Rittenhouse Update: DA Claims “Who was the Aggressor” is Irrelevant

U.S.A.-(AmmoLand.com)- On October 25, 2021, there was a hearing on evidence to be presented at trial in the Kyle Rittenhouse case in Kenosha, Wisconsin. The most important issue covered appeared to be the prosecution arguing who the aggressor was in the incident, is irrelevant.

The video is two hours and 29 minutes long. This article covers the highlights of the action, as judged by this correspondent.

There was trouble with the video equipment. Near the beginning, Judge Schroeder quips:

“What do you want for $50,000, right?”

The prosecutor, Assistant District Attorney Binger, is a bit confused on his motion numbers. It is amusing but not a serious issue, at about 13:50.

DA Binger argues police interaction with Rittenhouse on the night of 25 October, has no relevance.

Judge Schroeder does not wish to rule out evidence beforehand.

The Defense and Prosecution reach an agreement on the issue of expert witnesses. Dr. Black, the expert witness for the Defense, will be able to testify as to timing and how people’s subjective view of time is often different. The Prosecution agrees and agrees to not to have the prosecution expert testify.

Judge Schroeder says he is not going to muzzle the Defense in the terms used in court to describe the people who were shot. The Defense will be allowed to present evidence and make their case based on the evidence. Terms such as “rioter, looter, arsonist” will be allowed. It is up to the defense to make their case to the jury.

An incredible exchange takes place, starting about 1:58 (one hour and 58 minutes) and continuing to 2:10 in the video.

It starts with evidence about events shortly before the shooting, on the night of the event, bearing on the character of the first person shot and killed, Joseph Rosenbaum.

Judge Bruce Schroeder Listens to DA Binger claim, who was the aggressor does not matter, in a self defense case (Rittenhouse case)

DA Binger claims: Who is the aggressor, has nothing to do with self-defense.

Judge Schroeder appears puzzled. At first, he cites rules of evidence, from federal guidelines:

“In most jurisdictions today, the circumstantial use of character is rejected, but with important exceptions:”

“An accused may introduce pertinent evidence of the character of the victim (and they do use the word victim by the way) as in support of a claim of self defense in the case of homicide or in consent in the case of rape.”

 “That is without reference to whether the defendant knew anything about it.”

He spends time talking about relevant portions of a Wisconsin Supreme Court case known as “Jackson”.

At about 2:00 in the video, this important point is made.

Judge Schroeder:

What is the essential element that the defense is attempting to prove here? 

Who was the aggressor? 

“I think, on that issue…”

DA Binger, interrupting:

I disagree your honor.  I think that’s part of it, but we have an armed, a person armed with an AR15, shooting an unarmed man. I…

Judge Schroeder, interrupting:

“An unarmed man can’t be an aggressor?”

DA Binger, interrupting:

“I don’t think it matters whether he is. I don’t think you get to kill somebody with a gun when they are unarmed, even if they are the aggressor.  I mean, let’s think about a bar fight, your honor, we have a lot of bar fights…

Judge Schroeder, interrupting:

Lets not talk about a bar fight. This isn’t about a bar fight.

This was a bar fight that the Supreme Court was talking about. (holding up papers of the case being cited, Jackson). It (the Rittenhouse case) is not a bar fight.

DA Binger:

You’ve got an armed person shooting an unarmed person, your honor.

Judge Schroeder:

Right.

DA Binger:

That, that’s the question.

Judge Schroeder:

Does that mean it doesn’t need to go to the jury?  I just take it away from them, and tell them he’s guilty?

DA Binger:

No.  I’m saying the issue is whether or not deadly force was justified. Was there a risk of great bodily harm or death to the defendant at that time?  That is the question.

Judge Schroeder:

And one of the factors in that is: Who was the aggressor?

DA Binger:

I think, I think the aggressor issue can preclude the defendant from presenting self defense.

Judge Schroeder:

Probably.

DA Binger:

But, I don’t think otherwise it has an impact on it.

Judge Schroeder:

It is not a factor to be considered?

DA Binger:

Only if it precludes the defendant from presenting self defense. I don’t think it has any other. I don’t think it bears on the use of deadly force and whether or not the defendant was at risk of great bodily harm or death. I, I don’t think whether he is the aggressor or the other side is the aggressor changes that equation. The essential question is was he at risk of great bodily harm or death.

Defense Attorney Richards:

That’s a jury question. It goes into the reasonableness. I mean, if the jury doesn’t think that an armed man with an AR15 shooting an unarmed man is reasonable, then that’s the finding that they make.  But to say…I am not totally following the argument…

Judge Schroeder (to DA Binger):

Your question is really knowing, is suggesting to me, that the jury cannot acquit the defendant, because he had the gun and the other man did not. 

