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TRAIN WRECK: Rittenhouse Prosecution Implodes With State Witness Richard McGinnis of Daily Caller

TRAIN WRECK: Rittenhouse Prosecution Implodes With State Witness Richard McGinnis of Daily Caller

This is NOT supposed to be how the direct examination of your own witnesses is done.

I’ll cover all of this in greater detail in my end-of-day analysis but couldn’t resist getting this out to all of you promptly.

The direct questioning of STATE witness Richard McGinnis by ADA Binger was an absolute trainwreck for the prosecution–and, of course, the jury watched it all happen in real-time.

UPDATE: To provide some context, for more than 12 minutes ADA Binger tried to get McGinnis to testify that Rosenbaum was already falling to the ground when Rittenhouse began shooting him–in other words, that Rittenhouse simply executed Rosenbaum by shooting him in the back when he was helplessly falling.

The actual exchange is in the video, so you can watch it for yourself, but a reasonable paraphrase would go something like this:

Binger: So Rittenhouse shot Rosenbaum, in the back, as he was falling, correct?

McGinnis: No, Rittenhouse didn’t fire until Rosenbaum charged and lunged at him.

Binger: So he shot him as he was falling?

McGinnis: No, not falling, lunging.

Binger: So you’re saying he shot him while he was falling?

McGinnis: No, that’s not my testimony. Lunging.

This is NOT how it’s supposed to be done, folks.

Talk to you all again when we do our end-of-day analysis this evening.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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Comments

NotSoFriendlyGrizzly | November 4, 2021 at 2:15 pm

The longer the state’s case goes on, I keep expecting the prosecutor to move to dismiss all charges. Geez!

    A honest prosecutor would never have filed the charges to begin with. Therefore we know this is a show trial. The prosecutor is not going to give up.
    If the judge wasn’t enjoying his 15 minutes of fame, he would direct a dismissal.

      The Friendly Grizzly in reply to lichau. | November 4, 2021 at 7:23 pm

      If a judge directs a dismissal, does that end things? Or, does he have to add the modifier “with prejudice” to keep the persecutor’s office from trying again?

        Double jeopardy should have attached once the jury is sworn, which would prevent any further state prosecution after an acquittal. However, that would not bar a federal prosecution.

          Desdenova in reply to jakebizlaw. | November 5, 2021 at 5:59 pm

          On civil rights charges? There is a federal statute on murder? Same charges, same elements, same facts, same testimony, etc.

          Very unlikely.

Kyle Rittenhouse is a hero. They should put a statue of him next to every one built for Saint Floyd.

This DA is a fool. Hinging the entire testimony on the word “falling.” When you lunge at somebody, and they dodge you, you fall. Doesn’t mean you’re not still a threat, doesn’t mean you won’t or can’t continue the attack.

    Observer in reply to henrybowman. | November 4, 2021 at 3:47 pm

    But kudos to McGinnis for not allowing the prosecutor to put the word into his mouth. The prosecutor wants to be able to argue in his closing that McGinnis testified that Rittenhouse “shot Mr. Rosenbaum as he was falling and didn’t present any threat to Rittenhouse.” But McGinnis’ insistence that Rosenbaum was shot while “lunging” for Rittenhouse’s gun takes that argument away.

    Well done, McGinnis.

    Milhouse in reply to henrybowman. | November 4, 2021 at 5:09 pm

    Ah, but the sporting thing to have done would have been to let him fall and pick himself up, perhaps even give him a hand to raise him up, and then wait for his next lunge. Rittenhouse was totally not playing fair, just like when he came to his sister’s aid, thus unsportingly going two-to-one against her assailant. Surely we can’t have such behavior on our playgrounds.

    Milhouse in reply to henrybowman. | November 4, 2021 at 5:13 pm

    Shades of Adam Toledo (or whatever the punk’s name was), who threw his gun away microseconds before the cop shot him, thus qualifying as “unarmed”. The cop should have seen that and stopped his finger in mid-squeeze — or, if the shot had already been fired, he should have recalled it.

      Arminius in reply to Milhouse. | November 4, 2021 at 9:54 pm

      The prosecutor will try to make a big deal out of the assertion that Rittenhouse’s “kill shot” was to Rosenbaum’s back.

