Rittenhouse Trial Day 8: The Prosecution’s Last Desperate Lunge for Evidence of Guilt

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 eighth day of the trial, and the final day of testimony, aby which ADA Thomas Binger 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 today, the final day of testimony in the trial, was the first time the prosecution had offered any evidence in this case that was inconsistent with Kyle’s core legal defense of self-defense, in a case where that legal defense of self-defense must be disproven by the State beyond a reasonable doubt.

Worse, that evidence came in the form of two fuzzy “enhanced” photo exhibits, admitted in the closing minutes of the trial, under circumstances in which even the State expert responsible for creating the images cannot tell the court that the “enhancement” process hasn’t loaded them with false artifacts not present in the original images.

Indeed, that expert who created the “enhanced” images testified before the jury today that he had personally never bothered to compare the original and “enhanced” versions side-by-side to ensure that the “enhanced” version was a fair and accurate representation of the original.

The State’s claim is that the offered images demonstrably and incontrovertibly show that Kyle Rittenhouse pointed his rifle threateningly at Joshua Ziminski in the moments before he was murderously pursued by Joseph Rosenbaum.

I know you’re all wondering, so here’s my copy of these purportedly pivotal images that the State claims proves Kyle Rittenhouse proof of five felonies and a misdemeanor gun charge beyond a reasonable doubt:

It’s worth keeping in mind that other than these images, there is literally zero evidence in this trial that is inconsistent with Kyle’s claim of self-defense.  So to believe that legal defense disproven beyond a reasonable doubt, these images are all one has on which to base such a belief.

Perhaps you see that disproof of self-defense beyond a reasonable doubt in those images—I certainly do not.

To believe the State’s representation of these images, you would also have to believe that right-handed Kyle suddenly decided to hold that rifle in a left-handed manner, with the buttstock in his left shoulder, and the muzzle raised upward.

Instead, it’s far more likely that the right-handed Kyle was holding the rifle in a right-handed manner, with the buttstock in his right shoulder, and the muzzle pointed down.

Much as he is in this photo from happier times:

UPDATED: A side-by-side view from friend Jack Posobiec (@JackPosobiec):

It’s also worth noting that these images were pulled from the video footage captured from a drone that the State did not possess until this past Friday, and these enhanced versions of the images were not available until today.

That means that for fifteen months the State investigated and prosecuted Kyle Rittenhouse for these many felonies and the gun charge without this purportedly decisive evidence in its possession—and without this purportedly decisive evidence provided by the evidence fairy at the 11th hour, what was the justification for this prosecution?  It certainly wasn’t the enhanced drone photos that the State did not possess until today.

The admission of these images into evidence in the first place was a sketchy proposition from the start, with the defense reasonably objecting for grounds we’ll cover in detail in a moment.  Indeed, when ADA Jim Kraus, leading the lumbering charge on their admission, sees that he might lose that argument, you can fairly smell the flop-sweat over the internet.

If you’ve never seen a grown man beg another grown man for a desperately desired favor, you’ll see it in the video I’ll share of ADA Kraus begging Judge Schroeder to allow these images before the jury.

There were other witnesses today—most notably defense use-of-force expert Dr. John Black—but to my mind the energy of the day was centered around this pair of fuzzy images that I’m sure the state will use as the foundation for their otherwise house-of-cards narrative of guilt in their closing arguments on Monday, so I’ll start off today’s content by focusing here.

Fair and Accurate Representation

Before we dive into the brouhaha around these images and their admission, however, it’s worth taking a moment to discuss what’s generally required for photos to be admissible as evidence in court in the first place.

Evidence in court generally comes in the form of witnesses possessing direct personal knowledge of whatever it is they intend to testify about.  Mary saw the dark-haired man rob the liquor store, she can testify about what she saw, her personal perceptions of that event.

Photos and videos, of course, cannot take the witness stand and testify for themselves.  They get admitted when a human being is first brought in to provide an evidentiary foundation for their admission.

So, if a photo taken of a crime scene is going to be offered into evidence, the person who took the photo might be brought in to testify, in person, that the photo being offered into evidence is a fair and accurate representation of the scene it depicts.  Without that evidentiary foundation, the photo is likely not admissible as evidence.

In this case we have this “unicorn” drone video that the evidence fairy dropped off on the prosecution’s doorstep this last Friday.  The prosecution would like you to believe that this drone video shows Kyle Rittenhouse pointing his rifle at Joshua Ziminski, and thus provoking the attack of Joseph Rosenbaum.

As I’ve written elsewhere, a purported provocative act of this kind by Kyle opens an avenue of attack on Kyle’s claim of self-defense—and it’s an avenue the prosecution is absolutely desperate to have available, because through the entirety of this trial to date there has literally been zero substantive evidence presented that is inconsistent with that claim of self-defense—in a case where the State not only must disprove self-defense, but do so beyond a reasonable doubt.

