Kenosha shooter trial is back in session with the prospect of a mistrial and protests looming

The Kenosha shooter trial continued today with the specter of a mistrial looming, as the court heard how it took Kyle Rittenhouse less than three minutes to kill two and injure one on the night of August 25, 2020. 

Early this morning Judge Bruce Schroeder revealed that the court has been inundated with communications from members of the public during the trial – many in the form of offensive emails, some calling the judge a racist. The attorneys have also been recipients of hateful messages.

Speaking ahead of the start of testimony, Judge Schroeder said he would deal with all such things adding, ‘I wouldn’t want to be those people.’

The defense started the day by bringing use of force expert witness, John Black to the stand.  Black, a veteran and former police officer is also a specialist in intelligence and video analysis and through his testimony the defense hopes to show the jury just how quickly events that the prosecution has ‘stretched out’ happened on the night of August 25, 2020.

The time between Rittenhouse shouting ‘Friendly! Friendly! Friendly!’ as he was walked through crowds pelting police vehicles with rocks to the moment he surrendered himself to police was just two minutes 55 seconds. 

The furious pace at which the entire episode unfolded, from the first shot to Rittenhouse trying to surrender, was further underlined as the jury heard that the time that elapsed between the first and final shot fired by Rittenhouse at Rosenbaum was just three-quarters of a second.

During their case, the state presented the fact that Rittenhouse shot four times as tantamount to him having made four conscious decisions to keep shooting even after, they contend, any perception of threat must have been gone.

But today the court heard how the shots were fired all but instantaneously.

The eighth day of Kyle Rittenhouse's trial is in session in Kenosha, Wisconsin

The eighth day of Kyle Rittenhouse's trial is in session in Kenosha, Wisconsin

The eighth day of Kyle Rittenhouse’s trial is in session in Kenosha, Wisconsin

Early this morning the judge revealed that the court has been inundated with offensive emails, some calling the judge a racist

Rittenhouse fatally shot Joseph Rosenbaum (pictured), 36, with an AR-15-style semiautomatic rifle after Rosenbaum chased Rittenhouse across a parking lot and threw a plastic bag at him shortly before midnight on August 25, 2020

Rittenhouse fatally shot Joseph Rosenbaum (pictured), 36, with an AR-15-style semiautomatic rifle after Rosenbaum chased Rittenhouse across a parking lot and threw a plastic bag at him shortly before midnight on August 25, 2020

Moments later, as Rittenhouse was running down a street, he shot and killed Anthony Huber (pictured), 26, a protester from Silver Lake, Wisconsin

Moments later, as Rittenhouse was running down a street, he shot and killed Anthony Huber (pictured), 26, a protester from Silver Lake, Wisconsin

Rittenhouse fatally shot Joseph Rosenbaum (left), 36, with an AR-15-style semiautomatic rifle after Rosenbaum chased Rittenhouse across a parking lot and threw a plastic bag at him shortly before midnight on August 25, 2020. Moments later, as Rittenhouse was running down a street, he shot and killed Anthony Huber (right), 26, a protester from Silver Lake, Wisconsin

Taking the first shot as time zero, Black told the court, ‘The time between the second shot and shot one was 0.263 seconds. Between the second and third shot, 0.247seconds, between the third and fourth shots 0.229 seconds. The total of those shots fired occurred in approximately 0.739 seconds.’

Armed with a fire extinguisher, his medical bag and his AR-15, Rittenhouse said, 'I started running towards the Car Source number three to put out fires, pausing occasionally to catch my breath and walk

Armed with a fire extinguisher, his medical bag and his AR-15, Rittenhouse said, 'I started running towards the Car Source number three to put out fires, pausing occasionally to catch my breath and walk

Armed with a fire extinguisher, his medical bag and his AR-15, Rittenhouse said, ‘I started running towards the Car Source number three to put out fires, pausing occasionally to catch my breath and walk 

The court then watched footage of the night unfold as Rittenhouse fled and an  unknown person ran at him and knocked his hat from his head. This, Black testified, was just 28 seconds after he had fired his last shot at Rosenbaum.

Dismantling the notion forwarded by the state that Rittenhouse had shot in a calculated fashion, Richards took his witness methodically through footage of Rittenhouse being attacked first by ‘jump kick man’ at whom he fired twice, then Antony Huber at whom he fired once and Gaige Grosskreutz at whom he fired once.

