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Rittenhouse Trial Day 7: Kyle Survives Abusive Cross-Examination

Rittenhouse Trial Day 7: Kyle Survives Abusive Cross-Examination

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:

Rittenhouse Trial Midday Update: Kyle Takes the Stand; Prosecutor Incurs Wrath of Judge

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.

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

SEND A MESSAGE AGAINST PROSECUTORY MISCONDUCT
— DISMISS WITH PREJUDICE

Every attorney I have talked to (and I know many) have said the conduct of this prosecutor is far beyond the line. The ONLY rational explanation is that he is blatantly seeking a mistrial.

Instead, the judge should dismiss with prejudice AND refer Binger to the State Bar for a disciplinary hearing.

The Court simply cannot tolerate such conduct. Zero tolerance is the ONLY standard that matters in such a grievous constitutional violation. Binger is a seasoned prosecutor – he knows what he is doing. He knows he crossed the line.

Any other action would send a message to slimy lawyers everywhere that they can manipulate the judicial process.

DISMISS WITH PREJUDICE. The facts of the case already show that the State cannot come close to achieving their burden to show, beyond a reasonable doubt, that Kyle R. was not acting in self-defense.

Justice WILL BE SERVED AND A MESSAGE SENT TO PROSECUTORS WHO THINK THEY MIGHT DEPLOY SUCH TACTICS.

    buck61 in reply to Ben Kent. | November 10, 2021 at 11:38 pm

    Up to this point Judge Schroder is all bark and no bite. We all saw how afraid to act the judge in the Chauvin case was, Schroder has been even greater cause to act and he hasn’t gone beyond giving Binger a stern talking to, multiple times. He is more atune to calling a time out for a cooling off period. We don’t know if he will do anything post trial and even if does it may never be made public. If anything does happen very few people will ever know about it.
    A mistrial with prejudice is certainly a reasonable outcome, does Schroder have the guts to do it?

      fogflyer in reply to buck61. | November 11, 2021 at 12:40 am

      I do give the judge credit for chastising Binger in front of the jury several times though. That had to sting! I’m sure it had to have an effect on the jury too.

        Ben Kent in reply to fogflyer. | November 11, 2021 at 9:27 am

        Doesn’t it seem Binger was provoking the judge to chastise him in front of the jury ? Is Binger trying to create grounds for appeal ?

        I don’t trust Binger. It seems to have special animus against this Defendant. Willing to gamble his law license and career to put Kyle away for LIFE.

        It begs the question – could Binger be a member of Antifa ?

        DaveGinOly in reply to fogflyer. | November 12, 2021 at 10:55 am

        Acting up in front of the jury makes an impression on the jury (as it’s intended to do). A judge’s response should likewise be made in front of the jury, as a counter to the impression made by the offending attorney. Sidebar and other conversations in the absence of the jury should be reserved for discussions that are properly initiated before an attorney desires to make a leap into questionable territory.

      akolasinski in reply to buck61. | November 11, 2021 at 11:41 am

      The judge might yet do something to sanction Binger. He seems to take his time in making tough decisions. We just have to wait and see.

    Olinser in reply to Ben Kent. | November 10, 2021 at 11:44 pm

    I honestly feel like Binger is TRYING to get it dismissed with prejudice.

    Then he can go on all the talk shows and preen about how Rittenhouse was OBVIOUSLY a hideous racist murderer and that he’d made a great case but the stupid biased right-wing judge dismissed it.

      I agree. The prosecutor is building a nice little backup plan (for himself) in case the jury does the right thing and acquits Rittenhouse. “Hero of the Glorious Communist Revolution (TM)” is a nice title Binger can bask in for the rest of his life.

        I have never seen a lawyer interrupt a Judge like this DA. And, then he told the Judge not to interrupt him while he was making a statement for the record. If the cameras had not been in the courtroom, I think the Judge might have exercised a little justifiable homicide on the DA.

        I suspect Binger wants to become the next AOC.

        You may be correct. At this point, Binger is seeking to avoid “not guilty” verdicts. He may not care to have a re-trial, as he knows he doesn’t have the evidence or testimony legally necessary for convictions, and his hand has been tipped to the defense, which can only improve their performance the second time around. A second trial could possibly be worse for him. He just wants out now, and doesn’t care about justice being served.

      Roguewave1 in reply to Olinser. | November 11, 2021 at 11:37 am

      This is what happens when the state’s prosecutor has all the skills of My Cousin Vinny and the ethics of Nurse Ratched.

    sbozich in reply to Ben Kent. | November 11, 2021 at 1:01 am

    Lamentably, what SHOULD happen, and what I expect WILL happen, are two very different things.

    This to me is the ultimate test of whether Judge Schroder has the moral character to make that rare but obvious call. I hope he is just as fearful of having to live the rest of his life famous for having shied away from making an obvious call as he is from the consequences of failing to heed the death threats he is almost certainly receiving. In other words, can innocent people find justice in his court?

    We are running out of reasons to have any faith at all in our court system.

      Also, Schroder has already voiced his concerns to the attorneys on the threats being made to the jurors. He should be very concerned about the likelihood of getting a fair verdict from a terrified jury that has been educated now about how poor the system can be in protecting them. For everyone’s sake and for the the sake of rendering justice in a slam-dunk case, he should grant the defense a dismissal with prejudice and end this now. Show some courage. We desperately need to know that there are courageous people somewhere we can rely on.

      “Facts are stubborn things” and after the passion of the current day dissipates, Schroder will be judged on whether he had the moral character to do the right thing. Morality isn’t about doing the right thing so long as it is convenient. You can’t be partly pregnant nor sometimes honest. Do the right thing. It sure would give us a huge boost just when we really need one.

