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Trial recap: Kyle Rittenhouse testifies, judge scolds prosecution, defense asks for mistrial

RITTENHOUSE Murder Trial Courtroom
Mark Hertzberg
/
ZUMA Press Wire
Kyle Rittenhouse testifies at his trial in Kenosha Circuit Court Wednesday Nov. 10, 2021.

JOY POWERS, LAKE EFFECT HOST:

It was a whirlwind day of testimony and argument yesterday in the murder trial of Kyle Rittenhouse in Kenosha.

The 18-year-old shot three people, killing two of them, during unrest last year that followed the police shooting of Jacob Blake, Jr.

The events yesterday included the defendant taking the stand, crying during both direct and cross examination, the judge admonishing the prosecutor several times, and a defense motion for mistrial. Ultimately, the prosecution continued — and finished — its cross-examination of Rittenhouse.

WUWM’s Maayan Silver has been covering the trial and has this recap.

Maayan, thanks so much for being here this morning. 

MAAYAN SILVER, BYLINE: Hi Joy!

POWERS: So, Rittenhouse took the stand Wednesday — how did that play out in court?

SILVER: Yes. Rittenhouse had been sitting quietly in court for the past eight days of testimony, occasionally taking notes, or yawning, but quiet with a guarded expression. Sometimes he would have a hint of a smile during what was presumably helpful testimony, or he’d look away at times during particularly graphic testimony — like when prosecutors showed videos of the Joseph Rosenbaum — the first man Rittenhouse shot — taking his last breaths lying on the ground.

But Wednesday was the first time jurors got a chance to hear directly from Rittenhouse. To peel back the armor. He was on the stand most of the day. He started out testifying very methodically — presumably having been coached by the defense team. But at one point on direct, he got emotional when he described what he says was Rosenbaum chasing after him.

POWERS: Let’s hear a bit of that testimony.

(SOUNDBITE OF KYLE RITTENHOUSE)

I once I take that step back, I look over my shoulder and Mr. Rosenbaum Mr. Rosenbaum was now running from my right side. And I was cornered from in front of me with Mr Ziminski and there were people right right –

POWERS: So, yes, we can hear Rittenhouse breaking down here. What was the response like in court?

SILVER: The judge called a recess, said it was time for a break anyway. The in court pool reporter noted that as the jury leaving the courtroom, many jurors looked at Rittenhouse in apparent sympathy as he continued to cry, and that his mother, Wendy Rittenhouse was in the courtroom sobbing as well within earshot of jurors.

POWERS: What did Rittenhouse say when he got back on the stand for direct examination by the defense?

SILVER: So just to frame the testimony, the big issues in this case are — for each separate shooting — did Rittenhouse believe he was going to be assaulted, that deadly force was necessary to stop the assaults and were those beliefs reasonable?

When Rittenhouse began testifying again, he described Rosenbaum chasing him into an enclosed area on a car lot. Rittenhouse said he had no space to run away and that Rosenbaum lunged at him and had his hand on the barrel of Rittenhouse’s gun.

Rittenhouse said he feared for his life because he thought Rosenbaum could have gotten his gun and used it against him. Later on in cross-examination Rittenhouse speculated that Rosenbaum could have used the gun on other people as well. Testimony and video have shown that Rosenbaum was unarmed that night and only had a clear plastic bag with some toiletries in it.

POWERS: There's been a lot of talk about whether or not Rittenhouse was fearful when he started shooting — why are his emotions important to this case?

SILVER: It’s less about his emotions and more about whether he believed he was under attack. That’s one component of a self-defense claim, along with the idea that the amount of force, in this case deadly force, was necessary to stop the attack. The jury will also decide whether those beliefs were objectively reasonable.

POWERS: Has there been any evidence presented in court that Rosenbaum was trying to take Rittenhouse’s gun?

SILVER: That’s a point of contention in this trial. Earlier this week, the prosecution called forensic pathologist Dr. Doug Kelley to the stand. He testified that Rosenbaum was shot four times, and that the first shot was in his groin. The prosecution has attempted to argue that Rosenbaum could have been falling forward from that shot, and not lunging at Rittenhouse. Or further, that Rosenbaum could have been swatting the gun away instead of grabbing for it. And that Rittenhouse’s fear was unreasonable.

POWERS: Has there been any other evidence that would speak to Rittenhouse’s fear of Rosenbaum?

