Judge lashes out at lead prosecutor for commenting on Kyle’s post arrest silence and trying to introduce evidence the judge previously barred. Defense use-of-force expert Dr. Black to testify tomorrow, day 8 of trial
Today was the seventh 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.
Today the trial heard testimony from the defendant himself, Kyle Rittenhouse—a high-stakes bet by the defense, and one that always has risk of snatching defeat from the jaws of victory.
This is a rare trial in which the defendant is relatively pristine, however, and where the little possibly negative evidence available has already been ruled inadmissible by the judge which somewhat moderates the risk. In addition, there were some important points of evidence that I know it was beneficial for the defense to have made clearer and more concrete to the jury.
Moderation is not elimination of risk, however, and any time you submit your client to several hours of cross at the hands of an experienced, and arguably unprincipled, prosecutor, you can be sure that the client will take some solid hits.
All of that happened in today’s direct examination by the Defense Counsel Mark Richards, and cross-examination by ADA Binger.
Defense Submits Motion for Mistrial with Prejudice
I’ll note up front that the biggest drama of the day came in the first part of cross-examination of Kyle by ADA Binger, who skated perilously close to have the defense awarded a clean victory—an order by the judge to declare a mistrial, and with prejudice. And he may win that “prize” yet, as the defense has, in fact, submitted a motion for a mistrial with prejudice:
The “with prejudice” is important, because it means Kyle would not be subject to a second trial on these charges. Getting that bonus feature is very rare, however, and if a mere mistrial without prejudice were declared ADA Binger would simply pull Kyle into a second prosecution. .
I won’t spend time here on the overstepping that got Binger in hot water, because I wrote about it at length in a mid-day post you can find here:
Immediately after the court returned from the recess that followed that tumult, however, the parties met outside the presence of the jury to discuss matters. The first thing that happened then was the defense submission of the motion for a mistrial with prejudice, which I’ve already discussed above.
Binger Attempts to Talk Self Out of 5th Amendment Blunder
One of the things that got ADA Binger in hot water with Judge Schroeder this morning was his referring several times on cross-examination of Kyle that the 17-year-old had not previously sought to explain the events of that night—improperly referencing in front of the jury Kyle’s exercise of his 5th Amendment rights.
Now, ADA Binger attempted to talk away his having commented on the defendant’s exercise of his right to silence in front of the jury. Binger did his usual blah, blah, blah word sound thing, where he says a great deal, much of it repetitive, most of which is either pointless, or apparently intended to deceive.
For example, there are circumstances in which a court may allow a defendant’s right to silence to be pierced, if that defendant takes the witness stand and had previously made public statements on issues relevant to his trial. In that case the prosecution on cross-examination could ask about what was said in those interviews, as well as what was not said—which would otherwise have been protected silence.
Importantly, interviews in which the defendant does not speak to issues relevant to the trial would not open the door to for such questioning under cross-examination by the prosecution.
Here Binger told the judge that Kyle had done a great many interviews between the events in question and the trial itself, and Binger believed that this opened the door to the aggressive questioning he sought against Kyle.
On the critical question of whether the interviews were of the sort that would allow for such questioning, however, meaning speaking to the issues in the trial, which the judge specifically asked about, Binger began to get evasive and ambiguous.
This behavior suggests to me that Binger is acting in bad faith. In fact, if he actually had the content he needed to allow for more aggressive cross-examination of Kyle, he would simply have presented that evidence to the judge outside the hearing of the jury, and sought the judge’s approval to do so.
The fact that Binger did not follow this normal process, but rather just tried to bull it through in front of the jury, suggests to me that he does not have what he needs to justify his sketchy questioning.
Here’s that discussion in court, outside the presence of the jury:
Binger Attempts to Talk Way Out of CVS Video Blunder
Another step this morning by ADA Binder that angered Judge Schroeder tremendously was Binger’s apparent intent to bring up the infamous CVS video in front of the jury.
