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LIVE: Rittenhouse Trial Day 3

LIVE: Rittenhouse Trial Day 3

Is Defense Failing Because of Too Few Objections?

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 2: Prosecution Witnesses Still Fail To Contradict Self-Defense.

You can find our live streaming of today’s court proceedings as well as our live, real-time commenting of courtroom testimony and argument as it occurs, both near the bottom of this LIVE post.

Yesterday’s court proceedings ended while the parties were in the midst of a debate over the admissibility of a question posed by the defense during cross-examination to state’s witness Detective Martin Howard, the youthful-appearing lead investigator on the Rittenhouse case.

As we noted in yesterday’s coverage of the trial, Assistant DA Binger seemed to get little of value to the prosecution in his roughly two hours of direct examination of Howard, seemingly using the detective mostly as a vehicle to get a great many spectator and social media videos of the night’s events into evidence.  It is notable that not one of the videos I observed—and I believe I observed them all—contained any substantive evidence inconsistent with Kyle’s core legal defense of self-defense.

The cross-examination of Detective Howard by defense Attorney Mark Richards, however, was much more substantive and productive, and generated a great deal of testimony that reinforced Kyle’s claim of self-defense (key to defending against the homicide charges), as well as his reasonableness throughout the night (key to defending against the recklessness charges).

Richards also elicited from Detective Howard considerable testimony about violated investigator practices and highly exceptional, and undisclosed, treatment of certain state’s witnesses—particularly Gaige Grosskreutz, the only witness whose phone was not seized by police (on an apparent pretext initiated by Prosecutor Binger, and despite police having a search warrant in hand for precisely that purpose), and the only witness whose police interview was not recorded (which recording would have had to have been shared with the defense).

Remarkably, it was apparently after one of these instances of unusual and undisclosed to the defense coordination between the District Attorney’s office and the youthful Detective Howard that the detective, in his position less than two years, was that very night made the detective on this extraordinarily high profile Rittenhouse case.

In short, Attorney Richards’ cross-examination of Detective Howard was certainly among the few highlights of an otherwise rather tedious day where the state seemed to make no ground whatever in undermining Kyle’s claims of self-defense, and the defense successfully had the jury exposed to ever more evidence consistent with Kyle’s self-defense claim.

And we’re not done with the defense cross-examination yet, as it will continue this morning after being interrupted at the close of trial proceedings yesterday.

And that brings us back to the nature of that interruption.

Attorney Richards was in the process of questioning Detective Howard on cross-examination, and essentially having him step through the key events of that night in more-or-less chronological order.  They were now at the point where Kyle had shot Rosenbaum in self-defense and was beginning to flee towards the police line a couple of blocks down the street to turn himself in to police—you know, like people who murder with malice typically do.

It was during this flight to safety down Sheridan Street towards the flashing lights of police vehicles that Kyle would be attacked by the mob generally and knocked to the street, and there attacked specifically by “jump kick man” (who Kyle fired at twice, but missed), Anthony Huber (who Kyle fired at once, and hit, fatally), and Gaige Grosskreutz (who Kyle fired at once, hitting his arm).

The moment at which Kyle shot Grosskreutz, who was advancing on the fallen child with a Glock pistol in his hand, was not the first time the two had interacted, however.  Kyle Rittenhouse and Gaige Grosskreutz had also interacted earlier, while Kyle was just beginning his flight to safety down Sheridan Street, nearer to the Car Source lot where Rosenbaum had launched his initial attack on Kyle.

It was this earlier contact between Kyle and Gaige Grosskreutz that Attorney Richards was asking Detective Howard about when the ADA Binger raised an objection that triggered argument sufficient to justify ending the day at that late point in the afternoon.

During this exchange, Grosskreutz runs right up to the fleeing Kyle, cell phone camera in Kyle’s face, and asks, “Did you shoot that guy?”  The response that Kyle made, in real life, was words to the effect of “I had to, it was self-defense.”

It was that response from Kyle that Attorney Richards was seeking to extract from Detective Howard when ADA Binger objected, arguing that it question seeking that answer calls for hearsay—an out of court statement offered for proof of the statement itself.

It should be further noted that although the state is permitted to offer out-of-court statements of the defendant in a criminal case, as an exception to the hearsay rule, the defense generally is not.

That said, there are a great many other exceptions to the hearsay rule, as well as other grounds for why an out of court statement ought to be admissible, and Attorney Richards made such an argument here, telling the judge that Kyle’s response to Grosskreutz’ question ought to be admitted under the doctrine of completeness, and also that the matter had already been either admitted into evidence or at least discussed before the jury earlier in the proceedings.