SILVER: Video does show Rosenbaum chasing Rittenhouse into that car lot.

Other witnesses have testified and video has shown that Rosenbaum was being confrontational that night, arguing with people and doing things like throwing rocks and starting fires. Rittenhouse and another armed civilian, Ryan Balch, say Rosenbaum threatened the two of them that night saying “If I catch any of you guys alone tonight, I’m going to f-ing kill you!”

But another armed civilian witness, Jason Lackowski, called Rosenbaum a “babbling idiot” who Lackowski did not take seriously. Rittenhouse ultimately says Rosenbaum threatened him twice, and also chased him.

POWERS: What did Rittenhouse say about the moments after he shot and killed Rosenbaum?

SILVER: Rittenhouse says he stopped for a moment and then called his friend who was also on the scene to tell him he just shot somebody because he had to. That friend had also testified to that. Rittenhouse then said he was going to run up Sheridan Boulevard, the main street where a lot of this unrest was happening — and said he was going to head to police but that crowd started yelling “get him, get him” and he started running away.

POWERS: And that leads to Rittenhouse’s confrontation with the second and third men he shot that night: Anthony Huber and Gaige Grosskreutz. What did he say about that?

SILVER: Those additional shootings happened moments later, and they’re captured on video that was played numerous times in the state’s case.

It all happens within seconds, but Anthony Huber hits Rittenhouse with a skateboard, an unidentified man the defense calls “jump-kick man” comes in and kicks Rittenhouse, who because of these things, falls down.

POWERS: We’re going to play a clip of defense attorney Mark Richards asking Rittenhouse to describe the moments before he shoots Anthony Huber, who he killed, and then Gaige Grosskreutz, who survived:

(SOUNDBITE DEFENSE ATTORNEY MARK RICHARDS INTERVIEWING RITTENHOUSE)

RITTENHOUSE: Mr. Huber, immediately after I'm kicked in the face runs up as I'm sitting up to try to get up and get to the police. I'm on my back. And Mr. Huber runs up. He as I'm getting up, he strikes me in the neck with his skateboard a second time. RICHARDS: Then what happened? RITTENHOUSE: He grabs my gun and I can feel it pulling away from me and I can feel the strap starting to come off m body RICHARDS: And what do you do then? RITTENHOUSE: I fire one shot. RICHARDS: And after you fire, striking we all know Mr. Huber, what do you do? RITTENHOUSE: I lower my weapon and I see Mr. Grosskreutz with his hands up and as I'm lowering my weapon I look down and then Mr. Grosskreutz, he lunges at me with his pistol pointed directly at my head.

SILVER: Gaige Grosskreutz also testified in this trial Monday, and he said that right before his hand was pointed down in the direction of Rittenhouse, Grosskreutz had raised his hands in surrender and he interpreted Rittenhouse as “re-racking” his gun, or putting another bullet in the chamber. Rittenhouse testified he didn’t do that. Some additional defense witnesses are likely to speak to that.

POWERS: The prosecution got a chance to cross-examine Rittenhouse, what were the key takeaways from that?

SILVER: At first, the prosecution focused on Rittenhouse’s decisions to possess an AR-15 underage and go to the unrest in Kenosha, not yet on the shooting events themselves. There was a lot of discussion of what Rittenhouse did or didn’t do on the streets of Kenosha. There were some cross-examination tactics that got Assistant District Attorney Thomas Binger into a lot of heat with the court — and which resulted in a motion for a mistrial from the defense

POWERS: Yes! We’ll talk about that.

SILVER: But later in the day Binger started focusing on the minutes and moments leading up to Rittenhouse shooting Rosenbaum and then Huber and Grosskreutz. And Rittenhouse really stuck to his playbook, saying that he thought his life was under threat and didn’t want to kill anyone that night, just save himself.

Binger did get Rittenhouse to admit that the whole night no one fired any shots at him.

But Rittenhouse was steadfast in his message that he thought his life was under threat, and that he thought both Rosenbaum and Huber could take his gun and that Grosskreutz’s gun was pointed at his head.

Here’s an example of Binger trying to get Rittenhouse to stray from that narrative.

