Rittenhouse Trial Coverage by Andrew Branca: Trial Day 6

The opinions and statements made in this article are solely those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process. 

Rittenhouse Trial Day 6: State’s Autopsy Expert Supports Self-Defense Narrative In Another Disastrous Prosecution Day

Welcome to today’s Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial. I am, of course, Attorney Andrew Branca, for Law of Self Defense.

Today was the sixth day of the trial by which ADA Thomas Binger is seeking to have Kyle Rittenhouse convicted and sentenced to life in prison for having shot three men (two fatally) the night of August 25, 2020, in Kenosha WI, when the city was suffering a tsunami of rioting, looting, and arson following the lawful shooting of a knife-wielding Jacob Blake by Kenosha police officers.

Well, I imagine those of you following my coverage of this trial are beginning to feel like you are caught in “Law of Self Defense: Groundhog Day Edition,” because every day seems to be a repeat of the same general theme—that it was a terrible, horrible, no good, very bad day for the prosecution.

And I’m afraid today was no different.

Before I dive into the meat of the day, let me knock off a couple of high-level items.

Curfew Violation Charge Dismissed

First, the curfew violation charge, Count 7 in the criminal complaint, has been dropped from the trial.  No explanation was involved, but it hardly matters, it was at worst a ticketing offense.

The more important implication of that charge being dropped is a negative one, what didn’t happen—that is that the illegal gun possession charge, Count 6, remains.

This is a travesty, both because a plain reading of the relevant gun statutes would appear to exempt Kyle, and in any case, the statutes themselves are so ambiguous as to be unconstitutionally vague and probably not understandable to a lay jury.

It’s always been my position that the gun count ought to be dismissed, but I’m not the judge, so here we are.

Entire Testimony of FBI Special Agent Brandon Cramin

Today Judge Schroeder also instructed the jury that they were to disregard in its entirety the testimony on the first day of the trial of FBI Special Agent Brandon Cramin.  The reason given to the jury was that the testimony had proved incomplete. As it happens, Cramin was the only witness of the trial whose testimony was not broadcast from the courtroom, so I’ve never had a substantive opinion on that testimony.  But in any case, it’s apparently gone from the case now.

The State Rests: No Directed Verdict

Finally, the State officially rested today, after presenting its final two witnesses.

It should be understood that when the prosecution rests, that’s the high water mark for the State’s narrative of guilt.  Until now, the only witnesses called have been those the State chose to call.  To that point, the defense has had no choice whatever in the witnesses presented to the jury.

Unfortunately for the State, this high water mark more closely resembles a water ring in a dirty toilet.  In a case where the primary legal defense is self-defense, and where the State, therefore, bears the burden of disproving self-defense beyond a reasonable doubt, the prosecution appears to have come nowhere close to meeting that burden.

From this day forward it will be the defense choosing the witnesses to present to the jury—and the defense certainly started off with a bang today, as I’ll cover in more detail in a moment.  Effectively this means that as weak as the prosecution’s case is today, it can only get weaker moving forward.

And that is, of course, good news for Kyle Rittenhouse.  Having said that, the risks of a conviction are never zero, even for the most innocent of defendants, and of course, even for the acquitted defendant the process itself is its own punishment.

Many people have wondered if the defense would make a motion for a directed verdict.  This is a motion arguing to the judge that no reasonable jury could convict based on the State’s case in chief, and asking the judge to take the matter out of the hands of the jury and render a verdict himself.

Motions for a directed verdict are made as a matter of routine in almost every criminal case I’ve ever been involved in—and they are as routinely denied.  The best path to a directed verdict is where the prosecution has simply produced zero evidence on some element of the underlying crime—or, in the context of this case, zero evidence attacking some element of the defense

Once virtually any evidence has been presented, however, most judges are loathe to take from the jury their role in being the weigher of evidence, the finders of fact, and barely more than zero evidence is therefore enough to deny a motion for a directed verdict.

I’m presuming that in this case, the defense made the motion in the usual way, and the judge denied it in the usual way, although I saw nothing in court discussing such a motion explicitly.

In any case, whether it was made and denied, or not bothered to be made at all, the outcome is the same—the judge is not rendering a verdict in this case, and the defense today began to present its own case in chief.