Everyone’s arguments and recollections became so ambiguous, however, and it was late enough in the afternoon, that Judge Schroeder “called a lid,” to use a political term, and decided to finish arguing the matter out in the morning.

And that’s where I expect things to pick up again this morning.

Here’s some video of that end of cross and the subsequent initial argument on the matter after the jury was dismissed from the courtroom.

Incidentally, at the end of the second video there’s also an issue raised by the prosecution seeking to dismiss one of the jurors for cause because of a joke the juror attempted to tell a bailiff, to which removal the defense objects, and I expect that to be resolved this morning, as well.

Is the Defense Failing for Lack of Objections?

On an entirely separate topic, I’ve been receiving a lot of comments and communications from folks who express great concern that the defense is failing Kyle Rittenhouse because of a purported failure to make sufficient objections to the state’s questioning of witnesses and presentation of video evidence.

Apparently, these concerns are being fostered by legal commentary and analysis being made about the case both others, including other lawyers, who are covering the Rittenhouse trial on the internet, much as I’m doing myself.

The first thing I should mention is that I don’t get anything but the most incidental exposure to other commentary and analysis of trials I cover, at least while I’m covering them.  Just doing what I do, every day, to cover a trial like this is already a 5 am to 9 pm job—I haven’t time to look at other people’s commentary and analysis.  That doesn’t mean it’s not necessarily good commentary and analysis, only that I wouldn’t know, personally.

That said, it seems to me as if people are looking at the matter of objections in a hyper-technical sense, as if every possible thing that could be objected to should be objected to, period.

And that’s just not how things work in a real-world courtroom.

Whether to object involves a great many factors, not all of them purely legal, and so there’s always a balancing of those factors by any attorney presented with the technical option of making an objection.

For example, not only is the decision to object invariably a balancing of some sort, many of the theoretical grounds for objecting are themselves a balancing.  One of the most common complaints I’m hearing about this defense, for example, is that they are failing to object to evidence that is prejudicial.

OK, fine—but it’s a criminal prosecution, folks. In every criminal prosecution ever, the state is admitting evidence that is prejudicial to the defendant, if by prejudicial we mean “harmful.”  And the state is allowed to do that—it’s their job. If they could only introduce evidence that was not harmful to the defendant, there’d be little point to prosecuting anybody.

The real question, legally speaking, is not whether the evidence is prejudicial, but whether that negative prejudicial character of the evidence outweighs whatever positive character the evidence might have—such as relevance, for example.  Evidence that is highly prejudicial and only modestly relevant is likely to be deemed inadmissible by a judge—but evidence that is highly relevant and only modestly prejudicial is likely admissible.   That’s the balancing, in that context.

But whether to object also requires balancing considerations outside of the technical.

For one thing, many people may not understand that in the process of direct and cross-examination, it is not that each party gets to ask the witness whatever questions might pop into their pretty little heads.  Rather, each successive stage of questioning can only properly address issues that were raised in a prior step.

Imagine, for example, that on direct the state asks a witness about issues A, B, and C, but not about issue D.  That means that cross-examination by the defense is limited to asking only about issues A, B, and C—because issue D was not asked about on direct, it cannot be inquired about on cross.

Now imagine that there are aspects of issue C that are very, very important to the defense—they want to dig into issue C with a bayonet and gut it, right in front of the jury.  At the same time, there are some small facets of issue C where the evidence is arguably prejudicial or irrelevant some other legitimate grounds for the defense to object to the prosecution introducing issue C on direct in the first place.

Does the defense make a perfectly legitimate objection to issue C when the state tried to introduce it on direct—meaning, if the defense objection is successful, that issue C would be unavailable to them on cross-examination?  Or does the defense accept the modest hit of whatever facet of issue C is unfavorable, so they can thoroughly eviscerate that issue on cross-examination in front of the jury?

UPDATE: But on this particular point, see comment below from chaswjd: “Wisconsin does not follow the scope of direct rule for cross-examination. Wis. Stat. §906.11(2) (“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.”) If Judge Schroeder has not ordered that cross be limited (and few Wisconsin judges do) cross is a wide open field.” I share this in the interests of transparency, I myself am not in a position to either confirm or deny this is the case in Wisconsin, but it’s certainly possible, and I have no reason to think otherwise.

My personal inclination has always been to take a pass on the objection on direct so that I can have substantive fun on cross.  And I expect we’re seeing quite a bit of that here, and will see more moving forward.

Of course, it’s possible that defense Attorneys Richards and Chirafisi are simply incompetent buffoons who have no idea what they are about and are simply flushing their defendant’s case down the toilet because of their ignorance of how to raise objections.

