The Kyle Rittenhouse Trial: Em Carpenter’s Blunt Take On The Whole Thing

Kyle Rittenhouse takes the oath before testifying. Court provided images

I have written here twice before on the Kyle Rittenhouse case, both times from a mostly legal analysis standpoint. Some of my personal opinions probably seeped through, but I didn’t give a blunt take on the whole thing. If you’ve heard enough, if you think 400ish comments on the last piece is plenty, if you’re thinking to yourself, “self, I don’t give a crap what Em thinks about the Kyle Rittenhouse trial,” please do move on to other pursuits.

I mentioned on Twitter the other day that my overall personal opinions on the case, after loosely following the trial, would make everyone mad. I meant that I would anger both the pro-Kyle and anti-Kyle contingents. Some of my followers inexplicably said they wanted to hear my thoughts, so because I’m too wordy for a Twitter thread, here goes:

Em, how do you think the state did?

Real bad, if you’re anti-Kyle. The prosecution for the Kyle Rittenhouse trial has been absolutely awful; I’ve seen more masterful lawyering by pro se litigants in traffic court. They lost the jury early on, in my opinion. The exchange with the photographer who said he was asked to “add to” his statement was especially bad; the assistant DA made it personal, looked petty and vindictive, and weakened his case in the eyes of the jury (IMO, as all of this piece is).

Then there was the living victim,¹ Gaige Grosskreutz, the state’s own witness, whose testimony has been widely deemed as supportive of Rittenhouse’s claim of self-defense.

Facts are facts, and video doesn’t lie. The prosecution had to contend with the fact that Grosskreutz had a gun in his hand and was moving toward Rittenhouse when Rittenhouse shot him. On direct questioning, Grosskreutz said his hands were up in surrender when he saw the defendant “rack” his rifle, leading him to believe he was about to be shot. This was the point at which the prosecutor needed to mitigate one of the most problematic truths of their case: where Grosskreutz’s gun was when Rittenhouse shot him. They prosecution danced around this part, when a good lawyer would have addressed it head on, and done so in a way that painted the picture they wanted the jury to see.

They didn’t, but the defense attorney sure did.

Question from defense counsel: “It wasn’t until you pointed your gun at him, advanced on him… that he fired, right?”

Grosskreutz: “Correct.”

This is a killing stroke to the state’s case on this charge, against which they had done nothing to defend. A direct examination which addressed this fact would have made it old news for the jury at this point, blunting its effect to the extent it is possible to do so. It was addressed more effectively in redirect, but that was too little, too late.

The prosecutor may have managed to convince some jurors that Grosskreutz was in fear and that his intent was to protect himself and neutralize what he thought was an “active shooter”. But it doesn’t matter what Grosskreutz was thinking. What matters is what Rittenhouse thought, and what Rittenhouse intended.

In addition to this crucial moment, the defense brought out omissions and outright lies in Grosskreutz’s previous statement. For example, in his first statement to police he did not mention the fact that he had a gun. But he did tell them he had told the man seen in the video hitting Rittenhouse in the head with a skateboard to stop — something he admitted on the stand never happened. That may not be a salient fact in the case, but it doesn’t matter to a jury who just learned that Grosskreutz is willing to lie.

The above is bad for the prosecution. But in my opinion, it wasn’t even their worst moment. To me the worst moment was when the prosecutor got into a personal argument with a defense witness, Nathan DeBruin. DeBruin is a freelance photographer who was at the protests the night of the killings. DeBruin related to the jury that he had met with the lead prosecutor on the case, Thomas Binger (who botched the Grosskreutz direct), to discuss DeBruin’s statement to the police. DeBruin says that after verifying the accuracy of his statement, he was asked if he wanted to change or add anything; DeBruin declined. It was then, he says, that Binger showed him a video on a cell phone, pointed to a person in the video and asked him if he could ID the person. DeBruin said he couldn’t, at which point Binger told him it was Josh Ziminski. DeBruin testified that Binger then put the phone down, picked it back up, and asked again who the person on the screen was. DeBruin answered “Josh Ziminski,” since that’s who he had just been told was in the picture. Binger then asked if DeBruin wanted to add this identification to his statement. He declined.

DeBruin testified that he perceived this as pressure to change his statement. Perhaps pressure is a strong word based on these facts, and “add to” is more precisely what he was asked to do, but either way, his story places an unpleasant stain on the prosecution. I’ve gathered that the Ziminskis are being prosecuted as well and this was an attempt to gather evidence against them, not Rittenhouse, but it feels gross none the less and I’m willing to bet the jury thought so too.

