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Rittenhouse Trial Day 3: State’s Own Witnesses Damage Prosecution, Reinforce Self-Defense Narrative

Rittenhouse Trial Day 3: State’s Own Witnesses Damage Prosecution, Reinforce Self-Defense Narrative

The prosecution’s narrative of guilt looks profoundly weaker, and the defense narrative of self-defense looks profoundly stronger, than was the case yesterday.

Welcome to today’s Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial. I am, of course, Attorney Andrew Branca, for Law of Self Defense.

This third day of the trial was perhaps the worst yet for ADA Thomas Binger’s efforts to have Kyle Rittenhouse convicted and sentenced to life in prison for having shot three men (two fatally) the night of August 25, 2020 in Kenosha WI, when the city was suffering a tsunami of rioting, looting, and arson following the lawful shooting of a knife-wielding Jacob Blake by Kenosha police officers.

And that’s really saying something because its’ not like the prosecution out-performed in the first two days of the trial. Indeed, coming into today, the state had yet to present any evidence that was substantively inconsistent with Kyle’s legal defense of self-defense—none.

Today, however, was even worse.  Two of the state’s own witnesses, and arguably their star witnesses with the greatest immediate personal knowledge of the events surrounding the shootings—journalist Richard McGinnis who was filming and interviewing Kyle that night, and former Army Infantryman Ryan Balch, who was also armed along with Kyle that night—provided lengthy testimony that not only failed to assist the state’s efforts to attack Kyle’s claim of self-defense, their testimony substantively strengthened that claim of self-defense.

Juror #7 Dismissed for Offensive Jacob Blake Joke

We’ll dive into their testimony in just a moment.  Before we do, however, I ought to mention that Juror #7 was dismissed from the jury panel for cause, apparently for being idiotic enough to attempt to tell a Jacob Blake joke to a bailiff.  When questioned by Judge Schroeder about this this morning the juror refused to repeat his joke, but apparently it went along the lines of: “Why did the police shoot Jacob Blake seven times? Because they ran out of bullets.”  So, away with Juror #7.

How State Witnesses Testify In a Trial of Legal Merit

Before I dive into the individual testimony of state witnesses Richard McGinnis, a videographer for the Daily Caller news organization, and Ryan Balch, a manufacturing worker and former Army Infantryman, it’s worth reminding ourselves what their testimony ought to have looked like, had this been a normal criminal prosecution based on actual legal merit.

As two state witnesses, not defense witnesses, both McGinnis and Balch would be expected to provide testimony that contributed to the prosecution’s narrative of guilt and undermined the defendant’s legal defenses.  In this case that largely boils down to attacking and destroying Kyle’s legal defense of self-defense, at least with respect to all the felony use-of-force and reckless endangerment charges in this case.

Kyle Rittenhouse is presumed innocent, and that means that his shooting of the three men, and the reasonableness of his conduct otherwise the night of August 25, 2020, is presumed to be justified as lawful self-defense, unless the state can disprove self-defense beyond a reasonable doubt.

Now, the prosecution doesn’t have to disprove Kyle’s claim of self-defense in its entirety.  The prosecution merely needs to disprove any one of the four elements that make up that claim of self-defense. These four elements are cumulative—meaning, every one of the four is required—so if even a single one is disproven beyond a reasonable doubt, Kyle’s legal justification of self-defense collapses entirely.

To those who are new to self-defense law, or would just like a quick refresh on the concepts of the elements of self-defense, here are those four elements, and how the state would typically be expected to disprove them.

Innocence:  The state might attempt to prove that it was Kyle who was the initial unlawful aggressor in any of the confrontations he was in that night.

Imminence: The state might attempt to prove that the attacks Kyle was defending himself against were neither actually in progress or immediately about to occur.

Proportionality: The state might attempt to prove that the attacks on Kyle did not present as apparently deadly force in nature—readily capable of causing death or serious bodily injury—and therefore that his own use of deadly defensive force was excessive.

Reasonableness:  The state might attempt to prove either that Kyle lacked a genuine belief in the need to act in self-defense, or that this belief was irrational and not objectively reasonable under the circumstances.

And, of course, whichever element (or elements) the state sought to target in its attack on Kyle’s claim of self-defense, it would need to disprove beyond any reasonable doubt.

This is necessarily the mission of Assistant DA Binger in this prosecution of Kyle Rittenhouse, and how that mission would be accomplished.  And, it needs to be accomplished during the State’s presentation of evidence—obviously, after the state has rested and the defense gets its turn, it’s not as if the attack by the defense is going to make the state’s narrative stronger.

So, as I listen to the State present its witnesses, and subject them to direct examination or questioning, what I’m looking for is the building out of that narrative of guilt, that destruction of self-defense, the substantive attack on one or more of those elements.

What is this testimony, this line of argument, attacking exactly?  Innocence, Imminence, Proportionality, or Reasonableness? That’s really all that matters.  Any testimony or argument that doesn’t have one of those elements as its target, that does not substantively undermine and disprove one of those elements beyond a reasonable doubt, is nothing but wasted effort and time.

What I saw over the first two days of this trial was a bunch of testimony that contributed nothing substantively to degrading any of those four elements, and thus nothing to disprove Kyle Rittenhouse’s claim of self-defense.  There was simply no substantive evidence that undermined any of those four elements of Kyle’s self-defense claim.

What I saw from the State’s witnesses today, however, was far worse.  Not only did their testimony—the testimony which is supposed to be the building blocks for the destruction of the claim of self-defense—not undermine Kyle’s self-defense, much of today’s testimony actually strengthened Kyle’s claim of self-defense.

And perhaps even worse, ADA Binger’s attempts to badger the witness’s testimony into something that might in one’s wildest imaginings resemble a tool to bludgeon self-defense resulted only in him appearing intellectually desperate, and in his witnesses becoming visibly resistant to his badgering.

In the case of Balch, in particular, ADA Binger was even brought to the extremity of suggesting to the jury that Balch—Binger’s own witness, whom Binger himself had called to the stand to testify—was nothing more than a petty liar.

So, let’s dive in.

State Witness Richard McGinnis Resists Hostile Badgering of ADA Binger

Richard McGinnis is a videographer who works in support of journalists for the Daily Caller news organization, essentially securing the video and photo content that the journalists use to guide, buttress, and flesh out the news stories they write about notable events.  This is his profession, and he has frequently over the years engaged in his craft in the midst of violent protests, including in Seattle, Portland, New York, Washington DC, and elsewhere.

That was precisely what McGinnis was doing in Kenosha on the night of August 25, 2020, having flown into town for that purpose the previous day.  He would spend the nights of August 24 and 25 wandering around the streets of Kenosha pursuing his craft, and on the night of the 25th one of his primary subjects was no other than Kyle Rittenhouse.

