Rittenhouse Trial Day 2: Prosecution Witnesses Still Fail To Contradict Self-Defense
Much of the development of this trial is reminiscent of the trial of George Zimmerman.
Today’s long day of trial proceedings was largely a tiresome affair, as the state prosecutors continued to appear unable to extract from their witnesses any substantive evidence inconsistent with Kyle’s legal defense of self-defense. That said, there were a couple of real highlights of the day, as well, so we’ll focus on those in tonights’ end-of-day summary and analysis.
This ought to be troublesome to them, considering that the state bears the burden of disproving self-defense beyond any reasonable doubt, and even the charges of recklessness are going to only more difficult if Kyle’s actual shooting of three people is found by the jury to be legally justified.
I will, of course, share my notes on even the more tiresome parts of the day, but rather than starting this end-of-day wrap-up chronologically, I’ll instead start with the two parts of the day that were the exceptions to the tedium.
And for certain the highlight of the day was the cross-examination by Defense Attorney Mark Richards of state’s witness Detective Martin Howard, the lead police investigator on the Rittenhouse case for the Kenosha Police Department. Indeed, this cross-examination was interesting both in certain specific details as well as generally.
In fact, if you watch no other of the embedded videos of today’s proceedings, I urge you to watch that cross-examination of Detective Howard in its entirety. Even better news is that it’s not done yet, we’ll have more of Attorney Richards cross-examining Detective Howard first thing tomorrow morning.
The second interesting part of the day occurred when ADA Binger attempted to inject a considerable quantity of hearsay into the court’s proceedings. We’ll discuss that in greater detail, as well.
Did ADA Binger Conspire An Unjust Prosecution From the Start?
I must confess, and this is probably some kind of reverse ageism on my part, but the moment I saw Detective Martin Howard seated in the witness stand I thought to myself, holy cow, that guy looks like he’s twelve (see the featured image).
This apparent youth made a lot more sense when ADA Binger asked Howard how long he’d been a detective, and the answer was, “almost three years.”
But that also raised questions in my mind. Wait a minute, I thought. The events at the center of this trial occurred 15 months ago. That means that at the time of this event, the Kenosha Police Department assigned to what was sure to be one of the highest-profile cases of its history to a detective with fewer than 21 months in that investigatory position?
That seemed, well, odd. Were there no other more senior detectives to take the lead on this high-profile case that would be sure to attract national, if not international attention?
That background on Howard happened as ADA Binger was having him introduce himself to the jury, however, and as curious as it was to have a detective of such limited experience given such a high-profile case, things got even more curious when Defense Attorney Mark Richards got ahold of Howard on cross-examination.
If you’re wondering how curious, you’re in luck, because I’m here to tell you.
Apparently, Howard violated a number of the departments’ normal investigative practices with respect to this case, while (the defense suggests) being in unusually close and improper communication with ADA Binger himself—and, remarkably, shortly thereafter getting the plum assignment for such an inexperienced detective of being assigned the lead investigator on the Rittenhouse case.
So let’s take a closer look at how Attorney Richards began to expose what the defense suggests is a foul stench at the core of this investigation and trial.
Richards noted that the investigation had collected a lot of the information for this case from people’s cell phones, particularly photos, videos, social media posts, text message, even phone calls. Howard agreed.
In fact, the investigation was pretty firm about getting that phone data from involved parties, as they normally would be in a homicide investigation. Basically, people were brought in for questioning, and when they arrived they were told that they could either provide consent to have their phone downloaded, or they could compel the police to get a search warrant and “crack” the phone—but in any case, they were not leaving with the phone until its data had been downloaded by the police.
Apparently some phones were downloaded with consent, and some with warrants, but two phones, in particular, had interesting twists in how they were handled: the phone of Kyle Rittenhouse, and the phone of Gaige Grosskreutz.
Investigative Handling of Kyle Rittenhouse’s Cell Phone
In the case of Kyle Rittenhouse the police simply seized physical possession of his phone—he was, after all, a criminal suspect, and began the process to download its data. It turned out, however, that the phone could not be “cracked” by the Kenosha Police Department.
Well, that’s fine, they thought, we’ll just send it off to the Federal Bureau of Investigation and have their fancy-pants lab do it.
Except it turned out that the FBI also lacked the ability to crack Kyle’s phone. It seems the product was an iPhone with the latest operating system, and the FBI’s technology had not yet been developed to “crack” that combination.
That means that if Kyle had wished, he could have denied consent to download his phone, and the police would have been unable to access the data even with a valid search warrant in hand (which they surely would have obtained without difficulty), because they had no technological means to “crack” the phone. So if there was anything that Kyle had to hide on his phone he could have done so, and there would have been nothing that the investigators could have done about it.
