Rittenhouse Verdict Watch Mayhem – Lawyers Fight Over Drone Videos, Requests For Mistrial

Today completed the second day of jury deliberations in the trial of Kyle Rittenhouse, with no verdict being achieved before the jury was sent home for the day.The jury deliberations take place in private, of course, so we can only speculate as to what discussions are taking place amongst the 12 jurors.  That doesn’t mean the day was uneventful, however, as the defense once again asked Judge Bruce Schroeder for a mistrial–notably, this time a mistrial without prejudice, meaning that Rittenhouse would be subject to a retrial on these charges.

This newest request for a mistrial is based primarily on the undisputed fact that the prosecution had provided a copy of drone video to the defense that was 1/16th the resolution of the version that would be actually shown to the jury during the trial.  With no way to know that the high-resolution version existed, the defense now tells the court that they would have shaped their legal arguments, and prepared their client to testify, different than they did with only the low-resolution version in their possession.

The drone video is particularly important because it is the only evidence offered by the State to support their argument that Kyle Rittenhouse has no privilege of self-defense in this case because he provoked the attacks upon himself, and therefore the State need merely prove provocation, rather than have to disprove self-defense itself.

The act of provocation–specifically, the claim that he pointed his rifle at others, provoking Josep Rosenbaum to chase him across the Car Source parking lot–is supported by no other evidence but for this video.  Without the video, then, there is no act of provocation, and the prosecution would then have the unlikely-to-win task of attacking Kyle’s claims of self-defense directly.

The prosecution has a Constitutional obligation to provide the defense with the evidence to be used against the defendant in court and failed to substantively meet this obligation by providing the defense with only a low-resolution version of this video, rather than the high-resolution version actually used as evidence before the jury.

Assistant DA Kraus had a laundry list of excuses for why the defense ended up with only a lower-resolution, smaller file size, different file name version of this critical drone video, including blaming everybody but himself–indeed, both this colleague ADA Binger and lead Detective Howard were blamed by Kraus, as well (of course) as the defense itself.

The judge was unconvinced by these excuses and suggested the possibility of putting the prosecution on the witness stand themselves to testify under oath as to how this video mix-up occurred.

Interestingly, a photo purportedly of ADA Kraus’ laptop screen being projected onto the large 4k TV screen in the courtroom shows the presence of an imaging software named Handbrake. I lack any technical expertise or experience with Handbrake software, but apparently, a core purpose is to generate low-definition versions of high-definition videos.  This has led to speculation that the provision of the low-resolution video to the defense was not an accident at all, but rather an intentional act of the prosecution.  If so, this would be prosecutorial misconduct sufficiently grievous to not only warrant a mistrial with prejudice but certainly misconduct perhaps even malicious prosecution charges.

In fact, Judge Schroeder even cautioned the prosecution that he had warned them that there would be a day of reckoning about this drone video left on the prosecution’s doorstep mid-trial, and the very fuzzy “enhanced” still-image photographs pulled from the video that supposedly shows Rittenhouse pointing his rifle in an act of provocation–the photos that defense Attorney Marc Richards referred to as “hocus-pocus, out of focus” during his closing argument.

Today was not to be that day of reckoning, however, as the judge simply took the defense motion for a mistrial without prejudice under advisement.  He appears to be leaning towards not ruling on this third motion, or the two prior, before waiting to see if the jury will return a verdict of acquittal.  If they do, then the whole mistrial issue becomes moot. On the other hand, if the jury returns any guilty verdicts, the judge can theoretically revisit these mistrial motions then.

That the drone video was playing an important role of some kind in the jury’s deliberations became clear this afternoon when they asked to be able to view the video as part of their deliberations, and on the large 4k TV screen in the courtroom.  This was permitted by the judge, who had the courtroom vacated so the jurors could deliberate in privacy, as is the norm.

As for why the defense, which had been asking for a mistrial with prejudice, would today ask merely for a mistrial without prejudice, we can only speculate that the defense may be concerned that with the third day of deliberations rapidly coming to a close, and the prospect of a quick acquittal now only a fond and unrequited hope, that the jury might have begun leaning towards a conviction on one or more charges.