As it happens, also captured by McGinnis was Ryan Balch, the second “star” state witness of the day, who worked alongside Kyle to present as an armed presence on the streets of Kenosha for the purpose of protecting property and persons. I’ll address Balch’s testimony separately.

Much of McGinnis’ testimony centered around video he had made while following Kyle and Balch around Kenosha the night of the 25th, including capturing interview-like conversations with them.  Also important was McGinnis’ presence in close proximity to Kyle when Joseph Rosenbaum launched his ill-fated attack on the 17-year-old.  This event was not video recorded by McGinnis, but was nevertheless observed personally by McGinnis.

Because of the importance of the McGinnis video of Kyle and Balch, it was played repeatedly and at length by ADA Binger—but to what purpose, I could not imagine, because it did nothing to further the State’s core mission of disproving any one of the elements of self-defense beyond a reasonable doubt.  If anything it served to present Kyle as polite, caring, and non-confrontational.

Repeatedly we see Kyle walking down the street, alongside Balch, with neither man presenting  in a threatening manner in the slightest. To the contrary, they are each continually calling out to see if others—whether their own colleagues or protestors alike—are in need of medical attention (Kyle’s primary purpose for being present in Kenosha that night).

At one point a protestor screams at Rittenhouse, “F-YOU!”  Kyle’s response? “I love you, too, ma’am.”  When Balch recounted this event from the witness stand, someone in the courtroom actually laughed out loud.

At one point in the McGinnis video we see Kyle and Balch encounter a group of “punk rockers” with fire extinguishers, who are acting as a fire brigade, and one of them reports having been “shot.” Kyle immediately attempts to offer medical care, only to discover the person had been shot with a rubber bullet with no great affect.  Kyle, Balch, and the “punk rockers” end up laughing and joking about the whole affair, with everyone being very friendly.

A few moments later Kyle, with McGinnis recording beside him, comes across a group of four young black men, and this encounter is quite different.  The group immediately displayed hostility towards Kyle and McGinnis.  Kyle, seeing this, does not engage or threaten in any way, instead he simply turns and walks away, calling out once again for anyone who might need medical care.

That this group of four young men was genuinely threatening became incontestable when McGinnis described his own efforts to chat with them.  He testified that one of the men immediately stepped forward with a rock in a raised hand in a manner McGinnis could only interpret as an intent to bash the rock into his skull.  McGinnis immediately jumped backwards to secure his safety, and then offered the men an alcoholic beverage he carried in his backpack specifically as tribute to be offered to diffuse such hostile encounters.

ADA Binger noted that McGinnis had used the word “menacing” when he spoke in an interview after Kyle’s shootings, and repeatedly attempted to badger McGinnis into testifying that he meant this term to apply to Kyle himself, that McGinnis found Kyle to be personally menacing.

First, this is hardly credible, given that McGinnis chose to follow around the armed Kyle and Balch for quite some time the night of the 25th—he didn’t do the same, for example, with the actually menacing group of four young black men he’d encountered.

Second, McGinnis consistently responded to Binger’s badgering suggestions by making clear that the word “menacing” was intended as a description of the circumstances generally, as in any potentially violent protest environment, not of Kyle personally.

In other words, Binger wanted McGinnis to testify that he was using menacing to refer to Kyle as “threatening”—instead, McGinnis made clear, he was using “menacing” to mean simply the “increased risk” of being in an environment where guns were being carried around by people, generally.

ADA Binger also attempted to get McGinnis to testify that there was something highly unusual and unreasonable about someone at a protest openly carrying firearms.

McGinnis answered, no, he’d often seen people with firearms at protests  But just handguns, not AR-15s, suggested Binger? Usually handguns, but sometimes rifles, McGinnis answered.  But surely not the combination of rifles and a medic kit, followed up Binger?  No, conceded McGinnis, he couldn’t say he’d seen that combination before.

It was, frankly, all nonsense.  If McGinnis had seen such a combination before, presumably Binger would have continued to narrow the characteristics he was defining until he managed to exclude this specific defendant form McGinnis’ prior experience.  I suppose the next variation would have been, “But surely not the combination of rifle, medic kit, and the first name ‘Kyle’?”

At some point, McGinnis and Kyle had become somewhat separated. Then McGinnis saw the now-familiar Kyle run by with a fire extinguisher, and decided to follow to see what was going on.

As it happens Kyle was running down Sheridan to put out a fire reportedly occurring in a Car Source parking lot down the street.  As Kyle approached the lot, he also happened to be gaining ground on Joseph Rosenbaum, who was ahead up the street. Rosenbaum was accompanied by Joshua Ziminsky and his wife, Mrs. Ziminsky, with whom he was apparently friends.

Joshua Ziminsky was carrying a Glock pistol which he would shortly fire into the air, thus triggering subsequent events resulting in the death of Rosenbaum and Anthony Huber, and the maiming of Gaige Grosskreutz.

As Kyle reached the edge of the Car Source lot, Rosenbaum concealed himself among four cars, then emerged behind Kyle and initiated his charge of Kyle.  McGinnis was still running down Sheridan to catch up with Kyle, and so ended up behind Rosenbaum as events proceeded.  Also roughly behind Kyle and Rosenbaum was Joshua Ziminsky, who was on the sidewalk near the group of four cars that Rosenbaum had been hiding in.

As Rosenbaum chased the isolated Kyle across the lot, Joshua Ziminsky raised his pistol and fired a shot in the air.  The fleeing Kyle, hearing the shot behind him, turned to look in that direction, and saw Rosenbaum charging at him, screaming “F-YOU!” at the top of his lungs.

Much of this was confirmed both by the observational testimony of McGinnis, as well as by various video recordings, including the FBI aerial infrared video recording, and so the events are effectively indisputable.

McGinnis personally observed the charge of Rosenbaum on Kyle, and described the attack in some great detail.  Rosenbaum was in a hunched forward running position, as one would be running as fast as one could.  Kyle was desperately fleeing towards the far side of the Car Source lot—and was shouting “friendly, friendly, friendly!” while doing so.

These cries of friendly did not dissuade Rosenbaum’s continuing charge.  When Kyle turned slightly back towards Rosenbaum, even as Kyle continued to retreat, placing his rifle well within Rosenbaum’s view, the sight of the rifle did not dissuade Rosenbaum’s charge. Indeed, Rosenbaum would charge until he was close enough to lunge with outstretched arms for possession and control of Kyle’s rifle.  Kyle was still holding his rifle at a low ready, approximately at a 45-degree angle to the ground.

McGinnis actually stood from his witness chair to demonstrate these aggressive attacking motions by Rosenbaum—and he did so at the request of ADA Binger!