    Elzorro in reply to Ben Kent. | November 11, 2021 at 7:20 am

    It should be dismissed. Binger has violated many constitutional defined rights in The Bill of Rights and the inalienable right of self defense noted in the Declaration of Independence. His actions are repugnant to the constitution and those of a clearly oversocialized, anti constitution, democrat.

    JPL17 in reply to Ben Kent. | November 11, 2021 at 8:39 am

    I agree Binger is intentionally trying to provoke a mistrial with prejudice. But I can’t help thinking it’s because US Attorney General Merrick Garland called Binger when he saw how badly the DA’s case was going, and told him to provoke a mistrial with prejudice so the U.S. Attorney’s Office will have an excuse to indict Rittenhouse on Federal charges. It may therefore be better for Rittenhouse if Judge Schroeder lets the state jury reach a verdict of acquittal, which would make it harder for the Feds to justify a Federal prosecution.

    Don’t get me wrong. I’d love to see Judge Schroeder prevent the DA from re-trying Rittenhouse after a mistrial due to ADA Binger’s egregious, intentional prosecutorial misconduct. I’m just cautioning, “Be careful what we wish for.”

      Do not attribute to conspiracy what can adequately be explained by ignorance and arrogance. Binger is posing. He knows happy Leftists will clip out his questions into videos for the next few decades. He will be on talk shows, describing how he attempted to stop a mass-murderer, only to be stopped in turn by a corrupt judge and a biased jury. He will undoubtedly write a book with a huge advance (which will never be ‘earned out’ in a million years) He doesn’t need to be given instructions from on high. They’re written on his ego.

        I think you may be underestimating the grave danger into which Binger places his legal career by committing gross and intentional prosecutorial misconduct — especially his commenting on Rittenhouse’s exercise of his 5th amendment right to remain silent. He could be referred for disciplinary action and disbarred or worse.

        Why would a prosecutor at the height of his career risk all that just so he can appear on talk shows that no one will watch and a write a book that no one will read? I don’t recall Mike Nifong becoming a Lefty celebrity after his disbarment and jail sentence.

I’m surprised there was no redirect, and so was Twitter defense attorney @beyondreasdoubt. We’ll see what happens.

    Midfiaudiophile in reply to KPOM1. | November 10, 2021 at 10:56 pm

    I think the most likely fodder for redirect would be the abbreviated timeline of the attack, greatly exaggerated by ADA Binger and his frame-by-frame analysis and 50% slowed down videos interrupted by long monologues by the prosecutor.

    I think that Dr. Black can probably point that out just as well as Kyle can and without as much emotion attached to the analysis.

      Not only did Binger pull his frame-by-frame stunt, but he purposefully jumped ahead to the moment Kyle fired the shot that disarmed Grosskruetz, excluding the moment between the false surrender and the shot.

      This guy is so slimy on so many levels, I can’t imagine the jury doesn’t see him for what he is.

    Redirect means the prosecution gets the opportunity to recross.
    Why give them that?

      Layman101 in reply to Miles Fortis. | November 11, 2021 at 12:02 am

      Yes that is my understanding too, which is why I would not have done a a redirect either. Baby Binger showed his elitism loud and proud to what I hope is an everyman group of jurists, and will pay for if it goes to deliberations

        DaveGinOly in reply to Layman101. | November 12, 2021 at 11:10 am

        Much has been made of the possibility (to the point of likelihood) of juror bias against KR going into this. But jurors can also get peeved with attorneys who behave like callous slimeballs, and judge them unworthy of a “win”, thereby influencing them in favor of one side over the other; fair play over underhanded tactics. Americans, as a group, have a strong sense of fair play, despite the lunatics who get the fawning attention of the media and politicians. The jurors here have certainly been influenced against KR by their exposure to the media over a period of many months, but Binger’s behavior in the court room may be making them aware of their own conditioning, thus undoing it.

    Chewbacca in reply to KPOM1. | November 11, 2021 at 12:07 am

    I suspect the redirect was not done because the cross was pretty much unproductive for Binger, in which he abused Kyle for several hours but still got nothing. I think it was to give Kyle a break from the incredibly stressful time on the stand because really only made Binger look like an ass. His complete misunderstanding of what hollow points do and his ignorance of the fact that the [cue sinister music] FULL METAL JACKET BULLETS [gasp] actually cause less injury and are less likely to kill is hilarious.

      Think38 in reply to Chewbacca. | November 11, 2021 at 2:08 am

      Binger is setting up a closing argument that Rittenhouse was reckless because he used FMJ. The FMJ could over penetrant and therefore injure others as a result. Never mind that missed shots can do that too.

        If KR had used hollow point ammo, Binger would have claimed it was because he purposely wanted to kill someone because it’s used used by hunters.

        A classic ‘damned if you do, damned if you don’t’ smear tactic.

        VetHusbandFather in reply to Think38. | November 11, 2021 at 7:56 am

        Can he bring that in though? Wouldn’t he need to bring in an expert to give testimony on the ballistics. He was clearly trying to get KR to provide that expert testimony, even though KR admitted he had little knowledge in the matter. Then the Judge scolded Binger for providing the testimony himself. So I don’t think he actually has any evidence/testimony to establish that the use of FMJ was reckless. At best he could say it was reckless of KR to not know how to select a round appropriate for the circumstances.

