Notable: ADA Binger mentioned “provocation” zero times in his opening statement
Monday, November 15, 2021, is the final day of argument in the trial of Kyle Rittenhouse, and by day’s end the jury will have begun their deliberations of whether the child who successfully fought off serial murderous attacks by rioting adults is to be found guilty of crimes carrying sentences as severe as life in prison.
I thought it might be helpful to step through the various criminal charges and legal defenses in summary fashion, to refresh everybody’s recollection of where things stand and what each side needs to get done.
In the course of doing that we’ll first step through these issues as they were set before the jury in opening statements, basically a straight-up self-defense analysis for each charge, before considering the provocation issue that was injected into the case by the prosecution at the 11th hour.
Then we can consider the implications of the State’s ambush-style provocation gambit, based on the 11th reveal of “unicorn” drone footage left on the prosecution’s doorstep by the evidence fairy, and which has the potential to make all the self-defense argument irrelevant.
I’ll also embed the video and transcript of ADA Binger’s opening statement, so we can refresh our recollection of what he promised the jury on the first day of the trial he would prove to them beyond a reasonable doubt by the end.
It is noteworthy that nowhere in ADA Binger’s opening statement was there any mention of Kyle provocatively pointing his rifle at others that night, and no claim that the attack by Joseph Rosenbaum was provoked by Kyle pointing his rifle or by any other specific act on the part of Kyle.
Indeed, ADA Binger fails to use the term “provoke,” or any variation of that term, even a single time in his opening statement to the jury.
Finally, I’ll share what I expect the last day of this trial to look like in terms of the sequence of events and their likely schedule, and how we’ll be covering those LIVE at Legal Insurrection.
Criminal Charges versus Self-Defense
Although it’s now clear that the State plans to base their narrative of guilt in this case on the legal doctrine of provocation, provocation was never mentioned as an issue in this trial until the sudden discovery of the “unicorn” drone footage. When ADA Binger presented the State’s theory of this case to the jury in his opening statement, he never so much as mentions provocation.
So, the trial started as a straight-up self-defense case, with Kyle charged with five use-of-force offenses, all felonies, as well as a single misdemeanor unlawful gun possession charge.
To each of the felony use-of-force charges, Kyle is raising the legal defense of self-defense, and these charges and the defense against them will be our focus here.
As for the misdemeanor gun possession charge, properly understood, this charge is simply inapplicable to Kyle at all, and it ought to have been dismissed outright as a matter of law, as I discuss here: The Injustice of the Gun Charge Against Kyle Rittenhouse.
Judge Schroeder failed to do so, for no very good reason I can see, but it appears that he has least allowed for a jury instruction on this charge that should correctly lead a rational jury to an acquittal. I suppose we’ll find out for sure when we hear the instructions read to the jury on Monday morning.
In any case, our focus here is on the five felony use-of-force charges.
To each of these five charges, the defense has raised the legal defense of self-defense.
When any defendant properly raises the issue of self-defense, it is not the burden of the defense to prove self-defense. Rather, the burden is on the State to disprove self-defense beyond a reasonable doubt.
That doesn’t mean, however, that the State has to disprove self-defense in its entirety—it merely means the state has to disprove any one of the four required elements of self-defense.
Those elements of self-defense are Innocence—that Kyle was not the initial physical aggressor in any of his use-of-force events—Imminence—that the threat Kyle was defending against was in progress or immediately about to occur—Proportionality—that when Kyle used deadly defensive force, he was facing a threat readily capable of causing death or serious bodily injury—and Reasonableness—that Kyle’s perceptions, decisions, and actions in self-defense were both subjectively believed to be necessary and that subjective belief would also have been held by an objective person in the same circumstances.
(A possible fifth element, Avoidance—involving a possible legal duty to retreat—does not apply in otherwise lawful cases of self-defense in any of the 39 stand-your-ground states, a group which includes Wisconsin.)
The defense knows that if the prosecution can disprove any one of those four elements beyond a reasonable doubt, their entire legal defense of justified self-defense collapses.
So, to understand whether the state can overcome self-defense for any of the felony use-of-force charges brought against Kyle we need to examine whether it appears to a reasonable degree of legal certainty that the State will be able to disprove any one of those four elements of self-defense beyond a reasonable doubt.
Specifically, considering each charge individually is it likely that the State can prove beyond a reasonable doubt that Kyle was the initial physical aggressor, was not defending against an imminent threat, was not defending against a deadly force attack, or that his subjective belief in the necessity to use force was objectively unreasonable.
