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Prosecution Cross-Examines Kyle Rittenhouse In Homicide Trial. Aired 3:30-4p ET
Aired November 10, 2021 - 15:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[15:30:00]
THOMAS BINGER, ASSISTANT DISTRICT ATTORNEY, KENOSHA COUNTY: Why didn't you go west over this way and go around?
KYLE RITTENHOUSE, ACCUSED OF MURDERING JOSEPH ROSENBAUM: I don't know I guess I -- it was very close in time that I was heading back, that I was turned on by the police before I got the phone call from Dominick Black. So, I guess I didn't have time to really think, like, which ways I can go around.
BINGER: You knew the layout of downtown Kenosha, right, because you said you drove that area the whole time, right?
RITTENHOUSE: A little bit.
BINGER: So, you go over to the Ultimate gas station, and you spend some time talking with folks that are there who are similarly dressed as you. They've got similar clothing, similar weapon, things like that, right?
RITTENHOUSE: Similar weapons, I wouldn't say similarly dressed.
BINGER: But you went over there because you felt that those were people doing something similar to what you were doing that night? Fair?
RITTENHOUSE: I thought that would be the safest spot for me to go.
BINGER: Why did you think you would be safe with those people?
RITTENHOUSE: Because I was alone, and they were, like I said, you're better in pairs. I didn't want to be alone in that situation.
BINGER: You didn't want to be alone out here with this crowd that we see on the screen right now, right?
RITTENHOUSE: I did not want to be alone with them.
BINGER: You wanted to be with the group at Ultimate Gas that had AR- 15s like you, right?
RITTENHOUSE: I wanted to be back at the Car Source where there weren't people around.
BINGER: Right. And we've talked about that, but initially, you go to Ultimate Gas.
RITTENHOUSE: To look for Ryan, yes.
BINGER: But you also talk to people who have AR-15s just like you, right?
RITTENHOUSE: I wouldn't say I talked to them. After the phone call, I asked a guy for a fire extinguisher and to come with me.
BINGER: Let's play exhibit number 11 at the 54 minute and 30 second mark.
BINGER: This is the Koerri Elijah live stream when he's in the Ultimate Gas lot.
Mr. Rittenhouse, that's Ryan Balch standing there in the Ultimate Gas lot, correct?
RITTENHOUSE: Yes.
BINGER: Let's play this video
(BEGIN VIDEO CLIP)
(INAUDIBLE)
(END VIDEO CLIP)]
BINGER: We just saw you run through this video, correct?
RITTENHOUSE: Yes.
BINGER: I started this video at the 54-minute and 30 second mark. It is now paused at the 54 minute and 56 second mark. So, for 26 seconds, Koerri Elijah has Ryan Balch on screen center of this video during that entire time, right?
RITTENHOUSE: Yes.
BINGER: And you run right past where Koerri Elijah is standing, right?
RITTENHOUSE: Yes.
BINGER: And Ryan Balch is loitering there in the middle of the screen for at least 26 seconds, right?
RITTENHOUSE: It's what it looks like on the screen.
BINGER: And your testimony is you were trying your best to find Ryan Balch at the Ultimate Gas station at this point because you needed him to protect you?
RITTENHOUSE: I was looking for Ryan Balch but I didn't notice him as I was running away -- not running away -- running towards Car Source 3.
BINGER: But for 26 seconds before you start running, he's standing right there, isn't he?
RITTENHOUSE: Yes, and I -- when he's standing right there before I run with the fire extinguisher, I'm over here on the phone with Dominick Black.
BINGER: How long was your phone call with Dominick Black?
RITTENHOUSE: About 30 seconds.
BINGER: And so, before that you had been looking for Ryan Balch?
[15:35:00]
RITTENHOUSE: Before that I tried to get back to the Car Source Lot Number 1.
BINGER: And you had also been looking for Ryan Balch?
RITTENHOUSE: Looking, yes, seeing if I could see him in the crowd of people.
BINGER: Because you wanted a partner, a buddy to protect you?
RITTENHOUSE: To protect each other, yes.
