Posted on November 8, 2021 by Andrew Branca in Uncategorized
Rittenhouse Trial Coverage by Andrew Branca: Trial Day 4
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 4: Two State Blunders Create Opportunity for the Defense
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 fourth day of the trial by which ADA Thomas Binger’s 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.
The highlights of today were, unfortunately, delivered in the form of two major fumbles—one by the defense, and next by the State.
Interestingly, the nature of both fumbles places the ball in the hands of the defense. By sheer luck, the defense acquired some breathing space to recover from its own fumble—although that assumes the defense is even aware that they fumbled, which it appears they are not—as well as perhaps the opportunity to more thoroughly exploit today’s unforced fumble by the ADA Kraus.
In short, a great opportunity at the doorstep of the defense, if they can only recognize it for what it is. My fear, however, is that they may not.
Stopping State’s “Huber was hero stopping active shooter” Narrative
The great defense fumble of the day—from which they may still recover, if they even recognize the error—was accidentally revealed by the State making its own small error and getting caught by the defense. Or, perhaps more accurately, half-caught.
This generalized legal smash-up occurred during the questioning of State’s witness Susan Hughes, the great-aunt of Anthony Huber. Huber, you will remember, was the second man shot by Kyle the night of August 25, 2020, and fatally, after he struck Kyle twice around the head with a heavy skateboard, then grabbed Kyle’s rifle to seize it from him.
As ADA Jim Kraus was conducting direct questioning of Ms. Hughes, he attempted to introduce into evidence her testimony about an event from Huber’s childhood in which he’d purportedly saved a family gathering from an impending explosion.
Kraus initiated this by asking Ms. Hughes, “Have you known Huber to run to danger?”
The defense immediately objected, on grounds of relevance and also that it was inadmissible habit and custom evidence—that is, evidence attempting to argue that because somebody acted in a certain way on one occasion, that meant he acted in a similar way on a later occasion. Such evidence intended to prove a character trait or a proclivity is generally inadmissible
Remarkably, when the defense objected on the grounds of habit and custom, and Judge Schroeder sustained the objection on that basis, ADA Kraus looked directly at the judge and whined (all this in front of the jury, mind you), “All we’ve heard in this trial is nothing but habit and custom evidence.”
For those of you not in the legal profession, let me be the one to inform you—you don’t backtalk to the judge. Never, ever, ever. At least, not with expecting a smackdown.
Judge Schroeder looked right back at ADA Kraus, said “You don’t need to comment on my rulings,” and abruptly recessed the proceedings for a break. Presumably to have an opportunity to cool down before he let Kraus up.
You can watch that 90 seconds of hi-jinks here:
When the court came back into session, Judge Schroeder left the jury out of the courtroom and asked the State and defense to argue out their respective positions on this “child Huber saved family from explosion” evidence outside the hearing of the jury.
The state’s position was that this evidence of Huber’s heroic conduct should be admissible because it would rebut the defense argument that Huber was the initial aggressor in his confrontation with Rittenhouse. That issue of initial aggressor, of course, goes right to the self-defense element of Innocence, without which Kyle’s claim of self-defense with respect to Huber would collapse.
That Huber was the initial aggressor is, of course, incontestably captured on video, as he chased down the fleeing Kyle, struck him twice with the heavy skateboard, and was fighting Kyle for control of his rifle when Kyle fired the single round that killed him.
Naturally, part of his claim of self-defense to justify this shooting is, indeed, that Kyle was not the initial aggressor, but rather that Huber was the initial aggressor. Certainly, the defense would be unwilling to concede that Kyle was the initial aggressor because doing so would lose the element of Innocence with respect to Huber, and lose self-defense.
So, the State argues that given the defense is (necessarily) arguing that Huber was the initial aggressor, they ought to be permitted to admit evidence of Huber’s “peaceful disposition” to rebut the defense—indeed, the admission of such rebuttal evidence is one of the statutorily permitted exceptions to the general prohibition on character evidence. If the other side says your guy is violent, you can introduce evidence to the contrary, if you have it.
There are several problems with the State’s offer of this evidence, however. The first few are genuine, but not the ones I’m most concerned about. Nevertheless, let’s get them out of the way.
