ADA Jim Kraus, ADA Thomas Binger, Amber Rasmussen, Andrew Branca, Anthony Huber, backward trial, Brandon Cramin FBI, Det. Martin Howard, Dominick Black, Gaige Grosskreutz, George Zimmerman, Jason Lakoswki, Joseph Rosenbaum, Judge Bruce Schroeder, Kariann Swart, Kyle Rittenhouse, Mark Richards, mostly peaceful protest Koerri Washington, Off. Erich Weidner, Off. Jeffrey van Wie, Off. Pep Moretta, political prosecution, Richard McGinnis, Ryan Balch, Sal and Sam Kindri, self-defense, Susan Hughes
Innocence: Is the defendant the initial aggressor? Did they start the fight?
Imminence: Was the threat of serious bodily injury or death imminent, actually occurring or about to occur?
Proportionality: Was the force applied in proportion to the reasonably perceived threat? One doesn’t respond to a mild insult with a gunshot.
Reasonableness: Would a reasonable person, given the same circumstances, have believed deadly force was necessary?
This is a long article, gentle readers, but I trust you’ll agree it was necessary to provide the analysis and links you need to be fully informed. Most of the legacy media is avoiding this trial like the plague—when you’re done with this article you’ll see why; it slaughters the narrative–and as we all know, their coverage, when they can be bothered, is virtually always the coverage of some trial other than the trial I’m covering.
As I’ve previously noted—the SMM Rittenhouse archive is here—the Rittenhouse case is one of the clearest cases of self-defense I’ve yet seen. This is so because not only is there significant and credible witness testimony, the entire incident was videotaped, including with an infrared camera from an FBI aircraft overhead! The Defense is reasonably arguing self-defense. The Prosecution is arguing: who you gonna believe, us or you own lyin’ eyes? I’m not exaggerating.
Remember, the defendant enjoys the presumption of innocence. In a self-defense case, the Prosecution must disprove self-defense beyond a reasonable doubt. That’s a heavy burden, as it must be.
Let’s get this out of the way right now: this is a political prosecution. It should never have been brought. Just like the George Zimmerman prosecution—the SMM Trayvon Martin archive is here–it’s a backward case. From the beginning, the Prosecution has relied on outrage, insinuation, anger, distraction, obfuscation, table thumping and insulting the judge(!); they don’t have a case. The Defense has calmly relied on the evidence and the law, which is clearly, after the first week of testimony, entirely on their side.
Let’s also get two other things out of the way: (1) Kyle Rittenhouse would have been much wiser not to involve himself in trying to protect property that night. Here’s what I wrote in my first article on this case:
As we begin let us understand, with all of my years of police and tactical experience, I likely would not have involved myself in the riots in Kenosha, WI, as Rittenhouse did that night, if for no reason other than knowing no matter how reasonable defending a business against destruction, and no matter how obviously valid any self-defense claim, the leftist nature of the state would put me at a severe legal disadvantage regardless of the law.
Even so, by being there, Kyle did not do anything illegal, even wrong. Being somewhere unwisely does not in any way diminish his claim—anyone’s claim–to self-defense. (2) From this point forward, I will refer to Rittenhouse as “Kyle,” not because I know him, but because it’s much easier and faster to type than “Rittenhouse,” and there are no other Kyles involved.
I’ve had the opportunity to view much of the trial, and have caught other portions through the video clips of testimony provided by the posts of Attorney Andrew Branca, arguably the contemporary authority on self-defense law, at Legal Insurrection. I recommend you take those links for technical legal argument and other useful information, though Branca and I see very much eye to eye in this case.
Kenosha has been subjected to blanket anti-gun, anti-Rittenhouse propaganda for a year. It has been only slightly less heated than usual, likely because the people Rittenhouse shot are white and all have considerable criminal records and other character flaws–apart from rioting–that do not make them at all sympathetic. But it only takes a single stealth juror to prevent exoneration, and if they’re willing to lie about being willing to judge based only on the evidence and law, they’re in. And of course a stealth juror would be willing to lie. Consider this representative excerpt from CNN:
The teenager [Rittenhouse] rapidly became a polarizing figure in the country’s pitched partisan battles during last summer’s Black Lives Matter protests, which led to instances of violence in Minneapolis, Atlanta, Philadelphia and elsewhere. Rittenhouse’s presence in Kenosha was also part of what experts warned is a rise in amateur armed paramilitary groups at protests nationwide.
Notice the implication that Kyle is a member of such a group. There is no such evidence.
