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LIVE: Rittenhouse Trial Day 9

LIVE: Rittenhouse Trial Day 9

Parties have rested, jury excused for the day, final jury instructions to be argued today, closing arguments Monday

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 8: Prosecution’s Last Desperate Lunge for Evidence of Guilt

Our expectation for today is that the jury will not be at the courthouse (until they return on Monday for jury instruction, closing arguments, and deliberations) and that the lawyers and judge will finalize the jury instructions beginning at 10AM CT this morning.  I would be surprised if that process took more than 4 hours of the day.  I am presuming that we’ll have a live feed for today, as we’ve had for the trial and the pre-trial hearings.

As usual, you can follow our live streaming of today’s court proceedings as well as our live, real-time commenting of courtroom testimony and argument as it occurs, right here.



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 the courtroom video of it all.


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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After seeing Binger drone on and on for the last week, I will not be surprised if this takes a full day and part of Saturday.

    I would not be surprised if the prosecution magically found some more rebuttal witnesses and some additional blurry images to present

The prosecution promised two more rebuttal witnesses, so who knows. One to say he was not issued body armor, another to say he did not attend school (in AZ?).

I was wondering how likely people think the defense is to bring up in closing that there is no actual evidence that Kyle pointed his rifle at anyone that wasn’t attacking him or approaching him in an aggressive manner? The only evidence that he did was a video where an unidentified man claims he did, to which kyle responds sarcastically and walks away. Or a grainy, possibly inaccurate image that you can’t see anything clearly (at least I couldn’t) of him allegedly pointing his rifle at a known person that the prosecution did not call to testify to the truth of the matter. I hope the defense hits that hard, but I don’t know if they will.

    fogflyer in reply to jmare. | November 12, 2021 at 10:45 am

    Yeah, I was getting really pissed off when Binger kept incorrectly quoting Kyle and there was no objection. Kyle testified that he replied, “‘I did?” when the man accused him of aiming his firearm (that doesn’t have a laser BTW) at him. Binger kept saying Kyle said, “Yeah, I did.” That “yeah” definitely changes the meaning and makes it sound less sarcastic. Binger also left out the inflection that made it sound like a question. He did it repeatedly and I think maybe once the defense objected to it, but it wasn’t made clear to the jury that Kyle did NOT say that. Hopefully they were paying attention and caught it themselves.

    Observer in reply to jmare. | November 12, 2021 at 11:01 am

    Presumably the defense counsel will hit hard on the fact that the enhanced photo doesn’t actually show anything clearly, and they can’t even be sure that what it seems to show is accurate, since the enhancement process can and does distort images. The judge couldn’t see much when he looked at the photo, nobody else who has seen it has been able to see much in it, and the jurors aren’t going to be able to see much either. We know what Binger wants them to see, needs them to see, and will no doubt argue (repeatedly, as he is prone to do) that what they do see is Kyle pointing his gun at somebody. But it seems unlikely that he is going to be able to convince all the jurors that they see something incriminating in that fuzzy, blurred photo. And hopefully the defense counsel will remind them of the jury instruction that tells them that lawyers’ arguments are not evidence.

      Tom Servo in reply to Observer. | November 12, 2021 at 11:12 am

      After Andrew posted that “enhanced” picture last night, I realized this entire contretemps about the photo is nonsense. It doesn’t show anything at all to anybody.

      kelly_3406 in reply to Observer. | November 12, 2021 at 4:01 pm

      There is no way that a video from a single angle proves that Kyle was pointing his rifle at someone. Let’s assume for a minute that the video shows exactly what Binger purports it to show — that Kyle raised the gun to a higher elevation angle. But the azimuth angle of the gun is just as important for aiming. What direction was the gun pointed? Was he pointing the gun directly to his side (i.e. a 90-degree angle) or was he pointing it more forward (perhaps a 45-degree angle)? Without a video from a second angle, it is impossible to tell. Even if the enhanced video was clear, a logical flaw exists in the prosecution’s argument that the defense can exploit if someone remembers their high school geometry.

Am I the only one bothered that the defense never touched on the gun charge? Just seems like a free hit for the prosecution there.

    jmare in reply to Voyager. | November 12, 2021 at 10:36 am

    How would they have had someone testify to the law? Also, is it possible they are saving it for a compromise verdict, so those inclined on the jury so they can say they convicted him of something?

    f2000 in reply to Voyager. | November 12, 2021 at 10:37 am

    Prosecution’s burden, not theirs. But in general, they’ve seemed to be fighting on the prosecution’s terms, not theirs.

    Think38 in reply to Voyager. | November 12, 2021 at 10:40 am

    How would they do that? The factual matter is he had the gun. Whether the statute prohibits him from doing so appears to be a legal question of statutory interpretation. That’s a question for the judge to decide.

    In my view, the statute has some difficult construction, but WI does not appear to prohibit a 17 year old from carrying a rifle (but not a short barrel rifle).

    The defense needs to present the statutory interpretation as a flow chart to the judge. A flow chart can give meaning to every portion of the statute. At the same time, it would also show that a contrary interpretation would render provisions void of meaning (generally an impermissible interpretation). Again, these are not jury questions.

      Papinian in reply to Think38. | November 12, 2021 at 4:10 pm

      The statute is reasonably clear. It is the prosecution’s tortured reading that is confusing.

      aramissebastian in reply to Think38. | November 12, 2021 at 4:12 pm

      The interpretation I’ve seen on this site and others is that the applicable Wisconsin Statute (Section 948.60) only forbids people older than 16, but not yet 18, from possessing or carrying a short-barreled rifle as that term is defined under the National Firearms Act

      If correct, the judge should have dismissed the weapons charge as to this defendant, since he was over 16, and not carrying a short-barreled rifle, and not permitted it to be presented to the jury, since as a matter of law, it does not apply.

