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Rittenhouse Trial Day 6: State’s Autopsy Expert Supports Self-Defense Narrative In Another Disastrous Prosecution Day

Rittenhouse Trial Day 6: State’s Autopsy Expert Supports Self-Defense Narrative In Another Disastrous Prosecution Day

Soot pattern on the right hand of Rosenbaum suggested that it had been on the muzzle of the rifle when the hand was shot.

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 sixth day of the trial by which ADA Thomas Binger 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.

Well, I imagine those of you following my coverage of this trial are beginning to feel like you are caught in “Law of Self Defense: Groundhog Day Edition,” because every day seems to be a repeat of the same general theme—that it was a terrible, horrible, no good, very bad day for the prosecution.

And I’m afraid today was no different.

Before I dive into the meat of the day, let me knock off a couple of high-level items.

Curfew Violation Charge Dismissed

First, the curfew violation charge, Count 7 in the criminal complaint, has been dropped from the trial.  No explanation was involved, but it hardly matters, it was at worst a ticketing offense.

The more important implication of that charge being dropped is a negative one, meaning what didn’t happen—that is that the illegal gun possession charge, Count 6, remains.

This is a travesty, both because a plain reading of the relevant gun statutes would appear to exempt Kyle, and in any case, the statutes themselves are so ambiguous as to be unconstitutionally vague and probably not understandable to a lay jury.

It’s always been my position that the gun count ought to be dismissed, but I’m not the judge, so here we are.

Entire Testimony of FBI Special Agent Brandon Cramin

Today Judge Schroeder also instructed the jury that they were to disregard in its entirety the testimony on the first day of the trial of FBI Special Agent Brandon Cramin.  The reason given to the jury was that the testimony had proved incomplete. As it happens, Cramin was the only witness of the trial whose testimony was not broadcast from the courtroom, so I’ve never had a substantive opinion on that testimony.  But in any case, it’s apparently gone from the case now.

The State Rests: No Directed Verdict

Finally, the State officially rested today, after presenting its final two witnesses.

It should be understood that when the prosecution rests, that’s the high water mark for the State’s narrative of guilt.  Until now, the only witnesses called have been those the State chose to call.  To that point, the defense has had no choice whatever in the witnesses presented to the jury.

Unfortunately for the State, this high water mark more closely resembles a water ring in a dirty toilet.  In a case where the primary legal defense is self-defense, and where the State, therefore, bears the burden of disproving self-defense beyond a reasonable doubt, the prosecution appears to have come nowhere close to meeting that burden.

From this day forward it will be the defense choosing the witnesses to present to the jury—and the defense certainly started off with a bang today, as I’ll cover in more detail in a moment.  Effectively this means that as weak as the prosecution’s case is today, it can only get weaker moving forward.

And that is, of course, good news for Kyle Rittenhouse.  Having said that, the risks of a conviction are never zero, even for the most innocent of defendants, and of course, even for the acquitted defendant the process itself is its own punishment.

Many people have wondered if the defense would make a motion for a directed verdict.  This is a motion arguing to the judge that no reasonable jury could convict based on the state’s case is chief, and asking the judge to take the matter out of the hands of the jury and render a verdict himself.

Motions for a directed verdict are made as a matter of routine in almost every criminal case I’ve ever been involved in—and they are as routinely denied.  The best path to a directed verdict is where the prosecution has simply produced zero evidence on some element of the underlying crime—or, in the context of this case, zero evidence attacking some element of the defense

Once virtually any evidence has been presented, however, most judges are loathe to take from the jury their role in being the weigher of evidence, the finders of fact, and barely more than zero evidence is therefore enough to deny a motion for a directed verdict.

I’m presuming that in this case, the defense made the motion in the usual way, and the judge denied it in the usual way, although I saw nothing in court discussing such a motion explicitly.

In any case, whether it was made and denied, or not bothered to be made at all, the outcome is the same—the judge is not rendering a verdict in this case, and the defense today began to present its own case in chief.

The State’s Final Witnesses

The State’s two final witnesses were James Armstrong, an imaging expert witness, and Dr. Doug Kelley, the medical examiner in the autopsies of Joseph Rosenbaum and Anthony Huber.

In a nutshell, Armstrong he did nothing observable to help the prosecution, and Dr. Kerrey affirmatively helped the defense.  This is not at all how State witnesses are supposed to work for the prosecution, and especially not the last two the jury will hear from before the defense gets its turn.

State Witness:  James Armstrong, Imaging Expert Witness

Armstrong was brought in by the State to speak to the just-discovered “unicorn” evidence in the form of drone footage that the evidence fairy left on the prosecutions’ doorstep this past Friday.

When examined this video yesterday, I could discern nothing useful even on my high-end computer monitor, and Detective Antaramian who introduced the video could only make the most tentative suggestions about what it showed.

The Detective would claim that he could see Kyle Rittenhouse pointing his rifle towards Joshua Ziminski in the moments before Rosenbaum began his murderous chase of the 17-year-old—all it took was for him to zoom in on the image using his smartphone. He also claimed that Rosenbaum was feet away from Rittenhouse at the time he was shot.