Rittenhouse then pointed his gun at a third male, later identified as Grosskreutz, who was holding a handgun, the complaint states. He was shot in the right arm and took off in the opposite direction screaming for a medic while the defendant walked away, the complaint alleges.
What CNN omits is Gaige Grosskreutz pointed a Glock at Kyle before Kyle fired, and Kyle ran away, pursued by an angry mob, desperately trying to reach a line of police a block or more away.
* The defense voir dire suggesting that Kyle Rittenhouse might testify at trial
* Judge Schroeder contextualizing juror security concerns by noting that even
*judges hardly ever get assassinated
* A juror excused because Second Amendment beliefs would not allow impartiality
* A juror excused because hatred of AR rifles would not allow impartiality
* A juror excused because she understood “Thou shalt not kill” to be literal
* Judge Schroeder instructing jurors on “semi-automatic” versus “machine gun
Surprising Branca and me, the jury was chosen and the day ended without any testimony. Within a day or so, one of the jurors would be dismissed for telling a bad joke, which still leaves a jury of 12 and seven alternates.
Prosecution Opening Statement: Assistant District Attorney Thomas Binger is the lead prosecutor, and he delivered the opening statement, which was loaded with innuendo, emotion, prejudicial references and virtually absent of law and evidence. He introduced the idea that no one shot anyone that night but Kyle and that Kyle unnecessarily placed himself in a dangerous situation. Of course, so did all the violent rioters and people who tried to take his rifle and kill him, and no one else apparently tried to kill anyone other than Kyle that evening.
Binger made a real mistake by saying the first attacker, Joseph Rosenbaum, was released from a hospital earlier in the day. He, a violent felon, a man who did 10 years for molesting little boys, was released from a mental hospital. That would come back to bite Binger, who foolishly opened the door to that kind of testimony.
It was this day that the Defense learned there was FBI overhead video, which Binger claimed showed Kyle chasing down Rosenbaum. Why he would do that when all video showed just the opposite illustrates just how shaky the Prosecution case is. Who you gonna believe, me or your own lyin’ eyes?
Defense Opening Statement: Defense Attorney Mark Richards used many exhibits, photos and videos, to support his arguments, which caused Binger, who used nothing, to object. Branca sums it up nicely:
Basically Binger’s argument was that it’s not fair, your Honor! I didn’t do any of that, so Mark ought not be allowed to do any of that! It will be too time consuming! We don’t even know if all the exhibits are relevant (although they’d all been stipulated to as authentic)!
That didn’t work, and Richards used only about five minutes more than Binger. Richards’ presentation was entirely factual and evidence based, unlike Binger’s. Even though I expected the Prosecution to be political, I was surprised by how utterly without evidence their opening statement was.
Very quickly, Richards demonstrated Rosembaum had actually threatened to murder Kyle, hid and charged him. Hearing a gunshot behind him, Kyle turned, and Rosenbaum screamed “fuck you!” as he lunged for his rifle. Shooting Rosenbaum, Kyle began a desperate flight toward the police line several blocks away. He was chased down the street by a violent mob, hit in the head from behind and knocked to the street, where he was immediately kicked in the face by a still unknown guy. Kyle fired at him, but missed and the guy ran off. He was immediately hit in the head and neck by a large skateboard wielded by a masked Anthony Huber, who tried to grab Kyle’s rifle, and was killed with a single shot. Immediately, he was approached by Gaige Grosskreutz, who pointed a Glock at him from close range and was shot in the right bicep. The latter three assaults occurred within only a few seconds while Kyle was on the ground. He immediately got up and continued to run for the police, as people continued to angrily shout and pursue him.
All of this was backed up with photographs and video, all of which was deadly to the Prosecution. It was a very smart move by the Defense, in that all of this evidence, produced again and more completely during their case, will be familiar to the jury, who will know enough then to see it with more critical and accepting eyes. They’ll also be exposed to it again in the Defense closing, and the magic number for memory is 3. If you want to remember something, review it at least three times.
Witness, Dominick Black: Black is a friend of Kyle’s, who bought the AR-15 he used that night. He’s the first witness in the Prosecution case. ADA Binger again made all manner of insinuation, but produced no evidence damaging to Kyle. The jury learned Black and Kyle visited the Car Source lots earlier in the day and got the owner’s permission to provide security that night. Black was on the roof of a building, Kyle, who carried a medical kit, was on the ground to provide medical help for anyone that needed it.
