Admitted Kenosha killer Kyle Rittenhouse has a pre-trial hearing today. The hearing will focus on evidence requests–chiefly a prosecution request for jurors to view a video that shows Rittenhouse discussing his desire to shoot a Black man with his "AR." This is a thread.
Assistant District Attorney Thomas Binger appearing for the government. Defense attorney Mark Richards is appearing for the defendant. Currently hashing out some technical issues. There are also attorneys who represent Rittenhouse's victims and their estates.
Kenosha County Judge Bruce Schroeder starts out with a defense request to bar evidence that Rittenhouse hit a woman who was involved in an altercation with his sister in June 2020. First up is Binger.
Government says all the evidence here goes to the defendant's state of mind.

"This is an unusual homicide case. This isn't a whodunnit. The issues isn't whether he killed someone."

Says Rittenhouse's interjection in the fight speaks to his status as a "teenage vigilante."
Says the June incident "illuminates the truth" for the jury because it illuminates his state of mind as someone who frequently gets involved in issues that don't concern him and that he doesn't have all the facts about. Says this speaks to Rittenhouse's concept of self-defense.
Binger now discussing how Rittenhouse attended a bar in Racine with the "highest upper echelons" of the Proud Boys, a far-right street gang. The gang members "serenaded" Rittenhouse that night. This is when the defendant wore a t-shirt that read: "Free as Fuck."
Binger says Rittenhouse's ideology aligns with the Proud Boys–particularly the intent to use violent means to secure political outcomes. Says he was out in Kenosha that night because of his political beliefs. Repeatedly tying Rittenhouse to the Proud Boys' violent beliefs.
Binger wants the evidence introduced because the defense is likely to try and show that Rittenhouse was simply being a good citizen on the night in question–acting as a medic, protecting businesses, etc.
Defense second-chair attorney Corey Chirafisi now arguing that the June attack on the woman should be excluded because it "adds nothing to the case as it relates to [Rittenhouse's] state of mind two-and-a-half months later."
Defense now attacking Proud Boys evidence. For this to be considered by the judge, Chirafisi argues, there must be evidence that Rittenhouse was a member of the Proud Boys or had loyalty to that group. Says it would be similar to introducing evidence of a gang affiliation.
Defense says they downloaded their client's cell phone and found no evidence to support his membership in or fealty for the group or similar groups like militias, Boogaloo, etc. Says there are interviews with many far-right militia members who disclaim any ties with Rittenhouse.
Defense argues there was nothing racial about Rittenhouse's actions and describes the Proud Boys, using the government terms, as "racist." Says there's no evidence Rittenhouse even knew who the Proud Boys were when he hung out with and let them fete him at the Racine bar.
Defense continues to hammer their point: nothing racial here viz. Proud Boys. Claims Rittenhouse has no racial animus, white nationalist affiliations, etc. Wants all the evidence excluded.
Judge Schroeder gives in to the defense. Big win for Rittenhouse here.

Says if he admits either piece of evidence "I will be reversed."
Says the attack on the woman was completely unlike the shooting incident. Says it would suggest he's been violent before and is likely to be violent again. "Nothing like the incident involving the sister...exactly the kind of evidence the rule is designed to prohibit."
Judge adds that if there were additional evidence to show a "consistent motive" to attack people on the street or similar then such evidence could be admitted but that's not the case here.
Judge now discussing the Proud Boys evidence. Says he never heard of the group before the case. Says he won't rely "on a Seattle newspaper" to describe the group because there's "so many groups" in the country.
But assuming they are inclined toward violence, judge says, he has no evidence before him that the Proud Boys party with Rittenhouse was anything more than "a happenstance."
"Unfortunately this case has become a surrogate for a lot of emotional reaction," the judge says.
Judge discussing Rittenhouse's use of a white nationalist/white power hand symbol. The judge says he's never heard of the symbol in this context and believes he first saw it used by Chef Boyardee.

Binger interjects: "We're not saying Chef Boyardee is a member of the Proud Boys."
The government, after the joke, is furious.

