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LIVE: Kyle Rittenhouse Trial Day 2

LIVE: Kyle Rittenhouse Trial Day 2

Is the state’s late-revealed FBI aerial infrared video the decisive evidence the prosecution has claimed?

Welcome back to our ongoing live coverage of the trial of Kyle Rittenhouse. Kyle is charged with a variety of felonies, including first-degree murder, for shooting three men, two fatally, as well as for alleged reckless conduct on the night of August 25, 2020, in riot-torn Kenosha WI.

You can find our commentary and analysis of yesterday’s trial proceedings here:  Rittenhouse Trial Day 1: Defense Dominates Opening Statements and First Witness Testimony.

Today begins the second day of the substantive trial, which we expect to begin by continuing the interrupted direct examination of state’s witness Korrie Washington (aka Korrie Elijah).  He is self-described as a “social media influencer,” and is responsible for live streaming some of the more notable of the video footage taken around the events of August 25, 2020, at street level involving Kyle Rittenhouse and other major players in these proceedings.

That said, the most notable evidence presented in court yesterday, I suspect, was the FBI aerial infrared footage of the events at the Car Source lot in which Rittenhouse would ultimately shoot Joseph Rosenbaum. Unfortunately, this portion of yesterday’s testimony, by FBI Special Agent Brandon Cramin, was not broadcast by the court, so there’s not much I can say about Cramin’s testimony.   I do, however, have a copy of the FBI video footage itself, kindly provided by Jack Posobiec (a must-follow on Twitter at @JackPosobiec), so we can certainly discuss that video.

First, I’ll note that the version of the FBI video provided to me, and presumably the version played in court, is a composite of the FBI infrared video and video from several recordings made at ground level.  Frankly, I find the composite rather difficult to watch in a useful way.  I’ve included a copy of that version of the video as I’m presuming it was presented in court below, but I also prepared a modified version of that video that focuses entirely on the aerial infrared portion, and that’s what I’ll focus on here.

Second, this video clearly shows Rosenbaum emerging from a position of ambush, hidden in a group of four vehicles at the corner of the Car Source lot, waiting for Rittenhouse to run by (at about 0:47 in my version of the video), and then Rosenbaum aggressively pursuing Rittenhouse across the lot until the point of contact at which Rosenbaum lunges for Rittenhouse and is ultimately shot four times by Rittenhouse.  That relevant portion of the video starts at about 0:41, with Rosenbaum already among the four vehicles and Rittenhouse emerging into view on the right side of the screen, with both men identified on the video by name and white circles.

Third, the first six seconds of that portion, from 0:41 to 0:47, as Rosenbaum hides among the vehicles in ambush, and Rittenhouse runs up to and past the vehicles, after which Rosenbaum is clearly in pursuit of Rittenhouse, is presumably the evidence that ADA Binger is relying on to advance his narrative that it was Rittenhouse rather than Rosenbaum who was the initial aggressor in this confrontation.

I would note that this is hardly anything resembling proof beyond a reasonable doubt on this point, as there are obvious explanations for the movement of Rittenhouse that have nothing to do with any particular intent towards Rosenbaum. A great many people were moving along the sidewalk from right to left by that Car Source parking lot, in part attracted by the large group of people on the left edge of the lot engaged in the violent destruction of lot vehicles parked there.  Indeed, there’s no evidence whatever that Rittenhouse had any particular intent towards Rosenbaum at that point, or even knew that Rosenbaum, in particular, was ahead of him.

In any case, it hardly matters.  Even if Rittenhouse had been “chasing” Rosenbaum during that 6 second period, at 0:47 it is Rosenbaum who is now aggressively pursuing Rittenhouse–and we know this is not a coincidental pursuit, because of other evidence, the most obvious being that Rosenbaum does, in fact, close in and lunge at Rittenhouse.

Further, whatever Rittenhouse might be said to have been doing earlier, once Rittenhouse is in open flight he has certainly met the conditions for “regaining innocence” by withdrawing from the fight and effectively (if constructively) communicating his withdrawal from the fight.  Whatever might have happened earlier, in this ultimate confrontation between the two men, it is Rosenbaum and not Rittenhouse, who is the unlawful initial aggressor.

