5th Amendment, ADA Binger, Ana Kasparian, Anthony Huber, exploding hollow points, Gaige Grosskreutz, hollow points, Joshua Ziminski, Judge Schroeder, Kyle Rittenhouse, legal ethics, Mark Richards, mistrial with prejudice
It is the primary duty of any prosecutor to see that justice is done. This not only involves never charging a case when there is insufficient probable cause for arrest and when they believe they can’t prove the charges beyond a reasonable doubt, but never, ever to engage in political prosecution. Doing justice often involves the prosecution winning, but that presumes a prosecutor is filing only legitimate cases, and is not in any way violating legal ethics or the rights of the accused. It also involves never infringing a defendant’s constitutional rights, and particularly not violating their 5th Amendment right to remain silent.
There is now, after this, the 7th day of testimony, no doubt this is a backward, George Zimmerman-like persecution–a political prosecution. Both prosecutors have shown themselves to be desperate, unprincipled, unethical hacks, relying on emotion, innuendo and snark, while the Defense attorneys have shown themselves to be calm professionals, relying on the law and the evidence. The primary difference between the two trials is in the judges. The Zimmerman judge was blatantly biased against Zimmerman; Judge Schroeder is apparently trying to run a honest trial.
Keep these things in mind, gentle readers, as you read about the most bizarre and disastrous—for the Prosecution—day of testimony thus far.
‘When you say you were acting in good faith, I don’t believe that, OK?’
Judge Schroeder to ADA Binger
NOTE: As I watch this trial right after lunch, it appears the Prosecution is actively trying to provoke a mistrial(?!). Why would they want to do that? So they can have another run at Kyle, but this time, with foreknowledge of the defense and with a lot more preparation, and hopefully, a woke judge. I doubt Judge Schroeder will go for that, but he may go for a mistrial with prejudice, meaning there was so much prosecutorial misconduct, the case can never be filed again, which, at this point, seems the only possible resolution. Should this go to the jury and there is a conviction, the Defense has major, major issues for appeal.
Why did the Defense choose to have Kyle testify? In normal murder cases, the defendant has not only a closet, but a warehouse full of skeletons. They’re not usually honest, sympathetic, or indeed, even remotely devoid of complicity in the crime. Often, they’re criminals, smug and stupid, who no sane lawyer would trust under competent cross-examination. That’s not the case with Kyle Rittenhouse, who is no criminal, was in Kenosha with the best of motives, is a smart and genuinely likeable kid, and as the day’s testimony demonstrated, was honest and inspired sympathy. The Defense bet he’d hold up well under cross-examination, and he did better than that.
Before we get into testimony, it’s important to understand what happened today that might end the case tomorrow or in the next few days. As he began his cross-examination of Kyle, ADA Binger commented that Kyle had not, before today, said a word about his experiences, which drew an immediate objection from Defense Attorney Mark Richards, and a very angry rebuke from Judge Schroeder. Why? The 5th Amendment.
Every defendant enjoys the presumption of innocence, and no prosecutor may, in any way, suggest a defendant’s silence—the right to remain silent under the 5th Amendment—is indicative of guilt. So strong is this legal rule, no prosecutor may so much as mention anything about a defendant’s silence, and Binger broadcast it for the jury.
To see video of Judge Schroeder’s extraordinary and very angry dressing downs of Binger, take this link to an article by Andrew Branca at Legal Insurrection.
All Richards had to do was quietly note Binger was infringing on Kyle’s right to remain silent. The judge was so outraged he told Binger this was a “grave constitutional violation,” and “you’re right on the borderline, you may even be over it, and it’s gotta stop.”
Almost immediately, Binger raised an issue that had already been excluded from evidence by Schroeder. Several weeks before August 25, Kyle, with a friend, had seen a shoplifter leaving a CVS pharmacy, and idly commented he wished he had a gun so he could use it on that kind of criminal. He didn’t have a gun that day, had not yet purchased the AR-15 he would carry on August 25, and Schroeder ruled it inadmissible because it had no direct connection to August 25, but Bringer defied the Judge’s ruling and brought it up, again, in front of the Jury.