      So, what gives?

    There is not much to “touch” – Its a possession charge, and Rittenhouse admitted to possessing it under 18. Whether he’s convicted depends how the judge interprets the law and instructs the jury.

      luckystars33 in reply to dwb. | November 12, 2021 at 10:49 am

      The gun statute is one nobody understands. It says 16/17 yr olds are exempt.

        I read it. Clear as mud.

        luckystars33 in reply to luckystars33. | November 12, 2021 at 11:01 am

        Actually the exception is for 17 yr olds.
        Due to the US Constitution any male 17 yrs to 45 yrs is part of the US militia as per federal law.

        Papinian in reply to luckystars33. | November 12, 2021 at 4:12 pm

        The statue is very understandable. 16 and 17 year olds, may carry long guns, just as 18 and 19 (and 99) year olds can. Why that seems so hard for many people to accept is beyond me. I noticed that the judge himself got all mixed up. Hopefully he gets it sorted out.

    filiusdextris in reply to Voyager. | November 12, 2021 at 3:12 pm

    I have been speculating that one of the biggest reasons they had Kyle testify (they’re not dumb) is to win sympathy votes to help with the gun charges.

Yellow Pants was concerned about laser. Did Kyle have laser?

    fogflyer in reply to Rube. | November 12, 2021 at 10:48 am

    No. Kyle testified that no one in his group had lasers on their weapons.
    I think what happened is some of the guys on the roof were stupidly using laser pointers and pointing them at crowd to scare them.

      Capsaicin_Addict in reply to fogflyer. | November 12, 2021 at 10:54 am

      There have been cases of Antifa using lasers to try and blind cops.

        yep literally hundreds of such injuries

        refusal of local blue DAs to prosecute such attacks even led to some cross-deputization so attackers could be federally charged last year

        this year no more helpful Feds so riot cops are just quitting — wouldn’t you?

        Midfiaudiophile in reply to Capsaicin_Addict. | November 12, 2021 at 5:06 pm

        That’s something I noticed in Hernandez’s video, btw… they seemed to be specifically shining the laser at his body camera (which, admittedly, was directly over his heart, so it’s possible that it was coincidental).

        My thought at the time was that they were trying to either disable or temporarily blind the camera so they could get away with something beyond arson and property destruction, but not sure about that. It looked to me like it was coming from over the top of a fence and not from the roof of a building, so IDK.

The prosecution proved that Kyle Rittenhouse acted in self-defense. Consequently, they will call for conviction.
#DisbarBinger. #DisbarKrause

Mr. Branca, I’ve watched some of the video from this trial and read your summaries. It seems to me the prosecution never introduced evidence that Kyle was in violation of the hunting laws while hunting. If that’s so, since they acknowledge he didn’t have a short barreled rifle and he was over 16, shouldn’t the judge dismiss that charge for that reason even if he doesn’t dismiss it for being inapplicable or overly confusing?

Entertainingly enough I saw, Wikipedia actually has your legal interpretation of the statute reflected currently

    fogflyer in reply to hrlsswndr. | November 12, 2021 at 11:22 am

    Does anyone have a link to a full resolution copy of the controversial, enhanced video grab?
    The one Andrew has posted is obviously not full resolution as the text on the exhibit is also blurred.

The “enhanced” video still confused me for a long time. It’s pixel soup. It wasn’t until I read how the white dot about even with Kyle’s shoulder is being interpreted as his right hand that I could “see” Kyle pointing the rifle toward Rosenbaum. But that isn’t his hand, it’s a reflection off the hood of the truck which our brains trick us into thinking is his hand.

This guy nailed it, see both pics:

If Binger uses this hood reflection to convict Kyle, it puts him at the table of the worst monsters in history — to use faked evidence to destroy life for political purposes is nothing short of evil.

    I agree, also he’d of had to switch to left handed. My opinion is he has his hands up while saying friendly friendly friendly because he was caught off guard. Hence the carefully setting down of the fire extinguisher.

I really like this Judge. I know he blew an evidentiary ruling the other day on the pixelated pics (which I think are so inconclusive/irrelevant anyway that they will have no effect on the Jury).

But his instincts are good, which is to let most everything “in” and let the lawyers hash out the effect /credibility through cross and summation.

Also, do not underestimate the importance of a Judge having an even keel and good manner to keep a Jury happy and not too stressed. These are the things that help a well-meaning jury (which I hope they are) keep their eye on the ball.

The whole “pointing the gun at Ziminski” is just a red herring.
Even if he did, how does briefly pointing a gun at Ziminski, who has a gun in his hand, negate Kyle’s right to self defense against an attacking Rosenbaum?

    Think38 in reply to fogflyer. | November 12, 2021 at 12:43 pm

    As a legal matter, you are correct. As a jury matter, who knows what the jury thinks.

    darwin in reply to fogflyer. | November 12, 2021 at 1:41 pm

    Th persecution didn’t come up with this until a day or two ago. If they thought it had happened, they would have had Zaminski or SOMEBODY to testify about it

    Observer in reply to fogflyer. | November 12, 2021 at 5:43 pm

    Yes, it doesn’t seem that it would amount to “provocation” that would negate Kyle’s self-defense claim, since even if the jury accepts Binger’s argument that Kyle did point the gun at Ziminski, Rosenbaum wouldn’t have had the right to chase Kyle down and attack him in defense of Ziminski’s life, because once Kyle started running away, the threat Kyle (allegedly) posed to Ziminski’s life was over.

    Maybe Binger just plans to use it to impeach Kyle’s testimony, arguing that since Kyle lied about pointing the gun at Ziminski, then you can’t trust anything else he said. But that’s not going to be much help to Binger either, since there is independent corroboration of Kyle’s testimony about the shootings from multiple other witnesses, as well as the videotape evidence.

