Kyle Rittenhouse trial set for early November .

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I get that and that's my point No matter how he answers he admits to either 1st degree yes "I meant to kill him" or admits to 2nd degree " no I didn't mean to kill anyone . According to the prosecution if you meant to kill you are guilty of 1st and if you didn't mean to kill you're guilty of 2nd
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...unless you were defending yourself in a manner consistent with the self-defense law of your state.


Don't let the arguments in the courtroom confuse you. When counsel and the court speak to one another, they are communicating in jargon and using it to argue a specific point rather than explain how things work. In addition, it can be a hard job for anyone, but several of these gentlemen just aren't naturally articulate. That they take confusing verbal shortcuts or just use the wrong word or name occasionally is just ordinary human error.

It doesn't necessarily mean that you misunderstood the more general issues.
 
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The defense never relied on tiny features in pictures that they enlarged, did they? And if they did, that might be invalid, but did the prosecution object?

Even in the blown up image, I can't make out anything meaningful. Is that a gun, or is it part of the background or even some visual artifact due to the very uneven lighting and video compression? If it is Kyle's AR, how does the drone footage tell us whether the gun is laterally aligned with the Ziminskis? And why, if it was a legitimate threat, did JZ not shoot Kyle? He had his (now "lost") handgun in his hand half the night.

When images are enlarged using interpolation, whether it's nearest neighbor or (bi)linear or (bi)cubic or adding pixels using a neural net, that at best creates distortion and false impressions of where borders of small (in the original image) features are located (w/ nearest neighbor). More typically, with linear or cubic interpolation, it would give the impression of a gradient that doesn't necessarily exist in the real scene. AI interpolation can completely manufacture fine details. In my opinion, none of those should be accepted in a trial if fine details in an image are important. The jury should have access to pixel-exact version of the video or photo, and should still be cautioned about the limitations of lenses and compressed digital video.

Courts need to get this right. They need to understand source and display pixel aspect ratios and resolutions, frame rate, interpolating pixels during zooming, interpolating frames to increase the frame rate, pixel encodings (like YUV 4:4:4, 4:2:2, 4:2:0, etc). To fail to do so when tiny details are important to the case, leaving interpretation of a few pixels up to a jury of average people, should be a constitutional violation because it's not a fair and accurate manipulation of the original video.

That's on top of other problems with taking meaning from small-scale details in photographs or video frames, like lens-related artifacts due to lighting, smoothing, sharpening, and other things done automatically by chips that take signals from the image sensor and encode that into the video the camera ends up storing. I don't know what kind of drone that was or what kind of camera it had, but I doubt the footage was recorded in uncompressed raw video. The prosecution doesn't need an "expert" to tell them this. For the video encoding issues they could ask anyone who's used with ffmpeg a lot. like a pirate anime releaser. For the lens and digital camera issues they could ask any serious amateur digital photographer.

If the prosecution wants this evidence in the record so badly, why didn't they call one of the Ziminskis to the stand, have them tell the jury whatever they want in exchange for immunity for assault on Kyle and any directly related charges, and let the jury judge credibility? Evidently either the Ziminskis, if they were asked, weren't willing to testify that Kyle pointed a gun at them, or their credibility is so weak it would've been pointless to put either of them on the stand. Given how terrible the prosecution's other witnesses were, I would speculate that the prosecution didn't even try to get the Ziminskis to testify against Kyle. Kelly Z accepted a plea deal with some jail time for her other activities that night. It makes no sense that she would refuse a better deal in exchange for her testimony.

Maybe Kyle pointed a gun at them. I don't know. I wasn't there. I'm not omniscient. How does any of this reach even 51% confidence, much less beyond reasonable doubt, that Kyle provoked anyone by committing aggravated assault? Even if he did, how does the obvious, prolonged retreat not restore his self defense privilege?

