Final Arguments to the Rittenhouse Jury

On Monday, November 15, the jury in the Wisconsin vs. Kyle Rittenhouse trial heard closing arguments, including new, controversial evidence from the state. James Armstrong, a senior forensic imaging specialist with the Wisconsin State Crime Lab, computer-enhanced drone footage that the prosecution claimed showed Kyle Rittenhouse pointing a gun at Joshua Ziminski. Mr. Ziminski was a rioter who was with Joseph Rosenbaum during the hours before he was shot. He fired a shot into the air seconds before Mr. Rittenhouse shot Rosenbaum. The state said this new information would prove that Mr. Rittenhouse was the “initial aggressor,” who provoked violence and therefore did not have a claim to self-defense.

The defense objected to the modified footage. The software used adds additional pixels, which could distort the image. Corey Chirafisi, one of Mr. Rittenhouse’s defense lawyers, questioned Mr. Armstrong with the help of a visual aid. He drew a row of boxes marked “Blue,” and a row of boxes marked “Red,” and a row of blank boxes between them, to represent the pixels that would be added. He asked Mr. Armstrong whether the enlarging software would make the blank boxes red, blue, or purple. Mr. Armstrong did not know.

Judge Schroeder left his bench and sat down by the television screen to watch the enhanced video himself. Defense attorney Mark Richards told the judge: “Examiner Armstrong took 20 hours to manipulate that photograph to get that blurry mess up on the screen. We had our expert do it right in front of the jury in seconds, and it showed what it was. And that’s where the hocus pocus and adding the pixels and all the other garbage comes in, and that’s what they’re building their prosecution on!”

Judge Schroeder started to say that he wanted to put it in the jury’s hands. He asked the prosecution, “That’s your best picture, the one I saw over there?”

The response was, “No.”

The judge lost his temper. “Where’s the best picture? Please! You’re asking me to give an instruction; I want to see the best picture!”

Judge Schroeder had reservations about using Mr. Armstrong’s enlarged enhancement. “There were companies, pension funds, individuals, that were bankrupted because of legal decisions that were made on the basis of so-called science which was later shown to be garbage. . . . When you have an image that is, let’s say 2,500 pixels, and you blow it up to 25,000 or 250,000 and you don’t really know what fills the vacant space, that’s a struggle for me. And this is not being used to decide which hammer I’m going to buy or which phone I’m going to buy. This is being used to decide whether someone is innocent or guilty of a crime. . . .”

Ultimately, Judge Schroeder allowed the jury to see the enlarged video and hear instructions on the law regarding provocation. “It’s the jury’s case and I think they should make the critical decision,” he said.

The state of Wisconsin allows a jury to consider lesser charges than those brought by the prosecution. The judge explained the pros and cons of this law to Mr. Rittenhouse last Friday: “If I have a lesser offense included, you’re raising the risk of conviction, although you are avoiding the possibility that the jury will end up agreeing on the more serious crime, and you’re also decreasing the risk that you’ll end up with a second trial because the jury is unable to agree.”

The judge told the jury that Count Six, “Possession of a Dangerous Weapon by a Person Under 18,” was dismissed for lack of evidence. This is a misdemeanor, punishable by up to nine months in prison. Count Seven, the curfew violation charge, punishable with a $200 fine, had already been dismissed for lack of evidence.

Kyle Rittenhouse now faces five charges, which could put him in prison for life if convicted:

• First Degree Intentional Homicide for killing Anthony Huber, the man who attacked Mr. Rittenhouse with a skateboard.
• First Degree Reckless Homicide, for killing Joseph Rosenbaum.
• Attempted First Degree Intentional Homicide, for shooting Gaige Grosskreutz in the arm.
• Two counts of First Degree Recklessly Endangering Safety, because journalist Richie McGinniss was in the line of fire when Mr. Rittenhouse shot Rosenbaum, and because he fired on “Jump Kick Man,” the unidentified man who tried to stomp him.

Prosecutor Thomas Binger showed the new video evidence to the jury during his closing argument. I have seen this video more times than the jury had before it started deliberations. Despite the technology used, the people are small, unclear figures. I absolutely could not see Mr. Rittenhouse pointing his gun at Mr. Ziminski, as the prosecution claims. Judging from the responses I’ve seen on Twitter, I’m not alone. It does show Rosenbaum throwing a bag at Mr. Rittenhouse.

