Return to Transcripts main page

Inside Politics

Prosecution Delivers Closing Argument In Rittenhouse Trial. Aired 12:30-1p ET

Aired November 15, 2021 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[12:30:00]

THOMAS BINGER, ASSISTANT DISTRICT ATTORNEY: Make sure it's empty.

Under Wisconsin law, you're not allowed to run around and point your gun at people. This is the provocation. This is what starts this incident. The defendant rushes in and immediately points the gun. And as you'll see in a little bit, Mr. Rosenbaum doesn't take kindly to people pointing guns. I don't think anyone does. That's not unusual. No one wants to have the gun pointed at them. And no one wants to watch anyone else do this to someone else.

We have the gun. It is in evidence as Exhibit Number 28. I'm having the detectives check it to make sure that it is safe. The defendant comes running in and drops the fire extinguisher on the ground like this. And then raises his left hand to the gun and points. This is what we see in the video, him putting the fire extinguisher on the ground, and then raising the gun.

UNIDENTIFIED MALE: Your Honor, I'm going to object, his facing the wrong direction.

BINGER: That's an argument.

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: I'd like to actually have, well, I'll leave it alone.

BINGER: So what you see in that video is his left arm, reaching for the gun, holding it up. You can see it again on the video here, his left arm reaching up towards the gun. That is what provokes this entire incident. And one of the things to keep in mind is that when the defendant provokes the incident, he loses the right to self- defense. You cannot claim self-defense against a danger you create. That's critical right here.

If you're the one who is threatening others, you lose the right to claim self-defense. Then we have the chase that occurs after that. And we have taken that drone video. And we have slowed down portions of that chase for you. So what we have right here on the screen, this is Exhibit 84. And this is the middle portion of that incident. And you can see Mr. Rosenbaum, chasing after the defendant throwing that plastic bag, and then the defendant turns and points the gun back at Mr. Rosenbaum. And this is the moment in time when Mr. Rosenbaum essentially does sort of a little hop with both of his hands in the air. And the defendant has testified. He saw at that moment that there was nothing in the defendant's hand -- or Mr. Rosenbaum's hand, he was unarmed. There's the defendant turning and pointing the gun. Mr. Rosenbaum leaps, his hands out to the air, and then watch here at the end. This is where the shooting occurs.

Mr. Rosenbaum is not even within arm's reach when the first shot occurs. I'll play that again. The defendant is pointing the gun at Mr. Rosenbaum. Mr. Rosenbaum raises his arms off to the side. The defendant approaches these cars and slows down and then turns and shoots Mr. Rosenbaum.

Finally, I'm going to play you Exhibit 86. This shows you the final part of that zoomed in and slowed down. Here's the defendant running in between those parked cars slowing down. And you can see just how close or rather how far away Mr. Rosenbaum was when the defendant shot him.

You can see from this video that Mr. Rosenbaum is not even within arm's reach of the defendant when the first shot goes off. The defendant fires four shots in quick succession. And I'll come back to this in a moment. But you'll note during this entire sequence, it's the defendant who chooses where to go. He's the one who decides to run where he runs. And he slows down right as he gets to these park cars. That's what allows Rosenbaum to get closer. We've seen this on the aerial footage from the FBI and I want you to see that perspective as well.

[12:35:02]

This is Exhibit 25. This is the annotated aerial footage. You see the defendant approach running in the same direction as Mr. Rosenbaum. This is where the pointing occurs in the direction of the Ziminski's. You can see Joshua Ziminski is right there on the screen. I'm going to put the cursor over where the Ziminski's are. They're right in there.

The defendant is pointing his gun right here. And he's pointing it in the direction of the Ziminski's because they're standing next to that car. And then the chase occurs. Now what's interesting to me is watch when the crowd starts to run. The crowd is already starting to run here, even before the defendant has fired a shot. That's likely because they heard the first shot from Joshua Ziminski, and the crowd starts to run away. The defendant has testified that that shot from Mr. Ziminski had nothing to do with his decision to kill Joseph Rosenbaum. And I'll come back to that in a second.

Finally, I'm going to show you this incident from the perspective of Drew Hernandez because he is behind all of this. And then he comes upon Mr. Rosenbaum's body. Is that audio playing? I'm not sure why you're not hearing the audio on that. Is Brian around? He's not, all right. Can you text Brian, please.