I'd love to get a copy of the actual original video, and go frame by frame through that moment. That might convince me that it is a gun and that Kyle raised it, but wouldn't tell me whether it was pointed at the Ziminskis. Life isn't 2-D. There are times when someone carrying a rifle ends up moving or adjusting their arms in a way that brings the barrel closer to horizontal. The one good thing about that ex-marine, Lackowski, is that he was very careful about aiming his rifle down most of the night, to such an extreme that I was worried for his feet. Not everyone is that attentive to muzzle discipline. Even Balch was less careful, and might have covered other people's feet or legs at times throughout the night. Arguing that Kyle assaulted Ziminski because his muzzle might have gotten uncomfortably close to pointing at JZ should require good quality evidence, or testimony, that the muzzle covered him at some point.
 
Can some lawyer explain this to me:

So Kyle is charged with reckless 1st deg homicide (the "reckless disregard for human life" variant 2nd deg. murder in most jurisidictions) for Rosenbaum.

(The Huber and Grosskreutz shootings were charged as the equivalent of murder 1 and attempted murder 1).

Since the Rosenbaum shooting was charged as reckless, my (perhaps lacking) understanding is that self defense cannot apply (at least not in the normal way, see my later post #431, "no mitigation"). My understanding of the variants of criminal homicide is that that charge isn't supposed to be used when someone intentionally uses deadly force against another. You could perhaps argue that if someone were firing wildly at an attacker, and hit and killed a 3rd party, that THAT was reckless homicide, but you couldn't argue it for the killing of the attacker because they were the intended target. Intentional lethal force against an intended target has to be either murder 1 (1st degree intentional manslaughter in Wisconsin), intentional manslaughter (2nd degree intentional homicide in Wisconsin), or [perfect] self defense. Right? Otherwise prosecutors could do end runs around self defense in homicide cases all the time, by pointing out a few dumb things the defendant did leading up to a self defense shooting, and saying they were reckless, for which there's no self-defense claim.

The state may be trying to split hairs and say Kyle used lethal force against Rosenbaum without specific intent to kill, but my understanding of 1st degree murder everywhere is that intent to kill is not required, intent to use lethal force is. i.e., the defendant intends to carry out the action that amounts to lethal force against another. If actual intent to kill were required, a plausible self defense claim could almost never be charged as 1st degree murder. Murder 1 would require an execution-style killshot or some equivalent without a gun. Otherwise, there's no proof of intent to kill, since any wounds that might be survivable are evidence against murder 1 in that narrow interpretation.

I'm concerned that the Reckless homicide charge for Kyle shooting Rosenbaum is going to confuse the hell out of the jury. They might think that Rittenhouse was reckless in some sense to be there or get into that situation, and think that's what the "reckless disregard" in that charge means, and find him guilty. Then, if they decide to convict on the Rosenbaum charge, they might think his self defense claims for Huber and Grosskreutz are invalid.

If that happens, what happens on appeal? Assuming the defense raises that issue, the conviction would get overturned as invalid, right? Would the other two homicide/attempted-homicide charges get overturned too, since they're closely related? Would we get a retrial on all the homicide and endangerment charges due to that initial homicide charge being wrong?
 
So Kyle is charged with reckless 1st deg homicide (the "reckless disregard for human life" variant 2nd deg. murder in most jurisdictions) for Rosenbaum.
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Ok that makes more sense because it did seem they were just doing and end run around the charges .
 
Since the Rosenbaum shooting was charged as reckless,
self defense cannot apply.
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Somebody's gotta`splain that to me.

If the prosecutor throws out a shout of "reckless ! "....
The circumstances of necessary self defense are barred?
 