First, the defense pointed out that they had not, in fact, explicitly argued that Huber was the initial aggressor in confrontation with Kyle, and might never explicitly make that claim—they intended to let the video speak for itself. This, however, is a weak argument, because Kyle’s very claim of self-defense implicitly requires that it was Huber, rather than Kyle who was the initial aggressor. So, the defense is necessarily arguing Huber to be the initial aggressor implicitly, if not explicitly.
Second, as the defense notes, the statute allows for rebuttal purposes evidence of the person’s “peaceful disposition”—the statute literally uses those words. But that’s not really what the State is offering here. Running to prevent an explosion may well be heroic, but it doesn’t really qualify as evidence of a peaceful disposition.
Third, the defense also notes, if Judge Schroeder decides to admit this “child Huber saved family from explosion” evidence, then the defense wanted the opportunity to share with the jury its own rebuttal evidence.
Specifically, the defense had in its possession several criminal complaints against the then-living Huber in which he’d been credibly accused of far from peaceful conduct. In one complaint he’d been charged with holding a large knife to the throat of his brother, and later also holding the knife to his brother’s stomach and threatening to “gut him like a pig,” for failing to clean his room. There was also a complaint in which he’d taken a plea to a charge of strangling. In another instance, he had threatened to burn down his home “with all you f’ers inside it!”
Ultimately, that’s the deal Judge Schroeder offered the State. If they wanted to have their witness Ms. Hughes testify about the “child Huber saved family from explosion” incident, he’d allow it—but then he’d also allow the defense to bring into evidence Huber’s more violent documented conduct, to rebut the State.
Faced with that price, the State decided to withdraw its questioning of Ms. Hughes about the heroically prevented explosion.
Now, you might be thinking that this looks like a win for the defense. Either they were going to get the explosion story excluded, or they were going to get to show Huber for the person of violent character that the criminal complaints illustrated.
And if that’s all that was involved, it would have been a win-win for the defense.
But there’s more—and the more was insight provided into the narrative the State intends to put before the jury as the reason they should convict Kyle of intentional homicide and have him sentenced to life in prison, plus five years for having used a gun in the killing.
This came to light when ADA Kraus revealed—intentionally or by accident—that the state’s narrative with respect to Huber was going to be that Huber was a hero who had died believing that he was saving the citizens of Kenosha from active shooter Kyle Rittenhouse, after being provoked by Kyle as a result of his shooting of Rosenbaum.
You can listen to ADA Kraus himself here:
This narrative of Huber motivated by heroism to attack Kyle Rittenhouse is one that should never be permitted to be presented to the jury in this case—because it’s entirely irrelevant to any legal issue in the case what Huber’s motivation might have been in initiating a deadly force attack on Kyle Rittenhouse.
Here I’m giving the State’s argument the benefit of the doubt that Huber’s motives were, in fact, good, which is obviously just mere speculation as there is no evidence of Huber’s motives.
But let’s pretend that Huber had in his head that his attack on Kyle was motivated by a good faith desire to stop an active shooter—that has nothing whatever to do with either any of the criminal charges against Kyle or Kyle’s legal defense of self-defense.
Self-defense is evaluated from the perspective of the defender, period. If a defender is acting in otherwise lawful self-defense, he does not lose the privilege of self-defense simply because the person attacking him may be doing so in good faith, or with good motives.
If you’re at home, and armed men kick in your door, and you reasonably perceive that intrusion as a felony home invasion, you can use deadly defensive force against those men in lawful self-defense—and if later turns out that those men were actually law enforcement officers mistakenly, but in good faith, serving a warrant on the wrong house your claim of self-defense remains entirely intact, so long as your perception of them as home invaders was a reasonable perception under the circumstances.
Similarly, if two police officers or armed citizens separately respond to a school shooting with guns drawn, and spotting each other they each mistakenly but reasonably believe the other is the active shooter and start shooting at each other, they each have the legal privilege to defend themselves against the other’s attack. The fact that Joe is shooting at Frank in the good faith belief that Frank is an active shooter does nothing to diminish Frank’s privilege to use force to stop Joe’s attack. Both men are acting in good faith in using force against the other, but both men also fully retain their privilege to defend themselves against the other’s good faith attack.