          VetHusbandFather in reply to VetHusbandFather. | November 11, 2021 at 8:02 am

          I would also comment that I would hope the jury would recognize that “not being a ballistics expert” and using a gun does not equate to gross recklessness when using a gun. My wife for example certainly know enough about my weapons to use them for self defense in our home if needed, even if she has very little knowledge of what types of rounds I have selected for home defense.

          Not being a mechanic doesn’t make someone a reckless driver.

          Many a successful computer programmer has very little idea how computers actually work. You don’t need to know that to program, even in assembler, let alone in a higher-level language.

          A single question on re-direct could have been useful:
          “Why did you use FMJ bullets?”
          To which Kyle could have replied:
          “Because they’re less expensive than other kinds.” (This is the reason most shooters use FMJ, because their use for any other purpose than training would dictate employment of a more effective, and more expensive, bullet type.)

          VetHusbandFather in reply to VetHusbandFather. | November 12, 2021 at 12:15 pm

          @milhouse totally agree with my your statement. That why I think trying to classify KR’s lack of knowledge as gross recklessness would be a dangerous line of reasoning. I think uncivil law (though it may have been a different commentator) tried to explain the argument in live stream. If you used a howitzer for self defense and took out everyone in a 20m radius, then that’s probably gross negligence. But you’d have to have a pretty extreme example like that to claim reckless endangerment when self defense was justified.

      diver64 in reply to Chewbacca. | November 11, 2021 at 2:54 am

      I found the FMJ vs HP ammunition thing by Binger remarkably ridiculous. Those of us that do know the difference thought it bizarre due to their characteristics and disntance involved. Those on the jury that don’t know the difference can just have it explained to them or look it up for themselves.

    sbozich in reply to KPOM1. | November 11, 2021 at 1:03 am

    I imagine that everything that Richards would have asked Kyle on redirect will be asked of Dr. Black tomorrow.

    Therefore, the only reason to redirect is to give Binger an opportunity to re-cross and piss off the judge even more.

      Observer in reply to sbozich. | November 11, 2021 at 2:56 am

      Yes, the defense should have a good time on the direct of the use-of-force expert. They can use him to shred many of the idiotic arguments Binger was making during his cross of Kyle, including the nonsense Binger was spouting about the difference between hollow-point and FMJ bullets (which was so stupid and erroneous it even prompted the judge to interrupt the cross in order to correct Binger’s false statements).

    CharlieMack in reply to KPOM1. | November 11, 2021 at 1:54 am

    The kid did well. Ending it and get him off the stand unscathed.

    akolasinski in reply to KPOM1. | November 11, 2021 at 11:43 am

    At first I was dismayed when there was no re-direct, but in retrospect, I think it was a smart move. Remember, if Richards had done re-direct, Binger would get another shot at cross. I don’t think Kyle, or anyone for that matter, could have held up on another round of such abusing questioning by Binger. Experts will be able to refute the crap Binger insinuated during cross.

I hope the jury sees the evil in this prosecution. There is no other word to describe it.

Smarmy pornstache fop and his fat sidekick. Who will hold them accountable? My guess is no one.

    Eggshell Skull in reply to Colonel Travis. | November 10, 2021 at 11:00 pm

    Redirect as in letting Binger have yet another shot at KR?
    The case was won, there was nothing to gain and everything to lose.
    Monumental stupidity

    The prosecution knows this trial is televised. He is using his misbehavior to publicize what was spoken of behind closed doors – to possibly hope the jurors somehow hear of this forbidden line of questioning. He is a sleezbag.

Willowed from an earlier thread (a term from my second favorite website, AoSHQ):

A retired attorney, and never criminal, asking, but is a judgment notwithstanding the verdict (JNOV) also a possibility here. Judge Schroeder lets this slam-dunk for the defense case nevertheless go to the jury, and the woke jury returns a Chauvinesque guilty on all counts verdict, is a JNOV a possibility if Judge Schroeder believes the jury verdict is not supported by the evidence?

I also love Ace of Spades appropriate name for Binger: Littlefinger!

What is the appropriate response from a judge to a prosecutor violating rights and ignoring court decisions? It hardly seems stern words are the correct response.

Also, you have some embed placeholders still in there (or perhaps my phone just didn’t load them correctly).

    ugottabekiddinme in reply to Dathurtz. | November 10, 2021 at 11:43 pm

    I have seen some cases where the court allows counsel to finish the trial but then assesses contempt sanctions for conduct during the trial. Yet because it’s outside the presence of the jury and happens after the trial is done and the jury gone home, it cannot affect that verdict that is already a done deal.

I have just a couple presentation notes. There are two missing video embeds. I’m sure this is just an oversight and they will be up soon.

“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 know there are words missing. I would really like to read the full words of this last sentence.

Again, thank you for the excellent reporting. Hell of a day.

“ 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.”

I wonder what the opinion would be if Kyle responded:

“You mean like if I got up of the stand, ran at full steam towards the court bailiff, and try to grab his handgun?”

    buck61 in reply to richjb. | November 10, 2021 at 11:42 pm

    I had a similar thought, that bailiff doesn’t carry that gun because he plans on using it today either.

    sbozich in reply to richjb. | November 11, 2021 at 1:22 am

    Or that once Kyle had fired the first shot into Rosenbaum’s pelvis, the threat was effectively over, and every shot thereafter was excessive, to include the kill shot.

    Expect to hear lots of testimony about the OODA loop, and the physiological and psychological effects of adrenaline, both during and after a deadly force incident.

    The video that had been circulating since late August, 2020 made this out to – apparently – be an open-and-shut self-defense case, but I held out on making the leap from 99% certain to 100% sure until the prosecution presented its case.

