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Rittenhouse VERDICT WATCH Day 3: Jury Focusing In On Controversial Drone Video, Provocation Issue

Rittenhouse VERDICT WATCH Day 3: Jury Focusing In On Controversial Drone Video, Provocation Issue

Yesterday’s request by the jury to view controversial drone video suggests they are focusing on provocation issue; if they believe that is proven, then self-defense is arguably off the table for Kyle Rittenhouse

Welcome to our ongoing coverage of the Kyle Rittenhouse trial! This is our VERDICT WATCH post, where we will share any fast-breaking news on verdicts and other events around the jury deliberations which begin today.

Live Stream 

For those who missed the closing arguments, or our prior VERDICT WATCH and end-of-day jury deliberation analysis, here is the coverage:



(refresh page for updates; most recent on top, all times Central time)

4:09 p.m.: Court adjourned for the day, no verdict, back at 9:00 am tomorrow.

1:07 p.m.: Court broadcast feed just went down, seems all channels.

11:56 a.m.:  Preceding court session involved a NBC reporter caught following the jury bus.  Judge has thrown NBC generally out of the courthouse.

11:23 a.m.:  Parties in court, judge on bench, something is up.

11:21 a.m.: Interesting news story from 2015, man killed by skateboard:

11:10 a.m.:  The jury note from yesterday, requesting access to drone video, just brought to my attention:

10:12 a.m.:  Occasional glimpses of judge at edge of frame.

10:00 a.m.: Tick-tock, tick-tock.

9:41 a.m.:  Judge momentarily on camera.

9:20 a.m.: Well, don’t know, still waiting.

9:11 a.m.: Typed too soon, motion in the courtroom, judge at bench.

9:10 a.m.: Nothing happening yet.

8:00 a.m.:  Waiting for jury deliberations to start up for the day at about 9:00 a.m.


I encourage you to bookmark or just leave open in your browser, but you will have to refresh for updates.


Until next time:


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

Know the law so you’re hard to convict.

Stay safe!


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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The Pedant-General | November 18, 2021 at 9:14 am

First comment!

I got some new video of ADA Kraus from yesterday.

    ryStatDL in reply to pchase9401. | November 18, 2021 at 9:28 am

    too bad Binger didn’t watch My Cousin Vinnie in law school

      TaxPayingPatriot in reply to ryStatDL. | November 18, 2021 at 9:51 am

      It is no wonder she won the Best Supporting Oscar for that performance, and good find. We need a good video demonstrating for fatso why no self-respecting American, let alone man, would just take an ass kicking because the leftists want us to. Maybe Eastwood in Gran Torino.

          Is this porn? Why is it asking me for a credit card to verify my age?

          Judge1 in reply to ryStatDL. | November 18, 2021 at 12:21 pm

          Let’s get this straight. If I am a person carrying a gun for self defense in the middle of a riot, and I inadvertently or deliberately point my gun at the rioters, but never fire my weapon and then run away, anybody seeing this can chase me and kill me as I have forfeited my right to self-defense. Also, the raw speculation that Rosenbaum (a) ever saw Rittenhouse supposedly point his gun at a rioter and (b) was “provoked”by that now qualifies as proof beyond a reasonable doubt of such provocation. Finally, the blur/blob photo enlargement, which was never checked for accuracy against the original, has a probative value which exceeds its prejudicial effect. If any of the above are the law then, as Mr. Bumble said in Bleakhouse, “the law is an ass.”

          DaveGinOly in reply to ryStatDL. | November 18, 2021 at 2:01 pm

          This is what Binger says should have happened, no, what Kyle should have permitted to happen.

          Milhouse in reply to ryStatDL. | November 18, 2021 at 4:52 pm

          Not even Binger claims they are permitted to kill you, or even to beat you up, but if they do he claims you have to let them. Because a person with a gun has no right to defend himself against someone with no gun. And a person with an AR-15 has no right to defend himself against someone with a mere handgun. According to Binger you may only defend yourself if you’re evenly matched with your attacker, so it’s a fair fight. And nobody is allowed to come to your aid, because two against one isn’t fair.

    Strelnikov in reply to pchase9401. | November 18, 2021 at 1:08 pm


    DaveGinOly in reply to pchase9401. | November 18, 2021 at 1:44 pm

    Kyle is looking REALLY good in the video.

Every day reveals some new and exciting prosecutorial misconduct – what will today bring? Tune in to VERDICT WATCH to find out!

“The law is a ass-an idiot” (Mr Bumble from Charles Dickens “Oliver Twist”)
As this case and so many others have shown.

Serious question: why didn’t the prosecution jump on the defense’s request for a mistrial without prejudice? They can’t honestly believe that they’ll get an outright conviction, can they? If the process is the punishment, then what better way to punish KR than to drag this out for another year? It would avoid the possibility of an acquittal, and avoids further scrutiny of the video resolution debacle.

    TargaGTS in reply to fast182. | November 18, 2021 at 9:50 am

    That is a good question. I’m inclined to chalk it up to their stupidity and inability to think quickly on their feet (Krause is the embodiment of this). OTOH, they’ve been looking at those jurors now for three, almost four weeks. Maybe they see something in the juror’s faces, demeanor or behavior that leads them to believe things have gone better for them than anyone outside that room could predict. This could also explain the inexplicable; why the defense would be so eager to skip right to mistrial without prejudice when there’s prima facie evidence of prosecutorial incompetence and possible misconduct.

    I mean, I think that’s nuts, but you never know. I will never forget the shock on my wife’s face (and probably my face) when the OJ jury said ‘not guilty.’

      fast182 in reply to TargaGTS. | November 18, 2021 at 10:14 am

      I thought that the mistrial without prejudice was crazy too, but I heard someone say that the judge has strongly hinted that he may act if the jury get’s it “wrong”, so perhaps they wanted him to have the option of a mistrial with prejudice in the event of a hung jury, and without prejudice if they convict. With this motion, both options are on the table for the judge. It seems like a long shot, but this is a wild one for sure, with a corrupt prosecution, an indecisive judge, and inept lawyers on both sides.

      I’m not a lawyer but I would say the defense has a good reason for a motion to dismiss without prejudice. I suspect the motion to dismiss without prejudice is based on some conduct that is not legally sufficient to entitle them to a dismissal with prejudice but is leglly sufficient to entitle them to a dismissal without prejudice. Failure to make the motion when they had a right to make the motion would constitute a waiver of the right to a dismissal on those grounds. Its kind of like requesting instructions on lesser included offenses, it may hurt you in the long run or it may save your ass.

    JHogan in reply to fast182. | November 18, 2021 at 9:58 am

    Just speculating…

    1) They assumed there would be a not guilty verdict but now think it will be either a hung jury or guilty.


    2) They know they have no case and do not really want to try it again. They know they will eventually lose. They know they themselves are guilty of prosecutorial misconduct and would place themselves in greater jeopardy in a retrial.

    If the jury hangs 10-2 for acquittal the prosecution has an excuse to not try Rittenhouse again if they want to use it.

    Takerial in reply to fast182. | November 18, 2021 at 10:08 am

    I mean, they really can’t. Mistrials are at the discretion of the Judge. And if they go “Yeah, let’s do a Mistrial.” that would be them acting in bad faith, which they are already, but it would be absolute proof of it.

    richtrue in reply to fast182. | November 18, 2021 at 10:28 am

    If there is a retrial, it’s unlikely Rittenhouse would use the same defense team (I would hope). The next group would surely give Binger and Kraus an old-fashioned ass whipping, and they don’t want that.

    CurlyDave in reply to fast182. | November 18, 2021 at 10:47 am

    I suspect he prosecution knows they will lose a retrial. The defense has been educated.

    No more hanky panky with doctored videos, and if witnesses change their testimony, the defense gets to impeach them with testimony from this trial.

    There is no downside for them. If they get a guilty verdict and are heroes to the left. If they get a not guilty verdict there are riots in the streets and the left gets to once again reassert that they are above the law and no one may resist them.

    But the highest likelihood is probably a hung jury, which gives them a retrial anyway so they gain nothing by taking a mistrial now. And they don’t have to admit their misconduct to achieve that same result so it is appealing to them to go that route.

    healthguyfsu in reply to fast182. | November 18, 2021 at 5:39 pm

    Because they won’t be able to crop another old video and sneak it in as “new video”, Rorschach it, and use it to taint the jury next time.

I’ve got one thing to say to the prosecution:


Stay tuned something is afoot. I wonder if there will be motion to suppress the video evidence? Judge reopened the evidence Maybe he boxed himself in…..’by accident’.

    At minimum, I think he should rule out the video. It was presented after close of the trial, from an unknown source (They likely had it the entire time and was their hail mary), plus it doesn’t show anything that the purport it does. Judge should give the prosecution a choice, throw out the new video with clear instruction to the jury or, mistrial w/ prejudice. In other words, “Heads” Kyle wins, “Tails” the state loses…

smalltownoklahoman | November 18, 2021 at 9:46 am

Good lord I hope they don’t go with the provocation issue, especially when the video evidence is unclear at best. I also worry about the knock on effects if they do go with it because troublemakers across the country will use it to get ordinary law abiding people who may be open carrying in trouble.

    Me too. I don’t know how anyone with a 50 IQ or higher could think that video proves provocation beyond any reasonable doubt. The judge looked at it – the ‘GOOD’ copy provided by the prosecution – for 20-minutes while sitting a foot or two from the screen and said, ‘I see nothing.’

