Rittenhouse Trial: Defense Delivers Disappointingly Weak Closing Argument
Rittenhouse deserved a great deal more than Attorney Mark Richards delivered.
The closing statements are now done in the Rittenhouse trial, and the jury will now begin deliberations—although not until tomorrow morning. That means, of course, that we’ll be launching or VERDICT WATCH blog post in the morning at Legal Insurrection, so keep your eyes there for breaking news on a verdict.
And with that, let’s dive into the unpleasant task of noting the poor closing argument presented by the defense in this case.
Defense Delivers Disappointingly Weak Closing Argument
This is an unpleasant task because on the legal merits Kyle Rittenhouse ought to be acquitted by a unanimous jury on every one of the five felony accounts against him, with the State having failed to prove provocation beyond a reasonable doubt and having failed to have disproven self-defense beyond a reasonable doubt.
And that may still happen. I hope it does. He deserves those acquittals.
That said, I’m well aware that sometimes defendants who deserve acquittal end up getting convicted, regardless. There might be many reasons that could occur. One of those reasons is a weak legal defense, and particularly a weak defense in the critical closing argument, the last opportunity the defense team has to plead their narrative of innocence to the jury.
If the legal defense effort, particularly the closing argument, is as close to perfect as a skilled attorney can hope to deliver and the client gets convicted regardless—well, at least from my perspective as a lawyer, at least I know I did the best I could, and it didn’t go sideways because I could have done more.
When an effort far short of perfect is delivered, again particularly in closing argument, and the client deserving of acquittal gets convicted, then one is always left to wonder whether a better closing argument might have made the difference, whether if more had been done the client would be free today.
Kyle Rittenhouse deserved a better closing argument than he got today, and if he’s convicted on any of these charges I would find it hard to not attribute such an injustice to much of anything except today’s weak closing argument by his Attorney Mark Richards (well, excepting, of course, for the politically-motivated prosecution itself, but that’s precisely what the defense is supposed to stop).
The weaknesses in the defense closing argument really fall into two broad categories, with a bit of overlap.
One category of weakness includes aspects that are inherent to the closing itself, aspects that diminish the closing irrespective of anything the prosecution is arguing. These are really own-goals, and there’s no good excuse for these at all.
The second category of weakness is more of a failure to anticipate and account for the perfectly foreseeable points the State was likely to make on rebuttal—the defense must anticipate these because they will have no opportunity to speak to the jury again after that rebuttal.
Given the lateness of the hour, I’m going to focus this content solely on this kind of high-level review of the defense closing argument, to get it out to all of you in a reasonably timely manner.
Then I’ll follow up in the morning with a more detailed breakdown of the State’s closing statement (by ADA Binger, and essentially what we expected), a more comprehensive look at the defense closing by Richards, and a detailed breakdown of the State’s rebuttal (by ADA Kraus and also pretty poor). There I’ll include the relevant video clips of the closing arguments.
Poor Choice of Tone if Goal is Persuasion of Jurors to Defense Narrative
Perhaps the single biggest weakness I saw in the defense closing argument was apparent from the first moments of Attorney Mark Richard’s speaking to the jury, and which I suppose was predictable by his generally gruff manner—and why I would have preferred to have Attorney Core Chirafisi do the defense closing argument.
And that was the angry and personal tone Richards took to the prosecution.
Let me make clear, there’s no question to my mind that the prosecution, in this case, has earned every bit of that anger. The State has played fast and loose with both the facts and law in this case, trying to gin up a conviction from crumbs left on the bakery floor, all with the goal of putting Kyle Rittenhouse into a cage for the rest of his life by legal means not soundly based on facts and law.
And that’s horrible and wrong. The prosecution and the defense attorneys are both lawyers who work within the criminal trial setting, but their roles are very different. The inherent power of the State means that they are more tightly constrained than is the defense, or ought to be.
The mission of the defense is a win by any means necessary—it’s the burden of the State to overcome the wily defense and achieve a conviction beyond any reasonable doubt., to get that win for their client.
For the prosecution, the mission is—or is supposed to be—much different. The prosecution’s mission is supposed to be justice—not merely winning by any means necessary.
So, I have no doubt that Richard’s anger and resentment towards the prosecution here is genuine and well-founded.
But that’s not the point of the closing argument. Closing argument does not exist so that defense counsel can air out his frustrations with the game-playing of the prosecution. Closing argument exists so the defense can have that last final opportunity to compelling communicate their narrative of innocence to the jury, the last chance they will ever have to do that, to secure that acquittal for the client—even more important than usual when the client overwhelmingly is deserving of an acquittal as here.
I suggest that using the closing argument as a forum to bitch at the prosecution does not do much, at all, to help secure that acquittal for the client, especially not when a better choice of tone would likely have been far more effective.
Taking the tone of “those rioters, looters and arsonists were all scumbags, and this prosecution is just a suit-wearing version of the same chaos!!!!!!” may feel good, and may even be to some degree true—but does it help sell the narrative of innocence to a jury that is looking at all this through entirely different eyes than those of the lead defense counsel?
I’ll note here that the State has repeatedly referenced Kyle as a kind vigilante, out looking for trouble until he found it, expecting to be treated as hero, and “just tryna be famous,” per Kyle’s own TikTok profile. To the extent that the defense is presenting Kyle as someone they believe should be perceived as a heroic defender and the people he shot or endangered as miscreants who had it coming only helps the prosecution paint their client in this negative light. (And it doesn’t matter that the defense portrayal of Kyle is true.)
Drive a Narrative of Innocence Consistent with, not Contrary to, the Jurors’ Sympathies
If this jury convicts on any of these charges—and they well might—it will be because the prosecution has been successful in fostering some degree of sympathy among the jurors for the people killed, maimed, and purportedly endangered at the hands of Kyle Rittenhouse.
To put it another way, unless that’s happened an acquittal is already secured, and the defense need not engage in the fire-and-brimstone display at all. But we can’t know that, of course, so we must assume that some degree of sympathy for the “victims” has been successfully fostered by the prosecution.
If that’s so, you don’t make ground with those jurors in particular by shouting your outrage about those horrible people. Instead, you just come across as unsympathetic—which, of course, reflects on your client.
A better approach, in my humble opinion, is to approach the jury not from one’s own position as a righteously outraged defense attorney with a client facing a potentially cataclysmic conviction for no good reason, but rather from the position of those jurors themselves.
Acknowledge that the people who died were human beings, and you and your client wished they were still alive today. Even with respect to the initial aggressor, Joseph Rosenbaum, whose attack on Kyle triggered all else that followed, everyone would prefer that he were alive today. Everyone wishes that nobody died that night in Kenosha, and that’s particularly true of your client.
That said, it wasn’t your client’s choice that these tragic events occurred—it was the result of the choices of those others, choices that compelled your client to exercise his privilege under Wisconsin law to defend himself from violent, life-threatening attack.
Acknowledge that perhaps those people who attacked Kyle, especially at the second location, might have genuinely believed that they were acting to stop some kind of active shooter. They were mistaken, of course, Kyle was as far from an active shooter as it was possible to be, for reasons you’ll detail in a moment. Perhaps even Rosenbaum’s attack was triggered by personal demons that nobody but he could understand, but which he found impossible to resist.
Whatever the reasons for their attacks, no matter how well-intentioned or compelled by personal demons they might have been—none of that, not one bit of it, in any way diminishes the privilege of your client to defend himself from their attacks.
There’s nothing my client wishes more than that Joseph Rosenbaum and Anthony Huber were still alive and with their loved ones, and that Gaige Grosskreutz was unmaimed. That’s the world he would have chosen to exist today—if only those people, and others, had not violently stripped that option from him by their attacks, however motivated, that threatened him with apparent imminent death.
Failure to Step Methodically Through the Elements of Self-Defense
My next point may be more a reflection of my own temperament, and is perhaps just a personal or professional preference on my part—but I would have been far more detailed and specific in stepping through the elements of self-defense as applied to each of these felony charges.
For each count, I would have made clear in plain language exactly what circumstances would lead Kyle to believe he was facing an unlawful forcible attack (Innocence), that the harm feared from that attack was either already being inflicted or apparently immediately about to occur (Imminence), how the nature of the threat presented an apparent risk of death or serious bodily injury (Proportionality), and how all of this was not just genuinely believed but objective reasonable (Reasonableness).
Example: Failing to Address with Specificity the Issue of an “Unarmed” Rosenbaum
This would have been particularly useful in addressing the all-critical first attack by Joseph Rosenbaum. We have seen how throughout the trial ADA Binger has been making much of the argument that some of the people attacking Kyle were “unarmed.” Indeed, at one of the pre-trial hearings, Binger had actually argued that it could never be lawful for an armed man to shoot an attacker who was unarmed.
