Kyle Rittenhouse, 18, is on trial for the murder of a man at a Black Lives Matter riot in Kenosha, Wisconsin in August of 2020. He claims self-defense, but the prosecution argues that he intentionally and recklessly killed a man and injured another.
00:00:00.440Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.
00:00:11.880Welcome to The Megyn Kelly Show. I'm Megyn Kelly. What a day we have for you.
00:00:16.560The jury is now deliberating the case of Kyle Rittenhouse, a now 18-year-old man accused of intentionally murdering one man,
00:00:23.700attempting to murder another, recklessly killing a third man, and endangering two others.
00:00:31.000This happened at a Black Lives Matter riot in Kenosha, Wisconsin, in August of 2020.
00:00:37.280The defense does not dispute that Rittenhouse shot and killed two men that night and shot and injured another.
00:00:42.300Instead, it claims it was done in self-defense, which, if true, would entirely exonerate Kyle Rittenhouse and require an acquittal.
00:00:49.440When a defendant asserts a colorable claim of self-defense in Wisconsin, the burden is on the prosecution.
00:00:55.700To disprove it, not on the defense to prove it, beyond a reasonable doubt.
00:01:00.820A self-defense claim requires four questions to be answered by the jury.
00:01:04.140One, was Rittenhouse here facing an unlawful, forcible attack against him?
00:01:09.480Two, was that attack imminent, meaning in progress or about to occur?
00:01:12.980Three, was his response proportional, meaning was the defendant, he, Rittenhouse, facing great bodily harm or death?
00:01:18.940In other words, you can't shoot somebody who's coming at you with a toothpick.
00:01:22.220And four, was the defendant's response reasonable, knowing him and all of his background, as well as reasonable in the eyes of an objective observer?
00:01:32.260Here, the assistant district attorney, Thomas Binger, challenged each of these elements.
00:01:36.760For example, he's arguing that in the case of the first man shot, this is very, very important, the first incident,
00:01:41.740Joseph Rosenbaum, that Kyle Rittenhouse was not facing an imminent, unlawful, deadly attack.
00:01:48.960That Rosenbaum was chasing Kyle Rittenhouse, but Rosenbaum had no gun.
00:01:55.780That Rittenhouse, as the ADA put it, brought a knife to a fistfight.
00:02:00.580And that Rosenbaum was not lunging for Rittenhouse's gun.
00:02:04.840The only way that you could possibly justify the murder of Joseph Rosenbaum is if you believe that Joseph Rosenbaum was actually reaching for the defendant's gun.
00:02:19.400And that a reasonable person in the defendant's position, with that AR-15 strapped tightly to his chest, would think that Joseph Rosenbaum was even capable of taking that gun away as he's falling to the ground with a fractured right pelvis.
00:02:38.160And then, not only all that, you'd also have to believe that Joseph Rosenbaum was going to turn that gun around and use it to kill the defendant.
00:02:50.200You have to believe all of those things to justify the murder of Joseph Rosenbaum.
00:02:57.600Binger argues that once Rittenhouse shot Rosenbaum, Rittenhouse then became an active shooter in the eyes of the mob.
00:03:07.260And that everyone who attacked him after that had the right to do so, since they all believed Rittenhouse was a threat, all of which the defense disputes.
00:03:16.800They say Rittenhouse ran toward police.
00:03:19.480This is the defense countering that Rittenhouse ran toward police after he shot Rosenbaum.
00:03:23.660That Rittenhouse could have shot many other people after shooting Rosenbaum if he were really an active shooter.
00:03:30.780And that he clearly was not on some active killing spree.
00:03:33.620That Rittenhouse only shot the next two men, Anthony Huber and Gage Grosskreutz, when they attacked Rittenhouse.
00:03:40.660And those attacks are on camera and are rather clear.
00:03:45.720The problem for the prosecution is that even if we assume those later two guys, Huber and Grosskreutz, in attacking Rittenhouse genuinely believed, as the ADA claims,
00:03:54.280that Rittenhouse was an active shooter who needed to be stopped, that would not eliminate Rittenhouse's right to self-defense.
00:04:04.860It's Rittenhouse's state of mind that matters, not that of the men he shot.
00:04:11.000Did he or did he not reasonably believe that these men were trying to kill him?
00:04:16.160The ADA knows that he's going to lose on the self-defense elements, I think.
00:04:22.100So his argument has shifted since the start of this trial.
00:04:25.580Now he's focused mainly, not entirely, but mainly on convincing the jury that Rittenhouse can't really even claim self-defense because he's the one who provoked this entire thing.
00:04:35.860Provocation, as we discussed last week, can indeed eliminate one's right to claim self-defense, but only in two circumstances.
00:04:46.160One, where the defendant intentionally tries to provoke an attack on himself because he wants to murder the person he's provoking.
00:04:56.360Or two, the defendant engages in an illegal act that is reasonably likely to provoke violence.
00:05:04.280That's what Binger seems to be arguing, that Kyle Rittenhouse broke the law in a way that was reasonably likely to provoke violence and thus loses the ability to claim self-defense.
00:05:14.500By the way, you still can claim self-defense, even in that circumstance, if what happens to you is an attack on your life.
00:05:22.160Binger realized late in the trial he was going to need this argument provocation once he likely realized that Rittenhouse had made the elements of self-defense or rather that he, Binger, had failed to disprove each element of self-defense.
00:05:37.000And the defense counsel, in his closing argument, pointed all of this out to the jury.
00:05:41.360Think back to back on November 2nd, when this case started, did you hear one word out of Mr. Binger's mouth about provocation?
00:05:54.680You didn't, because it was never said.
00:05:57.540But when his case explodes in his face, now he comes out with provocation.
00:06:03.240Okay, so the ADA has got to prove then, to prove provocation, which takes away self-defense, that Kyle Rittenhouse provoked this thing.