    Now I’m 110% positive.

Somebody get a rope.

“My Cousin Vinny” . . . the best law-themed movie ever producedYES! By a mile (or several miles).

Mr. Rittenhouse is still obviously traumatized by what these goose-stepping, sociopath, Leftist thugs did to him that night, trying to take his life on multiple occasions and forcing him to legitimately use lethal force in defense of his own life, and, he’s the one on trial? So outrageously immoral and legally unsupportable. You can’t watch Mr. Rittenhouse’s emotional breakdown and not be moved. It was like watching a military veteran relive some horrible moment from combat.

What a disgrace that our media, Dhimmi-crat politicians and prosecutors give moral cover to Leftist thugs and their violent predations against innocents, while vilifying and prosecuting innocents who defend themselves against said predations.

    Is there something you are incapable of attacking Muslims in a borderline genocidal way during you god damned idiot?

    Muslims from here to Riyadh would agree this is self defense why the hell do you have to attack them and blame them for the prosecution? We are not dealing with a Muslim conspiracy to attack Kyle Rittenhouse but DEMOCRAT attack on our liberties.

    Enough of your Muslim hate. You blame everything you don’t like on Muslims with the term “Dhimmicrats” stop it. If Democrats started using the term “Jewicans” that would be genocidally anti-Semitic, your using the term “Dhimmicrats” is the same thing.

    Did the Muslims who died in droves on the road to Berlin defeating the Nazis alongside orthodox catholic and Jewish Eastern Europeans or in America’s foreign wars because George W Bush wanted a crusade count as people at all to you?

      Evil Otto in reply to Danny. | November 11, 2021 at 6:26 am

      Sorry, I meant to downvote you as well.

      jhkrischel in reply to Danny. | November 11, 2021 at 7:27 am

      Muslims are victims of islam too. guyjones has empathy for all victims of islam.

      It’s the horrid, genocidal system of shariah law that is objected to, not those who suffer under it, or adjacent to it.

      tank killer in reply to Danny. | November 11, 2021 at 7:51 am

      That was quite an idiotic rant. Maybe you should just go into the bathroom, and scream at yourself in the mirror.

      dmacleo in reply to Danny. | November 11, 2021 at 9:05 am

      show me on the GFY doll where guyjones violated you

      guyjones in reply to Danny. | November 11, 2021 at 11:09 am

      Idiot — Muslims were aligned with the German National Socialists, in World War II.

      Nice try engaging in brazen and blatant historical revisionism, idiot! It won’t work.

      guyjones in reply to Danny. | November 11, 2021 at 11:14 am

      Your infantile theatrics amuse me. Dhimmi-crat, dhimmi-crat, dhimmi-crat. Sue me. 🙂

      Islam is a vile creed created by a man who raped children, beheaded entire tribes of innocents and who slaved and slew his way across the Middle East.

      Those who practice it can do good or evil in any particular instance just as a Nazi, or communist could. But the creed itself is a barbaric one which is wholly incompatible with civilization and it is not credit to you that you seek to defend it. Quite the opposite.

      I am not religious, but it is fair to say that no society can consider itself civilized which would imprison Jesus, or which would allow Mohammed to roam free — let alone worship him. And of the major religions, Islam alone is the one whose practitioners can be considered civilized only in inverse proportion to how closely they practice their faith and imitate the actions of its founder.

      guyjones in reply to Danny. | November 11, 2021 at 11:26 am

      Lastly, I’ll note how manifestly stupid you are, idiot:

      “Dhimmi” refers to non-Muslims who prostrate themselves before the ideology of “Submission” and who serve as collaborators with Muslim supremacists/terrorists in perpetuating Submission’s supremacist, totalitarian and belligerent behavior and aims. The word “dhimmi” doesn’t even refer to Muslims, idiot, but, non-Muslims.

      You’re so transparently stupid, you don’t even understand the meaning of the word that you’re criticizing. Truly, you are dumber than a box of rocks.

      Milhouse in reply to Danny. | November 11, 2021 at 2:56 pm

      Did the Muslims who died in droves on the road to Berlin defeating the Nazis alongside orthodox catholic and Jewish Eastern Europeans

      Asking honestly: Which Moslems would those be? As far as I know there were very few if any Moslems in the Allied armed forces. Certainly there were no large Moslem populations who opposed the Germans; on the contrary, European Moslems generally supported the Germans, as did the Moslem Brotherhood, and Moslems worldwide.

      or in America’s foreign wars because George W Bush wanted a crusade

      That’s an outright lie. On the contrary, GWB is responsible for the false portrayal of Islam as a “religion of peace”.

      DaveGinOly in reply to Danny. | November 12, 2021 at 11:24 am

      “Dhimmi-crats” isn’t not a slam on Muslims, It’s a reference to the Muslim concept of “dhimmitude”, which means the submission of non-Muslims to Muslims. In guy’s use of the “Dhimmi-crats” (which I tire of too, because he over-uses it), he’s referring to their slavish, unthinking, uncritical submission (as a group) to progressivism. (Put a hundred leftists in a room, and there’s 100% agreement on any subject – if for no other reason than those who think otherwise are afraid to speak up. Put five conservatives in a room, and there are at least seven opinions, and a brawl ensues.)

Thank you Andrew, My heart goes out to Kyle Rittenhouse.

Your commentaries and summaries are a wealth of information, I’m learning really valuable lessons and your wry sense of the absurd is a wonderful frame for this entire sordid affair.

I cannot thank you enough for your efforts. You are a jewel.