So the defense ought to have had every expectation that much would be made in closing about the “unarmed” nature of Rosenbaum’s attack on Rittenhouse, and it should have been made crystal clear to the jury how deceptive this framing was.
In particular, Rosenbaum was not merely fake-rushing Kyle, or poking Kyle with an index finger, or even shoving Kyle forcibly backward—Rosenbaum was fighting Kyle for control of his rifle, and in the context of the death threats Ryan Balch and Kyle himself had testified about.
The moment Rosenbaum is fighting for the control of the rifle, he is no longer “unarmed” in any meaningful sense of the term. Instead, he’s in the process of arming himself. With a rifle. With Kyle’s rifle.
If Rosenbaum were picking up a dropped rifle from the ground under those circumstances nobody would doubt that he was arming himself for the purpose of using that rifle on Kyle.
By not merely picking up some other rifle, but fighting Kyle for his own rifle, Rosenbaum is actually creating a greater threat than that, because he’s simultaneously disarming Kyle while he’s arming himself.
No such argument was made by Richards during his close. And I expect I know why—because he approached this closing argument from his own perspective, as someone to whom this argument is obvious and intuitive, rather than from the perspective of jurors who had developed some sympathy for these “victims” and their families, and for whom this notion of “arming oneself with the other guy’s gun” might not be so obvious and intuitive.
By addressing this issue only vaguely or not at all, Richards left a gaping opening for Kraus to wobble through in his own State rebuttal argument, where he went on at length about Rosenbaum’s status as “unarmed.” Kyle brought a gun to a bar fight, he could have punched Rosenbaum, or kicked him the testicles, or struck him with the rifle as an impact weapon—anything other than fire four rounds into him for the purported offense of merely chasing him.
Failure to Concretely Define Imminence to Jury
The failure to make the legal concept of imminence clear also left another gaping opening for Kraus to suggest to the jury that Kyle was not permitted to defend himself against an attack that was immediately about to occur, and avoids injury entirely. Rather, Kraus suggested, sometimes we just have to take a beating before we’re privileged to defend ourselves, and Kyle didn’t do that. Frankly, that’s just an outright misstatement of the law. In fact, a defender need not suffer so much as a scratch before being privileged to use even deadly force in self-defense.
In any case, the defense is unable to respond to any of this nonsense by ADA Kraus, because they don’t get to rebut the State rebuttal, so by necessity, such things must be addressed prior, to the defense closing argument. And they were not.
My Preference: A Less Wandering, More Methodical Guide for the Jury
Personally, I would have preferred to have seen a much more methodical progression through each of the elements of self-defense for each of the criminal charges, so that the jurors had an easy, well-marked trail to a justification acquittal on each of them.
You don’t want the jury to spend hours in deliberations hacking through those 36 pages of jury instructions with a lay person’s understanding (and misunderstanding) of the legal concepts, especially when they were so confusingly communicated by Judge Schroeder, in the first place.
Instead, you want to show the jury the way, in a step-by-step fashion. See, you start here, and this is how we (the defense) see the evidence apply to this legal condition, and that brings us right over here, where we think this happens, and then over here, and then here, and ACQUITTAL! Now let’s do Count 2.
Reasonableness Assessed from Kyle’s Perspective, Age, Circumstances
Also, an absolutely critical facet of any claim of self-defense is that the perceptions, decisions, and actions be assessed from the perspective of the actual defendant, given their particular attributes, the surrounding circumstances, abilities & disabilities, training and experience, and so forth.
In this particular case, we have a 17-year-old Kyle Rittenhouse who found himself isolated and alone in horrifically chaotic circumstances, not of his own making and facing a series of apparently lethal attackers.
Did Kyle make the best of all possible decisions in each of these use-of-force encounters? Frankly, I think he probably did—but that’s not the point. Our concern is that a jury might not think so, that a juror might have thought that with hindsight there was a better option available.
We can see how the prosecution pounded home on this point when they kept coming back to the idea that the first round to strike Rosenbaum broke his pelvis and probably left him instantly unable to further threaten Kyle—yet Kyle shot him three more times, including the fatal shot.
Strictly speaking, with perfect hindsight, we can see that those successive three shots were probably not actually necessary. Does that make them unlawful? After all, isn’t lawful self-defense conditioned on necessity.
Well, no, actually. Lawful self-defense is conditioned upon apparent necessity. And there was no way, in that brief 0.76 seconds in which Kyle fired his first and lost shot into Rosenbaum, that Kyle could have known that his first-round had effectively knocked Rosenbaum to the ground.
During that 0.76 seconds, Rosenbaum continued to present as apparently diving and lunging for control of Kyle’s rifle, and thus continued to present as an apparent deadly force threat for each of those four rounds.
Four Shots is Fine, After All, Jacob Blake Took Seven
Binger touched on the question of whether all four of these rounds were genuinely necessary and therefore lawful, or whether that third or fourth shot, the “kill shot to the back,” was unnecessary and unlawful as the State argued.
Richard’s response wasn’t just not helpful, it might well have been harmful—and again because he approached the issue from his own perspective, rather than from the perspective of one a juror who had perhaps developed some sympathy for the “victims” in this case.
Instead of speaking to this issue on the basis that self-defense law provides for—the reasonable perceptions of Kyle of apparent circumstances, and in the context of his age, prior experiences (death threat), current chaotic circumstances, and so forth, Richards used an argument that likely angered one more jurors.
Let me take a step back for a moment. Recall that these Kenosha riots were over the police shooting of Jacob Blake, something the prosecution touched upon repeatedly. Well, the prosecution is not repeatedly mentioning the Jacob Blake catalyst of those nights of chaos because it’s harmful to the prosecution.
In fact, much of the world believes the false narrative that Jacob Blake was wrongfully shot seven times in the back by Kenosha police officers (later deemed justified), and that therefore there was certainly genuine legitimacy to the protests that followed, and perhaps a bit of “I don’t like it, but I understand where it is coming” from even for some of the less prominent property damage caused by actual rioters.
In other words, there are a lot of people who genuinely, if mistakenly, believe that the shooting of Blake was, as they might put it, a profound social injustice.
With this background in mind, and assuming that there are prospectively several people like that on the jury, how did Richards decide to contextualize Kyle’s firing four rounds into Rosenbaum.
Well, he told the jury, he’s seen cases right there in Kenosha where someone shot another person seven times, and that was deemed to be fine.
Now, he didn’t say the name Jacob Blake—but I’m pretty sure everybody in Kenosha knows the name of the guy who was shot seven in what was later deemed a justified shooting.
It should go without saying that anybody who believes that the shooting of Jacob Blake in the back was an obvious social injustice is going to feel any more favorable to Kyle having shot Rosenbaum four times, including in the back, in an analogy made by his own defense attorney.
A Gun is a Gun, a Bullet is a Bullet
Another dropped ball was in the context of the “AR versus handgun” issue raised by the prosecution numerous times throughout the trial. Binger suggested to the jury that, hey, all Grosskreutz had was a pistol, and in contrast, Kyle had this giant powerful AR-15 round rifle with a 30 round magazine loaded with full metal jacket bullets. That can’t be fair!
Richards’ only response to this was a dismissive “hey, guns are guns, bullets are bullets.” And from his own perspective as a criminal defense attorney, that’s pretty much 100% right. From a legal perspective, it’s all deadly force, both pistol and rifle are readily capable of causing death or serious bodily injury under the circumstances in place, and so there’s really no legal distinction between them.
But that’s not how a jury is going to look at it. A pistol and a rifle, in fact, are different, with different capabilities, and there was testimony to this at trial A typical police body armor can stop pistol rounds, but not AR rounds. Pistols are routinely carried for personal protection public, and ARs only rarely so. Pistols have a relatively short range, but an AR can shout out to 550 yards.
In many obvious ways, the Glock pistol of Grosskreutz and the AR-15 of Kyle are substantively different. And simply dismissively saying “guns are guns, bullets are bullets” doesn’t adequately address this.
Instead, Richards should have conceded that it’s true that in many respects the pistol and rifle here are very different—but that they were not different in any way that applied in these particular circumstances. This was not a case where the two men were 550 yards apart, for example, so that the rifle was effective but the pistol harmless. Under these circumstances either weapon was readily able to inflict death or serious bodily injury to another, and therefore there was no meaningful distinction between them for the purposes of this trial.
OK, folks, I do have more to say on this topic, but the hour is getting late, the team will want to get this published tonight, so I’ll follow up with further thoughts in the morning.
