what else could you expect?

      Colonel Travis in reply to luckystars33. | November 13, 2021 at 11:54 pm

      He allowed it because the moron Richards said – even if everything in that video were true about pointing a gun, Rittenhouse didn’t even know Rosenbaum so how is that provoking?

      I mean….

      He told the judge, in essence, let the jury decide this, not you. I won’t stand in the way.

      So irresponsible.

        I need to note Richards is doing the prosecution job. Central to KR’s defense is the fact KR did know who Rosenbaum was. Rosenbaum was the maniac who previously had to be restrained, that Rosenbaum threatened to kill KR if he caught him alone, and threatened to cut KR’s heart out.

        It was the prosecution who argued that KR couldn’t have recognized Rosenbaum as the same guy who had previously threatened him since Rosenbaum had taken off his shirt and wrapped it around his head. KR, as I understand from Andrew Branca’s reporting, successfully testified that he could of course recognize Rosenbaum.

        And now you’re saying Richards just threw that away?

I’ve seen 8-bit video game characters with higher resolution than the about 32 pixels they start with on that video.

    murkyv in reply to Martin. | November 13, 2021 at 11:20 pm

    Granted, I’m legally blind, but a good portion of my peepers work well

    After 20 or so times watching up close, I damsure don’t see what the Persecution wants us to see

      UserP in reply to murkyv. | November 13, 2021 at 11:40 pm

      Well jeepers creepers nobody’s peepers are clear enough to see that.

      George_Kaplan in reply to murkyv. | November 14, 2021 at 2:37 am

      One guy appears to be holding a surfboard or a goose or something, but I can’t see any guns. Regardless it was Ziminski that fired the only shot before Rosenbaum attacked Rittenhouse.

      Elzorro in reply to murkyv. | November 14, 2021 at 4:58 am

      I looked at it 20 times too and focused on what I know is the guy in the wheelchair to Kyles front and left. I ether see a ballerina with a white tu tu on or a midget in a space suit but I can not reimagine a guy in a wheelchair no matter how hard I try.

        Char Char Binks in reply to Elzorro. | November 14, 2021 at 8:23 am

        Defense needs to do this reductio ad absurdum at close, with the skill of a professional comedian, or the case is lost.

Rittenhouse should fire his counsel tomorrow.
They are guilty of malpractice and get a new team who aren’t bought and paid for.

    If convicted he will get a new lawyer to appeal. Easy win on incompetent counsel.

    henrybowman in reply to luckystars33. | November 14, 2021 at 9:24 pm

    He already fired Lin Wood (the guy who made Nick Sandmann rich), and I believe one other team since then. Apparently, good lawyers who belong to the Wisconsin Bar are not a target-rich environment.

I was concerned that some member of Antifa/#BLM would try to get on the Rittenhouse jury. What about ADA Krause? Where do his sympathies lie? We’ve seen a lot of prosecutors across the country refuse to prosecute members of these violent leftist mobs across the country. Is Krause one of them?

Rittenhouse isn’t the only person across the country who is being prosecuted for murder when they clearly engaged in self-defense. I found Krause’s statements that you can’t kill anyone to merely defend your property very telling. Or someone else’s property; recall the retired St. Louis police captain, David Dorn, killed early on in these Antifa/#BLM riots.

It seems to me that if anyone would have known he was acting illegally by defending his friend’s business, it would have been Dorn given he had 38 years of experience in law enforcement.

Basically I’m sure, based on their pretrial answers during voir dire (such as one juror saying he can’t be impartial because his family isn’t impartial, but others gave similar answers indicating they had already prejudged Rittenhouse) that those are exactly the “interested jurors” Krause is attempting to appeal to.

Can this judge still issue a directed verdict if this jury makes any decision to return any verdict except acquittal? Or is Schroeder simply held hostage to this malicious prosecution if Krause can get one of the people who said they can’t be impartial results in a hung jury? After all, the judge did tell Krause that the trial had gone too far; that there wouldn’t be a second trial and that this would be the only trial.

All the defense has to do is show the video that Jack Probesiac posted that includes the same instant depicted in Bingers Hoax. It disproves every clam he is making and is clear to see.

    Arminius in reply to Elzorro. | November 14, 2021 at 3:26 am

    I believe the defense would have to get Judge Schroeder to permit the evidence. I’m not confident this judge would do that.

    But shouldn’t the defense already have gathered all the video evidence?

