Posted on November 4, 2021 by Andrew Branca in Uncategorized
Rittenhouse Trial Coverage by Andrew Branca: Trial Day 2
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 2: Did Prosecution Improperly Conspire Entire Trial?
Defense Suggests ADA Binger Improperly Influenced Police Investigation
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’s long day of trial proceedings was largely a tiresome affair, as the state prosecutors continued to appear unable to extract from their witnesses any substantive evidence inconsistent with Kyle’s legal defense of self-defense.
That said, there were a couple of real highlights, as well, so we’ll focus on those in tonights’ end-of-day summary and analysis.
This ought to be troublesome to them, considering that the state bears the burden of disproving self-defense beyond any reasonable doubt, and even the charges of recklessness are going to only more difficult if Kyle’s actual shooting of three people is found by the jury to be legally justified.
I will, of course, share my notes on even the more tiresome parts of the day, but rather than starting this end-of-day wrap-up chronologically, I’ll instead start with the two parts of the day that were the exceptions to the tedium.
And for certain the highlight of the day was the cross-examination by Defense Attorney Mark Richards of state’s witness Detective Martin Howard, the lead police investigator on the Rittenhouse case for the Kenosha Police Department. Indeed, this cross-examination was interesting both in certain specific details as well as generally.
In fact, if you watch no other of the embedded videos of today’s proceedings, I urge you to watch that cross-examination of Detective Howard in its entirety. Even better news is that it’s not done yet, we’ll have more of Attorney Richards cross-examining Detective Howard first thing tomorrow morning.
Did ADA Binger Conspire An Unjust Prosecution From the Start?
I must confess, and this is probably some kind of reverse ageism on my part, but the moment I saw Detective Martin Howard seated in the witness stand I thought to myself, holy cow, that guy looks like he’s twelve.
This apparent youth made a lot more sense when ADA Binger asked Howard how long he’d been a detective, and the answer was, “almost three years.”
But that also raised questions in my mind. Wait a minute, I thought. The events at the center of this trial occurred 15 months ago. That means that at the time of this event, the Kenosha Police Department assigned to what was sure to be one of the highest-profile cases of its history to a detective with fewer than 21 months in that investigatory position?
That seemed, well, odd. Were there no other more senior detectives to take the lead on this high-profile case that would be sure to attract national, if not international attention?
That background on Howard happened as ADA Binger was having him introduce himself to the jury, however, and as curious as it was to have a detective of such limited experience given such a high-profile case, things got even more curious when Defense Attorney Mark Richards got ahold of Howard on cross-examination.
If you’re wondering how curious, you’re in luck, because I’m here to tell you.
Apparently, Howard violated a number of the departments’ normal investigative practices with respect to this case, while (the defense suggests) being in unusually close and improper communication with ADA Binger himself—and, remarkably, shortly thereafter getting the plum assignment for such an inexperienced detective of being assigned the lead investigator on the Rittenhouse case.
So let’s take a closer look at how Attorney Richards began to expose what the defense suggests is a foul stench at the core of this investigation and trial.
Richards noted that the investigation had collected a lot of the information for this case from people’s cell phones, particularly photos, videos, social media posts, text message, even phone calls. Howard agreed.
In fact, the investigation was pretty firm about getting that phone data from involved parties, as they normally would be in a homicide investigation. Basically, people were brought in for questioning, and when they arrived they were told that they could either provide consent to have their phone downloaded, or they could compel the police to get a search warrant and “crack” the phone—but in any case, they were not leaving with the phone until its data had been downloaded by the police.
Apparently some phones were downloaded with consent, and some with warrants, but two phones in particular had interesting twists in how they were handled: the phone of Kyle Rittenhouse, and the phone of Gaige Grosskreutz.
Investigative Handling of Kyle Rittenhouse’s Cell Phone
In the case of Kyle Rittenhouse the police simply seized physical possession of his phone—he was, after all, a criminal suspect, and began the process to download its data. It turned out, however, that the phone could not be “cracked” by the Kenosha Police Department.
Well, that’s fine, they thought, we’ll just send it off to the Federal Bureau of Investigation and have their fancy-pants lab do it.
Except it turned out that the FBI also lacked the ability to crack Kyle’s phone. It seems the product was an iPhone with the latest operating system, and the FBI’s technology had not yet been developed to “crack” that combination.
That means that if Kyle had wished, he could have denied consent to download his phone, and the police would have been unable to access the data even with a valid search warrant in hand (which they surely would have obtained without difficulty), because they had no technological means to “crack” the phone. So if there was anything that Kyle had to hide on his phone he could have done so, and there would have been nothing that the investigators could have done about it.
When this came to the attention of Kyle’s attorneys they consulted with their client, and made an offer to the police: They’d simply provide the police with the passcode to unlock the phone—already in police possession—granting them unlimited access to its data, and all they asked in return was a copy of data for themselves.