Until next time:
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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Comments
In case of hung jury mistrial, I would do the following:
-Fire Richards
-Hire Chirafisi as lead counsel (see if others are willing to do pro bono work)
-Find sites like LI to set up legal fee donations for Rittenhouse
Sad, but hopefully Scroeder does the right thing beforre this over
Having been a juror, I observed the judge, all he’s “aw’s” when debating with either side gave me chills, I was wondering his hesitation but to use ‘aw’ so often left me with a feeling of fear to make the right argument or ruling; to much indecision. It’s a double edged sword because we also want judges to make sound rulings. Yet, I don’t want a judge who’s thinking ahead so much as he seemed. I’m understanding his position, threats to you or your family are very real nowadays. Criticism of my opinion is welcome. Enjoy & learn from the author and comments here.
I saw it as him trying to word things properly in his mind before he spoke, for the record. I’ve done that long before 2 strokes.
But that’s just my 2 cents
I, too, saw that he was thinking ahead, a lot. He also continued to change his mind. It was quite infuriating.
I also saw him trying to word things properly, as murkyv has already pointed out.
He reminded me of The Forgetful Professor.
I give him kudos for the ringtone that he left on. lol
Jury verdicts being set aside in murder cases almost only happens on (bad) courtroom dramas. If convicted, the likely best he can hope for is remaining free on an appeal bond given the appellate issues Schroeder has already highlighted during the trial. I’m not even sure if such a bond is available for murder convictions. It may not be. Either way, he’s going to have to win on appeal if he loses the jury verdict.
After seeing the overwhelming evidence, I hope some deep pockets pony up to help KR with legal bills
Hire Robert Barnes
Barnes was on Kyle’s legal team but quit over disagreement how to handle the defense. He was dead set against Kyle testifying but I gleaned there were other reasons as well. He was on Megyn Kelly’s podcaast a few days ago.
I would suggest that he should hire a lawyer with a rich, successful history of trying murder cases, specifically those involving self-defense. Barnes is most a white-collar defense lawyer.
For sure Lucky Star and even on the first half of Binger’s close, Barnes analysis included:
– Binger errored on duty to retreat, errored citing Kyle didn’t retreat from Rosenbaum when in fact Kyle withdrew running away, i.e. withdrawal and notice, then turned and warned again with weapon and turned away again (as Joseph Rosenbaum kept closing in)
– Fabricated claim that Rosenbaum’s hand was contorted in a bizarre manner that was not supported by evidence and prosecutor’s expert witness
Defense objecting on weak points gives the jury the impression that the Prosecutor Binger is correct and not lying about major errors (above)
And of course we all knew to vigorously object to Binger’s lies about what constitutes provocation, to say nothing about his suggestion that Kyle should have fired warning shots! (reckless endangerment) – ever see police fire a warning shots?
Look on the bright side. The defense has established a strong ineffectiveness of counsel appeal claim.
The path for a conviction is straightforward at this point. I think the best Kyle can hope for is a mistrial — there is surely one or more activist on the jury that will refuse to acquit
Bullsnot….the law is still heavily on his side as long as these sample of USA’s “finest” are too blind to see it.
The law is on the side of business owners not having their life’s work burned to cinder and ash, but look where we are.
What we have seen in both this case and the Chauvin case is rank amateur prosecutors who are veritable morons in the practice of law have the upper hand by nature of the monopoly of power. By practicing law- I’m being generous in both trials.
Despite criticism of Richards- he’s better than what I would be able too afford in Kyle’s shoes.
Prosecutor gets to roll in with a Kia Rio and a JD degree from a cracker jack box and the defense needs a fleet of Aston Martin’s billing out for 500+ an hour?????
Think about our justice system: THIS IS NOT HOW IT IS SUPPOSED TO WORK! This is such a complete perversion from what the founders intended.
Meanwhile in my state- they don’t even arrest real criminals anymore. Neighbor got their car stolen- the tweeker chick crashed it in the ditch 1/4 up the road, they catch her….she isn’t arrested AND had all the markings of a drug mule (so said the cop at the scene).
Does Wisconsin allow for private prosecutors working anti-bono a la Minnesota? I wonder if they’d use the same lawyers for a second bite at the apple.
I disagree. In the Chauvin case some high profile defense attorneys donated their time to the prosecution. Here we just had Binger and Krause. Richard and Chirafasi were certainly better than Lin Wood but that was a low bar. I’d have preferred to see Richard argue the law on Friday and Chirafasi argue the closing statement.
I’m legitimately not sure with what you disagree. I was talking about prosecutors, and the possibility that private attorneys might donate their time as they did in Minnesota in my reply to Andy, nothing about the Defense team.
The deep bench on the prosecutor side might have been high profile— but they did not prepare and were not good attorneys. They were there to pad their resumes and be labeled heroes. Any 5 kids from the high school debate team could have argued better than they did.
I think as Branca pointed out, defense law is not DUI or divorce law. You get good at something by doing it. You get a good market place for something when a lot of people do it. There’s not enough clients (let alone good cases) for attorneys to make a good living on it (compared to ambulance chasing, divorces and DUI) for them to become skilled in the court room.
Between that fact and surrounding politics- this makes you screwed if you have to defend yourself.
Plus we take 12 people and give them instructions to judge a person, they’ve got no understanding of written law. The other is 1/3 have 11-12 year old literary comprehension, 1/3 have dried out from all the “go out come back” etc. 1/3 already biased one way or the others, As I’ve heard jurors make up their minds or predisposition after opening arguments, what else is there? It’s a crapshoot with jurors, never let your “peers” convict you!
I was a foreman on a murder trial about 12 years ago. My experience is that if there truly is a lack of evidence even people with minimal education will try to do the right thing. Of course that case wasn’t politically charged.
“because he approached this closing argument from his own perspective, as someone to whom this argument is obvious and intuitive, rather than from the perspective of jurors who had developed some sympathy for these “victims” and their families, and for whom this notion of “arming oneself with the other guy’s gun” might not be so obvious and intuitive.”
Yep, the last stage of Dunning/Kruger — overestimating the knowledge of other people because your own is so ingrained.
DEFENSE WAS MEDIOCRE
I too was struck by the closing. It was not clear and cogent.
The prosecution way over-stretched and the defense should have blown the State’s case out of the water.
A juror could still find validity in the prosecution’s argument – if they wanted to. Because defense’s close did not clearly shoot down the “provoking” narrative. So, this case is closer than it should be.
I actually think reasonable doubt from provocation on the blurshow was one of their few strengths in the close.
All the prosecution has for this theory is the blurshow and he went straight at that. This is the likely reason Kraus had to try and distance himself from provocation on rebuttal.
I thought it was hilarious that they backed off from that, after the big deal they made of it to get it in.
That’s a good point!
NETRALIZING ROSENBAUM
I think it would have been highly effective if the Defense asked the jurors if any of them think it is reasonable to run charging at a man with a AR-15 weapon. Would you charge a man with an AR-15 ? I know I would not. In fact, no reasonable person would do so.
If Defense Attorney Richards had personified this for the jurors – he could have fully neutralized the “provoking” narrative that the prosecution put forward.
Absolutely spot on. Want to make a big deal about the scary AR-15? Then explain why Rosenbaum continued his pursuit and lunging attack when he knew damned well Kyle had an AR. Especially when it was pointed in his direction when Kyle held his ground.
And not just Rosenbaum. Grosskreutz whipped out his handgun and raised it and pointed it at Kyle’s head while Kyle was standing in front of him with the AR-15, having just shot Rosenbaum dead with it. Grosskreutz wasn’t intimidated by Kyle’s big scary gun anymore than Rosenbaum had been. Seems like the prosecutors were the only men whose instinct was to cower in fear at the mere sight of an AR-15.
He SHOULD be able to win with a mediocre attorney. If everyone one of us has to hire OJs defense team to be acquitted of lawful self defense, the constitution is null and void.
The path for a clean right to the point closing statement was there and Richards fumbles through it. They should have had Chirafisi on closing. That was just disappointing to watch, I’m sure any layman who follows this site would have done a better job
Mr. Branca-
I agree with your analysis 90-95% of the time…however, I disagree with your take on Richards’ closing today.
Irrespective of the solid points you give, I think the contrast in Richards style and delivery from both Binger AND Kraus was so apparent and (hopefully) noted by the jury.
To lay people like the jurors, Richards’ addressing all of the witnesses testimony and how it impacted Rittenhouse’s innocence was powerful and effective in the juror’s minds.
Whether he intended it or not, Richards (to me) was much more believable AND effectively called inept question the motives of the State.
Please keep up the great work on LI!
As long as what you say affected the jurors great, however, when they look at the written law instructions some will be utterly baffled what to decide.
No mention of “Hocus Pocus out of Focus”?
This was awesome!
Hocus Pocus out of Focus was great zinger. I think it got the jury’s attention.
But connecting this case with the “seven shots” was just dumb.
Kyle’s defense team has sucked the whole trialal. Not surprise they’d blow the closing.