But that’s not the way I’d bet, based on my observations of their performance to date.

OK, folks, that’s all I have for you on this topic.

here’s today’s live stream video and commenting of court proceedings.

LIVE STREAM

LIVE COMMENTING

And don’t forget to join us this evening for our usual plain English legal analysis and commentary of the day’s proceedings, along with courtroom vide0 of it all.

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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

Day 4?

    My bad, fixed.

      IveGotTheBriefcase in reply to Andrew Branca. | November 4, 2021 at 2:08 pm

      Is it not crazy to you that his attorney didn’t try to get his self defense statement in as an excited utterance or presence sense impression?

      The rule of completeness is not an exception to hearsay and is really more of a fairness rule to prevent unfair inferences from admitting partial documents or statements.

      Oklahoma reversed a conviction and ruled almost the exact same statement admissible as an excited utterance and presence sense impression to prove self defense in Williams v. State, 915 P.2d 371, 1996 OK CR 16.

      Under Wisconsin law, Christensen v. Economy Fire & Cas. Co., 77 Wis.2d. 50, 252 N.W.2d 81, it doesn’t matter whether the statement is self serving if it’s an excited utterance/presence sense impression.

Tried to watch as much as possible and read the summaries. When does the prosecution present its case?

I’m not even sure where that train of thought comes from. Hell, I’m pretty sure I’ve read that attempting every single valid objection is a great way to turn a courtroom against you. Maybe even read it here!

The juror joke is stupid an inappropriate, but Jacob Blake is not the defendant or a decedent, he is not even a party to the case so I don’t see how it should be disqualifying.

    GregTCT in reply to Ironman. | November 4, 2021 at 4:19 pm

    The juror joke is anti-cop and pro-Blake, no?
    I’d think the Defense would want to get rid of him, not the prosecution

      Tom Servo in reply to GregTCT. | November 4, 2021 at 6:41 pm

      I just read that the Judge did dismiss him. I have no idea if he was pro or anti Rittenhouse, but a trial like this is a very serious business and people involved in it should have the sense to keep quiet and not stay stupid things to anyone. I believe the Judge dismissed him for that reason alone.

Did anyone else yesterday catch the detective correcting the defense that the first shooting took “76 tenths of a second”, which would be 7.6 seconds.. not a very good detective.

    Grey_Man in reply to Smooth23. | November 4, 2021 at 10:42 am

    It’s clear this detective was chosen because he’s a tool. He decided Grosskreutz was the victim of crime 6 hours after the event.

    akolasinski in reply to Smooth23. | November 4, 2021 at 11:29 am

    I’m actually surprised Richards didn’t correct him. I would have said, “No, detective, it was 76 hundredths. Did you pass eighth grade math?” But lawyers generally aren’t very good a math, so I’ll give him a pass. 🙂

Judge just excluded the defense useof force expert in the Ahmaud Arbery trial.

I find the defense’s strategy persuasive – essentially sitting back and saying “see it for your own eyes” while the prosecution relies on table pounding, innuendo, and misleading statements. I see it as letting the prosecution fail to make their case while appearing as if you have nothing to hide and little to fight about because you’re clearly right.

Andrew,
Why is the prosecution allowed to keep bringing up Rosenbaum was “unarmed”?

    Matthew Carberry in reply to Grey_Man. | November 4, 2021 at 2:10 pm

    At the moment of his attack he had no weapon visible to Rittenhouse. We all know that “unarmed” isn’t truly appropriate in terms of any physical assault, but in the common sense it means, “no additional weapon.” That’d be one that objecting to, as opposed to mentioning say at close, would likely be counterproductive and seen as nit-picking pedantry.

    Question for the defense to ask the officer: How long did you examine Rosenbaum before you decided he did not have a knife or gun? And you were right next to him, with a flashlight, correct? When being chased by a violent aggressor down a dark street, how much time do you think Kyle had to look over his shoulder at Rosenbaum to see if he was carrying a knife or gun?

This might be a stupid question, but is there any video of attorney Branca working a case in the courtroom? I’d love to see him try a case, but I’m not sure that exists. Really big fan of the site and his commentary on both this and the Chauvin trial.

Anyone else thinking that Rosenbaum may have put the chain INSIDE the plastic bag?? Good way to mask deadly force weapon.

    Ironman in reply to foospro86. | November 4, 2021 at 1:12 pm

    I thought the same thing, but they didn’t find it in the bag, and don’t see it fly out of bag. However, it could have exited the bag when it hit the ground and got lost in the clutter of crap on the ground.

    JaneDoh in reply to foospro86. | November 4, 2021 at 4:03 pm

    Briefly, but logic says he would have been more likely to hold onto it rather than throwing it away like that if so. Probably would have flown farther, too.

