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Rittenhouse Trial: Big Wins for Defense on Jury Instructions, State Leads with Provocation

Rittenhouse Trial: Big Wins for Defense on Jury Instructions, State Leads with Provocation

Worth remembering ADA Binger mentioned provocation zero times in opening statement

The Rittenhouse trial has paused for lunch, so I’m taking this opportunity to provide a quick update.

The morning began without the jury in the courtroom, with a meeting to finalize the instructions to be given to the jury.

The defense came away with three big wins as a result of these discussions, and one that did not go their way.

One win was the dismissal of the gun possession charge—finally!  My first analysis of this gun possession charge that concluded it ought to be dismissed as a matter of law, and never be considered by a jury, was posted way back on September 7, 2020, more than 14 months ago.  It was nice to see Judge Schroeder finally see the wisdom of my position.  So, Count 6, the gun possession charge, has been discarded.

A second win, with respect to the State’s argument of provocation, the State will not be permitted to claim as fact that Kyle pointed his rifle at the Ziminski’s. This is important for the defense, because the purported provocation of pointing the rifle at the Ziminski’s, which if believed would strip Kyle of self-defense completely, requires an unlawful act on his part that provoked the Rosenbaum attack.

The State wants to claim that unlawful act was Kyle pointing the gun at the Ziminski’s—but there’s no actual evidence of this.  There’s no photo or testimony that Kyle pointed his rifle at the Ziminski’s.  Even the “enhanced” drone video left for the prosecution by the evidence fairy does not have the Ziminski’s in frame when Kyle is supposedly pointing his rifle.

So, the State will only be permitted to argue that Kyle pointed his rifle in some general direction, that different video shows the Ziminski’s in that general area, and therefore the jury should infer that Kyle was pointing his rifle at the Ziminski’s.

If the jury disbelieves any part of that, there was no unlawful act that provoked the Rosenbaum charge, and therefore no provocation that strips Kyle of self-defense.

A third win, with respect to Count 2, the reckless endangerment of McGinnis, the judge agreed to the suggestion by defense attorney Chirafisi that he would instruct the jury that if Kyle’s use of force with respect to Rosenbaum was lawful self-defense, then it was not conduct that was reckless with respect to McGinnis—so, if shooting Rosenbaum was lawful self-defense, there also was no reckless endangerment of McGinnis. Self-defense on Count 1 would also clear away Count 2.

One point that did not go the way of the defense was their request for a jury instruction that the jury ought not convict Kyle solely on the drone video footage.  The judge declined that instruction, saying it’s up to the jury to weigh the evidence.

These discussions were followed by the actual instruction of the jury in the courtroom, and this was among the most confusing and disjointed instructions of a jury I’ve ever seen. At one point, in fact, the judge sent the jury out of the courtroom, as he recognized just what a mess the process had become.

Here the defense actually acquired a fourth big win on the jury instructions.

The issue had been that the instructions as provided in standardized form might have misled the jury into believing that even if they found the defendant not guilty of a primary criminal charge on the grounds of self-defense, that they then should nevertheless go on to consider if he’s guilty of one of the lesser included charges.

This is not how it works. If the defendant is clear of the primary charge on the basis of self-defense, his conduct was legally justified, and cannot be the basis for a conviction on a lesser included charge.

Ultimately, Judge Schroeder decided that he would essentially just tell the jury that if they believed the defendant’s conduct was self-defense, they were done—that was a not guilty verdict on that charge, and they need not consider either the primary charge nor any lesser included charges in that count.

That’s what the jury SHOULD have been instructed to do-consider self-defense first.  If they do that, and find self-defense, they’ve made their deliberations a heck of a lot more efficient, because they’ll never have to consider the corresponding criminal charge of its lesser includeds at all.

Once the jury was instructed, ADA Binger began his opening statement, and as we all expected the State is leading with the only real argument they have—that Kyle provoked Rosenbaum by pointing his rifle towards the Ziminski’s, then again when he was being chased into the cars where he would finally shoot Rosenbaum, and that Kyle could have kept running and thus did not exhaust every possible means of escape, and regain his privilege of self-defense.

Accordingly, Binger argues, Kyle simply has no self-defense privilege to claim at all, as a provoker who lost but did not regain self-defense.