Explains that Rittenhouse later had lunch with the head of the national Proud Boys group–roughly a week after the bar party–who also picked him up from the airport in Miami. Says this is clearly consistent and intentional.
Government says they intend to introduce lots of evidence about the Proud Boys. Says they will not simply rely on one newspaper article. Binger is audibly angry–upset at the judge's skepticism about the Proud Boys affiliation.
"I think the evidence would be poison," Judge Schroeder concludes. Leaves the door open for the government to show a prior relationship with the Proud Boys. But says he is generally averse to gang affiliation evidence. Says kids join gangs because they are scared if they don't.
Schroeder adds that "Pope Benedict was a member of the Nazi Youth because he had to be" and says gang evidence is simply too prejudicial here. But throws his hands up because they embraced him after the shooting. Says there's "a little" room for the government here but not much.
The defense wants to exclude evidence that Rittenhouse used his stimulus check to buy the gun. The judge, again, is siding with the defense. Says it's just being offered "to denigrate" the defendant. Government again is livid. Says even buying the gun was good for the economy.
Government says they just want to illustrate things for the jurors. Judge says it will "elongate the trial" but isn't really particularly relevant or negative. He'll decide on the source of the gun funds at trial. Suggests the government will mention it and defense will object.
Defense now. They want to admit evidence Joseph Rosenbaum, one of the people shot and killed, had prior convictions for child sex offenses. The judge starts out with a heavy disposition toward denying that request and tells the defense as much.
Defense goes deep into details about the night in question. Very long recitation here. Judge is giving the defense a lot of leeway with no interruptions–unlike the way he treated the government. Richards winds up to bring it back here: Rosenbaum was a felon and this is relevant.
Richards says this is relevant because Rosenbaum used this opportunity to obtain a gun because he legally couldn't buy one. Says he's not intending to sully the dead man and disputes that Rosenbaum was "even a victim" because this may have been a justified homicide.
Judge is now asking about discovery evidence that Rosenbaum said he got out of a mental institution on the day of the shooting. This is from a complaining witness offered by the government but the defense sees an opening here to paint Rosenbaum as looking for trouble.
Government responds: "There's a lot of people commenting that they're happy Kyle Rittenhouse killed a pedophile. And that's the danger here." Says Rittenhouse had no knowledge of this fact at the time he killed him. Judge agrees with that. Says he has "extreme bias" toward that.
The judge, however, is interested in admitting the evidence that Rosenbaum said he was released from a mental institution that day because it goes to the dead man's motive in confronting the defendant.
Binger now addressing the defense's suggested motive for Rosenbaum–that he was a felon who had to steal a gun. Says there's "no evidence he wanted a gun" that night or otherwise. "There is nothing."
Second, per Binger: "Everybody had guns that night" and Rosenbaum got in several armed people's face telling them to shoot him. The dead man never reached for a gun. "If he really wanted to steal it, he had the entire evening to steal it from countless people."
Binger calls the defense's storyline about Rosenbaum trying to obtain a gun from an armed individual with an assault-style rifle "irrational and unreasonable" and says "it strains credibility."
Binger now citing defense claim Rosenbaum reached for Rittenhouse's gun amidst a portion of the chaos where the dead man threw a plastic bag with something in it at the accused. Says there's no evidence he grabbed for the gun but says, if he did, it was probably in self-defense.
"Utterly preposterous," is how the government describes the defense's narrative about Rosenbaum needing/wanting to steal a gun from Rittenhouse.
Richards says the bag was "metallic" and can be clearly seen on video. Says Rosenbaum "knows he has something metallic." Disputes that the dead man was acting rationally when he chased after Rittenhouse.
Judge nixes the prior conviction evidence.

Says there was a "universe of explanations" for why Rosenbaum was doing what he was doing that night–specifically viz. the gun–but says it's "too much for me" to allow the jurors to hear the defense's explanation here.
We'll take a quick break but for those keeping score:

Government wins one motion in their favor.
Defense wins two motions in their favor.
And we're back.

Judge Schroeder now discussing the state's 175-person-long witness list. Skipping ahead here. Court will circle back on other evidentiary issues.

Government says they will narrow it down, "of course." Defense says they've narrowed it down to 27 witnesses.
Richards complains that they need the addresses. The judge makes the government cite the statute–which mandates addresses in written form. Judge says he expects it will be done by Monday at 5 p.m.

