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Rittenhouse VERDICT WATCH Day 2: Defense Files For Mistrial With Prejudice

Rittenhouse VERDICT WATCH Day 2: Defense Files For Mistrial With Prejudice

Defense files motion for mistrial with prejudice; State withheld high-definition version of “unicorn” drone video

Today completed the second day of jury deliberations in the trial of Kyle Rittenhouse, with no verdict being achieved before the jury was sent home for the day.The jury deliberations take place in private, of course, so we can only speculate as to what discussions are taking place amongst the 12 jurors.  That doesn’t mean the day was uneventful, however, as the defense once again asked Judge Bruce Schroeder for a mistrial–notably, this time a mistrial without prejudice, meaning that Rittenhouse would be subject to a retrial on these charges.

This newest request for a mistrial is based primarily on the undisputed fact that the prosecution had provided a copy of drone video to the defense that was 1/16th the resolution of the version that would be actually shown to the jury during the trial.  With no way to know that the high-resolution version existed, the defense now tells the court that they would have shaped their legal arguments, and prepared their client to testify, different than they did with only the low-resolution version in their possession.

The drone video is particularly important because it is the only evidence offered by the State to support their argument that Kyle Rittenhouse has no privilege of self-defense in this case because he provoked the attacks upon himself, and therefore the State need merely prove provocation, rather than have to disprove self-defense itself.

The act of provocation–specifically, the claim that he pointed his rifle at others, provoking Josep Rosenbaum to chase him across the Car Source parking lot–is supported by no other evidence but for this video.  Without the video, then, there is no act of provocation, and the prosecution would then have the unlikely-to-win task of attacking Kyle’s claims of self-defense directly.

The prosecution has a Constitutional obligation to provide the defense with the evidence to be used against the defendant in court and failed to substantively meet this obligation by providing the defense with only a low-resolution version of this video, rather than the high-resolution version actually used as evidence before the jury.

Assistant DA Kraus had a laundry list of excuses for why the defense ended up with only a lower-resolution, smaller file size, different file name version of this critical drone video, including blaming everybody but himself–indeed, both this colleague ADA Binger and lead Detective Howard were blamed by Kraus, as well (of course) as the defense itself.

The judge was unconvinced by these excuses and suggested the possibility of putting the prosecution on the witness stand themselves to testify under oath as to how this video mix-up occurred.

Interestingly, a photo purportedly of ADA Kraus’ laptop screen being projected onto the large 4k TV screen in the courtroom shows the presence of an imaging software named Handbrake. I lack any technical expertise or experience with Handbrake software, but apparently, a core purpose is to generate low-definition versions of high-definition videos.  This has led to speculation that the provision of the low-resolution video to the defense was not an accident at all, but rather an intentional act of the prosecution.  If so, this would be prosecutorial misconduct sufficiently grievous to not only warrant a mistrial with prejudice but certainly misconduct perhaps even malicious prosecution charges.

In fact, Judge Schroeder even cautioned the prosecution that he had warned them that there would be a day of reckoning about this drone video left on the prosecution’s doorstep mid-trial, and the very fuzzy “enhanced” still-image photographs pulled from the video that supposedly shows Rittenhouse pointing his rifle in an act of provocation–the photos that defense Attorney Marc Richards referred to as “hocus-pocus, out of focus” during his closing argument.

Today was not to be that day of reckoning, however, as the judge simply took the defense motion for a mistrial without prejudice under advisement.  He appears to be leaning towards not ruling on this third motion, or the two prior, before waiting to see if the jury will return a verdict of acquittal.  If they do, then the whole mistrial issue becomes moot. On the other hand, if the jury returns any guilty verdicts, the judge can theoretically revisit these mistrial motions then.

That the drone video was playing an important role of some kind in the jury’s deliberations became clear this afternoon when they asked to be able to view the video as part of their deliberations, and on the large 4k TV screen in the courtroom.  This was permitted by the judge, who had the courtroom vacated so the jurors could deliberate in privacy, as is the norm.

As for why the defense, which had been asking for a mistrial with prejudice, would today ask merely for a mistrial without prejudice, we can only speculate that the defense may be concerned that with the third day of deliberations rapidly coming to a close, and the prospect of a quick acquittal now only a fond and unrequited hope, that the jury might have begun leaning towards a conviction on one or more charges.

A mistrial without prejudice would be a better outcome than a conviction, despite the awareness that a re-trial would surely follow.  With presumably adequate financial resources available for a second trial, Rittenhouse may be thinking that a second shot with a different legal defense team and more aggressive jury selection might better position him for complete acquittals on all counts the second time around.

Highlights of the Day

Here are the major highlights of the day, accompanied by their corresponding video clips from the courtroom, as they were tracked in today’s VERDICT WATCH post:

11/17/21: Discussion during jury instruction hearing (charging conference) on Friday, November 12, 2021, where prosecution reveals it has a higher-resolution version than what it provided to the defense:

The entire key to the prosecution’s theory of the case is the purported provocation of Rosenbaum by Kyle Rittenhouse pointing his rifle at another person. This video is the only evidence the prosecution has ever offered in support of this theory. The high-definition version which was used to support the provocation theory in closing argument was never provided to the defense, and particularly not prior the defense putting Rittenhouse on the witness stand to testify–thus the defense was unable to properly prepare their client to testify. Naturally the defense was also not properly able to prepare its own closing argument to counter the prosecution narrative of provocation as purportedly demonstrated in the high-definition version of this video.

11:05 a.m.: Jury sends notice to court saying they want to view some of the videos.  Defense concerned about the drone video. Also complaining about when received drone video.  Also, defense attorney Richards tells court that the manual for AMP imaging software apparently says methods used in this case are intended for investigative purposes only, not for forensic use in court.  When Judge Schroeder asks Binger if that’s true, Binger response is that information is not in evidence.

12:55 p.m.:  Parties back in court, jury wants to see videos, hashing out the procedure, limits on viewing, especially “militia” video and drone video are problematic. Prosecution explains away providing defense with low-resolution drone video to apparent satisfaction of Judge Schroeder–Judge wants to take testimony from experts on this issue, doesn’t believe prosecution credible on this issue. Jury to be given access to some videos, ones they requested that apparently do not include videos about which the defense has raised objections.

2:45 p.m.: Defense makes verbal motion for a mistrial WITHOUT prejudice.  Prosecution makes laundry list of excuses over the state not providing defense with high-resolution drone video.  Judge warns prosecution that he’d warned them there would be a day of reckoning over this drone video–and then says he’s not going to make a decision now, inclined to see what the verdict is going to be.

3:15 p.m.: Jury being allowed to view Exhibit 5, the drone video, in the courtroom. Courtroom vacated so only jurors present. Will be allowed to view drone video as much as they like.

4:40 p.m.:  Court recessed for the day with no verdict, back at 9:00 a.m. tomorrow.

Verdict Watch Day 3

Be sure to join us tomorrow right here at Legal Insurrection for our ongoing VERDICT WATCH coverage, as await the jury’s determination of Kyle’s fate.

Until then:

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


The prosecutors KNOW that withholding the evidence is wrong, unethical and illegal, but they did it anyways, on purpose, with ill will.

Declaring a mistrial with prejudice should be step one,
Disbarring the prosecutors should be step 2.

    You misspelled “Beheading…” 🙂

    The prosecutors KNOW that withholding the evidence is wrong, unethical and illegal, but they did it anyways, on purpose, with ill will.

    The prosecution did it because they know they can get away with it and pay no penalty. I very seriously doubt that Pontus Schroeder will hold them accountable.

    We are inexorably moving towards mob rule.

      Sure seems that way… but Schroeder did seem like a rule follower. Not a courageous one, but still, he might just be pissed enough.

        DaveGinOly in reply to amwick. | November 17, 2021 at 11:37 am

        Even a bad judge doesn’t appreciate being played for a fool. The reaction from such a judge might be personal, and not because of the law, but so long as he reacts by using the law as his means of retribution, the result will be the same.

      Let us not make a rush to judgement (like the Left does) regarding judge’s actions at this point. If the jury comes back with a not guilty verdict the judge can still take legal actions against the prosecutors and the DA’s office. And submit report request to state bar association. If a guilty verdict the judge still has the option to declare a mistrial with prejudice which means it’s over and Kyle is free with no chance of being tried again. The judge can bring action against the DA’s office, it’s prosecutors and forward the charges to the WI bar association and request disbarment. I personally would prefer to keep all my options on the table.

        Rush to judgement?
        We know what the prosecution did and we know the judge knows.
        This is a slam dunk self defense case and a slam dunk unethical/illegal action by the prosecutors.
        Going slow is quite simply ridiculous or corrupt.

      This judge is a coward.

    lmartinjr in reply to Exiliado. | November 17, 2021 at 9:10 am

    The prosecutors 100% knew what they were doing. At the time the jury instructions were being negotiated and the judge was sitting feet away from the TV screen the prosecution made a statement that “their drone footage” was better than the one the defense was sharing on the TV screen. At that point the lady sitting at the defense table said something to the effect of “this is the one you gave us.”. That would have been the appropriate time for the prosecution to admit a mistake and provide the defense with the video.