BINGER: And in fact, when you borrowed that fire extinguisher, you asked someone in that group to come along with you, right?
RITTENHOUSE: Yes.
BINGER: Because you wanted someone there to protect you when you go down and put out what you think are some fires, right?
RITTENHOUSE: Yes.
BINGER: Because you know that you're running into a crowd that is not friendly to you, right?
RITTENHOUSE: No.
BINGER: That's why you had to say the word friendly, friendly, friendly. Because you knew this was a crowd that would not see you as friendly, correct?
RITTENHOUSE: I screamed friendly, friendly, friendly because somebody screamed burn inside.
BINGER: I'm talking about when you crossed 60th. You yelled at them.
RITTENHOUSE: At that time, yes, but --
BINGER: No one in the crowd is yelling burn inside or anything along those lines, are they?
RITTENHOUSE: Not at that time. BINGER: And you also wanted someone from that group to come along with
you when you're going to go down and put out a fire because you knew full well that anyone running around like you putting fires out is going to cause a reaction in the crowd, a hostile reaction, correct?
RITTENHOUSE: I didn't think it would cause a negative reaction. I wanted somebody to come with me because you're better in pairs, and I thought there were other people at that Car Source before I got there.
BINGER: Well, Dominick, if you're telling us that Dominick Black called you to run three blocks down the road to put out a fire at the 63rd Street Car Source, then you must have known at that moment that there wasn't anyone else down there, right? Why would you need to go if somebody's already down there?
RITTENHOUSE: Mr. Black said to me on the phone, hey, they're setting fires at the other Car Source, I need you to get down there, put out the fires. It must not have -- I don't think it -- I took it as there's not other people down there.
BINGER: Why would you need to go three blocks down if there were already people there?
RITTENHOUSE: To help.
DEFENSE ATTORNEY FOR KYLE RITTENHOUSE: He's asking a question. This witness doesn't know the answer whether there are people there or not.
BINGER: He's told us he thought there were, so I'm probing the basis of that and his understanding at the time.
BRUCE SCHROEDER, JUDGE, KYLE RITTENHOUSE TRIAL: You can answer if you understand the question.
BINGER: I'll repeat the question. Why would you need to run three blocks down to the 63rd Car Source if you thought there were already people there?
RITTENHOUSE: I thought there were people there but Dominick asked me to go down there, I thought that was to help put out the fires that were down there.
BINGER: Your -- you -- this video that we're watching is minutes after you've left the 59th Street Car Source, right?
RITTENHOUSE: Yes.
BINGER: And when you leave the 59th Street Car Source, you're with Ryan Balch, and then this reporter, Richie McGinniss.
RITTENHOUSE: Yes
BINGER: And as far as you know when you leave 59th Street Car Source, everybody in your group is still back there, right?
RITTENHOUSE: At the Car Source? BINGER: At the 59th Street Car Source.
RITTENHOUSE: Yes.
BINGER: Everybody is still back there.
RITTENHOUSE: Yes.
BINGER: JoAnn Fiedler.
RITTENHOUSE: Yes.
BINGER: Dustin Collette, Dominick Black, Nick Smith, Jason Lackowski, anyone else, they're all still there, right?
RITTENHOUSE: At that location, yes.
BINGER: So, none of your group is already down at 63rd Street Car Source, right?
RITTENHOUSE: The other group that showed up after we got done taking the pictures, I think I said two or three vans, I believed they were still down there.
BINGER: And that was two or three vans of people that came out with what have been described as melee weapons, right, like bats and clubs, and things like that. First of all, do you recall that testimony?
RITTENHOUSE: I do.
BINGER: Do you remember seeing those two or three vans come to that location?
RITTENHOUSE: I do.
BINGER: Do you remember seeing people get out of those vans?
RITTENHOUSE: Yes, I saw -- I think there was six people in total.
BINGER: And you saw them with weapons?
RITTENHOUSE: I saw them with -- I saw them with rifles. I don't think I remember melee weapons.
BINGER: They were armed?
RITTENHOUSE: Yes.