The difficulty for the State with respect to the “unicorn” drone video footage left on their doorstep by the evidence fairy is that it really shows nothing discernible at all in its originally form—even when zoomed to max on the giant 4K monitor of my iMac—and certainly nothing that looks demonstrably like Kyle Rittenhouse pointing his rifle at anybody.

Indeed, when it was presented to Kyle on the witness stand, he flatly denied it showed anything of the sort, testifying that to him it merely appeared to show his shoulder rising slightly, but the muzzle of his rifle still pointed towards the ground.

In response, the prosecution went back to their “imaging expert” James Armstrong, who had provided the evidentiary foundation for the initial admission of the drone video footage in the first place.  The prosecution asked James to clarify and magnify the tiny area of the video footage that purportedly showed Kyle pointing the rifle.

And here’s where the difficult arises—in the magnification.  Digital images consist of a number of pixels of different color, which collectively form a mosaic image we recognize as a photo or video.  In our modern IT world, for example, many common images for internet use are 1920 pixels wide and 1080 pixels wide.

Imagine now that you want to take a small portion of that 1920×1080 image, perhaps a segment that’s only 192 x 108 pixels in dimension, and magnify it substantially, so that the small selected portion ends up itself being 1920×1080.

Well, you’ve started with 1/10th of the pixels of the original, and want to get back to 10/10th that number of pixels. What to do?

What in fact happens is that whatever imaging software is used to do this “zoom” will spread out the 192 x108 pixels until they occupy the area of 1920 x 1080, and then fill in the empty space between the original pixels with brand new pixels.

But pixels have color, and these brand new pixels don’t inherently come with any color—they are new-born pixels.  What to do?

Well, most imaging software will “guess” at what color the new pixel should be by looking at the actual color of one of the adjacent original pixels.  Is the “neighboring” original pixel blue? Well, the software makes the new pixel blue.

Clearly, this is new information being added to the enlarged version of the image that was not contained in the original image—a brand new pixel colored blue.

Other imaging software doesn’t just assume the color of the nearest adjacent original pixel, but may look at multiple nearby pixels.  This creates its own problems for the task of ensuring that the enlarged image faithfully reflects the image.

For example, imagine an original image that consists of an alternative pattern of red and blue squares.  You enlarge it ten-fold, dump in a bunch of new-born pixels, and now those pixels need to be assigned some color.  The imaging software might assign some of them the color red, and others the color blue—and still others the color purple, a combination of red and blue, but a color that never actually existed in the original.

That purple is now a false artifact in the enlargement that is not a fair and accurate representation of the original image.

In normal life, of course, we don’t enlarge our own photos by 10-fold, or at least we don’t do it more than once.  Such a sizeable increase tends to result in a blobby image with indistinct borders and colors, and more resembling a complex visual stew than an accurate depiction of whatever the original image might have been.

That is, however, essentially what the prosecution has done in this case.  They have taken a small portion of a distant image taken by the drone camera—the portion that purportedly shows Kyle Rittenhouse pointing his rifle at Joshua Ziminski—and then enlarged that image enormously until, I suppose, it appeared to show what the prosecution wanted it to show.

The difficulty here is that what is now being shown in this substantially enlarged image may consist largely of artifacts introduced by the imaging software algorithm when it added pixels and then applied some black-box method to assigning colors to those pixels.

This was the defense objection to the State’s offer of these “enhanced” images from the drone video, without which images the State has essentially nothing to offer to counter Kyle’s claim of self-defense, and therefore this objection and the prosecution’s struggle to overcome it became the pivotal battle of the day.

There were, of course, other witnesses, including the defense use-of-force expert Dr. John Black, Police Officer Brittany Bryan, and Drew Hernandez, but with the exception of Dr. Black’s contribution to the arguments over the State’s “enhanced” photos, none of that mattered all that much.

So, let’s dive into the “unicorn” enhanced images left by the evidence fairy debate.

Argument? What Argument?

One of the humorous aspects of the offer of these “enhanced” images was both parties pretending that there wasn’t going to be a fight over them, even though everyone knew there certainly was going to be a fight over them.  Prior to the last court break that preceded the State offering these images the State assured the court that they didn’t expect any big argument over them, and the defense just shrugged, keeping its cards close to its chest.

Well, not really.  Just prior to State expert James Armstrong being recalled to the stand to offer these “enhanced” images of his, the defense expert, Dr. John Black found himself back on the witness stand in the afternoon after having his morning testimony interrupted due to an unexpected series of circumstances.