I’ve been doing running summaries on social media of this case and only after day 7 did I find Branca’s summaries. I’m not a lawyer and was thrilled to see the same things I noticed coming up in his summaries. When Richards gave his closing arguments, I put my head in my hands, felt my stomach sink, and said “oh sh*t.” I really wanted Branca to explain that it wasn’t a mess. It was a mess. I think the prosecution is getting their second try by getting a hung jury. They didn’t hammer on about that blurry picture to convict, they did it to roll the dice that one out of twelve jurors will squint, turn their head, and say “I think I see it.”
“They didn’t hammer on about that blurry picture to convict, they did it to roll the dice that one out of twelve jurors will squint, turn their head, and say ‘I think I see it.'”
Honestly, I think that that evidence was put in just to try to protect any guilty verdict on appeal. I seriously doubt the jury will look at that find “provocation.” By that, I mean anyone who is open minded about the use of a firearm for self defense will not see that as real evidence of provocation. Other individuals who are already primed to find him guilty because he was carrying a scary AR-15 around don’t need that evidence to find provocation. But without the photo, he doesn’t get the provocation instruction to the jury.
At the end of the day, I think this case will really come down to the predispositions of the jury members deciding the case. It is clear as day that Kyle only responded to the aggression of others. The question is whether the jury members believe that it is ok to carry a firearm, and whether they believe that people have a right to use deadly force to protect themselves.
I have seen so many posts from people on the internet that want to find him guilty just because he was carrying a scry firearm around openly. To their mindset, that alone is provocative, should be illegal, and they want him to go down just for that fact alone. I think the prosecution knows that, and that’s what they have to hope for from the jury to get a conviction.
2 things.
Thing 1.) I doubt I’m the only one who found the closing to be satisfactory because it was in contrast to how passive the defense has been for the past week. I’m not looking at it as a lawyer, but as some regular dope out here who was waiting for Richards to finally come to life and defend his freaking client. I was pleased with that, on a superficial level.
2.) This is a self-defense case and I 100% agree with this analysis in that it was weak on defending self-defense principles and explaining specifically why Rittenhouse’s actions were legal. I’ve read Branca long enough and taken his courses to have a foundation of understanding, and if I, just some dope with a keyboard, can get frustrated with Richards missing key points, there is no excuse for him or any lawyer defending a client in a self-defense case to argue poorly.
If the jury has any common sense, it will acquit Rittenhouse despite the defense’s shortcomings because it is as clear as day that the prosecution had no case. This is the big gamble, unfortunately. Who knows who’s on that jury.
With respect to #2, I think part of the issue is that Richards is not personally familiar with firearms, or at least there’s no evidence that he is. There’s so much that he left out simply because he doesn’t know about it. For example, I never saw Kyle with his finger on the trigger except when defending himself. Then Binger tries to Baldwin the jury. Richards just doesn’t notice the difference between having the finger along along the receiver as opposed to on the trigger, because he’s not a firearms guy.
You optimum point is “if the jury has any common sense” 2 things #1 common sense is not so common. 2. Comprehension level American average adult is 11-13 years old!
apologize for stupid comment regarding being on jury and it benefited me financially took family to theater! I’m embarrassed at that comment it sounds flippant. sorry!
Not all all, I didn’t take it that way. You deserved more than one musical. Year supply of Belgian beer. Random car out of Jay Leno’s garage. A free Kick Binger In The Groin punch card for every day from now until Dec. 31, 2027.
Thank you Colonel! You’re funny and gracious to an old woman!
This is somewhat surprising to me; the panel on the rekeita law livestream were praising the defense closing. I’m curious if the jury will go more with their take or Mr. Branca’s. Overall, I think the defense came across better than the prosecution, especially once the rebuttal started off with two elections of the jury and then ADA Kraus acting pissy.
Only one guy on that panel understands self-defense law and firearms well but he is in Canada, and I’ve heard him say some things that I don’t think go over well in the US. He is sound, though. All the others are smart, but they aren’t in Branca’s league.
I’ll give you that. I agree that Mr. Branca would have a better grasp on the finer points of self defense law. I was just a little surprised that his take is much different than theirs. For most of the trial, their assessments of the defense’s performance have been similar. I don’t know, I’m not a lawyer so I’ll defer to those more knowledgeable. To me, the defense, while not perfect, was better than I expected it would be given Richards’ performance to date. And overall, despite some stumbles, it came across better than the prosecution’s closing as it related to the evidence and testimony presented at the trial. But then, I’ve always thought it was patently obvious that Kyle acted in self defense.
I think there are different ways to look at today:
Defense vs. State – State looked like smarmy idiots, Richards looked competent. State had a weak case, Defense looked stronger than State’s.
Defense vs. Defense – how did Richards compare to his earlier self? Great.
Defense vs. the law – this is where Andrew comes from, and it matters because a jury needs to be educated. They’re normal people, they aren’t experts in self-defense law. They’re gonna have tons of evidence and jury instructions and a great lawyer is going to guide them through all that and make them experts. Was Richards great enough to do that? No way. Was he good enough? He very well could have been and ultimately that’s all that matters. But we’ll see.
State had no case, that’s what I should have said.
As jurors, we all thought we understood until we got into the jury room, given 49+ pages of jury instruction, wham! we sat silent, who will speak first, it was like all the air had gone out of the room we were suffocating! Finally with a sigh of relief we picked our foreman, it was “complex civil case” 3 sets of lawyers, 22 defendants it was 3 months long. took us more than almost 4 weeks to get a 9 to 3 verdict. Had to call the bailiff two men got so heated stood up to do fisticuffs! One lady fell asleep during deliberations, but, state paid me, company paid me and I made enough to take 22 family members to see live theater “The Lion King” in Los Angeles!
gran2ten – not sure why someone voted you down, wasn’t I! That trial sounded like an ordeal. At least you got a free show out of it 🙂
A guilty verdict will be shocking, that will be a bad sign. I think a mistrial will be just about as bad. Maybe equally bad because these charges are a sham.
I want to think the citizenry are still fair-minded. I know how I’d vote in this case, but I truly have no idea what the outcome here will be. The political bullshittery in this country is poison.
I thought Richards got better as it went along, but agree that he should have anticipated more of the rebuttal.
Well this is beyond disappointing. This kid deserved better. He originally had Sandman’s lawyer but he seemed to go off his meds during President Trumps stolen Presidency and his mother fired him
Lin Wood seems to have dropped into a deep hole. He used to be all over but haven’t heard squat from him in a long time. Peter Barnes was one of Kyle’s lawyers but left the case over a disagreement how things were being handled.
Lin Wood makes several very long posts on Telegram daily. Lots of scripture and talk about his various legal troubles, mostly.
“The moment Rosenbaum is fighting for the control of the rifle, he is no longer “unarmed” in any meaningful sense of the term. Instead, he’s in the process of arming himself. With a rifle. With Kyle’s rifle.”
But, but, Mr. Branca! His rifle was slung over his shoulder. According to the prosecution that means he could never lose control of that rifle.
On the other hand, according to the prosecution today Kyle should have willing laid the rifle on the sidewalk and had an MMA fight with Rosenbaum since A) Rosenbaum was unarmed and B) that’s what a real man would do.
Which means, of course, some other Antifa/#BLM thug would have simply picked it up and shot Kyle.
The entire case the state made against Kyle amounted to he shouldn’t have been there to begin with. So he had no right to defend himself since by his mere presence he “provoked” the mob’s outrage. Damned if you do, damned if you don’t. Heads you lose, tails I win.
I was disappointed and outraged that Kyle’s defense team never made it clear that no matter what Kyle had done the prosecution would have argued it was wrong and illegal.
SHOULD NOT HAVE BEEN THERE – AND OTHER IRRELEVANCIES
My brother made the same point last week. It bought into the Woke MSM propaganda.
>> It’s a logic fallacy. Trying to make a false equivalency.
These are rhetorical tactics of people who either (a) have no case; or (b) are brainwashed beyond repair.
Just because a person should not be some place – does not mean they give up the ability to defend themselves.
By the way, defense spent much time countering this false-equivalency when they simply had to point out that it is a desperate prosecution tactic that jurors should not fall for.
“According to the prosecution that means he could never lose control of that rifle.”
I was amazed that defense never countered this with a simple video or two demonstrating how easy it is to take control of that weapon, sling or not, and use it against its owner. Or an actual demonstration.
SLOPPY. That was the word that came into my mind listening to Richards. Less outrage and more sharp undercutting and stifling of the prosecutions talking points would have been better.
I reeeeeally want to see the text of Binger’s motion in limine with regard to Dr. Black that Richards apparently let go uncontested. I’m not sure I’d be willing to blame the closing alone before seeing that.