It’s worth keeping in mind that with respect to the intentional crimes charged—the intentional homicide of Anthony Huber and the attempted intentional homicide of Gaige Grosskreutz—the claim of self-defense essentially concedes the underlying conduct that would normally be a crime—the intentional shooting of the two men—but argues that the conduct was nevertheless justified as lawful self-defense.
With respect to the recklessness charges—the endangerment of McGinnis, the endangerment of “jump kick man” and the reckless homicide of Joseph Rosenbaum—the claim of self-defense acts to neutralize the “unjustified risk” element required for conduct to be criminally reckless, arguing that as an act of lawful self-defense whatever risk was created was a justified risk.
(Keep in mind that we’re excluding the question of provocation, which we’ll address separately, and simply doing a straight-up self-defense analysis.)
Count 1: First Degree Reckless Homicide (Joseph Rosenbaum)
In the case of the shooting of Joseph Rosenbaum (Count 1), charged as a reckless homicide, the same legal defense of reasonable self-defense acts to effectively align against the element of recklessness requiring an unjustified creation of risk to others. Reasonable conduct with respect to a purported victim of that conduct cannot also be reckless conduct towards that purported victim.
So, does Kyle appear to be vulnerable to the State disproving any of the four elements of self-defense beyond a reasonable doubt in the reckless homicide of Joseph Rosenbaum?
Meaning, does it seem likely to a reasonable degree of legal certainty that the State can prove beyond a reasonable doubt, with respect to Rosenbaum, that Kyle was the initial physical aggressor, that Kyle was not defending against an imminent attack, that Kyle was not defending against a deadly force attack, or that Kyle’s subjective perception of the need to do so was objectively unreasonable.
The evidence suggests there is no reasonable ground to believe that the State can accomplish any of that.
Rosenbaum was the apparent initial physical aggressor in chasing down a fleeing Kyle and fighting him for control of his rifle (Innocence), Rosenbaum’s attack was actually underway (Imminence), Rosenbaum’s aggressive fighting for control of Kyle’s rifle was (if successful) a threat likely to end in Kyle’s death (Proportionality), and Kyle’s subjective fears in this respect are certainly objectively reasonable especially in light of Rosenbaum’s earlier threats to kill Kyle.
Conclusion: Self-defense wins on Count 1.
Count 2: First-Degree Recklessly Endangering Safety (Richard McGinnis)
This is probably the most slippery of the charges against Kyle, in the context of the legal defense of self-defense. Unlike the other recklessly endangering charge involving “jump kick man,” who was clearly attacking Kyle and against whom Kyle intentionally fired two missed rounds, there was no attack & defense with respect to McGinnis.
That is, McGinnis was not attacking Kyle, and Kyle did not intentionally use force towards McGinnis. Indeed, Kyle’s testimony is that he never even knew McGinnis was downrange of Rosenbaum when Kyle shot the attacker four times.
The argument here by the State, which Judge Schroeder accepted for purposes of permitting this charge, is that even if Kyle’s use of force against Rosenbaum was lawful with respect to Rosenbaum, it’s theoretically possible that the specific manner in which he fired the shots might have created an unjustified risk to McGinnis.
For example, the State might argue that if Kyle had used hollow-point ammunition instead of full-metal jacket ammunition, the risk of McGinnis being struck by an over penetrating round would have been reduced. Or if Kyle had fired one shot into Rosenbaum instead of four, the risk to McGinnis would have been less. Or if Kyle had fired the rounds at an angle that was less aligned with the downrange position of McGinnis, the risk to McGinnis would have been less. If so, the increased risk not avoided might constitute unjustified risk sufficient to allow a finding of recklessness.
The defense argument here will be that whether a risk is justified must be considered within the totality of the circumstances. Certainly, simply standing in the middle of the Car Source parking lot on a normal day and firing four .223 rounds down Sheridan Road would be an unjustified risk to others. Firing those same four rounds while a murderous aggressor is fighting for control of your weapon is another matter entirely.
In the end, the jury will be asked to determine whether in their judgment the prosecution has proven beyond a reasonable doubt that the manner in which Kyle fired those four rounds created a risk that was unjustified under the circumstances. If not, the proper verdict on this charge would be an acquittal.
Alternatively, given that even McGinnis himself was ambiguous about the danger caused to him by Kyle’s shooting Rosenbaum, the jury may decide that the state has failed to prove beyond a reasonable doubt that Kyle endangered McGinnis at all. In which case the proper verdict on this charge would also be an acquittal.
