Welcome to today’s Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial. I am, of course, Attorney Andrew Branca, for Law of Self Defense.
Today was the fifth day of the trial by which ADA Thomas Binger’s is seeking to have Kyle Rittenhouse convicted and sentenced to life in prison for having shot three men (two fatally) the night of August 25, 2020 in Kenosha WI, when the city was suffering a tsunami of rioting, looting, and arson following the lawful shooting of a knife-wielding Jacob Blake by Kenosha police officers.
And it would be hard to fully express what a catastrophe this day was for Prosecutor Binger.
The prosecution’s demise came into the courtroom in the form of its star witness, Gaige Grosskreutz, famously struck in the right bicep as he closed on the fallen 17-year-old with a Glock pistol in his hand.
Grosskreutz is the only survivor from among the three men who were struck by Kyle’s desperately fired rounds, and the only one of Kyle’s attackers available to testify for the State in this prosecution (the fourth primary attacker, “jump kick man,” had the unbelievably good fortune to be missed twice by the 17-year-old, and has since disappeared off the face of the Earth).
Grosskreutz is fortunate that modern American courtrooms don’t do trial by combat, because otherwise he’d have been carried out of the courtroom mortality wounded by his own testimony.
Perhaps guessing how poorly today’s Grosskreutz testimony would go for him today, ADA Binger did come to court with a trick up his purple sleeve—the sudden discovery, just this past Friday, of “high-definition” drone footage that he and his crack investigative team present as putting the final nail in the coffin of Kyle’s claims of self-defense in his shooting of Rosenbaum.
To that my lawyer’s Magic 8-Ball says “Yeah, not so much”—and I’ve seen this purported video. You will, too, as it’s embedded in today’s content.
In fact, today’s content will be light on written legal analysis, and heavy on short, focused embedded video, because that’s where the gold is today.
Without further ado, let’s dive right in.
The Implosive Testimony of Gauge Grosskreutz
First, in the interests of time, I’m going to focus here just on the testimony provided by Grosskreutz on cross-examination, because that’s where the meat is. Indeed, much of the cloying direct questioning by ADA Binger sounded more like the kind of conversation one might overhear of two people on their first date, rather than the direct examination of a prosecutor seeking to prove a homicide case beyond a reasonable doubt.
As I stepped through the cross-examination of Grosskreutz today, I identified no fewer than 19 substantive portions, nearly 50% of the total time spent on cross by Attorney Chirafisi, that were substantively destructive to the State’s narrative of guilt, and helpful to the defense narrative of self-defense. It was harder to identify the parts to leave out of today’s end-of-day post than it was to select the parts to keep in.
It was, in short, a veritable legal bloodbath.
Grosskreutz Only Shot When His Gun Aimed at Rittenhouse
By far the most destructive of Grosskreutz testimony to the State narrative of guilt was when he recounted before the jury that at the moment that he was shot in the bicep by Kyle—the moment that his bicep was “vaporized,” to use his own language—his Glock 27 .40-caliber pistol with a round in the chamber was pointed directly at Kyle from a distance of perhaps 3 feet.
All this while he insisted on direct examination that he would never be able to shoot another human being, because “that’s not the kind of person I am.”
Here’s that clip of cross-examination:
Kyle Only Ever Shot People Actually Attacking Him
Almost as compelling was Gaige Grosskreutz—I remind you, the STATE’s star witness—testifying repeatedly how Rittenhouse only ever shot at people who were actually attacking him, and never fired a shot at anybody who was not, or even anybody who appeared to have begun and attack but then backed of.
Here’s Grosskreutz recounting how Kyle had the opportunity to shoot him as he rushed up, gun in hand, but did not fire when Grosskreutz put the brakes on his rush and put his hands up in the universal gesture of “unthreatening.”
Here’s Grosskreutz testifying that it was not just himself who Kyle declined to shoot when he appeared to stop an rushing attack—there were other people who also rushed at Kyle, then put on the brakes, and had Kyle pass on the easy opportunity to shoot them:
Grosskreutz Was Concerned Attacks Might Cause Kyle Senior Injury
Perhaps as sweet as Grosskreutz’ testimony about how disciplined Kyle was in his judicious use of deadly defensive force only against people apparently attempting to kill or maim him, was Grosskreutz’ testimony about his own tender concerns for Kyle’s well-being while being attacked by multiple deadly force aggressors.