At this point the defense clearly knew the Armstrong “enhanced” images testimony was coming shortly, so they had Dr. Black explain the whole “added pixels of algorithm-selected color” issue in his own testimony.

Therefore when it came time for the State to offer Armstrong’s testimony in support of the admission of his “enhanced” images, the defense had laid the groundwork with Judge Schroeder to first voir dire Armstrong outside of the presence of the jury and before he would testify in front of the jury.

And that’s where we get into the meat of things with respect to these “enhanced images.”

Defense Voir Dire of James Armstrong, State Image Expert

Because it was the defense challenging the State’s offer of evidence, it was the defense, in the person of Attorney Corey Chirafisi, who led the direct on the voir dire of Armstrong.

During that voir dire he essentially covered the explanation of image enlargement adding newly born pixels of a color determined by black-box algorithm in much the same manner as I’ve described above.

The point, of course, is that to the extent that this “enhancement” process  my insert newly created artifacts in creating the enlarged version of the original, the enlarged version may no longer be a fair and accurate representation of the original.

And if that’s the case, it’s not admissible as evidence in its own right.  The party offering the “enhanced” version would have to settle for simply showing the jury the original.  Of course, if the original had been adequate to their purpose, they would not have bothered to make the “enhanced” version in the first place, so they are as a result left with an original which does not serve their purpose.

The bottom line for this defense voir dire of Armstrong was that he conceded that the enlargement of the image required the placement of new pixels, that those pixels were necessarily assigned a color, that it was the software algorithm that selected the particular color, and that he personally had no idea how the algorithm made that choice.

Here’s the video of that defense portion of this voir dire:

State Voir Dire of James Armstrong, State Image Expert

The State’s voir dire of Armstrong, led by ADA Jim Kraus, didn’t directly counter the defense position—how could it, when the defense position had just been affirmed by Armstrong himself?

Instead, the prosecution engaged in the kind of frantic hand-waving we’ve come to expect from them.

Isn’t this software you used a “gold-standard” for forensic image analysis. Armstrong confirmed it was—but that doesn’t change his own admission that the software inserts pixels that are colored by a process he can’t explain.

Wasn’t your work peer-reviewed by another qualified forensic image analyst?  It was—but again, that doesn’t change the added pixels with computer assigned colors problem.

Isn’t hour forensic imaging lab accredited?  It sure is—but again, that has nothing to do with the algorithm concern the defense had raised.

Really, all the prosecution could do is engage in appeals to authority—but not in manner that addressed the core concern raised by the defense.

In short, while Kraus got Armstrong to affirm repeatedly that, really, this is how he and many others used this software all the time, at no point could Armstrong be knocked from the unavoidable concession that the algorithm added new pixels not in the original, and assigned those pixels colors in a way he himself did not understand.

And, indeed, the state voir dire of Armstrong was mercifully short, because it was unavoidably superficial.

Here’s the video of that brief State’s voir dire of Armstrong, after which the imaging expert was dismissed from the witness stand so the parties could argue their positions to Judge Schroeder:

Judge Schroeder Takes a Look for Himself

Then we had the parties argue the matter to Judge Schroeder.  The defense offered a motion to have these sketchy-as-heck “enhanced” images be deemed inadmissible as evidence.  In response to the reasoned arguments of the defense, ADA Kraus responded primarily with large quantities of desperation and flop sweat.

At this point Judge Schroeder asked to take a look at the images himself.  When he looked these over at the bench, he clearly couldn’t make much out of them, so he then asked to be shown the drone video footage from where the images had been captured., which he watched standing before a giant 4K television from a few inches distance.

Here followed a humorous sequence of events in which the judge watched the relevant portion of the drone video, apparently saw nothing obviously useful, and said, “Again.” And then “Again.” And “Again.” And “once more.”

I suggest to all of you that if these “enhanced” images and the video from which they were taken were as obviously decisive as the State would like to believe—and would like the jury to believe—it doesn’t take multiple viewings to come to that conclusion.

In the end, the judge still seemed unconvinced that he’d seen what the State claimed the images and video to show, and walked back to his bench shaking his head.

Here are those arguments before Judge Schroeder, and his own inspection of the purported evidence:

Ultimately, Judge Schroeder decided that he would let the State argue its offering of the “enhanced” image to the jury by the direct testimony of Armstrong in front of that jury—in turn, the defense would have the opportunity to cross-examine Armstrong in front of the jury, exposing his uncertainty as to how newly-added pixels were assigned colors in the “enhanced” images. That said, the judge did suggest he was not absolutely committed to allowing the images in until after he’d seen the results of that cross-examination by the defense.

From there, the judge figured, the jury could make its own determination about how much weight to assign to these “enhanced” images.