The CVS video involves Kyle sitting in a car with someone while they watch an apparent shoplifting or robbery take place at a CVS across the street. Kyle says that he wished had his AR, he’d sound rounds in the criminal’s direction. He did not have his gun with him, he obviously fired no rounds, he did not engage the criminal in any way—it was the chatter of a 17-year-old boy. All Kyle actually did was call 911 to report the event to police.
The prosecution had sought in pre-trial hearings to have this CVS video admitted as evidence at trial. The defense objected, it was argued out at length in court, and Judge Schroeder announced he was not going to admit it, but would leave the door open to further consideration as the trial developed.
When Binger appeared moments away from simply discarding the judge’s order excluding mention of the CVS video from evidence, there was another explosion in court.
Now Binger attempted to explain this away, with his usual blah, blah, blah, with a bunch of whining tossed on top. Ultimately the judge decided, again, that the CVS video would not be admissible at evidence.
Even more notable was, at the end of this discussion, the judge informed ADA Binger that despite the prosecutor’s protestation that he was about to raise the CVS video in front of the jury in the good faith belief that the judge had “left the door open” for him to do so, the judge himself did not believe the prosecutor had, in fact, acted in good faith (meaning, of course, that he believed the prosecutor had acted in bad faith).
Here’s the video of that discussion:
Binger Tries to Get “Free as F” T-shirt into Evidence
Not one to ever give up, however, Binger no tried to get the judge to admit into evidence a photo of Kyle wearing a T-shirt that read “Free as F***” on the front. This was the shirt Kyle was wearing when he took photos at a local bar with some people who would later be characterized as “boogaloo boys.”
Judge Schroeder had ruled pre-trial that pictures generally from that encounter would not be admissible as evidence, because it could have amounted to no more than character evidence.
Now Binger tried to bring into evidence specifically the T-shirt photo, arguing that it goes to Kyle’s state of mind, particular in the form of a depraved disregard for the two lives Kyle had taken (utter disregard being an important element for some of the criminal charges).
Binger also expressed outrage that Kyle had worn this T-shirt only hours after a court hearing, and while out on bail, although perhaps he was just trying to get Judge Schroeder spun up about the conduct.
During this discussion Judge Schroeder mentioned that certainly wearing the T-shirt was poor judgment, but that the T-shirt event was four months after the shooting event, that everyone engages in poor judgment from time to time, and in any case the defendant was not being tried for poor judgment. The T-shirt would not be allowed.
Binger took this opportunity to assure the judge that as far as the prosecution was concerned, Kyle very much was on trial for poor judgment, as it was of the state’s theory of the case that none of these shootings would have occurred but for Kyle’s poor judgment of going to Kenosha that night with an AR.
As if we hadn’t already noticed Binger was prosecuting Kyle for violating the prosecutor’s own sense of what qualifies as poor judgment.
Here’s that exchange:
The Risks of Having Kyle Testify
It’s almost invariably a bad idea to put one’s client on the witness stand in a criminal prosecution, mostly for three reasons.
First, most criminal defendants are, in fact guilty. In fact, they are guilty not only of whatever the current charge is, but of a lifetime of criminal activity, arrests, and convictions. It must be assumed that all of that bad history will come out on cross-examination, and that is obviously devastating to the defense.
Second, even innocent clients often have facets of their lives that can misrepresented to make the client look bad in some way. Have a confederate themes ice cooler from the 1980s on that shelf in your garage—well, in 2010 that makes you a racist. You can see how that would go.
Third, even if that’s not a problem, many clients are not quite as intelligent and controlled as their attorneys might like them to be, making them easy prey for prosecutors that will sneer and deride the defendant under cross-examination, twist every answer into as evil a statement as possible, and through their own questions attempt to infuse into the jury a negative sense of the defendant.
Also, defendants may be goaded into defensive outbursts or misstatements that can be presented to the jury as outright lies or even admissions. Naturally, once the client takes the stand their lawyer has entirely given up control of what happens during cross-examination by the state, so generally in the legal profession the risk is not worth the few benefits one might hope for—the juice is not worth the squeeze, as the expression goes.
