Kyle Rittenhouse Hearing 210917 Transcript

TRANSCRIPT
Kyle Rittenhouse pre-trial evidentiary hearing September 17, 2021
Participants:
Kenosha County Judge Bruce Schroeder
Prosecution:
ADA Thomas Binger
ADA Jim Kraus
Transcript: Rittenhouse Hearing 9/17/2021 Page 1 of 65
Law of Self Defense LLC © 2021

Defense:
Attorney Mark Richards
Attorney Corey Chirafisi
Attorney Natalie Wisco
[BEGIN]
Judge Schroeder: Alright , this is the case of the state against Kyle Rittenhouse. Announce
appearances [?].
Prosecutor: The state appears by Assistant District Attorneys Thomas finger and Jim
Kraus.

Defense: Good morning, Your Honor. Mr. Rittenhouse appears in person
represented by attorney Mark Richards, Corey Chirafisi, and Natalie
Wisco.
Judge Schroeder: We got a few technical problems this morning and I, I'm on a different
network than usual. Which Ms. Matthew have your hand up? What's up?
UNKNOWN: Sorry? No, sorry. I was turning up my volume.
Judge Schroeder: Okay. Okay, no problem. Yeah, I'm on a different network. I don't think
that'll cause any problems. The ordinary network we use was not coming
up. So, and then I had to choose between, and I don't know why this
hasn’t happened previously that I can recall, I had to choose between the
courtroom view, which is what is should be in the center, right now
showing all of the lawyers and if I move that around all the lawyers and
the defendant, and or views of myself, and I figured people would rather
look at the courtroom than me, but so I that's how it's set up at this time.
And I could change it. But unless there's some reason I'm not going to.
So that's the technical report. And I'll now ask you folks to update me if
there's anything since the last filing and then we'll start taking on the nuts
and bolts of the case and some of these motions which have been filed.
Mr. Binger, have you got anything
ADA Binger: Judge, I just want to confirm with regard to the victim’s rights act. I know
Miss motley was going to appear representing Mr. Grosskreutz. John
Huber, the father of Anthony Huber, had been appearing in the past
along with Attorney Steve Art, I'm not able to see who's on your Zoom
connection there. So I just want to make sure that we have the recording
that needs to be here.

Judge Schroeder: I think Mr. Huber is on. I don't see your—
Huber: Yes.
Judge Schroeder: Yeah. And I don't see Attorney Art and Mr. Grosskreutz is on and Ms.
Motley is on. Is there anybody else appearing? I mean, make sure that
there's nobody in the waiting room?
Attorney Motley: Your Honor, just to clear the record, and also appear on behalf of the estate
of Joseph Rosenbaum.
Judge Schroeder: All right, and—
ADA Binger: We're not aware of anyone else who would appearing, your Honor.
Judge Schroeder: Alright, and what else? What else?
ADA Binger: Other than that, Your Honor, I don't have anything new since the last file.
Judge Schroeder: All right. Mr.Richards?
Richards: Yeah, I think we're all up to date, everything was filed.
Judge Schroeder: Okay. Alright, let's, why don't we take the motions up, and then we'll talk
about the progress of the case. The first one that I looked at and it was
received on the first, the first batch, was a state's motion for other acts
evidence. The state alleging that on June 1 of last year, the defendant
assaulted a female in Kenosha, and I did review your briefs. Did you want
to add anything to what's already in the brief, Mr. Binger?

ADA Binger: Your Honor, I've reviewed the defense response brief. And I think that
there is a notion that the defendant’s state of mind is not relevant here or
that because there's really no dispute that these were intentional acts,
that somehow the only issue remaining for trial is the reasonableness of
the defendant’s actions. That may very well be where we're at the end of
the trial. But at the beginning of the trial, I have a burden of proof. There
are claims against the defendant that go to his state of mind in terms of
intent or recklessness. And it's my burden to prove that. At that time in
the case, I won't have any testimony from the defendant. I don't know if
he's going to testify or not. He doesn't have to. He has the right to remain
silent. So I certainly can't presume what evidence may or may not come
in in the defense case. This is an unusual homicide case in the sense
that it is not a who-dun-it. This is not a question of did the defendant kill
anyone? The question is, what was his state of mind and whether or not
his actions were reasonable or not, and whether or not they go to intent
or recklessness or some other mens rea, that is the mental state that the
state needs to prove. We don't convict people without the requisite mens
rea. So his state of mind is perhaps the most critical issue in this case.
The motions that we filed both this one and the other other acts motion
that we'll get to, in a moment, illuminate the defendant’s state of mind,
both on the night in question, and also on these preceding events of June
1, and August 10, which is the date of the other motion, or the events of
the other motion. And I believe that these motions help the jury to
understand the defendant’s state of mind. And I think that that is a
relevant element, both in terms of the criminal charges here and also
under State v. Sullivan, in terms of intent, motive, knowledge, absence of
mistake, etc. The first motion that you discuss, Judge, has two prongs to
it. One is with regard to that June 1 fight. That is a fight, which has been
captured on video. It is a incident in which it's my understanding that the
defendant’s sister got into a physical altercation with another female. And

this was essentially a one-on-one fight, somewhat of a consensual fight,
both of them interested in assaulting one another. But in the midst of that
Mr. Rittenhouse intervenes and begins to add on to what his sister's
doing to this other female by assaulting that second female. And I think
that that goes to the defendant’s state of mind in this case, because it
shows that his understanding of self-defense, his understanding of the
need for self-defense is a certain way, and I think it's an improper and
unjustified use of it. I also think it goes to what I will posit will be a strong
theory of state’s case here, which is that the defendant is essentially a
teenage vigilante involving himself in things that don't concern him. And
we have a common theme here both with regard to this incident, and the
August 10 incident that's the subject of our second other acts motion.
The defendant throwing himself into situations that don't concern him,
that he has no complete knowledge of, that no one asked him to be
involved in, and using force or threatening to use force in an unjustified,
illegal, unwarranted manner. So I think with regard to this other acts
motion that June 1 incident illuminates the truth. For the jury. It
illuminates the defendant’s state of mind and the court, the jury, is going
to have to consider that state of mind when it makes its determination
here in this case. The second part of it that other acts motion is with
regard to the incident after a court appearance in January where the
defendant goes to a bar in the scene and is serenaded by members of
Proud Boys. Now we have since learned that those individuals that were
serenading the defendant consists of the higher, highest echelon of the
Wisconsin Proud Boys chapter including their leader, their current
Sergeant at Arms, their former Sergeant of Arms and other high-ranking
members of that organization. This was not a random crossing of paths
here in a random bar or a random time where they just happen upon one
another. This was something that was coordinated. This is something
where Mr. Rittenhouse intended to be there, these other individuals

intended to be there. And the Proud Boys organization is relevant to this
case, because we have to put the incident of August 25 in context. This
was not a festival in the park, where somebody suddenly pulled out a gun
and started randomly shooting. Most everyone that was there on the
streets of Kenosha on August 25 was there because of their beliefs one
way or another with regards to the shooting of Jacob Blake. And I don't
need to argue one side or the other. The court does not need to make a
determination on one side or the other. But we can't ignore the fact that
people were drawn to the streets in Kenosha that night because of a
response to the shooting of Jacob Blake. There were some out there that
believe that that shooting was justified, some felt that was unjustified.
There were other chaos tourists like the defendant, who were drawn like
a moth to the flame to our community. We've seen folks that have
committed crimes under the cover of that chaos, burglaries, and looting,
and arson. The defendant wasn't one of those people. But this was the
type of person that was drawn to our community. The defendant, I
believe, was drawn to this incident because of his beliefs, which are
consistent with those of the Proud Boys. And I believe that those beliefs
include a desire to use violence to support that philosophy. The Proud
Boys are a well-known national organization that takes pride in using
violence to achieve their means. That takes pride in showing up at rallies
and protests by what they consider to be their opposition, which can be
loosely considered to be Black Lives Matter or Antifa, or whatever you
want to call them, and using violence to disrupt those protests. The
defendant came to our community. He's not a resident. He's underrate.
He's out after curfew. He's armed with an illegal weapon. Why? That is
the question. His state of mind, his intent that night, is a crucial issue in
this case. The defense will no doubt try and portray the defendant as a
altruistic, young, idealistic individual who was here to try and help our
community, protect business clean up graffiti, use his medical supplies to

help people in need, they will try and show his state of mind as being a
positive, helping one. The state is entitled to introduce evidence that
further illuminates his state of mind for the jury. And the jury will ultimately
make the decision as to his intent, his motives, his state of mind, what he
personally believed at the time of these shootings, and they will introduce
their reasonable impressions, as our community members, as to what a
reasonable person would do in those circumstances. So those are the
questions the jury is going to be asked. I believe a jury trial is about the
truth, I believe that these issues go to the truth of the matter. The jury can
be advised as to how to consider the weight of this evidence, the jury can
make its determination as to the weight and the relevance, the
importance of or the pertinence of this in terms of whether it's really a true
description of the defendant state of mind, or whether the other side,
portraying them in a different light, is the true portrait of the state of mind.
But I believe the state is entitled to introduce these two pieces of
evidence as part of our first other acts motion, because it goes directly to
these issues. Looking at the seller selling factors, these are being
swapped to be admitted for a proper purpose. They are relevant to the
issues at the trial, and they are not unduly prejudicial. They are close in
time, they are directly relevant to the factors in this case, the court can
give a limiting instruction as to the use of this evidence, which will also
help to mitigate any undue prejudice here. But again, these are the
defendant’s own actions. He's responsible for his actions, what he did on
June 1, what he did at the bar in January, in Racine and of course, what
happened on August 25 here. So for all those reasons, Your Honor, I
believe that the court should grant our first other acts motion and allow
the state to introduce these pieces of evidence as part of our case in
chief. Thank you.
Judge Schroeder: Mr. Richards, or Mr. Chirafisi?

Chirafisi: I'm going to address it if I could, thanks. So, as it relates to the first other
acts, on June 1, so the state is asking you or inferring that they're able to
ascertain Mr. Rittenhouse’s state of mind two and a half months prior to
the incident. So his state of mind on June 1. And his actions on June 1
somehow play a role in his state of mind on August 25. This is, as an
officer of the court, this is what I'm telling you. Mr. Rittenhouse will, it will
not be debated that this action was intentional. It will not be debated that
the action was intentional, and he will raise the issue regarding self-
defense. When we're looking at the purpose of other acts, intent is one
purpose and it's a proper purpose. However, intent is normally admitted if
it undermines an innocent explanation for the person's behavior. That is
not happening here. There is no innocent explanation. There's an
explanation, but he fired the firearm intentionally. As it relates to motive,
if they are trying to establish that he had some motive, two and a half
months before, teenagers, teenagers getting into a fistfight, does that
make it more or less probable, is it a fact of consequence, that he was in
a fight two and a half months earlier, that he did not act in self-defense in
this case? Does that make that more or less probable? The answer is it
does not. It doesn't have anything to do with whether or not it makes it
more or less probable, that he acted in self-defense. The entirety of this
is captured on video. The only issue in this case is going to be the
reasonableness of those actions as they're determined, subjectively, and
then objectively from a reasonable person in his position. So they
describe him as being somebody who comes to Kenosha looking for
trouble, even though they don't mention he works in Kenosha, he works
in Pleasant Prairie, and then his father lives in Kenosha. And I would
submit to you that when you look at the similarities, we're really going to
do a Sullivan analysis. The biggest thing in Sullivan that was different,
really was the manner in form in which one was a verbal argument. One

was an assault. And if we have reached the position where teenagers
getting into fistfights makes it more probable that a teenager then used a
firearm in self-defense, when we have the self-defense on tape, we have
the case on tape, I would submit to you it adds nothing to that
determination as to whether or not his actions were or were not in self-
defense and whether they were or were not reasonable under the
circumstances. So I, where I believe it fails, if you believe it's the proper
purpose, it has nothing to the case as relates to his state of mind two and
a half months later. And certainly because this isn't a whodunit. And it's
not it wasn't an accident. It is an intentional act with an affirmative
defense attached to it. And I don't think under those circumstances this
particular instance has any relevance to that, alright. As it relates to the
Proud Boys, I mentioned this in the in the brief and Mr. Binger has
ignored it, has ignored it. For this to be considered by you there must be
evidence by a preponderance that on August 25, 2020, Kyle Rittenhouse
was either a member of the Proud Boys or had loyalties to that to that
group. It is no different than you would make a determination if there was,
for example, somebody wanted to introduce evidence of a gang
membership. I'm telling you as an officer of the court, we have
downloaded Mr. Rittenhouse’s cellular phone. We had an expert review
that phone. That expert has done an analysis to try to determine if there
is anything on that phone related to Proud Boys, militia, white
nationalists, Boogaloo boys, KKK, three percenters, any type of hate
group that you might consider. And the finding was, the extraction does
not establish that the user belonged to or even had any interest in, any
malicious-style organizations. Mr. Binger has provided you no information
whatsoever that on the day in question, August 25, that Kyle Rittenhouse
had any affiliation with that group at all. He's asking that you take and
allow evidence to be admitted over four months later about a photograph,
without any information, that anything related to this case, involved the