I can't believe these arguments today . All three the defense , prosecution and judge . All three can't agree on any of these charges . How the heck is the jury going to understand what they are supposed to vote on and why . These arguments are so silly .
 
zeke said:
When digital cameras came into common use, our lawyers instructed us that only the original images could be entered into evidence in court. You could transfer the original image for use in court, but copies/modifications would not be admitted. This was because the ease of which the image could be modified, and the difficulty in realizing the modifications. For our professional use, we could modify however we wanted, but you had to have the originals for any court. Course that was more than a couple years ago.
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As a state-licensed code enforcement officer, I take an annual refresher course on fire investigation from the state police officer in charge of the arson squad. He very much makes the point that for each investigation, you use a new memory card in the camera. That card is now evidence, and each and every time it passes from one person to another the transfer is logged into the chain of custody record for that piece of evidence.

Only the original memory card is brought to court.
 
zukiphile said:
...unless you were defending yourself in a manner consistent with the self-defense law of your state.


Don't let the arguments in the courtroom confuse you. When counsel and the court speak to one another, they are communicating in jargon and using it to argue a specific point rather than explain how things work. In addition, it can be a hard job for anyone, but several of these gentlemen just aren't naturally articulate. That they take confusing verbal shortcuts or just use the wrong word or name occasionally is just ordinary human error.
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Also, pay careful attention to what words are used in the charges. I think too many people have watched too many television shows and have mentally equated "homicide" with "murder." They are not the same. The word "homicide" simply means the taking of a human life. When a cop shoots and kills a bad guy who has just emptied a Glock in his direction ... it's a homicide. It's not a murder; it's a justifiable homicide ... but it is a homicide.
 
Reading over what was finally agreed upon today in this case, I can't help but feel that what has been set up is a way for the jury to barter with these charges.

'I won't go for first degree"
'I won't go for aquittal'
'Ok, let's agree on 2nd degree'

KR is going to prison.
 
Reading over what was finally agreed upon today in this case, I can't help but feel that what has been set up is a way for the jury to barter with these charges.

'I won't go for first degree"
'I won't go for aquittal'
'Ok, let's agree on 2nd degree'

KR is going to prison.
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I agree , also something came up right at the end when the judge addressed Kyle directly . He asked him if he understood bla bla . At one point I believe he said Kyle can choose not to allow the lesser charges , is that correct . That would make more sense to me . The state can only ask for lesser charges then you were on trial for if you agree to the lesser charges being included because your defense was not tailored for the lesser charges . If true he made a mistake IMO , he should have said all or nothing judge !
 
Whether or not Rittenhouse should or should not agree to the lesser charges is a true roll of the dice. Here's why I think it might be better for him to go for it:

The principle of double jeopardy says that we can't be tried twice for the same crime. Remembering that I am not a lawyer, my understanding is that this applies individually to each charge. So, for example, if Rittenhouse is charged with first degree murder and second degree murder is NOT on the table ... if he is acquitted on the first degree murder charge Mr. Binger could turn around and have him re-arrested on a charge of second degree murder before he even gets out of the courthouse. If the jury is allowed to consider lesser charges and they still acquit, then Rittenhouse wins the grand prize.

If Rittenhouse is convinced that the prosecution made such a bollocks of its case that even the lesser charges probably won't result in a conviction, he may be better off to roll the dice and bet the farm.

Andrew Branca: https://legalinsurrection.com/2021/...-on-provocation-saves-a-chance-at-conviction/
 
1. Simple explanation of Double jeopardy:

DJ bars retrial of another charge unless both the first charge and the second charge have a statutory element different than the other. A "lesser included" offense would be barred. For example, a simple battery might be a lesser included offense of domestic battery where the latter offense has the additional element that the perpetrator and victim were married or were living together. If acquitted on domestic battery, the defendant could not be later tried on the charge of simple battery. Likewise, if acquitted of simple battery, a defendant could not be later tried for domestic battery.

My state also has statutory DJ which is broader than constitutional DJ. But I have no idea if Wisconsin has anything similar.

2. Unicorn video:

I may not have all the facts about the the "unicorn video" from the drone, but it would not have been properly admitted in the courts of my state. There was nobody to authenticate it; i.e., nobody to testify it accurately depicts what the witness saw or, alternatively, testimony about the proper functioning of the camera and lack of manipulation. But, again, I don't know the Wisconsin rules of evidence.

