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Rittenhouse Trial Day 4: Two State Blunders Create Opportunity for the Defense

Rittenhouse Trial Day 4: Two State Blunders Create Opportunity for the Defense

State witness Lackowski: “If Rosenbaum had done that to me, would be a threat to my life.”

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.

Today was the fourth day of the trial by which ADA Thomas Binger’s is seeking 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.

The highlights of today were, unfortunately, delivered in the form of two major fumbles—one by the defense, and next by the State.

Interestingly, the nature of both fumbles places the ball in the hands of the defense.  By sheer luck, the defense acquired some breathing space to recover from its own fumble—although that assumes the defense is even aware that they fumbled, which it appears they are not—as well as perhaps the opportunity to more thoroughly exploit today’s unforced fumble by the ADA Kraus.

In short, a great opportunity at the doorstep of the defense, if they can only recognize it for what it is.   My fear, however, is that they may not.

Stopping State’s “Huber was hero stopping active shooter” Narrative

The great defense fumble of the day—from which they may still recover, if they even recognize the error—was accidentally revealed by the State making its own small error and getting caught by the defense.  Or, perhaps more accurately, half-caught.

This generalized legal smash-up occurred during the questioning of State’s witness Susan Hughes, the great-aunt of Anthony Huber.  Huber, you will remember, was the second man shot by Kyle the night of August 25, 2020, and fatally, after he struck Kyle twice around the head with a heavy skateboard, then grabbed Kyle’s rifle to seize it from him.

As ADA Jim Kraus was conducting direct questioning of Ms. Hughes, he attempted to introduce into evidence her testimony about an event from Huber’s childhood in which he’d purportedly saved a family gathering from an impending explosion.

Kraus initiated this by asking Ms. Hughes, “Have you known Huber to run to danger?”

The defense immediately objected, on grounds of relevance and also that it was inadmissible habit and custom evidence—that is, evidence attempting to argue that because somebody acted in a certain way on one occasion, that meant he acted in a similar way on a later occasion.  Such evidence intended to prove a character trait or a proclivity is generally inadmissible

Remarkably, when the defense objected on the grounds of habit and custom, and Judge Schroeder sustained the objection on that basis, ADA Kraus looked directly at the judge and whined (all this in front of the jury, mind you), “All we’ve heard in this trial is nothing but habit and custom evidence.”

For those of you not in the legal profession, let me be the one to inform you—you don’t backtalk to the judge. Never, ever, ever. At least, not with expecting a smackdown.

Judge Schroeder looked right back at ADA Kraus, said “You don’t need to comment on my rulings,” and abruptly recessed the proceedings for a break.  Presumably to have an opportunity to cool down before he let Kraus up.

You can watch that 90 seconds of hi-jinks here:

When the court came back into session, Judge Schroeder left the jury out of the courtroom and asked the State and defense to argue out their respective positions on this “child Huber saved family from explosion” evidence outside the hearing of the jury.

The state’s position was that this evidence of Huber’s heroic conduct should be admissible because it would rebut the defense argument that Huber was the initial aggressor in his confrontation with Rittenhouse. That issue of initial aggressor, of course, goes right to the self-defense element of Innocence, without which Kyle’s claim of self-defense with respect to Huber would collapse.

That Huber was the initial aggressor is, of course, incontestably captured on video, as he chased down the fleeing Kyle, struck him twice with the heavy skateboard, and was fighting Kyle for control of his rifle when Kyle fired the single round that killed him.

Naturally, part of his claim of self-defense to justify this shooting is, indeed, that Kyle was not the initial aggressor, but rather that Huber was the initial aggressor.  Certainly, the defense would be unwilling to concede that Kyle was the initial aggressor because doing so would lose the element of Innocence with respect to Huber, and lose self-defense.

So, the State argues that given the defense is (necessarily) arguing that Huber was the initial aggressor, they ought to be permitted to admit evidence of Huber’s “peaceful disposition” to rebut the defense—indeed, the admission of such rebuttal evidence is one of the statutorily permitted exceptions to the general prohibition on character evidence. If the other side says your guy is violent, you can introduce evidence to the contrary, if you have it.

There are several problems with the State’s offer of this evidence, however.  The first few are genuine, but not the ones I’m most concerned about. Nevertheless, let’s get them out of the way.

First, the defense pointed out that they had not, in fact, explicitly argued that Huber was the initial aggressor in confrontation with Kyle, and might never explicitly make that claim—they intended to let the video speak for itself.  This, however, is a weak argument, because Kyle’s very claim of self-defense implicitly requires that it was Huber, rather than Kyle who was the initial aggressor.  So, the defense is necessarily arguing Huber to be the initial aggressor implicitly, if not explicitly.

Second, as the defense notes, the statute allows for rebuttal purposes evidence of the person’s “peaceful disposition”—the statute literally uses those words.  But that’s not really what the State is offering here. Running to prevent an explosion may well be heroic, but it doesn’t really qualify as evidence of a peaceful disposition.

Third, the defense also notes, if Judge Schroeder decides to admit this “child Huber saved family from explosion” evidence, then the defense wanted the opportunity to share with the jury its own rebuttal evidence.

Specifically, the defense had in its possession several criminal complaints against the then-living Huber in which he’d been credibly accused of far from peaceful conduct.  In one complaint he’d been charged with holding a large knife to the throat of his brother, and later also holding the knife to his brother’s stomach and threatening to “gut him like a pig,” for failing to clean his room.  There was also a complaint in which he’d taken a plea to a charge of strangling.  In another instance, he had threatened to burn down his home “with all you f’ers inside it!”