And that’s what happened.
Investigative Handling of Gaige Grosskreutz’ Cell Phone
Things went quite differently when it came to the cell phone of Gaige Grosskreutz, however.
In preparation for an in-person meeting with Gaige Grosskreutz, his lawyer, and representatives from the District Attorney’s office, the police investigators first obtained a search warrant. Again, their standard practice was to always gather up cell phones of people involved in an investigation and download the data, just as normal investigative practice. With the search warrant in hand, about which the Grosskreutz lawyer could have done nothing, they were prepared to do with the Grosskreutz phone what they’d done with every other person’s phone.
Despite having the search warrant in hand, however, and having Grosskreutz and his cell phone both present at the meeting, the investigators ended up not serving that search warrant on Grosskreutz, not seizing his phone, and not downloading the contents.
Not only was Grosskreutz the only person of interest to this investigation who did not have his phone downloaded, he was the only person in Detective Howard’s experience of any Kenosha PD investigation ever where a search warrant for a phone download had not been served.
So, an exceptional breach of standard investigative procedure, indeed.
When Richards asked Detective Howard why this search warrant had not been served, the response was that concerns had been raised about Marcy’s Law. For those who don’t know, Marcy’s Law is often referred to as a “crime victim’s rights” law. It provides privileges to crime victims such as notification of criminal proceedings including any plea bargain, trial, sentencing, and parole of the criminal who victimized them. More relevant here, it also includes provisions to protect the privacy of crime victims.
Here, apparently, it was decided to, first, characterize Gaige Grosskreutz as a “crime victim,” and, second, to use that status and its privilege of privacy to excuse him from having his cell phone subject to search warrant and download.
And who was it, specifically, who had raised these Marcy’s Law concerns with respect to Grosskreutz and his phone, asked Richards of Detective Howard?
The answer: None other than Assistant District Attorney Timothy Binger, the lead prosecutor on this very Kyle Rittenhouse trial.
Richards then asked Detective Howards if he had ever before not served a valid search warrant because of Marcy’s Laws concerns? The answer: No.
And since that day, September 24, 2020, had Detective Howard on any occasion not served a valid search warrant because of Marcy’s Laws concerns? The answer, again: No.
One might begin to imagine that ADA Binger’s concerns about Marcy’s Law with respect to Grosskreutz and his phone were less a matter of legal principle and practice, and more a pretext for not discovering information he didn’t want to know himself, and that he didn’t want to be obliged to provide to the defense as Brady evidence (exculpatory evidence a prosecution must share with the defense).
That wasn’t the only exception to normal investigative practices when it came to Grosskreutz, however. Richards began to run down a long list of various witnesses who were interviewed for this case, every one of which had that interview video recorded. You interviewed Dominick Black? Yes. Recorded? Yes. You interviewed Richard McGinnis? Yes. Recorded? Yes. You interviewed this social media person on the scene and that social media on the scene? Yes. Recorded? Yes.
You interviewed Gaige Grosskreutz? Yes.
And Grosskreutz wasn’t the only witness to get specialized treatment in this investigation.
Another was a social media influencer, “bgonthescene,” who made one of the more prominent videos of events that night. When he was first questioned by police they discovered he was not merely in possession of his phone, but also of a quantity of marijuana—and recreational marijuana possession is an arrestable crime under Wisconsin law.
Naturally, they also had hanging over his head the possibility of a curfew violation—but that’s merely a civil ticket, not an arrestable offense.
Detective Howard was the person questioning “bg” in this interview—and this interview, unlike that of Grosskreutz, was recorded. Ultimately “bg” agreed to allow Howard to download his phone. Later in the interview Howard leaves the room, makes a phone call, and when he returns he tells “bg” that you had spoken to someone at the DA’s office and they indicated that he need not be arrested on the marijuana offense, he could instead go home.
The only reason the defense knows all this, by the way, is that the events were accidentally captured on the recording equipment used for the interview, and that recording had been handed over to the defense as a normal part of discovery.
Richards noted that Detective Howard himself did not have the authority to make promises or deals for cooperation, and Howard answered by saying “we wanted the video, or we would cite him for the marijuana.
Richards also noted, and Howard conceded, that the detective did not work for the prosecutor’s office, that he worked for the police department, and that it was his job and legal duty to gather evidence impartially, “without fear or favor.”
So, who gave you that permission to make a deal with “bg,” asked Richards? Was it the DAs office? The implication being, of course, “was it ADA Binger?”
At this point Detective Howard lost his memory, and couldn’t recall whether anyone had given him permission.
And here’s a remarkable coincidence—it was that very night that brand-spanking new Detective Howard was made lead investigator on the Kyle Rittenhouse case.
