Posted on November 11, 2021 by Andrew Branca in Uncategorized
Rittenhouse Trial Coverage by Andrew Branca: Trial Day 8
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 8: The Prosecution’s Last Desperate Lunge for Evidence of Guilt
Final day of evidence introduces “enhanced” images purporting Kyle’s provocation
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 eighth day of the trial, and the final day of testimony, 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 today, the final day of testimony in the trial, was the first time the prosecution had offered any evidence in this case that was inconsistent with Kyle’s core legal defense of self-defense, in a case where that legal defense of self-defense must be disproven by the State beyond a reasonable doubt.
Worse, that evidence came in the form of two fuzzy “enhanced” photo exhibits, admitted in the closing minutes of the trial, under circumstances in which even the State expert responsible for creating the images cannot tell the court that the “enhancement” process hasn’t loaded them with false artifacts not present in the original images.
Indeed, that expert who created the “enhanced” images testified before the jury today that he had personally never bothered to compare the original and “enhanced” versions side-by-side to ensure that the “enhanced” version was a fair and accurate representation of the original.
The State’s claim is that the offered images demonstrably and incontrovertibly show that Kyle Rittenhouse pointed his rifle threateningly at Joshua Ziminski in the moments before Kyle was murderously pursued by Joseph Rosenbaum.
I know you’re all wondering, so here’s my copy of these purportedly pivotal images that the State claims proves Kyle Rittenhouse guilty of five felonies and a misdemeanor gun charge beyond a reasonable doubt:
It’s worth keeping in mind that other than these images, there is literally zero evidence in this trial that is inconsistent with Kyle’s claim of self-defense. So to believe that legal defense disproven beyond a reasonable doubt, these images are all one has on which to base such a belief.
Perhaps you see that disproof of self-defense beyond a reasonable doubt in those images—I certainly do not.
To believe the State’s representation of these images, you would also have to believe that right-handed Kyle suddenly decided to hold that rifle in a left-handed manner, with the buttstock in his left shoulder, and the muzzle raised upward.
Instead, it’s far more likely that the right-handed Kyle was holding the rifle in a right-handed manner, with the buttstock in his right shoulder, and the muzzle pointed down.
Much as he is in this photo from happier times:
It’s also worth noting that these images were pulled from the video footage captured from a drone that the State did not possess until this past Friday, and these enhanced versions of the images were not available until today.
That means that for fifteen months the State investigated and prosecuted Kyle Rittenhouse for these many felonies and the gun charge without this purportedly decisive evidence in its possession.
And without this purportedly decisive evidence provided by the evidence fairy at the 11th hour, what was the justification for this prosecution? It certainly wasn’t the enhanced drone photos that the State did not possess until today.
The admission of these images into evidence in the first place was a sketchy proposition from the start, with the defense reasonably objecting for grounds we’ll cover in detail in a moment. Indeed, when ADA Jim Kraus, leading the lumbering charge on their admission, sees that he might lose that argument, you can fairly smell the flop-sweat over the internet.
If you’ve never seen a grown man beg another grown man for a desperately desired favor, you’ll see it in the video I’ll share of ADA Kraus begging Judge Schroeder to allow these images before the jury.
There were other witnesses today—most notably defense use-of-force expert Dr. John Black—but to my mind the energy of the day was centered around this pair of fuzzy images that I’m sure the state will use as the foundation for their otherwise house-of-cards narrative of guilt in their closing arguments on Monday, so I’ll start off today’s content by focusing here.
Fair and Accurate Representation
Before we dive into the brouhaha around these images and their admission, however, it’s worth taking a moment to discuss what’s generally required for photos to be admissible as evidence in court in the first place.
Evidence in court generally comes in the form of witnesses possessing direct personal knowledge of whatever it is they intend to testify about. Mary saw the dark-haired man rob the liquor store, she can testify about what she saw, her personal perceptions of that event.
Photos and videos, of course, cannot take the witness stand and testify for themselves. They get admitted when a human being is first brought in to provide an evidentiary foundation for their admission.
So, if a photo taken of a crime scene is going to be offered into evidence, the person who took the photo might be brought in to testify, in person, that the photo being offered into evidence is a fair and accurate representation of the scene it depicts. Without that evidentiary foundation, the photo is likely not admissible as evidence.