Well, I zoomed in using a giant 4k iMac screen and saw nothing of the sort. Presumably, Armstrong was supposed to come in with some video magic pixy dust and show the jury what the prosecution needed to be shown.

Unfortunately for the State, the ‘enhanced’ video and Armstrong’s testimony still failed to show to this small-town lawyer’s eye anything like what was claimed by the Detective.  As far as I can tell, this drone video is a total bust for the prosecution—and perhaps help for the defense, because it provides yet another view of Rosenbaum chasing down the fleeing Rittenhouse.

In any case, here’s the direct examination of Armstrong by ADA Kraus:

And the cross-examination of Armstrong by Defense Counsel Richards:

State Witness: Dr. Doug Kelley, Medical Examiner

The final State witness for this trial was Dr. Doug Kelley, the medical examiner who performed the autopsies of both Joseph Rosenbaum and Anthony Huber.

The most notable aspect of Dr. Kelley’s testimony was how visibly uncomfortable he was under direct examination by ADA Kraus.  Kraus repeatedly attempted to press Dr. Kelley into providing testimony that the good doctor was clearly not comfortable providing.  It was quite noticeable, with Kraus proposing some zany interpretation of the autopsy findings that might support the State’s theory of the case, and Dr. Kelley visibly hesitating before simply disagreeing.

Key to the State’s questioning of Dr. Kelley was their desire to have him testify that both Rosenbaum and Huber were further from Rittenhouse than the video evidence would suggest.  Of key importance to this was the analysis of soot and gunpowder stippling around the bullet entrance wounds.

In short, soot marks are generally found only when the muzzle was within a few inches of the wound, and gunpowder stippling only when the muzzle is within four feet or less of the wound.

In one example of Kraus pressing Dr. Kerrey to “lengthen” the distance at which Kyle fired, in the video of the shooting of Rosenbaum a rather large cloud of smoke can be seen coming from the muzzle of Kyle’s rifle.

Wouldn’t all that smoke mean that the stippling found on Rosenbaum might have traveled a much farther distance than is typically the case, Kraus suggested and that therefore Rosenbaum could have been farther from Kyle when shot than the other evidence might indicate?

Kerrey hesitated, then replied that soot and gunpowder flecks have the kinetic energy needed to travel and mark a target—smoke does not.  Ouchie.

At other times Dr. Kerrey suggested that the only way to answer the hypotheticals posed by the State would be to test-fire the rifle—but that just highlighted that such test firing had not been done by the State, most likely because they were afraid the answer would be unfavorable to their prosecution.

On cross-examination by defense counsel Richards, Kerrey testified that the gunshot wounds and injuries to both Rosenbaum and Huber were entirely consistent with the men being in a position of attack upon Rittenhouse when they were shot—even the fatal shot to Rosenbaum’s back, which was likely inflicted when the aggressor made a diving lunge at Kyle’s rifle.  In particular, the soot pattern on the right hand of Rosenbaum suggested that it had been on the muzzle of the rifle when the hand was shot.

On re-direct by ADA Kraus, the prosecutor tried to suggest that the soot on the hand might have been the result of Rosenbaum attempting to “swipe” the muzzle to the side, and even had Dr. Kerrey do a demonstration for the jury using Kraus’s own hand on the rifle barrel.

Unfortunately, Kraus had entirely mistaken which side of the hand the fired bullet had entered.  Once this was corrected by Dr. Kerrey, he pointed out that really the only way the soot pattern observed could have been created was with the hand on the muzzle in the manner suggested by defense counsel Richards.

Dr. Kerrey even used the term “Superman” to describe the lunging, hands forward body position of Rosenbaum that would explain his wound patterns.

So unsatisfied was the State with their own medical examiner that they not only subject him to direct examination, they then also subject him to re-direct, and ultimately to re-re-direct.  Not that it helped, as the defense effectively cross-examined in each instance.

Overall, the testimony of Dr. Kerrey wasn’t even close in terms of which party it favored—it was entirely consistent with the self-defense narrative of the defense, in a case where the State is obliged to disprove self-defense beyond any reasonable doubt.

Here’s the direct of Dr. Kerrey by ADA Kraus:

The cross-examination of Dr. Kerrey by defense counsel Richards:

And the re-direct by Kraus:

Re-cross by Richards:

Re-re-direct by Kraus:

Re-re-cross by Richards

And with that, the State rested its case, and it was the turn of the defense to steer the trial.

The Rittenhouse Strikes Back

The defense presented four witnesses today, the first three of which were substantive—Nicholas Smith and Joann Fiedler, both of whom accompanied Kyle to protect property the night of August 25, 2020, and Nathan DeBruin, an amateur photographer perhaps best known for his photo of Kyle cleaning graffiti.

For all three of these witnesses, the testimony was both entirely consistent with the legal defense of self-defense, and substantively undermined much of the already weak foundation underlying the case-in-chief the prosecution has spent the last week presenting to the jury.

