Professional Documents
Culture Documents
Kyle Rittenhouse Hearing 210917 Transcript
Kyle Rittenhouse Hearing 210917 Transcript
Participants:
Prosecution:
ADA Thomas Binger
[BEGIN]
Judge Schroeder: Alright , this is the case of the state against Kyle Rittenhouse. Announce
appearances [?].
Prosecutor: The state appears by Assistant District Attorneys Thomas finger and Jim
Kraus.
Judge Schroeder: We got a few technical problems this morning and I, I'm on a different
network than usual. Which Ms. Matthew have your hand up? What's up?
Judge Schroeder: Okay. Okay, no problem. Yeah, I'm on a different network. I don't think
that'll cause any problems. The ordinary network we use was not coming
up. So, and then I had to choose between, and I don't know why this
hasn’t happened previously that I can recall, I had to choose between the
courtroom view, which is what is should be in the center, right now
showing all of the lawyers and if I move that around all the lawyers and
the defendant, and or views of myself, and I figured people would rather
look at the courtroom than me, but so I that's how it's set up at this time.
And I could change it. But unless there's some reason I'm not going to.
So that's the technical report. And I'll now ask you folks to update me if
there's anything since the last filing and then we'll start taking on the nuts
and bolts of the case and some of these motions which have been filed.
Mr. Binger, have you got anything
ADA Binger: Judge, I just want to confirm with regard to the victim’s rights act. I know
Miss motley was going to appear representing Mr. Grosskreutz. John
Huber, the father of Anthony Huber, had been appearing in the past
along with Attorney Steve Art, I'm not able to see who's on your Zoom
connection there. So I just want to make sure that we have the recording
that needs to be here.
Huber: Yes.
Judge Schroeder: Yeah. And I don't see Attorney Art and Mr. Grosskreutz is on and Ms.
Motley is on. Is there anybody else appearing? I mean, make sure that
there's nobody in the waiting room?
Attorney Motley: Your Honor, just to clear the record, and also appear on behalf of the estate
of Joseph Rosenbaum.
ADA Binger: We're not aware of anyone else who would appearing, your Honor.
ADA Binger: Other than that, Your Honor, I don't have anything new since the last file.
Judge Schroeder: Okay. Alright, let's, why don't we take the motions up, and then we'll talk
about the progress of the case. The first one that I looked at and it was
received on the first, the first batch, was a state's motion for other acts
evidence. The state alleging that on June 1 of last year, the defendant
assaulted a female in Kenosha, and I did review your briefs. Did you want
to add anything to what's already in the brief, Mr. Binger?
Judge Schroeder: Well, I'll tell you with respect to both of these requests, I think if I admitted
either of these, I get reversed. That's the bottom line. I think that the first
one, the incident involving the sister, this is clearer, in my estimation, it's
a propensity evidence. It's just, it's an opportunity to suggest to the jurors
that he's acted in a violent way on other occasions, and therefore he
acted in a violent way on this occasion. There's no connection between
these two events at all. They're, they're, they're, they're totally dislike
each other. One involves a fight involving some kids, including the sister
of the accused, and how he reacted in that particular instance, what has,
which has nothing to do with what happened in an incident of which and
I, I haven't seen all the videos that you folks have had, or seen witness
statements as you have, buddy, it sounds like pretty clearly that at the
time that the first incident occurred, and certainly I have, I've seen the
videos of the second set of shootings. And in all the instances there was
actually contact between the people leading up to the shooting incidents.
And in all of the incidents, there was some confrontative behavior, which
is certainly subject to multiple interpretations. And I don't want to get into
that, that's for the jury. But it's nothing like the incident involving the
sister. So this to me is clearly propensity evidence. It's exactly the kind of
evidence that the rule is designed to prohibit. And as I say, I'm virtually
certain that if I admitted this kind of evidence, it would be, it would be a
reversal if there were a conviction. You make reference, you make
ADA Bringer: We’re not alleging he’s a member of the Proud Boys. But, but two things,
first of all, this was not a happenstance, random meeting. In fact,
according to a New Yorker article, which interviewed—
ADA Bringer: Hold on, but they interviewed various people involved, including members of the
Rittenhouse family and their supporters, the defense went to Miami on
January 12 of this year and was picked up the airport by the president of
the National Proud Boys organization who took them out for lunch. That
was intentional. So this was not, this is consistent, t his is a pattern. This
is not a random meeting.
ADA Bringer: This was January 12. So this nine days or eight days after the incident at
Pudgies Bar Racine, the defendant’s in Miami picked up at the airport by
the head of the National Proud Boys organization. So I submit to you, you
know, the question that defense asks is what's the proof that he's
affiliated with this organization? This is the proof. He goes up for, after
court, rides up to Racine and meets them at a bar, goes to Miami is
picked up the airport and has lunch with the National Head of that. So
this is the evidence of affiliation—
Judge Schroeder: What’s that mean about October, excuse me August 25 of last year?
