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You might, gentle readers, wish to take this link to a You Tube video by Law of Self-Defense adept Andrew Branca posted over the weekend.  It’s over 40 minutes long and pretty much a recap of the first week, and an explication of the doctrine of provocation under Wisconsin law, and the Prosecution attempt to argue Kyle Rittenhouse was responsible—by merely openly carrying a rifle–for provoking a crazed BLM/Antifa mob to repeatedly try to kill him.  As I noted in Update 3—the SMM Rittenhouse archive is here—this is a logical, if insane, extension of the Prosecution’s who you gonna believe, us or your own lyin’ eyes? general trial strategy.

And on Day 5, Monday, 11-08-21, the Prosecution used Gaige Grosskreutz to claim he thought Kyle an active shooter, which is presumably why he approached him with a pistol in hand.  On cross examination, this blew up in his face when he was confronted by a photo of Kyle on the ground, firing only when Grosskreutz pointed his pistol at Kyle’s head from a distance of only a few feet.  He was forced to admit Kyle did not fire until he pointed the pistol at his head.

Day 5, 11-08-21: 

Gaige Grosskreutz. Note the fashionable earrings…

Prosecution Star/Desperation Witness Gaige Grosskreutz: If you’ve read all the articles in the SMM Rittenhouse archive, you know Grosskreutz is the sole surviving witness among those shot—and fired at—in this case.  Rosenbaum, whose insane rage began the whole affair was killed, the guy who jump-kicked Kyle in the head and who Kyle missed, has vanished, his identity still unknown. Huber, who kit Kyle in the head twice with a huge and heavy skateboard was killed, and Grosskreutz was shot in the bicep, thus his testimony was the Prosecution’s last chance to really score.

The Direct examination would be what anyone following this trial to date would expect.  Grosskreutz presented himself as believing Kyle was an “active shooter,” and since he is such a pacifistic, heroic sort, he approached Kyle with hands up.  He actually said he would never be able to shoot anyone, because “that’s not the kind of person I am.”  He even testified he thought Kyle in real physical danger!  He thought Kyle might suffer head trauma when Huber was trying to cave his skull in with the skateboard.  ADA Binger had earlier tried to suggest no skateboard could possibly present a deadly threat.  Grosskreutz even said he yelled at Huber to stop!

Grosskreutz tried to minimize the danger of the still unknown guy who kicked Kyle in the face, but was eventually forced to admit he was kicking Kyle in the face with heavy work boots, and that was dangerous too. Grosskreutz was forced to grudgingly admit every attack on Kyle was an unprovoked, deadly force attack, and there was no reasonable grounds for anyone, including himself, to believe Kyle was an active shooter, which was particularly damaging because he is the only person who could have had that belief, a belief he apparently never expressed, not to the police, not to anyone, until he took the stand today.

Defense Attorney Corey Chirafisi

On cross, Defense Attorney Corey Chirafisi was also able to establish Grosskreutz was unlawfully carrying his Glock.  Wisconsin law allows unlicensed open carry, but concealed carry, which he was doing, requires a license.  His was invalid–expired.  Ooops.

Remember, gentle readers, I wrote the Prosecution’s basic argument is:
“who you gonna believe, me or your own lyin’ eyes?”  Grosskreutz tried that tactic in response to the Defense forcing him to confront video of his actions.  He repeatedly said he was not chasing Kyle or running after him, when anyone’s lyin’ eyes showed he was.  It got to the point he admitted, handgun in hand, he was running in the same direction as Rittenhouse, who was still on the ground, but he was not “chasing” him!  By all means, take the link where Andrew Branca provides clips of these incredibly bald-faced lies, and other useful information.

Grosskreutz was also caught when Chirafisi displayed a tweet from Grosskruetz posted on Friday (11-05-21) where he wrote “Be sure you look and listen for the defendant’s firearm malfunctioning” followed by a smiley face emoji.  Incredibly bad judgment, which might lead any reasonable juror to think: “this guy isn’t taking this seriously.”  I’ll also mention he was wearing two large, black earrings, which might well play into a negative association from the jury because of his being caught in so many blatant, stupid lies and clearly being an anarchist type.

His constant lies were of this quality:

Defense Lawyer:  “Are you present in this courtroom at this moment?”

Grosskreutz:  “No.”

Additional lies are in relation to his membership or association with a group known as “Revolution!” which is apparently an Antifa-type, rather than a community service sort, of group.  He claimed to have nothing to do with them, other than having to grudgingly admit he had spoken at one of their rallies where he, with a raised fist salute, shouted “Long live the revolution!”  Ooops.  The Defense was also able to get onto the record some of the members of that group were seated in the courtroom, a neat trick with limited seating.