There have been so many abysmally-bad social media legal “takes” on this case, I’m really hoping that if you get a minute to catch your breath you’ll put together a #BadRittenhouseTakes compilation for us to marvel at. There’s so much free material out there, much of it unintentionally hilarious.

I do appreciate everything you’ve done so far – your coverage has been 💯.

Who is Binger calling for advice?

I am confused on the attribution of who is talking in Andrew’s realtime transcript.

What? These charges make no sense at all.

OMG. If in a self defense shooting you don’t shoot once, and wait “for effect” it’s now ‘reckless”? How could the defense not have included in its use of force expert the concept that in ANY self defense shooting the shooter can and typically should fire a volley of shots, attempting center mass, and cannot EVER, reasonably stop and wait for effect.

The entire prosecution theory of “reckless” is factually and legally preposterous –unless Kyle threw a hand grenade or similar.

    Think38 in reply to xnycp. | November 12, 2021 at 12:46 pm

    The jury should decide whether the follow-on shots were justified or not. What stunned me yesterday is no expert testimony about shooting until the threat is stopped. If an expert couldn’t testify, then the defense should have been using training material from the Kenosha Police Department or another police department about when, how and how long to keep shooting.

    It’s absurd to think someone can recognize what is happening in less than 1 second.

unfortunately not sure a fair trial is in the cards for anyone these days

1) justified shooting of a Democrat client group
2) Democrats and and their left-wing proxies (brownshirts) riot
3) elected Democrats refuse the bring in the Guard
4) Kyle shows up instead, b/c if he doesn’t Democrat brownshirts burn Kenosha
5) Kyle is attacked and nearly killed by Democrat brownshirts for interfering with their rioting
6) having failed to kill him, Democrats settle for falsely charging Kyle with murder
7) Democrats threaten more rioting if Kyle isn’t falsely convicted of murder

as with Negroes in the late 1800s, it’s still legal to be a Republican in Democrat areas, but only if you don’t defend yourself

Judge is trying to railroad Kyle.

Thus far, this is not going well for Rittenhouse. The lessor included on recklessness would be a HUGE out for thy jury if there are some who are demanding a conviction on something.

goddessoftheclassroom | November 12, 2021 at 11:36 am

The right to self-defense vs. “utter disregard”…I’d better not protect myself from certain death because I just might shoot someone nearby,

Binger just relayed his message from the lawfare scheme team.

Note to self: when a judge asks “Why?” answer with the why, don’t just say “because it does”…

If I am following this correctly KR WALKS. It’s all or nothing on the intentional charges. If justified self defense, a complete defense. Game. Set. Match.

The prosecution now seems to believe, after all the evidence has been presented that they have overcharged Rittenhouse. And it appears that the judge is saying that even the lesser charges are an overcharge.

All this is because Richards put Kyle on the stand.

I’m not an attorney, but this “if the jury does not convict on the charges, they can convict on lesser” strikes me as nonsense. How can they convict on a charge that has not been presented? Is there any other country that allows this? Or is allowing the prosecution to throw in a shotgun blast of lesser charges that have not even been argued before the jury the same bull as American “plea bargaining,” which is recognized as unlawful extortion everywhere else?

    Fat_Freddys_Cat in reply to PBM. | November 12, 2021 at 12:14 pm

    I agree. It strikes me that it basically gives the State another bite of the apple, and they already have too many advantages. What legal principle says “well, gee, we’ve got to let them convict on something“?

    Mister Logic in reply to PBM. | November 12, 2021 at 2:18 pm

    “How can they convict on a charge that has not been presented?”

    They cannot. But the discussion today about the various lesser included offenses was about whether evidence was presented that could, if believed, support a finding of guilty by the jury. In other words, by allowing the jury instruction on the lesser included, the judge will have to conclude that there was at least some evidence that was presented during the trial.

How do these reckless charges help Kyle and the rest of the Americans?

Defense Not Prepared.

Krouse is an idiot. He doesn’t even understand the title of the statute isn’t part of the statute.

Pardon me boy. Is this the Kenosha Choo Choo?

Kraus is still trying to prove the state has a case. That photo…last piece of evidence???? Geesch…they still had no evidence at all.

The defense definitely asked someone testifying SPECIFICALLY if they had any reason to believe this was a short barreled rifle. They used those exact words! I sure hope they read they transcripts and correct themselves before it’s too late.

    lurker9876 in reply to fogflyer. | November 12, 2021 at 12:30 pm

    I think the point is that the judge told Kraus that his team failed to ask about the length of the barrel, which is included in the exemption to 29304. Since Kyle’s rifle is longer than a short barreled rifle, he meets the criteria for the exemption. The judge made a comment about the defense’s instructions, which I don’t understand yet.

Kraus is revealing their closing arguments.

Midfiaudiophile | November 12, 2021 at 12:39 pm

Judge understands the technology better than any of the lawyers or the Prosecution expert.

Holy cow, the defense just implied that the prosecution expert witness was tampering with evidence, and the prosecution did not even object.

Midfiaudiophile | November 12, 2021 at 12:44 pm

If the picture is the least important factor in their provocation charge, why did they argue to get it in for hours.

For the love of God, why can’t they put lapel mics on everyone so you can actually HEAR them?

    TargaGTS in reply to 62joker. | November 12, 2021 at 1:11 pm

    The mics are fine. The problem is they have a human being physically muting/un-muting the specific mics. They’d have the same problem with body-mics.

The STATE PERSECUTORS are members of a circular firing squad !
binger et al are prime examples of IRRATIONAL INSANITY !

Can someone explain exaction what the provocation instruction looks like?
I just can’t see how requiring the prosecution to show that Kyle provoked the attack hurts the defense.

    fogflyer in reply to thad_the_man. | November 12, 2021 at 1:35 pm

    It is a way to undermine the self-defense claim.
    The jury could conclude that Kyle was indeed in fear of imminent great bodily injure or death, which would normally justify lethal force, but because Kyle PROVOCTED the encounter, he can not claim self-defense and is guilty.