A mistrial without prejudice would be a better outcome than a conviction, despite the awareness that a re-trial would surely follow.  With presumably adequate financial resources available for a second trial, Rittenhouse may be thinking that a second shot with a different legal defense team and more aggressive jury selection might better position him for complete acquittals on all counts the second time around.

Highlights of the Day

Here are the major highlights of the day, accompanied by their corresponding video clips from the courtroom, as they were tracked in today’s VERDICT WATCH post:

11/17/21: Discussion during jury instruction hearing (charging conference) on Friday, November 12, 2021, where prosecution reveals it has a higher-resolution version than what it provided to the defense:

The entire key to the prosecution’s theory of the case is the purported provocation of Rosenbaum by Kyle Rittenhouse pointing his rifle at another person. This video is the only evidence the prosecution has ever offered in support of this theory. The high-definition version which was used to support the provocation theory in closing argument was never provided to the defense, and particularly not prior the defense putting Rittenhouse on the witness stand to testify–thus the defense was unable to properly prepare their client to testify. Naturally the defense was also not properly able to prepare its own closing argument to counter the prosecution narrative of provocation as purportedly demonstrated in the high-definition version of this video.

11:05 a.m.: Jury sends notice to court saying they want to view some of the videos.  Defense concerned about the drone video. Also complaining about when received drone video.  Also, defense attorney Richards tells court that the manual for AMP imaging software apparently says methods used in this case are intended for investigative purposes only, not for forensic use in court.  When Judge Schroeder asks Binger if that’s true, Binger response is that information is not in evidence.

12:55 p.m.:  Parties back in court, jury wants to see videos, hashing out the procedure, limits on viewing, especially “militia” video and drone video are problematic. Prosecution explains away providing defense with low-resolution drone video to apparent satisfaction of Judge Schroeder–Judge wants to take testimony from experts on this issue, doesn’t believe prosecution credible on this issue. Jury to be given access to some videos, ones they requested that apparently do not include videos about which the defense has raised objections.

2:45 p.m.: Defense makes verbal motion for a mistrial WITHOUT prejudice.  Prosecution makes laundry list of excuses over the state not providing defense with high-resolution drone video.  Judge warns prosecution that he’d warned them there would be a day of reckoning over this drone video–and then says he’s not going to make a decision now, inclined to see what the verdict is going to be.

3:15 p.m.: Jury being allowed to view Exhibit 5, the drone video, in the courtroom. Courtroom vacated so only jurors present. Will be allowed to view drone video as much as they like.

4:40 p.m.:  Court recessed for the day with no verdict, back at 9:00 a.m. tomorrow.

Verdict Watch Day 3

Be sure to join us tomorrow right here at Legal Insurrection for our ongoing VERDICT WATCH coverage, as await the jury’s determination of Kyle’s fate.

Until then:

Remember

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

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Law of Self Defense Platinum Protection Program

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16 thoughts on “Rittenhouse Verdict Watch Mayhem – Lawyers Fight Over Drone Videos, Requests For Mistrial”

  1. Saw you on Megan Kelly and Rikata Law today. Glad to see you on these platforms. One question, do you believe any of Judge Schroder’s rulings are at risk on appeal? I think there have been several rulings and actions by the prosecution that are grounds for reversal. Do Appeals Courts ever reverse a verdict and dismiss a case, with prejudice?

    1. Attorney Andrew Branca

      Everything the defense has objected to is fertile ground for appeal–but appeals generally have very poor odds of success, and “success” generally just means another trial. On very, very rare occasions appellate courts reverse convictions with prejudice–very, very rarely, and usually only where a fair trial has become impossible (e.g., witnesses dead or testimony lost).

  2. Provocation under Wisconsin self defense law requires the defendant commit a criminal offense that provoks another into using unlwaful force. What criminal offense is Rittenhouse supposed to have committed and who found him guilty of this offense? I mean, you know, we can’t just take Binger’s word for this “unlawful provocation” and we certainly can’t have a jury that doesn’t know anything about the law just assuming that Rittenhouse is guilty of an act, and that the act is a criminal offense. What’s the crime, what’s the means rea of the crime, what’s the actus reus of the crime, what are the attendant circumstances of the crime, and what are the defenses to the crime? Was the crime even sufficient to provok a reasonable man? If it wasn’t sufficient to provok a reasonable man then how do we know that Roesnbaum was provoked? Are we going to take Bingers word for that without any evidence that Rosenbaum was provoked by Rittenhouse’s unlawful act? These are all the things that have to be addressed by the jury instructions or else the jury instruction is prejudicial error.