00:06:29.680That Kyle Rittenhouse engaged in illegal conduct that was reasonably likely to provoke violence against him.
00:06:36.240Initially, Binger claimed that Kyle's illegal conduct was that he had a rifle at age 17.
00:06:42.980And now the alleged illegal behavior, likely to provoke violence, appears to be Rittenhouse's alleged behavior, alleged, of pointing his AR-15 just before all of the mayhem
00:06:56.540at a guy named Joshua Zeminski, who was either connected to, a friend of, or just near Joseph Rosenbaum, the first man shot.
00:07:09.680He denies that he pointed his gun at Zeminski, Rosenbaum, or anybody else, until the moment that was, you know, that led to Rosenbaum's death.
00:07:17.780But the prosecutor says he's got the moment where Rittenhouse pointed the gun at this guy, Zeminski, on tape.
00:07:23.940In a last-minute addition to the prosecution's case, the ADA introduced drone video showing this alleged big, big moment.
00:07:32.380But the video and the screen grab allegedly showing this moment of the pointing of the gun is incredibly sketchy.
00:08:14.480The defense pointed out in their closing argument that firing a right-handed gun from one's left shoulder would result in the shell casings coming out into the shooter's own eye.
00:08:27.820The prosecutor nonetheless argues this is Kyle Rittenhouse pointing his rifle at Zeminski before everything got underway.
00:08:34.460That Zeminski and Rosenbaum would then run after Kyle Rittenhouse.
00:08:39.520Again, both sides are kind of disputing whether Zeminski and Rosenbaum are tight or not tight or know each other, don't know each other, but at least we're near each other.
00:08:47.840And these two run after Kyle Rittenhouse, who takes off.
00:08:50.300The ADA argues essentially that Rosenbaum chased Rittenhouse because Rittenhouse asked for it.
00:08:56.440Kyle Rittenhouse says Rosenbaum was a threat to him that night.
00:09:00.460Both Kyle Rittenhouse and another witness testified that Rosenbaum, again, the first man shot, threatened Rittenhouse earlier that night saying he, Rosenbaum, would kill Kyle Rittenhouse if he got him alone.
00:09:13.720The prosecutor says it's not on tape and that it's a lie that Kyle came up with later to protect his rear end.
00:09:21.200After Kyle Rittenhouse allegedly pointed that gun at Zeminski, right, as allegedly this blurry shot shows, who's near Rosenbaum, that's when the two of them chase Kyle.
00:09:32.320And during that chase, Zeminski fires a gun into the air.
00:09:36.560After Kyle Rittenhouse turns and Rosenbaum, rather than retreating, remember, he's right behind Kyle at this point.
00:09:46.400Rosenbaum's right there with his AR-15.
00:09:48.820And rather than retreating, Rosenbaum throws a bag at Kyle Rittenhouse and lunges at him and his gun.
00:09:58.100Rittenhouse then shoots Rosenbaum four times.
00:10:00.800The prosecutor takes issue with the four shots.
00:10:02.860And he says Rosenbaum posed no threat, that there was not only not an imminent threat to Kyle's life, but that there was no threat, that that Rosenbaum was unarmed, that he was incapacitated after the first shot.
00:10:16.460And that Rittenhouse should have stopped right there after he had injured Rosenbaum's pelvis.
00:10:23.200And that from that point forward, says the ADA, Rittenhouse was, quote, an active shooter.
00:10:44.800He lit a metal garbage dumpster on fire.
00:10:49.000Oh, and there's this empty wooden flatbed trailer that they pulled out in the middle of the road and they tipped it over to stop some bearcats and they lit it on fire.
00:11:27.020That he he posed no real threat to Kyle Rittenhouse.
00:11:31.840Now, the defense, the defense says they've got it all wrong.
00:11:35.800So Rosenbaum, who we know, we the jury doesn't know this because the judge excluded it, but we know Rosenbaum was a convicted child molester.
00:11:43.920I mean, bad stuff, convicted of raping young boys between the ages of five and 11.
00:11:49.600Bad guy just got out of a mental institution, was off his meds, was looking for trouble.
00:11:57.140The defense was allowed to say there's plenty of evidence admitted that he was no angel on that particular night, but none of the bad criminal stuff.
00:12:05.800Came in the defense, nonetheless, tried to make the case to the jury that Rosenbaum had been suspiciously behaving all evening.
00:12:39.620And my client had to deal with him that night alone.
00:12:45.040Kyle shot Joseph Rosenbaum to stop a threat to his person.
00:12:50.020And I'm glad he shot him because if Joseph Rosenbaum had got that gun, I don't for a minute believe he wouldn't have used it against somebody else.
00:13:01.420From that point forward, the ADA's case is pretty much that those who advanced on Kyle Rittenhouse were trying to stop a murderer who was endangering their lives and the lives of others.
00:13:11.220He has to claim that because Anthony Huber, the man who attacked Kyle Rittenhouse with a skateboard, is on tape doing that.
00:13:19.740And he reached for Kyle Rittenhouse's gun.
00:13:21.840It's clear self-defense by Kyle Rittenhouse unless he provoked it.
00:14:18.720Just to clarify, what the D.A. is saying to the jury in his closing yesterday is Grosskreutz didn't point the gun at Kyle until after Kyle shot him in the arm and that he didn't mean to point the gun in that moment because it was just that his bicep had been shot off and his arm was dangling and it was an involuntary motion forward.
00:14:39.220OK, after he'd been shot there, you heard Gabe Gage Grosskreutz contradicting that saying he wasn't shot.
00:14:48.720Until he pointed pointed his own gun at Kyle Rittenhouse, who was on the ground.
00:14:54.480OK, so the ADA's closing is completely belied by the testimony of the star witness about whom he's speaking to the jury.
00:15:04.880Look, the bottom line, in my view, is that the ADA cannot get passed a very viable claim of self-defense by Rittenhouse.
