I’ve already shared with you my lengthy, in-depth analysis of the recent pre-trial hearing in the Kyle Rittenhouse case, but there were a couple of moments of that hearing that I thought worthy of special attention, especially for those of you who might not readily have the time to work through the full analysis.
Incidentally, if you’ve already enjoyed the full analysis, you’ll already have heard me discuss the issue we’ll re-address here—feel free to listen to this more focused version of my explanation as well, I suggest it’s worth it, but it’s not going to differ much substantively from what you already heard this issue.
That said, this more focused format also allows me the luxury of blending the relevant video and audio from the hearing right into my commentary, which the more in-depth analysis didn’t allow.
So, let’s get to Prosecutor Binger and one of several of his remarkable arguments in last Monday’s pre-trial hearing for the Kyle Rittenhouse case, a Binger argument that I thought worthy of particular emphasis.
We join the hearing at a point where there’s an argument around whether evidence of the alleged rioting, looting, and arson activities of the men later shot by Kyle Rittenhouse—those men being Joseph Rosenbaum, Anthony Huber, and Gaige Grosskreutz—can be admitted before the jury at trial.
That evidence is being offered, of course, by the defense, which would love to have the foundation needed for them to refer to those three men as rioters, looters, and arsonists in front of the jury.
The prosecutor, obviously, would prefer the jury never see this truthful evidence, because he certainly doesn’t want the jury to understand the three men shot by Kyle as having been rioters, looters, and arsonists, for obvious reasons.
Now the focus at this point in the discussion involves video evidence of Joseph Rosenbaum committing acts of arson on the night in question. The defense wants to submit that video as evidence to the jury, and the prosecution is objecting forcefully.
The prosecution’s argument here is that the evidence should not be admissible, because there’s nothing to indicate that Kyle possessed knowledge of Rosenbaum’s arson at the time he shot Rosenbaum. (Such evidence is not, at least, in the record. In theory, Kyle could take the witness stand and provide such evidence in the form of his own testimony, but that would subject Kyle to cross-examination by the prosecution, which any defense attorney would prefer to avoid subjecting his client to.
So, for all practical purposes, because there is no evidence in the record of Kyle being aware of Rosenbaum’s arson conduct, Prosecutor is correct to point out that lack of evidence in the record.
And if there’s no evidence in the record that Kyle knew of Rosenbaum’s arson conduct at the time he shot Rosenbaum, Binger argues, then that arson conduct couldn’t have played a role in Kyle’s self-defense decision-making.
By extension, therefore, the arson conduct isn’t relevant to Kyle’s claim of self-defense.
In other words, if Kyle didn’t subjectively possess that knowledge, it couldn’t have had any impact on his own state of mind.
And that’s all true, as far as it goes.
Judge Schroeder, however, correctly notes—and cites from Wisconsin Supreme Court case law to support his position—that in a self-defense case such as this one there is a second basis for the introduction of evidence other than it being relevant to the defendant’s state of mind, and that is that it is relevant to the other party’s state of mind.
In particular, if the issue of who was the initial aggressor in the fight is in dispute, then evidence about specific acts of the other party may be relevant to the issue of whether it was Kyle Rittenhouse or whether it was Rosenbaum who were the initial aggressor.
So, Judge Schroeder suggests, evidence of arson by Rosenbaum would be relevant to the issue of initial aggressor, and therefore admissible for that purpose, even if Kyle Rittenhouse did not possess knowledge of that conduct by Rosenbaum at the time he shot him.
Here’s Judge Schroeder presenting that argument:
Prosecutor Binger’s response is, from this small-town lawyer’s perspective, nothing short of jaw dropping.
Prosecutor Binger argues that the issue of initial aggressor does not matter in this case, because at least in the context of Joseph Rosenbaum we have an armed Kyle Rittenhouse shooting an unarmed Rosenbaum, and, in Prosecutor Binger’s rather unique view of the law, an armed man can never be justified in shooting an unarmed man, even if it was the unarmed man who was the initial aggressor.