Do you think that is consistent with our law?

DA Binger:

Your Honor, I want to take a look at the jury instructions here on self defense, here. So we have jury instruction 805, which talks about self defense, and, unless I am reading it wrong, I don’t see anything in that jury instruction about who is the aggressor. It is not an element as to that issue.

Judge Schroeder:

This is a dissenting opinion, and this is the late Justice Abrahamson, paragraph 126, talking about the particular case that was before the court, the record demonstrates that the issue of who was, and this is a brief synopsis, the defendant shot and killed a man who was unarmed. and it was a post-bar fight. But the defendant wanted to offer evidence of the mean disposition, the violent disposition of the person whom he shot, of which he was not aware, and that was the discussion of the entire case.

Judge Schroeder, quoting the late former Chief Justice Abrahamson of the Wisconsin Supreme Court:

“The record shows that who was the first aggressor was an essential part of the case, for both parties. During and after the presentation of evidence “

You are telling me that who is the aggressor, in a case where an armed man shoots an unarmed man, that’s not an issue. Now, you’re right in the sense that Justice Abrahamson was in the dissent, but, she certainly made a point there, that varies with what you are telling me. 

DA Binger:

Your Honor, I am reading Jury instructions 805, 810, and 815, that I think are most pertinent to the self defense issue. 805 or 810 say nothing about who is the aggressor or who provoked. 

815 brings in the issue of provocation, and it applies to the defendant. It talks about the defendant provoking an attack and therefore being, essentially prohibited from claiming self defense. And then it talks about if the defendant provokes an attack and may use proportionate self defense. The defendant, if he provokes the attack may, would initially, lose the right to self defense but could regain it if he withdraws in good faith and gives adequate notice to the other party.  But then it says the person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm, is not entitled to a self defense. 

As far as I can tell your Honor, in terms of the elements of self defense, provocation only comes into play in the jury instructions, in that narrow scope, of whether or not the defendant, if he provoked the attack, therefore would not have the right to claim self defense. None of these elements or jury instructions talk about the victim or the deceased here,  whether he provokes it or whether that somehow affects the decision of the defendant here. So, I disagree with the Court that provocation is the key issue in this case.

Now, we’re going to talk about it. I understand that. There is going to be some evidence about that, the defense is going to argue, as to who provoked it, and we’re going to respond with an FBI video which shows the  defendant chasing down Mr. Rosenbaum and confronting him first. But legally, in terms of the elements here, and again, Jackson stands for whether or not this evidence is relevant to the elements of the crime,  I don’t see any element here where Mr. Rosenbaum, provocation, or being the aggressor, changes the juries decision pursuant to the elements of self defense.

Defense Attorney Richards:

That makes no sense, as it goes to the reasonableness. If I attack you, and you use self defense, the jury gets to hear that because that goes to your,  the reasonableness of your actions. It doesn’t say provocation. It uses it all in terms of the reasonableness of what the defendant poses. 

If someone else, if Rosebaum is the aggressor, it goes directly to the issue of whether or not someone would believe that Mr. Rittenhouse’s actions were reasonable. 

They are not reasonable if he walks, if we are having a prayer circle and he walks up and shoots Mr. Rosenbaum.  Not reasonable.

If Mr. Rosenbaum is, and he is, waiting for him, chases him, after telling him he is going to kill him?  That goes to whether or not Mr. Rittenhouse’s actions were reasonable.

It is that simple.  That’s it. The aggressor goes to the reasonableness. Period.

Judge Schroeder (addressed to DA Binger):

 Anything else?

DA Binger then appears to give up on trying to claim who is the aggressor is irrelevant, and continues to claim the evidence of what Mr. Rosenbaum did earlier is irrelevant.

Judge Schroeder then cites an “Ancient Rule”.

Judge Schroeder:

The decision was made long ago. Long ago. 

What is the probability that if someone acts in a threatening and belligerent way, (they) would have been threatening and belligerent in this close encounter a while later?

That is the end of the claim by DA Binger, that who is the aggressor in the case has no relevance as to whether the Jury should know the information, in determining whether the incident was valid as self-defense or not.

Judge Schroeder ruled the filing of a lawsuit by Grosskruetz (the last person shot by Kyle Rittenhouse) is evidence of bias (on the part of Grosskruetz), and can be brought up in court.

This correspondent did not hear any mention of the “Possession of a dangerous weapon by a person under 18.” charge.