      I’ve seen it written that KR got off 4 shots in .76 seconds. Possibly. But KR got them off in rapid succession, and good on him. But the bad news for a defender in a legal situation is that the person who is being shot will tend to turn, and the defender will be firing too rapidly to neutralize the threat will keep firing before the reality of the situation dawns on him.

      I think McGinnis’s testimony touches on this. It basically amounts to, it all happened so fast. No doubt. But it happened just as fast for KR. Any decent use-of-force expert will attest to this. The person getting fatally shot will turn. The defender doing the shooting will not be able to hold back the last shot. The bullet intended for for the front of the perp will go into the back.

      And unscrupulous ADAs like Binger will try to paint the accused as a “back-shooter” as if we’re all living in a 1950s episode of “Have gun will travel.”

        Arminius in reply to Arminius. | November 4, 2021 at 10:05 pm

        As an aside, I’m wondering where this 17 y.o. got these mad operator skills. McGinnis was testifying that Rosenbaum lunged for the rifle. Kyle evaded the lunge, so Rosenbaum is now lunging toward where the rifle ain’t.

        Then Rittenhouse gets off four shots.

        Screw the prosecution. In a sane world any of the nation’s five armed services should be competing to recruit this kid as an instructor.

        Oh, wait. Just got a look at Rachel Levine our historic first trans 4 star admiral of the US Public Health Service which, admit it, you never heard of before let alone knew it had admirals. Belay my last about living in a sane world.

    Roguewave1 in reply to henrybowman. | November 5, 2021 at 9:28 am

    If the first shot was in Rosenbaum’s back while falling, how does the prosecutor explains those hits in the front?

Jesus this is insane.

My Dad always used to say that only a complete moron lawyer asks a question to which he does not know the answer in advance.

How in the name of hell does the prosecutor ask this series of questions?!?!?!?

He literally walks the witness through the fact that Rosenbaum was running at Rittenhouse with the clear intention of grabbing his rifle and that Rittenhouse didn’t even point the rifle at him until AFTER he tried to grab it the first time!

    lichau in reply to Olinser. | November 4, 2021 at 5:59 pm

    The prosecutor is in a bind. He has nothing. He is counting on a jury afraid of a “not guilty” verdict.

      TrumpWon in reply to lichau. | November 9, 2021 at 1:34 pm

      Or he doesn’t really believe in the case and is doing his best to not help it any more than necessary. Maybe he’s tired of the State railroading people for political purposes and is determined to monkey-wrench it if he can, without appearing to be doing so deliberately.

He didn’t stop, he continued and he lunged at Rittenhouse.

I think the caterers are being called in to stop the the DA train wreck.

gawd- he “threw his momentum at the weapon”

I love how Binger keeps digging his hole deeper, thinking somewhere in that pile of dung of a prosecution there has just got to be a pony.

Binger’s exercise in futility here is moronic on so many levels. Binger actually thinks he can hold McGinnis to the exact words he used during a freaking TV interview? Somebody needs to point out to the jury, as if it needs to be but you can’t be too careful, that when McGinnis was on TV he wasn’t giving testimony. People tend to speak more loosely during a casual conversation than when in court under oath.

But Binger doesn’t seem to understand this. What’s he going to do, charge McGinnis with perjury for saying something slightly different while on TV than in court? This seems to be the best evidence he has. A reporter’s word choices, and his prosecution hinges on the word “falling.”

    Tom Servo in reply to Arminius. | November 4, 2021 at 3:35 pm

    LOL! Binger spent most of the 12 minutes trying to impeach his own star witness! And he failed!!!

    Apparently Binger did no preparation at all for this case besides watching some Tucker Carlson episodes and a few old Perry Mason episodes.

      Barry in reply to Tom Servo. | November 4, 2021 at 4:24 pm

      Ha, it’s clear he DID NOT watch Perry Mason 🙂

      richjb in reply to Tom Servo. | November 4, 2021 at 8:54 pm

      I’m surprised he actually watched Tucker Carlson!