Ultimately, that’s the deal Judge Schroeder offered the State.  If they wanted to have their witness Ms. Hughes testify about the “child Huber saved family from explosion” incident, he’d allow it—but then he’d also allow the defense to bring into evidence Huber’s more violent documented conduct, to rebut the State.

Faced with that price, the State decided to withdraw its questioning of Ms. Hughes about the heroically prevented explosion.

Now, you might be thinking that this looks like a win for the defense.  Either they were going to get the explosion story excluded, or they were going to get to show Huber for the person of violent character that the criminal complaints illustrated.

And if that’s all that was involved, it would have been a win-win for the defense.

But there’s more—and the more was insight provided into the narrative the State intends to put before the jury as the reason they should convict Kyle of intentional homicide and have him sentenced to life in prison, plus five years for having used a gun in the killing.

This came to light when ADA Kraus revealed—intentionally or by accident—that the state’s narrative with respect to Huber was going to be that Huber was a hero who had died believing that he was saving the citizens of Kenosha from active shooter Kyle Rittenhouse, after being provoked by Kyle as a result of his shooting of Rosenbaum.

You can listen to ADA Kraus himself here:

This narrative of Huber motivated by heroism to attack Kyle Rittenhouse is one that should never be permitted to be presented to the jury in this case—because it’s entirely irrelevant to any legal issue in the case what Huber’s motivation might have been in initiating a deadly force attack on Kyle Rittenhouse.

Here I’m giving the State’s argument the benefit of the doubt that Huber’s motives were, in fact, good, which is obviously just mere speculation as there is no evidence of Huber’s motives.

But let’s pretend that Huber had in his head that his attack on Kyle was motivated by a good faith desire to stop an active shooter—that has nothing whatever to do with either any of the criminal charges against Kyle or Kyle’s legal defense of self-defense.

Self-defense is evaluated from the perspective of the defender, period.  If a defender is acting in otherwise lawful self-defense, he does not lose the privilege of self-defense simply because the person attacking him may be doing so in good faith, or with good motives.

If you’re at home, and armed men kick in your door, and you reasonably perceive that intrusion as a felony home invasion, you can use deadly defensive force against those men in lawful self-defense—and if later turns out that those men were actually law enforcement officers mistakenly, but in good faith, serving a warrant on the wrong house your claim of self-defense remains entirely intact, so long as your perception of them as home invaders was a reasonable perception under the circumstances.

Similarly, if two police officers or armed citizens separately respond to a school shooting with guns drawn, and spotting each other they each mistakenly but reasonably believe the other is the active shooter and start shooting at each other, they each have the legal privilege to defend themselves against the other’s attack.  The fact that Joe is shooting at Frank in the good faith belief that Frank is an active shooter does nothing to diminish Frank’s privilege to use force to stop Joe’s attack.  Both men are acting in good faith in using force against the other, but both men also fully retain their privilege to defend themselves against the other’s good faith attack.

What controls for your claim of self-defense is whether you reasonably perceived that you were being threatened with an unlawful imminent deadly force attack.  You don’t need to be correct in that perception—you merely need to be reasonable in that perception.

So long as you are otherwise acting in lawful self-defense, that the person initiating the unlawful imminent deadly force attack upon you is acting in good faith doesn’t matter even a whit.

Their good faith is entirely irrelevant to your claim of self-defense, period.

In the context of Kyle’s shooting Huber, that means that so long as Kyle had a reasonable perception that he was being subject by Huber to an unlawful imminent deadly force attack, he was privileged to defend himself against that attack with deadly force—and any good faith motivation of Huber matters not a whit.

We can see, then, that any evidence about Huber’s motives in attacking Kyle is both irrelevant to the criminal charges against Kyle and irrelevant to his legal defense of self-defense.

The only question is whether Kyle reasonably perceived he was facing an unlawful, imminent deadly force attack. If he was, he was privileged to use deadly defensive force regardless of what might have been in Huber’s head (about which, again, we have no actual evidence, or anything other than speculation).

Now, it’s possible that the prosecution is planning to argue that Kyle’s conduct in shooting Rosenbaum qualifies as a provocation of Huber that should lose Kyle his privilege of self-defense.  After all, if I engage in conduct that provokes you into a fight with me—calling you mean names until we fight—arguably I ought to be found to have lost the element of Innocence and therefore self-defense.

But provocation in this sense is a deliberate and targeted conduct.  I intentionally engage in conduct that I should reasonably know will provoke violence and without justification.  That’s not what happened here in the shooting of Rosenbaum, however, as that shooting occurred only after a murder-threatening Rosenbaum chased down a fleeing Kyle in a parking lot and attempted to seize violent control of Kyle’s rifle.

That means that even assuming (speculatively, without evidence) that Huber felt genuinely provoked by Kyle’s conduct, that perception can only have been unreasonable, and Huber’s unreasonable perceptions cannot be a basis for denying Kyle his privilege of self-defense.

The effort of the State to argue that provocation can be applied to conduct generally that might anger others, and that you should lose your privilege of self-defense as a result, would turn thousands of years of use-of-force law on its head.

Under the State’s reasoning, even if Kyle’s shooting of Rosenbaum was found to be completely lawful, if Huber perceived it otherwise and was as a result “provoked” to attack Kyle as he fled for the police line, Kyle would have no privilege of lawfully defending himself against Huber’s attack.  All that would matter would be Huber’s subjective belief that he was attacking Kyle with good motive.

And that’s the exact reverse of what the law provides in the context of citizens using violence upon each other. It is not the subjective belief of the attacker that controls, it is the reasonable belief of the defender.