Direct Questioning of James Armstrong, State Image Expert

Now it was the State who took the lead, beginning the questioning of their expert to elicit the testimony needed to provide the foundation required for the “enhanced” images to be offered into evidence.  This was now being done in front of the jury which had been brought back into the courtroom.  Again, this was largely duplicative of the arguments already made, so I’ll simply share the video of ADA Kraus’ direct of Armstrong with you:

Cross-Examination of James Armstrong, State Image Expert

Defense Attorney Corey Chirafisi conducted the cross-examination of Armstrong, repeating the same lines of argument made during voir dire:

Re-direct of James Armstrong

Obviously fearful that Judge Schroeder might yet decide the “enhanced” photo images might fail to qualify for admission as evidence, ADA Kraus returned on re-direct with more argument—and repeated a common error of this prosecution throughout the trial of asking a witness a question to which he didn’t know the answer, and to which he got an answer he wouldn’t like.

At about 1:35 into this re-direct, Kraus asked Armstrong, “So you do compare [the “enhanced’ image] to the original?”  Shockingly, Armstrong responded “I did not compare [the “enhanced” image] to the original in this instance, no.”

See for yourself:

I believe at that point I live-commented something to the effect of: “WTF”?

Re-cross  of James Armstrong

Chirafisi naturally jumped on this surprising concession on re-cross of Armstrong.  Effectively he asked, wait a minute, you are offering this “enhanced” version of the images as being fair and accurate representations of the originals—but you don’t actually both to compare them side-by-side with the originals?  Nope:

Re-re-direct of James Armstrong

In a final reflection of how desperate the State is to get these “enhanced” images into evidence and before the jury, ADA Kraus actually came back for a re-re-direct of Armstrong, in an ultimately successful effort to rehabilitate the witness enough to keep the door open for the admission of the “enhanced images.”

“Enhanced” Images Published to the Jury

Ultimately, the judge allowed these “enhanced” images to be “published” to the jury, meaning the jury actually got to see them for the first time.  Importantly, Armstrong was never permitted to characterize what the images purported show—he was never permitted to recite the State’s characterization that the images showed Kyle Rittenhouse pointing his rifle at Joshua Ziminski.

That characterization will be left to the State to pursue during its closing argument to the jury on Monday.

In any case, this “enhanced” image testimony would ultimately prove to be the last evidence to be offered in this trial, after which both sides rested, concluding the evidentiary portion of the Kyle Rittenhouse trial.

Jury Instructions and Closing Arguments

Immediately following, the parties and the judge had a discussion, outside the hearing of the jury, about the schedule moving forward.

Tomorrow morning the court will return to session to finalize the jury instructions to be given to the jury prior to their deliberations.  Most of these will simply be the standardized jury instructions for each of the criminal charges, including all the lesser-included offenses for the intentional homicide and attempted intentional homicide charges.

With respect to the troublesome gun possession charge, Count 6 in the criminal complaint, the judge has asked the parties to each submit their own proposed jury instructions, and I expect that argument over that issue will consume the bulk of the court’s time tomorrow.

That said, the court is not returning to session in the morning until 10am Central time, and I would not expect the proceedings to take more than two or three hours, including the reasonably anticipated tiresome tirades over the gun possession instructions likely to be indulged in by ADA Thomas “Blah-blah-blah” Binger.

Other Witnesses of the Day

Dr. John Black, Defense Use-of-Force Expert

There were also other witnesses today, the most notable being Dr. John Black. Frankly, his only real contribution was to make clear that contrary to the State’s suggestions, Kyle had been compelled to make his use of force decisions in time periods measured in seconds.  The State had been using various rhetorical ruses to suggest that Kyle had the luxury of tall the time in the world before casually deciding to shoot, maim, and recklessly endanger a bunch of people.

In pre-trial hearings Judge Schroeder had ruled that Black would be permitted to testify to technical matters, like timing of events and gunshots, but not the apparent intent or perceptions of the actors involved in the night’s events, nor would he permitted to pronounce legal conclusions (e.g., “Kyle’s conduct clearly qualifies as lawful self-defense).

And that is essentially what Dr. Black was limited to in his actual testimony—so, really, it was useful for the defense, but far from dramatic.

Also, as already mentioned, Dr. Black proved helpful in preparing the foundation for the defense attack on the testimony of James Armstrong, and ensuring that the defense was equipped to expose the fragility of the State’s “enhanced” images to the jury.