At this point, the defendant has shot and killed Joseph Rosenbaum. And Mr. Rosenbaum is laying facedown. That's where he falls. Richard McGinnis actually rolls him over after trying to stem the bleeding here. You can see in the foreground that plastic bag that Mr. Rosenbaum threw on the ground, I don't think there's any dispute there was nothing harmful in that bag. It was a clear bag containing some clear items.

UNIDENTIFIED MALE: Objection, there is a dispute what's in that bag.

BINGER: Then you can make that dispute in your argument.

SCHROEDER: Its argument and you will be allowed to respond.

BINGER: You can see in this video, the crowd is attempting to save Mr. Rosenbaum's life.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Keep her eyes open, keep her eyes open.

UNIDENTIFIED FEMALE: You shot him?

UNIDENTIFIED MALE: I didn't.

UNIDENTIFIED FEMALE: You're OK, you're OK.

UNIDENTIFIED MALE: We got to keep him alive.

(END VIDEO CLIP)

BINGER: So we have shown you, the defendant murdering Joseph Rosenbaum from three different angles, the drone footage, Drew Hernandez, and also the FBI video. The defendant admitted that during this entire incident, he knew that Joseph Rosenbaum was unarmed. I'm going to come back to this in a little while. But there's this alleged threat that Mr. Rosenbaum made earlier in the evening to kill the defendant, I will debunk that. That did not happen.

It is the one fact in this case, the defendant wants you to believe that there's no video of. And in fact, I have the video of the entire incident. I've played it for you and I'll show it to you again. There's no threat. There's also no evidence that Mr. Rosenbaum ever wanted the defendant's gun. He never said I'm going to take your gun. He never said I want your gun. There's no indication of that.

Dr. Kelly has testified that the first shot that the defendant fired at Joseph Rosenbaum hit the victim in the right pelvis fracturing him. Mr. Rosenbaum was incapacitated at that point. He is whatever threat he might have posed, it's over. There is no further threat. He is falling to the ground. And the defendant doesn't stop after that first shot. He tracks Mr. Rosenbaum's body all the way down, firing three more shots.

[12:40:22]

A second shot, which goes through Mr. Rosenbaum's hand, and then a third and fourth shot, one that grazes the right scalp, and one that goes right into Mr. Rosenbaum's back. And that is the kill shot. That is the one that took Mr. Rosenbaum's life.

There is no evidence that Mr. Rosenbaum was reaching for the defendant's gun. And after that first shot, there's no way Mr. Rosenbaum could have taken that gun even if he wanted to. He is already falling to the ground. He is helpless. He is vulnerable. And as I said, the kill shot is the one to the back.

This is that wound. Dr. Kelly testify that the angle of this shot was from the left shoulder towards the center of the back, and the bullet continued on down towards the right, lower back area, tearing through bodily organs, and killing Mr. Rosenbaum. Here's a picture of the wound to the hand. There's been a lot of testimony about this wound.

This is one in which the evidence suggests that Mr. Rosenbaum's hand was most likely turned in this position, palms outward with his thumb to the ground. When the wound the bullet goes through the area in between his middle finger and his ring finger and penetrates the lower knuckle of the middle finger and the index finger before exiting.

Dr. Kelly testified there suit in that area suggesting that the hand was close to the end of the defendant's barrel of the AR-15 at the time of that shot. The defense wants you to believe it's there because Mr. Rosenbaum is deliberately reaching for the gun.

Well, that doesn't make any sense. First of all, this occurs after Mr. Rosenbaum has been shot in the hip. And has -- have got a fractured pelvis at that point. He is falling. He is not able to walk. He's probably not even able to control much of his movements at this point.

When you're reaching for that gun, this is not the way you're going to do it. This is not going to be effective. I submit to you ladies and gentlemen, to the extent Mr. Rosenbaum's hand ever got close to the end of the defendant's gone. It was completely inadvertent, not at all intentional.

Now, we've heard a lot about the Ziminski's in this case. And I just want to carve them out of this case right now, because it's a red herring. It has nothing to do with any of this. There's been some focus on that, because I think the defense was hoping they could work this into their self-defense claim, and make an argument that that first shot by Joshua Ziminski somehow made the defendant fear for his life.

Unfortunately, the defendant wasn't on board with that, because in his testimony, he told you that that shot had nothing to do with his thought process. It didn't affect him in any way. He said he didn't think the shot came from Joseph Rosenbaum. He knew Joseph Rosenbaum was unarmed. And he admitted to me, you can't kill Joseph Rosenbaum for something Joshua Ziminski did.