ADA Bringer: And the jury can make a decision on that, your Honor. I believe that is
consistent with the Proud Boys mantra, their philosophy, of going to
these types of protests armed with the intent of causing violence. And I
think we will we will be prepared to introduce testimony from someone
who is affiliated with the Proud Boys and will tell the jury about their
philosophy, will tell the jury what sort of violent activities they do at these
incidents. So again, I understand the court doesn't want to rely on a
Judge Schroeder: All right, let's assume you're reading in the evidence about the Proud
Boys being in Kenosha on the day in question, and that they're here for
their purposes. Is there any suggestion that they were connected in any
way with the accused
ADA Bringer: On the date of August 25, I will acknowledge that I'm not going to be able
to prove that that was a coordinated thing between the defendant and the
Proud Boys that night. However, I believe there's a strong inference
based on the fact that after court in January, he goes up to Puggies goes
down to January or Miami later that month, and meets with not only the
head of the Wisconsin Proud Boys, but the head of the National Proud
Boys. I think there's an inference to be drawn from that. Now the jury can
be instructed what weight to give it. But the defendant’s actions of coming
into our community illegally after curfew with a gun at the time of a
protest is entirely consistent with what the Proud Boys make it their job to
do. And then he meets with the leaders, afterwards. To me, I think there's
a reasonable inference that these are consistent motives all along.
ADA Binger: Absolutely, your Honor. The defendant is charged with illegally
possessing a firearm. The circumstances under which he possessed that
Judge Schroeder: What is the source of the funds? How is that relevant?
ADA Binger: It's relevant, Your Honor, because Mr. Black was working essentially as a
straw purchaser, your Honor.
Judge Schroeder: That's a separate issue, that what he's asking, that not be allowed, is
evidence about fact that he used the stimulus money to buy the gun.
Where's the probative value of that?
ADA Binger: Well, Your Honor, I think it paints the picture for the jury of how this
transaction occurred. How does Mr. Rittenhouse come into this money?
It's a lot of money. We're not talking about 50 bucks here, we're talking
about $800 or thereabouts. So it's a large sum of money.
Judge Schroeder: Actually, you’re providing the explanation. I would think that you'd want to
offer “where’s he get this money?” I don't, I don't understand--
ADA Binger: We can leave the question open for the jury, Your Honor. And we can let
them try and speculate if they want to. But since we already know the
answer, why not tell them the truth?
ADA Binger: I don't know that he had that job at that particular time, your Honor.
ADA Binger: The defense is going to he's going to talk about his work as a lifeguard.
We've already heard reference to him, you know, working in our
community, although he worked in Pleasant Prairie, but—
Judge Schroeder: What is the relevance of the stimulus money being used for that as
opposed to being used for drops? Or for a musical instrument or a
boombox? Or is it, is that the right term?
ADA Binger: If we want to cut off reference to that, Your Honor, then why don't we just
cut off reference to the defendant working in Pleasant Prairie as a
lifeguard, too?
ADA Binger: Well, I think it's the same issue. It's two sides of the same coin, your
Honor.
Judge Schroeder: I would tell you that I I don't think it's a big deal. But I do think the defense
is correct. That it doesn't sound to have much relevance. I also don't …
you're suggesting that the reason he's trying to do it is to denigrate the
defendant for not using the stimulus money for a more altruistic purpose.
I would imagine that some percentage of the American people who got
Richards: I just don't see how it goes to any element that's in dispute. I mean, it's
just, I think it is to denigrate him, to try and paint him bad. And that's why
they put it in the Washington Post article. That's where it was.
Judge Schroeder: I did, by the way, read that New York Post, New York, New Yorker
magazine article that you mentioned, but I didn't--
ADA Binger: I don't I don't think it's an issue of denigrating or making them look
positive. The stimulus money was intended to stimulate our economy
was designed to be spent at various locations, whether you go out you
buy groceries, or you spend it on your rent, or you buy a gun, it's certainly
benefited the Ace Hardware and Lady Smith to sell that gun. There's
nothing wrong with that. You know, gun ownership is legal in our country,
Dominick Black purchased the gun, he's legally able to do that. Of
course, the defendant isn't. But there's no, there's no implication here by
the fact that it's stimulus money used to purchase a gun. There's no
automatic implication positive or negative on that. It's exactly what the
stimulus money was intended to do, was to be used to stimulate our
economy by supporting this.
Judge Schroeder: Yeah, I think it's gonna elongate the trial. So I mean, it's, you know, I, I,
I'm not gonna give you a definitive ruling now, because it's not in my
estimation, it's not that objectionable. But it's also not that probative. And
I tell you, what, we're not going to spend as much time at the trial as we
are today talking about this, because we want to move this case along.