What controls for your claim of self-defense is whether you reasonably perceived that you were being threatened with an unlawful imminent deadly force attack. You don’t need to be correct in that perception—you merely need to be reasonable in that perception.
So long as you are otherwise acting in lawful self-defense, that the person initiating the unlawful imminent deadly force attack upon you is acting in good faith doesn’t matter even a whit.
Their good faith is entirely irrelevant to your claim of self-defense, period.
In the context of Kyle’s shooting Huber, that means that so long as Kyle had a reasonable perception that he was being subject by Huber to an unlawful imminent deadly force attack, he was privileged to defend himself against that attack with deadly force—and any good faith motivation of Huber matters not a whit.
We can see, then, that any evidence about Huber’s motives in attacking Kyle is both irrelevant to the criminal charges against Kyle and irrelevant to his legal defense of self-defense.
The only question is whether Kyle reasonably perceived he was facing an unlawful, imminent deadly force attack. If he was, he was privileged to use deadly defensive force regardless of what might have been in Huber’s head (about which, again, we have no actual evidence, or anything other than speculation).
Now, it’s possible that the prosecution is planning to argue that Kyle’s conduct in shooting Rosenbaum qualifies as a provocation of Huber that should lose Kyle his privilege of self-defense. After all, if I engage in conduct that provokes you into a fight with me—calling you mean names until we fight—arguably I ought to be found to have lost the element of Innocence and therefore self-defense.
But provocation in this sense is a deliberate and targeted conduct. I intentionally engage in conduct that I should reasonably know will provoke violence and without justification. That’s not what happened here in the shooting of Rosenbaum, however, as that shooting occurred only after a murder-threatening Rosenbaum chased down a fleeing Kyle in a parking lot and attempted to seize violent control of Kyle’s rifle.
That means that even assuming (speculatively, without evidence) that Huber felt genuinely provoked by Kyle’s conduct, that perception can only have been unreasonable, and Huber’s unreasonable perceptions cannot be a basis for denying Kyle his privilege of self-defense.
The effort of the State to argue that provocation can be applied to conduct generally that might anger others, and that you should lose your privilege of self-defense as a result, would turn thousands of years of use-of-force law on its head.
Under the State’s reasoning, even if Kyle’s shooting of Rosenbaum was found to be completely lawful, if Huber perceived it otherwise and was as a result “provoked” to attack Kyle as he fled for the police line, Kyle would have no privilege of lawfully defending himself against Huber’s attack. All that would matter would be Huber’s subjective belief that he was attacking Kyle with good motive.
And that’s the exact reverse of what the law provides in the context of citizens using violence upon each other. It is not the subjective belief of the attacker that controls, it is the reasonable belief of the defender.
The defense should return to court in the morning and argue to Judge Schroeder that no reasonable jury could conclude that Rittenhouse’s compelled (and almost certainly lawful) shooting of Rosenbaum can be found to have been an intended or reasonably foreseeable provocation of Anthony Huber or anybody else, and further that Huber’s motive for launching his attack upon Kyle is irrelevant to the legal merits of Kyle’s self-defense, and therefore the state’s whole theory of the case that Kyle has no privilege of self-defense against Huber because Huber was (purportedly, speculatively, without evidence) acting in good faith and with good and heroic motives is an argument unmoored from both centuries-old use-of-force legal principles as well as any reasonable view of the actual evidence, and should therefore be excluded from this trial.
In any case, here’s the entirety of the events surrounding the testimony of Susan Hughes, Huber’s great aunt, and the legal arguments that resulted:
Susan Hughes: Direct Questioning
Susan Hughes: Initial Argument (pre-lunch)
Susan Hughes: Final Argument (post-lunch)
Opening the Door to Rosenbaum’s Psychiatric History
The second major blunder of the day was also triggered by none other than ADA Kraus, this time during his questioning of State’s witness Kariann Swart, described as the fiancé of Joseph Rosenbaum.