      Think38 in reply to fogflyer. | November 12, 2021 at 2:35 pm

      If Kyle provocted the encounter, he loses his “innocence” and generally cannot claim self-defense. However, that innocence can be regained in one of two different ways.

      First, if he is in fear of losing his life, by exhausting all alternatives to the situation.

      Second, by withdrawing from the fighting and give notice of his intent to do so.

      The first would be satisfied by answer “was there anything else he could do (besides shooting)?”.

      The second appears to be met here by yelling “Friendly! Friendly! Friendly!” as he ran away. from Rosenbaum.

      Here is the statute:

      Provocation affects the privilege of self-defense as follows:
      939.48(2)(a)(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
      (b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.

    LetsGoBrandon in reply to thad_the_man. | November 12, 2021 at 1:45 pm

    As I understand it, and I am not a WI lawyer, provocation is part of the WI law that negates a self defense argument. Even if you satisfy all the other elements, if you provoked the attack, you may give up your right to defend yourself. If you provoked while doing something legal, you could recover your rights. If your provocative action is illegal, you do not recover. This is a pretty big deal.

    If Kyle provoked Rosenbaum by illegally pointing his weapon at Ziminski, the provocation was an illegal act and he loses his right of self defense to the resulting actions.

      LetsGo, see above post that explains and cites how he could recover his right to self defense.

      The State needs prove beyond a reasonable doubt that neither of those two circumstances applied.

      snorkleboop in reply to LetsGoBrandon. | November 12, 2021 at 2:57 pm

      “If Kyle provoked Rosenbaum by illegally pointing his weapon at Ziminski, the provocation was an illegal act and he loses his right of self defense to the resulting actions”

      More importantly, it gives the jury an opening to argue about more general provocation by simply being there. We know that’s legally invalid. The judge knows that’s legally invalid. The defense and prosecution know that’s legally invalid. Even the jury knows it’s legally invalid.

      But it fits the narrative from the media, and there just might be a juror who believes that narrative. Defense should have fought much harder to keep that discussion off the table entirely.

The last minute submittal of this video did not give the defense team a chance to challenge it. Agree with AFB.

Oh Goody. The evil murderer Kyle and the Judges are hanging out together watching TV. Is something wrong here? Kyle is the closest person to Judge Norton with no protection.

    Layman101 in reply to Elzorro. | November 12, 2021 at 2:52 pm

    Good point Elzorro.
    You think if Fatlock and Binger really believed KR was so dangerous as to intentionally kill people thay would object to him hovering over a sitting judge. Literally and figuratively

TaxPayingPatriot | November 12, 2021 at 1:08 pm

Didn’t the prosecution witnesses testify that rosenbaum threatened Rittenhouse? Sworn testimony … sure better if recorded but it’s out there. Quibbling over the angle of a gun from 1000 feet on a crappy video seems questionable. A fraction of a degree changes where it’s actually pointing.

    exactly. even if the firearm is visible, is the muzzle pointed or the buttstock pointed at someone? If it were the muzzle, when did the defendant transition from left to right, or when did the defendant turn with back to front?

Incompetant defense.

    TargaGTS in reply to Elzorro. | November 12, 2021 at 1:18 pm

    Ineffective assistance of counsel sure seems to be a valid point for appellate exploration, IMO. So many failures not the least of which is having the detective measure the weapon and its barrel on cross-examination. Hopefully that isn’t a fatal error on the gun charge.

      A Thinker in reply to TargaGTS. | November 12, 2021 at 1:45 pm

      The burden is on the prosecution to disprove. No reason for the defense to remind the prosecution. The Judge noted that the prosecution did not enter evidence that it was less than 16 inches. If the statute is interpreted literally, there can be no conviction on the count. This is where Krause arguing the title shot the prosecution in the foot.

      fogflyer in reply to TargaGTS. | November 12, 2021 at 2:24 pm

      The defense did ask someone, I think it was the female cop, specifically if they had any reason to believe the weapon was a short barreled rifle. They used the exact words “short barreled rifle.” It seems the defense forgot they asked this question when arguing their point this morning though.

      Still, it appeared at the end that the judge sided with the defense for the most part, but I guess he didn’t throw the charge out as I was hoping. Anybody know what actually happened with that?

    john130 in reply to Elzorro. | November 12, 2021 at 1:42 pm

    incompetent in that they let the defendant take the stand.

This judge is so fucking bad. Acts good then gives the wrong rulings over and over and over

even if the firearm is visible, the defendant would to have changed the butt stock position from his left shoulder to his right shoulder before shooting Rosenbaum and that transition form left to right is not seen in the video. Mr. Ritten house is right handed.

“notes reduces risk of a second trial due to a hung jury” So basically we offer a slew of lesser charges because we want the jury to convict on anything rather than have a hung jury? That’s the way the system is supposed to work?

I can’t believe that Kraus is actually arguing that Rosenbaum does not give up his right to be provocted (that provocation being Kyle putting a gun a an armed Ziminski) just because he threatened Kyle’s life twice, but that Kyle gives up his right to self defense if he pointed his gun briefly at the armed Ziminski.

Unfortunately the judge bought into this enough to allow the provocation instruction to go to the jury.

    fogflyer in reply to fogflyer. | November 12, 2021 at 2:32 pm

    Wow! What a poorly worded and misspelled post that was!
    I need to proofread my posts better before hitting that submit button.
    It’s so ugly I feel guilty it received any upvotes🤣

      Colonel Travis in reply to fogflyer. | November 12, 2021 at 3:00 pm

      All of us who comment regularly here know the frustrations of not having an edit button. I’m not the only one to feel your pain!