      CommoChief in reply to lmartinjr. | November 17, 2021 at 3:31 pm

      Yeah the claims of tech illiteracy by the prosecution are BS. If this were 10 or 12 years ago prior to widespread use of file transfer where one might not be aware of the effect of compression on the file in transfer then maybe it would be plausible. The prosecution team is just that, a team. They have collective knowledge and access to tech support personnel to explain and assist. That they chose not to do so or worse made a conscious decision to submit an incomplete file to the defense is inexcusable error.

      IMO, the Judge wants to keep this in his pocket and avoid a ruling unless he must. If the jury comes back with a not guilty verdict then he is at leisure to act. If they come back with a guilty verdict then he can receive briefs, hear arguments on the issue and rule that the video provided to defense was incomplete and detrimental to justice. Then he can dismiss with prejudice should he determine that is the only way to administer justice in this case.

      The longer this plays out, the more chances the desperate prosecutors have to implicate themselves in a RICO action.

      ConradCA in reply to lmartinjr. | November 17, 2021 at 4:31 pm

      File transfer uses compression to make the transfer fast. It doesn’t change the content of what it’s transferring. A person has to choose to reduce the video size before transferring it.

    UserPeabody in reply to Exiliado. | November 17, 2021 at 9:25 am

    If we lived in a just law and abiding country the prosecutor would be in jail.

    JHogan in reply to Exiliado. | November 17, 2021 at 9:28 am

    For the prosecution a mistrial with prejudice is preferable to a not guilty verdict.

      f2000 in reply to JHogan. | November 17, 2021 at 9:40 am

      Maybe. But getting a guilty verdict and then having it tossed out because of your conduct probably doesn’t play well, even if you try to blame the judge after.

    buck61 in reply to Exiliado. | November 17, 2021 at 10:03 am

    There was evidence brought in late or witheld to the Chauvin case as well, that case wasn’t overturned or the charges dropped. Parts of the toxicology report ( Carbon monoxide level) were allowed in late. They only turned over part of the tox report not the entire report.

    I am ok with trial by combat. Didn’t Fatlock and LittleBinger say anything else was cowardly?

      henrybowman in reply to EBL. | November 17, 2021 at 4:02 pm

      They said on the record that everybody has to take a beatdown once in a while.
      This is the ideal time for theirs.

    tekovyahoser in reply to Exiliado. | November 17, 2021 at 11:08 am

    Simple fix. Just drop them off at the nearest riot site and if they can fist-fight their way out, they can live.

The only way this behaviour will be stamped out is thought things like dismissal with prejudice and then some personal level of accountability against those responsible for a mistrial (disbarment AND/OR financial compensation for the cost of the wasted trial from the prosecutors responsible). I know, Im more likely to win lotto then see liberal prosecutors held accountable for their actions.

AnAdultInDiapers | November 17, 2021 at 9:00 am

Andrew there are also a number of reports overnight that the identity of ‘Jump Kick Guy’ is known to the prosecution, with one suggesting that they declined to bring him in as a witness as he required immunity in order to testify.

Is it reasonable to expect this to be raised in court this morning, and if found true added to the motion for mistrial with prejudice?

    I would certainly like to see the Judge examine Binger and Kraus about the reports they knew Jump Kick’s identity: what they know, when, how, whether this was shared with the Defense and when. The the killer question, assuming they admit knowing: why did they continue a charge of Reckless Endangerment of “an unknown male” (i.e., Jump Kick Man) right up through and including Jury Instructions, when they knew his identity? Was the Defense denied the chance to depose this witness and present him if they chose? How is all this not a fraud on the Defendant, the Court, and the Jury?

    They understood how direct and cross would have gone. They would have placed another liar on the stand, and dug their hole deeper than it already was.

    Direct: And what did you do to provoke the defendant to fire his weapon at you?
    JKM: Nothing. I was just passing through. The defendant fell in front of me, and I was just jumping over him.

    Cross: I refer you to this video.
    JKM: *crickets*

Rusty Shackleford | November 17, 2021 at 9:02 am

I am hoping for a Kyle Rittenhouse Menthos commercial where Kyle takes his AR-15, shoots a bunch of rioters, then takes a breathmint, and gives a cheesy thumbs up to the camera.

“Kyle is fresh and full of life…..unlike the rioters, who are now dead.”

Is this the same HD video that the FBI clown testified was lost?

    jmare in reply to Paddy M. | November 17, 2021 at 9:07 am

    No, I believe it was the drone video brought by the evidence fairy and then subjected to the hocus-pocus out of focus “expert”.

    darwin in reply to Paddy M. | November 17, 2021 at 9:07 am

    No, that was the infrared video from directly above. This was done by someone with a quadcopter.

    I have wondered all along why the FBI only shared afew seconds of their aerial fottage when they were obviously recording all night

      PhillyWatch in reply to darwin. | November 17, 2021 at 10:16 am

      I believe FBI likes to keep things as close to vest as possible in order to not give bad actors insights into “means and methods” that they may defeat them. Considering that bad actors include bona fide world class terrorists it seems reasonable.

      But when using these methods against average Americans trying to save their own life it’s chafing. And when such operations are run by a highly politicized Dep’t of Justice it begins to get even more troubling.

      PhillyWatch in reply to darwin. | November 17, 2021 at 10:31 am

      I forgot to add: a highly politicized DoJ that lacks adequate government oversight. AND, as well, is supported by a partisan media that looks the other way whenever it fits their narrative.

      DaveGinOly in reply to darwin. | November 17, 2021 at 11:47 am

      The FBI would not have known beforehand of the value of following Rittenhouse (or any of his attackers) around that night. I imagine that the edits are of footage taken that weren’t relevant to the case, as they directed their attention from one place to another as developments on the ground attracted their attention.

      I present this as a possibility. I would find it even more suspicious if the FBI did focus exclusively on Kyle all night.

The copy I saw was filed Monday, 11/15. It seems like the deliberations are proceeding as though nothing happened.

So let’s see, you’ve got the 5th ammendment violation, the propensity evidence violation, a disclosure violation, and, if Twitter is to be believed, 2 jurors afraid of “backlash” for the verdict with protesters chanting “no justice, no peace” right outside the courthouse and people taking their pictures and making implied threats against the jury. I know Schroeder won’t declare a mistrial before the jury returns a verdict, but he really should.

    luckystars33 in reply to jmare. | November 17, 2021 at 10:57 am

    And they knew who Jump Kick Man was and lied about it.

      If they lied about not knowing the identity of jump kick man, then withholding that information appears sufficient grounds to overturn a verdict. That alone would be a mistrial.

      Of note, all the grounds for mistrial here are based on bad faith acts by the prosecution. Most mistrial motions are based on decisions or actions by the judge.

I think the judge will be told that some jurors are not deciding based solely on the evidence presented in court. but by what may happen to themselves and their families. They will be removed and replaced by alternates. If enough are removed and/or alternates say they can’t decide only with the evidence, the judge will declare a mistrial or decide it himself

    The judge can set aside a guilty verdict and enter a not guilty verdict. He can’t enter a verdict of guilty unless the jury finds the defendant guilty.

Blaise MacLean | November 17, 2021 at 9:12 am

There is also an outstanding and undecided motion for dismissal with prejudice. So now there are two. Maybe the Judge left the prior one undecided so as to put the Prosecution on notice that he was watching their conduct moving forward. If so, the revelation that the prosecution failed to disclose this information to the defence puts the Judge in a difficult position. The Jury has begun deliberations. Should they have seen this video? Is it exculpatory (probably…if it was inculpatory the prosecution would have used it)? If so, that’s a big thing.

I recall that throughout the trial the prosecution was providing disclosure very late. The blurry photo came from a video that appeared at the last minute courtesy of the “video fairy” as Mr. Branca put it.

The prosecution has conducted itself throughout the case in a clumsy, sloppy way (didn’t they interview their own witnesses before putting them on the stand?) and to that is added multiple examples of seemingly unethical conduct. This video is just the latest.

I don’t know what this judge is supposed to do. Clearly there need to be sanctions but the case has gone to the jury. A simple mistrial plays into the prosecution strategy and effectively rewards them by giving them a reboot of the case. A mistrial with prejudice will be consequential for the city.

The media has done a tremendous disservice through their deceitful framing of the Jacob Blake shooting at the outset. The ripple effect of their intellectually dishonest narrative is still wreaking destruction.

    I think this motion covers the same ground. It might be the only one filed.

    A mistrial would also play into the hands of the left, as they could say Rittenhouse got off on a technicality instead of being found not-guilty by a jury.

      PhillyWatch in reply to Otto. | November 17, 2021 at 10:27 am

      But there look at the larger picture….

      Even conservative legislators are pushing for more discretion on the part of prosecutors to influence trial outcomes. Do we REALLY want that in view of what can happen?

      A mistrial with prejudice here is a very clear warning to them that you’ll probably do more harm than good.