  3. Andrew, for illustrative purposes here a sample of HandBrake functionality for your edification – essentially the default Quality slider set to 22 reduced the file size to one-tenth):
    ==> Source File: 2:47 second MOV video on my Mavic Air 2, I have the following details: 3840 x 2160, 103,694Kbps data rate, 29.97 FPS, producing a 2.01 GB file.
    Using HandBrake 0.10.5.0 (64 bit) two years ago, I see it’s still current when checking for updates.
    HB allows changing the x264 from 1.0 Constant Quality fractional granularity to 1.0, 0.50 or 0.25
    The default logging verbosity level is 1, changeable to 2 or 0 with the ability to put the log file at the same destination as the encoded video or a specified logpath
    Scaling choices are: Lanczos (default) or BiCubic (Open CL)
    Output options permit changes to:
    – Picture (Width/Height, Anamorphic, Modulus (default 2 or 4, 8, 16) and Cropping (any side/s)
    – Filters (Deinterlace, Denoise, Deblock)
    – Video Codec (H.264/MPEG-4/MPEG-2/H.265, H.264 Profile – Auto/Main/Baseline/High, Level default 4.0/from 1 to 5.2, Quality slider default 22 from 52 to 1, FPS set to Variable, Avg Kbps adjustable to desired #, 2-Pass Encoding not enabled)
    – Audio (it’s not applicable for DJI consumer drones in recent years)
    With “factory” settings to maintain quality, on a typical PC (32GB RAM) and GPU (rendering), rendering time was 6 minutes, generating 15 FPS AVG framerate.
    ==> Resulting transcoded file from Handbrake (viewed with Windows Explorer/Details tab): 397MB file size, 3832 x 2156, 19,955 Kbps, 29.97 FPS
    In a Reply below, I’ll include the HandBrake log output text
    Cheers, Michael
    LOSD Platinum Member

    1. HandBrake 0.10.5.0 – 64bit Version
      OS: Microsoft Windows NT 6.2.9200.0 – 64bit
      CPU: Intel(R) Core(TM) i7-2600 CPU @ 3.40GHz
      Ram: 32750 MB,
      GPU Information:
      NVIDIA GeForce GTX 780 Ti – 27.21.14.5671
      Screen: 1920×1080
      Temp Dir: C:\Users\MoonLitNite\AppData\Local\Temp\
      Install Dir: C:\Program Files\Handbrake
      Data Dir: C:\Users\MoonLitNite\AppData\Roaming\HandBrake Team\HandBrake\0.10.5.0

      ——————————————-

      CLI Query: -i “G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4” -t 1 –angle 1 -c 1 -o “G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\Handbrake.mp4″ -f mp4 -w 3832 –crop 0:0:0:0 –loose-anamorphic –modulus 2 -e x264 -q 22 –vfr -a none –audio-fallback ac3 –markers=”C:\Users\MoonLitNite\AppData\Local\Temp\Handbrake-1-chapters.csv” –encoder-preset=veryfast –encoder-level=”4.0″ –encoder-profile=main –verbose=1

