Thomas Binger: (00:00)
Thank you judge. Good morning, ladies and gentlemen. I want to assure you that everything that the judge just read to you. You’ll get a copy out, so you’ll have a chance to look it over yourself. You don’t have to memorize everything he just told you. I think it’s no surprise that this is a case that there’s a lot of noise and a lot of static surrounding it. So what I’d like to do at the beginning is crystallize it in a nutshell for you, and keep it as simple as possible. This is a case in which a 17-year-old teenager killed two unarmed men and severely wounded a third person with an AR-15 that did not belong to him. This isn’t a situation where he was protecting his home or his family. He killed people after traveling here from Antioch, Illinois, and staying out after a citywide curfew.
Speaker 1: (00:52)
Your Honor, I’m going to object to… There’s no curfew charge anymore. There’s no gun charge.
Thomas Binger: (01:00)
Although he claimed-
Speaker 2: (01:01)
There’s no charge, but there has been some discussion about the lawfulness of the curfew. Not in this case, but elsewhere. But there had been a curfew announced. That does not mean that it was technically lawfully… Legal curfew, but there had been an announced curfew. So I’ll leave it at that.
Thomas Binger: (01:30)
And it was a curfew that all the rest of us here in Kenosha were aware of. And I think most reasonable people obeyed. Although the defendant claimed to be protecting a business that he wasn’t familiar with, the actual killings in this case had nothing to do with that. And he also spent the entire evening lying about the fact that he was an EMT. None of the things that I just told you are in doubt in this case. So when we think about the defendant, I’d like you consider as you think about this case, what were his true motivations were? Was this a situation where he sincerely cared about Car Source, even though he’d never heard of it, never bought anything there, never worked there? And not even its owners were out there that night protecting it. Was he genuinely interested in helping people? He ran around on with an AR-15 all night and lied about being an EMT. Does that suggest to you that he genuinely is there to help? He’s not there for the same purpose as the protestors. So why was he there that night?
Thomas Binger: (02:42)
When you think about these things, I think there are some things that we can all agree on. In America, it’s hard these days. People are polarized and there’s a lot of political issues back and forth. And the judge has made it clear. This case is not about politics. There is common ground here. We have all agreed, and I asked you this two weeks ago today. “Raise your hand if you agree life is more important than property.” And all of you raised your hand. We also agree that no one person’s life is more valuable than another. You don’t get to kill someone simply because they’re a drug dealer. You don’t weigh a pastor’s life over a teacher’s life. You don’t weigh a police officer’s life over an engineer’s life. All life is sacred. I think we can also agree that we shouldn’t have 17 year olds running around our streets with AR-15s, because this is exactly what happens.
Thomas Binger: (03:38)
And finally, I want you to keep in mind that we’ve all read stories and heard about heroes that step in to stop an active shooter to give their life to save others. In fact, many people in Wisconsin went out and got Carry and Conceal weapon permits just so that they could be there in case there was an active shooter, and wanting to stop them.
Thomas Binger: (03:59)
So when you consider this case, look for the truth. So many people look at this case and they see what they want to see. They have a preconceived notion and they tailor the facts to fit whatever they believe. And you all agreed to keep an open mind. You all told us you didn’t have any of those preconceived notions. Now you’ve heard the evidence and it’s time to search for the truth. So consider, for example, whether or not it’s heroic or honorable to provoke and shoot unarmed people. Consider whether it makes someone a hero when they lie about being an EMT. I think all of us are familiar with someone who does the sorts of things that the defendant has done. They enjoy the thrill of going around and telling people what to do without the courage or the honor to back it up, and without the legal authority to do so. And when you think about the defendant’s behavior in this case, contrast it with Anthony Huber, a man who was there because he knew Jacob Blake, who a skateboard everywhere, and who rushed towards danger to save other people’s lives.
Thomas Binger: (05:09)
So when I talk to you here in my closing argument, I’m going to focus first on the murders that the defendant committed. Second, I’m going to address some background issues, give you some context, and talk about some of the things that I don’t think are relevant to this case. And finally, I’m going to tie it all into the jury instructions that the judge just gave you. As prosecutors in this case, my colleague Jim Kraus and I have tried to present you with all of the relevant evidence that we think you should consider in this case. And I told one of you in jury selection that at the end of this, you would be the expert. You would have all the information. You would be the one who would know all about this case and make that decision. And that’s what we’ve tried to do.
Thomas Binger: (05:56)
So let’s go to August 25th, 2020. The defendant came from outside our community, carrying a gun that wasn’t his, because he expected and anticipated violence that night. And he pretended to guard what turned out to be an empty building, owned by people he’d never even met, while fraudulently claiming all night long to be an EMT. There were a lot of people out that night. Some people stayed home protecting their homes and their families. Others went to their businesses, boarded them up, and protected them. And a lot of those people had weapons. A lot of them had guns. There were other people who came along to protect Car Source or Ultimate Gas or other businesses. And many of them were armed with AR-15s, just like the defendant. In fact, you’re going to see a video, and you’ve already seen it, of a clash between people with AR-15s at Ultimate Gas and other folks that are, I guess, protesters. And there’s people getting in people’s faces, there’s yelling, there’s shouting, there’s even shoving.
Thomas Binger: (07:04)
And yet in this entire sequence of events from the shooting of Jacob Blake on Sunday, August 23rd, 2020, all the way after that. Everything this community went through, the only person who shot and killed anyone was the defendant. Yes, there was property damage. No one’s here to defend that. No one’s here to tell you it’s okay to commit arson or looting. No one’s here to tell you it’s okay to be rioters. I’m not defending any of that. You know, because you’ve been told in the testimony, I’m prosecuting Joseph Ziminski for arson. That’s not okay. But what you don’t get to do is kill someone on the street for committing arson. So let’s keep that in mind when we’re talking about the people involved in this case.
Thomas Binger: (07:55)
So let’s begin with the provocation and the murder of Joseph Rosenbaum, because it’s all captured on video. As the defendant and Mr. Rosenbaum arrive at the 63rd Street Car Source, Mr. Rosenbaum is ahead of the defendant. And as you see in the FBI video, when Mr. Rosenbaum starts to run, the defendant starts to run as well, at the same time, as if he’s pursuing him. Mr. Rosenbaum could not have possibly have known the defendant is behind him. There’s no indication in this record that he knew the defendant was there. It’s not an ambush. It’s not a situation where he goes there and lays in wait for the defendant. The defendant arrives at that location, and you hear him yell, “Friendly, friendly, friendly,” because he’s aware of the fact that the people that he’s about to confront are hostile to him.
Thomas Binger: (08:47)
And I’m going to show you in a moment the video in which the first thing he does when he arrives at that location is drops the fire extinguisher that he’s holding in his left hand so he can raise the gun with his right and left hands and point it. This is when you hear someone…
Thomas Binger: (09:03)
And pointed. This is when you hear someone, I think the testimony is Rosenbaum, it’s not clear to me, but either way, yelled “Gun. Gun. Gun.” And then Mr. Rosenbaum charges around to try and stop the defendant from pointing his gun or shooting anyone. So let’s take a look at some of that video. This is Exhibit 73, the full drone video. And as we’ve pointed out to you before, and Jim will point out to you here in a second on the screen, when the defendant originally arrives at that scene the first thing you see him do is drop the fire extinguisher and point his weapon at people, and then the chase occurs right after that. And you’re going to see that entire sequence of events here on the full drone video. The defendant turns as he’s being pursued and points the gun at Mr. Rosenbaum. And then as he end the area between the park cars, he slows and turns, and before Mr. Rosenbaum can even come close, he fires at him, shooting and knocking him to the ground.
