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Rittenhouse Analysis: State’s Weak Provocation Argument Is Still The Major Threat to Acquittal

Rittenhouse Analysis: State’s Weak Provocation Argument Is Still The Major Threat to Acquittal

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.

805 Privilege: Self-Defense: Force Intended or Likely to Cause Death or Great Bodily Harm

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.

1020 First Degree Reckless Homicide

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.

1345 First degree reckless endangerment

1347 Second-degree reckless endangerment

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.

1010 First Degree Intentional Homicide

1016 First Degree Intentional Homicide: Self-Defense

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.

Grosskreutz 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.

1070 Attempted First Degree Intentional Homicide

1072 Attempted First Degree Intentional Homicide: Self-Defense

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.

The evidence suggests there is no reasonable ground to believe that the State can accomplish any of that.

“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.

1345 First degree reckless endangerment

1347 Second degree reckless endangerment

 

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.

810 Privilege: Self-Defense: Retreat

815 Privilege: Self-Defense: Not Available to One Who Provokes an Attack: Regaining the Privilege

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?

Zero.

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:

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

If the prosecution is going to argue that the Rittenhouse provoked the attack by Rosenbaum, it seems problematic that the defense was not allowed to introduce evidence pertaining to Rosenbaum’s mental health and past criminal history. Such evidence would seem pertinent as it relates to showing that Rosenbaum likely needed no provocation to attack Rittenhouse. If convicted based on provocation, would this argument hold water during an appeal?

    The judge only did it to quiet the Wokestapo. Now if they choose the jury can lynch Rittenhouse and blame it on the evidence-free “provocation” thanks to Schroeder’s cowardly decision.

    Elzorro in reply to 303patriot. | November 14, 2021 at 10:02 pm

    It was an ‘ambush’.

    luckystars33 in reply to 303patriot. | November 14, 2021 at 11:44 pm

    Those 8 boys ages 9-11 the Rosenbum raped provoked him too ya know.
    One of Rosenums boy rape he was charged as attempted murder.
    The guy was a walking gay pedophile violent nut case.

      The Friendly Grizzly in reply to luckystars33. | November 15, 2021 at 5:44 am

      Yes it was the short skirts and spike heels at those 9 to 11 year old boys were wearing when they went into the local bar. They were asking for it.

    randian in reply to 303patriot. | November 15, 2021 at 3:37 am

    I think it more problematic that no evidence was offered as to Rosenbaum’s state of mind, or of statements by Rosenbaum, to corroborate the claim that Rosenbaum attacked Rittenhouse for the reason claimed by the prosecution. This is pure speculation by the prosecutor, who is in effect acting as his own witness. With zero evidentiary foundation this should never have been allowed to be heard by the jury.

    JHogan in reply to dougsanto. | November 15, 2021 at 7:22 am

    Looks to me like Zaminski, with a handgun, advanced towards Kyle. Kyle starting moving back away from Zaminski. And then Rosenbaum advanced towards Kyle from behind.

    It was an ambush and Kyle ran to escape from it, pursued by Rosenbaum.

    pchase9401 in reply to dougsanto. | November 15, 2021 at 9:39 am

    The infrared portion of this is what I find compelling. At the point where the arm comes out is much closer to the point in time where the picture was captured and the video of him running away starts after. (In the drone picture, he is between the Ziminski’s and Kyle backpedaling and Mr Ziminski moving forward changes the angle that wouldn’t line up with the drone picture.)

    I expect Binger to address this and argue the opposite, that this is Kyle’s arm extending with the rifle.

I am trying to understand how Binger can argue provocation to defeat the claim of self defense w/o admitting that Kyle was acting in self defense and admitting his opening was a bunch of baloney.

    Dathurtz in reply to Elzorro. | November 14, 2021 at 10:27 pm

    You can’t win trying to hold a prog to their words. They already know they are lying and, if they win, then they don’t care who knows it, too.

    George_Kaplan in reply to Elzorro. | November 15, 2021 at 2:28 am

    Binger’s position is that Kyle tricked Rosenbaum into attacking him then killed him in alleged self defence. That’d make sense if Kyle were some sort of psychopath, but Binger doesn’t seem to care about anything other than getting a Rittenhouse conviction. Facts and truth do not matter in this case, neither does Binger’s opening statement – assuming anyone can recall what he said.