      Edward in reply to TargaGTS. | November 18, 2021 at 12:30 pm

      And yet he admitted an unsourced video into evidence, counting on the Jurors to not be taken in when the state tells them what (the state claims) the video shows.

    TaxPayingPatriot in reply to smalltownoklahoman. | November 18, 2021 at 9:57 am

    Seems to me that showing provocation is difficult, and given that no witnesses testified that he provoked him, a random video clip or screen capture purporting to show such is problematic. It might hang the jury though. There were many people armed, and the cops said it sounded like war zone, so why him? I would’ve argued mistaken identity … one guy with an AR looks like another. Offset by testimony of threats directed at KR, which should be ‘provocation’ of him.

      Provocation is no longer an issue in this case because Rittenhouse has not been charged with an offense prior to shooting Rosenbaum. To put provocation in issue in this case the prosecution would have had to charge Rittenhouse with committing a criminal act ;prior to shooting Rosenbaum. This was the gun charge and that has been dismissed. The provocation issue died with the gun charge. Binger’s entire case now rests on the element of reasonableness in respect to the use of deadly force in self defense. It was plain and prejudicial error to instruct the jury on provocation. If convicted the case will be overturned on appeal and the judge knows that. He is just hoping the jury will save his ass.

        Ben Kent in reply to bigo. | November 18, 2021 at 11:36 am


        Provocation was presented so that jurors who are PRE-DISPOSED (ie BIASED) will have an excuse to convict.

        Prosecutors know that some of the jurors in this liberal city’s pool of jurors will have a bias against Kyle. They want those biased jurors to have a reason to vote for conviction. It does not have too make sense. It just has to give them a reason so that they can vote to convict.

          It’s likely the Karens are wanting to go for lesser charges to make Kyle worse for the wear. They are clinging as tightly to delivering justice in the form of punishment to placate the prosecution and the mob and the dead people as tightly as those going with acquittal.

        Edward in reply to bigo. | November 18, 2021 at 12:34 pm

        IIRC the WI law allows two areas for provoking an attack. One involves the commission of a criminal act, the other does not but requires the person claiming self-defense to have actually sought out someone to bait into attacking so as to (in this case) shoot.

          bigo in reply to Edward. | November 18, 2021 at 4:17 pm

          That is true but in this case the prosecution was going with criminal act provocation. Intent provocation is a whole different ball game and the prosecution has presented no evidence of intentional provocation. The prosecution did not request a provocation with intent instruction and conceeded on the record that the state did not believe or intend to prove that Rittenhouse provoked Rosenbaum with intent,

    TY smalltown
    What happened to that old beyond a reasonable doubt thing? It isn’t like he pointed the AR at them and yelled something along the line of “Come and get me you dirty,rotten, blank blanks….. Come on I dare you!!!” That didn’t happen, but they can hang him on a short video????????????????? Anyone who carries will now be provoking… slippery slopes…..

    That they want to view the infamous drone video is disturbing. It means that some have bitten on the prosecution’s “provocation” argument. But the argument presents a logical fallacy – that a provocation precludes action motivated by some factor other than the provocation. But we know Rosenbaum was already motivated to kill Kyle, he had said earlier in the evening that it was his intent to do so. For the jury to decide Rosenbaum was later provoked by Kyle, and that the provocation was the motivation for his attack, relies on 1.) knowing that Rosenbaum was motivated by the provocation to attack Kyle (reading the mind of a dead man who was already motivated by murderous thoughts); and 2.) a presumption that Rosenbaum was aware of the provocation (which the prosecution says was directed at the Ziminskis, not at Rosenbaum) – neither of which are facts in evidence.

Why is this taking longer than 10 seconds?

    Elzorro in reply to BillyHW. | November 18, 2021 at 10:06 am

    In the jury room I bet war is being waged between the Krazy Karens to convict and The Normies to Acquit. Imagine locked in a small room and having to listen to Krazy Karens wail and moan for 4 days.

    It will no doubt be the AWFULS on the jury – affluent, white, female, unmarried, liberals.

    That cohort has caused more trouble than any other in recent years.

      aramissebastian in reply to Thatch. | November 18, 2021 at 4:08 pm

      Speaking as a trial lawyer, in any case, you have your perfect hypothetical jurors, and your worst-case hypothetical jurors.

      And while it’s helpful to know what you want, you’re kind of stuck with what you get.

      Like, you might decide that this type or that type juror is what you want, but there aren’t any of them on your panel.

      That happens a lot, in my experience.

      Zachary in reply to Thatch. | November 18, 2021 at 4:13 pm

      Ooh that’s good. I’m gonna use that.

If jury gets to see new evidence, the higher quality video, doesn’t that mean defense gets to discuss it with the jury? Which would mean new closing arguments and repeating jury instructions?

    Mister Logic in reply to Milwaukee. | November 18, 2021 at 10:32 am

    It’s not really new in the sense that it was already introduced into evidence. Yes, it was “discovered” after the trial started, but it was introduced. The issue is that it was later discovered that exhibit resolution didn’t match what the prosecution gave the defense.

      Milwaukee in reply to Mister Logic. | November 18, 2021 at 11:22 am

      Did the defense want the jury to have the degraded video because that video will make it easier for jurors, who really want to convict, to see something that isn’t but can’t be disputed?
      Reasonable doubt? Like Chris Cuomo asking “Where does it say protests have to be peaceful?”, Anarchists, aka Democrat/socialist/haters will ask “Where does it say … beyond a reasonable doubt? I’m sure. My feeling tell me.”

      Milwaukee in reply to Mister Logic. | November 18, 2021 at 11:38 am

      Yes, and No. To be sure, this version, the murky version was introduced and discussed before. But, if in the HD version items can be seen and recognized which weren’t seen or recognized before, then it is new evidence.

There’s also the Jump Kick Matter to address. I can’t say if this is the guy. BUT, if this is in fact the guy, it’s not believable that state didn’t recognize the man considering he’s had cases before Binger, Krause AND Schroeder and has a pending case that is currently being prosecuted by Binger. He’s a career criminal from Kenosha. Someone recognized him if it’s him.

Did the defense want the jury to have the degraded video because that video will make it easier for jurors, who really want to convict, to see something that isn’t but can’t be disputed?
Reasonable doubt? Like Chris Cuomo asking “Where does it say protests have to be peaceful?”, Anarchists, aka Democrat/socialist/haters will ask “Where does it say … beyond a reasonable doubt? I’m sure. My feeling tell me.”

After this trial and Wisconsin brazenly stealing the election I will never buy anything from that state ever again.

    I would buy New Glarus if I could find it anywhere.

    This trial highlights the Making a Murderer case and how the prosecution likely fabricated evidence there. Keep in mind, that all took place about 2 hours up the freeway from Kenosha.

      richtrue in reply to Smooth23. | November 18, 2021 at 11:06 am

      Most of us watching are seeing the participants for the first time. We don’t really have the full context that Binger, Kraus and Schroeder work together every day and have for a long time. I believe Schroeder was involved in Jacob Blake’s case as well. What it all means is that there is a lot more going on between the personalities than we know. And that is similar to what took place in Manitowoc County, up the road, as you said.

      Not sure if the prosecution is fabricating evidence, but they are being loose with the evidentiary process. And that’s probably because they get away with it most of the time. It’s partly evil, but it’s also partly where the entrenched state employees (the judge and the DA’s) are just accustomed to doing things in a way that moves the docket along.

      They are so accustomed to this way of doing things that they are unable to switch gears back to a high level with this increased scrutiny. I thought it noteworthy that Schroeder complained about cameras in the court.

I do not practice criminal law but am a civil trial attorney with 40+ years experience. I have been following this case generally and in more detail for the past week. I have a very bad vibe about what is happening. The Judge and to some degree the defense has allowed the prosecution to turn this into a s–show the past several days.

A basis rule in trial practice is that evidence must be exchanged well in advance or else it to precluded at trial. This is basic in civil cases and is even stricter in any criminal case, no less a case where an 18 year old can be sent to prison for decades.

It is outrageous that the Judge let in the video that dropped into the trial midway, then allow it to be “enhanced”, and then countenance the shenanigans of yesterday. And, the prosecution did not even open to the jury on provocation, but now it is the focus of the case? It seems like the prosecution sandbagged the defense and the Judge, with full knowledge that it would drop the basis of provocation midway through trial. The defense has been strangely passive on this entire issue. Yes, they file motions for a mistrial, but have not truly raised hell.

And, I agree with Branca that the summation by Richards was awful. It meandered and did not tie the key evidence of innocence to the specific charges. I also agreed that defense counsel was attacking the scummy prosecutors personally and did not convey the level of injustice that their tactics produced. I also saw little on the issue of burden of proof/reasonable doubt, which is the key to the defense of a criminal case.

Finally, this Judge is all bark and no bite. He keeps threatening the prosecution but allows them to get their way. I am concerned that then political pressure and attention has gotten to him, even subconsciously.

    janitor in reply to J100. | November 18, 2021 at 11:43 am

    I have many of the same thoughts (and same background, 40+ years, civil.)

    I am suspecting that in this small town, in which ADA Binger actually lives/d with another judge, has been before Judge Schroeder hundreds of times, and they all know each other and socialize… More data points: The judge was a Democrat political activist when he was a prosecutor, albeit he’s tamped down the politics since being on the bench.