Thomas Binger: (10:46)
Now I’m going to show you the slowed down and zoomed in video of the defendant when he first gets there. And Mr. Kraus is going to help me by directing your attention on the larger screen here to exactly where you will see the defendant. I’m going to replay it a few times, so you can see quite clearly that the defendant sets the fire extinguisher on the ground with his left hand, and then brings his left hand over to the gun and raises it and points.
Thomas Binger: (11:31)
(silence)
Thomas Binger: (11:53)
Guys, check the gun, make sure it’s empty. Under Wisconsin law you’re not allowed to run around and point your gun at people. This is the provocation. This is what starts this incident. The defendant rushes in and immediately points the gun. And as you’ll see in a little bit, Mr. Rosenbaum doesn’t take kindly of people pointing guns. I don’t think anyone does, that’s not unusual. No one wants to have the gun pointed at them and no one wants to watch anyone else do this to someone else. We have the gun, it is in evidence as Exhibit number 28. I’m having the detectives check it to make sure that it is safe.
Thomas Binger: (12:50)
The defendant comes running in and drops the fire extinguisher on the ground like this, and then raises his left hand to the gun and points. This is what we see in the video, him putting the fire extinguisher on the ground and then raising the gun.
Speaker 3: (13:11)
Your honor, I’m going to object. He’s facing the wrong direction.
Thomas Binger: (13:14)
That’s an argument [crosstalk 00:13:15]-
Speaker 4: (13:18)
I’d like to actually have… Well, I’ll leave it alone.
Thomas Binger: (13:22)
So what you see in that video is his left arm reaching for the gun, holding it up. You can see it again on the video here, his left arm reaching up towards the gun. That is what provokes this entire incident. And one of the things to keep in mind is that when the defendant provokes the incident, he loses the right to self defense. You cannot claim self defense against a danger you create. That’s critical, right here. If your the one who is threatening others, you lose the right to claim self defense.
Thomas Binger: (14:12)
Then we have the chase that occurs after that, and we have taken that drone video and we have slowed down portions of that chase for you. So what we have right here on the screen, this is Exhibit 84, and this is the middle portion of that incident. And you can see Mr. Rosenbaum chasing after the defendant, throwing that plastic bag, and then the defendant turns and points the gun back at Mr. Rosenbaum. And this is the moment in time when Mr. Rosenbaum essentially does sort of a little hop with both of his hands in the air. And the defendant has to testified, he saw at that moment that there was nothing in Mr. Rosenbaum’s hands. He was unarmed. There’s the defendant turning and pointing the gun. Mr. Rosenbaum leaps, his hands out to the air and then watch here at the end, this is where the shooting occurs. Mr. Rosenbaum is not even within arms reach when the first shot occurs. I’ll play that again. The defendant is pointing the gun at Mr. Rosenbaum, Mr. Rosenbaum raises his arms off to the side, the defendant approaches these cars and slows down and then turns and shoots. Mr. Rosenbaum. Finally, I’m going to play you Exhibit 86, this shows you the final part of that, zoomed in and slowed down. Here is the defendant running in between those parked cars slowing down. And you can see just how close or rather how far away Mr. Rosenbaum was when the defendant shot him. You can see from this video that Mr. Rosenbaum is not even within arms reach of the defendant when the first shot goes off. The defendant fires four shots in quick succession. And I’ll come back to this in a moment, but you’ll note during this entire sequence it’s the defendant who chooses where to go. He’s the one who decides to run where he runs, and he slows down right as he gets to these parked cars. That’s what allows Rosenbaum to get closer.
Thomas Binger: (16:39)
We’ve seen this on the aerial footage from the FBI, and I want you to see that perspective as well. This is Exhibit 25, this is the annotated aerial footage. You see the defendant approach running in the same aim direction as Mr. Rosenbaum. This is where the pointing occurs in the direction of the Ziminski’s. You can see Josh Ziminski right there on the screen. I’m going to put the cursor over where the Ziminski’s are, they’re right in there. The defendant is pointing his gun right here, and he’s pointing it in the direction of the Ziminski’s because they’re standing next to that car, and then the chase occurs.
Thomas Binger: (17:47)
Now, what’s interesting to me is watch when the crowd starts to run. The crowd’s already starting to run here even before the defendant has fired a shot. That’s likely because they heard the first shot from Joshua Ziminski.
Thomas Binger: (18:02)
That’s likely because they heard the first shot from Joshua Ziminski, and the crowd starts to run away. The defendant has testified that that shot from Mr. Ziminski had nothing to do with his decision to kill Joseph Rosenbaum. And I’ll come back to that in a second.
Thomas Binger: (18:17)
Finally, I’m going to show you this incident from the perspective of Drew Hernandez, because he is behind all of this, and then he comes upon Mr. Rosenbaum’s body. Is that audio playing? Is it coming?
Thomas Binger: (18:43)
Not Sure why you’re not hearing audio on that. Is Brian around? He is not, all right. Can you text Brian please?
Thomas Binger: (19:02)
At any rate, for this purposes…
Speaker 5: (19:08)
[Inaudible 00:19:08].
Thomas Binger: (19:08)
[Inaudible 00:19:08] that?
Speaker 5: (19:11)
Not very loudly, but I [inaudible 00:19:11].
Thomas Binger: (19:41)
At this point, the defendant has shot and killed Joseph Rosenbaum and Mr. Rosenbaum is laying face down. That’s where he falls. Richie McGinniss actually rolls him over after trying to stem the bleeding here. You can see in the foreground that plastic bag that Mr. Rosenbaum threw on the ground. I don’t think there’s any dispute. There was nothing harmful in that bag. It was a clear bag containing some clear items.
Speaker 6: (20:04)
Objection. There is a dispute what’s in that bag.
Thomas Binger: (20:07)
Then you can make that dispute in your argument.
Speaker 5: (20:11)
It’s argument, and you’ll be allowed to respond.
Thomas Binger: (20:15)
You can see in this video, the crowd is attempting to save Mr. Rosenbaum’s life.
Speaker 7: (20:20)
Keep your eyes open. Keep your eyes open.
Speaker 8: (20:20)
You shot him.
Speaker 9: (20:20)
I didn’t, fuck no.
Speaker 8: (20:30)
You’re okay.
Speaker 9: (20:31)
We got to keep him alive. Just talk to me, bro.
