Emotion vs. Facts - The Rittenhouse Closing Arguments MegaPost

Sean Krajacic/The Kenosha News via AP, Pool

Kenosha County Assistant District Attorney Thomas Binger delivered a fiery closing argument on Monday, portraying Kyle Rittenhouse as a callous outsider who showed up in the midst of a riot in order to do some harm; part of a group of “wannabe soldiers” and “chaos tourists” who came ready and looking for a fight. It was a good argument, as was Binger’s opening argument two weeks ago when he declared that he would be able to offer incontrovertible evidence that Kyle Rittenhouse was the initial aggressor that night. The problem for Thomas Binger is everything that’s happened in between his two direct appeals to the jury.

The prosecution stumbled out of the gate in the trial. Gaige Grosskreutz was the third person to be shot by Rittenhouse. Grosskreutz admitted under cross-examination that Rittenhouse did not shoot him when he had his hands up after their confrontation. He admitted that it was only after he pointed his handgun at Rittenhouse and moved toward him that Rittenhouse fired.

Likewise, a prosecution witness, Ryan Balch, testified that one of the other people shot, Joseph Rosenbaum, said that he intended to kill Kyle Rittenhouse. Other witnesses described Rosenbaum as “belligerent” or “hyperaggressive.” 

Later, the prosecution called Richard McGinniss, a journalist with The Daily Caller who was reporting from Kenosha that night. He was near Rittenhouse when Joseph Rosenbaum was shot. The prosecutor told McGinniss, “I mean you have no idea what Mr. Rosenbaum was ever thinking at any point of his life. You have never been inside his head, you never met him before.”

McGinnis said, “I never exchanged words with him, if that’s what your question is.”

The prosecutor then pressed McGinnis on how he had no idea what Rosenbaum was thinking because it “is complete guesswork, isn’t it?”

That is when McGinnis delivered a haymaker, noting, “Well he said (expletive) you, and then he reached for the weapon.”

The prosecution’s own medical expert, Dr. Doug Kelly, appeared to confirm that the forensic evidence of soot injuries on Rosenbaum’s hand could be consistent with Rosenbaum trying to grab the barrel of Rittenhouse’s rifle when the gun was fired.

It got worse from there, including a glaring constitutional violation by the prosecution when Binger began his cross examination of Rittenhouse by commenting on his decision to remain silent.

The judge correctly tore into the prosecutor. Any first-year law student knows that you cannot comment on the silence of a Mirandized defendant after an arrest under the Fifth Amendment – let alone ignore a court order.

Binger’s closing argument was easily his strongest performance of the trial, though I personally think that his case was undercut by his snark. Here, for instance, is Binger describing Joseph Rosenbaum, the first man shot and killed by Rittenhouse on August 25th.

Another problem for Binger: his argument that, because “protesters” had yelled at Rittenhouse and others to stay on private property and not step out on to the street, that he was provoking the ire of a hostile crowd. Binger’s adopted an attitude throughout the trial that seems deferential to the whims of the mob, and I’m very curious to see how that goes over among the jurors who remember the riots in Kenosha last summer.

Binger also absurdly argued that Rittenhouse’s possession of a firearm itself was a provocation (remember, the gun possession charge was dropped, so he can’t argue that it was illegal for him to have it). Yet the prosecutor has also argued that there were plenty of other armed people on the streets of Kenosha that night. So why weren’t they guilty of provoking anyone into an attack?

Binger’s answer: because it was Rittenhouse who pointed a gun at a guy named Joshua Zaminsky, which in turn “triggered” Joseph Rosenbaum and caused him to run after Rittenhouse. But because (in Binger’s argument) Rittenhouse was the initial aggressor, he had no right to shoot Rosenbaum as the man pursued him. The problem, as the Rittenhouse defense attorney pointed out to the jury in his closing statement, is that the jury really doesn’t have much evidence that Binger’s story actually happened.

The jury never heard from Joshua Zaminsky himself, since he’s facing arson charges and was (perhaps conveniently) not available to testify for the prosecution here. His wife, who was available as a witness, wasn’t called by either side, though as Mark Richards noted, the defense was under no obligation to call any witness. So the only evidence is a very difficult to decipher video clip that purportedly shows Rittenhouse dropping a fire extinguisher and then awkwardly and momentarily pointing his rifle in the general direction of two other blurry figures. Honestly, as many times as I’ve watched the video and seen the stills during the trial’s live stream, I couldn’t tell you with any certainty that what Binger describes is what I’m actually looking at.

The problems with Binger’s arguments also include his discussion of self-defense.

First of all, Rittenhouse would have had no idea if Rosenbaum had a gun or not. He knew he didn’t see one in his hand, but that doesn’t mean he couldn’t have had one concealed. Nevertheless, though, if someone is going for your gun, as Richie McGinniss testified Rosenbaum was doing when he was shot, it’s reasonable to believe that they are hoping to take possession of it. And if a visibly angry man were to run up behind me to take my firearm away from me, my reasonable conclusion would be that he doesn’t want to show it off to his friends. Instead, he wants to do harm with it; either to me or to others.

The “if he didn’t have a gun then this wouldn’t have happened” argument is uncomfortably close to arguing that a victim of sexual assault instigated it by wearing provocative clothing, and I know how that would have gone over had I been on the jury, but the defense was able to address the issue early and often during attorney Mark Richards’ own closing arguments on Monday afternoon.

Richards began by declaring that Binger was lying to the jury, pointing to video the prosecution had just played declaring that Rosenbaum wasn’t present when Rittenhouse claimed he was threatened and highlighting a figure that sure looked a lot like Rosenbaum. Richards was almost emotional when he declared that this isn’t a game, but his client’s life.