00:15:10.660His one point on provocation, you know, that Kyle set the whole thing off by pointing his gun at these guys early on, is a blurry, grainy video that shows virtually nothing.
00:15:21.320All three of these alleged victims are on tape attacking Kyle Rittenhouse.
00:15:26.380They're on tape attacking him, initiating the attacks.
00:15:30.020And Rittenhouse has every right to defend himself, and he's not required to hold back if he reasonably felt that his life was in danger.
00:15:38.760Rittenhouse has been demonized from the beginning of this case by the ADA and by the press because, I believe, of his original sin, showing up at a Black Lives Matter riot with an AR-15 and clearly not on the side of the rioters.
00:15:52.000The defense summed up the matter as follows.
00:15:54.360Ladies and gentlemen, this is a political case.
00:16:00.200We can take politics out of it as in Democrat and Republican, but the district attorney's office is marching forward with this case because they need somebody to be responsible.
00:16:13.660They need somebody to put and say, we did it.
00:16:17.940He's the person who brought terror to Kenosha.
00:16:21.180Kyle Rittenhouse is not that individual.
00:16:24.360The rioters, the demonstrators who turned into rioters, those are the individuals who bring us forth.
00:16:53.880And now the jury, if they acquit, will have to worry about their safety, the safety of their city, and a lifetime of judgment for being the only ones courageous enough to say this kid did not break the law.
00:17:05.560Joining me now, Robert Barnes, founding attorney of Barnes Law and Kyle Rittenhouse's former civil attorney, as well as state attorney for Palm Beach County, Dave Ehrenberg.
00:17:16.760Thank you both so much for being here.
00:17:34.000And then, as we always do, the prosecution gets the last bite of the apple because they have the burden of proof.
00:17:38.080And they got the first and last word in front of the jury.
00:17:40.180I thought the rebuttal case, which we didn't show clips of here, was pretty darn strong.
00:17:45.180And I think the defense might be a little worried because the rebuttal case was strong.
00:17:50.920My own take is that ultimately, when you have to resort to arguments like Kyle should have taken a beating, then you lost.
00:17:58.740And that was the argument that the person I call Sour Kraus, Sour Kraus made in his in his rebuttal.
00:18:04.940And so I think that in the end, they did not have the facts to support their arguments.
00:18:09.440They came up with a desperate Hail Mary at the end of trying to argue provocation where provocation just did not happen here.
00:18:16.180And they ended up making other arguments and just saying Kyle shouldn't have been there at all.
00:18:20.620And that somehow it was a crime for him to have been there at all.
00:18:23.760And especially once the curfew charge was thrown out and the gun charge was thrown out,
00:18:28.540their entire basis of arguing that Kyle had done anything unlawfully to be there that night were gone.
00:18:33.160And so they were stuck with trying to argue what happened in the moment.
00:18:36.980And what happened in the moment is, as you note clear on video, Kyle only shot when he had to,
00:18:42.660when he was at imminent risk of great bodily harm in each of the occasions that he shot and showed extraordinary discipline.
00:18:50.220And then he didn't react to a bunch of other people.
00:18:52.500People hit him in the back of the head that he didn't shoot at.
00:18:54.720People were threatening him that he didn't shoot at.
00:18:56.500People were yelling, craning him the boy that he didn't shoot at.
00:18:59.560He only shot at people as they were attacking him, as the most momentous event during the entire trial revealed when Grosskreutz on the stand said,
00:19:09.480yeah, he didn't shoot me until I pointed my gun at him.
00:19:39.840But the difference here, I think, is that you've got the provocation instruction.
00:19:44.760And I think that could be a game changer because otherwise I don't see how they could have gotten a conviction on the counts involving Grosskreutz and Huber.
00:19:54.240I still think even without the provocation instruction, there's a legitimate shot they can get the conviction on the count related to Rosenbaum because he was unarmed.
00:20:02.320And the video, at least the one I saw, looked like he was not grabbing for the gun.
00:20:07.160And, yeah, he may have may have made some threats and he threw the plastic bag at the defendant.
00:20:12.780But is that is that warrant getting shot four times by an AR-15?
00:20:17.980So I think you're right in that the testimony that came out, especially when they put their key witness on the stand, Grosskreutz, was not what the prosecutors wanted.
00:20:26.040In fact, Grosskreutz seemed to buy into the defense's theory of the case that Rittenhouse was attacked and he worried about Rittenhouse's safety.
00:20:35.760But when it comes to the others, when it comes to Rosenbaum, I think that's where the prosecution probably is the strongest case.
00:20:42.500And if the jury agrees with provocation, then they could possibly get a conviction relating to Huber.
00:20:47.760Last point is this. I still think the weakest one is the Grosskreutz shooting for the reasons you mentioned.
00:20:54.220Grosskreutz had a gun and his own words on the stand contradict the prosecutor's comments in his closing.
00:21:00.940Yeah, it was crazy how the prosecutor, Binger, it just ignored that.
00:21:05.320He ignored that critical moment and sort of said, no, he you know, he only shot Grosskreutz or Grosskreutz only pointed the gun at him after he'd been shot.
00:21:14.040It was an involuntary motion forward because his bicep had been shot up.
00:21:18.440Meanwhile, his witness had already given up the farm. I mean, it was too late for that.
00:21:21.880The jury. I was surprised the defense didn't make more out of that.
00:21:25.560I mean, I would have gotten up there and said he just lied to you.
00:21:28.180I mean, explicitly, you heard you heard Grosskreutz on the stand and now he's trying to clean it up.
00:21:33.420And what else is he lying to you about? Right. I mean, anyway.
00:21:35.760OK, we're going to leave it there for one second, squeeze in a quick break.
00:21:38.620And then I want to pick it up with Rosenbaum, because I really think this is the this is the linchpin.