    One indication of bias sometimes is overmuch “protesting too much”… The judge has been described as “passive”, or overwhelmed, or indecisive. But he knows that he’s on camera, and sometimes a lot of excessive talkety-talk (which this judge does) is actually a cover for an inclination that goes the other way. I’m not saying that the judge himself wants a wrongful conviction, but his bias would be that he does not want to thwart the prosecutors much either. So, e.g., his yelling at the prosecution is “Why are you putting ME into this awful position” rather than anger at the shenanigans per se.

    This case never should have been brought.

    PhillyWatch in reply to J100. | November 18, 2021 at 12:36 pm

    speaking as a layman…

    From the timeline of trial events, prosecutions witnesses blew up on the stand. Their testimony (to me, a dumb jury-grade person) seemed to help the defense more than the prosecution.

    There were some motions at first..but the judge decided some in favor of defense, especially his propensity ruling.

    The trial started coming off the rails further in the trial, when the judge blew up at prosecution (not in front of jury) and the question of mistrial started to arise. It was not long after that that the prosecution brought in the high-res video and their expert (Armstrong) and the ehnhanced image that lacks forensic validity.

    Again, as a layman, I don’t think prosecution sandbagged or had a strategy of springing this on them. I think he felt it the only way to salvage a sure loss so why not try it. My bet is Binger wanted to spring-board this show trial into an elected office anyway, so losing credibility in the courts is unimportant.

    henrybowman in reply to J100. | November 18, 2021 at 2:48 pm

    “And, the prosecution did not even open to the jury on provocation, but now it is the focus of the case?”

    It’s not like we didn’t all see this in the Chauvin trial, where everything from the opening was neck, neck, neck… until someone proved from the materials available to EVERYBODY well before the trial that his knee was on Floyd shoulder, then it was shoulder, shoulder, shoulder for the rest of the trial.

The prosecution has cleverly boxed the Judge in on the mistrial issue. Yes the Judge can still set aside a guilty verdict. But it would take absolute balls for a Judge to do to do this, knowing that the mob would burn the city down again it this occurred. And this Judge has shown he can be bullied, so this is not a valid line of comfort for Rittenhouse.

It appears that “libera” prosecutors have de facto rewritten the Constitution, statutory law and common law.

1. Left wing militias, e.g. Antifa, Black Lies Matter, have a constitutional right to riot. See e.g., Portland, Seattle and Kenosha riots. Patriots have no similar right. See January 6 protest, Malheur occupation.
2. Law enforcement is prohibited from actively interfering with left wing militia riots, this includes when left wing militia beat people or suppress patriot’s rights to peacefully assemble. However, depending on the optics law enforcement may take action after the fact, but under no circumstance will they intervene in real time.
3. Patriots assume the risk of serious bodily injury or death if they appear at a Left Wing Militia riots. See Andy Ngo Doctrine. Patriots peaceably assembling that are attacked by Left Wing MIlitia immediately lose all Constitutional rights. Under no circumstance are Patriots allowed to use deadly physical force in self defense. See Bingaling’s Rittenhouse Doctrine.
4. Home owners are prohibited from threatening left wing militias that are threatening home owners. McCloskey Doctrine. All property owners will allow left wing militias to trespass, vandalize and commit arson.
5. Any patriot or citizen violating these rules are entitled to mob justice only.

Did I miss anything?

Did I forget something.

    richtrue in reply to rightway. | November 18, 2021 at 10:35 am

    Did I miss anything?

    Did I forget something.

    Yes, you might have forgotten that the FBI has the right to lure in and entrap people they think might be white supremacists, and engage them in plots that are ridiculous, but they can be prosecuted for.

    Elzorro in reply to rightway. | November 18, 2021 at 10:43 am

    Well this looks like a rerun of many other acts that started with Zimmerman. Directed and Produced by the ringmasters behind the camera. Only the names of the actors change.

Thanks and kudos for excellent reporting on all of the legal issues

My recommendation for the defense today: Ask for whatever the opposite of what you want is. Kraus will argue your position for you, and the judge will cave.. whatever it is.

    NJ observer in reply to Smooth23. | November 18, 2021 at 10:41 am

    The George Costanza strategy?

    c_programmer in reply to Smooth23. | November 18, 2021 at 10:42 am

    Or realize this guy can’t tell quantity from quality and beat Binger at his own game. Just make sure you have the last word and talk non stop, as in make everyone else in the room think “where’s the off button on this moron?”

Just to help keep things in perspective, remember the left’s doctrine from back in the ’60s: the issue is *never* the issue, the revolution is *always* the issue.

    This is one of the reasons – perhaps THE reason – why this case is so much more than a local murder trial. Even though it will likely have no impact in a jurisprudential way (at least not on a national level), a successful prosecution of Rittenhouse will have PROFOUND national political implications, empowering leftist DAs all over the country to attack the right of free people to defend themselves from their shock troops masquerading as ‘social justice’ protesters.

    While the OJ trial was good theater, it meant nothing substantive at the end of the day. Conversely, this is a test case that might mean a lot. A LOT.

      henrybowman in reply to TargaGTS. | November 18, 2021 at 3:04 pm

      Fortunately for us, the respect of gun activists for the “rule of law” doesn’t extend to such ridiculous lengths.

      Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add “within the limits of the law,” because law is often but the tyrant’s will, and always so when it violates the rights of the individual.

      Second Amendment types are very comfortable with the doctrine that the presence or absence of the Second Amendment does not change the existence of their right to bear arms or their right of self-defense one whit.

      The right of bearing arms for a lawful purpose is not a right granted by the Constitution; neither is it in any manner dependent on that instrument for its existence.
      — U.S. vs Cruikshank (1876)

      The MSM may swallow Binger’s codswallop about “If you brought a gun, you forfeited your right to self-defense.” We don’t, and we never will. And our right of self-defense extends to tyrants in government, as government tyrants may be unlucky enough to discover.

        healthguyfsu in reply to henrybowman. | November 18, 2021 at 5:46 pm

        Keep quoting Jefferson as if that matters to the left….if he were alive, they’d burn him at the stake. For now, they will settle for destruction and mayhem of anything resembling his legacy.

        We have to live with these people, and I’m not sure how much longer we can do so in civility, honestly.

The defense has got to be absolutely itching to get this case concluded one way or another so that they can get it in front of an appellate court. The massive prosecutorial misconduct in this case is truly conscience-shockingly bad and straight up mandate a reversal and outright dismissal of the charges.

    ryStatDL in reply to Maz2331. | November 18, 2021 at 11:06 am

    the “prosecutor” refusing to accept that the software manual for the software his stooge used to create his doctored photo says NOT to use it is just proof that he has no interest in justice

    c_programmer in reply to Maz2331. | November 18, 2021 at 11:19 am

    You never, ever want to go before an appellate court. It is a resort used only after everything else has been exhausted. Once convicted you no longer enjoy the presumption of innocence so the court will only reverse if there was a major error AND they decide it was probably a factor in the juries decision. It doesn’t matter how bad we think the errors are, the odds of the appeals court doing the right thing are a fraction of winning at trial.

    I agree that this case is so bad it shocks the conscience, but even a plain mistrial is preferable to a conviction with hope of appeal.

Wishing Judge would put Krause/Binger under oath and have them “airdrop” the HD video file to an Android phone in real time. If their claims about IOS automatically sending a compressed file are true, the filesize ought to match what the Defense received. Otherwise, Prosecution compressed the file and then sent it. Manufactured evidence. Fraud on the Court. Grounds for Mistrial With Prejudice.

Handbrake Auto Default output format is .mkv file. Output as an .mp4 file will use B Frames for compression unless over ridden.

    TargaGTS in reply to Galgo. | November 18, 2021 at 11:45 am

    The subject is too complicated to fully address in this format. But, what fatboy said is technically plausible….to a point. If you email from the iOS Photos app to a device that isn’t on the Apple ecosystem, then the video will be compressed because Apple limits total email size through its mail servers to 25MB. But, that compression will NOT crop the video. IOW, it will take an original 1920 x 1080 and compress it to a 960 x 540 video to get beneath the 25MB hard file size limit (or something smaller if necessary).

    The video Wico received was something other than 960 x 540. That’s the problem. The video was compressed AND cropped. The Apple Photos app won’t do that, can’t do that. It will only compress the video.

      henrybowman in reply to TargaGTS. | November 18, 2021 at 3:07 pm

      “because Apple limits total email size through its mail servers to 25MB”
      That assumes you are using Apple’s servers. You use Apple’s servers only if you are sending from an .iCloud, .mac, or .me address. Otherwise, Apple has nothing to do with it.

        TargaGTS in reply to henrybowman. | November 18, 2021 at 5:06 pm

        Right. But, fatboy said that the detective ‘Airdropped’ the video file to his (fatboy’s) iPhone. When someone Airdrops to an iPhone, the file is placed in the Photos app. This is a bit different than when someone Airdrops to a Macbook or iMac. Then – when MacOS is the operating system rather than iOS – the file is placed in the Downloads folder.

        When you email from the Photos app by using the share function built into the app, the 25MB limit applies.

        Of course, the all presumes fatboy didn’t make up the entire story.

      Galgo in reply to TargaGTS. | November 18, 2021 at 5:34 pm

      If the video was cropped, then fatboy used Handbrake (or another video editing/conversion program). I understood the HD file was 12 MB and the file Defense received was 3.4 MB. If so, the 25 MB IOS limit wouldn’t have been met and no compression applied. If the file was cropped, then fatboy lied about IOS to Android transfer. I could be mistaken on original filesize.

