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Prosecution Cross-Examines Kyle Rittenhouse In Homicide Trial. Aired 12:30-1p ET
Aired November 10, 2021 - 12:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THOMAS BINGER, ASSISTANT DISTRICT ATTORNEY: He is threatening to use that gun to protect property. It goes.
JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: He have the gun with him.
BINGER: Your Honor, he is saying he wished he did so he could shoot people.
SCHROEDER: You know, there's a lot of difference between commenting about something when you haven't got a gun and threatening someone you when you do.
BINGER: You know, it's interesting, Your Honor, because the entire defense theory in this case is Joseph Rosenbaum, who was unarmed.
SCHROEDER: -- tell me what the defense theory of the case is. I want look, look --
BINGER: May I may respond to what you just said, Your Honor. I'd like to respond to what you just said.
UNIDENTIFIED FEMALE: Can you go down, please.
BINGER: I apologize, Madam Court Reporter but I'd like to try and make a record without anyone interrupting me if that's OK. I believe that there is a central part of this case that Mr. Rosenbaum is making threats that he has no ability to carry out. So to your point, Your Honor, you're arguing that this August 10th incident, one aspect of why you don't believe it's relevant is the defendant didn't have the gun with him.
This case is about someone who didn't have a weapon. And yet the jury is being told because of those threats. That means the defendant has to defend himself. So with all due respect, Your Honor, mere verbal threats have already been shown to this jury and used as a basis for someone subsequent actions. I am attempting with the defendant to use his mere verbal threat on August 10th, 15 days prior that he's going to shoot shoplifters with his AR-15 to impeach the defendant in a murder trial.
I would ask the court's forbearance to do that. I apologize, Your Honor. You're right. I probably should have brought this to your attention earlier. I may have misunderstood your ruling, because I thought your ruling was if the evidence in this case made that more relevant, you would admit it or at least considered its admittance.
I believe, based on the evidence that we've heard and more specifically, exactly what the defendants said earlier, about admitting pointing a gun at someone who was merely jumping or sitting on a car, that the door is open now to this testimony.
And I continue to believe that his state of mind his intent, his belief is to self-defense is the core of this case. That was the basis for my motion. You were strongly inclined against it. I understand that. But now we're in the middle of trial. And there's been a lot of evidence that's come in that I think makes this relevant. So I'm attempting to impeach the defendant on his beliefs. I believe I'm entitled to impeach the defendant on his beliefs and his statements.
SCHROEDER: I'm going to interrupt you now because you're talking about his beliefs. I think that's what they call --
BINGER: His statements too, Your honor, because he just said, can't use deadly force, can't threaten to use deadly force to protect property. So now I'm impeaching him on that.
MARK RICHARDS, KYLE RITTENHOUSE'S ATTORNEY: Your Honor, what's -- the court has seen no reason to change its ruling. And just so this record is clear in spite of the lengthy statement by Mr. Binger, before we started today, the court specifically stated in Mr. Binger's presence, there's been nothing to have me change any of my rulings. There have been numerous occasions during this trial, where they've opened the door the one time when they're going into Mr. Rosenbaum prior, the reason he doesn't like guns.
And I said something I whispered in Mr. Kraus is here. It's because of the prior convictions, please stop. And he did. He knows if you're going to go into something that's been excluded in a pretrial order. You better ask the court, you better get permission. This is ridiculous.
BINGER: It wasn't excluded, Your Honor.
SCHROEDER: You know why it was excluded in the first place, because it's -- it was propensity evidence. That is exactly what 90404 is designed to prevent. You're talking about his attitudes. His attitude is he wants to shoot people. Now, I've admitted that kind of evidence and other trials when it's been appropriate. I didn't admitted in this case, because to me, what I've heard in this trial, and by the way, Mr. Richards absolutely correctly points out that just hours ago, I said, I had heard nothing in this trial to change any of my rulings. So why -- pardon me.
RICHARDS: That was before --
SCHROEDER: Don't get brazen with me. You knew very well, you know very well that attorney can't go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. So don't give me that. That's number one. Number two, this is propensity evidence. I said at the time that I made by ruling, and I'll repeat again now for you.