In many respects, these risks are mitigated in the case of Rittenhouse.
Kyle doesn’t have a real criminal record, although it seems he was driving without a valid license for some time (and, yes, Binger was sure to bring that up). There’s also, of course, the purported unlawful gun possession charge, but that’s still only a charge, and Judge Schroeder would not allow Binger to comment on it much because it’s still not clear how the jury will be instructed on that charge.
What few incidents in his young life might have been used against him—like the “sister fight” video or the CVS video or the “boogaloo” encounter—had been ordered excluded by Judge Schroeder, and remained so ordered, as the judge confirmed this morning before Kyle began to testify.
That still leaves the third risk, however, that Kyle might be goaded by the much older and very experienced Prosecutor Binger into making a misstatement that could be characterized, and at the very least the unavoidable reality that Binger can phrase his own questions in a manner to cast Kyle in as negative a light as possible.
Kyle made few real misstatements, but the negatively cast questioning was an ever-present factor throughout the very long cross-examination.
First, however, we start with the direct questioning of Kyle by his defense attorney, Mark Richards.
Direct Examination of Kyle Rittenhouse
The direct questioning of Kyle was done by defense counsel Mark Richards, and the announcement certainly sent shockwaves through the community watching this trial.
As one would hope, everything in Kyle’s direct testimony was thoroughly consistent with his core legal defense of self-defense, from the very first minutes when Richards asked “Would you have shot Rosenbaum if he hadn’t chased you and fought for your firearm,” and Kyle answered, “No.”
The defense also sought to fill in some holes and buttress some weak spots and negative suggestions that Binder had made earlier in the trial.
Richards had Kyle describe his many associations with Kenosha, including working in the city, his father living there, and much of his extended family living there, as well.
Richards buttressed Kyle’s civic-mindedness, having him testify about being in his local police department’s Police Explorer program and in the fire department’s Cadet program.
Kyle talked about his cleaning graffiti in Kenosha, as documented by the now-famous Nathan DeBruin photo, as well as recounting how he had personally met and talked with Sal and Sam Khindri, the owners of Car Source, receiving a ride from Sal and exchanging phone numbers with Sam.
As other defense witnesses had testified, he described the owners as being happy to see the volunteers present to protect their riot- and arson-torn businesses, even offering to pay them for their efforts (this payment never actually being made, however).
Kyle testified about encounters with Rosenbaum, who was swinging a chain, and how had threatened to kill Kyle not once, but twice. This included the infamous and direct, if I catch you alone I’ll kill you, threat, as well as a later more general threat to the group to cut their hearts out and kill them.
Kyle talked a bit about providing medical help to a number of people, wandering around doing that and putting out fires, getting stuck behind the moving police line so that he was separated from most of his group, going to Ultimate Gas to look for Ryan Balch, from whom he’d become separated, and receiving a phone call from Dominick Black to rush to the 63rd St. Car Source location to put out fires reported there.
It was when Kyle reached the 63rd Street Car Source with the fire extinguisher that he would be ambushed and murderously pursued by Rosenbaum, and ultimately shot and killed Rosenbaum in that Car Source parking lot.
It was when Kyle sought to testify to the details of this terrifying encounter that he became emotionally distraught, sobbing on the witness sound to the point of being unable to speak and continue. Judge Schroeder at that point ordered a short break.
Here’s the video of that first part of the direct questioning of Kyle by Richards:
When the court returned to session, the direct by Richards continued with the recovered Kyle:
Kyle described how he arrived at the corner of the Car Source Lot to come upon Joshua Ziminski, who he did not know at the time. He saw Ziminski holding a gun in his hand. Ziminski took a step towards Kyle, and Kyle dropped his fire extinguisher and stepped back in response. It was then that Rosenbaum came out from hiding in the nearby cars and, as Kyle put it, “ambushed me.
Kyle began to run, hearing Ziminski scream behind him to Rosenbaum, “Get him, and kill him.” Kyle also heard a shot from Ziminski’s position behind him.