BINGER: And you believed that they were going to be the ones protecting the 63rd Street Car Source, correct?
RITTENHOUSE: Yes.
BINGER: So, at this point in time in the evening had anybody told you that those folks had left the 63 Street Car Source?
RITTENHOUSE: No.
BINGER: So, when you're running with this fire extinguisher you think there's already a group that's designated to that spot that's still down there, right?
RITTENHOUSE: Yes.
[15:40:00]
BINGER: So again, why do you feel that you needed to run the three blocks down there with a fire extinguisher if you thought there were already people down there protecting that property?
RITTENHOUSE: Because I -- Dominick called me and asked me to go help put out the fires down there.
BINGER: And in that phone call, Dominick never told you that any of the members of the 59th Street group that you were part of, he never said any of them were down there at 63rd, right?
RITTENHOUSE: Yes.
BINGER: And he never told you that the group that was supposed to be down there, he never told you anything about them, whether they were there or not there, he never mentioned them, fair?
RITTENHOUSE: It didn't come up.
BINGER: And you asked the people that you got the fire extinguisher from to come with you, right?
RITTENHOUSE: Yes.
BINGER: You were looking for Ryan Balch for back up, right?
RITTENHOUSE: I was looking around for him, yes.
BINGER: You had already tried to go back to the 59th Street location, right?
RITTENHOUSE: Yes.
BINGER: And all of those failed.
RITTENHOUSE: Yes.
BINGER: So, then you decide to take it upon yourself to head down to 63rd Street to put out fires, fair?
RITTENHOUSE: I wouldn't say that. I would say I went to go put out the fires that I was there to do. When I say protect the property, I mean by like put out fires. So, I went to go put out the fires. I just believed there were people there.
BINGER: And you brought your AR-15 along.
RITTENHOUSE: Yes.
BINGER: Why?
RITTENHOUSE: Because it was with me already.
BINGER: Yes, but you'd taken it off earlier when you were treating someone, you gave it to JoAnn Fiedler, right?
RITTENHOUSE: Yes.
BINGER: So, you know how to take it off, don't you?
RITTENHOUSE: Yes.
BINGER: And you can make a choice on your own whether or not to go armed with it or whether to give it to the person who is the lawful owner of it on that date, Dominick Black, correct?
RITTENHOUSE: I didn't take my rifle off there because there was nobody, I could hand it to. And when I took it off to hand it to JoAnn Fiedler I was in a safe spot in the corner of the building where there were people protecting me at that time right there.
When I went to go to the Car Source Number Three to put out the fires, there was nobody I could hand my rifle to that could protect me while I'm providing first aid to somebody.
BINGER: But you still knew you had it.
RITTENHOUSE: My rifle, yes.
BINGER: You knew you had it strapped around your body.
RITTENHOUSE: Yes.
BINGER: And you made a conscious decision to bring it along, right?
RITTENHOUSE: Yes.
BINGER: Why?
DEFENSE ATTORNEY: He doesn't answer.
BINGER: He gave an answer about how he already had it.
JUDGE SCHROEDER: Did you hear the question?
RITTENHOUSE: I did. But I don't really understand what --
BINGER: Well, you -- was it simply that, well, I've already got it strapped on so I might as long bring it on, is that what you're telling us? You decided to bring along the AR-15 because, well, I've already got it. Is that your answer?
RITTENHOUSE: I don't think I was thinking like, hey, I'm going to take my rifle off. I wouldn't have because there was people around that could have stolen my gun and I didn't -- I didn't take my rifle off because I was going there alone. I was going to be running there alone. And I didn't take it off because no one else was there to protect me as I was going there. So that's why I brought it.
BINGER: For protection.
RITTENHOUSE: Yes.
BINGER: You brought it along down there because you felt like you would need to protect yourself against someone else harming you, correct?
RITTENHOUSE: If that would have happened, I would have protected myself, but I didn't think I was going to be attacked and ambushed.
BINGER: But you just said you had it for protection. What were you expecting you would need protection from?
CHIRAFISI: I thought we had covered much of this before.