      Everything “plays in the hands of the left”. Do the right thing and let the chips fall where they may. I believe the right thing would be for the judge to declare a mistrial with prejudice. That way we move the ball for a first down and can begin the process of disbarring (prosecuting?) the state prosecution team. Having nothing to do with the jurors. there is no reason to after them nor their family.

      The BLM/Antifa thugs are going to riot anyway so let’s have at it knowing this court did the right thing. Surrendering to them by rigging a guilty verdict out of fear is just plain wrong and must stop. If we keep going down that path of surrender, it will never end. We are fighting a communist takeover and cannot afford to lose. Let’s start winning on the ground.

    DaveGinOly in reply to Blaise MacLean. | November 17, 2021 at 11:53 am

    “A mistrial with prejudice will be consequential for the city.”
    The city and the DA’s office are responsible for this shit-show. (The city for not preventing or putting down the riots, the DA’s office for obvious reasons.) Schroeder should declare a mistrial with prejudice, and tell the city and the DA’s office, “Sometimes you have to take a beating.”

    The failure to produce the video means the defense did not have an opportunity to (1) do their own “enhancements” on the video and see what it looks like, (2) properly evaluate the enhancements done by the prosecutions experts to substantiate or dispute the enhanced video, and (3) had the defense known what they would be presented with, they might produced other evidence or solicited other testimony.

I can’t read the motion past page one. Subsequent pages are all out of focus.

On Fox News, they just reported that people yelling “No justice, no peace” outside could be heard in the courtroom.

So the prosecution has a drone video in HD… they downscale it to low resolution, the have a video expert isolate a blow up a piece of that low resolution back to HD, using algorithms to create convenient pixels out of nothing in order to portray something that wasn’t there.
When they HAVE the original HD video in the first place.
Unbelievable. Unconscionable. Evil. Demonic. Binger & co will pay their penance in Hell when they get there.

    darwin in reply to RobertC. | November 17, 2021 at 10:03 am

    They blew it up from the better quality video. It was only 1920 x 1080. The version they gave to the defense was 720 x 480. 4k would have had 3840 × 2160. In any case, they blew up a very small section of the video

      Voyager in reply to darwin. | November 17, 2021 at 11:21 am

      Are we sure of that? Do they have traceablity to show they only used the raw video?

      Especially when they hid the fact that they were only providing a low res video…

      DaveGinOly in reply to darwin. | November 17, 2021 at 12:00 pm

      Read the transcript. The “expert” had both versions, but worked on the version he got from the ADA’s “dropbox,” which was the low-res version. Or so this transcript leads me to believe.

    The Packetman in reply to RobertC. | November 17, 2021 at 10:05 am

    Not exactly …

    The prosecution used the HD version to create their Hocus Pocus snippet. But they knew that the defense had a qualified video expert who would lay waste to their version, so they gave the defense a lower-quality video in evidence production.

    Which I understand is legal bad joojoo …

      The Friendly Grizzly in reply to The Packetman. | November 17, 2021 at 10:15 am

      Funny… He doesn’t LOOK joojooish….

      /someone had to,..

      The only video evidence in the case is the video evidence that was entered into evidence and marked as an exhibit. The jury should not have been shown any video other than the video that was marked as an exhibit, and that excludes doctered versions of the video that was entered into evidence.

So the HD video they claimed the ‘FBI lost’ was in their possession all along and they did not give it — and then only a highly compressed version of it — to the defense until it was too late for them to address it, and the Rorschach photo derived from it, in the evidentiary phase.

The defense knows Kyle is innocent and wants one of the following…

1) A hung jury mistrial
2) A mistrial with prejudice

Not to mention the prosecution knew who kick-man was all along, claimed they did not, and did not provide his identity to the defense.

Reevaluating my views on the judge… he may know this, know the prosecution is malicious and in bad faith, and it may be why he wants to get a jury verdict of not guilty, the only reasonable verdict, if at all possible.

IMHO the prosecution has gone far beyond conducting a malicious prosecution in bad faith. They are guilty of prosecutorial misconduct and should themselves be prosecuted. But, fat chance of that happening in our new ‘fundamentally transformed’ Amerika.

    madisonian_123 in reply to JHogan. | November 17, 2021 at 9:26 am

    I do get the feeling that this judge would like a verdict rather than have to rule in place of the jury. A jury verdict of not guilty would be more legitimate than a judge deciding the case or dismissal for procedural reasons. Kyle should want that as well–a straight up not guilty verdict can persuade feds to not pursue trumped up federal charges.

      AnAdultInDiapers in reply to madisonian_123. | November 17, 2021 at 9:54 am

      I think the judge would love that – he’s aware of the (inter)national interest in the case, and said very early on something around it being important for people to see justice done.

      A jury verdict of not guilty in spite of the prosecution team’s behaviour would absolutely fulfill that desire, and he’d still be able to follow up with sanctions for the naughtiness we’ve seen over the past couple of weeks.

    JHogan in reply to JHogan. | November 17, 2021 at 10:01 am

    Correction.. evidently the HD video the defense had and did not give to the defense is not the HD video from the FBI. It is a different HD video.

Whatever the outcome of the trial, Binger should be held in contempt for trying to force into evidence information the judge had ruled inadmissible (the August 10th video as well as the selfie shots). A fine and jail time might be called for?

AnAdultInDiapers | November 17, 2021 at 9:25 am

Could a Legal Insurrection elf perhaps help restructure the main article? Every time I refresh I find myself lost hunting through things I’ve already read to see whether there are updates, and I don’t know whether the updates will appear under ‘Breaking’, ‘Live stream’ or ‘Updates’.

Whatever anyone thinks about this particular defended and the facts of this specific case, the behavior of the state should infuriate everyone. What the defense has spelled out in its motion is breathtaking.

But, if the ‘Jump Kick Man’ reporting is accurate and the state knew – had conversations with – Jump Kick Man and didn’t disclose his identity to the defense, and in fact lied in court, not only is this case over, Binger & Krouse need to get themselves criminal defense lawyers themselves.

    TargaGTS in reply to TargaGTS. | November 17, 2021 at 9:31 am

    Please, all I want for Christmas is an edit button. Please.

    The Friendly Grizzly in reply to TargaGTS. | November 17, 2021 at 10:20 am

    All of this prosecutorial nonsense, simply reaffirms my belief that there is no such thing as justice in the courtroom. As I stated in a previous comment another time, it all boils down to is your attorney a better magician than the prosecutor.

    Milwaukee in reply to TargaGTS. | November 17, 2021 at 10:40 am

    “…Binger & Krouse need to get themselves criminal defense lawyers themselves.”
    Hahaha.
    You are right. But these guys are so arrogant they believe either they didn’t do anything wrong or it wasn’t that big a deal. Besides they also believe they’re the smartest guys in the room. Maybe they’ll represent themselves, or each represent the other.

In the photo at top, are those pallets of bricks on the left?

It says “filed 11-15-2021′

From AB’s day 5 summary.

“On re-cross examination, Chirafisi expressed some incredulity that the detective could make out such detail in the drone video, from what he himself had seen of it. The detective explained on that on his phone he had the ability to zoom in, and that’s what yielded the necessary detail.”

The defense is even raising questions as to the resolution in questing and the prosecution says nothing. This lead to the whole pixelated argument when much of the explanation was they had a higher resolution video and were just making up what they saw.

    DaveGinOly in reply to pchase9401. | November 17, 2021 at 12:04 pm

    No “expert” does his “expert” work on a cell phone. His testimony to that effect should have been sufficient to impeach his credibility as an expert.

Something stinks. Do you smell it? Is the HD video the one they showed to the judge too? Kind of a weak mention of it in the pleading. This case gets smellier by the minute. Phew!

Jonathan Cohen | November 17, 2021 at 9:56 am

The best outcome is for the jury to come in with a verdict of not guilty on all counts. The judge knows that Kyle is innocent. Anyone who looks at the video and follows the evidence knows that this case never should have been brought. But he also knows that it is important that the public accept the verdict.

We in the US and in much of western Europe are living in a world where there is a great deal of pressure to believe a bunch of lies. To maintain these fictions it is necessary to control as much as possible the means of communication. For example, to maintain the view that gender is a matter of choice, you need to accustom the population that “the truth” is a matter of obedience and dissent from such “truth” is a punishable offense. Another example is that the police are going around murdering black people for no reason other than their skin color. The reality is that the number of unarmed black people killed by police in a year is fewer than 20 and in most cases it involves resisting arrest.

The sources of information are largely controlled by a small number of people who have used that control to promote these fictions. In the case of Kyle Rittenhouse, Facebook banned support for Kyle from its platform. Paypal refused to allow Kyle to raise money for his defense. The notion that everyone has a right to a fair trial before an impartial jury and to be represented by a lawyer committed to ones defense is a bedrock principle of our democracy. We are now living in a country where this principle is not accepted by most of the media, the entertainment world, the internet oligarchs and much of the Democratic party.

Hakeem Jeffries, one of the most important members of Congress, tweeted “Lock him up and throw away the key”. Jeffries should be the first person to be given a MLGA (Make Lynching Great Again) hat as a reward for his tweet. Biden isn’t much better.