Mr. Binger characterized Rosenbaum’s interaction with Mr. Rittenhouse as a “fistfight,” because Rosenbaum was unarmed. He said that Mr. Rittenhouse was wrong to have a gun in the first place. “You can’t claim self-defense against an unarmed man. You lose the right to self-defense when you’re the one who brought the gun. When you’re the one who is creating the danger, when you’re the one provoking other people.” He did not explain why someone looking for a fistfight would chase an armed man or whether having a gun means the right to self-defense is automatically lost because it is “provoking” other people.

Mr. Binger explained that a reasonable person in Kyle Rittenhouse’s position would know that Joseph Rosenbaum was provoked by him pointing his gun at Mr. Ziminski. He added that the crowd that chased Mr. Rittenhouse knew he had just shot someone, and they reasonably felt that their lives were in danger. He also defended Gaige Grosskreuz, whom he said feared for his life after seeing Mr. Rittenhouse shoot others.

The prosecutor said that Mr. Rittenhouse fired indiscriminately. He said that Mr. Rittenhouse could have signaled to the crowd that he was not a threat. For example, he could have put down his gun and surrendered to the crowd.

The prosecutor said the crowd was right to try to stop Mr. Rittenhouse because he was an “active shooter.” Indeed, instead of using deadly force, the crowd used less harmful means like knocking his hat off, hitting him with a skateboard, and kicking. Gaige Grosskreutz put his hands up and did not shoot his own gun. “He is not the type of person who is just willing to take someone’s life in an instant, unlike the defendant, who took two lives that night, very quickly, and seemingly very easily,” Mr. Binger said.

He played video of the second shooting, telling the jury, “In just a few seconds, the defendant kills one person, attempts to kill two more and blows off Gaige Grosskreutz’s arm. It’s that fast. This is someone who had no remorse, no regard for life. He only cares about himself.”

Mr. Binger said that the crowd was full of heroes who tried to stop an active shooter. “Jump Kick Man” and Anthony Huber were not armed [even though he was swinging a skateboard]. Mr. Binger accused the defense of being hypocrites because Mr. Rittenhouse’s own actions made him a threat to the crowd. He asked if it was reasonable “for a criminal to shoot himself out of a crime scene,” by claiming self-defense. “The crowd was right. They knew he just shot Joseph Rosenbaum.”

Mr. Binger took the jury through a frame-by-frame video presentation focused on Gaige Grosskreutz. He said that Mr. Grosskreutz did not have his gun pointed at Rittenhouse. After he saw Rittenhouse re-racking his gun, he reached forward with his left hand, not the right hand which was holding the gun. He was trying to shield himself with his arm. “At no point in this process is Mr. Grosskreutz pointing his gun at the defendant.”

Mr. Binger recalled the photo the defense showed in which Mr. Grousskreutz was pointing his gun at Mr. Rittenhouse’s head, as his arm is being blown apart. He told the jury the gun pointed downwards because Mr. Grosskreutz’s muscle was severed, adding that he could not have pulled the trigger without a working biceps.

Mr. Binger told the jury that Mr. Rittenhouse walked away “like he’s a hero in a western.” He showed Mr. Rittenhouse’s TikTok profile, which had a picture of the young man holding the AR-15, with the caption, “Bruh, I’m just trying to be famous.” The prosecutor put thoughts in the defendant’s head: “He thinks, now I’m junior policeman, I can go out stopping crime.”

Referring to Mr. Rittenhouse’s AR-15, Mr. Binger said: “He knew he couldn’t buy the gun because of his age. Dominick Black conducted a ‘straw purchase‘ and he is being prosecuted for it.”

Mr. Binger also accused Mr. Rittenhouse of being ignorant about the AR’s lethality. He said Mr. Rittenhouse had bought the gun because it “looked cool,” and did not care much about the type of ammunition in the gun or how it worked. Mr. Binger sarcastically mocked the witnesses who said things like “a gun is a gun” and “a bullet is a bullet.” He said there was no legitimate reason for Mr. Rittenhouse to bring an AR-15 with him because it couldn’t be used to provide medical care or protect property, which were the defendant’s supposed goals. “Why do you need 30 rounds of full metal jacket to protect a building?” Mr. Binger asked.