Colonel Travis | November 4, 2021 at 11:06 am

50-year-old Thomas Binger.
Arguments, like his hair, suitable for a 12-year-old.

One small point, Wisconsin has generally adopted the Federal Rules of Evidence. You can generally find the Wisconsin equivalent to a Federal Rule by shifting the decimal point left two places and adding “90” in front of the resulting number. Thus, Fed. R. Evid. 403 is Wis. Stat. §904.03.

There are exceptions. Wisconsin does not follow the scope of direct rule for cross-examination. Wis. Stat. §906.11(2) (“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.”) If Judge Schroeder has not ordered that cross be limited (and few Wisconsin judges do) cross is a wide open field.

Kyle did NOT say he was an EMT – at least in this video. The other guy said he was an EMT. McGinnis asked Kyle if he worked as an EMT. Kyle said he has had training and worked as a lifeguard.

Prosecution theory – if Rittenhouse would have provided White Claw to Rosenbaum then Rosenbaum wouldn’t have chased him and wouldn’t have had to shoot him.

Russ from Winterset | November 4, 2021 at 12:17 pm

Based on the prosecution’s mangling of facts so far, I expected Binger to respond to a statement that Kyle was offering medical services with…”So he was practicing medicine? Like the doctors and nurses with The Tuskegee Experiment? That sort of medicine?”

At 1230, McGinnis testified that he anticipated a very dangerous situation was about to occur and murdered the prosecutions case.

The Richards does not object to ADA Binger playing a video containing “militia” in its title that always pops up when paused for example. After in limine the prejudicial “Kyle is a member of a militia” “evidence” was precluded.
Psychologically, the intentional renaming of the video and the fact that the inflamatory “super chats” were not only not edited out but read aloud is even worse. Tell me again, why the defense should not object?
If we could trust a jury to be not influenced by these kinds of gimmicks, we would not need to preclude prejudicial evidence at all.

Rosenbaum lunged. Kyle dodged and shot. So seems to me that it’s very likely that the barrel was not even in McGinnis’ direction when the 4 shots went off, right?? If so, then the charge of recklessness in relation to McGinnis would be completely bogus. But even if the barrel was in the direction of McGinnis, did Kyle even notice McGinnis? Did he even have the time and physiological ability to notice McGinnis while being chased and attacked? Where is the evidence of any recklessness??

In opening statement, Binger said that McGinnis reported a rounded impacting nearby him, no? Direct of McGinnis is not over, but will be looking for that to come out in testimony.

    Given that Rittenhouse was engaged in a fight for his life; I expect that at the instant Rittenhouse fired on Rosenbaum, he was experiencing adrenaline/stress-induced tunnel vision and didn’t have much awareness/focus beyond the threat immediately in front of him.

Binger hammering the subtle difference in McGinniss’ word choice then and now will hopefully backfire on him. We got to hear several times that McGinniss said then (and now) that Rosenbaum lunged towards Rittenhouse first. Whether or not he lunged and then fell forward towards Rittenhouse, or was lunging and fell because he was shot, seems like a moot point. Rittenhouse would have undoubtedly interpreted that forward motion the same in those split seconds before shooting him. Plus, even if he was lunging forward and fell by mistake, the aggressive lunge is what matters. He doesn’t have to allow his attacker to regain his footing and try to lunge at him again. His attacker may be successful the second time (i.e. not fall) and Rittenhouse would be dead. It’s like an attacker shooting at you and missing you by mistake. You don’t have to let them shoot at you again before you defend yourself. I think McGinniss handled his clarification well, and this was a disaster for Binger.

At what point in this disaster of a trial can a reasonable person conclude that Binger has acted with actual malice in bringing an abusive, politically-motivated prosecution of Rittenhouse?

    GregTCT in reply to RayCL. | November 4, 2021 at 2:59 pm

    At the point where they didn’t get G’s phones and didn’t record the interview, I think the actually malice was pretty clearly established

      It goes along with the lawyer proverb: “Don’t ask questions where you don’t know the answers.” The prosecution had a goal: arrest and try Kyle. If he had actually carried through on the search of G’s phone and found (as a hypothetical) messages between him and other rioters planning on assault or such other criminal activities, such information would probably leak to the defense, at which point all heck would break loose.

      randian in reply to GregTCT. | November 4, 2021 at 7:14 pm

      Why can’t the defense subpoena G’s phone?

I’m pretty sure I know where this prosecutor is going with all this. He’s going to argue that after the shot to Rosenbaum’s groin and him falling toward the ground because of it, he (Rosenbaum) was no longer a threat. He was out of the fight at that point with a fractured pelvis, so any subsequent rounds were unnecessary.

