Posted on November 3, 2021 by Andrew Branca in Uncategorized
Rittenhouse Trial Coverage by Andrew Branca: Trial Day 1
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 1: Defense Dominates Opening Statements & Jurors Hear First Witness Testimony
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 the trial finally got off to the races, with the jury hearing the opening statements of both the state and the defense.
The jury also heard their first witness testimony in this case, from the state’s initial three witnesses.
The first witness was Dominick Black, the friend who purchased Kyle his rifle, and who was present in Kenosha with Kyle on the night of August 25 (and who is facing his own criminal prosecution at the hands of ADA Binger, prosecutor in the Rittenhouse trial).
The second witness was FBI Special Agent Brandon Cramin, who testified about overhead video taken from aerial surveillance. Unfortunately, for unstated reasons the court declined to broadcast the testimony of Special Agent Cramin.
The third and final witness of the day was Koerri Washington (aka Koerri Elijah), reported as a social media influencer who was on scene during the events of this case.
Defense Argues Jury Instruction on Recklessness
Even before the jury was brought into the courtroom this morning, however, the defense had a jury instruction issue to raise with Judge Schroeder.
Specifically, there always exists some intellectual tension between the legal concepts of justified self-defense, on the one hand, and allegations of recklessness on the other, and a somewhat odd wording of the Wisconsin jury instructions on recklessness don’t help clarify this tension.
Recklessness involves the creation of an unjustified and unreasonable risk of death, and disregarding that risk in one’s conduct. Self-defense, of course, often creates a risk of death, but ought not be considered inherently reckless. At the same time, self-defense is required to be reasonable, and recklessness is inherently unreasonable. Under most circumstances, one won’t find an overlap between the legal doctrines of self-defense and recklessness, and so this tension is purely theoretical.
The Wisconsin jury instructions in effect read that self-defense is not a legal defense to an act of recklessness, which makes sense. They also read that an act of lawful self-defense is not recklessness, which also makes sense. But what happens when you have self-defense and recklessness simultaneously?
Here, of course, we have Rittenhouse raising the legal defense of self-defense to justify his intentional shooting of Joseph Rosenbaum. The state, however, is arguing that not only did Rittenhouse shoot Rosenbaum—to which self-defense is an admittedly permissible defense–but that his conduct in doing so also recklessly endangered reporter Richard McGinnis who was standing some distance behind Rosenbaum—and self-defense is not a defense to recklessness.
This morning the defense, through Attorney Corey Chirafisi, sought to have Judge Schroeder agree that if the shooting of Rosenbaum was deemed to be lawful self-defense, this necessarily meant that this same reasonable conduct in self-defense could not also be the basis for a finding of recklessness with respect to McGinnis.
I don’t blame Chirafisi for making this argument, and the specific and somewhat ambiguous wording of the Wisconsin jury instruction on reckless endangerment surely gives the argument some legs.
The normal practice, however, is to analyze the two victims separately—and, it must be admitted, there are circumstances in which self-defense could be simultaneously reasonable with respect to one party, and reckless with respect to another.
For example, imagine a scenario where a defender is being charged by a machete wielding maniac, such that the defender is facing an imminent, unlawful threat of deadly force. That justifies the defender in pulling his pistol and shooting the attacker—using deadly defensive force to stop that unlawful attack.
But imagine if in the process of doing so, the defender doesn’t make any attempt to aim the weapon. Instead, the defender closes their eyes tightly, waves the gun in the general direction of the attacker, and empties the magazine in a continues flurry of gunshots. And one of those gunshots hits a group of schoolchildren downrange of the attacker, killing a child.
It’s quite possible that such a use of force against the attacker would be entirely legally justified, and simultaneously that the death of the child is deemed the result of reckless conduct by the defender.
And ultimately that was the position of Judge Schroeder here:
There also remained some additional jury instruction questions not yet resolved as of t is morning. This first is with respect to Count 6 in the criminal charge, which is weapons possession charge, a misdemeanor offense. My own reading of the convoluted statutory structure for this offense is that it is inapplicable to the facts of this case—that Kyle’s circumstances exempt him from application of the weapons statute in question. That’s also the defense position in this case. The state, naturally disagrees.
The problem is that Judge Schroeder has yet to decide how to settle this dispute—and until it is settled one cannot know how to instruct the jury on the gun charge, assuming the charge ought not be dismissed outright (as I, and the defense, believe).