So I wasn’t the only one who found Richards closing disappointing. It left me with an uneasy feeling that Kyle’s acquittal went from 90/10 for to an even 50/50. I haven’t seen him in action before so don’t know whether he was off his game or this is a standard performance.
ORGANIZATION OF CLOSING ARGUMENT
Defense Attorney Richards chose to organize his close by going through each witness in sequence rather than each rebutting charge. I’m not sure what lawyers would say – but that approach seemed less effective than going charge-by-charge because the jury will look at this case charge-by-charge. I think I would organize my close based on how jurors will address the case.
Yes, I also found the linear structure of Richards’ closing argument to be tedious and uninspiring. If I was on the jury, I would not want to sit there and listen to him slog through the list of witnesses, summarizing their testimony one by one, in the order they’d testified. The jurors just sat through weeks of that, they don’t need to do it again. It would have been much more effective if Richards had crafted a narrative of what happened to Kyle that night, based on the evidence, told that tale, and then walked the jury through each of the charges, explaining along the way why that same evidence now compelled them to vote not guilty.
The defense was weak from the git go.
Today he seemed angry and tried to redeem himself from what we all said all over the internet.
Still he is a horrible speaker, how is he even a lawyer?
We still have no idea who is on that jury.
Jury selection is everything look to the OJ trial moved from West LA to downtown LA because Johnny Cochran guilt tripped them into that.
Cochran selected that jury not this lady who claimed she did on his case.
Andrew isn’t often wrong, especially not when commenting on his own game, but in this case, I think maybe he is being a bit too critical of Richard’s close. I think the guy was better than I expected today based on watching the whole trial.
He wasn’t polished, was rather gruff and matter of fact, but he has been in a position to “read” his jury for two weeks and we haven’t. He may have decided that this jury would respond better to his approach today. To me, he sounded like a blue-collar friend giving me the story in a local bar. By which I mean believable for his lack of polish.
Having said that, I do think that Charafisi might well have been a better choice to do the closing, or at least part of it, and Andrew is correct that the defense could have benefitted by showing the jury a path to acquittal on each count, and challenging in advance some things they should have known the prosecution would claim, particularly challenging mistatements of the law.
I guess we’ll see if Richard’s efforts were enough soon enough.
I’ve watched the entire trial and perhaps I was blinded by the spectacle of the prosecution kicking its own ass to see the defense doing such a bad job (until Richards today). Charafisi in particular seemed to be great at cross-examinations. Genuinely, what did I miss?
Richards isn’t 3D-chessing the jury — that’s just his stock personality. Whether it works will be a coin toss.
He’s probably being too critical because he’s far more seasoned in self-defense law and could see each and every one of the self-goals along with all the missed opportunities Richards made today.
Still, Richards didn’t need to be as good as Andrew today. Just better than the prosecutors he was up against. I hope for KR’s sake he was.
On a related topic, I was thinking about the prosecutor’s closing argument and rebuttal and one glaring error that may turn the jury irretrievably against the state and toward the defense. The prosecution kept arguing that the mob who chased Rittenhouse down were selfless heroes just trying to protect the community from a “chaos tourist.”
If I were on that jury I’d have wondered if those two prosecutors were on crack. Those same “selfless heroes” are outside the courtroom baying for blood if the jury doesn’t vote to appease the mob.
I somehow don’t believe these jurors who have to live in fear for their lives will see the that violent mob as anything but that. Those “selfless heroes” are out to burn Kenosha down to the ground, not to save it from “active shooters.”
Rittenhouse is lucky Rosenbaum was Batsh#t crazy.
If Rosenbaum hadn’t been crazyl, Rittenhouse most likely would not have been attacked. Rosenbaum would be somewhere else with his girlfriend and Rittenhouse wouldn’t have PTSD.
He’d be luckier if Rosenbaum hadn’t been nuts
I’m not a lawyer but I do think Richards did a fine job. He had a read on the jury that we can’t really assess. He come across as avuncular and honest broker that probably sells very well in heartland Wisconsin jury especially in contrast to the prosecutors in this case. I think he had a read on the prosecutors as well in that he knew by attacking them he would royally piss them off and it showed in their final rebuttal which was angry and petulant. He also finally objected well and forced the judge to dismiss the jury TWICE which will make them appear even more shady to the jurors (even though the objection itself was a minor point). I guess the only thing that ultimately matters is what the jury of 12 thinks though.
From a “jury read” point of view, I think’s it clear that Kraus was reading the jury and getting angry at them in the rebuttal and must have sensed from them that he was losing the case.
Oh shit!
I had no idea the statement about people being shot with 7 rounds referred to the Blake shooting! What the heck was Richards thinking with that one? Dumb, dumb, dumb!
The only issue I really picked up on during the closing was the lack of countering the active-shooter narrative. I completely agree with Mr. Branca. Richards needed to make very clear that even if Huber, Grosskreutz and the others honestly believed they were subduing an active-shooter, it doesn’t matter. That belief has no bearing on Kyle’s right to use deadly force against an attacker. Their motives are meaningless.
Richards did briefly touch on this, but not as strongly as I would have liked.
I didn’t mind the gruff attitude and I think it probably played well with some of the jury, but as Andrew pointed out, probably not with the ones who aren’t already favoring acquittal.
I initially didn’t realize that as “7 bullets” is the max number many guns can carry, one in the chamber and 6 in the mag.
Actually, not very many guns only carry 7 rounds. That would only apply to large caliber, small framed guns. Certainly not to the police officers guns that were used to shoot Blake. The officer’s gun probably carried 12-15 rounds.
Hmm, interesting. I thought the defense closing was fine. It meandered in some areas, but overall I thought the defense did a good job in going over events, completely eviscerating the prosecution’s weak closing and making them deliver that atrocious rebuttal.
Again, if the jury convicts it won’t be because the defense didn’t do it’s job, it’s because they are afraid of the Leftist mob.
TOTALLY agree with your last point.
“Again, if the jury convicts it won’t be because the defense didn’t do it’s job, it’s because they are afraid of the Leftist mob.”
Or they are part of the Leftist mob themselves.
Knock Knock
Who’s there?
Mr. Richards
Mr. Richards who?
Mr Richards with the flamethrower
I think the Defense should have pounded home that Kyle did have extensive community ties giving him a benevolent motive in coming to Kenosha when so requested. Reminding the jury that Kyle was a 17 year old reacting to the erratic, threatening behavior of others in the midst of concurrent violence and a distinct lack of police presence. That his carrying a rifle did not make him invulnerable to attack but only gave him the means to legally either keep an attacker at bay or defend himself. Which he only did when all the elements required for lawful self defense were happening and happening very quickly.
I don’t think enough emphasis was given on just how quickly the shootings happened. They were not done during a leisurely promenade through the park. Maybe it could have been explained it was not just the direct ambush and attack that would lead a reasonable person to believe his life was in imminent danger but that it was all happening during a riot with the heightened fight or flight instinct that would cause. Yet despite that atmosphere Kyle restrained himself and did not act recklessly.
I don’t own guns but I do believe the only way to be sure that one is not taken out of your hands is to not let someone else put their hands on it. The whole “he had a strap so he had no reason to believe the gun could be taken” is just B.S.
“The only issue I really picked up on during the closing was the lack of countering the active-shooter narrative. I completely agree with Mr. Branca. Richards needed to make very clear that even if Huber, Grosskreutz and the others honestly believed they were subduing an active-shooter, it doesn’t matter.”
I haven’t watched every minute of the closing, just the live feed here. I hope nobody on the jury is stupid enough to buy that argument because there was one glaring fault with it.
Why did the pursuing mob need to chase down and subdue an “active shooter” since the “active shooter” was trying to flee toward the police? Binger/Kraus were trying to have it both ways.
On the one hand KR was in the wrong because he was a “chaos tourist”
taking the law into his own hands and should have left matters to the professionals. On the other hand the rabid Antifa/#BLM mob just had to take the law into their own hands despite the fact that had they simply let him run into the police line the “professionals” would have taken control of matters. To channel the rat bastard prosecutors it wasn’t the mob’s job to do what the prosecutors claim made them “selfless heroes.”
Let me guess. When Richards touched on this matter briefly, he didn’t mention the rank hypocrisy of the prosecution.
Richards actually spent more time on pointing out the absurdity that anyone would think Kyle was an active shooter, than he did explaining that even if they did think that it was irrelevant. I think both points are important to make the jury understand. He didn’t directly point out the hypocrisy you mentioned, but he did rip on the prosecution quite a bit.
Oh, just wanted to add that while I agree with you that the active-shooter premise is absurd, it is one of the common elements that people I know bring up. I have had close to a dozen people make statements justifying the attacks like, “How was the crowd supposed to know what Rittenhouse was doing? How did they know he wasn’t going to keep shooting people?”