Moving on.
The prosecution wants to bar the defense’s alleged “use-of-force expert” Dr. John R. Black. Judge says defense wants to use him to show Rittenhouse complied with law of self-defense. Richards says it's use-of-force: about how he used and carried his weapon.
Judge interrupts. Says "we need to have a full-fledged Daubert hearing on this." Schroeder is skeptical because the judge, per SCOTUS, is the expert on use-of-force and other legal standards during a prosecution. "I'm the expert." The hearing will be before the trial.
Government wants to compel Rittenhouse's donation lists. Defense says defendant doesn't have that information. Binger points out his mother runs the website in question. The judge is skeptical.
Says he can't legally order a defendant to tell a third-party to provide that "proprietary information" to the government.

Binger: "She's not a third-party, it's his mother."
Judge suggests the government should subpoena the relevant record keepers. The government is severely flummoxed and upset here. This will be dealt with if and when the government subpoenas Rittenhouse's mother.
A Lin Wood connection appears.

Government wants the names of donors for the Fight Back Foundation, which attorney Wood runs. Richards says they cut ties long ago and there's no coordination between the defense and that entity.

Motion denied.
Now discussing the video of Rittenhouse expressing his desire to shoot a Black man who exited a CVS pharmacy. The defense has conceded the facts here–it's the defendant's voice and the same gun used to kill two people–but wants the evidence excluded.
Binger says this goes to defendant's state of mind. Another instance of Rittenhouse looking for trouble as a vigilante expressing a desire to intervene, self-defense, etc. Concludes: "a completely unjustified use of a weapon. It's the exact same weapon we're talking about here."
Chirafisi disputes government's description of the video: "He didn't have a weapon. He was sitting in a vehicle having a conversation with someone else." Says the people Rittenhouse wanted to shoot were completely unaware, he never left the vehicle, "he didn't insert himself."
Defense: the three men Rittenhouse shot weren't even looting that night–addressing the government's narrative that the defendant likes to intervene unlawfully in defense of property (no use of deadly force is allowed to defend property in Wisconsin unlike some states).
Binger responds: "There is an actual action he takes." Says he calls 911. "He doesn't know what's going on. He thinks he sees a crime. His response in part, is to call 911. His response, also in part, is to say 'I want to shoot these people.' We're lucky he didn't have his gun."
"The fact that it's words, the fact that it's not action," the government says, has nothing to do with admissibility here because the case hinges upon the defendants's state of mind. And, Binger says, since we don't have a lot of evidence there, "this is also part of that."
"This is unquestionably a far more powerful other act," Binger says–referring to the inadmissible evidence from earlier viz. Proud Boys and attacking a woman. Says it speaks to relevant state of mind. "This is giving the jury an honest insight into the defendant's state of mind."
"This is information the jury should have," the government continues. "They deserve to hear the truth about what the defendant was thinking and what his intent was with this weapon."
"Once again, I think the evidence is too dissimilar," the judge says. Argues that it goes to "propensity." Says the evidence is being offered to show the defendant is a "vigilante killer."
Huge setback for the government here.

"The [incidents] are too dissimilar. He makes some threatening statements for sure. Statements. Then he takes a proper action."
Judge Schroeder: "'Threatening' is probably the wrong word," to describe Rittenhouse's desire to shoot a Black man he thought was maybe shoplifting at the CVS.
"In both situations, the defendant is taking the law into his own hands," Binger says. "He's making assumptions. He's talking about taking the law into his own hands and shooting his AR-15."
Binger passionately arguing the government's case. Again audibly distressed about the court's probable ruling here. Says Rittenhouse wanted to kill people because he thought they were shoplifting. "Not even the police would be justified" killing people in such circumstances.
Binger brings it back to the night of the killings. "He's running around and trying to stop people from doing things because he thinks they're illegal. Maybe they are, maybe they're not. Eventually he gets into a confrontation with Mr. Rosenbaum."
Binger: "That's not his job. He's 17."

"He appointed himself. He's a vigilante."