I am not going to disagree with Andrew’s legal analysis, but I will say that ultimately doesn’t matter. By his cowardly decision to allow the prosecution to use “provocation” in their closing argument, the judge made an end-run around the evidence. Now the jury has the green light – if they are so inclined – to throw the book at Rittenhouse merely because they despise the idea of a white boy defending himself and decide that he “provoked” the poor, sweet, innocent little Antifa brownshirts.

Speaking as a non-lawyer, the law concerning “provocation” that Andrew detailed in a previous post, with its total dependence on what a “reasonable person” would believe – can anyone possibly define who a “reasonable person” is? – is a totalitarian’s wet dream. It allowed someone to be convicted for no real reason at all except bigotry and hate.

Our judicial system is turning into a Stalinist freak show, thanks to judges like Schroeder.

    I don’t know either. I do know that old long time judges are very wiley critters.

      randoPerson23 in reply to Elzorro. | November 15, 2021 at 1:27 am

      Schroeder hasn’t been a terrible judge — it’s reasonably to expect a slip up or two. What burns my grill is the defense — it’s been so ridiculously weak. Why did they agree to neuter their use of force expert? Nobody to explain weapons handling? Nobody to explain that 1/4 second splits is actually merely average? Nobody to explain why you don’t shoot once and then check to see if it worked? Why haven’t they been objecting and preserving issues for appeal? Why did Richards say to Schroeder regarding the blob cartoon evidence “Even if we accept it as true, why is pointing a gun at Z a provocation of R?” That’s defense of others and totally legit — it wasn’t long after that, the judge said he’d let the jury decide. Sigh. It all feels so bleak. I hope to God Kyle at least gets a hung jury and with it, a chance at a real defense.

        randoPerson23 in reply to randoPerson23. | November 15, 2021 at 1:28 am

        Well, looks I responded to the post above this one. I blame Binger.

        Midfiaudiophile in reply to randoPerson23. | November 15, 2021 at 3:32 am

        Here’s another question for you. Apparently defense can mount something called a surrebuttal (rebutting the rebuttal, after which presumably Prosecution gets another, even more limited, time at the plate). Why didn’t they bring Dr. Black back on stage to tear the prosecution’s ‘enhanced’ photo/video a few new holes rather than just sitting meekly and letting that ridiculous photo and video go into evidence?

    Colonel Travis in reply to Recovering Lutheran. | November 14, 2021 at 11:40 pm

    The judge allowed the provocation issue, but how come? Because the defense didn’t fight it. The judge left his bench and said – show me this. He couldn’t see what was going on in the video. I think he was legitimately on the fence and when you have a defense attorney tell the judge: ok, judge, let’s say everything the prosecution says is correct and my client pointed his gun, he didn’t know who he was pointing it to so that’s not provocation. How stupid do you have to be to do this? If you force the judge to come to no other conclusion than to say “let the jury decide”, that is not entirely the judge’s fault. I think the judge still could have said – I don’t see this crap you’re telling me. But that is clearly not how he operates. Way to go Richards for not understanding your judge, too.

    If Rittehouse loses, blame his incompetent lead attorney, not the judge. This wasn’t Richards’s only mistake.

    There is still one more chance to educate the jury tomorrow. In theory, it does still matter. Also, so many people with common sense know that the last minute video evidence is BS. The state has such a terrible case, a non-case, that I think it is possible for a jury to see through it. So that is where I disagree with you, on the theory side.

    In reality, though. Ugh….

    I’m almost with you. I still think there is a chance Rittenhouse is acquitted. I don’t think it is out of the question. Binger is a smarmy jackass. He could blow it, too. But I am dreading Richards tomorrow (yay, convoluted snoozefest!) and we don’t know if this jury will have 12 people with common sense. The provocation issue opens a big door for them, plus the lesser charges.

    I have no idea what will happen.

      TheOldZombie in reply to Colonel Travis. | November 15, 2021 at 12:21 am

      Yes. The judge I think has done as much as he could.

      But it’s like a sports game. You can’t rely on the ref to win the game for you. You have to actually get out there and score points to win.