Comparing Mr. Rittenhouse to a “quack doctor practicing without a medical license,” the prosecutor said that possessing an AR-15 was incompatible with being a “medic.” He quoted witness Richie McGinniss, the journalist who went from riot to riot filming the destruction in 2020: “In all the demonstrations I’ve been to, I’ve never seen a medic wear an AR-15.”

Mr. Binger said that he would have prosecuted Joseph Rosenbaum for arson had he lived, but the man did not deserve to die for his actions. These included setting a dumpster on fire, blocking police vehicles, tipping over a Porta Potty, and screaming the N-word. None of the other people armed with rifles felt a need to shoot Rosenbaum. He showed a video of Rosenbaum mouthing off at a man in a yellow shirt, who simply shoves him. Mr. Binger also pointed out that Mr. Rittenhouse had not brought any non-lethal means to protect himself.

The prosecutor argued that Mr. Rittenhouse was not threatened. “The defense has pinned a lot of their case on a threat that didn’t happen,” Mr. Binger said. There is no video of Rosenbaum threatening Mr. Rittenhouse. The prosecutor said the threat “is not there,” and even if there was a threat, Rosenbaum was unarmed. Rosenbaum, Anthony Huber, and “Jump Kick Man” also didn’t seriously threaten Mr. Rittenhouse, according to the prosecution.

Instead, Mr. Rittenhouse was the provocateur. “No reasonable person would have done what the defendant did,” Mr. Binger concluded, “And that makes your decision easy. He is guilty on all counts.”

Defense lawyer Mark Richards gave a long, detailed summation. He refuted every point the prosecution made and reviewed the testimony from each witness. The meandering closing argument got off to a boring start. If Mr. Rittenhouse is freed, it won’t be because of eloquent lawyering.

Still, Mr. Richards launched a heated attack about the prosecution’s new strategy.

Think back to November 2nd, when this case started. Did you hear one word out of Mr. Binger’s mouth about provocation? You didn’t. Because it was never said. But when his case explodes in his face, now he comes out with provocation.

Mr. Binger had said in his closing that Kyle Rittenhouse should have stayed home that night. Mr. Richards countered that Mr. Rittenhouse had as much right to be in Kenosha as anyone else.

The defense argued that Rosenbaum and Joshua and Kelley Ziminski ambushed Mr. Rittenhouse. It was when Rittenhouse was “separated from the herd” that Rosenbaum came after him. Mr. Rittenhouse then retreated, quickly turning to show that he was armed, but that did not stop Rosenbaum. Mr. Binger had told the jury that the defense would “blame the victim,” but Mr. Richards said Rosenbaum was killed because he was lunging at Rittenhouse while grabbing for the gun. Mr. Richards asked the jury to think about why the Ziminskis were not called as witnesses.

No one found the plastic bag that Rosenbaum appeared to throw at Mr. Rittenhouse. Mr. Richards said the defense does not concede that Rosenbaum was not throwing chemical bombs. Witness Joanne Fiedler testified that she had seen Rosenbaum make a throwing motion with his arm before she was hit with a chemical bomb.

The defense said that the State provided no motivation for witness Ryan Balch to lie when he testified that Rosenbaum threatening to kill him and Mr. Rittenhouse. Furthermore, Dr. Douglas Kelley had testified that the soot on Rosenbaum’s hand showed that his hand was touching Mr. Rittenhouse’s gun. This suggests that Mr. Rittenhouse faced real danger.

Regarding Count Two, Recklessly Endangering Safety, Mr. Richards argued that the charge does not apply if Mr. Rittenhouse was acting in self-defense when he shot Rosenbaum. Mr. Rittenhouse did not know that Richie McGinniss was in close proximity before he pulled the trigger. Mr. McGinniss was a citizen journalist who risked himself get a story. Mr. Rittenhouse is not responsible if Mr. McGinniss was in the way when he defended himself.

The crowd that chased Mr. Rittenhouse did not know that he was acting in self-defense. Mr. Richards said they wanted to “get their licks in” because the crowd perceived him as being “from the other side.” They would have seen Mr. Rittenhouse as stopping them from wreaking havoc for the second straight night.

Count Three, Recklessly Endangering Safety, pertained to “Jump Kick Man.” Mr. Richards said this unidentified person was the fourth member of a mob that attacked Mr. Rittenhouse. There was no evidence that he observed or knew about the confrontation between Rosenbaum and Mr. Rittenhouse. His kick to Mr. Rittenhouse’s head could have caused great bodily harm or death. There is also video of “Jump Kick Man” setting dumpsters on fire.