The State’s Final Witnesses

The State’s two final witnesses were James Armstrong, an imaging expert witness, and Dr. Doug Kelley, the medical examiner in the autopsies of Joseph Rosenbaum and Anthony Huber.

In a nutshell, Armstrong did nothing observable to help the prosecution, and Dr. Kerrey affirmatively helped the defense.  This is not at all how State witnesses are supposed to work for the prosecution, and especially not the last two the jury will hear from before the defense gets its turn.

State Witness:  James Armstrong, Imaging Expert Witness

Armstrong was brought in by the State to speak to the just-discovered “unicorn” evidence in the form of drone footage that the evidence fairy left on the prosecutions’ doorstep this past Friday.

When I examined this video yesterday, I could discern nothing useful even on my high-end computer monitor, and Detective Antaramian who introduced the video could only make the most tentative suggestions about what it showed.

The Detective would claim that he could see Kyle Rittenhouse pointing his rifle towards Joshua Ziminski in the moments before Rosenbaum began his murderous chase of the 17-year-old—all it took was for him to zoom in on the image using his smartphone. He also claimed that Rosenbaum was feet away from Rittenhouse at the time he was shot.

Well, I zoomed in using a giant 4k iMac screen and saw nothing of the sort. Presumably, Armstrong was supposed to come in with some video magic pixy dust and show the jury what the prosecution needed to be shown.

Unfortunately for the State, the ‘enhanced’ video and Armstrong’s testimony still failed to show to this small-town lawyer’s eye anything like what was claimed by the Detective.  As far as I can tell, this drone video is a total bust for the prosecution—and perhaps a help for the defense, because it provides yet another view of Rosenbaum chasing down the fleeing Rittenhouse.

In any case, here’s the direct examination of Armstrong by ADA Kraus:

And the cross-examination of Armstrong by Defense Counsel Richards:

State Witness: Dr. Doug Kelley, Medical Examiner

The final State witness for this trial was Dr. Doug Kelley, the medical examiner who performed the autopsies of both Joseph Rosenbaum and Anthony Huber.

The most notable aspect of Dr. Kelley’s testimony was how visibly uncomfortable he was under direct examination by ADA Kraus.  Kraus repeatedly attempted to press Dr. Kelley into providing testimony that the good doctor was clearly not comfortable providing.  It was quite noticeable, with Kraus proposing some zany interpretation of the autopsy findings that might support the State’s theory of the case, and Dr. Kelley visibly hesitating before simply disagreeing.

Key to the State’s questioning of Dr. Kelley was their desire to have him testify that both Rosenbaum and Huber were further from Rittenhouse than the video evidence would suggest.  Of key importance to this was the analysis of soot and gunpowder stippling around the bullet entrance wounds.

In short, soot marks are generally found only when the muzzle was within a few inches of the wound, and gunpowder stippling only when the muzzle is within four feet or less of the wound.

In one example of Kraus pressing Dr. Kerrey to “lengthen” the distance at which Kyle fired, in the video of the shooting of Rosenbaum a rather large cloud of smoke can be seen coming from the muzzle of Kyle’s rifle.

Wouldn’t all that smoke mean that the stippling found on Rosenbaum might have traveled a much farther distance than is typically the case, Kraus suggested and that therefore Rosenbaum could have been farther from Kyle when shot than the other evidence might indicate?

Kerrey hesitated, then replied that soot and gunpowder flecks have the kinetic energy needed to travel and mark a target—smoke does not.  Ouchie.

At other times Dr. Kerrey suggested that the only way to answer the hypotheticals posed by the State would be to test-fire the rifle—but that just highlighted that such test firing had not been done by the State, most likely because they were afraid the answer would be unfavorable to their prosecution.

On cross-examination by defense counsel Richards, Kerrey testified that the gunshot wounds and injuries to both Rosenbaum and Huber were entirely consistent with the men being in a position of attack upon Rittenhouse when they were shot—even the fatal shot to Rosenbaum’s back, which was likely inflicted when the aggressor made a diving lunge at Kyle’s rifle.  In particular, the soot pattern on the right hand of Rosenbaum suggested that it had been on the muzzle of the rifle when the hand was shot.