Proud Boys. There has been nothing. And I have cited for this court
cases in my brief related to, for example, gang memberships. And in
every one of those cases, the court had to make the finding, first, the
person is in fact a member of this organization, or has loyalties to that
organization. You've heard nothing in his brief and nothing in his
argument today that would substantiate that on August 25 that fact
existed. There has been interviews with witnesses, some of whom are
admitted militia members, some of whom are admitted, right, far-right
wing ideology, have right wing ideology. To a person none of them had
ever heard of, talked to, heard of, Kyle Rittenhouse prior to that day. No.
So there is nothing in this record and there's nothing that Mr. Binger can
point to that should satisfy you to even do this analysis, meaning that
there has been a showing by a preponderance that he has any of these
affiliations. Okay. So I don't think they get there. However, if you're going
to make the considerations as to whether or not they have met, they have
provided that evidence to you by preponderance, and we're going to go
to the relevance standard, there is nothing that would indicate that any of
these shootings were related to, he describes them, the Proud Boys, as a
racist hate group. There is nothing in this evidence that would support the
idea that any one of these shootings was racially-based. I mean, we have
to remember the three people that were shot, are white. The only racial
statements that were made, that are that's going to be in evidence in this
case is of Mr. Rosenbaum, the first person, was screaming the N word
during this. That's it. So to admit evidence, that because he's a member,
or has ties to an organization, which he has been unable to proves that
this somehow is a motive for the shootings, when unless they can tie that
ethe shootings are somehow racially related to these three people, it
doesn't add anything to whether or not it was done in self-defense. It is, it
is without debate judge, all three people, were chasing Kyle Rittenhouse.
All of them. That is, that is not debatable. So for them to say, the fact that

he has or they believe he has some tie to this organization, without any
information that in fact, that's the reason that this happened, it doesn't
move the ball further down in terms of making something more or less
probable, a consequence of fact, if they can't show that the shooting was
related to that, and argue that's a reason it wasn't in self-defense. I don't
think they move the ball. And I think if you're really going to do the
Sullivan analysis, what they're talking about is four months after the fact,
people in a bar. There's no information that he, that Mr. Rittenhouse
knew who they were when the photos were taken. But there's, they're
having he's having lunch, and they're taking pictures, that is somehow
close in similarity to what happened on August 25? As I mentioned in my
motion, my response, August 25, has been described as a warzone in
Kenosha. The evidence in this case will be multiple people are armed,
whether it's militia members, rioters, threats are being made amongst the
groups. There's a curfew, there's police presence, you're going to use
that, and say, having lunch and taking photos with people with no tie to
that organization is somehow moves the ball toward making it more or
less probable this was not done in self-defense. I asked that you consider
it, as I said, much like courts consider membership in other organizations.
There has to be some tie to it before you would allow it to be admitted. I
would finally, in this particular case, talk about the unfair prejudice,
without a tie to it, without some information that he's part of this group,
and without some information that this these shootings were motivated by
hate or race, it is, the probative value of that is substantially outweighed
by its prejudicial value. This, we are hoping to try this case on facts. And
to admit evidence that, there's nothing moving forward on the case, other
than to say he has some ties to some hate group, even though there's no
proof that shooting was related to a hate group, I think would, wildly
prejudice the jury as a relates to the facts of the case. So I don't, I don't
believe they've certainly as it relates to the Proud Boys, I don't even think

you get to this, Judge, unless Mr. Binger can point to some indication that
on that day there's a connection that he can actually put forth in
evidence. But otherwise, I believe the evidence is not relevant, should not
be admitted. The first one is two and a half months before, second one is
four months after. And I don't think it would assist the jury in any way in
this case in making that determination, and I would ask that you denied
the motion. Thank you.
Judge Schroeder: Well, I'll tell you with respect to both of these requests, I think if I admitted
either of these, I get reversed. That's the bottom line. I think that the first
one, the incident involving the sister, this is clearer, in my estimation, it's
a propensity evidence. It's just, it's an opportunity to suggest to the jurors
that he's acted in a violent way on other occasions, and therefore he
acted in a violent way on this occasion. There's no connection between
these two events at all. They're, they're, they're, they're totally dislike
each other. One involves a fight involving some kids, including the sister
of the accused, and how he reacted in that particular instance, what has,
which has nothing to do with what happened in an incident of which and
I, I haven't seen all the videos that you folks have had, or seen witness
statements as you have, buddy, it sounds like pretty clearly that at the
time that the first incident occurred, and certainly I have, I've seen the
videos of the second set of shootings. And in all the instances there was
actually contact between the people leading up to the shooting incidents.
And in all of the incidents, there was some confrontative behavior, which
is certainly subject to multiple interpretations. And I don't want to get into
that, that's for the jury. But it's nothing like the incident involving the
sister. So this to me is clearly propensity evidence. It's exactly the kind of
evidence that the rule is designed to prohibit. And as I say, I'm virtually
certain that if I admitted this kind of evidence, it would be, it would be a
reversal if there were a conviction. You make reference, you make

reference to having a consistent motive, that kind of thing would, would
be more persuasive if there were similar incidents in which there were
demonstrated consistent motive, if the defendant would have gotten up
on the top of the high school across the street, and, and every time a
person who appeared to be a member of a disagreeing group walked by
take a shot at them, certainly that kind of behavior would be a consistent
motive, and would be very definitely admissible. But I don't see any
connection here at all. So that request is denied. And I while I agree with
you that you have the burden of proof, and you can, and the defense
cannot hand off your evidence by saying we're going to acknowledge this
was a willful shooting, I agree with you there. I also have to be open to
the voice of reason in terms of how the case is shaping up. And I don't
think there's any doubt about the fact that the defense is clearly
conceding the issue and the law is also clear that when that's the case,
the judge has to look at it a little bit differently. Certainly, if they walk in
here on day of trial and start claiming that it was the acts of shooting,
were not willful, then I'll take another look at this evidence. Although I
certainly don't want to suggest to you that that might be a different ruling.
But it would put a different light on there for sure. So that request is
denied. The Proud Boys evidence. You know, I at this point, I don't know.
And perhaps you have other information, which I don't know about. But I
don't know whether there was a pre-arrangement to meet these people,
or if there was an awareness of who these people were. I have to tell
you, I'd never heard of the Proud Boys before this case. And you cited a
Seattle newspaper, and I'm not going to rely on a newspaper account
about what an organization is, or whether they're hate inspired group or,
or whatever they may be. There's such a spectrum of groups in this
country, and there seems to be more every day. But and I, I don't think
it's for the courts, except in the most appropriate circumstances, to be
making determinations, and certainly not on the basis of an article on a

newspaper in Seattle, about what an organization is. But assuming that
they, these people are known group that is inclined towards violence, and
particularly the violence of a particular type, again, directed against
particular people, there's still no suggestion in the evidence that's been
offered to me that this was anything other than a happenstance
occurrence. And even if that isn't true, whether what the scope of the
defendant's understanding was. And obviously, this is an unfortunate fact
that this case has become a surrogate for a lot of emotional reaction that
has nothing to do or little to do, or nothing to do, with the issues in the
case. But if this man is accused of these crimes, which could send him to
prison for life, and he encounters some people who embrace him and
start to, can we take pictures with you, and somehow they make feel
better about himself, and he reacts by smiling with him and taking some
pictures, for me to let that in his head evidence of a motive that existed
four months earlier, can't see it. Absolutely not. Again, I would expect to
be reversed if they did that. I don't know anything about the hand gesture.
I was, again, that's another thing I never heard about before it came up in
the context of this case. And I don't know about it, and I sit in the criminal
courts all day long. And I deal with a lot of racially charged cases, believe
me, and I never heard about this hand gesture [makes “OK” gesture with
left hand]. First time I saw it, for a version of, it was Chef Boyardee, on a
can of spaghetti. So—
ADA Bringer: Your Honor, if I may.
Judge Schroeder: Go ahead.
ADA Bringer: We’re not alleging he’s a member of the Proud Boys. But, but two things,
first of all, this was not a happenstance, random meeting. In fact,
according to a New Yorker article, which interviewed—

Judge Schroeder: --Now—
ADA Bringer: Hold on, but they interviewed various people involved, including members of the
Rittenhouse family and their supporters, the defense went to Miami on
January 12 of this year and was picked up the airport by the president of
the National Proud Boys organization who took them out for lunch. That
was intentional. So this was not, this is consistent, t his is a pattern. This
is not a random meeting.
Judge Schroeder: When was this event?
ADA Bringer: This was January 12. So this nine days or eight days after the incident at
Pudgies Bar Racine, the defendant’s in Miami picked up at the airport by
the head of the National Proud Boys organization. So I submit to you, you
know, the question that defense asks is what's the proof that he's
affiliated with this organization? This is the proof. He goes up for, after
court, rides up to Racine and meets them at a bar, goes to Miami is
picked up the airport and has lunch with the National Head of that. So
this is the evidence of affiliation—
Judge Schroeder: What’s that mean about October, excuse me August 25 of last year?
ADA Bringer: And the jury can make a decision on that, your Honor. I believe that is
consistent with the Proud Boys mantra, their philosophy, of going to
these types of protests armed with the intent of causing violence. And I
think we will we will be prepared to introduce testimony from someone
who is affiliated with the Proud Boys and will tell the jury about their
philosophy, will tell the jury what sort of violent activities they do at these
incidents. So again, I understand the court doesn't want to rely on a

Seattle newspaper article, we will have a witness who will tell the jury
exactly what the Proud Boys is about, exactly what they try and do,
exactly what their philosophy is, will identify the people in these meetings.
Okay, so I you I understand the court may believe that because of the
prejudicial nature of this one, I'm going to introduce the evidence. But I
want to button down those two issues. This was not a random chance
meeting Puggies pub because of the incident in Miami. And second of all,
we will introduce evidence about the Proud Boys, far more than a
newspaper article. So those issues we can, we can surmount those
obstacles to the court's ruling, if that's what's important is concerned
about.
Judge Schroeder: All right, let's assume you're reading in the evidence about the Proud
Boys being in Kenosha on the day in question, and that they're here for
their purposes. Is there any suggestion that they were connected in any
way with the accused
ADA Bringer: On the date of August 25, I will acknowledge that I'm not going to be able
to prove that that was a coordinated thing between the defendant and the
Proud Boys that night. However, I believe there's a strong inference
based on the fact that after court in January, he goes up to Puggies goes
down to January or Miami later that month, and meets with not only the
head of the Wisconsin Proud Boys, but the head of the National Proud
Boys. I think there's an inference to be drawn from that. Now the jury can
be instructed what weight to give it. But the defendant’s actions of coming
into our community illegally after curfew with a gun at the time of a
protest is entirely consistent with what the Proud Boys make it their job to
do. And then he meets with the leaders, afterwards. To me, I think there's
a reasonable inference that these are consistent motives all along.