To be clear, there would be nothing wrong with someone like ADA Binger granting permission to Detective Howard to make deals for cooperation—but then ADA Binger would have the obligation to disclose such arrangements to the defense. After all, it goes to potential bias. For example might “bg” have had additional videos that were exculpatory for Kyle? The defense deserves to know. And no such disclosure had been made. An undisclosed deal would be misconduct.
Given that Howard had suddenly lost his memory on this question, it wasn’t as if Richards had obtained a sudden courtroom confession. But the implication in the court room was pretty patent—and foul.
Defense Attorney Richards Mines Other Gold On Cross of Howard
These suggestions of investigative irregularities orchestrated by the DAs office or even by ADA Binger personally were the highlights of Richards’ cross-examination of Howard, but they were far from the only gold that was mined during that cross.
ADA Binger had spent roughly two full hours questioning Detective Howard on the witnesses stand on direct examination. Admittedly, most of that time was spent showing various videos of events and occasionally getting a brief comment or observation from the detective.
Bottom line, however, is that if there was any evidence developed in that two hours of direct examination that was inconsistent with Kyle Rittenhouse’s legal defense of self-defense, I didn’t hear it. And keep in mind—the state’s core burden here is to disprove that claim of self-defense, and not just by a little, but beyond any reasonable doubt.
Indeed, we’ve now completed two full days of testimony from state’s witnesses, and over that entire period I haven’t seen any evidence yet inconsistent with self-defense. A lot of hand-waving? Yes. A lot of innuendo? Certainly. A great deal of pounding the table? For sure.
Actual substantive evidence that effectively attacks any one of the key legal elements of Kyle’s claim of self-defense? Not so much.
To the contrary, much of what Binger has been sharing with the jury has been evidence consistent with Kyle’s claim of self-defense, such as his being ferociously pursued and attacked by multiple aggressors over multiple instances, as well as his well-intentioned motives for being present in Kenosha that night, such as repeated video of him calling out “Anybody need medical?,” an offer made without reservation to everybody present on the streets that night.
In contrast, Richards’ cross-examination of Detective Howard led to a great deal of testimony that was highly favorable to the defense.
When you first interviewed Kyle at the Antioch IL police department in the early morning hours of August 26, where he had turned himself in, was he handcuffed? No. In a locked interview room? No. Under observation? No. Kyle was simply waiting in the unlocked lobby with his mother for Detective Howard to show up.
ADA Binger on direct had asked about Kyle’s injuries observable to Howard, and only slight injuries had been in evidence, the implication of course being Kyle had not faced a danger that justified shooting several people.
Of course, no one is obliged to suffer even a scratch before they can be lawfully privileged to use even deadly force in self-defense. The law privileges you to defend against the imminent attack, before the blow is struck.
Richards countered this nicely on cross. When you’re being kicked in the face, you don’t know how seriously you could be injured, correct? When you’re hit in the head with a heavy skateboard, twice, you don’t know how seriously you could be injured, correct? When someone gets a hand on your gun, you don’t know if they’ll take it and use it on you, correct?
Howard: Correct. Correct. Correct.
When Rosenbaum is in this group of cars, he’s hiding? It appears so. And then when my client passes, Rosenbaum pursues, closing on my client? Yes.
When Rosenbaum begins chasing Kyle, does Kyle shout “friendly, friendly?”
Howard: Actually, friend, friendly, friendly.
And that means, I don’t have a beef with you, I don’t want to fight? Yes.
Those protestations of friendliness don’t dissuade Rosenbaum’s attack? No. He continues to gain ground on my client, attempting to flee? Yes. Even when Kyle turns slightly to ensure Rosenbaum has seen his rifle, that still doesn’t dissuade his attack? No.
Keep in mind—this is the state’s witness. And his actual testimony was substantively favorable to the defense, and largely unhelpful to the prosecution.
Here’s that cross-examination of Detective Howard, which I remind you will continue in the morning:
Direct Examination of Detective Howard by ADA Binger
As I’ve already noted, the roughly two hours of total direct examination of Detective Howard by ADA Binger that preceded the cross by Richards was largely a snooze-fest, and I don’t have any particularly notable highlights from it to share. Most of that two hours were spent displaying many of the videos of the events that night, with only an occasional question to Howard.
The one exception to the snoozefest was one extensive debate among the parties about some evidence that Binger wanted admitted badly—a debate that he lost—but I’ll touch back on that in a moment.
I will note that the direct of Howard was broken up by some sidebars and breaks, so I present it here in its four constituent parts, before jumping to the next of the two exciting portions of the day:
ADA Binger’s Failed Effort to Inject Hearsay Into the Trial
So, this is the second of the two exciting portions of the day—and when I say “exciting,” I must confess I mean it in a technical, nuts-and-bolts legal kind of way.