Schroeder excused the jury, and even more angrily reamed Binger, who actually interrupted and back talked the Judge, the judge he just grossly insulted with his unethical conduct! Chirafisi said Binger knew better, and if it happened again, they would ask for a mistrial with prejudice. Schroeder shouted at him for ignoring his previous ruling and for failing to speak to Schroeder without the jury if he wanted to raise the issue again. Binger rudely spouted nonsense, irrational and disjointed jargon, which Richards, seated behind and to his left, struggled mightily to restrain himself from leaping up and giving Binger a piece of his mind.
After a long diatribe by Binger, Richards finally was able to put on the record before the hearing today, Schroeder told all the counsel there had been nothing presented that would cause him to change any of his rulings. When the Judge continued his scolding of Binger, Binger interrupted him again, and Schroeder shouted: “Don’t get brazen with me!” He also said, angrily and very loudly: “…it isn’t coming in, no matter what you think!
A short time later, Binger began an incomprehensible round of questioning about the nature of hollow point bullets as opposed to fully jacketed bullets. Kyle said he really didn’t know much about ammunition, but Binger wouldn’t stop, and actually began to testify about ammunition, saying hollowpoints explode!
Schroeder stopped him, and Binger interrupted Schroeder! That’s not something lawyers do in court. Schroeder told the jury what Binger was saying was technically incorrect, and that it was wrong for prosecutor to testify, and Binger interrupted him again! Schroeder didn’t give Binger the tongue lashing he deserved and hastily broke for lunch.
After lunch, Chirafisi moved that Judge Schroeder declare a mistrial with prejudice, which means the case could not be retried; it would be over.
This is where we get into Binger’s motivation. He knows his case has already gone down in flames, so he’s trying to provoke a mistrial! Yes, it’s unethical, but if granted, it would give him the opportunity to take another run at Kyle knowing what the Defense strategy and witnesses would be. He’d have all the time he needed to find, or manufacture, additional evidence—much of which he neglected–and to better prepare, and he’d probably get another, more politically reliable, judge (Judge Schroeder was appointed by a Democrat, but is an honest jurist). Because of this kind of unethical behavior, judges have the ability to declare a mistrial with prejudice, which would foil what Binger is so obviously trying to do, and would theoretically prevent even the attempt.
Here’s where things get interesting: Binger must figure he’s politically protected. No matter what he does, even if it would cause the disbarment of most lawyers, the fix is in, and he’s invulnerable. If he gets a mistrial, he gets a second chance, but from a stronger position, particularly if he gets a friendly, woke judge. As for Kyle, the double process is double punishment. Binger also knows Judge Schroeder wants this to go to the jury, so if Kyle is acquitted—as the evidence demands–he can blame the jury, and so will the social justice warriors, which includes the political establishment and media. The SJWs are already filming jurors and threatening them. But if he declares a mistrial with prejudice, which he should, the blame’s on him, and social justice warriors might riot, torch his home, even try to kill him. It’s on his mind; remember how he talked about judges and assassination while trying to ease the jury’s fears(?!)? On the other hand, if Kyle is convicted, his refusal to declare a mistrial of any kind will give the Defense a gold-plated issue for appeal, which if granted, will make him look very bad indeed, and judges hate being overturned.
Even so, Judge Schroeder took the motion under advisement. If he doesn’t grant it first thing in the morning, the trial goes on, unless Binger does something so unethical and calculatedly stupid he leaves Schroeder no choice, which is entirely possible. Binger could even do it during his closing argument.
And when Binger continued, he did it again! He tried to get a t-shirt Kyle had been wearing months after August 25 into evidence, which was another issued Schroeder had earlier ruled inadmissible! The only saving grace was Binger did this before the jury came in. After another lengthy Binger speech, Schroeder, again, excluded it.
Witness Kyle Rittenhouse: It was clear from the beginning Kyle had been schooled on the elements of self-defense. Richards asked: “Would you have shot Rosenbaum if he hadn’t chased you and fought for your firearm?” to which Kyle responded: “no.”
The Prosecution had consistently tried to describe Kyle, who lives nearby in Illinois, as some kind of outsider who crossed state lines with a gun to kill people. Kyle explained he was very familiar with Kenosha, because his father and other relatives live there, and he worked there. In fact, it’s common for people living in nearby towns, to spend quite a bit of time in both. Also, the AR was kept in Kenosha, Kyle did not take it across state lines.