So, here’s my version of the FBI video, focused on the aerial IR portion, and with the other distracting composite video portions cut out–again, the interesting portion for purposes of this discussion starts at about 0:41:


And for purposes of completeness, here’s the entire version of the FBI video as provided to me, with the composite video portions completed:

As usual, throughout the day we’ll be live streaming the court proceedings, as well as providing real-time commenting and analysis from the moment the court comes into session until it recesses for the day, right here at Legal Insurrection, in this post.  You can find both the streaming video and the real-time commenting below.

After the court has recessed for the day, we’ll also be providing a detailed but plain English legal analysis of the day’s events, their likely impact, and legal consequences, and so forth, also right here at Legal Insurrection, in a separate “end-of-day” blog post.

With that said, make yourselves comfortable, and let’s get ready to rumble in State of Wisconsin v. Kyle Rittenhouse!

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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

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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Comments

Does it bother anybody else that the FBI had secret drones flying over the city?

Did they have drones over all the other BLM riots? Where is that footage?

    And further troubling is the claimed “loss” of the high definition video they admit they had. Makes me wonder what the reason for such sloppy evidence retention in what very obviously was a high profile (and virtually immediately highly political) case clearly headed for criminal prosecution, though likely not by the US Attorney’s office.

      Think38 in reply to Edward. | November 3, 2021 at 10:38 am

      That video of a controversial event was “lost” suggests malfeasance on the FBI’s part. Unbelievable that such could happen, unless the video was immediately lost (i.e., the chaos of that evening). If people looked at it later and then lost it, it appears deliberate.

        Russ from Winterset in reply to Think38. | November 3, 2021 at 11:01 am

        “Yes, we had to lose that footage because it only showed all the ‘wrong’ people committing crimes and threatening the safety of property and people in Kenosha. Since it showed no such behavior by Rittenhouse, we felt it was irrelevant to our purpose here, and we eightysixed it.”

        akolasinski in reply to Think38. | November 3, 2021 at 12:22 pm

        And of course, we know the FBI is going to get away with it. There is no accountability for the Feds. That’s been true going back to the days of J. Edgar Hoover. That the FBI named its headquarters building after someone who, in a just world, would be a convicted criminal is very telling.

    TheHumbleHotshot in reply to MattMusson. | November 3, 2021 at 2:13 pm

    It’s not illegal to film or record in public, even if the person objects.

    Airedale in reply to MattMusson. | November 3, 2021 at 4:54 pm

    That bothers me less than the high res video being “lost” it doesn’t mater if the source was a drone, plane or helicopter the feed would have been streamed digitally to the ground in real time. There also might have been a DVD or flash drive recording on board the air unit. The downloaded material is evidence and needs to be reviewed later to analyze what happened. I find it very difficult to believe that the stream isn’t automatically backed up locally and backed up to the cloud or an off site location. It wouldn’t surprise me if it weren’t automatically to several locations including offices connected to the main offices of the FBI like tge anti terrorism department. How the heck did all the copies dissappear?

LOL There’s nothing in that video that indicates Rittenhouse was chasing Rosenbaum. The Prosecution is grasping at straws.

    Edward in reply to Chewbacca. | November 3, 2021 at 10:36 am

    Perhaps the DA knows, or at least believes he knows, the level of gullibility of the residents of Kenosha? Maybe not gullibility, but rather fear of the consequences of a Not Guilty verdict, allowing any straw provided to be seen as a life line by the Jurors?

      lichau in reply to Edward. | November 3, 2021 at 5:30 pm

      Level of gullibility or fear? The Chauvin effect–the jury knows that there will be consequences, including likely personal consequences–for the “wrong” verdict.

He openned the door on this:

Binger: On that night, did YOU have a skateboard?

Yes.

Binger: Routinely?

Yes.

Why do you have a sakateboard? Have you seen skateboards be used for other things? What training do you have? Can skateboards be used a weapon? Have you seen it in your videoing?