Defense Witness:  Nicholas Smith, Defender of Car Source Property

A key value of the appearance of Nicholas Smith was his testimony indicating that the Car Source owners had explicitly requested, gratefully accepted, and offered to pay for, the protection and assistance of himself, Kyle, Ryan Balch, and the others at the Car Source location that night.  Further, he testified that the owners had provided the protectors with keys and other means of access to the properties. Smith would work alongside Kyle, Ryan Balch, Jason Lakowski, and Joann Fiedler (the next defense witness), amongst others, to accomplish precisely this.

Smith’s testimony was vastly more credible than the confused and apparently stoned testimony of Sal and Sam Khindri, the owners of Car Source, that they had presented on the part of the State, in which they ridiculously purported to have no particular knowledge of all these armed men on their properties.

When subject to cross-examination by ADA Binger, Smith not only provided no testimony harmful to the defense, he provided an opportunity for Binger to present as little more than snide, sneering, and flailing—not a good look.

Smith also testified about Kyle’s shocked demeanor in the aftermath of the shootings, and his urging of Kyle to turn himself in to authorities—which, of course, Kyle had already attempted, and which he would do later that evening in nearby Antioch IL.

Here’s the direct examination of Smith by defense counsel Chifarisi:

The cross-examination by ADA Binger:

Here’s the re-direct of Smith by Chirafisi:

Defense Witness:  Joann Fiedler, Protector of Car Source Property

The value of this witness to the defense was substantially greater than even the very positive contribution of Smith.  Like him, she also testified that she had personally met with the Car Source owners, that they were appreciative of the protection offered, and that the protectors had certainly never been told to leave the property.  She would work alongside Kyle, Smith, Ryan Balch, and others to do precisely this.

Fiedler also, however, provided substantive eyewitness testimony about the antics of Joseph Rosenbaum, with a breadth of personal knowledge broader than what the jury had previously seen in this trial.

In addition, she effectively exposed the State’s position on ridiculously weak on several points where they sought to challenge or impeach her testimony, only to have her directly contradict the State’s claims, and exposing the State as having no substantive evidence to back up their accusations.

She also injected some much-needed humor into the proceedings.

Fiedler, who might be described as a “little old lady,” (although in fairness, not likely an older than me) presented as patriotic and civic-minded, without—importantly—presenting as “militia” or “boogaloo.”

She testified about how some protestors outside the Car Source were aggressively seeking to provoke a physical confrontation, urging her to put away her gun (a .380 caliber pistol) and come out in the street, getting increasingly angry and strident with her when she refused to repeat their own fist-in-the-air “power salute,” and so on.

She also testified extensively about the antics of Rosenbaum, including his apparently throwing an object moments before the protectors found themselves the victim of a “gas bomb” attack,

On cross-examination, ADA Binger suggested that she had withheld from investigators video evidence that she had shared with Kyle’s defense attorneys. When she flatly denied this, Binger had no actual evidence to the contrary with which to impeach her denial.

ADA Binger repeatedly attempted to suggest that Fiedler was prepared to kill in order to protect the Car Source property, deliberately conflating the notion of being lawfully armed while defending property and the notion of using that deadly weapon to kill in defense of property. Fiedler consistently insisted her gun was for her own protection and to act as a deterrent in the protection of property.

Ultimately Judge Schroeder made clear to the jury the use-of-force distinction being conflated by Binger, and that put an end to this charade.

Binger accused Fiedler of having told investigators that she’d had no actual communication with the Car Source owners, which she again flatly denied.

At one point Binger decided to revisit his “Rosenbaum was only 5’ 3”, he couldn’t be a deadly threat to anybody” argument—and fell flat on his face.  When Rosenbaum’s slight stature was presented to Fiedler for this purpose she responded “well, he’s about the same size as me.” Turns out that Joann Fiedler herself is only 5’ 4” tall.

At times Binger’s cross-examination of Fielder became outright incoherent, with he and Fiedler clearly talking about different locations and times without themselves realizing they were at cross-communications—and of course it’s not the job of the witness being cross-examined to keep the questioning coherent.

In short, Fiedler was a very capable witness for the defense narrative of self-defense, and further undermined the narrative of guilt of the State.

Here’s the direct examination of Fiedler by defense counsel Chirafisi:

The cross-examination by a snide, sneering, and ineffective ADA Binger:

And the re-direct by Chirafisi:

Defense Witness:  Nathan DeBruin, Amateur Photographer: Prioritize This One!

Perhaps the most powerful witness of the day for the defense, however, was one that might have seemed the least likely.  This was Nathan DeBruin, an amateur photographer who took a great many photos the night of August 25, 2020, in Kenosha, as well as on previous nights.  Indeed, it was DeBruin who took the now-famous image capturing Kyle, among others, cleaning graffiti off the walls of the local high school.

I say that DeBruin seemed an unlikely candidate to be the defense’s most powerful witness of the day because he presented—and conceded—that he was extremely anxious, and he also suffers from a rather prominent speech impediment.

Despite this, DeBruin was absolutely coherent and firm in his testimony, almost driving ADA Kraus into a rage with his calm and cool testimony that was so helpful to the defense and so damaging to the prosecution.  Indeed, at times ADA Kraus’ cross-examination of DeBruin became completely unprofessional, and almost personally bullying.