00:21:43.820If they don't think that Kyle Rittenhouse had the right to shoot Rosenbaum, it could definitely go south for him on the other two because of this provocation argument.
00:21:51.820So let's take a closer look at Rosenbaum. We'll do that right after this break.
00:21:55.240Don't go away with more with Robert and Dave in one second.
00:21:57.780So let's let's focus on the first man shot, because I do think the other two are easier in a way.
00:22:12.420Rosenbaum is the first man Kyle shot and he's the he's not a good man.
00:22:17.680This was not a good man. He was causing trouble all night and chased Kyle.
00:22:24.940That much we know there. It's disputed why he chased Kyle.
00:22:28.800The prosecutor's arguing it's because Kyle pointed his gun at Rosenbaum's buddy or just somebody near Rosenbaum.
00:22:35.200In any event, Rosenbaum comes to approach Kyle. Rosenbaum, it is undisputed, was unarmed.
00:22:41.900And this is what the prosecution is now seizing on.
00:22:45.260They're basically suggesting you can't shoot somebody who's unarmed.
00:22:49.280Here's I mentioned James Krause. He did the rebuttal for the prosecution, which I thought was probably the strongest of the three arguments.
00:23:20.120Robert, can you speak to that argument?
00:23:24.540I found it an insane argument to say that you're supposed to engage in fist fights now, to welcome fist fights, supposed to put your gun down and engage in a fist fight and see what happens.
00:23:33.220I mean, Binger actually, in his part of closing, actually said that nobody had ever died from from an unarmed person.
00:23:39.580Well, we've got a couple of centuries of history that say otherwise.
00:23:42.940So the I find that argument about he's supposed to take a beating.
00:23:46.600He's supposed to put the gun down and just get into a fist fight with someone that that is the solution.
00:23:52.240And it's not one required under Wisconsin law.
00:23:54.820If you fear great bodily harm, you're entitled to use deadly force.
00:23:59.440And Kyle explained in detail and the video shows in detail and Richie McGinnis, most probably the best witness on the Rosenbaum case for the defense was the state's own witness, Richie McGinnis, who when he was getting hammered on cross-examination or direct examination, redirect by Binger.
00:24:15.080And Binger said, you have no idea what Rosenbaum was thinking.
00:24:17.860McGinnis famously said, well, I know he said F you and then lunged for the gun.
00:24:22.580And that's as good a defense for Kyle as you can possibly get, because here you have a so-called complaining witness, reckless endangerment charge concerning Richie McGinnis, saying that the same thing that Kyle was saying, that this person was yelling at him, screaming at him.
00:24:36.740I think he called it a blood curling scream right at the time he lunged for the gun.
00:24:40.680If that isn't self-defense, then we don't have self-defense in America.
00:24:43.300Mm hmm. And not only that, but this other guy, Ryan Balch, testified that Rosenbaum, the guy who got shot, did threaten Kyle Rittenhouse earlier in the evening.
00:24:53.280If I get you alone, I'm going to kill you. Here's that soundbite, too.
00:24:57.740And he goes, you know, if I catch any of you guys alone tonight, I'm going to fucking kill you.
00:25:04.440Did he say that to the defendant as well? The defendant was there. So, yes.
00:25:08.600Oh, Mr. Binger, I mean, that's the prosecution bringing out that evidence, which is not good for his side.
00:25:16.740So now the prosecutor is claiming that isn't true, but that's that's the evidence the jury heard.
00:25:21.860So let me ask you, Dave, because I understand if it's two guys, you know, if you're unarmed and the other guy's unarmed and he comes over and starts beating you, you should fight back with your fists.
00:25:30.280But if you've got a gun and a guy comes over and threatens you and reaches for your gun, I don't think the law considers him unarmed.
00:25:38.440I think the the person who has the gun initially is allowed to factor that gun going to the other person in to the equation and deciding what kind of force to use to respond with.
00:26:22.880And so that's going to be the defense argument is like, hey, he shot enough to neutralize the threat.
00:26:27.840Whereas the prosecution saying, well, you know, he started to make it a little more of a of a thinking process that the shots were not in as rapid fire as you would think that he could have stopped after one shot.
00:26:39.260But he shot four times to kill a guy who was unarmed and who threw a plastic bag at him.
00:26:45.040And the other thing about lunging video I saw showed that there was distance.
00:26:48.960And that's what the prosecution focused on.
00:26:50.580There was enough distance between the defendant and Rosenbaum so that when Rosenbaum was shot, he was not next to Rittenhouse.
00:26:58.080There was enough distance where he couldn't have grabbed for the gun.
00:27:01.100And as he's falling after he'd been shot, that's when it looks like he lunged for the gun.
00:27:05.800And as far as the witnesses saying, hey, this guy was saying, I'm going to kill you and stuff.
00:27:25.460Let me ask you, is that the question, whether he was, quote, a legitimate threat to Kyle's life?
00:27:29.940Or is it more whether Kyle reasonably, given who Kyle is and his experiences, whether he reasonably believed that his life was in danger and whether an objectively reasonable person could understate, could also see that?
00:27:44.300Well, you look through the eyes of Kyle Rittenhouse, but you also have to look through the prism of reasonableness.
00:27:48.600So when I say legitimate, what I'm saying is that it's not just subjective on Kyle's part.
00:27:53.180You have to look at the reasonableness of it.
00:27:55.320Was it reasonable for Kyle to think that Rosenbaum, an unarmed man who threw a plastic bag at him, was going to take his gun away and then use it against him?
00:28:05.240Well, the gun was strapped to Kyle Rittenhouse.
00:28:07.640Rosenbaum wasn't right next to Rittenhouse to take the gun away.
00:28:11.720And he shot him four times to kill him.
00:28:13.940So that's what the jury is going to have to consider.
00:28:16.820Robert, it's funny because when I listen to the ADA's closing, he made it sound like this is just a lovely evening at the lounge.