The mob outside the courthouse in Kenosha is a trifle in comparison to the mob out there including the New York Times, the Washington Post, CNN, MSNBC, Facebook, Twitter, YouTube, Microsoft Edge, Merrick Garland, General Milley and many more. Judge Schroeder knows that if there is an acquittal in this case, a lot of these powerful people and institutions will not accept it even though the video evidence for acquittal is overwhelming. I believe he feels that a not guilty verdict will receive greater public acceptance if it is delivered by a jury of ordinary citizens.

In their closing arguments, the prosecution based its case on the proposition that the town of Kenosha had no right to protect itself from a mob destroying it and Kyle Rittenhouse had no right to defend himself because the mob chasing him might have only beaten him up and not actually killed him.

It is hard to believe that any rational person would go along with the prosecution but if you can force people to believe that a biological male is actually a biological female, you can convince someone of anything.

    I’m hoping the jury acquits, but also that the judge has the courage to declare a mistrial with prejudice if necessary.

    anarchyisfreedom in reply to Jonathan Cohen. | November 17, 2021 at 11:00 am

    Our ‘democracy’ is not a democracy. We live in a constitutional republic. Our rights are not granted by the state.

    We are born into tyranny and conditioned from birth to accept our fate by rhetoric similar to your own.

    DaveGinOly in reply to Jonathan Cohen. | November 17, 2021 at 12:08 pm

    “In my study of communist societies, I came to the conclusion that the purpose of communist propaganda was not to persuade or convince, not to inform, but to humiliate; and therefore, the less it corresponded to reality the better. When people are forced to remain silent when they are being told the most obvious lies, or even worse when they are forced to repeat the lies themselves, they lose once and for all their sense of probity. To assent to obvious lies is in some small way to become evil oneself. One’s standing to resist anything is thus eroded, and even destroyed. A society of emasculated liars is easy to control. I think if you examine political correctness, it has the same effect and is intended to.”
    Anthony Malcolm Daniels writing as “Theodore Dalrymple”
    English cultural critic, prison doctor, and psychiatrist

    henrybowman in reply to Jonathan Cohen. | November 17, 2021 at 4:09 pm

    “Paypal refused to allow Kyle to raise money for his defense.”

    I suspect you are thinking of GoFundMe. I don’t recall PayPal having a horse in this race.

Again, I’m not familiar with the lay of the land in WI legal/political territory.

If these two clowns were referred to the state bar for misconduct what are the odds of them receiving any real discipline? I would hope they would be so thoroughly disgraced they’d have to move into a studio apartment with Mike Nifong.

    PhillyWatch in reply to Arminius. | November 17, 2021 at 10:19 am

    Even if disbarred they just move into politics. Just about any California urban congressional district would elect them in a flash.

I have a very big doubt that the prosecutors just happened to get that video dropped on their door step the day they say it was. I suspect they actually had it for a very long time and misplaced it, forgot about it or were hiding it until the trial was nearly over as a nasty surprise. That it really doesn’t show anything they purport it to doesn’t change the fact that they are doing some very shady business here.

Let’s see what the verdict is. Would not an acquittal render this motion as academic and moot?

    A Thinker in reply to Steven Brizel. | November 17, 2021 at 10:19 am

    An acquittal, even before disclosure of the prosecution “cheating”, would be the best outcome. It would give the best argument of the fairness of the verdict.

    Chewbacca in reply to Steven Brizel. | November 17, 2021 at 10:26 am

    It could, but since there is no way to know when the jury will come back with a verdict or if it’s going to favor Kyle this makes total sense. If the judge grants the mistrial with prejudice there is a portion of the country that will claim it was all sham and that he’s actually guilty. Most of them will probably still say the same thing if he is found not guilty though. They will not be satisfied unless it’s anything other than a guilty on all counts verdict. I don’t remember a case that was so one sided for the defendant and I’m still confused as to how the people involved in this prosecution can sleep at night. As a police officer for nearly 20 years now, and a detective for about 7 of those years, I’m flat out ashamed of the detectives that are assisting in this circus. They need to find a new job.

      Steven Brizel in reply to Chewbacca. | November 17, 2021 at 10:35 am

      I think that the judge is probably holding this motion in abeyance depending on the verdict-An acquittal on all charges bars any future retrials under the Double Jeopardy Clause and would render the motion moot and academic. I agree that the prosecution’s witnesses clearly established the self defense claim( and that the trial was an exercise in seeking a scapegoat for the riots ). The prosecution’s own witnesses should be grounds for an acquittal on that ground, which was the only issue of contention at the trial and which the jury requested a rereading of that portion of the judge’s instructions.

        lurker9876 in reply to Steven Brizel. | November 17, 2021 at 10:54 am

        So if Kyle is fully acquitted, then Binger and Krause will get away with their corruption?

          AnAdultInDiapers in reply to lurker9876. | November 17, 2021 at 11:35 am

          The outcome of this trial is orthogonal to addressing prosecutor misconduct.

          Determine the result of this trial (whether it’s a jury verdict, mistrial or anything else).
          Then contemplate appropriate responses to the prosecutors’ behaviour during the trial.

          The behaviour may drive a specific trial outcome, but addressing the behaviour is distinct from that.

          SeiteiSouther in reply to lurker9876. | November 17, 2021 at 2:07 pm

          They both need to be Nifong’ed, badly.

      DaveGinOly in reply to Chewbacca. | November 17, 2021 at 12:12 pm

      “If the judge grants the mistrial with prejudice there is a portion of the country that will claim it was all sham and that he’s actually guilty.”

      True, but those same people won’t accept the jury’s decision if it’s “not guilty.” So why make the distinction? We’re not looking for “fairness,” we’re looking for 1.) justice for Kyle; and 2.) enforcement of the rule of law (including the rules of criminal proceedings). The latter should encompass the former.

      henrybowman in reply to Chewbacca. | November 17, 2021 at 4:12 pm

      “there is a portion of the country that will claim it was all sham and that he’s actually guilty.”

      F* em if they can’t take the truth. At this point, I don’t really care what the clinically insane and their credulous sheeple say about it. i just want this All-American kid not to spend the rest of his life quarantined with thugs and bullies.

    It would. But, if he’s found guilty and the judge then grants the motion for mistrial, that grant becomes an appellate avenue for the prosecution. If the judge held the hearing and made the decision on the mistrial motion, the state could not appeal that decision.

      TargaGTS in reply to TargaGTS. | November 17, 2021 at 10:54 am

      I should say, if the judge held the hearing and made the decision on the mistrial motion BEFORE the case was sent to the jury, the state could not appeal that decision.

As Rekieta Law broadcast said, the jump kick man issue is a huge one. The prosecutors flat out lied to the court, claiming that they have no idea who the man is. Now it comes out that they knew. Unquestioningly. There is no way the judge can overlook it.

    Chewbacca in reply to Terr. | November 17, 2021 at 10:30 am

    Do you have a link to that? I’d like to see/hear it. I’ve always suspected there do know who jump kick man is.

      https://newstalk1130.iheart.com/featured/common-sense-central/content/2021-11-16-the-disturbing-story-of-the-rittenhouse-cases-mysterious-jump-kick-man/

      “Sources indicate that he contacted prosecutors and offered to testify, but in exchange requested immunity from an ongoing drunk driving and domestic abuse case with which he was charged in June. Prosecutors declined his offer and chose not to call him as a witness in the Rittenhouse case. ”

      They had to know who the guy is in order to decide whether to give him immunity or not. Period.

        PhillyWatch in reply to Terr. | November 17, 2021 at 11:23 am

        hmm…”Sources Indicate….”

        Still just an internet rumor being retold on a talk show. I’d prefer some some authoritative references, much like we’d want more than Jacek Prosobiec gave us.

        arbiter9605 in reply to Terr. | November 17, 2021 at 11:43 am

        So he wants immunity in a case that has nothing to do with fact he tried to jump kick a kid in the face.

        Think38 in reply to Terr. | November 17, 2021 at 1:33 pm

        That is not necessarily true that they knew his identity. For example, jump kick man may have retained an attorney for this purpose. The attorney could reach out to the prosecutor’s office, without identifying jump kick man. A proposal could be made about what the conditions would be for testimony, including immunity from prior offenses. These are speculative facts presented as a hypothetical. What the true facts are, that would be the key question.

          henrybowman in reply to Think38. | November 17, 2021 at 4:15 pm

          Cutout lawyer or no cutout lawyer, any IT guy worth his salt could pull up a list of perps in process for both DUI and domestic, then do some image comparisons.

    PhillyWatch in reply to Terr. | November 17, 2021 at 11:05 am

    If there’s truth to it and it does add lend gravity to the facts surrounding prosecutorial misconduct wouldn’t the Defense have to file an amendment to their motion for mistrial?

    Andy in reply to Terr. | November 17, 2021 at 11:19 am

    Yeah that seemed like a big omission to me. It’s one thing if he’s such a pile of garbage that no one would want him on the stand in either direction, but that was for the defense to decide for themselves on calling him or not.