The Prosecution tried to suggest Kyle, carrying a fire extinguisher to put out fires set by Rosenbaum at the car lot where Rosenbaum attacked him, was instead trying to pursue Rosenbaum. He also tried to suggest Kyle, post-shooting, considered fleeing to another state. Again, who you gonna believe, us or your own lyin’ eyes?
Cross-examination of Black: Binger immediately established the same pattern as the Prosecution in the Zimmerman trial: Prosecution witnesses prove self-defense, prosecutors try to hide evidence, on cross-examination the Defense bring out additional evidence the Prosecution tried to hide, making the Prosecution look like they are lying, which they are. Richards expertly exposed that.
Richards established Binger was prosecuting Black for buying the rifle, and Black hoped Binger would go easy on him in exchange for his testimony. Black testified that it was only Kyle’s mother who suggesting fleeing. Kyle did not agree and turned himself in the next morning. NOTE: He tried to immediately turn himself in to the Kenosha Police that night, but they had other priorities, as you’ll see toward the end of this article.
That was pretty much it. All Black really did was make it look like the Prosecution was compelling his testimony because they were holding charges over his head.
Witness, Brandon Cramin, FBI: This testimony wasn’t broadcast, reasons unknown, so I’ll share Branca’s commentary:
I did learn later that apparently the FBI had possessed both the low resolution aerial video shared with prosecutors, and a high-definition version of the same. To the outrage of the defense, however, it was discovered today that the high resolution version of the video had been ‘lost’ by the agency.
Reportedly even Judge Schroeder was left aghast at the possibility that the FBI had tossed away evidence relevant to a homicide case, but beyond that I don’t have any substantive knowledge of how all this played out.
You are free, gentle readers, to believe the FBI “lost” this video because it would be even more damaging to the state’s case, and would certainly harm the D/S/C narrative that anyone opposing the D/S/C “mostly peaceful” riots of that “summer of love” must be racist. In any case, the Post Millennial provides some of that video, which entirely supports Kyle’s self-defense claim.
Witness, Koerri Washington/Elijah: She’s a “social media influencer,” who was present that night. Late in the day, her testimony would continue into the next day. She described the chaos of a genuine riot: hundreds “protesting,” arson, enormous property damage, Molotov cocktails, car lots set on fire, the police withdrawing, all the usual events of a “mostly peaceful protest.” Washington had some video, which showed all manner of violent chaos, but none directly bearing on Kyle. Why the Prosecution would show that, which is clearly helpful to the Defense but not the Prosecution, is hard to fathom, unless they merely hope to somehow confuse the jury or argue the riots were Kyle’s fault, which would make as much sense as their arguments to this point.
Witness, Koerri Washington/Elijah: Her testimony, cross and re-direct was done quickly, and again, I can’t see how anything she presented in any way helped the Prosecution’s case. If you’re interested, take the link, where Branca provides video.
Witness, Kenosha Police Detective Martin Howard: Among the surprises here is Howard has only been a detective for less than three years, yet is the lead detective(?!) in this major case, ostensibly a politically charged double homicide. At the time of the event, he had less than two years on the job. Why is that significant?
New detectives are never assigned homicides, let alone very complex homicides like this. They just don’t have the experience, and someone with less than two years in that job would surely be considered “new.” This might not be the case in a small agency, but the KPD has a detective division staffing of 51 personnel in a city of about 100,000. There is no way a “rookie” detective would normally be given the lead in a case of this magnitude in a division of that size.
Direct Examination of Howard: This was pretty much standard foundational stuff: “what did you do, who did you talk to, how did you collect this and that piece of evidence?” The Prosecution got nothing from Howard that contradicted self-defense. From the lead detective, they got nothing to help their case(?!). Again, take the link for video if you’re interested.
Cross-Examination of Howard: This is where things started to make sense, and again, the Defense made the Prosecution look like they were concealing evidence from the jury—because they are—but worse was yet to come.
Howard testified he, as is routine SOP in such cases, obtained and downloaded the memories of the phones of everyone who might have information relevant to the case. They seized Kyle’s phone, but neither the KPD or FBI could crack it, so they finally asked Kyle for the password. He provided it, as long as his lawyers got a copy of the take, to which they are by law entitled anyway. Not exactly the actions of a guilty man. On the other hand, consider this from Branca:
Things went quite differently when it came to the cell phone of Gaige Grosskreutz, however.
In preparation for an in-person meeting with Gaige Grosskreutz, his lawyer, and representatives from the District Attorney’s office, the police investigators first obtained a search warrant. Again, their standard practice was to always gather up cell phones of people involved in an investigation and download the data, just as normal investigative practice. With the search warrant in hand, about which the Grosskreutz lawyer could have done nothing, they were prepared to do with the Grosskreutz phone what they’d done with every other person’s phone.