Thomas Binger: (20:46)
So we have shown you the defendant murdering Joseph Rosenbaum from three different angles, the drone footage, Drew Hernandez, and also the FBI video. The defendant admitted that during this entire incident, he knew that Joseph Rosenbaum was unarmed. I’m going to come back to this in a little while, but there’s this alleged threat that Mr. Rosenbaum made earlier in the evening to kill the defendant. I will debunk that. That did not happen. It is the one fact in this case the defendant wants you to believe that there’s no video of. And in fact, I have the video of the entire incident. I’ve played it for you and I’ll show it to you again. There’s no threat. There’s also no evidence that Mr. Rosenbaum ever wanted the defendant’s gun. He never said, “I’m take your gun.” He never said, “I want your gun.” There’s no indication of that.
Thomas Binger: (21:44)
Dr. Kelly has testified that the first shot that the defendant fired at Joseph Rosenbaum hit the victim in the right pelvis, fracturing it. Mr. Rosenbaum was incapacitated at that point. Whatever threat he might have posed, it’s over. There is no further threat. He is falling to the ground and the defendant doesn’t stop, after that first shot. He tracks Mr. Rosenbaum’s body all the way down, firing three more shots. A second shot, which goes through Mr. Rosenbaum’s hand, and then a third and fourth shot. One that grazes the right scalp and one that goes right into Mr. Rosenbaum’s back. And that is the kill shot. That is the one that took Mr. Rosenbaum’s life.
Thomas Binger: (22:37)
There is no evidence that Mr. Rosenbaum was reaching for the defendant’s gun. And after that first shot, there’s no way Mr. Rosenbaum could have taken that gun even if he wanted to. He is already falling to the ground. He is helpless. He is vulnerable. And as I said, the kill shot is the one to the back. This is that wound. Dr. Kelly testified that the angle of this shot was from the left shoulder towards the center of the back. And the bullet continued on down towards the right lower back area, tearing through bodily organs and killing Mr. Rosenbaum.
Thomas Binger: (23:17)
Here’s a picture of the wound to the hand. There’s been a lot of testimony about this wound. This is one in which the evidence suggests that Mr Rosenbaum’s hand was most likely turned in this position, palms outward with his thumb to the ground when the wound, the bullet, goes through the area in between his middle finger and his ring finger and penetrates the lower knuckle of the middle finger and the index finger before exiting. Dr. Kelly testified there’s soot in that area, suggesting that the hand was close to the end of the defendant’s barrel of the AR-15 at the time of that shot. The defense wants you to believe it’s there because Mr. Rosenbaum is deliberately reaching for the gun. Well, that doesn’t make any sense.
Thomas Binger: (24:12)
First of all, this occurs after Mr. Rosenbaum has been shot in the hip and has got a fractured pelvis at that point. He is falling. He is not able to walk. He’s probably not even able to control much of his movements at this point. When you’re reaching for that gun, this is not the way you’re going to do it. This is not going to be effective. I submit to you, ladies and gentlemen, to the extent that Mr Rosenbaum’s hand ever got close to the end of the defendant’s gun, it was completely inadvertent, not at all intentional.
Thomas Binger: (24:51)
Now we’ve heard a lot about the Ziminski’s in this case, and I just want to carve them out of this case right now, because it’s a red herring. It has nothing to do with any of this. There’s been some focus on that because I think the defense was hoping they could work this into their self-defense claim and make an argument that that first shot by Joshua Ziminski somehow made the defendant fear for his life. Unfortunately, the defendant wasn’t on board with that, because in his testimony he told you that that shot had nothing to do with his thought process. It didn’t affect him in any way.
Thomas Binger: (25:25)
He said he didn’t think the shot came from Joseph Rosenbaum. He knew Joseph Rosenbaum was unarmed, and he admitted to me, you can’t kill Joseph Rosenbaum for something Joshua Ziminski did. So let’s just carve Joshua Ziminski out of this case. I’ll deal with him on his arson trial in January, but until then it doesn’t factor into any of the decisions the defendant made. And in fact, as you see on the FBI video, the Ziminskis continue walking straight on down the sidewalk. They don’t pursue the defendant. They don’t threaten the defendant in any way. Now, the defense wants you to think Joseph Rosenbaum was there to attack the defendant. We’ll never know what Joseph Rosenbaum was thinking, because the defendant killed him, so we’re just guessing. But let’s assume for a minute, yeah. Joseph Rosenbaum is chasing after the defendant because he wants to do some physical harm to him. He’s an unarmed man. This is a bar fight. This is a fist fight. This is a fight that maybe many of you have been involved in. Two people hand to hand, were throwing punches, were pushing, were shoving, were whatever. But what you don’t do is you don’t bring a gun to a fist fight.
Thomas Binger: (26:44)
What the defendant wants you to believe is that because he’s the one who brought the gun he gets to kill. So I want you to contrast this, two different scenarios. One scenario where there’s two guys who are throwing punches at one another like a bar fight. I think we’d all agree, you can’t kill someone. You can’t punch the guy and knock him to the ground and then…
Thomas Binger: (27:03)
You can’t kill someone. You can’t punch the guy and knock him to the ground and then get on him and strangle the life out of him. That’s murder. So, what’s the difference here? The only difference is the defendant brought a gun. He brought his AR-15. That’s why he’s got to come up with this cockamamie theory that Joseph Rosenbaum was not only going to take the gun, but take it and then turn it on the defendant.
Thomas Binger: (27:27)
And the defendant actually told you that he thought Joseph Rosenbaum was going to take that gun and not only kill him, but kill other people, which is really ironic considering the defendant is the one who killed people in this case, and the only one.
Thomas Binger: (27:41)
But putting that aside, they have to convince you that Joseph Rosenbaum was going to take that gun and use it on the defendant because they know you can’t claim self-defense against an unarmed man like this. You lose the right to self defense when you’re the one who at the gun, when you’re the one creating the danger, when you’re the one provoking other people.
Thomas Binger: (28:09)
The defendant fired four shots at Joseph Rosenbaum and caused five wounds total. The first shot fractured Joseph Rosenbaum’s pelvis. This causes him to be helpless. He is falling face first to ground, and he is vulnerable. The second shot went through his left hand, probably ricocheted off the ground and hit his lower left thigh. It’s a flesh wound, I’m sure it hurt, but probably not all that serious. The third and fourth shots are as Mr. Rosenbaum has fallen almost completely to the ground. He’s parallel to the round. He is almost face-first to the ground. The defendant fires a round into his upper back, which is the kill shot, and another round, which grazes his right scalp.
Thomas Binger: (28:57)
At this point, as you saw in that video, a crowd rushes to that body to try and save Joseph Rosenbaum. They’re trying to put clothing on the wound to stop the bleeding. They’re going to take them across the street to a hospital. KMH, Froedtert South, is literally right across the street. And this crowd, except for the defendant, are all focused on trying to save this person’s life. A person, by the way, they probably have never even met before, because that’s what most people do. Richie McGinniss testified. “I rode with Rosenbaum in the back of that SUV. I told him we’d have a beer together when this was all done.” Mr. Rosenbaum was unable to respond. The defendant decided to pull the trigger on his AR-15 four times. That was his decision, and he is responsible for every bullet that comes out of that gun. He doesn’t get a pass by pulling the trigger fast. He could have chosen to stop after the first shot, after the second shot, after the third shot, and assessed whether or not there was still a need to keep firing. But he went four times in 0.76 seconds. The defense has made a big point of this, how fast he fired, as if that somehow excuses him. Exactly the opposite, ladies and gentlemen. He controls how quickly he pulls the trigger. He is in control of that decision making process. No one else made him do that.