The defense should return to court in the morning and argue to Judge Schroeder that no reasonable jury could conclude that Rittenhouse’s compelled (and almost certainly lawful) shooting of Rosenbaum can be found to have been an intended or reasonably foreseeable provocation of Anthony Huber or anybody else, and further that Huber’s motive for launching his attack upon Kyle is irrelevant to the legal merits of Kyle’s self-defense, and therefore the state’s whole theory of the case that Kyle has no privilege of self-defense against Huber because Huber was (purportedly, speculatively, without evidence) acting in good faith and with good and heroic motives is an argument unmoored from both centuries-old use-of-force legal principles as well as any reasonable view of the actual evidence, and should therefore be excluded from this trial.

In any case, here’s the entirety of the events surrounding the testimony of Susan Hughes, Huber’s great aunt, and the legal arguments that resulted:

Susan Hughes: Direct Questioning

Susan Hughes: Initial Argument (pre-lunch)

Susan Hughes: Final Argument (post-lunch)

Opening the Door to Rosenbaum’s Psychiatric History

The second major blunder of the day was also triggered by none other than ADA Kraus, this time during his questioning of State’s witness Kariann Swart, described as the fiancé of Joseph Rosenbaum.

You’ll recall that all evidence of Rosenbaum’s psychiatric issues, including his that-day release from the mental ward of the local hospital, had been excluded from the trial by Judge Schroeder, primarily on the grounds that Kyle lacked personal knowledge of those matters at the moment he defended himself against Rosenbaum’s attack.  Had Kyle known, the information would have been relevant to his own state of mind, but he did not.

Suddenly, however, ADA Kraus asked Ms. Swart if Rosenbaum had taken his medication that day.  She said he had—but the defense took note of the question.  After direct questioning by Kraus was done, and before the defense began its cross, the defense asked for the opportunity for a conversation with the judge outside the hearing of the jury and Ms. Swart.

During that conversation, the defense argued that Kraus asking about the medications opened the door to the defense exploring that issue of medication in more detail.  Medication, what kind of medication, for what purpose?

The State objected, of course, but the judge ultimately decided that the issue was relevant if the medications involved were psychiatric in nature, and if Ms. Swart actually possessed personal knowledge on that issue.

Before the matter could be discussed in front of the jury, then, it would be necessary to bring Ms. Swart into the courtroom alone and explore her knowledge of Rosenbaum’s medications and their therapeutic purpose, in a process of voir dire very similar in nature to that of jury selection.

If Ms. Swart didn’t really know anything about the medications or their purpose, no further evidence on the matter could be introduced, and surely not through her testimony.

Well, it turned out Ms. Swart was rather amazingly well-informed about both the medications and their therapeutic purpose, because she was Rosenbaum’s emergency contact for medical purposes, and was in regular communication with his healthcare providers on such matters.

Did she know exactly what drugs Rosenbaum was taking, and for what purpose?  She sure did!  He was taking this gabapentin for bi-polar disorder and Seroquel for depression, and more.

You could almost hear the State gulp.

Having demonstrated the possession of personal knowledge of Rosenbaum’s medications and their purpose, and with the State having opened the door to Rosenbaum’s use of medications in the first place, the defense was now permitted to question Ms. Swart on these matters in front of the jury, and get that evidence into the record.

Kariann Swart: Direct

Karinann Swart: Debate

Kariann Swart: Voir Dire

Karinann: Cross

Karinann: Re-direct

I must say, that the defense did follow through on this questioning of Ms. Swart on cross, and so got this evidence into the record.  That said, they spent only a few moments on the matter.

Now I’m now wondering if this is all there is, or if they plan to further exploit the door opened by the State.

Now that evidence of specific drugs have been successfully entered into the record, and now that evidence of specific psychiatric conditions, such as bi-polar disorder, have been successfully entered into the record, I see sound argument that the matters can now be explored more fully.

Can the defense now bring in a psychiatrist to testify about any tendency of those specific medications and psychiatric conditions to foster the erratic and violent conduct of Joseph Rosenbaum on the night of August 25, as evidence of his own state of mind, even if that knowledge was not possessed by Kyle Rittenhouse?

Before such an expert would have been inappropriate because there was no evidence of these drugs and psychiatric conditions in the record.  But now there is.

It makes one wonder at the possibilities.

Lackowski: “Oh, yeah, then he’d be a threat to my life.”

Another interesting witness today was the first of the morning, Jason Lackowski.  Jason had previously been a United States Marine Corps infantry rifleman, and was friendly with Ryan Balch. He, like Ryan, had been present in the company of Kyle on August 25 in Kenosha, and had his own share of interactions with Joseph Rosenbaum in particular.

Highlights of Lackowski’s testimony included his description of Rosenbaum as acting very belligerently, asking people bluntly to shoot him, making “fasle steps” as if attacking, trying to incite violence, and shouting the N-word at a Black Lives Matter rally.

On direct, ADA Binger went though his usual weapons laundry-list question:  Did Rosenbaum have a gun? No. Knife? No. Bat? No. Club? No.

Did you personally feel threatened by Rosenbaum, asked Binger, and the USMC rifleman who at the scene had been armed with an AR rifle, a knife, and a can of CS spray, as well as in the company of similarly armed friends, answered that he had not felt personally threatened.

This turned around to bite the State when the defense got to Lackowski on cross examination, however.

Chirafisi asked him, you were never alone one-on-one with Rosenbaum were you? No.  You had support with you? Yes. Rosenbaum had never threatened to kill him? No.  Never told him, if I get you alone, I’ll f’ing kill you?  No.

What if, Chirafisi asked, you had been alone, and Rosenbaum had threatened to kill you under that circumstance, and you saw him charging you at full speed, screaming “F-you!” and fighting to take your gun from you, would you feel then that he was a threat?