As he ran, Kyle momentarily turned and pointed his gun at the pursuing Rosenbaum in an effort to deter his chase, but Rosenbaum would not stop. Kyle ran a short distance more until getting entangled in a group of cars and seeing the large and violent crowd ahead.
At that point, Kyle turned back to the onrushing Rosenbaum again, who lunged at and got a hand on the muzzle of Kyle’s gun, and Kyle fired four times in 0.76 seconds “until he was no longer a threat.”
The next compelling testimony from Kyle on direct was his recounting getting attacked in the street as he ran for the police line to turn himself in.
He gets struck in the neck by Anthony Huber’s skateboard, being swung like a bat, and a moment later is struck in the back of ahead with a chunk of concrete held like an impact weapon. He goes faint, stumbles, and falls to the street.
There he is face-stomped by “jump kick man,” who he fires at twice, missing, and “jump kick man” prudently flees, never to be seen again.
Then Huber strikes twice more with the skateboard, this time in the head, and grabs the muzzle of his rifle. Kyle can feel the rifle sling slipping from his body, and fearing the loss of his rifle fires a single fatal round into Huber’s chest.
Next Grosskreutz rushes up to Kyle with a pistol in his hand, braking hard with raised hands when Kyle notices him, then rushing in again and pointing the gun at Kyle’s head. It’s at that point that Kyle fires a single round into Grosskreutz’ bicep.
Kyle also pointed his gun at some others rushing in at him but doesn’t shoot when they prudently decide to reconsider their attacks, and instead flee.
At that point, Kyle ran to the police line, where his attempted surrender was rebuffed, returned briefly to the Car Source lot on 53rd, and then went home, where he promptly turned himself in to his local Antioch police department.
Here’s that second and final part of the direct questioning of Kyle by Richards:
Cross-Examination of Kyle by ADA Thomas Binger
And that brings us to the cross-examination of Kyle by ADA Binger, which totaled over three hours in duration. It was during this start of cross-examination that Binger so thoroughly stepped over the line, as we documented in our mid-day post, linked up above, so I won’t repeat that all here.
I will note, in overview, that the more than hours of cross-examination yielded essentially nothing relevant to any element of Kyle’s core legal defense of self-defense, and certainly no evidence that could to any degree of legal certainty be expected to disprove any one of those elements of self-defense beyond a reasonable doubt–which is, of course, precisely the burden the prosecution must carry to achieve a conviction, at least on any of the felony charges in this case.
Instead, we go the usual pounding of the table we’ve come to expect of a ADA Binger who has neither the facts nor the law to pound in his favor.
It’s impossible to go through this very lengthy cross in anything like a timely manner on paper, so I’ll just hit the highlights and include the videos of the cross below.
First, every facet of the cross-examination was dripping in contempt. The tone of the questioning was consistently snide, ridiculing, insulting, incredulous, and intended to provoke an angry outburst from Kyle—which outburst would, of course, have been horribly destructive to the defense.
Binger was big on constantly accusing Kyle of wanting to kill—not merely defend himself with deadly force if necessary and lawful, but simply to kill. You wanted to kill them! I wanted to stop them. By killing them! There was a great deal of that kind of thing.
Binger also spent a lot of time on the AR-15, and the purported illegality of Kyle’s possession of that rifle. Of course, Binger is sure that Wisconsin law supports his position, at least in terms of legislative intent. He is, in my professional opinion, wrong on that point, but it remains Count 6 in this trial, so he may as well hit it.
Kyle pushed back pretty effectively here. Kyle gave Black the money to buy the rifle, but it was never to be Kyle’s property until Kyle turned 18 and could lawfully take ownership. In the meantime, Kyle’s understanding of WI law is that it was lawful for him to open carry—which happens to be my understanding as well.
Binger even asked why Kyle hadn’t chosen a more convenient handgun instead of the unwieldy rifle, and Kyle told him because that would be illegal. To this Binger expressed incredulity that anyone could believe the pistol could be illegal but the rifle legal, because that’s the kind of guy Binger is.