At the last moment, however, Kyle turned slightly away, so that Rosenbaum’s outstretched hands failed to grasp control of the weapon, and that’s when Kyle fired four rounds in 0.76 seconds.  As Rosenbaum made his final, diving lunge, Kyle had the rifle leveled at Rosenbaum, but this still meant at a downward angle, given Rosenbaum’s low position—so the rifle was not, for example, level with the street when fired.

Now, one of those four rounds, the one the medical examiner will purportedly claim was the fatal shot, ended up striking Rosenbaum in his back.  This was almost certainly a consequence of the manner in which Rosenbaum chose to attack the rifle-armed Kyle, using a low diving lunging motion.

ADA Binger, however, was determined to have McGinnis testify that Kyle had simply shot Rosenbaum in the back–as if in an act of cold malice he had shot Rosenbaum in the back as Rosenbaum was walking away from Kyle. Or that Kyle had intentionally shot Rosenbaum as he was helplessly falling to the ground, and no longer a threat of any sort.

ADA Binger helpfully suggested, When the defendant shot Rosenbaum, he was already falling?  No, not “falling,” answered McGinnis. It was just his charging speed and lunging motion was carrying him forward.

Binger objected, but you gave a television interview in which you said that the defendant shot Rosenbaum as he was falling?  McGinnis answered, I don’t remember ever saying that. Is that a direct quote?

Of course, Binger had the interview recording—and now he used it to effectively treat McGinnis, his own cooperating witness, as if the videographer were a hostile witness, implying that McGinnis was lying to the jury, under oath.

McGinnis explained that the shots happened very quickly, that Rosenbaum was lunging, for all he knew it was the first shots that caused the falling motion, rather than the falling motion preceding the shots.

McGinnis may not know this, but the first two rounds did, in fact, hit Rosenbaum’s thigh and pelvis, and likely did compel Rosenbaum’s fall.

Well, you’re saying that now, said Binger, but wouldn’t your memory be better a mere three days after the event, when you gave this interview, than it would be now.  This is how one treats a hostile witness whose current testimony in court one is seeking to impeach.

Binger tried again:  Your statement in this interview is different than what you’re telling us now, you said in the interview that Rosenbaum was falling when the defendant shot him.

McGinnis answered, I would not say that the defendant shot Rosenbaum as he was falling, I would not use that word, “falling,” I’m not saying that.

Binger: but you said in the interview—

McGinnis: I’m not saying that now!

At this point Judge Schroeder had had enough, and interrupted Binger’s questioning of his own witness, telling Binger effectively that he was not to tell the witness what the witness was saying.

McGinnis, for his part, denied any inconsistency between his interview statement and his court statement.  Kyle shot Rosenbaum as Rosenbaum was lunging forward to grab control of Kyle’s rifle, was shot, and then ended up face down on the street.

At that moment the proceedings mercifully took a break for lunch, but that didn’t help poor ADA Binger any.

Binger kept up his direct examination of McGinnis, now focusing on the supposed reckless endangerment charge in which McGinnis is the purported victim.  In the criminal complaint there’s a sworn claim that some object—presumably a bullet fired by Kyle—had actually struck McGinnis in the leg.

McGinnis would have none of that in his testimony, however.  He clarified that he wasn’t even sure if the sensation was the result of the impact of an object, or just a sensation resulting from the sound of the gunshot, or what, but when he looked he hadn’t suffered any physical injury of any kind.

Those are the highlights of direct examination by Binger of his own witness. There is much more, of course, including a lengthy series of softly asked questions about McGinnis’ efforts to provide care to the fatally shot Rosenbaum, none of which has any relevance to Kyle’s self-defense claim.

Note that all the substantive testimony by McGinnis on direct was either not relevant to Kyle’s self-defense claim, not damaging to that claim, or actually helped Kyle’s claim of self-defense.  And that was before the defense got their hands on McGinnis in cross-examination.

Which is what happened next.

State Witness Richard McGinnis Cross by Attorney Mark Richards

All Richards really had to do was get McGinnis to repeat his substantive relevant testimony from direct, because it was all helpful to Kyle’s claim of self-defense. But Richards managed more than that.

In your police interview, Richards noted, you indicated it was not only Rosenbaum pursuing Kyle, but that there were other people whom Kyle was attempting to evade.  In other words, Kyle was threatened by multiple pursuers.

Ultimately, this would turn out to more a matter of McGinnis perceiving the attention of others focused on Kyle, among people who had already been traveling down the street in a direction towards Kyle, rather than additional people charging at Kyle as Rosenbaum had.  Nevertheless, either the jury bought the suggestion of increased threat to Kyle or it was a wash—helpful, or neutral.

Richards also touched back on the “menacing” point, which was drawn from another interview McGinnis had done shortly after the events of that night.  When you say “menacing,” you mean the circumstances, right, not Kyle in particular?  McGinnis answered, I meant the situation, if anything the people on the roof, not so much the people on the ground (where Kyle was).

And in that interview where you mentioned “menacing,” that interview was 26 minutes long, and you said the word “menacing” once.  Yes, agreed McGinnis.

Richards also had McGinnis step through the final series of events that resulted in Kyle shooting Rosenbaum. Kyle was fleeing across the parking lot, seeking safety, but coming upon what appeared to McGinnis to be a dead end.  A shot came from behind Kyle, fired by Rosenbaum friend Ziminsky, and when Kyle looked back he saw Rosenbaum charging at him. Kyle shouted “friendly, friendly, friendly!” and Rosenbaum screamed “F-YOU!” Kyle had the gun at a safe, low-ready position when Rosenbaum dove for the gun, hands outstretched to seize control of the weapon, and that’s then Kyle finally fired four rounds.

There’s more good stuff in the cross, but those are the highlights.

Re-Direct of McGinnis by ADA Binger

Perhaps the highlight of the McGinnis testimony, however, occurred during Binger’s re-direct questioning of him.

Binger had been very unhappy when McGinnis was allowed to suggest during cross-examination that it had been the intent of Rosenbaum to seize Kyle’s rifle.  Binger objected at the time, but Judge Schroeder overruled the objection.

Now on re-direct, Binger rather heatedly challenged his own witness:  You can’t read Rosenbaum’s mind, right? You can’t know what he was actually thinking, right? Your interpretation of his intent is nothing but complete guesswork, isn’t that right?

McGinnis paused a moment, and replied:  “Well, he said “F-you, and then he reached for the weapon.”  So, maybe not entirely guesswork.

Again, there’s more, but those are the highlights.

State Witness Ryan Balch Shows Rosenbaum as Violent Lunatic

Ryan Balch first met Kyle Rittenhouse the night of August 25th, when both of them showed up to Kenosha and the Car Source lot to attempt to protect property and provide medical care to the injured.