When this came to the attention of Kyle’s attorneys they consulted with their client, and made an offer to the police: They’d simply provide the police with the passcode to unlock the phone—already in police possession—granting them unlimited access to its data, and all they asked in return was a copy of data for themselves.
And that’s what happened.
Investigative Handling of Gaige Grosskreutz’ Cell Phone
Things went quite differently when it came to the cell phone of Gaige Grosskreutz, however.
In preparation for an in-person meeting with Gaige Grosskreutz, his lawyer, and representatives from the District Attorney’s office, the police investigators first obtained a search warrant. Again, their standard practice was to always gather up cell phones of people involved in an investigation and download the data, just as normal investigative practice. With the search warrant in hand, about which the Grosskreutz lawyer could have done nothing, they were prepared to do with the Grosskreutz phone what they’d done with every other person’s phone.
Despite having the search warrant in hand, however, and having Grosskreutz and his cell phone both present at the meeting, the investigators ended up not serving that search warrant on Grosskreutz, not seizing his phone, and not downloading the contents.
Not only was Grosskreutz the only person of interest to this investigation who did not have his phone downloaded, he was the only person in Detective Howard’s experience of any Kenosha PD investigation ever where a search warrant for a phone download had not been served.
So, an exceptional breach of standard investigative procedure, indeed.
When Richards asked Detective Howard why this search warrant had not been served, the response was that concerns had been raised about Marcy’s Law. For those who don’t know, Marcy’s Law is often referred to as a “crime victim’s rights” law. It provides privileges to crime victims such as notification of criminal proceedings including any plea bargain, trial, sentencing, and parole of the criminal who victimized them. More relevant here, it also includes provisions to protect the privacy of crime victims.
Here, apparently, it was decided to, first, characterize Gaige Grosskreutz as a “crime victim,” and, second, to use that status and its privilege of privacy to excuse him from having his cell phone subject to search warrant and download.
And who was it, specifically, who had raised these Marcy’s Law concerns with respect to Grosskreutz and his phone, asked Richards of Detective Howard?
The answer: None other than Assistant District Attorney Timothy Binger, the lead prosecutor on this very Kyle Rittenhouse trial.
Richards then asked Detective Howards if he had ever before not served a valid search warrant because of Marcy’s Laws concerns? The answer: No.
And since that day, September 24, 2020, had Detective Howard on any occasion not served a valid search warrant because of Marcy’s Laws concerns? The answer, again: No.
One might begin to imagine that ADA Binger’s concerns about Marcy’s Law with respect to Grosskreutz and his phone were less a matter of legal principle and practice, and more a pretext for not discovering information he didn’t want to know himself, and that he didn’t want to be obliged to provide to the defense as Brady evidence (exculpatory evidence a prosecution must share with the defense).
That wasn’t the only exception to normal investigative practices when it came to Grosskreutz, however. Richards began to run down a long list of various witnesses who were interviewed for this case, every one of which had that interview video recorded. You interviewed Dominick Black? Yes. Recorded? Yes. You interviewed Richard McGinnis? Yes. Recorded? Yes. You interviewed this social media person on the scene and that social media on the scene? Yes. Recorded? Yes.
You interviewed Gaige Grosskreutz? Yes.
And Grosskreutz wasn’t the only witness to get specialized treatment in this investigation.
Another was a social media influencer, “bgonthescene,” who made one of the more prominent videos of events that night. When he was first questioned by police they discovered he was not merely in possession of his phone, but also of a quantity of marijuana—and recreational marijuana possession is an arrestable crime under Wisconsin law.
Naturally, they also had hanging over his head the possibility of a curfew violation—but that’s merely a civil ticket, not an arrestable offense.
Detective Howard was the person questioning “bg” in this interview—and this interview, unlike that of Grosskreutz, was recorded. Ultimately “bg” agreed to allow Howard to download his phone. Later in the interview Howard leaves the room, makes a phone call, and when he returns he tells “bg” that you had spoken to someone at the DA’s office and they indicated that he need not be arrested on the marijuana offense, he could instead go home.
The only reason the defense knows all this, by the way, is that the events were accidentally captured on the recording equipment used for the interview, and that recording had been handed over to the defense as a normal part of discovery.
Richards noted that Detective Howard himself did not have the authority to make promises or deals for cooperation, and Howard answered by saying “we wanted the video, or we would cite him for the marijuana.
Richards also noted, and Howard conceded, that the detective did not work for the prosecutor’s office, that he worked for the police department, and that it was his job and legal duty to gather evidence impartially, “without fear or favor.”