Lackowski:  “Oh, yeah, a threat to my life, yes.”

Boom.

Otherwise, Lackowski’s testimony was much along the lines of Ryan Balch, very favorable to Kyle Rittenhouse, very negative about Rosenbaum.

The one exception to the generally favorable testimony about Kyle was that Lackowski testified that when he encountered Kyle only moments after he had shot Rosenbaum, Kyle told him “I didn’t shoot anybody, but I need help,” and that Lackowski told him to walk over to the police line.

Naturally, the State sunk its teeth into the “I didn’t shoot anybody” line—though frankly, it hardly would seem to matter, as Kyle was promptly walking towards the police, anyway.  Nevertheless, when you don’t have much to work with, you grab what you can.

The defense suggested that it made much more logical sense that Kyle had said, “I DID shoot somebody and need help,” because why would he say he need help because he HADN’T shot anybody, but didn’t really make that stick.

Lackowski Direct

Lackowski Cross

Lackowski Re-direct

Lackowski-Re-cross

Lackowski Re-re-direct

The Day’s Other Witnesses Not Particularly Notable

The state’s other witnesses were not really very notable, so I’ll just treat them in summary fashion.

Amber Rasmussen, DNA Technician

Amber Rasmussen was the DNA tech who handled the swabs from Kyle’s gun, and found in essence that there was little or no indication of “touch” DNA from Rosenbaum, Huber, or Grosskreutz on the weapon.

The defense pointed out that where they argued the weapon had been grabbed was on the exposed portion of the barrel, and she had not tested for DNA from that area of the weapon—that’s not normally a place where the weapon is held.

In any case, absence of detectable levels of “touch” DNA doesn’t mean there wasn’t contact, especially if the contact was brief, as would have been the case in each instance here.

Amber Rasmussen: Direct

Amber Rasmussen: Cross

Sal & Sam Khindri

Also questioned were the adult sons of the owners of the Car Source properties, Sal & Sam Khindri.  They both came across as rather confused, and Sam in particular struck me as doing a pretty good imitation of someone who was profoundly stoned.

The State appears to have called them for their willingness to testify that they had never given anyone permission to provide armed security to their properties, contrary to earlier testimony by Dominick Black and inconsistent with the reasonable understanding of folks like Balch, Lackowski, and Rittenhouse.

The defense on cross pointed out that the Khindri’s might well be concerned about their own civil liability for the killing of Rosenbaum on their property if they had given permission for this armed security that resulted in Rosenbaum’s death. They denied this concern, but of course it’s a reasonable speculation in as highly a litigious society as America—and there are, for certain, civil suits flying around these events already—and it raises the issue of bias in their testimony.

Of course, whether Kyle had their permission to be on the property in general, and be chased by a murderous Rosenbaum across their parking lot in particular, has nothing whatever to do with the legal merits of Kyle’s claim of self-defense.

Sal Khindri: Direct

Sal Khindri: Cross

Sal Khindri: Re-direct

Sal Khindri: Re-cross

Sam Khindri: Direct

Sam Khindri: Cross

Kenosha Police Officers

To wrap up the day we had a series of appearances by various Kenosha police officers, none of whose testimony was all that notable.

First was Officer Erich Weidner. His role in events was to be one of the officers to respond to the Rosenbaum shooting scene and do evidence collection.

Erich Weidner:  Direct

Erich Weidner:  Cross

Erich Weidner:  Re-direct

Erich Weidner:  Re-cross

The second was Officer Jeffrey van Wie, who received Kyle’s rifle into evidence and did the swabbing of the trigger, pistol grip, trigger, and handguard that would be sent to Amber Rasmussen for DNA analysis.

Jeffrey van Wie:  Direct

Jeffrey van Wie:  Cross

Jeffrey van Wie:  Re-direct

The third was Officer Pep Moretta, who was in the patrol car approached by Kyle as he neared the police line at the end of Sheridan Street and attempted to turn himself in.

Pep Moretta:  Direct

Pep Moretta:  Cross

Pep Moretta:  Re-direct

And that brought us to the end of court for the day, and the week.

OK, folks, that’s all I have for you on this topic.

Until next time:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

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Comments

If Kyle is acquitted, can the Feds just re-arrest and re-charge him?

    Danny in reply to anto. | November 6, 2021 at 12:00 am

    Legally?

    The short and long answer is both no

    Actually?

    The Fascist Garland was kept off the supreme court by Mitch McConnell for a reason and doesn’t think law applies to democrats so they might do it anyway but it would have absolutely nothing to do with law.

    TargaGTS in reply to anto. | November 6, 2021 at 7:50 am

    There aren’t many avenues available to them here because there aren’t any potential federal issues at play. He’s not a cop, so a civil rights case isn’t there. He and his attackers (victims in eyes of gov.) are all of the same ethnic origin/race and there’s no indication at all it was driven by any kind of religious animus, so there’s no hate crime element here. This is, by any measure, only a state crime that was allegedly committed.

“In short, great opportunity at the doorstep of the defense, if they can only recognize it for what it is. My fear, however, is that they do not.”

Andrew, is it outside the profession to call the Defense and offer your opinion?

As always, a great write up!

    Agree but I would be cautious not to open any doors for the state. Hope they are burning midnight oil on the strategy.

    My guess the Defense would not be open to it. Robert Barnes had a dream team to help with jury selection as well as top Defense lawyers as advisors and after months of saying yes, turned them down two days before jury selection. I think he was suggesting Mr. Branca was a part of that team, although he didn’t mention his name.

      I’m wondering if *one* reason why the existing defense team passed on having Robert Barnes in with them is the press would have a field day with it, hammering his defense of Alex Jones on every single story they produced over and over and over….