Finally, it’s possible that the jury will conclude that the State has proven recklessness beyond a reasonable doubt, but failed to prove beyond a reasonable doubt that Kyle acted with utter disregard for human life. In that case, the proper verdict would be an acquittal on the charged crime of first degree reckless endangerment but a conviction on the lesser included charge of second degree recklessness.
Conclusion: In my opinion, the state will fail to prove beyond a reasonable doubt that Kyle’s conduct created a risk to McGinnis that was unjustified under the circumstances, and perhaps not even that Kyle’s conduct created any risk to McGinnis at all. In either case, self-defense wins on Count 2.
Count 3: First Degree Intentional Homicide (Anthony Huber)
Here the question is, does Kyle appear to be vulnerable to the State disproving any of the four elements of self-defense beyond a reasonable doubt with respect to the intentional homicide of Anthony Huber?
Meaning, does it seem likely to a reasonable degree of legal certainty that the State can prove beyond a reasonable doubt, with respect to Huber, that Kyle was the initial physical aggressor, that Kyle was not defending against an imminent attack, that Kyle was not defending against a deadly force attack, or that Kyle’s subjective perception of the need to do so was objectively unreasonable.
The evidence suggests there is no reasonable ground to believe that the State can accomplish any of that.
Huber was the apparent initial physical aggressor in repeatedly striking Kyle with a skateboard to the head and neck and fighting Kyle for his rifle (Innocence), Huber’s attack was actually underway (Imminence), blows to the head with a skateboard and fighting for control of the rifle are both deadly force attacks justifying deadly force defense (Proportionality), and Kyle’s subjective perception of the need to do so was objectively reasonable.
Conclusion: Self-defense wins on Count 3.
Count 4: Attempted First Degree Intentional Homicide (Gaige Grosskreutz)
Here the legal analysis is essentially identical to that for Huber, the only charging difference between the two situations being that Huber was charged as a completed intentional homicide whereas the shooting of Grosskreutz was charged as an attempted intentional homicide.
In any case, the question here is does Kyle appears to be vulnerable to the State disproving any of the four elements of self-defense beyond a reasonable doubt with respect to the attempted intentional homicide of Gaige Grosskreutz?
Meaning, does it seem likely to a reasonable degree of legal certainty that the State can prove beyond a reasonable doubt, with respect to Grosskruetz, that Kyle was the initial physical aggressor, that Kyle was not defending against an imminent attack, that Kyle was not defending against a deadly force attack, or that Kyle’s subjective perception of the need to do so was objectively unreasonable.
The evidence suggests there is no reasonable ground to believe that the State can accomplish any of that.
Huber was the apparent initial physical aggressor in aggressively running up on Kyle with a Glock pistol in his hand, as well as in reaching for control of Kyle’s rifle (Innocence), his attack on Kyle was actually underway (Imminence), the Glock in his right hand made his attack deadly in nature and justifying a deadly force defense (Proportionality), and Kyle’s subjective perception of the need to do so was objectively reasonable.
Conclusion: Self-defense wins on Count 4.
Count 5: First Degree Recklessly Endangering Safety (“Jump Kick Man”)
Finally, we have the reckless endangering charge with respect to “jump kick man.” Although this is the same charge as was brought with respect to Richard McGinnis the legal analysis here is much more straightforward. That’s because in this instance “jump kick man” was in the process of attacking Kyle, and Kyle’s use of force here was intentionally directed at “jump kick man” in response to that attack.
Because this is a charge based on recklessness, the question is whether the risk created by Kyle towards “jump kick man” in firing two missed shots at him was unjustified under the circumstances.
Well, if the shots would have been justified as straight-forward self-defense had Kyle struck and killed “jump kick man,” then they are justified in the context of mere reckless endangering, as well, so we can just do a straight-forward self-defense analysis as we would do had Kyle shot “jump kick man” dead.
The question then is, does Kyle appear to be vulnerable to the State disproving any of the four elements of self-defense beyond a reasonable doubt with respect to the shooting at “jump kick man”?
Meaning does it seem likely to a reasonable degree of legal certainty that the State can prove beyond a reasonable doubt, with respect to “jump kick man,” that Kyle was the initial physical aggressor, that Kyle was not defending against an imminent attack, that Kyle was not defending against a deadly force attack, or that Kyle’s subjective perception of the need to do so was objectively unreasonable.