The prosecutor will probably eventually call the medical examiner who will testify that it was the subsequent shot to Rosenbaum’s back that was the kill shot.

I hope the defense has some sort of evidence that contradicts that or at least mucks things up a bit to where there is a question about the sequence of what shots struck Rosenbaum when.

    in the Defense’s opening statement, it was clearly stated their use of force expert will testify that the total elapsed time from the first shot fired at Rosenbaum to the last shot fired at Rosenbaum was .76 seconds.

    Good luck convincing the jury that Rittenhouse had time to recognize that the “groin” shot ended the threat.

    We’ve heard that Rittenhouse’s weapon was loaded with a 30 round magazine. I’d conclude he showed control and restraint in firing only four rounds and stopping when he felt the threat was “down.”

      Think38 in reply to RayCL. | November 4, 2021 at 1:54 pm

      Many people would keep firing until the magazine was emptied.

      Watching videos of many police shootings we see multiple shots fired. See for example the Blake shooting that triggered these events. Hard to tell if someone is hit or incapacitated.

        Colonel Travis in reply to Think38. | November 4, 2021 at 3:23 pm

        Do not fire until your magazine is empty. Fire as many shots as it takes to stop the threat. If it takes more than one reload, fine. But if someone is down, very much out of the fight, and you finish them off and/or empty your magazine, you’re going to prison. Look up Jerome Ersland, textbook example of what not to do. He shot a bad guy, put him down, got another gun and put five more rounds in him. Ersland is in prison for the rest of his life for those additional five shots.

          I agree with your advice — you shot someone to stop them, not to kill them. My point is merely that it human nature to continue firing in such an excitable situation. Rittenhouse showed a great deal of restraint. More restraint than most people would have in a similar situation.

        TargaGTS in reply to Think38. | November 4, 2021 at 6:47 pm

        Fire discipline in combat is one of the most difficult skills to absorb and put into practice for young uniformed service members. What you’re describing in incredibly common in combat.

      Russ from Winterset in reply to RayCL. | November 4, 2021 at 3:20 pm

      Every self defense ‘how to’ I have ever seen or heard emphasizes that you NEVER shoot to wound your attacker. If you admit that you only wanted to wound your attacker, you are effectively admitting that you were not in fear for your life. If you are not in fear for your life, you are not justified in using deadly force. You are supposed to acknowledge ‘shooting to stop the threat’.

      The fact that Rittenhouse fired four shots in three-quarters of a second and stopped rather than dumping his magazine should prove to reasonable people that he only fired until he thought the threat was stopped. Trying to prove that the last shot was excessive might be a good tactic if there was a four or five second pause between shots three and four. But expecting him to recognize that in 0.1 second? Not reasonable.

      Of course, when a jury is involved…..

        You don’t have to shoot with the purpose to kill. You shoot with the purpose of preventing the person from causing you physical injury or death and if you are a normal moral person you hope that the use of deadly force doesn’t kill him, but definitly know that it might and you definitly intend that if you don’t get a psychological stop by shooting him, that you will get a physical stop by physically incapicate them.

          Russ from Winterset in reply to bigo. | November 4, 2021 at 4:20 pm

          This is true, but the self defense training I received told us that when you pull a weapon, you should expect someone to die. If you miss and they break off the attack, great. If they break off the attack while you are bringing your weapon into play, great. If they are wounded and clearly stop the attack, great. Point is, unless you’re Roy Rodgers or the Waco Kid from Blazing Saddles, you’re not going to shoot the gun out of their hand. Even an intentional “shot to the leg” to wound an attacker can end up in death if the bullet strikes an artery.

          Our instructor made it clear that the time to get your mind around the fact that stopping the attack might kill your attacker was when you picked up the gun upon leaving your house. Stopping to hash out ‘can I handle the aftermath of the shooting?’ during the event will get you dead, wounded or disarmed (wounded or disarmed will proceed to dead at the discretion of your attacker). So have a clear idea of what you consider a deadly threat, and try to remember your training when it hits the fan.

        The reason we don’t teach soldiers/Marines/sailors or even police to ‘shoot to wound’ is because we instead teach them to shoot center-mass. Why? Because your chances of hitting a target when aiming center-mass are much greater than they are when aiming for a peripheral limb, like an arm or leg. Unfortunately for the target subject, center-mass also means aiming for the vital organ of the heart.

        A more likely outcome of death when a properly aimed center-mass projectile hits its target is simply a consequence of anatomy and not intent.

And yes, the prosecutor is playing politics by including the video yesterday using the word “militia” four times and then today saying “Fox News” and “Tucker Carlson” every chance he gets.