I assume no similarity between talking about wishing your head your AR gun which you don't have, so that you could take rush -- fire rounds at these thought to be shoplifters and the incidence in these cases which are not -- there's nothing in your case that suggests the defendant was lying in wait to shoot at somebody or reflecting upon the shooting for vast amount of time.
Every one of the incidents involves matters that involve seconds in time. So I don't -- I comment at the time, I don't see the similarity. And I don't see the similarity now. If it's not similar, that's the whole rule. Those are all the exceptions to 90404. Check the authorities with more than evidence. Judge Weinstein, Colonel McCormick, it's the credit -- the higher act has to bear the signature of the accused, or it has to be so similar as to suggest it's a common plan or something like that.
You have an incident where he's making comments about some lead shoplifters versus it -- crimes that involve instantaneous actions whether premeditated murder or whether self-defense, that's for the jury to decide. But I don't see the similarity. I said it couldn't come in. And it isn't coming in, no matter what you think.
Number two, I have to be concerned that with what Mr. Richards has said about the progress of the trial, and when you were way, well, I said you were over the line close to or over the line on commenting on the defendants pretrial silence, which is a well-known rule. I'm astonished that that would have been an issue. So I don't want to have another issue as long as this case continues. Is that clear?
UNIDENTIFIED MALE: It is.
SCHROEDER: Thank you. May I ask the jury come vacant, please.
JOHN KING, CNN HOST: Lockable tongue lashing. The judge lashing out, Circuit Judge Bruce Schroeder lashing out at the prosecutor Thomas Binger, about his conduct for bringing in the line of questioning the judge says had been clearly prohibited in previous court proceedings. Again, Paul Callen and Elliot Williams are with me, our legal analysts.
Paul, I want to get to you. Number one, there's the drama of that. You're the prosecutor and you are getting tongue lashed by the judge in the case, saying you have on two different issues cross the line in his case. And then you have the substance of it, the prosecutor trying to get in testimony that the judge simply says no, I told you before trial, it was out of bounds and it stays out of bounds.
PAUL CALLAN, CNN LEGAL ANALYST: You try very hard, John, not to make the judge your enemy when you're trying a criminal case. And boy, this prosecutor seems to have made an enemy of the judge. The judge is citing rule 90404 of the Wisconsin code that says criminal propensity or committing crimes similar to the crime that a defendant is on trial for cannot be introduced in evidence even when a defendant takes the stand. And that's an important principle legally. So that's what he's chastising the prosecutor about, he shouldn't have gone into that issue of using deadly physical force.
KING: Let's go back into the courtroom now. Again, the prosecution cross examination of Mr. Rittenhouse.
BINGER: I want to turn your attention to the day of August 25th, 2020.
KYLE RITTENHOUSE, ALLEGED SHOOTER: OK.
BINGER: You had spent the night at Dominic Black's house, is that right?
BINGER: And you indicated that you had worked at the RecPlex the night before is that right?
RITTENHOUSE: The 24th, correct.
BINGER: OK. And you worked until about 7:00 p.m.
RITTENHOUSE: I couldn't give you exact time. But I'd say I got off from between 6:00 and 7:00. I don't recall. It's been a while.
BINGER: And then you drove your car over to Dominic's house.
BINGER: OK. So the rest of the time it seems like you're being driven around in Mr. Black's car. Is that fair to say?
BINGER: Why did you guys use his instead of yours if you know?
RITTENHOUSE: At the time, I didn't have a driver's license. And I would drive just to get to work and sometimes to go to Dominic's dad's house.
BINGER: So even though you didn't have a driver's license, you drove from your home in Antioch to the RecPlex to work that day?
RITTENHOUSE: Yes, to be able to get to work.
BINGER: And then after work you drove without a driver's license to Dominic Black's house.
BINGER: So I assume them on the week prior to that when you drive yourself to work that was also without a driver's license?
UNIDENTIFIED MALE: Your Honor, objection to this. BINGER: I'll move on. So you drove to Mr. Black's house. You left your car there.
BINGER: And you spent the night at his house?
BINGER: And then the next day you guys woke up at some point and came down to Ruther. Is that right?