Binger’s statements about Rittenhouse being the aggressor were a bit interesting. I was expecting the FBI video to show something much different. Here, the composites show KR moving towards the gas station. Nothing indicates he was after Rosenbaum, as he did not head towards him. Moreover, when the two close, it become immediately obvious that KR tried to immediately flee. Third, it also shows Rosenbaum made no attempt to stop pursuing Rittenhouse. The only reason he was stopped was the gunshots.

What would also be interesting to see is a continuation of the video and what KR did immediately after the shooting. Binger indicated KR attempt to flee, but other video shows KR near Rosenbaum shortly after the incident, and only leaving the scene when the crowd becomes unruly. Confirming that he circled back would further destroy this narrative.

I bet SA Cramin’s testimony was completely truthful, because the FIB is such a standup group of lawmen. I wonder how many of them were out inciting riots last year.

Smoking – that would be funny if that is BS. They let Washington give too much opinion.

Russ from Winterset | November 3, 2021 at 11:10 am

Serious question here for all the lawyers. How far can the defense go down the rabbit hole here fleshing out the inaccurate statements by the prosecution? I assume that a ‘Cousin Vinny’ outburst of “Everything that guy just said is BS!” will be frowned on by the judge, but how about the defense calmly and clearly demonstrating to the jury how the prosecution is lying to them? A comparison of what the prosecutor SAYS happened versus what the witnesses testify under oath cannot be considered irrelevant during a trial. Especially in front of the judge who believes that calling the other participants “victims’ creates bias against the defendant. A clear explanation of the prosecutor’s statements will demonstrate to the jury that the prosecutor is trying to feed them inaccurate information and destroy his credibility in their eyes.

    TheHumbleHotshot in reply to Russ from Winterset. | November 3, 2021 at 2:19 pm

    That’s why each side gets a shot at cross examination. One side gets to spew their own brand of BS, and the other side gets a chance to spew theirs. Then there’s redirect.

      Russ from Winterset in reply to TheHumbleHotshot. | November 3, 2021 at 4:27 pm

      True, but I was referring more to prosecutor’s opening statement where he made some pretty ambitious statements about what happened. Things that could be covered during closing, but if you wait for closing don’t you run the risk of the jury forming an opinion that can’t be swayed after the fact? Seems that a good strategy would be to constantly pick at his misstatements during testimony. That way it’s not just the defense attorney picking it apart, you can get quite a few of the prosecution witnesses to do the job. “This is what the prosecutor promised you were going to say. Is it accurate?”

      That way the rebuttal comes from multiple parties, including prosecution witnesses. If just from defense, jury can say “well, defense attorney has to defend his client, and defense experts are paid to be advocates”. But rebuttal from those testifying for prosecution? That should stick.

      Another thought is if you attack credibility of prosecution early you don’t have to wait til the end when the accumulated evidence has been in the jury’s mind for a while. Once it’s there, it could earn some unearned credibility because it was unopposed at first. Seems like it might imprint a bit less credibly if the misstatements of prosecutor are called out early by defense. That way, a good portion of what he tells them can be heard and discarded in real time, because the jury has already been shown his tendency to exaggerate.

      But I am an engineer, not an attorney. If I were in a meeting with someone who screwed the pooch this blatantly and loudly, I would be sorely tempted to go across the table, rip off his pocket protector, and smash his HP15C calculator (OK, dating myself there. Dad would have talked about snapping his slide rule in half).

        johnny dollar in reply to Russ from Winterset. | November 3, 2021 at 5:24 pm

        The prosecution witnesses can be asked by the defense attorney, during cross examination, about any evidence that contradicts what the prosecutor said in his opening statement.
        Since the prosecution’s opening statement is not “evidence” that can be considered by the jury, most judges are probably not going to allow reference to the actual statements by the prosecution in opening statement during the questions asked by the defense.
        However, as you correctly surmised, during closing argument it is a time tested tactic to call the jury’s attention to things the prosecutor said during opening statement that either weren’t proven or were contrary to the evidence actually presented during the trial.
        This is usually a very effective tactic, used by either side when the other side got carried away with enthusiasm for their case during opening statement.