00:28:22.900You know, we're like Kyle Rittenhouse got to sit back and it was like, maybe I'll fire a shot.
00:28:26.820Maybe not. Maybe I'll fire a second one. Let me think about it.
00:28:29.380Should I fire a second shot? Oh, I think that I've injured his pelvis.
00:28:32.660I guess I'm good now. No, I'm going to do it anyway.
00:28:35.180I mean, it happened in less than seconds.
00:29:41.660Then it escalates into attempted big arsons.
00:29:44.480And the ultimate goal was it was going to escalate into killing Kyle Rittenhouse.
00:29:48.240Because what happens is he's walking down there.
00:29:50.360And as there was testimony from the state's own witnesses, where Rosenbaum was, he was right behind two cars waiting for Rittenhouse to come by.
00:31:04.180He yells F you and lunges for the gun, according to Richie McGinnis' independent testimony, who is live and can see it live.
00:31:10.960We don't have to rely on drone footage from miles away.
00:31:13.720We have Richie McGinnis seeing it live in live time.
00:31:15.780And that is compelling evidence that he gave three opportunities for Rosenbaum to withdraw.
00:31:21.100He gave notice and had himself withdrawn and retreated.
00:31:23.660So even if anybody believed provocation, the state cannot prove that aspect, which they also have to prove in order to prove him guilty of any crime related to Rosenbaum.
00:31:32.200So can I just rewind and ask you a question about that drone footage with the blurry photo and the last minute the prosecution is like, look, this is the evidence of him starting the provocation.
00:31:40.300Kyle with the gun pointing at Zeminski, whatever the guy's name is.
00:31:43.500Um, I thought that the defense argument on that was that we don't even know if that is Kyle is the defense.
00:31:49.860It's Kyle, but he's not pointing his gun at anybody.
00:31:52.960The there is a picture there of Kyle that they've tried to blow up.
00:31:57.000But what they've actually blown up that they're claiming is Kyle holding a gun is actually the backside of a mirror.
00:32:01.880So the because if Kyle was holding the gun in the way that Binger was claiming, Kyle would have had to shift from being right handed to left handed, would have had to shift the gun from the right hand to the left hand.
00:32:12.540And because the way in which his body is turned in the in the photo, the only way their version of events makes sense is he suddenly became left handed overnight.
00:32:19.660And so that's the reason why it also goes from color to black and white.
00:32:24.620There's a whole host of other issues with those blurred photos they're trying to project their fantasy land testimony into.
00:32:31.820And that's why it doesn't meet the standards.
00:32:33.360And the defense's theory is he absolutely never raised his gun all night.
00:32:37.840Even yellow pants man, when you see his earlier testimony, the prosecution was pretending was a hearsay testimony that shouldn't have come in, but did about Kyle pointing his gun.
00:32:50.020So it was not that Kyle was pointing his gun at people, but had his gun down like this all night.
00:32:54.220So there was no testimony from any prosecution witness that supports any aspect of provocation that night.
00:33:00.420The yellow pants man was somebody Kyle saw earlier on who claimed that Kyle said to him something like I could shoot you or and you said you were going to shoot me.
00:33:11.580I know the judge later referred to that as the my cousin Vinny moment, I think, where, you know, he's like, yeah, I shot the clerk, you know, where Ralph Macchio's care is like, yeah, I shot him.
00:33:19.560But you don't really mean, yeah, I don't know.
00:33:21.540But that was sort of evidence that the prosecution wanted to use to show Kyle would have used force to protect property, which is not OK.
00:33:29.760Because the prosecutors seem to be arguing there was a chance for Kyle to retreat in the shooting of Rosenbaum because Kyle was the one in charge.
00:33:38.100You know, he was being chased, but he was the one sort of at the forefront of the run.
00:33:41.340And that Kyle's the one who sort of got them backed into a corner up against these cars and then turned around and fired.
00:33:48.960Right. That's all important, because if you talk about provocation, the person who provokes it then cannot take advantage of self-defense, but then they can later if they reasonably believe that they're in imminent danger of death or serious bodily injury.
00:34:04.500At that point, they have a duty to retreat under normal self-defense laws in Wisconsin.
00:34:09.960You don't have a duty to retreat, but if you have the the provocation aspect, then you do.
00:34:16.940So if you provoke it, then you do have a duty to retreat if you're going to then later take advantage of self-defense.
00:34:21.900And that's why his failure to run away is important.
00:34:27.020And then after all, he used what prosecutors would consider unreasonable force, disproportionate force to a guy who was unarmed.
00:34:36.860The other thing about the provocation is that the prosecutors tried to enlarge in it.
00:34:41.200So instead of just raising his gun, they also tried to say, well, look, he traveled across state lines to a state he did not live in to guard a used car lot that he was not asked to guard.
00:34:53.660And he said he was a medic and that was a lie that he wasn't a medic.
00:34:57.520And so they're trying to say, look, this shows you that he provoked the whole thing.
00:35:01.540The one problem with that argument is that under Wisconsin law, for you to have provocation, you have to be engaged in an unlawful act.
00:35:09.560So it's not unlawful to travel across state lines.
00:35:12.240It's not unlawful to guard a used car lot that you are not asked to guard.
00:35:16.060It's not even unlawful to lie to people to say that I'm a medic.
00:35:19.620It is unlawful, though, if you possess an AR-15 as an underage individual, but that count was thrown out.
00:35:26.360So the only remaining area where they can show provocation through an unlawful act would be the raising of the gun, which would be an aggravated assault with a deadly weapon.
00:35:39.400So they're bootstrapping that argument.
00:35:40.880And that argument is crucial because not only would it help with the Rosenbaum shooting, it helps also with the case on the shooting of Grosskreutz and Huber.
00:36:04.580And then they're supposed to compare this to the 36 pages of jury instructions and come up with a verdict.