Judge Schroeder: Okay, and you've been in here enough, [ADA] Mr. Kraus has been in
here enough to know that we get these pre sentences where the
defendant is accused of any number of things. And there's a section in
there about gang membership. And I have stated probably 100 times,
probably more than that, that I don't, I breezed right past that. Because
I'm not interested in these accusations about group responsibility, unless
it's directly connected, that the defendant is, is active in the criminal
enterprises of the organization or, you know, there's kids in
neighborhoods, right here in Kenosha, who join gangs, because they're
afraid not to. Pope Benedict was a member of the Nazi Youth, because
he had to be. This type of evidence is very dangerous. You make some
points that might be legitimate. I certainly would keep the door open. If
you can show that there was any connection between the defendant on
the day in question and this organization. But as I said before, if then this,
this, this organization, embraces the defendant after the fact, because
he's lionized because of his behavior, that is not something that the jury
can make anything out of that would be lawful. So, as I say, I'll keep the
door open a small amount, if you've got some evidence to suggest that
there was some prior knowledge or awareness, but otherwise, I think the
evidence would be poisoned, and would not be allowed. All right now the
next one is, um, the defendant’s first motion in limine and there's a series
of statements in there, let's see. [The defense is] asking that the state be
prohibited from the Puggies incident, that's in point three, and I've already
discussed that. The money, the evidence that where the source of the
funds, with which Mr. Rittenhouse purchased the firearm, is that he wants
to prevent that from being offered. Is that any reason you want to offer
that evidence?
ADA Binger: Absolutely, your Honor. The defendant is charged with illegally
possessing a firearm. The circumstances under which he possessed that

firearm are directly relevant to that charge. So how he obtained it, how
we purchased it, the circumstances under which he purchased it, how we
paid for it, etc. All of that is relevant. I believe that there'll be testimony
with regard to this. I don't think there's any dispute that the defendant
turned around and used his stimulus check very shortly thereafter, to go
up to Lady Smith, Wisconsin, with his good friend Dominic Black and
used, essentially gave the money to Mr. Black, who then purchased it on
behalf of the defendant, because the defendant was 17, he can't legally
purchase or own a firearm.
Judge Schroeder: What is the source of the funds? How is that relevant?
ADA Binger: It's relevant, Your Honor, because Mr. Black was working essentially as a
straw purchaser, your Honor.
Judge Schroeder: That's a separate issue, that what he's asking, that not be allowed, is
evidence about fact that he used the stimulus money to buy the gun.
Where's the probative value of that?
ADA Binger: Well, Your Honor, I think it paints the picture for the jury of how this
transaction occurred. How does Mr. Rittenhouse come into this money?
It's a lot of money. We're not talking about 50 bucks here, we're talking
about $800 or thereabouts. So it's a large sum of money.
Judge Schroeder: Actually, you’re providing the explanation. I would think that you'd want to
offer “where’s he get this money?” I don't, I don't understand--
ADA Binger: We can leave the question open for the jury, Your Honor. And we can let
them try and speculate if they want to. But since we already know the
answer, why not tell them the truth?

Judge Schroeder: Why tell them anything? I mean, he got, he had money, certainly had a
job as a lifeguard or something, I read.
ADA Binger: I don't know that he had that job at that particular time, your Honor.
Judge Schroeder: Now I don't want to get into that.
ADA Binger: The defense is going to he's going to talk about his work as a lifeguard.
We've already heard reference to him, you know, working in our
community, although he worked in Pleasant Prairie, but—
Judge Schroeder: What is the relevance of the stimulus money being used for that as
opposed to being used for drops? Or for a musical instrument or a
boombox? Or is it, is that the right term?
ADA Binger: If we want to cut off reference to that, Your Honor, then why don't we just
cut off reference to the defendant working in Pleasant Prairie as a
lifeguard, too?
Judge Schroeder: You haven't given me a reason
ADA Binger: Well, I think it's the same issue. It's two sides of the same coin, your
Honor.
Judge Schroeder: I would tell you that I I don't think it's a big deal. But I do think the defense
is correct. That it doesn't sound to have much relevance. I also don't …
you're suggesting that the reason he's trying to do it is to denigrate the
defendant for not using the stimulus money for a more altruistic purpose.
I would imagine that some percentage of the American people who got

money, used it for altruistic purposes, but I would bet most didn't,
including some who probably spent it on illegal drugs.
Richards: I just don't see how it goes to any element that's in dispute. I mean, it's
just, I think it is to denigrate him, to try and paint him bad. And that's why
they put it in the Washington Post article. That's where it was.
Judge Schroeder: I did, by the way, read that New York Post, New York, New Yorker
magazine article that you mentioned, but I didn't--
ADA Binger: I don't I don't think it's an issue of denigrating or making them look
positive. The stimulus money was intended to stimulate our economy
was designed to be spent at various locations, whether you go out you
buy groceries, or you spend it on your rent, or you buy a gun, it's certainly
benefited the Ace Hardware and Lady Smith to sell that gun. There's
nothing wrong with that. You know, gun ownership is legal in our country,
Dominick Black purchased the gun, he's legally able to do that. Of
course, the defendant isn't. But there's no, there's no implication here by
the fact that it's stimulus money used to purchase a gun. There's no
automatic implication positive or negative on that. It's exactly what the
stimulus money was intended to do, was to be used to stimulate our
economy by supporting this.
Judge Schroeder: Yeah, I think it's gonna elongate the trial. So I mean, it's, you know, I, I,
I'm not gonna give you a definitive ruling now, because it's not in my
estimation, it's not that objectionable. But it's also not that probative. And
I tell you, what, we're not going to spend as much time at the trial as we
are today talking about this, because we want to move this case along.
So if he asks, and you object, you're going to get a one word response as
to whether I decided at that given moment in time, whether it's, and that

may have something to do with the pace at which we're moving. So I just
don't want to get bogged down. The item number 3(b), that’s Puggies
again,
ADA Binger: Your Honor, I think that 1 and 3 in the motion in limine are covered by
your ruling on the other, so I don't know that we need to spend more time
on it.
Chirafisi: I think that’s everything, then. I think this was filed before the state filed
their other other act motion.
Judge Schroeder: Okay. All right.
Chirafisi: So it was kind of done pre-emptively.
Judge Schroeder: So wer’re all done with it.
Chirafisi: We are.
Judge Schroeder: Motion to admit evidence, that is evidence of whether, because Joseph
Rosenbaum had been convicted of child sex offense and went to prison
for it, I guess three different times. You can start talking, with knowing an
extreme bias towards denying your request.
Richards: Understood, your Honor.
Judge Schroeder: Okay.
Richards: Your Honor. his status as a felony offender is relevant in this case,
because based upon the facts of that evening and his conduct. When

Mr. Rosenbaum was on the scene on the 25th he made threats to
numerous people, including my client and Mr. Baulch, where he
specifically said, if I get you alone, I'm going to kill you. And that
happened earlier in the evening. It's reported, I received that in discovery
from the government. It was from an FBI agent who interviewed Mr.
Baulch. Mr. Rosenbaum made other threats about not being afraid to go
back to jail. He stated that I just got out that day, which was overheard by
my client. And ultimately what ends up happening, and it's on the video,
my client is walking down the street, Sheraton Road, towards what I
would refer to as Car Source #3, where the first shooting occurs. As he's
walking down that road, Mr. Rosenbaum becomes aware of that. He’s
[Rittenhouse] been called and asked to go there to potentially put out
fires that people are starting at that location. He asks for—
Judge Schroeder: When you say “he,” you’re talking about—
Richards: My client [gestures to Rittenhouse beside him].
Judge Schroeder: Okay, go ahead.
Richards: He asks for a fire extinguisher from the gas station at the corner of 60th
and Sheridan Road, somebody provides him a fire extinguisher. He takes
off in the direction of 63rd and Sheraton Road Car Source #3. As he's
going to that location. Mr. Rosenbaum and Mr. Ziminski are seen on
video behind him. Mr.—and in front of him, my client starts off behind,
goes past them. As my client passes Mr. Rosenbaum, Mr. Rosenbaum
has his face covered with his shirt in a ninja type mask, not a COVID
mask, it has over the top of his head and a slit for his eyes, hiding his
identity. As my client goes by him, their statements of “get him,” “kill him,”
things like that. Whatever is said, it's in dispute. But there's something

clearly said. As my client is aware of that he is being chased, he's also
being followed by a reporter by the name of Richard McGinnis. As he's
being chased, McGinnis follows him. My client runs into the lot of Car
Source #3, right before he enters the lot, he's being chased, he drops the
fire extinguisher so that he can get away faster I would submit. As he
gets into the middle of the car source #3 lot Mr. Rosenbaum continues to
follow, chasing him. He throws something at him which has now been
determined to be a metallic type bag. You see it clearly in the video, Mr.
Rosenbaum fires it at my client. There's evidence that there was
something in that bag that was removed before it's recovered by police.
Also from a statement from I believe it's Mr. Baulch. My client turns
around, addresses Mr. Rosenbaum, still being followed by Rosenbaum,
chase [?], and Richard McGinnis off to the side. He turns around when
Mr. Rosenbaum does not stop even though he's pointed a firearm in his
direction and begins running away further. And he's looking over his
shoulder back in Mr. Rosenbaum, who continues to advance. Richard
McGinnis states that Mr. Rosenbaum continues to run at Kyle even
though Kyle is now addressing and pointing a firearm in his direction. Mr.
McGinnis states that he lets, out as he describes it, a blood curdling
scream yelling—
Judge Schroeder: He being?
Richards: Mr. Rosenbaum. My client as he's jumping towards him, fires the four
shots, which take less than one second, hitting Mr. Rosenbaum, Your
Honor. Mr. Rosenbaum had the will, he had the intent, and he had stated
what his motive was: to take somebody who he believed as a threat
would put out fires that he had been starting had been stopping them
from burning down buildings, and now was his chance. Mr. Rosenbaum,
because of his status as a convicted felon is unable to lawfully possess a

firearm, could not purchase a firearm. He saw this as the opportunity to
possess a firearm and take care of what he believed was a threat or a
problem to the rioters, not demonstrators, rioters which Mr. Rosenbaum
was. There's numerous photos earlier of Mr. Rosenbaum, wearing a
shirt, in a proper fashion or his body, not using it as a mask. In the state
of Wisconsin, hiding your identity and identity to commit a crime is in itself
a crime. He was doing that. Your Honor, the case that I've cited in the
brief, State v. Sangram [?], 204 Wis. 2d 177, and it's also cited in the
annotations for the witty [?]cautionary instruction. And I know the court
knows that it's your case. It's the fleeing and eluding. And the state
sought to put in the fact that he was convicted. In this case, it is our
argument that he was trying to take the gun, one, because it was readily
available, two, he could not legally purchase one. Many of the individuals
that evening, on both sides of this, were heavily armed. There's Black
Lives Matter individuals with guns, there's people who are protecting
property with guns, there's militia members parading around, It's our
position that Mr. Rosenbaum could not legally possess a gun, but that
wasn't going to stop or deter him. And, you know, I read the newspapers,
I read this stuff, and everybody's always just wants to put that in to sully
the victim. One, it hasn't been determined whether he's a victim, or
whether this was a justified homicide on the part of my client. Secondly,
under Old Chief v. US, 204 US 177, there could be stipulations that could
be entered into. In this case, it doesn't have to be that he's a convicted
pedophile. It can be that he was a convicted felon, which serves the
purpose. He was stealing a firearm, while masked, attempting to, which is
a felony in the state of Wisconsin, theft of a firearm, masked, felon in
possession of a firearm, arer just a list, not to mention attempted battery,
things like that, that he was attempting to do that evening to my client
before he was shot. It's highly probative. It explains why Mr. Rosenbaum
possibly didn't bring his own gun. Why he was seeking to get the gun