        Galgo in reply to Galgo. | November 18, 2021 at 5:56 pm

        If it was an Apple iOS file, the extension ought be .m4v in the Apple world. Files with .m4v are the exact same as .mp4 . ie, you can change the file extension from .m4v to .mp4 and nothing is changed in the file, except non-iOS systems can recognize the .mp4 filetype. Handbrake outputs a Matroska file container, x264 or x265, and has presets for device specific output file formats. Fatboy may have outsmarted himself. Handbrake also creates Log files of the conversion process. It would be interesting to subpoena his laptop and see what the log files show. I’m guessing the file conversion/cropping log files show exactly what he did. That would require some truly creative explanations.

        TargaGTS in reply to Galgo. | November 18, 2021 at 6:09 pm

        Depending on the settings he’s got on his phone, it’s possible even if the file is under 25MB, using Photos (the app) to share via Gmail, may have still compressed the video. iOS is kind of quirky in this regard. iOS is easy to use, but sometimes it’s too easy to use. Still, irrespective of the compression which may or may not have been automatic, it’s the CROP that can’t be easily explained…can’t be explained at all really, given the sequence of events fatboy stated in court.

        Also, I couldn’t hear what she said was the original file size. Owning a drone myself, I would be REALLY surprised a 1080p file was 12MB. The original video must have been very short. OR, they still don’t have the original video and instead, they have an edited video that the drone operator provided. Without his testimony, it’s impossible to say.

    tekovyahoser in reply to Galgo. | November 18, 2021 at 11:46 am

    About as likely as Chauvin’s team demonstrating in real time that a knee to the back/neck in that position will not kill you.

How could it possibly take this long to decide ?

if one has to zoom in and examine one frame at a time for 3 days to determine if Kyle was at risk … that certainly gives “reasonable doubt” as to if HE PERSONALLY thought he was at risk in the few seconds he had to decide

The jury seems to be looking for anything to rationalize a guilty verdict.

This jury asked initrially for a re-reading of the charge on self defense-which is the key issue to the whole case-either the prosecution met their burden of proof or failed to do so that there was no proof of the sa,me.On the other hand, assuming a worst case scenario-would the failure to make a proper exchange of the drone video be a violation of the Brady case and grounds for a reversal and a new trial?

From Posobiec…

“Mask Karens dont care about evidence they care about their reputation and standing among their fellow elites…”

“…The holdouts would prefer a *MISTRIAL* or conviction on a lesser count

They know he didnt break the law but they don’t want the reputational backlash that would come from responsibility for it.”

    JHogan in reply to JHogan. | November 18, 2021 at 11:13 am

    Barnes has been saying from the start the biggest mistake the defense made was in jury selection. He wanted to avoid putting Kenosha upper-crust elitist Karens on the jury.

I think most/all posters on this board are not facing reality. . .all the talk of a mistrial with prejudice or directed verdict, etc. It should be obvious to anyone and everyone that none of that is going to happen. The judge has shown no interest in actually doing anything. He yells and complains but has at least 3 major reasons to act but does nothing.

He will do nothing. Repeat that. The judge will do nothing. If he were going to he would have already done it.

Whatever the jury comes back with is what will be. . .and I suspect based on the delays and questions that Kyle will be found guilty. He isn’t, but the judge has enabled it by allowing bogus evidence (chain of custody anyone) and the incompetence of Kyle’s lawyers.

But, the judge will not overturn anything. Prepare yourselves.

    gonzotx in reply to lancebaby. | November 18, 2021 at 11:18 am

    I’m afraid your right. He should have been found innocent the first vote they had

    M Eliza in reply to lancebaby. | November 18, 2021 at 11:22 am

    But there have GOT to be at least a few jurors who are bright, discerning, and honorable. For that reason I still think it will be a hung jury.

    c_programmer in reply to lancebaby. | November 18, 2021 at 11:27 am

    I still think a hung jury is the most likely outcome. If he gets convicted it will probably be on lesser charges because the jury struck a compromise. IMO a retrial is a win at this point, next time around they’ll have all the relevant evidence and already know provocation will have to be the cornerstone argument. The state will still be in their pathetically weak position.

      Harry_the_Horrible in reply to c_programmer. | November 18, 2021 at 11:35 am

      There are no ‘lesser’ charges.
      They are all felonies carrying substantial prison time, even the “first-degree recklessly endangering safety.’ That carries up to 12 ½ years in prison plus five more for a “dangerous weapon modifier.”

      What are the lesser charges? They are all felonies, correct? That’s hardly much of a consolation prize.

        c_programmer in reply to Arminius. | November 18, 2021 at 12:00 pm

        Yes. The lesser charges are all very serious felonies (lesser degrees of homicide). It is only a consolation prize to the state.

      I believe that the gun possession and trespassing charges are now gone forever, so in the event of a mistrial KR would have a better overall case. The entire prosecution case would hinge on the pixelated image. It would still suck to have to do this again.

    This judge barks but doesn’t bite.

    IMO a hung jury is the most likely outcome. My guess is there are at least 2-3 jurors who will not render a guilty verdict on any charge.

    The judge must at some point accept a hung jury. It’s the only decision he will make.

    ryStatDL in reply to lancebaby. | November 18, 2021 at 11:45 am

    it’s possible that the Judge will not act.

    however – he has clearly stated that he’s waiting to see if there is a not-guilty verdict before even addressing the issues.

    something to the effect of: if this comes back anything other than not-guilty there are going to be serious issues

    PhillyWatch in reply to lancebaby. | November 18, 2021 at 12:43 pm

    In actuality, he has. He’s indicated an interest in a hearing with experts testifying with respect to the evidence issues. I would think that would only be needed to arm himself with the facts necessary to back up granting his motion.

Is the judge legally obligated to let the prosecution reply to the motion for prejudicial mistrial?

Read almost all the comments over the last couple of days and find them interesting and enlightening. Have to say though, 3 days of deliberations and I fear for Mr. Rittenhouse. Spent 25 years in LE so never in a jury room but you gotta figure, they go in and take a quick vote to see where everyone is. If it’s a flat NG then you sit around for a bit for appearances or go through whatever pprwrk you need to and then come out and tell the world. Obviously there is something or someone holding things up. I have so many thoughts it’s hard to put em all down

    The Pedant-General in reply to Knuckledragger. | November 18, 2021 at 11:32 am

    The longer this goes on, the worse it is for KR. If we’ve got to here, I wonder if the jury isn’t more evenly split. If it were 10-2 off the bat, with no movement/intransigence from the 2, I think we would know by now.

    That we haven’t heard yet suggests to me that there’s major disagreement and enough on each side not to back down.

      So for both NG and G, the verdict has to be unanimous?

      Is there a time limit before the judge steps in to declare a hung jury?

        PhillyWatch in reply to lurker9876. | November 18, 2021 at 2:29 pm

        All I’ve heard is at some point the foreman sends a message to the judge that they’re hopelessly deadlocked.

        I don’t know if there’s any objective criteria given to the foreman to limit their ability to do that. Maybe the judge has a conversation with the foreman in front of attorneys.

      Knuckledragger in reply to The Pedant-General. | November 18, 2021 at 12:17 pm

      If you’re right about the major disagreement, I feel fear for the country. Any normally sentient being could watch the videos and see the truth. About a week ago I said to my wife, “Kyle is lucky that all this video was taken. Without it he’d be doomed.” I guess I should have thought a little more deeply about where we’re at as a society.

        The Pedant-General in reply to Knuckledragger. | November 18, 2021 at 12:31 pm


        Astonishing the amount of low info discussion on other sites that bears no relation at all to what has been presented in evidence. It’s a widespread truth out there that KR was pointing his weapon at people generally, a stance that is entirely unsupported by the video

Wondering if the jury came to a decision yesterday and decided to give it formally this morning to avoid most of the vengeful communist mob.

There hasn’t been much by the way of updates this morning. Has the jury even started to deliberate today?

Re: HandBrake

Maybe Kraus is just a videofile nerd that loves ripping Blu-Rays and fine-tuning the transcoding on his work laptop?

    c_programmer in reply to JorgB. | November 18, 2021 at 11:42 am

    He told the judge he doesn’t know how any of it works. He feigned a total inability to have done the forging.

      Yeah, we all know the score here. Schroeder needs to get a clue and the defense needs to pound the table to give him one. This ‘Homer Filing Taxes’ ‘evidence’ introduction skit would be hilarious if it wasn’t for KR’s life being on the line and the prosecutors being evil pieces of …

    PhillyWatch in reply to JorgB. | November 18, 2021 at 12:46 pm

    Even that scenario belies his statement that ‘if I (he) were that technical I’d (he’d) have a better job’. Not under oath, but loud enough to hear by us in the stream, and by the judge too. I wonder if it’s a matter of record captured by the court reporter.

If a non government person / company records drone footage by an unlicensed operator or without a permit, if required, would that evidence be considered illegally obtained and not admissable?

    Milhouse in reply to buck61. | November 18, 2021 at 7:43 pm

    No, there’s no reason why it should not be admissible. The exclusionary rule is not a constitutional requirement, it’s something the courts made up in order to punish the government for breaking the law. If you break the law to gather evidence, we won’t admit it, so you may as well not do it. If the government didn’t break the law then there’s no reason to punish it.

OJ Jury:8 blacks, 2 Hispanics, 1 half-Caucasian, half Native American, and 1 Caucasian female.
When they came back they all wore black clothing and one black juror raised the black power fist.