“Jump kick man” was the apparent initial physical aggressor in aggressively running up on Kyle and stomping him in the face with heavy work boots (Innocence), his attack on Kyle was actually underway (Imminence), striking someone in the face with work boots under your entire jumping body weight can clearly cause serious physical injury, meaning it’s a deadly force attack justifying a deadly force defense (Proportionality), and Kyle’s subjective perception of the need to do so was objectively reasonable.
Conclusion: Self-defense wins on Count 5.
In short, in my professional legal opinion, to a reasonable degree of legal certainty, is that the prosecution in this case has no likelihood of disproving self-defense beyond a reasonable doubt with respect to Rosenbaum (Count 1), Huber (Count 3), Grosskreutz (Count 4), or “jump kick man” (Count 5). The circumstances with respect to the reckless endangering of McGinnis (Count 2) is more ambiguous and may be fertile ground for a “compromise verdict” by a split jury, but in my judgment the State fails here, as well.
Provocation: Does It Tip Over the Whole Trial Chessboard
If all that sounds like bad news for the prosecution, that’s because it is, indeed, very bad news for the prosecution.
Which is why the Prosecution is now placing all its chips on the legal doctrine of provocation, in a theory of the case it never so much as mentioned to the jury in its own opening statement at the start of this trial.
The important thing to understand about this doctrine of provocation is that if the jury buys this argument, all the self-defense analysis above simply goes out the window, because a provoker has no privilege to claim self-defense at all. It’s true that a provoker might regain that privilege by meeting certain conditions, but the State here argues that Kyle failed to meet those conditions.
So, if the jury is convinced that Kyle was a provoker who failed to regain self-defense, then there is no self-defense legal defense in this case.
Specifically, the State began arguing for the first time late in the trial that Kyle Rittenhouse provoked Rosenbaum into a “defense of others” chase by pointing his rifle at “an individual” nearby, thereby losing self-defense through provocation. The State then argues that Kyle subsequently failed to meet the requirements to regain self-defense.
As a result, the State argues, Kyle is not privileged to claim self-defense as his justification for the shooting of Rosenbaum at all, period, end-stop.
Further, the State argues that every other use-of-force event that follows—meaning every other count in the criminal complaint—can also be ultimately attributed to Kyle’s purported initial provocation of pointing his rifle at “an individual”, and therefore he has no privilege to claim self-defense as his justification for any of the other intentional shootings or reckless endangerments, either.
If the jury buys this 11th hour provocation argument then, the entire self-defense chessboard is tipped over, and all the pieces so strongly positioned for Kyle’s legal defense of self-defense are dumped on the floor.
The only outcome possible then will be verdicts of guilty on every use-of-force count.
You can understand, then, why the prosecution finds this provocation argument so attractive.
Of course, this provocation argument is not without its weaknesses, the greatest being the ridiculously weak evidence in support of this theory of the case.
The purported evidence of Kyle pointing his rifle at any individual consists of a late-found drone video and a Rorschach-like enlarged image taken from that video that could be anything or could be nothing.
Indeed, adding the context of other circumstantial evidence—such as the admission of the State’s imaging expert that his “zoom” process adds to the original image pixels of unpredictable color, and that right-handed Kyle would have had to suddenly decide to handle his rifle in a left-handed manner (no easy task with the way his sling was set up)—it seems ludicrous that any reasonable juror could look at that the video or image offered proved anything whatever beyond a reasonable doubt, much less that Kyle had pointed his rifle at any individual.
As weak as their argument on provocation is, however, their argument without provocation is even weaker—so the State is running with the rather pathetic best argument they can bring to the table.
And it might just work. I think it unlikely that the State will be able to convince 12 jurors that this video and photo prove provocation beyond a reasonable doubt—certainly not 12 rational, fair, and impartial jurors.
But some jurors are neither rational, nor fair, nor impartial. And if any single juror is looking for a reason—any reason!—to vote guilty despite the pronounced weakness of the state’s use-of-force charges in the context of self-defense, then this provocation argument may be just enough to tip the scales.
Now, one convinced juror is not enough to render an actual verdict of guilt—that takes a unanimous decision of all 12 jurors.
But one convinced juror is enough to hang the jury and result in a mistrial. And a mistrial on these grounds simply means that ADA Binger is free to re-boot the criminal prosecution of Kyle Rittenhouse all over again, bringing the same resources to bear a second time, against a defendant whose resources will surely be substantially depleted for a second fight.
