Skip to main content

Posted on November 5, 2021 by in Uncategorized

Rittenhouse Trial Coverage by Andrew Branca: Trial Day 3

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 3: Prosecution’s Own Witnesses Confound Prosecution

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.

This third day of the trial was perhaps the worst yet for ADA Timothy Binger’s efforts 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 that’s really saying something, because its’ nice like the prosecution out-performed in the first two days of the trial. Indeed, coming into today, the state had yet to present any evidence that was substantively inconsistent with Kyle’s legal defense of self-defense—none.

Today, however, was even worse.  Two of the state’s own witnesses, and arguably their star witnesses with the greatest immediate personal knowledge of the events surrounding the shootings—journalist Richard McGinnis who was filming and interviewing Kyle that night, and former Army Infantryman Ryan Balch, who was also armed along with Kyle that night—provided lengthy testimony that not only failed to assist the state’s efforts to attack Kyle’s claim of self-defense, their testimony substantively strengthened that claim of self-defense.

Juror #7 Dismissed for Offensive Jacob Blake Joke

We’ll dive into their testimony in just a moment.  Before we do, however, I ought to mention that Juror #7 was dismissed from the jury panel for cause, apparently for being idiotic enough to attempt to tell a Jacob Blake joke to a bailiff.  When questioned by Judge Schroeder about this this morning the juror refused to repeat his joke, but apparently it went along the lines of: “Why did the police shoot Jacob Blake seven times? Because they ran out of bullets.”  So, away with Juror #7.

How State Witnesses Testify In a Trial of Legal Merit

Before I dive into the individual testimony of state witnesses Richard McGinnis, a videographer for the Daily Caller news organization, and Ryan Balch, a manufacturing worker and former Army Infantryman, it’s worth reminding ourselves what their testimony ought to have looked like, had this been a normal criminal prosecution based on actual legal merit.

As two state witnesses, not defense witnesses, both McGinnis and Balch would be expected to provide testimony that contributed to the prosecution’s narrative of guilt and undermined the defendant’s legal defenses.  In this case that largely boils down to attacking and destroying Kyle’s legal defense of self-defense, at least with respect to all the felony use-of-force and reckless endangerment charges in this case.

Kyle Rittenhouse is presumed innocent, and that means that his shooting of the three men, and the reasonableness of his conduct otherwise the night of August 25, 2020, is presumed to be justified as lawful self-defense, unless the state can disprove self-defense beyond a reasonable doubt. 

Now, the prosecution doesn’t have to disprove Kyle’s claim of self-defense in its entirety.  The prosecution merely needs to disprove any one of the four elements that make up that claim of self-defense. These four elements are cumulative—meaning, every one of the four is required—so if even a single one is disproven beyond a reasonable doubt, Kyle’s legal justification of self-defense collapses entirely.

To those who are new to self-defense law, or would just like a quick refresh on the concepts of the elements of self-defense, here are those four elements, and how the state would typically be expected to disprove them.

Innocence:  The state might attempt to prove that it was Kyle who was the initial unlawful aggressor in any of the confrontations he was in that night.

Imminence: The state might attempt to prove that the attacks Kyle was defending himself against were neither actually in progress or immediately about to occur.

Proportionality: The state might attempt to prove that the attacks on Kyle did not present as apparently deadly force in nature—readily capable of causing death or serious bodily injury—and therefore that his own use of deadly defensive force was excessive.

Reasonableness:  The state might attempt to prove either that Kyle lacked a genuine belief in the need to act in self-defense, or that this belief was irrational and not objectively reasonable under the circumstances.

And, of course, which ever element (or elements) the state sought to target in its attack on Kyle’s claim of self-defense, it would need to disprove beyond any reasonable doubt.

This is necessarily the mission of Assistant DA Binger in this prosecution of Kyle Rittenhouse, and how that mission would be accomplished.  And, it needs to be accomplished during the State’s presentation of evidence—obviously, after the state has rested and the defense gets its turn, it’s not as if the attack by the defense is going to make the state’s narrative stronger.

So, as I listen to the State present its witnesses, and subject them to direct examination or questioning, what I’m looking for is the building out of that narrative of guilt, that destruction of self-defense, the substantive attack on one or more of those elements.

What is this testimony, this line of argument, attacking exactly?  Innocence, Imminence, Proportionality, or Reasonableness? That’s really all that matters.  Any testimony or argument that doesn’t have one of those elements as its target, that does not substantively undermine and disprove one of those elements beyond a reasonable doubt, is nothing but wasted effort and time.