      (The second reason of course is that Barnes is quite opinionated, which is good when he’s right, and a hinderance if the defense is trying to do something they see as right but he doesn’t. I do think he’s right, just that it can be horribly annoying at times and this is a stressful situation already.)

In short, great opportunity at the doorstep of the defense, if they can only recognize it for what it is. My fear, however, is that they do not.

Certainly any good defense attorney is reading Andrew Branca’s daily comments (and great insights) on his or her trial here at Legal Insurrection or at http://www.lawofselfdefense.com.

TX for the great summary. The medication open door should be persuasive to the jury if they walk through iti see similarity to all the previous attempts at social justice prosecutions like The Mike Brown Bull Rush and future astronaut Trevon Martin. It seems like the defense is in position to destroy Bingers case in chief before the state rests using the rules of procedure. After all it took a long time to develop the rules and they work when applied by a smart defense attorney.

More Krouse!

I’m pretty sure the state’s continual whining at the judge isn’t doing them any favors.

No One of Consequence | November 5, 2021 at 10:38 pm

Regarding the “initial aggressor” issue:

Under WI Stat. 939.48(2)(a), if Rittenhouse’s previous conduct was unlawful and could be legally regarded as being of a type likely to provoke an attack, he would still have been entitled to use force in self defense if Huber’s attack was “of a type causing [Rittenhouse] to reasonably believe that he [was] in imminent danger of death or great bodily harm,” and he was entitled to use deadly force if he reasonably believed he had “exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of [Huber].”

Since he was on the ground when Huber was attacking him with the skateboard, running away doesn’t really seem like an option.

But that’s not all. Even if Rittenhouse had lost his right to self defense by being the initial aggressor, sec. 939.48(2)(b) says: “The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.”

Since Rittenhouse was running away and Huber and others were pursuing him, there’s no way a jury could find that he failed to give adequate notice that he’d withdrawn from the fight.

And, of course, there’s not one word in sec. 939.48 about Rittenhouse’s right to use deadly force in self defense depending on whether Huber was wearing a cape or not.

Under the circumstances of this case, under 939-48(1), the only question that should be put to the jury regarding Rittenhouse’s claim of self defense is whether he reasonably believed that shooting his attackers was “necessary to prevent imminent death or great bodily harm to himself.” There’s just no fact issue as to any other element of his self defense claim.

Or more to the point, whether the prosecution established beyond a reasonable doubt that Rittenhouse didn’t believe that deadly force was reasonably necessart to prevent his attackers from killing him or causing him great bodily harm.

https://law.justia.com/codes/wisconsin/2019/chapter-939/section-939-48/

Devil’s advocate for the defense: what if they are aware of the lack of relevance of the attacking party’s motives, but just want the ADAs to continue wasting time on those tangents and potentially open up new lines of attack like with the drugs, to then have the jury instructions be that motive of the attacker doesn’t matter and have the jury feel like the prosecution wasted their time when they go back to deliberate.

CuriousJustice | November 5, 2021 at 11:20 pm

I am surprised no one mentioned the very next rule of evidence, 904.04(2).

2)  Other crimes, wrongs, or acts.
(a) General admissibility. Except as provided in par. (b) 2., evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence of other acts, in this case evacuating people from an explosion, is not admissible for proving character, even if character is admissible. The exception, b(2), applies to sex offenses. The next rule does allow the cross examiner to get into specific act details though

904.05  Methods of proving character.
(1)  Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

Side effects of gabapentin include anger, hostility, attempts to commit suicide, and aggressive/violent behavior. My son took it for his epilepsy for a time and it changed him.

    murkyv in reply to Grey_Man. | November 6, 2021 at 1:22 am

    I’ve known several people on gabapentin, including myself, and all of us were/are on it for neuropathy.

    But others I’ve known could not because of mood altering side effects

    My ex abused it. She’d take a months worth in a week and stay near comatose for the next week.

    It worked for me as prescribed, but Dr’s changed my BP meds, and the 2 arent compatible

    BillBer in reply to Grey_Man. | November 6, 2021 at 2:00 am

    Whoa. As much of a POS as Rosenbaum was…I feel pity for him. Abused as a kid, ended up in the system where likely bad things happened, gets out, clearly has an illicit drug/alc problem, ends up on psychotropic drugs…

    Not excusing anything. He got what he got and he caused it but he was a sad, sad case.

      Dathurtz in reply to BillBer. | November 6, 2021 at 7:37 am

      Most of the really bad assholes have a similar background.

      As someone who has a sister who is diagnosed schizophrenic, I cannot help but have sympathy for a large number of mass murderers, even those who shoot children.

      Of course, those who are in a position to defend innocent life don’t have the luxury of worrying about the background of the shooter, at least until the threat has been neutralized.

      And when someone like Rosenbaum is killed, I cannot help but reflect on how better served we’d be, if we were better equipped as a society (both legally and financially — in particular, by funding mental hospitals) to deal with our mentally ill.

        As someone who has a close blood relative who is a diagnosed paranoid schizophrenic, I suffer mood swings whenever I hear anyone express “sympathy” for the evil that so many people do, who have been thus diagnosed.

        Let me repeat what the foregoing commenter said: “I cannot help but have sympathy for a large number of mass murderers, even those who shoot children.”

        Over the past 100 or so years, the imposition of basic moral standards has fallen out of fashion. Those of us who distinguish between right and wrong, who sympathize with the victims, and who refuse to make excuses for the “mentally ill” have become the bad guys. Meanwhile, not only do defense lawyers routinely play the “crazy card” for racist, black monsters, but prosecutors increasingly do so pre-emptively.