from my client. That isn't my clients words, my client would testify to that.
But it's an independent witness which the government has listed as a
complaining witness, Richard McGinnis, who says he was going for
Kyle's gun. And that's in interviews to law enforcement, and that's in
interviews to my investigator.
Judge Schroeder: Did you say that when you began, that there is a witness who reported
hearing Mr. Rosenbaum say he just got out of jail that day, to the
accused?
Richards: Yes. He said, he was announcing it to the people at Car Source #2 to

where my client was in the property. And it wasn't jail. He had gotten out
of a mental institution, is the evidence, I thought.
Judge Schroeder: What institution he was in was it was not important, what the defendant,
what the decedent allegedly said is the important thing. He allegedly said
what?
Richards: He said, words to the effect. I just got out of jail today. I'm not afraid to go
back.
Judge Schroeder: And that is in the discovery, I assume?
ADA Binger: I don't remember those words. I know he had gotten out of I think it was a
commitment that day, not jail. But I don't recall seeing those words.
Judge Schroeder: Go ahead. I interrupted you.
Richards: Your Honor, that's the argument. He said it, it's in the discovery which I
was provided by the State. It's reported by numerous individuals. And you

know, there's that incident, there's where he's yelling to people “just shoot
me N-word.” He was not a demonstrator. He was somebody who came
to Kenosha, whether he lived here or not, he came to the downtown area
to wreak havoc on oure city. And our position is he ended up attacking
our client because our client was alone. And our client ran from him as
far as he could. And in the drone footage, you see him run up against a
wall of cars. He stopped at that location. And he can't go any further on
the other side of the cars, fFrom the drone footage, you see the
demonstrators bashing in the car windows and he didn't want to run
through that. He turns around, he addresses Mr. Rosebaum, after Mr.
Rosenbaum's buddy, Mr. Ziminski's already fired the first shot, within
seconds of Kyle firing.
Judge Schroeder: Mr. Binger?
ADA Binger: Judge, there are a lot of people out there coming on this case that are
happy that Kyle Rittenhouse killed a pedophile. And that's the danger
here. We don't want the jury to make a determination that somehow this
was justified because it got one child molester off the streets. That is not
what was going on. I want to clarify that Kyle Rittenhouse knew none of
this, knew none of this, at the time of this incident. I had no idea that
Joseph Rosenbaum had been ever been convicted as a felon, had no
idea he was a sex offender, or anything like that. So this doesn't go to
Kyle Rittenhouse’s state of mind and that's important for self-defense.
This is not subjective issue, this is not a reasonable issue. It does not go
to self-defense at all because there's no evidence Kyle Rittenhouse knew
anything about Joseph Rosenbaum’s history that night. They'd never
crossed paths before that night. They never met.

Judge Schroeder: And I agree with you on all of what those lessons are making, I guess
what I’m struggling with. And as you recall, I started by saying that I was,
had extreme bias against the defense position. But I'm struggling now a
little bit because I'm hearing about this statement allegedly made by Mr.
Rosenbaum about having just gotten out that day and not afraid to go
back. If that is in fact, testimony that’s going to be offered at the trial, it
does put a different light on it. Not about whether he's, I would be
surprised if I would admit evidence that he was a sex offender, or that he
had the number of times he had gone to prison, or the revocations.
However, if indeed there is evidence produced that he made the
statement about just having gotten out that day, that certainly does put a
little bit of a different light on it. So you don't have to convince me that
about the not what was in the mind of the accused, other than the
statement allegedly made that he had just gotten out that day. And so
why don’t you on that point.
ADA Binger: Sure, your Honor. With regard to the motive that Joseph Rosenbaum had
that evening, when he confronted the defendant, because that's where
this really goes to. The defense wants to argue that his motivation in
confronting the defendant was, among many other things, which
counsel’s just detailed, a desire to obtain the defendant’s gun, because
Mr. Rosenbaum couldn't get the gun any legal way. That is really what
this is. He's a felon, so he can't go to Dudham’s [?] or Gander Mountain
and buy a gun, he's got to steal. That's the only reason why this fact of
his felony conviction could possibly come in at trial, is to show that. So
how plausible is that motive? First of all, we have no evidence that
Joseph Rosenbaum wanted a gun that night, none whatsoever. No one is
going to testify that he ever tried to get a gun since his last felony
conviction, that he ever said he wanted the gun that night, that he ever
said anything about wanting to get armed that night. There is nothing in

this record, as to him saying anything about his motivations with regard to
a gun. Second of all, counsel’s acknowledged everybody had guns that
night. In fact, earlier in this hearing counsel referenced a racist statement
that Mr. Rosenbaum said, that is on video, everybody's seen it, other
than the court. And it's clear Mr. Rosenbaum is walking up to individuals
that are similarly armed and Mr. Rittenhouse that are openly carrying AR-
15 style assault rifles slung around their shoulders. He gets in their face.
And he is challenging that. This happens on the videos. Now does Mr.
Rosenbaum at any point reach for anyone's gun in that situation? No.
Does he try and take it away from anyone? Does he say let me have that
gun. Does he say anything about a gun? No. So I posit, your Honor, that
if Mr. Rosenbaum showed up randomly in Kenosha that night, after
having been released and decided this is the night of all nights I need to
go get myself a gun because I can't buy it at the store. If you really want
to steal it, he had the entire evening to steal it from countless people. But
he wasn't chasing after Mr. Rittenhouse because he wanted to steal Mr.
Rittenhouse’s gun. Counsel’s already detailed numerous allegations or
parts of the story that the defense will try and introduce evidence on that
suggests that there were other reasons why Mr. Rosenbaum may or may
not been chasing Mr. Rittenhouse. And by the way, I don't concede the
narrative that counsel laid out about the facts here because I think there's
more to the story, which we'll get at at trial. But at any rate, if you listen to
counsel’s argument, the allegation is that Mr. Rosenbaum was starting
fires he was trying to destroy property. The defendant was grabbing a fire
extinguisher trying to stop Mr. Rosenbaum, they had multiple
interactions, at least one at the Car Source on 59th. And then maybe
later on as they're traveling down Sheraton towards the 63rd street Car
Source. At any rate, those are all potential explanations why Mr.
Rosenbaum may have had a motive to do what he did that night. And
they are far more relevant in time, plausible, and consistent with the

evidence than this obscure notion, this implausible and irrational notion,
this unreasonable notion that Mr. Rosenbaum decided this was the night
that I need to go get myself a gun illegally on the street and that's the
person I'm going to take it from. I mean, Mr. Rosenbaum, to say that the
best way for him to go get a gun that night is to approach an openly
armed individual carrying an assault rifle slung around his shoulder and
take it from him by force. It strains credibility, your Honor. Now, in their
motion the defense has suggested that there's some evidence Mr.
Rosenbaum was reaching for Mr. Rittenhouse’s gun. Now, they didn't
mention that in this hearing, but it's in their motion. Well, let's talk about
the circumstances of that interaction. Yes, it is on video that at some
point, Mr. Rosenbaum is running through the 63rd street Car Source
chasing after Mr. Rittenhouse, he throws a plastic bag, it's not a metallic
bag, it's a plastic bag, towards Mr. Rittenhouse, which lands harmlessly
10 feet behind Mr. Rittenhouse.
Judge Schroeder: I've read that have read that over and over again about the plastic bag
being thrown somebody. Now I'm, when I if I throw a plastic bag at you
it's I guarantee it's not going to hit you. And that would be true if you're
standing two feet ahead of me. So I guess I'm interested in what the
motion, what the images show about the course of the plastic bag. I
mean, did it just project a foot and then drop to the ground? Or did it act
like a missile in the direction of the accused?
ADA Binger: There was something inside the plastice bag.
Judge Schroeder: There was something inside, okay.

ADA Binger: We have never been able to determine exactly what it was because it
was not recovered in evidence. This was a scene where obviously
because of all the chaos and situation--
Judge Schroeder: The point is that it's shown on video—
ADA Binger: It flies into—
Judge Schroeder: It’s not just a plastic bag, which is what the complaint sayso it's a plastic
bag.
ADA Binger: It flies into the air it lands about 10 feet behind the defendant, the
defendant is running away. I don't think anyone can reasonably argue
that it was a risk to cause bodily harm at any level to the defendant. I
suspect Mr. Rosenbaum threw it out of frustration or anger. But it's, but
it's not a reasonable threat to the defendant’s safety.
Judge Schroeder: My question has been answered.
ADA Binger: Okay. So then what happens is these individuals run between some
parked cars. And there's an allegation in the defense motion that Mr.
Rosenbaum is reaching towards the defendant’s gun, may have come
into contact with the gun, although there's no physical evidence to
support that. But at any rate, why is Mr. Rosenbaum allegedly doing that?
We don't know. We don't have any statements from him. We have
speculation from witnesses, we can speculate by watching the video. But
that is all that is, pure speculation. Now I submit that in that circumstance,
the most reasonable explanation why Mr. Rosenbaum may have been
doing that he's the same thing any of us would do if someone pulled a
gun on us, is probably try and defend ourselves by pushing the gun away

or knocking it away or anything like that. But the notion that in that
moment, he thought to himself, I'm a felon, I can't go to the store and buy
a gun. So I'm going to take it away from this random individual on the
street. It is utterly preposterous, your Honor. So I don't think there's any
plausibility here. I don't think there's any evidence as to the Sullivan
factors of motive, intent, knowledge, anything along those lines here,
because we simply don't know. And Mr. Rosenbaum, obviously, is not in
a position to answer any of these questions because he's deceased. So
we're talking about the motives of someone who can't defend
themselves, can't respond to any of this, and that is completely improper.
Richards: Your Honor, just briefly in response to some of the more interesting
points Mr. Binger made. One, the evidence is timely. It's part of what
happened that evening. Two, Mr. Binger talks about there were other
incidences where he was with individuals going at them who are armed
AR-15s. The very distinctive thing between those incidents at the gas
station on 60th and Sheridan Road, and the situation between my client
and Mr. Rosenbaum are my client was alone, it was not well lit, the gas
station where Mr. Rosenbaum is going nuts yelling “shoot me N-word,
shoot me N-word,” repeatedly, he has to be held back from those
individuals with guns. And there are numerous individuals. It's no
individual standing alone, he's going at them. The threat regarding I just
got out of jail and I’m not afraid to go back was earlier in the evening at
Car Source #2. The bag incident he can, the state can talk about it not
being or meaning anything. It was a metallic bag you can clearly see it fly
through the air, lit up from the lights that were in that area. And the client
will testify that he had seen Mr. Rosenbaum, this is on video right in front
of Car Source #2, walking down the road with a huge chain that had been
taken of a trailer that Mr. Rosenbaum and other individuals have
threatened. So he knows he has something metallic. And he talks about

Mr. Rosenbaum defending himself and it being rational. Your Honor, it's
not rational to chase somebody unarmed with a firearm. But he chose to
do that. And he lives or dies with the consequences. In this case, he died
with the consequences, trying to take a firearm from an armed individual.
And we can say, the state can say it's speculation. And I can say it's not
speculation, he wanted a firearm. That's why he was masked. And that's
why he attacks someone who was by themselves, who was on the other
side.
Judge Schroeder: Well, I certainly you're welcome to pursue the evidence and, and attempt
to prove that the decedant was attempting to take the gun from the
accused. But I think that, that he was, that there are a universe of
motivations, that Mr. Rosenbaum could have could have had and to invite
jury to speculate that it was because he was couldn't legally acquire one,
I that's too much for me. So I'm gonna, I'm gonna grant the, I guess it
comes in here as a request on your part to admit that evidence and I'm
going to deny that request. Notice of Intent to enter—oh, this is the
testimony of John R. Black. By the way, the clerk told me that there were
some materials received today about expert witnesses that I have not
seen, they were not filed until either this morning or last night. Yesterday
afternoon, and I haven't seen them and hope they're not something that
you expected me to talk about today, because I have not even seen
them. But I do have the discussion regarding John Black. And I will tell
you before I hear what you have to say--
Richards: Before we go any further, can we just take like five minute break.
Judge Schroeder: Your wish is my command. [General laughter.] All right. Let's start again
at 25 after.