The Defense has filed a motion to dismiss the charge. Judge Schroeder has not ruled on the motion. The defense submitted additional information on the issue to the court since the last hearing.


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.

Dean Weingarten

Subscribe
Notify of
41 Comments
Inline Feedbacks
View all comments
Ram
Ram (@ram)
1 month ago

Being forced to change hands, perhaps Grosskeutz can sue
because of his newly acquired sexual dysfunction.

Ram
Ram (@ram)
1 month ago

I foresee the name Binger becoming synomynous
with a long list of pejorative cursing.

Wass
Wass (@wass)
1 month ago

From what I’ve gathered so far from media, Rittenhouse was more justified in his shooting than the legendary Bernhardt Goetz. And he was appropriately licensed and trained too.

Last edited 1 month ago by Wass
Jack
Jack (@victortepeps)
1 month ago

HOLY uhhhhhhhhhhhhhh Crap! That is ahhhhhhhhh uhhhhhhhh angonizint to uhhhhhhhhhh listen to. Because of all the uhhhhhhhhhhhhhs and I uhhhhhhhhhh just couldn’t get through it uhhhhhhhhh all.

Larry
Larry (@larry)
1 month ago

I think there is a subtext here that underlies this discussion but isn’t clearly stated.  There is a weird quirk in Wisconsin law under which someone who goes out specifically inviting people to aggress against him cannot claim self-defense when it occurs. They’re trying to say that a guy who goes out with a highly-visible gun strapped to him is like a pretty woman who goes out in Daisy Dukes and heels — both are “asking for it,” and both are “at fault for whatever happens.” I think the DA is angling for a concession from the judge that will… Read more »

Last edited 1 month ago by Larry
warfinge
warfinge (@warfinge)
1 month ago

So the DA is trying to bend precedent to fit his narrative of events. It will be a long trial. The kid tried to get away and was pursued, threatened with death and attacked while fleeing. If we can’t have a clear understanding of who the aggressors were in each killing there will be no justice. He (the DA) wants to use the “Disproportionate Response” argument and I can’t really see it.

LilHuck
LilHuck (@dmaria)
1 month ago

Binger is out of his mind. In Binger’s world, if I am being chased and strangled and knifed to death in the back, I can’t use my gun because the person pursuing me does not have the same kind of weapon. .This is the mind of the most sick and deranged lawyers and blind guides

Boz
Boz (@boz)
1 month ago

This D._umb A._$$ needs to be hun6.

Rodoeo
Rodoeo (@rodeo)
1 month ago

It’s too bad character can’t be questioned because, as is typical, these liberal dirtbags’ character sucked. The world is a better place without them in it. They just have to go through the motions and waste taxpayer $ now.

swmft
swmft (@swmft)
1 month ago

da should be fired for wasting tax payer money , and back charged expenses, in construction you do something stupid you eat it should be same in government , bet wast would end

uncle dudley
uncle dudley (@rockhouse)
1 month ago

There has been many people killed by blunt force trauma to the head, just watch a cop show, using a skateboard as a weapon would cause blunt force trauma if hit in the head with it.
Defending himself by shooting the attacker was his only choice or he would suffer injury or death.
Not guilty in my opinion.

hippybiker
hippybiker (@hippy-biker)
1 month ago
Reply to  uncle dudley

There is precedent. In a New Mexico riot a person attacked another man with a Skateboard. He was shot and killed for his stupidity! Case closed. Self defense!

swmft
swmft (@swmft)
1 month ago
Reply to  uncle dudley

more people killed every year by blunt force trauma than guns

Don
Don (@kivaari)
1 month ago
Reply to  swmft

Not true. More blunt force deaths then RIFLE fire. Guns are used to kill many more people than blunt force trauma.

Russn8r
Russn8r (@russn8r)
1 month ago
Reply to  Don

He said ‘killedby blunt force trauma, not ‘homicide’. Motor vehicle impacts killed 38k in ’19. Falls 41k.

If he meant homicide, you’re right.

I can’t tell how many blunt force analogous homicides there were since there’s so many vague cause entries. e.g.

Assault by other specified means 364
Assault by unspecified means 1,247

But it’s far less than homicide with gun (~14k w/gun vs total homicides ~19k).

Last edited 1 month ago by Russn8r
Heed the Call-up
Heed the Call-up (@daveeckartverizon-net)
1 month ago
Reply to  swmft

That is false, Don is correct that more blunt force than rifles – easily proven on the FBI crime stats web page.