        One can be both schizophrenic and evil. Firstly, one chooses to go off one’s meds. Secondly, I have seen people commit very wicked acts who were on their meds, and completely calm.

        And as the prosecutors in the Kyle Rittenhouse trial show, there are supposedly sane people who derive power from their support of the insane (and evil), in this case a white madman.

    Kevin in reply to Grey_Man. | November 6, 2021 at 2:52 pm

    Seroquel is an anti-psychotic. It is used to treat mood swings and depression brought on by bipolar disorders or schizophrenia. Rosenbaum taking both gabapentin and Seroquel leads one to believe he was in fact schizophrenic. His behavior in this instance is an indicator of this. No mentally stable person acts like he did. They should recall the girlfriend and grill her about her knowledge of his condition. After viewing the videos of the attack on Rittenhouse, the knowledge that he was on such heavy medications for mood and behavior problems shows me that Rosenbaum was indeed the aggressor. The defense should make these facts crystal clear on final with the jury. I personally know 2 people prescribed Seroquel, and their behavior can at best called erratic, at worst psychotic.

CuriousJustice | November 5, 2021 at 11:24 pm

The defense shouldn’t have objected to the Huber explosion story anyway. They should’ve let the prosecution open the door and then introduce Huber’s criminal conduct on cross examination.

    The defense objected before the testimony occurred. They needed to be sure that they would be able to present the refuting evidence, and couldn’t take the chance of how the judge would rule after the testimony was allowed. Moreover, by objecting at the front end and making it clear how they would follow, it increased the chances of a favorable ruling from the judge.

    Best case: Explosion story in, and defense present character info on Huber
    Acceptable case: Explosion story out, no character info.
    Disaster: Explosion story in, but no rebuttal.

    So they were hoping for the best case, but averted a disaster.

It is unclear to me what exactly could/should the defense have done *today* in response to the state’s theory on Huber’s motivations? Specifically, what would be the advantage of excluding this line of argument out at this point in the trial? To me, the best case scenario would having the related charges tossed (would that even be possible?). More likely, it would give the State the chance to change course with the jury none-the-wiser. As it stays now, the defense allows the State to waste their efforts in pursuit of this theory, extremely handicapped by the threat of accidentally allowing Huber’s criminally violent behavior in, and can simply dismiss it (as you have done) at their convenience.

I was confused by the Defense’s lackluster argument wrt the hospital issue. It was my understanding that the State was allowed to mention Rosenbaum’s hospitalization, without revealing cause, because it innocently explained why Rosenbaum was carrying the bag. But during direct, the fiancé is asked questions about where Rosenbaum was in the days prior and how he got back…why ask those questions if not to garner sympathy?

Finally, was the timeline issue (and her precision on departure time) to further suggest that Balch was lying?

    Paul In Sweden in reply to stevenJ. | November 6, 2021 at 8:05 am

    The leftist ADA twisting Huber’s violent attack on Kyle into a heroic act is a tactical exercise that goes on many times every day prior to every MSM broadcast. In a way, it was good to observe what is normally concealed.

I feel like the state and the media are, or have flipped the presumption of in nice innocence into a presumption of guilt, just watching the way they are arguing this. And it feels like in several of these cases now, the defense has slid into that mindset, possibly because the cases have been, generally, so ludicrous that it seemed possible to definitively prove innocence.

This is why these sort of cases should never be brought, and why DAs who bring them should be sanctioned for bringing them. Every one of these that makes it infront of a jury undermines the concept of innocence.

    Elzorro in reply to Voyager. | November 6, 2021 at 12:43 am

    Ludicrous/Lucrative….I detect no wrongful death lawyers like Crump involved. No deep pockets in Kyles situation. They have not chopped up the bodies in multiple autopsies and Dr. Baden is nowhere to be seen.

I’m learning so much from these reviews and analysis…. And I Pray to God I never have the need to apply my new knowledge for myself.

I’m left wondering how life is going to be for Mr. Rittenhouse after the trial… Being found Not Guilty will not be enough to get Justice for him.

    BillBer in reply to MrMichael. | November 6, 2021 at 1:41 am

    He will have a plethora of options. This is malicious prosecution and he has been wrongfully smeared all over. Plus the FA is clearly corrupt and messing with circumstances to attempt to bolster this case. Kyle may well end up a rich man.

      One of which will be to be targeted for actual attack by SturmAntifa. Don’t believe me? Look at what happened to George Zimmerman. His face was known everywhere he went, and it led to at least two shooting attempts by random Leftists.

      I hope he makes a good case that Facebook et al’s attempts to stifle discussion about him being innocent will lead to them getting hit hard on libel charges — and that Section 230 would be insufficient to protect them, having abandoned, by their choices in what comments were permitted and forbidden, any right of claiming “good faith” comment moderation.

Why didn’t the defense cross examine Rosenbaum’s fiancé about the restraining order she had against him? Seems like that door was opened when she testified about him staying with her.

This is all so ridiculously, maddeningly convoluted. Gaige is a POS, Rosenbaum an even bigger POS, and Huber too. I know that’s irrelevant to Kyle’s actions but to see the manipulation and outright lies about these three scumbags. The DAs office is holding out on current cases on Rosenkook anyone interested have a look at kenosha county eye.

oh wait wecan post links here?

https://kenoshacountyeye.com/2021/11/03/rittenhouse-prosecutor-told-police-not-to-execute-search-warrant-signed-by-judge-to-view-grosskreutzs-cell-phone/#comment-2098

Actually, that site has so much info, infuriating, here’s a link to a site search for Rittenhouse:

https://kenoshacountyeye.com/?s=rittenhouse

That site has SO MUCH insider info as to the machinations of the FARCE that is the prosecutor’s office there. I urge anyone to give it a look. The search returns 5+ pages of info.