Here’s Grosskreutz testifying that in his opinion Kyle was in genuine physical danger, a danger about which he himself was concerned:
Here’s Grosskreutz testifying that he was particularly concerned that Kyle might suffer serious head trauma under the tender mercies of Anthony Huber’s skateboard—in the same day that ADA Binger sought to ridicule the notion that a skateboard could present a deadly force threat.
In fact, Grosskreutz was on record as having told police that he was particularly concerned about the manner in which Anthony Huber was swinging the skateboard with a grip on the “trucks,” the metal fixtures that attach the wheels to the board, and which provides for the board to be struck with exception force.:
Grosskreutz Shouted at Huber to Stop Striking Kyle with Skateboard
Indeed, so concerned was Grosskreutz by the danger of Huber’s skateboard attack, that he repeatedly shouted at Huber to stop hitting Kyle with the board—yes, that’s his own testimony under cross-examination today:
Grosskreutz Concedes “Jump Kick Man” Kicking Kyle in the Face with Boots
And it wasn’t just Huber whom Grosskreutz described as attacking Kyle with deadly force—meaning, legally, force capable of causing death or serious bodily injury. Although Grosskreutz burned much of what little credibility he might have had by pretending that “jump kick man” was not kicking work boots into Kyle’s face, he was ultimately compelled to conceded the truth of that attack:
At Every Grosskreutz Had with Kyle, the 17-year-old Was Non-Confrontational
Perhaps as helpful to the defense, Grosskreutz was compelled under cross-examination to concede that in every one of his own interactions with Rittenhouse—until, of course, his attack on the fallen 17-year-old with the Glock pistol—that Kyle was far from volatile or provocative, but was instead non-confrontational, and simply seeking to help people. And this was true even when it was Grosskreutz himself acting in a provocative manner towards Kyle:
So Much for the “They Were Saving Kenosha From an Active Shooter” Narrative
As for the notion pushed by ADA Binger that the men attacking 17-year-old did so in the belief that he was a purported “active shooter,” Grosskreutz put a stake in the heart of that nonsensical narrative when he conceded that even he—the only identified of the attackers on Kyle who could have been so motivated—lacked any reasonable basis on which to come to such a conclusion.
As I noted in my most recent post examining the issues of provocation in this case, an “active shooter” belief that Kyle was an “active shooter” in the absence of evidence consistent with such a perception can only be an irrational, speculative, and imaginative belief . And an irrational, speculative, and imaginative belief of an attacker cannot in any way diminish a defender’s privilege of self-defense.
To allow this to be would be to make every claim of self-defense contingent on the irrational, speculative, and imaginative beliefs of the attacker—and that’s not how self-defense law in general, nor the law in particular, works.
In the context of an “active shooter” perception, for that perception to be reasonable, and not merely speculative, at a minimum there must be evidence of the core characteristic of an “active shooter,” as an aggressor who has or is attempting to shoot multiple people. And Gaige Grosskreutz, naturally, had zero evidence that Kyle had engaged in any such activity.
Surprise! Grosskreutz Himself was UNLAWFULLY Armed with a Firearm
On particularly ironic aspect of Grosskreutz’ cross-examination was when it was revealed that while Kyle is looking at a life sentence in prison, plus 5 years, if he’s convicted on his own unlawful gun possession charge, it turns out that Grosskreutz himself was unlawfully in possession of the Glock pistol with which he attempted to kill Kyle.
While Kyle was carrying his AR rifle openly, and open carry requires no license from the state of Wisconsin, Grosskreutz was carrying his pistol concealed—and concealed carry does require a license from the state of Wisconsin.
And Grosskreutz did not have a valid concealed carry permit. True, he had an invalid permit—but there’s a reason the law distinguishes between valid and invalid permits. The former has legal effect, and the latter does not.
Liar, Liar, Pants on Fire!
For much of the rest of his testimony under cross-examination, Grosskreutz simply presented as a bald-faced liar.
