LIVE: Rittenhouse Trial Day 3

LIVE: Rittenhouse Trial Day 3

Welcome back to our ongoing live coverage of the trial of Kyle Rittenhouse. Kyle is charged with a variety of felonies, including first-degree murder, for shooting three men, two fatally, as well as for alleged reckless conduct on the night of August 25, 2020, in riot-torn Kenosha WI.

You can find our commentary and analysis of yesterday’s trial proceedings here:  Rittenhouse Trial Day 2: Prosecution Witnesses Still Fail To Contradict Self-Defense.

You can find our live streaming of today’s court proceedings as well as our live, real-time commenting of courtroom testimony and argument as it occurs, both near the bottom of this LIVE post.

Yesterday’s court proceedings ended while the parties were in the midst of a debate over the admissibility of a question posed by the defense during cross-examination to state’s witness Detective Martin Howard, the youthful-appearing lead investigator on the Rittenhouse case.

As we noted in yesterday’s coverage of the trial, Assistant DA Binger seemed to get little of value to the prosecution in his roughly two hours of direct examination of Howard, seemingly using the detective mostly as a vehicle to get a great many spectator and social media videos of the night’s events into evidence.  It is notable that not one of the videos I observed—and I believe I observed them all—contained any substantive evidence inconsistent with Kyle’s core legal defense of self-defense.

The cross-examination of Detective Howard by defense Attorney Mark Richards, however, was much more substantive and productive, and generated a great deal of testimony that reinforced Kyle’s claim of self-defense (key to defending against the homicide charges), as well as his reasonableness throughout the night (key to defending against the recklessness charges).

Richards also elicited from Detective Howard considerable testimony about violated investigator practices and highly exceptional, and undisclosed, treatment of certain state’s witnesses—particularly Gaige Grosskreutz, the only witness whose phone was not seized by police (on an apparent pretext initiated by Prosecutor Binger, and despite police having a search warrant in hand for precisely that purpose), and the only witness whose police interview was not recorded (which recording would have had to have been shared with the defense).

Remarkably, it was apparently after one of these instances of unusual and undisclosed to the defense coordination between the District Attorney’s office and the youthful Detective Howard that the detective, in his position less than two years, was that very night made the detective on this extraordinarily high profile Rittenhouse case.

In short, Attorney Richards’ cross-examination of Detective Howard was certainly among the few highlights of an otherwise rather tedious day where the state seemed to make no ground whatever in undermining Kyle’s claims of self-defense, and the defense successfully had the jury exposed to ever more evidence consistent with Kyle’s self-defense claim.

And we’re not done with the defense cross-examination yet, as it will continue this morning after being interrupted at the close of trial proceedings yesterday.

And that brings us back to the nature of that interruption.

Attorney Richards was in the process of questioning Detective Howard on cross-examination, and essentially having him step through the key events of that night in more-or-less chronological order.  They were now at the point where Kyle had shot Rosenbaum in self-defense and was beginning to flee towards the police line a couple of blocks down the street to turn himself in to police—you know, like people who murder with malice typically do.

It was during this flight to safety down Sheridan Street towards the flashing lights of police vehicles that Kyle would be attacked by the mob generally and knocked to the street, and there attacked specifically by “jump kick man” (who Kyle fired at twice, but missed), Anthony Huber (who Kyle fired at once, and hit, fatally), and Gaige Grosskreutz (who Kyle fired at once, hitting his arm).

The moment at which Kyle shot Grosskreutz, who was advancing on the fallen child with a Glock pistol in his hand, was not the first time the two had interacted, however.  Kyle Rittenhouse and Gaige Grosskreutz had also interacted earlier, while Kyle was just beginning his flight to safety down Sheridan Street, nearer to the Car Source lot where Rosenbaum had launched his initial attack on Kyle.

It was this earlier contact between Kyle and Gaige Grosskreutz that Attorney Richards was asking Detective Howard about when the ADA Binger raised an objection that triggered argument sufficient to justify ending the day at that late point in the afternoon.

During this exchange, Grosskreutz runs right up to the fleeing Kyle, cell phone camera in Kyle’s face, and asks, “Did you shoot that guy?”  The response that Kyle made, in real life, was words to the effect of “I had to, it was self-defense.”

It was that response from Kyle that Attorney Richards was seeking to extract from Detective Howard when ADA Binger objected, arguing that it question seeking that answer calls for hearsay—an out of court statement offered for proof of the statement itself.

It should be further noted that although the state is permitted to offer out-of-court statements of the defendant in a criminal case, as an exception to the hearsay rule, the defense generally is not.

That said, there are a great many other exceptions to the hearsay rule, as well as other grounds for why an out of court statement ought to be admissible, and Attorney Richards made such an argument here, telling the judge that Kyle’s response to Grosskreutz’ question ought to be admitted under the doctrine of completeness, and also that the matter had already been either admitted into evidence or at least discussed before the jury earlier in the proceedings.