Thomas Binger: (30:41)
And this is indicative of someone who doesn’t care about the consequences, doesn’t care to stop and figure out, “Am I good? Do I need to stop, or I’m just going to keep on going.” And as I said, he tracks the body all the way to the ground with those second, third, and fourth shots. The only way that you could possibly justify the murder of Joseph Rosenbaum is if you believe that Joseph Rosenbaum was actually reaching for the defendant’s gun, and that a reasonable person in the defendant’s position with an AR-15 strapped tightly to his chest, would think that Joseph Rosenbaum was even capable of taking that gun away as he’s falling to the ground with a fractured right pelvis.
Thomas Binger: (31:33)
And then, not only all that, you’d also have to believe that Joseph Rosenbaum was going to turn that gun and use it to kill the defendant. You have to believe all of those things to justify the murder of Joseph Rosenbaum. That’s why the defense is trying so desperately hard to convince you that Joseph Rosenbaum threatened to kill the defendant, which never happened. That’s why they’re trying so to desperately hard to convince you that Joseph Rosenbaum was reaching for that gun, because if he’s not reaching for that gun and he’s not going to use it to kill the defendant, it is not justified. There is no valid self-defense claim.
Thomas Binger: (32:19)
One of the things the judge has instructed to you is that when the defendant provokes the situation, he has to exhaust all reasonable means to avoid killing someone. Did he? He didn’t have to shoot. He’s the one who chose where to run. He chose to run in between those parked cars. He slows down as he gets there. The crowd’s already running away.
Thomas Binger: (32:45)
The defense wants to make a point. There’s a whole bunch of people over there who are doing stuff to cars and the defendant had no escape route. The crowd’s actually already running away at this point. They’ve heard the first gunshot from Joshua Ziminski, and they’re already starting to scatter.
Thomas Binger: (32:58)
But if you look on the video, there’s a huge open space in that lot where the defendant could have circled back around, and he actually does circle back around after killing Rosenbaum, where he could have gotten away. He has to exhaust all reasonable means of escape before killing Mr. Rosenbaum.
Thomas Binger: (33:22)
Your Honor, I do have some more video I want to play. I’m having a little bit of technical problems that I’d like to work on, so if I think this would be a good time to pause, if that’s okay.
Judge Bruces Schroeder: (33:31)
Okay.
Thomas Binger: (33:31)
Okay. Thank you.
Judge: (00:00)
(silence)
Judge: (00:25)
Everybody ready?
Speaker 1: (00:28)
Hello.
Judge: (00:28)
Would you come down please?
Speaker 1: (00:33)
Yep.
Speaker 1: (00:33)
(silence)
Judge: (00:33)
Continue Mr. Binger.
Mr. Binger: (01:16)
Thank you, judge. Good afternoon, ladies and gentlemen, I’m going to continue on. I hope your full stomachs won’t distract you too much from the presentation here.
Mr. Binger: (01:28)
So I had been talking about the murder of Joseph Rosenbaum. And as you can tell, I’m trying to go in chronological order. I’m trying to go through these events in a way that makes the most sense. So count one of the information is with regard to Joesph Rosenbaum. The second count of the information pertains to Richie McGinniss, who you heard testify. He testified that he was in the line of fire behind Joseph Rosenbaum, as the defendant fires four rounds with his AR-15, which is loaded with full metal jacket ammunition. And I’ll talk a little bit more about that type of ammunition in a little bit. But you’ve heard testimony that it’s the type of ammunition that is capable of going through body armor, it is capable of going through a squad car. It is designed to go through the target and continue flying on for up to 550 yards. Richie McGinniss testified that when those shots went off, he thought he had then hit. He thought his life was in danger.
Mr. Binger: (02:34)
One of the rules that I think most people who are familiar with firearms know is, is always check your background. Meaning know what’s around your target and know what’s behind your target. This is true when you’re hunting, it’s true when you’re target shooting, and obviously it’s true when you’ve got an AR-15 in Downtown Kenosha in the middle of protests with houses and people nearby. But there’s no indication that defendant cared one bit about his background, cared one bit about where those bullets were going to go. And as I said, he put Richie McGinniss in danger.
Mr. Binger: (03:16)
Richie McGinniss after this incident you’ve seen on the videos, goes to try and help Joseph Rosenbaum and as his own video shows when he first gets there, he finds Mr. Rosenbaum’s body face down on the ground and I’m going to play this exhibit, Exhibit 15 for you.
Richie McGinniss: (03:36)
You okay? Just don’t move, man. Don’t move. Can I flip you over, real quick? I’m going to flip you over real quick. [inaudible 00:04:05] real quick. Got to get pressure on this dude. [inaudible 00:04:10] Get a light on it. Get a light. Get me a fucking light.
Speaker 2: (04:11)
Put pressure on it. [crosstalk 00:04:11]-
Richie McGinniss: (04:11)
Where? Where, dude? Where? Where’s the hole? [crosstalk 00:04:22].
Speaker 2: (04:29)
Come on. Put pressure. Put pressure. [crosstalk 00:04:29]. Keep your eyes open. Keep your eyes open. You shot him.
Richie McGinniss: (04:29)
I didn’t.
Speaker 2: (04:38)
You’re okay. [crosstalk 00:04:38]. You’re okay. [crosstalk 00:04:41]-
Richie McGinniss: (04:45)
Put pressure on it. [crosstalk 00:04:45].
Speaker 3: (04:45)
Hey, get him up. Get him up.
Richie McGinniss: (04:45)
Keep pressure on it.
Speaker 3: (04:45)
I got him. I got him.
Richie McGinniss: (04:45)
Keep pressure on him.
Speaker 3: (05:05)
Get his arms. [crosstalk 00:05:05]
Mr. Binger: (05:15)
You want to talk about medics. You want to talk about people who care. You want to talk about people who are there trying to help. You just heard them and you just saw them. People who didn’t know Joseph Rosenbaum, they just knew somebody needed help. And while that’s going on, the defendant flees, callously disregarding the body of the man that he just shot and killed. And as he’s running off he’s lying to the crowd about what just happened. This is Exhibit number 12.
Speaker 4: (05:56)
So there were just like six shots going off. [crosstalk 00:06:11]-
Richie McGinniss: (06:11)
Why you shoot him? Why you shoot him? Why you should him?
Defendant: (06:11)
He pulled a gun.
Richie McGinniss: (06:11)
Why’d you shoot him?
Richie McGinniss: (06:11)
Why you shoot him? Why you shoot him? Why you shoot him?
Defendant: (06:11)
He pulled a gun.
Richie McGinniss: (06:11)
Why’d you shoot him?
Mr. Binger: (06:42)
The Defendant says he pulled a gun.
Richie McGinniss: (06:44)
Why you shoot him?
Defendant: (06:44)
He pulled a gun.
Richie McGinniss: (06:44)
Why’d you shoot him?
