Rittenhouse Trial Coverage by Andrew Branca: Trial Day 5

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 5:  Prosecution’s Star Witness Implodes on the Stand

State laughably responds with suddenly-discovered “Unicorn” evidence

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 fifth 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.

And it would be hard to fully express what a catastrophe this day was for Prosecutor Binger.

The prosecution’s demise came into the courtroom in the form of its star witness, Gaige Grosskreutz, famously shot in the right bicep by Kyle Rittenhouse as Grosskreutz closed, Glock in hand, on the fallen, but not defeated, 17-year-old. 

Grosskreutz is the only survivor from among the three men who were struck by Kyle’s desperately fired rounds, and the only one of Kyle’s attackers available to testify for the State in this prosecution (the fourth primary attacker, “jump kick man,” had the unbelievably good fortune to be missed twice by the 17-year-old, and has since disappeared off the face of the Earth).

Grosskreutz is fortunate that modern American courtrooms don’t do trial by combat, because otherwise he’d have been carried out of the courtroom mortality wounded by his own testimony.

Perhaps guessing how poorly today’s Grosskreutz testimony would go for him today, ADA Binger did come to court with a trick up his purple sleeve—the sudden discovery, just this past Friday, of “high-definition” drone footage that he and his crack investigative team present as putting the final nail in the coffin of Kyle’s claims of self-defense in his shooting of Rosenbaum.

To that my lawyer’s Magic 8-Ball says “Yeah, not so much”—and I’ve seen this purported video.  You will, too, as it’s embedded in today’s content.

In fact, today’s content will be light on written legal analysis, and heavy on short, focused embedded video, because that’s where the gold is today.

Without further ado, let’s dive right in.

The Implosive Testimony of Gauge Grosskreutz

First, in the interests of time I’m going to focus here just on the testimony provided by Grosskreutz on cross-examination, because that’s where the meat is. 

Indeed, much of the cloying direct questioning by ADA Binger sounded more like the kind of conversation one might overhear of two people on their first date at a coffee shop, rather than the direct examination of a prosecutor seeking to prove a homicide case beyond a reasonable doubt.

As I stepped through the cross-examination of Grosskreutz today, I identified no fewer than 19 substantive portions, nearly 50% of the total time spent on cross by Attorney Chirafisi, that were substantively destructive to the State’s narrative of guilt, and helpful to the defense narrative of self-defense.  And that’s NOT how the State’s star witness is supposed to work out.

Frankly, it was harder to identify the parts to leave out of today’s end-of-day post than it was to select the parts to keep in.

It was, in short, a veritable legal bloodbath.

Grosskreutz Only Shot When His Gun Aimed at Rittenhouse

By far the most destructive of Grosskreutz’ testimony to the State narrative of guilt was when he recounted before the jury that at the moment that he was shot in the bicep by Kyle—the moment that his bicep was “vaporized,” to use his own language—his own Glock 27 .40-caliber pistol with a round in the chamber was pointed directly at Kyle from a distance of perhaps 3 feet.

All this while he insisted on direct examination that he would never be able to shoot another human being, because “that’s not the kind of person I am.” 

Here’s that clip of cross-examination:

Kyle Only Ever Shot People Actually Attacking Him

Almost as compelling was Gaige Grosskreutz—I remind you, the STATE’s star witness—testifying repeatedly how Rittenhouse only ever shot at people who were actually attacking him, and never fired a shot at anybody who was not, or even anybody who appeared to have begun an attack but then backed off.

Here’s Grosskreutz recounting how Kyle had the opportunity to shoot him as he rushed up, gun in hand, but did not fire when Grosskreutz put the brakes on his rush and put his hands up in the universal gesture of “unthreatening.”

Here’s Grosskreutz testifying that it was not just himself who Kyle declined to shoot when he appeared to stop a rushing attack—there were other people who also rushed at Kyle, then put on the brakes, and had Kyle pass on the easy opportunity to shoot them:

Grosskreutz Was Concerned Attacks Might Cause Kyle Senior Injury

Perhaps as sweet as Grosskreutz’ testimony about how disciplined Kyle was in his judicious use of deadly defensive force only against people apparently attempting to kill or maim him, was Grosskreutz’ testimony about his own tender concerns for Kyle’s well-being while being attacked by multiple deadly force aggressors.