So, who gave you that permission to make a deal with “bg,” asked Richards? Was it the DAs office? The implication being, of course, “was it ADA Binger?”
At this point Detective Howard lost his memory, and couldn’t recall whether anyone had given him permission.
And here’s a remarkable coincidence—it was that very night that brand-spanking new Detective Howard was made lead investigator on the Kyle Rittenhouse case.
To be clear, there would be nothing wrong with someone like ADA Binger granting permission to Detective Howard to make deals for cooperation—but then ADA Binger would have the obligation to disclose such arrangements to the defense. After all, it goes to potential bias. For example might “bg” have had additional videos that were exculpatory for Kyle? The defense deserves to know. And no such disclosure had been made. An undisclosed deal would be misconduct.
Given that Howard had suddenly lost his memory on this question, it wasn’t as if Richards had obtained a sudden courtroom confession. But the implication in the court room was pretty patent—and foul.
Defense Attorney Richards Mines Other Gold On Cross of Howard
These suggestions of investigative irregularities orchestrated by the DA’s office or even by ADA Binger personally were the highlights of Richards’ cross-examination of Howard, but they were far from the only gold that was mined during that cross.
ADA Binger had spent roughly two full hours questioning Detective Howard on the witness stand on direct examination. Admittedly, most of that time was spent showing various videos of events and occasionally getting a brief comment or observation from the detective.
Bottom line, however, is that if there was any evidence developed in that two hours of direct examination that was inconsistent with Kyle Rittenhouse’s legal defense of self-defense, I didn’t hear it. And keep in mind—the state’s core burden here is to disprove that claim of self-defense, and not just by a little, but beyond any reasonable doubt.
Indeed, we’ve now completed two full days of testimony from state’s witnesses, and over that entire period, I haven’t seen any evidence yet inconsistent with self-defense. A lot of hand-waving? Yes. A lot of innuendo? Certainly. A great deal of pounding the table? For sure.
Actual substantive evidence that effectively attacks any one of the key legal elements of Kyle’s claim of self-defense? Not so much.
To the contrary, much of what Binger has been sharing with the jury has been evidence consistent with Kyle’s claim of self-defense, such as his being ferociously pursued and attacked by multiple aggressors over multiple instances, as well as his well-intentioned motives for being present in Kenosha that night, such as repeated video of him calling out “Anybody need medical?” an offer made without reservation to everybody present on the streets that night.
In contrast, Richards’ cross-examination of Detective Howard led to a great deal of testimony that was highly favorable to the defense.
When you first interviewed Kyle at the Antioch IL police department in the early morning hours of August 26, where he had turned himself in, was he handcuffed? No. In a locked interview room? No. Under observation? No. Kyle was simply waiting in the unlocked lobby with his mother for Detective Howard to show up.
ADA Binger on direct had asked about Kyle’s injuries observable to Howard, and only slight injuries had been in evidence, the implication of course being Kyle had not faced a danger that justified shooting several people.
Of course, no one is obliged to suffer even a scratch before they can be lawfully privileged to use even deadly force in self-defense. The law privileges you to defend against the imminent attack, before the blow is struck.
Richards countered this nicely on cross. When you’re being kicked in the face, you don’t know how seriously you could be injured, correct? When you’re hit in the head with a heavy skateboard, twice, you don’t know how seriously you could be injured, correct? When someone gets a hand on your gun, you don’t know if they’ll take it and use it on you, correct?
Howard: Correct. Correct. Correct.
When Rosenbaum is in this group of cars, he’s hiding? It appears so. And then when my client passes, Rosenbaum pursues, closing on my client? Yes.
When Rosenbaum begins chasing Kyle, does Kyle shout “friendly, friendly?”
Howard: Actually, friend, friendly, friendly.
And that means, I don’t have a beef with you, I don’t want to fight? Yes.
Those protestations of friendliness don’t dissuade Rosenbaum’s attack? No. He continues to gain ground on my client, attempting to flee? Yes. Even when Kyle turns slightly to ensure Rosenbaum has seen his rifle, that still doesn’t dissuade his attack? No.
Keep in mind—this is the state’s witness. And his actual testimony was substantively favorable to the defense, and largely unhelpful to the prosecution.
Here’s that cross-examination of Detective Howard, which I remind you will continue in the morning:
Direct Examination of Detective Howard by ADA Binger
As I’ve already noted, the roughly two hours of total direct examination of Detective Howard by ADA Binger that preceded the cross by Richards was largely a snooze-fest, and I don’t have any particularly notable highlights from it to share. Most of that two hours were spent displaying many of the videos of the events that night, with only an occasional question to Howard.
The one exception to the snoozefest was one extensive debate among the parties about some evidence that Binger wanted admitted badly—a debate that he lost—but I’ll touch back on that in a moment.
