Kyle Rittenhouse’s hearing on October 5th was primarily about expert witnesses and the motion by the defense to dismiss the charge against Kyle Rittenhouse of illegal possession of a dangerous weapon by a minor.
A technical term for determining the suitability of expert witnesses is a Daubert hearing.
Judge Schroeder started the hearing by noting there is no report from the prosecution’s proposed expert witness, even though he spent some time checking for it over the weekend:
“Over the weekend, I had been checking periodically for the report by Witness Willis, and couldn’t find any, so I left a note for the clerk to contact Mr. Binger and see where the report was, and found out for the first time yesterday, that there is no report.
Do you want to comment on that?” (Directed to DA Binger).
It should be noted Judge Schroeder has carefully, gently, almost subtly, corrected or admonished DA Binger at several times during these proceedings. The lead Prosecutor, DA Binger answered with a carefully scripted reply.
Almost all the players in the courtroom appeared to have a heightened awareness they are on camera, they are being recorded, the recording is live, and will be a part of a near-permanent record available to the public on the Internet. The exception seemed to be Bob Willis. He is the proposed expert witness for the prosecution. He is located in Milwaukee. He is the only one who seems casual and unconcerned about his appearance.
DA Binger did not have a report from the expert witness, Willis. Binger says Willis has been working on it for the last two months. Binger said it will be ready on October 18th. His main argument was no expert witnesses are needed, because the jury instructions make clear the jury is to determine if the accused acted as a reasonable person might act in the circumstances. He claimed they do not need expert testimony to make that decision.
Judge Schroeder then quoted from the record of a previous hearing on May 21, 2021.
Judge Schroeder said the pre-trial minutes from May 21 say the defense will have expert witnesses ready by 8-1, including the report. (Directed to DA Binger)
“What does that mean to you?”
Binger: ‘It says the defense will be doing that.”
The adversarial relationship which has developed between the prosecution and Judge Schroeder is exposed in this question and response. Ordinarily, prosecutors work hard to cooperate with judges. Here, Judge Schroeder knows this is a Daubert hearing. Everyone knows it. It is a hearing about expert witnesses. Judge Schroeder expects the two sides to be ready, which is why he calls out DA Binger.
But Binger had a ready response: That date only applied to the defense. The prosecution was not specifically included in that order. He notes he argued for more time, earlier.
This embarrasses Judge Schroeder, something most prosecutors would avoid. Perhaps there is a strategy here. If Binger can goad Judge Schroeder into a mistake, perhaps the prosecution can have the Judge removed from the case. Judge Schroeder has been very careful, very deliberate, very correct. The leftist activists involved have already called for him to be taken off the case because he refuses to make it a political case.
Judge Schroeder is an old pro. He refuses to be provoked. He sees DA Binger is correct, on the record, and he accepts a new date, only a week from trial, for another Daubert hearing for the prosecution’s proposed expert witness, Bob Willis.
Back to the hearing:
There is considerable discussion about expert witnesses. Judge Schroeder said he is leaning toward allowing John Black as an expert witness for the defense. He said he learned things from the report Black submitted, which he, as a judge, did not know before.
Judge Schroeder said the Prosecution has used expert witnesses in prior homicide cases in Kenosha.
DA Binger replied those were police-involved cases, where the public had to be informed about police rules and training. Binger cited cases where judges have not allowed expert witnesses in homicide trials.
Judge Schroeder gave a little lecture about judicial discretion in allowing evidence in cases. Judges have wide discretion, he explains. He reminded the prosecution that one judge is not bound by the decisions of another judge in another case; that even the same judge in the same case can change his mind and allow evidence that was previously excluded.
Judge Schroeder: “The judge has enormous discretion on the evidence.”
“What Judge Wagner did in an particular case, a ways back, I have no knowledge, is absolutely no precedent for me.”
Defense Attorney Richards explained why an expert witness will be useful to the jury in this case.
Judge Schroeder summed up his decision on the expert testimony.
“I am going to open the door to the testimony of Dr. Black. After I hear the presentation by the State, then also to evidence of Mr. Willis when I have more information about it and then I will see what can come in and what cannot.”