      Elzorro in reply to Arminius. | November 14, 2021 at 3:42 am

      They can show it to him and he can reopen the case for additional and better evidence if is not already in evidence, Failure to do so is reversable and ez grounds for a new trial. It is clear and convincing proof that the Binger scheme is a hoax. Kyle is 100 percent innocent and this trial is a political scheme to frame him.

I may have answered my own question. Apparently directed verdicts have largely been replaced by the legal concept of “judgement as a matter of law.”

“A judgment entered during a jury trial, either before or after verdict. The court may enter this judgment after finding that no reasonable jury could reach a different conclusion (i.e., whatever evidence exists for the opposite conclusion is legally insufficient).”

If the jury is hung, then it hasn’t arrived at a verdict. Therefore, since a judge can enter a JMOL before a jury reaches a verdict (and if it’s hung it hasn’t yet reached a verdict), shouldn’t a judge be able to simply enter a verdict of acquittal?

Basically, Krause’s argument for “provocation’ is that if Antifa/#BLM order an individual not to be on the street, then not obeying their orders and sticking around to put out the fires Antifa/#BLM start amounts to provocation.

This image should be named, ‘The Moaning Binger’. It tops The Mona Lisa by a mile.

“…with the jury to receive its instructions on the charges on Monday morning, followed by the closing arguments.”

Correct me if I’m wrong, but don’t the closing arguments normally come *before* jury instructions?

    Elzorro in reply to OnePingOnly. | November 14, 2021 at 8:03 am

    I think so. Also in his testimony re Rosenbaum Kyle said he was afraid he would grab his gun and kill him ‘and other people’ does that extend/renew his right to self defense to himself and ‘others’ and defeat Bingers provocation theory? Kyle was in fear not only of his own life but others lives. Kyle was running away from crazy man. Crazy man was gaining. Mid chase Kyle turned gun at ready to shoot and determined he was not close enough and ran some more until boxed in by hostiles and cars. He turned to check how close crazy man was and there he was lunging and gabbed his gun. Only then did Kyle fire as a last resort.

Jack Posobeic video proves the prosecution doctored video.
Stop this witch hunt

As Elzorro explained, apparently this “evidence” somehow squeaked through as “additional and better”. His comment at least explained how something can be admitted after the prosecution rested.

What I still do not understand is how any evidence can be admitted after both sides have rested while avoiding the presentation and subsequent rebuttals of said evidence to the jury as done during the trial. Instead, I assume this will be introduced during closing arguments without direct or indirect examination. This seems like a corruption of the trial process to me.

That said, I”ll turn to the “evidence” again. This time I’ll ignore the issues with the evidence itself and address it as though it presented some value to the case.

So we have this video along with a screenshot allegedly showing Kyle pointing his rifle at Ziminski. The premise for the prosecutions argument that this alleged action provoked Rosenbaum to attack Kyle, thus stripping the defendant of this right to self defense.

Point one: If the screenshot does indeed show someone pointing a rifle, said person is doing so left handed. This would be very difficult, at best for the defendant to accomplish see as Kyle was carrying his rifle with a sling configured to a right-handed orientation. It may not be possible to point the rifle in the manner shown without first reorienting the weapon.

Point two: Can it be determined that, if this does indeed depicted a rifle being pointed at someone or something, Where does it point?

Point 3: Where is Ziminski in relation to Kyle in this video? If he can be positively identified in this video, and if this depicted a rifle being pointed at someone or something, can it be determined to be pointed at Ziminski?

Point 4: Where is Rosenbaum in this video? Was he in a position to see if someone was pointing this rifle at someone?

As far as I can tell, most of the attention thus far focuses on the “evidence” itself. The defense, rightfully pointed out that if this was a rifle, it was being held left-handed. I have yet to see these other issues addressed, but it seems to be somewhat critical to know how or if these questions can be answered.

    Elzorro in reply to Andy_TLC. | November 14, 2021 at 9:44 am

    Whups sorry about that long mess.

    Elzorro in reply to Andy_TLC. | November 14, 2021 at 9:54 am

    Sorry about the long mess but I am not too good with a computer and put in the whole dang list of posts.

    TargaGTS in reply to Andy_TLC. | November 14, 2021 at 11:15 am

    A couple questions: First, can the defense raise some of the very questions about the video that you’re raising here? And, more importantly, in his rebuttal, can Binger answer any of these questions considering there’s ABSOLUTELY ZERO evidence in the trial record of witnesses answering any of these questions?