The state had shown these events as stills, broken down and studied in painstaking detail.

Today Black told the court that the images shown would have taken place as action that lasted less than half a second.

Indeed, the entire interaction from jump-kick man to Grosskreutz happened across just 5.468 seconds: 0.602 seconds elapsed between the two shots fired at ‘jump-kick man.’ 

Rittenhouse fired on Huber just 1.933 seconds later and then at Grosskreutz as he came at him 2.933 seconds after that. 

Addressing the jury, he explained that video ‘absolutely had the benefit of helping us objectively understand what happened.’

Today the defense started the day by bringing use of force expert witness, John Black to the stand

Today the defense started the day by bringing use of force expert witness, John Black to the stand

Today the defense started the day by bringing use of force expert witness, John Black to the stand

The defense’s aim is to put Rittenhouse’s actions in context, bolstering their claim of self-defense by highlighting the speed under which his decisions were made.

Binger rose to object as Richards methodically questioned Black about his methods before getting into the meat of the video sequences and the events of the night. He began with the moment Rittenhouse shouted ‘Friendly! Friendly! Friendly!’

Black had been allowed to testify only on condition that his testimony was limited to timing of events that, Binger argued this meant only the timing of the shots.  

The defense has arguably already played their biggest card putting Kyle Rittenhouse on the stand yesterday to give his own powerful account of the night he shot two men dead and wounded another.  

Black had been ready to testify Wednesday. Instead the wheels very nearly came off the trial entirely with the defense moving for a mistrial with prejudice and accusing Assistant District Attorney Thomas Binger of ‘prosecutorial misconduct’ and ‘over-reach.’ 

Judge Schroeder could now call a mistrial at any time should he decide that Binger has over-stepped in any way.

The defense is moving rapidly towards the conclusion of its case and could rest today. It has just three witnesses left to call with all three expected today and the state set to then mount a rebuttal.

Rittenhouse’s attorney, Mark Richards, won in his bid to have a use of force expert take the stand in October on the condition that his testimony is limited to the timing of events, including when the teen got to the area, began shooting and surrendered to police.  

Again the prosecutor clashed with the judge as he argued his point after the jury had been sent out.

Judge Schroeder told Binger, ‘It certainly was my intention that we were talking about video of the entire episode.’

Binger pulled a face that drew an irritated Judge Schroeder to ask, ‘Is there something that I’m saying that draws the face that you’re making?’

Binger replied, ‘Yesterday I was the target of your ire for disregarding your order. Today the defense is disregarding your order.’

Judge Schroeder was unconvinced prompting Binger to re-iterate, ‘Yesterday I was under the court’s ire. If I’m being held to obey the court’s orders I’m asking that the defense be held to [the same standard].’

Once again Binger had crossed a line as far as the judge was concerned. Judge Schroeder interrupted him, ‘I’m going to let you talk, but I was talking yesterday about the constitution of the United States and how the Supreme Court has interpreted it for 50 years.

‘That is not what we’re talking about here today.’

Judge Schroeder accepted only one of Binger’s objections that some of the language on Black’s expert report was ‘conclusory’ and ‘to be avoided.’

Binger gave as an example a point on the video pin-pointed by Black as ‘JR [Jospeh Rosenbaum] Change in elevation-lunge decision point.’

The judge agreed he would have to find a way to express the time point without using such language.

Judge Schroeder could now call a mistrial at any time should he decide that Prosecutor Thomas Binger has over-stepped in any way

Ed Lasiowski protests outside the Kenosha County Courthouse during Kyle Rittenhouse's trial on Thursday

Ed Lasiowski protests outside the Kenosha County Courthouse during Kyle Rittenhouse's trial on Thursday

Ed Lasiowski protests outside the Kenosha County Courthouse during Kyle Rittenhouse’s trial on Thursday

Kyle Rittenhouse could be tried again if judge declares mistrial  – but not if it’s mistrial with prejudice

Kyle Rittenhouse’s trial is now being conducted under the specter of a possible mistrial.

The defense has requested one to be declared with prejudice on the grounds of ‘prosecutorial impropriety.’

If granted this would mean that the case would be tossed and could not be brought again – a highly unusual move but applicable under such circumstances.

The judge has taken the defense’s request for a mistrial with prejudice under consideration, meaning should he feel it necessary, he can now call a mistrial at any moment with no need for further arguments in court or in camera.