    OnePingOnly in reply to OnePingOnly. | November 4, 2021 at 1:36 pm

    I agree with you. I’m just giving my opinion on where I think the prosecutor is hanging his hat on the shooting of Rosenbaum. It’ll be up to the jury members to decide if four shots were reasonable and necessary to stop the threat.

And, of course, the allowance of statements regarding race. The prosecutor was quick to point out that the four guys standing around, two with rocks in their hands, were black. What the hell difference does it make? There is no racial component in this, but the prosecutor sure is trying to suggest that there is. Disgusting political hack.

Binger is playing to the woke jurists. Hoping for a hung jury. Then they can torture Kyle over and over again. What a Dork.

I don’t know why anyone would object to the word “militia” being used in respect to Rittenhouse.

10 U.S. Code § 246 – Militia: composition and classes
U.S. Code

(a)The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b)The classes of the militia are—
(1)the organized militia, which consists of the National Guard and the Naval Militia; and
(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Title 32 section 313 has to do with the requirements for being a member of the National Guard and nothing to do with being a member of the United States Militia.

    gospace in reply to bigo. | November 4, 2021 at 4:59 pm

    I agree. If, in fact, the prosecutor has implied that Rittenhouse was a militia member, I think the defense ought remind the jury that not only is it true- reading off the federal definition- that Rittenhouse is in the federal militia, and that a large proportion of the courtroom, including jurors, are also members.

    Not under Wisconsin law. Wisconsin, I believe alone among states, has no unorganized militia definition. Under state law- only members of the National Guard and the State Guard are the militia- and Wisconsin has not organized a state guard….

What I really would have liked to see was Richards saying “we would like to have entered the video from Gaige Grosskreutz’s phone into evidence, but since you personally insured that the search warrant wouldn’t be executed on his phone, we don’t have that information available to us. So the Detective’s testimony here is the best we can get.

Saying that in front of the jury, or course

“Why did police shoot Jacob Blake 7 times? Because they ran out of bullets.”
That seems more like an anti-cop joke than an anti-Blake joke. What am I missing, and why should the defense NOT want him gone?

    gospace in reply to GregTCT. | November 4, 2021 at 5:00 pm

    It’s neither- it’s a variation on a thousand other jokes. Either A. You find that kind of joke humorous or B. You’re a liberal….

“Binger: Fair to say, when you are dealing with someone YOU consider to be the victim of a crime you don’t normally record those?”

Why the hell not? Unless you’re afraid the “victim” will say something that will help the defense (in which case you have a legal, moral, ethical, and constitutional duty to provide that information to the defense), why would you not want video? How can it hurt you, and can it not possibly help your investigation?

    GregTCT in reply to GregTCT. | November 4, 2021 at 2:34 pm

    “Binger: Gathering information without a record doesn’t do much good, does it?”

    Gee, so tell us again why you didn’t record the Gaige Grosskreutz’s interview?

      Well, the other “victims” were in the other rooms where we normally record people… but those recorders don’t have a stop button. So those “victims” were recorded.

      Fortunately Gaige Grosskreutz was interviewed in the room where there is no need for a stop button on the recorder.

Midfiaudiophile | November 4, 2021 at 2:30 pm

Interesting point brought out about the attitude of the barrel being downwards due to Mr. Rosenbaum’s stance at the time. His backstop was the ground, not Mr. McGinniss.

I suspect prosecution is going to aim for jury nullification during closing arguments. “Kyle was trained in first aid, had supplies with him, Rosenbaum died because Kyle fled without providing care”, not caring to mention the dozen hostile people surrounding him angry that their friend had been shot.

Binger is incapable of not redirecting. He loves to think he’s getting the last word in.

Real American | November 4, 2021 at 2:35 pm

Who plays Binger? Edward Norton?

Have been watching the better part of an hour. Are there any witnesses for the prosecution who don’t actually exonerate the Defendant.
And apart from the videotape that paints a compelling, if not inarguable case of self defense (KR trying to evade then until he has no escape, to defend against multiple attackers, including at least one armed with a pistol) is there any evidence at all supporting guilt?
How is this not a dismissal on directed verdict?
PS I’m not a criminal attorney, but a civil trial lawyer.

    Smooth23 in reply to xnycp. | November 4, 2021 at 2:50 pm

    Certainly doesn’t seem like it

    Andy in reply to xnycp. | November 4, 2021 at 2:58 pm

    Judge doesn’t want his house burned down.