So something that has been bothering me. The judge has made repeated implications that he is concerned with the jury’s time and that it should be respected. For example, he cut arguments short yesterday to get the videos to the jury, when commentators were yelling that deliberations should be suspended until they work it out.

Now how in the hell is a jury member’s day or two or 15 worth more than getting the life sentence verdict of one person correct?

Prosecution —- Mistrial, please please please please please!

So Andrew will be on The Dana Loesch Show today. Typically guests will be on in the 3rd hour of her show. I don’t have a way to add an external link. I use the Audacy app.

Capsaicin_Addict | November 18, 2021 at 12:30 pm

There’s a report on Ace of Spades that someone followed one of the jurors home (and was subsequently arrested).

My guess is the jury agrees on not guilty on everything but the Rosenbaum shooting. Some jurors may be buying the single frame photoshop.

Authorities unwillingness to preserve order is what allowed a mentally disturbed and suicidal Rosenbaum to operate unopposed and precipitate the whole tragic sequence of events.

Leave to that awful MSNBC!

NBC/MSLSD has employee follow juror bus can be for only one thing. Photo as many jurors as possible to dox them. POS leftists!

I think anyone on that jury already had their mind made up before this trial began

What’s the name of the YouTube channel covering this? Begins with an R, but I can’t recall the rest.

So no MSNBC allowed inside the court room.

Likely outcome:

Hung jury on Rosenbaum count.

NG on the rest.

I think some politically liberal jurors are afraid of blowback from friends and relatives if the verdict is NG on all counts. A hung jury on Rosenbaum count gives them cover.

    This would not make logical, and possibly not legal, sense.

    If this happens the judge should then make a directed verdict of NG on Rosenbaum.

    But chance this judge would do that is slim to none. And Slim is halfway out the door.

The mob was chasing down Kyle now claims that MSNBC is chasing the jury. The jury needs Kyle riding shotgun in their jury bus.

He’s on Dana now. He thinks it looks bad for Kyle

Has anyone heard if they’ve promised to give media a heads up when the verdict is reached? Like with Chauvin I think they promised an hour

Sounds like jurors who have school kids got the message today that the kids need to stay home tomorrow in case of a verdict and resulting violence. MISTRIAL

He feels the judge does not have the fortitude to call a mistral.. very disappointed in Kyles lawyers …very

More than a few Karen’s with
Masks on in the jury‘he doesn’t feel good about them

For anyone listening the Rikieta stream, I’m unclear how some of the things Barnes is saying isn’t violating attorney-client privilege. He is, put most charitably, nibbling around the edges of tactical decisions the Rittenhouse defense team made, decisions that he was a privileged participant in. It’s strange.

    c_programmer in reply to TargaGTS. | November 18, 2021 at 12:54 pm

    I think it is inappropriate for anyone who has been involved with a given case to live stream about the same case like this. It beings context to why one might kick him off a legal team. Maybe Kyle saw his social media first presence and the other lawyers appeared more professional. I agree that Richards hasn’t done a great job but Barnes seems super egocentric and vindictive.

      Barnes implied that had advance notice that KR would testify, but didn’t say anything about it until it actually happened. Once KR testified, then Barnes felt free to divulge some of his inside knowledge. So perhaps he’s walking close to the line, but not over it.

        DaveGinOly in reply to fast182. | November 18, 2021 at 4:16 pm

        Yes, Barnes is always very circumspect when he talks about active cases in which he is involved. I’ve heard everything he has said about the Rittenhouse trial, and when he talks about shenanigans that went on when he was involved it has nothing to do with the trial per se, but with the behavior of certain people involved in Kyle’s defense. The rest is speculation, as other attorneys are likewise speculating.

    Colonel Travis in reply to TargaGTS. | November 18, 2021 at 3:22 pm

    Yes, I don’t know where that line is drawn. You don’t want things to come out that could be used against the client. Isn’t that what attorney-client privilege is for? I’m just asking because I’ve always thought that’s what it was vs. a blanket silence from talking about a case. I really don’t know for sure. What I’ve heard him critique is the defense strategy and tactics, because it’s clear he wants to help Rittenhouse. That has never sounded improper to my untrained ears, but what the hell do I know.

    Today I did hear him say that now that the defense has closed its case he can speak his mind more.

    He’s always seemed to be a fair guy, but let’s say I’m an attorney who hired him to help and it ended up that we clashed, would I want him mouthing off on me afterward? No. He has his POV and I can see how it could rub someone the wrong way who was just as headstrong. I think the danger here (I can’t think of a better word) is to him and future work with other attorneys vs. the danger to Rittenhouse’s case.

      I agree completely with your last paragraph. No matter what the industry, everyone gets a little skittish working with a partner/supplier/customer who drops dimes on previous biz relationships. I’m always hesitant to hire someone who badmouths previous employer for that reason.

      With respect to what the lawyer is supposed to discuss about current or previous clients, ABA Rule 1.6 doesn’t leave a lot of wiggle room…

      (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

      …but, I would cede the floor to a practicing lawyer who might see it differently.

He says no decision today, Karen’s are enjoying themselves too much

MSNBC just got kicked out of the courtroom for the duration of the trial.
Apparently the police caught someone working for MSNBC following the jury bus.

There was somebody claiming the other day that one of the Karens had been voted foreperson of the jury.

Judging by that copy of the juror question, it appears that rumor is true.

    PhillyWatch in reply to Observer. | November 18, 2021 at 1:56 pm

    By a ‘Karen’ I assume you mean someone predisposed to a guilty verdict…and unyielding even as a lone holdout?

    Watching Rikieta on YT the lawyers discussed it. They seem to think having the foreman as the lone holdout really only prolongs the agony of deliberation. I guess since they won’t call the bailiff to inform the judge they’re hopelessly deadlocked.

    But can’t another jury simply tell the bailiff “I need to speak to the judge please” then tell him of the foreman’s intractability?

    Doesn’t help the inevitable mistrial, I suppose.

All hell is going to break loose. This trial has become Plus Ultra. Shattered. Broken in so many ways it can not be repaired. Disorder in a dysfunctional court. It is a dead horse nothing and is left of the carcass but bloody pulp to beat in to blood spatter. Repugnant to the Constitution and the very concept of a fair trial.

    fast182 in reply to Elzorro. | November 18, 2021 at 2:12 pm

    I think people have forgotten about all the riots in 2020 that magically ended when Biden took office. The tension is still there, building and building, just waiting for a release. The commies are trying to behave themselves with their guy in office, but like the scorpion and the frog, they just gotta burn it all down.

While this isn’t conclusive (I guess), it’s pretty damning about MSNBC…and frankly other court reporters if these CourtTV reporter comments are factually correct…

Should defense opted for a judge trial? At this point and with all the media attention- everyone knew about this trial and had made a decision already, that maybe a jury trial is no longer the defendants best option?

    c_programmer in reply to stl. | November 18, 2021 at 1:21 pm

    (1)  Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08 (2) (b), on the record, with the approval of the court and the consent of the state.

    You don’t have a right to a bench trial so it’s not just the defendants choice. In WI all 3 parties must agree. No way in hell Binger would make this a bench trial.

    TargaGTS in reply to stl. | November 18, 2021 at 1:24 pm

    Keep in mind that while the defendant can waive his right to a jury trial, the prosecutor has to agree to the waiver as does the judge. I don’t think there’s any way the state would do that in this case.

An appeal of this case would be thicker than the Sears Catalog and the Federal Budget if it listed all the errors on all sides.

AnAdultInDiapers | November 18, 2021 at 1:24 pm

Are NBC (named in the article update) the same as MSNBC (named by everybody else, and who I thought I heard the Judge name)?

Reports of school closure in Kenosha today and tomorrow. Could this be a sign of NG/HJ?

    Smooth23 in reply to lurker9876. | November 18, 2021 at 1:37 pm

    That was announced yesterday. They don’t know more than we do. If anything, this is another state sanctioned attempt at jury intimidation. Also, I believe some jurors probably have kids effected by this.

11:21 a.m.: Interesting news story from 2015, man killed by skateboard:

The other day I posted links to three separate cases in which people were killed with skateboards. It’s not rocket science to know that a skateboard is a deadly weapon when used as one. I’m irritated that defense didn’t bring in a use of force/self defense expert to actually testify in this mess. That’s inexcusable in my opinion.

    I don’t understand the failure of defense counsel to drive these points home. The prosecution made the “but they were unarmed” plea to the jury with respect to Rosenbaum, Huber, and JumpKick Man. Of course a skateboard is a deadly weapon.

    According to FBI homicide statistics, in pretty much every year, the weapon categories of blunt objects (a skateboard would belong in this category) and the category of personal weapons (hands, feet, fists, and etc) are used more often to commit homicides than all classes of rifles.

    Every assailant who was shot, or shot at, by Rittenhouse was armed with a deadly weapon. Any expert witness capable of reading FBI homicide statistics should have been used to drive this point home to the jury.

    healthguyfsu in reply to Chewbacca. | November 18, 2021 at 5:55 pm

    They brought in a use of force expert and the judge disallowed his testimony on use of force.