So if he asks, and you object, you're going to get a one word response as
to whether I decided at that given moment in time, whether it's, and that
ADA Binger: Your Honor, I think that 1 and 3 in the motion in limine are covered by
your ruling on the other, so I don't know that we need to spend more time
on it.
Chirafisi: I think that’s everything, then. I think this was filed before the state filed
their other other act motion.
Chirafisi: We are.
Judge Schroeder: Motion to admit evidence, that is evidence of whether, because Joseph
Rosenbaum had been convicted of child sex offense and went to prison
for it, I guess three different times. You can start talking, with knowing an
extreme bias towards denying your request.
Richards: Your Honor. his status as a felony offender is relevant in this case,
because based upon the facts of that evening and his conduct. When
Richards: He asks for a fire extinguisher from the gas station at the corner of 60th
and Sheridan Road, somebody provides him a fire extinguisher. He takes
off in the direction of 63rd and Sheraton Road Car Source #3. As he's
going to that location. Mr. Rosenbaum and Mr. Ziminski are seen on
video behind him. Mr.—and in front of him, my client starts off behind,
goes past them. As my client passes Mr. Rosenbaum, Mr. Rosenbaum
has his face covered with his shirt in a ninja type mask, not a COVID
mask, it has over the top of his head and a slit for his eyes, hiding his
identity. As my client goes by him, their statements of “get him,” “kill him,”
things like that. Whatever is said, it's in dispute. But there's something
Richards: Mr. Rosenbaum. My client as he's jumping towards him, fires the four
shots, which take less than one second, hitting Mr. Rosenbaum, Your
Honor. Mr. Rosenbaum had the will, he had the intent, and he had stated
what his motive was: to take somebody who he believed as a threat
would put out fires that he had been starting had been stopping them
from burning down buildings, and now was his chance. Mr. Rosenbaum,
because of his status as a convicted felon is unable to lawfully possess a
Judge Schroeder: Did you say that when you began, that there is a witness who reported
hearing Mr. Rosenbaum say he just got out of jail that day, to the
accused?
Judge Schroeder: What institution he was in was it was not important, what the defendant,
what the decedent allegedly said is the important thing. He allegedly said
what?
Richards: He said, words to the effect. I just got out of jail today. I'm not afraid to go
back.
ADA Binger: I don't remember those words. I know he had gotten out of I think it was a
commitment that day, not jail. But I don't recall seeing those words.
Richards: Your Honor, that's the argument. He said it, it's in the discovery which I
was provided by the State. It's reported by numerous individuals. And you
ADA Binger: Judge, there are a lot of people out there coming on this case that are
happy that Kyle Rittenhouse killed a pedophile. And that's the danger
here. We don't want the jury to make a determination that somehow this
was justified because it got one child molester off the streets. That is not
what was going on. I want to clarify that Kyle Rittenhouse knew none of
this, knew none of this, at the time of this incident. I had no idea that
Joseph Rosenbaum had been ever been convicted as a felon, had no
idea he was a sex offender, or anything like that. So this doesn't go to
Kyle Rittenhouse’s state of mind and that's important for self-defense.
This is not subjective issue, this is not a reasonable issue. It does not go
to self-defense at all because there's no evidence Kyle Rittenhouse knew
anything about Joseph Rosenbaum’s history that night. They'd never
crossed paths before that night. They never met.
ADA Binger: Sure, your Honor. With regard to the motive that Joseph Rosenbaum had
that evening, when he confronted the defendant, because that's where
this really goes to. The defense wants to argue that his motivation in
confronting the defendant was, among many other things, which
counsel’s just detailed, a desire to obtain the defendant’s gun, because
Mr. Rosenbaum couldn't get the gun any legal way. That is really what
this is. He's a felon, so he can't go to Dudham’s [?] or Gander Mountain
and buy a gun, he's got to steal. That's the only reason why this fact of
his felony conviction could possibly come in at trial, is to show that. So
how plausible is that motive? First of all, we have no evidence that
Joseph Rosenbaum wanted a gun that night, none whatsoever. No one is
going to testify that he ever tried to get a gun since his last felony
conviction, that he ever said he wanted the gun that night, that he ever
said anything about wanting to get armed that night. There is nothing in
Judge Schroeder: I've read that have read that over and over again about the plastic bag
being thrown somebody. Now I'm, when I if I throw a plastic bag at you
it's I guarantee it's not going to hit you. And that would be true if you're
standing two feet ahead of me. So I guess I'm interested in what the
motion, what the images show about the course of the plastic bag. I
mean, did it just project a foot and then drop to the ground? Or did it act
like a missile in the direction of the accused?