It seems many people have bought into this narrative, so while Richards made pretty clear why Kyle wasn’t an active shooter, he didn’t do a great job of explaining that what the crowd thought had no bearing on Kyle’s right to self-defense.
“How did they know he wasn’t going to keep shooting people?”
They didn’t. Which is exactly why they should not have joined the violent mob which was chasing him howling for his blood. Especially when there was no need for any action on their parts as he was running towards the cops, not away,
On the other hand, they would have missed out on what they perceived to be a great opportunity for some mob violence on a non-mob person. One gun, a hundred rioters…. can’t get hurt in a big game right?
If Kyle was the kind of person the Persection claims he his, there’d have been mob bodies laying everywhere
He’s one conscientious and level headed kid
I would respectfully submit sir, that your own opinion may not be quite so humble as you would seek to portray. (chuckle)
While I do agree most enthusiastically with your contention that the defense should have toned down the hostility, and beefed of the sincerity of regret for the tragic loss of life that night, I think your (dripping) portrayal of the 3 unfortunate souls as possibly just as deserving of a long and fruitful life may be just a bit over the top. After all, it is most certainly not the defense’s intention to either foster or support sympathy for those who would gladly have ended Kyle’s life. That they may have been misguided, and may actually have been acting with sincerity of intent is not a point that I think the defense should admit to, especially as it was quite obviously not the case. Sympathy for the poor, deranged souls should be left to the state to try to sell to the jury. Sincere sadness for the unfortunate loss of life is where, I think, the defense’s humble sadness should end.
I completely agree with your opinion that the defense should have been much more thorough and specific in addressing each element of the charges, and the proven facts with respect to each episode of the unfortunate tragedy. They had plenty of time, if they were properly organized, to touch on each (very predictable) argument that the state would make, and clearly remind the jury as to how the available evidence and witness testimony clearly refuted all of the state’s contentions.
It would have let the air out of the state’s argument before it even started.
It seems that the weekend was not used completely productively by the defense, in preparing for the final argument as to why Kyle should not be incarcerated for years, or the rest of his life, as a penalty for defending his very life from completely unprovoked life threatening attacks by violent criminals.
I honestly don’t know what’s going to happen. Even though I grew up in a Midwestern, blue collar town not at all dissimilar to Kenosha, my person feelings more closely mirror Mr. Branca’s particularly when he talks about the stylistic shortcomings of Richards. OTOH, I definitely remember quite a few characters from my childhood who would have found Richards gruff demeanor endearing and authentic, so who knows.
I still think there’s no way to properly account for outside pressures the jury may be feeling. We are in a bit of a new paradigm when it comes to external influence, or at least a dynamic that has been absent for many decades. Jury could be terrified to acquit. Or, they could be 12 people who were sickened by what happened and were glad someone did something after the police decided to sit one out. We’ll see in a day or two, I guess.
Nicely put. I do fear the influence of outside pressures, but have high hopes for the strength of character we midwesterners at least used to be known for. I am in Wisconsin, not all that far from Kenosha, and have gotten a feel from my fellow Wisconsinites that this travesty of justice should never have been begun, and should absolutely not be perpetuated. I also have gotten, unfortunately, a sense of fear. Fear of the mob. That fear angers me. Angers me against the the mob, and especially against the ‘imported’ agitators. Where will it all end? I think Kyle’s experience was only a small foreshadowing of things to come…
I would *like* the jury to return a Not Guilty verdict on all charges early Tuesday, before lunch.
I don’t expect it.
With 12 random picks from this pool, there is almost inevitably *one* leftist idiot who will lie on the questionnaire in order to get onto the jury and vote guilty on everything they can, regardless of evidence or consideration with other jury members. Once a leftist sets their mind in concrete, they’re not going to change it. They’re already convinced Kyle is guilty of something, and will stick with it. Hopefully, the rest of the jury will not cave to the hostage treatment of ‘stay here until we get a guilty on something or else.’
I thought the end of the closing was effective. In a sense the lawyers were playing second fiddle to the extensive video. Whatever either side argued, the jurors were as close to actual witnesses as you will ever get in a trial.
Richards did a very good job taking the jury through the events as they unfolded. It is clear that Rittenhouse was threatened by an angry mob. The videos put the jurors in Rittenhouse’s shoes. He was surrounded by violent out of control people and it must have been terrifying. In front of him was an out-of-control angry Rosenbaum coming after him undeterred by Rittenhouse’s firearm. Someone had already fired a shot shortly before Rosenbaum caught up with him. Behind him was total mayhem in car source 3.
You can talk all the legal mumbo-jumbo but what will matter most to the jury is what they see actual happening. It doesn’t matter whether Huber, kick man and Groscruetz were out to kill him because he was putting out fires or just trying to stop an active shooter. Rittenhouse was in mortal danger. Whether Groscruetz intended to shoot his weapon or not, there is no reason on earth that Rittenhouse could be expected to wait for Groscruetz to fire first. He ran at him with a gun pointed at his head. Everyone on the jury could see that for themselves and in addition, Groscruetz didn’t deny it. Huber hit him twice with a skateboard, kick man knocked him over putting him in an even more vulnerable position. Huber was pulling the gun away from Rittenhouse when he fired a shot. That is clear from the video.
There may be fine points of the law that need to be argued but if I was a juror I would look at what happened and to me it is clear that Kyle was threatened by an angry mob and fired only at the last moments to save his life. To most people, that constitutes justified self-defense.
I agree. What the jurors see on photos/video is more important than any of the rest of the legal arguments. The walk thru of the videos was very effective IMO.
It should be not guilty, but I suspect the verdict will be hung
It might take the jury a week to read the jury instructions. Good Grief I can see it now.
I agree, it was bad in many ways. I also add that he should have objected to the prosecutor’s incredibly incorrect statements of the law, like saying that if you bring the gun, you lose your right to self defense. Also full metal jackets are the “humane” rounds per the Geneva Convention, vs hollow points. Where was the “harmless” skateboard to show to the jury? So many prosecutor lies went unanswered. And what happened to the motion to dismiss with prejudice caused by the prosecutor’s egregious Fifth Amendment violation by commenting on the defendant’s silence? Is that in abeyance?
Charifisi mentioned the motion for mistrial and the judge acknowledged receipt. He hasn’t ruled yet. Maybe waiting for police and National Guard to be in place before ruling.
There is no chance in hell that he would do it now, after the trial has gone to the jury
Its already gone to the jury. There’s no way he’s going to declare it a mistrial now. It may be an issue in an appeal, but the judge, having gotten this through the trial and to the jury isn’t going to step in now, when he should have done it long ago.
I thought Richards’ close was good for what it was: a step-by-step thru the event which really brought home the danger KR was in (notwithstanding Fatlock’s advice to punch an attacker in the testicles). Were I on the jury, I’d have preferred Charifisi go step-by-step thru the law, but I have to hope the strategy was intentional based on their reading of the jury.
Richards hypothesis was reasonable and more credible than Bingers. Remember the main part of the jury instructions, the burdon is on Binger. In addition to proof beyond reasonable doubt he must prove his case to the exclusion of Richards hypothesis.
I wonder if Richards was playing to the jury? He saw their responses throughout the trial and fed that. Could he have been this ‘brazen’ (lol) if he didn’t have very good confidence in this closing?
Not the first time I have posted this. Any guilty verdict will be subject to an appeal based on the 5A violations alone; something the judge noted in warning Binger. Not to mention other issues. Also have to note the BLM bozo posting on line threats to the jury if there is a not guilty verdict.
Early on it seemed to me like Binger was trying to get a mistrial ruling with his over the top actions. My prediction is still a hung jury as most likely but an outside chance of not guilty on all charges.
I defer to Mr Branca on his opinion on the self defense aspect because he is an expert. Richards from my seat hit a Home Run and touched on every single point I hoped he would make. He far exceeded my expectations.
Regarding the question of how many times Kyle shot at Rosenbaum after the “disabling” shot to his pelvis. – Life isn’t a video game where the “damage inflicted” on your opponent lights up on a scoring panel. If he’s moving, he’s a threat.
That’s as valid as asking “why didn’t you shoot him in the leg to wound him” – Because when using deadly force to protect yourself most reputable organizations, including the US military, teach you to aim at center mass and fire until the target is no longer a threat to you.
About the prosecution’s skateboard being a toy, not a weapon, line – Antifa have trained to use skateboard as weapons for years. There are dozens if not hundreds of videos of Antifa members carrying and using skateboards as weapons in riots. Would have been easy to counter the prosecutions ridiculous claims by showing a few or having witness statements by people who have been injured by them in riots.
I wondered why we never saw the skateboard or one like it to show what could be done with one when used as a weapon
Yes. Skateboard + watermelon = Point made in an unforgettable manner.