And then the prosecutor questioning DeBruin — assistant DA James Kraus — stepped up to do the cross and managed to do an even worse job than Binger had done on Grosskreutz’s direct. Kraus was antagonistic toward DeBruin, and not in the way you would expect on a cross examination. He made it personal, as in “So we never asked you to change your statement…”, practically testifying in an attempt to rescue the DA’s office from accusations of impropriety. He repeated several times that “asking if you want to add anything isn’t asking you to change anything, is it?” ignoring the part about the suggested addition of identifying Josh Ziminski. He should have stopped there, but instead he went in for what he probably thought was the kill: “You have a bias in this case, don’t you?”

Failing to glean an admission of a pro-Rittenhouse bias, he pivoted to an anti-prosecutor bias: “Did you give an interview to a gossip site that is bias against the district attorney?” When DeBruin denied any knowledge of the site’s bias, Kraus asked about the bias of the reporter himself against the DA’s office. This came off very badly in my opinion, turning the case into a defense of the DA’s office rather than a prosecution of Rittenhouse. I think the jury hated it, and hated the defense attorney who offered that line of questioning.

Those were some of the highlights — or lowlights, perhaps — of the state’s case.

What did Em think about Kyle’s on-stand breakdown?

This was tough for me. Like many others, I noticed the lack of even a single tear and I could not tell if it was real or not. But if it was acting, it was the most overwrought acting ever. Fake crying does not usually make a person look like he is dry heaving or about to throw up. I’m no expert on body language, but a lot of his movements looked involuntary. It looked like he was hyperventilating. Honestly, he looked like my son did as a toddler throwing the mother of all fits. It could have been entirely a put-on, but I tend to think it was real.

Do I think it was brought on by remorse over the death of two people at his hands? No, I don’t. I think it was the enormity of the entire situation hitting him. Terror for himself and his future, anxiety of reliving the trauma of that night – and I do think it was traumatic, no matter what his motives were. It was also a glimpse into the emotional maturity level of this man-child.

As for what a jury might think of it, well, just as opinions differ among those of us spectating from afar, their mileage may vary. I do think his lawyers did the right thing putting him on the stand, from a strategic standpoint, which is a position I rarely take. Juries like to hear from a defendant; its just that for many defendants, the doors that will open on cross-examination are a danger that outweighs any potential benefit of their testimony. Not so for Kyle, who by virtue of his youth brings much less baggage to the stand. The fact that he appears to be about 12 years old is an added bonus. He very well could have garnered some sympathy from at least one juror, and that’s all it takes.

Who does Em believe was acting in self-defense?

Here’s the thing: it is possible for both the defendant and the victims to have perceive a deadly threat and for both to have acted in self-defense. But Kyle Rittenhouse is on trial, and what the victims were thinking doesn’t really matter, so long as the jury believes the defendant was in reasonable fear for his life. The caveat is provocation. If you, unprovoked, point a gun at someone, and they do the same and then you shoot them, while you have technically defended your own life, the legal defense will not shield you if the jury is convinced “you started it.” That’s the trickiest part of this case, in my opinion.

Some have argued that provocation began when Kyle showed up with a gun. That’s not going to fly – second amendment and all. There is still the debate over whether he was legally armed; however, as a question of law, there is not and should not be a standard that mere presence of a weapon is provocation.

Then there was the first altercation, in which he shot Rosenbaum. The video I saw shows Kyle running away from Rosenbaum, who is chasing him. Running away. What happens next is not as clearly shown on video, but you see Rosenbaum appear to throw a plastic bag toward Rittenhouse — it flutters and falls pretty quickly, leading me to believe there was nothing heavy in it. Rosenbaum moves toward Rittenhouse again, and then the shots ring out. There is no good footage of Kyle Rittenhouse at the time of the shooting. He says Rosenbaum grabbed the barrel of his rifle, and there is a moment on film where Rosenbaum appears to hunch forward, but in another video Rosenbaum does not appear to get close enough to grab. It all happens so quickly and far away from the camera that it’s hard to tell. Remember, when the evidence could go either way, a jury is supposed to give the defendant the benefit of the doubt.

Then Kyle Rittenhouse runs away again. As he runs down the street he is asked why he shot Rosenbaum and says “he had a gun.” This is not true, and Rittenhouse admitted it was not true. When questioned, he testified he was “in a daze” and confused Rosebaum with Josh Ziminski, who had been near Rosenbaum and did shoot a gun into the air. That’s an iffy response that I’m sure the jury noticed.

As he continues to run, he is hit from behind by a man in a white shirt — this is Anthony Huber, who hit Kyle with a skateboard. Kyle soon goes down to the ground in the middle of the road and ends up sitting in the middle of the road. He testified on direct that he went down because he felt light headed and stumbled. The prosecutor suggests he was lightheaded not from being hit with a skateboard but simply from running. This seems a bit absurd to me, to think the blow from the skateboard was less likely to cause him to feel lightheaded than running would, and I don’t think the jury will agree.