Most deadly to Grosskreutz’s credibility—I doubt he has any with the jury, unless some are stealth plants—was his insistence his Glock somehow, sometime, just fell out of his pants.  He eventually admitted he drew it from where it was holstered in the back of his waistband, but kept denying he ever pointed it at Kyle.  Keep in mind he was earlier forced to admit Kyle did not fire at anyone, including himself, unless and until they were presenting an imminent deadly threat.  He admitted when he rushed up to Kyle, but slowed and put his hands up in a sort of “surrender” position, Kyle did not shoot him, though he kept trying to imply Kyle shot him for no reason.  However, when showed this screenshot:

He was forced to admit he was actually pointing his Glock at Kyle’s head from only a few feet away when Kyle, who was still on the ground—remember, the three final attacks all happened within seconds–fired the shot that badly damaged his bicep.  Oh yes: he also admitted he lied to police about this and much else.

The expanding hydrostatic explosion of his bicep is visible in the photo.  In other words, gentle readers, he admitted, incredibly grudgingly and only after being confronted in front of the jury with visual evidence, he presented an imminent threat of serious bodily injury or death when Kyle fired.  This was arguably the most clear cut threat of all the assaults against Kyle that night because it was made with a loaded and chambered handgun, which Grosskreutz was also forced to admit.  Keep in mind, however, the presence of a firearm is not, for a moment, required to establish an imminent threat of deadly force.  It’s just easier for a layman to understand.

Detective Benjamin Antaramian

Direct Examination of Detective Benjamin Antaramian: This guy, when assigned to the case as an “independent” lead investigator(?!), had also, like Howard, only been a detective for less then two years.  Having never heard of such a position, I’m at a loss to understand what’s going on.  In any such case, there’s one lead, and everyone else.  Does the KPD have no detectives experienced in homicide investigation beyond a couple of rookies?

Det. Howard, the Lead, Lead Investigator, presented himself reasonably well.  Antaramian did not.  His testimony was often hesitant, even apologetic, which I’ll explain shortly.

Screenshot from miraculously discovered drone footage.

Antaramian testified to introduce drone footage from a commercial drone, which had magically appeared the previous Friday.  The Defense did not raise a stink, which they were justified in doing, probably because it, like everything else the Prosecution has presented, supported self-defense.  In any case, Antaramian testified the police had seen a version of this footage on a commercial news station shortly after August 25, 2020, supposedly on Tucker Carlson Tonight, airing, according to ADA Binger, “a couple days after the shooting?”  To which Antaramian replied: “I believe so,” an example of his consistently vague and imprecise testimony.  Antaramian said they had been trying to get a copy ever since.  They obviously weren’t trying very hard, and he was very vague about exactly how they got it.

Had I been working a case like this, I certainly wouldn’t have waited until the end of the first week for any relevant video to magically appear, and neither would any competent detective.  Competent prosecutors would have wanted to see it before making charging decisions.  Any competent detective supervisor would absolutely be demanding to know where the video was within days or weeks, not more than a year.

Asked if he had viewed the video before testifying, he replied: “’little bit, yeah.”  Binger:  “And did you get a chance to look at it at home?”  Antaramian: “A little bit.”  Antaramian testified that before Rosenbaum attacked Kyle, Kyle put down a fire extinguisher and “then appeared to bring his rifle up…and point it in the direction of the Ziminskis.”

This was apparently a Prosecution attempt to make Kyle appear to be reckless in gun handling, none of which is apparent in any of the video or photos previously introduced.  Antaramian continued to say it was hard to tell what was happening because it was on his work phone and was “low def,” but he thought Joshua Ziminski took “a couple steps” toward Kyle, and then Kyle “starts to run, and then Rosenbaum followed.”  Consider this from Andrew Branca:

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

Well, folks, I also have the ability to zoom in, and I do it not on a smart phone but on a giant 4k iMac computer monitor.  And when I zoom in to the scene that captures Kyle going past the Ziminiski’s I see nothing whatever that looks like anyone pointing a rifle in the direction of anyone else.  What I see is a bunch of pixel soup.

This is certainly consistent with the definition one expects of generally available drone footage.

Antaramian said he could see the confrontation and it appeared Rosenbaum was no closer to Kyle than “three feet” when he was shot.  Binger was trying to establish Rosenbaum was far away from Kyle when shot, again, something the other video does not show.

Let’s take a moment to review this amazing testimony.  Antaramian is an “independent lead investigator” on what is likely the most politically charged homicide Kenosha has ever seen, and he didn’t take any steps to view the video about which he just mysteriously obtained, the video upon which the Prosecution is hanging its hopes for a case that is already below water and sinking like a ship with a broken keel, on a larger screen so he could actually see what happened and testify with confidence?!  Even more amazing, the Prosecution did not require that he, Howard, and the entire Prosecution team review the same video under the best possible circumstances so they could all be aware of exactly what it did and did not reveal?!  We can be absolutely sure the Defense will be doing that overnight and before they present their case.  Maybe Howard and Antaramian were like, you know, busy over the weekend?

I wish a had a dollar for every weekend, holiday and evening hour I spent preparing, reviewing and analyzing evidence.  I certainly never worked with a prosecutor who would have been satisfied with me saying: “yeah, I sort of looked at the video, but it was on, like, a really tiny cell phone screen, so….”  That sort of lack of diligence would have busted me back to patrol, and rightfully so.