In this case we have this “unicorn” drone video that the evidence fairy dropped off on the prosecution’s doorstep this last Friday. The prosecution would like you to believe that this drone video shows Kyle Rittenhouse pointing his rifle at Joshua Ziminski, and thus provoking the attack of Joseph Rosenbaum.
As I’ve written elsewhere, a purported provocative act of this kind by Kyle opens an avenue of attack on Kyle’s claim of self-defense—and it’s an avenue the prosecution is absolutely desperate to have available, because through the entirety of this trial to date there has literally been zero substantive evidence presented that is inconsistent with that claim of self-defense—in a case where the State not only must disprove self-defense, but do so beyond a reasonable doubt.
The difficulty for the State with respect to the “unicorn” drone video footage left on their doorstep by the evidence fairy is that it really shows nothing discernible at all in its original form—even when zoomed to max on the giant 4K monitor of my iMac—and certainly nothing that looks demonstrably like Kyle Rittenhouse pointing his rifle at anybody.
Indeed, when it was presented to Kyle on the witness stand, he flatly denied it showed anything of the sort, testifying that to him it merely appeared to show his shoulder rising slightly, but the muzzle of his rifle still pointed towards the ground.
In response, the prosecution went back to their “imaging expert” James Armstrong, who had provided the evidentiary foundation for the initial admission of the drone video footage in the first place. The prosecution asked James to clarify and magnify the tiny area of the video footage that purportedly showed Kyle pointing the rifle.
And here’s where the difficult arises—in the magnification. Digital images consist of a number of pixels of different color, which collectively form a mosaic image we recognize as a photo or video. In our modern IT world, for example, many common images for internet use are 1920 pixels wide and 1080 pixels high.
Imagine now that you want to take a small portion of that 1920×1080 image, perhaps a segment that’s only 192 x 108 pixels in dimension, and magnify it substantially, so that the small selected portion ends up itself being 1920×1080.
Well, you’ve started with 1/10th of the pixels of the original, and want to get back to 10/10th that number of pixels. What to do?
What in fact happens is that whatever imaging software is used to do this “zoom” will spread out the 192 x108 pixels until they occupy the area of 1920 x 1080, and then fill in the empty space between the original pixels with brand new pixels.
But pixels have color, and these brand new pixels don’t inherently come with any color—they are new-born pixels. What to do?
Well, most imaging software will “guess” at what color the new pixel should be by looking at the actual color of one of the adjacent original pixels. Is the “neighboring” original pixel blue? Well, the software makes the new pixel blue.
Clearly, this is new information being added to the enlarged version of the image that was not contained in the original image—a brand new pixel colored blue.
Other imaging software doesn’t just assume the color of the nearest adjacent original pixel, but may look at multiple nearby pixels. This creates its own problems for the task of ensuring that the enlarged image faithfully reflects the original image.
For example, imagine an original image that consists of an alternative pattern of red and blue squares. You enlarge it ten-fold, dump in a bunch of new-born pixels, and now those pixels need to be assigned some color. The imaging software might assign some of them the color red, and others the color blue—and still others the color purple, a combination of red and blue, but a color that never actually existed in the original.
That purple is now a false artifact in the enlargement that is not a fair and accurate representation of the original image.
In normal life, of course, we don’t enlarge our own photos by 10-fold, or at least we don’t do it more than once. Such a sizeable increase tends to result in a blobby image with indistinct borders and colors, and more resembling a complex visual stew than an accurate depiction of whatever the original image might have been.
That is, however, essentially what the prosecution has done in this case. They have taken a small portion of a distant image taken by the drone camera—the portion that purportedly shows Kyle Rittenhouse pointing his rifle at Joshua Ziminski—and then enlarged that image enormously until, I suppose, it appeared to show what the prosecution wanted it to show.
The difficulty here is that what is now being shown in this substantially enlarged image may consist largely of artifacts introduced by the imaging software algorithm when it added pixels and then applied some black-box method to assigning colors to those pixels.
This is the defense objection to the State’s offer of these “enhanced” images from the drone video, without which images the State has essentially nothing to offer to counter Kyle’s claim of self-defense, and therefore this objection and the prosecution’s struggle to overcome it became the pivotal battle of the day, around State imaging expert James Armstrong.