Montana454Casull
Montana454Casull (@rld454c)
1 month ago

Let’s face it DA Binger is a complete idiot and I bet he would have a different opinion if he was the one being attacked and victimized. A skateboard accross his head would change his mind I bet . Stupid is as stupid does and DA Binger is stupid .

JayWPB
JayWPB (@fl-ga)
1 month ago

Binger isn’t an idiot. Binger is desperate to get a conviction. He appears to be concerned about his own future, and willing to sacrifice anyone to secure it.

Tionico
Tionico (@tionico)
1 month ago
Reply to  JayWPB

Jay has this DA figured out, as I’ve thought from the beginning. Just like the DA that pressed the case agaisnt George Zimmerman, he’s got a point to prove, wants a bit shiney Gold Star on his chest for convincing the jury that Keyle done wrong from the second he snowed up on that guy’s business lot wiht his AR to help keep the peace. The aggression showed by all three of Kyle’s attackers was clearly caught on video. There is NO QUESTION Kyle’s life was in danger. One guy gets him down on the tarmac, takes his gun, the… Read more »

Considerthis
Considerthis (@tncitizen)
1 month ago
Reply to  JayWPB

He’s not only concerned about his own future, he is in the position that he has to defend a narrative. The far left narrative that Antifa and Black Lives Matter are right and should in no way be held responsible nor be impeded for their actions no matter how many laws they break or how much property they destroy,or how many people they hurt.
The radical socialist left are depending on him.

Deplorable Bill
Deplorable Bill (@deplorable-bill)
1 month ago

The young man was attacked, relentlessly attacked and when he attempted to flee he was pursued and repeatedly attacked. The event is a textbook case for self defense. The young man tried to escape but he tripped and was run down by his attackers. He had no way to escape and he was being assaulted, he had no choice but to defend himself. What’s more is it was videoed so there is record, obvious record of that fact. The ag is clearly trying to throw the case up against the wall to see if anything sticks. Those attackers lasted much… Read more »

Tionico
Tionico (@tionico)
1 month ago

not to make too much of apoint about the one of the trhee who HAD a handgun…… and was threatening Kyle with it.

GmanNM
GmanNM (@gmannm)
1 month ago
Reply to  Tionico

I’m not sure what you are trying to say here. Are you trying to say that the defence should not be allowed to point out and show evidence in court about the guy with the pistol who got shot?

From the video I’ve seen that looks like a clean defensive gun use.
Not trying to pick a fight, just trying to understand what you were trying to say. My apologies if you agree that it was a good shoot.

Last edited 1 month ago by GmanNM
BenV
BenV (@benvincent)
1 month ago

“The defendant, if he provokes the attack may, would initially, lose the right to self defense but could regain it if he withdraws in good faith and gives adequate notice to the other party.”

I’m glad Binger said this. Rittenhouse retreated before each encounter. He had the right to defend himself.

DDS
DDS (@dds)
1 month ago

Unarmed? I might not know all there is to know about a man fixing to whack me over the head with a skateboard. But I do know he is armed and I’m going to assume he’s not collecting for the Red Cross to borrow a phrase from Dirty Harry. And I know I would use any means I could to interfere with his plans. In Florida, and many other of the more enlightened states, that includes responding to force with force, up to and including deadly force. Double tap to center of mass. One to the head. Reassess the threat… Read more »

Arizona
Arizona (@arizona)
1 month ago
Reply to  DDS

The prosector claims the skateboard isn’t a weapon at all, especially not a deadly weapon. Ha! Bet he would feel differently after someone swung one anywhere near his head, even if they did not connect. And if they did make contact, his crushed skull would suffice as evidence.

swmft
swmft (@swmft)
1 month ago
Reply to  Arizona

a skull with the truck of a skateboard embedded would make a great defense prop ,can think of a few people to use

Tionico
Tionico (@tionico)
1 month ago
Reply to  Arizona

Defense should bring into the courtroom a skateboard like the one this clown had and tried to use. As I understand it, the guy DID get one goot hit on Kyle’s shoulder BEFORE Kyle fired at him. If I remember aright, the guy was raring back to take another wswing wiht the “child’s toy” skateboard. Those things ARE carried and used as lethal weapons by auntie fah and beeyellem. They even have training videos on how to use them both as quick transportation and lethal force weapons for aggression. Bring THAT into the courtrrom and play it for the jury.… Read more »

Russn8r
Russn8r (@russn8r)
1 month ago

Great coverage! Judge seems very good. An assumption needs questioning: “unarmed”. No gun doesn’t mean no threat to life. Rosenbaum had “arms” – the kind attached to fists; and he had feet; all can be deadly weapons. And the DA shouldn’t pretend it was just R v. R. R2 was in a mob preparing to use “arms” (fists, feet etc) on R1. Even if none had guns, R1 surely knew they would’ve beaten him if he hadn’t begun shooting. No one should have to let a single “unarmed” person beat & kick him to death or disability, let alone a mob.