What I saw over the first two days of this trial was a bunch of testimony that contributed nothing substantively to degrading any of those four elements, and thus nothing to disprove Kyle Rittenhouse’s claim of self-defense.  There was simply no substantive evidence that undermined any of those four elements of Kyle’s self-defense claim.

What I saw from the State’s witnesses today, however, was far worse.  Not only did their testimony—the testimony which is supposed to be the building blocks for the destruction of the claim of self-defense—not undermine Kyle’s self-defense, much of today’s testimony actually strengthened Kyle’s claim of self-defense.

And perhaps even worse, ADA Binger’s attempts to badger the witnesses testimony into something that might in one’s wildest imaginings resemble a tool to bludgeon self-defense resulted only in him appearing intellectually desperate, and in his witnesses becoming visibly resistant to his badgering. 

In the case of Balch, in particular, ADA Binger was even brought to the extremity of suggesting to the jury that Balch—Binger’s own witness, whom Binger himself had called to the stand to testify—was nothing more than a petty liar.

So, let’s dive in.

State Witness Richard McGinnis Resists Hostile Badgering of ADA Binger

Richard McGinnis is a videographer who works in support of journalists for the Daily Caller news organization, essentially securing the video and photo content that the journalists use to guide, buttress, and flesh out the news stories they write about notable events.  This is his profession, and he has frequently over the years engaged in his craft in the midst of violent protests, including in Seattle, Portland, New York, Washington DC, and elsewhere.

That was precisely what McGinnis was doing in Kenosha on the night of August 25, 2020, having flown into town for that purpose the previous day.  He would spend the nights of August 24 and 25 wandering around the streets of Kenosha pursuing his craft, and on the night of the 25th one of his primary subjects was no other than Kyle Rittenhouse. 

As it happens, also captured by McGinnis was Ryan Balch, the second “star” state witness of the day, who worked alongside Kyle to present as an armed presence on the streets of Kenosha for the purpose of protecting property and persons. I’ll address Balch’s testimony separately.

Much of McGinnis’ testimony centered around video he had made while following Kyle and Balch around Kenosha the night of the 25th, including capturing interview-like conversations with them.  Also important was McGinnis’ presence in close proximity to Kyle when Joseph Rosenbaum launched his ill-fated attack on the 17-year-old.  This event was not video recorded by McGinnis, but was nevertheless observed personally by McGinnis.

Because of the importance of the McGinnis video of Kyle and Balch, it was played repeatedly and at length by ADA Binger—but to what purpose, I could not imagine, because it did nothing to further the State’s core mission of disproving any one of the elements of self-defense beyond a reasonable doubt.  If anything it served to present Kyle as polite, caring, and non-confrontational.

Repeatedly we see Kyle walking down the street, alongside Balch, with neither man presenting  in a threatening manner in the slightest. To the contrary, they are each continually calling out to see if others—whether their own colleagues or protestors alike—are in need of medical attention (Kyle’s primary purpose for being present in Kenosha that night).

At one point a protestor screams at Rittenhouse, “F-YOU!”  Kyle’s response? “I love you, too, ma’am.”  When Balch recounted this event from the witness stand, someone in the courtroom actually laughed out loud.

At one point in the McGinnis video we see Kyle and Balch encounter a group of “punk rockers” with fire extinguishers, who are acting as a fire brigade, and one of them reports having been “shot.” Kyle immediately attempts to offer medical care, only to discover the person had been shot with a rubber bullet with no great affect.  Kyle, Balch, and the “punk rockers” end up laughing and joking about the whole affair, with everyone being very friendly.

A few moments later Kyle, with McGinnis recording beside him, comes across a group of four young black men, and this encounter is quite different.  The group immediately displayed hostility towards Kyle and McGinnis.  Kyle, seeing this, does not engage or threaten in any way, instead he simply turns and walks away, calling out once again for anyone who might need medical care.

That this group of four young men was genuinely threatening became incontestable when McGinnis described his own efforts to chat with them.  He testified that one of the men immediately stepped forward with a rock in a raised hand in a manner McGinnis could only interpret as an intent to bash the rock into his skull.  McGinnis immediately jumped backwards to secure his safety, and then offered the men an alcoholic beverage he carried in his backpack specifically as tribute to be offered to diffuse such hostile encounters.