      Rittenhouse’s team has made mistake after mistake. Only Binger and his partner also being idiots has kept Rittenhouse in the game.

I thought I should repeat a comment I’ve made at my usual hangouts (Althouse and Ace of Spades) – next 3 paragraphs. It seems a useful angle for the defense to work on, and they’re more likely to see it here:

– – – – – – – – – – – –

Kyle Rittenhouse did in fact ‘provoke’ the crowd into stalking him and trying repeatedly to kill him. (Those who’ve watched all the tapes say they looked like a pack of wolves successfully separating one deer from a herd and then going after it.)

He provoked them by bringing a fire extinguisher to the riot and putting out the fires they were setting. The press pretends he was walking around with the gun in his hands pointing it at rioters, but it was in fact on a sling over his shoulder until the very moment the pedophile grabbed it to try to take it away from him and he (KR) shot him.

What he had in his hands until then was the fire extinguisher, which he dropped when he was attacked. KR quite likely saved more Antifa from death or maiming than the total number he killed (2) or maimed (1). One of the fires he put out was the one in the flaming dumpster Antifa members were pushing towards a gas station. I’m no expert on gas fires, but I suspect that, if they’d succeeded, the ensuing fireball would have burned to a crisp everything and everyone within 20? 30? 40? 50? yards and maimed more outside that radius with 3rd-degree burns.

– – – – – – – – – – – –

Please let me know if I’m mistaken in any of the facts! I’m amazed that his fire extinguisher work gets so little emphasis, since it seems to be the main thing that pissed off (=provoked in a non-legal sense) the Antifa mob to try to stomp him or even kill him.

    Elzorro in reply to Dr Weevil. | November 14, 2021 at 9:47 pm

    Not Wolves, Hyenas.

    Midfiaudiophile in reply to Dr Weevil. | November 15, 2021 at 3:36 am

    Binger did emphasize the fire extinguisher several times. He said several times when arguing for the video that “It demonstrates that Kyle didn’t drop the extinguisher as he said, but rather gently placed it on the ground. This goes to credibility”, then pivoted from there into this ridiculous provocation theory (“He pointed the gun at Ziminski, who isn’t even in the frame!”).

I think this provocation rule should not be a rule or a lesser charge but a crime. I also think that the jury instructions should be set before the trial so the two sides would have a template to base their case on. This has turned in to a mish mash of legal mumbo jumbo that is very hard to understand. I sure have a hard time so the jury will too. I would like to see a video of the trial showing what the jury has seen only. Their perspective must be a lot different than mine.

If Rittenhouse is convicted then the burning and looting Kenosha experienced was deserved.

Everyone who is paying attention and watching this trial in America knows what this is.
This kid is being railroaded by the prosecution, the judge and his own defense.
Nothing will change that, go around and read the comments all over the internets.
They know it.

    It would be hard to be a Devils Advocate in this case. He already has one. Binger.

    The judge is definitely a villain in this case, but I believe he is a minor villain. He is a tired old man who is in way over his head, but instead of rising to the occasion he did what his judicial mentor Pilate did: he let the mob have their way.

    The major villains in this case are the prosecutors, the Wisconsin governor, and the media. They have considerable blood on their hands, and are gleeful about it.

    randoPerson23 in reply to luckystars33. | November 15, 2021 at 1:35 am

    The judge has been alright — he’s even stepped in a couple times when the defense was asleep, but he can’t do that constantly otherwise he loses all sense of impartiality.

does the defense get a rebuttle for the last word in Wisconsin here only the state does?

Formerly known as Skeptic | November 14, 2021 at 10:52 pm

So the jury is supposed to believe that the young man they saw avoiding conflict all night intentional provoked someone into attacking him for the sole purpose of shooting him, and then….didn’t,… but ran instead.

The enlargement does not match the original. It is not an enlargement. It is a larger picture obtained from the original by embedding new pixels into the image probably using cubic polynomials to approximate the actual photo.

A true enlargement would not significantly alter the various boundaries in the picture but it is very clear that the processing has changed the image. In the twenty hours of working on this footage, there must be dozens of attempts and the prosecution has chosen the one that makes this argument. What happened to all the others?