RITTENHOUSE: We spent the night at his house and had dinner, woke up in the morning, have breakfast. We're going through social -- we're -- I was on social media when we saw the damage. And we saw the car, sir. So we decided to go downtown.
BINGER: And you came down and Dominic's car.
BINGER: And you said that there was a time in which you were cleaning graffiti at Ruther.
BINGER: And then at some point, I believe you said, and I want to make sure I'm understanding the timeline here, that you went to one of the car sources and encounter the owners, Sam or Sal or whoever they are, correct?
BINGER: Which of the car source locations was that?
RITTENHOUSE: It was the car source right here.
BINGER: And that's the one at the north east corner of 59th and Sheridan
BINGER: And that's the one that had gotten totally burned out on one of the previous nights.
RITTENHOUSE: Yes, that was the one where everything was destroyed. The other car sources still had cars there so.
BINGER: Now before that, had you ever worked at car source before?
RITTENHOUSE: I have not.
BINGER: Had you ever bought a car there before?
RITTENHOUSE: I have not.
BINGER: Had you ever even heard of car source before all that?
BINGER: Through Dominic?
RITTENHOUSE: Well, no. I would drive past it on a daily basis. I was in Kenosha almost every day. And I drive down Sheridan road almost every day.
BINGER: OK. So you saw the business along with churches and the ultimate gas station and the courthouse and everything else in that area?
BINGER: OK. And you talk to these owners, yourself?
RITTENHOUSE: Me and Dominic did.
BINGER: OK. And did they ask you to come protect the property?
RITTENHOUSE: They didn't ask me.
RITTENHOUSE: They didn't ask me directly. They asked Nick Smith.
BINGER: OK. And was Nick Smith around for that at that moment?
RITTENHOUSE: He wasn't there with me and Dominic, were talking to them.
BINGER: Did you ever personally witness any of these car source folks, Sal or Sam, or any of the folks that were running that business? Did you ever personally ask -- witness them ask Nick Smith to guard any of the properties?
BINGER: Did you ever witness any of them ask anyone to guard any of their properties?
RITTENHOUSE: Not that I can recall.
BINGER: What time if you recall, did you find out that they'd asked Nick Smith?
RITTENHOUSE: I believe I said in my drug examination between 3:15 and 3:30.
BINGER: And that was shortly after you had sent a text to Sam, right?
BINGER: And you texted him and asked him if you could protect his business that night, correct?
RITTENHOUSE: I did.
BINGER: And in that text, you said I'm more than willing and will be armed, correct?
BINGER: You meant, you'd be armed with your AR-15?
BINGER: And you said that me and my brother would both be there armed, correct?
BINGER: By your brother, you meant Dominic?
BINGER: He's now obviously not legally your brother?
BINGER: And you said in the text, I just need address. Do you recall that?
BINGER: Why didn't you need the address of a location you've already been to?
RITTENHOUSE: I just wanted to like pinpoint it and on the Google Maps because GPS because you know with all the roads were closed down in Kenosha, I just want to know the best route to drive there with Dominic.
BINGER: But you just told us that you drove past here every day up and down Sheridan, why did you need GPS to help you find a place that you drive past every day?
RITTENHOUSE: The roads weren't closed when I drove past them every day.
BINGER: But you still knew where you were going?
RITTENHOUSE: Sort of but with like the back roads.
BINGER: OK, so let's talk about the roads being closed. What do you mean by that?
RITTENHOUSE: Well, Sheridan road was closed often, I'm trying to remember I don't think, there are a lot of roads closed off. I couldn't tell you exactly their names right now.
BINGER: Was that because there was construction going on?
RITTENHOUSE: No, they're closed off because of the riots.
BINGER: They were closed off to keep people out of the area, right?
BINGER: And you knew there was a curfew that night, right?
RITTENHOUSE: I believe I got I got an emergency alert text at around 8:00 p.m.
BINGER: Just like everybody else saying, stay off the streets.
UNIDENTIFIED FEMALE: I'm sorry, I couldn't hear that.
UNIDENTIFIED MALE: Objection. There's no curfew charge.
BINGER: It's still relevant to his decision making. Just like everybody else. You got a message saying get off the streets at 8 o'clock that night, right?