    Is it just me, or does Judge Schroeder seem like a guy who tries to put off making tough decisions as long as possible? How could he not have made a decision on the motion to dismiss the gun charge? There are so many other tough decisions he’s just putting off. Is this typical of judges?

      Valerie in reply to akolasinski. | November 3, 2021 at 7:18 pm

      It is typical to get all of the relevant evidence, first. Many judges have the experience of having their minds changed by the addition of a few facts.

There should be an investigation into how the hi-res video was lost. Chain of custody etc. But, that will never happen. Also lost is the whereabouts of an honest DoJ. Did it ever exist? The country is crumbling.

“I don’t hit people with my skateboard, I just ride it like you’re meant to.”

Colonel Travis | November 3, 2021 at 11:41 am

Where is the evidence Rittenhouse unlawfully shot anyone? Are we waiting for a big reveal from the prosecution 2 weeks from now?

    No one else shot anyone, is the prosecutions core argument.

      MarkSmith in reply to f2000. | November 3, 2021 at 12:03 pm

      No one else was begin chased and attacked by felons on probation and mental ill people trying to hurt people.

      Russ from Winterset in reply to f2000. | November 3, 2021 at 12:09 pm

      Not to be a troll, but isn’t that a bit like a defense attorney in a rape case saying “There were 73 women at the party that night, and none of the rest of them have come forward with allegations of rape. Why should we believe you?”

Why not bring out that he gets paid by the clicks and people send in money. He was monitoring the chats to see who was sending money in. Ask him if he had made any money off of his videos. Ask him who told him to be there. The guy is an Antifa Supporter. He makes more money when things are out of control.

So far what we have seen from the prosecution is a lot of table-pounding.
Skillful table-pounding, true, but table-pounding still.

What a bloody farce. Binger wants people to believe that Rosenbaum wrapped his shirt around his face because of COVID? He must really believe the jurors are all idiots.

Skate board issued touched up. Yea defense. Gotta bring out how the video guy makes money and who he was talking to.

Washington’s testimony could have been used to destroy this case and it was not. I was watching his video most of the night. Wish we knew who he was working with. Exposing that would tell a lot.

Interesting, Washington said that KR was a chain smoker. How does he know that? What does that really have to do with the case except to character. Defense did a good job of blowing this “no-fire” theory out of the water.

I am curious if the PA really has a case against Black about the strawman purchase.

Matthew Carberry | November 3, 2021 at 12:49 pm

Koerri Washington was a great witness.

Based on his testimony as recorded by Andrew, he needs to be doing journalism. Far clearer and objective than most local reporters. Also, just the right amount of personality.

Colonel Travis | November 3, 2021 at 1:49 pm

I can’t even watch this anymore, The prosecution is wasting everyone’s time and money with this idiotic show trial. Even the judge is pissed off.

    Colonel Travis in reply to Colonel Travis. | November 3, 2021 at 1:59 pm

    Actually, I’m enjoying watching this judge tell off Attorney Hair Products.

    Russ from Winterset in reply to Colonel Travis. | November 3, 2021 at 4:35 pm

    As an engineering grad of Iowa State University, I really enjoy two things:. Watching lawyers screw up in real time and try to flounder their way out of it, and watching the Nebraska Cornhuskers get humiliated on Saturday afternoons. If I could witness a former NU football player who went on to law school try and fumble his way out of a self-dug hole, that might be the greatest thing I have ever witnessed.

    The prosecution has produced nothing but emotionalism. And will convict, if it can, on the jurors emotionalism. Which of course, as has been my observation, Boobus AmeriKanus are an emotional lot.

I continue to wonder why Kyle Rittenhouse was charged, given that it seems so clear that he acted in self defense:
To appease liberal voters?
To punish self defense from leftist violence?
Regardless, it greatly lowers the moral standing of the DA’s office.

    TheHumbleHotshot in reply to pst314. | November 3, 2021 at 2:26 pm

    Because the DA gets points for the attempt, no matter what the outcome is.

    Observer in reply to pst314. | November 3, 2021 at 5:41 pm

    To appease liberal voters?
    To punish self defense from leftist violence?
    _________

    Yes, and yes. Also meant as a warning to other non-leftists: don’t even think about trying to defend yourself, or your property, from leftist violence, we we’ll use the court system to destroy you.