      [22:49:45] hb_init: starting libhb thread
      HandBrake 0.10.5 (2016021100) – MinGW x86_64 – https://handbrake.fr
      8 CPUs detected
      Opening G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4…
      [22:49:45] CPU: Intel(R) Core(TM) i7-2600 CPU @ 3.40GHz
      [22:49:45] – Intel microarchitecture Sandy Bridge
      [22:49:45] – logical processor count: 8
      [22:49:46] OpenCL device #1: NVIDIA Corporation GeForce GTX 780 Ti
      [22:49:46] – OpenCL version: 1.2 CUDA
      [22:49:46] – driver version: 456.71
      [22:49:46] – device type: GPU
      [22:49:46] – supported: no
      [22:49:46] Intel Quick Sync Video support: no
      [22:49:46] hb_scan: path=G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4, title_index=1
      libbluray/bdnav/index_parse.c:162: indx_parse(): error opening G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4/BDMV/index.bdmv
      libbluray/bdnav/index_parse.c:162: indx_parse(): error opening G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4/BDMV/BACKUP/index.bdmv
      libbluray/bluray.c:2182: nav_get_title_list(G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4) failed
      [22:49:46] bd: not a bd – trying as a stream/file instead
      libdvdnav: Using dvdnav version 5.0.1
      libdvdread: Encrypted DVD support unavailable.
      libdvdread:DVDOpenFileUDF:UDFFindFile /VIDEO_TS/VIDEO_TS.IFO failed
      libdvdread:DVDOpenFileUDF:UDFFindFile /VIDEO_TS/VIDEO_TS.BUP failed
      libdvdread: Can’t open file VIDEO_TS.IFO.
      libdvdnav: vm: failed to read VIDEO_TS.IFO
      [22:49:46] dvd: not a dvd – trying as a stream/file instead
      Input #0, mov,mp4,m4a,3gp,3g2,mj2, from ‘G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4’:
      Metadata:
      major_brand : isom
      minor_version : 512
      compatible_brands: isomiso2avc1mp41
      creation_time : 2021-08-12 18:03:15
      encoder : Lavf56.15.102
      Duration: 00:02:47.40, start: 0.000000, bitrate: 103448 kb/s
      Stream #0.0(und): Video: h264 (High), yuv420p, 3840×2160, 103446 kb/s, 29.97 fps, 30k tbn, 58 tbc (default)
      Metadata:
      creation_time : 2021-08-12 18:03:15
      [22:50:07] scan: decoding previews for title 1
      Scanning title 1 of 1, preview 1, 0.00 %
      Scanning title 1 of 1, preview 1, 0.00 %
      Scanning title 1 of 1, preview 1, 0.00 %
      Scanning title 1 of 1, preview 1, 10.00 %
      Scanning title 1 of 1, preview 1, 10.00 %
      Scanning title 1 of 1, preview 1, 10.00 %
      Scanning title 1 of 1, preview 1, 10.00 %
      Scanning title 1 of 1, preview 2, 20.00 %
      Scanning title 1 of 1, preview 3, 30.00 %
      Scanning title 1 of 1, preview 3, 30.00 %
      Scanning title 1 of 1, preview 4, 40.00 %
      Scanning title 1 of 1, preview 4, 40.00 %
      Scanning title 1 of 1, preview 5, 50.00 %
      Scanning title 1 of 1, preview 5, 50.00 %
      Scanning title 1 of 1, preview 6, 60.00 %
      Scanning title 1 of 1, preview 7, 70.00 %
      Scanning title 1 of 1, preview 7, 70.00 %
      Scanning title 1 of 1, preview 8, 80.00 %
      Scanning title 1 of 1, preview 8, 80.00 %
      Scanning title 1 of 1, preview 9, 90.00 %
      Scanning title 1 of 1, preview 9, 90.00 %
      Scanning title 1 of 1, preview 10, 100.00 %
      Scanning title 1 of 1, preview 10, 100.00 %[22:50:11] scan: 10 previews, 3840×2160, 29.970 fps, autocrop = 0/0/0/0, aspect 16:9, PAR 1:1
      [22:50:11] libhb: scan thread found 1 valid title(s)
      + title 1:
      + stream: G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4
      + duration: 00:02:47
      + size: 3840×2160, pixel aspect: 1/1, display aspect: 1.78, 29.970 fps