Here’s Grosskreutz testifying that in his opinion Kyle was in genuine physical danger, a danger about which he himself was concerned:

Here’s Grosskreutz testifying that he was particularly concerned that Kyle might suffer serious head trauma under the tender mercies of Anthony Huber’s skateboard—in the same day that ADA Binger sought to ridicule the notion that a skateboard could present as a deadly force threat. 

In fact, Grosskreutz was on record as having told police that he was particularly concerned about the manner in which Anthony Huber was swinging the skateboard with a grip on the “trucks,” the metal fixtures that attach the wheels to the board, and which provide for the board to be struck with exception force.:

Grosskreutz Shouted at Huber to Stop Striking Kyle with Skateboard

Indeed, so concerned was Grosskreutz by the danger of Huber’s skateboard attack, that he repeatedly shouted at Huber to stop hitting Kyle with the board—yes, that’s his own testimony under cross-examination today:

Grosskreutz Concedes “Jump Kick Man” Kicking Kyle in the Face with Boots

And it wasn’t just Huber whom Grosskreutz described as attacking Kyle with deadly force—meaning, legally, force capable of causing death or serious bodily injury.  Although Grosskreutz burned much of what little credibility he might have had by pretending that “jump kick man” was not kicking work boots into Kyle’s face, he was ultimately compelled to concede the truth of that attack:

At Every Grosskreutz Had with Kyle, the 17-year-old Was Non-Confrontational

Perhaps as helpful to the defense, Grosskreutz was compelled under cross-examination to concede that in every one of his own interactions with Rittenhouse—until, of course, his attack on the fallen 17-year-old with the Glock pistol—that Kyle was far from volatile or provocative, but was instead non-confrontational, and simply seeking to help people.  And this was true even when it was Grosskreutz himself acting in a provocative manner towards Kyle:

So Much for the “They Were Saving Kenosha From an Active Shooter” Narrative

As for the notion pushed by ADA Binger that the men attacking 17-year-old Kyle did so in the belief that he was a purported “active shooter,” Grosskreutz put a stake in the heart of that nonsensical narrative when he conceded that even he—the only identified of the attackers on Kyle who could have been so motivated—lacked any reasonable basis on which to come to such a conclusion.

As I noted in my most recent post examining the issues of provocation in this case, a belief that Kyle was an “active shooter” in the absence of evidence consistent with such a perception can only be an irrational, speculative, and imaginative belief .  And an irrational, speculative, and imaginative belief of an attacker cannot in any way diminish a defender’s privilege of self-defense. 

To allow this to be would be to make every claim of self-defense contingent on the irrational, speculative, and imaginative beliefs of the attacker—and that’s not how self-defense law in particular, nor the law in general, works.

In the context of an “active shooter” perception, for that perception to be reasonable, and not merely speculative, at a minimum there must be evidence of the core characteristic of an “active shooter,” as an aggressor who has shot, or is attempting to shoot,  multiple people.  And Gaige Grosskreutz, naturally, had zero evidence that Kyle had engaged in any such activity.

Surprise! Grosskreutz Himself was UNLAWFULLY Armed with a Firearm

One particularly ironic aspect of Grosskreutz’ cross-examination was when it was revealed that while Kyle is looking at a life sentence in prison, plus 5 years, if he’s convicted on his own unlawful gun possession charge, it turns out that Grosskreutz himself was unlawfully in possession of the Glock pistol with which he attempted to kill Kyle.

While Kyle was carrying his AR rifle openly, and open carry requires no license from the state of Wisconsin, Grosskreutz was carrying his pistol concealed—and concealed carry does require a license from the state of Wisconsin.

And Grosskreutz did not have a valid concealed carry permit.  True, he had an invalid permit—but there’s a reason the law distinguishes between valid and invalid permits.  The former has legal effect, and the latter does not.

Liar, Liar, Pants on Fire!

For much of the rest of his testimony under cross-examination, Grosskreutz simply presented as a bald-faced liar.

For example, despite the voluminous video evidence of Grosskreutz chasing down a fleeing Kyle Rittenhouse, video that was repeatedly shown to the jury during cross-examination, Grosskreutz repeatedly lied and said he was not chasing Kyle. 

I mean, who are we supposed to believe, the felon who tried to gun down a fallen 17-year-old in the street, or our own lying eyes?

Here’s the first instance of the “I wasn’t chasing nobody, Officer!” lie:

And again:

And again:

Grosskreutz’ blatant lying, at least by omission in this instance, also came up when Corafisi repeatedly exposed his failure to disclose to anyone at the time—or even in his currently pending lawsuits in state and Federal court—that he was armed when he was shot by Kyle. 