    They did it to the McCloskeys in MO (they were the couple who famously came outside and brandished unloaded guns at a marauding lefty mob that was trespassing on their lawn and threatening to kill them and their dog). They did it to the January 6th protesters, and they’re doing it to Rittenhouse.

    DaveGinOly in reply to pst314. | November 3, 2021 at 6:19 pm

    For the state, win or lose, the point is to discourage others from acting similarly to Kyle in the future. We can’t have people defending property (or even their own lives) without paying a price for the “privilege.” Remember, the process is the punishment. Conviction is just icing on the cake (and some people, like me, don’t care if the cake has icing or not).

      henrybowman in reply to DaveGinOly. | November 3, 2021 at 7:38 pm

      But if he is acquitted, that won’t be the case this time. They charged this poor kid $1 million bail (or was it 2 million?). A lot of that was donated and crowdfunded. If he gets acquitted, he walks away with it. Which, as far as I’m concerned, he deserves.

    Decee in reply to pst314. | November 3, 2021 at 6:29 pm

    Before the trial started, I had the assumption that LR was the aggressor leading up to the shootings. I felt he still had a a chance of claiming self defence but thought it was a small chance.

    However having watched the first two days, the prosecution themselves have proven that he wasn’t the aggressor at all and was simply acting in self defence.

    I’m now completely shocked that this ever made it to court.

It appears the judge is playing this up for the camera. He doesn’t have to explain his decisions regarding an objection in this much detail to the attorneys.

Report of four homicide victims initially. At about 12:30 Detective Antoranian and I assigned to case.

Were the homicides reported to be justified homicides, excusable homicides, or felonious homicides; or were they just reported to be “homicides?”

    DaveGinOly in reply to bigo. | November 3, 2021 at 6:22 pm

    Determination of those things requires an investigation. Whenever one person is killed by another, it’s a “homicide.” Investigation determines if it was justifiable or unlawful in some way. A homicide remains a homicide after investigation, because the word, when used by professionals, at least, is neutral and has no connotation with regard to lawfulness or unlawfulness.

Matthew Carberry | November 3, 2021 at 2:25 pm

“Judge Schroeder: Glares at Binger.”

I submit…

“Glares in Schroeder”

Why aren’t there charges against Joshua Ziminsky for the initial shot?

If he was just firing into the air, that’s reckless endangerment twice over (once for firing into the air, once for unneeded discharge of a firearm during a riot.)

If he was conspiring with Joseph Rosenbaum to distract Kyle Rittenhouse so that Rosenbaum could get his gun, it’s felony murder at least for Rosenbaum, possibly for the Anthony Huber as well.

    Elzorro in reply to ecreegan. | November 3, 2021 at 3:52 pm

    He is worried about what Toober on CNN thinks. He wants to present this kangaroo court as giving ‘the appearance of a fair trial’ to the MEDIA. Insane.

      JaneDoh in reply to Elzorro. | November 3, 2021 at 3:56 pm

      I don’t think he’s worried; he knew the camera was on and used the opportunity to let Toobin know he thinks he’s a moron. He shouldn’t have, but I enjoyed it nonetheless.

      I believe there are charges against Ziminsky.

        Elzorro in reply to JaneDoh. | November 3, 2021 at 4:06 pm

        He is severely influenced by what the media thinks, This is not the job of a judge, The media is not an officer of the court. He is. He is trying to teach criminal law to the jury in a 5 minute discombobulated rant. The defense and state lawyers are incompetent legal boobs. What a travesty of justice. Not even close to a search for the truth as the rules of procedure seem to have flown the coop.

          Think38 in reply to Elzorro. | November 3, 2021 at 5:26 pm

          He doesn’t seem very concerned about whether the media agrees with his rulings or not, and seems to be pointing that out. He does seem to care about what the audience thinks, however. That is somewhat concerning.