Another 2002 skateboard death with Manslaughter plea in WA

A skateboard swung at someone’s head is most definitely considered a “deadly weapon”:

“Man Found Guilty in Skateboard Attack Death of Good Samaritan”

“Pro skateboarder charged with first-degree murder after Wheaton man dies”

”Skateboarder, 20, kills 50-year-old man by hitting him over the head with his board in ‘act of self-defense’”

Regarding the Rekieta panel, I found it hilarious when the purple-haired attorney just suggested that when Gaige G. answered that he had had his gun pointed at Kyle’s head, only smart set attorneys like herself were able to immediately understand the significance of that moment and that dumb lay persons watching didn’t. No ego on that chick. Not at all. *eyeroll*

Okay, I’m turning off the Rekieta panel because Purple Hair dominates the conversation and won’t shut up. Someone let me know when she leaves the panel please.

Andrzejr2 (właso) | November 18, 2021 at 2:14 pm

In terms of provocation.
What did the jury see with the drone and what did Rosenbaum see while hiding between the cars? There’s also an FBI infrared film. In this video you can see that Rittenhous is running (then rather still with a fire extinguisher in one hand), then stops for no more than 1 second (then he is aiming at Ziminski?), And after that 1 second he starts running away from Rosenbaum. When did he provoke Rosenbaum?

From Ngo Telegram: NBC producer Irene Min Joo Byon has deleted her social media accounts. A journalist suspected of trying to photograph the jurors said Byon was his producer at MSNBC. The network has been banned from the courthouse for the remainder of #Rittenhouse trial.

    PhillyWatch in reply to MarkSmith. | November 18, 2021 at 2:19 pm

    The internet doesn’t care that the account’s deleted.

    What were her posts re:Rittenhouse leading up to yesterday evening. The world wants to know. The world NEEDS to know.

    Olinser in reply to MarkSmith. | November 18, 2021 at 2:37 pm



      MarkS in reply to Olinser. | November 18, 2021 at 2:43 pm

      The judge is a pussy! He is afraid of his shadow and the mob to the point that he makes Roberts look like a profile in courage

“Yesterday’s request by the jury to view controversial drone video suggests they are focusing on provocation issue; if they believe that is proven, then self-defense is arguably off the table for Kyle Rittenhouse”

I am sorry, but nobody can be convinced beyond a reasonable doubt that Kyle provoked the attack based on that drone video. If they conclude that, they were just looking for an excuse!

I still think it’s just a couple of holdouts looking for a way to find him guilty. There will NOT be a guilty verdict in this case.

    JHogan in reply to fogflyer. | November 18, 2021 at 2:34 pm

    My guess is a couple of screeching blue blood elitist self-righteous Karens are turning deliberations into a woke SJW struggle session. And one of them is the foreperson.

    Their plan is to force everyone else to listen to their badgering, scolding, and condemnation until everyone agrees to find Kyle guilty of something.

    If I was on the jury I’d wait them out until 2022. And beyond.

      Andy in reply to JHogan. | November 18, 2021 at 2:42 pm

      I suspect the Karens are also going to dig in and go for lesser charges if they can’t convict. HE MUST BE GUILTY OF SOMETHING OR HE WOULDN’T BE ON TRIAL.

      richtrue in reply to JHogan. | November 18, 2021 at 2:50 pm

      We have to hope that the other jurors have a clear understanding that any guilty verdict sends Kyle to prison for a very long time. As bad as it is to have to endure the haranguing of the woke mob inside that jury room, they need to fight. At this point, it’s bigger than Kyle-the right to self-defense is on trial here.

    Harry_the_Horrible in reply to fogflyer. | November 18, 2021 at 2:34 pm

    I want you to be right.

Question to lawyers if watching….

Can a judge send a judgement to appeal if he feels events merit? In other words: a judgment come down, he feels it’s wrong but doesn’t have sufficient reason to flat out declare mistrial.

I’m lay so lacking knowledge but the world being what it is I HAVE to believe there are rules of procedure a judge uses to determine these sorts of things. They even had pro-forma, standardized jury instructions on the charges against KR so why not some rules or guidelines for the judge to declare mistrials.

Also, any courtwatchers out there: Schroeder has a long career as a trial judge. What’s his record on declaring mistrials?

    Elzorro in reply to PhillyWatch. | November 18, 2021 at 2:44 pm

    Runaway Trial. Out of control. Train Wreck. Anatomy of a wrongful Conviction. Bizzare. Just to name a few.

    TargaGTS in reply to PhillyWatch. | November 18, 2021 at 2:52 pm

    No. If the judge feels there were legitimate constitutional, statutory or other jurisprudential infirmities with the state’s case, behavior or his own decision-making, then he has the power to dismiss the charges. He also has the ability to set-aside the jury decision. If he dismisses after verdict, the state can then appeal that decision. If he sets-aside the jury verdict, the state cannot appeal that decision.

    Will he do that? Hugely unlikely. As this is not a judge who likes to make interlocutory decisions, it’s hard to imagine he’s going to grow a pair and either set aside or dismiss after the jury has reached a verdict.

    With respect to his record, you would need someone with a Lexis or Westlaw to research that. But, I read this story several weeks ago about a case Schroeder presided over in 2017. It was a multi-felony case involving a gun, a video and potential prosecutorial misconduct. The Tl;dr is he DID NOT grant the defense’s motion to dismiss with prejudice.

      Smooth23 in reply to TargaGTS. | November 18, 2021 at 2:58 pm

      Really the circumstances between cases aren’t even similar..

        TargaGTS in reply to Smooth23. | November 18, 2021 at 3:10 pm

        Not in the circumstances of the alleged crimes. But instead, in the allegation that the state didn’t share Brady material. That’s the nexus.

      PhillyWatch in reply to TargaGTS. | November 18, 2021 at 8:15 pm

      Very interesting…so after verdict he can either set aside the jury’s verdict and the state cannot appeal, or he can dismiss the case which the state can appeal. Are they, respectively, what’s being referred to as “mistrial with prejudice” and “mistrial without prejudice”? or are they two entirely separate things?

    aramissebastian in reply to PhillyWatch. | November 18, 2021 at 3:16 pm

    If there’s a conviction, it’s the defendant who would file the appeal, not the judge.

    If the judge were to declare a mistrial, following a conviction, the prosecution would be able to appeal that ruling.

    The only thing that can’t be appealed is an acquittal. There the jury has the absolute last word.

Judge shut down the live feed. What next? MSNBC is doxing the jurors to get their ID to swoop in and badger them for interviews after verdict. Or…….give them to thier Antifa/BLM associates?

    PhillyWatch in reply to Elzorro. | November 18, 2021 at 2:45 pm

    Don’t have to give it to them. They know AntiFA members watch their news streams intently…and BLM in their offices.

    They’d claim FoP in a flash while they show live video outside a sitting juror’s home. I’ve no doubt.

Midfiaudiophile | November 18, 2021 at 2:58 pm

I’ve got a legal question that hopefully Branca or one of the other lawyers in the comments can answer: Cramin (FBI drone operator) testimony was stricken from the record, right? So why is the FBI IR video even in evidence? There should be no foundation, right?

Can highly-technical evidence like that be presented if just stipulated?

    lurker9876 in reply to Midfiaudiophile. | November 18, 2021 at 3:10 pm

    I am confused. I think there are two drone videos….at least.

      The FBI video is not from a drone. It’s from a manned aircraft, most likely a KingAir but I can’t say for certain. That video is recorded in Infrared and displayed in black and white. People say it’s “drone video” because it looks (and is) very similar to the drone videos the military occasionally releases when we splash a terrorist baddie. If it wasn’t for the confusion between the two videos, it probably wouldn’t be worth correcting.

      The actual drone video is from something like a DJI Mavic or Air commercial/prosumer drone and is the color video from down the street.

        Midfiaudiophile in reply to f2000. | November 18, 2021 at 3:24 pm

        I’m not sure manned fixed-wing vs. drone invalidates my argument, but thank you for the clarification. I read this after my own reply to lurker.

        PhillyWatch in reply to f2000. | November 18, 2021 at 8:23 pm

        I’m going to guess this all relates to the earlier assertions that a US Marshall was…maybe still is…present at these proceedings in a state court.

        I can easily imagine a country today where if KR walks on these charges, they drag him in on federal charges. That’s when the hi-res images are likely to come out at court. But BECAUSE they are a product of high-end anti-terrorist surveillance methods it will all be in closed court room sessions.

      Midfiaudiophile in reply to lurker9876. | November 18, 2021 at 3:22 pm

      There is the highly contested consumer drone video that the evidence fairy delivered to Kraus mid-trial, the one that had previously been played on F0x, that they are enhancing and zooming and slowing down in an effort to prove that Kyle lifted his rifle and that provoked Rosenbaum. That video is basically horizontal, and was filmed from an altitude of maybe 100 feet. The fact that Defense didn’t get the chance to cross-examine the producer of that video is probably not a great decision, but I think stipulation gets them past it.

      On top of that, there is an IR video from a professional FBI drone at 8000+ feet, heavily zoomed and with additional markers added (The one showing POI1, POI2, etc). The operator testified, off-camera due to professional/anonymity concerns, but his testimony was later stricken for being ‘incomplete’. Branca says something along the lines of ‘We didn’t see his testimony, so I couldn’t develop much of an opinion on it’. I’m not sure how this one is admissible, since it involves technology outside of common sense/experience. If you’re going to bring in people like Richie McGinnis, Drew Hernandez, Stepdad, etc… to add foundation to their relatively-well-understood cellphone videos, why should the FBI video be allowed?

        aramissebastian in reply to Midfiaudiophile. | November 18, 2021 at 3:57 pm

        My reaction is the exact opposite of yours: iff you’re going to bring in people like Richie McGinnis, Drew Hernandez, Stepdad, etc… to add foundation to their relatively-well-understood cellphone videos, why shouldn’t the FBI video be allowed?