Binger even tried to suggest that Kyle had shot three people on August 25, 2020, because after all isn’t that what you young kids do in your first-person shooter-games? Shoot weapons like AR-15s at anybody who comes at you? Isn’t that the whole point?
Kyle was obliged to point out that video games are not real life.
Less pleasantly for the defense, Binger then introduced an image from Kyle’s old TikTok account, where his username is “4doorsmorewhores,” his avatar is a picture of him holding his AR, and the comment or sub-title reads Bruh, I’m just tryna be famous.” Binger naturally used this to suggest that Kyle shot three people in Kenosha in order to become famous—and apparently, it had worked.
Binger also spent much time minimizing Kyle’s civic activities, like his police department Explorer and fire department Cadet efforts, as well as minimizing his association with Kenosha. Neither of these lines of attack went anywhere, as Kyle’s responses were reasonable and sound.
It was here that Binger attempted to bring in the CVS video footage, which got him in the hot water described in the mid-day post.
Binger touched on the curfew violation, as well-the defense objected, as Count 7, the curfew count, had been dismissed this morning. Judge Schroeder allowed it, however, and Kyle simply noted that hundreds if not thousands of people were around the city, and it reasonably appeared to him that the police were not enforcing the curfew.
Binger then decided to start quizzing Kyle on the terminal ballistic characteristics of full metal jacket (FMJ) versus hollow-point ammunition, another line of questioning that got him into hot water with Judge Schroeder, as discussed in the mid-day post.
Here’s that first portion of cross-examination of Kyle by ADA Binger:
At this point, the court recessed for lunch. Immediately after lunch, and prior to the jury returning to the courtroom, is when the court had the discussion about the motion for a mistrial with prejudice, Binger’s explanations of the 5th Amendment misconduct, the CVS video misconduct, and his failed request to admit the “Free as F” T-shirt photo, all of which we discussed above.
When Binger’s cross-examination of Kyle continued, Binger began by suggesting that perhaps Kyle hadn’t actually recognized the charging Rosenbaum as the man who had previously threatened to murder him, because Rosenbaum had removed his shirt and wrapped it around his head. It appears, however, that Kyle was able to see through this crafty disguise.
Binger also spent an inordinate amount of time ridiculing Kyle’s willingness to provide medical aid to injured people and put out fires. Isn’t the kind of thing we should normally just call 911 for, he asked, injuries and fires? Well, sure, said Kyle—normally. These nights were not normal Emergency services hadn’t been responding on previous nights as city was being looted and burned down, and there was no reason to believe that had ended.
At this point Binger became rather schizophrenic in his questioning, presenting Kyle with a lose-lose scenario for the defense. Either the environment was safe, and therefore Kyle was somehow reckless for having brought a rifle with him for protection, or the environment was sufficiently dangerous to warrant a rifle, and therefore Kyle was somehow reckless for running around providing medical care and putting out fires.
Heads Binger wins, tails, Kyle loses. This was all, of course, in support of the various recklessness charges.
At one point Binger actually asked him why, before he ran to the Car Source 63rd St. lot to put out the purported fire there, where he was attacked by, and killed, Joseph Rosenbaum, if Kyle felt it was safe enough to do that by himself, with no partner to protect him, why hadn’t Kyle simply taken off his rifle at the Ultimate gas station and left it there—on the ground, with strangers. I kid you not.
This line of questioning went on endlessly.
Then we hit the “My Cousin Vinny” point in the cross. For those of you who are sadly unfamiliar with the best law-themed movie ever produced, two young men find themselves mistaken for murderers. When told by police that they are suspected of having killed someone, one of the men bursts out, in question form, “I killed someone?” This would later be read in court as if it were a statement of confession, rather than an outburst of bewilderment.
In this real-life trial, it turns out that someone had accused Kyle to his face, on the street, of having pointed a gun at him. Knowing that he’d never done that, Kyle responded sarcastically, “Yeah, I pointed a gun at you,” and immediately turned around and walked away from a situation that could have been escalated.