This, gentle readers, is incredible incompetence.  In all my police experience, I was absolutely prepared before every trial.  This was particularly so of any major trial, where I would meet with prosecutors and go over my testimony and any exhibits they would present, so I did not, for a moment, look indecisive or hesitant.  No prosecutor wants to be surprised by anything a witness says on the stand, and no competent cop wants to appear to be anything but entirely honest, smart and competent.

Cross-examination of Detective Antaramian:  Chirafisi had Antaramian admit there was powder stippling on Rosenbaum’s body when examined at autopsy.  “Stippling” is carbon and unburned powder flakes deposited by the muzzle flash of a firearm.  It does not appear on the body or clothing of someone shot unless they are close to the muzzle.  The amount and pattern of stippling depends on the distance from the clothing/body to the muzzle, and of course, the type and caliber of weapon and ammunition.  Some of those gasses and powder particles would be diverted up, down and to the sides by an AR-15’s flash suppressor, which would also produce a unique stippling pattern.

Normally, long before trial, forensic personnel and/or detectives would conduct firing tests to determine the distance at which one could expect to find the stippling discovered on a body or clothing from the particular combination of weapon and ammunition, which does not appear to have been done here.  In any case, finding any stippling does not help the Prosecution.  It also has to be remembered Rosenbaum was lunging at Kyle from a dead run when shot.  If he was indeed three feet away, he would have been on Kyle within a fraction of a second thereafter.  Remember too the testimony of Richard McGinnis who said Rosenbaum narrowly missed grabbing the rifle because Kyle moved the barrel to evade his grasp before he fired.

Take the link to see the video, which I viewed several times.  I certainly don’t see what Antaramian did, and I see nothing at all that in any way damages self-defense.

Consider too these excerpts from Patabook.com: 

Chirafisi: You saw other people that were kind of — it wasn’t a two or three-person chase, there were multiple people kind of around Mr. Rittenhouse, some of them brandishing weapons, correct?

Antaramian: There were people — and there were people that were armed, absolutely.

Chirafisi: And those people who didn’t attack him — he didn’t fire at them, did he?

Antaramian: Correct.

Chirafisi: The only people that he fired at were people that had either kicked him, hit him with something, or pulled a gun on him when he’s running down Sheridan Road, right?

Antaramian: I would agree with that statement.

Chirafisi: And after he — initially, when he sees Gaige Grosskreutz, you’d agree when Mr. Grosskreutz’s hands are up, he doesn’t fire?

Antaramian: Correct.

Antaramian admitted Kyle was surrounded by people with all manner of weapons, but didn’t fire at anyone except those who presented an imminent threat of seriously bodily injury or death, and Antaramian was a police prosecution witness!

Final Thoughts:  It’s late, and this is as far as I’m going this evening, gentle readers.  I strongly suspect the Defense is going to be recalling some of these witnesses and fully exposing their ineptitude, lack of proper police procedure, and catching them in additional lies, which is probably why they haven’t been objecting all that much.  They want to get this material on the record so they can impeach it in their case.

I continue to be amazed by the utter lack of evidence presented by the Prosecution.  At the end of their case, the Defense, as defense lawyers always do, will ask the Judge for a directed verdict—to dismiss the case with prejudice, meaning it cannot be retried—on the grounds the state has not met its burden of proof.  Usually, Judges deny the request, which is what the Defense expects, but they need to get the motion on the record for any possible appeal.

In this case, unless the Prosecution pulls some pretty impressive rabbits out of the hat, Judge Schroeder would be entirely justified in granting such a motion.  On one hand, that’s unlikely, because of the notoriety of the case, and because he is certainly worrying about being assassinated; remember his instructions to the jury about that?  Remember their concerns about being killed if they delivered the “wrong” verdict?  On the other, he has also expressed concern about the politically heated nature of this case, and Kyle’s ability to get a fair verdict.  Dismissing it would take the heat off a very relieved jury, but put it on him.  And he has good cause to worry, as Victoria Taft at PJ Media, reports:

George Floyd’s friend, Cortez Rice, who is sometimes referred to as Floyd’s nephew, released a video on Twitter in which he claims he knows people gathering photos and other information about the remaining 18 men and women in the jury pool.

Cortez issued the video as an apparent warning to the jury. In it, he says he didn’t even ‘want to name the people that I know that is in the Kenosha trial. But there’s cameras in there. There’s definitely cameras up in there and there’s definitely people taking pictures of the juries and everything like that. We know what’s going on. So we need the same results, man.’ He then began listing people he believed needed ‘justice.’

One would hope someone would be looking into this, but if you were Kyle’s lawyers, would you trust the KPD to do it?  Could this provoke a mistrial?  I doubt Kyle’s lawyers would want one at this point, but it could certainly be a good issue on appeal in case of conviction.

More as it develops.