DA Binger said some of the witnesses for the prosecution have expressed concerns and have received threats.
He asked that photos and video of witnesses be limited. He asked that photographs or images of witnesses be limited.
Defense Attorney Richards said he does not know who DA Binger is talking to. He said he does not have much of an opinion on this, but would not want masks on witnesses.
Judge Schroeder said it would have to be witness specific. The level of comfort of the witness is not the test that will be applied.
The hearing moved to the subject of the defense motion to dismiss the charge of illegal possession of a dangerous weapon by a minor. Judge Schroeder noted it is a “difficult” statute.
Defense Attorney Corey Chiriafsi did a fair explanation of the somewhat complicated statute.
He did not say much about the longstanding exception, which eliminates the restrictions for people under the age of 18 for ordinary rifles and shotguns. This exception applies to the definition of what are “dangerous weapons” for people under the are of 18. Ordinary rifles and shotguns are not dangerous weapons under the statute and never have been.
He explained the parts of chapter 29 in the statute do not apply to 17-year-old people; that Kyle was 17 at the time, so it does not apply to him.
Kyle Rittenhouse was not hunting.
DA Binger claimed the exception in 948.60 3(C) only applies to hunting. He claimed that was the intent of the legislature. But the statute says no such thing.
Defense Attorney Richards offered to supply more legislative history, but he is not sure it will be helpful. Judge Schroeder agreed to look at it and make another decision later.
Judge Schroeder decided he is going to deny the motion to dismiss the firearms charge for now. He wanted to give more study to this. He wanted to look at legislative history. For now, the motion is denied.
Judge Schroeder stated that people are supposed to be able to read the law and understand it. He said if highly trained and experienced lawyers are having a difficult time understanding the law, then how can ordinary people be expected be understand it? He referenced a potential appeals court. He is concerned the law might be ruled too vague to be constitutional. The law is somewhat convoluted, but is reasonably understandable. 948.60 3(C) exempts rifles and shotguns from the definition of dangerous weapons. The exception is not limited to hunting or to the restrictions in chapter 29. The prosecution’s argument is: that exception is absurd in Milwaukee and Racine, so the legislature could not possibly have meant for the statute to do what it does. This deserves treatment in a separate article.
The court then heard testimony from, Dr. John Black, as to his suitability as an expert witness. This testimony took over an hour for the questioning by defense. Dr. Black is shown to be eminently qualified, knowledgeable, and very careful in his responses. He showed clear reasons why a person in Kyle Rittenhouse’s position would have believed it reasonable to use deadly force to protect his life and/or bodily integrity.
The court then took a break. It is the end of the part 1 video. The part 2 video is 1 hour and 12 minutes long. It shows the part of the hearing held after the break. Almost the entire part 2 deals with the testimony of Dr. Black.
Part 2 of the video starts with the cross-examination of Dr. John Black. There is an attempt by the prosecution to show Dr. Black’s expertise is only for the use of force by police. The prosecution tries to have Dr. Black agree with certain propositions the prosecution puts forward. Dr. Black is a pro, he evades the traps.
The prosecution tries to have Dr. Black agree that Joseph Rosenbaum was unarmed on the night of 25 October 2020. Defense Attorney Richards raises an objection, claiming Rosenbaum was armed at some point.
Dr. Black states he only knows, in the videos he watched, he did not see obvious arms possessed by Rosenbaum. There might have been weapons that he did not observe.
DA Binger argues that skateboards are not weapons, and Huber’s use of the skateboard was not as a weapon.
In a later rebuttal, Defense Attorney Richards clarifies with Dr. Black that skateboards can be used effectively as deadly weapons.
The defense is likely to bring up, at trial, evidence videos exist online, to train people how to use skateboards as weapons, particularly at demonstrations. This site includes a video of a person using a skateboard to smash the rear window of a police car.
Here is another case where a skateboard was used as a weapon.
The hearing went reasonably well. While no definitive decisions were made about expert testimony, Judge Schroeder signaled he is likely to allow Dr. Black’s testimony. Judge Schroeder denied the motion to dismiss the weapons charge at this point, but indicates the statute is not clear and he is open to additional input from defense attorneys.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.