Legal Expert in Self-Defense Breaks Down Kyle Rittenhouse Trial

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The murder trial of Kyle Rittenhouse, after eight days of testimony, has gone to a jury in Kenosha, Wisconsin, to arrive at verdicts in the highly publicized case.

The jury, which finished its second day of deliberation Tuesday, was considering seven counts, including first-degree intentional homicide, first-degree reckless homicide, and attempted first-degree homicide. As Americans wait to learn Rittenhouse’s fate, it’s helpful to look back and see how we got here.

Self-defense expert and attorney Andrew Branca extensively covered the trial’s ins and outs. Branca has written that he thinks the jury should find Rittenhouse, 18, not guilty because he acted in self-defense in shooting three men who pursued him during a riot in Kenosha, killing two.

“I don’t even think it’s close. It should be an acquittal on all these criminal charges,” Branca says. “I’m sure what we’re experiencing here is a holdout of one or perhaps two jurors. The evidence is not close on any of these issues.”

Branca joins “The Daily Signal Podcast” to discuss what you need to know about the case.

We also cover these stories:

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  • The International Olympic Committee releases new guidance for intersex and transgender athletes, reversing policies requiring biological males who identify as females to lower their testosterone levels.
  • House Democrats censure and strip committee assignments from Rep. Paul Gosar, R-Ariz., over an edited anime clip he posted on Twitter depicting him as physically attacking characters with the faces of Biden and Rep. Alexandria Ocasio-Cortez, D-N.Y.

Listen to the podcast below or read the lightly edited transcript.

Doug Blair: Our guest today is Andrew Branca, an attorney and author of “The Law of Self Defense,” who has been closely tracking and writing on the Kyle Rittenhouse trial. Andrew, welcome to the show.

Andrew Branca: Very happy to be here. Thanks for having me.

Blair: At the time of this recording, the jury has not yet made a decision in the Kyle Rittenhouse case, but as somebody who’s been watching the trial, what do you think the jury should decide?

Branca: Well, I don’t even think it’s close. It should be an acquittal on all these criminal charges. I’m sure what we’re experiencing here is a holdout of one or perhaps two jurors. The evidence is not close on any of these issues.

And in self-defense, the state has to disprove self-defense, not by a little bit, but beyond a reasonable doubt. And they never presented evidence that was inconsistent with self-defense at any point in this trial.

Now they’re trying to do kind of a backdoor attack on self-defense by claiming that Rittenhouse provoked the attacks against him. Provocation loses you self-defense, so if they can convince the jury he provoked the fight, then they don’t have to worry about the self-defense elements. They don’t have to disprove self-defense beyond a reasonable doubt because a provoker is not qualified to claim self-defense.

But the only evidence they ever had of this supposed provocation is this really ridiculous drone video that that was delivered by the evidence fairy on the prosecution’s doorstep in the middle of the trial.

You can’t make anything out it. And then not only that, but they didn’t provide the defense with the same resolution video that they had. The version provided the defense is one-sixteenth the resolution of what the prosecution had in their hands. So the defense wasn’t able to properly prepare their defense, properly prepare their client when he took the very high-risk step of the witness stand to testify on his own behalf.

The defense never even knew that a higher resolution version of the video existed until after the evidence had closed. They didn’t know until this past Monday, when the jury was just about to start deliberation. So it’s really a reprehensible set of circumstances.

Blair: I think you’re really hitting on something here, that this is a very complicated trial. There’s a lot of stuff that’s been going on. There’s a lot of evidence that gets entered in at certain points, and it’s very hard to keep track of things.

One of the things that’s happening right now is that the defense is asking for a mistrial due in part much to what you’ve explained recently. Can you explain specifically what grounds the defense is using to claim that there should be a mistrial? And then in your opinion, should they get that mistrial?

Branca: Yeah. There’s actually two motions for the mistrial and it’s important for people to understand, it’s not just a mistrial, it’s a mistrial with prejudice. The “with prejudice” part is important because it means that they can’t bring Kyle back for a retrial. Otherwise, they’re free to bring him back.