Richards: Thank you.
[BREAK]
Judge Schroeder: Alright, apologize, we're back. And I think the last thing was, yeah, this
the State's witness list. And I have to say when I saw it, it did bring to
mind the very case that the defense cited, State v. Arby [?]. When these
discovery first came in, and then I'm old enough that I remember when
they changed the law. And the prosecutor made a heavy list on the
accused of every name in the community or something. And Supreme
Court says you can't do that. So I don't want to take too much time, and
have you narrow down this 175 witness list.
ADA Kraus: Judge, we were on the you were on the motion with Mr. Black.
Judge Schroeder: We were but now that I'm talking about this, we skipped a couple extra.
We did. And we'll come back on Mr. Black, I must have turned my page
when the break. Yeah, but let's talk about the 175 witnesses. Has that
been slimmed down?
ADA Kraus: Yes. So Attorney Binger did send the numbers of individuals that we are
more likely to call.
Judge Schroeder: Okay.
ADA Kraus: That, of course, may change as we get closer to trial. But we have
narrowed it down in private, of course, we do want to list, be more
expansive on our list, just in case, something comes up that was
unanticipated in that way, it's there's not a dispute at trial that a witness
was not listed, but we have privately narrowed it.

Judge Schroeder: Satisfactorily?
Richards: On one aspect.
Judge Schroeder: [Laughs.]
Richards: They put it down to I believe, if I counted correctly, 27 witnesses. Okay,

and I can live with that. But they have not provided addresses.
Judge Schroeder: Well, wait a minute now, I noticed that you, they claim that they would
provide them to you, so they didn't get posted on the internet? And did
you say okay, we'll take that or did you want--
Richards: I was told by Mr. Binger, they’re in discovery find them. And--
Judge Schroeder: Is that true?
ADA Binger: I emailed Mr. Richards yesterday, I gave him a narrowed down list. I said
the addresses that we would be providing to him would require us to go
through the same 400-plus pages of police reports.
Judge Schroeder: What is the statute say?
ADA Binger: The statute does require us to provide addresses in a written filing with
so—
Judge Schroeder: So I can expect that'll be done by Monday at five.
ADA Binger: Would you like us to file with the court?

Judge Schroeder: I understand your desire to get from being filed. And I think that see you,
if the defense subjects will have a discussion about it. But no, you can do
what you did, but you need to send him the addresses. By five o’clock.
On Monday.
Richards: My biggest concern is updating. This has been 13 months ago, people
move, things like that. And obviously they're gonna have the most up to
date addresses, to get people under subpoena, things like that.
Judge Schroeder: Okay. So now we were talking about expert witnesses. Now, let me tell
you, let me just say, that my, my last acquaintanceship with this issue,
was that, and this is a little bit different, some of the issues that are
discussed. But ultimately, ultimately what this witness is being called for
Mr. Black, Dr. Black, what is it?
Richards: Doctor.
Judge Schroeder: Dr. Black, but Dr. Black with this defense proposes to bring Dr. Black in is
ultimately to show that the defendant’s conduct conform to the law of self-
defense.
Richards: It's more what I would characterize as use-of-force. And one of the things
that we've been addressing it was said earlier in this, is how he handled
his firearm. Whether what he did with his firearm was reasonable. His
reaction times to being attacked by Mr. Rosenbaum. He also has the
ability through his software to break down every incident frame by frame,
which allows him to put very accurate timelines on each of the shooting
aspects. One of the things that I'm sure the state—

Judge Schroeder: I'm gonna interrupt you right now. Because I think we need to have a full-
fledged Daubert hearing on this. And I need to see the report that would
be on page one, is I have not seen the report. What is it 28 pages? I
haven't seen it. And I don't know what it says. And I'll have a better
understanding of what you propose to prove. Certainly the law is that
when it comes to use of force? No. When it comes to use of force, I'm the
expert. Not because I'm so bright, but because the Supreme Court says
I'm the expert, and I'm the only one who's going to be defining what is
reasonable under the law, what constitutes self-defense. So I won't, I'm
not going to have competition in the courtroom. So we're not going to
have any evidence on that subject. On the other hand, just as in sexual
assault cases, we get, state brings in witnesses to prove a variety of
things from people who are experienced in the field. So this use-of-force
may have kernels that would be admissible. And I won't know that until I
see the report and have the hearing. So before we leave, we'll have a
Daubert hearing set. So do we need to take this up other than that today?
ADA Binger: Is the court intending to hold that hearing prior to trial?
Judge Schroeder: I do. And then, the materials that were filed yesterday afternoon, do they
pertain to expert witnesses also?
ADA Kraus: They are notices of experts. Three of which are already on the witness
list. And they [the defense] already have the reports.
Judge Schroeder: Okay. Okay.
Richards: We have to reports.
Judge Schroeder: Is there going to be an issue with respect to them?

Richards: As to them, no, the third one is I believe a self-defense use-of-force
expert.
Judge Schroeder: I didn't know the last thing you said.
Richards. Self-defense use-of-force expert, much like Dr. Black.
Judge Schroeder: The state's got one too?
Richards: Yes.
Judge Schroeder: Okay. All right. Well, we'll have a common Daubert hearing for them.
ADA Binger: Your Honor, we don't plan on calling ours, obviously, if the defense, if the
court grants our motion to exclude Dr. Black’s testimony then we won't
need our witness either, but we have to plan for the contingency court
rules otherwise.
Judge Schroeder: Okay, next. Motion to compel discovery of donation lists, and is this still
an issue?
Richards: It is.
Judge Schroeder: Okay. Now, the defense statement by Mr. Richards that I read was that
he doesn't have any access to any information from Free Kyle, USA. And
are you disputing that?
ADA Binger: It's run by defendant’s mother, so yes, I am.

Judge Schroeder: The defendant is not a party to this action?
ADA Binger: Well, defendant’s mother is someone who the defendant can obtain
information from quite easily.
Judge Schroeder: Legally?
ADA Binger: Your Honor, this this is within, this is not a third party. This is not an
account to the other—
Judge Schroeder: It is a third party.
ADA Binger: It's his mother, your Honor, I submit that it's a reasonable request of the
defendant. He's the beneficiary of all of that fundraising. He is, he's the
person, it is called Free Kyle, USA, he’s Kyle. So this is not an
independent entity. This is something that they have the ability to access.
And, your Honor, honestly, if the shoe were on the other foot, and there
was some sort of fundraising for the state in this prosecution, and we
didn't turn that information over, it would be per se reversible error.
Judge Schroeder: So I'm telling you by what authority can I order a citizen to provide you,
that you can subpoena by the way, to provide material to the defense
attorney, or to the defendant, that is her proprietary information, and
command them to cough it up? The law is they can have I can make
them produce what they have. I cannot compel them to produce
something, nor do I know of any authority that I can make them make her
give it to them. Is the law different from what I've stated?
ADA Binger: Your Honor, if the state supplies you with a subpoena, will you subpoena
them?

Judge Schroeder: I'm not going to give an advisory statement. I'm going to tell you that I do
not think I have the legal authority to compel the defendant to procure
information from somebody else who owns it and provide it to you, or to
the court even. I don't think I have that authority. Now whether it can be
subpoenaed and you asked me to sign the subpoena? Can't you do that?
The defense can't do that. They need my approval. You can subpoena on
your own with signature,
ADA Binger: The answer may be made in a different jurisdiction. So we may need this.
Judge Schroeder: Well, okay. So that's, well, maybe we should just talk about it a little bit,
then, if this is something that's going to come up? No, I'm not going to
talk about a little bit. I'll save that for another day if we need to. And you
also ask for the Fight Back Foundation. And you want a list of their
donors. [To the defense:] You have that?
Richards: No.
ADA Binger: Your Honor—
Judge Schroeder: Same issue.
Richards: And fight back is represented, it’s run by Lin Wood and a board. We
separated from them in late December 2020, earlier January 2021. I tried
to get the exact date, but I received two different answers, so I don't want
to give a specific date. However, there is no contact with that
organization anymore. I know that at one point, some of the civil lawyers
involved in this sought to seek that information, because they believe
there hasn't been a full accounting for the funds that were given. There is

no communication or cooperation, I believe Fight Back is in Texas,
incorporated in Texas. I don't have it. I've never had it. I've never
requested it.
Judge Schroeder: Same issue.
ADA Binger: Understood.
Judge Schroeder: Okay. So now I'm going to pass on that. Well, I'm just going to deny the
motion at this point. Second state [AFB: actually defense] second motion
to omit other acts evidence, reporting about an incident that is claimed to
have occurred on the 10th of August, involving an incident outside of
CVS.
ADA Binger: Your honor, there’s no dispute the incident occurred. The defense
motion has acknowledged that the defendant was there, that it's his
words, that he essentially made a statement that he wished he had the
same rifle that was used in this incident to kill two people, So he could
shoot individuals coming out of the CVS pharmacy. This is 15 days prior
to the August 25th incident. So it's very close in time. And it's, again,
goes to the issues we talked about earlier. This is a, this is a continuing
motivation here. The defendant is irresponsibly using his firearm, or
threatening to use it, I should say. Talking about using it to shoot
individuals who he believes are ostensibly committing a shoplifting
offense from CVS in Chicago, he has no ties to the business, he has no
role to play there whatsoever. But yet he wants to launch himself into the
middle of it with the same gun. And it's similar to what we have on August
25, your Honor, where the defendant is in our community, with that same
gun, and using it in a manner that I think is legally unjustified. So this
goes exactly the state of mind, in terms of his understanding of use of

force, his understanding of self-defense, self-defense of property, by the
use of deadly force is not allowed. And that's very clear. So this is a
completely unjustified use of a weapon. It's the exact same weapon that
we're talking about here. So for all those reasons, your Honor, I believe
that this is admissible other acts evidence, I think it goes to his state of
mind, I think that's the crucial issue in this case.
Judge Schroeder: Thank you. Mr. Chirafisi.
Chirafisi: Mr. Binger describes it as an unjustified use of a weapon and a threat. I

would submit to you neither one of those things are actually true. I don't
know if you've seen the video or not. However—
Judge Schroeder: I have.
Chirafisi: Okay. So it is a video of him sitting in a vehicle. having a conversation

with I believe Dominic Black. The state in their other acts motion says
three things that I think you need to think about, which I believe to be are
untrue, which is the state says we would like these this admitted for the
following reason. The defendant’s understanding of the proper use of his
AR and of deadly force is crucial to this case. This video demonstrates
that the defendant was eager to use deadly force in an unlawful situation.
The video demonstrates the defendant fervently sought to insert himself
as an armed vigilante into situations that had nothing to do with him.
Finally, and perhaps most importantly, the video proves that the
defendant was ready and willing to use deadly force in situations where it
was completely unjustified. That video doesn't show any of that. He didn't
have a weapon. He was sitting in a vehicle, having a conversation with
someone else. He never made contact with those people at CVS. If you
watch the video, they don't know, presumably, they don't know he's even