Both men came armed with AR-style rifles, but that was about the only similarity.  Whereas Kyle was a 17-year-old lifeguard who had fired his rifle on one previous occasion, Balch was a former Army Infantryman who had done a tour in Afghanistan, a tour in Iraq, and had put 10 or 15 thousand rounds through the AR rifle he had owned for years (in part because he uses the rifle competitively).

Once again, Balch’s testimony—from, I remind you, a STATE witness—was extremely helpful for the defense, and extremely harmful to the prosecution.

For example, Balch would testify that although he’d come to Kenosha wearing a plate carrier (body armor), and carrying an AR-15 and a Glock pistol, it turned out he never actually had to use any of that stuff—the mere presence of armed persons like himself and Kyle proved sufficient to prevent the kind of catastrophic rioting, looting, and arson the city of Kenosha had suffered the previous night.

In other words, Kyle showing up to Kenosha with a rifle was a social good, not the act of a maniacal gun nut intent on murdering people.

When Binger asked Balch for his impression of Kyle that night, Balch replied that Kyle seemed like a young and impressionable kid, interested in other people and a life guard, seeking to provide medical care to anyone who might be injured.  He also described Kyle as presenting as vulnerable, as someone who protestors might identify as a target and attack.

In contrast, when Binger asked Balch for his impression of Joseph Rosenbaum that night, Balch replied that every time he encountered Rosenbaum he was being hyper-aggressive and acting out in a violent manner, always having to be restrained from violence by others. Indeed, Balch said he was approached by other protestors who wanted to ensure him that Rosenbaum was not one of them, not a member of their group. These other protestors wanted no misunderstanding that there might be an association with the hyper-aggressive Rosenbaum and themselves.

The ultimate high point, however, came—and again, I feel obliged to remind you, this is while the STATE is engaged in direct questioning of THEIR OWN WITNESS—when ADA Binger asked Balch to describe an encounter between Kyle and Balch, on the one hand, and Rosenbaum on the other, that took place shortly after Kyle had put out a dumpster fire started by Rosenbaum.

Balch testified that Rosenbaum came right up to the pair, “got right in my face,” yelling and screaming, and murderously pledged “if I catch any of you guys alone tonight, I’m going to f’ing kill you!”

Worth recalling, I think, that this murderous threat from a hyper-aggressive and patently violent Rosenbaum came only a short time before Kyle, running for his life, would hear a gunshot behind him and see a charging Rosenbaum screaming “F-YOU!” at the top of his lungs and lunging for control of Kyle’s rifle.

If that sounds to you like a pretty sound basis for a shooting of Rosenbaum in self-defense, I’d have to agree.

To this absolutely catastrophic testimony, ADA Binger could do little but flail.

Did you actually see Rosenbaum actually injure anybody?

No, though I did see him set fires.  A dumpster, lots of other little fires, all up and down the street.

Then, remarkably—besides the fires you saw him set, did you see him set any other fires?

I mean, seriously, Binger?

Did you ever see Rosenbaum with a weapon? No. Gun? No. Knife? No. Bat? No. Club? No. (Binger has become quite fond of this particular laundry-list question.)

Of course, I would suggest that at the moment he was shot, Rosenbaum was actually in the process of arming himself with a gun—with Kyle’s gun—when Kyle’s bullets stopped him.

At this point Binger’s direct examination of Balch seemed to go off into some netherworld of irrelevant background information that appeared to have zero relevance to anything of substance in this case.

And it went on like this interminably.  At one point the defense finally objected, noting that many of the question currently being asked had already been asked forty minutes earlier.  Even Judge Schroeder was getting tweaked.  Where is all this going, he asked Binger, who gave a rather non-responsive reply.  Why would an of that be relevant, asked the judge, and Binger gave another non-responsive reply. At that point Schroeder figuratively threw up his hands and just decided to have the court take break.

Judge Schroeder: Feels Like This Witness Has Been Two Weeks!

Humorously, during the recess the cameras were deflected off to the side, as is the usual practice when the court is in recess.

The judge’s microphone, however, was left live. As a result, we got to overhear Judge Schroeder make casual conversation with his clerk.

Part of that conversation went along the lines of, “Man, this seems to be taking forever.  How long has he been on the stand?  How long? How about, two weeks?”

Here’s that clip:

When the court returned from recess, ADA Binger once again set out to impeach his own witness, and suggest to the jury that Balch was lying from the witness stand.

When you were approached by reporters that night, is it true you gave them a fake name?  Yes, answered Balch, to protect my identity.

You spoke to the FBI? Yes. Wanted to tell them the truth? Yes. Know lying to the FBI can get you in trouble? Yes. The FBI report of that meeting says that you told them Rosenbaum’s plastic bag contained ammonia-like products for use in making tear gas—but you know that’s not true, correct?

Correct, answered Balch.

Attorney Richards Had Mercifully Brief Cross of Ryan Balch

Thankfully, as we now approached the end of the day, Attorney Richards had a mercifully brief cross-examination of Balch—I mean, almost all of the very, very lengthy direct questioning of Balch by ADA Binger had been to the benefit of the defense, so what more was there for the defense to elicit from this witness on cross-examination.

Richards did, however, want to address this impeachment attempt by ADA Binger, and he did so swiftly and concisely.

Are you lying to this jury under oath right now, he asked Balch. I am not, Balch answered. And this FBI report, this is not a document you get to review carefully, and then swear to under oath, is it? No.  In fact, you just chat with the FBI agents, they take some notes, and then they go off and write up this report in the manner they recall and with the things they think most important. Yes.

Re-Direct of Ryan Balch

Re-Cross of Ryan Balch

Morning Testimony of Detective Howard.

Now, before McGinnis there was also morning testimony from Detective Howard, to complete his contribution to this travesty of a trial.   Really, however, this was just an attempt by ADA Binger to rehabilitate Howard on the failure to execute the search warrant on the Grosskreutz phone, and the failure to record the Grosskreutz interview, both of which had happened with every other witness in this case.  It also gave Richards a chance to hit those points home again with the jury.

Howard Cross-Examination

Howard Re-Direct

Howard Re-Cross

Conclusion

In yesterday’s wrap-up I wrote:

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.

Well, today was day three of the trial, and not only does that statement remain true, but if anything the prosecution’s narrative of guilt looks profoundly weaker, and the defense narrative of self-defense looks profoundly stronger, than was the case yesterday.

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.

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

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Comments

Colonel Travis | November 4, 2021 at 10:12 pm

“What is this testimony, this line of argument, attacking exactly? Innocence, Imminence, Proportionality, or Reasonableness? That’s really all that matters. Any testimony or argument that doesn’t have one of those elements as its target, that does not substantively undermine and disprove one of those elements beyond a reasonable doubt, is nothing but wasted effort and time.”

100% truth.

Andrew, I have learned so much from your site, it makes following this kind of case much easier. God forbid, if I ever need to use my gun in self-defense, or decide that I shouldn’t use it, your education will have guided me.