ADA Binger noted that McGinnis had used the word “menacing” when he spoke in an interview after Kyle’s shootings, and repeatedly attempted to badger McGinnis into testifying that he meant this term to apply to Kyle himself, that McGinnis found Kyle to be personally menacing.

First, this is hardly credible, given that McGinnis chose to follow around the armed Kyle and Balch for quite some time the night of the 25th—he didn’t do the same, for example, with the actually menacing group of four young black men he’d encountered. 

Second, McGinnis consistently responded to Binger’s badgering suggestions by making clear that the word “menacing” was intended as a description of the circumstances generally, as in any potentially violent protest environment, not of Kyle personally.

In other words, Binger wanted McGinnis to testify that he was using menacing to refer to Kyle as “threatening”—instead, McGinnis made clear, he was using “menacing” to mean simply the “increased risk” of being in an environment where guns were being carried around by people, generally.

ADA Binger also attempted to get McGinnis to testify that there was something highly unusual and unreasonable about someone at a protest openly carrying firearms.

McGinnis answered, no, he’d often seen people with firearms at protests  But just handguns, not AR-15s, suggested Binger? Usually handguns, but sometimes rifles, McGinnis answered.  But surely not the combination of rifles and a medic kit, followed up Binger?  No, conceded McGinnis, he couldn’t say he’d seen that combination before. 

It was, frankly, all nonsense.  If McGinnis had seen such a combination before, presumably Binger would have continued to narrow the characteristics he was defining until he managed to exclude this specific defendant form McGinnis’ prior experience.  I suppose the next variation would have been, “But surely not the combination of rifle, medic kit, and the first name ‘Kyle’?”

At some point McGinnis and Kyle had become somewhat separated. Then McGinnis saw the now familiar Kyle run by with a fire extinguisher, and decided to follow to see what was going on. 

As it happens Kyle was running down Sheridan to put out a fire reportedly occurring in a Car Source parking lot down the street.  As Kyle approached the lot, he also happened to be gaining ground on Joseph Rosenbaum, who was ahead up the street. Rosenbaum was accompanied by Joshua Ziminsky and his wife, Mrs. Ziminsky, with whom he was apparently friends. 

Joshua Ziminsky was carrying a Glock pistol which he would shortly fire into the air, thus triggering subsequent events resulting in the death of Rosenbaum and Anthony Huber, and the maiming of Gaige Grosskreutz.

As Kyle reached the edge of the Car Source lot, Rosenbaum concealed himself among four cars, then emerged behind Kyle and initiated his charge of Kyle.  McGinnis was still running down Sheridan to catch up with Kyle, and so ended up behind Rosenbaum as events proceeded.  Also roughly behind Kyle and Rosenbaum was Joshua Ziminsky, who was on the sidewalk near the group of four cars that Rosenbaum had been hiding in.

As Rosenbaum chased the isolated Kyle across the lot, Joshua Ziminsky raised his pistol and fired a shot in the air.  The fleeing Kyle, hearing the shot behind him, turned to look in that direction, and saw Rosenbaum charging at him, screaming “F-YOU!” at the top of his lungs. 

Much of this was confirmed both by the observational testimony of McGinnis, as well as by various video recordings, including the FBI aerial infrared video recording, and so the events are effectively indisputable.   

McGinnis personally observed the charge of Rosenbaum on Kyle, and described the attack in some great detail.  Rosenbaum was in a hunched forward running position, as one would be running as fast as one could.  Kyle was desperately fleeing towards the far side of the Car Source lot—and was shouting “friendly, friendly, friendly!” while doing so.

These cries of friendly did not dissuade Rosenbaum’s continuing charge.  When Kyle turned slightly back towards Rosenbaum, even as Kyle continued to retreat, placing his rifle well within Rosenbaum’s view, the sight of the rifle did not dissuade Rosenbaum’s charge. Indeed, Rosenbaum would charge until he was close enough to lunge with outstretched arms for possession and control of Kyle’s rifle.  Kyle was still holding his rifle at a low ready, approximately at a 45 degree angle to the ground.

McGinnis actually stood from his witness chair to demonstrate these aggressive attacking motions by Rosenbaum—and he did so at the request of ADA Binger!