Kyle confirmed that he met with the Car Source owners, who were very happy to have his help. He also testified that Rosenbaum, wielding a chain, threatened to kill him not once but twice, the second time telling him he would “cut your fucking heart out.” There was more, but again, take the links to see that testimony.
Kyle explained that he received a cell call from Dominick Black, who told him about the dumpster fire, which was what caused him to pick up an extinguisher and run there to put out the fire. When he began to talk about how he was caught between a gun-wielding Ziminski and a charging Rosenbaum, he was overcome with emotion and began sobbing. Judge Schroeder called a break. This kind of emotion is always dangerous, but only if it’s theatric rather than a genuine, spontaneous expression of emotion that supports a defendant’s character, testimony and defense strategy, as it did in this case. Some reporting in the courtroom noted some jurors were moved.
When testimony began again, Kyle said after putting out the fire, he saw Joshua Ziminski, a friend of Rosenbaum, with a gun in his hand. Ziminski took a step toward him, Kyle dropped the extinguisher and took a step back, and Rosenbaum came out of hiding behind some cars and “ambushed me.” Kyle said he ran, turned momentarily back toward Rosenbaum, pointing his rifle at him, hoping he’d stop, but he didn’t, so Kyle turned and ran again, but was hemmed in by cars, and a large, violent mob ahead. He turned, Rosenbaum screamed: “fuck you!” and grabbed for Kyle’s gun, so he fired four shots in .76 seconds “until he was no longer a threat,” which is exactly what he should have said to support self-defense. All of this is visible on video.
For the second rounds of attacks, Kyle said when the unknown rioter hit him in the back of the head with a chunk of concrete that knocked his hat off, he went faint, stumbled and fell. That attacker remains unknown. Video shows a crowd of rioters in pursuit of Kyle, and the still unknown rioter who, seeing Kyle down, accelerated his run, leapt into the air, and kicked him in the face. Kyle said he fired two shots, but missed, and the unknown rioter ran off into anonymity. Immediately, within seconds, Anthony Huber hit Kyle twice in the head with the skateboard—which immediately disappeared and was never recovered as evidence—and tried to get Kyle’s rifle. Kyle said he could feel the sling slipping off his body, and fearing for his life, fired one round into Huber’s chest. Immediately, Gaige Grosskreutz rushed Kyle, pistol in hand. Kyle said when Grosskreutz realized Kyle saw him, he braked and raised his hands, but immediately rushed in again and pointed his gun at Kyle’s head, which was when Kyle shot him in the bicep. Kyle also said he pointed his rifle at several others, one with a pipe, but they didn’t pose an imminent threat so he didn’t fire. He got up and fled toward the police line. The police, as I’ve previously written, told him to get lost, so he went home to Antioch, and within a few hours, turned himself in.
All of this is clearly visible on video in evidence. What’s remarkable is from the moment Kyle fell to the pavement, until he was able to get up again and start running toward the police line, only a few seconds elapsed. Under constant deadly assault from multiple vectors, one after another, he was able to deter and stop three deadly attacks without harming an innocent, and had the presence of mind not to shoot anyone that didn’t pose an imminent threat. Many adults, including police officers, aren’t capable of that feat. Kyle testified, particularly considering he’s only 18, very well indeed.
Cross-Examination by Binger: It was as unethical, ineffective, and unprofessional as I’ve already partially described. Binger tried to confuse the jury by trying to say everyone but Grosskreutz who attacked him was unarmed. Did he have a gun? No. A knife? No. A pipe? No, etc. In essence, he was arguing Kyle had to let his attackers shoot him first before he defended his life. Binger knows better, and so do regular readers. As long as a person could reasonably believe an attacker presented an imminent threat of serious bodily injury or death, it doesn’t matter if they are unarmed or carrying a nuclear weapon. People are killed every day by “unarmed” assailants.
But what about Grosskreutz, who was armed with a Glock? Binger demanded to know why Grosskreutz wasn’t as threatened as Kyle, since he only had a handgun and Kyle had a rifle? Again, Binger is trying to confuse the jury by suggesting Kyle’s rifle was much more dangerous than Grosskreutz’s handgun and Kyle’s self-defense claim was invalid. But that’s not the point. Kyle was justified in shooting because he was not the initial aggressor. He chose to fire only at the very last moment when he could have fired the instant he saw Grosskreutz rushing him with a gun.