Despite having the search warrant in hand, however, and having Grosskreutz and his cell phone both present at the meeting, the investigators ended up not serving that search warrant on Grosskreutz, not seizing his phone, and not downloading the contents.
Not only was Grosskreutz the only person of interest to this investigation who did not have his phone downloaded, he was the only person in Detective Howard’s experience of any Kenosha PD investigation ever where a search warrant for a phone download had not been served.
What’s going on here? The Prosecution obviously wants to treat Grosskreutz as a victim, and likely suspected the data on his phone would not allow them to do that—at all—so rather than letting the evidence tell the tale, they buried that evidence. If they knew there was exculpatory evidence on that phone—evidence they were lawfully required to give to the defense–their concealment would be even worse.
Howard tried to explain this was because of “Macy’s Law,” a Wisconsin “victim’s” law that among other things safeguards a victim’s privacy. He was forced to admit it was ADA Binger who brought this up to Howard. Branca again:
Richards then asked Detective Howards if he had ever before not served a valid search warrant because of Marcy’s Laws concerns? The answer: No.
And since that day, September 24, 2020, had Detective Howard on any occasion not served a valid search warrant because of Marcy’s Laws concerns? The answer, again: No.
Howard also recorded every interview in this case, which was standard operating procedure—except for one: Grosskreutz. If they didn’t record the interview for the same reason, again, that would arguably be worthy of a mistrial at the least. If that wasn’t bad enough for Binger, Howard questioned another “social media influencer,” one “bg,” who they caught with a prosecutable quantity of marijuana. Howard recorded the interview, downloaded bg’s phone, and left the room to make a phone call—to Binger—returned and declined to prosecute bg for the pot. Branca again:
Richards noted that Detective Howard himself did not have the authority to make promises or deals for cooperation, and Howard answered by saying ‘we wanted the video, or we would cite him for the marijuana.’
Richards also noted, and Howard conceded, that the detective did not work for the prosecutor’s office, that he worked for the police department, and that it was his job and legal duty to gather evidence impartially, ‘without fear or favor.’
So, who gave you that permission to make a deal with ‘bg,’ asked Richards? Was it the DAs office? The implication being, of course, ‘was it ADA Binger?’
At this point Detective Howard lost his memory, and couldn’t recall whether anyone had given him permission.
Isn’t that convenient? Detectives do not have the power to bargain pleas and punishment with criminals, unless delegated that authority by prosecutors, which is something I often had as a detective. Where else would Howard have gotten that authority? Officers, of course, decline to arrest people all the time; they have discretion. However, it surely doesn’t look good in this case.
Also convenient is Howard was made the lead detective on the case that same night. A rookie with presumably no experience in homicides, was given the lead on this particular, politically charged case, a case with national implications? How could that have possibly occurred? Police executives don’t normally give in to such demands from prosecutors, but they’re political hires, and if their bosses insist… Howard was obviously willing to do what Binger wanted.
This is significant in that any experienced detective, objectively and dispassionately examining the evidence in this case would never recommend it be prosecuted, and yes, they do bring their initial reports and any updates to prosecutors and discuss things with them, step by step. No detective inspires confidence in their professional judgment by recommending prosecution on a weak–or non-existent–case. But a new, inexperienced detective, perhaps seeing a once-in-a-career opportunity to build a reputation…? An experienced detective would know losing a case like this does not get a gold star in one’s personnel file. If you, like the jury, think Binger demanded it, and Binger is playing fast and loose with the evidence, you’re probably on the right track.
Howard’s cross-examination continued the next day.
Cross-Examination of Howard: The Defense finished its cross, there was re-direct, etc., but the pattern was established. The prosecution’s witnesses not only don’t harm Kyle’s self-defense plea, they support it. The Defense establishes the Prosecution is hiding evidence, and the prosecutorial train wreck continues. Again, take the links to see for yourself if you have an interest.
Direct Examination of Richard McGinnis: McGinnis is a journalist/videographer for The Daily Caller who was present that night, and by chance, actually followed Rosembaum as he chased and attacked Kyle. Though he didn’t videotape the encounter, others did. He had earlier interviewed Kyle and Balch and walked awhile with them. The Prosecution has filed one felony charge of reckless endangerment related to McGinnis, who testified he never felt threatened by anything Kyle did, nor did Kyle injure him. Ooops. His testimony was calm, convincing and carefully considered, particularly as Binger repeatedly attacked him, tried to put words in his mouth, and mischaracterize his testimony. And once again, McGinnis was a Prosecution witness!