Perhaps nothing was as damaging to the prosecution, and as personally infuriating to ADA Kraus, as DeBruin’s testimony that in a meeting with ADA Binger and ADA Kraus he had the perception that they were asking him to “change” his statement to police about what he had observed the night of the 25th.   Here “change” should be read to mean “falsify”—in particular, to falsify some conduct or presence of Joshua Ziminskiy.

Indeed, immediately after that meeting with prosecutors, in which DeBruin refused to change a word of his prior statement, he immediately left and retained his own legal counsel—and that counsel was present in the courtroom during DeBruin’s testimony today.

ADA Kraus almost shouted his accusatory questions at the DeBruin on cross-examination.  Isn’t it true you have a bias favoring the defense in this case, that you don’t want Rittenhouse convicted?  Not true, answered De Bruin.

Then why did you give an interview to a blog that has published many, many articles critical of myself and ADA Binger?  (Really, this display of personal affront by ADA Kraus was completely unprofessional.)  DeBruin’s answer:  Well, they asked me.

Isn’t it true that you knew the blogger you provided an interview to has a bias against this prosecutor’s office, asked Kraus?  Tell us what you know about his bias!?!?!?!

At this point even Judge Schroeder had enough, interjecting—you’re asking this witness to testify about the alleged bias of some other person?  Yeah, that’s not happening.

Almost as maddening to Kraus was the many photos and personal observations DeBruin had taken of Rosenbaum engaged in conduct that was helplful to the defense and harmful to the prosecution.

Need an eyewitness with photos to testify about Rosenbaum holding a chain? DeBruin’s your guy.

An eyewitness to testify about Rosenbaum’s threatening, violent, provocative conduct towards others, needing to be held back from attacking?  Have you met Nathan DeBruin.

Eyewitness testimony of Rosenbaum tipping over porta-potties, dragging trailer that would later be aflame into the street, hearing Rosenbaum scream that he’d just gotten out of jail and wasn’t afraid to go back, seeing Rosenbaum get angry when the dumpster fire was put out, hearing Rosenbaum shout F the police and shoot me N-word repeatedly.  We’ve got our guy!

Need someone to testify that he saw Huber strike Rittenhouse repeatedly with a skateboard? That Huber hand then fought for control of Kyle’s gun?  That Grosskreutz had approached a fallen Rittenhouse with a gun in his hand?

On cross-examination by ADA Kraus, DeBruin had repeatedly characterized the meeting with ADA Binger and Kraus in which he felt they were asking him to falsify his police statement as one that was very tense and uncomfortable.

Now Kraus proposed, isn’t it true that our meeting was congenial and uneventful?  DeBruin answered: You mean, aside from all the uncomfortable tension?

When Kraus demanded why DeBruin had forgotten to mention important details in his police statement—such that Grosskreutz had a gun in his hand—that he later remembered when interviewed by the defense, DeBruin looked straight at him and answered, hey, I’m not a police detective or prosecutor, I don’t know what you think is important.

That one left a mark.

Honestly, if you don’t have time to enoy any other, I recommend you prioritize the testimony of DeBruin, and particularly his cross-examination testimony under the tender mercies of the nearly hysterical Kraus.

Here’s the direct examination of DeBruin by Richards:

The angry and bullying cross-examination by ADA Kraus:

And the re-direct by Richards:

In the end, it was pretty evident that as angry as Kraus was with DeBruin, the amateur photographer had little but contempt for the Assistant District Attorney.

In that match-up, DeBruin was the clear winner.

Defense Witness:  Lucas Zanin

The final defense witness of the day was one Lucas Zanin.  His testimony was not particularly substantive and was offered by the defense at the end of the day as foundational evidence to support the admission into evidence of a cell phone video of the shooting of Rosenbaum in the Car Source parking lot.  This video was taken by Zanin’s step-daughter as the two sat in his car parked across the street from the lot.

Frankly, the video appeared of terrible quality and limited, if any, utility, so I don’t really know what the purpose of this was.  I certainly couldn’t discern anything important in the video, and Zanin and had not observed much of any real value.

That said, when subject briefly to cross-examination by ADA Kraus, Zanin began to wax poetically about the sorrow he felt at the terrible destruction the ravaging, invading horde had inflicted on the city in which he’d been born-and-raised—and that certainly did nothing to hurt the defense narrative of self-defense.

Indeed, I almost suspected that the defense had in fact snuck Zanin in as a “booby trap” witness precisely for the State to fall into that trap—but that would be pretty diabolical.

In any case, here’s Zanin’s brief direct examination by Richards:

And his even briefer cross-examination by Kraus:

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

Don’t forget to join us again tomorrow morning at Legal Insurrection for our live coverage of the Kyle Rittenhouse trial, as it enters its seventh day.

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

What are your odds of a complete acquittal? I still say politics and threats of violence will compel the jury to convict on at least some charges.

    MattMusson in reply to KPOM1. | November 10, 2021 at 7:24 am

    For that reason, the Judge should have the balls to issue a directed verdict so the Jurors are not murdered for returning a not guilty verdict.

      AF_Chief_Master_Sgt in reply to MattMusson. | November 10, 2021 at 12:44 pm

      Why would the judge do that? He would only open himself to the murderous wrath of the insane leftist mob.

