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Commentary: Prosecutor in Kyle Rittenhouse falsely implies that Rittenhouse 'chased' Joseph Rosenbaum, shot him in the back

Op-ed
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In an opening statement that would be surprising to anyone who watched the tragic, fatal shooting of Joseph Rosenbaum by Kyle Rittenhouse, Joseph Binger — the prosecutor in Rittenhouse's trial — strongly implied in his opening statement that Rittenhouse chased down and shot an unarmed Rosenbaum in the back, in spite of video footage that clearly showed Rosenbaum chasing after Rittenhouse when the fatal shots were fired. The prosecutor's irresponsible rhetoric will only serve to further unfairly poison the well of public opinion against Rittenhouse if he is eventually acquitted, and seemed carefully calculated to mislead the jury.

The prosecutor's statement was actually carefully worded to avoid making an overtly false statement. He opened his presentation by noting that Rittenhouse "shot and killed Joseph Rosenbaum, an unarmed man." No one disputes this, including Rittenhouse. His next sentence was, "The shot that killed Mr. Rosenbaum was a shot to the back." It is also apparently true from the medical examiner's report that the shot that was most directly responsible for Rosenbaum's death entered his back. The next sentence out of the prosecutor's mouth was, "This occurred after the defendant chased down Mr. Rosenbaum and confronted him While wielding that AR-15." This is, if completely unproven at this point, at least not a provable lie — there is evidence that Rittenhouse followed after Rosenbaum and the crowd Rosenbaum was with and certainly there seems to have been some sort of confrontation between them at some point prior to the shooting.

These three sentences, uttered together, were clearly designed to create the impression that Rittenhouse chased down and shot and unarmed person in the back. If you don't believe me, look at how the prosecutor's statement was reported by Eric Levenson of CNN, whose coverage was widely used and reprinted by numerous outlets: "Kenosha County Assistant District Attorney Thomas Binger delivered the prosecution's opening statement and said the evidence will show that Rittenhouse chased down Rosenbaum and shot him four times, including a fatal shot to the back."

Sounds like a clear case of premeditated murder, right? The only problem is that the video evidence shows that it clearly isn't true. Consistent with his ethical obligations as a prosecutor, the government's lawyer eventually laid out the facts that clearly showed that the implication that he was attempting to create was false.

Here is the sum total of the evidence offered by the prosecutor to prove that Rittenhouse "chased" down Rosenbaum, from the transcript of his opening remarks:

That block on the west side of Sheridan has a house right at the corner of 62nd and shared. And then on the south end of that block, the south half is the car source lot, you will hear testimony from someone from the FBI who was up in a plane that night taking video and we will show you the video. It is an infrared video which means it picks up heat. This is at nighttime. So regular cameras especially from an airplane aren't gonna be able to see everything. So the infrared helps us to see in the dark, the video picks up Mr. Rosenbaum, it is quite clear to see him because he is a white blob. Infrared picks up heat, he doesn't have his shirt on, so the cloth of a shirt would help conceal some of that heat, but when you don't have your shirt on that heat radiates in the infrared picks it up more clearly, so he's very easy to see in the video as a white dot, You see him running Towards the 63rd car source and behind him running in the same direction following him is the defense. As they get to the 63rd Street Car Source, there are some cars on the north side of that lot, Mr. Rosenbaum peels off behind those cars and the defendant stops on the other side of those cars and turn turns towards Mr. Rosenbaum. Now, obviously in an infrared video from a plane overhead, we don't know exactly what was going on at that very moment, we don't know what words were said, but what's clear is whatever that confrontation that was initiated by the defendant started it caused Mr. Rosenbaum to come around the cars and start running after the defendant.