In the language of plane geometry, the images are not similar. The various lines in the larger picture are not a constant multiple of lines in the original. It doesn’t appear that the lines have the same shape. The enlargement is essentially a photo-shopped version of the original. Had the tech actually compared the two pictures he would have realized the two are not similar.

The evidence should not only be dismissed as worthless but should be used to show the basic dishonesty of the prosecutions case.

WHERE DO I SEND $ $ $ . . . ?

If the jury is hung and Kyle has to go to another trial – I want to send money for his defense.

Kyle Rittinhouse is Americans son.
We have his back.
We worked to dig up evidence to exonerate him.
We are his defense team.
Nothing can change that.
We are watching you….

The prosecutor says the following about the 59th St. location (p. 4): “Protecting that property is entirely lawful. Totally understandable.”

Since the prosecutor admits in opening it was lawful for the armed group to be on that used car lot guarding it, how can they not be considered agents of the merchant and thus privileged under the defense of property statute to threaten the use of force in certain cases? If they are considered agents of the owners at that location, why would that designation not apply to the 63rd St. location (where they were photographed earlier in evening and to which one of them was dispatched after reports of fire)? Kraus on Friday first speculated that Ziminski was committing vandalism or arson then claimed the worst he was doing was stoking a fire. Under Wisconsin law, would the merchant or an employee or agent be entitled to threaten force to stop him? Has the state even demonstrated that the disputable “illegal act” of provocation was in fact illegal?

Andrew, you have an error in this paragraph…

“Specifically, considering each charge individually is it likely that the State can prove beyond a reasonable doubt that Kyle was the initial physical aggressor,…”

Should be UNLIKELY

ADA Binger mentioned “provocation” zero times in his opening statement

Can the defense mention this or is that a no-no?

    Milhouse in reply to TheOldZombie. | November 15, 2021 at 1:37 am

    Of course it can. It’s part of the record, and the jury is entitled to draw conclusions from it, if it so chooses.

    randoPerson23 in reply to TheOldZombie. | November 15, 2021 at 1:39 am

    They can mention it but it doesn’t really matter. If a juror believes the faked screenshot what difference would it make to them? They will surely get an instruction that lawyers statements aren’t evidence anyway, so they’ll have all the justification they want to lych Kyle.

There is no way that Rittenhouse either didn’t have original, non-provoked self defense privilege here, and even in the very off chance that he did provoke an attack, didn’t regain it by running away from his attackers and yelling “Friendly Friendly Friendly”, What more can anyone do to say they are withdrawing from a fight short of tossing the gun to the attacker?

And the second attack was again from behind while the kid was running away from people yelling “Cranium Him! Get Him”, and actually hitting with a rock to the back of his head before we get to the moment by moment of the first skateboard hit followed instantly by “jump kick man” trying to stomp his face in to the back of his head and provoking 2 rounds that missed while another skateboard hit was made. Then Huber, the skateboard guy, grabbed the gun and aimed it right into his own chest before getting shot. And the last attacker saw that, stopped running and then pointed a gun at the kid’s head – provoking a shot to the arm. All of the above in under 5 seconds or so.

And let’s not underestimate how much the prosecution has likely pissed off the jurors. Lots of long-winded word salads that went nowhere, spending hours on hours on lines of questioning that were, at the most charitable, psychotic. Like when they told a witness “we didn’t ask you to change your statement” answered with “Yes you did.” Ouch.

Even if they pull a Hail Mary win out here, the appellate courts are going to rip this case limb for limb. Letting the case proceed after the prosecution’s Fifth Amendment violation at the beginning of their cross of the defendant was bad, really bad. Then violating rulings and trying to introduce inadmissible evidence already ruled on – that should have been instantly fatal. Those are bells that can not be un-rung. Appellate courts call that “reversible error”.

And the “evidence fairy” dropping government drone video on the eve of the trial makes me want to scream “Brady! Brady! Brady!” in the tone of “Marcia Marcia Marcia”. It is as absurd as most of those old Brady Bunch episodes.