Frankly, it’s extremely disappointing that Schroeder has not decided this matter by this point in the case, with opening statements occurring today, but he has not. Because he hasn’t, he ultimately decided to just not really give the jury an instruction on this charge today—meaning the jury won’t really understand what to look for in the evidence presented to it on this charge over the course of the trial. It’s just sloppy court procedure.
A final jury instruction issue is with respect to Count 7, which is the violation of curfew offense. This isn’t even really a crime at all, but merely a civil violation punishable only be a ticket—and because it’s so minor, there exists no jury instruction for it at all. So, Judge Schroeder will ultimately have to craft an instruction for this jury—and he has not done so yet. Once more, then, the jury was not given an instruction on this count today. Again, poor show.
Judge Schroeder Instructs the Jury on the Criminal Charges
All of that discussion naturally happened before the jury was brought into the courtroom, but with those issues addressed (or not, as may be), the court finally had the jury brought in.
At this point he reminded the jury of the charges, with some specificity, and then read them the relevant jury instruction language for each count—with the exceptions, as already noted, for count 6 on the weapons charge and count 7 on the curfew offense.
The purpose of exposing the jury to the instructions early on, before even hearing opening statements, is that it primes the jury for what to look for as the testimony and other evidence is presented to them in court.
The judge also provided some guiding jury instructions on matters like how to evaluate the credibility of evidence, to base the verdict only on evidence and arguments made in the courtroom, consistent with the application of the law as instructed by the judge, that the defendant is presumed innocent and that the state has the burden of proof beyond a reasonable doubt, the meaning of reasonable doubt, and so forth.
Basically, the “operating system” for a jury in a criminal trial.
You can enjoy Judge Schroeder’s roughly 30-minute delivery of all this to the jury here:
ADA Binger Presents the State’s Opening Statement
Assistant District Attorney Binger, the lead prosecutor on this case, presented the state’s opening argument.
As I’d rather expected, and is typical in politically motivated prosecutions of this type, Binger’s opening statement was heavy on innuendo, emotive phrases intended to stir fear and emotion in the jurors, and suggestions of poor judgement on the part of Kyle Rittenhouse, but very light on any evidence that was actually inconsistent with Kyle’s legal defense of self-defense.
Binger made repeated references to Kyle as having shot “unarmed” victims, using an “AR-15 style semi-automatic rifle with 30 rounds in the magazine,” after which Kyle didn’t stay to care for those he’d shot but simply walked away.
Property is not worth more than life, Binger reminded the jurors, as if Kyle had shot anybody over a mere property offense.
Of particular importance to Binger was an oft-repeated theme that despite there being hundreds of people present that night in Kenosha, the only person who shot anybody was this defendant—Kyle Rittenhouse.
As if what other people were experiencing or doing has anything whatever to do with whether Kyle himself was facing an unlawful imminent deadly force threat when he fired his rifle. One might as well note that Binger himself, and defense counsel Richards, and Judge Schroeder, also didn’t shoot anybody in Kenosha that night. So what?
There was a lot of innuendo suggesting that Kyle was placing himself in dangerous circumstances unnecessarily—he could have just been home that night. Of course, the same could be said of, for example, Rosenbaum, and Binger tried to head off that avenue of argument by noting that Rosenbaum had been at his girlfriend’s house in Kenosha and ended up downtown because he wasn’t able to stay at her house. This would almost come back to bite Binger badly later.
Binger also made an effort to minimize the possible threat that Rosenbaum could have presented. He was only 5’ 3” and 150 pounds, for example, although if his mission was to seize Kyle’s rifle and use it to kill him—as he’d threatened to do only minutes earlier—his size wouldn’t seem to matter all that much.
Binger also noted that Rosenbaum had only just been released from a “hospital” earlier that day, and indeed the plastic bag he was carrying was of the type provided by hospitals for keeping one’s personal effects. This line would also almost come back to bite Binger badly later.
Binger also introduced the topic of the late-released FBI video footage taken by aircraft over the scene, suggesting that it was Kyle who chased down Rosenbaum, and that it was Kyle who was the initial provoker of the confrontation between the two men, rather than the reverse.
Binger made much of the fact that Rosenbaum was shot four times, once in the back—a point that is technically true, but which is readily explained by the dynamics of the attack upon Kyle by Rosenbaum, as the defense pointed out in their own opening statement.