there. He doesn't even step from the vehicle to verbally confront them in
any way. He doesn't do anything, he doesn't open his window, he doesn't
honk the horn. He does nothing, but passively sit and watch what's
happening. So to say this video demonstrates his willingness to insert
himself into these situations, that's untrue. He didn't insert himself. He
could. But he didn’t. If you look at the actual situation, and you compare it
to—and I want you to know, Judge, there are situations that I think this
would be relevant. Okay. It would be admissible. If you had fired a round
at someone who was simply damaging property. I think we might be in a
different spot. That didn't happen. Joseph Rosenbaum, Gabe
Grosskreutz, and Anthony Huber. were not, as far as I can tell, were not
moving anything that night. It is indisputable that Rosenbaum was a
rioter, not debatable. It is not debatable that Gabe Grosskreutz was
armed with a Glock pistol in his waistband. That is not debatable, either.
Does the fact that he made that statement 14 days prior and took no
action, didn't have a gun, didn't get out of the car, didn't do anything.
Does that make it more probable that this wasn't self-defense? I would
submit to you the answer is no. Because as I've said to you before, this
wasn't him taking potshots at looters. Mr. Rosenbaum was chasing him,
that started the whole thing. Right? So when you're looking at it, this is
Sullivan to a T. Words. The reason in Sullivan it wasn't admissible is in
one instance, it was words and the other instance it was violence. In this
instance, it's words on August 10, and on August 25 it is not debatable
that there's violence. As I said, does it go any further to make a
determination as to whether or not that wasn’t self-defense, if he was
claiming something else? If he was just saying, my gun accidentally fired,
or I was shooting at a looter, I would submit to you that I I'd be in a
different spot than I am right now. But I think based on the information
that you have, based on when you're doing the Sullivan analysis, and
actually the fact that we're talking about words versus action, and it is a

self-defense claim, as opposed to any other type of defense to the
charge. When you compare those things together, it is not relevant for
purposes of making a determination as to the ultimate issue in the case
and that is the reasonableness of his actions on August 25. You can do
the analysis, as you've already done, on the probative value and
substantial prejudice as that as that would occur. I certainly would argue,
Judge, that words don't equal action and just to admit it to say, Look, he's
a guy that would shoot at someone, that's propensity, evidence. That's
not what happened here. Frankly. It's not close to what happened here.
And for those reasons, I would ask the court to deny the motion.
ADA Binger: I want to respond very briefly, your Honor, because there is an actual
action he takes at the CVS incident and that is he does call 911 using his
personal cell phone while he's watching this incident, he doesn't know
what's going on. He doesn't know what's what these people are doing.
He's, he's sitting in a car across the street. He doesn't talk to anybody, no
one asks him to call 911. He thinks he sees a crime, his response in part
is to call 911. His response is also to say, I wish I had my gun so I could
shoot these people. Now, we're lucky he didn't have his gun. But the
standard for other acts isn't that we have to present to the court an exact
scenario that matches the exact crime that defendant’s being charged
with as the other app. That is not the bar here. Nor is the fact that these
are simply words a bar to admission. For example, if the defendant had
said, I'm going to kill Joseph Rosenbaum 15, days before August 25, and
then kills Joseph Rosenbaum, that would be admissible. So the fact that
it's words the fact that it's not action, does not bar the admissibility of this.
The key issue in this case, is the defendant state of mind. What was his
intent? On the night of August 25? What did he intend with that gun?
How did he interpret the threats that he thought were coming towards
him? How did he react to them? Were they reasonable? How do we

determine what's reasonable? We look at the incident, we look at the
defendants state of mind, we look at his motivations, his intent, his
knowledge, all of those things. We don't have a lot of insight into that.
The defendant has not given a statement. We don't have a lot of history
here one way or the other. I have sought in my prior other acts motion,
and the court has ruled on it, to give some context to the jury as to the
defense state of mind. This is also part of that. And I acknowledged the
court's ruling on my prior other acts motion, the court has denied that,
made some rulings on that. This is unquestionably a far more powerful
other ct, it is a more relevant one, it goes more strongly than even the
prior motion to the Sullivan factors to the relevance. And in terms of
undue prejudice here that is absolutely not even a factor here, because
we're talking about the same gun. We're talking about the defendant’s
own worth, we're talking about close in time. So it's not a question of
undue prejudice here. This is giving the jury an honest insight into the
defendant’s state of mind to determine what his subjective beliefs were,
to determine what a reasonable person would do. This is information the
jury should have when making those determinations. Now the court can
make a limiting instruction on it, the jury can give it the weight that they
feel that it deserves. But they deserve to hear the truth about what the
defendant was thinking and what his intent was with this weapon. But
let's put this in a larger context, your Honor, because this was a weapon
that he purchased a few months prior, I believe it was in May of 2021. My
understanding from the evidence in this case is that he had gone up
somewhere Wisconsin fired that weapon one time ever, prior to August
25. So he's here on August 10. He's wishing he had the gun. He doesn't
have the gun. It's not in his possession because he can't take it to Illinois,
and have a firearm, or firearms owner ID card. He can't get one, because
he's not 18. He's storing the gun at a friend's house here in Kenosha.
And he's limited in terms of access to it. He's shot it one time, he wishes

he had it on August 10, because he would have used it if he had at that
time to stop what he thought was a crime in progress. And then on
August 25, we know what he did with it. So his relationship with that gun,
his desire to use that gun, his inability to access that gun, is all crucial
here in terms of this the context and the state of mind here. So when you
put it in that context, it becomes even more relevant evidence. And I think
the jury's entitled to hear it. Thank you.
Judge Schroeder: Once again, I think the evidence is too dissimilar. It becomes propensity
evidence. The effort, it seems to me is being made to show that the
defendant is a violent vigilante and he's willing to employ violence and
he's willing to take matters into his own hands, although this certainly that
the, I think I heard now for the first time that he called 911. So he didn't
take matters into his own hands, he called the proper authorities. That
was not an issue, the date that the incident here in Kenosha occurred,
because he could have called 911 all he wanted, there was general
lawlessness in the community, which was out of control. And so whether
he was motivated towards acting as a vigilante in this case, I don't know.
That's for the jury to decide or whether it be if they get to that if it's
necessary for them to decide it. But the acts are totally dissimilar
because in the one instance, he's observing what he believes to be a
crime being committed, he makes some threatening statements for sure,
statements, a nd then the one action that he takes is one that is a proper
action. The incident Kenosha, from what I've heard, and I haven't heard
what the defense claimed here contradicted is that the incident I don't
want to see started but the last moments of the shooting, it consisted of
the defendant taking a fire extinguisher to try to assist with extinguishing
some blazes. I know that, you know, there was the night that the furniture
store on 60th Street and the Department of Corrections building, the
firefighters never showed up. I mean, you could call 911 you wanted,

there was no law and order. And I'm certainly not condemning the local
authorities here, the police and the fire and the sheriff's acted very
bravely, and the people who assisted them, there was simply inadequate
personnel to deal with the emergency here. And so whatever the
defendant’s conduct was, has to be examined in that light. And whether
he assumed the role he ought not have or whether he did, that's for the
jury to sift through, an incident that occurred in a peaceful setting where
he saw something he believed to be criminal taking place, and made
some failure threatening remarks, threatening is probably the wrong
word. There's certainly statements that could be illustrative of his will and
wishes at that time for sure. And then ultimately took the correct action
versus an incident which is ongoing here in Kenosha in lawless setting in
which he is also engaged in conduct, which in and of itself doesn't appear
to have been unlawful for him to be trying to extinguish a blaze. And then
what followed after that, and as I say, I haven't heard a contrary side of it.
ADA Binger: I'll give you one, your Honor.
Judge Schroeder: Go ahead.
ADA Binger: Yeah, because that's, maybe I haven't made this clear in my motion. But
in both of these situations, the defendant is taking it upon himself, taking
the law in his own hands, under circumstances where he doesn't know
the full facts, he's making assumptions. On August 10, he's making an
assumption seeing people coming out of CVS and he thinks they're
robbers. He's talking about taking the law into his own hands by firing off
rounds with his AR-15. This is before he calls 911. So his first instinct is,
I'm going to stop this with my gun by killing these people, which is
completely unlawful. He's not allowed to shoot and kill, even police would

not be allowed to shoot and kill people coming out of CVS pharmacy,
even if they just committed a shoplifting.
Judge Schroeder: Tell me exactly what he said, because I don't remember the statement.
ADA Binger: He said, bro, I wish I had my AR, I'd start shooting rounds at them.
Judge Schroeder: Okay, okay. Okay, well,
ADA Binger: He’s clearly willing to shoot at these individuals with an imperfect
understanding and assumption. He has no actual knowledge of what's
going on. He makes an assumption. Now, on the night of August 25, I
believe the evidence at this trial will be slightly different than what you've
heard. And I do want to contradict the rendition that has been presented
to you by the defense. The defendant, that night was extensively trying to
protect a Car Source location at 59th and Sheraton Road from people
damaging that property. He is among a group of people who have
stationed themselves with open firearms, most of them carrying these
type of AR-15 rifles openly slung around their shoulders. Many of them
are on the ground, some are up on the road. This is sending a message
to anyone, stay away from this property, we are armed, you don't want to
mess with us. And they essentially are successful in that assignment.
That property is undamaged that evening. There comes a time though,
when the police use armored personnel carriers, Bear Cats, and other
armored vehicles to push all of the citizens that are out on the streets
south of that location. The police establish a barrier at 60th and Sheraton
and essentially everyone has moved south of that and can't get back to
59th. So this Car Source location, we've now successfully protected and
everyone's gone. So there's no one to threaten this building anymore.
However, prior to the police establishing that cordon line at 60th, the

defendant and another armed individual part of this group, go down to
63rd and Sheraton to that other Car Source location because they here,
whoever was supposed to guard that location is no longer there anymore.
And we need to go down there and check it out, maybe protected. So
they go down there. And at some point, they try and come back, only
they can't get back. Because the cops have blocked off 60th and
Sheraton. And now the defendant is trapped on the other side of that line.
He's trapped with this other individual, he can't get back to the rest of this
group. His job that night is to protect 59th and Sheraton, he can't do that
job anymore. So what does he do at that point? Does he go home? Does
he say okay, it's 11:30 at night, and my job is done. I'm gonna get out of
here. No. He takes it upon himself to run around in a hostile crowd, a
lawless situation, a chaotic situation with people who have guns, people
who have varying motivations. He's openly carrying an AR 15 or Smith
and Wesson M&P 15, assault rifle type weapon. He's running around.
And he's trying to stop people from doing things because he thinks what
they're doing is illegal. And maybe it is, maybe it isn't. But at some point
during this interaction, he gets into a confrontation with Mr. Rosenbaum
and is essentially trying to stop Mr. Rosenbaum from doing what Mr.
Rosenbaum is doing. Now, that's not Mr. Rittenhouse’s his job. He's 17.
He's not a law enforcement officer, not deputized. He's got no training.
But he takes it upon himself to take the law into his own hands to
confront Mr. Rosenbaum. Because he thinks Mr. Rosenbaum is doing
things he shouldn't do. And this fire extinguisher that he's carrying. He's
carrying along pursuing Mr. Rosenbaum with the intent of stopping Mr.
Roosevelt from doing whatever he was going to do. And that's what leads
to the confrontation. The similarity between August 10 and August 25, is
in both situations the defendant took the law into his own hands or talked
about taking the law into his own hands with the same gun to stop things
that he thought were going on that he didn't think should be going on.