I will note that the direct of Howard was broken up by some sidebars and breaks, so I present it here in its four constituent parts, before jumping to the next of the two exciting portions of the day:
ADA Binger’s Failed Effort to Inject Hearsay Into the Trial
So, this is the second of the two exciting portions of the day—and when I say “exciting,” I must confess I mean it in a technical, nuts-and-bolts legal kind of way.
Specifically, when ADA Binger was only about seven-and-a-half minutes into his direct examination of Detective Howard he managed to step on something of an evidentiary landmine—and one that should not have surprised him.
Specifically, with Howard on the witness stand, Binger presented yet another video of the events of the night in question, this time by a videographer who spent much time chatting with Rittenhouse and Ryan Balch (accompanying Rittenhouse, and also armed with an AR-style rifle).
The problem with this recording, legally speaking, was that the videographer was not merely recording video, and not merely asking Kyle questions and getting answers—he was engaged in more or less continual editorializing about what he was seeing, stating opinions, and voicing judgment calls. In particular, he repeatedly characterized Kyle as a “militia member,” a characterization to which the defense strongly objects, and for which there is no actual evidence.
When Binger began to play the video, the militia characterization began to pop up, and the defense objected to that term. The state then agreed to mute the video to avoid the use of that term, but then more editorializing came up, and a more robust objection was made.
The problem with all this editorializing wasn’t so much the sentiments themselves, but the fact that they were being presented in the form of hearsay—out of court statements presented in court for the truth of the statement itself. Such evidence is inadmissible. If such evidence is to be admitted, it must be accompanied by the videographer himself, so he can be sworn, testify from the witness stand, and be subject to cross-examination by the defense. None of that is possible if only the video is presented.
The discussion got sufficiently heated that Judge Schroeder had the jury excused from the courtroom.
Binger attempted to argue that he was not, in fact, offering the statements for their truth, so they didn’t qualify as hearsay, to which Judge Schroeder responded that in that case the statements had no relevance, and should be inadmissible on that basis.
To this Binger responded that they did have relevance because they went to Kyle’s state of mind—he was personally present, so he was seeing what the cameraman was recording.
To this Defense Attorney Richards burst out that he hardly knew how to respond to such an argument, because the suggestion that the cameraman’s statements represented what was in Kyle’s mind was absurd—was he mind-reading?
What was perhaps most remarkable about this exchange was how vigorously Binger fought to get these statements into evidence, despite the patently shaky evidentiary ground he was standing on. The only reason I could imagine he’d fight so hard for inadmissible hearsay is that this stuff might actually be among the best evidence he has to offer.
And if that’s true, the state is in even more trouble than I’d started to suspect.
When he finally ran out of other arguments, Binger suggested that Judge Schroeder should simply allow in the statements regardless, and simply give the jury a limiting instruction to not pay attention to the hearsay parts.
If that was a reasonable approach, we wouldn’t need to exclude hearsay evidence ever, we could simply always just give that instruction—which, of course, would be insane. Once the jury’s heard the words, they don’t forget them.
Indeed, so wacky was this last desperate suggestion by Binger, and so annoyed was Judge Schroeder’s response, that the judge abruptly called a recess, announcing that he found it “prudent” to take a break.
And when the court came back into session, it seems that Binger had been informed off camera that his evidence was inadmissible, because it was never offered again.
This discussion happened between the first and second episodes of direct questioning of Howard that I shared above, and you can enjoy the debate here:
Finishing Up the Questioning of Koerri Washington (aka Elijah)
Prior to all of the above happening, of course, the court this morning first finished up with the witness carried over from yesterday afternoon, Koerri Washington, known in his “social media influencer” role as Koerri Elijah.
I haven’t much to say about this, either on direct questioning by Binger, cross-examination by Defense Attorney Chirafisi, re-direct by Binger, or re-direct by Chirafisi, except to note that I didn’t really see the prosecution get any value out of Washington at all. And, frankly, the defense didn’t get much out of him, either, that they didn’t already have—meaning, they got his videos which are consistent with lawful self-defense by their client, but we pretty much already have that.
In any case, here’s the completion of direct, and the cross-examination, re-direct, and re-cross of Washington:
It seemed to me that the state really needs to get some traction on undermining Kyle’s claim of self-defense with today’s witness—or at least with some witness—and they failed to it here.
Frankly, much of the development of this trial is reminiscent of the trial of George Zimmerman. Zimmerman, too, raised the legal defense of self-defense, and he, too, started with the legal presumption of innocence. Every day I waited for the prosecution in that case to show us the compelling evidence they had that seemed capable of meeting their burden to disprove self-defense beyond a reasonable doubt. Indeed, every day of the state’s case only seemed to reinforce the strength of Zimmerman’s self-defense claim.