    Not one eye-witness testified where Rosenbaum, Zaminski or even Kyle is standing in the video. So, how can Binger argue who any of those people are? I honestly do not understand how that screencapture of a video was entered into evidence when there’s no eyewitness testimony laying the foundation for it. Do rules of evidence work that differently in Wisconsin than they do anywhere else?

The judge granted both parties 2.5 hours each to finish their cases. It seems like the Binger plans on using the entire allotment with lots of pictures and video, if I was in the jury box that would be a tough task.

With respect to the possibility of a hung jury, if that does happen (very likely at least on some charges, IMHO), they’re going to keep trying this kid until he either accepts a plea or is found guilty. They’re not going to voluntarily lose face. Political stakes are too high for them.

    Elzorro in reply to TargaGTS. | November 14, 2021 at 10:25 am

    If the return a NG they won’t be hung but might be dragged through the streets of Kenosha in flames behind and electric car. Hope the release of these emails is a prelude for the judge doing the right thing and ending this miscarriage of justice with a directed with prejudice NG verdict.

Pretty sad that we are defending this kid more than his own lawyers are.

    Disgusting people abound in the USA because they have never been taken to task by the ‘new moral standards’. Think how scared the jury must be.

      murkyv in reply to Elzorro. | November 14, 2021 at 4:47 pm

      Since they arent sequestered, it would sure be a stretch to think they haven’t had some exposure to the threats being tossed around

      henrybowman in reply to Elzorro. | November 14, 2021 at 9:46 pm

      And here (despite its overall record of failure in the legal arena) you see the crowning achievement of the left’s insidious “gun control” movement.

      Because of half a century of continuous social demonization of gun owners by the press and the government as being somehow “bad people,” the average Rittenhouse juror is entirely at sea when faced with the daunting prospect of actually having to protect themselves from murderous criminals on their ride home… when it has been made abundantly clear to them through the trial itself that the government protection they have been counting on all their lives will not be forthcoming, whether mundanely or deliberately.

      Let’s not also forget the proliferation and public acceptance of “gun-free zones,” which ensure that even if a juror has access to a self-defense weapon, he has no way to prepare himself on the morning of the verdict for his drive home. (In Arizona, we fought hard for our law to force government “gun-free” buildings to maintain gun-check lockers — not so in Wisconsin.)

      These jurors are now completely at the mercy of the “protection” (or lack thereof) of the same government that is working hard to railroad Kyle… the same government that stood by and did nothing while their neighbors’ livelihoods and property were demolished, vandalized, and burned.

      I hope this irony is not lost on them. More to the point, I hope some of them are start enough to realize it before the awshit moment after they have delivered a verdict.

TaxPayingPatriot | November 14, 2021 at 11:02 am

I see Bigfoot holding a bag a Fruity Pebbles. Seriously, a blurry frame of a crummy quality video purporting to show Kyle pointing his weapon in a provocative way? No witnesses testifying to this during the trial. Don’t recall the alleged person provoked testifying … pathetic.

Soooo, if the State is arguing “provocation”, are they not conceding that, but for the “provocative act”, Rittenhouse otherwise acted in “self defense”?

How much leeway does the defense have to impeach the Rorschach photo during closing arguments?

    Elzorro in reply to JHogan. | November 14, 2021 at 12:47 pm

    Binger just needed the pic to open the door for his provocation case. He will not rely on it at all. This opens the door for all his woke, political emotional appeals to whomever may be on the terrified jury.

So if you appear to threaten to punch somebody and another person witnesses it, chases you down and threatens or attempts to punch you, you lose your right to defend yourself? Crazy if true.

I would agree in the right circumstances, but in this case, if Rossenbaum, sensing a threat like Rittenhouse raising the barrel of the gun (whether true or not), lunged at him and Rittenhouse turned and shot him, I would agree that Kyle was provoking the situation and would find it difficult to claim self defense.

But here, Rittenhouse attempted to separate himself from the situation and Rossembaum could have called off the chase at any time before grabbing at the gun barrel. Rittenhouse should have regained the right to self defense. Also, wasn’t there evidence that there was gunfire that Rittenhouse may have thought was directed at him furthering his right to turn and defend?

Andrew, thank you for the clear and succint overview of where we are now in the trial, and what the prosecution is going to argue. I fully agree that Binger will be playing to “interested jurors” and not arguing the actual facts, which are not on his side. Unfortunately, given the emotionally charged nature of this case, the facts probably won’t matter, and he may well get the hung jury that he wants.