Wouldn’t need a watermelon, and it probably would not be permitted. But surely there are things which actually replicate the fragility of the human skull. Isn’t that essentially what car companies use in crash tests?
I just re-listened to fatarse describing the skateboard as a toy such as Santa might bring, as compared to a dangerous bludgeoning weapon.
I wonder if he has ever heard of baseball bats? Hockey sticks? Golf clubs? Because It wouldn’t take much of a search to find examples of people who have been killed in anger with any of those ‘toys’.
Again, Antifa has been using skateboards as weapons in their riots for years.
This whole characterization should have been shot down early by pointing out the ridiculousness of the prosecution’s lame attempt to whitewash Huber’s assault on Rittenhouse and portray him as a ‘hero’.
Skateboard’s father sits behind Kyle during trial.
Got the following from Massad Ayoob’s class. The toughest question to answer in a self-defense case: why did you shoot him in the back?
OK, so let’s go over this. How fast can a body turn? A human being can make a quarter turn (90 degrees) in a quarter of a second. Half a turn (180 degrees) in half a second. It has been known since the 1970s that the average shooter can shoot 4 times with a DA handgun trigger in one second and 5-6 with a semiautomatic. From this trial we know how fast someone can pull an AR trigger in 3/4 of second.
I don’t think Richards explained the shot in the back BS well enough, he could have gotten someone to testify to this, heck, he could have asked me because I can confirm everything above from experience.
Going further, it takes a human being about 1/4 second to react to a known stimulus – you know it’s coming, but your reaction will not begin immediately, obviously, it begins once you recognize what’s happening. What about an unknown stimulus? The kind that Rittenhouse faced? At a minimum it takes maybe triple that amount of to react to an unknown stimulus.
So even under the best conditions, if someone turns their body 180 degrees while you are shooting, it is physically impossible to recognize and react in time to stop shooting and hitting that person in the back. Again, the “in the back” circumstances with Rittenhouse did not match that. But to expect him or anyone else to NOT hit someone in the back is physically impossible if the person you are shooting starts to make a turn after that first shot. I’m talking about a person who wasn’t hit in the vital part of the brain or spine or hip, someplace that didn’t drop him immediately because he’s still moving and turning. You, the shooter, do not have the reaction time and control over your muscles like a T-1000 model Terminator.
The idea that Rittenhouse should have stopped shooting after the first shot that entered Rosenbaum’s hip is mind-blowingly stupid. It is also physically impossible to shoot someone in the hip and say – aha! I can stop shooting now because the threat will go down in a second. No.
Even if you shoot someone directly in the heart, they have seconds to keep coming after you before they die. If they are armed, that’s enough time to kill you.
All of this and lots more has been validated for many years and it would have been easy for the defense to bring an expert to talk about it. I bet that John Black fellow could explain it all thoroughly but Richards never bothered for whatever reason. But this is the sort of thing a jury needs to hear and they did not.
“The idea that Rittenhouse should have stopped shooting after the first shot that entered Rosenbaum’s hip is mind-blowingly stupid.”
The idea that Rittenhouse could have known where the first shot hit is even more so.
Indeed. I got so mad they kept saying that.
When this trial started I’ve had a premonition that this defense team, expensive as I am sure it it is, was lax on seizing opportunity (especially in using objections) and wasn’t providing an explicit counter-narrative. Before closing I was very concerned that they were not going to educate the jury on what the elements of self-defense are and given the specific meaning and scope of the language.
Alas, I now predict we saw Richard’s snatch defeats and hung verdicts from a case that was very strongly in Kyle’s favor. I’ve learned a lot from Andrew Branca’s website, including detail on specifics (e.g. what constitutes provocation of a reasonable person).
At this point, the best Kyle can hope for is a hung jury on all counts. The likely outcome will be a conviction on some lesser but serious charges with a hung jury on the worst counts.
I can’t believe that Kyle could pay so much for a legal team that left so many doors of vagary open, failed to anticipate prosecution rebuttals, and may have become as unlikeable as Binger and Kraus.
Sad…very…very sad.
I wonder if the people in Wisconsin want to throw away their right to self defense if it could affect Florida. If they convict Kyle I would beat feet out if there. I hope it only means Wisconsin citizens are at risk,
This jury is not sequestered and if I read this blog and was on the jury….
I just don’t think it’s beneficial to Kyle to be concluding how short his lawyer was amd that he’s going to serve time
Another bizzarre stament by the State that I would have liked to see countered is the ridiculous claim that, due to his size, Rosenbaum was just a barking chihuahua, not to be taken seriously. In real life, the intent, the first move and some specific combat / martial arts training is way more important than body size (Joe Rogan would say it better than me). Plus, a taller person has longer reach, but a short one has generally more speed (as you see in basketball and volleyball), and a lower center of gravity = better balance.
And the only training we know KR had was in EMT and fire control (and gun discipline, unlike Mr. Littlefinger!), while his assailant coud have been trained in MMA, as far as he knew at the time.
Also, the attacker was obviously crazed, in a real fight part of the equation is whether you are willing to actually cause hurt or not.
I wonder if Littlebinger would be as “brave” as he suggested others are.
We know that Binger has not even had the guts to serve in the military — when the judge asked for veterans in that courtroom, only Dr. Black was. If he ever had to display actual physical courage I’d assume it was either in a gym or as part of a mob picking on others, in other words: never.
Also, Charles Manson is a dwarf.
And they know in real life he was a violent, child-molester. Despicable that they would argue this only because information to the contrary was not allowed in front of the jury.
He was a boy rapist. 8 boys and one he was charged with attempted murder.
Hopefully, Mr. Richards read the jury and provided a closing argument to convince them. He does not need to convince Mr. Branca, or me.
The root mistake was the utter lack of objection to irrelevant, unfounded, and/or prejudicial evidence. And the lack of relevant evidence/questions.
Why was there no expert testimony about reaction times? Why not ask every officer on the stand what they are trained to do in case someone charges at them to grab their service weapon?
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I chose to believe that the remarks of ADA Binger mocking Kyle Rittenhouse for his PTSD breakdown on the stand did not help him with the jury. I hold out hope that the only sociopaths in that room were ADA Binger and ADA Kraus — and none is on the jury.
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The theme of the defense’s close was “a corrupt prosecution tells fairy tales to trick you into condemning Kyle who obviously acted in self-defense.”
Unless a juror who lied about his prejudice is on that jury the jury will acquit. If they do not it will not be because of the closing argument but because of the defense’s inability to have inadmissible evidence excluded.
As Mr. Branca points out, the only dispute over facts was about self-defense. And the only efficient way to deal with the case would be to decide if Kyle acted in self-defense or not. If he did not act in self-defense he must be convicted on all top charges, if he did he must be acquitted of all charges.
Basically, it is that easy.
The defense should have made it easy for the jury by demonstrating that, much like Mr. Branca proposed. They should have followed that with what Mr. Richards actually did (minus the needlessly inflammatory remark on the 7 shots. I think that was needlessly risking alienating the jury — and if you go there you should point out that it was this prosecution that said that shooting was not to be prosecuted but now prosecutes a young man under attack and fighting for his life despite what is most likely the most clear-cut self-defense you will ever see in court.)
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In the end, the closing was less than perfect, as is all work done by human beings. The closest thing to perfect in this entire tragedy was Kyle Rittenhouse’s actions when a crazed pedophile and a violent mob tried to kill him. He did not panic and shoot indiscriminately, but only those that actually attacked him. If one would want to criticize anything then it would be that he only fired once or twice on the attackers in “event 2” — if I were to speculate as to why that was I’d say Kyle Rittenhouse was torn between survival instinct and the horror of actually having been forced to shoot someone to preserve his own life. For this young man, whose ambition it was to save lives not take them this must have been exceptionally traumatic.
Only a sociopath like ADA Kraus would dare to suggest what he suggested: that the fact that Kyle, being forced to act against his nature to preserve his life, could only bring himself to pull the trigger once or twice per attacker in “event 2” was evidence that he should have paused between each shot in “event 1” for a few seconds.
I think Krout said and admitted he acted in self defense during his rebutle. The issue is provoking and questioning his loss of that privilege Richards also highlighted the bait and switch of Binger from open to close.
ADA Kraus did argue that it did not matter if Kyle procoked the attack and lost his self-defense privilege because his actions, according to ADA Kraus, were not reasonable. You have to give someone trying to grab your gun and shoot you with your gun a fair chance to succeed by not using your gun, you know?
What I meant though was that nobody disputed the actus reus except insofar as it is, in fact, reus:
So are the shots justified by self-defense?
Is the privilege of self-defense unavailable because of provocation?
The second question was not there at the outset of the trial, and no evidence was adduced to argue provocation was there. At least nothing that would fit the legal definition besides — maybe — being outside during curfew or carrying a gun illegally. Both these behaviors turned out to be legal and/or not of a nature to provoke an attack.