Last edited 1 month ago by Russn8r
Arizona
Arizona (@arizona)
1 month ago
Reply to  Russn8r

Only a moron or someone with a death wish would allow another person or group of persons to beat and kick them without defending themselves.

musicman44mag
musicman44mag (@xman)
1 month ago
Reply to  Arizona

Self defense is instinctual. Someone not trying to protect themselves from being hurt or possible death has mental problems. Both comments are proven facts by physiatrists and are based on their science so in essence, the demonrat DA should be able to understand that.

Finnky
Finnky (@finnks)
1 month ago
Reply to  Russn8r

Interesting… When I got here you had net -2 votes. Funny how antis are too scared of our distain to post their thoughts – yet think Rittenhouse should not have feared overwhelming physical force. After all we might hurt their feelings if they bothered returning to read responses – while Kyle ‘only’ faced maiming or death.

Russn8r
Russn8r (@russn8r)
1 month ago
Reply to  Finnky

The DVs are ex-enforcers, enforcer-provocateur-infiltraitors & sockpups. They gang up on Jury Power posts; hate the principle that enforcers should be liable for Just Following Orders to piss on Oath-Constitution-life-liberty-property-pursuit of happiness so they dv posts showing enforcer abuse (mainly by JSM; vanished; jacklisted?). Won’t even SAY THE NAMES of murder vics like Dan Shaver, Vicki & Sammy Weaver, Don Scott, LaVoy Finicum, Tony Timpa, Branch Davidians. Play coy good-cop bad-cop: Pretend to not see WillTEX et ilk’s foul-mouth poison next to their posts while trashing me for ‘same’. I know I’m over the target by the flaccid flak

Vicki Weaver.png
Last edited 1 month ago by Russn8r
Russn8r
Russn8r (@russn8r)
1 month ago
Reply to  Russn8r

William Penn & William Mead, arrested for ‘illegal’ preaching by enforcers who Just Followed Orders, saved by Edward Bushel & other jurors who stood tall to imprisonment & starvation for refusing to OBEY a judge’s order to convict.

SAY THEIR NAMES

William Penn & William Mead plaque.png
Last edited 1 month ago by Russn8r
Russn8r
Russn8r (@russn8r)
1 month ago
Reply to  Russn8r

Daniel Shaver, murdered with impunity by enforcer Philip Brailsford of Mesa PD.

SAY HIS NAME

Daniel Shaver and daughters.png
Tionico
Tionico (@tionico)
1 month ago
Reply to  Russn8r

disparity of force with numbers provides justification for the use of lethal force. Ten against one, the ten not having one pice of metal amongst them, the one having a firarm, is still not a guarantee that the one will walk unharmed. He can only fire on one thug at a time, the other nine can still move in on him and overcome him. Happened. And is all but certainly the fate awaiting Kyle had he NOT been armed and USED it. The unassailable FACT that Kyle fired ONLY ONE ROUND as the mob approached, Dead Guy One in the… Read more »

Russn8r
Russn8r (@russn8r)
1 month ago
Reply to  Russn8r

P.S. I forgot about the skateboard! ARMED.

WI Patriot
WI Patriot (@wi-patriot)
1 month ago

binger is a flat out idiot…

chiefton
chiefton (@chiefton)
1 month ago
Reply to  WI Patriot

His comments show that the prosecutor is willing and attempting to withhold pertinent information in the case in order to convict, even if the accused is innocent.

Tionico
Tionico (@tionico)
1 month ago
Reply to  chiefton

Binger is up against a real hard place and knows it. He seems personally involved with getting his convictio. He is unwilling to let the evidence carry the jury. He is flailing at any strawor twig he can find or even make up. It would seem the judge ain’t buying his schtick, too, whcih is a good thing.

musicman44mag
musicman44mag (@xman)
1 month ago
Reply to  chiefton

The DA’s claims is perfect proof IMO of how twisted our law professionals have become. ALL facts and evidence should be weighed to the fullest. That they can sit there and play chess with facts in order to manipulate the outcome to obtain the end result that they are looking for is wrong. More proof that our court system is led by corrupt lawyers that don’t care about facts and only the win which unfortunately is their job. Thank God the judge has a straight head on his shoulders and doesn’t have the anti gun agenda as his mantra. IMO.… Read more »