The Kyle Rittenhouse trial is a master class in how not to prosecute a case
On August 25, 2020, 17-year-old Kyle Rittenhouse, armed with an AR-15 and a medical kit, went to Kenosha, Wisconsin to offer first aid and protect businesses against looting and arson. By evening's end, Joseph Rosenbaum and Anthony Huber were dead, and Gaige Grosskreutz had a hole in his arm. Rittenhouse is now being tried for murder, although he claims — and video evidence and witness testimony confirm — he acted in self-defense.
The trial started this week, and it's been sufficiently fascinating, thanks to mismanaged evidence (including FBI wrongdoing) and an incompetent prosecutor, to merit a short review. These are some highlights. Andrew Branca's superb posts at Legal Insurrection have more details.
On Tuesday, assistant D.A. Thomas Binger committed a fundamental error: he misrepresented the evidence, almost all of which is captured on film. Thus, he asserted that Kyle shot "unarmed" victims. In fact, Grosskreutz was aiming a gun at Kyle when Kyle shot him; Huber was trying to beat Kyle to death, or decapitate him, with a skateboard; and Rosenbaum was trying to steal Kyle's gun.
Also on Tuesday, news broke that the FBI had failed to share evidence with the defense and then "lost" some of that same evidence. Although the testimony wasn't televised, Branca writes:
I did learn later that apparently the FBI had possessed both the low resolution aerial video shared with prosecutors, and a high-definition version of the same video. To the outrage of the defense, however, it was discovered today that the high resolution version of the video had been "lost" by the agency.
Reportedly even Judge Schroeder was left aghast at the possibility that the FBI had tossed away evidence relevant to a homicide case, but beyond that I don't have any substantive knowledge of how all this played out.
Wednesday's most interesting story also involved mishandled evidence. Rittenhouse made available to the prosecution the contents of his cell phone. He had nothing to hide.
Things were different went it came to Gaige Grosskreutz's phone. Grosskreutz was the man who simultaneously stuck a gun and his phone, with the camera working, into Kyle's face when Kyle shot his arm.
Police investigators obtained a search warrant for Grosskreutz's phone, which would certainly have contained material evidence. Bizarrely, though, the police did not serve the warrant, did not seize his phone, and never tried to gain access to the contents.
The very young detective in charge of the case conceded that this was the only time in his experience at the Kenosha P.D. that the police did not serve a search warrant for a phone download. The reason given was "Marcy's Law," which protects victims of crimes from invasive investigations. So Grosskreutz, who stuck a gun in Kyle's face, was framed as a "victim" from day one. However, the detective admitted that, in his experience, the police had never before used Marcy's Law to prevent a search warrant for cell phone evidence. The police also didn't record their interview with Grosskreutz, another anomaly in a department that recorded everyone's interviews.
Thursday — day three of the trial — proved particularly fascinating because it was like a master class on how not to question your own witnesses. The two witnesses were Richard McGinnis, a videographer for The Daily Caller, and Ryan Balch, a former Army infantryman who patrolled the area with Rittenhouse.
The prosecution's job was to get these two men to prove affirmatively that Rittenhouse wasn't acting in self-defense. This would mean showing that he was not the wronged innocent in all this, or that he was not in imminent danger, or that his actions were out of proportion to the threat, or that he was not acting reasonably at the time.
What happened, instead, was that the prosecution's insistent questioning regarding the circumstances of Rosenbaum's death revealed that Kyle was an amiable young man who avoided confrontations and was actively trying to help people; that Rosenbaum threatened to kill him; and that he was desperately trying to run away from Rosenbaum, only to find himself trapped in a dead-end, at which point Rosenbaum (who, again, had threatened to kill him) tried to grab Kyle's weapon.
In other words, the prosecution's witnesses proved every element of self-defense: Kyle wasn't the aggressor; Rosenbaum was an imminent threat; Kyle's actions were therefore proportionate to the threat; and, having first tried to escape the threat, Kyle acted reasonably in defending himself.
Branca's description of the testimony shows ADA Binger violating every rule of holes. Not only did he fail to stop digging, but he also kept digging faster and more desperately.
No matter how bad the prosecution is, Rittenhouse is nowhere near out of the woods. Being a defendant in a murder case is inherently risky, for there's no telling what a jury will do. He has the good fortune, though, to have an honest and thoughtful judge, exculpatory video evidence, and a strangely inept prosecution. With luck, soon Kyle will be able to put this behind him and get on with his life.
Image: Kyle Rittenhouse at his trial. YouTube screen grab.
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