Predictably enough there’s also a lot of the innuendo and emotive talking points that Binger likes so much. Kyle was an outsider to the community. Kyle lied all night about being an EMT. Kyle brought an AR-15. Kyle was looking to tell other people what to do. Kyle knew he was putting himself into a hostile environment. This is what happens when we let 17-year-olds walk around the streets with ARs.

With respect to the Rosenbaum shooting in particular, Binger argued not only that it was all Kyle’s fault because of his provocation, but that Kyle should have known Rosenbaum was helpless after the first shot broke his pelvis, and there was no need to track the body to the ground and shoot Rosenbaum in the back.

Binger also stated, wrongly, that a person who brings a gun with him can’t claim self-defense—suggesting that the bringing of the gun itself was a provocation.

Somewhat surprisingly the defense did not object here, but they had objected to several prior statements by Binger that were very marginal to say the least, and each time the judge had told them to just address it in their own closing argument, so perhaps the defense figured that’s the response they’d get to an objection here, as well.

Binger was only part way through his Rosenbaum narrative when the court recessed for lunch, which is were we are now, until 12:45PM CT.  Presumably he picks up where he left off then.

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

“Somewhat surprisingly the defense did not object here, but they had objected to several prior statements by Binger that were very marginal to say the least, and each time the judge had told them to just address it in their own closing argument, so perhaps the defense figured that’s the response they’d get to an objection here, as well.”

Well, that answers an important question many of us have had.

    Capsaicin_Addict in reply to henrybowman. | November 15, 2021 at 2:45 pm

    If that’s the case, then Richards had better tear Binger apart in his closing argument.

      If Richards was ever going to do anything, he would have objected. Actually, he shouldn’t have needed to object — the judge should have cracked down on Binger for lying to the jury that having a gun precluded claiming self-defense.

    aslannn in reply to henrybowman. | November 16, 2021 at 6:07 am

    That’s a pretty important point, however. One would think that they’d want to make an objection, just to have it on the record in the eventuality of a conviction and appeal.

I think (or hope) what we’re going to see will be reflected in blame. The jury should blame Binger for dragging them all into court, for endlessly trying to blow molehills into foothills (because they ain’t mountains by no means), for constantly making statements that make the jury go off to their quiet room, then back into the courtroom, over and over. If so, the defense’s decision to remain fairly quiet and only object to the worst Bingerisms is a good idea, because I’ll bet more than one jury member is muttering under their breath every time the blowhard stands up. “Oh, God. Now what is he doing? I have a life that I’d like to get back to.”

    gran2ten in reply to georgfelis. | November 15, 2021 at 6:41 pm

    to say nothing of the fact the jury is aware they will have a target on them from now until whenever, and their families. These threats are from the kind of people who will do harm to anyone and everyone who defies them!

The state never proved its case and they really didn’t get a big win on anything. At this point, the defense gets its closing than the hapless gets rebuttal, and to the jury that might take weeks with all the instructions.

If provocation is decided by whether KR pointed his firearm (left handed btw) at somebody, where is that person’s testimony saying exactly that?

    Zoltan Jones in reply to mrtomsr. | November 15, 2021 at 5:13 pm

    I don’t recall an exert witness saying that the “enhanced video” actually depicts KR raising his rifle at Ziminski. The prosecutors have been allowed to simply assert “facts” into the record, as if they were sworn in witnesses. The Defense should have made issue of this, and potentially killed the State’s “provocation” argument. Had they asked the policeman who created the faked video if he could say with absolute certainty that the video showed KR raising the rifle at Ziminski, the policeman would have said NO. That might have convince the Judge to deny the prosecutor’s trick to put a Rorschach test before the jury.

    gran2ten in reply to mrtomsr. | November 15, 2021 at 6:44 pm

    After O.J. Simpson, we all realize the greater jury is the public. When the majority of the violent public do NOT GET THE VERDICT THEY WANT, WATCH YOUR BUSINESS BE BURNED DOWN, WATCH YOUR BACK!

    DaveGinOly in reply to mrtomsr. | November 15, 2021 at 8:15 pm

    Was allowing the prosecution to mention provocation reversible error?