Judge Schroeder: It’s not just a plastic bag, which is what the complaint sayso it's a plastic
bag.
ADA Binger: It flies into the air it lands about 10 feet behind the defendant, the
defendant is running away. I don't think anyone can reasonably argue
that it was a risk to cause bodily harm at any level to the defendant. I
suspect Mr. Rosenbaum threw it out of frustration or anger. But it's, but
it's not a reasonable threat to the defendant’s safety.
ADA Binger: Okay. So then what happens is these individuals run between some
parked cars. And there's an allegation in the defense motion that Mr.
Rosenbaum is reaching towards the defendant’s gun, may have come
into contact with the gun, although there's no physical evidence to
support that. But at any rate, why is Mr. Rosenbaum allegedly doing that?
We don't know. We don't have any statements from him. We have
speculation from witnesses, we can speculate by watching the video. But
that is all that is, pure speculation. Now I submit that in that circumstance,
the most reasonable explanation why Mr. Rosenbaum may have been
doing that he's the same thing any of us would do if someone pulled a
gun on us, is probably try and defend ourselves by pushing the gun away
Richards: Your Honor, just briefly in response to some of the more interesting
points Mr. Binger made. One, the evidence is timely. It's part of what
happened that evening. Two, Mr. Binger talks about there were other
incidences where he was with individuals going at them who are armed
AR-15s. The very distinctive thing between those incidents at the gas
station on 60th and Sheridan Road, and the situation between my client
and Mr. Rosenbaum are my client was alone, it was not well lit, the gas
station where Mr. Rosenbaum is going nuts yelling “shoot me N-word,
shoot me N-word,” repeatedly, he has to be held back from those
individuals with guns. And there are numerous individuals. It's no
individual standing alone, he's going at them. The threat regarding I just
got out of jail and I’m not afraid to go back was earlier in the evening at
Car Source #2. The bag incident he can, the state can talk about it not
being or meaning anything. It was a metallic bag you can clearly see it fly
through the air, lit up from the lights that were in that area. And the client
will testify that he had seen Mr. Rosenbaum, this is on video right in front
of Car Source #2, walking down the road with a huge chain that had been
taken of a trailer that Mr. Rosenbaum and other individuals have
threatened. So he knows he has something metallic. And he talks about
Judge Schroeder: Well, I certainly you're welcome to pursue the evidence and, and attempt
to prove that the decedant was attempting to take the gun from the
accused. But I think that, that he was, that there are a universe of
motivations, that Mr. Rosenbaum could have could have had and to invite
jury to speculate that it was because he was couldn't legally acquire one,
I that's too much for me. So I'm gonna, I'm gonna grant the, I guess it
comes in here as a request on your part to admit that evidence and I'm
going to deny that request. Notice of Intent to enter—oh, this is the
testimony of John R. Black. By the way, the clerk told me that there were
some materials received today about expert witnesses that I have not
seen, they were not filed until either this morning or last night. Yesterday
afternoon, and I haven't seen them and hope they're not something that
you expected me to talk about today, because I have not even seen
them. But I do have the discussion regarding John Black. And I will tell
you before I hear what you have to say--
Richards: Before we go any further, can we just take like five minute break.
Judge Schroeder: Your wish is my command. [General laughter.] All right. Let's start again
at 25 after.
[BREAK]
Judge Schroeder: Alright, apologize, we're back. And I think the last thing was, yeah, this
the State's witness list. And I have to say when I saw it, it did bring to
mind the very case that the defense cited, State v. Arby [?]. When these
discovery first came in, and then I'm old enough that I remember when
they changed the law. And the prosecutor made a heavy list on the
accused of every name in the community or something. And Supreme
Court says you can't do that. So I don't want to take too much time, and
have you narrow down this 175 witness list.
ADA Kraus: Judge, we were on the you were on the motion with Mr. Black.
Judge Schroeder: We were but now that I'm talking about this, we skipped a couple extra.
We did. And we'll come back on Mr. Black, I must have turned my page
when the break. Yeah, but let's talk about the 175 witnesses. Has that
been slimmed down?
ADA Kraus: Yes. So Attorney Binger did send the numbers of individuals that we are
more likely to call.
ADA Kraus: That, of course, may change as we get closer to trial. But we have
narrowed it down in private, of course, we do want to list, be more
expansive on our list, just in case, something comes up that was
unanticipated in that way, it's there's not a dispute at trial that a witness
was not listed, but we have privately narrowed it.
Judge Schroeder: Well, wait a minute now, I noticed that you, they claim that they would
provide them to you, so they didn't get posted on the internet? And did
you say okay, we'll take that or did you want--
Richards: I was told by Mr. Binger, they’re in discovery find them. And--
ADA Binger: I emailed Mr. Richards yesterday, I gave him a narrowed down list. I said
the addresses that we would be providing to him would require us to go
through the same 400-plus pages of police reports.