    The KGB video is worse because the assertion was that they didn’t have it and it was not provided by the KGB. The KGB was [un]curiously silent on NOT correcting that little detail.

When does the prosecution have to file their reply?

Reviewing some of the video last night, I noticed the the rifle Kyle carried on 8/25/20 had some sort of optic installed (red dot?). The rifle presented as evidence in the trial had no optic installed. Has this been discussed before? When was it removed and why?

At least Wisco was paying attention.

Unrelated to the drone video resolution, I was reviewing some of the trial video last night and noticed the the rifle Kyle carried on 8/25/20 had some sort of optic installed. The rifle presented as evidence in the trial had no such optic installed (red dot?). Has this been discussed before? When was it removed and why?

“…Binger & Krouse need to get themselves criminal defense lawyers themselves.”
Hahaha.
You are right. But these guys are so arrogant they believe either they didn’t do anything wrong or it wasn’t that big a deal. Besides they also believe they’re the smartest guys in the room. Maybe they’ll represent themselves, or each represent the other.

TaxPayingPatriot | November 17, 2021 at 10:46 am

I’d prefer a result where RIttenhouse is exonerated and there’s no tail to draw him back into this mess. It should piss off even the left and person’s who think he’s guilty to know that the state willfully withheld evidence, the identity of the jump stomp rat, dropped charges against the man Kyle “disarmed”, and so forth. I’d commented the other day on this and it’s obvious – with so much footage by individuals, drones, cops, the FBI and so forth, it’s not believable that anyone there of any consequence was anonymous. That includes the person in the yellow or red pants (can’t recall), and so forth. Triangulate all the video, find instances where that person associates with others, get a name, etc. In the end, Rittenhouse will be hounded like Zimmerman. I hope he gets good advice.

    This type of prosecutorial abuse is the kind of thing the left has complained about for some time. Yet, when it is used to unfairly convict a person they deem guilty, there is no concern, This is the real danger of the politicizing of the justice system. Ultimately, neither side will trust it, and who knows where that leads to.

Delay this morning? Judge having a cordial discussion about jump kick man and videos with attorneys in chambers?

I have this feeling that what the judge is doing is waiting for one of two outcomes –

1. Not Guilty verdict – the judge doesn’t have to rule on the motion
2. Hung jury – then the judge can do the dismissal with prejudice.

It is a bit of a cowardly move. The prosecution’s misconduct is so egregious that this should be ruled upon right away. In fact, even if there is a Not Guilty verdict, the judge should refer the prosecutors to the proper authorities for this ridiculous breach of ethics (and law).

I though I would post a simplified version of jury instructions I made up to show my friends how easy it is to reach a full acquittal in this case. One only has to answer 2-3 questions to get there…

1. Do you believe beyond a reasonable doubt that Kyle Rittenhouse DID NOT reasonably believe he was in imminent danger of great bodily injury or death at the time of all four shootings? (Rosenbaum, jump kick man, Huber and Grosskreutz)

If NO proceed to the next question…

2. Do you believe beyond a reasonable doubt that Kyle Rittenhouse committed an illegal act that provoked Rosenbaum to attack him?

If NO than you must acquit on all charges
If YES proceed to question 3.

3. Do you believe beyond a reasonable doubt that Kyle Rittenhouse DID NOT attempt to retreat of remove himself from the confrontation with Joseph Rosenbaum before he used deadly force?

If NO than you must acquit on all charges.

    The only video evidence in the case is the video evidence that was entered into evidence and marked as an exhibit. The jury should not have been shown any video other than the video that was marked as an exhibit, and that excludes doctered versions of the video that was entered into evidence.

    Your jury instruction contains a prejudical error. Imperfect self defense is a complete defense to first degree intentional homicide and attempted first degree homicide. Imperfect self defense does not require that Kyle “reasonably believed” anything. The law only requires a subjective belief, the subjective belief doesn’t have to be reasonable. The actual belief that force is necessary negates the intent or malice prepense element of offense of first degree intentional homicide. It also negates the “utter disregard for human life” or “depraved heart” element of the offense of first degree reckless homicide.. The state approved jury instructions make the subjective belief requirement quite clear on intentional homicide, they don’t make it clear at all on first degree reckless homicide, but the principal of law can not be denied. Common law murder included a death resulting from an act evincing a depraved heart.

      fogflyer in reply to bigo. | November 17, 2021 at 12:16 pm

      “Imperfect self defense is a complete defense to first degree intentional homicide and attempted first degree homicide. Imperfect self defense does not require that Kyle “reasonably believed” anything.”

      Not sure about that. Self defense always includes the element of “reasonableness.”

      Even if you are correct, if someone came an acquittal conclusion from my questions, it would still be correct, you are just saying question #1 is a little too strict I think.

        Think38 in reply to fogflyer. | November 17, 2021 at 1:46 pm

        Imperfect self defense is usually a lessor included offense. That is, if you subjectively believe you acted in self defense, but that belief was not reasonable, you may have negligent (or similar) homicide conviction, but not a first degree homicide.

    Ben Kent in reply to fogflyer. | November 17, 2021 at 11:55 am

    You should have helped with the Defense’s closing arguments. You make it all VERY clear and simple. The Defense kinda made it vague and complicated.

    Defense should have focused on answering the questions jurors would have in their mind as they prepare to reach a verdict. And on helping them with the logical analysis that leads any reasonable person to “Not-guilty”

Legal Accipitridae | November 17, 2021 at 11:11 am

I’m curious how a video can be introduced this late in the trial. And if the source and the custody has been vetted and/or discussed in the trial.

Also, it is very strange that the drone just happens to rise and film just as Rittenhouse starts running across the parking lot.

Andrew is back on Rekieta’s stream at this time

I don’t understand how a judge can let a case go to a jury with a motion(s?) for mistrial remaining unresolved. Either the motion has merit or it doesn’t. Can he really just hope to avoid the issue via the jury’s verdict?

    Smooth23 in reply to BlueOx. | November 17, 2021 at 11:26 am

    Yes he can. I don’t think he should, but here we are. Its certainly because A) the motion didn’t come in until the 15th. and B) The judge feels he could avoid the motion if an acquittal is obtained.

      arbiter9605 in reply to Smooth23. | November 17, 2021 at 11:42 am

      Even after the jury decides a verdict the judge still has power to over rule it if he feels it was clearly wrong verdict give the evidence which anyone with a shred of sense can see it was self defense. Its so clear that there has been some big media leftists that once pushed he was guilty have flipped in recent weeks that he is innocent which never seen in any other case.

    PhillyWatch in reply to BlueOx. | November 17, 2021 at 11:43 am

    What I’ve been reading….this judge likes to rely first on jury to decide based on facts in evidence. So he works hard to keep the trial on the rails and not go to mistrial. That suggests an aversion to declaring mistrial IF he thinks the jury still has a chance at deciding the facts in deliberations.

    But the flip side is…IMO as a layman…IF after the jury comes to a decision that is CLEARLY based on unreasonable deliberations, e.g., fear of reprisals from a mob, illogically accepting false testimony, etc, then he owes it to the defendant to set aside the bad-faith decision(s) and direct a verdict.

    I think a directed verdict is unsavory to all, but declaring a mistrial isn’t.

    thad_the_man in reply to BlueOx. | November 17, 2021 at 11:46 am

    The state has a right to reply to the motion. I don’t know how long, but it is five to ten days.
    I don’t think the Judge can rule until then.

I’m just a layman, but I cannot see how this farce has any credibility.

The Jumpkick Man might now have been identified:
https://twitter.com/JackPosobiec/status/1460982508128980999

There have been so many egregious, prejudicial acts (or attempted acts suppressed by defense objections) committed by the prosecution in this case that should KR be convicted on any count, I have no doubt that said conviction(s) will be overturned by appellate court finding(s). No doubt at all.

I would have someone from the defense down at the jail trying to get supposed Jump Kick Man’s word, RIGHT NOW.

    Ben Kent in reply to Smooth23. | November 17, 2021 at 11:58 am

    If they get Jump-Kick man to say he came forward but the prosecutors’ rebuffed him – and they never told the defense – that is clear prosecution misconduct. Judge will have to declare mistrial and likely it will be with prejudice. Then the Bar will investigate to determine if the ADAs should ever be allowed near a court room ever again.

    thad_the_man in reply to Smooth23. | November 17, 2021 at 12:01 pm

    He won’t talk to them and they can’t ( legally ) force him to.
    They would have to get a subpeona … etc.
    Eventually they will get there but it will take longer.

    Arminius in reply to Smooth23. | November 17, 2021 at 12:13 pm

    Has he even been arrested? I don’t doubt he’d be easy to find considering he has a few cases outstanding, but is he in jail?