00:36:10.380One wonders whether that's how they'll do it or whether they already have strong opinions at this point about whether it was self-defense or he's a punk who went on an active shooter's spree.
00:36:22.040Stand by because we have much more with Robert and Dave and a couple more soundbites I want to ask them about in critical moments in just moments.
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00:37:07.560So let's talk about the moments after Rosenbaum was shot, because this is the point at which the prosecutor argues if Kyle Rittenhouse wanted to signal to the world that he was not an active shooter, there are many things he could have done that he did not do.
00:37:20.600And this is why people like Anthony Huber also, I mean, very long rap sheet, Anthony Huber and Gage Grosskreutz.
00:37:29.620I mean, he's painting these guys as heroes and like wonderful guys, long rap sheet for the second guy, too.
00:37:34.340Like both of these are not the thing where he talks about them like they were out there, then I just to keep the peace.
00:37:52.060So this is Ada Binger trying to talk about what Kyle Rittenhouse should have done if he didn't want the crowd to misunderstand his his intention.
00:38:12.100As he's running, he could have announced to the crowd exactly what he was doing, told them he could have fired warning shots to try and help keep him away.
00:38:23.360He could have raised his hands and surrendered.
00:38:26.060He could have signaled to this crowd that he did not pose a threat anymore.
00:38:29.400So, Dave, what's he trying to get at there?
00:38:33.020I mean, I know he's he he one of the I think he's accusing Kyle of like not rendering aid when he could have.
00:38:38.500But there's a larger point he's going for.
00:38:41.260Yeah, Megan, that's the duty to retreat.
00:38:43.040He's trying to say he's surrendering because if you have provocation and then you want to regain self-defense, you can't do that unless you exhausted every avenue.
00:38:52.380You've got to try to retreat, surrender.
00:38:55.360He kept walking on, which led other people to believe he was a danger, an active shooter, as he said.
00:39:01.580And that's why they acted in his belief heroically to try to stop it.
00:39:06.360Now, I think it's it's a compelling argument, but there's a couple issues there.
00:39:10.560I don't know if the jury is going to buy that he should have just stood there with his hands up and let people come at him.
00:39:17.300I think that's something that if you're in that situation where you have a really dangerous situation, it's bedlam that you want to stand there after you shot someone and then surrender your gun.
00:39:26.960And just I don't think that's realistic.
00:39:29.660It's not like the National Guard showed up.
00:39:36.060I do think, though, that if they can show provocation with the pointing of the gun towards the Minsky, then they could make the argument that, yes, these folks were trying to disarm a shooter.
00:39:46.300Now, the word active shooter rubs me a little the wrong way, because to me, that evokes like Nicholas Cruz, a Parkland shooter who just shot indiscriminately.
00:39:55.020Rittenhouse was not shooting indiscriminately.
00:39:56.680He was shooting at people that he believes was a threat.
00:39:59.800So I think active shooter is overplays that that hand.
00:40:03.640But I do think it's a legitimate argument to say the reason why that they're charging him for shooting Huber and Grosskreutz is because they were trying to subdue and disarm this guy who just killed Rosenbaum.
00:40:24.540Like, let's the prosecutor was talking about Huber and Grosskreutz as if they'd been charged with something, you know, like as if he's trying to get them off, saying they had a reasonable belief that he was this active shooter.
00:40:34.500They are trying to disarm the active shooter.
00:40:36.700Now, I don't know if that's true or not.
00:40:38.020I got questions about their behavior, given what I know about their rap sheets.
00:40:41.020But even if they really did believe that they were acting as good Samaritans, that Rittenhouse was an active shooter and they had to disarm him for the good of the community.
00:40:50.900Does that matter if if Kyle Rittenhouse is there and thinks he's about to lose his life to this guy beating him with a skateboard or pulling out a Glock at him?
00:41:01.240Does it matter what what their motives are?
00:41:19.040But it's also, as you know, not pertinent, not relevant.
00:41:21.500Their state of mind is completely irrelevant.
00:41:23.760What matters is what was Kyle's reasonable perceptions for a 17 year old under the circumstances of that night.
00:41:29.080And his reasonable perceptions is this guy attacks me and there's a mob screaming, get him, get him, kill him, kill him, cranium him, cranium him.
00:41:41.380He starts running toward the police line, not trying to engage anybody, not pointing his gun at anybody.
00:41:47.100People keep chasing him, bashing him over the back of the head with a hand with a rock in it, keep attacking him, bashing him over the head with a skateboard.
00:41:55.160And he keeps trying to run to that line.
00:41:57.560And it's only when he's knocked down and even when he's knocked down on the ground.
00:42:01.600And as Richard's noted, his the most vulnerable position you can be in, that he even lifts the gun at anyone.
00:42:07.340And even then, he doesn't fire at anyone that's not trying to kick him in the head, bash him in the head, grab his gun or put a gun in his face.
00:43:09.820I mean, their background doesn't mean that they didn't try to do the right thing at that time.
00:43:14.920But it is true that the jury is not going to hear the fact that they had a lot of issues in their past criminal issues.
00:43:20.660But at the same time, the jury is also not going to hear about Rittenhouse's own issues that he recently had punched a girl who was fighting with his sister or that he appeared at the with the Proud Boys at a bar afterwards, given a white supremacist sign with hand gesture.
00:43:37.560So it works on both sides as far as the backgrounds and the actions of individuals.
00:43:43.700That's why you have what's called motions in limine to keep out evidence that could prejudice a jury and get emotions inflamed instead of just looking at the facts on hand.
00:43:54.620Because, you know, you heard the defense lawyer say, oh, they said they're going to that he's a white supremacist and it's not a white supremacist.
00:44:01.500And no, none of that evidence has come in, but the press went with it because there was some discussion early on about whether he had an affiliation with the Proud Boys and whether that makes him a white supremacist or whether he was caught on camera giving that sort of OK symbol that has now been, you know, sort of co-opted by, I guess, white supremacists.