      Roguewave1 in reply to Tom Servo. | November 5, 2021 at 9:38 am

      No, there was an article earlier this week that explained that Binder called this witness in his office to interview and browbeat him into testifying as he, Binder, wished. The witness refused and was thrown out of the office when he adamantly stuck with his prior statement for the police that he signed and to which he had sworn.

The jury heard “falling” more than they heard “lunging”

    Andy in reply to MarkS. | November 4, 2021 at 4:30 pm

    from Binger.

    Juris Doctor in reply to MarkS. | November 4, 2021 at 4:34 pm

    No they didn’t.

      Mark is right. The prosecution wanted to repeat ‘falling, falling, falling, falling…” so often that even though the *witness* said lunging, they will *remember* falling. Remember, the jury has been soaked in prosecution slant and media crap for the last months. They are predisposed to hear what they expect to hear.

      iconotastic in reply to Juris Doctor. | November 4, 2021 at 7:03 pm

      As someone who served on a somewhat long murder trial, I certainly would have put this contention into my notes and circled it two times for discussion during deliberations.

    Observer in reply to MarkS. | November 4, 2021 at 5:15 pm

    They heard “falling” from Binger, as he repeatedly tried, and failed, to get McGinnis to agree that Rosenbaum was falling when Rittenhouse shot him. But McGinnis made it clear that Rosenbaum was “lunging” and that that’s what he meant when he said (during the Tucker Carlson interview) “falling.” McGinnis was insistent in clarifying that that is what he saw, and you can bet that he will get to make that point again when he’s cross examined.

      LibraryGryffon in reply to Observer. | November 5, 2021 at 4:27 pm

      If this is anything like the two juries I’ve been, the jury will be quite aware of the badgering of a witness by a lawyer. I didn’t see any of that in the criminal trial I sat on. But in the malpractice trial the plaintiff’s lawyer kept harping on stuff which the defense witness kept disagreeing with, until it got to the point where the doctor on the stand pointed out that he might not actually have performed surgery in the past several years due to his age, but as the current head of a Cornell-Weill surgical department, he was pretty sure he knew what the appropriate standard of care was. It’s been nearly 20 years, and I still remember that exchange. (The entire jury knew it was a verdict for the defendant within the first half day of the trial. It went on for a week.)

      Assuming that the jury actually look at the facts and return the logical verdict, is there a way for residents of the state to go after the prosecutors for wasting tax payer money on this farce?

A crazy thought just occurred to me. In another case, the case of Chrystul Kizer who shot her long time abuser, rapist, and trafficker Randall Volar in 2018, Kizer prosecuted her because he wouldn’t tolerate what he called “vigilante justice.”

That decision was very unpopular in the legal community (not to mention wider society). Perhaps it wasn’t popular in his own office. It wouldn’t be the first time that ADAs mutinied.

Maybe Kizer’s decision to prosecute KR was also unpopular.

Could Binger be throwing this case on purpose?

    Exiliado in reply to Arminius. | November 4, 2021 at 3:32 pm

    A decent person would simply refuse to participate.

      That’s an interesting comment. Should a Juror simply stand up and say “That’s a crock of Sh!T ! I’m out of here. I’m not your subject!” … What’s the downside ? Contempt of DA ? …

      The whole mandatory jury service as a “civic duty” is so manipulated that it amounts to “slavery” and duress. And, that is not taking into consideration the subordination of supposed protected “rights” (restrictions on the government) afforded by the US Constitution to the juror pool during voir dire.

      This is clearly a “political propaganda” exercise. … Another poignant example of why “immunity” qualified or absolute for any “public official” should be verboten, It is a “judicial construction” and thus prima fascia not lawful.

        SDN in reply to Sisu. | November 4, 2021 at 10:36 pm

        No, that juror needs to stay and guarantee a hung jury rather than allow replacement by an alternate who has fewer principles.

        TrumpWon in reply to Sisu. | November 9, 2021 at 1:51 pm

        I agree. It’s as if they tried to establish that the corollary to the right to a trial by jury is the duty to be on a jury, but it isn’t in the law. So they pretend that it exists, and that the govt somehow thus inherits a power to subject citizens to involuntary servitude.