The Prosecution played, repeatedly, video of the McGinnis videos of Kyle and Balch, but it’s hard to know why. The videos show them walking about and having very friendly conversations with almost everyone, save a group of four threatening young Black guys, from who Kyle just walked away. There was nothing there that could have been of any value to the Prosecution.
However, McGinnis, in an interview after the shooting, used the word “menacing.” Binger tried to force McGinnis, to say he was applying the word to Kyle, but McGinnis, who was referring to the riots, wouldn’t budge, and Binger accomplished nothing. McGinnis’ additional testimony did accomplish a great deal—for the Defense.
Seeing Kyle grab a fire extinguisher and head down the street to the Car Source lot, he followed, where Rosenbaum was with Joshua Ziminsky, who was armed with a Glock handgun, and Ziminsky’s wife. Rosenbaum, who lit the dumpster fire, hid behind some cars, and when Kyle was alone and exposed, rushed him, and McGinnis, following Kyle, found himself behind Rosenbaum. As Rosenbaum neared Kyle, Ziminsky fired a shot in the air, which caused Kyle, who had been yelling “friendly, friendly, friendly,” to turn around. He saw Rosenbaum almost on him, screaming: “fuck you!” and Rosenbaum lunged for Kyle’s rifle, which was at low ready. Every photo and video of Kyle showed him safely handling his rifle. Binger even asked McGinnis to stand and act out Rosenbaum’s aggressive actions(?!) Kyle turned slightly, Rosenbaum narrowly missed grabbing the rifle, and Kyle fired four shots in .76 seconds.
Binger tried to get McGinnis to claim Kyle shot Rosenbaum in the back, on purpose, characterizing Rosenbaum as “falling,” but McGinnis wasn’t buying it. Then Binger attacked McGinnis, saying he used the word “falling” in an earlier interview, which McGinnis couldn’t recall, and kept badgering him, implying he was committing perjury, forcing a frustrated McGinnis to reply: “I’m not saying that now.”
The Defense didn’t object, I suspect because they could see Judge Schroeder getting fed up, and the Judge did indeed stop Binger from badgering McGinnis. He then broke for lunch.
One round did strike Rosenbaum in the back, but surely because of the angle as Rosenbaum lunged, was hit with the first two rounds in the thigh and pelvis, and driven by his own momentum, fell forward to be struck in his exposed back by the last round. That medical/forensic testimony was not heard this week.
After lunch, Binger tried to substantiate the reckless endangerment charge, supposedly because McGinnis had been struck by one of Kyle’s bullets, which supposedly hit him in the leg. McGinnis said he felt something, but he wasn’t sure what it was, maybe just a reaction to the sound of a gunshot, but he confirmed he wasn’t injured at all. All of Kyle’s shots obviously hit Rosenbaum, no one else. Ooops.
Cross-examination of Richard McGinnis: Defense lawyer Richards only took about 30 minutes to run McGinnis through the high points of his testimony, clearly solidifying in the jury’s mind Rosenbaum as a deranged, intentional aggressor who after threatening to kill Kyle, was trying to do just that.
Re-direct of Richard McGinnis: It was here that Binger tried to get McGinnis to say he couldn’t know Rosembaum’s intent, it was all guesswork, right? To which McGinnis took a moment to consider, then calmly replied: “Well, he said ‘fuck you,’ and then he reached for the weapon.”
McGinnis, one of the Prosecution’s star witnesses, ended up all but obliterating the Prosecution case.
Direct Examination of Ryan Balch: Balch, an Army combat veteran, met Kyle the night of August 25th at the Car Source Lot they both intended to protect from rioters. His calm and convincing testimony—remember he was a Prosecution witness—was deadly to the Prosecution.
Balch testified the presence of armed men at the lot prevented looting and arson, which is the kind of common sense observation the Prosecution would have liked to avoid. He thought Kyle an impressionable kid trying to be helpful, but vulnerable, someone rioters might try to attack.
Binger violated the “don’t ask any question to which you don’t know the answer” rule when he asked about Rosenbaum. Balch’s answer blew up in his face. Rosenbaum, Balch said, was hyper aggressive, violently acting out, throwing rocks, setting fires and often had to be physically restrained from committing violence by other protesters. Ooops. Balch said other protestors actually approached him to assure him Rosenbaum wasn’t one of them.