    Here is a list of problems with “provocation”:
    1. We don’t know that Kyle provoked anyone because no evidence or testimony regarding same was presented in court, so “provocation” is not a fact in evidence. (Whoever Kyle may have provoked by aiming his rifle at them did not appear in court, or, if they did, gave no such testimony. The prosecution also admits that whoever Kyle was provoking wasn’t in the frame of the video. So how do they know he was provoking anyone? Maybe he was just adjusting his rifle and sling and had the weapon pointed in a safe direction.)
    2. If Kyle did provoke anyone, we don’t know that the provocation was aimed at Rosenbaum, his first attacker. This is esp. important if the state claims provocation with intent. Intent to provoke implies an intent to provoke certain persons in order to get a reaction from them (and not to simply be “provocative” in general), and we don’t know if Rosenbaum was among those persons Kyle had the intent to provoke.
    3. We simply do not know if Rosenbaum was even aware of the alleged provocation.
    4. Even if Kyle did provoke someone (even Rosenbaum), there is no evidence that Rosenbaum’s attack was due to the provocation. Rosenbaum had earlier that evening expressed his own desire to kill Kyle later that evening. No provocation was necessary to provide Rosenbaum with a motive for the attack, because Rosenbaum already had a motive. Provocation does not preclude actions (even by those who are being provoked) that are motivated by factors other than the provocation.

      dunce1239 in reply to DaveGinOly. | November 16, 2021 at 3:45 pm

      Is provocation a criminal act?? How provoked must one be to react with attempted murder justifiably. Weird question i know but it must still be answered.

And how can they allow the kid to be found innocent? He stopped their stormtroopers dead and ended the riots. If he’s innocent they lose their terrorists. Who would let another bike lock or even back shooting happen when you can shoot them? They will need to take the gloves off and use their real stormtroopers.

    stevewhitemd in reply to forksdad. | November 15, 2021 at 3:50 pm

    A fair point — it’s easy to be brave swinging a bike lock or a skateboard, with a trash-can lid for a shield and a three dollar pair of shop goggles for eye protection, if there is no chance that the other guy will shoot back.

    This is the logic behind the saying, “God created man; Sam Colt made them equal.”

Has anyone figured out who the magical evidence fairy is and why it took until the week before closing arguments for this to surface?

Without their grainy stills, the prosecution has no way to pierce self-defense. Was Binger depending on the gun charge to go through to attack “innocence”?

civisamericanus | November 15, 2021 at 4:02 pm

“Binger also stated, wrongly, that a person who brings a gun with him can’t claim self-defense—suggesting that the bringing of the gun itself was a provocation.” Maybe he should tell that to Grosskreutz as well, then.

    Why tell Grosskreutz? When do you think he will be arrested and charged? I’m betting the second of never.

    Once a lie is spoken it’s not going to be ignored, to some it will resound over and over and the lie will be used yet it’s still a lie. How do these prosecutor’s are live with themselves, they are despicable!

So…are lawyers really allowed to blatantly lie about the law in closing statements?

What recourse does the defense have when, in rebuttal, the prosecution simply lies about the law.

    gran2ten in reply to Dathurtz. | November 15, 2021 at 7:08 pm

    I pray we get an answer regarding your great question, this is an injustice to ALL OF US WHEN PROSECUTORS CAN OUTRIGHT LIE! THEY ARE SHAMELESS!

These discussions were followed by the actual instruction of the jury in the courtroom, and this was among the most confusing and disjointed instructions of a jury I’ve ever seen. At one point, in fact, the judge sent the jury out of the courtroom, as he recognized just what a mess the process had become.

Which is one reason why the jury will ignore the instructions and do what they want. Justice is not compatible with appeasing the mob.

This judge gives every impression of being in over his head. The prosecution pushed him around like a shopping cart. No one respects him any more, so why should the jury listen?

    He reminds me of one of those teachers who simply cannot maintain control of even the good kids. Or one of those parents with an absolutely atrocious kid who fuss but have bo intention of actually molding the kid.

The Friendly Grizzly | November 15, 2021 at 7:44 pm

I caught a bit of the prostitution’s closing argument while waiting in preop earlier today. That guy really is a putz, isn’t he!

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