And that would be, for all practical purposes, a win for the prosecution, and a loss for Kyle Rittenhouse.
ADA Binger Said “Provocation” Not Once in Opening Statement
It’s perhaps worth noting how out of the blue this entire provocation argument now being raised by the State in the 11th hour is, especially given that it appears the State’s only desperate hope for a conviction.
On the first day of this trial, Tuesday, November 2, 2021, ADA Binger made his opening statement to the jury, in which he laid out for them the State’s theory of the case, and the claims he intended to prove to them beyond a reasonable doubt in his efforts to convince them to find Kyle Rittenhouse guilty of all the charges against him.
ADA Binger spoke for a full 35 minutes presenting the State’s view of the case to the jury. The transcript of his opening statements consists of 5,355 words (and I’ve embedded that below, as well as the video of his opening).
The number of times in that opening statement that ADA Binger mentions the word provocation, or any variant of provocation?
That’s right, the very heart of the State’s narrative of guilt to be presented to the jury tomorrow has literally zero presence to be found in the State’s own opening statement to the jury.
The closest that ADA Binger comes in his opening statement to anything like a suggestion of provocation by Kyle can be found here, when he’s vaguely describing, without specificity or evidence, that Kyle might have somehow been responsible for Rosenbaum’s pursuit:
You see him [Rosenbaum] running towards the 63rd Car Source. And behind him running in the same direction, following him, is the defendant. As they get to the 63rd Street Car Source there are some cars on the north side of that lot. Mr. Rosenbaum peels off behind those cars and the defendant stops on the other side of those cars. and turns towards Mr. Rosenbaum.
Now, obviously, in an infrared video from a plane overhead, we don’t know exactly what was going on at that very moment. We don’t know what words were said. But what’s clear is whatever that confrontation that was initiated by the defendant started, it caused Mr. Rosenbaum to come around the cars and start running after the defendant.
Note that Binger says nothing here about a pointed rifle. He says nothing about a nearby “individual” who might be the target of that pointed rifle. Indeed, he doesn’t indicate any particular unlawful provocative act by Kyle at all. Indeed, he explicitly tells the jury in his opening statement that at this critical moment, “we don’t know exactly what was going on.”
It’s also worth noting2 that nowhere in the opening statement is there any claim of Kyle having pointed his rifle at “yellow pants man” as the State now claims in support of its desperate provocation argument, nor any mention of Kyle having engaged in provocative conduct by pointing his rifle at people throughout the night.
Nothing substantive whatever about provocation in ADA Binger’s opening statement.
Here’s the video of the entire opening statement by ADA Binger, along with an embedded typed transcript:
Events & Schedule
Just a quick word on key events to take place tomorrow when court comes into session, and the rough schedule I anticipate those events to follow (caution, the scheduling stuff is just experience-based speculation on my part, I have no inside information here):
The morning will begin with Judge Bruce Schroeder reading the court-approved instructions to the jury. I’ve written with respect to these instructions in several prior posts, including here: Rittenhouse Trial Day 9: Prosecution Big Win On “Provocation” Jury Instruction Saves Chance At Conviction. Reading the instructions to the jury might take perhaps an hour, and maybe longer given the many charges, including numerous lesser included offenses, as well as the multiple instructions on self-defense.
The State will then present its closing argument of guilt to the jury, almost certainly by ADA Thomas Binger. Assuming the court comes into session at around 9:00 a.m. Central time, I would expect the State to finish its closing argument right around Noon, so the court would then likely break for lunch.
After lunch, the defense will follow with its own closing argument, most likely by Defense Attorney Mark Richards (although co-counsel Corey Chirafisi would likely be the better choice). Finally, the State will have an opportunity to rebut the defense closing argument.
Judge Schroeder has allocated two-and-a-half hours to each side, so we’re looking at potentially five hours total of closing arguments.
In any case, that will likely get us to mid-afternoon, at which point the jury will begin their deliberations.
And then we wait—and enter what we call “VERDICT WATCH!” mode, in which I stay anxiously close to my computer for any breaking news of a verdict, so that we’re ready to share that news, and our analysis of that news, with all of you promptly.
In the meantime, I’ll be back on live coverage of all the trial proceedings tomorrow, with live streaming of those proceedings and live commenting throughout the day, over at Legal Insurrection, as we have done for the entire trial to date.
OK, folks, that’s all I have for you on this topic.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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