Here is Dr. Black’s direct testimony, in two parts

Here is Dr. Black’s cross-examination, also in two parts.  Much of this cross was actually designed to provide evidentiary foundation and a fairness rationale for Binger’s later efforts to convince Judge Schroeder to allow into evidence the “enhanced” images of State image expert Armstrong–after all, if it was OK for Black to have “modified” his images and get them into evidence, it must be OK for Armstrong to have “modified” images and get them into evidence:

And here is Dr. Black’s re-direct, in which he set up the defense for their questioning of James Armstrong:


Police Officer Brittany Bray

We also heard from Kenosha Police Officer Brittany Bray.  She had done evidence collection at Sheridan Road where Kyle had shot at “jump kick man” and missed, shot at Anthony Huber and hit with fatal results, and shot at Gaige Grosskreutz vaporizing his bicep.

The State had suggested that at one point Kyle had been required to cycle his AR-15 pattern rifle due to a malfunction, which would show, I suppose, a certain deliberation in his shooting of Grosskreutz. Frankly, I really don’t see what it matters, but in any case the defense didn’t like it.

The defense position is that if Kyle had cycled his weapon a live .223 round would have been ejected onto the road, and Officer Bray had found no live .223 round.  This is, of course, a mistaken understanding of such things.  A failure to feed a round could require cycling of the action, but with the chamber empty there would have been no live round to eject.

The State would point this out in its own cross-examination of Bray by ADA Binger, after which the defense would on re-direct have Bray assist them in measuring the 4” required to cycle the charging handle on the AR—meaning, the movement would have been obvious on video had it occurred—and that was it for Bray. This was followed by an inconsequential re-cross by Binger.

Here’s the direct questioning of Bray by Attorney Richards:

The cross-examination of Bray by ADA Binger:

The re-direct of Bray by Richards:

The re-cross of Bray by Binger.

Drew Hernandez, Professional Commentator

The only other witness of the day was one Drew Hernandez, another one of those folks who wanders around riot scenes filming for social media.

The most notable facet of Hernandez’ testimony was his clear contempt for ADA Binger, and his apparent implicit—perhaps explicit—support for Kyle Rittenhouse, despite his protestations of not being biased.

Hernandez certainly struck me as biased in favor of the defense and against the State, and it would have probably served his purpose to have toned down the hate towards the State a bit.  He did say many positive things about Kyle, including describing how Kyle was helping people and de-escalating conflict, and he also said many negative things about Joseph Rosenbaum, including seeing him be provocative, combative, and setting fires.

His obvious bias in favor of the defense, however, meant that whatever he said wasn’t likely to change anybody’s mind.  If you favored Kyle, you nodded your head at the apparent truth of Hernandez’ testimony. If you favored the State, you discounted the Hernandez testimony entirely on the basis of his obvious bias.

In any case, here’s the direct questioning of Hernandez by Richards:

The mutually hostile cross-examination of Hernandez by Binger:

And a brief re-direct of Hernandez by Richards:

And that’s where things stand at the close of court business today.

Join us again tomorrow morning for our  LIVE coverage of the trial of Kyle Rittenhouse, at Legal Insurrection.  Keep in mind it may be a much shortened day, as it doesn’t begin until 10am Central time, and even then involves no testimony but only argument over jury instructions.  If the day went much longer than four hours, I’d be much surprised.

Until then:


You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!


Attorney Andrew F. Branca
Law of Self Defense LLC

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.

32 thoughts on “Rittenhouse Trial Day 8: The Prosecution’s Last Desperate Lunge for Evidence of Guilt”

  1. I don’t see how provacation on the part of Rittenhouse could be an issue in this case since he was fleeing from Rosenbaum and Rosenbaum obviously had no legal right to be attempting to use or using force against Rittenhouse. You have to turn on your assailant and defend yourself before he overtakes you from behind.

  2. Let’s say he pointed the gun at Rosenbaum at that point. He didn’t shoot and then he continued running and not pointing the gun at him. Wouldn’t he have regained innocence? Or, would he have even lost it with a pointing at that moment?

    1. I don’t know about Wisconsin without looking it up. In Missouri you would be committing a forcible felony if you pointed a firearm at another without justification. You can”t regain innocence in Missouri if you attempted or committed a forcible felony.

      I suppose if pointing a firearm at another wasn’t a forcible felony in Wisconsin, you would regain innocence by retreating.