Granted, we’re only two full days into the state’s case here—but I’ve yet to see any compelling evidence that seems capable of meeting their burden to disprove self-defense beyond a reasonable doubt. And I’m beginning to wonder if we ever will.
OK, folks, that’s it for tonight. Join me again tomorrow morning at Legal Insurrection for our LIVE real-time streaming of the trial proceedings, as well as our real-time commenting on trial events as they occur.
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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Something fishy with this whole case.
Never felt right to me from day one.
Looking weirder with each passing moment.
This young man is being used for nothing else but as an example. The process is the punishment, and who is going to pay his legal bills?
Yep. You’re not allowed to defend yourself or others – we have a special class of people (police) for that.
Which is a basic denial of the fundamental idea that the power flows from the citizens to the gov’t.
The whole thing looks staged to me.
A 17 yr old boy shooting like an operator.
Cool and calm amid chaos.
If you fall to the ground then are surrounded with a long gun you are unable to shoot effectively, mostly you die.
The running around “Medic” when nobody wants him there.
Everyone from the same ethnic group.
Not buying it. Not going to watch it.
This is theater.
I don’t know if its drugs you are taking or drugs you aren’t taking, but sweet jesus get professional psychiatric help.
You’ve already found him guilty so no idea why you are wasting your time here. There is nothing you can be shown that will ever change your mind.
Where did I say he is guilty.
If you watched the 2.5 hr video eyewitnesses said
“there were two shooters”
and their were. Rittenhouse fired 4 rounds at Rosenbaum and someone else fired 4 rounds.
Who was that someone else?
Where did I say he is guilty?
If you watched the 2.5 hr video eyewitnesses said
“there were two shooters”
and their were. Rittenhouse fired 4 rounds at Rosenbaum and someone else fired 4 rounds.
Who was that someone else?
Thanks for your input Mr. Grosskreutz.
Take your meds, schizo.
I thought that this was clearly self defense from the very beginning.
I am in western Colorado and I am starting to smell the stench of this persecution !
Thanks, Andrew. Your summaries are great, and I appreciate the opportunity you provide us to view the trial in segments.
I agree with your analogy to the Treyvon Martin/George Zimmerman case. Politics were involved in the initiation of prosecution of that case, too.
This ADA Thomas Binger seems to be as sleazy as Durham County, North Carolina former District Attorney Mike Nifong, of Duke Lacrosse Case fame.
Based upon what I’ve seen of this case, from the day of young Rittenhouse’s valiant and disciplined self-defense, this case should NEVER HAVE BEEN PROSECUTED. And, Thomas Binger had, and continues to have, a duty to resign rather than follow orders to prosecute this travesty of justice.
Certainly it never should’ve been prosecuted, but the social mechanics make that absolutely impossible.
The minute a white kid with an AR-15 pegs three members of their home team, the MSM gets their panties in a noose and demands that the kid be burned at the stake as a witch. Nobody ever tells the MSM just to shut up because they don’t know what they’re talking about. Well we do, and Trump does, but nobody else. So right off the bat the local politicians have to make a decision about how they’re gonna handle the artificial uproar, and they knuckle under (as they always do) to the Marxists. That just sets the stage, everything else proceeds according to formula from there.
2 days in and the prosecution has nothing. They have no case. They knew this from the start and went ahead anyway. Makes me very angry.
The phone dichotomy between Rittenhouse and Grosskreutz was most interesting. Also, a lot of video shown by the state, to me, made Rittenhouse look not just non-threatening but helpful. I had no idea what his character was like until today. I believe he’s a good person. Personally, I don’t think he should have been there, I’ve said this and will continue to say it. There is no need to go to trouble if you don’t have to. But that has nothing to do with his case, he was wrongfully attacked, he was wrongfully brought to court.
I hope the jurors leave to deliberate, the judge says, “Alright, break time” and opens a sandwich and before he can stuff it in his mouth his phone rings and he’s told they’re coming back and he says, “I’ll be gal-darned” and he’s got a pile of not guiltys sitting on top of the bread.
The set ups in these cases are blatant disturbing. Großkreutz gets the kid glove treatment because he’s one of the worst offenders and the city machine doesn’t dare give a conservative Christian kid with a gun a break. Every one of the violent trespassers who accosted the McCloskey’s were allowed to walk on their crimes specifically because if any of them had been convicted, it would’ve helped McCloskey’s case. Lady Justice hasn’t been blindfolded for years.