In summary, this case started out as prosecutors driving in on a clown car, arguing that it is actually a Corvette, then parking said clown car on railroad tracks. When the oncoming train of reality slammed it in to a mountain of contrary video and other evidence and the case derailed, they got on top of the wreckage and put on a full-scale shitshow. Then, when they hit rock bottom, they tried to hope that an apparition of the legend of John Henry will appear in the real world to drill them out of a collapsed mine of lies and outright BS.

    randoPerson23 in reply to Maz2331. | November 15, 2021 at 1:42 am

    Even if the jury acquits on Jump Kick Man etc., if they convict on even one of the felonies, Kyle’s effed. And who knows, maybe Binger’s sing-song intonation of 3-5 word chunks, hypnotizes the jury into a travesty.

“Five seconds before killing the murderous Jrosenbaum, Childe Kyle attested to having heard a gunshot.” What did EsquiBinger claim?

I think he claimed Childe blew up Jrosenbaum because one of the Khinches shot at a star.

Subsequently, EsquiKraus claimed Childe’s 15 glared in a self reflecting lens, the reflection triggering Jrosephbaum’s lefthanded something or other … in the lefthanded glare, I believe I saw a diminutive, cocked guillotine.

No mind. Childe gone.

Y’all, I have tried to understand. Why the F is an adult physicist, even a provacteurist one, required? There be no way. Physics demanded to ascertain?

That Childe’s actions lifted him into an adult court, thankfully not of his peers?

James B. Shearer | November 15, 2021 at 1:36 am

“Huber was the apparent initial physical aggressor in aggressively running up on Kyle with a Glock pistol ..”

You have a typo here, it was Grosskreutz not Huber.

Any reason the state charged the “Rosenbaum” shooting as reckless homicide and the other 2 as intentional homicide (or attempted intentional homicide)? If I was a juror I would find this confusing as it is not clear to me why (absent self-defense) the Rosenbaum shooting should be a lesser offense.

I may be wrong but I think there is a good chance that jurors won’t pay much attention to the “provocation” photo as they may have already formed an opinion based on all the other evidence presented earlier and not be inclined to reassess it.

“triggering Jrosephbaum’s lefthanded”. dang Childe’s

Low level mistake

Andrzejr2 (właso) | November 15, 2021 at 2:49 am

Why is Grosskreutz not charged with the attempted murder of Rittenhouse? After all, he drew a firearm, inserted a round into the barrel, and aimed it at Rittenhouse’s head. He failed to murder Rittenhouse because he was faster.

    Because if Grosskreutz is charged with attempted murder or aggravated assault they can’t reasonably charge Rittenhouse. Even a jury tainted by media lies won’t vote to convict if the alleged victim is under threat of a felony charge. Letting Grosskreutz off scott free makes the political nature of the prosecution even more obvious.

      GRAMBO in reply to randian. | November 15, 2021 at 5:09 am

      The prosecutor had to do everything they could to preserve Grosskreutz as a witness.

      1. Not charging him for failing to tell police he had his gun drawn when he was shot.

      2. Not pulling his phone on the warrant. The prosecutor didn’t want to know what was on it.

      3. Not charging him for aggravated assault

        DaveGinOly in reply to GRAMBO. | November 15, 2021 at 11:40 am

        They also didn’t ask him if KR’s actions had “provoked” him. There is ZERO evidence or testimony in the record w/respect to provocation. I don’t see how provocation can be considered by the jury because it presumes a fact not in evidence. (The state could also have called Ziminsky to the stand to testify to “provocation,” yet did not.)

smalltownoklahoman | November 15, 2021 at 7:06 am

The reasoning for the provocation charge is a thinly veiled attack on self defense itself and on the open carry of firearms in general, especially in the chaotic situation of a riot. Binger himself admitting we don’t really know what’s going on when he claims Kyle pointed his rifle at Ziminski is evidence of this as the video proof is dubious at best. Were they to convict Kyle based on that then people all across the country in open carry states would start having to be even more careful with handling their firearms out in public. You would have to keep it slung across your back with the muzzle pointed up at all times because if you have it in your hands at all some shithead DA may use your casual turning to address someone as pointing your rifle at someone, even if you had it pointed down at the ground as you turned and your finger was clearly off the trigger.

The State’s argument and theory of provocation is that Kyle’s mere presence with an AR-15 was provocation enough to justify the mob attacking him. How dare he bring an ‘assault-rifle’ to a mostly ‘mostly peaceful protest’.