And frankly, in a normal criminal defense, I would say a mistrial is a win for the defendant because at least he didn’t get convicted. But in this case, when you’re dealing with a defendant who’s so obviously innocent of these charges against him—or I should say, not guilty of these charges against him—a mistrial here, if it doesn’t include the prejudice factor, is basically stealing an acquittal from this defendant. And they’ll just go in and put him through this process again and again and again, until they grind this kid into dust.

So the defense doesn’t want merely a mistrial. They want that mistrial with prejudice so it’s done. The grounds for it are, frankly, for the first motion, were really rather egregious conduct by the prosecutors, intentional egregious conduct.

One of the prosecutors, [Thomas] Binger, spoke in front of the jury about the fact that the defendant had asserted his right to silence. You’re not allowed to do that. Your right to silence cannot be held against you in court, should never have been mentioned. And he referenced some evidence that the judge had ruled excluded from the trial in front of the jury.

And he knew he was not allowed to do … either of these things, because it had been discussed that morning before the jury was brought in. So these were intentional acts by him, intentional acts of misconduct.

The theory of the defense is he knows he’s not allowed to mention the defendant’s assertion of his Fifth Amendment rights. This is an experienced prosecutor. This is not some odd facet of law. It’s core criminal defense law.

So he must have done it intentionally. And he did it for the purpose of throwing the trial, of getting a mistrial, so he could come back again in a second trial, maybe with a more amenable jury, maybe with a more amenable judge, and take a second bite at the apple.

And there’s Wisconsin case law, court law, where this has happened before for this reason. And the courts have ruled, “Look, if that’s why the prosecutor is doing it, intentionally throwing the case so he can get a second bite of the apple, we will dismiss with prejudice so that he’s not able to do that.”

Now they’ve added to that motion for the mistrial with prejudice this whole drone video footage fiasco, where they failed to provide the defense with the same resolution video that they had.

In effect, they didn’t provide the defense with the video, right? The one that was actually presented in evidence. And that’s what they call a Brady violation. That’s a failure of the prosecutor’s obligation under the U.S. Constitution to provide the defense with the evidence that’s going to be used against them in court.

It might have been by accident. They might have uploaded it to a Dropbox and the Dropbox compressed the video somehow without them knowing. So it may have been unintentional. If it was intentional, this is a malicious prosecution, and there should be charges brought against these prosecutors. And that should pierce their normal prosecutorial immunity.

We don’t know if it was intentional, but frankly, even if it was unintentional, in combination with the other intentional misconduct, the Fifth Amendment, the excluded evidence references, honestly, the only justice I see in this case moving forward would be that mistrial with prejudice.

Blair: I think it’s pretty clear you feel that the prosecutor has acted, if not maliciously, at least pretty radically incompetently as they’ve proceeded throughout this trial. I want to focus on the defense. The defense has been criticized on occasion for what have been called maybe some legal missteps. What do you think of the job that the defense has done for Kyle Rittenhouse so far?

Branca: Well, I know they’ve been criticized—and sometimes by lawyers I have a lot of respect for are levering some of this criticism. I have to be honest, during the course of the trial, I didn’t really see it.

One of the big criticisms is they didn’t object at every opportunity, but I have to be honest, you don’t do that. I mean, you don’t object to every place where it’s technically permissible to object. The trial would never proceed. You kind of customize where you’re going to object. So it’s on particularly important points and where you know you’re likely to have your objection sustained by of the judge.

I mean, if the judge has by his conduct made clear he’s going to overrule your objections on a particular issue, there’s no point to keep objecting on that particular issue. It’s not going to go your way. So I didn’t feel there was much legitimacy, frankly, to a lot of those criticisms.

I will say that I was very disappointed in the defense closing argument, for sure. And I wrote about that publicly. I think it was a competent job, but that’s not enough with these stakes. You needed to get as close to perfect as you possibly could when we’re talking about an 18-year-old man looking at spending the rest of his life in a cage. A workman-like closing was not adequate, in my opinion.