Mr. Binger: (06:54)
That statement, he pulled a gun, was a lie. It’s not true. The defendant knew it wasn’t true. He’s lying to the crowd as he’s running away. Joseph Rosenbaum didn’t have a gun, the defendant knew he didn’t have a gun. The defendant is lying to save his own skin, instead of going and trying to help the person that he has just shot and killed.
Mr. Binger: (07:23)
In Exhibit Number Three, Gaige Grosskreutz’s Facebook Live video, he tells a similar lie. As they’re running, Mr. Grosskreutz ask the defendant, did you just shoot someone? And the defendant says something about the police and then says, I did not shoot anyone. And this is similar to the lie that he told Jason Lackowski at exactly that same time. As he passes, Mr. Lackowski he says I did not shoot anyone. And that was established through Mr. Lackowski testimony. And again, I think it’s worth emphasizing at this point that Jason Lackowski had just met the defendant maybe an hour, this is about 11:50 at night, Mr. Lackowski Got there about 10:45.
Mr. Binger: (08:24)
[crosstalk 00:08:24].
Mr. Binger: (08:24)
This is Gaige Grosskreutz running towards danger, running to try and help. This is Exhibit Number Three.
Richie McGinniss: (08:48)
Why you shoot him?
Defendant: (08:48)
He pulled a gun.
Richie McGinniss: (08:53)
Why’d you shoot him? Hey [crosstalk 00:08:53]-
Gaige Grosskreutz: (09:08)
Hey, what are you doing? You shot somebody? [inaudible 00:09:08] Who shot? Who shot? [crosstalk 00:09:01].
Gaige Grosskreutz: (09:08)
Hey, what are you doing? You shot somebody shot? [inaudible 00:09:08] Who shot? Who shot?
Mr. Binger: (09:11)
Listen to the second thing he says.
Gaige Grosskreutz: (09:14)
You shot somebody? [inaudible 00:09:18] Who shot? Who shot?
Gaige Grosskreutz: (09:28)
Hey, what are you doing? You shot somebody? [inaudible 00:09:28] Who shot?
Mr. Binger: (09:35)
It’s hard to tell what his exact words are, I hear the word not pretty clearly in there, as in, I did not shoot anyone. I did not do anything. Jason Lackowski, he lies to. The crowd, he lies to. Gaige Grosskreutz, he lies to.
Mr. Binger: (09:54)
So at this point, the crowd is dealing with what they perceive to be an active shooter. Someone who has just shot someone, who is still in possession of the gun, who is fleeing the scene and how are we supposed to know where he’s going next? All night that night, the crowd has been hearing the sound of gunshots, they’ve been hearing fireworks, firecrackers, but now someone actually has been shot. The crowd sees the defendant running with a gun, he’s lying to them. He still has the gun. He shot someone. This is provocation to them. This is one who has committed a criminal act and is putting people in danger. It is entirely reasonable for that crowd to believe at that moment that he is a threat to kill again. The defendant could have made it unequivocally clear what he was doing. He could have stayed at Mr. Rosenbaum’s body, helped protect him, helped preserve his life, call 911. As he’s running, he could have announced to the crowd exactly what he was doing, told them. He could have fired warning shots to try and keep him away. He could have dropped the gun. He could have raised his hands and surrendered. He could have signaled to this crowd that he did not pose a threat anymore. But everything he does, is indicative of someone who is still a threat.
Mr. Binger: (11:27)
Now the defendant is going to tell you he wasn’t, but from the crowd’s perspective, how are they supposed to know any different? He does nothing to demonstrate to the crowd that he isn’t a threat to kill again. And it turns out he does. It turns out within a few seconds, he does kill again.
Mr. Binger: (11:51)
I submit to you ladies and gentlemen that in this situation, the crowd has the right to try and stop an active shooter, they have a right to protect themselves. The defendant is not the only one in the world who has the right to self defense. But what does the crowd do to try and stop the defendant? I submit to you, and this is not a criticism of them, but they use almost the least minimal, least intrusive means possible. They could have used deadly force against him. They could have shot at him. But instead, somebody comes up behind him and knocks his hat off. Anthony Huber comes up with a skateboard and the defendant blocks it with his arm. And then the defendant falls to the ground on his own. No one knocked him down. This man that the defense wants to call Jump Kick Man, he’s got no weapons, no gun, no knife, no nothing, comes in and tries to kick the defendant in the face.
Mr. Binger: (12:54)
Anthony Huber comes back and tries to grab the gun, actually does grab the defendant’s gun and tries to pull it away, because he’s trying to disarm an active shooter and Gaige Grosskreutz comes running in, stops with his hands up in the air until he sees and hears the defendant adjusting his weapon as if preparing to fire again. And then what does Gaige Grosskreutz do? He reaches for the gun to try and disarm the defendant. Gaige Grosskreutz had his own gun in his own hand, he could have aimed it and fired at the defendant, but he did not. And you heard Gaige Grosskreutz testify about that, about how is a decision that he was not prepared to make at that point in time. He is not the type of person who is just willing to take someone’s life in an instant, unlike the defendant who took two lives that night, very quickly and seemingly very easily.
Mr. Binger: (13:54)
There is a video, Exhibit Five, which is the BG on the scene video, which traces this entire incident, which we call the second event. This is going to show you Mr. Huber, Mr. Gaige Grosskreutz, and the other individuals who are trying to stop an active shooter using what I would characterize as the least intrusive means possible.
Mr. Binger: (14:29)
[crosstalk 00:14:29] Someone knocks his hat off. Anthony Huber comes in with a skateboard. [crosstalk 00:14:43]
Mr. Binger: (14:54)
In just a few seconds, the defendant kills one person, attempts to kill two more and blows off Gaige Grosskreutz’s arm. It’s that fast. This is someone who has no remorse, no regard for life only cares of about himself. And these folks that are coming at him, the Jump Kick Man, Anthony Huber, aren’t armed, they’re not a credible imminent threat to his life. They are trying to stop an active shooter, and they have a right to do. So. Imagine if the crowd couldn’t do that. Imagine if they weren’t allowed to try and stop someone in this type of situation.
Mr. Binger: (15:39)
After killing Anthony Huber, after severely wounding Gaige Grosskreutz, the defendant walks away like he’s some sort of hero in a Western without a care in the world for anything he’s just done. It’s interesting, this occurs about a block away from the police line right down the road. If the defendant’s so concerned about his safety, the police are right there. And in fact, they pull up to this scene almost instantly, the defendant’s got his medic bag on. He proclaims himself a medic. He doesn’t know at this point if Anthony Huber’s dead or alive or capable of being saved. And yet the defendant offers no assistance, makes no attempt to try and help anyone else, all he cares about is himself.
Mr. Binger: (16:36)
We have taken that video and we have broken it down into individual frames. And I want to take you through frame by frame the incident with Gaige Grosskreutz. Because a lot has been made about Mr. Grosskreutz’s motions and what he does and where he goes and things like that, so I think it’s helpful for us to take a look at this.