So let's just carve Joshua Ziminski out of this case, I'll deal with him on his arson trial in January. But until then, it doesn't factor into any of the decisions the defendant made. And in fact, as you see on the FBI video, the Ziminski's continued walking straight on down the sidewalk. They don't pursue the defendant. They don't threaten the defendant in

any way. Now, the defense wants you to think Joseph Rosenbaum was there to attack the defendant. We'll never know what Joseph Rosenbaum was thinking because the defendant killed him. So we're just guessing.

But let's assume for a minute, yes, Joseph Rosenbaum is chasing after the defendant because he wants to do some physical harm to him. He's an unarmed man. This is a bar fight. This is a fist fight.

This is a fight that maybe many of you have been involved in, two people hand to hand or throwing punches or pushing or shoving or whatever. But what you don't do is you don't bring a gun to a fistfight. What the defendant wants you to believe is that because he's the one who brought the gun, he gets to kill.

So I want you to contrast this to different scenarios. One scenario where there's two guys who are throwing punches at one another like a bar fight. I think we'd all agree you can't kill someone. You can't punch the guy knock them to the ground and then get on him and strangle the life out of him. That's murder.

[12:45:14]

So what's the difference here? The only difference is the defendant brought a gun. He brought his AR-15. That's why he's got to come up with this cockamamie theory that Joseph Rosenbaum was not only going to take the gun, but take it and then turn it on the defendant.

And the defendant actually told you that he thought Joseph Rosenbaum was going to take that gun and not only killed him, but kill other people, which is really ironic, considering the defendant is the one who killed people in this case, and the only one. But putting that aside, they have to convince you that Joseph Rosenbaum was going to take that gun and use it on the defendant because they know you can't claim self-defense against an unarmed man like this.

You lose the right to self-defense when you're the one who brought the gun, when you're the one creating the danger, when you're the one provoking other people. The defendant fired four shots to Joseph Rosenbaum and cost five wounds total. The first shot fractured Joseph Rosenbaum's pelvis, this causes him to be helpless. He's falling face first to the ground, and he is vulnerable.

The second shot went through his left hand, probably ricocheted off the ground and hit his lower left thigh. It's a flesh wound. I'm sure it hurt, but probably not all that serious. The third and fourth shots are as Mr. Rosenbaum has fallen almost completely to the ground, he is parallel to the ground. He is almost faced first to the ground. The defendant fires around into his upper back, which is the kill shot, and another round which grazes his right scalp.

At this point, as you saw in that video, a crowd rushes to that body to try and save Joseph Rosenbaum. They're trying to put clothing on the wound to stop the bleeding. They're going to take them across the street to a hospital. KMH Frater itself is literally right across the street. And this crowd, except for the defendant, are all focused on trying to save this person's life. A person by the way, they probably had never even met before. Because that's what most people do.

Richard McGinnis testified, I rode with Rosenbaum in the back of that SUV, I told him, we'd have a beer together when this is all done. Mr. Rosenbaum was unable to respond. The defendant decided to pull the trigger on his AR-15 four times. That was his decision. And he is responsible for every bullet that comes out of that gun.

He doesn't get a pass by pulling the trigger fast. He could have chosen to stop after the first shot after the second shot after the third shot and assessed whether or not there was still a need to keep firing. But he went four times in 0.76 seconds the defense has made a big point of this, how fast he fired, as if that somehow excuses him, exactly the opposite, ladies and gentlemen.

He controls how quickly he pulls the trigger. He is in control of that decision making process. No one else made him do that. And this is indicative of someone who doesn't care about the consequences, doesn't care to stop and figure out am I good, am I -- do I need to stop or I'm just going to keep on going. And as I said, he tracks the body all the way to the ground with those second, third, and fourth shots.

The only way that you could possibly justify the murder of Joseph Rosenbaum is if you believe that Joseph Rosenbaum was actually reaching for the defendant's gun. And that a reasonable person in the defendant's position with that AR-15 strapped tightly to his chest would think that Joseph Rosenbaum was even capable of taking that gun away as he's falling to the ground with a fractured right pelvis.

And then not only all that, you'd also have to believe that Joseph Rosenbaum was going to turn that gun around and use it to kill the defendant. You have to believe all of those things to justify the murder of Joseph Rosenbaum.

