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


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