Mr. Binger: (16:59)
So this is Exhibit 80 beginning with frame 356. At this point, you can see that Anthony Huber is staggering off after being shot in the chest. The wound has entered his lower left rib cage and has wound up almost exiting near his right shoulder, it has ripped through his ribs, his heart, his aorta, and he may not technically be dead, but he’s going to be dead within a few seconds. He is stumbling away, the defendant has the weapon pointed towards Gaige Grosskreutz here who is cowering, hovering, hiding, covering his head, trying to stay out of the way. And I’m going to go frame by frame here slowly as we see the movement.
Mr. Binger: (17:41)
Now we see the gun as moving down towards Gaige Grosskreutz. It is pointed directly at him from a distance of just a couple of feet. Gaige Grosskreutz has his right leg planted as if he’s pushing backwards, trying to get away, the gun is still pointed at him. The defendant here is going to adjust the gun, turn it over as if he’s making some sort of adjustment on it. Gaige Grosskreutz testified that this was a movement that he interpreted as the defendant preparing that gun as if it was going to fire again, as if clearing a jammed round so that he could shoot it at Mr. Grosskreutz. At this point, Mr. Grosskreutz is, I think, probably thinking to himself, if I can get away, I will. Until he realizes that the defendant is getting ready to fire again.
Mr. Binger: (18:42)
(silence) In none of these frames is Mr.Grosskreutz’s right hand with his Glock pistol pointed at the defendant. You can see Mr. Grosskreutz is actually backing up with his right leg. Let me go back a couple of frames here. This is frame 444, you can see his right foot is on the ground, but it’s starting to move back. Now as I move forward in the frames 447, his right leg is moved back-
Mr. Binger: (20:03)
In the frames 447, his right leg is moved back. This is someone who is about to retreat. His hands are in the air. He’s backing away from the defendant until he’s testified he sees the defendant start to manipulate that gun in such a way that it may a Mr. Grosskreutz feel like he’s about to be shot and only then does he take action. What action does Mr. Grosskreutz take? Does he hold that gun with both hands, the Glock that he’s got and pointed it at the defendant? No, never. Does he even take the gun with one hand and point it? No, never.
Mr. Binger: (20:43)
Instead, you can see him start to lunge in with his left arm forward. The gun is not in this hand. The gun is in his right hand. He’s lunging forward reaching for the defendant, probably reaching for the gun, probably trying to block the gun. You can see now he’s going to take a step with his right leg across the defendant’s body. Not directly towards the defendant, but across the defendant’s body as he’s reaching him almost swiping away at that gun with his left arm, he has bladed his body in such a way as to try and present as minimal of a target as possible, which is probably what saves his life.
Mr. Binger: (21:26)
His right leg is about to hit the ground here. The gun, the AR-15 is pointed directly at him from just two, maybe three feet away. He’s trying to shield himself with his left arm. And as we approach frame 500 here, the gun goes off. At no point in this process is Mr. Grosskreutz pointing his gun at the defendant. Frame 499, the gun has just fired. Frame 500, you see the puff of smoke. 501, the bullet has hit Mr. Grosskreutz’s right bicep severing it.
Mr. Binger: (22:05)
I’m going to continue forward after this because you can see that his right arm. This is an interesting frame right here, 504. You can see that gun. I’ll go back even more. You can see that Mr. Grosskreutz’s arm with the right hand with the gun, his right hand is pointed off to the side. What pulls that gun down closer to the defendant is the fact that Mr. Grosskreutz just had his right bicep severed. It’s not a voluntary action, it’s an involuntary. The muscle is severed. Now watch. Frame 502, watch his right hand. 503, 504, 505, 506, 507, 508.
Mr. Binger: (22:51)
At this point, yeah, absolutely. That right arm is probably dangling down towards the defendant. It’s not going to be able to pull that trigger without a working bicep muscle and it’s not a voluntary thing. It’s done because the defendant just blew his arm off. But yeah, this is the time after the shooting, when yes, the gun happens to be pointed at the defendant. And I got to stop here for a moment and highlight the hypocrisy of the defense. Because according to the defense if someone has a gun, they’re a threat. If someone points a gun, they’re a threat. There’s only one exception to that, The defendant.
Mr. Binger: (23:28)
By their logic, he gets to run around with a gun all night, but oh, we’re not supposed to take him as a threat. He gets to point the gun at everyone, but oh, we’re not supposed to take him as a threat. No, it doesn’t work that way. The same set of rules apply to the defendant as everybody else. There’s no exception in the law for Kyle Rittenhouse. There’s no exception that says if anyone else has a gun, you’re in danger except for Kyle Rittenhouse. There’s no exception in the law that says if you point your gun at people, oh, that makes you a threat and I can kill you except for Kyle Rittenhouse. I can do it all night long. The same rules apply to him as everyone else. And everyone else has a right to defend themselves also, not just the defendant. We have shown you photos and videos of Gaige Grosskreutz’s injuries. Exhibit 60 is a video taken right after Mr. Grosskreutz was wounded by the defendant. [inaudible 00:25:25]. But this is what we’re dealing with. When you fire an AR-15 at someone from close range, this is what it looks like. I guarantee you, ladies and gentlemen, the defendant had no clue what his gun was capable of. He didn’t even bother to pay any attention to it. Didn’t concern himself with what he would be doing to other people, but this is what happened. Let’s not flinch away from this. It’s important that we understand what that gun was capable of that night. It killed two people and it did this to Mr. Grosskreutz’s arm.
Mr. Binger: (26:44)
When those shootings occurred that I just played for you, what would a reasonable person in the defendant’s position at that time think? The good news is, ladies and gentlemen, you’re going to tell us. As part of your decision in this case, you will represent the reasonable person of ordinary and prudent person, and you will put yourself in the defendant’s shoes that night. I submit to you that at the time of those shootings, a reasonable person in the defendant’s shoes would have known that he had provoked Joseph Rosenbaum by pointing his gun at someone else, that the defendant had put someone else at risk of dying by doing that. The defendant should have known that the crowd was aware of the fact that he had just shot someone and that they felt their lives were in danger. That is reasonable. It is also reasonable to understand that at that point, Gaige Grosskreutz had just witnessed all of this. He had heard the defendant had shot someone. He’d heard the defendant lie about it. He saw the defendant shoot at Jump Kick Man at close range, miraculously missing. Had seen the defendant kill Anthony Huber. Gaige Grosskreutz reasonably believed his life was in danger at that moment and he was proven correct because the defendant shot him too.
Mr. Binger: (28:14)
So when you consider what’s reasonable in this case, consider whether or not it’s reasonable for a criminal to be able to shoot himself out of a crime scene. When a bank robber robs a bank and runs away and the crowd comes after him, can he just shoot anybody and claim self-defense? If someone comes up to that person and tries to stop them, tries to disarm them like Anthony Huber did, do they forfeit their life? Did Anthony Huber forfeit his life by trying to be a hero and stop an active shooter and protect others? Is that justified? Can the defendant just kill him?