If ever a case was heard that deserves a dismissal with prejudice, this is it. Will the judge have the cojones to pull that trigger? IDK? There’s 2 reasons to dismiss. 1. It’s the right thing to do. 2. It relieves the jury from any threats they may be worried about if they find not guilty or aquit.

    dawgfan in reply to joseph. | November 17, 2021 at 12:08 pm

    The main risk with that is that an appeals court could overturn the dismissal. If he gets acquitted by the jury, then he’s safe from re-trial (at least in state court) via the double-jeopardy provision of the Constitution.

      lurker9876 in reply to dawgfan. | November 17, 2021 at 12:11 pm

      The feds could step in to give Kyle felony charges…with something made up.

        That’s my take also: if he’s acquitted, the Feds will step in with bullcrap charges of violating the rights of the deceased “protestors.”

          jagibbons in reply to PBM. | November 17, 2021 at 12:18 pm

          I don’t think that would go very far. It would be another political prosecution for Kyle, but there’s nothing here representing the violation of any federal laws.

          lurker9876 in reply to PBM. | November 17, 2021 at 12:20 pm

          Agreed but they can still make up something…

          jmare in reply to PBM. | November 17, 2021 at 12:35 pm

          Since Kyle is not an agent of the state, I wouldn’t think he could be charged with civil rights violations. Doesn’t mean it won’t happen, and I may be wrong, but I don’t think there’s any applicable federal laws to charge him with.

          styro1 in reply to PBM. | November 17, 2021 at 12:47 pm

          jmare: civil rights violations can only be charged on KR under the Hate Crimes Prevention Act:
          1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person, or

          2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.

          I don’t think Congress has added “rioters” to this list, yet anyways.

          DelightLaw1 in reply to PBM. | November 17, 2021 at 3:23 pm

          Could that be why the FBI supposedly “lost” their drone footage, which will “miraculously” reappear if the Feds decide to pull something???

      TargaGTS in reply to dawgfan. | November 17, 2021 at 1:16 pm

      Dismissals PRIOR to a jury verdict cannot be appealed. Dismissals post-conviction MAY be appealed.

“the manual for AMP imaging software apparently says methods used in this case are intended for investigative purposes only, not for forensic use in court. When Judge Schroeder asks Binger if that’s true, Binger response is that information is not in evidence.”

So what? If it’s an inappropriate use of the software, then the video should never be shown.

    thad_the_man in reply to jagibbons. | November 17, 2021 at 12:24 pm

    Another question is did the prosecution know that the manual said that? It’s hard to believe that the “expert” didn’t read the manual. Is that another instance of possible overreach?

    The Pedant-General in reply to jagibbons. | November 17, 2021 at 12:25 pm

    “Binger response is that information is not in evidence.”

    But the witness was quizzed extensively about the suitability and potential flaws in the process and he was under oath to tell the “whole truth”.

    This was a professional witness – he either knew this and withheld it – or he didn’t and he’s incompetent.

    Arminius in reply to jagibbons. | November 17, 2021 at 12:57 pm

    What the holy f***? The imagery produced by this software is in evidence.

      Think38 in reply to Arminius. | November 17, 2021 at 1:55 pm

      The manual for the software is not (apparently) in evidence. However, the judge ought to consider the prejudicial impact of admitting the enhanced videos at the end of the trial. The defense did not have the opportunity to go and try to impeach the software — they didn’t know this would be admitted and therefore didn’t know i would be relevant.

    fogflyer in reply to jagibbons. | November 17, 2021 at 1:06 pm

    Yeah, seems like kind of a big deal, doesn’t it?
    This is why the video and it’s manipulated stills should never have been allowed into evidence at such a late point in the trial. The defense did not have time to vet this. They would have discovered that the manual said it should not be used as evidence in court and it never would have been allowed.

    So now what? Seems like a mistrial is almost mandatory if the jury comes back guilty on anything.

    Anyone else surprised that the jury didn’t have the videos to review? I figured that’s what they were doing all this time. I also find it absurd that the court is just now figuring out what they need to do to show the videos. Did they not foresee this? Perplexing.

    cdev22 in reply to jagibbons. | November 17, 2021 at 2:14 pm

    If I’m not mistaken, the idea that AMP can’t be used for forensic use in court is a misreading of one of AMP blog posts: https://blog.ampedsoftware.com/2021/10/05/can-ai-be-used-for-forensics-and-investigations/ The post isn’t saying that the software can’t be used for Forensic evidence, rather it’s saying that any processing done by the software using Artificial Intelligence (AI), which shouldn’t be confused with a classical algorithm, can’t be used for evidentiary purposes. Here AMP says that they can and have been used: https://blog.ampedsoftware.com/2017/05/31/are-amped-software-products-validated-or-certified-officially-for-forensic-use/

    My guess is there’s a lot of confusion around AI vs Algorithm. I suspect the reason for that is because the term AI is a term for specific sets of algorithms. A lot of standard photo algorithms don’t fall into the category of AI. In the case of the hocus pocus focus image it sounded like the software was using a standard resizing algorithm with some sharpening then applied to the image. No outside data is being introduced that isn’t based on the existing input. Pixels are being added but they’re based on in input pixel. AI is different in that new data is being introduced. Instead of acting on the existing pixels, AI is introducing outside data. The algorithm then makes an educated guess based on the data it has available to it as to what the pixels might be based on similar models, the AMP page has a good example: https://blog.ampedsoftware.com/2016/09/21/be-conscious-of-the-algorithms-you-use-in-a-forensic-setting/. Those sorts of algorithms shouldn’t be used because they’re introducing outside data and it’s not clear what the data is, nor how it’s being applied.

    For more traditional algorithms, I think the defenses diagram with the red, blue, and purple pixels was correct, new pixel are being used, but generally speaking when working with a high enough resolution image and moderate resizing the effect isn’t misleading, but neither is it more accurate than the original. A bicubic filter looks at the boundary between two pixels and samples around the area to best represent that transition between the two pixels. Between a red and blue pixel you’ll get a shade of purple, but not green. I think problems arise when one takes a low resolution image – in this case a small section of a 720p drone video shoot in bad lighting – and try to enlarge it. If you enlarge it too much you’re only getting an enlargement of an enlargement of an enlargement. That can leave you with a Rorschach blob that isn’t very helpful, which is exactly what has happened in this case. I’m not sure about the legal issues, but I don’t think the resultant product is even close to providing anything even close to reasonable doubt, let alone beyond it. There simply aren’t enough pixels to enlarge and make anything cognizant.

      fogflyer in reply to cdev22. | November 17, 2021 at 6:56 pm

      Just read through a bunch of the AMPED stuff and I think you nailed it.
      I doubt any AI algorithms were used, so this is probably not an actual issue.
      I still think basic interpolation algorithms when used to this magnitude are problematic, but that is not the discussion. Nice job on your sleuthing!

Seems like not a good omen for Rittenhouse if they want to see the videos after already having deliberated for some time.

The defense is objecting to the jury seeing the drone video. They SHOULD see it so they can see there is nothing to it! The defense is making a big mistake here.

    The Pedant-General in reply to darwin. | November 17, 2021 at 12:28 pm

    has the hocus-pocus out of focus exhibit been withdrawn?

    lurker9876 in reply to darwin. | November 17, 2021 at 12:32 pm

    Actually, they should see both versions of the same video..the compressed file and the HD high quality video.

    JRaeL in reply to darwin. | November 17, 2021 at 12:43 pm

    The defense is right in this case. For several reasons,
    1. If they don’t object they are implying they believe the video itself is legit even if the contents are in dispute.
    2. The video is contaminated evidence. Why? Because the jurors have been told by the prosecution what the video shows. At this point it is likely the jurors will be looking for a means to agree with that finding. Even if in reality they themselves can’t distinguish Kyle aiming his rifle. It is along the lines of pointing at nothing up in the sky and having people speculate on what they see.
    3. The jurors probably did not or will not understand just how this “evidence” has been manipulated. People believe that visual evidence is the most reliable. It’s not.
    4. The Weasel King needs a ride in the tumbril and the judge may just use this video as the wheels.

      Andy in reply to JRaeL. | November 17, 2021 at 2:06 pm

      The judge should not have allowed that as a conclusion from the video. The jury should not be interpretting video, they should be concluding from facts, not speculation.

    PhillyWatch in reply to darwin. | November 17, 2021 at 1:05 pm

    Except there’s always the risk someone will imagine something in the fuzzy image. That’s dangerous.

He has absolutely the worse defense

    It’s better than you could afford… you shouldn’t need OJs team to win when you are innocent. This is an abomination of the constitution.

The “Provocation” argument is the only way this should even been allowed to go to a jury. For the record, I don’t think the prosecution even met the evidentiary bar for provocation.

The judge should immediately halt deliberations and order the prosecution to provide ALL evidence collected by the prosecution to the defense and to him TODAY. If the judge finds just 1 bit of evidence that was not provided to the defense, he should declare a mistrial with prejudice. At the same time he should announce notification of criminal referral of the prosecution to the Wisconsin Attorney General’s office for malicious prosecution.

This garbage has to be stopped.

    PhillyWatch in reply to Bryan24. | November 17, 2021 at 1:03 pm

    In my layman’s view, that’s dangerous at worst, not helpful at best. It will come with a time limit for the defense to review and respond (remember, the jury’s waiting).