Specifically, when ADA Binger was only about seven-and-a-half minutes into his direct examination of Detective Howard he managed to step on something of an evidentiary landmine—and one that should not have surprised him.
Specifically, with Howard on the witness stand, Binger presented yet another video of the events of the night in question, this time by a videographer who spent much time chatting with Rittenhouse and Ryan Balch (accompanying Rittenhouse, and also armed with an AR-style rifle).
The problem with this recording, legally speaking, was that the videographer was not merely recording video, and not merely asking Kyle questions and getting answers—he was engaged in more or less continual editorializing about what he was seeing, stating opinions, and voicing judgment calls. In particular, he repeatedly characterized Kyle as a “militia member,” a characterization to which the defense strongly objects, and for which there is no actual evidence.
When Binger began to play the video, the militia characterization began to pop up, and the defense objected to that term. The state then agreed to mute the video to avoid the use of that term, but then more editorializing came up, and a more robust objection was made.
The problem with all this editorializing wasn’t so much the sentiments themselves, but the fact that they were being presented in the form of hearsay—out of court statements presented in court for the truth of the statement itself. Such evidence is inadmissible. If such evidence is to be admitted, it must be accompanied by the videographer himself, so he can be sworn, testify from the witness stand, and be subject to cross-examination by the defense. None of that is possible if only the video is presented.
The discussion got sufficiently heated that Judge Schroeder had the jury excused from the courtroom.
Binger attempted to argue that he was not, in fact, offering the statements for their truth, so they didn’t qualify as hearsay, to which Judge Schroeder responded that in that case the statements had no relevance, and should be inadmissible on that basis.
To this Binger responded that they did have relevance, because they went to Kyle’s state of mind—he was personally present, so he was seeing what the cameraman was recording.
To this Defense Attorney Richards burst out that he hardly knew how to respond to such an argument, because the suggestion that the cameraman’s statements represented what was in Kyle’s mind was absurd—was he mind-reading?
What was perhaps most remarkable about this exchange was how vigorously Binger fought to get these statements into evidence, despite the patently shaky evidentiary ground he was standing on. The only reason I could imagine he’d fight so hard for inadmissible hearsay is that this stuff might actually be among the best evidence he has to offer.
And if that’s true, the state is in even more trouble than I’d started to suspect.
When he finally ran out of other arguments, Binger suggested that Judge Schroeder should simply allow in the statements regardless, and simply give the jury a limiting instruction to not pay attention to the hearsay parts.
If that was a reasonable approach, we wouldn’t need to exclude hearsay evidence ever, we could simply always just give that instruction—which, of course, would be insane. Once the jury’s heard the words, they don’t forget them.
Indeed, so wacky was this last desperate suggestion by Binger, and so annoyed was Judge Schroeder’s response, that the judge abruptly called a recess, announcing that he found it “prudent” to take a break.
And when the court came back into session, it seems that Binger had been informed off camera that his evidence was inadmissible, because it was never offered again.
This discussion happened between the first and second episodes of direct questioning of Howard that I shared above, and you can enjoy the debate here:
Finishing Up the Questioning of Koerri Washington (aka Elijah)
Prior to all of the above happening, of course, the court this morning first finished up with the witness carried over from yesterday afternoon, Koerri Washington, known in his “social media influencer” role as Koerri Elijah.
I haven’t much to say about this, either on direct questioning by Binger, cross-examination by Defense Attorney Chirafisi, re-direct by Binger, or re-direct by Chirafisi, except to note that I didn’t really see the prosecution get any value out of Washington at all. And, frankly, the defense didn’t get much out of him, either, that they didn’t already have—meaning, they got his videos which are consistent with lawful self-defense by their client, but we pretty much already have that.
In any case, here’s the completion of direct, and the cross-examination, re-direct, and re-cross of Washington:
It seemed to me that the state really needs to get some traction on undermining Kyle’s claim of self-defense with today’s witness—or at least with some witness—and they failed to it here.
Frankly, much of the development of this trial is reminiscent of the trial of George Zimmerman. Zimmerman, too, raised the legal defense of self-defense, and he, too, started with the legal presumption of innocence. Every day I waited for the prosecution in that case to show us the compelling evidence they had that seemed capable of meeting their burden to disprove self-defense beyond a reasonable doubt. Indeed, every day of the state’s case only seemed to reinforce the strength of Zimmerman’s self-defense claim.
Granted, we’re only two full days into the state’s case here—but I’ve yet to see any compelling evidence that seems capable of meeting their burden to disprove self-defense beyond a reasonable doubt. And I’m beginning to wonder if we ever will.
OK, folks, that’s it for tonight. Join me again tomorrow morning at Legal Insurrection for our LIVE real-time streaming of the trial proceedings, as well as our real-time commenting on trial events as they occur.
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
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.