You’ll recall that all evidence of Rosenbaum’s psychiatric issues, including his that-day release from the mental ward of the local hospital, had been excluded from the trial by Judge Schroeder, primarily on the grounds that Kyle lacked personal knowledge of those matters at the moment he defended himself against Rosenbaum’s attack. Had Kyle known, the information would have been relevant to his own state of mind, but he did not.
Suddenly, however, ADA Kraus asked Ms. Swart if Rosenbaum had taken his medication that day. She said he had—but the defense took note of the question. After direct questioning by Kraus was done, and before the defense began its cross, the defense asked for the opportunity for a conversation with the judge outside the hearing of the jury and Ms. Swart.
During that conversation, the defense argued that Kraus asking about the medications opened the door to the defense exploring that issue of medication in more detail. Medication, what kind of medication, for what purpose?
The State objected, of course, but the judge ultimately decided that the issue was relevant if the medications involved were psychiatric in nature, and if Ms. Swart actually possessed personal knowledge on that issue.
Before the matter could be discussed in front of the jury, then, it would be necessary to bring Ms. Swart into the courtroom alone and explore her knowledge of Rosenbaum’s medications and their therapeutic purpose, in a process of voir dire very similar in nature to that of jury selection.
If Ms. Swart didn’t really know anything about the medications or their purpose, no further evidence on the matter could be introduced, and surely not through her testimony.
Well, it turned out Ms. Swart was rather amazingly well-informed about both the medications and their therapeutic purpose, because she was Rosenbaum’s emergency contact for medical purposes, and was in regular communication with his healthcare providers on such matters.
Did she know exactly what drugs Rosenbaum was taking, and for what purpose? She sure did! He was taking this gabapentin for bi-polar disorder and Seroquel for depression, and more.
You could almost hear the State gulp.
Having demonstrated the possession of personal knowledge of Rosenbaum’s medications and their purpose, and with the State having opened the door to Rosenbaum’s use of medications in the first place, the defense was now permitted to question Ms. Swart on these matters in front of the jury, and get that evidence into the record.
Kariann Swart: Direct
Karinann Swart: Debate
Kariann Swart: Voir Dire
I must say, that the defense did follow through on this questioning of Ms. Swart on cross, and so got this evidence into the record. That said, they spent only a few moments on the matter.
Now I’m now wondering if this is all there is, or if they plan to further exploit the door opened by the State.
Now that evidence of specific drugs have been successfully entered into the record, and now that evidence of specific psychiatric conditions, such as bi-polar disorder, have been successfully entered into the record, I see sound argument that the matters can now be explored more fully.
Can the defense now bring in a psychiatrist to testify about any tendency of those specific medications and psychiatric conditions to foster the erratic and violent conduct of Joseph Rosenbaum on the night of August 25, as evidence of his own state of mind, even if that knowledge was not possessed by Kyle Rittenhouse?
Before such an expert would have been inappropriate because there was no evidence of these drugs and psychiatric conditions in the record. But now there is.
It makes one wonder at the possibilities.
Lackowski: “Oh, yeah, then he’d be a threat to my life.”
Another interesting witness today was the first of the morning, Jason Lackowski. Jason had previously been a United States Marine Corps infantry rifleman, and was friendly with Ryan Balch. He, like Ryan, had been present in the company of Kyle on August 25 in Kenosha, and had his own share of interactions with Joseph Rosenbaum in particular.
Highlights of Lackowski’s testimony included his description of Rosenbaum as acting very belligerently, asking people bluntly to shoot him, making “fasle steps” as if attacking, trying to incite violence, and shouting the N-word at a Black Lives Matter rally.
On direct, ADA Binger went though his usual weapons laundry-list question: Did Rosenbaum have a gun? No. Knife? No. Bat? No. Club? No.
Did you personally feel threatened by Rosenbaum, asked Binger, and the USMC rifleman who at the scene had been armed with an AR rifle, a knife, and a can of CS spray, as well as in the company of similarly armed friends, answered that he had not felt personally threatened.
This turned around to bite the State when the defense got to Lackowski on cross examination, however.
Chirafisi asked him, you were never alone one-on-one with Rosenbaum were you? No. You had support with you? Yes. Rosenbaum had never threatened to kill him? No. Never told him, if I get you alone, I’ll f’ing kill you? No.