        In other words, where are we as a country when the FBI’s evidence is considered inferior to that of private citizens?

          Midfiaudiophile in reply to aramissebastian. | November 18, 2021 at 4:07 pm

          I understand that there are a lot of people casting aspersions on the FBI as an organization and questioning its motives in various things, but that’s not my intent here (though I’ll point out that the FBI is a law-enforcement organization, generally speaking, and is probably more often than not on the side of the prosecution).

          I’m simply saying that the jury needs to know what types of conclusions can be reasonably drawn from a video from a mile and a half in the air, how they went about adding the POI circles to the characters in the video, how IR cameras generally work (You see this in the DarthCrypto point about how the rifle barrel would probably not be as warm as a human body and so would not be the same bright-white color as, for example, Kyle’s arm), etc. These are all things that you or I might understand at a very general level, but one cannot assume that the jury does.

I’m wondering Is this judge Schroeder the same judge who put the $2.5 million bale on Kyle?

civisamericanus | November 18, 2021 at 3:11 pm

I saw the FBI video and can’t make head or tail of it. The best that can be said in the prosecution’s favor is that Rittenhouse and Rosenbaum were moving roughly side by side in the same direction perhaps ten seconds prior to the shooting but the video from the ground, which is much clearer, shows that Rosenbaum was clearly the pursuer and aggressor during the last several seconds. I am not sure why the jury needed even an hour to figure this out, let alone three days.

I want to know why Richards has not yet brought the Judges attention to the rumors about Jumpkick Man,

If deadlocked (looking increasingly likely with every passing hour), any guesses how long the judge is going to make them deliberate?

This guy hasn’t been eager to make any decisions that marginalize the jury process. Given his preference for a jury verdict, is he going to ask the jury to keep at it, or allow them to quit and go home?

    aramissebastian in reply to TargaGTS. | November 18, 2021 at 3:31 pm

    In my jurisdiction, the jury has to send out a note informing the court that they’re deadlocked.

    Then, the judge then brings them in and reads them a standard charge, to the effect of, ‘if you can’t decide this case, then another jury is just going to have to (so don’t pass the buck if you can help it); and the court, and the parties have spent a lot of time and money and energy on this trial; please go back and try to reach a verdict, without surrendering your deeply held convictions, of course.

    Sometimes this works. I couldn’t tell you the statistics.

    If the jury comes back again, after a suitable interval, declaring itself hopelessly deadlocked at that point, the judge declares a mistrial, and schedules the re-trial.

    Olinser in reply to TargaGTS. | November 18, 2021 at 4:02 pm

    It depends on both the judge, and the breakdown of the jury. The judge regularly polls the jury so he knows how many are for/against on each particular count, and whether any votes are shifting, so a lot is left up to the discretion of the judge.

    For instance, if the jury started at 6-6, and has moved over 4 days to 10-2, then they are making progress and close to a decision, and would let them continue for some time.

    They may also have already come to a decision on some counts – again, showing progress, so the judge will allow them to continue.

    If, as has been claimed by many sources, it started at 10-2, and is STILL 10-2 with no progress, then most judges would throw in the towel.

3:16 pm . . WHERE IS THE JURY ? ?

Obviously there are some holding out for conviction.
> Evidence be damned
> Burden of Proof be Damned

Sometimes biased people that try to get on high-profile cases. That may be the case here. I suspected there was a reason Binger was so desperate to give the jury some pretext for a conviction. I think he believe 1 or 2 jurors were useful idiots / ideologues like he is.

Crazy conspiracy theory == maybe these Antifa people have a secret signal – so Binger knew at least one was on the jury ?

    TargaGTS in reply to Ben Kent. | November 18, 2021 at 3:44 pm

    I pray it’s someone holding out for a conviction rather than someone holding out for acquittal.

      aramissebastian in reply to TargaGTS. | November 18, 2021 at 3:50 pm

      Legally it doesn’t really matter. A hung jury is a hung jury in the sense that there isn’t a unanimous verdict as the Constitution requires in criminal cases.

        aramissebastian in reply to aramissebastian. | November 18, 2021 at 4:02 pm

        I always wear the stars and stripes on my lapel in court.

        And I always tell the jurors “God bless you.”

        Once in 25 years of trying cases, an adversary objected.

        And the judge said to him, “What’s he supposed to say — Go to Hell?” LOL.

        No, my point is that if it’s one person holding out for acquittal with 10 others wanting a guilty verdict, that’s bad news for Kyle because if that person folds….

        If he’s got 10 not-guilty and 1 guilty holdout, the worst he’s going to do is hung jury.

    aerily in reply to Ben Kent. | November 18, 2021 at 3:46 pm

    Binger’s Star Wars rebel alliance lapel pin. The rebel alliance or resistance logo has been used as a DSA and Antifa dogwhistle since at least 2016 in Illinois. Or maybe a full grown man and prosecutor likes star wars and thinks the lapel pin is appropriate to wear in a professional environment.

3:30 pm . . . WHERE IS THE JURY ? ?

Coming to end of 3 days. Chance of hung jury is increasing with each passing hour.

    aramissebastian in reply to Ben Kent. | November 18, 2021 at 3:35 pm

    At this point, I can almost guarantee it’s a hung jury on at least some of the charges.

    BTW, that doesn’t mean they haven’t reached a verdict on some of the charges.

    We won’t know until they send out a note.

Does this judge have any idea what he will unleash if he voids a guilty verdict with a mistrial ruling?

    Oracle in reply to MarkS. | November 18, 2021 at 3:42 pm

    I believe no man in the US is praying with more fervor than this judge for a not guilty verdict. I also think he most likely will not void a guilty, but play with the sentencing. I hope I am wrong.

      lancebaby in reply to Oracle. | November 18, 2021 at 4:38 pm

      I cannot disagree more. It is totally in his hands to correct the wrongs of the trial that he, BTW, allowed to happen. He could stop the madness right now.

      He won’t do anything and I don’ think he really cares based on his behavior.

      And if guilty, he will follow the sentencing guidelines.

    Exiliado in reply to MarkS. | November 18, 2021 at 3:42 pm

    That should not be a concern. He should do what’s right.

    Rittenhouse is not guilty and the prosecution has been awful, unethical. and downright lawless.

    aramissebastian in reply to MarkS. | November 18, 2021 at 3:47 pm

    If he does, it’ll just be appealed by the prosecution.

    Unlike the jury’s verdict, any ruling by the judge is appealable.

    Olinser in reply to MarkS. | November 18, 2021 at 3:59 pm

    He’s a coward. He’s doing his best Chamberlain impression and hoping against all logic that he won’t have to actually make a decision.

What I find amazing is that the defense came about as close as you could to innocence beyond a reasonable doubt yet there is still deliberations showing that a fair trial when the Democrat Party has your number is even with a good judge borderline impossible.

    PBM in reply to Danny. | November 18, 2021 at 3:55 pm

    When the prosecution will lie, cheat and steal they can simply wear down the judge and the jury. A judge should have reviewed the evidence early on and thrown out the case for lack of evidence before trial; or Schroeder should have already declared a mistrial and allowed the defense an opportunity for a change of venue. What’s horrible about this case is how it shows that a prosecutor willing to go forward on any charge can simply ruin a life even with an acquittal. There needs to be a higher bar before moving on to trial. Just saying, “let the jury decide” doesn’t mean as much as Schroeder seems to think it does.

3:45 pm . . .WHERE IS THE JURY ?

Three FULL DAYS is way too much time for anyone who has followed this case closely. The only rationale explanation is that 9 or 10 if the jurors are trying to convince some holdouts. Or trying to negotiate a final outcome so they can go home. It becomes a war of attrition. Like any marathon. Those who can hold out longest win.

    aramissebastian in reply to Ben Kent. | November 18, 2021 at 3:59 pm

    Funny story: I had a civil jury out for 3 days, before they returned a verdict in favor of my client. When I spoke with them afterwards, they were deadlocked for 2 days because of one juror, whom they all ganged up on. Well, on the 3rd day, the problem juror just didn’t show, and the remaining jurors were able to reach a verdict.

    RandomCrank in reply to Ben Kent. | November 18, 2021 at 4:26 pm

    They really didn’t deliberate for 3 days, given how much of Day 2 was occupied by legal arguments in the courtroom

Mr. Branca, do you have an alternative way of getting updates?

Juror 54 who signed the jury note to the judge was also a person of focus in jury selection, 54 is mentioned numerous times in Andrew’s coverage

    Smooth23 in reply to buck61. | November 18, 2021 at 3:55 pm

    A quick search there shows no mention of 54..

      buck61 in reply to Smooth23. | November 18, 2021 at 4:26 pm

      within Andrew’s live blog

      Chirafisi: Anyone else #54.

      #54: Drove down 2-3 days after.

      Chirafisi: Still substantial damage?

      #54: Yes.

      Chirafisi: Keep you from being impartial here?

      #54: No.

      #54: BA

      #54: Knows some of the witnesses named, but could set that aside, put in well.

        Ben Kent in reply to buck61. | November 18, 2021 at 5:09 pm

        # 54 = Knows some of the witnesses ? ? Which ones ?
        > > I hope its not the Antifa guy who got his arm shot.

        PhillyWatch in reply to buck61. | November 18, 2021 at 8:33 pm

        That’s of concern to both prosecution and defense. I’d like to assume someone bothered to ask which witness #54 knew; every time I’ve been in voir dire they did when someone admitted it.