Even worse for the Prosecution, Balch testified that earlier in the evening, before Kyle put out a dumpster fire started by Rosenbaum and before Rosenbaum attacked Kyle, Rosenbaum rushed up to Kyle and Balch, got in Balch’s face and screamed in a rage: “if I catch any of you guys alone tonight, I’m going to fucking kill you!”
On re-direct Binger desperately tried to salvage something, and Balch conceded he didn’t see Rosenbaum actually hurt anyone, though he did see him set the dumpster fire and many others all up and down the street. Ooops. So desperate was Binger, he actually asked something to the effect of: “apart from the fires you saw him set, did you see him set any other fires?”
Binger tried to make the point Rosenbaum was unarmed, which is irrelevant in self-defense in general and in this case in particular. People are killed by others armed only with fists and feet every day. Balch accommodated him saying, in turn, he didn’t see a gun, knife, bat or club. Of course, when Kyle shot him, after previously being threatened with death by Rosenbaum, Rosenbaum had just screamed “fuck you” and was lunging for his rifle. See my first article on this case for more on Rosenbaum’s criminal and mental health background.
Binger went off, for quite awhile, on bizarre tangents, drawing an objection for relevance from the Defense. Judge Schroeder was so annoyed, he ended it by calling for a break. When they came back, Binger desperately tried to impeach his own witness to little effect.
The Defense did a brief re-cross and that was it for the day, another disastrous day for the Prosecution.
Friday saw quite a few witnesses, which is normal. The Prosecution will normally produce their most important witnesses first and they’ll take the most time. The rest will later add this or that, and will take much less time, and so it was on Friday. By Friday, the jury had to be wondering if they’d ever be seeing any actual evidence of guilt. I certainly was. Keep in mind the Judge instructed them on the law—the charges– before opening statements, so they knew what to look for—more or less. They’ll be getting more education on this, certainly from the Defense, and instructions from the judge, before deliberating.
Direct Examination of Susan Hughes: The great-aunt of Anthony Huber, her testimony was brief and didn’t help the Prosecution at all. It nearly blew up in their faces, and probably did them some real harm.
ADA Jim Kraus began pushing the line that Anthony Huber wasn’t really an attacker, but a hero! This was apparently because he believed Kyle to be an active shooter, so he heroically was trying to protect the mob trying to kill Kyle from Kyle! In trying to read the mind of a dead man—there is no evidence from Huber about why he attacked Kyle–Kraus wanted Hughes to testify about some time in the pass when she believed Huber somehow saved the family from an explosion. He started down this path by asking Hughes if she had ever known Huber to run toward danger, which drew an immediate Defense objection as it should, on the grounds of habit and custom. I couldn’t say this any better than Branca:
Remarkably, when the defense objected on the grounds of habit and custom, and Judge Schroeder sustained the objection on that basis, ADA Kraus looked directly at the judge and whined (all this in front of the jury, mind you), ‘All we’ve heard in this trial is nothing but habit and custom evidence.’
Lawyers do not backtalk a judge, particularly not in front of the jury and TV cameras, which caused Judge Schroeder to reply “you don’t need to comment on my rulings,” and immediately take a break. I can only imagine the ass chewing Kraus got.
Keep in mind that to this point, the Prosecution produced all the evidence! Yet here was Kraus insulting the judge about the evidence his side presented. This is among the most bizarre things I’ve seen in a courtroom, and I’ve seen many.
When they returned, the Prosecution and Defense presented their arguments, but remember, there is video of Huber repeatedly hitting Kyle in the head and neck with a huge skateboard, and trying to take his rifle. What eventually happened was Judge Schroeder gave Kraus a choice: he could elicit that testimony from Hughes, but if he did, that opened the door for the Defense to introduce this:
Specifically, the defense had in its possession several criminal complaints against the then-living Huber in which he’d been credibly accused of far from peaceful conduct. In one complaint he’d been charged with holding a large knife to the throat of his brother, and later also holding the knife to his brother’s stomach and threatening to ‘gut him like a pig,’ for failing to clean his room. There was also a complaint in which he’d taken a plea to a charge of strangling. In another instance, he had threatened to burn down his home ‘with all you f’ers inside it!’
Clearly, Anthony Huber, who has a much longer rap sheet of violent offenses, was no hero, and “all you fuckers,” the people he supposedly saved but later wanted to kill, were his family. Kraus decided he’d rather not bring that up after all, and open the door to even worse evidence about Huber’s character and possible motivations.