There were, of course, other witnesses, including the defense use-of-force expert Dr. John Black, Police Officer Brittany Bray, and Drew Hernandez, but with the exception of Dr. Black’s contribution to the arguments over the State’s “enhanced” photos, none of that mattered all that much.
So, let’s dive into the “unicorn” enhanced images left by the evidence fairy debate.
Argument? What Argument?
One of the humorous aspects of the offer of these “enhanced” images was both parties pretending that there wasn’t going to be a fight over them, even though everyone knew there certainly was going to be a fight over them.
Prior to the last court break that preceded the State offering these images the State assured the court that they didn’t expect any big argument over them, and the defense just shrugged, keeping its cards close to its chest.
Well, not really. Just prior to State expert James Armstrong being recalled to the stand to offer these “enhanced” images of his, the defense expert, Dr. John Black found himself back on the witness stand in the afternoon after having his morning testimony interrupted due to an unexpected series of circumstances.
At this point the defense clearly knew the Armstrong “enhanced” images testimony was coming shortly, so they had Dr. Black explain the whole “added pixels of algorithm-selected color” issue in his own testimony.
Therefore when it came time for the State to offer Armstrong’s testimony in support of the admission of his “enhanced” images, the defense had laid the groundwork with Judge Schroeder to first voir dire Armstrong outside of the presence of the jury and before he would testify in front of the jury.
And that’s where we get into the meat of things with respect to these “enhanced images.”
Defense Voir Dire of James Armstrong, State Image Expert
Because it was the defense challenging the State’s offer of evidence, it was the defense, in the person of Attorney Corey Chirafisi, who led the direct on the voir dire of Armstrong.
During that voir dire he essentially covered the explanation of image enlargement adding newly born pixels of a color determined by black-box algorithm in much the same manner as I’ve described above.
The point, of course, is that to the extent that this “enhancement” process may insert newly created artifacts in creating the enlarged version of the original, the enlarged version may no longer be a fair and accurate representation of the original.
And if that’s the case, it’s not admissible as evidence in its own right. The party offering the “enhanced” version would have to settle for simply showing the jury the original. Of course, if the original had been adequate to their purpose, they would not have bothered to make the “enhanced” version in the first place, so they are as a result left with an original which does not serve their purpose.
The bottom line for this defense voir dire of Armstrong was that he conceded that the enlargement of the image required the placement of new pixels, that those pixels were necessarily assigned a color, that it was the software algorithm that selected the particular color, and that he personally had no idea how the algorithm made that choice.
Here’s the video of that defense portion of this voir dire:
State Voir Dire of James Armstrong, State Image Expert
The State’s voir dire of Armstrong, led by ADA Jim Kraus, didn’t directly counter the defense position—how could it, when the defense position had just been affirmed by Armstrong himself?
Instead, the prosecution engaged in the kind of frantic hand-waving we’ve come to expect from them.
Isn’t this software you used a “gold-standard” for forensic image analysis. Armstrong confirmed it was—but that doesn’t change his own admission that the software inserts pixels that are colored by a process he can’t explain.
Wasn’t your work peer-reviewed by another qualified forensic image analyst? It was—but again, that doesn’t change the added pixels with computer assigned colors problem.
Isn’t your forensic imaging lab accredited? It sure is—but again, that has nothing to do with the algorithm concern the defense had raised.
Really, all the prosecution could do is engage in appeals to authority—but not in a manner that addressed the core concern raised by the defense.
In short, while Kraus got Armstrong to affirm repeatedly that, really, this is how he and many others used this software all the time, at no point could Armstrong be knocked from the unavoidable concession that the algorithm added new pixels not in the original, and assigned those pixels colors in a way he himself did not understand.
And, indeed, the state voir dire of Armstrong was mercifully short, because it was unavoidably superficial.
Here’s the video of that brief State’s voir dire of Armstrong, after which the imaging expert was dismissed from the witness stand so the parties could argue their positions to Judge Schroeder:
Judge Schroeder Takes a Look for Himself
Then we had the parties argue the matter to Judge Schroeder. The defense offered a motion to have these sketchy-as-heck “enhanced” images be deemed inadmissible as evidence. In response to the reasoned arguments of the defense, ADA Kraus responded primarily with large quantities of desperation and flop sweat.