For example, despite the voluminous video evidence of Grosskreutz chasing down a fleeing Kyle Rittenhouse, video that was repeatedly shown to the jury during cross-examination, Grosskreutz repeated lied and said he was not chasing Kyle.
I mean, who are we supposed to believe, the felon who tried to gun down a fallen 17-year-old in the street, or our own lying eyes?
Here’s the first instance of the “I wasn’t chasing nobody, Officer!” lie:
Grosskreutz’ blatant lying, at least by omission in this instance, also came up when Corafisi repeatedly exposed his failure to disclose to anyone at the time—or even in his currently pending lawsuits in state and Federal court—that he was armed when he was shot by Kyle.
Instead he either completely forgets to mention that he was pointing a gun at Kyle when he was shot in the bicep, or he completely fabricates a fairytale about his gun having fallen out of his holster while he was “not chasing” Kyle down Sheridan Street.
A Revolutionary? Who, Me? I Just Speak At Their Rallies!
Grosskreutz was also rather awkwardly caught lying about his relationship with his favorite “Revolution!” political group, claiming he didn’t have any association with them—except for having spoken at their rally, having shouted “Long live the revolution!” with a fist salute, and having members actually occupying several of the hard-to-get seats in the courtroom during his testimony.
Grosskreutz Tweets About His Testimony—Last Friday
Another sign of Grosskreutz remarkable lack of prudence was exposed when Chirafisi pulled up a tweet by the witness making in anticipation of his upcoming testimony, in which he’d festooned the tweet with a “winky emoji face.”
A tweet he sent just this past Friday, knowing that he would be testifying on Monday. Good show to the defense for catching it.
The State’s Suddenly Discovered “Unicorn” Evidence
As entertaining as the Grosskreutz cross-examination was to watch, another highlight of the day was ADA Binger’s “triumphant” presentation of his suddenly discovered “Unicorn” evidence that I supposed is intended to put the final nail in the coffin of Kyle’s self-defense narrative.
This “unicorn” evidence comes in the form of drone footage—not the FBI aerial footage we’ve already seen, but footage from a consumer-level drone, like a DJI Mavic 2 Pro. This amazing video footage purportedly appeared on the prosecutor’s doorstep just this past Friday morning, left I suppose by the evidence fairy.
Footage from the drone was show in Binger’s direct examination of Detective Antaramian, who has been sitting at the prosecution table for much of this trial, and who was a purportedly “independent” lead investigator in this case. Another lead detective on this case who had less than two years in that position when assigned.
Although Binger introduced the footage in his direct of Antaramian, he didn’t ask anything substantive about it until he had the detective on re-direct. At that point, he asked the detective to share with the court his perception of what the video showed.
A more hesitant and ambiguous testimony is hard to imagine. The detective cautioned that he’d only looked at the video “a little,” over the weekend, and he’d only had his relatively “low resolution” smart phone to view the video on.
If he simply had to share an opinion on what the video showed however, he believed it showed Kyle Rittenhouse raising his rifle “in the direction” of the Ziminski’s. Further, at the moment that Kyle shot the charging Rosenbaum, Rosenbaum was no closer than three feet, and certainly not sufficiently close to touch Kyle’s rifle.
On re-cross examination, Chirafisi expressed some incredulity that the detective could make out such detail in the drone video, from what he himself had seen of it. The detective explained on that on his phone he had the ability to zoom in, and that’s what yielded the necessary detail.
Well, folks, I also have the ability to zoom in, and I do it not on a smart phone but on a giant 4k iMac computer monitor. And when I zoom in to the scene that captures Kyle going past the Ziminiski’s I see nothing whatever that looks like anyone pointing a rifle in the direction of anyone else. What I see is a bunch of pixel soup.
Further, on re-cross Chirafisi had the detective concede that there was evidence of powder stippling on Rosenbaum’s body at autopsy—such stippling is essentially gun powder flakes embedded in the skin, and occurs when the person exposed to the shot is quite close to the muzzle.
Of course, Rosenbaum was not standing still, out of arms’ reach, he was charging at Kyle at full speed. If he happened to not quite be in arms reach at the moment, he certainly would have been in the next tenth of a second.