      Better to let the jurors wrap that rope around their own necks.

The gun charge is really inexplicable. Wrongly instructing the jury that Rittenhouse was illegally carrying the gun is incredibly prejudicial. Here’s a question: if Rittenhouse somehow was convicted of something besides the gun charge, wouldn’t that conviction be voidable because of retroactive misjoinder? Is this just some cynical scheme to get him convicted for a year or two (like Bill Cosby) before the convictions are inevitably reversed?

I don’t understand why the state always tried so hard to discredit anyone who claimed, or even mentioned, that Rosenbaum tried to grab Kyle’s gun when they knew Dr Kerrey was going to testify that Rosenbaum’s hand wound came from either being on the barrel of the gun or within an inch or two. Crazy.

So lawyers just accept that ADAs are suborning perjury? This is acceptable for officers of the court? Do they no longer teach ethics in law school.

The legal profession has become the real threat to our Republic.

Zanin’s audio of pipes and bats on cars highlights that authorities were not intervening and that citizen response was only logical recourse against rioters unrestrained by local authorities. I found this to be particularly effective rebuttal to state’s efforts to portray riots as protests.
My concern is that trial is still proceeding in spite of lack of evidence rebutting self defense claim. This trial is a farce. Spice it up with jury intimidation and you get a conviction.
RICO charges are in order.

No One of Consequence | November 9, 2021 at 10:04 pm

I think you meant to say “capable witness” here:

“In short, Fiedler was a very capable defendant for the defense narrative of self-defense, and further undermined the narrative of guilt of the State.”

DeBruin is a hero. He held his own, even while under the influence of extremely anxiety. He refused to be bullied or intimidated.

    Joe-dallas in reply to xpaulso. | November 10, 2021 at 8:00 am

    My observation was the state was trying to get Debruin and the ME to lie , and/or tamper with the witness with responses to the effect from both stating to the effect ” i am not going to lie so you can get a conviction – and I dont appreciate you asking me to lie”

    I expect most of the jury to have the same observation

“Perhaps nothing was as damaging to the prosecution, and as personally infuriating to ADA Kraus, as DeBruin’s testimony that in a meeting with ADA Binger and ADA Kraus he had the perception that they were asking him to “change” his statement to police about what he had observed the night of the 25th. Here “change” should be read to mean “falsify”—in particular, to falsify some conduct or presence of Joshua Ziminskiy.”
———–

This backs up my contention that Binger and Kraus should face Bar disciplinary proceedings and disbarment — firstly, for violating the Model Rules of Professional Conduct by bringing manifestly politically-motivated criminal charges that are totally lacking in a scintilla of evidentiary and factual supports, and, violating their ethical obligation to see Justice done, and, secondly, for this brazen attempt to intimidate a witness and to have him falsify his police statement.

    Subotai Bahadur in reply to guyjones. | November 9, 2021 at 11:12 pm

    When was the last time you heard of a Democrat lawyer sanctioned for violating the Model Rules of Professional Conduct? Especially a prosecutors.

    Subotai Bahadur

      No One of Consequence in reply to Subotai Bahadur. | November 9, 2021 at 11:34 pm

      Michael Byron Nifong (born September 14, 1950) is an American former North Carolina attorney, who has been disbarred. He served as the district attorney for Durham County, North Carolina until he was removed, disbarred and jailed following court findings concerning his conduct in the Duke lacrosse case, primarily his conspiring with the DNA lab director to withhold exculpatory DNA evidence that could have acquitted the defendants.

      I’m merely stating what should ideally happen, based on the prosecution’s conduct and decision to bring charges.

      Of course, it’s obvious to all observers that it’s exceedingly rare for prosecutors to ever face Bar disciplinary proceedings when they abuse their powers and fail to abide by legal ethics and the Model Rules. This needs to change.

      If you don’t press to have them sanctioned because you don’t think they would be sanctioned, then you have a self-fulling prophecy. Official misconduct should be reported and prosecuted, period.

    I’m thrilled to learn that there is such a thing.

I don’t understand the state’s case on the gun charge. It seems to say in plain English that an under 18 year old can’t cary a dangerous weapon except for carrying a non short barreled rifle or shotgun. How do they read the law to prohibit Kyle from carrying a normal rifle?

    CommoChief in reply to gth871r. | November 9, 2021 at 10:51 pm

    Not just the prosecution. The Judge can/should rule in support of a defense motion on this point, he has not.

    The prosecution knows their case is crap. They need the charge to stick in order to advance a theory that KR was acting unlawfully on this BS charge, and because the self defense portions of the statute could be interpreted to use that ‘unlawful act’ to undermine his self defense argument. Either that or so they can say to the d/prog mob we tried but all the jury would convict is this BS as a consolation prize. IMO that’s all that makes any sense but who knows what these clowns are actually thinking?

Colonel Travis | November 9, 2021 at 10:28 pm

The treatment of the photographer witness today by Attorney Bluto, and the photographer saying that when he originally met with them he felt uncomfortable with their demeanor, is additional evidence that the DA’s office is corrupt as hell. They should have never have brought charges, but we see what bullies they are and that they do not care.