This trial is a farce. The defense must make sure the sees it that way, they simply can’t assume they will.

How much longer is the prosecution’s case estimated to take?

Do you think there is any chance the Judge will dismiss the charges once the prosecution has rested?

    GOOCH in reply to Wisewerds. | November 5, 2021 at 1:29 am

    Almost never happens under normal circumstances. In this politically charged environment, the odds this doesn’t go to the jury are de minis. That said – if I’ve ever seen a DOV warranted in an actual trial, this one might be it. D.GOOCH

      Ira in reply to GOOCH. | November 5, 2021 at 2:24 am

      You’re right that it almost never happens. In this case, however, if the judge has any concern for the safety of the jury, he should relieve them of the burden of risking their safety in voting not guilty (which they certainly should do based upon what we’ve so far seen).

        The Friendly Grizzly in reply to Ira. | November 5, 2021 at 5:40 am

        I am wondering if, given the testimony of the prosecution witnesses, if the defensive or deeds to present its case? Looks like the prosecution has already done so.

Brave Sir Robbin | November 4, 2021 at 10:50 pm

“Kyle Rittenhouse is presumed innocent, and that means that his shooting of the three men, and the reasonableness of his conduct otherwise the night of August 25, 2020, is presumed to be justified as lawful self-defense, unless the state can disprove self-defense beyond a reasonable doubt”

This is a nice theory, but is, quite unfortunately, very much divorced from reality. The reality is Rittenhouse is presumed to be guilty, and must prove his innocence.

You see, the narrative is that Rittenhouse should have never been there in the first place. He new there was rioting and looting and such, and went to Kenosha to mix it up with the rioters and looters. The mere fact that he was there at all, much less there with a weapon, makes him the aggressor and guilty. He was looking for trouble and found it. That is the prosecution’s case. It’s really that simple.

He was there. He is guilty. He was armed. He is guilty. There is nothing else to prove. The law? The law is what the jury says it is. There is no legal theory, just a mob, only in this case, it’s a 13 person mob, the jury and a prosecutor egging them on.

Wish it were not true. But what else could this be?

Hopefully there is one person of reason, fortitude, and courage on the jury, who will not be swayed by the mob they have been thrust into, and who will stand against it and say, “No!”

Cases like this are won or lost way before the trial convenes. But it only takes one person of courage to stand up to the mob they have been thrust into, and foil its designs. If you are ever thrust into such a position, remember, on that day when the verdict is considered, you are the law and you can stand up for what is right, And if the law is an ass, damn the law, and do the right thing, no matter what the mob wants, or the prosecutor, or the judge. or the angry mob outside the courthouse doors. They do not matter. It’s only you. This is why you are guaranteed a jury of your peers. It is they who render the verdict, not the law.

This notion may be obscene to quite a number of attorneys and officers of the court, but it is why you are judged by your peers, and not a guy in a black robe, unless to give that power to him, or a tribunal of magistrates of the state. It is an additional check upon the oppressive force of government. It is your right. Exercise it, but as always, with great caution and responsibility.

    It absolutely boils my piss about the constant suggestions that he should not have been there and that he put himself in harms way. He had every right to be there.

    There would be uproar if it was suggested that those that died, should not have been there.

      Colonel Travis in reply to Decee. | November 4, 2021 at 11:11 pm

      It is not inconsistent to think he should not have been there and also thinking this trial is a F-ing joke. Rittenhouse should not have been charged with anything. But we don’t live in the America we’d like to see. We live in the America that we have. And right now, millions upon millions applaud tyranny. Also, just because you have a right to be somewhere, doesn’t mean you must be there. If someone wants to go to a riot, armed, outnumbered, be my guest. Don’t be surprised if the outcome isn’t pretty.

        All the prosecution have done so far, is show that KR was there protecting property, scrubbing graffiti and walking around saying “friendly friendly friendly” and offering medical to those that were attempting to destroy property that he was protecting.

        He wasn’t there looking for or seeking trouble, he was in fact acting like a model citizen.

        My point is, whilst you or I may have chosen not to be there, the fact he chose to be there, should not in any possible way, suggest that he is guilty.

      Arminius in reply to Decee. | November 5, 2021 at 7:57 pm

      “It absolutely boils my piss about the constant suggestions that he should not have been there and that he put himself in harms way. He had every right to be there.”

      I’ve written before that the elected DA of Kenosha county WI is apparently anti-self-defense. He considers people who defend themselves vigilantes. He’s the kind of DA who, in a duty to retreat state, would try argue that even a person who was actually under assault can not claim self-defense because they had a duty to retreat despite the fact avoidance was no longer possible.

      Failures of logic are not absolutes. Ad hominem is usually a failure of logic especially when it’s a person’s first resort. But when you run out of all other possible explanations for something that is otherwise inexplicable eventually it’s time to look at the man.

      http://kenoshacountyeye.com/2020/11/11/kenosha-da-refuses-to-prosecute-riot-kitchen-arrests-from-widely-seen-video/

      “…The DA was asked to charge the group that came from Missouri, Washington State, Hawaii, California, and Oregon that were volunteering with the Seattle-based “Riot Kitchen”. According to Kenosha Sergeant Hecker:

      “Sgt. Albrecht (had) multiple individuals in custody at the Speedway Gas Station located at 3012 Washington Road, which is in the city and county of Kenosha, WI. It was relayed that the individuals were filling containers with gasoline. While filling containers with gasoline is not unusual, the circumstances surrounding this incident are. At the time of this call, the city of Kenosha was experiencing looting, rioting, and destructive mayhem as a result of a police involved shooting. Many sections of town, government property, commercial property, and private property sustained significant damages due to arson that were started or fueled by individuals using containers filled with gasoline and other ignitable liquids.”

      At least two of the subjects were alleged to have resisted/obstructed arrest. A KPD K9 alerted to the presence of narcotics on two of the vehicles and they were subsequently searched. Police found small explosives, drugs, riot gear, gas masks and other contraband. Some documents and electronics were turned over to the FBI at the Bureau’s request. Some of the recovered documentation made reference to Antifa and Black Lives Matter. According to the report, Assistant DA Jessica Krejarek appeared to have agreed to charge the suspects and gave them court dates of 9/24/2020. It is unclear what happened next, but it is believed that her boss, BLM sympathizer DA Michael Graveley (D) instructed the ADA to not prosecute. This is the second time that DA Graveley has made a charging decision based on politics. We reached out to Graveley and he didn’ respond.”

      The evidence presented so far does not support prosecuting KR. Only the politics do. Apparently, honey, if you’re wearing a skirt and a MAGA hat in Graveley’s county you were asking for what you got.