Blair: Let’s dive into that a little more. What, in terms of the job that defense did with the closing statement, could have been improved? You’re saying that it wasn’t good enough. Where would you have highlighted?

Branca: Well, there were a few things that really bothered me about it. One was just the tone. The tone was very angry and belligerent.

And listen, there is good reason to be angry over this trial. This is a terrible injustice. I understand why defense attorney [Mark] Richards is angry. I’m angry about this. But the role of the closing argument is not to let the defense counsel air their grievances and anger at the prosecution. The role of the closing argument is bring to your side any jurors that might not already be there.

Now, some jurors are on your side, and they’re probably angry about this case, too, but you’re expressing anger as a defense attorney. You don’t need to convince them to your side. They’re already there. What you’re worried about is the jurors who are not yet on your side, who may have some empathy for the “victims” in this case, or their families, or have proven amenable to some of the prosecution’s rhetorical tricks.

In this case, you need to persuade those people over to your side. And you’re not going to do that with anger because they’re not angry. If they were angry over the prosecution, they already would be on your side.

So I think the problem is that Richards was approaching the jury from his personal perspective of this case, which is a legitimate perspective to have, but it doesn’t accomplish the mission of bringing over to your side the people who don’t share that perspective. You have to convince them by other means.

And I would’ve taken a much more sympathetic tone along the lines of, “Look, we all wish none of this had happened. Kyle wishes none of this had happened. We all wish these people were still alive and with their families, but my client didn’t cause that to happen. They compelled him to act in self-defense,” and take that much more sympathetic tone to get people over to your side of the table.

The other thing I didn’t like about it was he basically stepped through the witness testimony in chronological order, as they were presented in the trial. And he was kind of meandering and wandering and he made the factual points he needed to make, but he never kind of stitched them together in a story or a narrative, an arc to draw a picture, paint a portrait for the jury of innocence for his client.

I don’t think you get that much value by just repeating the witness testimony in the same sequence the jury’s already heard it in the trial. I think you need to do more than that. I think you need to take those building blocks, those Legos, and construct a story and narrative that’s compelling for the jury. And nothing like that was done. And there was no reason for that not to be done. I mean, that’s what a skilled criminal defense attorney ought to be doing.

Blair: Let’s take a step back from the defense and the prosecution. You’ve been watching this trial for quite a while now. And you’ve been blogging about it for both your site and for Legal Insurrection. Would you be able to give our listeners some of the highlights from the trial that you feel like kind of define what this trial was all about?

Branca: Well, there’s a common pattern you see in many of these cases where … use of force is charged, it’s pretty apparent it’s self-defense. In a nonpoliticized case, this would never have been brought to trial, but it becomes politicized.

And what tends to happen when you have a case that’s being brought for political reasons and not on legal merit is that the prosecution finds they don’t have legal merit to demonstrate to the jury. So they have to call witnesses.

So every day you see the state’s witnesses and you expect the state’s witness to testify in a way that builds this mountain of evidence contrary to self-defense, that this proves self-defense beyond a reasonable doubt, which is the state’s burden. But in these politically charged cases, what happens is the state presents a witness and either their testimony is ambiguous or it’s actually helpful to the defense.

Their next state witness, same thing. Next state witness, same thing. And there’s no evidence that’s inconsistent with self-defense where you have to disprove it beyond a reasonable doubt. And there’s increasing evidence from the state’s own witnesses that’s consistent with self-defense.

I mean, the big example here is Gaige Grosskreutz, who testified that Kyle never shot at him until he was pointing his own pistol at Kyle, that he testified he was worried himself about the injuries Kyle might have sustained by Anthony Huber hitting him in the head with a skateboard.

This is not testimony that’s helpful to the prosecution, but it is testimony that’s helpful to the defense. And Grosskreutz is a state witness and a victim, according to the state of Kyle Rittenhouse.

So when you see this day after day after day, I mean, frankly, when the state rested, I don’t know why the case wasn’t dismissed right then, because … no reasonable jury could look at the evidence that had been presented and conclude that this was anything other than lawful self-defense, but it’s this whole provocation issue.