Such behavior undermines a country built on liberty and freedom. Legally, it is clear Rittenhouse is guilty of nothing. Will the jury see it this way? Will fear of the mob control them? Are they brainwashed by leftist BS? Impossible to know.

Ms. Fiedler has been called Grambo

“Here “change” should be read to mean “falsify”—in particular, to falsify some conduct or presence of Joshua Ziminskiy.”

I didn’t read it that way. Seems that the prosecutors were trying to get him to add more to his statement than he actually knew by telling him more about Ziminsky, likely to help them with their case against Ziminsky and perhaps having nothing to do with the Rittenshouse case. But nothing along the lines of “falsifying” unless I’m missing something….

Still awkward. Still somewhat sleazy. But the incident was probably blown out of proportion in DeBruin’s mind, especially since he clearly sympathized with the armed protectors like Kyle. Like everyone else, I enjoyed watching the prosecutors squirm and be befuddled, but I’m sure they did much more unethical things throughout the investigation than try to get DeBruin to add to his statement based on new info. DeBruin’s testimony gave the jury only a hint of the character of the politically motivated prosecutors. The defense was lucky to have such a witness willing to go toe-to-toe with the prosecutors and add to the narrative of prosecutorial misconduct during the investigation.

    “But the incident was probably blown out of proportion in DeBruin’s mind…”

    Sure, the prosecution attempts to change a mans testimony to something false got “blown out of proportion”.

    The prosecutors should be the ones going to jail.

    gramma_b in reply to foospro86. | November 10, 2021 at 3:41 am

    A person’s statement should reflect their own personal knowledge. Sounds like the prosecutor was trying to add things that De Bruin did not know, then have De Bruin claim it as his personal knowledge. That is ‘falsifying’ in my book.

My favourite part of the day was Smith testifying that despite being offered money to protect the Car Source property he was never paid. So the brothers ask them to risk their own safety to protect their business, offer money then proceed to completely lie on the stand and claim they never did while stiffing them on the bill.

Talk about gratitude!

    DaveGinOly in reply to lyovmyshkin. | November 10, 2021 at 12:46 pm

    It’s probably a good thing no money changed hands. If it had, the MSM and prosecutors would have graduated Kyle and his friends from “vigilantes” to “mercenaries.” Also, Biden’s IRS would be after them if they didn’t report the income!

Andrew, thanks so much. I really appreciate the style you bring.

“That one left a mark”
“… but that would be diabolical”
“Need a witness to bring his own pics and testify to the naughtiness, we got your guy”

LMAO – thanks for the yeoman’s work.

Does anyone know who the blogger was who had Kraus so worked up? I’m kind of curious to check out the blog.

Are the prosecutors wholly inept or am I just not seeing something here. It seems this case is massively focused on distractions that aren’t relevant to the self-defense claim.

So did the prosecutors try to suborn perjury from this witness? I can’t imagine why a witness would run out and get his own lawyer after being interviewed by the prosecutors, and then have that lawyer in court to observe his testimony.

This seems to be as bad as the Nifong situation, and he was disbarred.

    Joe-dallas in reply to rochf. | November 10, 2021 at 8:05 am

    The jury heard that – I would think that made an impression.

    How often does a witness hire an attorney –

    Hmm – why would a witness hire an attorney – ?

    that being said, the case is won or lost during jury selection

      CommoChief in reply to Joe-dallas. | November 10, 2021 at 9:42 am

      In our new reality of ideological prosecutors, securing an attorney and having them present for every interaction with any prosecutor’s office or LEO seems prudent. See LTG Flynn.

        AF_Chief_Master_Sgt in reply to CommoChief. | November 10, 2021 at 12:57 pm

        Correct. Anyone who speaks to any law enforcement agency is a dimwit.

        Refuse to speak until you have an attorney present.

        Don’t say anything beyond “yes,” if they ask if you need to go to the bathroom.

        They will chat you up until you are comfortable talking.

        Keep it to the civilian equivalent of “Name, Rank, and Serial Number,”

        Then ask for a lawyer, and continue to ask for a lawyer until you get one.

I think DeBruin is on the autism spectrum and it’s not a speech impediment, but an affect from his autism. E.g. https://youtu.be/FV_cjbJr3ik

In the just released HD video of the chase across the car lot, when Kyle is about halfway across the lot he appears to turn around and fire back in the direction he came from, then continues running. Warning shot after hearing gunshots behind him? It’s really quick in the video, easy to miss. Haven’t seen this remarked on.

    lyovmyshkin in reply to Fiat Justitia. | November 9, 2021 at 11:43 pm

    No he doesn’t appear to shoot at all before the final encounter. None of the witnesses have alleged that and not even the prosecution has alleged there was a shot fired before the 4 shots that all struck Rosenbaum.

      ex-leftist in reply to lyovmyshkin. | November 9, 2021 at 11:52 pm

      Most importantly, the shots weren’t fired until Rosenbaum had his hand on the gun trying to wrest it away.