I had to stop watching Richards’ closing about half way through because I couldn’t take it anymore. Praying for a hung jury now.
I am praying/hoping for a fast NG.
I was too…and then I heard Richards’ rambling, bumbling, disjointed closing before turning it off.
wow! I have heard better arguments from high school debate teams. I have heard better arguments from a 9 year old who wants a kitten. Did this attorney even attempt to do any research? The defendant would have been better off giving his own closing arguments. Seriously, if I shut it off mid way through the jury certainly did as well.
Confused about the provocation. I think the only way it can be invoked by the state is if Kyle is proven to be in process of committing an ongoing crime. This is so confusing. Benefit of the doubt goes to the defense.
Binger lied about the self defense law in his rebuttal, how does that play out?
Yes – he lied a few times but the worst was when he said the privilege of self defense is lost if you hold a gun. Why didn’t defense object to that statement ?
I thought it was the Judge’s responsibility to instruct the jury on the law. Shouldn’t he have stepped in and corrected that, as well as the prosecution’s other misstatements regarding the law?
Or is the defense stacking up ammo for an appeal if necessary?
What a horrible close. Just horrible.
Andrew’s comments are many of the same I had. The criticism that the lawyer argued through his POV is dead on. In addition to the other problems this caused, it led him to talk in parenthetical–leaving our important parts of sentences that were needed so the jury understood the points trying to be made. This happened throughout. It happens a lot with young lawyers, even when arguing to judges, but it should not have happened here.
I was astonished at the lack of sympathy, even if window dressing, shown for the those shot or killed. You would think that it was a popularity contest. As it was, he was asking the jury to decide whether those persons deserved to get killed or shot, which is the entirely wrong focus, which should have been on Kyle’s SOM.
The skate board, where was the skate board? Where was any skate board? Where was the table pounding, the swinging of an an imaginary skate board or providing a dramatic verbal image of a hopped up Rosenbaum? It would be one thing if these things were left on the cutting room floor in favor of a methodical, logical close, but it was mostly meandering. He had all weekend to edit and practice.
Two more things (of many): most defense lawyers spend the latter parts of their close telling the jury what they expect the other side to say on rebuttal and why that’s wrong. Should have, but did not happen here.
As for rebuttal, objecting to the other side’s closing is always a tough line to walk, but the prosecution was so far out of bounds (especially in rebuttal), that the defense should have objected more and more correctly. On the latter point, when the prosecution said witnesses weren’t called because they had a Fifth Amendment right to not testify, the argument should have been that they have a right to not incriminate themselves, but not a right to not come to trial. And in many cases, witnesses have to make a decision whether to invoke their rights before a jury. It’s not an immunity from testifying card. (Credit this to my wife, who is spot on.)
This closing really damaged Kyle’s case. I hope my wife is right (again) that the evidence is going to resonate with the jurors and he will be acquitted.
Based on my own jury experience years ago, they are as persuaded by other members of the jury than by anything the lawyers do. There will probably be a person sympathetic to the defendant that needs to be 100% without any doubt someone is guilty, because we are talking about someone’s life here (irregardless of any victims). Someone may say the victims deserved it. They may collude to act in a way that doesn’t exonerate him, by on purpose hanging the jury so they don’t have the mob come after them, and don’t convict him. I would guess the average citizen is worried about their life more than anything. I thought the jury was heavy on women, and they may be more sympathetic to the defendent. I’m guessing a hung jury would be the best for everyone. I am thinking I’d manipulate that. We all voted to delay our verdict until after lunch so we’d get a full day pay. That was the trial they kept taking us out of the room for and it was a payback, I guess. Really. How people should behave and how they do are two different things.
Thanks very much for the juror-level, real-world perspective!
“years ago”
That ain’t today’s America.
sadly
I was on a self-defense murder jury where the state also pressed provocation and we acquitted in minutes.
I just don’t see how they would vote to convict on this and it really comes down to Kyle being likable and the Rosenbom unlikeable. He was a biopolar fuse that may have been off his meds and looked for the weakest guy on the other side to go after. This is the case that the defense made and I believe it is the strongest argument to a jury above all else in their will to convict Kyle or not.
It was similar in the case I was on. Husband and wife are separated. Husband calls wife and they get into an argument on the phone. Wife’s boyfriend gets in the middle of it, gets worked up and gets the husbands motorcycle out of the garage. Drives over to where husband is at and husband shoots him when he tries to come in. The deceased was an unlikable hot head and defendant was someone that was kind of getting the shaft.
Hugely valuable to hear from someone who’s served on a jury. Thank you!
The law was secondary?
I think it’s glaringly obvious to all but that psycho prosecutor that bringing a gun to a fistfight, as they put it, is a grievous error on the part of the one who didn’t. Bit it’s not the responsibility of the gun carrier to resolve that discrepency in the interest of “fairness”.
But then they apparently believe that use of a gun in self-defense automatically proved guilt… of something.
Spot on. Apparently, one has to take a beating before using effective self defense. I dread the thought of the elderly, women, and short men suffering a hail of well placed fists before they can stop the attack. Who knows, after a fist to the throat, one might be dead
Agreed. According to the prosecutor’s hair-brained theory (hair in singular to preserve the few he has left), you now have a free pass to attack anyone with a gun at any time in the interest of “being a hero” and dishing out a “deserved beating”.
Carrying a gun is now grounds for defending yourself lawfully against the gun carrier no matter the circumstances. This has to be crazy town for anyone to follow this kind of logic with a straight face.
It’s not a movie script with actors reading well drafted lines, it’s real life. I wouldn’t care how the delivery was done as long as the Defense made their concluding points. If the jury is looking at symbolism over substance then KR is in trouble. If they look at facts and the massive failing of the Prosecution’s microscopically thin case, then they acquit inside of ten minutes (which would be epic and “heaping coals” onto the enemy).
I defer to Branca, as I’m no lawyer, but defense’s passion, including the personal attack on Binger, was effective. His point: a blurry, last minute evidence against KR is gaming. And that’s a travesty.
I think they’ll convict, but not because of the ending. The OJ Simpsonnjury taught me that
Great article with detailed analysis.
Richards was terrible. No narrative, no theme, nothing likable or engaging and the whole thing was scattershot and borderline incoherent. I hope Rittenhouse walks.
Too many lawyers want to give complex Ikea instruction.
Is it a microwave cart or a day bed. Don’t believe what you eyes tell you, just listen to me…Utterly arrogant.
I thought the defense did a fine closing. I don’t really need or want a line by line rebuttal.
If it were up to me, Rittenhouse would walk. If it were up to me, Chavin would be in prision.
I thought he did a fine job too.
On Binger’s closing; He put up a screen grab of the movie Roadhouse to illustrate how a 17 year old kid should physically engage a 30-whatever old pedophile in honorable mutual combat. Getting past the fact that it is a DAMN MOVIE, IIRC in that scene the bad guy had a blade on the toe of his boot and, later in the movie, the same two combatants are squared off and the bad guy gets killed by his unarmed opponent when he (the bad guy) produces a firearm. Binger did this on the big screen because you can’t fit that much irony on a smaller screen.
My ancestors at age 17 with guns is why we aren’t British subjects.
On Tuesday, Wendy Rittenhouse wrote that their family legal cost for the month of November are expected to be $110,000.
Do you think Kyle and Wendy got their money’s worth?
Personally, I sleep better at night having purchased Andrew’s Platinum Protection Program!
His own lawyers trying to shove Kyle in that boxcar.
They know a WOke mob will burn Kenosha and assault or even kill jurors if a not guilty verdict is reached. They’re throwing a game they were winning for this reason.
It is expedient, said Caiaphas, that one man should die for the people lest the whole nation perish. Pontius Pilate, where are you?
Too many Debbie Downers here. I listened to the closing arguments on the car radio. I thought the defense argument was just fine. The smarmy prissy tone of Binger was horrible.
Great analysis and insights from Mr. Branca. You really do have to approach the jurors as laypeople to the law and spell out the self-defense elements (and, show that each and every one of those elements were fulfilled, in this case), because that’s what they are — citizens whose knowledge of the law comes from television and movies, mostly. Mark O’Mara did that in his masterful closing in the Zimmerman show trial, to great effect. The danger is, as Mr. Branca aptly points out, that the jury will fill in any gaps in the narrative with their own potentially misguided application of the law, seduced as they might be by the brazenly dishonest and unethical framing of self-defense law, by the prosecution — unless, the defense shows them the path to acquittal, and, precisely why the facts in the case merit acquittal.
That said, I do like Richards and Chirafisi and I think they’ve done a pretty damn good job, against a sleazy, unethical and dishonest prosecution, and, I obviously hope that Mr. Rittenhouse is acquitted.