00:44:17.620The reason why, like, if you ever have told a story about I was trying to pull in and my doorman was like, OK, you know, come on.
00:44:22.360And I was like giving him the OK symbol.
00:44:23.680And I'm like, oh, my God, I didn't I didn't mean to flash a white supremacist, a white power, you know, just trying to pull into the garage.
00:44:29.840But it's been co-opted. So anyway, what about the evidence that he not in court, but outside that he that he's got this affiliation?
00:44:37.240Yes. So he doesn't have any affiliation with the Proud Boys. He didn't know who was at that bar.
00:44:40.500That was other people who brought them there. He never has.
00:44:43.100They looked at all the social media. They had his entire cell phone. They had all of his records.
00:44:47.380They didn't find an iota of proof of any kind of racial prejudice of any kind.
00:44:51.800He has a multiracial family. None of that was ever true.
00:44:54.660The and in fact would have been blown up had it even been introduced in the trial and easily counteracted.
00:44:58.840And of course, the OK sign was 4chan wanted to mean the media into convincing them that the white power sign, which is something totally different, involves two different using both your hands, that the OK sign was secretly a white power sign.
00:45:12.400And unfortunately, some media people ran with it. I would note I filed suit on that.
00:45:16.120A federal court found that claiming the the OK sign is a white supremacist sign is actually defamation and libel.
00:45:22.320And those people who libeled Kyle will face some consequences.
00:45:25.260Joe Scarborough can't help himself. He keeps libeling him every other day.
00:45:28.080So I guess he wants to be sued by the kid. And hopefully that will happen after the acquittals come.
00:45:33.120All right. Need quick answers on this. Robert, your predictions on how this comes down?
00:45:37.760I think 75 percent chance of acquittals. If they didn't do a good job in jury selection, then there's a risk of mistrials.
00:45:44.440I think the lesser charges will lead to a compromise verdict. I think they'll get the conviction, perhaps on some of the endangering others.
00:45:53.700I think the most likely conviction on a serious charge will be on Rosenbaum, not on Huber or Gross Quartz.
00:46:00.520Hmm. And he could be facing decades in prison if he's convicted of some of those lesser charges.
00:46:05.520So it's not necessarily just a slap on the wrist. They matter for sure.
00:46:09.440You guys, great discussion. Thank you both so much for being here.
00:46:13.340And up next, someone I'm really looking forward to talking to, someone I've been following very closely, reading during this whole trial, Andrew Branca of legal insurrection.
00:46:23.360If you miss this, you're going to be very sorry because there's no one who knows more about this case than he does.
00:46:29.540Joining me now, someone I've been dying to talk to, Andrew Branca, attorney in self-defense law and his practice Law of Self-Defense LLC works to help armed law abiding citizens make better and informed decisions.
00:46:47.040Branca has been closely following this trial and reporting on what he is seeing and his legal take at legalinsurrection.com in must read dispatches.
00:46:57.440If you are not following him, do so now.
00:46:59.660And he will still be of great service to you.
00:47:01.180Andrew, thank you so much for being here.
00:47:09.100I mean, I love so much about your posts, but the number one thing is just how clearly you communicate.
00:47:15.200And I think we both agree that the defense lawyer, Mark Richards, could have used some of that very clear communication yesterday because I felt, as you did, that he was kind of all over the board.
00:48:24.900But that anger only works on people who share that anger, who are already on your side, who are convinced.
00:48:30.580And that's not who the defense needs to worry about.
00:48:32.620They need to worry about the juror who might feel some sympathy for the victims in this case, the people who died, Gage Grosskreuz who got maimed, the people who were endangered as the prosecution tells the story.
00:48:45.840Those are the people you have to convince to come over to your side.
00:48:49.440And I don't think you do that with anger.
00:48:51.020I think you do that with sympathy from their perspective to bring them over to you.
00:48:56.480Just so our listening audience knows, he used the term victims and did the air quotes because that's what the prosecution claims they are.
00:49:05.480Let's talk about the self-defense claim that was made by the ADA binger yesterday.
00:49:13.800And I know you are literally the expert in self-defense.
00:49:16.320So let me play soundbite four and get your reaction to whether this is a misstatement of the law.
00:49:22.780Vince Hill, that Joseph Rosenbaum was going to take that gun and use it on the defendant because they know you can't claim self-defense against an unarmed man like this.
00:49:35.000You lose the right to self-defense when you're the one who brought the gun.
00:49:40.380When you're the one creating the danger, when you're the one provoking other people.
00:49:47.700Well, of course, he mixes a few different things in there.
00:49:49.960If you actually provoke the confrontation, well, then arguably you do lose self-defense.
00:49:54.340But you don't have no right to defend yourself against an unarmed person.
00:49:59.720Hundreds of people in America are killed every year with fists and boots.
00:50:03.460So an unarmed person can readily be a deadly force, right, against which you'd be privileged to use a gun in self-defense.
00:50:10.000And you certainly don't lose self-defense if you bring a gun with you.
00:50:13.540I carry a gun for personal protection every day, have my entire adult life.
00:50:18.320I have the same privilege of self-defense as anybody else.
00:50:20.680The provocation for Rosenbaum's killing seems to be this allegation that Rittenhouse pointed his gun against a man named Zeminski earlier in the evening.
00:50:32.800Zeminski chased Kyle Rittenhouse after that, and so did Rosenbaum.
00:50:39.060And then that confrontation took place.
00:50:40.880With respect to the two others that Kyle shot, Grosskreutz and Huber, what's the provocation?
00:50:47.960Is it simply the killing of Rosenbaum and the failure to lie down right there saying, surrender, surrender, I shot him, get police?
00:50:58.240So basically it's kind of the fruit of the poisonous tree idea.