Branca argues further that in trying to pursue the idea that Huber thought Kyle an active shooter—which cannot possibly be proved—turns the self-defense claim on its head, because self-defense turns on what the defender reasonably could have known at the time, not what was in the mind of his attacker, which he, and anyone else, could not possibly know. It doesn’t matter how well intentioned an attacker might be, self-defense belongs to and hinges on what the defender reasonably could have known and done at the time. He further argues the Defense missed this important point. Again, take the link to see for yourselves, gentle readers.
Since that line of questioning and argument seems to have been closed off, I argue the point is moot. Branca is unquestionably right about who has the burden of proving self-defense wrong beyond a reasonable doubt. Did the Defense miss an opportunity to make this point, or are they merely reserving it for later because it wasn’t necessary to bring it up just then? I don’t see any harm to the Defense, and certainly no advantage to the Prosecution, at this point. Hughes’ testimony was no aid to the Prosecution.
Direct Examination of Kariann Swart: The self-identified fiancé of Rosenbaum, she inadvertently did great damage to the Prosecution. Keep in mind the Defense can’t just bring up anything they want on cross. They’re limited to what the Prosecution introduces in their direct examination of a witness. But if the Prosecution brings something up, if they “open the door,” the Defense can walk through it. To this point, all of Rosenbaum’s psychiatric issues—and there are many—had been excluded from the trial. Swart opened that door, when, bizarrely, ADA Jim Kraus asked her if Rosenbaum had taken his medication that day(?!).
Before Defense cross, the sides had an aside with the Judge about this issue, and he ruled the Defense could question her about it if the meds were psychiatric in nature and if Swart actually knew details. Oh boy, did she.
Cross-examination of Kariann Swart: Swart not only named several specific psychoactive drugs by name, but by their indications, for bi-polar disorder, depression and other issues. I would have loved to have seen the expressions on the faces of the ADAs when she said that. You could just see the Coyote running off the edge of the mountain, and a little puff of dust as he augered into the valley floor, far, far below.
Still, the Defense got just this much on the record, which arguably opens the door to far more testimony about Rosenbaum’s violently unstable mental state. I’m sure they’ll recall Swart, and likely, psychologists. Oh, the possibilities for the Defense case!
Direct Examination of Jason Lackowski: a friend of Balch, Lackowski was a Marine rifleman, and he too was with the armed contingent on August 25th. It was there he met Kyle. Neatly dressed and Marine polite, he badly damaged the Prosecution. When asked for the magazine capacity of his rifle that night, Lackowski replied “30,” but quickly corrected it was loaded with 28 rounds, which many professionals do, so as not to overstress magazine springs. He was a credible witness, to the Prosecution’s dismay.
He too depicted Rosenbaum as violently aggressive, frequently making “false steps”—lunging forward as if attacking, but jerking back, trying to provoke fights, and repeatedly shouting “nigger” at a BLM riot(?!). Binger went through the whole “did he have a gun, knife, etc.” line, and Lackowski, who did not have an “in-your-face” moment with Rosenbaum, said he did not feel threatened by him.
Cross-examination of Jason Lakowski: Binger’s direct opened the door for Defense Attorney Chirafisi to clobber the Prosecution. Chirafisi confirmed Rosenbaum did not individually threaten Lackowski, but what if Rosembaum had previously threatened to kill Lackowski, and was charging full speed at him, screaming “fuck you!” and fighting to get his gun? Would that be a threat? Lackowski replied: “Oh yeah, a threat to my life, yes.”
Ooops. A rimshot was almost audible in the courtroom. As with Balch, Lackowski’s testimony damaged the Prosecution and bolstered the Defense. One more interesting issue from Lackowski, who applied a tourniquet to Grosskreutz’s arm:
In terms of self-defense, it doesn’t matter if the gun was loaded or unloaded, or even if it was a non-firing replica. Anyone facing the muzzle of a gun has to assume it’s real and loaded, and with all the shooting around that night, failing to assume that could be fatal. Still, it certainly doesn’t help the Prosecution.
I’ll just briefly mention the remaining witnesses for the day, as they added virtually nothing to, and may even have somewhat damaged, the Prosecution case.
Amber Rasmussen: Rasmussen is a DNA technician who testified there was little or no evidence of “touch” DNA from anyone other than Kyle on his weapon. However, no swabs were apparently taken from the barrel of the rifle where the attackers were trying to grab the weapon, and oiled surfaces don’t retain such evidence well. In any case, the absence of such DNA doesn’t prove the weapon wasn’t touched, and its absence does not disprove self-defense.