Don’t believe me? Let’s hear it straight from Prosecutor Binger himself:
So, in Prosecutor Binger’s view, an armed man can never be justified in shooting an unarmed man, as a matter of law, regardless of the surrounding circumstances. It doesn’t matter what the other facts might be, there can be no facts that would justify an armed man shooting an unarmed man.
To put it another way, Prosecutor Binger is arguing that Kyle could not, as a matter of law, been justified in shooting the unarmed Rosenbaum, and it doesn’t matter what other facts exist.
Note that if this were true, that the surrounding facts don’t matter, then this is an issue that ought not even be submitted to a jury—after all, the jury is the finder of fact, that’s their only job. If facts aren’t to be considered, then the matter doesn’t fall within the province of the jury. In this view of the law, once it is undisputed that an armed man has shot an unarmed man, self-defense is off the table, period, no matter what other facts might exist.
Indeed, that’s the very response of an incredulous Judge Schroeder to Prosecutor Binger’s remarkable—and remarkably mistaken—view of use-of-force law:
Of course, Binger’s position is plainly idiotic.
We all know, for example, that George Zimmerman shot an “unarmed” Trayvon Martin, justified that shooting in self-defense, and was acquitted by jury of all charges. Indeed, Zimmerman’s shooting of Martin was as clean a case of self-defense as I’ve seen brought to trial—at least, until this Rittenhouse case.
The controlling legal issue here is not whether one man is armed and the other not. The controlling legal issue is whether the armed man—admittedly using deadly defensive force—was using that force to stop a deadly force threat—that is, a threat readily capable of inflicting death or serious bodily injury.
If he was, then the fact that the person he was defending himself against forgot to bring a gun to the gunfight is not the defender’s problem.
And serious bodily injury, or even death, can certainly be inflicted by fists and feet, in which case it represents a deadly force threat against which deadly defensive force in the form of a gun can be used with perfect legal justification despite the aggressor being “unarmed.”
If an “unarmed” man such as Joseph Rosenbaum is attacking Kyle Rittenhouse and trying to seize possession of Kyle’s rifle—particularly after having threatened earlier in the night to kill Kyle—that’s clearly a use of force capable of inflicting death or serious bodily injury justifying Kyle’s use of deadly defensive force in the form of his rifle in lawful self-defense.
Similarly, if an “unarmed” Trayvon Martin is mounted atop George Zimmerman on a sidewalk and is viciously beating George’s head into the cement—”ground & pound style,” as viscerally described by an actual eyewitness at trial—that’s clearly a use of force capable of inflicting death or serious bodily injury—as medical experts testified at trial—justifying George’s use of deadly defensive force in the form of his Kel-Tec pistol in lawful self-defense.
Not only is the shooting of an “unarmed” man in either of those two scenarios not forbidden as a matter of law, contrary to what Prosecutor Binger rather insanely argues in court to a trial judge, that shooting of an “unarmed” man is a perfectly proportionate and lawful use of force in self-defense.
Exactly as the Zimmerman jury affirmed with their acquittal on all charges. And as the Rittenhouse jury, if they similarly base their verdict on the actual evidence and law, will also acquit on all charges.
Yet here poor Prosecutor Binger appears to not understand this core legal principle of use-of-force law. Just to make sure we heard it right, let’s play his statement again:
Yep, we heard it right. Prosecutor Binger, I regret to inform you that’s not how this works. That’s not how ANY of this works.
And this is the guy trying to railroad Kyle Rittenhouse into prison for the rest of his life for the offense of successfully defending himself, as a child, against three grown men—consisting of a multiply-convicted child molester, a domestic abuser, and a gun-law criminal—who were attempting to inflict death or serious bodily injury upon him.
And I certainly hope that Judge Schroeder affords Kyle’s defense team the opportunity to demonstrate to the jury just how contemptible the prosecution, so that they can promptly return an acquittal.
I have another such notable moment of Prosecutor Binger’s interesting views on use-of-force law from last Monday’s hearings, but I’ll present those separately to keep each of these pieces reasonably concise.
OK, folks, that’s all I have for you on these jury selection proceedings today.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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