As for the attacks by others on Rittenhouse as he ran from the site of the shooting of Rosenbaum to the police line down the street, during which he was pursued and attacked, and he shot Huber and Grosskruetz, as well as firing at “unknown male,” Binger put this all down as Kyle’s fault, because those other people purportedly reasonably perceived Kyle to be an “active shooter” who they wanted to stop.
And that was about it for Binger’s roughly 35 minute opening:
At that point the court took a brief recess in preparation for the defense opening statement.
State Objects to Defense Use of Exhibits in Opening
When the court came back into session, however, it was not to jump directly into the defense opening statement, which would be presented by Attorney Mark Richards, because ADA Binger was in a bit of a twist, and had objections to raise with Judge Schroeder.
Binger had discovered, to his dismay, that Richards planned to use a bucket-full of exhibits, in the form of photos and videos of the events, in presenting the defense opening statement to the jury.
Binger himself had used no exhibits to buttress his opening—who knows why—and now he realized that Richards use of these exhibits would make the defense opening appear much more concrete and evidence-based than had the state’s opening rich in innuendo and suggestions but light in facts inconsistent with lawful self-defense.
And Binger was quite correct to be so concerned, because that’s precisely what happened.
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)!
Judge Schroeder had Richards quickly step through all the exhibits he planned to show the jury during his opening—and there were a great many of them, around 40, which is a lot.
Ultimately, Schroeder found none of them objectionable for use in an opening statement. He did caution Richards that the opening statement were supposed to be relatively concise, and Richards assured the judge that he didn’t expect to take much longer than had the state—and he was true to the word, taking about 40 minutes compared to the state’s 35 minutes.
Here’s that debate about the defense plan to use exhibits in its opening:
Defense Almost Opens Door to Rosenbaum Criminal/Mental Issues
But that wasn’t all. Binger was apparently also in a twist because he’d learned that the defense planned to introduce two facts into evidence that he’d reasonably expected not to be admissible.
The first of these facts were that on the night of August 25, 2020, Rosenbaum was under a restraining order from his girlfriend, and facing criminal charges stemming from domestic violence in that relationship.
The second fact was that Rosenbaum had just that day been released from psychiatric care in a hospital.
Now, these two facts normally would not be admissible, so why was the defense planning to introduce both of these facts in its opening statement? Because, the defense argued, the ADA Binger himself had opened the door to the admission of both facts.
The door to the restraining order fact was opened by Binger, the defense argued, when he told the jury that the reason Rosenbaum was reasonably downtown—when it was unreasonable, according to the state, for Rittenhouse to be there—was because he’d been “unable to stay” at his girlfriend’s house. Now the defense wanted to admit into evidence the reason he was “unable to stay”—the restraining order.
The door to the psychiatric release that day was opened by Binger, the defense argued, when the state tried to explain away Rosenbaum’s plastic bag and perhaps garner jury sympathy for Rosenbaum and have him appear less threatening, by telling the jury that he had just been released from the hospital that day. Now the defense wanted the jury to know the nature of that hospital stay to have been psychiatric, as relevant to Rosenbaum’s erratic behavior that evening.
Fortunately for Binger, Judge Schroeder was sympathetic to the argument that the door had not been sufficiently opened, and the evidence not sufficiently relevant, that it ought to be included by the defense in opening statements, but conceded he’d be willing to hear argument on the issues later in the trial. The bottom line is neither fact was mentioned by Richards during his opening.
Here’s the debate around the restraining order and hospital issues:
Attorney Richards Presents Defense Opening Statement
As already noted, the defense opening by Richards was profoundly more fact and evidence-based than had been the state’s opening, and was heavily buttressed by some 40 exhibits in the form of photos and videos. Despite all these supporting exhibits, Richard’s opening was only about 5 minutes longer than had been the state’s.
Richard started by reading aloud the jury instruction on self-defense, noting that the use of deadly defensive force was lawful if necessary to stop a reasonably perceived imminent and unlawful threat of death or grave bodily injury—and then he used the exhibits to illustrate exactly how thoroughly these conditions were met for each and every one of the use-of-force charges against Kyle. (Richards did necessarily not cover the gun and curfew counts in any depth, because Judge Schroeder had not yet determined how or if to instruct the jury on those counts.)
Richard stepped through the chronology of events from the first threatening encounter Kyle had with Rosenbaum, during which Rosenbaum had to be held back by others as he attempted to provoke violent confrontation and threatened to murder Kyle if he got him alone; to Rosenbaum’s pursuit of an isolated Kyle in the Car Source parking lot where Kyle would fatally shoot his attacker.