At the last moment, however, Kyle turned slightly away, so that Rosenbaum’s outstretched hands failed to grasp control of the weapon, and that’s when Kyle fired four rounds in 0.76 seconds.  As Rosenbaum made his final, diving lunge, Kyle had the rifle leveled at Rosenbaum, but this still meant at a downward angle, given Rosenbaum’s low position—so the rifle was not, for example, level with the street when fired.

Now, one of those four rounds, the one the medical examiner will purportedly claim was the fatal shot, ended up striking Rosenbaum in his back.  This was almost certainly a consequence of the manner in which Rosenbaum chose to attack the rifle-armed Kyle, using a low diving lunging motion.

ADA Binger, however, was determined to have McGinnis testify that Kyle had simply shot Rosenbaum in the back–as if in an act of cold malice he had shot Rosenbaum in the back as Rosenbaum was walking away from Kyle. Or that Kyle had intentionally shot Rosenbaum as he was helplessly falling to the ground, and no longer a threat of any sort.

ADA Binger helpfully suggested, When the defendant shot Rosenbaum, he was already falling?  No, not “falling,” answered McGinnis. It was just his charging speed and lunging motion was carrying him forward. 

Binger objected, but you gave a television interview in which you said that the defendant shot Rosenbaum as he was falling?  McGinnis answered, I don’t remember ever saying that. Is that a direct quote? 

Of course, Binger had the interview recording—and now he used it to effectively treat McGinnis, his own cooperating witness, as if the videographer were a hostile witness, implying that McGinnis was lying to the jury, under oath.

McGinnis explained that the shots happened very quickly, that Rosenbaum was lunging, for all he knew it was the first shots that caused the falling motion, rather than the falling motion preceding the shots.

McGinnis may not know this, but the first two rounds did, in fact, hit Rosenbaum’s thigh and pelvis, and likely did compel Rosenbaum’s fall.

Well, you’re saying that now, said Binger, but wouldn’t your memory be better a mere three days after the event, when you gave this interview, than it would be now.  This is how one treats a hostile witness whose current testimony in court one is seeking to impeach.

Binger tried again:  Your statement in this interview is different than what you’re telling us now, you said in the interview that Rosenbaum was falling when the defendant shot him. 

McGinnis answered, I would not say that the defendant shot Rosenbaum as he was falling, I would not use that word, “falling,” I’m not saying that.

Binger: but you said in the interview—

McGinnis: I’m not saying that now!

At this point Judge Schroeder had had enough, and interrupted Binger’s questioning of his own witness, telling Binger effectively that he was not to tell the witness what the witness was saying.

McGinnis, for his part, denied any inconsistency between his interview statement and his court statement.  Kyle shot Rosenbaum as Rosenbaum was lunging forward to grab control of Kyle’s rifle, was shot, and then ended up face down on the street.

At that moment the proceedings mercifully took a break for lunch, but that didn’t help poor ADA Binger any.

Binger kept up his direct examination of McGinnis, now focusing on the supposed reckless endangerment charge in which McGinnis is the purported victim.  In the criminal complaint there’s a sworn claim that some object—presumably a bullet fired by Kyle—had actually struck McGinnis in the leg.

McGinnis would have none of that in his testimony, however.  He clarified that he wasn’t even sure if the sensation was the result of the impact of an object, or just a sensation resulting from the sound of the gunshot, or what, but when he looked he hadn’t suffered any physical injury of any kind.

Those are the highlights of direct examination by Binger of his own witness. There is much more, of course, including a lengthy series of softly asked questions about McGinnis’ efforts to provide care to the fatally shot Rosenbaum, none of which has any relevance to Kyle’s self-defense claim.

Note that all the substantive testimony by McGinnis on direct was either not relevant to Kyle’s self-defense claim, not damaging to that claim, or actually helped Kyle’s claim of self-defense.  And that was before the defense got their hands on McGinnis in cross-examination.

Which is what happened next.

State Witness Richard McGinnis Cross by Attorney Mark Richards

All Richards really had to do was get McGinnis to repeat his substantive relevant testimony from direct, because it was all helpful to Kyle’s claim of self-defense. But Richards managed more than that.

In your police interview, Richards noted, you indicated it was not only Rosenbaum pursuing Kyle, but that there were other people whom Kyle was attempting to evade.  In other words, Kyle was threatened by multiple pursuers. 