And the judge looked at this drone video. He couldn’t see anything. I mean, he sat for 30 minutes in front of a 4K TV watching this few seconds of video loop over and over and over again. He couldn’t make anything out of it, but he has a lot of faith and gives a lot of discretion to the jury to carry out their role as fact-finders.

And his position was, “Look, I can’t see anything here, but it’s an issue in dispute, a factual issue in dispute. And if that’s the case, we ought to let the jury consider it.” And that’s how we find ourselves where we are now.

Blair: Let’s go back to a more personal profile of somebody, which would be the judge, Bruce Schroeder. Some have called his behavior during the trial into question, calling him partial or biased toward the defense. What do you think of the job that Judge Schroeder has been doing so far?

Branca: Oh, I don’t know. I mean, I guess it’s fine. He talks a lot at the prosecution. He’s yelled at the prosecution. He’s told them … from time to time, he thinks they’re acting not in good faith, which means he thinks they’re acting in bad faith. Of course, that’s the only other option. But he doesn’t follow through. I mean, he doesn’t actually hold them accountable.

They still get their evidence in. They still get their arguments in. They’re still excused for the obviously intentional misconduct. They make up some excuses and the judge accepts that excuse and poor Kyle Rittenhouse simply proceeds further and further and further into this trial, to these deliberations. So he scolds the prosecution from time to time, but I don’t see anybody being held accountable in any meaningful way in this case.

I think by and large, he’s done a good job, but again, he’s a guy who really believes in the role of the jury very, very strongly. And if there’s a scintilla of dispute of evidence on a fact at issue in this case, he’s going to hand it over to the jury.

And there are supposed to be thresholds that evidence has to meet. For example, these images, these unbelievably blurry images that the prosecution presented that were supposed to show Kyle pointing his rifle at somebody, that that was the act of provocation—according to the state—that triggered all this, they had the expert come in who “enhanced” these images. I would say doctored these images.

And the expert himself couldn’t say that his versions were fair and accurate representations of the original. In fact, he’d never looked at them side by side, next to each other.

I mean, to my mind, that’s not even close to meeting the threshold of evidence, quality of evidence, that should be met before you hand it to a jury to consider. You’re not supposed to hand the jury evidence that’s garbage that they have to speculate about what it’s showing or what it means. And that just wasn’t done here.

Blair: One of the things that really struck me when I was watching this trial was when Rittenhouse himself went up and took the stand and then gave his own testimony. And you wrote on your website that the decision was “a high-stakes bet by the defense and one that always has the risk of snatching defeat from the jaws of victory.” Would you be able to elaborate more on that statement and kind of explain what you meant by that?

Branca: Sure. So, when you’re considering putting your client, as a criminal defense attorney, on the witness stands, there’s usually three risks that you’re facing when you do that, and they could be catastrophic, all three of them.

Normally, one of the risks is that your client’s criminal history is going to come out. If you’re a criminal defense attorney, most of your clients are criminals. They have an extensive criminal history that normally is not admissible in evidence in front of the jury, unless your client takes the witness stand because then he’s a witness like anybody else. He can be impeached for his veracity, just like anybody else.

So his criminal record becomes relevant, admissible. The jury learns about everything he’s ever been convicted of before. So normally, you just can’t put your client on the witness stand because this would happen. It would be a train wreck for your defense.

We don’t have that risk with Kyle because, well, he doesn’t have a criminal background, nothing meaningful. I guess he drove with a suspended driver’s license or something like that, but nothing that would be really meaningful to this case.

So we don’t have that particular risk, but there’s two other risks that you always have no matter how clean your client is. And we certainly had those risks with Kyle.

One is that the prosecutor will be sarcastic and snide and basically goad your client into some kind of outburst, particularly an angry outburst in this case. And that would be very bad because it would suggest, of course, your client’s not in control of his emotions, tends to get angry. And that would be not so consistent with discriminating self-defense, reasonable self-defense.