Lead attorney Mark Richards accused prosecutor Thomas Binger of behaving in bad faith and of behavior designed to provoke a mistrial. A simple mistrial would mean the case could be tried again.

He accused him of doing this to ‘throw’ the trial that is going badly for the state, prevent it from ending with an acquittal and open the possibility of ‘another kick of the cat.’

The prosecutor was admonished on three occasions by Judge Bruce Schroeder shortly after beginning his cross examination.

He was twice admonished for questioning Rittenhouse’s right to remain silent post being charged – a move deemed a ‘grave constitutional violation’ by the judge who first reprimanded him in front of the jury and then sent the jury out to read him the riot act a second time.

Binger also attempted to bring into evidence information that the judge had specifically excluded in pre-trial motions.

As an experienced trial attorney Binger’s actions ‘astonished’ both the defense team and the judge neither of whom accept that he was acting in good faith.

Essentially, he stands accused of doing things that he knows will see the trial thrown out of court and the defense has therefore called for a mistrial of their own on terms that would prohibit the state from prosecuting Rittenhouse again.

Corey Chirafisi set out the defense’s stance. He said, ‘Normally a mistrial does not preclude a retrial [unless] a defendant’s motion is necessitated by a prosecutorial impropriety designed to avoid an acquittal.’

But, he continued, ‘What has happened is two times the state commented on Mr Rittenhouse’s right to remain silent.

‘The first time he was admonished by the court. The second time the judge had the jury leave, and he was re-admonished.’

As far as bringing in the excluded material Chirafisi said, ‘The prosecutor’s actions must be intentional…[with] an awareness that his activity would be prejudicial.

‘You had warned him. You had told him prior to Mr Rittenhouse testifying.

‘You had warned him about the infringement of his constitutional right to remain silent. He did it again.

‘The second one says that the prosecutor’s actions were designed to allow another chance to convict, to provoke a mistrial to get another kick at the cat because the first trial is going badly.’

Addressing Binger, Judge Schroeder said, ‘You’re an experienced trial attorney and you’re telling me when the judge says, ‘I’m excluding this’ you decide to bring it in because you think you’ve found a way around it. Come on!’

‘When you say you were acting in good faith, I don’t believe you.’

 

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Prosecutors did not call an eye-witness with whom they had contact who saw Rosenbaum ‘charging Kyle Rittenhouse from behind’ and ‘lunge towards him very clearly,’ before Rittenhouse shot him.

Videographer Frank Andrew Hernandez is set to be the last witness called by the defense and today testified that he not only witnessed these events with his own eyes, but recorded using body-camera and cell-phone footage.

Gaige Grosskreutz was shot by Kyle Rittenhouse on August 25, 2020 and his right bicep was almost entirely blown away. Grosskreutz, the state's star witness, took the stand Monday morning

Gaige Grosskreutz was shot by Kyle Rittenhouse on August 25, 2020 and his right bicep was almost entirely blown away. Grosskreutz, the state's star witness, took the stand Monday morning

Gaige Grosskreutz was shot by Kyle Rittenhouse on August 25, 2020 and his right bicep was almost entirely blown away. Grosskreutz, the state’s star witness, took the stand Monday morning

He told the court that he had handed between 80 to 100 videos over to both prosecutors and the defense. Yet the prosecution never reached back out to him or called him as a witness.

As footage was shown to the court Hernandez told the court that he had seen both Rittenhouse and Rosenbaum across the night of August 25, 2020.

He said, ‘The first time I saw he actually de-escalated [a] situation.’

Hernandez told the court that he witnessed Rittenhouse pacifying a group of ‘rioters who initiated conflict’ outside of the Car Source property he was protecting.

In stark contrast he recalled the first time he saw Rosenbaum he was ‘pushing a flaming dumpster on fire into police officers and human beings.’

Right after, he said, Rosenbaum appeared ‘triggered and physically aggressive’ towards people attempting to put the fire out.

He said later he then watched as Rosenbaum ‘led the charge’ into the Ultimate Gas Station and again attempt to start altercations.

In more video shown to the court Rosenbaum, now wearing a T-shirt over his face, can be seen attempting to ‘light a trash can on fired.’

In the background, Corey Chirafisi pointed to, ‘This person holding a fire extinguisher [who] has purple gloves on his hand.’

As Rittenhouse walked Rosenbaum was initially seen ahead of him but later, Chirafisi pointed out, ‘he appears to be behind him.’