And of course, Binger, who was rude, insulting, and in general, an asshat, tried to provoke Kyle into an angry outburst, constantly accusing him of wanting to kill. Kyle never responded in kind, answering perfectly in line with self-defense. Rather than seeming a reckless kid, Kyle convincingly portrayed himself as a reasonable and cautious young man doing very well in dangerous circumstances.
Binger even tried to suggest because Kyle played videogames, he wanted to kill three people on August 25th, to which Kyle calmly responded those are videogames, not real life. Binger looked like an arrogant clod.
Binger accused Kyle of violating curfew, which charge I’m sure you’ll recall had already been dismissed. This drew an objection, but Schroeder allowed it. Kyle calmly replied that there were hundreds, maybe even thousands, of people out that night and the police didn’t seem to be enforcing any curfew, which caused Binger to drop that line of questioning and they broke for lunch.
After lunch, Binger became even more desperate and incoherent. Consider this from Andrew Branca:
At this point Binger became rather schizophrenic in his questioning, presenting Kyle with a lose-lose scenario for the defense. Either the environment was safe, and therefore Kyle was somehow reckless for having brought a rifle with him for protection, or the environment was sufficiently dangerous to warrant a rifle, and therefore Kyle was somehow reckless for running around providing medical care and putting out fires.
Heads Binger wins, tails, Kyle loses. This was all, of course, in support of the various recklessness charges.
At one point Binger actually asked him why, before he ran to the Car Source 63rdSt. lot to put out the purported fire there, where he was attacked by, and killed, Joseph Rosenbaum, if Kyle felt it was safe enough to do that by himself, with no partner to protect him, why hadn’t Kyle simply taken off his rifle at the Ultimate gas station and left it there—on the ground, with strangers. I kid you not.
Binger, whose before lunch cross ran at least three hours, kept rattling on and on, but got nowhere. At some point on August 25, a rioter accused Kyle of pointing a gun at him, and Binger brought this up, apparently to show he was bloodthirsty. Kyle explained he replied: “Yeah, I pointed a gun at you,” turned around and walked away, but not because he did–he knew he didn’t–he just responded as anyone might when a stranger throws an absurd allegation at them. Binger failed in trying to characterize Kyle’s response as an admission of guilt.
After another break, Binger tried to introduce the magically appearing drone footage that doesn’t show anything, but an argument about AI and pixels ensued. He did end up showing it to Kyle on an iPad, but that came to nothing. Binger even suggested it was entirely reasonable for an angry mob to chase and try to kill Kyle because he had just killed Rosenbaum!
Then Binger kept asserting Kyle wanted to kill people. No, I just need to stop them. You wanted to kill them. That’s not true. You wanted to kill them. I was trying to keep them from killing me, and on and on.
Finally, Binger accused Kyle of fleeing the scene!
So badly had Binger damaged his own case, and so well had Kyle deflected him and stuck to the self-defense script, the Defense had nothing further, though they did say they had only three more witnesses, including their use of force expert, Dr. Black, and that was it for the day
Final Thoughts: That they have only three more witnesses is significant. They obviously believe the Prosecution did so badly, that’s all they’ll need, and I believe they’re correct. I also suspect Dr. Black won’t take long. They’ll no doubt have him explain the elements of deadly force, analyze each attack, and explain how Kyle met each element.
If Judge Schroeder doesn’t declare a mistrial with prejudice in the morning, the case could be to the Jury no later than Monday. However, there is still plenty of opportunity for Binger to force a mistrial, even during his closing arguments, between now and then.
One final issue. The media has generally behaved abominably, and continue to lie about the trial, slavishly upholding the narrative, including continuing to call Kyle, with no evidence whatsoever, a white supremacist. However, there appears to be at least one honest progressive, one Ana Kasparian, who has an online news show called “The Young Turks.” Take this link, where Kasparian admits she was wrong about at least some of the facts in the case.
More tomorrow, gentle readers, and as always, your patronage of this scruffy little blog means more to me than I can easily express, not that I’m often at a loss for words…