How do you guys avoid succumbing to anger over this?

I thought Morettas testimony on the WarZone and the fact that more people were armed than not directly refuted the Procecutions claim of being Armed was bizarre.

AAAARGH!

“The mayor’s cousin is the Kenosha City Attorney, Ed Antaramian (D). His nephew is the Kenosha City Judge Michael Easton (D). His other nephew is Thaddeus (Tip) McGuire (D), State Representative. His other cousin is Laura Belsky (D) County Board Supervisor. ”

OK I’m stopping now. I know none of this is directly relevant but there is CLEARLY some serious nepotism in Kenosha and it is clearly affecting this case.

Sgt. Sunshine | November 6, 2021 at 3:57 am

Friday testimony from the Prosecution’s witnesses was worse than the Titanic hitting the iceberg. Binger is allegedly running for the DA position in 2022, and he is most likely seeing his future prospects going up in flames. In the days following a solid Day #1 from the Prosecution, we have only watched them get obliterated by either their own witnesses or the defense (or both). Jurors are a different animal but I think if the defense can put them in Rittenhouse’s shoes that night, he will be acquitted on ALL charges.

    “Binger is allegedly running for the DA position in 2022, and he is most likely seeing his future prospects going up in flames”

    Perhaps that’s the point. Eliminating your underlings by giving them suicide missions has a long and sordid history. The DA gets brownie points with the progressive press for ordering a malicious prosecution while eliminating a competitor for their position.

Under the State’s reasoning, even if Kyle’s shooting of Rosenbaum was found to be completely lawful, if Huber perceived it otherwise and was as a result “provoked” to attack Kyle as he fled for the police line, Kyle would have no privilege of lawfully defending himself against Huber’s attack. All that would matter would be Huber’s subjective belief that he was attacking Kyle with good motive.

The state’s theory is absolutely pernicious. Given that the prosecution’s witness testified that there were “constant gunshots” heard it would presumably also mean that everybody present at the Kenosha warzone would have been able to attack with the intent to kill their victim in the Huber manner on the basis that they heard shots and somehow concluded that this meant Huber was an active shooter.
Certainly, Kyle Rittenhouse could have thought the complaining witness who we probably will hear from on Monday was an active shooter putting together the “constant gunshots” that were audible and the fact that Grosskreuz had a gun in his hand…

This seems to be so clearly malicious prosecution and yet we will not see ADA Binger criminally prosecuted for conspiring to unlawfully imprison Kyle Rittenhouse. Laws need to be changed so that future Bingers will face prison for their gross misconduct.

smalltownoklahoman | November 6, 2021 at 6:19 am

Really hope when court resumes that the defense will be able to take advantage of the state’s huge mistake regarding Rosenbaum’s meds. That plus all the other witness testimony about him thus far can clearly establish that Rosenbaum was the aggressor and not Kyle. A lot of the rest clearly follows from there.

Kinda (but not entirely) doubt the Huber issue will be brought back up but who knows: the prosecution has been remarkably dumb at times in this trial.

I can’t wait until Monday to see what other defense witnesses the State is going to call.

I thought Chauvin’s lawyer left a lot of meat on the bone. A lot. I’m afraid Kyle’s defense team may be as well. I’ll reserve judgement until they finish their defense. One key difference is the judge. This judge seems determined that Rittenhouse get a fair trial, as the Constitution demands.

    With regard to Chauvin’s lawyer, I couldn’t help but wonder if he felt that his client was getting railroaded by both the Prosecution and the Judge, and thus decided to leave some cards close to his chest, hoping to get the entire trial thrown out in appeal as a mistrial, and going all-out in a second trial.

    The Prosecution and the Judge had certainly given a LOT of ammunition for declaring a mistrial. I hope the appellate courts are far more reasonable than the original judge.

      iconotastic in reply to snowfarthing. | November 7, 2021 at 12:16 pm

      I thought I read that the policeman’s union had said no more legal defense funds for Chauvin. If so and given that few lawyers would be willing to risk working with Chauvin I wonder if the former officer will have to rot in prison until the Minnesota AG can arrange for a prison yard execution.

“HUBER WAS HERO STOPPING ACTIVE SHOOTER” NARRATIVE reminds me of claims made after 9/11 that the Islamic terrorists who flew the planes into the WTC were “cowards.”

Many seem convinced that courage is a virtue when in fact it is not: it’s just a tool, a means to an end and not an end in themselves. There’s nothing cowardly about executing a suicide mission, yet that does not make the mission any less evil.

What the State seems to be saying is that Huber had a pattern of displaying courage, and therefore must have been virtuous. And it’s true that attacking a man holding a rifle takes courage. But, doing so does not necessarily imply virtue.

It’s an old argument in ethics, going back at least to Aristotle, who viewed courage as a virtue (because without it one can accomplish little). Yet it is not, it is (like any tool, such as a weapon) neither virtuous nor evil as all depends on what it is used for.

    Elzorro in reply to Albigensian. | November 6, 2021 at 9:34 am

    Woke prosecutors across America are ‘reimagining’ the citizens right to self defense. Waging lawfare against Truth, Justice, and The American Way.