Hernandez testified that he heard somebody say ‘F*** you’ though did not know who. He then testified, ‘I was at the corner of Car Source, Rosenbaum was charging Kyle Rittenhouse and as he’s charging him a firearm goes off.

He continued, ‘As the firearm goes off Rosenbaum is already charging Kyle from behind. He attempts to throw a bag at him and Kyle is right at the corner. He turns around and Rosenbaum is lunging towards him very clearly.’

Hernandez said he both videoed and ‘saw this with his [own] eyes.’

Standing to cross-examine Binger attempted to undermine Hernandez by suggesting he was bias. Questioning him as to his place of work Hernandez said he was a commentator for right wing website Real America’s Voice.

Chirafisi objected and once again Binger drew Schroeder’s ire who told him, ‘This is not a political trial and I don’t know how you would isolate a person’s particular politics and determine that that person is going to evaluate the evidence one way or another.’

Ass’t DA Thomas Binger has locked horns with Judge from the get-go

Thomas Binger is a seven-year veteran at the law office run by Kenosha County’s top prosecutor, Michael Graveley. 

Graveley is not personally handling the high-profile Rittenhouse case because he was tasked with the investigation into the police shooting of Jacob Blake at the time Rittenhouse was charged. It was Blake’s shooting on August 23 that sparked the Kenosha riots. 

Binger and Judge Bruce Schroeder, who sits on Kenosha County Circuit Court, clashed frequently in the run-up to the trial, and the proceedings have been as explosive as expected. 

Schroeder, who at 75 is the longest-serving active circuit judge in Wisconsin, has the reputation of being a stern judge who often hands down tough sentences. 

The website Wisconsin Right Now described his approach as ‘bizarre’, saying that he frequently made moves that seemed to help the defense in their argument that the teenager acted in self-defense – such as discussing the chaos engulfing Rittenhouse as he opened fire, showing videos of violent protest, and leading Rittenhouse to say that he wanted to help people. 

Binger graduated from the University of Michigan Law School in 1996 and became a criminal prosecutor at the Milwaukee County District Attorney’s office in 1999, where he eventually rose to the rank of assistant district attorney. 

He went on to work for the DeMark, Kolbe & Brodek law firm as director of litigation in 2005 before joining the Kenosha County District Attorney’s Office in 2014. 

In 2016, Binger ran unsuccessfully as a Democrat for the district attorney’s seat in Racine County, telling the Journal Times: ‘In the last two years as a prosecutor, I have won 13 jury trials. I have convicted murderers, rapists, child molesters, drug dealers, drunk drivers, home-invading burglars and men who abuse women.’

He is married to Nicole Gustafson-Binger, a mental health counselor for Oakwood Clinical Associates. They have three children.  

In the lead up to the Rittenhouse murder trial, Binger lost the chance to link Rittenhouse to the Proud Boys extremist group. 

He was later strongly criticized by Judge Schroeder, in pre-trial hearings, after arguing that defense lawyers should not be able to tell jurors about Joseph Rosenbaum’s destructive actions during the riot, including setting a dumpster on fire. 

‘All we’re talking about is arson. We’re talking about being loud and disorderly,’ Binger said.

Schroeder cut him off and raised his voice.

‘I can’t believe some of what you’re saying,’ he said. ‘All we’re talking about is arson? Come on!’

Schroeder during the trial reprimanded Binger for bringing up information that had previously been barred from the court about Rittenhouse’s history with an AR-15 rifle. An incident was caught on video two weeks prior to the shootings in which Rittenhouse talked about shooting men he believed were shoplifting at a pharmacy.

Schroeder had already ruled video inadmissible. 

‘You’re an experienced trial attorney and you’re telling me when the judge says, ‘I’m excluding this’ you decide to bring it in because you think you’ve found a way around it,’ Schroeder asked. ‘Come on!’

Binger replied: ‘You can yell at me if you want. I was acting in good faith.’ 

Judge Schroeder responded: ‘I don’t believe you. When you say you were acting in good faith, I don’t believe you. There better not be another incident.’

Rittenhouse’s defense accused Binger of knowingly attempting to throw the proceeding because they were going badly for the state.

The defense on November 10 demanded a mistrial with prejudice, which would mean that Rittenhouse walks free and a retrial is not possible – a disaster for the prosecution. 

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