      Fiat Justitia in reply to lyovmyshkin. | November 10, 2021 at 12:19 am

      Look at the video included after “in any case, here’s the direct examination of Armstrong by ADA Kraus:” in today’s section on State Witness: James Armstrong, Imaging Expert Witness. Kraus has a version of the video played (starting about timestamp 16:10), which has been slowed down 50% and cropped to just the area covered in the final chase. What I see is what looks (maybe) like a muzzle blast from Kyle’s rifle pointed back towards the street and, a little later, Kyle a bit further along with the rifle still pointed backwards. He then turns back in the direction he had been heading and continues fleeing. Because of the speed he was running this happens really fast, even when it’s slowed 50%. I had to watch this several times, along with another video of the segment of time just before this. I also notice something happening on another version which had not been slowed down as much. I understand nobody has mentioned, suggested, or claimed this, but, hey, I’m an engineer so I like to look at the raw data and go from there. Am I misinterpreting this? (Photo interpretation was not my field.)

        lyovmyshkin in reply to Fiat Justitia. | November 10, 2021 at 12:33 am

        I see what you’re saying but what you’re actually looking at is the reflections of the clear bag that Rosenbaum threw at Rittenhouse. If you look at the other angles which capture the same moments there’s no sound indicating gunfire at the time but around the exact time in question Rosenbaum throws his plastic bag in Rittenhouse’s direction.

        lyovmyshkin in reply to Fiat Justitia. | November 10, 2021 at 12:35 am

        Also you can actually see Rosenbaum still in the motion of throwing the bag at the time the glare comes off the bag that’s he’s just thrown at Rittenhouse. Watch it closely and pay attention to Rosenbaum’s arms.

      DaveGinOly in reply to lyovmyshkin. | November 10, 2021 at 12:50 pm

      A forensic sweep of the crime scene area would also have turned up a spent case (or cases) not correlated to any other known firing of Kyle’s AR.

    Colonel Travis in reply to Fiat Justitia. | November 9, 2021 at 11:48 pm

    It hasn’t been remarked on because he didn’t fire his weapon.

Mr. Branca,

I may have missed it but the State present any evidence with respect to the gun charge? Is the only evidence Kyle’s possession of his AR15 and his age?

Massad Ayoob speaks often about the “doctrine of competing harms”. If the gun charge proceeds, would a defense be that it was necessary for Kyle to have a weapon, in this case an AR 15, for his safety. Given the events of the past night and of Aug. 25, it would appear that justification bears out. If it was necessary to have the AR15 for safety, less harm would occur if Kyle broke the law with regard to the gun charge.

Thoughts?

Thank you,

Rich B.

Does anyone have an explanation as to how to interpret the “except that” clause in Section 3 of Wisconsin’s self-defense statute:

“(3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.”

Can a defendant judged to have acted in self-defense be convicted of offenses causing unintentional harm to a 3rd party that aren’t explicitly mentioned in this clause or does this clause exclude other offenses?

    Elzorro in reply to Wilmore. | November 10, 2021 at 7:24 am

    He did not kill anyone except the perps. He did not harm anyone else either.

      DaveGinOly in reply to Elzorro. | November 10, 2021 at 12:54 pm

      That would be my understanding of the aforementioned law. The “exceptions” deal with actual injuries, and not merely putting others at risk of injury. So it’s inapplicable to the situation, no matter if any of Kyle’s shots had come close to an innocent party.

Kraus is corrupt, unprofessional dog scat.

Kraus was attempting a combination of gaslighting, smearing him as biased, and accusing him of bringing photos damaging to the prosecution for reasons of profit.

The DeBruin cross-examination reminded me a bit of Don West’s cross-examination of Rachel Jentel, but with the outcome reversed.

In my view, ADA Kraus’ x-examination of DeBruin was neither angry nor bullying. However, it was not informed with sympathy that any experienced litigator should have.

I have prepared and/or examined many witnesses. The information I’ve obtained from them typically was different from what other lawyers obtained—because those attorneys and I had different objectives and/or theories of the cases.

ADA Kaus had to be aware that any witness would likely deliver different, yet not necessarily inconsistent, facts from one interview to the next, particularly when one interview is by lawyers and/or investigators for one side of a case and the next by lawyers and/or investigators for the other side case. Also, ADA Kaus had to be aware that a witness might be more intimidated in (and want to get away from as soon as possible) a police station,

Where ADA Kraus should have been polite and charming in an attempt to elicit testimony from DeBruin that might show the jury that perhaps defense counsel had suggested facts to DeBruin, ADA Kaus performed plain ham-handedly.

One of my favorite “war stories” concerned the deposition of a third party witness by the opposing lawyer. Right after that witness was sworn in, the opposing lawyer and the witness engaged in this exchange:

Opposing lawyer: Have you ever communicated before today with the other side’s lawyer, Mr. Siegel, who is in the conference room with us?

Third party witness: Yes. He called me yesterday and then met me at my place of business.

Opposing lawyer: How much time did Mr. Siegel spend with you?

Third party witness: At least 2 hours.

Opposing lawyer: What did Mr. Siegel tell you?

Third party witness: He kept telling me that when I answer your questions I should tell the truth.

The one thing that jumped out at me was on the new video evidence – the “smoke plume”. There is simply no way that a .223 round out of a rifle will do that, as it uses smokeless powder. However, at close range, that “smoke plume” shown is aerosolized fluid jetting out of the person shot. That wasn’t powder smoke, it was literally flesh smoke.

