It’s been a tough time so far in the Kyle Rittenhouse trial…for the prosecution.
As we noted, the prosecution lost in an early ruling that they could not refer to the people shot by Rittenhouse as “victims” because the Rittenhouse team was arguing self-defense and that could be prejudicial to their case.
During the lead prosecutor Thomas Binger’s opening statement, he claimed that Joseph Rosenbaum — one of the people that Rittenhouse shot — was being chased by Rittenhouse into the parking lot before the shooting. But the videos show that immediately before the shooting it was Rosenbaum chasing Rittenhouse.
But yesterday the prosecution might have just might have put a stake through the heart of their case. Now granted, it’s a tough case, to begin with — with all the facts indicating self-defense.
Binger was trying to get the Daily Caller’s Richie McGinniss to say that Rosenbaum was already falling to the ground when he was shot. Keep in mind — McGinniss is supposed to be the prosecution’s witness. McGinniss said that wasn’t his testimony, maintaining that Rosenbaum was “lunging” at Rittenhouse.
This is how weak their case is — their own witnesses are providing golden evidence that helps the defense. Binger should have stopped with that embarrassment. But he didn’t. He then did the one thing that lawyers are taught never to do — never ask a question to which you don’t know the answer.
Binger kept pressing McGinniss on how could he know anything about what Rosenbaum was thinking in the encounter with Rittenhouse. “So your interpretation of what he [Rosenbaum] was trying to do, what he was intending to do, or anything along those line, is complete guesswork?”
McGinnis looked at the prosecutor as though he was out of his mind and replied, “Well, he [Rosenbaum] said ‘fuck you’ and then he reached for the weapon.”
Oh, my. If the prosecutor was trying to help the defense, he couldn’t have done any better. You can actually hear Rosenbaum shout that on the video right before the shot, confirming McGinniss’ testimony at about 1:48 of this video.
But Binger kept digging that hole deeper.
Binger put on another eyewitness to the events that night, Ryan Balch. Balch testified that Rosenbaum threatened both him and Kyle Rittenhouse.
Balch recounted what happened with Rosenbaum, “He said, ‘If I catch you guys alone tonight I’m gonna f–king kill you.’” Balch said that Rosenbaum had been acting in a violent manner and had been trying to set dumpsters on fire.
That demonstrated the threat from Rosenbaum, another assist to the defense.
Now, of course, the problem here with which Binger is faced is that this is, in fact, a case of self-defense, so that’s just what the facts are and you can’t get around it. But talk about just blowing up your own case. It almost makes one wonder if Binger wants to lose.
How to fillet your own case in two quick videos — Binger just put on a case study.
What’s the “Law and Order” effect? It’s people believing that “Law and Order” is real. Judges don’t impanel a jury a week after a body is cold. Lawyers don’t stand inches from a witness box with their backs to a jury.
Evidence takes months to marshal and prepare for trial. A trial lawyer needs to rehearse his presentation, not just opening statements and closing arguments, but how one will examine a witness, how and when to use exhibits, and most importantly what questions to ask a witness.
I haven’t watched much of the Kyle Rittenhouse murder trial, but I’ve seen the prosecutor before. I don’t mean I’ve seen this prosecutor; I mean I’ve seen this guy to the right or left of me at trial.
Assistant District Attorney Thomas Binger’s opening statement sounded more like a closing argument and I think, could be turned on its head by the defense. Binger claimed that Rittenhouse wasn’t pursued by Rosenbaum — rather, Rittenhouse was the pursuer. That’s a significant claim. In an opening statement, you’re supposed to address what the evidence will show. If Rittenhouse was the pursuer that would justify filing murder charges. But, he wasn’t a pursuer. None of the video supports that – in fact, just the opposite.
Secondly, he used a line that I think was pretty effective rhetoric, if there isn’t a way to turn it around. He said Kyle Rittenhouse acted like a moth “to a flame” and was “drawn to the chaos” in Kenosha last year when he needlessly gunned down two people.”
If I were at the defense table, I would have highlighted that line. At closing, I’d turn it against the prosecution. The two men Rittenhouse killed were definitely drawn to a fire in the most literal sense. Kenosha burned, and Huber and Rosenbaum were drawn to a burning city. So, too, were they drawn to Kyle Rittenhouse. Rittenhouse fled, and they pursued him, not like a bug to a flame, but like a predator to prey. They were intent on murder. They wanted to kill Kyle Rittenhouse.
Binger called two witnesses who were not friendly to his side.
I watched the testimony of journalist Richie McGinniss. McGinnis had filmed the confrontation. He had spoken with and interviewed Rittenhouse before matters escalated. McGinnis saw Rosenbaum attempt to grab Rittenhouse’s AR-15.
But it was in Binger’s follow-up question, I think, where Binger was thinking he’s on “Law and Order.” He asked, You really don’t “know” what Rosenbaum was “thinking,” do you?
Oops.
McGinniss paused and calmly said:
“Well, he said ‘f— you’ and then he reached for the weapon.”
Oops.
Never ask a question you don’t know the answer to, and don’t ask it so there is an opening to add something. He should not have asked that question, but If Binger wasn’t playing to a camera, he could have prefaced with: “Yes or No, sir…”.
Here, Binger was a bug drawn to a fire. The fire was the camera. Binger thought his witness would just say “No,” and Binger could turn to the camera and the jury, and parade back the prosecutor’s table. But real trials aren’t TV. The script isn’t always followed.
The prosecutor asked his own witness, a witness who clearly wasn’t going to follow a Perry Mason script, a question that could have been answered with a “No.” But that witness added some color to it. The cat, as they say, was out of the bag.
Trials are supposed to turn on facts, evidence, and the law. But — some inside baseball — that’s not always the case. Rittenhouse seems to have a solid argument for self-defense, but this is televised and the prosecutor is acting for the cameras. A jury in politically charged times might find Rittenhouse not guilty on the facts; sometimes you can’t tell what motivates a jury.
You just never know what the jury will do. Once, I was at the defense table when we broke trial early. Our judge had to leave for a doctor’s appointment. One of my colleagues playfully asked the plaintiff’s lawyer if he going to call for a tee time (golf). The lawyer turned to us and said calling ahead was “for the unwashed masses.”
We didn’t know if he was kidding. It didn’t matter. The problem was the jury had yet to completely exit. We knew then that he had just burned any chance of winning.
Never say anything in front of the jury, or ask a question of a witness, that you don’t want them to consider in the jury room. I think it’s possible Binger blew his case yesterday by breaking that rule.