00:51:01.500If the shooting of Rosenbaum was wrong, then every consequence that happened after that is the fault of Kyle Rittenhouse is the state's position.
00:51:11.140But they had to go to this provocation argument because of the inherent weakness in their case.
00:51:16.340I mean, there's really two ways to attack a claim of self-defense.
00:51:19.900And by the way, which the state has to disprove beyond a reasonable doubt.
00:51:23.460One is to attack the elements of the self-defense claim itself.
00:51:27.200That's effectively impossible here because all the video, all the evidence is consistent with lawful self-defense for every one of these criminal counts.
00:51:37.080Well, if you can't attack self-defense that way, you tip over the whole chessboard by arguing provocation.
00:51:42.020Because if someone provoked, well, then they don't have a privilege of self-defense.
00:51:45.600You don't have to worry about the legal elements of that legal defense anymore.
00:51:49.200But their argument for provocation was, I mean, frankly, it was pathetic.
00:51:53.500They have this, as Richard's put it, a very good part of his closing, the hocus pocus out of focus photos that were laughable.
00:52:00.360And the only other human being who could have provided evidence about provocation was Joshua Zeminski.
00:52:06.180And the prosecution very carefully charged him with arson so that he would be on ice, so that he would have a Fifth Amendment privilege not to be called as a witness by the defense in this trial.
00:52:17.940So there's really no evidence in support of provocation that could prove provocation.
00:52:23.320Remember, the state has to prove it beyond a reasonable doubt.
00:52:26.420They're not even close to that threshold.
00:52:29.060There's a guy there's one charge relating to this guy who's referred to as jump kick guy, saying he was recklessly endangered because Kyle shot at him but missed.
00:52:37.180He jump kicked Kyle in the face right before Anthony Huber came up and started beating Kyle with his skateboard.
00:52:42.860The shooting of Huber and Huber did die is charged as the intentional homicide.
00:52:47.020That's the most serious charge of all.
00:52:48.500And they don't even seem to be arguing that Huber wasn't that that that Kyle didn't have the right to use self-defense against Huber other than just saying Huber was the good Samaritan.
00:53:00.380Kyle was still an active shooter because like unlike with jump kick guy, they're like, OK, jump kicking doesn't that's not really deadly threat against Kyle.
00:53:07.780And even on Gage Grosskreutz, they're saying, no, he didn't actually pull the gun on him.
00:53:11.820It was only once once he was shot that his arm involuntarily went towards Kyle, undermined by the by Gage himself, who took the stand and said, no, I pointed the gun at him.
00:53:44.920And there's something else here that I think the defense had really pushed harder on.
00:53:48.180With all these attacks, the second scene, he was perfectly justified in using force.
00:53:53.000If those had been individual isolated attacks, any one of them, he would have been entitled to use deadly force and self-defense against those attacks.
00:54:00.740But they weren't isolated individual attacks.
00:54:03.440His perception of the threat is based on the totality of the circumstances.
00:54:07.800So it's the collective threat of all those attacks, even the people who ultimately didn't come in,
00:54:13.320but appeared initially to be coming in with clubs and other weapons who backed off when they saw that Kyle was still prepared to defend himself.
00:54:20.340That's all a collective threat, certainly a collective threat capable of readily inflicting death or serious bodily injury.
00:54:27.920I want to give a soundbite from Binger on that sort of sequence I just discussed about just discussed with you on on Huber, on Jump Kick Man, on Gage Grosskreutz, because we spent a lot of time earlier talking about Rosenbaum.
00:54:39.540Now, this is the second half of the story. This is Soundbite 9, Binger, and his closing argument.
00:54:45.060The crowd has the right to try and stop an active shooter.
00:54:50.620The Anthony Huber comes up with a skateboard and the defendant blocks it with his arm, and then the defendant falls to the ground on his own.
00:54:59.560This man that the defense wants to call Jump Kick Man, he's got no weapons, no gun, no knife, no nothing, comes in and tries to kick the defendant in the face.
00:55:10.660Anthony Huber comes back and tries to grab the gun, actually does grab the defendant's gun, and tries to pull it away because he's trying to disarm an active shooter.
00:55:20.620Gage Grosskreutz had his own gun in his own hand.
00:55:22.780He could have aimed it and fired at the defendant, but he did not.
00:55:27.960And you heard Gage Grosskreutz testify about that, about how that is a decision that he was not prepared to make at that point in time.
00:55:37.820He is not the type of person who is just willing to take someone's life in an instant, unlike the defendant.
00:55:48.860Well, of course, the whole thing is laughable, but here's the risk, and the risk is not that serious people, a genuinely fair and impartial juror would take this seriously.
00:56:02.000The risk here for Kyle Rittenhouse is that there's somebody on the jury who's what I would call an interested juror.
00:56:09.360They're interested in convicting Kyle for whatever their own reasons might be, political views, whatever it might be.
00:56:15.240They're not willing to do it if there's zero rationale to convict, because he'll go to prison for the rest of his life, and you need more than a zero reason to do that.
00:56:23.800But they'll justify the conviction if there's any reason, the slimmest thread of a reason that they can justify to themselves were coming back with a guilty verdict.
00:56:34.800He's holding out not something that's substantive, that's proof beyond a reasonable doubt.
00:56:39.260He's holding out this thin read to that potential interested juror in the hopes he can't convince 12 jurors like that, but if he gets one, he gets a hung jury.
00:56:49.320And normally, a hung jury is, I would call it a win for the defense, because at least your client didn't get convicted.
00:56:54.960But normally, your client's not as innocent as Kyle Rittenhouse.
00:56:58.440A hung jury here is a win for the prosecution, because they'll just do the whole thing again and again and again until they've ground this poor kid into dust.
00:57:08.060Hmm. You there's, I think, seven women now on the ultimate jury that was selected and five men.