I’ve literally treated hundreds of patients for bi-polar disorder, Ms Swart stated the Seroquel was for his bi-polar depression. This is an anti-psychotic medication and with individuals experiencing the mania phase of the disorder it can assist them in not becoming excited and psychotic. Of course many patients enjoy the mania state and create excitement that manifests psychosis, even with the medication in their system. The defense really needs an expert to specifically spell out this potential dynamic.

    ksbsnowowl in reply to drjorey. | November 6, 2021 at 12:38 pm

    > Seroquel … is an anti-psychotic medication.
    ++++++++++++++++++++++++++++++++++

    My wife immediately pointed this out after she read this excellent daily summary by Mr. Branca. I agree that the defense really needs to call a psychiatric expert witness to testify to Seroquel’s true (possible other?) uses, and the behavior it can elicit. It will reinforce the testimony from Balch and the other veteran (?) about Rosenbaum’s hyper-aggressive behavior.

I have a question, Sam stated that he did not give anyone permission to be in any of the buildings. He then says that he did see video the next day of people inside the buildings, should a police report have been filed since they had the people in the buildings on video supposedly without any of the family’s permission?

The prosecution pointed out earlier that one of its own witnesses could not have known what was in Rosenbaum’s head, but now wants to advance a theory about what was in Huber’s head. Don’t they at least need a witness to introduce such an idea as evidence? And wouldn’t then the defense be able to object because it would be speculation?

Concerning Kyle’s assailants possibly touching K’s weapon – the barrel is at the pointy end. It’s closet to an assailant, and therefore most easily grasped. Control of the pointy end also allows control of where the bullet goes, and gives considerable leverage to whoever is grasping it. But it’s also the exposed part of the rifle that gets hot. Any body oil or DNA deposited there can be destroyed by the heat. The police ordinarily swab a firearm to prove that it was in the possession of the defendant. They didn’t usually swab looking for DNA of anyone who may have grasped the firearm in any place other than where the user was already holding it. Even if someone attempts to take a weapon by grasping the pistol grip or handguard, they would not necessarily have had their hands on the weapon, but on the user’s own hands, and therefore wouldn’t have deposited any DNA or other evidence on the gun.

    Elzorro in reply to DaveGinOly. | November 6, 2021 at 1:38 pm

    The first crimes scene was rich in blood spatter but the police ignored it. Total fail in crimes scene forensic evidence collection. Lost the bag that has become in to evidence also. No distance measurements, etc. even missed some casings that were found later.

The second was Officer Jeffrey van Wie, who received Kyle’s rifle into evidence and did the swabbing of the trigger, pistol grip, trigger, and handguard that would be sent to Amber Rasmussen for DNA analysis.

Um…. So why in the world would the Prosecution go haring off on a wild goose chase about the deceased’s DNA not being on a section of the weapon that the defense is not even claiming was touched. That’s like taking DNA swabs of Kyle’s car.

    healthguyfsu in reply to georgfelis. | November 6, 2021 at 8:12 pm

    They are grasping because they are desperate. Bringing it up at all gives them a small glimmer of a benefit because it implies to some ignorant fools that physical contact by the assailant with the gun is important for a claim of self defense. Anyone with any knowledge of self defense knows that it is not at all required, and I’m sure a self defense expert will clearly blast that when it’s the defense’s turn. An attacker can be shot some distance away and still be considered the aggressor in legal self defense, but the prosecution is just trying to take away the defense’s claim that Rosenbaum reached for the gun. Back in adult land, successful reaching and grabbing vs a whiff attempt at a grab are moot distinctions in this case.

Silly question from a layman, here: Shouldn’t the judge know, without the defense having to lobby him, that Huber’s perception of Rittenhouse’s motives is irrelevant? Or do lawyers just assume the judge is going to screw up without their guidance?

James B. Shearer | November 6, 2021 at 6:03 pm

“Silly question from a layman, ..”

I am a layman also but I think judges generally rely on lawyers objecting before excluding a question. What’s going to be important here is the jury instructions, does the judge make it clear to the jury what the actual legal standard is. Of course the defense should try to keep out evidence making Huber look good (just as the prosecution should try to keep out evidence making Huber look bad) as juries seldom decide solely on the law.

I have a quick question. I’m not sure if it was brought up during the brothers’ cross examinations but there’s a video interview of them and they magically know all about how much money they lost, how many cars were lost, etc. Is that not grounds for perjury?

https://youtu.be/tQ1eihGu9kU

    jmare in reply to jmare. | November 7, 2021 at 9:21 am

    Well, just rewatched the cross and it was brought up. How does his testimony not qualify as perjury? It’s pretty obvious that he’s lying.

Char Char Binks | November 7, 2021 at 10:52 am

All of this is Officer Rusten Sheskey’s fault. If a black man beats and rapes a black woman, steals her SUV and kidnaps her children, why intervene? These are good things, not bad,. Let them happen.

The same goes for that white cop who shot that black sow stabbing another black sow — MYOB.

The revelation in court by Ms Swart , prompted by the ADA, of the psychiatric drugs being taken by Rosenbaum sounds like a Brady violation to me?

Though Huber’s intentions are irrelevant to the claim of self defense, surely the State would have had to do more to prove the “child Huber saved family from an explosion” narrative (and that Huber’s role was positive throughout) than roll out his aunt with an unsupported anecdote. Was she even a direct witness or is this hearsay? Is the aunt an explosion expert with reason to understand what she is claiming? Was this incident reported to any sort of authority, or in a newspaper, etc., at the time? What sort of explosion? What did Huber do to avert it? Did he cause it?
The State’s witness list ought to reveal whether they had any intention of establishing this “hero” line as factual. Perhaps it would be unwise or not worth pursuing, but if the defense can show that the whole story is unfounded, seems to me that the jury would have to regard the prosecutor as a fraud.

Swart’s testimony seems to open the door to fully exploring Huber’s psychiatric problems. Once the jury hears “bipolar schizophrenic on multiple psych meds released from a mental ward that same day” they re not going to credit positive fantasies about his motives in attacking Rittenhouse.

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