What if, Chirafisi asked, you had been alone, and Rosenbaum had threatened to kill you under that circumstance, and you saw him charging you at full speed, screaming “F-you!” and fighting to take your gun from you, would you feel then that he was a threat?
Lackowski: “Oh, yeah, a threat to my life, yes.”
Otherwise, Lackowski’s testimony was much along the lines of Ryan Balch, very favorable to Kyle Rittenhouse, very negative about Rosenbaum.
The one exception to the generally favorable testimony about Kyle was that Lackowski testified that when he encountered Kyle only moments after he had shot Rosenbaum, Kyle told him “I didn’t shoot anybody, but I need help,” and that Lackowski told him to walk over to the police line.
Naturally, the State sunk its teeth into the “I didn’t shoot anybody” line—though frankly, it hardly would seem to matter, as Kyle was promptly walking towards the police, anyway. Nevertheless, when you don’t have much to work with, you grab what you can.
The defense suggested that it made much more logical sense that Kyle had said, “I DID shoot somebody and need help,” because why would he say he need help because he HADN’T shot anybody, but didn’t really make that stick.
The Day’s Other Witnesses Not Particularly Notable
The state’s other witnesses were not really very notable, so I’ll just treat them in summary fashion.
Amber Rasmussen, DNA Technician
Amber Rasmussen was the DNA tech who handled the swabs from Kyle’s gun, and found in essence that there was little or no indication of “touch” DNA from Rosenbaum, Huber, or Grosskreutz on the weapon.
The defense pointed out that where they argued the weapon had been grabbed was on the exposed portion of the barrel, and she had not tested for DNA from that area of the weapon—that’s not normally a place where the weapon is held.
In any case, absence of detectable levels of “touch” DNA doesn’t mean there wasn’t contact, especially if the contact was brief, as would have been the case in each instance here.
Amber Rasmussen: Direct
Amber Rasmussen: Cross
Sal & Sam Khindri
Also questioned were the adult sons of the owners of the Car Source properties, Sal & Sam Khindri. They both came across as rather confused, and Sam in particular struck me as doing a pretty good imitation of someone who was profoundly stoned.
The State appears to have called them for their willingness to testify that they had never given anyone permission to provide armed security to their properties, contrary to earlier testimony by Dominick Black and inconsistent with the reasonable understanding of folks like Balch, Lackowski, and Rittenhouse.
The defense on cross pointed out that the Khindri’s might well be concerned about their own civil liability for the killing of Rosenbaum on their property if they had given permission for this armed security that resulted in Rosenbaum’s death. They denied this concern, but of course it’s a reasonable speculation in as highly a litigious society as America—and there are, for certain, civil suits flying around these events already—and it raises the issue of bias in their testimony.
Of course, whether Kyle had their permission to be on the property in general, and be chased by a murderous Rosenbaum across their parking lot in particular, has nothing whatever to do with the legal merits of Kyle’s claim of self-defense.
Sal Khindri: Direct
Sal Khindri: Cross
Sal Khindri: Re-direct
Sal Khindri: Re-cross
Sam Khindri: Direct
Sam Khindri: Cross
Kenosha Police Officers
To wrap up the day we had a series of appearances by various Kenosha police officers, none of whose testimony was all that notable.
First was Officer Erich Weidner. His role in events was to be one of the officers to respond to the Rosenbaum shooting scene and do evidence collection.
Erich Weidner: Direct
Erich Weidner: Cross
Erich Weidner: Re-direct
Erich Weidner: Re-cross
The second was Officer Jeffrey van Wie, who received Kyle’s rifle into evidence and did the swabbing of the trigger, pistol grip, trigger, and handguard that would be sent to Amber Rasmussen for DNA analysis.
Jeffrey van Wie: Direct
Jeffrey van Wie: Cross
Jeffrey van Wie: Re-direct
The third was Officer Pep Moretta, who was in the patrol car approached by Kyle as he neared the police line at the end of Sheridan Street and attempted to turn himself in.
Pep Moretta: Direct
Pep Moretta: Cross
Pep Moretta: Re-direct
And that brought us to the end of court for the day, and the week.
OK, folks, that’s all I have for you on this topic.
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
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.