Further, given that the prosecution had supposedly never possessed this evidence until this past Friday, it could not have been part of their theory of the case, or the basis for any criminal charges. Lucky, lucky? Or Fakey, fakey?
Here’s a mash up of Binger first showing the drone video on direct, and then asking for Detective Antaramian’s interpretation of the video on re-direct:
Again, to me, I don’t see anything of what ADA Binger claims the video to show, and when the video is examined substantively, I don’t expect the jury to see anything contrary to self-defense, either.
And all from “unicorn” evidence left one business day ago on the prosecutor’s doorstep. Amazing.
OK, folks, that’s all I have for you on this topic.
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
Law of Self Defense Platinum Protection Program
IMPORTANT: We encourage civil and reasoned debate among Members in the comments. That said, comments reflect the opinion (legal or otherwise) of those who authored them only, and no comment should be assumed to reflect the opinion of, or be assumed to be shared by, Attorney Andrew F. Branca, except those authored by Attorney Branca. Law of Self Defense LLC does not systemically moderate comments for legal correctness, and we suggest that all comments be viewed with an appropriately critical eye and a grain of salt.
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Law of Self Defense © 2021
All rights reserved.
26 thoughts on “Rittenhouse Trial Day 5: Prosecution’s Star Witness Gaige Grosskreutz Implodes on the Stand”
I don’t see Kyle pointing his rifle at anyone after he shot Rosenbaum in the car source parking lot. Andrew what did you think about Gaige claiming that Kyle was trying to fix a rifle malfunction and that was why Gaige pointed his gun? I know there was no extra casing or unspent round collected into evidence. I watched the video in slow motion and I couldn’t see anything that shows Kyle re-racking his rifle. Sounds like some BS!
When K shot Huber, Huber had grabbed the rifle at the receiver. It is most likely that Huber’s grip was on the bolt catch and that the bolt locked open after the shot. K looked and saw the bolt open (out of battery) and hit hit the release to put the fire back into battery. I cannot see him go for the charging handle. There was no malfunction to clear.
Some incorrect autocorrect in there, sorry.
I do suspect that GG thought there was a malfunction when he saw K looking at the open bolt and thought that was his chance to RE-engage.
K’s operation of that rifle under those circumstances was extraordinary under those circumstances. With some work he is special forces material. Which is where he belongs if this society had a lick of sense.
Not trial for taking out some trash.
I don’t understand what you are trying to say. An AR type rifle fires from a closed bolt and if there was an open bolt with cartridges still in the mag, then there was a malfunction of the weapon. I think Grosskretuz just made up the “racking of the bolt” in an attempt to justify his obvious attempt to use force.
The bolt did not completely cycle when K fired at Huber because Huber had grabbed the rifle by the receiver when K fired. There is a bolt catch on the receiver. You can see in a frame by frame that Huber did not release his grip on the rifle in the time that would have elapsed for the bolt to cycle. If he had pressure on the bolt catch, the bolt would locked open when fired and not gone back into battery. The gun operated as designed. It had not “malfunctioned”, it had been interrupted in the firing sequence. K looked and saw that the bolt open and had the unbelievable presence of mind to see that there was round in chamber and no jam. All he had to do was drop the bolt with the bolt release. Which he did. The rifle is now back in battery and ready to go. GG miscalculated. K did not need to go to the charging handle. The bolt was already open. Just go to the bolt release. K did not run a malfunction drill in that moment, he did not need to. GG heard the bolt go back into battery; and in one of the videos it is audible. I am just in awe of his poise, awareness, and weapon handling skills in that crazy situation.
Meant to say above “no round in chamber and no jammed cartridge”. He had an open bolt on a loaded magazine and no round in the chamber. The resolution of that is to drop the bolt, not cycle the charging handle. One would do that on a closed bolt with a loaded magazine.
GG miscalculated thinking he had time to aim and fire at K because of a malfunction. There was no malfunction, all K had to do is hit the bolt release. That is why he did not move his hands on the rifle. There is confusion about how and when we see him go for the charging handle. He did not because he did not need to.
One of several instances of perjury from Grosskreutz.