Mr. Binger: (28:55)
In this case, the crowd was right. The crowd knew the defendant had just shot someone when they’re coming after him, they know he’s just shot and killed Joseph Rosenbaum, but you know not every active shooter situation does the crowd have perfect knowledge. When they’re told that person running up the street just shot someone, we don’t have time in the moment to go back and take a look at the body and replay the video, and make a decision before going after the person with the gun. We’ve had several police officers testify that in an active shooter situation their first instinct, their first training is to go in and stop the threat. They don’t sit there and wonder, “Well, maybe it was self-defense. I don’t know. I’m going to wait and see.” And every day we read about heroes that stop active shooters.
Mr. Binger: (29:45)
That’s what was going on here and that crowd was right. And that crowd was full of heroes. And that crowd did something that honestly I’m not sure I would’ve had the courage to do. If I see a guy running up the street with an AR-15 and I hear he just shot somebody, my first instinct is not to approach. Anthony Huber was different. Jump Kick Man was different. Gaige Grosskreutz was different. That doesn’t make them a threat to the defendant’s life. It doesn’t make their lives worthless. They don’t give up their right to defend themselves. They have just as much right as the defendant. I told you I wanted to begin by talking about the murders committed by the defendant. Now I want to go back and put it all in context for you and that context starts with “Bra, I’m just trying to be famous.” The defendant’s TikTok profile 4doorsmorewhores. A picture of him up in Ladysmith probably in early May proudly holding his new AR-15. Up until August 25th, 2020, this is the only time he’d ever fired that gun. Maybe put 100 rounds through it or so at that property up there with Dominick Black.
Mr. Binger: (31:19)
They purchased that gun on that same trip. The defendant admitted he knew as a matter of law he could not buy that gun because he was only 17. Yet, he wants to tell you that he thought legally he could possess it, which didn’t make a lot of sense to me. We don’t have a lot of defendants come in and say, “Well, I possess cocaine. I knew I couldn’t buy it, but I thought I could possess it.” No, it’s not the way it works.
Mr. Binger: (31:47)
Dominick Black conducted what we call a straw purchase for the defendant. He purchased that gun for someone who was not legally allowed to purchase it for themselves. I’m prosecuting Dominick Black for that as you know just like I’m prosecuting Joshua Ziminski. Because what Dominick Black did was wrong and we don’t tolerate that. The agreement was Dominick Black was going to keep that gun until the defendant turned 18. It was Dominick Black’s gun, it was legally his and the defendant knew that it was going to be held onto until he turned 18 that he was not going to have it until that birthday. I want to focus a little bit on this AR-15 because I think it’s important when you consider the recklessness of the defendant’s conduct, how much he knew, cared or didn’t know about this deadly weapon. He’d only fired it that one time, maybe 100 rounds through it. He loaded the gun with full metal jacket ammunition, which I’ll talk about a little bit more. He wanted it because he said it looked cool. Didn’t seem to know or care much about the type of ammunition or the type of gun. You had a couple of witnesses tell us in this trial and I could not believe it. A gun is a gun is a gun. Don’t. Don’t even start with that. And a bullet is a bullet. No, it is not. It is not. And anybody who says that is ignorant and reckless because there are some important distinctions here.
Mr. Binger: (33:31)
Full metal jacket ammunition is capable of piercing body armor and squad cars. And you heard Officer Krieger testify that when they heard someone was running around with a rifle, he went and got his plate armor out of the back. [inaudible 00:33:47] wasn’t going to. Ryan Balch talked about how full metal jacket ammunition is designed, and this is a former Army infantryman, is designed to go through a target like a deer or a person and continue on. He says it can hit a target 550 yards away. That’s five and a half football fields.
Mr. Binger: (34:11)
And he explained that he had a handgun that night, which he put hollow-point ammunition on. And that’s what he was planning on using for self-defense because hollow-point ammunition acts differently. It’s going to hit its target. So you will hit what you hit, but you’re not going to put the rest of the community at risk especially on a night when there are hundreds of people out on the streets in our heavy residential area. We can see on that map, the Car Source, there are houses, there are churches, there are daycares, there are schools nearby and you’re firing a full metal jacket ammunition around.
Mr. Binger: (34:53)
I submit to you, ladies and gentlemen, that that AR-15 had no lawful or legitimate purpose that night. Now the Second Amendment allows people to carry guns. That is true. There are people who can’t carry guns, convicted felons, for example, but generally speaking I’m not saying people don’t have the right to carry a gun. What I’m saying is that AR-15 did not accomplish any of the goals that these folks said it was going to. So for example, Ryan Balch, says the handgun is what he was going to use for self-defense. Several witnesses agreed you can’t this gun or shoot this gun at people to protect property. So if you’re going to protect the Car Source building, how is this gun going to help with that?
Mr. Binger: (35:42)
The defendant has admitted the gun was useless when he was going to treat people as a medic because it got in the way. He had to take it off and handed to someone. So you can’t use it as a medic. You can’t use it to protect the building. So what’s it there for? Well, it looks pretty imposing and it has some deterrence value, but Jason Lackowski, Dominick Black and Ryan Balch all said they never actually intended to use their guns. So why is it there? The defendant was wearing a sling that night. He purchased that sling at [inaudible 00:36:16] that afternoon. The purpose of the sling was so the gun couldn’t be taken away, it wouldn’t fall off. He wouldn’t lose possession of it. It was designed to help him retain possession of that gun.
Mr. Binger: (36:28)
And he loaded it with 30 rounds, the full magazine capable of killing 30 people or more. Why do you need 30 rounds of full metal jacket armor to protect a building? This AR-15 is completely incompatible with the role of a medic. Richard McGinnis testified. He’s been to demonstrations in Seattle, Portland, Washington, D.C., New York, Minneapolis. He’s never seen anyone walking around claiming to be a medic with an AR-15. And certainly when you see someone like that, it doesn’t exactly send a warm fuzzy message. “Oh, come to me, I’m here to help.”
Mr. Binger: (37:10)
And the defendant acknowledged he had to take off his AR-15 to treat people. No serious credible medic wears an AR-15 slung around their body. That’s because the defendant was a fraud. He was not an EMT. He lied. He lied to the press. He’s being interviewed by Richard McGinnis who he hears is a member of the media and he says, “I’m a certified EMT.” You’re lying. You’re absolutely lying.
Mr. Binger: (37:44)
Jason Lackowski and Dominick Black said the defendant had to borrow his medical supplies from us. This is an emergency situation. Everybody’s anticipating violence. Everybody’s prepared for people to be hurt, harmed, injured. And yet, the defendant’s going to go there and walk around claiming to be a medic. He’s like a quack doctor practicing without a license. That put lives at risk. And one of the things I had Gaige Grosskreutz testify about is that tattoo on his right arm, which said first do no harm which is one of the precepts, one of the fundamental tenets of the practice of medicine. First do no harm arm. So how do we evaluate the defendant’s performance as a medic that night? “Well, on one hand, he wrapped up an ankle and I think maybe helped somebody who got a cut on their hand.” Yay. On the other hand, he killed two people, blew off Grosskreutz’s arm and put two more lives in jeopardy. So you know when we balance your role as a medic that night, I don’t give you any credit. He showed no remorse for his victims. Never tried to help anybody that he hurt and even on the witness stand when he testified on Wednesday, he broke down crying about himself not about anybody that he hurt that night. No remorse. No concern for anyone else.