Nevermind that Zaminski and Grosskreutz brought handguns.

Think AR-15s should be banned? Then Kyle must be guilty. For bringing a ‘weapon of war’ to a ‘mostly peaceful’ leftwing riot.

I’d like to think the best the prosecution can hope for is a hung jury. A jury hung by one or more anti-‘assault-rifle’ gun grabbers.

Kyle had better hope that the judge has committed reversible error, because the jury knows what will happen if they acquit…burning, looting and rioting…..at their houses

What has bothered me all along is the FBI drone footage. It is edited, the view jumps around – I don’t think that happened in the original, and why is only that minute or two available? They were evidently recording for hours. Did the FBI withhold that from both sides? They certainly must have. Surely both sides would want all they could get, to bolster and verify the videos on the ground.

Why did it not follow Kyle as he fled the scene to turn himself into police and get attacked by the mob?

Additional video from the plane was never even brought up.

Very strange.

    darwin in reply to darwin. | November 15, 2021 at 7:53 am

    And the FBI “lost” the high definition video…

    DaveGinOly in reply to darwin. | November 15, 2021 at 11:43 am

    The FBI couldn’t have known that KR would be involved in multiple shootings, so they were almost certainly not following KR continuously, as other incidents may have caught their attention through the night. The edits are probably scenes that do not concern the events around KR.

Regardless of an incompetent judge, an incompetent defense this jury will decide whether there is any remnant of the rule of law left in the United States. Should they convict Rittenhouse, tens of millions will finally realize the rule of law is dead and the only remaining justice comes from the muzzle of a gun.

The jury faces a decision that will echo throughout the nation and the world. Will they do what is clearly just or will they be intimidated by the mob of Leftists? Rittenhouse may be on trial but his conviction will clearly demonstrate the rule of law is dead and the right of self-defense has died alongside it. No longer may any person be legally permitted to resist Leftist violence, anarchy, murder, arson and looting. A conviction may well be the spark that sets off a revolution to restore the Republic and annihilate the Leftists.

The keywords here are “rational jury.” The judge has stressed to the jury that it must consider only the testimony and evidence presented. The problem with that is that every juror was heavily exposed to local and national media and commentary from public figures before trial. Even the president has commented that he sees Rittenhouse as a white supremacist.

Further, we know that the jury was filmed at least once. There have been statements from activists such as “we know who you are.”

My point is that the jury may have been tainted before trial and may feel intimidated by the filming and alleged threats.

    Smooth23 in reply to ColBill. | November 15, 2021 at 9:28 am

    I hope they were all going home and pulling up Rekieta Laws ongoing youtube coverage that was happening every day well into the night. You know they weren’t avoiding the media, etc.. that isn’t how real people operate.

    pchase9401 in reply to ColBill. | November 15, 2021 at 9:58 am

    How many text messages does Kraus bring to the judge this morning in an attempt to remove jurors?

“Gun grabber” has a new and better consequence associated to it thanks to Kyle.

Mr Branca,

What am I missing here?

If the state wants to prove that KR, by leveling his barrel at agent-provocateur and all-around demented sociopath JZ, provoked the hyper-aggressive JoJo, then why have we not heard testimony to that effect—that is to say, minimally establishing the fact that KR pointed his rifle at JZ—from JZ himself?! Am I unfairly docking points off NKOTB/Backstreet Boy/‘NSyncer ADA bada-Binger’s review sheet for the absence of the prime witness (other than KR himself, that is) who would have been witness to these events? Forget the fact that none of the other witnesses or videos depicted the events per the state’s tendentious recounting, they can’t even muster the fons et origo of this tragic sequence to show his dirty commie face in open court and lie through his stinking teeth about KR. What is the world coming to?

Continue to be amazed at the skill of this kid. Kicked in the head, spun around 180* shoots still, gets himself back on track and shoots 2 more. All in seconds and he is a boy for Gods sake.

I believe in reincarnation and where those mad skills come from into the next life. Born in 2003, makes sense to me.
Natural born operator.

The jury will be hung, said that day one. Hopefully it will be majority aquit and they won’t bring it again.
Country all dug in at this point. There has to be some psycho librulls on that jury who want his scalp.

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