And he appointed himself a vigilante taking the law into his own hands in
those circumstances. They are identical in that respect. And when we talk
about the defendant’s motive and intent that night, this is crucial to the
case, because that exactly, is exactly what is going on. And the defense
will have testimony on this, they will say Mr. Rittenhouse was trying to
stop these people he was concerned about looters who's concerned
about fires, he's going to put them out with a fire extinguisher. He's going
to stop these bad people from doing bad things or so he says. Except
that that's not his job. Nobody asked him to do that. He's got no legal
authority to do that, his job was done. 59th and Sheraton was no longer
in any danger. Go home. But he didn't. He was isolated. He was cut off
from the rest of his group. He was running around with a assault rifle type
weapon, a very threatening aggressive weapon, one that deters people.
It is, it is designed to deter people, it is designed to threaten others, to let
them know Don't mess with me. Look what I've got. Other people that
night are carrying around semiautomatic pistols, Glocks, which you can
conceal and hide. Other people can't see it. It's not designed to tell
people go away. It's not designed to tell people leave me alone, you carry
around an assault rifle like this, you're sending that message to other
people. That's what the defendant was doing, running around and all this,
taking on this responsibility, which he had no lawful authority to do, and
making assumptions about what Mr. Rosenbaum was going to do next,
or what he shouldn't have been doing. And then confronting Mr.
Rosenbaum, about that. That is the context here, your Honor, and the
August 10 incident is exactly the same, in that respect, exactly the same
in taking the law into his own hands with the same gun, making
assumptions about what are the people doing and taking responsibility to
try and stop people when you're not praying, you know, not a law
enforcement, you're a teenager. It's not his job. So it's exactly the same
fact scenario, your Honor. And I apologize for not making this clear in my

emotion. But I think when you look at it through that perspective, Your
Honor, you can see why this goes exactly to motive and intent. Now you
say it's proclivity evidence, it's propensity evidence. It shows a motive
and intent to be a vigilante that night and take the law in his own hands
and use deadly force to stop people for committing crimes that no one is
allowed to use deadly force to stop. Police officers are not allowed to
shoot shoplifters. Police officers are not allowed to shoot people who are
about to set a vehicle in a used car lot on fire. You don't get to use deadly
force in those circumstances. You don't get to threaten deadly force in
those circumstances. So what Mr. Rittenhouse was doing was well
beyond what even the police could have done that night. He took it upon
himself. And that is unlawful, it is unjustified. That's what we're talking
about here. So that's the exact similarity between those. And that's why
the state's asking that the court allow the jury to hear this because it goes
to a state of mind. It shows that he is the type of person who will act to
take the law into his own hands, that defense will give their side of the
story, they will portray the defendant as this altruistic young kid who
came here to try and help the jury can make the decision. But let's give
them the full picture here. And they can make a decision with the court's
limiting instruction on this other acts issue. The jury can make a decision
here as to what the intent and motive of the defendant was, what his
subjective beliefs were and whether or not they were reasonable. But this
information is crucial to the jury being able to make that decision. And
they deserve to hear along with everything else that's going to be
submitted by the defense that's going to portray the defendant in a rosy,
innocent, altruistic light. Let's have a full picture. But that's all I'm asking.
Chirafisi: So, I was unaware that Mr. Rittenhouse actually called the authorities on
the August 10 date. And I do think that further supports the idea that that
evidence would not be admissible. And the reason I say that is the state's

position to you, in their written motion, now becomes further from reality.
When they say the video demonstrates he was eager to use deadly
force. Not only did he not use it, but as you said he called the proper
authorities he did what anybody in this room would say you should do if
you believe something unlawful is happening, to a T. He didn't threaten
anyone because no one who was apparently moving or whatever they
were doing was aware of him. The real difficulty I'm having and accepting
Mr. Binger’s statements are, if we're going to be honest about this, iIt is
not debatable that Kyle Rittenhouse is running to put out a fire. If you're
telling me that he is now inserting himself into an unlawful position, we
encourage people, I would argue that we would encourage people to put
out fires.
Judge Schroeder: I'm not clear, listening to Mr. Binger, whether he was just disagreeing with
the statement that the accused was moving towards putting the fire out or
whether he just said he should have gone home. [To ADA Binger:] Are
you claiming that he was not attempting to use the extinguisher to put out
the fire or intending to do so?
ADA Binger: Yes. I am saying is that in the circumstances before the ultimate
confrontation between the defendant and Mr. Rosenbaum, that Mr.
Rittenhouse was pursuing Mr. Rosenbaum, Mr. Rosenbaum had not in
fact done anything. They hadn't even gotten to the 63rd and Sheraton
Foad car source location. Mr. Rittenhouse had a fire extinguisher. He
was carrying it along pursuing Mr. Rosenbaum. And I believe that he was
assuming--
Judge Schroeder: Wait a minute, wait a minute. Wait a minute. I thought I heard the first
version by the defense was that Mr. Rosenbaum was pursuing the
accused, and that the accused had the fire extinguisher. What is it?

Richards: Your Honor, our client leaves from 60th and Sheridan with a fire
extinguisher. He runs or trots down Sheridan road, passing Mr.
Rosenbaum, this is all on video. There is no interaction between my
client and Mr. Rosenbaum. Then Mr. Rosenbaum gives chase and it's in
the video where Kyle drops the fire extinguisher right as he enters the lot
of Car Source #3 with Mr. Rosenbaum in hot pursuit of my client. There's
nothing on the tape, any tape I've seen, if they have something I haven't
seen. I'd love to see it. Where he has any interaction with Mr. Rosenberg.
And the State says that he was down there earlier with Mr. Baulch. I don't
know when they're talking about what when he left the 59th Street Car
Source and went down. The whole thing is on video. He goes to that
parking lot, which would be the south west corner of 60th and Sheridan.
There's somebody who confronts Kyle and he walks away from them
goes over to the gas station. That's where the call comes in. He's never
down to the 63rd Street Car Source. He never has any interaction with
Mr. Rosenbaum until Mr. Rosenbaum gives chase to Kyle. That's all on
video.
ADA Binger: That that is actually not. And I'll submit that Mr. Richards is right, he
hasn't seen what I'm referring to, although he's got access to it. But on
this particular evening, the FBI had a fixed wing aircraft hovering above
Kenosha. We have the footage from that. Counsel can obtain it from joint
services, I emailed counsel a few weeks ago and let them know about it.
Richards: Yesterday. Yesterday.
ADA Binger: It shows—no, I can pull up the email, Mark, I emailed you several weeks
ago and let you know about it. The video is an infrared video. And what it
shows –

Judge Schroeder: Well, let's get settled when you, video, when you sent it to him.
Richards: I haven't received it yet. We're picking it up after today's hearing.
Judge Schroeder: But I mean, when was, when were you notified that it's available?
ADA Binger: I emailed Mr. Richards on
Wisco: September 3, Your Honor. And this was also emailed to me directly I was
out of the office.
Judge Schroeder: OK. Go ahead.
ADA Binger: What that footage shows, and it's an infrared video because this is
nighttime, so infrared is the best way to capture what's going on. What it
shows is Mr. Rosenbaum running south towards the 63rd street Car
Source location. Behind him pProbably 20 to 30 feet is the defendant. Mr.
Rosenbaum, upon reaching that location immediately runs near a parked
car. Mr. Rittenhouse follows him, runs to the other side of that parked car
and appears to turn and confront Mr. Rosenbaum. I will note that where
Mr. Rittenhouse stops near that parked car is exactly where that fire
extinguisher is later found. Okay, so Mr. Rosenbaum hadn't even gotten
to that car source yet. Hadn’t had the opportunity to do anything, hadn't
done any fires got a property damage did nothing. Mr. Rittenhouse is
following him with the fire extinguisher probably because he thinks Mr.
Rosenbaum’s going to do something. But Mr. Rosenbaum never does.
What happens is when they arrive at the Car Source location, Mr.
Rittenhouse turns and confronts Mr. Rosenbaum from across this parked
car, says something to him. Of course we can't see, it’s a video from an

airplane. So we don't know what happened. But we know immediately
upon that confrontation, Mr. Rosenbaum then runs around behind a
parked car. And the chase starts at that point in the parking lot. But prior
to that Mr. Rosenbaum was running, first, Mr. Rittenhouse was running
after him. And I would note he's running after him with an AR 15 rifle
openly displayed and Mr. Rosenbaum, at no time has a weapon. In this
entire incident. We know this because obviously the defense wanted to
introduce he was trying to get a weapon, so he never had a weapon at
any point. So Mr. Rosenbaum is being chased by an armed individual
who is assuming Mr. Rosenbaum is going to do something wrong and
wants to stop him and does in fact confront Mr. Rosenbaum at that
parking lot. That is the context here. And the FBI video gives us the
context here that we didn't previously have.
Judge Schroeder: Okay. And you said that the Mr. Rosenbaum, then circled the car. And
then the chase began and who's chasing whom?
ADA Binger: Athat point, then Mr. Rosenbaum goes around behind the car starts to
chase Mr. Rittenhouse. They run into the street briefly then cut across the
car source parking lot. It's at that point that Mr. Rosenbaum throws that
plastic bag towards Mr. Rittenhouse. They then run in between some
parked cars and Mr. Rittenhouse shoots and kills Mr. Rosenbaum.
Judge Schroeder: Well, the I still think there are two dissimilar incidents. I think that I don't
think that they're going to be helpful for the jury and deciding whether the
actions of the accused constitute unlawful self-defense. The events are
so totally dissimilar, and it comes down to propensity evidence to show
that he's, he's a violent vigilante, and he's going to act in accordance with
what a violent vigilante will do, and the incidents are so dissimilar, it
seems to me that, but on this one, I think I'm going to withhold a final

decision with a bias towards refusing the receipt of the evidence. And so I
we can talk about this further at the time of the trial when I've heard more
and, and perhaps seen some of the footage that you lawyers have been
talking about. So I have a more complete understanding. But at this point,
if I had to make a decision, and I don't, because this is admissibility, I
would deny this admission of this evidence. There's a motion to dismiss
count six to which the state has not responded. But I saw anyway.
ADA Binger: You're right. I have not. I didn't. The issue has come up. And I have
responded in the Dominick Black case, which is the identical legal issue,
and I filed with the court of brief in that case, but essentially, the law is
clear that there's a blanket prohibition on possession of a firearm by
anyone, anyone under the age of 18. There are exceptions to that. And
those exceptions are very narow, they do not apply to this case. And I
think really what the defense motion is arguing is that somehow it's the
state's burden to disprove that those exceptions apply. I disagree with
that. I think those exceptions are essentially affirmative defenses. If the
defense and the only one we're talking about here is these hunting
statutes, which are 29, Wisconsin statutes section 29.304 and 29.593.
There is no evidence in any way, shape or form, the defendant was in
compliance with those. This is not a situation where a 16-year-old was
out deer hunting with his father, for example, which is what those
exceptions are intended to cover. So there's, like I said, a blanket
prohibition, that a minor may not possess a firearm like this. And that's,
that's really the end of the court’s inquiry, as far as I'm concerned.
Judge Schroeder: [To the defense:] No, I'm not going to take further argument. I want to
read his brief first.
Richards: Can we get a copy of that judge?

Judge Schroeder: Yes. [To the State:] File a copy of that. I also have the Black case. And I
haven't, I don't think, I haven't been called upon to make a decision, I
think was on the calendar, it got bumped to a jury trial or something. So I
believe I've read that brief before. But I, I certainly want to read again,
and I certainly want you to have the opportunity to see it. So I'll take that
one under advisement also. Next issue is well, let me ask you about this.
Are we ready for the November 1 trial date?
ADA Binger: Yes, I believe so.
Richards: I believe so.
Judge Schroeder: Okay, next issue is it would be my inclination to have the voir dire
conducted. I was originally thinking 80 to 100 potential jurors. And I was
talking with another judge the other day and mentioned that and he's, he
seemed alarmed. And I think well, you know, I don't want to shave too
closely. So I maybe we'll bring in more, maybe I'll bring in 150. I'm not
committing to that. But there'll be a large number, larger than could be
accommodated in this room. We obviously need to save some seating in
the room for the families of those whose lives were lost and for the
injured party. And for the family of the accused. And some additional
sitting and then the court personnel and security and the like. So I'm
going to go into I guess to me, we can we say we've sat in here at
maximum, I thought it was 95 or something. Yeah, so 60 maybe we can
get jurors in here. So my inclination would be if there's no objection is to
have the voir dire conducted in the normal way here in the courtroom.
With the numbers over I would probably pick maybe four to six additional
jurors and then have Well, we have about 60 to work with maybe, maybe
we can get as high as 70 or 80. We work with those here in the