At this point Judge Schroeder asked to take a look at the images himself. When he looked these over at the bench, he clearly couldn’t make much out of them, so he then asked to be shown the drone video footage from where the images had been captured., which he watched standing before a giant 4K television from a few inches distance.
Here followed a humorous sequence of events in which the judge watched the relevant portion of the drone video, apparently saw nothing obviously useful, and said, “Again.” And then “Again.” And “Again.” And “once more.”
I suggest to all of you that if these “enhanced” images and the video from which they were taken were as obviously decisive as the State would like to believe—and would like the jury to believe—it doesn’t take multiple viewings to come to that conclusion.
In the end, the judge still seemed unconvinced that he’d seen what the State claimed the images and video to show, and walked back to his bench shaking his head.
Here are those arguments before Judge Schroeder, and his own inspection of the purported evidence:
Ultimately, Judge Schroeder decided that he would let the State argue its offering of the “enhanced” image to the jury by the direct testimony of Armstrong in front of that jury—in turn, the defense would have the opportunity to cross-examine Armstrong in front of the jury, exposing his uncertainty as to how newly-added pixels were assigned colors in the “enhanced” images.
From there, the judge figured, the jury could make its own determination about how much weight to assign to these “enhanced” images.
Direct Questioning of James Armstrong, State Image Expert
Now it was the State who took the lead, beginning the questioning of their expert to elicit the testimony needed to provide the foundation required for the “enhanced” images to be offered into evidence. This was now being done in front of the jury which had been brought back into the courtroom. Again, this was largely duplicative of the arguments already made, so I’ll simply share the video of ADA Kraus’ direct of Armstrong with you:
Cross-Examination of James Armstrong, State Image Expert
Defense Attorney Corey Chirafisi conducted the cross-examination of Armstrong, repeating the same lines of argument made during voir dire:
Re-direct of James Armstrong
Obviously fearful that Judge Schroeder might yet decide the “enhanced” photo images might fail to qualify for admission as evidence, ADA Kraus returned on re-direct with more argument—and repeated a common error of this prosecution throughout the trial of asking a witness a question to which he didn’t know the answer, and to which he got an answer he wouldn’t like.
At about 1:35 into this re-direct, Kraus asked Armstrong, “So you do compare [the “enhanced’ image] to the original?” Shockingly, Armstrong responded “I did not compare [the “enhanced” image] to the original in this instance, no.”
See for yourself:
I believe at that point I live-commented something to the effect of: “WTF”?
Re-cross of James Armstrong
Chirafisi naturally jumped on this surprising concession on re-cross of Armstrong. Effectively he asked, wait a minute, you are offering this “enhanced” version of the images as being fair and accurate representations of the originals—but you don’t actually bother to compare them side-by-side with the originals? Nope:
Re-re-direct of James Armstrong
In a final reflection of how desperate the State is to get these “enhanced” images into evidence and before the jury, ADA Kraus actually came back for a re-re-direct of Armstrong, in an ultimately successful effort to rehabilitate the witness enough to keep the door open for the admission of the “enhanced images.”
“Enhanced” Images Published to the Jury
Ultimately, the judge allowed these “enhanced” images to be “published” to the jury, meaning the jury actually got to see them for the first time.
Importantly, Armstrong was never permitted to characterize what the images purported show—he was never permitted to recite the State’s characterization that the images showed Kyle Rittenhouse pointing his rifle at Joshua Ziminski.
That characterization will be left to the State to pursue during its closing argument to the jury on Monday.
In any case, this “enhanced” image testimony would ultimately prove to be the last evidence to be offered in this trial, after which both sides rested, concluding the evidentiary portion of the Kyle Rittenhouse trial.
Jury Instructions and Closing Arguments
Immediately following, the parties and the judge had a discussion, outside the hearing of the jury, about the schedule moving forward.
Tomorrow morning the court will return to session to finalize the jury instructions to be given to the jury prior to their deliberations. Most of these will simply be the standardized jury instructions for each of the criminal charges, including all the lesser-included offenses for the intentional homicide and attempted intentional homicide charges.
With respect to the troublesome gun possession charge, Count 6 in the criminal complaint, the judge has asked the parties to each submit their own proposed jury instructions, and I expect that argument over that issue will consume the bulk of the court’s time tomorrow.