BINGER: And despite that message, you came down, correct?
RITTENHOUSE: I was already in Kenosha downtown when I got that message.
BINGER: Once you got that message, you didn't decide, I'm going to leave and go home like I'm supposed to, correct?
RITTENHOUSE: I stayed at the car source.
BINGER: And you knew that there was this curfew in place that meant you shouldn't be there anymore, correct?
RITTENHOUSE: There, I'd say hundreds, if not thousands of other people there that night that also got the same message.
BINGER: So if they're all breaking the law, you can too?
RITTENHOUSE: I was -- I don't think the curfew was really being enforced.
BINGER: So if a law is not being enforced, you can disregard it?
BINGER: You said that there was a time in which Nick Smith asked you guys to drive him down to Chicago?
BINGER: To buy a piece of body armor?
BINGER: Down by O'Hare.
BINGER: And you guys were willing to do that at first?
RITTENHOUSE: Dominic was willing to do it. It was more of Dominic's thing, because Nick Smith was going to give up that, there on like 20 bucks to Dominic money, bought it for like gas.
BINGER: So Nick Smith was going to pay $20 for the gas to drive down to O'Hare where Nick Smith was planning on buying this body armor.
BINGER: And he needed that body or the idea was the body armor would be used that night, correct?
RITTENHOUSE: I believe so.
BINGER: That's why there was some urgency about going down right away, right?
BINGER: This was part of the plan to come down, down to downtown that night, right?
RITTENHOUSE: He wanted to go to O'Hare to buy the body armor, so yes.
BINGER: Do you understand my question?
RITTENHOUSE: Can you rephrase it?
BINGER: Sure, absolutely. The urgency to get that body armor that day was because he needed it for that night, right?
RITTENHOUSE: I wouldn't say he needed it. But he wanted it.
BINGER: And instead of making the drive, you gave that body -- your own body armor to Nicholas Smith?
BINGER: You had it along with you?
BINGER: You brought it along with you that day because you thought you might need it yourself that night, correct?
RITTENHOUSE: No, I kept it in my trunk of the car. I always had it.
BINGER: You drive around with body armor in the trunk of your car regularly?
RITTENHOUSE: Well, it's just in the back of my trunk. I never really took it out.
BINGER: And you said at some point that day you went to Dolinsky (ph) so that's the hunting goods fishing store out on Highway 31 and 52nd Street to buy a couple of slings, is that right?
RITTENHOUSE: That's correct.
BINGER: And this was one sling for you and one for Dominic, right?
BINGER: And you bought two of the identical type of sling, correct?
RITTENHOUSE: Yes. The cheapest ones they had.
BINGER: And that's a single point sling, meaning it attaches to the gun in one location, correct?
BINGER: And then it wraps around your body, correct?
BINGER: And it's designed to help you retain possession of that weapon, correct?
RITTENHOUSE: You probably know more about them than I do. I just got it to hold the rifle. So when I'm doing medical aid, I don't have to sit on the ground and have to worry about it being stolen.
BINGER: Because you realize that you couldn't have that gun on you while you're doing any sort of medical aid, correct?
RITTENHOUSE: I realized -- I knew that I couldn't without a sling have it on me. That's why I got the sling so I could have my hands free.
BINGER: But even when you have the sling, there was a time in which you took off your entire gun apparatus and handed it to Joanne Fiedler because it was in the way of you trying to treat someone, right?
RITTENHOUSE: At that instance, yes, because it was hitting the ground. The rifle was hitting the ground. When I bought it, that was the purpose of it. I don't think it really worked now that I think of it.
BINGER: This big long AR-15 really got in the way whenever you tried to help someone, right?
BINGER: If you had a handgun, for example, you could have been, it would physically more easy for you to try and treat someone, fair?
RITTENHOUSE: If I could have legally carried a handgun I would have carried a handgun instead of a pistol, I mean instead of a rifle.
BINGER: You grab some medical supplies from Dominic Black's house before you came downtown that night, correct?
RITTENHOUSE: I grabbed extra gauze but that's about it.
BINGER: You testified earlier that your AR-15 was loaded with 30 rounds of ammunition is that right?