BINGER: I'm specifically focusing in on the time period where he is heading down to the 63rd Street Car Source. I have not asked him about this yet, your honor.
JUDGE SCHROEDER: Well, go ahead. But you need to pick up the pace somewhat.
BINGER: When you decided to bring your AR-15 loaded with 30 rounds down to the 63rd Street Car Source location, what did you think you needed protection against?
RITTENHOUSE: I didn't really think I was going to have to protect myself.
BINGER: You told us just now you brought it along for protection.
RITTENHOUSE: I did, but I didn't think I was going to need to protect myself.
BINGER: You brought it along for protection but you didn't think you needed protection?
DEFENSE ATTORNEY: That's not what he said, objection.
BINGER: I'm trying to clarify the two different answers that I think he just gave, your honor.
JUDGE SCHROEDER: Well, go ahead, can you --
[15:45:00]
BINGER: Do you understand the question?
RITTENHOUSE: Not really.
BINGER: I asked you why you brought the gun. You said you needed it for protection, and I said protection against what, you said you didn't think you needed protection.
I'm confused, can you help me understand why you are telling us you needed a gun for protection but you didn't think you needed protection.
RITTENHOUSE: I brought the gun for my protection, but what I was saying was I didn't think I would have to use the gun and end up defending myself.
BINGER: So, you in this video are running.
RITTENHOUSE: Yes.
BINGER: You run across the screen. Yes?
RITTENHOUSE: Yes.
BINGER: And then I think you testified on direct that as you made it down the block, you -- I don't remember exactly how you phrased it -- but you stopped running and you walked for a little while. Is that right?
RITTENHOUSE: I jogged and walked occasionally.
BINGER: Carrying the fire extinguisher and your gun.
RITTENHOUSE: Yes.
BINGER: And you're alone at that point with no back up, right?
RITTENHOUSE: Yes.
BINGER: And you testified that when you got down to the 63rd Street Car Source, you indicated that you came upon that vehicle we have been calling the Duramax -- you know what vehicle I'm talking about?
RITTENHOUSE: I do.
BINGER: And you indicated that when you got there, you walked around that vehicle and you saw a person that you now know to be Joshua Ziminski, is that right?
RITTENHOUSE: I walked up to the Duramax, yes.
BINGER: You didn't know Joshua Ziminski's name at that point, correct?
RITTENHOUSE: No.
BINGER: You hadn't taken any notice of him at all up until that moment all night long, fair.
RITTENHOUSE: Fair.
BINGER: This is the first time that you see that this is a person that comes to your attention, fair.
RITTENHOUSE: Yes.
BINGER: And you said he had a gun in his hand.
RITTENHOUSE: Yes.
BINGER: And you put the fire extinguisher down on the ground.
RITTENHOUSE: I dropped the fire extinguisher.
BINGER: And then you hear or see Mr. Rosenbaum coming from behind you.
RITTENHOUSE: I -- when I get to the Duramax, I step forward, and then Mr. Ziminski turns towards me, and he steps towards me. I drop the fire extinguisher, step back, and that's when I see -- I go to run back towards 59th Street.
BINGER: And Mr. Rosenbaum is coming --
JUDGE SCHROEDER: Don't interrupt.
RITTENHOUSE: And then I -- that's when I notice Mr. Rosenbaum running at me leaving me with no other -- Mr. Ziminski in front of me with the gun, Mrs. Ziminski right there a couple of feet away, and then some other people there.
BINGER: And then the chase happens, is that fair to say?
RITTENHOUSE: Yes.
BINGER: Have you told us everything that you did when that situation just happened at the Duramax?
RITTENHOUSE: Yes.
BINGER: Can we play the iPad, please. The iPad with the drone video. This is exhibit number 73.
What are you guys going to do? Is it on this computer? OK.
BINGER: Mr. Rittenhouse, this is a video that has been admitted into evidence as exhibit number 73. This is a video taken by a drone that was hovering south of 63rd at the time that you shot Mr. Rosenbaum.