      + autocrop: 0/0/0/0
      + support opencl: no
      + support hwd: yes
      + chapters:
      + 1: cells 0->0, 0 blocks, duration 00:02:47
      + audio tracks:
      + subtitle tracks:
      Reading chapter markers from file C:\Users\MoonLitNite\AppData\Local\Temp\Handbrake-1-chapters.csv
      [22:50:11] 1 job(s) to process
      [22:50:11] starting job
      [22:50:11] sync: expecting 5017 video frames
      [22:50:11] work: only 1 chapter, disabling chapter markers
      [22:50:11] job configuration:
      [22:50:11] * source
      [22:50:11] + G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\DJI_0022.MP4
      [22:50:11] + title 1, chapter(s) 1 to 1
      [22:50:11] + container: mov,mp4,m4a,3gp,3g2,mj2
      [22:50:11] + data rate: 103448 kbps
      [22:50:11] * destination
      [22:50:11] + G:\081221 Hiawatha Trail ebide ride\Mavic Air 2\Handbrake.mp4
      [22:50:11] + container: MPEG-4 (libavformat)
      [22:50:11] * video track
      [22:50:11] + decoder: h264
      [22:50:11] + bitrate 103446 kbps
      [22:50:11] + filters
      [22:50:11] + Framerate Shaper (0:27000000:900900)
      [22:50:11] + frame rate: same as source (around 29.970 fps)
      [22:50:11] + Crop and Scale (3832:2156:0:0:0:0)
      [22:50:11] + source: 3840 * 2160, crop (0/0/0/0): 3840 * 2160, scale: 3832 * 2156
      [22:50:11] + loose anamorphic
      [22:50:11] + storage dimensions: 3832 * 2156, mod 2
      [22:50:11] + pixel aspect ratio: 4312 / 4311
      [22:50:11] + display dimensions: 3832 * 2156
      [22:50:11] + encoder: H.264 (libx264)
      [22:50:11] + preset: veryfast
      [22:50:11] + profile: main
      [22:50:11] + level: 4.0
      [22:50:11] + quality: 22.00 (RF)
      [22:50:12] reader: first SCR 0 id 0x0 DTS 0
      [22:50:12] encx264: min-keyint: 30, keyint: 300
      [22:50:12] encx264: encoding at constant RF 22.000000
      [22:50:12] hb_apply_h264_level [warning]: frame size (3840×2160, 32400 macroblocks) too high for level 4.0 (max. 8192 macroblocks)
      [22:50:12] encx264: unparsed options: level=4.0:ref=1:bframes=0:8x8dct=0:weightp=1:subme=2:mixed-refs=0:trellis=0:vbv-bufsize=25000:vbv-maxrate=20000:rc-lookahead=10
      x264 [info]: using SAR=4312/4311
      x264 [warning]: frame MB size (240×135) > level limit (8192)
      x264 [warning]: MB rate (971028) > level limit (245760)
      x264 [info]: using cpu capabilities: MMX2 SSE2Fast SSSE3 SSE4.2 AVX
      x264 [info]: profile Main, level 4.0
      [22:55:45] reader: done. 1 scr changes
      [22:55:49] work: average encoding speed for job is 14.952194 fps
      [22:55:49] mux: track 0, 5017 frames, 416571979 bytes, 19907.79 kbps, fifo 256
      [22:55:49] sync: got 5017 frames, 5017 expected
      [22:55:49] render: lost time: 0 (0 frames)
      [22:55:49] render: gained time: 0 (0 frames) (0 not accounted for)
      [22:55:49] h264-decoder done: 5017 frames, 0 decoder errors, 0 drops
      x264 [info]: frame I:18 Avg QP:30.74 size:561610
      x264 [info]: frame P:4999 Avg QP:30.97 size: 81309
      x264 [info]: mb I I16..4: 24.9% 0.0% 75.1%
      x264 [info]: mb P I16..4: 1.9% 0.0% 0.2% P16..4: 39.0% 13.1% 5.5% 0.0% 0.0% skip:40.2%
      x264 [info]: coded y,uvDC,uvAC intra: 40.4% 27.3% 2.2% inter: 17.2% 5.0% 0.0%
      x264 [info]: i16 v,h,dc,p: 31% 27% 32% 11%
      x264 [info]: i4 v,h,dc,ddl,ddr,vr,hd,vl,hu: 14% 20% 22% 8% 8% 6% 8% 6% 8%
      x264 [info]: i8c dc,h,v,p: 74% 13% 11% 2%
      x264 [info]: Weighted P-Frames: Y:0.5% UV:0.0%
      x264 [info]: kb/s:19907.83
      [22:55:49] libhb: work result = 0
      Encode done!
      HandBrake has exited.