        My first question if ever I was charged with evading a jury summons would be “What crime have I been duly convicted of?”, because that is the only exception for involuntary servitude.

        But like SDN below says, I’d stay on a political trial just to be the turd in the punchbowl via nullification.

      TrumpWon in reply to Exiliado. | November 9, 2021 at 1:52 pm

      The only problem is that a decent person is rare. One who is decent AND intelligent enough to serve on a jury is a unicorn.

    pst314 in reply to Arminius. | November 4, 2021 at 4:25 pm

    I was wondering that, too.

      pst314 in reply to pst314. | November 4, 2021 at 4:26 pm

      I mean, I was wondering if the prosecutor might be throwing the case.

        This guy? Not a chance. He’s a True Believer, and the anti-gun Left will have him on a pedestal after this is all over. Expect him to be a well-paid talking head on CNN, continuing to preach the gospel of There Is No Legitimate Self-Defense until he is old and grey.

          Arminius in reply to georgfelis. | November 4, 2021 at 9:34 pm

          But Binger looks so sincere. As he begs his own witnesses to pour gasoline and set fire to his case. Unless he’s deliberately throwing the case I can’t explain this.

          ackbarsays in reply to georgfelis. | November 5, 2021 at 9:33 am

          I honestly thought Binger might be trying to throw this case, and if the jury still comes back to deliver a guilty verdict, his repeated use of the word “militia” in relation to Kyle on the video narration and the pausing of that video so the title was visible to the jury seems to open an avenue for an appeal of any guilty verdict that does come back.

          But, in order to appease the same crowd that was burning down Kenosha that night, Binger would also have to APPEAR to be trying to put on a case to convict the kid. That might be why he seems like such a dick all the time. He’s over-acting.

    You confused the names. You cited Chrystul Kizer both as defendant and as prosecutor, and referred to a mysterious “KR.”

Midfiaudiophile | November 4, 2021 at 3:25 pm

The more people Binger brings saying that it was likely that Rosenbaum intended great harm to Rittenhouse, the more likely it seems to the jury that Rittenhouse’s concern about such was reasonable. McGinnis should have been in and out of the witness seat as quickly as possible, especially avoiding giving him the chance to say “I thought he was grabbing for Kyle’s gun”.

601(c) FRE Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Honest, non-rhetorical question: Is this the worst prosecutor in the country or is the case that he’s been tasked with prosecuting such a loser that this is the best anyone could have done with it?

    Barry in reply to TargaGTS. | November 4, 2021 at 4:27 pm

    This is the typical marxist prosecutor. They don’t expect anything other than a guilty verdict regardless of the stupidity to which they conduct their interrogations.

    They are, stupid, really stupid.

    Prosecutor (lead) is often an elected position…yeah lots of hired ones, so the office is politically elected.

    Elected by who?

    The jury pool.

    This is why KR could be convicted. The jury believes what the prosecutor believes because they elected him. This is why you should not live in a blue city blue state hell hole.

    This is why cops are being prosecuted in Washington and have a strong chance of being convicted. Politically charged prosecution presenting to a woke jury. You’re screwed.

    Hope it doesn’t work out that way for Kyle.

      Decee in reply to Andy. | November 4, 2021 at 4:57 pm

      The only thing I’d say to this is that Binger just doesn’t seem very likable. I can’t put my finger on why, he just makes me feel a but uncomfortable and has come across as quite untrustworthy.

      TrumpWon in reply to Andy. | November 9, 2021 at 2:08 pm

      Thats why cases like this ought to be tried by a federal jury that could be selected from the entire district at large, since the criminal action involved persons and weapons that moved in interstate commerce. If the feds can bring their own superseding indictments on top of state murder charges (using the CC) , then surely they can argue that only a jury composed of the entire district has the authority to hear the case (the same way that they argue that only the circuit DA’s can try the superseding charges in federal courts).