On re-direct by ADA Kraus, the prosecutor tried to suggest that the soot on the hand might have been the result of Rosenbaum attempting to “swipe” the muzzle to the side, and even had Dr. Kerrey do a demonstration for the jury using Kraus’s own hand on the rifle barrel.

Unfortunately, Kraus had entirely mistaken which side of the hand the fired bullet had entered.  Once this was corrected by Dr. Kerrey, he pointed out that really the only way the soot pattern observed could have been created was with the hand on the muzzle in the manner suggested by defense counsel Richards.

Dr. Kerrey even used the term “Superman” to describe the lunging, hands forward body position of Rosenbaum that would explain his wound patterns, particularly the fourth fatal shot to the back.

So unsatisfied was the State with their own medical examiner that they not only subject him to direct examination, they then also subject him to re-direct, and ultimately to re-re-direct.  Not that it helped, as the defense effectively cross-examined in each instance.

Overall, the testimony of Dr. Kerrey wasn’t even close in terms of which party it favored—it was entirely consistent with the self-defense narrative of the defense, in a case where the State is obliged to disprove self-defense beyond any reasonable doubt.

Here’s the direct of Dr. Kerrey by ADA Kraus:

The cross-examination of Dr. Kerrey by defense counsel Richards:

And the re-direct by Kraus:

Re-cross by Richards:

Re-re-direct by Kraus:

Re-re-cross by Richards

And with that, the State rested its case, and it was the turn of the defense to steer the trial.

The Rittenhouse Strikes Back

The defense presented four witnesses today, the first three of which were substantive—Nicholas Smith and Joann Fiedler, both of whom accompanied Kyle to protect property the night of August 25, 2020, and Nathan DeBruin, an amateur photographer perhaps best known for his photo of Kyle cleaning graffiti from the local high school.

For all three of these witnesses, the testimony was both entirely consistent with the legal defense of self-defense, and substantively undermined much of the already weak foundation underlying the case-in-chief the prosecution has spent the last week presenting to the jury.

Defense Witness:  Nicholas Smith, Defender of Car Source Property

A key value of the appearance of Nicholas Smith was his testimony indicating that the Car Source owners had explicitly requested, gratefully accepted, and offered to pay for, the protection and assistance of himself, Kyle, Ryan Balch, and the others at the Car Source location that night.

Further, he testified that the owners had provided the protectors with keys and other means of access to the properties. Smith would work alongside Kyle, Ryan Balch, Jason Lackowski, and Joann Fiedler (the next defense witness), amongst others, to accomplish precisely this.

Smith’s testimony was vastly more credible than the confused and apparently stoned testimony of Sal and Sam Khindri, the owners of Car Source, which they had presented on the part of the State, in which they ridiculously purported to have no particular knowledge of all these armed men on their properties.

When subject to cross-examination by ADA Binger, Smith not only provided no testimony harmful to the defense, he provided an opportunity for Binger to present as little more than snide, sneering, and flailing—not a good look.

Smith also testified about Kyle’s shocked demeanor in the aftermath of the shootings, and his urging of Kyle to turn himself in to authorities—which, of course, Kyle had already attempted, and which he would do later that evening in nearby Antioch IL.

Here’s the direct examination of Smith by defense counsel Chifarisi:

The cross-examination by ADA Binger:

here’s the re-direct of Smith by Chirafisi:

Defense Witness:  Joann Fiedler, Protector of Car Source Property

The value of this witness to the defense was substantially greater than even the very positive contribution of Smith.  Like him, she also testified that she had personally met with the Car Source owners, that they were appreciative of the protection offered, and that the protectors had certainly never been told to leave the property.  She would work alongside Kyle, Smith, Ryan Balch, and others to do precisely this.

Fiedler also, however, provided substantive eyewitness testimony about the antics of Joseph Rosenbaum, with a breadth of personal knowledge broader than what the jury had previously seen in this trial.

In addition, she effectively exposed the State’s position as ridiculously weak on several points where they sought to challenge or impeach her testimony, only to have her directly contradict the State’s claims, and exposing the State as having no substantive evidence to back up their accusations.

She also injected some much-needed humor into the proceedings.