The other risk that you have is when the prosecutor is working through the trial, he knows already what his closing argument is going to look like. He’s got it kind of framed, like a house might be framed, but not quite finished. And what he’s looking to do through the course of the trial, through his state’s witnesses and defense witnesses as well, is to have brought into evidence in front of the jury the building blocks he needs to complete that framed structure.

So he’s looking for specific words to be said, specific phrases to be used, because he’s going to repeat those in his closing argument. So he’s not just asking questions for like generalized information. If he’s good, he’s crafting his questions in such a way that the answers will be those building blocks that he needs.

And unfortunately, the witness—not being a legal expert and legal professional—doesn’t know when the words they’re saying are innocuous or when they’re going to be catastrophic. And that’s especially true for the defendant himself. He’s asked questions, he says words in response, and he may not know that those particular words he just said are, in fact, going to be critical components in the prosecutor’s closing argument, which is what happens here.

Now, I think Kyle did a fine job. I don’t think he really harmed himself. I think he came across as credible, as honest, as basically an 18-year-old kid who just had to defend himself because he really thought he was going to die otherwise. But you don’t know that going in. You don’t know how your client’s going to perform. Once they’re in that seat, they’re in that seat until the prosecutor’s done with them. And this prosecutor had Kyle under cross-examination for over three hours.

So I think it worked out OK. I’m not sure the juice was worth the squeeze. I’m not sure what they got out of that. I think it was worth the actual experience, but you don’t know what the actual experience is going to be going in. So I’m not sure it was worth the risk, the potential bad experience, that snatching of defeat from the jaws of victory. But in the end, it worked out OK, I think. So you can say in hindsight, I guess it was an OK decision. It always makes me really nervous. I can tell you that.

Blair: I think that that’s actually a really interesting point, to note that witnesses in this trial. Maybe this is just me as more of a layperson noticing this, but witnesses seem to be really essential in this trial. It was less evidence-based and more, at least in my mind, the witnesses were sort of a bigger part. Some of the bombshell moments that we had were Grosskreets and Richard McGinnis, who seemed to benefit the defense more than the prosecution with their testimony. How did the role of testimony affect this trial more so than maybe other trials?

Branca: Well, it was interesting. So there was McGinnis and Grosskreets in particular provided good first-person testimony, things they observed that were independent of video. Ryan Balch also provided important testimony when he testified and so did JoAnn Fiedler when they testified about the death threats by [Joseph] Rosenbaum against Kyle or in Kyle’s presence, respectively.

But a lot of the testimony was actually not really testimonial in nature. It was validating the videos that the state wanted to introduce because you can’t just show a video to a jury. … A human video can’t testify. Somebody has to come in and look at that video and be able to tell the jury, “This is a fair and accurate representation of what was happening there.” So a lot of these witnesses were actually there just to provide that evidentiary foundation for the video. And then, the video effectively provides its own testimony.

Blair: Interesting. One of the things that I also wanted to hit on briefly was there are some people that are claiming that since Rittenhouse crossed state lines, he’s not from Wisconsin. He doesn’t live in Kenosha. He left and he went to Kenosha. That means that there are legal implications for what he did. Is there any validity to these claims that since he crossed state lines to get to Kenosha, there’s something he needs to suffer for this, or there’s a legal implication for it?

Branca: There’s no legal implication. There’s just rhetorical implications. It’s part of the narrative the prosecution’s been building about how we are Kenosha, this is our community, a terrible thing happened, but what we didn’t need was outsiders coming in. We did not need chaos, tourists coming to our city to make things worse—which is, of course, how he’s trying to characterize, how he explicitly has characterized Kyle Rittenhouse, as a chaos tourist who came to Kenosha, walked around with a rifle. What did he think was going to happen in the midst of all that chaos, but a high probability that he was going to have to use force against someone?

Or alternatively that he’s an active shooter who actually wanted to use force. And that was his mission the entire time. I’ve never seen an active shooter clean graffiti off a school building before going on the rampage, but that’s the narrative the prosecutor’s been trying to tell here.

And a lot of this is misinformation that he’s phrased things in such a way that it made the information misinformation, disinformation amenable to the media to repeat.