        And then, it might be a defense witness. It might be a prosecution witness who’d assaulted #54 in the past. It’s a concern either way you look at it.

      jhkrischel in reply to Smooth23. | November 18, 2021 at 4:35 pm

      You have to expand (“load more”) the comments before you can search for “54”

    Colonel Travis in reply to buck61. | November 18, 2021 at 4:00 pm

    Knows some of the witnesses named, but could set that aside,…
    Yeah, that’s a lie.

Anacleto Mitraglia | November 18, 2021 at 3:59 pm

maybe – just maybe – they’re done one hour ago, but they wait until the jurors are safely home to say it’s acquittal?

    No, it doesn’t work that way. Jury needs to come back into the court room to hand over the verdict.

      Anacleto Mitraglia in reply to dawgfan. | November 18, 2021 at 4:05 pm

      How do you know they didn’t? They’ve been offline for a while, by now.

      aramissebastian in reply to dawgfan. | November 18, 2021 at 4:11 pm

      So that they can be ‘polled.”

      In other words, the verdict is written down on a sheet of paper.

      But there’s a right to have the court question each of the jurors in person, one by one, after the paper verdict has been read out, whether by the foreperson, or the clerk of the court, “Is that your verdict?” to make sure there’s no mistake.

    Unfortunately that’s not the case here. The jury is present when the verdict is read aloud.

4:00 pm . . . WHERE IS THE JURY ?

What juror believes – beyond a reasonable doubt – that Kyle’s use of self defense was not justified under the law ? I would love to hear an explanation with reference to evidence.

This case should have been moved out of Kenosha. With media and local political influence – and now intimidation from rioters – how could they have ever expected a fair hearing ?

    darwin in reply to Ben Kent. | November 18, 2021 at 4:04 pm

    Only 3:00 their time, but I get your points

    Elzorro in reply to Ben Kent. | November 18, 2021 at 4:25 pm

    Guarantee….if only Kyle had stayed home is one of their talking points. Not the rioters, Kyle. That is the way liberals think. They think the Constitution is just an old piece of paper not relative to modern life. Just ask one. He will tell you.

OMG why is it taking so long?!

    stogiefan1953 in reply to BillyHW. | November 18, 2021 at 4:05 pm

    Karen’s on the jury arguing for conviction…they will never vote for acquittal

    Colonel Travis in reply to BillyHW. | November 18, 2021 at 4:05 pm

    Because the defense and judge were terrible at their jobs!

      PhillyWatch in reply to Colonel Travis. | November 18, 2021 at 8:41 pm

      And so was prosecution terrible at their jobs. They put on a bona fide sh**-show that blew up gloriously before they came across the video the tooth fairy left them and a new strategy emerged. Which was, either sneak in doctored video even with Brady implications or crash and burn while hoping a mistrial emerges with another chance to kick the cat.

The videos on the ground were introduced through the people taking them testifying, weren’t they??

I STILL wonder why so little of the FBI drone video was introduced and we all seem to have forgotten the full day of testimony from the FBI agent that was broomed.

Why did the judge let the amateur drone video in with no foundation?

aramissebastian | November 18, 2021 at 4:04 pm

Why’s it taking so long?

Because these jurors are probably as divided as the rest of us.

I’m sure there are strong opinions both ways, for and against guilt.

    stogiefan1953 in reply to aramissebastian. | November 18, 2021 at 4:09 pm

    Usually—not always, but usually— the longer it goes the more entrenched the jurors become

    “divided as the rest of us”

    Most of those who watched the trial closely are NOT divided. The only ones divided are people relying upon news accounts and 3rd party sources. I have talked to 14 people who watched the trial closely. They have a range of backgrounds and different political views. All 14 now say they would acquit. Some went in with a negative view of Kyle. Most are also disgusted with the prosecution’s tactics.

      stogiefan1953 in reply to Ben Kent. | November 18, 2021 at 4:15 pm

      good points BUT when you have a rogue juror, everything changes and ‘what should be’ goes completely out the window

      Right now at this point in deliberations, the best Rittenhouse can hope for is a hung jury

      JHogan in reply to Ben Kent. | November 18, 2021 at 4:17 pm

      Yeah, I haven’t noticed anyone on LI with a position other than NG on all charges.

The how a drone from the FBI got there and then is my question, hopefully some of the jurors as well.

    BillDThewall in reply to Skip. | November 18, 2021 at 4:54 pm

    Curious how that video tracks Kyle. Almost like he was singled out for surveillance. But the 3 letter agencies would never do anything like that.

    TargaGTS in reply to lurker9876. | November 18, 2021 at 5:00 pm

    Oh. My. Lord. This is they guy the state said they ‘couldn’t find?’ I said this yesterday, but it bears repeating: The prosecutors have lied so much during this trial, I wouldn’t be surprised if there names really weren’t Binger & Krause.

4:15 pm . . . WHERE IS THE JURY ?

At this point, it looks like – which ever juror can hold out to Thanksgiving probably decides this case. Whomever can hold out for only 4 more business days.

The CALENDAR decides the case.

    stogiefan1953 in reply to Ben Kent. | November 18, 2021 at 4:16 pm

    Great point!

    stogiefan1953 in reply to Ben Kent. | November 18, 2021 at 4:18 pm

    The holdout juror is thinking “this is MY trial and I’m gonna hold out until whatnot I want to happen happens.
    Also thinking “ I get a free meal AND I get to go home at night, this is a breeze.,”

      Holdout wants to be an Antifa hero.

      It reminds me of this movie

      Jobless loser Tommy Collins is sequestered to be a juror in a serial killer trial. He does everything he can to prolong the trial and deliberations to take full advantage of the free lodging and food.

        PhillyWatch in reply to darwin. | November 18, 2021 at 8:47 pm

        I’m retired. I’d love the free food and would have asked the judge to ‘sequester me….please!’ just to have a few nights of peaceful, quiet sleep away from home. So yah, I’d be ornery and hold out as long as I could…until I thought the other’s would beat me with their canes or the foreman is about to throw in the towel and get the judge.

    JHogan in reply to Ben Kent. | November 18, 2021 at 4:22 pm

    Calendar wouldn’t decide the case if I was on the jury. NG on all counts. I would not budge.

    I have to look at myself in the mirror every morning and I need to respect what I see. I could not do that if I sent an 18 year old kid like Kyle who I though was innocent to prison.

    It is up to the judge to decide when to declare the jury hung.

      stogiefan1953 in reply to JHogan. | November 18, 2021 at 4:35 pm

      I’m with you on the NG on all counts,

      but now this far in (3 days going on 4) you have to put yourself in the juror’s shoes…
      You might be fearful your vote AND your identity may be splashed ALL OVER SOCIAL MEDIA…
      do u want to chance the mob coming and burning your house down with you and your family in it??
      do u want a maniacal goon taking a member of your family and killing or maiming them as an act of revenge for your NG verdict??
      Be careful when you say that there is a certainty of you acting one way

        That’s a risk you have to take. Soldiers in war take far greater risks.

        The Bible specifically admonishes judges (and that would include jurors) “Do not be afraid of any man, for judgment belongs to God”.

The jury is focused on not having their houses burn down and the good folks of antifa following their children home.

No TV feed and no updates… is the jury back to deliberations?

Why is this taking so long? They were at the trial, front row. Is it a matter of debate? Those videos are not going to show anyone raiding the rifle.

smalltownoklahoman | November 18, 2021 at 4:22 pm

Just got home from running some errands, man that reporter for MSNBC! Guess we shouldn’t be surprised by this but man: pure jury intimidation! If it comes out that he was following orders from a higher up I hope MSNBC gets fined good for it, maybe even whoever had this guy follow the bus be brought up on charges themselves!

Can anyone speculate on what the high-res video might show that would cause the prosecution to prefer to submit the low-res version as evidence w/o mentioning the existence of the hi-res? I’m just trying to understand the reasoning for this.

    The Friendly Grizzly in reply to Sopater. | November 18, 2021 at 4:27 pm

    It likely shows something that would blow up their case. Remember, for prosecutors it is not finding justice. It is hanging another scalp off their belt.

    richtrue in reply to Sopater. | November 18, 2021 at 4:40 pm

    The lo-res version does not show the relevant action in any substantial way- it’s blurry. But what the prosecution did is take the hi-res version, enhanced it and had an expert work on it for 20 hours, and came up with a frame or two that they claim shows Rittenhouse aiming his rifle at Ziminski, which in the minds of the prosecutor, is provocation. The provocation negates self-defense. Literally, this case is now hinging on an altered frame of video (of questionable evidentiary means) that shows a blurry image.

      PhillyWatch in reply to richtrue. | November 18, 2021 at 5:21 pm

      What the prosecution DID was help people’s imaginations. A juror not supposed to speculate and imagine, but once the idea is planted it’s hard to shake it.

      If he were using forensicaly valid evidence that was available to the defense in time for their expert to could make their OWN enhanced images and rebut their assessment is one thing. But that didn’t happen.

4:30 pm . . . WHERE IS THE JURY ?

Is there someone on the jury trying to be an Antifa hero ?

If some jurors are using fear for themselves or their families instead of only the evidence they saw in court, that should be communicated to the judge so they can be replaced with alternates.