The treatment of Grosskreutz is particularily appalling because Grosskreutz himself should be a crime suspect. If you buy the prosecution’s theory about Rittenhouse going looking for trouble with a gun, that same standard also applies to felon Grosskreutz. In his case, he attempted murder that was only interrupted when his right arm exploded from a gunshot. Unlike Rittenhouse, Grosskreutz was not protecting himself or others.
If they charge Grosskreutz with either aggravated assault or attempted murder then Kyle’s self-defense claim becomes a slam-dunk. They had to let him go to preserve the case against Kyle.
I get that. But who made the decision to avoid charging him, and how did they justify not charging him as a felon in possession of a firearm (which would have no bearing on KR’s guilt or innocence)? There aren’t many instances of someone avoiding an illegal possession charge when using a contraband firearm just because they were defending their lives with it (if that’s what Grosskreutz was doing as a “victim”).
This is how good people stand out from the others. They go to the trouble to provide help for those who need it.
And this young lad is a good person.
Why did the defense not object to clearly leading statements? It felt as if Binger was the one testifying (even if the evidence favors Kyle).
How was all those videos admitted with no foundation? Why not call up the people who shot the videos up? I didn’t like how passive the defense was.
I fear for Kyle. Richards was all over the place and even if you believe his redirect was good the jury probably didn’t catch any of the points you make because of how late the day was.
Theres a saying that when the opposition is burying itself with a bad case you dont stop them.
I believe there was a stipulation, so there was no need to bring in witnesses to lay the foundation for admissibility. A large part of the the defense’ strategy is to make the prosecution look like they are the ones hiding the ball, and not them. That strategy is not advanced by making pointless objections to the admissibility of video that they want in themselves.
Correct. All the video evidence was stipulated to.
At what point does a prosecutor cross ethical boundaries by making patently dishonest arguments that are unsupported by facts and the evidentiary record?
Remember that a prosecutor’s role is to pursue justice — not to use whatever tactics are at his/her disposal, to seek a conviction. If the evidence doesn’t support the charges, then, from an ethical standpoint, the defendant should never be tried. But, as with the Zimmerman show trial, and, now, this Rittenhouse trial, we see an utterly corrosive and ugly perversion of justice when Leftist politics and the mob’s bloodlust intrude on what should be a highly ethical and dispassionate process of assessing evidence and weighing whether criminal charges are supported by that evidence.
“Remember that a prosecutor’s role is to pursue justice — not to use whatever tactics are at his/her disposal, to seek a conviction.”
I beg to differ, sir. This is cynical of me, but just because I’m cynical doesn’t mean my observation isn’t accurate. I realize that there’s a prosecutor’s code of ethics. And that code states it’s a prosecutor’s job to see that justice is served, not to get convictions.
You might as well use those ethics codes as toilet paper. A DA’s real job is to get elected. Apparently this ADA is trying to help his boss accomplish that. Or, his boss, Michael Gravely, has higher political ambitions and Binger wants to move up to DA.
It could be several things going on here. In June 2018 Chrystul Kizer shot and killed Randall Volar, then set fire to his house. She was of course charged by Gravely with murder and arson.
But here’s where the story becomes disgusting. Volar used to maintain a website that he would use to target and traffic black girls as young as 12. He doesn’t maintain that anymore (not just because he’s dead) because the FBI confiscated it, and arrested and charged Volar in early 2018 with various sexual offenses including rape. For some reason this violent predator was granted bail (something the J6 “insurrectionists” charged only with non-violent misdemeanors are denied) and later in the year he confronted one of his victims at his house and allegedly attempted to rape her. Which is believable as he had a habit of raping his victims. This time his long-term victim, Chrystul Kizer, had enough.
The facts, acknowledged by all sides, are that Volar had been raping and trafficking ( I guess that’s the new word for pimping out) Kizer for years. But in response to overwhelming outrage from both inside and outside the legal community he said Kizer had planned Volar’s murder, and he wasn’t going to tolerate “vigilante justice.”
I suppose she did plan it, in the sense of “The next time that m*****f***er tries to rape me I’ll kill him.” Which I don’t consider “premeditation” since had he not tried to rape her, he’d be alive. Hell, if the authorities up in Kerazytown WI had any sense and denied a violent serial sexual predator bail he’d be alive.
But apparently Gravely views all self-defense “vigilante justice.” Which seems to be how, despite all the evidence to the contrary, they’re trying to paint KR as a “chaos” tourist who tried to hunt down Antifa/#BLM “mostly peaceful protesters” who were exercising their 1st Amendment rights to torch buildings and car lots.
Or, alternatively from the way ADA Binger has gone out of his way to treat Antifa/#BLM rioters/looters/arsonists as innocent “crime victims” and has from the start acted more like their defense attorney albeit one who also has the power to go on the offensive the DA’s office may simply agree with Antifa’s/#BLM’s politics.