    TY Sir Robin… but I think you left one facet of Kyle’s “guilt”. He was there, he was armed, he was white, he is guilty. That is the gorilla sitting in this court… Racism was the reason for the riots, and it has absolutely stuck its ugly face into our judicial system.

      Char Char Binks in reply to amwick. | November 5, 2021 at 7:02 pm

      But he only shot whites. The McMichaels and Bryan are already guilty, since ahmaud arbery was black.

        Yes, a juror was just kicked off the jury for making a joke about the Jacob Black case. Because of course. Judge Schroeder said it indicated racial bias.

        One might wonder how racial bias might possibly come into play in a case when one white man shot three other white men.

        CRT, bro! The white man who was doing the shooting was defending capitalist entities with FIRE EXTINGUESHERS. The non-white white men torching the businesses and eventually attempting to murder KR were assaulting capitalism.

        Whiteness = capitalism. KR was defending whiteness. Raaaacist! The guys who tried to kill him are Diversity, Equity, and Inclusiveness saints.

    Kyle Rittenhouse was present because he was an American citizen, upholding the law against a violent mob when the civil authorities responsible for doing so had shown their inability or unwillingness to perform their duty. Federal law recognizes all able bodied male citizens age 17 to 45 as constituting the militia, whose raison d’être is the preservation of society and the law. Mr. Rittenhouse accepted responsibility for that society and that law. He is a hero and should be treated as such.

    Whether he “should” have been there is not an element of any of the charges for murder.

    Its a diversion to steer away from what is required to prove guilt.

This live stream reaction to Binger’s first major misstep of the day is a short watch, and worth the 60 seconds of your time. It’s basically equivalent to a ‘sick burn’ reaction gif, but it probably mirrors what went through most of our heads when we heard it on the court video.

https://mobile.twitter.com/JackPosobiec/status/1456350032538517504?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1456350032538517504%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=http%3A%2F%2Face.mu.nu%2F

    henrybowman in reply to ksbsnowowl. | November 4, 2021 at 11:30 pm

    “McGinnis answered, no, he’d often seen people with firearms at protests. But just handguns, not AR-15s, suggested Binger? Usually handguns, but sometimes rifles, McGinnis answered. But surely not the combination of rifles and a medic kit, followed up Binger? No, conceded McGinnis, he couldn’t say he’d seen that combination before.”

    And if the law hadn’t made it illegal for Rittenhouse to carry a concealed (or any) handgun to defend himself, you probably wouldn’t ever have seen it.

      Not sure I agree. Part of the point of the rifles is their deterrent value. Being armed in a concealed fashion might actually make you more likely to require deadly force in your defense, as aggressors assume you’re easy prey.

        henrybowman in reply to GWB. | November 5, 2021 at 12:53 pm

        One thing I’ve never seen is any discussion of why Rosenbaum had such a hardon for Rittenhouse. Without the AR15 on, he would have looked like any other medic. I guess I’ve always assumed that Rosenbaum resented the AR15, seeing it as an ostentatious virtue signal, as well as an obvious indicator that Kyle was not Antifa. I think it’s quite possible that if Kyle had not been so visibly armed, Rosenbaum wouldn’t have given him a second glance.

          tmavenger in reply to henrybowman. | November 5, 2021 at 1:09 pm

          The post is quite extensive, so you may have missed the the testimony that says Rittenhouse extinguished a dumpster fire Rosenbaum had started, after which Rosenbaum confronted Rittenhouse and the witness and threatened to kill them.

          DaveGinOly in reply to henrybowman. | November 5, 2021 at 1:46 pm

          That seems to have been Mr. Rosenbaum’s problem, not Kyle’s. I’ve been upbraided by people when I open carry a handgun, but the vast majority of people who even notice give me a wink, a nod, a thumb’s up, or a kind word. That’s all on them. I’m just carrying to protect myself and to visibly exercise my right to do so. It sends a message to the community there are law-abiding, armed citizens around them, all the time, and we don’t threaten the community’s safety. (Although, frankly, I think most people don’t even notice.)

        True, it takes a real violent idiot to attack a man armed with a rifle. To have four of them in the riot at one time is a statement of the average IQ and demeanor of the crowd.

          DaveGinOly in reply to georgfelis. | November 5, 2021 at 1:48 pm

          Look at Kyle. He looks twelve. Billy Badass was just certain that no kid would actually shoot him.

          Tionico in reply to georgfelis. | November 5, 2021 at 6:05 pm

          Billy Bdass made a VERY faulty calculation. But the demeanour of this clown as portrayed bu the videographer and the ex army guy paints him as an angry little boy in a man’s body looking to inflate his own opinon of himself.
          He made VERY bad judgement call when he put Kyle down as a kidnergartener with a big nice toy.
          I wonder what was going thorugh his black heart as he lay there on the tarmac his life oozing out of him? Probably just more of the entiment reflected by his hlast words we know of aimed toward Kyle.

          Arminius in reply to georgfelis. | November 5, 2021 at 11:18 pm

          No. The “violent idiot” knows deep down that the person with the rifle really doesn’t want to shoot him. The psychopath knows that the person with the rifle has a decent streak. That gives the criminal, as he well knows, an edge.

          You have a rifle. But you won’t shoot. At least, you won’t pull the trigger until you’ve lost control of the trigger and then it’s too late. That’s what Rosenbaum was counting on.

          All props to KR for understanding this.

          One of the hardest problems I had as an instructor, and don’t give me any s*** groundpounders, was drilling it to my Sailors’ heads that yes no s*** they want to kill you. React accordingly.

          Arminius in reply to georgfelis. | November 5, 2021 at 11:36 pm

          I’m forced again to protest that, no, I’m nobody special. But I’m also reminded that we all bring skills and experience into the military and naval forces. I’m remind of this by the passing of Chuck Yeager, perhaps this nation’s greatest test pilot despite his lack of formal education.

          There’s a reason for this.

          Do you realize how easy hunting would be for me if the birds and animals were just wandering around thinking nobody was out to kill them?

What is the correct way to pronounce the ADA’s last name? Does it rhyme with finger, or ginger, or ringer, or …?

Brave Sir Robbin | November 4, 2021 at 11:04 pm

“Innocence: The state might attempt to prove that it was Kyle who was the initial unlawful aggressor in any of the confrontations he was in that night.”

This is the crux of the state’s case. Rittenhouse knew there was rioting and looting in Kenosha. He was not an innocent bystander who got caught up in it all. Instead of avoiding this, he went there armed and with deliberation. He was looking to find trouble and mix it up with the rioters and looters. He was successful. Therefore, the mere fact that he traveled to Kenosha, armed, makes him the initial unlawful aggressor and guilty.