Using more photos and videos Richards illustrated Kyle’s desperate flight to the police line down the street to turn himself in, only to be pursued down the street “as if by a pack of animals.” Struck from behind on the head, his hat knocked off, put down on the street, struck by the flying jump kick of the unidentified man who kicked Kyle in the face with heavy work boots (who Kyle shot at, but missed), to the skateboard attack of Huber (who Kyle shot and killed), to the Glock-in-hand attack by Grosskreutz (who Kyle shot and wounded)—all occurring in the space of a handful of seconds.
He highlighted Kyle’s provision of medical care to those who had been injured, his genuine desire to protect the city’s private property from riot, looting, and arson, his running with a fire extinguisher to put out what he believed to be another car lot about to be incinerated.
Richards noted the substantive involvement in all the chaos that led to these events of Joshua Ziminsky, the man who was also armed with a pistol and who fired the first shot into the air even as Rosenbaum (apparently his friend) was closing in for the intended deadly attack upon the isolated Rittenhouse.
Richards noted that although the state claimed reporter McGinnis as a victim of purported reckless endangerment by Kyle, McGinnis himself would testify that he was never in fear of Kyle, although he was genuinely frightened by some of the genuinely lawless people wandering the streets of Kenosha that night—the very kind of people attacking Kyle.
Interestingly, at one point Richards literally says “you’ll hear testimony, and not just from Kyle Rittenhouse …” suggesting that perhaps the defense intends to have Kyle testify. That said, he didn’t explicitly state that the jury would hear from Kyle personally, so it may have been a slip of the tongue, or he may have meant they would hear Kyle’s words through one of the many video exhibits.
Richards also noted that Kyle never denied his role in any of the shootings, and claimed self-defense for his conduct from the very start, including when he turned himself in to the police in his home town of Antioch IL within a couple of hours of having survived the deadly attacks upon him.
It was, frankly, an overwhelmingly more powerful and effective opening statement than that provided the jury by the defense. At least in my opinion.
But of course, you can make up your own mind, by enjoying the defense opening here:
Witness Dominick Black: State Direct Examination
With opening statements done, the trial kicked off its first witness, state witness Dominick Black. Black was Kyle’s friend who had purchased the AR-15 rifle for him, and who had accompanied Kyle to Kenosha and the Car Source lot on the night of August 25, 2020.
Frankly, Black didn’t seem to bring much to the table, other than perhaps some opportunities for more innuendo from ADA Binger, who conducted the direct examination of Black.
For example, Binger repeatedly asked Black if he’d shot anybody that night—of course he had not—to suggest that therefore it must have been unreasonable for Kyle to have shot people. It’s also true, of course, that Black was not faced with an imminent unlawful deadly force attack, either, and so would not have been justified in shooting anybody. The same cannot be said of Kyle.
There were a lot of suggestions that the medical gear used by Kyle to provide care that night in Kenosha was actually acquired from Black’s home—as if to suggest that the care provided by Kyle was less genuine, or something?
There were suggestions that Kyle’s possession of the rifle, which was being kept at Black’s home in Kenosha, was somehow without Black’s permission, although Black had never objected to Kyle’s possession of the rifle at any point, and indeed had along his own rifle precisely for purposes of personal protection.
Both Black and Kyle had earlier in the day met the owners of the Car Source lots, and along with others had agreed, with the owner’s permission, to provide some security for those lots—one of which had effectively been burned to the ground along with dozens of cars in the previous two nights of rioting.
But whereas Black has stayed on the roof of one of the Car Source buildings, safe from conflict, a reasonable option Binger suggested, Kyle had chosen the far more confrontational option of being at street level. Of course, Kyle was there to provide medical aid, and that’s hard to do from the roof of a building.
Black testified on direct that he didn’t see any shooting, didn’t see anybody fire a gun, didn’t see anybody injured—even though none of this means that Kyle wasn’t justified in self-defense in his own circumstances, and Black would later concede that he knew Kyle himself had treated injured people.
There also seemed to be some vague attempt by Binger to suggest that Kyle had no legitimate reason for leaving his position near Black’s location and traveling to the Car Source lot where he would be attacked by, and kill, Rosenbaum.