On Count Four, shooting Anthony Huber, Mr. Richards said that Huber was a rioter who was caught on video going to the police barricade to pick up pepper balls and throw them. He also gave police the finger. He hit Mr. Rittenhouse twice with his skateboard, which could have caused death or great bodily harm, and he tried to take Mr. Rittenhouse’s gun. Even Gaige Grosskreutz was worried about the blows that Antony Huber and Jump Kick Man inflicted on him. Mr. Richards thought Mr. Binger was unrealistic about the danger Mr. Huber posed to Mr. Rittenhouse.

Mr. Richards emphasized that Mr. Rittenhouse was running away from Anthony Huber.

The state wants to call my client ‘an active shooter,’ and the reason they want to do that, is because of the loaded connotations of that word. Everyone has heard of the theatre killings, the school shootings, and things like that. The definition of an active shooter is somebody with a plan to inflict multiple casualties, usually out of anger or animus to a group. In this case, what causes Kyle Rittenhouse to shoot someone? Joseph Rosenbaum.

Mr. Rittenhouse had 30 bullets but used only a few and did not fire into the crowd. Before leaving for Car Source, Mr. Rittenhouse gave a friend, Nick Smith, his bullet proof vest. Why would he do that if he wanted to be “an active shooter?”

For Count Five, Attempted Homicide, relating to the shooting of Gaige Grosskreutz, Mr. Richards argued that this was self-defense. It is the responsibility of the state to prove beyond a reasonable doubt that Mr. Rittenhouse was wrong to protect himself. Mr. Rittenhouse ran past Gaige Grosskreutz, not pointing his gun, saying he was going to police. He did not threaten Mr. Grosskreutz.

Mr. Binger must be living in fairy-tale land to think that Kyle could have put his gun down and said, ‘Hey, everything’s good, I’m going to the police.’ Unfortunately, that’s not how the real world works.

The defense showed a photo of Mr. Grosskreutz reaching into his back waistband to pull out his gun. Mr. Rittenhouse was far ahead but Mr. Grosskreutz caught up. Mr. Grosskreutz stopped with his hands up and had a gun in his right hand; he then advanced while pointing his gun at Mr. Rittenhouse’s head.

The prosecutor said that Mr. Grosskreutz intended to grab Mr. Rittenhouse’s gun and was not going to shoot. However, the defense said that he had a phone in one hand and a gun in the other. Disarming Mr. Rittenhouse would have been almost impossible.

Mr. Binger had argued that when Mr. Grosskreutz pointed his gun at Mr. Rittenhouse’s head, it was an “involuntary movement.” Mr. Richards explained that when the bullet hit Mr. Grosskreutz’s arm, it did not stop his forward motion. Also, when he was questioned the next day, Mr. Grosskreutz didn’t tell police that he had been armed with a handgun with a bullet in the chamber.

Mr. Richards used the actual AR-15 to refute the claim that Mr. Rittenhouse “provoked” confrontation by pointing a gun at someone. He showed that the gun was not in a firing position in the state’s photos, and because it is a right-handed gun, Mr. Rittenhouse could not have fired from that position without being hit by a shell casing.

Mr. Rittenhouse helped the police unlock his phone. There was nothing incriminating there. The police found nothing about militias or white supremacy. Mr. Grosskreutz, who said on the stand that he is affiliated with The People’s Revolution, did not turn over his phone. The State never pursued a warrant to get information from it.

Mr. Richards told the jury that the State had “rushed to judgement.” Mr. Rittenhouse was arrested for murder prematurely, just three hours after the investigation started. He was arrested before the police even recovered the shell casings, before any witness statements, and before an autopsy was done. He said that the arrest was driven by fear of another riot. “Ladies and gentlemen, this is a political case,” said Mr. Richards. “This district attorney’s office is marching forward with this case because they need somebody to be responsible.” He added that the prosecutors needed to charge someone to be able to say: “He did it. He brought terror to Kenosha.”