I know all sane people are thinking there is no way in hell KR is found guilty.

I’m really concerned. These are not sane times.

1. Chauvin verdict.
2. Jan 6 rioters held indefinitely with numerous constitutional violations.

Chauvin brought a top-notch legal team to a lynching. It’s akin to bringing a knife to a gun fight.

Have to agree with the earlier comment- mistrial with prejudice and Binger faces disciplinary actions else we will forever be in a war where one side gets to fight as dirty as they want and the other follows all the rules. Even in winning the process is the punishment. No. This needs to stop.

    gonzotx in reply to Andy. | November 11, 2021 at 12:23 am

    I’m scare for Kyle also amd if he’s convicted NONE of us are safe

    sbozich in reply to Andy. | November 11, 2021 at 1:25 am

    “It’s akin to bringing a knife to a gun fight.”

    Or a skateboard.

    tank killer in reply to Andy. | November 11, 2021 at 8:02 am

    The problem with “mistrial with prejudice” is that it does not bring a conclusion to this ridiculous miscarriage of ‘justice. Without a “Not Guilty” verdict by the jury, the leftist talking heads will continue to make up ridiculous tales about how the judge was biased, bought off, or whatever. They will go on misrepresenting Kyle as a white supremacist or something, and Schroeder is part of the “right wing conspiracy”, despite the fact that Schroeder was appointed by a Democrat.

    It is unfortunately true that even with a not guilty verdict, many of the talking heads will still call it all a sham, but it will be more obvious they are just emotionally deranged, and spewing nonsense.

    A jury conclusion that Kyle acted appropriately will also provide Kyle with solid justification for lawsuits against all the people and organizations that have slandered him since the incident.

      Smooth23 in reply to tank killer. | November 11, 2021 at 9:21 am

      I don’t care about the leftists and their violence in this matter. I’m only concerned with Kyle’s freedom and innocence. Frankly, and I hope Kyle has learned his lesson, let Kenosha burn. Its what they deserve for voting in leftist crooks.

        tank killer in reply to Smooth23. | November 11, 2021 at 11:40 am

        You are an emotional idiot, aren’t you? Don’t you understand what Kyle stands for at all? He is weathering this storm because he stands for what is right. He stands in defense of the innocent people in Kenosha. You would violate everything he believes in to try to make him safe. That is not what he would want.
        You’re also a moron for spouting garbage like “it’s what they deserve”, as if the whole city is a single entity. Obviously it is many thousands of very different people, who deserve very different fates. You would throw the innocents into the fire, to punish the evildoers? Yup. you are an idiot.
        We are in the midst of and ideological war, across the Nation and across the World. You should just cower in a hole, hoping it will pass you by. Do not try to undermine the valiant efforts, and yes, sacrifices, of our front line troops.
        Kyle is a hero, and has shown before that he is willing to make sacrifices to benefit others. He will tough it out, and will hopefully be found Not Guilty by the jury. If not, that will cause the battle to be taken to the next level.

          DaveGinOly in reply to tank killer. | November 12, 2021 at 11:34 am

          Kyle is young and idealistic. With maturity, he will look back with pride at his attempt to do the right things, but will understand that he was never going to be appreciated by the community for what he was doing that night. In the final analysis, “let it burn” is the proper attitude, because his contribution to society that night, although noble, was futile.
          (Yeah, I’m becoming cynical.)

      Brave Sir Robbin in reply to tank killer. | November 11, 2021 at 12:46 pm

      “They will go on misrepresenting Kyle as a white supremacist or something, and Schroeder is part of the “right wing conspiracy”, despite the fact that Schroeder was appointed by a Democrat”

      The Democrats and liberals will do this no matter what the outcome. Even a complete acquittal from the jury.

    Mercyneal in reply to Andy. | November 11, 2021 at 8:10 am

    You’re comparing apples to oranges

Thank god The judge knows something about guns, because these attorneys sure as hell don’t! One would think they might have studied up a little bit before the case.

    diver64 in reply to fogflyer. | November 11, 2021 at 3:00 am

    I think they do or have had firearms explained to them but their job isn’t to be reasonable, it’s to grasp at every straw they can at this point.

I commented on the live feed earlier today, but doing so again tonight. About that drone footage where they froze the image and tried to claim it showed Rittenhouse pointing his rifle at Rosenbaum. Rittenhouse is right-handed and handled his rifle as a right-handed person would in every video and image that we see. Yet in that freeze-frame, they would have us believe he is handling the rifle as a left-hander would. I do not know what type of sling he had, but my own sling doesn’t allow me to switch to my weak side shoulder and shoot left-handed.

What are the terminal ballistic characteristics of full metal jacket versus hollow-point ammunition?

reminds me of . . .

https://www.youtube.com/watch?v=uio1J2PKzLI

    sbozich in reply to JustSayN2O. | November 11, 2021 at 1:37 am

    It depends on the round.

    A FMJ pistol round is more likely to over-penetrate a human body than its hollow-point counterpart, but the 5.56/.223 round is very fast and very light. These rounds have a tendency to “tumble” once they hit a body (or, for that matter, just about anything), and thus behave similar to a hollow-point in that they don’t exit the body.
    Kyle shot eight rounds that night. four into Rosenbaum, two at Jump Kick Man (which missed), one at Skateboard Man, and one at the One-Armed Man.
    The two that missed are irrelevant, and the one that hit the One-Armed Man went through the bicep, so there wasn’t a lot of room to tumble. The one that went into Skateboard Man didn’t exit (it travelled from his left mid-section, through his heart, and into his right shoulder, leaving a bruise on the skin).
    What is believed to be the first round into Rosenbaum entered his pelvis, and went through to his buttock. What is believed to be the second round, went through Rosenbaum’s hand (again, not a lot to work with), and either lodged into his thigh, or ricocheted off the ground and into his thigh. The third shot supposedly grazed his head, and the fourth shot went into his back as he hit the ground. None of the rounds that entered the torso of any of the assailants that night produced exit wounds, despite the fact that they were “high velocity rifle rounds” fired from a very close range.