I have had enough. The thing to do if ever a communist mob comes to your area is to evacuate. Gather all your important possessions and rent a trailer and get out of the area until it is over and safe to return. If you attempt to defend your self, home, property, or city from the leftist troops you run the risk of being put in jail for life as a political prisoner. Govern yourselves accordingly.

    Voyager in reply to Elzorro. | November 12, 2021 at 2:22 pm

    Vote in DA’s and Chiefs of Police who will drop the hammer on the mob. And don’t stay in areas run by Antifa officials.

    This is entirely on the State do Wisconsin for putting parlour pinks in charge of their government. And, if they succeed here, it will get worse there.

    Russ from Winterset in reply to Elzorro. | November 12, 2021 at 2:27 pm

    The “three esses” applies.

    Shoot, shovel, shut up.

    RandomCrank in reply to Elzorro. | November 12, 2021 at 3:36 pm

    You can defend yourself, and to some extent your property, but gun ownership does not make you into a police officer. I don’t think Kyle was doing that, but he did insert himself into the riot. I’m perfectly okay with that, but as a practical matter it’s a huge risk. Past that, as a carrier, I know that I’m very solidly in the mainstream of carriers in saying that open carry makes the carrier into a target and should be avoided.

    In Kyle’s case, open carry of the rifle was the only legal option. WI law allows it, notwithstanding the prosecution’s arguments. But look at the result. Can anyone honestly say that, apart from any legalities, Kyle didn’t make a huge practical mistake by going there? This is NOT me siding with the prosecution, but only being realistic.

    Whatever the verdict, Kyle was correct when he said after (justifiably, IMO) defending himself, “my life is over.” That, young man, is true. If you are acquitted, the first thing to do is change your name. And then move far away.

      Think38 in reply to RandomCrank. | November 12, 2021 at 4:23 pm

      Kyle made a mistake in the sense of hindsight of “I wish this didn’t all happen.” It’s the sort of logic that if you get in a car accident driving to the grocery store to get milk, you question yourself on whether you need to get the milk. Human nature to do so.

      Going into a riot is a bit like deciding you are going to grocery store in a snow storm. There is an elevated risk of something going wrong.

      These aren’t legal matters.

        RandomCrank in reply to Think38. | November 12, 2021 at 4:48 pm

        If you take the snowstorm risk, at least there’s a potential reward: the milk. In this case, a better analogy would be that Kyle did the equivalent of drinking at the office Christmas party: all downside risk.

        I’m on his side, yet I think he has to be asking himself why he went there to begin with. Yeah, I know why, but he didn’t think it through on the practicality front. Trust me, I’d acquit him and take him and his mother to dinner. Somewhere between the entree and dessert, I’d lean over and say, “You didn’t do anything wrong, but for your own sake I recommend never doing it again.”

          Think38 in reply to RandomCrank. | November 12, 2021 at 6:39 pm

          Yes, but in some sense I am glad some people are willing to take risks in order to make our communities better. How much more destruction would have occurred, for example, if the different groups had not shown up to protect different properties? How long would that have continued? Individually, yes, they put themselves in harm’s way. Collectively, we are better that people are willing to make their communities better.

          RandomCrank in reply to RandomCrank. | November 12, 2021 at 6:54 pm

          The jury can do what it wants, for any reasons good or bad.

Sadly, with all the “lessor included charges” that the Jury will now be allowed to consider I see a good possibility that Mr. Rittenhouse will be convicted of “something” and will be spending the next few years in prison. I am sure since its been well reported on TV, cable and written about in print that he (Mr. Rittenhouse) is a “white nationalist” that prison might be a rough time for him (not that it wouldn’t already be).

Anyone find it interesting that after the incident of the person trying to video the jury, that Fatlock keeps getting texts trying to get people off of it?

What do you bet there is a concerted effort out there to get jurors removed because of political beliefs.

Just a thought on the judge’s ruminations on the beneficial aspects of repeatedly viewing videos. What I would like to see is the publication on the internet of the raw HD drone video. Unedited, un-enhanced, “Just the facts, Ma’am.” (Personally, I’d like to see the raw video, cropped to the narrow area of interest, in slow motion, with no interpolated pixels added, but with level and contract of original pixels adjusted, covering the period from the entry of Rittenhouse to the area by the sign through the time of his turning to begin the pursuit through the lot. ) Then see what the multitude of video geeks amongst us can come up with, while having to defend their methodologies, algorithms, and conclusions subjected to stringent peer review. Let a thousand flowers bloom, as one of the heroes of the left famously said. The video is in the public record at this point, is it not? I’d even give the Woke “fact checkers” a “kick at the cat”. Seems like this is bound to happen sooner or later. The sooner the better.

    I am curious too, but I have to say, if I’m on that jury I could give a rat’s ass whether Kyle pointed a gun at Ziminski or not. It would not effect my determination that Kyle engaged in legal self defense.

    RandomCrank in reply to Fiat Justitia. | November 12, 2021 at 3:48 pm

    In the end, I don’t think the videos will matter very much, if at all. I think the jury will make its decision with other criteria.

Do we know if they’re done for the day or if they’re on lunch? Motions??

The request for lesser charges by the prosecution should signal to the judge that a directed verdict is in order. The prosecution is admitting they have no case supporting the original charges they insisted on taking to trial.

No need for the jury. The prosecution has declared it thinks they will find Kyle not guilty.

Directed verdict — not guilty. Let the jury know they need not plan on coming to court next week.

So, if the use of a firearm to shoot Rosenbaum was legally justified as self defense, but could still be considered reckless as to McGinnis, who was in the vicinity, would Kyle at least be entitled to a “sudden emergency” type of instruction?

    fogflyer in reply to Mister Logic. | November 12, 2021 at 2:52 pm

    Who in their right mind would conclude that someone engaged in a legal self-defense shooting at point black range was being reckless if there happened to be some people somewhere behind the threat? Insane.