ADA Binger: The statute does require us to provide addresses in a written filing with
so—
Richards: My biggest concern is updating. This has been 13 months ago, people
move, things like that. And obviously they're gonna have the most up to
date addresses, to get people under subpoena, things like that.
Judge Schroeder: Okay. So now we were talking about expert witnesses. Now, let me tell
you, let me just say, that my, my last acquaintanceship with this issue,
was that, and this is a little bit different, some of the issues that are
discussed. But ultimately, ultimately what this witness is being called for
Mr. Black, Dr. Black, what is it?
Richards: Doctor.
Judge Schroeder: Dr. Black, but Dr. Black with this defense proposes to bring Dr. Black in is
ultimately to show that the defendant’s conduct conform to the law of self-
defense.
Richards: It's more what I would characterize as use-of-force. And one of the things
that we've been addressing it was said earlier in this, is how he handled
his firearm. Whether what he did with his firearm was reasonable. His
reaction times to being attacked by Mr. Rosenbaum. He also has the
ability through his software to break down every incident frame by frame,
which allows him to put very accurate timelines on each of the shooting
aspects. One of the things that I'm sure the state—
ADA Binger: Is the court intending to hold that hearing prior to trial?
Judge Schroeder: I do. And then, the materials that were filed yesterday afternoon, do they
pertain to expert witnesses also?
ADA Kraus: They are notices of experts. Three of which are already on the witness
list. And they [the defense] already have the reports.
Richards: Yes.
Judge Schroeder: Okay. All right. Well, we'll have a common Daubert hearing for them.
ADA Binger: Your Honor, we don't plan on calling ours, obviously, if the defense, if the
court grants our motion to exclude Dr. Black’s testimony then we won't
need our witness either, but we have to plan for the contingency court
rules otherwise.
Judge Schroeder: Okay, next. Motion to compel discovery of donation lists, and is this still
an issue?
Richards: It is.
Judge Schroeder: Okay. Now, the defense statement by Mr. Richards that I read was that
he doesn't have any access to any information from Free Kyle, USA. And
are you disputing that?
ADA Binger: Well, defendant’s mother is someone who the defendant can obtain
information from quite easily.
ADA Binger: Your Honor, this this is within, this is not a third party. This is not an
account to the other—
ADA Binger: It's his mother, your Honor, I submit that it's a reasonable request of the
defendant. He's the beneficiary of all of that fundraising. He is, he's the
person, it is called Free Kyle, USA, he’s Kyle. So this is not an
independent entity. This is something that they have the ability to access.
And, your Honor, honestly, if the shoe were on the other foot, and there
was some sort of fundraising for the state in this prosecution, and we
didn't turn that information over, it would be per se reversible error.
Judge Schroeder: So I'm telling you by what authority can I order a citizen to provide you,
that you can subpoena by the way, to provide material to the defense
attorney, or to the defendant, that is her proprietary information, and
command them to cough it up? The law is they can have I can make
them produce what they have. I cannot compel them to produce
something, nor do I know of any authority that I can make them make her
give it to them. Is the law different from what I've stated?
ADA Binger: Your Honor, if the state supplies you with a subpoena, will you subpoena
them?
ADA Binger: The answer may be made in a different jurisdiction. So we may need this.
Judge Schroeder: Well, okay. So that's, well, maybe we should just talk about it a little bit,
then, if this is something that's going to come up? No, I'm not going to
talk about a little bit. I'll save that for another day if we need to. And you
also ask for the Fight Back Foundation. And you want a list of their
donors. [To the defense:] You have that?
Richards: No.
Richards: And fight back is represented, it’s run by Lin Wood and a board. We
separated from them in late December 2020, earlier January 2021. I tried
to get the exact date, but I received two different answers, so I don't want
to give a specific date. However, there is no contact with that
organization anymore. I know that at one point, some of the civil lawyers
involved in this sought to seek that information, because they believe
there hasn't been a full accounting for the funds that were given. There is
Judge Schroeder: Okay. So now I'm going to pass on that. Well, I'm just going to deny the
motion at this point. Second state [AFB: actually defense] second motion
to omit other acts evidence, reporting about an incident that is claimed to
have occurred on the 10th of August, involving an incident outside of
CVS.