Once he is down, he is advanced on and kicked in the face by a dark clothed man, at whom he shoots twice and misses. “Did you even care whether or not those two rounds were going to kill him?” Binger asks, giving Rittenhouse a nice opportunity to reiterate that he did not want to kill anyone that night but was trying to keep himself from being attacked. The prosecutor points out that this man was completely unarmed, and using only a “foot” to attack him. There is a fair point to be made here as to whether the force Rittenhouse used was reasonable.

Right after the two missed shots, Anthony Huber comes at him again with a skateboard, which he at that point had already hit Rittenhouse with twice. He then made the “deliberate decision” to shoot him “right in his chest.” The prosecutor spends some time here hammering the point that Rittenhouse had to have known that a shot to the chest from the AR-15 was going to kill Huber. I assume he means to argue that he intended to kill Huber and that it was unreasonable under the circumstances. “Did you even care at that moment whether Anthony Huber lived or died?” Binger asks, once again giving Rittenhouse a chance to tell the jury he didn’t want to kill anyone but only to protect himself. Instead, though, Rittenhouse simply says “yes.”

Then the prosecutor says “Your only concern in that moment was your own safety, correct?” The defense ought to cut him a check.

Next is the Grosskreutz shooting, and I think the prosecutor made a strong point. The video shows Rittenhouse still seated, with his gun pointed at Grosskreutz, who is coming toward Rittenhouse with his hands up. While Grosskreutz’s hands are up, Rittenhouse lowers the rifle. Then, as was brought out in Grosskreutz’s testimony, he points his own gun at Rittenhouse, who then shoots him in the arm. When the defendant says he shot him because he was a threat, Binger asks him why Grosskreutz pointing a gun at him was a threat, but Kyle pointing his gun at Grosskreutz was not. Good question. Rittenhouse’s answer that Grosskreutz was moving toward him was a good response to that point, though.

So, who do I think provoked who, and what do I think of the self-defense claim?

Joseph Rosenbaum was behaving aggressively that night based on widely available footage. I am at a loss to understand why he decided to chase a guy with a rifle, unless he just did not think the kid would actually use it. Rittenhouse says he stopped and turned to Rosenbaum because his path was blocked by other people. If Rosenbaum grabbed his gun, and Rittenhouse thought he was about to be injured or killed, then yes, I see self-defense. But I think that is up in the air and I could see a jury going either way on it. My own mind is not made up.

As to Huber, video shows the skateboard blows to the head. I do not think Rittenhouse had to acquiesce to a beating if he had the means to stop it. The gun he carried did not seem to be a deterrent, despite Huber knowing he’d already used it. I think the jury will find him not guilty. And if the jury thinks a skateboard is a dangerous enough weapon to warrant deadly self-defense, then Grosskreutz’s gun would be, as well.

Some argue that because second two men knew Rittenhouse had already shot someone, it was they who were acting in self-defense or defense of others when they attacked. In other words, Kyle Rittenhouse “started it” and did not have a right to defend himself. I don’t think that will fly with the jury, since the evidence is strong that it was Joseph Rosenbaum who started it. Yes, it is perhaps true that Huber and Grosskreutz did not know that and were acting defensively, but again, what they thought doesn’t matter.

TL;DR: I think Kyle Rittenhouse walks.

But what about the gun charge, Em?

I don’t think the law supports it, for reasons I have outlined before in Wednesday Writs: Kyle Rittenhouse Edition.

Wow Em, so you think it’s ok that he came to that protest with a gun?

I think a 17 year old kid had no business being there at all, armed or not, and his mother is derelict in her parental responsibilities for allowing — nay, facilitating — his presence that night. I don’t care how “civic minded” my kid may be, or how badly he wants to patrol the streets of Kenosha to defend dumpsters and car dealerships. If he’s not 18, he’s not going there on my watch. But he did not break the law merely by being at a protest. Whether Kyle Rittenhouse broke the law by having the gun there, I don’t think so, but even if he did it does not mean Kyle Rittenhouse is guilty of the other charges.

Em, are you a supporter of armed right-wing vigilantes?

I am not. I am a supporter of examining the facts without considering the political leanings of those involved.

Right on, Em! Those guys were scumbags anyway and they deserved it.

Completely irrelevant.

Anything else?

Yes. That judge sucks. He has acted in a manner suggesting bias, no matter my opinion of the case. He has been excessively hostile toward the prosecution, even in light of the crappy job they are doing. I have disagreed with some of his rulings, but I have not seen one that I think would be overturned in an interlocutory appeal, and most of his behavior has been outside the presence of the jury. Unfortunately, he is not acting in a manner atypical for his position.

This is 3000 words, Em. Are you done?

No. I have one more opinion to give.

Seinfeld was a stupid show full of stupid and unlikable characters. It was rarely ever funny and I refuse to believe people actually liked it.

Now I’m done.

1. Court ruling notwithstanding, I will use the word “victim” as it is commonly understood: the people whom the state contends were illegally harmed by the defendant.