    The prosecution will send over a semi trailer full of everything they have. Defense would never be able to review and find what’s important and relevant. Prosecution will proceed with full knowledge of what’s important and a simple statement to the judge: defense had it.

    PhillyWatch in reply to Bryan24. | November 17, 2021 at 1:12 pm

    The BETTER approach would be for the judge to throw out the videos since prosecution witheld evidence.

    Then instruct the jury to cease deliberations on provocation because the prosecution has failed to present any evidence supporting their claim of loss of privilege.

    I am a non lawyer, that’s doubtless over-simplistic even if possible under the circumstances. Would be interested to know if it is a possible outcome though.

My hope is that Binger gets charged with assault on the jury for that stupid stunt of his the other day. I’ve only been shooting twice in my life and even *I* know that the first three rules of gun safety are that it’s always loaded (even if you just cleared it – way too many videos out there of folks clearing their gun and then shooting something, often themselves), the you never point the muzzle at anything you don’t want to destroy, and you don’t put your finger on the trigger until you are ready to destroy the target.

As I read someplace the other day, he obviously went to the Alec Baldwin school of weapons safety.

https://youtu.be/LCzDQvX0hAY?t=32

Kyle looks like he’s going to throw up. Poor Kid. What a travesty. If the DA had the high resolution video and didn’t provide it to the defense AND this type of video is not meant for courtrooms I’d say game over! Just my opinion, I’m not an atty.

    I would say this video has not been admitted into evidence and the judge shouldn’t be looking at it as evidence of anything. Kind of like the jury looking at news coverage of the trial to determine whether the evidence in the record establishes a fact. How can the judge tell the jury they ca

You as a mother just want to hold Kyle in your arms and never let him go

I’m not a lawyer. But stop me if I’m wrong. Aren’t courts supposed to have something called “rules of evidence?”

How did all this horses*** get in here?

And, spoiler alert. There’s no pony in there.

    TargaGTS in reply to Arminius. | November 17, 2021 at 1:17 pm

    Much of that video evidence wasn’t even objected to by the defense. It was insane to watch live.

      jmare in reply to TargaGTS. | November 17, 2021 at 1:39 pm

      I think the lack of objection is because the defense was given a low resolution copy of the footage. Once the prosecution tried to bring in the “enhanced” still images, they let it slip that they (prosecution) had a much higher quality version in their possession. Why would the defense be worried about a blurry video that you can see anything clearly?

        jmare in reply to jmare. | November 17, 2021 at 1:40 pm

        Can’t see clearly.

        TargaGTS in reply to jmare. | November 17, 2021 at 2:32 pm

        I agree on that particular video, there may be some logical reason why they didn’t object. But, there were several other videos that came in where the person who took the video wasn’t identified, much less examined under oath AND there wasn’t any foundation laid for submitting it to evidence; IOW, no one who was there testified under oath that it (the video) was a fair and accurate representation of what happened. Instead, they had the detective – who was NOT an eyewitness to the crime – comment on the video.

        And yet, no one on defense made that foundation objection.

    JHogan in reply to Arminius. | November 17, 2021 at 1:42 pm

    Like origin and chain of custody.

Such brazen and outrageously unethical, dishonest and indefensible conduct by a transparently mendacious, unethical and desperate prosecution. I predict the judge will grant this motion, having watched his totally justified critiques of Binger’s unethical conduct throughout this farcical show trial.

This is a case that never should have been tried, so flimsy and non-existent were the claimed factual and evidentiary supports for the charges, but, this motion should be granted, with prejudice, posthaste.

    guyjones in reply to guyjones. | November 17, 2021 at 1:10 pm

    And, also, Binger and Krause should be referred by the Court for state Bar disciplinary proceedings, frankly, for violating the Model Rules of Professional Conduct, to say nothing of their obvious duties as prosecutors to “see Justine done” by conducting themselves in an ethical manner.

12h ago:
shipwreckedcrew.substack.com
@shipwreckedcrew
·
12h
Since the jury is deliberating already I do not think the judge will rule on this motion. If the jury exonerates Rittenhouse that is better for Kyle–that’s a factual finding of self-defense and absolves him or murder. If jury hangs or convicts on anything, judge should dismiss.

Disclose TV says verdict close. More reports of the mystery bricks all over the town.

Give in one penny to these rioters, looters, and arsonists and you cannot take it back without a fight.

Kenosha will soon pick a choice.

Also, reports of 300 plus Proud Boys from Ohio heading to Kenosha…well armed, too.

Probable…..4 masked Krazy Karens holding out 4 guilty.

One way to filter commentary on all this for fundamental technical competence of the commentator is whether they use the term “algorithm” or “logarithm” in reference to enhancement/modification of the video. Anyone who uses “logarithm” is not mathematically or software technically competent. They may have a valid point, but any technical judgement on their part should be questioned.

    Any finding of fact that the judge or jury makes from the evidence must be based on the actual video that has been placed in a bag and marked as evidence and entered into evidence. The prosecution can’t come dragging some alleged enhanced versions of the exhibit into court after the prosecution has rested its case. Get the damn video out of the brown paper bag and play it for the jury if you want, otherwise shutup about it.

    henrybowman in reply to Fiat Justitia. | November 17, 2021 at 4:28 pm

    Google and Twitter have been blathering about their “algorithms” so incessantly that you’d have to be third-grade incompetent by now to flub this. Frankly, I’d be surprised to find at this point more people who had ever heard of logarithms.

So…more about the FBI drone video.

Could there be infrared video too? I’d suspect so. THAT would be very revealing as the metal of the weapon would show up distinctly different against a warm torso. And also make it clear there’s something obscuring the image, e.g., a mirror on a vehicle.

Might the prosecution be hiding that too? Highly likely, IMO, given their past misconducts.

Defense might be leary of it since they feel they have the evidence in their favor so why chance anything. But the whole situation here just smells bad.

This webpage is getting unwieldy. Nothing from AFB in an hour and a half. Comments are over two hundred. Some housecleaning is in order.

Paul In Sweden | November 17, 2021 at 2:01 pm

Andrew Branca,

The virtual lynching of the defendants in the Ahmaud “The Runner” Arbery self-defense trial is advancing without sane commentary. It would be very welcome if you jumped back in Andrew.

The judge needs to shut this shitshow down, with prejudice.

Farso excuse invalid under Brady.

    TargaGTS in reply to Elzorro. | November 17, 2021 at 3:26 pm

    Even inadvertent suppression is covered by Brady, correct? It doesn’t matter if fatboy did it accidentally or intentionally. HE, or some other member of the state did it.

Blimpie is lying his butt off.

=YAY EVIDENCE REOPENED!

Jonathan Cohen | November 17, 2021 at 2:18 pm

“Also, defense attorney Richards tells court that the manual for AMP imaging software apparently says methods used in this case are intended for investigative purposes only, not for forensic use in court. When Judge Schroeder asks Binger if that’s true, Binger response is that information is not in evidence.”.

Nothing shows the utter dishonesty of this prosecution better than Binger’s response. He is essentially saying that as long as he can get away with using a photo-shopped video, that’s great with him.

I thought prosecutors were obligated to be honest. It is outrageous that in a case where a man’s entire life is at stake, he would base his argument for conviction on a piece of unreliable evidence where a warning is given that it shouldn’t be used for forensic purposes.

Shameful!

Richards could drive a truck through this if he has a brain.

Hey, LI? Might want to check your timestamps, that should be 12:55 pm.

This trial has become a complete dumpster fire which can and will be reversed on appeal for any number of reasons — prosecutorial misconduct, judge’s rulings as a matter of law, effectiveness of defense counsel, you name it. Good Lord…

Someone please tell me this is not how evidentiary matters usually go in criminal cases. This is a total dumpster fire.

This is what haopens when a judge defers and defers all the time, eventually you have to make a call. He is afraid to make a call. These issues with process should have been resolved at jury instructions.
In addition he created the drone video issue by allowing evidence into trial that was not vetted by both parties prior to the beginning of the trial.
Schroeder owns this sh**show.

Evidence open now send in the Probosiac video. Good Grief Richards. Unbelievable.

Why isn’t the defense pounding the table?!

The jury did not request (as of yet) the drone footage, so I think that’s a good sign. What other footage is there? The actual shootings? All those SHOULD be viewed by the jury, in real speed, to put this shitshow to an end.

The rioters should beware grabbing of brown bricks. They may have dropped out of Binger and Krouts pants on the way to lunch.

I’ve done a little photo editing, and what the prosecution did is outrageous. I cannot conceive of an excuse. Really, this is ridiculous — on steroids.

How will the evidentiary hearing impact the jury deliberations?

    Elzorro in reply to lurker9876. | November 17, 2021 at 2:46 pm

    It should be stopped and dismissed with prejudice. If the defense does not obliterate Binger bow. The judge reopened the evidence w/o even being asked. They should have their license revoked.