      TargaGTS in reply to fogflyer. | November 12, 2021 at 3:20 pm

      Who in their right mind would conclude that George Floyd died of anything other than Fentynal intoxication after injecting 3x the lethal limit of Fentynal? And yet, here we are.

      To paraphrase Mencken: No one has ever gone broke underestimating the intelligence of a jury.

        Midfiaudiophile in reply to TargaGTS. | November 12, 2021 at 3:28 pm

        For better or worse, the state in that case had like 10 medical experts who were willing to state under oath that the fentanyl had nothing to do with the death. Personally, I think that they were, at best, greatly exaggerating their confidence in that finding… but I can’t entirely blame the jury for believing them. Centuries of medical experience in front of you, it’s difficult to say “No, no, I don’t think that’s right”.

        fogflyer in reply to TargaGTS. | November 12, 2021 at 4:44 pm

        I actually don’t believe he did die of Fentanyl overdose. I don’t think Chauvin’s knee had anything to do with his death though. I think heart failure is the most likely cause. A combination of drugs, heart disease and overexertion took him down.

      Mister Logic in reply to fogflyer. | November 12, 2021 at 3:35 pm

      Well, the judge seems to have concluded that that is possibly by giving the reckless charge as to McGinnis. I am just asking, if that is the conclusion of the judge, would Kyle not be entitled to a sudden emergency instruction that tells the jury that Kyle is only held to the standard of a reasonable person when confronted with a sudden emergency rather than someone who has sufficient time to deliberate, assuming of course that they find there was a sudden emergency in the form of Rossenbaum attempting to assault Kyle.

        fogflyer in reply to Mister Logic. | November 12, 2021 at 4:46 pm

        I wasn’t contradicting you, just pointing out my belief in the absurdity of it all.
        Not being a lawyer, I don’t know what the sudden emergency instruction is.

Russ from Winterset | November 12, 2021 at 2:35 pm

Binger and his fat little buddy are going to be the new poster boys of why people effing hate lawyers.

    This is why people hate, and should hate, unrestrained government power. Unrestrained government will always attract and be run by unprincpled people. When you have actual law, and lawyers (like those defending Kyle) you have a fighting chance.

I have thought that the defense had it in the bag, but not anymore. The judge’s procedural rulings were gifts to the prosecution. If the jury convicts, it will be on the lesser charges — unless he rules for the defense motion to declare a mistrial with prejudice.

I’m not a lawyer, so watch me be wrong, but I think the judge would’ve done so on Wednesday. If the jury convicts, they’ll do so because they want to penalize Kyle for being there at all.

I would acquit, but I’m not on the jury. To me, it underscores something I’ve thought about a lot since the riots started. We live 80 miles from Portland, Oregon, and have to go there about once a month for various utilitarian purposes. I bought a dashcam and a bodycam for those trips, and studiously avoid the areas where the antifa riots have taken place.

I tell people that police, prosecutors, judges, and juries tend to be unsympathetic to people who insert themselves into an altercation and then claim self defense, no matter how justified. To me, the law is on Kyle’s side, but I won’t be surprised if the jury sees it differently.

    RandomCrank in reply to RandomCrank. | November 12, 2021 at 2:59 pm

    Don’t interpret my comments as supportive of this travesty of a prosecution. Quite the opposite, on steroids. But I’d point out that this is taking place in the Midwest, where I was born and raised. Midwesterners tend to be realists, and it’s my realism that makes me prepare for bad news. Also, Midwesterners tend to want to split the difference, and those rulings seem to open a clear path for the jury to do exactly that by convicting on lesser charges.

    I don’t like it at all, and strongly hope that I am worrying too much. If I were on the jury, he’d be acquitted, and I’d want to take him and his mother out for dinner. We shall see how it goes. I have high hopes for an acquittal, but my hopes + $3 are worth a grande Americano at Starbucks. We’ll see.

The provacation instruction contains instruction on provacation and instructions on provacation “with intent.” If the judge decides to use the provacation instruction then he will have to decide whether to use the regular provacation or the provacation with intent instruction. This is why the defense doesn’t want the provacaton considered at all. Finding provacation with intent blows the whole defense of self defense, while finding mere provacarton does not blow the defense, it just requires a retreat instruction.

    Think38 in reply to bigo. | November 12, 2021 at 4:29 pm

    The provacation “with intent” that you are referring to is a provacation with the intent to use it as an excuse to use deadly force.

Colonel Travis | November 12, 2021 at 3:03 pm

The closing argument by the state will induce so much vomiting.

This ‘trial’ and the conduct of these prosecutors has done more to disabuse me of the notion that we have a rational legal/justice system than I could have possibly imagined. Regardless of the verdicts the jury renders, the sheer amount of heads I win, tails you lose cynical and deceptive a$$hattery on the part of these two clowns boggles the mind. In the real world, the arguments they make are patently absurd.

    The Friendly Grizzly in reply to JorgB. | November 12, 2021 at 4:33 pm

    Our legal system has stunk for decades. It is not a case of guilt or innocence. Justice is a myth.

    It is “how good a magician is my lawyer?” You hope like hell your magician is Doug Henning and the persecution’s is a declining magician for birthday parties.

    There is an oft-used phrase of “the process is the punishment” and that is correct. Get busted for something and you lose your life savings, your home, your car, and practically the clothes off your back. If you somehow come out the other end of things with a not guilty verdict you have… nothing.

    I am asked, every year, to play Santa. NOT ON YOUR LIFE. All it takes is ONE kid being funny about “mommy he touched me!”, or a flaming feminist mother to make a false charge, and I lose everything. Forget it.

      aramissebastian in reply to The Friendly Grizzly. | November 13, 2021 at 6:10 am

      I doubt we’re on the same page ideologically, but do agree with you to this extent . . .