Sal and Sam Kindri: The sons of the owners of the Car Source lots. Their testimony was they didn’t give permission for armed security on their property, but remember, earlier Prosecution testimony was the owner of the lots did give permission. They were poor witnesses, and appeared to be confused, particularly Sam, who if he wasn’t actually stoned, could easily have played a roll on any Cheech and Chong album. And yes, I’ve often seen people show up for a DUI trial drunk, or a drug possession trial stoned. I’ve even seen wife abusers try to attack their wives in court. In any case, Kyle was trying to save their property by putting out a dumpster fire Rosenbaum set—did he do it to lure Kyle into a trap? He was hiding in wait when Kyle arrived–and certainly didn’t need their permission to flee across their lot when Rosenbaum chased him across it, trying to follow up on his murderous threats. Their testimony had nothing to do with self-defense, nor did they in any way harm Kyle.
KPD Officer Erich Weidner: He was at the scene, and did the kinds of things officers at such scenes do: crowd control, evidence identification and preservation, etc.
KPD Officer Jeffrey van Wie: His testimony was, like Weidner’s, foundational. He took Kyle’s rifle into evidence and swabbed it, just not anywhere attacker’s DNA might have been found.
KPD Officer Pep Moretta: He testified he heard gunshots everywhere, but heard on the radio there was rifle fire ahead of him, so decided not to approach the area, and backed up to allow armored vehicles to pass. He saw Kyle—he didn’t know him—walking toward them. Kyle’s rifle was slung, and his hands were up. They told him to step to the roadside so police vehicles could pass. They didn’t try to stop him.
Amazing. They’re told of rifle fire, and they see a man with a slung rifle walking toward them, and they just tell him to get behind them(?!). Still, they didn’t think Kyle a suspect; they didn’t think him a threat, and they were right. He wasn’t. Moretta explained he had seen many people openly armed all week; it wasn’t remarkable. Also unremarkable was openly armed people approaching him with hands up, obviously just to be careful, which he also testified he saw a lot of that week.
The Defense, on cross, had Moretta confirm he described the riots as “a war zone,” something he had not experienced in 12 years at the KPD. He was shown video of Kyle approaching his vehicle, and said he couldn’t hear people yelling, “that guy shot someone,” which was audible on the video, taken from behind and to the left of Kyle. Two Bearcats—armored vehicles—passed Kyle, and Moretta, on the vehicle PA, yells “get out of the road.” Moretta said he didn’t speak with Kyle because gunfire was still heard and he had radio traffic about people down—injured–in the street, which were his priorities. The video showed Kyle nearing the passenger’s door, and obviously being told to get behind them as he immediately backed away.
Normally, no police officer approaching the scene of a potential shooting, particularly if told it was done with a rifle, would merely tell a rifle-carrying unknown person approaching them, walking away from that scene, to go away! With two officers, one would, at the very least, temporarily secure and identify the person and see what they had been doing. I can’t imagine doing what Moretta and his partner did unless they were under the real threat of imminent gunfire, or actually under fire. My guess is Moretta has been kicking himself over this ever since, even if his supervisor did not. I’m sure he’s also glad the lawyers didn’t call him on this while he was on the stand.
Still, the Defense established with absolute clarity that Kyle had no ill will, was only trying to escape, and was so non-threatening, the police didn’t bother with him even as he was trying to turn himself in. None of which is at all good for the Prosecution.
Thus ended the first week of testimony, which is normally the most important, substantive, portion of any Prosecution case—one only gets one chance to make a first impression–and they haven’t done anything to in any way damage Kyle’s self-defense case. As with the Zimmerman case, the Defense has mostly succeeded in making the Prosecution look like they’re trying to conceal evidence, and the FBI certainly didn’t cover itself in glory, which is, sadly, all too common these days.
The Defense did say the jury would “hear from Kyle.” Does that mean he’ll testify? Unlikely. The Defense has thus far shown no stupid tendencies. I suspect they mean they’ll hear from him through the evidence, particularly, video evidence.
One aside: have you noticed, gentle readers, the people who appear in real courtrooms are seldom Hollywood young, trim and beautiful? In most cases they’re people who in a million years never imagined they’d be testifying in a murder trial, everyday people who look like our friends, coworkers and relatives–like us. It’s not TV or the movies, and Kyle Rittenhouse could end up in prison for life, based on the kind of non-evidence presented this first week of trial. That’s as real as it gets.
For the rest of this week, I’ll cover this case more frequently, making the articles much shorter. Thanks, as always, for stopping by, and I’ll see you again on this case, if not tomorrow, then likely Wednesday.