That said, the court is not returning to session in the morning until 10am Central time, and I would not expect the proceedings to take more than two or three hours, including the reasonably anticipated tiresome tirades over the gun possession instructions likely to be indulged in by ADA Thomas “Blah-blah-blah” Binger.
Other Witnesses of the Day
Dr. John Black, Defense Use-of-Force Expert
There were also other witnesses today, the most notable being Dr. John Black. Frankly, his only real contribution was to make clear that contrary to the State’s suggestions, Kyle had been compelled to make his use of force decisions in time periods measured in seconds. The State had been using various rhetorical ruses to suggest that Kyle had the luxury of all the time in the world before casually deciding to shoot, maim, and recklessly endanger a bunch of people.
In pre-trial hearings Judge Schroeder had ruled that Black would be permitted to testify to technical matters, like timing of events and gunshots, but not to the apparent intent or perceptions of the actors involved in the night’s events, nor would he permitted to pronounce legal conclusions (e.g., “Kyle’s conduct clearly qualifies as lawful self-defense”).
And that is essentially what Dr. Black was limited to in his actual testimony—so, really, it was useful for the defense, but far from dramatic.
Also, as already mentioned, Dr. Black proved helpful in preparing the foundation for the defense attack on the testimony of James Armstrong, and ensuring that the defense was equipped to expose the fragility of the State’s “enhanced” images to the jury.
Here is Dr. Black’s direct testimony, in two parts
Here is Dr. Black’s cross-examination, also in two parts:
And here is Dr. Black’s re-direct, in which he set up the defense for their questioning of James Armstrong:
Police Officer Brittany Bray
We also heard from Kenosha Police Officer Brittany Bray. She had done evidence collection at Sheridan Road where Kyle had shot at “jump kick man” and missed, shot at Anthony Huber and hit with fatal results, and shot at Gaige Grosskreutz vaporizing his bicep.
The State had suggested that at one point Kyle had been required to cycle his AR-15 pattern rifle due to a malfunction, which would show, I suppose, a certain deliberation in his shooting of Grosskreutz. Frankly, I really don’t see what it matters, but in any case the defense didn’t like it.
The defense position is that if Kyle had cycled his weapon a live .223 round would have been ejected onto the road, and Officer Bray had found no live .223 round. This is, of course, a mistaken understanding of such things. A failure to feed a round could require cycling of the action, but with the chamber empty there would have been no live round to eject.
The State would point this out in its own cross-examination of Bray by ADA Binger, after which the defense would on re-direct have Bray assist them in measuring the 4” required to cycle the charging handle on the AR—meaning, the movement would have been obvious on video had it occurred—and that was it for Bray. This was followed by an inconsequential re-cross by Binger.
Here’s the direct questioning of Bray by Attorney Richards:
The cross-examination of Bray by ADA Binger:
The re-direct of Bray by Richards:
The re-cross of Bray by Binger.
Drew Hernandez, Professional Commentator
The only other witness of the day was one Drew Hernandez, another one of those folks who wanders around riot scenes filming for social media.
The most notable facet of Hernandez’ testimony was his clear contempt for ADA Binger, and his apparent implicit—perhaps explicit—support for Kyle Rittenhouse, despite his protestations of not being biased.
Hernandez certainly struck me as biased in favor of the defense and against the State, and it would have probably served his purpose to have toned down the hate towards the State a bit.
He did say many positive things about Kyle, including describing how Kyle was helping people and de-escalating conflict, and he also said many negative things about Joseph Rosenbaum, including seeing him be provocative, combative, and setting fires.
His obvious bias in favor of the defense, however, meant that whatever he said wasn’t likely to change anybody’s mind. If you favored Kyle, you nodded your head at the apparent truth of Hernandez’ testimony. If you favored the State, you discounted the Hernandez testimony entirely on the basis of his obvious bias.
In any case, here’s the direct questioning of Hernandez by Richards:
The mutually hostile cross-examination of Hernandez by Binger:
And a brief re-direct of Hernandez by Richards:
And that’s where things stand at the close of court business today.
Join us again tomorrow morning for our LIVE coverage of the trial of Kyle Rittenhouse, at Legal Insurrection. Keep in mind it may be a much shortened day, as it doesn’t begin until 10am Central time, and even then involves no testimony but only argument over jury instructions. If the day went much longer than four hours, I’d be much surprised.
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.
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.