  3. Andrew, found this on the gun charge.

    700 WIS JI-CRIMINAL 700
    © 2020, Regents, Univ. of Wis. (Rel. No. 58—7/2020)
    700 Law Note: Theory Of Defense Instructions; Instructing The Jury On
    Defensive Matters

    Defensive MatterII. Affirmative Defenses
    A. In General
    An “affirmative defense” recognizes a basis for avoiding criminal liability based on facts
    that are not inconsistent with, and can be present at the same time as, the elements required by
    the offense definition. That is, all the elements of the crime may be present, but the law
    recognizes a basis for a finding of not guilty based on facts that are not found in the offense
    definition.22 These can properly be called “affirmative defenses” because something affirmative
    must be done to make them an issue in the case. Sometimes these are further characterized as
    “privileges,” “justifications,” or “excuses,” but the label is not significant in the context of
    presenting them to the jury

    3. Statutory Exceptions; Statements That An Offense “Does Not Apply”
    A significant number of criminal provisions contain lists of statutory exceptions. For
    example, § 941.29, prohibiting possession of a firearm by a felon, includes six subsections listing
    exceptions [subs. (5) through (10)]. The jury instructions typically treat these exceptions like an
    affirmative defense: the state need not anticipate them in the charging document and they are not
    issues in the case until supported by “some evidence.” If so supported, the state must prove the
    inapplicability of the exception beyond a reasonable doubt.
    Other statutes take a similar approach but instead of identifying an “exception” they provide
    that the criminal prohibition “does not apply” to certain situations. For example, § 940.32,
    prohibiting stalking, includes a provision stating that the offense does not apply to conduct
    protected by the right to freedom of speech or the right to freedom to assemble [sub. (4)(a)] or to
    conduct connected to a labor dispute [sub. (4)(a)]. The jury instructions treat these in the same
    matter as exceptions: if raised, the state must prove beyond a reasonable doubt that the facts
    recognized by the “does not apply” provision are not present.
    The jury instructions assume that these matters will rarely come up at trial. Rather, they
    would more likely be addressed at the charging/pretrial stage. If they would be raised at trial,
    they should be treated like affirmative defenses.

  4. Sorry for the long post above. Seems to me the prosecution must prove beyond a reasonable doubt that one of the two exceptions under 948.60 (c) (3) does not apply to Rittenhouse. Have to prove the rifle was a short barrelled rifle, or have to prove that Rittenhouse was under 16 years of age.

    1. The state did not introduce any evidence that the exceptions did not apply to Rittenhouse. In Missouri the exceptions would be called “attendant circumstances” and they are considered essential elements of the actus reus of the offense charged, and must be proved beyond a reasonable doubt. It appears the exceptions are considered affirmative defenses in Wisconsin, although they still must be proved beyond a reasonable doubt. The standard jury instruction on this offense does not even mention the exceptions to the applicability of this statute, but it appears the judge has a duty to modify the state approved jury instruction when there is evidence in the record that the exceptions apply. The problem is, if the defense doesn’t object to an improper jury instruction being given to the jury, they may be held to have waived the right to appeal the improper jury instruction. I think if the defense proposes a proper jury instruction on this offense, the judge will just dismiss the charge rather than instruct the jury to make findings of facts that are not supported by sufficient or even any evidence.


    The Rittenhouse trial for me seems to represent the best and worst of our trial process. Rittenhouse has been represented by very well prepared and competent attorneys. In contrast it seems that the prosecution has embarrassed themselves professional. Yet, for me the most disappointing aspect of the trial centers around the prosecution’s lack of interest in seeking the truth. Does Justice to the prosecution simply mean a conviction? Does Justice not mean fairness and seeking the truth? Are ethics irrelevant to the prosecution? I expected better from the prosecution.

  6. I think that the defense should make a point of the fact that not only did Armstrong fail to compare his enlargement with the original, but he failed to enlarge using any of the other algorithms for the sake of comparison. Each algorithm “guesses” how to color the newly-created pixels. Consistent results using the same program proves nothing about the accuracy of the result.

    It would also be interesting to know (and publish) on just how many pixels did the result depend. An argument could be made the the remainder of Kyle’s could hinge on the extrapolation of data contained in (for example) 16 pixels.

  7. Further thought on the matter of pixels. The only vaguely perceptible part of the expanded image that suggests that Kyle is raising his gun is the dark line across his chest. Might this not be a shadow?
    How many pixels compose this “line”? What is the magnification in this image? If it has been stated, I’ve forgotten. Let’s say that there are 40 pixels and the enlargement is 10x. That would mean that Kyle’s fate rests on 4 pixels in the original.

    Another point: if this enlargement reproduces details so accurately, why can’t you read the sign above Kyle’s head?

    1. Regarding the line; I thought that might be his sling, extending to the rifle across his chest.

      Even here, nobody can tell what it is!

      As an aside: I did some stuff years ago with a camera company that was bringing out some very nice digital cameras. In their training they made sure to emphasize the difference between “optical” and “digital” zoom.

      Basically, optical zoom is what the device is physically capable of doing. The “actual” data.

      Digital zoom was all interpolation using pixels, and 20 years ago they emphasized that it was not “real” as it was filled in and made up by the software.