    Maz2331 in reply to Maz2331. | November 10, 2021 at 1:36 am

    One other technical point – an AR-15 always has a flash hider on the end of the barrel. The actual muzzle is always away from the visible end of the gun by about an inch or so and a lot of the unburnt powder and discharge gas is vented away in a distinctive pattern.

DeBruin OWNED ADA Kraus! Such fun!

The defense has proved self defense beyond a reasonable doubt. By doing so they absolve Kyle of all the lesser charges. He can not be guilty of reckless endangerment while acting in justified self defense. of his life. He was not reckless but deliberate.

    SamlAdams in reply to Elzorro. | November 10, 2021 at 7:39 am

    Considering the average beat cop around here puts about 2/10 rounds on target, Rittenhouse was astonishingly accurate.

    The Pedant-General in reply to Elzorro. | November 10, 2021 at 8:23 am

    He was better than just “not reckless” or even “deliberate”. The presence of mind when, in the space of just a few seconds, you’ve been:
    – kicked in the head and shot at the person who did that
    – struck with skateboard across the head and neck and shot at the person who did that
    – charged at by a 3rd person who is now just fractions of a second from laying into you
    NOT to shoot when that 3rd person suddenly stops up short and raises his hands.

    This is demonstrably the very opposite of reckless. It’s not just deliberate. It is sang froid and coolness under pressure of the very finest degree.

      Another young man approached Kyle immediately after the shooting of GG. Kyle started to point his AR at the man, but the man put his hands up, and Kyle immediately stood down. Amazing discipline, situational awareness, and rapid analysis resulting in a correct action – in every one of Kyle’s encounters.

    TargaGTS in reply to Elzorro. | November 10, 2021 at 8:23 am

    I agree completely. He was incredibly circumspect, careful and deliberate in his righteous application of deadly force in defense of his life. But, the state is hoping that the jury will ignore the evidence (and likely the jury instructions) and at a minimum, vote to convict on the recklessness charge believing that just being there holding an ‘evil assault weapon’ was inherently reckless. That may not be a bad, unfruitful strategy for the prosecution based upon what you might read in the comments section of places like NPR, Washington Post or MSNBC. It’s all going to come down to what kind of people are on that jury.

    Think about it; 40% of the American public thinks ‘assault weapons’ should be banned. If someone is carrying something you think shouldn’t even be allowed in polite society, you’re likely very predisposed to vote yes on the recklessness charge, at a minimum.

Russ from Winterset | November 10, 2021 at 8:43 am

My takeaway from watching “The Tuesday Afternoon Massacre” (Kraus vs DeBruin), is that DeBruin did NOT accuse the prosecution of asking him to “falsify” testimony. He kept repeating his recollection that Binger repeatedly asked him if he wanted to “change” his testimony. The obvious change that they were looking for was identification of Ziminski from some random snippet of video.

Kraus really stepped in it during his cross. Defensiveness regarding their attempts to draw more info from DeBruin made the prosecution look guilty. If he had played it cool and said something like “we were just trying to draw out any information that you didn’t realize was important”, then maybe he might have salvaged the case. The angry tone he took with a compliant witness implies to the jury that the prosecution WAS trying to shade DeBruin’s testimony to fit their theory rather than changing their theory to fit the testimony. A great example of “me thinks thou doth protest too much”. And the anger he displayed at a witness daring to speak with both the defense team AND media unsympathetic to the prosecution? That has to make you think that a prosecution who is willing to go after witnesses who are unsympathetic to their case is damn well capable of encouraging sympathetic witnesses to “spice up” their testimony in favor of a conviction.

The confrontation yesterday was like some sort of a bizarro-world cosplay of “A Few Good Men”….except in this universe, when Tom Cruise confronts Jack Nicholson on the stand he trips over his own feet and admits that HE ordered the Code Red. Almost like a Bugs Bunny/Daffy Duck sort of exchange:

“Did you order the code red?”
“NO”
“Did you order the code red?”
“NO”
“Did I order the code red?”
“YES”
“Your honor, I…..wait, what?”

“In a case where the primary legal defense is self-defense, and where the State, therefore, bears the burden of disproving self-defense beyond a reasonable doubt, the prosecution appears to have come nowhere close to meeting that burden.”

Is this true? It is my understanding that self defense is an affirmative defense in Wisconsin.

Today Judge Schroeder also instructed the jury that they were to disregard in its entirety the testimony on the first day of the trial of FBI Special Agent Brandon Cramin.

Um…. How bad can the testimony of an *FBI* agent be if it is shielded from public disclosure and then afterwards the jury is instructed “Don’t pay any attention to a word of what that man said.”

    henrybowman in reply to georgfelis. | November 10, 2021 at 2:24 pm

    Unless your tinfoil hat whispers to you that the whole point of the exercise was to expose the jury to damaging perjury by the FBI in a star chamber venue, then clean up the official record by ordering the jury to “unring that bell,” which of course can’t be done.
    But that would require the judge to go along with shenanigans, and if this judge is that type, he’s a very good actor on-camera.

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