The defense notes that Gaige Grosskreutz got a lawyer very quickly. What did he have to hide? He lied to police about being armed and told police he dropped his gun. He did not have a valid concealed carry permit, but he wasn’t charged. Mr. Richards said:

Ladies and gentlemen, that’s what’s called obstructing. Most people, when you lie to the cops, especially in a murder investigation, you get in a little bit of trouble. I’ve represented some of those people. Not Mr. Grosskreutz, because he’s their star witness. Bought, paid for, and protected. You don’t want us to search your phone? Oh, we’re going to invoke the never-heard-before Marcy’s Law exception to the search warrant, even though they had a signed search warrant, signed by a judge of Kenosha County.

Mr. Richards also touched on the judge’s dismissal of the gun charge, saying the gun was “no longer an issue.” “My client is no longer charged with Minor in Possession of a Firearm,” he said. “But he [Prosecutor Binger] needs the AR-15, and ‘assault weapon,’ and the fear that goes with that, to try and bring home an unjust guilty verdict.”

When reviewing the testimony of former Marine Jason Lackowski, the defense noted that Mr. Grosskreutz had shouted at him, “Go home, we have our own medics!” Yet, it was Mr. Lackowski who put a tourniquet on Mr. Grosskreutz after his arm was wounded. Mr. Lackowski said on the stand that Rosenbaum was aggressive, not the defendant.

When reviewing the testimony of Sahil “Sal” Khindri, inventory manager of Car Source, Mr. Richards pointed out that every witness who was there said that the Khindri brothers were happy to have protection. Sal and Sam Khirndri may have a motivation to deny it and lie because they want to avoid a liability suit, Mr. Richards said, but the other witnesses were not charged with anything and there is no grounds for a suit against them. Mr. Richards said the State put the Khindri brothers on the stand to give the impression that Rittenhouse had not been asked to go to Car Source that night. However, Mr. Richards argued that Mr. Rittenhouse was asked, though indirectly. Mr. Khindri asked Nick Smith, and Nick Smith put a group together to help.

Mr. Richards went through the testimony of several witnesses who saw Rosenbaum behaving irrationally, being destructive, and making threats. He quoted a witness named Nathan Debruin, who had photographed the riots and gave his pictures to ATF and the FBI. As he put it, “If there was trouble, Mr. Rosenbaum was there.”

Mr. Debruin had heard Rosenbaum say, “I just got out of jail and I’m not afraid to go back.” Mr. Richards added that the state’s story is that Rosenbaum had just left the hospital, but they did not provide any records proving that he had been hospitalized.

Mr. Richards showed a video from the area where the Rosenbaum shooting occurred. Mr. Rittenhouse had testified that he had no place to run, because he was blocked by the crowd. The video showed this “wall of people” with little space between them. The crowd did not move after Mr. Ziminski fired his gun in the air, but they scattered after they heard the four shots Mr. Rittenhouse fired.

The defense wrapped up the closing by showing video of Mr. Rittenhouse being attacked as he ran toward the police. You could hear people in the crowd yelling, “Get his ass!” Slow motion video showed Mr. Rittenhouse on the ground, in the most vulnerable position, with Anthony Huber coming at him with the skateboard.

When video sequence was over, Mr. Richards said:

There was no threatening behavior that started this. Mr. Rosenbaum was hell-bent on causing trouble that night. He did what he did, and he started this. There are tragic parts of it, but Kyle Rittenhouse’s behavior was protected by the law of Wisconsin, the laws of self-defense.

In response to the State mentioning that Mr. Rittenhouse had not been injured, Mr. Richards said, “My client does not have to take a beating at the hands of this mob or the hands of Mr. Rosenbaum.”

“There are no winners in this case,” Mr. Richards concluded, “But putting Kyle Rittenhouse down for something he was privileged to do will show no legitimate purpose.”

There were 18 jurors who heard the case, and they were not informed beforehand whom the alternates were. The policy of this court is to allow all of the jurors hear the case, then select six numbers from an antique tumbler to decide which jurors would be the alternates. The remaining 12 decide. The defendant chooses the numbers from the tumbler. The final jury included seven women and five men, all but one apparently white. At this writing, the jury has already spent a full day in deliberation.

The atmosphere outside the courthouse is tense. The National Guard is on standby 60 miles from Kenosha in case of rioting. Supporters and detractors of Kyle Rittenhouse have been protesting in front of the courthouse. Police already had to step in and stop one confrontation.

Last week, the defense moved for a mistrial with prejudice, meaning that Mr. Rittenhouse could not be retried. Judge Schroeder took the motion under advisement. He may rule on the mistrial motion at any time, up until the jury renders a verdict.