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:
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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