    Hopefully there is an actual expert to testify to this tomorrow.

So, just from a personal perspective, it was a treat to see a defendant take the stand. First time I’ve seen it in a major case I’ve followed.

Can a lawyer briefly explain the different rules that seem to apply for the prosecution questioning the defendant? It sure seems like there was a lot of argumentative questioning, badgering and areas of questioning that would never be allowed with a normal witness.

I think Kyle did pretty damn well for an 18 year old kid. I was wishing I could feed him answers so many times to shut that arrogant prick Binger up, especially involving the ammo misinformation and the constant allegation of carrying a gun to kill people, but overall I am proud of him for staying composed and enduring the harassment.

    sbozich in reply to fogflyer. | November 11, 2021 at 1:40 am

    Not a lawyer, but there were a lot of questions that wouldn’t be allowed (or, at least, would have been objected to) for any witness.

    The defense has been very reluctant to raise objections, and while the strategy has been wise in some cases, there are others where it is completely baffling.

    aslannn in reply to fogflyer. | November 11, 2021 at 9:57 am

    I’m sure all of us, in the comfort of our homes, were fantasizing about being in Kyle’s place, and all of the wonderful responses we would give, which would shut the mouth of the prosecutor and leave him in dumfounded silence. Obviously, it’s different when one is actually on the stand. But beyond that, one must also remember that KR’s goal was not to “beat” the prosecutor. His goal, when it came to cross-examination, was primarily two-fold. First, to avoid damage, and second, to avoid giving the jury any negative impression. For the most part, I think he was successful.

Tucker Carlson: “A rapist called Joseph Rosenbaum was released from a mental hospital and then went directly to join the mob that was burning downtown Kenosha. … Rosenbaum died as he had lived, trying to touch an unwilling minor.”

Directed verdict? This case begs for one.

Knifong is proud.

If Kyle gets acquitted, I hope he immediately goes and has a sit-down with the Covington kid and his lawyers. Kyle needs to sue Facebook, GoFundMe and all the news agencies that painted him as a white-supremacist mass shooter.

    Milhouse in reply to fogflyer. | November 11, 2021 at 3:09 pm

    I doubt he’d have a case against any of them. I don’t recall any of them making actual false statements of fact rather than conclusions based on the known facts. Merely calling him a racist is an opinion and can’t be libel. Nor can calling him a murderer based entirely on facts that are known to their audience. Conclusions can only be libel if they appear to be based on secret knowledge that the speaker supposedly has; if the speaker reveals the basis for his opinions then he can’t be liable for them.

Excuse my ignorance. Not having the legal caliber of Ringer puts me at a disadvantage. Am I correct in understanding that the gist of his questioning of Kyle is that claiming self defense will not wash because nobody shot at Kyle? If he is trying to convince the jury of some sort of equivalency requirement in order for Kyle to defend himself? I mean I suppose that would make sense if Kyle was dueling. But there is the difficulty of Kyle being able to obtain a skateboard on such short notice.

As to the sweet little ole cut as a button pistol vs the big very scary deadlier than deadly make you dead AR15 I can easily seeing that being brought up on any legal proceedings from the RUST shooting. “Nobody had an AR15 so there was never any threat… can we go home now?”

    TheOldZombie in reply to JRaeL. | November 11, 2021 at 1:34 am

    Yes. That seemed like where Binger was trying to push it. That because no one shot at Kyle he could shoot at anyone in return.

    An absolutely bonkers standard that is not applied in any cases because to do so would essentially mean using deadly force to protect yourself is illegal unless deadly force is used against you first.

    That standard would put a whole lot of people and police officers in prison for using deadly force. Or in a grave if they had to wait for the bad guy to shoot first before they could fire upon the bad guy.

    fogflyer in reply to JRaeL. | November 11, 2021 at 1:51 am

    AND… let’s not forget that the CLOSER the guy pointing the gun at your head is, the less of a threat he is… because seeing as he could have shot you when he was further away, he must not actually intend on shooting you!

    Somehow they overlooked teaching me that in all my CCW classes.

      amwick in reply to fogflyer. | November 11, 2021 at 6:38 am

      A long time ago, a mugger pointed a pistol at my face, and, I swear if I had been carrying, I would have killed him.. Not a doubt in my mind. As it turned out, it was a fake pistol, which I recognized after maybe three seconds, but it did not change my reaction. I wanted to kill that guy. Having lived through those terrifying few seconds, I can only imagine what young Kyle went through.

      JRaeL in reply to fogflyer. | November 11, 2021 at 1:02 pm

      That part of the harangue had me sputtering like in a game of motorboat, motorboat. Is it the new physics? I mean science has made so many advances these days what with 57 genders and vengeful Gaia and magic masks it is hard to keep up. Do bullets fired closer to you just pffft out of the gun and fall harmlessly to the ground?

      I was waiting for Mr. Poor Excuse For an Attorney to claim Kyle had the ability to call down the mighty forces from Call of Duty to protect him against G.G. and failure to do so proves he had a death mania to kill, kill, kill.