ADA Binger: Your honor, there’s no dispute the incident occurred. The defense
motion has acknowledged that the defendant was there, that it's his
words, that he essentially made a statement that he wished he had the
same rifle that was used in this incident to kill two people, So he could
shoot individuals coming out of the CVS pharmacy. This is 15 days prior
to the August 25th incident. So it's very close in time. And it's, again,
goes to the issues we talked about earlier. This is a, this is a continuing
motivation here. The defendant is irresponsibly using his firearm, or
threatening to use it, I should say. Talking about using it to shoot
individuals who he believes are ostensibly committing a shoplifting
offense from CVS in Chicago, he has no ties to the business, he has no
role to play there whatsoever. But yet he wants to launch himself into the
middle of it with the same gun. And it's similar to what we have on August
25, your Honor, where the defendant is in our community, with that same
gun, and using it in a manner that I think is legally unjustified. So this
goes exactly the state of mind, in terms of his understanding of use of
ADA Binger: I want to respond very briefly, your Honor, because there is an actual
action he takes at the CVS incident and that is he does call 911 using his
personal cell phone while he's watching this incident, he doesn't know
what's going on. He doesn't know what's what these people are doing.
He's, he's sitting in a car across the street. He doesn't talk to anybody, no
one asks him to call 911. He thinks he sees a crime, his response in part
is to call 911. His response is also to say, I wish I had my gun so I could
shoot these people. Now, we're lucky he didn't have his gun. But the
standard for other acts isn't that we have to present to the court an exact
scenario that matches the exact crime that defendant’s being charged
with as the other app. That is not the bar here. Nor is the fact that these
are simply words a bar to admission. For example, if the defendant had
said, I'm going to kill Joseph Rosenbaum 15, days before August 25, and
then kills Joseph Rosenbaum, that would be admissible. So the fact that
it's words the fact that it's not action, does not bar the admissibility of this.
The key issue in this case, is the defendant state of mind. What was his
intent? On the night of August 25? What did he intend with that gun?
How did he interpret the threats that he thought were coming towards
him? How did he react to them? Were they reasonable? How do we
Judge Schroeder: Once again, I think the evidence is too dissimilar. It becomes propensity
evidence. The effort, it seems to me is being made to show that the
defendant is a violent vigilante and he's willing to employ violence and
he's willing to take matters into his own hands, although this certainly that
the, I think I heard now for the first time that he called 911. So he didn't
take matters into his own hands, he called the proper authorities. That
was not an issue, the date that the incident here in Kenosha occurred,
because he could have called 911 all he wanted, there was general
lawlessness in the community, which was out of control. And so whether
he was motivated towards acting as a vigilante in this case, I don't know.
That's for the jury to decide or whether it be if they get to that if it's
necessary for them to decide it. But the acts are totally dissimilar
because in the one instance, he's observing what he believes to be a
crime being committed, he makes some threatening statements for sure,
statements, a nd then the one action that he takes is one that is a proper
action. The incident Kenosha, from what I've heard, and I haven't heard
what the defense claimed here contradicted is that the incident I don't
want to see started but the last moments of the shooting, it consisted of
the defendant taking a fire extinguisher to try to assist with extinguishing
some blazes. I know that, you know, there was the night that the furniture
store on 60th Street and the Department of Corrections building, the
firefighters never showed up. I mean, you could call 911 you wanted,
ADA Binger: Yeah, because that's, maybe I haven't made this clear in my motion. But
in both of these situations, the defendant is taking it upon himself, taking
the law in his own hands, under circumstances where he doesn't know
the full facts, he's making assumptions. On August 10, he's making an
assumption seeing people coming out of CVS and he thinks they're
robbers. He's talking about taking the law into his own hands by firing off
rounds with his AR-15. This is before he calls 911. So his first instinct is,
I'm going to stop this with my gun by killing these people, which is
completely unlawful. He's not allowed to shoot and kill, even police would
Judge Schroeder: Tell me exactly what he said, because I don't remember the statement.
ADA Binger: He said, bro, I wish I had my AR, I'd start shooting rounds at them.
ADA Binger: He’s clearly willing to shoot at these individuals with an imperfect
understanding and assumption. He has no actual knowledge of what's
going on. He makes an assumption. Now, on the night of August 25, I
believe the evidence at this trial will be slightly different than what you've
heard. And I do want to contradict the rendition that has been presented
to you by the defense. The defendant, that night was extensively trying to
protect a Car Source location at 59th and Sheraton Road from people
damaging that property. He is among a group of people who have
stationed themselves with open firearms, most of them carrying these
type of AR-15 rifles openly slung around their shoulders. Many of them
are on the ground, some are up on the road. This is sending a message
to anyone, stay away from this property, we are armed, you don't want to
mess with us. And they essentially are successful in that assignment.
That property is undamaged that evening. There comes a time though,
when the police use armored personnel carriers, Bear Cats, and other
armored vehicles to push all of the citizens that are out on the streets
south of that location. The police establish a barrier at 60th and Sheraton
and essentially everyone has moved south of that and can't get back to
59th. So this Car Source location, we've now successfully protected and
everyone's gone. So there's no one to threaten this building anymore.