Even though it is theortically possible, I do not see Judge Schroeder taking this decision away from the jury. He had to know what he was opening the door to when he admitted the last piece of so-called “evidence”. While I do not think the judge is improperly biased in this case, I do think there is such a thing as too much faith in a jury, and an obligation for a judge to “do justice”. It is my view that both the judge, and the prosecutor have failed in this last regard, one by an unreasonable faith in 12 people who were too stupid to get out of jury duty, and the other by an unreasonable desire to win, or at least not take a loss.

I despair for the fate of young Rittenhouse, and feel that at the very least, as you pointed out, he will be facing yet another trial with ever-diminishing resources. All Binger has to do is to talk one juror into seeing what he claims is shown in that blurry photo to avoid a loss.

I am also concerned that ego issues on the part of the defense team may not serve Kyle well. Attorney Richards may indeed be a great legal mind (although I have not seen any evidence of this) but he is certainly not a litigator. It is my understanding that he will offer the defense closing argument. Attorney Charifisi is clearly better positioned to hold the attention of and sway the jury, if indeed it can be swayed at this point, remembering that all that Binger must do is convince one of their number.

Unless it is specifically forbidden as a matter of Wisconsin law (and I don’t know if it is), if I were the defense, I believe that first thing Monday morning, I’d move to have the judge review for admission the Prosobiec -posted video from Twitter that in my view shows that Rittenhouse was not pointing his rifle at Zaminski, as rebuttal to the prosecution’s last moment so-called evidence. I think that the judge allowing evidence to be re-opened for this is a long-shot, but has better odds than hoping Schroeder will take the decision away from the jury, in whom he seems to have so much faith.

In the end though, it may not matter. Jurors will see in that blurry video and still shots from it what they wish to see. And, in similar fashion to the Chauvin trial, it doesn’t take much imagination to see at least one juror seeing it as their “duty” to prevent Kenosha from burning again by voting to convict an innocent young man.

I sincerely hope that I am wrong on how this turns out.

    Elzorro in reply to OldCop876. | November 14, 2021 at 12:48 pm

    If that happens Kenosha deserves its burning.

    Elzorro in reply to OldCop876. | November 14, 2021 at 12:54 pm

    I do not know how but I hope that the video will be seen by the judge. After further review I do not know if the defense can motion it. Seems the judge has the only authority to reopen. It is too legal for me to figger out. But by golly it is the right thing to do before risking life in prison for this good kid of which kind we need to rebuild this endangered USA. And prevent a wrongful conviction.

    pchase9401 in reply to OldCop876. | November 14, 2021 at 2:31 pm

    I’m going to play devils advicate on the Prosobiec video. Binger will just argue that the pointing of the gun happened just prior to the start of the video.

    When I look at the infrared drone video there is about 4-5 seconds where Kyle stops just prior to this video. Therefore, I find the analysis of the drone video with the color matching his arm, not a rifle, much more compelling.

    I tried to mash up the drone picture with the Prosobiec video and the only way I can get Kyle between the two Ziminskis is if the drone was much further toward car source than the street or if the drone is more straight on and it before the video in the 4-5 second span where Kyle is by the Duramax and setting down the fire extinguisher. And Mr. Ziminski isn’t off screen, but blended in with the dark pixels of the Duramax.

    What the Prosobiec video does show is the pronounced reflection from the duramax mirror. So showing how that would have to be Kyle’s hand to be what the prosecution claims and the left hand holding are also compelling. It also shows Ziminski with the gun and Kyle clearly fleeing with his gun in another position only moments after.

    Treating this video as a smoking gun would be a mistake as I am sure they are well aware if it and have a strategy to address it. There is too much other evidence to attack it with.

Even if Rittenhouse did point his gun at Ziminski, how is that provocation? Ziminski fired his gun. Sorry, but once you do that you should not be surprised if every armed person near you points their gun at you. I’m astonished the defense didn’t argue this.

    henrybowman in reply to randian. | November 14, 2021 at 11:01 pm

    These videos are so confusing. I thought Ziminsky fired his gun after the alleged rifle-pointing incident, as Kyle was running from Rosenbaum.

IIRC, a judge can overrule a guilty verdict under certain conditions.

But, what if the jury is hung. Does the judge at that point still have the option of declaring a mistrial with prejudice?