    But he’ll let the juror houses burn.

    bigo in reply to xnycp. | November 4, 2021 at 3:59 pm

    The case is being prosecuted on the theory that the use of deadly force isn’t justified against an unarmed man until he actually causes you serious bodily harm or death. You have to wait until you can’t defend yourself before you defend yourself. The judge actually laughed in the prosecutions face when he advanced the theory. Don’t know why the judge didn’t enter a judgement of acquital right then and there.

Binger really trying to suggest the threat posed by Rosenbaum had ended when he lunged and missed kyle’s gun? Somehow self-defense not in play until Rosenbaum actually has hands on the rifle?

Niven’s First Law: Don’t throw baggies of sh!t at armed people
Niven’s Second Law; Don’t stand next to people who throw baggies of sh!t at armed people

Rosenbaum violated that first law

    gospace in reply to GregTCT. | November 4, 2021 at 5:03 pm

    And IIRC, Fuzzy Pink Niven’s law- Never waste calories. Don’t eat soggy potato chips. If you want ice cream, eat ice cream, not ice milk…

Seems the prosecutor is also trying to suggest that Rittenhouse had a clear avenue of escape through the parked cars (into a mob of angry rioters smashing up cars lol).

    Smooth23 in reply to OnePingOnly. | November 4, 2021 at 3:11 pm

    Which doesn’t really matter because there is no duty to retreat in wisconsin

      OnePingOnly in reply to Smooth23. | November 4, 2021 at 3:18 pm

      Wiki states that in Wisconsin there is a duty to retreat as long as one is safely able to do so. Wilki could be wrong, I guess. If that is correct, however, it could be argued that it was not safe for Rittenhouse to do so due to the angry mob that he’d have had to run toward.

        Smooth23 in reply to OnePingOnly. | November 4, 2021 at 3:20 pm

        I don’t believe the wiki is right, but no matter: Rosenbaum had already ran Rittenhouse down when he decided to lunch for Rittenhouse’s weapon. Rittenhouse was clearly already trying to escape. That having failed, it turns out you can’t outrun a .223 round.

      IANAL, but best I can determine from quick review is that there is no “Duty to retreat” nor is there a “Stand your ground” law in Wis. My guess is that Binger is suggesting “Duty to Retreat” as a component of “reasonableness” component of self defense.

        Andy in reply to SHV. | November 4, 2021 at 3:40 pm

        Even with a duty to retreat, is he supposed to run 26.2 miles before it’s a legally completed attempt to retreat?

    Elzorro in reply to OnePingOnly. | November 4, 2021 at 3:49 pm

    The madman was catching up to him. Another second he would of tackled him from behind and taken his weapon and prolly hurt or killed him.

Judge needs a stopwatch. 15 minutes = 30 minutes, every time.

Redundant, boring, irrelevant, not probative. Yawn.

I don’t understand Binger’s preoccupation with Rittenhouse being 17. Who cares.

    I think Rittenhouse being 17 actually plays in his favor. A 17 year old would not be expected to have as good a judgement as a fully matured adult.

Having watched the same bumbling horrible no good unskilled prosecution at work in the Chauvin trial in the face of evidence that clearly points to not guilty, I’m not getting too vested in the right outcome here.

It depends on the jury. I have no illusion that anything we are watching matters.

A quick scan of the .gifs McGinnis uses on Twitter suggests he is well aware of the McConaughey resemblance.

“already a 5 am to 9 pm job”, we all appreciate the work you do, keep it up man

Binger: Did you feel like you needed to keep an eye on the defendant.

Yes and no. As young as he looked, general way he was carrying himself, protestors would have seen that as a weakness and tried to exploit that.

Did no one ever tell this idiot “never ask a question for which you don’t know the answer”?

Russ from Winterset | November 4, 2021 at 4:07 pm

Rittenhouse fired 8 shots. Four of them hit people who were attacking him and trying to take his rifle, and another one hit a person who had pulled a Glock on him and was threatening to shoot him. None of his shots, even the ones that struck attackers, struck bystanders.

Now we hear that his response to a “F#&@ You” from the crowd was “I love you too, ma’am.”

Forget this being a well done job of self defense, this kid would have performed well wearing a Kenosha P.D. uniform that night.

    All I’ve seen from this trial so far is a young lad that’s giving up his time to help protect property, scrub graffiti and going around and asking those who are destroying property, if they require medical.

    During doing these good deeds, he was hunted down and attacked and would most likely be dead today if he didn’t use the force he did, which was very minimal.

    Something very little stood out for me and has stuck in my mind. During the video where someone was interviewing him about why he was there etc. The interviewer said he had been exposed to pepper spray or something. Kyle then asked him how his eyes were and if he needed any attention. I don’t know why, but that just stood out for me. I guess it showed that Kyle is caring and compassionate and just wanted to help people. Just that little comment, was a great insight to his character.