Ultimately, this would turn out to more a matter of McGinnis perceiving the attention of others focused on Kyle, among people who had already been traveling down the street in a direction towards Kyle, rather than additional people charging at Kyle as Rosenbaum had.  Nevertheless, either the jury bought the suggestion of increased threat to Kyle or it was a wash—helpful, or neutral.

Richards also touched back on the “menacing” point, which was drawn from another interview McGinnis had done shortly after the events of that night.  When you say “menacing,” you mean the circumstances, right, not Kyle in particular?  McGinnis answered, I meant the situation, if anything the people on the roof, not so much the people on the ground (where Kyle was).

And in that interview where you mentioned “menacing,” that interview was 26 minutes long, and you said the word “menacing” once.  Yes, agreed McGinnis.

Richards also had McGinnis step through the final series of events that resulted in Kyle shooting Rosenbaum. Kyle was fleeing across the parking lot, seeking safety, but coming upon what appeared to McGinnis to be a dead end.  A shot came from behind Kyle, fired by Rosenbaum friend Ziminsky, and when Kyle looked back he saw Rosenbaum charging at him. Kyle shouted “friendly, friendly, friendly!” and Rosenbaum screamed “F-YOU!” Kyle had the gun at a safe, low-ready position when Rosenbaum dove for the gun, hands outstretched to seize control of the weapon, and that’s then Kyle finally fired four rounds.

There’s more good stuff in the cross, but those are the highlights.

Re-Direct of McGinnis by ADA Binger

Perhaps the highlight of the McGinnis testimony, however, occurred during Binger’s re-direct questioning of him.

Binger had been very unhappy when McGinnis was allowed to suggest during cross-examination that it had been the intent of Rosenbaum to seize Kyle’s rifle.  Binger objected at the time, but Judge Schroeder overruled the objection.

Now on re-direct, Binger rather heatedly challenged his own witness:  You can’t read Rosenbaum’s mind, right? You can’t know what he was actually thinking, right? Your interpretation of his intent is nothing but complete guesswork, isn’t that right?

McGinnis paused a moment, and replied:  “Well, he said “F-you, and then he reached for the weapon.”  So, maybe not entirely guesswork.

Again, there’s more, but those are the highlights.

State Witness Ryan Balch Shows Rosenbaum as Violent Lunatic

Ryan Balch first met Kyle Rittenhouse the night of August 25th, when both of them showed up to Kenosha and the Car Source lot to attempt to protect property and provide medical care to the injured.

Both men came armed with AR-style rifles, but that was about the only similarity.  Whereas Kyle was a 17-year-old lifeguard who had fired his rifle on one previous occasion, Balch was a former Army Infantryman who had done a tour in Afghanistan, a tour in Iraq, and had put 10 or 15 thousand rounds through the AR rifle he had owned for years (in part because he uses the rifle competitively).

Once again, Balch’s testimony—from, I remind you, a STATE witness—was extremely helpful for the defense, and extremely harmful to the prosecution.

For example, Balch would testify that although he’d come to Kenosha wearing a plate carrier (body armor), and carrying an AR-15 and a Glock pistol, it turned out he never actually had to use any of that stuff—the mere presence of armed persons like himself and Kyle proved sufficient to prevent the kind of catastrophic rioting, looting, and arson the city of Kenosha had suffered the previous night. 

In other words, Kyle showing up to Kenosha with a rifle was a social good, not the act of a maniacal gun nut intent on murdering people.

When Binger asked Balch for his impression of Kyle that night, Balch replied that Kyle seemed like a young and impressionable kid, interested in other people and a life guard, seeking to provide medical care to anyone who might be injured.  He also described Kyle as presenting as vulnerable, as someone who protestors might identify as a target and attack. 

In contrast, when Binger asked Balch for his impression of Joseph Rosenbaum that night, Balch replied that every time he encountered Rosenbaum he was being hyper-aggressive and acting out in a violent manner, always having to be restrained from violence by others. Indeed, Balch said he was approached by other protestors who wanted to ensure him that Rosenbaum was not one of them, not a member of their group. These other protestors wanted no misunderstanding that there might be an association with the hyper-aggressive Rosenbaum and themselves.

The ultimate high point, however, came—and again, I feel obliged to remind you, this is while the STATE is engaged in direct questioning of THEIR OWN WITNESS—when ADA Binger asked Balch to describe an encounter between Kyle and Balch, on the one hand, and Rosenbaum on the other, that took place shortly after Kyle had put out a dumpster fire started by Rosenbaum.