Everyone’s arguments and recollections became so ambiguous, however, and it was late enough in the afternoon, that Judge Schroeder “called a lid,” to use a political term, and decided to finish arguing the matter out in the morning.

And that’s where I expect things to pick up again this morning.

Here’s some video of that end of cross and the subsequent initial argument on the matter after the jury was dismissed from the courtroom.

Incidentally, at the end of the second video there’s also an issue raised by the prosecution seeking to dismiss one of the jurors for cause because of a joke the juror attempted to tell a bailiff, to which removal the defense objects, and I expect that to be resolved this morning, as well.

Is the Defense Failing for Lack of Objections?

On an entirely separate topic, I’ve been receiving a lot of comments and communications from folks who express great concern that the defense is failing Kyle Rittenhouse because of a purported failure to make sufficient objections to the state’s questioning of witnesses and presentation of video evidence.

Apparently, these concerns are being fostered by legal commentary and analysis being made about the case both others, including other lawyers, who are covering the Rittenhouse trial on the internet, much as I’m doing myself.

The first thing I should mention is that I don’t get anything but the most incidental exposure to other commentary and analysis of trials I cover, at least while I’m covering them.  Just doing what I do, every day, to cover a trial like this is already a 5 am to 9 pm job—I haven’t time to look at other people’s commentary and analysis.  That doesn’t mean it’s not necessarily good commentary and analysis, only that I wouldn’t know, personally.

That said, it seems to me as if people are looking at the matter of objections in a hyper-technical sense, as if every possible thing that could be objected to should be objected to, period.

And that’s just not how things work in a real-world courtroom.

Whether to object involves a great many factors, not all of them purely legal, and so there’s always a balancing of those factors by any attorney presented with the technical option of making an objection.

For example, not only is the decision to object invariably a balancing of some sort, many of the theoretical grounds for objecting are themselves a balancing.  One of the most common complaints I’m hearing about this defense, for example, is that they are failing to object to evidence that is prejudicial.

OK, fine—but it’s a criminal prosecution, folks. In every criminal prosecution ever, the state is admitting evidence that is prejudicial to the defendant, if by prejudicial we mean “harmful.”  And the state is allowed to do that—it’s their job. If they could only introduce evidence that was not harmful to the defendant, there’d be little point to prosecuting anybody.

The real question, legally speaking, is not whether the evidence is prejudicial, but whether that negative prejudicial character of the evidence outweighs whatever positive character the evidence might have—such as relevance, for example.  Evidence that is highly prejudicial and only modestly relevant is likely to be deemed inadmissible by a judge—but evidence that is highly relevant and only modestly prejudicial is likely admissible.   That’s the balancing, in that context.

But whether to object also requires balancing considerations outside of the technical.

For one thing, many people may not understand that in the process of direct and cross-examination, it is not that each party gets to ask the witness whatever questions might pop into their pretty little heads.  Rather, each successive stage of questioning can only properly address issues that were raised in a prior step.

Imagine, for example, that on direct the state asks a witness about issues A, B, and C, but not about issue D.  That means that cross-examination by the defense is limited to asking only about issues A, B, and C—because issue D was not asked about on direct, it cannot be inquired about on cross.

Now imagine that there are aspects of issue C that are very, very important to the defense—they want to dig into issue C with a bayonet and gut it, right in front of the jury.  At the same time, there are some small facets of issue C where the evidence is arguably prejudicial or irrelevant some other legitimate grounds for the defense to object to the prosecution introducing issue C on direct in the first place.

Does the defense make a perfectly legitimate objection to issue C when the state tried to introduce it on direct—meaning, if the defense objection is successful, that issue C would be unavailable to them on cross-examination?  Or does the defense accept the modest hit of whatever facet of issue C is unfavorable, so they can thoroughly eviscerate that issue on cross-examination in front of the jury?

UPDATE: But on this particular point, see comment below from chaswjd: “Wisconsin does not follow the scope of direct rule for cross-examination. Wis. Stat. §906.11(2) (“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.”) If Judge Schroeder has not ordered that cross be limited (and few Wisconsin judges do) cross is a wide open field.” I share this in the interests of transparency, I myself am not in a position to either confirm or deny this is the case in Wisconsin, but it’s certainly possible, and I have no reason to think otherwise.

My personal inclination has always been to take a pass on the objection on direct so that I can have substantive fun on cross.  And I expect we’re seeing quite a bit of that here, and will see more moving forward.

Of course, it’s possible that defense Attorneys Richards and Chirafisi are simply incompetent buffoons who have no idea what they are about and are simply flushing their defendant’s case down the toilet because of their ignorance of how to raise objections.

But that’s not the way I’d bet, based on my observations of their performance to date.

OK, folks, that’s all I have for you on this topic.

here’s today’s live stream video and commenting of court proceedings.

LIVE STREAM

LIVE COMMENTING

And don’t forget to join us this evening for our usual plain English legal analysis and commentary of the day’s proceedings, along with courtroom vide0 of it all.

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

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