"They are identical," the government says–saying the CVS desire to kill assumed lawbreakers was basically the same as the night he actually killed two people.
"Running around in all this, taking all this responsibility which he had no lawful authority to do and making assumptions," Binger says, "it's exactly the same fact scenario" as the night at the CVS because it goes to "motive and intent" to "be a vigilante that night" and...
..."to use deadly force that no one is authorized to use in those circumstances." Binger says Rittenhouse went "even beyond what the police" are allowed to do. "It shows he is the type of person who takes the law into his own hands."
Government says this information is "crucial to the jury" and they deserve to hear it. The defense can give another narrative and will give a narrative that Rittenhouse was a good kid and honest citizen. Wants the full picture before the jury.
"It's exactly the same in that regard," Binger says.

The government is livid here.
Chirafisi, defense attorney, says the fact that Rittenhouse called 911 takes the government's theory out of the realm of reality because the defendant ultimately did "what everyone in this room would say" someone who thought a law was being broke should do.
Court stuck in the weeds about the Rosenbaum interaction now–tangentially related to the CVS video evidence.

Government has video evidence the defense hasn't seen–even though they've had access to it for two weeks–which allegedly shows Rittenhouse starting the chase/attack.
This is a new video from an FBI aircraft.
"The events are so totally dissimilar," the judge says, getting back to the CVS evidence. "It gets down to propensity evidence to show that he's a violent vigilante and he's gonna act in accordance with what a violent vigilante will do."
Judge is going to withhold his final decision here. Will save the decision for trial "so I have a more complete understanding."

Schroeder says he would deny this evidence if he had to make a call right now. But he doesn't.

Black eye for the government here but not hopeless.
Defense wants to dismiss the sixth count against Rittenhouse–minor unlawfully in possession of a firearm.

Government says this is open and shut because he wasn't hunting with his father. Judge will weigh this after reading the defense motion in full.
Quick check-in on scheduling. November 1st is still a good trial date for both sides.
Judge talking voir dire. Discussion around courtroom capacity. "My inclination would be, if there's no objection, to have the voir dire conducted in the normal way here in the courtroom." Says up to 80 people in the courtroom with proceedings televised in another room for others.
No objection on the jury selection process proposed by the court. Now discussing jury questionnaires.

"I maybe have tried more murder cases than anyone in the state," Schroeder says. "I've never used a jury questionnaire before and if I did it was in a moment of weakness."
Judge inclined not to permit questions about protest groups or protest attendance, political beliefs about gun ownership, membership in organizations, etc.

"This is not a political trial."

"A political vote is inadmissible in all circumstances."
Judge adds that political donations are basically the same question as how one voted but is reserving judgment on the issue because it could be specifically relevant to this case. Will allow some leeway.
Judge guesses that questionnaires will clue people into the trial they are being considered for and says "people all over town" are talking about this case and want to take part. Says he was stopped in the grocery store about the case–and will provide that person's name.
Judge wants to make it clear that he is insulting the authors of two letters published in a local paper "because they don't know" what's going to happen.

"And shame on the media."
Judge now discussing/complaining about the Bill of Rights. Says it is "the price we pay for having a free media and that is some inaccurate reporting."
Judge says he doesn't usually sequester juries but won't rule determinatively here because they might be sequestered for some reason at some point in the trial.
Government shocked because both sides submitted their questionnaires at the court's request. Binger thought this was settled.

"It would be naive for us to ignore that the 100-150 people are going to have opinions or knowledge and a jury questionnaire is important."
"I believe that a jury questionnaire is important and I would urge the court to finalize and get it out the door with enough time for the jurors to fully respond to it." The documents are about 15-pages long and will take some time to fill out. Says both sides need information.
"That's inevitable," Binger says, that jurors understand what case they're on. "They show up on Monday morning and they're going to know anyway."
Chirafisi for the defense. Agrees with government on jury questionnaires. Now trying to convince the judge it's good for the court, too. Because people with strong opinions aren't allowed to "poison the entire panel."

"We were aware of it ahead of time."
Judge will make a decision by Monday or Tuesday next week regarding the jury questionnaire issue.

Daubert hearing date on expert witnesses (both sides have alleged "use-of-force" experts) set for, I believe, October 10th. (Sorry, audio conveniently went bad right then.)
And as the Basque say:

"Hori da itzulbiratu bat."

We're done here for today.

Stories to come for @lawcrimenews. If you enjoyed this then give us a follow. This account is mostly retweets and signal-boosts but I occasionally complain about how the Spurs are doing.
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