Now, in court, Binder presented this sarcastic remark as if it were a statement of fact, and characterized Kyle’s denial of the statement being made seriously as a lie.
Here’s this portion of Binger’s cross-examination of Kyle, to this point, where the court took a break:
About this point the State sought to introduce is “unicorn” evidence of the magically appearing drone footage that the evidence fairy had left on Binger’s doorstep just this past Friday. Except now the State wanted to show the video to the jury using the “pinch-to-zoom” capabilities of an iPad.
The defense objected, indicating that they had reason to believe that the video processing software of the iPad might place artifacts within the image that could be misleading.
That led to this exchange, out of the hearing of the jury.
When the court came back into session, Binger did show the video footage to Kyle, and to the jury, but without the “pinch-to-zoom” approach. Where Binger insisted three successive times as he rolled through the video that it showed Kyle pointing his rifle at Joshua Ziminski just before the Rosenbaum chase, Kyle insisted he saw nothing of the sort. All Kyle saw was his shoulder perhaps going up, but the muzzle of his rifle pointing.
I looked closely at this playing of the video myself and didn’t even see that much. I certainly did not see the rifle muzzle come up on Ziminski. My opinion of yesterday remains unchanged—as far as I’m concerned the “unicorn” drone video shows nothing at all useful, except yet another view of Rosenbaum chasing down a fleeing Rittenhouse.
Binger then ridiculed the notion that just because Rosenbaum was grabbing for Kyle’s rifle, that didn’t mean he meant any harm. Kyle had simply assumed that the unarmed Rosenbaum meant him harm.
Kyle responded by simply pointing out that Rosenbaum had continued to run him down in the face of a raised gun, after having threatened to kill Kyle if he got him alone—and now he’d gotten Kyle alone.
Then Binger got on a really weird riff, where he attempted to equate other people unjustifiably attacking Kyle with deadly force with Kyle responding to those threats with deadly force—as if who was the initial aggressor was a non-factor.
Sure Grosskreutz pointed a gun at Kyle, but didn’t Kyle also point a gun at Grosskreutz? In fact, Grosskreutz had only a little pistol, and Kyle had a big rifle. Doesn’t that mean Kyle was being more death-threatening than Grosskreutz.
I know you think I made that up, but I didn’t.
On the topic of the angry mob chasing Kyle down and screaming to kill him, isn’t that just reasonable and understandable? After all, you just killed Rosenbaum.
Binger also mocked Kyle’s claims of being interested in helping the injured, when he didn’t bother to help Rosenbaum, or Huber, or Grosskreutz—as if even professional EMT would have stayed on scene to provide care if there were an angry, violent, death-threatening mob running down on them.
At this point, Binger circled back to his original line of attack—you just wanted to kill those people didn’t you. No, just stop them. Kill them. Stop them. You shot them, deadly force, you wanted to kill them. I wanted them to not kill me. You just wanted to kill them, isn’t that true.
If that sounds tiresome when I say it you can only imagine what it was like to listen to Binger say it apparently endlessly.
Finally, Binger sought to characterize Kyle as having “fled the scene of the crime,” even though he promptly turned himself into law enforcement in Antioch IL, and had them contact Kenosha PD to send detectives out. At no time did Antioch restrain Kyle’s freedom of movement in any way, he simply chose to wait in the unlocked lobby for the Kenosha detectives.
With that Binger ended his cross-examination of Kyle, the defense had no re-direct, and Kyle was out of the witness stand.
Here’s the final portion of Binger’s cross-examination of Kyle:
With the day having been long, and the hour late, Judge Schroeder at that point decided to recess the court for the day.
At day’s end, the defense notified the court that they had three more witnesses—one is Dr. Black, their use-of-force expert, whose testimony is likely to be time-consuming. The remaining two witnesses are expected to be quick.
The judge would also inform the jury that it was his expectation that the trial would wrap up no later than next Tuesday, and perhaps as soon as Monday.
And that’s where things stand at the close of court business today.
Join us again tomorrow morning for our LIVE coverage of the trial of Kyle Rittenhouse, at Legal Insurrection.
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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