(SOUNDBITE: ASSISTANT DISTRICT ATTORNEY QUESTIONING KYLE RITTENHOUSE)

BINGER: Frame 500 shows you firing your AR 15 towards Gaige Grosskreutz at this particular moment. He does not have that pistol pointed towards you, does he? RITTENHOUSE: He does. BINGER: His left leg has stepped across in not directly towards you but to the side of you? Correct? RITTENHOUSE: Yes. BINGER: He's reaching in with his left arm towards you, correct? RITTENHOUSE: Yes. BINGER: He never steps back and puts the gun in both hands in a ‘ready aim’ position towards you, does he? RITTENHOUSE: He doesn't do that. BINGER: He never takes that gun with his right hand and stands there and holds it out with his right hand in front of him and aims it directly at you, does he? RITTENHOUSE: No, he does this – pointing it directly on my head. BINGER: And you thought that's the way he was going to shoot you? RITTENHOUSE: Yeah.

POWERS: So in addition to Rittenhouse’s testimony, there was a lot of arguing yesterday. The judge admonished the prosecution several times during cross-examination, and the defense moved for a mistrial, can you explain what that was about?

SILVER: The defense moved for a mistrial with prejudice, meaning that Rittenhouse couldn’t be tried again, saying that the state had disregarded court’s orders in bad faith and that the state was throwing the trial.

The defense was essentially seizing on the judge’s anger at the prosecution for its tactics and for what the court said was disregarding the court’s prior rulings and the defendant’s right to pretrial silence.

POWERS: Yes, here’s Judge Bruce Schroeder addressing that:

(SOUNDBITE OF JUDGE BRUCE SCHROEDER)

Why would you think that that made it okay for you without any advance notice to bring this matter before the jury? You are already – you are – I was astonished when you began your examination by commenting on the defendant’s post-arrest silence. That's basic law. It's been basic law in this country for 40 years. 50 years. I have no idea why you would do something like that.

POWERS: What did the prosecution do that led to this exchange?

SILVER: On cross-examination, ADA Binger questioned Rittenhouse about why he was just now telling his story, after dozens of witnesses had testified, implying there was something deceptive or manipulative about that.

And the judge immediately halted the proceedings, sent the jury out of the room and lashed out at Binger for violating Rittenhouse’s Fifth Amendment right to pre-trial silence. Defendants don’t have to give statements to the police. They don’t even have to testify. And those facts can’t be used against them in court. The prosecution later said Rittenhouse possibly waived the right by talking to the media but that wasn’t really established and it seems Binger just dropped that line of questioning.

The prosecution also came under fire from the judge for trying to impeach Rittenhouse on statements and photos before and after the shootings. Specifically a statement from Rittenhouse weeks or months before in which he allegedly said that he wished he had his gun so that he could shoot suspected shoplifters. The judge had previously closed the door on that questioning, but Binger thought something Rittenhouse said in testimony possibly opened the door, and that it had never been totally closed. That got the judge upset.

(SOUNDBITE OF JUDGE BRUCE SCHROEDER)

There was no don't get into other subjects! Come on – what you're telling me – you're an experienced trial attorney and you're telling me that when the judge says, 'I'm excluding this,' you just take it upon yourself to put it in? Because you think that you found a way around it? Come on!

SILVER: The prosecution also wanted to refer to a selfie Rittenhouse took after the events while on bond with a shirt that said free as “four letter word starting with an F.” Judge didn’t let him, saying it would only be relevant if Rittenhouse was on trial for bad judgment.

POWERS: Okay, what happened to the motion for a mistrial?

SILVER: The prosecutor said he was acting in good faith, but the judge said he didn’t believe him.

(SOUNDBITE FROM JUDGE BRUCE SCHROEDER)

I don't believe you. There better not be another incident. I'll take the motion under advisement.

SILVER: Ultimately, Schroeder let the testimony continue.

POWERS: So, contentious day, what's next in this trial?

SILVER: We got a little taste of that after the jury was excused for the day. Richards, the defense attorney, said the defense will be calling three more witnesses. Once the defense rests there could be rebuttal witnesses from the state, and eventually jury instructions and closing arguments. Judge Schroeder told the jury the trial might be wrapping up on Tuesday.

POWERS: And I’m sure you’ll be following it. Maayan, thanks so much for being here. 

SILVER: Thanks Joy!

Joy Powers hosts and produces Lake Effect. She joined WUWM in 2016.
Maayan Silver has been a reporter with WUWM’s News Team since 2018.
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