        DaveGinOly in reply to JRaeL. | November 12, 2021 at 3:03 pm

        “PBR Streetgang, PBR Streetgang, this is Almighty, over.”
        “PBR Streetgang, PBR Streetgang, this is Almight, over.”

    Milhouse in reply to JRaeL. | November 11, 2021 at 4:51 pm

    Yes, that’s exactly correct. Remember this is the same genius who tried to argue to the judge that an armed person never has the right to defend himself from an unarmed person, and must allow himself to be murdered (unless, I suppose, he throws away his weapons and then he can try to prevent his murder with his bare hands, if he can), and that it’s unfair to come to the assistance of someone being attacked because that makes it two to one against the attacker.

For all this talk about “guns & ammo”, it appears that no one in the courtroom has substantial knowledge of the terminal ballistics of the ammunition used in Mr. Rittenhouse’s AR-15.

The interested reader may want to visit:

https://en.wikipedia.org/wiki/File:M16_5.56x45mm_wound_ballistics.gif

Surprised they put Kyle on the stand. He did okay though. Helped that Binger was an idiot and I’m sure the jury knows it too. That jury saw how the judge was acting. They knew what was going to happen when they were sent to the library.

The defense should have objected the moment Binger started asking about the bullets. Kyle is not an expert.

    Yeah, but they were “his” bullets, so there is a legitimate line of questioning there. Even if Kyle didn’t know anything about them, it helps State’s case of recklessness.

    That said, there were so many “Asked and Answered” objections that were never raised, even when Kyle seemed to be getting flustered, that I have to wonder what Richards is thinking.

    It was noted that the jury seemed to have “checked-out” by then, so maybe defense was just letting Ringer spin his wheels while the clock ticked down.
    I don’t know.

      TheOldZombie in reply to sbozich. | November 11, 2021 at 2:01 am

      I could see asking what type of bullets were in the gun but to start to get into details of JHP vs FMJ and so called exploding bullets those are things for an expert to testify too.

      zero_speed in reply to sbozich. | November 11, 2021 at 6:58 am

      By shooting only those around him and closing distance and trying to hit KR within a 3-5 ft circle is certainly self defense. He responded to aggravated assaults with deadly force.

      ragebot in reply to sbozich. | November 11, 2021 at 1:38 pm

      I had a similar take about the “asked and answered” issue. I lost count of how many times the defense should have said ‘objection, asked and answered”.
      And not just with KJ; Littlefinger seems to have a habit of repeating the same line of questioning.

Keep in mind, this is the same DA’s office that didn’t prosecute the police officer for shooting Jacob Blake in the back.

Now, I think that was the right call, given the circumstances in that case. But that they wouldn’t bring charges in that case, but would do so here (and do so in the fashion that they have) is mind-boggling.

    TheOldZombie in reply to sbozich. | November 11, 2021 at 2:00 am

    They knew they would be crushed in court if the arrested the officers involved in that.

    #1 Blake had warrants for his arrest. The police knew the domestic violence call they were responding to involved Jacob Blake. The police had been told Blake had taken car keys from the victim and refused to give those keys back.
    #2 Blake fought with the police officers while holding a knife.
    #3 The car that Blake got to wasn’t his. It, a rental, belonged to his ex-girlfriend and in that car was a child. Blake had been seen by the officers putting he child in the car as they arrived.
    #4 The officers, from their perspective, are trying to arrest a suspect whose violent, had a knife, was trying to steal a car, and kidnap a child.

    To arrest the officer for shooting Blake would be to say to all police, “Just quit. Walk off your job because we are going to jail you for anything and everything.”

    Kyle though doesn’t have that same set of facts for him. The prosecutors know he should have never been charged but they are content to throw it in front of a jury and make Kyle work to get his freedom back.

    “You can beat the charge but you can’t beat the ride.”

    Think38 in reply to sbozich. | November 11, 2021 at 2:17 am

    There was a state lead investigation of Blake. The report basically made the case for justified shooting.

    Note Blake was shot 7 times is it?

A couple of thoughts.

Some lawyers were complaining that defense counsel didn’t do enough to defend Kyle during cross. I can understand why, much of the cross was objectionable. But it seems to me the whole purpose of putting Kyle on the stand was to let him make his case for himself. Constantly objecting would defeat that purpose.

It’s obviously a huge risk, often not worth taking, but jurors want to hear from the defendant.

Secondly, I think Binger was once again doing more harm to his case than good. He looked like a bully and a liar. When opposing counsel is damaging his own case, you let him.

Lastly, in my experience, trial judges are not inclined to take a case away from the jury once a trial has started unless it simply must be done. I’m not familiar with Wisconsin procedure, but I think the judge retains the power to direct a verdict until the end of the trial. Why not let the trial continue and see if the jury’s verdict makes a DV unnecessary? This is a rationale I’ve heard from judges more than once.

Not arguing for or against this position, in this case or generally, just mentioning it.

Thanks again to Andrew for his coverage and his valuable insights.

    TheOldZombie in reply to novaculus. | November 11, 2021 at 3:03 am

    Not a lawyer here but I’ve seen reported that in Wisconsin that the judge retains the power of a directed verdict even after the jury renders its verdict. The judge could override the jury if they found Rittenhouse guilty. Something like this is rare though.

Binger and the 6th Amendment….He clearly tried to use Kyles constitutional right to confront a witness against him in a criminal action because Kyle had the ‘advantage’ of hearing them testify before he testified. I think that should also be grounds for a mistrial with prejudice.

Here are a couple cases to ponder regarding Bingers actions that to me seem relevant.