We're going to play the beginning of this video on the iPad, and I'm going to have Detective Howard use the pinch and zoom feature on the iPad to zoom in on the area.
CHIRAFISI: Your honor, I'm going to objects to this. And I'd like to be heard outside the presence of the jury.
JUDGE SCHROEDER: What do you think? Perfect time for a break, don't you think? Let's take a break. Please don't talk about the case during the break, read, watch or listen to any account of the trial.
ALISYN CAMEROTA, CNN HOST: OK, we've been listening to more than an hour there of the prosecutor questioning Kyle Rittenhouse. He seemed to be questioning him a lot about his thought process, why he did the things he did, brought the gun he did. Why he was in the positions that he was in, and it seemed like the judge was getting a little bit impatient with what I think he thought was some circular questions.
VICTOR BLACKWELL, CNN HOST: He was repetitive. There would be one line of questioning that went on for five or six or seven questions kind getting to the same thing and one hour and 17 minutes of questions since they brought the jury back in.
Let's bring in now CNN legal analyst and civil rights attorney Areva Martin, CNN legal analyst Joey Jackson and CNN senior legal analyst Elie Honig.
Elie, let me start with you. We've done this often enough where I know that you will say that juries like to be told a story. They need a narrative. What is the story in the last hour and 17 minutes that this prosecutor, Thomas Binger, is trying to tell this jury?
ELIE HONIG, CNN SENIOR LEGAL ANALYST: You read my mind, Victor. I asked the exact same question. So far, this is really a subpar cross- examination. The prosecution seems to be sort of picking at the margins but they're not going to the heart of the case here. What happened? And they may be getting there right now but what happened in those crucial moments, seconds right before Kyle Rittenhouse shot these people?
BLACKWELL: All right, I've got to interrupt you, we're going back into the courtroom. Things have resumed.
MARK RICHARDS, KYLE RITTENHOUSE'S LEAD DEFENSE ATTORNEY: iPads which are made by Apple have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms.
UNIDENTIFIED FEMALE: As in what?
RICHARDS: Logarithms, I don't understand it all either. And it uses artificial intelligence or their logarithms to create what they believe is happening. So, this isn't actually enhanced video, this is Apple's iPad programming creating what it thinks is there. Not what necessarily is there.
And I don't know what's going to happen, but we had this video enhanced. We had testimony regarding it, and this is one of the topics that came up. I asked my expert. I said do you know of anything that does something like that? Because that was when the Detective Ben Antaramian testified about pinching his telephone.
And that's what I was told. And that's what I think this is going and I don't think that it's appropriate. It's wrong.
JUDGE SCHROEDER: Mr. Binger?
BINGER: Your honor, I think everybody in this room has a smartphone, whether it's an Apple iPhone or some other device, and I think we've all taken a photograph or a video at one point or another and used the pinch to zoom-in feature. This is a common part of everyone's everyday life. In the olden days
you have photograph and a magnifying glass, right? That doesn't change the photograph. When you use a magnifying glass to look at words on a paper or a photograph, the magnifying glass doesn't change the image. It doesn't change the pixels on the paper. It doesn't change the words in the book. All it does is make them easier to see.
The pinch and zoom feature on the iPad or the iPhone or Android phone, whatever device everyone in this room has does that exact same thing.
Now if counsel has an expert who will say that this unreliable or distorting the image or something along those lines, even though this is something everybody in this room has done with countless videos and photos throughout the last ten years of our lives here, this is a feature of everyday life in America now with smartphones.
If they want to have an expert come in and say it's unreliable and you can't believe what's on that screen, they can do that. We're still in their case.
And then the jury can make a decision as to whether or not pinching and zooming on an iPad or iPhone is tampering with the video or altering the image or unreliable or shouldn't be given any weight.
So, if they want to make a jury question out of this, they are free to do so. We're still in their case in chief, but I don't, frankly, understand or agree with anything the counsel just said. I've used my phone. I think probably you have, too. I think this is something within everyone's common knowledge to pinch and zoom on a screen and that's what's going on here. It does not change the image in any way.