However, prior to the police establishing that cordon line at 60th, the
Chirafisi: So, I was unaware that Mr. Rittenhouse actually called the authorities on
the August 10 date. And I do think that further supports the idea that that
evidence would not be admissible. And the reason I say that is the state's
Judge Schroeder: I'm not clear, listening to Mr. Binger, whether he was just disagreeing with
the statement that the accused was moving towards putting the fire out or
whether he just said he should have gone home. [To ADA Binger:] Are
you claiming that he was not attempting to use the extinguisher to put out
the fire or intending to do so?
ADA Binger: Yes. I am saying is that in the circumstances before the ultimate
confrontation between the defendant and Mr. Rosenbaum, that Mr.
Rittenhouse was pursuing Mr. Rosenbaum, Mr. Rosenbaum had not in
fact done anything. They hadn't even gotten to the 63rd and Sheraton
Foad car source location. Mr. Rittenhouse had a fire extinguisher. He
was carrying it along pursuing Mr. Rosenbaum. And I believe that he was
assuming--
Judge Schroeder: Wait a minute, wait a minute. Wait a minute. I thought I heard the first
version by the defense was that Mr. Rosenbaum was pursuing the
accused, and that the accused had the fire extinguisher. What is it?
ADA Binger: That that is actually not. And I'll submit that Mr. Richards is right, he
hasn't seen what I'm referring to, although he's got access to it. But on
this particular evening, the FBI had a fixed wing aircraft hovering above
Kenosha. We have the footage from that. Counsel can obtain it from joint
services, I emailed counsel a few weeks ago and let them know about it.
ADA Binger: It shows—no, I can pull up the email, Mark, I emailed you several weeks
ago and let you know about it. The video is an infrared video. And what it
shows –
Judge Schroeder: But I mean, when was, when were you notified that it's available?
Wisco: September 3, Your Honor. And this was also emailed to me directly I was
out of the office.
ADA Binger: What that footage shows, and it's an infrared video because this is
nighttime, so infrared is the best way to capture what's going on. What it
shows is Mr. Rosenbaum running south towards the 63rd street Car
Source location. Behind him pProbably 20 to 30 feet is the defendant. Mr.
Rosenbaum, upon reaching that location immediately runs near a parked
car. Mr. Rittenhouse follows him, runs to the other side of that parked car
and appears to turn and confront Mr. Rosenbaum. I will note that where
Mr. Rittenhouse stops near that parked car is exactly where that fire
extinguisher is later found. Okay, so Mr. Rosenbaum hadn't even gotten
to that car source yet. Hadn’t had the opportunity to do anything, hadn't
done any fires got a property damage did nothing. Mr. Rittenhouse is
following him with the fire extinguisher probably because he thinks Mr.
Rosenbaum’s going to do something. But Mr. Rosenbaum never does.
What happens is when they arrive at the Car Source location, Mr.
Rittenhouse turns and confronts Mr. Rosenbaum from across this parked
car, says something to him. Of course we can't see, it’s a video from an
Judge Schroeder: Okay. And you said that the Mr. Rosenbaum, then circled the car. And
then the chase began and who's chasing whom?
ADA Binger: Athat point, then Mr. Rosenbaum goes around behind the car starts to
chase Mr. Rittenhouse. They run into the street briefly then cut across the
car source parking lot. It's at that point that Mr. Rosenbaum throws that
plastic bag towards Mr. Rittenhouse. They then run in between some
parked cars and Mr. Rittenhouse shoots and kills Mr. Rosenbaum.
Judge Schroeder: Well, the I still think there are two dissimilar incidents. I think that I don't
think that they're going to be helpful for the jury and deciding whether the
actions of the accused constitute unlawful self-defense. The events are
so totally dissimilar, and it comes down to propensity evidence to show
that he's, he's a violent vigilante, and he's going to act in accordance with
what a violent vigilante will do, and the incidents are so dissimilar, it
seems to me that, but on this one, I think I'm going to withhold a final
ADA Binger: You're right. I have not. I didn't. The issue has come up. And I have
responded in the Dominick Black case, which is the identical legal issue,
and I filed with the court of brief in that case, but essentially, the law is
clear that there's a blanket prohibition on possession of a firearm by
anyone, anyone under the age of 18. There are exceptions to that. And
those exceptions are very narow, they do not apply to this case. And I
think really what the defense motion is arguing is that somehow it's the
state's burden to disprove that those exceptions apply. I disagree with
that. I think those exceptions are essentially affirmative defenses. If the
defense and the only one we're talking about here is these hunting
statutes, which are 29, Wisconsin statutes section 29.304 and 29.593.