Citing Miller which I think is good law. Binger is over the edge in his case due to 6th amendment.

Miller v. US (5th Circuit) 230 F. 2d. 486 (1956) “The claim and exercise of a constitutional right cannot thus be converted into a crime”

United States v. Jackson 390 US 570 (1968)
“If a law has ‘no other purpose…’ than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.”

Ex Parte Young 209 US 123 (1908)
“The Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law…when a state officer acts under a state law in a manner violative of the federal constitution. And he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”
United States v. Jackson 390 US 570 (1968)
“If a law has ‘no other purpose…’ than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.”

    steve_gosney in reply to Elzorro. | November 11, 2021 at 9:03 am

    From the front page of the DOJ website: This significant responsibility of the public prosecutor was aptly described by Justice Sutherland in Berger v. United States, 295 U.S. 78, 88 (1935):

    The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

There was a 17yo from Plymouth NC who stowed-away on a ship to a S. Pacific island to shoot people. The island was Iwo Jima and it was 1945. Jack Lucas

Binger should be required to provide KR a law school scholarship

Russ from Winterset | November 11, 2021 at 7:53 am

Having the judge set aside a guilty verdict by the jury, provide a directed verdict of not guilty or even declaring a mistrial with prejudice would be suboptimal results for Kyle. The left would declare it to be an illegitimate verdict and crucify him in the court of public opinion.

They would be better than a guilty verdict, but a not guilty verdict by the jury is his only chance at a normal life. I hope the judge considers this before ruling. I believe he would have grounds to set aside a jury verdict due to their disregard of facts presented, so I think he could go there as a last resort.

Read somewhere Binger previously ran for DA, lost, and wants to run again.

His despicable performance was at least in part campaign fodder.

He must think a majority of voters want to see Rittenhouse spend his life behind bars. Which I’d like to think is a major league case of projection.

    TargaGTS in reply to JHogan. | November 11, 2021 at 9:45 am

    One of Rittenshouse’s earlier defense lawyers told Megyn Kelly yesterday that they polled Kenosha residents at some point before the trial began and found two-thirds of Kenosha residents thought he was guilty. So, yes, Binger is definitely playing to the electorate.

    What still bothers me – and bothers that earlier lawyer – is the scant amount of time the Rittenhouse defense team spent on voir dire (it took less than a day). Why? Because the jury is constituted from that same cohort of the electorate that overwhelmingly thought Rittenhouse to be guilty, at least before the trial began. I’d like to believe that reasonably intelligent people can see this prosecution for what it was now that the facts are out. But, 80M voted for Biden, so I’m not encouraged about the numbers of reasonably intelligent voters out there.

It is, as I said day one, going to be a hung jury. Which is when the judge will dismiss w/ prejudice.

MoeHowardwasright | November 11, 2021 at 8:20 am

On the ammo front. First, there are no hollow points for NATO 5.56 ammo or for .223 ammo. The 5.56 come in either a 55 grain or a 65 grain bullet. Both are high power 3000’ per second rounds. The 65 grain comes in a green tip that can penetrate barriers more effectively. The .223 is a lower power “varmint” round with a more stable penetration and fast expanding round. The NATO round “tumbles” on impact and creates more internal damage.

    There are hollow points available for .223, such as Hornady’s Critical Defense and others. FMJ versus hollow point in an AR-15 depends on a lot of factors, including barrel length and the rifling of the barrel. Calling 5.56/.223 “high powered” is indefinite. High power compared to a bb gun, yes, low power compared to pretty much every other long arm but a 22 rifle.

      Wrathchilde in reply to A Thinker. | November 12, 2021 at 8:46 am

      Thank you. .223 is high velocity, but I would not characterize it as high powered.

      In fact, any research as to the selection of the AR as the mainstay military weapon will come up with the fact that it was adopted primarily due to the round’s tendency to wound rather than kill. In battlefield scenario’s a wounded soldier generally takes 1-3 others out of the fight as they remove the actual casualty, and transport him to aid. Again, designed primarily to wound, not kill.

      DaveGinOly in reply to A Thinker. | November 12, 2021 at 3:16 pm

      It is illegal in some states to hunt deer with .223/5.56 ammo. It is considered under-powered and likely to too often result in the inhumane wounding of prey (not cleanly killing without undue suffering). It is, however, considered good varmint ammo, suitable for all manner of small animals from about the size of a coyote down to that of rats, animals that are all considerably smaller than even Rosenbaum.

dallasmediator | November 11, 2021 at 8:34 am

Mr. Branca:
You are the best. I wish I could buy you a couple of beers. Thank you so much for all that you do with these self-defense trials. Your keen perception, your legal understanding, your ability to explain in everyday terms, and most especially, your sense of humor, are commendable and admirable.
You da’ man!

There is no basis for commenting on a defendant’s being given Miranda warnings in front of a jury without actually confronting a defendant with statements that a defendant has made, Whether a mistrial with prejudice will be granted remains to be seen but all of the so called witnesses for the prosecution have satisfied the elements of self defense as did Rittenhouse’s own testimony. I doubt that the court will dismiss prior to submission to the jury, but the evidence in favor an acquittal right now looks promising

If Binger is acting this unethical in such a high profile case that he knows is being televised, what about every other case he’s prosecuted?

Innocence Project should take a deep dive into his other cases. And I am a law and order guy. But it starts with law.

Andrew, I’ve made a video illustrating “My Cousin Vinny” moment you mentioned: https://rumble.com/vp45hs-kyle-rittenhouse-trial-worse-than-in-comedy.html

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