This seems to play well in Kenosha. As I mentioned, perhaps earlier here, perhaps on another thread, one of KR’s former attorneys has conducted polling. 2/3 of the people in Kenosha believe KR is guilty of the charges against him. I have also mentioned that the Federalist’s court observer, Victoria Taft, is convinced based on their own statements that most of the jurors believe KR must be guilty of something. One juror stated that no one needs a “machine gun.” Another stated he can’t be impartial because his family isn’t impartial. Yet they’re seated on the jury.
I don’t know which it might be. The “guns are icky and no one needs one for self-defense; just call the police” angle, the “if KR wasn’t looking for trouble what was he doing there” angle (which the prosecution seems to be playing up; KR’s mere presence at a place where he had the legal right to be makes him the aggressor), or the “we’re all down with leftist causes” angle. Or it could be some other angle I haven’t thought of.
But this prosecution, as we can all see, wasn’t brought because of the evidence. The state has none. Clearly it’s political.
So much for the prosecutor’s code of ethics.
Thank you, again, Mr. Branca, for your extensive and unparalleled analysis — insightful for both attorneys and laypersons!
On twitter, claims tonight that the Mayor is related to the DA and the one of the detectives ( the one handling the rifle ).
There appears to be a political motive in the prosecution of Kyle beyond the national stuff… ie, standard small-town CYA stuff. https://twitter.com/JackPosobiec/status/1456104595286024192?s=20
Sabotage Afoot in the Kyle Rittenhouse Defense? Viva & Barnes HIGHLIGHT!
Strange conduct by Rittenhouse legal representation.
“That means that if Kyle had wished, he could have denied consent to download his phone, and the police would have been unable to access the data even with a valid search warrant in hand (which they surely would have obtained without difficulty), because they had no technological means to “crack” the phone. So if there was anything that Kyle had to hide on his phone he could have done so, and there would have been nothing that the investigators could have done about it.”
It is my understanding that in cases like this you can sometimes get a court order attempting to compel production of the password. Not sure if this would apply here or what happens if the defense refuses to produce the password.
“It is my understanding that in cases like this you can sometimes get a court order attempting to compel production of the password. Not sure if this would apply here or what happens if the defense refuses to produce the password.”
Not correct. Quoting and paraphrasing from Department of Justice Journal of Federal Law and Practice, volume 67 (2019), mixed in with my own observations:
The body of case law regarding the Fifth Amendment (the relevant part of which reads “No person … shall be compelled in any criminal case to be a witness against himself”) has seen several recent additions, most of which do not prohibit the government from demanding the capturing of biometric features. A three-part framework exists to determine whether or not a communication qualifies for the Fifth Amendment privilege. Little disagreement exists regarding application of two of the tests – the classification of an act as “compelled” or “incriminating.” But courts have restricted the meaning of the word “witness.” For example, in United States v. Hubbell (2000), the United States Supreme Court notes that “The word ‘witness’ in the constitutional text limits the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character.” It cites past cases to point out that “even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice.”
To earn Fifth Amendment protection, a communication must represent an expression, meaning something that reveals the content of the subject’s mind. “Biometric features do not contain mental revelations.” To minimize the likelihood that a court will deem an authorized compelled unlocking as “testimonial,” “law enforcement should endeavor independently to select which biometric feature to test on a given device,” and consider “that the applicable warrant include specific language stating that law enforcement is not permitted to request the subject involuntarily to provide the password or identify the specific biometric feature that would unlock the device.” To emphasize the last point, the government may force a subject to try every one of his fingers to determine which one unlocks his phone, but may not ask the subject which finger unlocks his phone. This philosophy gives Fifth Amendment protection to passwords (provided the passwords exist only in the subject’s mind, and not recorded on documents that the government could demand that the subject surrender). Citing Doe v. United States (1988), if a person can open a safe with either a key or a combination lock, stating “The Fifth Amendment permits the government to demand the ‘surrender [of] the key,’ but prohibits the compelled disclosure of the combination code, which would reveal the content of one’s mind,” and compare the compelled use of biometric features to forcing the surrender of the key.
I read your post. Understood every word. Thank you. Your post was very illuminating. Unfortunately it illuminated a stinking pile of horse manure.
LE either has the authority to access your phone or it doesn’t. If it does, how it gains access should not be relevant. If it does not, it shouldn’t have access to your phone at all unless access is granted. Prying something from a person’s mind is no different than prying apart a person’s fist to make them put their fingers on the phone. Both are done against the person’s will. Does the person have a right to not give testimony or evidence against himself, or does he not? If he does, it should be impossible to compel performance (mental or physical) in order to gain that testimony or evidence.