      Their basic recommendation for taking photos was that you could use maximum optical zoom if need be, to get the most legitimate detail possible, but that using digital zoom inherently altered the photo. Period.

    2. Good observations Bill. I think Andrew came up with the strongest evicence that Rittenhouse wasn’t pointing a firearm in that still frame. And that is, Rittenhouse is right handed and in every picture of Rittenhouse on the night in question he was holding the rifle in a righthanded position.

      I don’t think pointing a firearm at another is a forcible felony under Wisconsin law, therefore it would not bar a person from regaining innocence by retreating from the encounter. Anytime you commit an act of aggression upon another you have to regain innocence at some point in time. You do not remain an aggressor forever. You are just the aggressor in the present encounter and the present encounter is over when you communicate your withdrawal by retreating from the encounter. The prosecutor is clutching at straws like a drowning man going down for the third time.

  8. guilty as charged

    The core of this mistrial is not Kyle but a resurrected murderous Rosenbaum in the person of ADA Binger who has no soul, no ethics, and will do anything to get a conviction. The jury should do justice and find this zombie of a prosecutor guilty and sentence him to life in prison.

  9. I thought an opportunity was missed with Officer Bray or the lab tech that examined the the .223 brass from scene 2.
    If as Binger is saying that KR had to rerack, that would mean either A: the fired round wasn’t ejected at all [unlikely] or B: it was stove piped [more likely]. So the brass would have either had two impressions on the primer [remember, Groscruch said KR pulled the trigger and it didn’t fire] or the markings on the sides of the brass from being hung up in the ejection port. I can see how the gun could have malfunctioned like that if Huber had ahold of the barrel and it was against his chest. That could cause the rifle not to cycle properly.

    1. You are overlooking a simple failure to feed which usually occurrs when the bolt doesn’t go back far enough to pickup a round from the mag before closing.

      Whether Rittenhouse had a firearm malfunction or not is immaterial and irrelevant to the Rittenhouse’s claim of self defense. As a matter of fact, if he did have a failure to feed it would put him in even greater jeopardy from Grosskreutz and raised his stress level.

  10. The fact I mentioned above that the sign can’t be read in the enlarged image isn’t conclusive, but it is the type of thing that will stick in jurors’ minds like, “if the glove don’t fit.”

  11. If Kyle’s goal was to kill Rosenbaum and if he pointed his rifle at him as the prosecution claims, WHY DIDN’T HE SHOOT HIM THEN? Was he calculating that he could sucker Rosenbaum into attacking him first. If anything, pointing the weapon and not firing would have been another example of restraint.

    Similarly, if he could have been killed at some distance with a Glock handgun in the third encounter, he could have kidded at an even greater distance with his AR had that been his intent.

    1. The prosecution has not charged Rittenhouse with “intentionally” killing Rosenbaum. He is be accused of unlawfully recklessly killing Rosenbaum in self defense after provoking Rosenbaum into attacking him with unlawful force. The provacation bars Rittenhouse from justifing his use of force in self defense on the grounds of necessary self defense unless he retreated first, and the prosecution is claiming that he did not regain the right to self defense (innocence) because he did not retreat as far as possible in the circumstances I don’t see it that way myself since Rosenbaum was overtaking him I believe he had retreated as far as possible in the circumstances before turning on Rosenbaum and using necessary force in self defense.

      So far, I don’t think the prosecution has attempted to get a provacation with intent instruction. I believe the prosecuton conceded there was not any intent to kill by charging Rittenhouse with a reckless homicide instead of an intentional homicide, and I believe the prosecution actually conceded at the jury instruction conference today that the state did not believe Rittenhouse had any intent to kill Rosenbaum. And there was no evidence of intent introduced into evidence. A provacation with intent instruction is only proper in a homicide case where the defendant is charged with an intentional homicide.

  12. Semi-pro photographer here. No one in the courtroom seemed to understand what happens when processing digital image files. The evidentiary value of any photo obviously depends on how closely it’s based on the original data. To make this point, defense should have started with what a pixel is rather than jumping immediately into how the images were enlarged.

    A pixel contains raw data recorded by a digital camera. The maximum amount of data a specific camera model can record in one image is its native resolution. This is expressed as x by y, with x the horizontal axis and y the vertical axis of a hypothetical photo. For example, the Nikon Z9 has a native resolution of 8256px by 5504px, or approximately 86in by 57in. Algorithms are used both to create different file types ((jpeg, png, tiff, etc.) and to enlarge/reduce a photo’s dimensions. To avoid needless complications, let’s concentrate on image size here.