Andrew, you said: ‘As I noted in my most recent post examining the issues of provocation in this case, an “active shooter” belief that Kyle was an “active shooter” in the absence of evidence consistent with such a perception can only be an irrational, speculative, and imaginative belief . And an irrational, speculative, and imaginative belief of an attacker cannot in any way diminish a defender’s privilege of self-defense.’
Isn’t the homicide victim’s state of mind immaterial and irrelevant as to the defendant’s justification claim, making the homicide victim’s belief, no matter what that belief was or how reasonable it was, immaterial and irrelevant, and not evidence of any probative value at all in the case? In this case, and in the Arbery case, the law simply does not care or is not concerned with what the homicide victim’s beliefs were, or whether or not they were reasonable.
The reasoning gets circular and complicated here because of the “provocation” issues. I don’t think it changes the outcome, but the legal analysis gets messy. What really matters is not their state of mind, but whether Kyle committed conduct of provocation. Binger is attempting to blur things by arguing that what matters is WHAT THEY PERCEIVED, rather than what Kyle ACTUALLY DID. Of course, what Kyle might have done would also be perceived, and they would react, and that’s all part of provocation.
Wisconscin’s codification of the common law of homicide (justified, excusable, and felony) is so uninteligible that it is unconstitutional. Under the common law the most Rittenhouse could be charged with is manslaughter and attempted manslaughter and to prove those charges the state would have to prove the homicides were not necessary to protect Rittenhouse’s life or limb. To prove that, the state would have to prove that Rittenhouse was either the initial aggressor in the encounters, or that certain and immediate suffering would not have been the consequence of waiting for the assistance of the law.
Blackstone summed up the common law of excusable homicide in self defense as this: “They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.” This law is not repugnant to the United States Constitution or the constitution of any State and has been adopted by statute or case law in every state, and almost every state has codified it. Wisconsin did a very poor job of codifying it.
I caught that too. I am not an AR expert, but 30 round mag plus one in chamber equals 31 rounds total capacity.
Nobody actually does that, though. At least nobody knowledgeable with the platform. 28 in the mag, one in the chamber, works better.
What a freaking mess.
Looks like the 10 million dollar lawsuit just vaporized.
Chirafsi looks so much like the actor who played the villain in the Antman movie that I expect him to pull out the Yellowjacket costume at any moment.
I wonder how this would have worked out without video?
Are we far from the days when everyone needs a body camera 24 x7.
I’ve been wondering that, myself. That, and dash-cam video, and if we can have drones follow us 24 x 7, that would probably be a good idea, too.
Having said that, I’m outright astounded by how much video there is in this one case, and I can’t help but suspect there’s a lot more out there, that either hasn’t been submitted, or just hasn’t been used.
Indeed, I’m half-convinced the “unicorn” drone video was taken by a time traveller who decided to record what happened to Rosenbaum, considering the timing involved where it seemed to go up in the air to watch the crowd just as Rosenbaum closed in on Rittenhouse!
These breakdowns are very useful and well done. Thanks.
My concern is for the other 99% of the media who apparently thought yesterday’s drivel (And that from earlier days.) from the felon with a gun was devastating stuff for Rittenhouse. This “reporting” is why there are people who adamantly believe that Rittenhouse is an evil person who went looking to shoot some innocent activists.
And the rage they carry, and display, is terrible for society.
I believe the detective said when he zoomed in on the drone footage it appeared he was 2-3 feet from KR. Even if that is true, the barrel of the rifle is most likely 18-20 inches, plus another 12 inches for the receiver and buttstock, so 2-3 feet puts him at the end of the barrel.
After Grosskreutz testimony cross why didn’t the defense motion for a directed verdict?
The weak and intentionally annoying prosecution had me questioning. Now the $10MM suit throws another log on to why the state would not want K convicted.
The state doesn’t care about the $10 million dollars. That’s on the taxpayer.
It appears you posted the wrong video under “At Every Grosskreutz Had with Kyle, the 17-year-old Was Non-Confrontational” as that’s the same video shown under another section “Surprise! Grosskreutz Himself was UNLAWFULLY Armed with a Firearm” and shows Grosskreutz admitting he didn’t not have a valid CCW permit.
That could be. I’m at Dulles, but when I get back to the office I’ll see if we can’t fix that.