Richards noted that Binger’s case hinged on Rittenhouse’s alleged “provocation,” a word that the defense attorney pointed out was never uttered by the prosecution during opening arguments. Richards then pointed out something that Binger did say during opening arguments; his claim that Rittenhouse “chased down Rosenbaum”. Nothing that came out during the course of the trial indicates that Rittenhouse ever chased down or pursued Rosenbaum in any way.

The defense attorney did a good job of hammering home the burden of proof; the fact that the prosecution must prove beyond a reasonable doubt that Kyle Rittenhouse was not acting in self-defense. Overall, though, I think his performance was more uneven than Binger’s, particularly for the first half hour or so. One example; on two separate occasions Richards gave his own snarky comment about Rosenbaum being dead. The first was when he said that Rosenbaum didn’t think Rittenhouse would do anything when he tried to grab his gun and “thought wrong.” The second was when he remarked that he couldn’t say what Rosenbaum was thinking at a specific point in time, and he guessed that Rosenbaum couldn’t say either.

Even though the delivery was up-and-down in the beginning, Richards was still able to effectively lay out his own argument; that Kyle Rittenhouse was acting in self-defense but the state decided even before the investigation was complete that Rittenhouse was guilty; a rush to judgement that led to the teen being charged long before witnesses had been interviewed and video evidence compiled.

Richards brought the fire when he bluntly declared that Gaige Grosskreutz was “bought, paid for, and protected” by the prosecution, pointing to the fact that Grosskreutz was not only carrying a firearm with an expired concealed carry license, but lied to police by telling them he had dropped his gun as he was running down the street (after first not disclosing he was carrying at all). Richards declared that was obstruction, and reminded the jury that he’s represented clients facing those charges in the past. Why was Grosskreutz not facing charges? Because he’s the state’s star witness.

The contrast between Binger’s emotionally-driven closing argument and Richards’ more methodical laying out of the problems in the prosecution’s case also showcased the very different personalities of the two attorneys. Binger is… well, smarmy. Richards is gruff. Binger has a quick but evasive or half-true answer for everything, while Richards seems a little less organized, but he’s blunt and direct, and whether or not you accept Richards’ argument about the prosecution’s motivation in charging Rittenhouse, his closing argument cast plenty of reasonable doubt on Binger’s “fairy tale” to the jury through video, photos, and witness testimony.

According to Binger, Rittenhouse was an “active shooter”, who never fired a shot until someone was chasing him. An active shooter who only fired 8 of the 30 rounds in his magazine. An active shooter who doesn’t fire at anyone who’s not in the process of charging him. It doesn’t make any sense, as Richards argued in his conclusion.

The last words that Richards spoke to the jury were that this case does not involve any “winners”, but that convicting Kyle Rittenhouse wouldn’t serve the interests of justice. After a brief recess, the prosecution got the chance to have the last word in rebuttal, with Assistant D.A. James Kraus using the opportunity to once again try to cloud the jury’s opinion on self-defense. This time, Kraus claimed that there were plenty of non-lethal ways for Rittenhouse to respond to Rosenbaum going for his gun, including using it as a club to hit Rosenbaum.

Kraus did his best to go through the video and photographic evidence, but there’s no way to get around the fact that the evidence the state is relying on is far from conclusive. It’s either too far away to really tell what’s going on, or so blown up and pixelated that it looks more like a piece of modern art than evidence in a murder trial.

Kraus kept referring to the defense’s argument as “preposterous,” but he made a few preposterous claims of his own. Kraus said there’s no such thing as a left-handed rifle, which, as a lefty myself, I can tell you is absolute nonsense. Kraus stated that Grosskreuz, armed with a handgun, posed no threat to the rifle-toting Rittenhouse. Why should an armed man be afraid of a gun running up to him a gun?

Kraus also tried to insinuate that only if you suffer great bodily harm do you have the right to act in self-defense, which isn’t how the law works in Wisconsin.

My sense is that if the jury has been paying absolutely no attention over the past two weeks, Kraus’ rebuttal argument may have been more powerful. But Kraus’ story leaves out so much of the salient testimony and facts, and relies so much on supposition. Even during rebuttal Kraus said “it’s possible that Rittenhouse was yelling ‘friendly, friendly, friendly’ while he was pointing a gun at the Zaminskies.” But in actuality, it’s possible that Rittenhouse wasn’t pointing a gun at the Zaminskies at all.

In all, it was a pretty weak conclusion by the prosecution, but then, the prosecution had a pretty weak case. Kyle Rittenhouse starts with the presumption of innocence here, and I don’t think that Binger and company were able to come anywhere close to conclusively demonstrating that Kyle Rittenhouse provoked Rosenbaum by pointing a gun at the Zaminskies, which kicked off the tragic chain of events that unfolded over the next three minutes.

The jury will be seated at 9 a.m. on Tuesday, and I expect we’ll see a verdict at some point tomorrow. In fact, I wouldn’t be surprised if it’s not a long deliberation at all. In my mind, the prosecution simply failed to meet its burden of proof, and trying to obfuscate on issues like self-defense; at one point proclaiming that Rittenhouse had failed to meet a duty to retreat when he actually had no duty to do so. And Rittenhouse did indeed try to run away from Rosenbaum as the man chased the teen across the parking lot. That one little moment summed up the prosecution to me; a case of trying to make the facts fit the charges, instead of basing the charges on the facts of this case.

 

 

 

Nov 26, 2021 10:30 AM ET