      It has been said that ‘the power to prosecute is the power to destroy,” precisely because of the expense involved, the reputational injury, and the emotional toll, even if you are ultimately exonerated.

      As far as the rest of your post, I do agree with you that prudence is the best approach, and it’s precisely in the lack of the exercise thereof that this defendant put himself in jeopardy, sympathize with him or not.

I’m just sneaking in here. Haven’t been able to watch the show persecution today. So, what are they trying to do? Convict Kyle on lesser charges that deviate from the original charges?

If so, I’ve always thought if a DA was so confident of the charges originally brought on the defendant, there would be no need to offer lesser charges after the facts are known.

I remember back when they tried to get me on 1st Degree Felony Assault on a Police Officer (doing private security in uniform) just over 40 years ago and wanted to lock me up for 40 years. Immediately after the pre-trial, the DA approached my lawyer and wanted to plea down to a misdemeanor and 3 months in County.

    RandomCrank in reply to Elder Son. | November 12, 2021 at 3:40 pm

    I think the prosecution knows that its only hope is that the jury convicts on lesser charges to express a view that Kyle should have stayed home. It’s an invitation to split the difference, and I will not be surprised if it works.

The idea of “recklessness” here is tantamount to a principle that one can never shoot in self defense if attacked by a mob. When will there not be someone “possibly behind” the attacker in a mob? One could go further and point to the historic/common sense fact that a good portion of the most deadly attacks are those of multiple attackers. This is a case of “if not now, when?” That is, if one cannot shoot to defend against mob violence, there is no right to self defense.

A charge of “recklessness ” in this context is not a “lesser included” charge, but entirely negates the right of self defense. It should not be on the verdict sheet as a matter of law (unless, as I noted elsewhere) Kyle was lobbing grenades.

    c_programmer in reply to xnycp. | November 12, 2021 at 4:16 pm

    The states entire basis is that there is no such thing as self defense, at least not in practice. In this trial so far the state has argued:

    1. Kyle did not KNOW that Grosskreutz was going to pull the trigger, so it wasn’t a reasonable threat.
    2. A defender is a threat to their attacker and may even be MORE of a threat provided the defender has a more capable gun. Apparently that invalidates uses of force.
    3. Not risking death or bodily harm to give medical aid to the person you shot shows disregard for life
    4. Having a gun at all is provocation
    5. Being stripped of your gun by an attacker does not create a reasonable fear of death
    6. As you pointed out, shooting anyone in any way in a mob is inherently reckless

    This whole trial is just a look into what the left wants self defense to look like, as well as court process in general. There is no use of force of any kind that can pass the scrutiny Binger wants applied here.

    RandomCrank in reply to xnycp. | November 12, 2021 at 4:22 pm

    Not quite. If he’s convicted, it’ll be not on the facts or the law, but on the circumstances. The jury will be saying what self-defense advisors tell all carriers: stay out of fights while carrying. I’d acquit, but the reality is that Kyle inserted himself into a riot and open-carried a rifle. Police, prosecutors, judges, and juries tend to frown on that and ignore justification.

    Rant and rave about that — I will, if he’s convicted — but it won’t matter. In the practical world, Kyle took huge risks without any reward. I thought he did well in court, but it will not surprise me if the jury ignores the facts and the law.

      The problem is that for civilization to continue to flourish and exist people have to act like Kyle did. They have to go into danger to help their neighbors — and even more-so now that our government is corrupt to the point of merely being the armed wing of a particular political movement and cannot be relied upon to perform even the most basic functions.

The Friendly Grizzly | November 12, 2021 at 3:59 pm

Alllll….righty. The jury is out for the weekend. How about some questions?

1) If riots and looting break out, will the police do anything, or will they be obedient, follow orders, and stand down?

2) Have the jurors ANY form of protection? Any guards? Any security? Or, are they stood down as well?

3) Are Kyle’s parents in a safe place?

4) If Kyle is acquitted, or convicted of a token charge and given a time-served sentence, how will he make it safely out of the court house?

5) What becomes of his life? I am not so much thinking the retaliation from BLM, ANTICA et al, but what the press will do to him?

Your thoughts?

    6) Isn’t there anybody out there hoping for an acquittal? Doesn’t anybody at all think Rittenhouse is innocent? Does everybody really support ADA Binger and will they riot if Binger doesn’t do a bang up job?

      The Friendly Grizzly in reply to UserP. | November 12, 2021 at 4:53 pm

      I hope you dont think my comment is supporting the prosecution. I am being a realist, UserP. My own family went through a clear case of a “righteous” shooting back in 1968, but, it was an election year, and the family member involved shot an exalted minority. His defense counsel stunk.

      With respect, please do not buy into this idea we have a justice system; we don’t.

    Colonel Travis in reply to The Friendly Grizzly. | November 12, 2021 at 4:37 pm

    If he is acquitted it will be impossible to lead a normal life. This is the highest profile self defense case since Zimmerman, and that was about 10 years ago. Someone tried to murder him. Lots of people see both as good guys. Enough do not that it will follow them forever.

    As long as he’s not post trial Zimmerman, he’ll be fine.

    If he’s smart, he’ll be the Gray Ghost and stay out of the lime light.

Is there anyone representing Kyle at the trial? I sure haven’t see it.

aramissebastian | November 12, 2021 at 4:27 pm

The interpretations I’ve seen on this site and others is that the prohibition against 17 year olds possessing rifles, only applies to short-barreled rifles, and not the AR-15 possessed by the defendant.

If those interpretations are correct, the weapons charge should have been dismissed.

Why wasn’t it?