    Photo algorithms function by finding identifying the edges created when adjoining pixels (or blocks of pixels) have different colors or light intensities. Algorithms then discard or replicate pixels in ways that maintain the relationships between them (e.g., contrast, shape, size, etc.). Different algorithms can create different results: Bicubic generally results in softer edges, while nearest neighbor yields harder edges (both were mentioned in voir dire of Armstrong on day 8). Which algorithm you select depends on the original data’s quality, how much reduction or enlargement is needed, and the desired appearance of final picture. Often there will be no readily discernible effects on final appearance, but that changes — often dramatically — as the limits are approached. And that is very important here.

    For reduction, the algorithm always works with original data. The question is which original pixels to keep and which to discard. Enlargement works differently. It needs new pixels and the algorithm must select which original pixels should be replicated to create the required new ones. With enough original pixels, the newly created pixels will look very similar to the sample on which they are based. However, the more a photo is enlarged, the more likely it becomes that fewer and fewer original pixels will be included in the samples on which new pixels based. What’s sampled then is other newly replicated pixels, or replications of replications, each steadily more distant from the original data they are supposed to represent. It’s somewhat like trying to stretch a pitcher of lemonade to serve more guests. The first glass of water added to the pitcher mixes pretty well and doesn’t change the lemonade’s original taste or color too much. But a second glass makes noticeable changes and with a third glass there’s only a distant relationship to the original. At some point you’re only creating new problems, starting with an overflowing pitcher and mess on the floor.

    By their very nature, enlargement algorithms eventually break photos. These algorithms are not “one and done.” They are iterative, so that successive passes are based on less and less original data and more and more on replicated data. Edges begin to harden, “blocking” and pixellation begin to appear. If the original source data are not high quality, images break sooner. This happens because by the nature of digital data. Pixels can only be stretched so far, regardless of enlargement technique. Once a picture is broken, of course, its evidentiary value is much reduced, even cancelled, and people are free to see in the picture what they want or need to see.

    Just wanted to add my 2 cents worth on something that might have been handled better in the courtroom.

    1. As a mathematician who pretends to be a software developer, and was exposed to some of the algorithms involved in things like this as an undergrad (in particular, fast fourier transforms and various video filters), I have to concur. While these algorithms can do some pretty amazing things, they also have some pretty fundamental limitations, and one of the biggest limitations is the quality of the data you can put into them in the first place. If you start with a small number of pixels that represent a picture that’s already rather fuzzy, you’re not going to be able to produce anything meaningful from that.

      When I was in elementary school, I imagined taking a photo, and enlarging it over and over again, until you can examine the very molecules of the skin of the person you photographed. Now that I am more familiar with photography, I understand that you can’t do that: eventually you’ll get to the grain of the film you’re working with, and you can’t get much finer than that. Digital pixels have similar limitations. Heck, now that I have some vague understanding of things like quantum mechanics, it’s my understanding that even something like the frequency of the light you’re using will keep you from “zooming in” to fine detail!

      Having even a modicum of understanding of these kinds of limitations makes the scenes in “CSI” face-palmy, when they repeatedly say “Zoom! Enhance!” until they can see the details of the reflections in the eyes of the people photographed. Attempts to do this in real life deserve face palms as well, but it’s nail-biting too, when you know that the outcome of a person’s freedom hangs in the balance.

  13. Andrew, In this morning’s arguments for jury instructions and charges when Attorney Kraus requests instruction on provocation.

    “Kraus: We have evidence of provocation. If he raised gun it is clear provocation. Jury should hear instruction, then up to us to prove it.
    Man, Kraus is doing the frantic pleading flop-sweat thing again. That fuzzy photo to support provocation is really all they have. Andrew
    Kraus: The unlawful conduct provoked the jury to attack him.
    So not arguing provocation with intent, just simple provocation. But that’s covered by withdrawal and communication.”

    From what I’ve seen live and heard you comment on, I also don’t see any other explanation than Rosenbaum was the initial deadly force threat.
    But even if Rittenhouse provoked R. by pointing his rifle at him, he almost immediately retreated by running away. And without proof of intent to provoke (which Kraus concedes above) under Wisconsin law doesn’t Rittenhouse regain his innocence?

  14. In addition to OFFM’s comments, your example isn’t bad enough.

    If you sample 1/10 of the length and width of the picture (1920×1080 down to 192×108), that’s not 1/10 of the picture. It’s 1/100 of the picture. So, in your example, blowing up the sample to 1920×1080 would involve “inventing” 99% of the pixels.

    1. It could be argued, “defense of others” couldn’t it? A decision fraught with legal consequences and as Andrew has said time and time again; (paraphrased) your list of people you are willing to step in and defend with lethal force should be short.

      1. Yeronimus Pretorius

        I believe you are right. I was thinking of the questionable justification for Rosenbaum’s defense of another, but he is not on trial, and the issue is whether or not Rittenhouse provoked that response.

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