There is no evidence in any way, shape or form, the defendant was in
compliance with those. This is not a situation where a 16-year-old was
out deer hunting with his father, for example, which is what those
exceptions are intended to cover. So there's, like I said, a blanket
prohibition, that a minor may not possess a firearm like this. And that's,
that's really the end of the court’s inquiry, as far as I'm concerned.
Judge Schroeder: [To the defense:] No, I'm not going to take further argument. I want to
read his brief first.
Judge Schroeder: Okay, next issue is it would be my inclination to have the voir dire
conducted. I was originally thinking 80 to 100 potential jurors. And I was
talking with another judge the other day and mentioned that and he's, he
seemed alarmed. And I think well, you know, I don't want to shave too
closely. So I maybe we'll bring in more, maybe I'll bring in 150. I'm not
committing to that. But there'll be a large number, larger than could be
accommodated in this room. We obviously need to save some seating in
the room for the families of those whose lives were lost and for the
injured party. And for the family of the accused. And some additional
sitting and then the court personnel and security and the like. So I'm
going to go into I guess to me, we can we say we've sat in here at
maximum, I thought it was 95 or something. Yeah, so 60 maybe we can
get jurors in here. So my inclination would be if there's no objection is to
have the voir dire conducted in the normal way here in the courtroom.
With the numbers over I would probably pick maybe four to six additional
jurors and then have Well, we have about 60 to work with maybe, maybe
we can get as high as 70 or 80. We work with those here in the
Richards: I don't have a problem with it is, would there be a bailiff or somebody
monitoring?
Judge Schroeder: Oh, sure. Yeah, they'll believe there'll be plenty of precautions to make
sure there aren't any problems. But yeah, okay, that that was, I don't
think there's actually a right to have it done all in one room. But I wanted
to clear up with you folks, anyway. The other thing is, I looked at your jury
and your proposal questionnaires, which were very good. There were
certainly some areas that I did not want to embrace. And I will also tell
you that, I suspect, due to my age, and my longevity, longevity, that I
maybe have tried more murder cases than anyone in the state. And I've
never used a jury questionnaire that I can recall before. And if I did, it was
only in a moment of weakness. There are a variety of reasons I'm not
crazy about submitting a jury questionnaire. First off, I will tell you that
when I do the voir dire, and I do have fairly restrictive views about what's
admissible questions. There were some, for example, asking people
about support for political groups or protest groups or whatever, that I, I
would probably consider off limits, in spite of the fact that there, there is
ADA Binger: Your Honor, I think the parties are in agreement that of questionnaires is
necessary. In this case, I don't want to speak for counsel, but I know they
submitted their own questionnaire. And I know that we discussed this at a
prior hearing. And I think we both take the position that it was appropriate
and the court had invited us to submit them. So I thought we kind of dealt
with this already, but I will address it again. I respect the court's
experience in trying homicide cases. And we're aware of that. I think we
can all acknowledge that this is one of the highest profile cases in
Kenosha history. It is one that the events of these nights affected our
community in a widespread impact, independent of anything that affected
you know, the shooting of Jacob Blake and the subsequent nights,
protests and riots and property destruction had affected a huge swath of
our community. And so there's, there's not going to be a lot of people out
there that haven't heard about it and haven't formed some impressions
one way or the other, about what happened to Jacob Blake, about what
happened into our community about the various political or philosophical
movements that showed up here in response to all of that. It's probably
oversimplifying it to say that most people fall on one side or the other of
the spectrum. But certainly a large percentage of our population feels
strongly one way or the other. There are clearly some that are not
invested or don't have an opinion or whatever the case may be. But I
think it's fair to say that this is an issue that is a polarizing one, these
events and crystallized around the defendant. There are some portion of
the population that for the way they see the world, his actions fit, and are
Chirafisi: So I just, one of my last trials, we use jury questionnaires is what Mr.
Binger’s right. It's helpful to the lawyers and I agree with him on getting
the by the way. What it was, though, was enormously helpful to the court.
And the reason it was helpful to the court was everybody had heard
about that case, like everybody will have heard about this case. And the
people with the strong positions on the case, have provided that to you
and to the parties in writing. And what they weren't able to do was poison
the entire panel by saying, I've heard about the case, I think, X or Y about
this case. So people who had strong opinions, we were we were aware of
it ahead of time. The judge was able to if if she needed to, in that case to
Judge Schroeder: All right, well, let me take a look at it. I give you my thoughts. I've heard
what you have to see and I don’t want to grab control of the case away
from you guys. Let me think about it. Now. I'll make a decision by Monday
or Tuesday. And then if that's done, then you'll get a composite of what I
think are acceptable questions. So there's some that I'm not even going
to go into right now. We can discuss later if you feel that you disagree
with the decisions I make. Anything else today,
ADA Bringer: Judge with regard to the Daubert motion, the witnesses that are
proposed as experts could make it by Zoom?
[END]