The Department of Justice Journal of Federal Law and Practice specifies procedures for U.S. attorneys.
“Prying something from a person’s mind is no different than prying apart a person’s fist to make them put their fingers on the phone.”
Case law has determined that a legal difference does exist, and that testimony does not equal evidence. Obviously, I would prefer to see greater protection against the compelled surrender of biometric information (including DNA), but Fifth Amendment protections (as well as other basic rights) continue to shrink. I did want to explain to readers here the legal advantages of locking devices via a password as opposed to one’s fingerprint or face.
Thanks again, Andrew. Your insights are clearly the result of experience in the courtroom.
I’m beginning to be curious about this Binger character. In my experience there were some prosecutors who owed their employment to political influence, who were not skilled in the courtroom and who spent little time there.
Binger seems to be one of those.
He’s a bad trial lawyer. Was he given this case because it’s purely political, a stone loser, and he’s a political hire? In other words, as a political hire, a bad case (as in abuse of process, malicious prosecution bad case) that had to be filed for political reasons, so it’s his job?
Did the presumably competent prosecutors in the office refuse to do this case?
I’d like to know a bit more about Binger and his history as a lawyer and a prosecutor.
How do we know this is a political witch-hunt? The MSM was all hot and bothered by the story and now that the trial is going on not a peep, I can’t find it anywhere except here.
I saw the video(s), A person being chased by a mob then attacked with a deadly weapon finally responding and saving his own life. Looked like self defense to me considering he wasn’t obligated to run away but did so anyways to try and avoid using the firearm.
This whole thing smells. Can someone please define “malicious prosecution” for me in regards to this case? Can Rittenhouse go there and get rich off of this ADA?
At what point do questions start being asked about the role a DA plays in ensuring the police get only the evidence they want? Surely these two teams are completely separate from each other so as to minimise bias?
Yesterday we had the oddness of the other guys case being delayed until AFTER this case in the attempt to compel a favourable witness statement (I have to say something nice so my case is presided over leniently, if I dont they will hammer me)…and now this where the Five Oh is being directed by the DA to only provide the evidence that makes their case better (instead of providing evidence regardless of who it makes look good).
To me, and my google legal mind, this sounds like grounds for dismissal? DA interference with police conduct or some such bollocks like that?!
Why can’t the defense subpoena Grosskreutz’ phone, right now in the middle of trial? It seems they didn’t find out the police didn’t seize that information until today, so laches shouldn’t be an issue. He probably deleted whatever the prosecution didn’t want to find, but in case he didn’t…
If I was Grosskreutz Id have nuked that phone as soon as I got the chance.
Or somebody nuked it for him
This has been a political trial from the get go and now we are getting hints of something rotten going on behind the scenes. Wonder if this young detective will either be let go or transferred to a different jurisdiction after this trial for instance? That attempt at getting the hearsay in too was both desperate and dirty since defense has no way to effectively challenge it were it to be allowed. Thank goodness the judge wasn’t having it.
You mention the Zimmerman trial: while I hope Kyle is found innocent as well I hope he is receiving better advice on how to handle his life for years afterward. We know that those who want Rittenhouse behind bars will constantly be watching him for years afterward for any slip up where they can persecute him again.
I am fairly certain Binger was trying to get the jury to see the word “Militia” that blazed across the video screen every time he paused it.
I picked up on that too and was surprised nothing was said about it.
Everyone sitting on the jury knows what verdict they are supposed to return, or else. They are under threat and they know it.
The purpose of Binger’s performance is to give them an excuse to do it.
This isn’t a trial. It’s not about law and order. The Regime is presenting a staged propaganda play. The Regime expects the jury to play along.
It’s a repeat of the Chauvin trial. However, the threat to the jury and the community is not as palpable as it was in that trial.
Thank you, Andrew, for your work on this. Very informative.
And thank you so much for doing the summary work. I really don’t have the time to go through the live stuff, and this helps a lot.
I just hope the ‘we’re going to burn your city to the ground’-effect isn’t in play here and this young man’s case can be decided by people who aren’t afraid to find him not guilty. But, given what transpired in the Floyd case, I’m not hopeful.
I think the chances are better than not he’s found guilty because people are terrified of the mob.
I have hope it’s less likely because Kyle isn’t a cop.
Although the jurors are probably afraid of the mob, at least in KR’s situation they can see themselves or a loved one being put through the same ordeal by the state. They probably had little empathy for Chauvin because they figured “I’m not a cop, and neither are any of my loved ones, so this couldn’t happen to me or to them.”
Cops protected shooting victim crime suspect Marcy Grosskreutz.