  4. Andrew, I am curious if you think the judge could have been persuaded to accept defense arguments if they had pushed the judge as much as the state has? I’ve watched this entire trial. It seems that the judge is not just sitting on the fence at times, seriously considering arguments from both sides, but that sometimes he is telegraphing the defense – hey, if you were more aggressive and go where I am telling you to take me, I’d go there. Maybe I’m reading too much into his mannerisms. I don’t know how persuadable judges can be, in general.

  5. John, KTL KNOW THE LAW, MASS

    The high-profile Rittenhouse case was already highly contentious in that the country is divided on the innocence or guilt of Rittenhouse. If the accusations against the prosecution are real there should be serious consequences for these prosecutors. If so, their behavior would seem to be contempt of the court at a high level as well as the likely hood of potentially inciting riots throughout the country. Also, it seems to put the entire prosecutorial system under a microscope.

    1. Where is the like button when you need it! I couldn’t agree with you more except unless it would be your use of the word “if.” See my November 17 11:27 pm post. The obviously premediated malicious violations of Rittenhouse’s consititutional rights referenced there is a violation of a much higher magnitude than that of tryiing to use the fact that he exercised his constitutional right to remain silent as evidence of guilt. It was plain and prejudicial error for the court to instruct the jury on provocation in this case when the prosecution had not put provocation in issue in this case by charging Rittenhouse with the crime of brandishing (an unlawful act that would have to be defended against to prevent it from being used to deny Rittenhouse the defene of self defense in respect to the other charges).

      For example, look at the Arbery case. Travis was put on notice from the very start that he was being charged with an offense (unlawful imprisionment) that would bar him from raising the defense of self defense against the other charges against him in that case. The centeral issue of that case is now and always has been whether or not he committed a criminal act that provoked Arbery into attacking him with unlawful force and thus barred him from claiming self defense to the other charges, and the defense is mounting its best effort to defend against the provocation charge. The charge isn’t being sprung on him at the last moment without notice or opportunity to defend after he has rested his case of self defense. He has been given every opportunity to know and defend against the charges against him.

      1. Yeronimus Pretorius

        I read your comment right after posting my question about Travis McMichael admitting pointing his gun at Arbery mere seconds before the shooting. I previously thought this was an open and shut case of self defense, but now I’m not so sure.

        1. Under Georgia’s statutory defense of justificaiton Traviis’s entire defense hinges on whether or not he had the right to arrest Arbery for a misdemeanor or felony. It appears the defense is just ignoring his right to arrest Arbery for trespassing, proweling, and assault and consentrating on his right to arrest him on reasonable and probable grounds of suspision of felony. I think if I had to choose between the two, which Travis doesn’t have to do, then I would choose to assert the right to arrest for the three misdemeanor offenses committed in my presence on the 11th I believe it was. The statute of limitations on the misdemeanor offenses had not expired and this was the first reasonable opportunity Travis had to make the arrest. There is a “stale misdemeanor” rule, but that only applies in cases where you do not make the misdemeanor arrest at the first available opportunity.

    1. I believe there is already a motion for judgment of accquital pending and the judge is just waiting to see whether or not he is going to have to rule on that motion. If the jury accquits the motion will be moot, if not the judge will have to rule on it. Even if such a motion is not pending, it is pretty well standard practice to move for a judgement of accquital nov after the jury renders a verdict and I assume after a jury fails to render a verdict at all.

  6. Yeronimus Pretorius

    Andrew, what do you make of Travis McMichael admitting on the stand that he pointed his shotgun at Ahmaud Arbery to deter him BEFORE Arbery juked around his truck and ran for the gun?

    1. Here is what I think of it. He admitted that a long time ago. That is the basis of one of the charges of aggrivated assult and one of the charges of felony murder. He had to admit it on the stand because he had already admited it in his statements to police and changing your story destroys your credibility as a witness. The felony murder charge based on this alleged felony has no basis in fact because there is no evidence Travis was attempting to commit, committing, or attempting to escape after the commission of this alleged felony when Arbery was killed.

      The pointing of the shotgun at Arbery would be a misdemeanor offese if it was not a justfied use of reasonable force to detain Arbery or to defend against an assault by Arbery. It would be a felony offense only if Arbery apprehended an immediate physical injury, and Arbery’s actions in running away instead of complying with Travis’s order to get on the ground indicates he did not apprehed an immediate physical injury. There is no evidence that Arbery apprehended an immediate physical injury. The prosecution could try to argue that he apprehended an immediate physical injury and that is why he did not comply, but that make no sense at all. If you actually think somebody who has the drop on you is going to blast you with a shotgun if you move, you generally don’t move until they tell you too.

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