The defense narrative is that Kyle had been informed that cars were being set on fire at the second location, and ran there with a fire extinguisher. The state’s narrative appears to be an effort to suggest that Kyle was in pursuit of a fleeing Rosenbaum, a narrative they seem to think the FBI overhead video footage supports.
Black had driven Kyle to the Rittenhouse home in Antioch after the shootings and Binger got Black to talk about how there had been discussions among the Rittenhouse family that perhaps Kyle should flee to family property outside the state. This would prove to be an innuendo easily exposed by the defense on cross-examination.
And that was about it for direct examination of Black by ADA Binger:
Witness Dominick Black: Defense Cross-Examination
On cross examination Attorney Richards had Black concede that he was currently being charged with two counts for having provided Kyle with the rifle, that each count was good for six years if convicted—and that it was ADA Binger himself who had charged and was prosecuting Black. Further, although Black’s trial had been set for some months ago, Binger had arranged for the trial to be delayed—until after Black had testified against Kyle. He also had Black concede that he certainly hoped Binger would go easy on him in his own case given his testimony in this trial.
Although both Black and the state would deny that any deals had been made, the coercion present was palpable.
On the issue of supposed plans by Kyle to flee to family property out of state, Richards promptly got Black to concede that those suggestions came solely from Kyle’s mother, that Kyle did not agree with them whatever, and that Kyle wanted to, and did, promptly turn himself in to the Antioch police.
Richards got Black to talk about Kyle providing medical care and putting out fires the night of the shooting.
There was more, of course, but nothing very substantial, because direct had never been very substantial and of course cross-examination is limited to the scope of direct.
Here’s that cross-examination of Black by Richards:
Witness Dominick Black: Redirect by the State
Binger did return for a small bit of re-direct examination after cross, mostly to try to fix the damage caused by Richards pointing out the coercion present when Binger was also prosecuting Black for felony charges for having provided Kyle with the rifle.
Here’s that re-direct
Witness FBI Agent Brandon Cramin
The second witness of the trial was FBI Special Agent Brandon Cramin, who apparently testified about overhead video taken from aerial surveillance. Unfortunately, for unstated reasons the court declined to broadcast the testimony of Special Agent Cramin, so I’ve not much to share directly about his testimony.
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 video. 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.
Witness Koerri Washington (Elijah): Direct by the State
The last witness of the day was one Koerri Washington, also known as Koerri Elijah, described as a social media influencer. This was, in fact, only a partial witness, as court would recess for the day before even direct was fully completed, much less cross-examination. Apparently Washington was present on the streets of Kenosha during these events, engaged in live streaming and such for social media purposes.
Basically Washington described an increasing state of chaos in the city, with many out-of-towners and out-of-staters present, many hundreds of people protesting, the police giving up on efforts to maintain public safety, tear gas deployed, people being hit by rubber bullets, roads blocked off with garbage trucks by authorities, those garbage trucks being set on fire, much other property damage, gasoline bombs thrown onto the courthouse, efforts to burn down public buildings, the Car Source arson lots, and so forth.
Binger spent a lot of time apparently trying to suggest that much of the damage to the city occurred on the two nights prior to August 25, 2020—the suggesting being, I guess, that when Kyle came to Kenosha it was unnecessary because the worst of the damage was over? Of course, how Kyle was supposed to know that the third night of rioting wouldn’t be as bad or worse than the previous two nights is not clear to me.
Indeed, to the extent that the damage on August 25 was reduced relative to the prior nights, one might argue that it was precisely the presence of armed citizens like Kyle being present that drove that reduction.
Binger stepped Washington through some of his live streamed recording of the events that night, including video that captured conduct by Rittenhouse, and others involved in the events around the shootings.
Binger also hit on his repeated theme of nobody else that night shooting or being injured, as if other people’s experiences has anything to do with the reasonableness (or not) io Kyle’s conduct in claimed self-defense. The question here is not whether other people would have been justified in using deadly force in self-defense.
Binger showed quite a bit of video from Washington, but honestly I don’t really see what the point is, relevant to the criminal charges or defenses in this trial—except that there appears to be a great deal of chaos, which I would think would benefit the defense in this case.
It was roughly 40 minutes into the direct questioning of Washington by Binger that the court recessed for the day, with direct to pick up again in the morning—so that’s as good a place as any for us to wrap up our own day’s content on the Rittenhouse trial.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
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Law of Self Defense © 2021
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Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Law of Self Defense © 2021
All rights reserved.
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.