Instead he either completely forgets to mention that he was pointing a gun at Kyle when he was shot in the bicep, or he completely fabricates a fairytale about his gun having fallen out of his holster while he was “not chasing” Kyle down Sheridan Street.

As here:

And here:

A Revolutionary? Who, Me? I Just Speak At Their Rallies!

Grosskreutz was also rather awkwardly caught lying about his relationship with his favorite “Revolution!” political group, claiming he didn’t have any association with them—except for having spoken at their rally, having shouted “Long live the revolution!” with a fist salute, and having members actually occupying several of the hard-to-get seats in the courtroom during his testimony.

So much for his claims of being a neutral medic at the demonstrations only to help anybody who might need medical care.

Grosskreutz Tweets About His Testimony—Last Friday

Another sign of Grosskreutz’ remarkable lack of prudence was exposed when Chirafisi pulled up a tweet by the witness made in anticipation of his upcoming testimony, in which he’d festooned the tweet with a “winky emoji face.”

A tweet he sent just this past Friday, knowing that he would be testifying on Monday.  Good show to the defense for catching it.

The State’s Suddenly Discovered “Unicorn” Evidence

As entertaining as the Grosskreutz cross-examination was to watch, another highlight of the day was ADA Binger’s “triumphant” presentation of his suddenly discovered “Unicorn” evidence that I suppose is intended to put the final nail in the coffin of Kyle’s self-defense narrative.

This “unicorn” evidence comes in the form of drone footage—not the FBI aerial footage we’ve already seen, but footage from a consumer-level drone, like a DJI Mavic 2 Pro.  This amazing video footage purportedly appeared on the prosecutor’s doorstep just this past Friday morning, left I suppose by the evidence fairy.

Footage from the drone was shown in Binger’s direct examination of Detective Antaramian, who has been sitting at the prosecution table for much of this trial, and who was a purportedly “independent” lead investigator in this case.  Another lead detective on this case who had less than two years in that position when assigned.

Although Binger introduced the footage in his direct of Antaramian, he didn’t ask anything substantive about it until he had the detective on re-direct.  At that point, he asked the detective to share with the court his perception of what the video showed.

A more hesitant and ambiguous testimony is hard to imagine.  The detective cautioned that he’d only looked at the video “a little,” over the weekend, and he’d only had his relatively “low resolution” smart phone to view the video on.

If he simply had to share an opinion on what the video showed, however, he believed it showed Kyle Rittenhouse raising his rifle “in the direction” of the Ziminski’s when Kyle came past the group of cars in which Rosenbaum was hiding.  Further, at the moment that Kyle shot the charging Rosenbaum, Rosenbaum was no closer than three feet, and certainly not sufficiently close to touch Kyle’s rifle.

On re-cross-examination, Chirafisi expressed some incredulity that the detective could make out such detail in the drone video, from what he himself had seen of it.  The detective explained on that on his phone he had the ability to zoom in, and that’s what yielded the necessary detail.

Well, folks, I also have the ability to zoom in, and I do it not on a smart phone but on a giant 4k iMac computer monitor.  And when I zoom in to the scene that captures Kyle going past the Ziminiski’s I see nothing whatever that looks like anyone pointing a rifle in the direction of anyone else.  What I see is a bunch of pixel soup.

Further, on re-cross Chirafisi had the detective concede that there was evidence of powder stippling on Rosenbaum’s body at autopsy—such stippling is essentially gun powder flakes embedded in the skin, and occurs when the person exposed to the shot is quite close to the muzzle. 

Of course, Rosenbaum was not standing still, out of arms’ reach, he was charging at Kyle at full speed. If he happened to not quite be in arms reach at the moment, he certainly would have been in the next tenth of a second.

Further, given that the prosecution had supposedly never possessed this evidence until this past Friday, it could not have been part of their theory of the case, or the basis for any criminal charges. Lucky, lucky? Or Fakey, fakey?

Here’s a mash up of Binger first showing the drone video on direct, and then asking for Detective Antaramian’s interpretation of the video on re-direct:

Again, to me, I don’t see anything of what ADA Binger claims the video to show, and when the video is examined substantively, I don’t expect the jury to see anything contrary to self-defense, either.

And all from “unicorn” evidence left one business-day ago on the prosecutor’s doorstep. Amazing.

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

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

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

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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.