    The judge made reversible error on a legal issue. That may accrue to Rittenhouse’s benefit. He may be convicted on this charge, and get it overturned on appeal (as the action in question is not a crime). By having a lessor charge available, if the jury tries to compromise, this could be the item they solidify around.

      aramissebastian in reply to Think38. | November 12, 2021 at 5:32 pm

      What is your basis for saying the judge made a reversible error? After all, he’s a very experienced jurist, with decades on the bench.

        The judge incorrectly applied the statute on carrying a rifle. The fact he has been accused of — a 17 year old carrying a 20′ inch rifle — is not a crime in WI. As a question of law, a subsequent court has de novo ability to correct this determination. De novo means without deference to the prior ruling.

I really do not understand the “lessor included charges” bit. I understand the prosecution wanting to salvage a losing case by getting something for their efforts. What I do not get is what advantage does accepting these give the defense?

The ONLY advantage I see is it demonstrates to the jury that the prosecution has no case and is now grasping at straws.

As the prosecution’s case is so weak, the defense should be standing pat on a strong hand, forcing the jury to either convict on the original charges or acquit. A conviction should be easily overturned.

Maybe Mr. Branca can enlighten us about this.

The prosecution has repeatedly insinuated that Kyle used deadly force in the protection of property by pointing his gun at people. There’s a difference in “using” force and “threatening” force, If you read the Wisconsin defense of property statute carefully (939.39) it means the privilege of using a threat of force or actual force to protect property. But it only prohibits the actual use of deadly force in the protection of property. It conspicuously omits a prohibition on the threat of deadly force. Not a lawyer, but that’s my reading of the statute.

    Excellent point AuricGold. Here are what I think are the relevant portions of the statute section;

    939.48  Self-defense and defense of others.
    (1)  A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

    * * *
    939.49  Defense of property and protection against retail theft.
    (1)  A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person’s property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one’s property.
    (2) A person is privileged to defend a 3rd person’s property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person’s property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant’s employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
    939.49(3) (3) In this section “unlawful” means either tortious or expressly prohibited by criminal law or both.

    If Kyle were pointing his weapon at Ziminski and he did so to protect himself, he’s clear. If it were to protect the autodealer’s property the privilege might not apply.

The prosecution has been reduced to using a very blurred blown-up still from a video as evidence. A still that shows basically nothing, And they are asserting that this proves Kyle pointed his rifle at someone and that this provoked Rosenbaum and the mob to attack him.

They’re basically giving the jury a Rorschach test image hoping they’ll see in it what they want the them to see. This also gives jury members who want to find Kyle guilt something to use during deliberations.

However, since their ‘evidence’ is basically a Rorschach test image it’s hard to see how everyone on the jury would see it the same way and find Kyle guilty of murder on that basis.

So they’re hoping for either a perfect storm runaway jury, an intimidated jury, or a hung jury.

In asserting this Rorschach image is evidence of provocation they seem to be conceding that Rosenbaum attacked Kyle. However, they argue he was provoked by Kyle when Kyle did something they have not established Rosenbaum could have seen. They’re hoping this ‘evidence’ erases, beyond reasonable doubt, Kyle’s self defense claim.

This is insane.

If by chance the jury finds Kyle guilty I cannot image an appeals court coming to the same conclusion as the jury when examining Binger’s Rorschach test image.

The judge really should have issued a directed verdict. The prosecution has all but openly admitted they have no case. If this wasn’t a political trial it either would have never seen the inside of a courtroom or the judge would have long ago ended it either by declaring a mistrial with prejudice or by directed verdict.

I wouldn’t give this judge a profile in courage award. He knows Kyle should be found not guilty.

Provocation that the defense barely fought brings “Gun was provocation.”
The kid is being railroaded like we orginally expected, and by his own team. He would have been better off in Pro Se.

    aramissebastian in reply to luckystars33. | November 13, 2021 at 4:08 am

    Surely, you jest.

    I would never recommend that any criminal defendant proceed pro se, let alone an adolescent.

    That is a recipe for disaster.

I am firmly on Kyle’s side, but offer two links. As part of obtaining my concealed carry permits, I studied them closely. I think Kyle satisfied A O J (see the links), but the following made a definitive impression that I took to heart:

“Showing that you were the “innocent” party is also fairly straightforward in most cases. If you don’t habitually get into bar brawls or yell at other people, if you’ve learned to deal with beggars by saying no and walking away, if you don’t get involved in road-rage incidents — all of these are commonsense things your mother probably told you, and although mom probably didn’t know it she was giving you sound legal advice. If you did not willingly participate in an altercation or egg it on, the court will see that you were an innocent party.”

Yes, Kyle was under attack, and I think his actions were not only legal but admirable. But I can easily imagine the jury focusing on his presence at the scene and punishing him for that. I won’t like it, but I will understand it. Bottom line: When armed, avoid trouble. If he’s convicted, I think that will be why. Not this or that video, but his mere presence. A bitter pill, but life can dish out some mighty bitter medicine.

Carriers, don’t make the same mistake.

Usually I wait to read Andrew’s summary of the days events. This thing about recklessness in defending yourself seems absurd. He is the expert on self defense.. that must have been a topic that he covered… I hope he can explain it..

First comment on this site in ages. Just going to say it… The defense team let Kyle down. They blew this case. Failed to properly prep Kyle for cross. Never should have called him in the first place. Totally unprepared for jury instruction arguments and lesser included offenses.

When the State rested there was literally no evidence against Kyle’s defense whatsoever. Now, the State has Kyle’s own words, and a laundry list of terrible jury instructions and lesser included offenses for which the defense was totally worthless.

My money is on Kyle being convicted on at least one serious/major felony. It looks to me like this defense attorney botched this defense.

I know I’m alone on this. But that’s my gut feeling. Hope I’m wrong.

Given what Poindexter and Curly have done so far I’ll be amazed if there isn’t more trespass in their closing that tips the undecided motion for mistrial in favor of the defense