You think this is a worthless argument? We’ll see who buys it. But it is the entirety of the case, and in all due respect, Andrew skirts around it with too little consideration, and not as a matter of law, but as an appeal to the reason and emotion of 12 people with no knowledge of the law or its myriad theories, notions, and norms.

Again, the law does not matter. It is what ever the jury says it is. Do whatever it takes not subject yourself to the arbitrary whim of twelve strangers.

    “Therefore, the mere fact that he traveled to Kenosha, armed, makes him the initial unlawful aggressor and guilty.”
    *****
    That is the States case and, IMO, the jury may very well convict with that presumption.

      henrybowman in reply to SHV. | November 9, 2021 at 11:26 pm

      My understanding of the order of events (correct me if I’m wrong) is that KR went to Kenosha to work his regular pool lifeguard job, and only that day got invited to go “protect a business.” If, before he left home in Illinois, he had already been planning to spend the night doing what he did, you would think he would have brought his own AR instead of having to borrow one from his pal.

    Where’s the evidence that he wasn’t an innocent bystander? And that he went looking for trouble? Because so far I’ve seen zero evidence that makes up that claim.

    In fact I’ve seen plenty of evidence that contradicts that theory and shows that yes he was an innocent bystander who was simply looking to give medical to those that needed it.

      Brave Sir Robbin in reply to Decee. | November 5, 2021 at 8:36 am

      “Where’s the evidence that he wasn’t an innocent bystander?”

      He was there. That’s all the evidence that is needed by the state’s “legal” theory. He did not live in Kenosha. He knew of the rioting and looting. He took up arms and traveled to Kenosha because of the rioting and looting, not to join it, but to resist it and thus Antifa, BLM, and the Democrat narrative. He is therefore guilty. Case closed.

      This has nothing to do with the “law,” and everything to do with publicly punishing those who resist the the Democrat narrative and their Antifa and BLM stormtroopers.

      All they have to do is to show Rittenhouse was there, was armed, and was in opposition to the looting and rioting. That makes him the aggressor.

    As it does in MANY cases, the outcome going to lean heavily into jury instruction. I would be really curious what the specific jury instructions will be. Generally, judges – good ones, at least – do a solid job of instructing jurors that they need to follow the law and then explain to them exactly what the law is and what the elements of the crime are that need to be satisfied to find someone guilty are.

    This was carefully covered in Mr. Branca’s excellent writeup of the pretrial sessions. You are wrong.

    Kyle went to Kenosha (his second home) to do what he could to help protect private business establishemts that had been badly damaged the previous night. He reportedly carried the rifle as self-protection, not being able,per WI law, to carry a concealed handgun ( why not, reallly?) He was chased down the street after resisting a gang of freaks, likley to include t=Roesnbaum, who had lit a fire in a big dumpster and were pushing it toward a large wooden building they had damaged the night before. Khyle moved to prevent this, liekly stopping an attempted arson of an occupied structure.

    Went “looking for trouble, or a fight” Not so.

    This has not yet come out in testimony. I believe it will. Part of his defense will be to establish he had no ill intent, and was only there to hep and serve, and protect people and property.

    It was also well estblished that even if Kyle WAS at an earlier part of the overall incident, the aggressor (say, by exercising his first article of ammendment-protected RIGHT to freely assemble, and actually showing up at the place) at any later point where he was clearly facing an imminent and recognisable and articulable threat to imminent and serious bodily harm or death, he would then “regain” his presumptive right to defend himself.
    How long had he been out in public in Kenosha armed with the rifle before the encounter/attack by Rosenbaum? After dousing the dumptster fire Rosey nad helped start, Kyle was followed down the street by Rosey who screamed threats at Kyle, then attacked phycisally.

.

Then, remarkably—besides the fires you saw him set, did you see him set any other fires?

Q: “Doctor, before you performed the autopsy, did you check for a pulse?”
A: “No.”
Q: “Did you check for blood pressure?”
A: “No.”
Q: “Did you check for breathing?”
A: “No.”
Q: “So, then it is possible that the patient was alive when you began the autopsy?”
A: “No.”
Q: “How can you be so sure, Doctor?”
A: “Because his brain was sitting on my desk in a jar.”
Q: “But could the patient have still been alive nevertheless?”
A: “It is possible that he could have been alive and practicing law somewhere.”

Is this one of those situations where the state charged anything they could think of and hope the jury would convict on a very minor charge and the state could claim they got a conviction?

    randian in reply to buck61. | November 5, 2021 at 12:19 am

    That’s probably what the misdemeanor weapons charge is for.

      JaneDoh in reply to randian. | November 5, 2021 at 3:07 am

      And the curfew violation. I have to smile a little every time the defense asks a witness whether they, too, received a curfew citation.

        I am reminded of the scene in Harry Potter where the trio was caught outside after hours, and are being reprimanded by McGonagall while Malfoy smirks to one side… or at least until he finds out he is also being punished for exactly the same thing.

Hi Andrew-
First & foremost, I want to thank you for your insight and analysis on this case and the Chauvin trial. However, I was wondering if you could address two questions/observations I had from today. Specifically:

1) the effective date of Macy’s Law which would suggest that the detective’s confusion and lack of experience with its application to have been in good faith.

2) the implications (if any) that Mr. Balch may have not been entirely forthcoming about where he was during the shootings and the presence of the couple with Mr. Rossenbaum.

I am particularly struggling to understand the second issue. Perhaps because the ADA’s questioning appeared to be trying to impugn Mr. Balch’s testimony. From the very beginning, his tone made much more sense if Balch was a defense witness and the final video & question being the great “bombshell”.

Cheers

This case is so weak I see the judge giving some serious thought to the incoming motion of a directed verdict and just acquitting Rittenhouse.

Though, I don’t see the judge doing it. I do hope to be surprised. 😐

I would laugh my ass off if the defense rested immediately and didn’t call the expert witness. I want to see the disappointment on Binger’s face.

Let’s not forget Kiminski’s gun charge was dropped. No charges whatsoever for being thê only one to fire a gun for no reason that night. The first shot. Probably good he did, for Kyle at least.

    Elzorro in reply to BillBer. | November 5, 2021 at 6:17 am

    I wonder if a reasonable hypothesis could be that Kamisk and Rosenbaum were working as a team to trap The Beeve. Could Kamiski have shot to try and scare Beeve and trap him in the box of cars so the Lunatic could get him? What other reson could there be for him shooting in the air?

    DaveGinOly in reply to BillBer. | November 5, 2021 at 1:57 pm

    There’s the state’s “reckless” act. Needlessly discharging a firearm within city limits is always reckless.

All of the ‘objective evidence’ presented by the state exonerates the defendant. That is bad enough but here even the ‘subjective evidence’ exonerates the defendant.

    Brave Sir Robbin in reply to Elzorro. | November 5, 2021 at 8:51 am

    “All of the ‘objective evidence’ presented by the state exonerates the defendant.”