      The offense isn’t federal but the nexus and jurisdiction is there so that should be all that is needed to assert federal supremacy to compose a jury that properly represents the interests of the federal govt in all matters involving interstate commerce. Particularly even more so because of the large federal law enforcement presence at the event signals that they’d already decided they had original jurisdiction over the unrest in Kenosha – if that doesn’t bring the case squarely into the federal domain, then nothing could.

smalltownoklahoman | November 4, 2021 at 4:04 pm

ADA Binger making Stumblin’ Joe Biden look positively agile! Let’s hope he keeps tripping up on this case!

We’re on day 3 and I’m still waiting to see one bit of evidence from the prosecution that shows that KR is guilty.

All I’ve seen is evidence after evidence, ironically produced by the prosecution, that proves his innocence.

If someone just casually tuned into proceedings, they would get the impression that Binger is the defence attorney.

IANAL, but isn’t the prosecutor supposed to try to prove the accused guilty? This one seems to be dead set on proving him innocent.

It is not over until the jury returns the verdict.

Do we have an idea how long the testimony is expected to go?

TaxPayingPatriot | November 4, 2021 at 5:00 pm

Painful to watch. I am reminded, for the older folks here, of the shooter on the LIRR, for which they did a skit on SNL. The shooter represented himself, and asks, can you identify who the shooter was. The response is “it was you”, and the shooter/self-representing ‘lawyer’ says ‘no further questions’.

I almost feel sorry for the prosecutor here … he seems to have no case. That folks showed up to take an opposition to mayhem is apparent, but hey had no obligation to retreat. Some apparently dubious characters misread their perceived advantage to their own demise is also apparent.

You can argue that Rittenhouse should’ve stayed away and spared himself this anguish, but the account so far, before we even see the defense’s position, is that he acted in defense of himself from aggressors. I hope they bring the Grosskreutz onto the stand, and ask him if he regrets his actions.

I’d personally not wish to inject myself into this type of altercation, seems unwise, but this is a foreshadowing of what might come here at home, and a playbook for when law enforcement doesn’t step in and ‘quell’ destruction of property to make some point of protest.

    “hope they bring the Grosskreutz onto the stand, and ask him if he regrets his actions. ”

    He’s already made it clear. He said he wishes he’d emptied his weapon into Rittenhouse. There’s ZERO remorse or ajcknowledgement.e

Objectionable as leading but why object when the prosecution is destroying its own case?

TaxPayingPatriot | November 4, 2021 at 5:02 pm

and thanks to branco for the legal play by play … bored, between jobs, watching this dumpster fire prosecution. I should’ve gone to law school rather than fetch an MBA.

Why is a “journalist” used as a STATE witness at all??

    Think38 in reply to geronl. | November 4, 2021 at 5:43 pm

    Because McGinnis is the primary witness of the initial shooting. If they don’t call him, it looks too much like they are hiding something.

    ThePrimordialOrderedPair in reply to geronl. | November 5, 2021 at 1:47 am

    “journalist” is right. That McGinnis guy doesn’t seem to have much of a command of the English language, which was part of the problem. Of course, the prosecutor seems to be incapable of anything more than utterances and grunts. I was kind of surprised he didn’t break into that click language …”*click* fall *click* *click* *clickity* falling fall *clack* *whomp* falling …”

The prosecution is betting on a “Chauvin jury”– one that is so fearful of the consequences of a “not guilty” verdict–both to society (more riots) and themselves personally–that they vote to convict.
The problem, of course, was that Chauvin was a thug. It was relatively easy to throw him to the wolves. Rittenhouse–not so.
The problem that my proposition illuminates–the “Left” riots and burns things if they don’t like something. The Right doesn’t. The Left will burn down the neighborhood over George Floyd. Rittenhouse being convicted will have a few of us using strong language. No liquor stores will be looted.

When the evidentiary record and facts don’t support the charges brought by the State, “train wreck” days for the prosecution shouldn’t be unexpected.

This entire case is a show trial farce; the charges never should have been brought, the evidentiary foundation is so manifestly non-existent.

Frankly, when prosecutors bring manifestly politically-motivated charges that are totally unsupported by the facts and the evidence, I think that should be a clear-cut case of malicious prosecution, resulting in severe ethical sanctions, if not outright disbarment. Because, such conduct represents a total abuse of the prosecutorial power and, by extension, the State’s power.