Fiedler, who might be described as a “little old lady,” (although in fairness, not likely an older than me) presented as patriotic and civic-minded, without—importantly—presenting as “militia” or “boogaloo.”

She testified about how some protestors outside the Car Source were aggressively seeking to provoke a physical confrontation, urging her to put away her gun (a .380 caliber pistol) and come out in the street, getting increasingly angry and strident with her when she refused to repeat their own fist-in-the-air “power salute,” and so on.

She also testified extensively about the antics of Rosenbaum, including his apparently throwing an object moments before the protectors found themselves the victim of a “gas bomb” attack,

On cross-examination, ADA Binger suggested that she had withheld from investigators video evidence that she had shared with Kyle’s defense attorneys. When she flatly denied this, Binger had no actual evidence to the contrary with which to impeach her denial.

ADA Binger repeatedly attempted to suggest that Fiedler was prepared to kill in order to protect the Car Source property, deliberately conflating the notion of being lawfully armed while defending property and the notion of using that deadly weapon to kill in defense of property. Fiedler consistently insisted her gun was for her own protection and to act as a deterrent in the protection of property.

Ultimately Judge Schroeder made clear to the jury the use-of-force distinction being conflated by Binger, and that put an end to this charade.

Binger accused Fiedler of having told investigators that she’d had no actual communication with the Car Source owners, which she again flatly denied.

At one point Binger decided to revisit his “Rosenbaum was only 5’ 3”, he couldn’t be a deadly threat to anybody” argument—and fell flat on his face.  When Rosenbaum’s slight stature was presented to Fiedler for this purpose she responded “well, he’s about the same size as me.” Turns out that Joann Fiedler herself is only 5’ 4” tall.

At times Binger’s cross-examination of Fiedler became outright incoherent, with he and Fiedler clearly talking about different locations and times without themselves realizing they were at cross-communications—and of course it’s not the job of the witness being cross-examined to keep the questioning coherent.

In short, Fiedler was a very capable witness for the defense narrative of self-defense, and further undermined the narrative of guilt of the State.

Here’s the direction examination of Fiedler by defense counsel Chirafisi:

The cross-examination by a snide, sneering, and ineffective ADA Binger:

And the re-direct by Chirafisi:

Defense Witness:  Nathan DeBruin, Amateur Photographer: Prioritize This One!

Perhaps the most powerful witness of the day for the defense, however, was one that might have seemed the least likely.  This was Nathan DeBruin, an amateur photographer who took a great many photos the night of August 25, 2020, in Kenosha, as well as on previous nights.  Indeed, it was DeBruin who took the now-famous image capturing Kyle, among others, cleaning graffiti off the walls of the local high school.

I say that DeBruin seemed an unlikely candidate to be the defense’s most powerful witness of the day because he presented—and conceded—that he was extremely anxious, and he also suffers from a rather prominent speech impediment.

Despite this, DeBruin was absolutely coherent and firm in his testimony, almost driving ADA Kraus into a rage with his calm and cool testimony that was so helpful to the defense and so damaging to the prosecution.  Indeed, at times ADA Kraus’ cross-examination of DeBruin became completely unprofessional, and almost personally bullying.

Perhaps nothing was as damaging to the prosecution, and as personally infuriating to ADA Kraus, as DeBruin’s testimony that in a meeting with ADA Binger and ADA Kraus he had the perception that they were asking him to “change” his statement to police about what he had observed the night of the 25^th.   Here “change” should be read to mean “falsify”—in particular, to falsify some conduct or presence of Joshua Ziminski.

Indeed, immediately after that meeting with prosecutors, in which DeBruin refused to change a word of his prior statement, he immediately left and retained his own legal counsel—and that counsel was present in the courtroom during DeBruin’s testimony today.

ADA Kraus almost shouted his accusatory questions at DeBruin on cross-examination.  Isn’t it true you have a bias favoring the defense in this case, that you don’t want Rittenhouse convicted?  Not true, answered DeBruin.

Then why did you give an interview to a blog that has published many, many articles critical of myself and ADA Binger?  (Really, this display of personal affront by ADA Kraus was completely unprofessional.)  DeBruin’s answer:  Well, they asked me.