That's why the defense is trying so desperately hard to convince you that Joseph Rosenbaum threatened to kill the defendant which never happened that's why they're trying so desperately hard to convince you that Joseph Rosenbaum was reaching for that gun because if he's not reaching for that gun, and he's not going to use it to kill the defendant, it is not justified. There is no valid self-defense claim.

[12:50:25]

One of the things the judge has instructed you is that when the defendant provokes the situation, he has to exhaust all reasonable means to avoid killing someone. Did he? He didn't have to shoot. He's the one who chose where to run. He chose to run in between those parked cars. He slows down as he gets there.

The crowd was already running away. You know, the defense wants to make a point there's a whole bunch of people over there who are doing stuff to cars and the defendant had no escape route, the crowd actually already running away at this point. They've heard the first gunshot from Joshua Ziminski, and they're already starting to scatter.

But if you look on the video, there's a huge open space in that lot where the defendant could have circled back around and he actually does circle back around after killing Rosenbaum where he could have gotten away. He has to exhaust all reasonable means of escape before killing Mr. Rosenbaum.

Your Honor, I do have some more video I want to play. I'm having a little bit technical problems that I'd like to work on. So I think this would be a good time to pause it, if that's OK. OK, thank you.

SCHROEDER: Please don't talk about the case during the break. We will watch by any account. And we will begin again at, is 1:45 too soon?

UNIDENTIFIED MALE: Did you say 12:45 or 1:45?

SCHROEDER: Well, I thought --

JOHN KING, CNN HOST: I'm John King in Washington. You're watching Judge Schroeder here send the jury out for a brief break. During the prosecution closing argument, the prosecutor, Mr. Thomas Binger making his case and asking for a pause so that he could have some video constructed. Let's bring in our legal analyst Paul Callan and Caroline Polisi are with us.

Paul, the closing arguments began after a very long morning session in which the judge had to send the jury out of the room at one point with the closing statements. But Mr. Binger trying to recover from that starting his closing argument by saying you've heard a lot of confusing things. This case, in some ways is complicated. Let me make it simple for you out of the box. How's the prosecutor doing?

PAUL CALLAN, CNN LEGAL ANALYST: Oh, I think he's doing reasonably well. I mean, he's doing something that the judge didn't do, which is speaking in a way that people can generally understand. I find that his contention about Rosenbaum seem is kind of implausible on its face.

I mean, he's really saying that, you know, Rosenbaum, first of all, never threatened to kill. We haven't heard the basis of that cause throughout the trial so far, witnesses have said that Rosenbaum said, I'm going to kill you, I'm going to kill you. And he had also threatened earlier that he would cut somebody's heart out who was close to Rittenhouse.

So we'll have to hear what he says in his summation about that. But he's, of course, contending that this chase that caused Rittenhouse to run should not have placed a Rittenhouse in fear of his life. And he makes a big deal about him running toward these cars. And I think that the defense is going to turn that around on him substantially when they sum up and say that he was in fear of Rosenbaum and he only turned around when he felt he had to.

The other thing is I think with respect to the four shots, I mean, he did a very, very good job of breaking it down and making it seem like he fired once and then he fired again and again and there was time for him to contemplate in between the shots as to the need for another shot because the pelvis had been fractured. Well, of course, he didn't know that the pelvis had been fractured. He just knew he had fired one shot. And all four of those shots are apparently fired while Rosenbaum was flying through the air in 0.76 seconds, less than a second. So the argument sounds good until you start to analyze it. And then it doesn't sound as persuasive. So he's articulate. He's doing the best he can with a weak set of facts, but we'll have to see how the defense response.

KING: And so that's the key point Caroline, were the beginning here. Mr. Binger has another hour or so to go. He said at the top. Then the defense obviously makes its closing argument and then the prosecutors get time to rebut but right out of the box you hear Mr. Binger, the facts are not in dispute here. In many cases the facts are in dispute.

The basic facts are not in dispute here. Mr. Rittenhouse acknowledges pulling the trigger. Two people died one was wounded. The whole issue here is self-defense as the prosecutors tried to take that away. That's the defense saying he felt threatened, he was under threat so he was protecting himself, a great the prosecutor so far again with the ways to go.

[12:55:06]

CAROLINE POLISI, FEDERAL AND WHITE COLLAR CRIMINAL DEFENSE ATTORNEY: Yes and also a key point there not only are they arguing self-defense, but provocation, right, that was a key issue in this case, whether or not prosecutors would be even allowed to argue about provocation, which under Wisconsin essentially takes away that self-defense claim. It's a kind of a tricky, legal burden shift, if you will.