    Chewbacca in reply to ecreegan. | November 3, 2021 at 3:56 pm

    I was wondering about no charges against Zaminski as well. They have him identified and there seems to be no doubt he fired the shot. It’s very possible his shot contributed to the way Rittenhouse responded to being chased by Rosenbaum since he heard Zaminski shooting from behind him. There’s no excuse for there being no charge against him.

    Think38 in reply to ecreegan. | November 3, 2021 at 5:25 pm

    Ziminsky was charged. There are articles on the charges, and believe those were resolved with a plea deal. Couldn’t find anything on the plea, but remember reading it.

    randian in reply to ecreegan. | November 3, 2021 at 6:14 pm

    “Why aren’t there charges against Joshua Ziminsky for the initial shot?”

    Why aren’t there charges against Gaige Grosskreutz for aggravated assault on Kyle Rittenhouse? Last I checked pointing a pistol at somebody was aggravated assault in most every US jurisdiction.

      henrybowman in reply to randian. | November 3, 2021 at 7:03 pm

      I can’t figure out why Großkreutz isn’t being prosecuted for felon in possession. He already took a plea deal to that charge for a previous incident, so all the elements are present.

AFIC as far as I cans see,,,as usual… The states own evidence is exonerating the defendant. This is a common MO in these immoderate woke political persecutions. I will not call this travesty a prosecution.
On cross please ask the detective what a reasonable police officer would do in each of these assaults.
The defense lawyer is pretty pathetic. He appears to be a legal midget.

What is the point of Binger bringing up all the shots that were NOT the defendant’s?

“Rittenhouse is the only one who shot someone that night!” but then goes out of his way to point out all the other people who would have killed someone save for their bad aim.

“Poor Gaige Grosskreutz–everybody wants to play Glock games until it’s time to do Glock stuff, and the other guy has an AR.”

ROTFL

That was classic 🙂

Something about bringing a pistol to an assault rifle fight 🙂

    Russ from Winterset in reply to jhkrischel. | November 3, 2021 at 4:41 pm

    To paraphrase Gian Maria Volonte from “A Fistful of Dollars”…..”When a man with a Glock meets a man with an AR-15, the man with the Glock will die”.

    DaveGinOly in reply to jhkrischel. | November 3, 2021 at 6:28 pm

    “A handgun is what you use to fight your way to your rifle.”
    Clint Smith

Anyone else tired of the drawn out line of questioning from the prosecutor? It pretty much goes nowhere and provides more defense testimony than prosecutorial. You have to imagine the jury is not impressed with how much time he is wasting.

Is it just me, or does Judge Schroeder seem like a guy who tries to put off making tough decisions as long as possible? How could he not have made a decision on the motion to dismiss the gun charge? There are so many other tough decisions he’s just putting off. Is this typical of judges?

Judge is worlds best law professor. He has explained all the history and nuances of hearsay evidence and all its exceptions to the ignorant jury in just a few minutes. In fact even going back to anchient Rome and the trial of St. Peter. STOP THIS MADNESS!

What is the deal with Schroeder and procrastination? Again, he postpones another two decisions at the end of the day, when it’s only 4:40. Is this just a result of his age?

So did Millhouse get banned for LI comments?

James B. Shearer | November 3, 2021 at 8:32 pm

Is it a good idea for the judge to be watching news reports about the trial? He tells the jurors not to do this, shouldn’t that apply to him also?

    I would not be at all surprised to find out that he is doing exactly as suggested at a recent Federal Judicial Conference. Judges have been concerned for decades about the problems with publicity surrounding a trial, and the news coverage has done nothing but get more pernicious over time.

    Judges are concerned about not only doing justice, but being seen to do justice, that is, demonstrating that justice has been done. They have been hearing the truth they have spoken twisted by knaves to make a trap for fools, and this is an attempt to deal with it.

    I’m not bothered by it at all.

    From all I’ve seen from this judge, I firmly get the impression that he believes he is not guilty.

      James B. Shearer in reply to Decee. | November 4, 2021 at 1:55 am

      “From all I’ve seen from this judge, ..”

      Even if this judge isn’t going be affected by critical news coverage I am not convinced this is true of all judges. And a trial is pretty busy, he has a bunch of rulings pending that he could working on instead of watching news coverage of the trial.

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