The narrative testimony of the police officer about the video would also be problematic, but I'll stop here.
 
Isn't it the case that if the state wants both the greater crime and a lesser included crime (a fallback) sent to the jury in the same trial, and you object, you can then be retried for the lesser one separately? i.e. double jeopardy only bars retrial for the other offense(s) if the state never sought both the greater and lesser offenses in the first trial?

And the other part is— I think?— that the jury can return whatever it returns, but the defendant cannot be sentenced for both the greater crime and one (or more) lesser included crimes.

As far as I can see, Wisconsin follows KYJim's outline: if you consider the Venn diagram of the elements of the two offenses, and one is a subset of the other, DJ bars being tried separately for both. Subject—I think—to the exception above, i.e. when the defense requests it. That explains why there's good reason not to object to lesser included offenses in this case. Binger would refile 2nd degree homicide charges immediately after an acquittal on 1st degree charges.

Some states allegedly bar re-prosecution for another offense if it's the same act or criminal transaction, but not Wisconsin. They start out saying the same criminal act can be charged twice only if the legislature intends it, but then they assume the legislature intends it unless there's clear evidence to the contrary.

A defendant may be charged and convicted of multiple crimes arising out of one criminal act only if the legislature intends it. When one charged offense is not a lesser included offense of the other, there is a presumption that the legislature intended to allow punishment for both offenses, which is rebutted only if other factors clearly indicate a contrary intent. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
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(source: notes on https://docs.legis.wisconsin.gov/constitution/wi/000227/000009 )
 
I may not have all the facts about the the "unicorn video" from the drone, but it would not have been properly admitted in the courts of my state. There was nobody to authenticate it; i.e., nobody to testify it accurately depicts what the witness saw or, alternatively, testimony about the proper functioning of the camera and lack of manipulation. But, again, I don't know the Wisconsin rules of evidence.
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That really bothered me. Why didn't the defense object to that evidence based on the fact that KR did not have a chance to face his accuser?
 
Binger would refile 2nd degree homicide charges immediately after an acquittal on 1st degree charges.
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This does not seem reasonable to me . Doesn't this mean a DA/state can charge on 1st and if they loose , charge 2nd and if they loose again they can charge 3rd and if , and if , and if ?? This is completely unreasonable , the state should only be able to try you once for each incident not each possible charge as long as they start with the most severe first . They then can keep trying you on the lesser and lesser offenses as long as they go in order ?? . :confused:

How does allowing a few lesser charges now stop Binger if Kyle is acquitted on all charges including the lesser charges from just charging again on another lesser charge like negligent manslaughter or what ever is next . If he can do it from 1st to 2nd , why can't he still do it from 2nd to 3rd . How again does allowing a lesser charge now stop the dominoes of charges from continuing ?

EDIT : I just reread this part

if you consider the Venn diagram of the elements of the two offenses, and one is a subset of the other,
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If I'm reading this right this mean you can go from 1st degree reckless homicide to 2nd degree reckless homicide but can't go from 2nd degree reckless homicide to anything else other then another lower version of reckless homicide ? You could not go from a homicide charge to a completely different charge like any manslaughter charges ? It still seems like DP and they should only have one shot at it period , They pick the charge they think they can prove and that's it . If they loose it's over period .
 
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What happens if the sheer complexity of the nuances presented to the jury results in a hung jury? Can Kyle Rittenhouse be prosecuted again in a new trial?

Just from the discussions here, one gets a sense of what the jury is going to question during its deliberation, the instruction given by the judge notwithstanding. It has been relatively easy to understand that 4 elements of self-defense appear to have been met, but once provocation is introduced, I see the deliberation time frame extending to the point of mental fatigue.
 
For that to happen, there will need to be some evidence of provocation on KR's part. Sure, I've heard people say that he shouldn't have been there with the rifle, but I'd be very surprised if that alone will meet the legal standards.
 
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