BINGER: Where did that ammunition come from?
RITTENHOUSE: That was from our last trip up north from May the time we took it up north.
BINGER: So when the gun was left at Dominic Black's house it had that ammunition with it?
RITTENHOUSE: Yes, the ammo was in a box or a magazine, I don't really know.
BINGER: When you were at Dominic Black's house on August 25th, you found your that AR-15 downstairs in his basement, correct?
BINGER: Where did you find it at?
RITTENHOUSE: It was downstairs in the basement. But I was told by Dominic Black, hey, go downstairs, grab that rifle -- grab your rifle.
BINGER: So you knew up until that point that that rifle was being stored in a gun safe in the garage, correct?
BINGER: And you didn't have the code or any access to that gun safe, correct?
RITTENHOUSE: I did not.
BINGER: It just happened that on this particular day, Dominic Black's stepfather had moved that gun into the house, correct?
BINGER: You didn't know that before him?
RITTENHOUSE: I did not.
BINGER: You didn't know that had been taken out of the safe?
RITTENHOUSE: No. BINGER: And so you went downstairs and grabbed it.
RITTENHOUSE: After instructed to do so by Dominic, I did.
BINGER: And it had that magazine?
RITTENHOUSE: After I was instructed to do so. After I was instructed to do so by Dominic, I did go downstairs and grab it.
BINGER: And it had the magazine already inserted in the rifle.
RITTENHOUSE: It did.
BINGER: And the magazine was already loaded with 30 rounds.
RITTENHOUSE: I believe.
BINGER: So when did you chamber around?
RITTENHOUSE: I don't know if I ever did.
BINGER: Where you had to, to fire the gun, right?
RITTENHOUSE: Yes, I think it was already chambered when I got it. I -- that's what I remember. I don't remember racking it at all that night.
BINGER: Because the way this type of gun works is that you have to have a magazine with ammo in it. You have to insert the magazine into the gun and then you have to rack it to load one of those rounds into the chamber, correct?
BINGER: And you were familiar with how to do all that, correct?
BINGER: And it can't discharge a bullet unless a bullet is wrapped into the chamber, correct?
BINGER: And so your testimony here, as best you can recall is that you never had to do the initial racking because the bullet was already in the chamber when you took possession of it that day?
RITTENHOUSE: Yes, I believe so. I believe that it was already racked.
BINGER: And the ammunition that was in that was full metal jacket ammunition, correct.
RITTENHOUSE: 223 full metal jacket.
BINGER: 223 being the caliber.
RITTENHOUSE: Yes. BINGER: And full metal jacket being the type of casing, correct?
RITTENHOUSE: Yes. Full metal jacket is the bullet type.
BINGER: The bullet type. OK. I apologize. And you're aware there are different types of bullets like hollow point bullets, correct?
RITTENHOUSE: Yes. Yes.
BINGER: And when you were in the process of purchasing this gun, well, let me back up for a second. You said that the 30 rounds of ammo were leftover from previous. I assume you mean when you were up in Lady Smith.
BINGER: And you were practicing with the gun up there?
BINGER: And they -- Dominic Black's family has some sort of firing range or shooting range up there. Is that right?
RITTENHOUSE: They have gravel pit where it's safe to shoot.
BINGER: And you and Dominic would practice with your AR-15 shooting at targets in that gravel pit, correct?
BINGER: And you would shoot at targets as far as, what, 75 yards away?
BINGER: How close were the targets?
RITTENHOUSE: I was about, I was about I think the furthest I ever got was maybe from me to the T.V.
BINGER: You didn't shoot any targets farther away than that?
BINGER: Dominic Black testified that he shot at targets 75 yards away. Did you see him do that?
RITTENHOUSE: I didn't it. But I don't know what Dominic Black saw or what Dominic Black was shooting at. I wasn't with him when he did that.
BINGER: You're aware of the fact that the AR-15 was capable of hitting targets much further away than you would the T.V., correct?
RITTENHOUSE: I believe so.
BINGER: Did you know the capabilities of your own weapon? RITTENHOUSE: I knew that it could shoot and I believe from a distance I don't know how far I'm not an expert on AR-15s.