courtroom. And then I would have the proceedings televised down to the
jury assembly, which can hold a much larger number and they would be
instructed to watch what was happening here just as they were if they
were in the room and that to make any mental note of any to which they
would raise their hand. And then if they are called upon to replace a juror,
they would be asked, Would you raise your hand? And if so which
questions, as if they had been in the courtroom except that they would
actually be participating over the over the miracles of television? Does
anyone have objection to doing it that way?
ADA Binger: No, your Honor.
Richards: I don't have a problem with it is, would there be a bailiff or somebody
monitoring?
Judge Schroeder: Oh, sure. Yeah, they'll believe there'll be plenty of precautions to make
sure there aren't any problems. But yeah, okay, that that was, I don't
think there's actually a right to have it done all in one room. But I wanted
to clear up with you folks, anyway. The other thing is, I looked at your jury
and your proposal questionnaires, which were very good. There were
certainly some areas that I did not want to embrace. And I will also tell
you that, I suspect, due to my age, and my longevity, longevity, that I
maybe have tried more murder cases than anyone in the state. And I've
never used a jury questionnaire that I can recall before. And if I did, it was
only in a moment of weakness. There are a variety of reasons I'm not
crazy about submitting a jury questionnaire. First off, I will tell you that
when I do the voir dire, and I do have fairly restrictive views about what's
admissible questions. There were some, for example, asking people
about support for political groups or protest groups or whatever, that I, I
would probably consider off limits, in spite of the fact that there, there is

an aspect of that to this case, I would most probably not permit questions
about whether people support a political belief about gun ownership, for
example, or gun possession or, or membership in particular
organizations, unless it's shown to be directly relevant to this case. This
is not a political trial, it's not going to be a political trial. It is, I will certainly
allow reasonable questions that might suggest the witness would be
biased one way or another. And that may at times get into some of these
areas. But as we know, a political vote is inadmissible under all
circumstances. As somebody how you voted in the last election or
something like that, and what you made a donation to a political group, I
think falls pretty much in the same category. But I don't want to, I don't
want to be too blunt about that, because there are aspects to that if that
could be a bit of a legitimate issue. And the other thing, the other another
reason why I don't, I'm not crazy about questionnaires, is they they're
going to forewarn all kinds of people, that they're being considered for
this particular case. And as somebody referred to earlier on, there's
people all over town who are talking about this case, and I have had one
person asked me in the grocery store, the person said, I would like to be
risk the Rittenhouse trial. And I will disclose the identity of that person to
you folks. And of course, that person will not be on the Rittenhouse trial.
But there are other people you can tell that they're just itching to talk
about it and that they talk about it a lot. And I, I also had a conversation
with someone from the Kenosha News, because there have been two
letters published in the paper, which I thought was very irresponsible, that
dealt with what the outcome of the case should be, by people who have
not heard any evidence. And when people in the past have asked me
about a case, and it happens rarely, I have always told them, when they
tell me what, how the case is going to end up, or how the case should
end up. I always tell them, you've got me at a disadvantage, because I
haven't heard the evidence yet. And I'm in a way, well, I'm, yeah, I'm

insulting them. And I'm hoping that they understand why they're being
insulted, because they don't know. And the letter writers that got
published, had no business writing those letters. But shame on the media
that publishes that, I hope that's not going to happen again. But there's
been some grossly irresponsible misreporting on a few occasions about
what happened in this case. And the case has been politicized, as we all
know. The questionnaire is only going to get those people who get the
questionnaires talking about it. They're told, you know, don't talk about it.
But we, we are always cautious about that. And when I conduct these
trials, in some cases that you'd recognize the names, I usually make,
have a little discussion about the Bill of Rights and about, which includes
the right of the media. And the price we pay for having a free media,
which is a lot of inaccurate reporting, not because anybody's particularly
sloppy, but because of the pressures that they have in the need to get
the story out. And the lack of ability to cross-examine and all the other
features and educating them about the year. Well, the whole the media,
responsible media people themselves would agree that education should
not be treated in the media. So and then only then as them, have you
read or heard anything about the case. And I find that very, very rarely
does anyone who has read or heard anything about the case, state that
he or she is unable to put that all aside. And that's what I would expect to
do in this case. And I also, there's a line in in one of the submissions, that
so the jury won't be sequestered. That is certainly not my intent. But
when we have the jury here, I am going to warn them about that
possibility, because I don't want to get halfway through the trial, and then
tell them guess what? So, I would tell the certainly that isn't that I, I
haven't sequestered juries, since it became lawful to try them without
sequestration. So I wouldn't expect this one to be sequestered. But I'm
not going to tell them they won't be because it's possible that they will,
they could be. So the bottom line is, I feel fairly comfortable that we can

get a jury selected in a reasonable time, in a day's time. If we have all the
jurors, we won’t do it in panels, we'll have them all participating either
here in the courtroom or by video. So we won't have to repeat anything,
hopefully. And you can follow through on your questions. But that's my
thinking. And I invite your reaction negative or otherwise.
ADA Binger: Your Honor, I think the parties are in agreement that of questionnaires is
necessary. In this case, I don't want to speak for counsel, but I know they
submitted their own questionnaire. And I know that we discussed this at a
prior hearing. And I think we both take the position that it was appropriate
and the court had invited us to submit them. So I thought we kind of dealt
with this already, but I will address it again. I respect the court's
experience in trying homicide cases. And we're aware of that. I think we
can all acknowledge that this is one of the highest profile cases in
Kenosha history. It is one that the events of these nights affected our
community in a widespread impact, independent of anything that affected
you know, the shooting of Jacob Blake and the subsequent nights,
protests and riots and property destruction had affected a huge swath of
our community. And so there's, there's not going to be a lot of people out
there that haven't heard about it and haven't formed some impressions
one way or the other, about what happened to Jacob Blake, about what
happened into our community about the various political or philosophical
movements that showed up here in response to all of that. It's probably
oversimplifying it to say that most people fall on one side or the other of
the spectrum. But certainly a large percentage of our population feels
strongly one way or the other. There are clearly some that are not
invested or don't have an opinion or whatever the case may be. But I
think it's fair to say that this is an issue that is a polarizing one, these
events and crystallized around the defendant. There are some portion of
the population that for the way they see the world, his actions fit, and are

justified, and there's some portion of the population who see the world
and his actions are unjustified. And I agree with the court. I'm not here to
argue any of that. I'm concerned about what the law says, I'm concerned
about justice in our in our criminal system here. And I believe that our
charges against the defendant are appropriate. And I think that we will
prove him guilty, but I don't need to get into debate about the political
movements or about Jacob Blake or about any of that stuff. But it would
be I think, naive for us to ignore the fact that the 100 or 150 people that
you bring into this courtroom are all, not all, but most of them are going to
have opinions and knowledge and a jury questionnaire is important to
help the parties make our important decision, in this case, with enough
time and to deliberate and to evaluate to investigate. And to make a
decision about those jurors in the heat of the moment. Here, we may
have a juror who doesn't answer a single question, who doesn't raise
their hand, we've all seen that happen, where there's a member of the
panel who never responded in any way to anything. And we don't really
know at that point, we've got a little bit of information, maybe we've got a
name or an address or an occupation. But other than that, we don't get a
lot. If this were a misdemeanor, retail theft, I could live with that. But the
stakes, obviously here are much different. So I believe that a jury
questionnaire is important. And I would urge the court to finalize it. And I
think it's important that we get it out the door, with enough time to give
the jurors an opportunity to fully respond to it. Because both of these
submissions are 10, 15, 20 pages in length. It's going to take some time.
And then it's going to take time to get back to us, and of course time for
the parties to review that and the court to review those to make some
evaluations of those individuals. But I see this as a unique situation in
which this is important information that we're going to need in advance.
We have set aside a couple of weeks for this trial. I don't know if that's
going to be enough time or not, we'll see. But I agree with the court that

we want to try and do voir dire as quickly and efficiently as possible, and
the questionnaire is going to be incredibly helpful in that process. I
understand the court’s concern that we're clipping off potential jurors that
this is the case they're being called on. But that's inevitable. They show
up on Monday morning, they're gonna know, they're gonna see it very
quickly. I do believe, however, that no matter what we do here, it's
important that we protect the jurors’ confidentiality, we protect their
safety. And I know we've had some discussions about that. But one of
the things I wanted to bring up is, during voir dire, and during this entire
process, I think it's important that we refer to the jurors only by number,
and not by name. Because I think there is a serious risk in this case that
if their identities become published in today's day and age, the internet is
the bane of our existence in the sense that anybody can put anything out
there, home addresses, phone numbers, family members, etc. It makes
jurors particularly vulnerable in today's day and age. So I think that no
matter what we do, we need to make sure that we only refer to them by a
number in open court. Thank you.
Judge Schroeder: Thank you.
Chirafisi: So I just, one of my last trials, we use jury questionnaires is what Mr.
Binger’s right. It's helpful to the lawyers and I agree with him on getting
the by the way. What it was, though, was enormously helpful to the court.
And the reason it was helpful to the court was everybody had heard
about that case, like everybody will have heard about this case. And the
people with the strong positions on the case, have provided that to you
and to the parties in writing. And what they weren't able to do was poison
the entire panel by saying, I've heard about the case, I think, X or Y about
this case. So people who had strong opinions, we were we were aware of
it ahead of time. The judge was able to if if she needed to, in that case to

do individual voir dire around those people, so they didn't poison in this
case 150 people about what was going on. That's what was really helpful
in a case where everyone's gonna have heard about it. So when you ask
that question, every hand will go up. I would submit to you the majority of
people have an opinion one way or another. And what I found to be really
helpful, and that was Judge Righter[?] on that case where we were able
to separate those people out pretty quickly. And she was able to ask
them, would you be able to set this aside? Would you be able to do this?
Without having to worry about their statements influencing other jurors, if
they had heard things about the case, talking about those things that they
had heard, which clearly wasn't evidence at that point? Right. So I think
everybody, in that case, found it useful. That's the reason that we had
suggested it here. Because I don't think the type of case matters as much
as the publicity behind it and the strong feelings one way or another. So I
agree with Mr. Binger that I think it's appropriate. Because I think it'll help
you at the end of the day. I think it'll help us to make sure we're not
poisoning people. I don't know if you want to address the issue regarding
anonymous jurors. I'm only really here to talk about the jury questionnaire
thing. But I think at the end of the day, you would find it to be, you might
not have used it, but I think he would find it to be useful and trying to
make sure that you do get an impartial and fair panel.
Judge Schroeder: All right, well, let me take a look at it. I give you my thoughts. I've heard
what you have to see and I don’t want to grab control of the case away
from you guys. Let me think about it. Now. I'll make a decision by Monday
or Tuesday. And then if that's done, then you'll get a composite of what I
think are acceptable questions. So there's some that I'm not even going
to go into right now. We can discuss later if you feel that you disagree
with the decisions I make. Anything else today,

Richards: You were gonna set a date for the Daubert date.
Judge Schroeder: For the Daubert.
ADA Bringer: Judge with regard to the Daubert motion, the witnesses that are
proposed as experts could make it by Zoom?
Judge Schroeder: Ah, yes.
VOICE: How about Tuesday, October 5th.
ADA Kraus: We're time we thinking?
VOICE: We could do like 10 I've got a couple of hours.
Judge Schroeder: Anything else today?
[END]

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Kyle Rittenhouse pre-trial evidentiary hearing September 17, 2021

Kenosha County Judge Bruce Schroeder

ADA Jim Kraus

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Attorney Mark Richards

Attorney Corey Chirafisi

Attorney Natalie Wisco

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UNKNOWN: Sorry? No, sorry. I was turning up my volume.

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Judge Schroeder: All right, and—

Judge Schroeder: Alright, and what else? What else?

Judge Schroeder: All right. Mr.Richards?

Richards: Yeah, I think we're all up to date, everything was filed.

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Judge Schroeder: Mr. Richards, or Mr. Chirafisi?

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ADA Bringer: Your Honor, if I may.

Judge Schroeder: Go ahead.

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Judge Schroeder: When was this event?

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Judge Schroeder: Now I don't want to get into that.

Judge Schroeder: You haven't given me a reason

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Judge Schroeder: Okay. All right.

Chirafisi: So it was kind of done pre-emptively.

Judge Schroeder: So wer’re all done with it.

Richards: Understood, your Honor.