    The prosecution has succeeded in establishing Rittenhouse was (a) in Kenosha the night of shooting, (b) armed, and (c) in opposition to the rioting, looting, and arson. He did not bow down to the mob. He did not take a knee in homage. He came to Kenosha to oppose the mob, not to support it. This makes him the aggressor. This makes him guilty. He must, therefore, be punished.

    The trial is merely to show the Democrats that the legal system is on their side, and goose stepping in unison to enforce tyranny and to demonstrate the consequences of opposition.

    Just trying to get you inside their heads so you are not clouded by your own preconceptions of reality, which are now voided by facts on the ground, of how things should and actually do operate. It’s all part of the “fundamental transformation of America,” .

Thanks for the great coverage.

Given the first two days of the prosecution’s case, I am baffled as to how they ever brought the complaint.
The only plausible explanation I can come up with is malicious political prosecution.

ADA Binger’s strategy seems to suggest that he thinks he has to only prove that Kyle shot his assailants and that the defense has to prove beyond any reasonable doubt that there was justification for it. It might work if he has managed to get a sufficiently biased jury.

This should end with a Motion for a Judgment of Acquittal — the judge, who seems to be a real judge unpersuaded by politics and excellent — might very well grant it. So far, the prosecution is miles from making their case, legally.

What is worrying is the extremes to which the prosecution is apparently willing to go. Binger hammers legally irrelevant points that play to prejudice. His only hope to win is to get the jury to act as if the defense has to prove innocence beyond a reasonable doubt. Sadly, this strategy could be successful as it seems that after the relentless press propaganda war waged by the unscrupulous Binger 2/3 of the potential jurors presume Kyle Rittenhouse guilty even before the prosecution made their opening statement in court.

    Elzorro in reply to felixrigidus. | November 5, 2021 at 6:22 am

    In Florida the jury instruction is that the state must prove their case beyong a reasonable doubt AND ‘to the exclusion of any other reasonable hypothesis’. Here there are many reasonable hypothesis that can be drawn from the admitted evidence. IMO these hypothesis are far more reasonable than the states case in chief.

    DaveGinOly in reply to felixrigidus. | November 5, 2021 at 2:07 pm

    I’ve only served on a jury once, but I was impressed the other jurors understood the difference between the appearance of guilt and the state’s ability to prove it. (We acquitted.)

The Friendly Grizzly | November 5, 2021 at 7:06 am

I’ve not kept up as well as I might have; has the jury been doxxed, or threatened with doxxing?

I have seen claims the Hubers father is an assistant DA but can not confirm it.

Alexander Huber is an assistant district attorney in Kenosha County but I don’t know if he is related to the Huber in this case.

Do you remember how Facebook and Twitter labeled Kyle Rittenhouse as a “mass murderer?” This was very early on and obviously occurred before his trial.

What is worse in my opinion is Facebook and Twitter defiantly refusing back then (and quite possibly still to this day) to allow any conversations or discussions that supported Rittenhouse, his defense, or any public arguments that supported a case of self-defense.

    henrybowman in reply to Ghostrider. | November 5, 2021 at 12:45 pm

    I await Kyle’s “Sandmanning” of Facebook and Twitter with anticipatory glee. Should make him enough to buy a small, private island. GoFundMe and Discovercard can pay for the motorlaunch.

    civisamericanus in reply to Ghostrider. | November 5, 2021 at 1:12 pm

    Which (not legal advice) sounds like libel per se, and Facebook and Twitter have pretty deep pockets. I encourage Rittenhouse to pursue this.

LongTimeReader | November 5, 2021 at 9:51 am

Anyone else catch that voice in one of the videos played today that shrieked something to the effect of “don’t do that ish, we have to live here.”

I was glad to see the defense make the points about strong armed robbery and armed robbery with Howard. I hope the defense hammers that again. The prosecution painting the deceased actions as some heroic move rather than the violent felonies they are is pretty gross.

It’s been a long time since I took a class in Criminal Law — I very much appreciate Mr. Branca’s points on the self-defense inquiry. He is the Professor that I never had, but, whom I wish I did!

“He said F#ck you and reached for his weapon”. At that point I would have stopped digging and moved onto the next witness!

civisamericanus | November 5, 2021 at 1:29 pm

“Binger had been very unhappy when McGinnis was allowed to suggest during cross-examination that it had been the intent of Rosenbaum to seize Kyle’s rifle. Binger objected at the time, but Judge Schroeder overruled the objection.”

Binger should have read the prosecution’s own charge sheet which stipulates that Rosenbaum did in fact try to grab the rifle (strongarm robbery, a violent felony under WI law, and adding a deadly weapon to the mix). This was McGinnis’ testimony at the time so I am not sure why Binger is unhappy that he repeated it during the trial.

“Now on re-direct, Binger rather heatedly challenged his own witness: You can’t read Rosenbaum’s mind, right? You can’t know what he was actually thinking, right? Your interpretation of his intent is nothing but complete guesswork, isn’t that right?”

An attorney knows, or ought to know, that somebody who uses deadly force in self-defense is not required to read the aggressor’s mind which is of course impossible. Maybe Binger thinks he is really dealing with twelve people who were too stupid to get out of jury duty. An attorney knows, or ought to know, that the person who uses deadly force in self-defense need only be in reasonable fear for his life as inferred from the aggressor’s behavior. E.g. if somebody raises a skateboard over my head while I am lying on the ground, maybe he really intends to show me how enthusiastic he is about skateboarding as opposed to bashing my head in with it, but the law and common sense do not require me to employ mental telepathy. Same if I am carrying a firearm and somebody, after apparently expressing his desire to kill me, tries to grab it. Maybe he wants only to see what kind of firearm it is and then hand it back to me, but that is not something the law or common sense require me to assume.

If Binger made this kind of argument then I do not believe (my opinion) he should be practicing criminal law because he is either not familiar with the almost universal standard for self-defense (as described by Attorney Branca) or he is familiar with it and is intentionally misrepresenting it (lying) to the jury to convict an innocent person. Or maybe he is so stupid he actually believes what he is saying, which means he is not lying because lying requires that he be aware that what he is saying is not true but, if he is really that stupid, I would not want him as my attorney (again, my perception from his words). If his position is elective then WI’s voters can and should do something about him at the next opportunity.

Setec Astronomy | November 5, 2021 at 4:30 pm

My god!!! The questioning of Ryan Balch, boring, redundant, going nowhere, where is he going! All the district attorney was doing was burning up Kyle Rittenhouse’s attorney time and wasting the court’s time! A cluster duck!
Thank you Mr Branka for you analysis!

Thanks again, Mr. Branca for the outstanding coverage of this trial.

Is it just me or is this trial starting to get that Zimmerman Trial flavor to it?

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