Binger: This guy had finger on trigger, why concerned?

Hmm, how about because he’s not a complete f’ing idiot?

Binger: How often fired?

10-15 thousand rounds.

What a difference between that and “we fired a lot, 100 – 200 rounds” 🙂

Rosebaum: if I catch any of you guys alone tonight, I’m going to f’ing kill you.

Binger: Said it to defendant, too.

Defendant was there.
++++++++++++++++

Boom

    Cooper in reply to ksbsnowowl. | November 4, 2021 at 5:00 pm

    Then Binger tried to suggest that Rosenbaum didn’t act on his statements at that time as though that suggested he didn’t act on it later. When Rosenbaum said it, they were in a group. He acted when Rittenhouse was alone…JUST AS HE STATED HE WOULD.

Judge will have to issue No Doze and keep a pot of coffee going for the jurors to stay awake when Soy Boy is babbling on an on.
They case against the so called victims is better than anything against The Beeve.

Andrew, following the live blog, but where is the cross of McGinnis?

Someone tell this guy to stop embellishing his answers to Soy Boy.

I’m so glad we’re back to playing every single video for no reason.

The prosecution is supposed to be proving that Kyle was reckless, dangerous, there to cause trouble and intentionally killed people, right?

I’m asking only because they don’t seem to be trying to do that at all.

    Elzorro in reply to darwin. | November 4, 2021 at 4:49 pm

    Maybe he gets paid extra for in court litigation
    hours or something.

      akolasinski in reply to Elzorro. | November 4, 2021 at 5:29 pm

      I’m thinking he’s trying to run up Kyle’s legal bills, as his lawyers are probably being paid by the hour. The longer they sit there getting paid for doing nothing, the better for Binger.

        randian in reply to akolasinski. | November 4, 2021 at 7:29 pm

        “I’m thinking he’s trying to run up Kyle’s legal bills”

        That would make sense, if the actual purpose of this prosecution is process as punishment.

HAHA love the judge on hot-mic. “Oh man this seems like its going on forever”

on hot mic, someone “snapped a picture of the witness”? cant hear too clearly, just before the going on forever comment

As a member of the legal community and a citizen of this country, I am absolutely disgusted that this case is being prosecuted. I hope we get a directed verdict.

Do you think Binger’s endless questioning is part of a strategy to run up defense legal fees? I presume they are paid by the hour.

    I think its designed to just send the jury to sleep. So many pointless questions that add nothing to the narrative.

      akolasinski in reply to Decee. | November 4, 2021 at 5:31 pm

      But how does that help Binger’s case?

        defense talked to witness for a very short time, thats what he won

          GregTCT in reply to guiu. | November 4, 2021 at 5:56 pm

          Defense gets to start out the day tomorrow talking, as well as finish out today talking.

          So they’ll be hte last thing the jury hears today, and hte first thing they hear tomorrow.

          Not a win for the prosecution.

          You might want to try the postulate: Binger isn’t that good of an attorney

    I believe his strategy is to put so many immaterial facts into evidence that the jury we be confused as to what the material facts are that are necessary for them to find he has proved lack of one of the elements of self defense beyond a reasonable doubt.

NotSoFriendlyGrizzly | November 4, 2021 at 5:15 pm

Even the internet feed fell asleep…..

Schroeder just loves putting off decisions. He should have ended this pointless direct questioning hours ago.

Andrew, you’re labelling Richards as Binger a lot in your coverage of the final cross-ex

Binger should henceforth be referred to as Hamilton Burger”. Only people old enough to have watched “Perry Mason” will get that

    UnCivilServant in reply to darwin. | November 4, 2021 at 7:05 pm

    That’s unfair to Hamilton. He at least showed an interest in justice and dismissed prosecutions that were unwarrented once shown the evidence of such.

Is the judge ever going to make a decision on the possessing a weapon under the age of 18 charge? It appears he’s just going to let it slide through even though he said the law was overly ambiguous and was probably unconstitutional.

Objections can also alert jury members to pay more attention to a matter that may have escaped them.

Thank you, Mr. Branca for your coverage and legal insight into the ongoing trial.

Anyone else catch the part where Pros was asking about FMJ ammo and overpenetration? Sounds kinda like Pros is trying to show that the use of FMJ ammo has a risk of “overpenetration” for the Reckless Endangering charge.

A good trial attorney doesn’t object to every technical thing–sometimes the best evidence comes from letting witnesses say things that might otherwise be objectionable. So far, I can’t figure out whether the prosecution is incompetent or just evil for bringing such a ridiculous case.

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