JUDGE SCHROEDER: You are saying -- well, I don't know. When I put the magnifying glass up, then it's enlarging the image. It is not altering the image.
[15:55:00]
What he is saying, and I think -- and I know less than anyone in the room here I'm sure about all of this stuff -- but I am hearing him to say that there are actually artificially inserting pixels into there, which is altering the object which is being portrayed.
And so, you know what, myself, when confronted with these changes in technology, what I usually do is to have -- to admit the evidence, but make sure that the finder of fact is aware of the fact that it is not the original image and the method by which it's been enhanced.
You're suggesting that I should make the defense bring in an expert for it. My thought would be that actually you're the one who is offering the exhibit so you should be in a position to offer evidence as to the fact that it is not distorting the object which is depicted.
RICHARDS: I would submit your honor that I think it's common sense to everyone in this room that that's not what's going on here and what counsel is saying about Apple's software and logarithms and things like that is not something that people in this room are familiar with. JUDGE SCHROEDER: I thought I heard the expert say on the stand,
believe me again, this is not something I'm familiar with, but I thought I heard the expert say that you brought down from the crime lab, that in fact, that there were alterations made by adding pixels. That's an alteration of the image.
So, I don't have any problem with it being received but you're going to have to have someone testify that it's a reliable -- I don't want to say mirror image, but -- because, obviously, if you insert more items into an area of space, it's going to distort what's depicted.
BINGER: I think, your honor, when the pinch and zoom maneuver is used on a screen, it actually -- it almost -- it takes the high resolution that we see here and it brings it into the point where the pixels are actually spread out more.
JUDGE SCHROEDER: You know what, I'm not going to accept as accurate what Richards is saying. And I'm not going to accept what you're telling me. I said if you can offer somebody who is knowledgeable in these areas, the document -- or I think you should be allowed to use the image, but this is high risk. And to me, if -- to me, if you insert more data into an area of space -- well, you're wagging your head no. Tell me where I'm wrong.
BINGER: There's no proof in this record that we're doing that, your honor.
JUDGE SCHROEDER: I didn't say there was proof of it. I said you have the burden of proof. You are the proponent of the exhibit and you need to tell me that it's reliable.
BINGER: The exhibit is already in evidence, your honor.
JUDGE SCHROEDER: That I know.
RICHARDS: The enhanced exhibit is not in evidence.
BINGER: This not enhancing.
JUDGE SCHROEDER: Well, if -- then why show it? I mean the reason you want to show is so because it enhances the image, right?
(INAUDIBLE)
JUDGE SCHROEDER: No, no, no, one at a time.
BINGER: I'll say what Mr. Chirafisi is saying, the defense has taken videos and photos and cropped them, zoomed in on them, on many exhibits in this trial. And this is, again, like I said, the magnifying glass is not changing the image. What the expert testified to about his software program was that he uses, I think he called it Amfar 5 or something look that. It was a software program he was using to create the additional images and exhibits that were introduced with regard to this drone video.
And he talked about what that software program does. He was not talking about the common ordinary everyday pinch and zoom feature on the Apple.
They are two different things, your honor. And I want to be precise about this because I don't think it's fair to equate the technical video editing software used by the crime lab with pinching and zooming on an iPhone. They are different software programs, different procedures. And I don't think it's fair to extrapolate this.
Every one of those jurors is familiar with this process. This is a fundamental part of our lives nowadays. It's much like a hundred years ago people used magnifying glasses. This is no different than that.
I think this is common knowledge, and I don't think I need any sort of expertise on this issue, if the defense wants to quibble with it, they have an expert who can offer testimony. But the exhibit is already in evidence. It would be --
JUDGE SCHROEDER: First off, for first off --
BINGER: A photograph of it and then holding up an enlargement. I mean we had a guy come in yesterday with Walgreens prints. I mean this is what is done with photographs all the time. There's enlargements done in a lab. It doesn't change the pixels.
JUDGE SCHROEDER: No, no, you know -- I don't want to hear about what happened earlier in the trial that came in without objection.