What are these “limits” on the militia and drone videos?

    lurker9876 in reply to Sopater. | November 17, 2021 at 3:07 pm

    I wondered about that, too. I’m guessing that these are compressed videos but they weren’t asking for the drone video.

    As for all of these videos, I had trouble ascertaining identity to people and what they were all doing.

These digital files should be distributed between law teams with a MD5 or SHA hash of the file. That way regardless of fine name, it’s clear you are dealing with the exact same file. It’s amazing how little attention is given to “digital” evidence chain of custody.

The WI court system or DA’s office should have a secure method to distribute these files, that tracks each upload/download, md5 hash and metadata log file, that is update and signed (with a private key) everytime a file is download/transfered.

    TargaGTS in reply to xpaulso. | November 17, 2021 at 3:07 pm

    This. This. This. It’s INSANE that there isn’t a centralized virtual repository for this kind of electronic evidence. This is 2021. We’re not in the infancy of electronic media. There are PLENTY of commercial document/electronic file management systems that are readily available that the court system could have, should have adopted by now.

    Government incompetence is institutionalized.

Having watched hundreds of criminal trials (it used to be my job), I don’t think I’ve ever seen such shady prosecutors, or a defense who seems so willing to let them get away with it until possibly too late.

At what point does Schroeder finally give up, realizing that a just result cannot be arrived at given the many more than questionable moves of the prosecutors? To quote from A Few Good Men, “The defendant has rights”. The judge has to know at this point that any conviction under these circumstances on this record is likely to be reversed.

I’d give both sides the chance to argue on the most current motion for mistrial with prejudice, and then make my ruling, and not wait for the jury. If you want to really see Kenosha burn, just let it get out that the jury decided to convict but the judge then declared a mistrial. The mob would never accept that.

Schroeder should get off his dead ass and hear from the parties on the motion already before the court. This would make the decision of a compromised jury moot and they could all go home in relative safety. I’d rather have to protect one judge and his family than 12 jurors and theirs.

    Observer in reply to OldCop876. | November 17, 2021 at 2:54 pm

    Judge is hoping the jury will come back with an acquittal verdict soon, so that he’s off the hook and doesn’t have to decide the defense’s motion.

    Interested Party in reply to OldCop876. | November 17, 2021 at 3:05 pm

    I think the judge has faith in the jury and wants them to have a chance to do the right thing. Not Guilty from them is the best possible result (followed by the Prosecutors being taken into custody and disbarred of course). There is also the bonus that every day he waits to declare a mistrial with prejudice there seems to be more and more evidence of wrongdoing from the Prosecutors. The defense’s case for mistrial with prejudice is only getting stronger and stronger.

    If Kenosha burns, it’s because their government allows it.

    Florida jurisdictions made it crystal damn clear what would happen to rioters in their towns. That’s what needs to happen to put an end to this madness.

    All the BLM and Antifa violence has been completely sanctioned by a government that is supposed to stop it. Kenosha gets what chooses. It’s on them if they choose to be victims in this round.

How many violations of law, basic rights, and standard procedure does the state get? How can there be a fair verdict when the jury is terrified?

    jagibbons in reply to forksdad. | November 17, 2021 at 2:57 pm

    The state should get none. Only the defense can use any means to work toward acquittal. The state needs to act above reproach. That’s the only way our justice system has any hope of working.

    If, by chance, the jury convicts, there is more than ample grounds for appeal based on misconduct and procedural mistakes.

So it’s being reported that the judge now wants testimony under oath regarding the videos.

This entire unprofessional clown show is a joke, the judge should have put an end to this days ago.

    jagibbons in reply to Olinser. | November 17, 2021 at 2:58 pm

    How can you have more testimony under oath after both sides have rested and the jury is in deliberation? How can “new” evidence be allowed?

      Takerial in reply to jagibbons. | November 17, 2021 at 3:08 pm

      I think the new testimony is less for the jury and more for supporting things like the motion to dismiss or for a potential appeal if it comes to that.

      Given the situation I think the judge wants legal proof that the prosecution is being POS and want them to go under oath for it.

      TargaGTS in reply to jagibbons. | November 17, 2021 at 3:10 pm

      Not testimony for the jury. But, sworn testimony for a hearing that would be held outside the purview of the jury…and even potentially after a verdict is rendered if Kyle is found guilty or the jury is hung. If he’s acquitted, this is all moot, of course.

Binger can no longer claim prejudice I think. But they already did. Stop this madness.

I believe the testimony under oath about video is for the judge not for the jury.

Blimpie is lying again – what about the name change, aspect ratio change and time of creation change

    He literally tried to suggest that the computer somehow save the name differently. He’s trying to use the lack of technical knowledge of the Judge to try and sweep their scumminess under the rug.

      LetsGoBrandon in reply to Takerial. | November 17, 2021 at 3:20 pm

      Yeah – Blimpie should be put up on changes with the state board

      richtrue in reply to Takerial. | November 17, 2021 at 3:20 pm

      It’s pretty clear what happened. Someone took the original hi-res file, compressed it, and clicked SAVE AS in order not to overwrite the original file. That’s how it got a different name. They had the awareness not to overwrite the original file. What does that tell you? They KNEW it was different.

This poor kid
Lin Wood would have been ten times better even in the middle of a psychotic break

They haven’t even addressed ‘jump kick man’ yet. Maybe defense should keep their powder dry until that’s fleshed out.

Kenny Effin Powers | November 17, 2021 at 3:20 pm

The defense is blowing this…

How the heck would the expert know that the smaller file he got was originally a much larger image?

I AM SCREAMING AT MY COMPUTER. This is OUTRAGEOUS.

A tragedy of errors.

Wow, 5 lawyers in a room. 2 are straight up liars and willing to manipulate the evidence to get a win, 2 are ineffective at their job and the 5th, the judge, is afraid to make a decision.

    absolutely! I am getting heart palpitations I am so mad!!!

      LauraLee in reply to Jimbo21. | November 17, 2021 at 3:41 pm

      I had to take an extra blood pressure bill every day that I watched this. I guess the judge is ok with a ‘little’ unethical/unconstitutional behavior when it come to the Persecution.
      I wish I could call it a clown show but it’s so much worse and a young man’s entire life is on the line. Sickening.

Okay, more detail. Based on experience, here’s what I think happened.

1. Original video was 12 MB (megabytes.)

2. Prosecution compresses the video. No lack of ways. This removes information and makes it blurry.

3. Prosecution clips stills from blurry compressed video and expands them, adding info to blurry stills.

4. Prosecution shows blurry video and stills to jury. Judge allows.

5. After both sides have rested, prosecution releases the original, which contradicts its claims.

Combined with the other prosecution tricks, this should be a dismissal with prejudice + referral of prosecution lawyers for professional consequences. However anyone views Kyle Rittenhouse’s conduct, no one should EVER face legal jeopardy in this way.

    AnAdultInDiapers in reply to RandomCrank. | November 17, 2021 at 3:34 pm

    I think added to that you’ve got two lawyers on the defence that haven’t the foggiest about technology, which means they’re not able to make the right challenges and they’re not able to push home the key points.

    Fucking lawyers.

Defense asking for a mistrial and doesn’t care about prejudice means the defense is telling the judge they want a new judge and a new trial.

Judge should ignore media and declare a mistrial with prejudice. The prosecution has made a fool out of him and a circus out of his courtroom. And he let them.

Is the defense throwing a Hail Mary now? Asking for a mistrial WITHOUT prejudice? Or is this belts-and-suspenders?

    RandomCrank in reply to KPOM1. | November 17, 2021 at 3:34 pm

    I was away from the live stream. Did they do go?

      RandomCrank in reply to RandomCrank. | November 17, 2021 at 3:38 pm

      No edit function. Did the defense ask for mistrial without prejudice?

      They gave the jury a laptop with the videos they have asked for. It does not, yet, include the drone footage. Chirafisi said that he will put in a motion for a mistrial without prejudice, since they would have handled the trial “a bit differently.” The judge said he will wait until and unless the jury asks for the drone footage.

I can very much understand why the judge wants the jury to have the final say, but the prosection has acted so badly that he needs to end it.

KR is getting screwed. Judge is clueless.

We seem on the verge of a mistrial – without prejudice.

>> What a miscarriage of justice.

Would the State push to retry this ? It should never have gone to trial in the first place. But the political pressure to persecute this kid is enormous. This is the definition of a political show trial.

W/O prejudice builds the defense fees.

Kyle and his family are damn fools if a second trial happens and they still use the same legal team.

Mr. Branca, correct me if I’m wrong, but if this is just a standard mistrial it’ll take months to have the case rescheduled, during which time the defense can investigate the prosecution’s misconduct, file motions on prosecutorial misconduct to get the case dismissed with prejudice, and appeal all while Rittenhouse is free.
It seems to me the defense’s worry is the jury comes back before the state’s misconduct is proved and votes guilty, the judge will take the position of “have it overturned on appeal”, which it certainly would be overturned by any rational appeals court and might well result in Rittenhouse not being tried again, but he would be in jail for the duration of those years of appeals.

Let the paralegal take over the case. These defense lawyers a pathetic.