In the first place, evidence that shows Rittenhouse running in the same direction following behind Rosenbaum is not evidence that shows Rittenhouse "chasing" Rosenbaum at all. It is evidence that shows him "following" Rosenbaum, or more precisely, following the large group of people Rosenbaum was with. As we know from numerous other videos taken that night, Rosenbaum was not running from anyone whatsoever, as the prosecutor admitted later in his statement, grudgingly noting, "And at various points the evidence will show that Mr. Rosenbaum is agitating, he is getting in people's faces, he is using obscenities, he is essentially daring people to respond. In fact, at Ultimate Gas. I believe the evidence will show that he actually gets right up in the face of armed people who are similarly armed as the defendant who have similar AR-15 type rifles on and he is literally confronting them in their faces." Bizarrely, the prosecutor uses this as evidence against Rittenhouse, noting that, "None of these other folks shoot him, they push him away."

It is abundantly clear from his demeanor throughout the entire night, including the moments immediately prior to his death, that Rosenbaum was not running from Rittenhouse. Rittenhouse may have been following Rosenbaum, but he was not chasing him. Second, if the prosecutor concedes that it is impossible to tell from an infrared camera what was going on or what words were said, how is it "clear" to him that Rittenhouse "initiated" the confrontation with Rosenbaum? It should seem a little bizarre to open a sentence with a frank admission that it's impossible to tell what is happening and follow that immediately with a declaration that it was clear that one of the white blobs in your plane video was responsible for initiating a confrontation.

But finally, as the prosecutor eventually gets around to admitting, after whatever was said between Rosenbaum and Rittenhouse in that parking lot, Rosenbaum is the one who started what could only be described as the first "chase" that happened that night, and it was him chasing after Rittenhouse.

As the prosecutor acknowledged, even though Rittenhouse was armed and Rosenbaum was not, he initially did not respond to being chased by Rosenbaum by shooting him, but rather he dropped the fire extinguisher he was holding at the time and ran away from Rosenbaum. As the prosecutor acknowledged, "at some point during that foot pursuit," (and it should again be noted here that this was a pursuit, but it was Rosenbaum pursuing Rittenhouse), " the defendant turns around, points the gun at Mr. Rosenbaum who puts his hands up in the air, remember he's got no shirt on, he's got his hands up in the air almost like, "what are you gonna do?" The defendant stops pointing at Mr. Rosenbaum [and] continues to run."

Now here is an admission of how things really played out — Rosenbaum chased after Rittenhouse, who did not initially shoot at him, but initially ran. He then stopped running and pointed the gun at Rosenbaum, again didn't shoot him, and again turned and ran. Only when Rosenbaum pursued him again and another gunshot was discharged nearby did Rittenhouse fire his first shots of the night.

And as for Rittenhouse shooting Rosenbaum in the back? Again, at the end, the prosecutor spells out the actual facts:

The defendant turns and fires four shots and Mr. Rosenbaum, you will hear the testimony from the Milwaukee County medical examiner Dr. Douglas Kelley that Mr. Rosenbaum suffered five wounds total from four bullets. Dr. Kelly will testify that the first two wounds that were inflicted upon Mr. Rosenbaum were to his lower extremities, we're not sure which order they were in, but one was to his right pelvis fracturing his pelvis and one was to his left lower thigh Dr. Kelly will testify that these wounds cause Mr. Rosenbaum to start falling face forward and you will see video of his body where it is found, he lands on his face face down on the ground as he's falling, falling, the defendant fires two more shots, one of them hits the defendant in the back. I'm sorry Mr. Rosenbaum in the back and that is the shot that kills Mr. Rosenbaum.

This is clearly a far cry from Rittenhouse chasing down and shooting an unarmed man in the back, which is the impression the prosecutor's initial words were intended to create. It is true that eventually the prosecutor got around to disclosing most of the actual facts of what happened that night, although it could certainly be argued that using the word "chased" with respect to Rittenhouse was an embellishment, at the very least. But good prosecutors are smart enough to understand that when people — including juries — are given a lengthy verbal presentation, they are disproportionately more likely to remember the first and last things you say than they are anything that comes in-between.

The prosecutor's words were clearly designed to create an impression that was false. And a prosecutor who is committed to the truth should have done better.

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