Like this narrative of he crossed state lines, as if he crossed state lines with the gun, for example. Well, that didn’t happen. The gun was never in Illinois. He crossed state lines, as if that was somehow unusual or abhorrent.

I mean, if you’ve ever lived on/near the border of a state, crossing the state line is routine. You go there shopping, whatever. And in this particular case, Kenosha was a good part of Kyle’s sense of community. He worked there, his father lived there, his grandmother lived there. He went there all the time. So to say he was an outsider, they make it sound like he was from some foreign nation, like he came from Canada or something. He only lived about 10 minutes outside of the city and was in the city routinely all the time.

Frankly, I think the defense could have done a better job on that. I mean, they mention the things I just said in their closing, but I would’ve been a lot more forceful about it because my concern would be that the jury might buy into this prosecution idea that Kyle was some outsider who was just a chaos tourist.

I mean, one of the risks you have here is the defense. They really had no evidence contrary to self-defense. Their evidence in favor of provocation was, frankly, I would say laughable, but you have to be concerned that your client may end up getting convicted just for rhetorical reasons. That there’s some general sense that he was a bad actor, that he came here when he didn’t need to.

There was a curfew. He broke that. He was walking around with the gun, and walking around with the gun was perfectly legal for him. I mean, that’s why the gun charge was ultimately dismissed. Should have been dismissed a year ago, 14 months ago, but it was dismissed before the jury went into the deliberations.

So there’s nothing actually unlawful the prosecution can point at, but if they have enough stuff to talk about that they can characterize as somehow him being a bad actor, you may find your client convicted, especially of one of the lesser included charges, simply because the jury’s developed a bad feeling about him, even though no particular crime has been proven beyond a reasonable doubt.

Blair: As we begin to wrap-up, I want to kind of wrap-up with that idea that there’s this kind of presupposed notion about who Kyle Rittenhouse is. Obviously, this trial has garnered massive attention nationally. This is something that everybody at the water cooler is able to talk about, the Kyle Rittenhouse trial. Do you think that the verdict and the trial itself could then have any long-term implications for self-defense cases as a whole or other areas of the law? And then what do you think about the fact that this trial has been aired on TV? Does that contribute to maybe these long-term implications that we’re looking at?

Branca: Well, I don’t think it has any technical, legal implications. Self-defense law in America’s pretty good. I have to say, if it’s applied in a fair and impartial way, it’s pretty good. The trouble is we run into these cases where the process is being used as the punishment.

So even where a prosecutor knows he’s got virtually no possibility of disproving self-defense, especially not disproving it beyond a reasonable doubt, which is his burden to carry, they’ll bring the case anyway, and they’ll lose at trial.

But meanwhile, the clients—look, anytime you’re in front of a jury as a defendant, there’s a 10% chance you go to prison. I don’t care how innocent you are. That’s just part of the noise in the system. Innocent people get convicted. That’s why we’re supposed to have gates and thresholds to prevent obviously innocent people from being put at that risk of wrongful conviction in the first place.

Plus the cost is staggering. I mean, if you’ve shot someone in self-defense and they’ve died and they decide to prosecute you after the fact, and you’re facing a murder or manslaughter charge, it’s easy to burn through $200,000 before you even get to trial.

So imagine if you don’t have that kind of money sitting around—you’re selling your home, you’re selling your business, you’re cashing out your kids’ college funds to scrape together whatever money you need to scrape together so you don’t spend the rest of your life living in a cage.

And that’s punishment, even if you are ultimately acquitted, unanimously, by a jury. And then just imagine, heaven forbid, you have a mistrial without prejudice and the prosecutor puts you through it all again.

Blair: That just sounds absolutely horrific. If people want to read more of your commentary on the trial or more of your work in general, where should they go?

Branca: Best place to go is simply our website, lawofselfdefense.com.

Blair: Excellent. Well, that was Andrew Branca, an attorney and author of “The Law of Self Defense,” who has been closely tracking and writing on the Kyle Rittenhouse trial. Andrew, really appreciate your time. Thank you so much for joining us.

Branca: My pleasure. Thanks for having me.

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