Balch testified that Rosenbaum came right up to the pair, “got right in my face,” yelling and screaming, and murderously pledged “if I catch any of you guys alone tonight, I’m going to f’ing kill you!”

Worth recalling, I think, that this murderous threat from a hyper-aggressive and patently violent Rosenbaum came only a short time before Kyle, running for his life, would hear a gunshot behind him and see a charging Rosenbaum screaming “F-YOU!” at the top of his lungs and lunging for control of Kyle’s rifle.

If that sounds to you like a pretty sound basis for a shooting of Rosenbaum in self-defense, I’d have to agree.

To this absolutely catastrophic testimony, ADA Binger could do little but flail. 

Did you actually see Rosenbaum actually injure anybody?

No, though I did see him set fires.  A dumpster, lots of other little fires, all up and down the street.

Then, remarkably—besides the fires you saw him set, did you see him set any other fires?

I mean, seriously, Binger?

Did you ever see Rosenbaum with a weapon? No. Gun? No. Knife? No. Bat? No. Club? No. (Binger has become quite fond of this particular laundry-list question.)

Of course, I would suggest that at the moment he was shot, Rosenbaum was actually in the process of arming himself with a gun—with Kyle’s gun—when Kyle’s bullets stopped him.

At this point Binger’s direct examination of Balch seemed to go off into some netherworld of irrelevant background information that appeared to have zero relevance to anything of substance in this case.

And it went on like this interminably.  At one point the defense finally objected, noting that many of the question currently being asked had already been asked forty minutes earlier.  Even Judge Schroeder was getting tweaked.  Where is all this going, he asked Binger, who gave a rather non-responsive reply.  Why would an of that be relevant, asked the judge, and Binger gave another non-responsive reply. At that point Schroeder figuratively threw up his hands and just decided to have the court take break.

Judge Schroeder: Feels Like This Witness Has Been Two Weeks!

Humorously, during the recess the cameras were deflected off to the side, as is the usual practice when the court is in recess.

The judge’s microphone, however, was left live. As a result, we got to overhear Judge Schroeder make casual conversation with his clerk. 

Part of that conversation went along the lines of, “Man, this seems to be taking forever.  How long has he been on the stand?  How long? How about, two weeks?”

Here’s that clip:

When the court returned from recess, ADA Binger once again set out to impeach his own witness, and suggest to the jury that Balch was lying from the witness stand. 

When you were approached by reporters that night, is it true you gave them a fake name?  Yes, answered Balch, to protect my identity.

You spoke to the FBI? Yes. Wanted to tell them the truth? Yes. Know lying to the FBI can get you in trouble? Yes. The FBI report of that meeting says that you told them Rosenbaum’s plastic bag contained ammonia like products for use in making tear gas—but you know that’s not true, correct?

Correct answered Balch.

Attorney Richards Has Mercifully Brief Cross of Ryan Balch

Thankfully, as we now approached the end of the day, Attorney Richards had a mercifully brief cross-examination of Balch—I mean, almost all of the very, very lengthy direct questioning of Balch by ADA Binger had been to the benefit of the defense, so what more was there for the defense to elicit from this witness on cross-examination.

Richards did, however, want to address this impeachment attempt by ADA Binger, and he did so swiftly and concisely.

Are you lying to this jury under oath right now, he asked Balch. I am not, Balch answered. And this FBI report, this is not a document you get to review carefully, and then swear to under oath, is it? No.  In fact, you just chat with the FBI agents, they take some notes, and then they go off and write up this report in the manner they recall and with the things they think most important. Yes.

Re-Direct of Balch

Re-Cross of Balch

Morning Testimony of Detective Howard.

Now, before McGinnis there was also morning testimony from Detective Howard, to complete his contribution to this travesty of a trial.   Really, however, this was just an attempt by ADA Binger to rehabilitate Howard on the failure to execute the search warrant on the Grosskreutz phone, and the failure to record the Grosskreutz interview, both of which had happened with every other witness in this case.  It also gave Richards a chance to hit those points home again with the jury.

Howard Cross-Examination

Howard Re-Direct

Howard Re-Cross


In yesterday’s wrap-up I wrote:

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.

Well, today was day three of the trial, and not only does that statement remain true, but if anything the prosecution’s narrative of guilt looks profoundly weaker, and the defense narrative of self-defense looks profoundly stronger, than was the case yesterday.

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.

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.

Stay safe!


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.