If Kyle is found guilty due to provocation with intent does that mean that if Rosenbaum had successfully taken Kyle’s gun from him and shot and killed him with it then Rosenbaum would have not been charged? Because he was provoked?

    felixrigidus in reply to JHogan. | November 14, 2021 at 3:32 pm

    Provocation is not justification for the attacker.
    He would not be charged all the same because his actions would please the likes of Binger.

It’s worth noting that this Ziminski character, the one who chased Rittenhouse and fired the “warning shot” at him immediately before Rittenhouse turned around and shot—Ziminksi is the only rioter who attacked Rittenhouse that the prosecution has charged.

And, go figure, charging Ziminski means he can’t be forced to testify about what happened. So we have to rely on the digitally manipulated blurry picture of unknown provenance.

I am still confused as to how that mystery footage even made it into evidence. How could it be authenticated?

    henrybowman in reply to tk. | November 14, 2021 at 11:03 pm

    I asked that previously and never got an answer.
    I assume the answer is that the defense wasn’t hard-assed about saying no.

This case clearly illustrates why the mistrial concept is inimical to justice if there is a politically motivated law-fare waging prossecution.

If the state fails to secure a conviction it should not get another bite at the apple, and another, and another, ad infinitum.

At the very least the state should have to pay all expenses the defendant actually incurred so it cannot wage a war of attrition by slowly grinding the defendant into poverty while depriving the defendant of his basic liberty.
Clearly, reform is urgently needed.

    fogflyer in reply to felixrigidus. | November 14, 2021 at 3:56 pm

    I just posted something similar before I noticed your post. I agree. My thought was to have a minimum amount of jurists that must vote guilty in a hung jury before the accused could be brought to trial again. Maybe 25% or 50%. That would end the worry of one or two activists getting seated on the jury who are planning on voting guilty no matter the evidence.

    A trial is already a pretty severe punishment by itself and I agree that it is unfair to subject someone to that repeatedly simply because one jurist disagrees with the others.

Due process hang ten’s on an empathetic wave and the diversity (i.e. color) class of a one-dimensional pixel inferred as an image.

goddessoftheclassroom | November 14, 2021 at 3:19 pm

I am praying for Kyle, of course, but also for his mother. I can imagine her anguish.

I’ve been thinking…
US law is always supposed to favor the accused.
That said, I don’t think it is appropriate to be able to retry an accused party if 11 people deem him innocent and one person disagrees. I think there should be a minimum amount of jury members voting guilty in a hung jury before the accused can be subjected to a new trial. Maybe a threshold of 50%. At least 25%. What do you guys think?

    As a three-fourths majority is required to ratify a Constitutional amendment, why require more to decide a man is innocent? That said, I do believe a guilty verdict should be unanimous.

there are numerous videos showing thugs burning, smashing, attacking people. the town is literally burning down while the authorities look on. the state decides to bring to bear all of its power to convict the one person actually doing some good. a sign of the times?

    henrybowman in reply to garybob. | November 14, 2021 at 11:05 pm

    Seriously, this is the crux of this entire message, right here.
    “We are the left.
    We won’t protect you against the left.
    We won’t let you protect yourself against the left.”

To stand up against BLM and Antifa is “provocation” to the Left. So?

If the residents of this city convict this kid change its name to Stockholm Wisconsin or Stockholm Syndrome to Kenosha Syndrome.

Jonathan Cohen | November 14, 2021 at 7:59 pm

The enlarged picture is considerably more blurred than the original. If the obvious distortions in the enlarged version are pointed out to the jury together with an explanation that if the size of the edge on the enlarged picture is k times the length of the original, that means there are k^2 (k squared) new pixels for everyone from the original.

If he had simply used an analog procedure for enlarging the picture, it would be impossible to pull his Rorschach test stunt because it would not have introduced an artifact that someone might think could be a gun. The tech guy is no tech guy. He hasn’t a clue what was in the algorithm and didn’t even check the two for reason of comparison. In the twenty hours he spent on the project he must have produced dozens if not hundreds and this was the best he could find to please the DA,

Hopefully the jury will realize what a dishonest stunt this enhancement was and will look at the overall evidence and realize that Kyle faced a violent mob that was a serious threat to his life.

    You reminded me of a cartoon we used to have in the Sunday Paper. Two identical pictures with little changes and you had to find them. That is what this is like. Once the jury gets it I can see that happening. Oh look this is different, look this is not there, etc. Whoever finds the most changes wins a cookie.