Isn’t it true that you knew the blogger you provided an interview to has a bias against this prosecutor’s office, asked Kraus?  Tell us what you know about his bias!?!?!?!

At this point even Judge Schroeder had enough, interjecting—you’re asking this witness to testify about the alleged bias of some other person?  Yeah, that’s not happening.

Almost as maddening to Kraus was the many photos and personal observations DeBruin had taken of Rosenbaum engaged in conduct that was helplful to the defense and harmful to the prosecution.

Need an eyewitness with photos to testify about Rosenbaum holding a chain? DeBruin’s your guy.

An eyewitness to testify about Rosenbaum’s threatening, violent, provocative conduct towards others, needing to be held back from attacking?  Have you met Nathan DeBruin.

Eyewitness testimony of Rosenbaum tipping over porta-potties, dragging trailers that would later be aflame into the street, hearing Rosenbaum scream that he’d just gotten out of jail and wasn’t afraid to go back, seeing Rosenbaum get angry when the dumpster fire was put out, hearing Rosenbaum shout F the police and shoot me N-word repeatedly.  We’ve got your guy!

Need someone to testify that he saw Huber strike Rittenhouse repeatedly with a skateboard? That Huber’s hand then fought for control of Kyle’s gun?  That Grosskreutz had approached a fallen Rittenhouse with a gun in his hand?  That’s Nathan DeBruin.

On cross-examination by ADA Kraus, DeBruin had repeatedly characterized the meeting with ADA Binger and Kraus in which he felt they were asking him to falsify his police statement as one that was very tense and uncomfortable.

Now Kraus proposed, isn’t it true that our meeting was congenial and uneventful?  DeBruin answered: You mean, aside from all the uncomfortable tension?

When Kraus demanded why DeBruin had forgotten to mention important details in his police statement—such that Grosskreutz had a gun in his hand—that he later remembered when interviewed by the defense, DeBruin looked straight at him and answered, hey, I’m not a police detective or prosecutor, I don’t know what you think is important.

That one left a mark.

Honestly, if you don’t have time to enjoy any other, I recommend you prioritize the testimony of DeBruin, and particularly his cross-examination testimony under the tender mercies of the nearly hysterical Kraus.

Here’s the direct examination of DeBruin by Richards:

The angry and bullying cross-examination by ADA Kraus:

And the re-direct by Richards:

In the end, it was pretty evident that as angry as Kraus was with DeBruin, the amateur photographer had little but contempt for the Assistant District Attorney.

In that match-up, DeBruin was the clear winner.

Defense Witness:  Lucas Zanin

The final defense witness of the day was one Lucas Zanin.  His testimony was not particularly substantive and was offered by the defense at the end of the day as foundational evidence to support the admission into evidence of a cell phone video of the shooting of Rosenbaum in the Car Source parking lot.  This video was taken by Zanin’s step-daughter as the two sat in his car parked across the street from the lot.

Frankly, the video appeared of terrible quality and limited, if any, utility, so I don’t really know what the purpose of this was.  I certainly couldn’t discern anything important in the video, and Zanin had not observed much of any real value.

That said, when subject briefly to cross-examination by ADA Kraus, Zanin began to wax poetically about the sorrow he felt at the terrible destruction the ravaging, invading horde had inflicted on the city in which he’d been born-and-raised—and that certainly did nothing to hurt the defense narrative of self-defense.

Indeed, I almost suspected that the defense had in fact snuck Zanin in as a “booby trap” witness precisely for the State to fall into that trap—but that would be pretty diabolical.

In any case, here’s Zanin’s brief direct examination by Richards:

And his even briefer cross-examination by Kraus:

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

Don’t forget to join us again tomorrow morning at Legal Insurrection for our live coverage of the Kyle Rittenhouse trial, as it enters its seventh day.

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

Law of Self Defense Platinum Protection Program

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ANDREW BRANCA Attorney Andrew F. Branca is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert.  Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media.  Andrew is also a host on the Outdoor Channel’s TV show The Best Defense and contributor to the National Review Online. Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.  Andrew teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country. In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions. Recently, Andrew won the UC Berkeley Law School Debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting on self-defense law.