    ThePrimordialOrderedPair in reply to guyjones. | November 4, 2021 at 6:52 pm

    I think that should be a clear-cut case of malicious prosecution, resulting in severe ethical sanctions, if not outright disbarment.

    The punishment for malicious prosecution should be that the prosecutor suffers the maximum penalty for the charges he was maliciously trying to pin on the defendant – plus some extra.

      Actually the death penalty is what is called for under 18 USC 242. Malicious prosecution in this case resulted in kidnapping, which qualifies the defendant for the death penalty.

      Its pretty clear that some heads need to roll.

Malicious Prosecution. Go get them, Kyle and live a happy and rich life much like a young man that got slimed by the MSM down in DC

Memo to Binger — when the purported “victim” in your narrative is described by a witness as “lunging” at a person and the weapon that he is holding, that is a violent action and is not the conduct of an allegedly innocent party.

Also, how dishonest is this Binger character? When he replays the Carlson interview clip, he cuts out the part where the witness had just earlier described the decedent as “lunging.” So, first the decedent lunged, then, he was shot and then he fell, due to being shot and his own momentum from lunging. Not rocket science!

ThePrimordialOrderedPair | November 4, 2021 at 6:47 pm

Is that prosecutor retarded? Seriously. Or does he just think that the jurors are (maybe they are)?

Does Wisconsin have a “malicious prosecution” statute applicable here?

Did this prosecutor not interview his witnesses before he called them? it seems nuts that he would lead with these people–don’t they generally lead with strong witnesses? Why did he even bring these charges?

conservativeprof | November 5, 2021 at 12:57 am

This trial provides good insight into political prosecution. The media coverage of the riots indicates the chaos endorsed by the left. law enforcement were prevented from stopping the chaos as a means to defeat Trump. The leftist riot caused millions in property damage, a scene out of apocalypse. Rittenhouse and others tried to protect private property that Democrats were happy to sacrifice to stop Trump.

The leftist prosecutors are essentially defending the left’s right for chaos as a political weapon. The prosecutors are outraged that a political opponent would use a firearm (especially a dreaded AR-15) to defend private property. The extensive videos leave no doubt that Rittenhouse was hunted like an animal by rioters. Rittenhouse was pursued with provocation. Only a fool or committed Marxist would pursue someone with a rifle. Rittenhouse retreated until cornered like a rat. He then took self defense action.

The prosecution wants to split hairs and say that Rittenhouse should have realized that he was not in danger. Watching the videos clearly indicates chaos and danger to Rittenhouse. His attackers should be on trial for murder, not Rittenhouse. Their behavior caused the death of their rioting comrades.

It sounded like the ADA was leading the witness, but the defense let her destroy her own case by not objecting.

It’s pretty obvious that when someone “Lunges” at you, their back will be the most area that you will see. If at that point you pull the trigger you most likely hit the person in the back. My question for the prosecution is, why would the perp be falling if he was attacking Rittenhouse?

Prosecutor looks like a weak-chinned stooge seeking to build his resume for his future political career.

Whatever happened to “asked and answered”? That dope kept hammering away at “falling”. Good on the witness for not allowing himself to be cowed into a false admission.

The interview was not testimony. What one says in relatively casual circumstances cannot in any reasonable way be taken as equivalent to sworn testimony.

I’m thinking the political future of Mr. Prosecutor is looking dim and grim at this time.

Mors tyrannis.

The man brought an AR-15 to a riot and shot three people, two of whom died.

Of course this matter needed to be brought to a trial. While we can look at this and decide that it was self defense, it would be improper for a prosecutor to make that decision by himself. This needs to go to a jury. Anything else will leave one side or the other convinced that the fix was in.

So far, what I’ve seen leads me strongly to vote “not guilty.” But our system doesn’t leave that decision in my hands, nor would I want it to. So talk of wrongful prosecution is off-base.

    TrumpWon in reply to bobby b. | November 9, 2021 at 1:45 pm

    Why do you assume that “of course this matter needed to be brought to a trial”?? As if there is no non-criminal use of a firearm? Incidents of self-defense require no trials. It is obvious that it was self-defense, and it was on video.

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