But I really think, you know, commentators were saying that the prosecution had an uphill battle, even going into today, I think, even more so now, after that just complete, you know, what show of dissemination of the jury instructions. It was appalling what took place in that courtroom, the judge sounded like a first year law student in a criminal exam, sort of, he had like a kind of a stream of consciousness, talking to the jury, I really think that the confusion that he sowed among jurors really is going to play the defense.

KING: Well, so let's continue on this a bit and combine the two tracks if you will. If you're the prosecutors or the defense, as you make your case you're trying to put the confusion behind you have this morning, Paul, put yourself from a jurors perspective, you sat there and listened to the judge for more than an hour this morning, he had to keep stopping himself.

The phone was ringing in the courtroom, which I just found amateur hour, you can turn it. It's pretty easy to turn the ringer off in a courtroom when you're at the most critical stage of a trial. And the judge, essentially, they debated for days with the attorneys what to say in the instructions.

And then the judge flubbed it anyway, reading one of the charges wrong at one point, he had an a morning session, scribbled in some edits, and he went through those, and he had to stop and send the jury out of the room to say, let me try to fix this. How does that -- is that just a, you know, confusing drama that didn't need to play out amateur hour or does it impact the jury?

CALLAN: It will impact the jury, John. And it really was kind of shocking behavior by the judge, because when they had had these extensive discussions about the charge, the judge was very intelligent in analyzing the charge and saying, well, this element has to be explained this way and this element, we should discuss it another way.

But it just fell apart when he started presenting it to the jury. And there's a way to simplify this, which he eventually discovered, which is you should list each of the potential victims here and essentially say that if Rittenhouse acted in self-defense with respect to Rosenbaum, that's the end of the case on Rosenbaum, move on to the next person, and then the next person, and then the next person.

And then get into the elements and the underlying charges. That's the organizational structure that would have been understandable to the jury. But instead he didn't do that. Of course, he made a very big decision this morning that will help I think the Rittenhouse defense and that is he dropped count six, which was the gun charge against Rittenhouse. But even with respect to that he got more confusing with the jury as he started talking about the gun being a dangerous weapon and putting the gun and possession of the gun back into play again.

So I don't know how an appellate court whatever uphold a conviction arising out of such a confusing charge to a jury and if he's convicted and appellate court will review this record.

KING: So Caroline put yourself in the prosecutor's position first since he's on, he's standing around making his presentation. You know, the jury has been confused or at least had a long morning where they may not be thinking clearly you come out of the box you're trying to get at the self, you know, there was no self-defense that Kyle Rittenhouse was not threatened.

That's what the prosecutor is trying to make. And so he's going through first Mr. Rosenbaum was shot and killed, next will come Mr. Huber, who came at him with a skateboard. The prosecutors challenge here is to say at nobody threatened Kyle Rittenhouse's life therefore he had no right to pull the trigger, right?

POLISI: Exactly. And I thought the prosecutor did a fairly good job just now in the first part of his opening statement with respect to Joseph Rosenbaum. Of course, he still has several more accounts to go. And one of the reasons this case is so confusing, John, is because there are different charges, right? There's a first degree intentional homicide charge against Anthony Huber. We'll hear about that later.

But we've now included lesser charges, lesser included charges within that highest level, which is sometimes complicated for jurors to understand and part of the fight in the jury instructions today was with respect to how the judge was going to instruct the jury to think about those lesser included charges, whether if they felt unanimously that Rittenhouse wasn't guilty of the top charge of intentional homicide, whether or not they then would move on to the lesser included. I mean, that's kind of a complicated legal issue and they didn't really get to the right answer, I didn't think with respect to the instructions.

But the prosecutor now has to distill this down to come sense and I think that's what he's trying to do. They are taking a wider lens view of this case saying, look, this was a young man a 17-year-old who was in a illegal possession of a firearm, he crossed state lines to come into, you know, a melee really and so we took it upon himself to enter into a dangerous situation therefore, he can't be, excuse me.

[13:00:22]

KING: I got to jump in at that point as we reach the top of the hour. This is confusing, don't apologize. No apology necessary. Confusing morning from the judge, the prosecutor trying to recover in the courtroom, we'll have more when the court trial resumes.

Ana Cabrera picks up our coverage right now.