BINGER: Did you personally purchase that 223 full metal jacket ammunition?
RITTENHOUSE: I did not.
BINGER: Who did?
RITTENHOUSE: Dominic did.
BINGER: Did you ask him to purchase it?
RITTENHOUSE: I did not.
BINGER: So you didn't know what type of ammo was in that gun, is that right?
RITTENHOUSE: I knew they were 223 full metal jacket, the first time I shot it I had to load it into the magazine.
BINGER: So you knew the type of round but you didn't know what those rounds were capable of doing, is that fair to say?
RITTENHOUSE: Believe a bullet to bullet.
BINGER: As you sit here today, you know that there are different types of bullets, right?
BINGER: You know that hollow point bullets, for example, do different things to a animal or human than full metal jacket bullets, correct?
RITTENHOUSE: Yes. Full metal jacket is a, like a defense round, like another type of defense round. I know people use full metal jacket for hunting. And hollow point is something that causes more damage.
BINGER: Hollow point bullets are designed to hit the animal that they're being shot at, let's say a deer for example, and explode inside that body, correct?
RITTENHOUSE: No, I don't think so.
SCHROEDER: When you say explode, are you saying expand or explode because there are such things as exploding bullets?
BINGER: Sure. Let me let me rephrase. Mr. Rittenhouse, what is your understanding of what a hollow point bullet would do if it were shot at say a dear?
RITTENHOUSE: I don't think people use hollow point. BINGER: That wasn't my question, sir. What is your understanding of what that bullet would do? Let me let me rephrase it then. Because you're aware that people use hollow point bullets in their pistols to defend themselves against other people, correct?
BINGER: Ryan Balch for example testified in this trial that he was carrying a pistol loaded with hollow point ammunition for self- defense. Do you remember that testimony?
RITTENHOUSE: I do.
BINGER: So what is your understanding if you have one as to what hollow point ammunition would do to a human?
RITTENHOUSE: I believe it would do the same thing as any other bullet. Like I said, bullet is a bullet. I just believe hallow points -- I'm sorry, I don't know much about ammo. I'm trying to think of what I remember, but I just don't know much about ammo.
BINGER: So you didn't know the difference between what a full metal jacket bullet would do versus a hollow point, right?
RITTENHOUSE: I believe a hollow point from -- I just don't know much about this. I believe a hollow point would cause more damage.
BINGER: To the first target. But it wouldn't continue through to any other targets, right?
RITTENHOUSE: I don't know the answer to that.
BINGER: Whereas the full metal jacket bullet is specifically designed to continue through its first target and keep flying, correct?
SCHROEDER: I -- you know, first of all the hallow point is not guaranteed to stay in the first object struck, which is so what you said was not correct. Secondly --
BINGER: There's no testimony on that, Your Honor.
SCHROEDER: No, but you've been testifying and that's what mister, that's what meant to we're going to take a break for lunch. Please don't talk about the case. Read watch. You're listening to the trial. We'll see you. Let's hope that about 12:05. Oh, I've got a couple of -- let's say 1 o'clock. I apologize for taking time away from you.
ANA CABRERA, CNN HOST: Hello, I'm Ana Cabrera in New York. Thank you for being with us. I want to go straight to Shimon Prokupecz who has been listening in with all of us as we've been riveted by the testimony of Kyle Rittenhouse, who took the stand in his own defense. He's been on the stand now for the past couple of hours as they take a lunch break, Shimon, fill us in on the key takeaways from first the defense questioning and now this cross examination.
SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Well, certainly what you heard from Kyle Rittenhouse in his direct testimony, talking about how he needed to defend himself using words like he was ambushed, using words like that he was cornered, saying that what one of the men who he shot Anthony Huber use his skateboard like a baseball bat. These are all very key words you can tell that he was well prepped by his attorneys and just talking about how he was trying to just defend himself.
At one point when a prosecutor was asking him a question. He said I did what I have to do to stop the person from attacking me, stop the threat. And this is what you heard from Kyle Rittenhouse testifying to. There's been other drama, though certainly out of the presence of the jury, the judge not happy with the prosecutor in this case. Making it very clear that some of the questions that he has been asking are out of line.