Mr. Binger: (39:18)
For him to call himself a medic is an insult to anyone like Gaige Grosskreutz who spent hundreds of hours training and working hard to become an EMT. It’s an insult. The defendant made a series of reckless decisions that night. Going armed with an AR-15 at 17-years-old when he knew he shouldn’t have done so. Because that gun is normally locked in a safe that he doesn’t have access to and it’s not even legally his. He’s out after a citywide curfew. He’s intentionally and knowingly entering into a dangerous situation and he expects it because he brings along his AR-15 and some body armor-
Mr. Binger: (40:03)
And he expects it, because he brings along his AR-15 and some body armor. So don’t tell me you didn’t know. He brings along no non-lethal means of defense, which means his only option is to kill. I don’t know about a lot of you, but I remember that night. I didn’t come down here. I don’t think most reasonable people did, in part because we all knew it was going to be violent and dangerous. Most reasonable people to the extent they came out, they were gone by then. Because you don’t willingly put yourself in this situation unless you want it, unless you’re looking for it, unless you want trouble. Now to put this in perspective, at this time here in our community, there were people who were scared. There were people who were worried about themselves, their homes, their families, their business. That’s understandable, but this is different. There are also people out there who are exercising their First Amendment right, to assemble and have free speech because of whatever they believed in, and they have that right too. But that’s not what we’re talking about.
Mr. Binger: (41:24)
The curfew, the riots, the arson, the looting that we’d seen on those prior nights, road blocks set up around downtown, closed exits on the interstates. All of this was sending the message to reasonable people, go away. Don’t come down here. Who was left at 11:45 at night? Most reasonable people had gone home before the curfew or never even came at all. But the defendant’s down there he says, because he wants you to believe he’s protecting Car Source, even though he had no actual ties or genuine concern for this building. You have this caravan of people from West Bend, Ryan Balch, Jason Lackowski, Joanne Fiedler. Coming down from some other community, having no idea what’s going on here in Kenosha, having no idea what businesses are, having never dealt with Car Source before, just injecting themselves into this situation.
Mr. Binger: (42:29)
Car Source that night was empty. The owners testified. They moved all the cars off the lot, they took the tools out from inside, and they didn’t even feel the need to protect that building. So who’s there? These guys with the AR-15s, they’re just wannabe soldiers. Acting tough, trying to manufacture some personal connection to this event, furthering their own personal agenda. Just a small part of the deluge of chaos tourists we saw here in Kenosha, trying to feed off of what we were going through. Despite everything we did to try and tell them go away, stay out. Did those owners, Sam and Sal ask anyone to protect their business? I called them to the stand because I wanted you to hear from them. I had their statement, but I wanted you to hear from them. And I’m sure you formed your own impressions about them. I’m not here to tell you that I believe what they said on the witness stand. I don’t think it really matters much, except I wanted you to have a flavor of who these people were and what was going on at that building.
Mr. Binger: (43:41)
What was interesting to me is that text message from the defendant to Sam asking for the address of Car Source, even though the defendant says he’s already been there. That didn’t make any sense to me. It’s not hard to find if you’ve driven past there every day. Kenosha is one of the easiest cities in Wisconsin to navigate. It’s all east, west, north, south. How hard is it to find this place? But the agreement was, the defendant was supposed to stay at the 59th Street location. There’s another group at 63rd. It was their responsibility. And the defendant testified that when the shootings occurred at 11:45 or 11:50 at night, he didn’t even know if that other group was still there or if they’d left.
Mr. Binger: (44:20)
But crucially, you heard the testimony of Kristan Harris, who’s out there reporting for his rundown live and he’s making some video. And he tells the defendant, “Stay on your property. Don’t go out in the streets and engage with these protestors because you’re just making it worse and you’re escalating the situation.” He tells the defendant specifically that just 20 minutes before the shootings. Kristan Harris probably said that because he knows this is a crowd that is feeling threatened by the defendant and his group. Richie McGinnis testified when he left the Stella Hotel and immediately ran over to 59th Street, he saw guys up on the roof and he felt threatened. These guns, he said, were the thing that changed the dynamic for him. Drew Hernandez, we showed video of Drew Hernandez, having laser sights pointed at him. And he said he felt threatened. He thought someone was pointing a gun from the roof and putting his life in jeopardy.
Mr. Binger: (45:17)
These are two people who are veterans. They’ve been to protests in Seattle, Portland, Washington DC, New York. They’ve been through this before. And yet here in little old Kenosha, the defendant’s group made them fear for their lives. That’s the kind of impact these AR-15s had. The crowd is yelling at the defendant’s group, “Stop pointing your guns at us. Stop pointing these laser pointers at us.” And the defendant sees this. He’s well aware of the fact that the crowd out on the street is hostile. They don’t react well to him. And he knows that by 11:35 at night, this crowd is all the way down there South of 60th. That’s where they’re at. So if I go down there, I need to be prepared and I need to expect that these folks are not on my side.
Mr. Binger: (46:08)
Joseph Rosenbaum, he’s dead so we don’t know what he was thinking. We don’t know what was going on in his mind. That makes him an easy target for the defense today because they can stand up here and pile on him and destroy his reputation and he can’t speak for himself. That happens a lot in homicide trials, blame the victim who can’t speak for themselves. So I’m going to tell you a little bit about Joseph Rosenbaum and you’ve heard some testimony about him. He had been in the hospital, left it that day. Had a clear plastic bag with his possessions. Toiletries, a water bottle. We’ve all seen this. You get it in the hospital. It’s pretty common. He’s walking around like it’s pretty much his only possession in the world.
Mr. Binger: (46:57)
He visits Kariann Swart, his girlfriend. And then happens to wander downtown into the middle of civil unrest. No indication he planned to be there, no indication he’s part of any sort of movement, he just happens to stumble into it. So what does he do that night? Oh, let me tell you all the awful things Joseph Rosenbaum did. He tipped over a porta potty that had no one in it. He swung a chain. He lit a metal garbage dumpster on fire. Oh, and there’s this empty wooden flatbed trailer that they pulled out in the middle of the road and they tipped it over to stop some bearcats and they lit it on fire. Oh, and he said some bad words. He said the N word. If he were alive today like Joshua Ziminski I’d probably try and prosecute him for arson. But I can’t because the defendant killed him. But that’s the way we deal with people that do these things. When you commit arson, we prosecute you. We don’t execute you in the street.
Mr. Binger: (48:03)
And I’m not [inaudible 00:48:03] that [inaudible 00:48:06] Rosenbaum did [inaudible 00:48:07] that kind of behavior, not at all. But he didn’t deserve to die for it. He can’t kill someone for these things. He’s 5’4″, 150 pounds. Jason Rakowski characterized him as a babbling idiot. Rakowski says, “I turned my back and walked away. This guy wasn’t even a threat.” I think we all know somebody like Joseph Rosenbaum, the Napoleon complex, the little guy who just wants to chatter. But when it comes down to it, it’s all bark. It’s no bite. It’s like a little dog bark, bark, bark, bark, bark. Really ain’t going to do anything.
Mr. Binger: (48:48)
There is no dispute in this record that at no point that night did Joseph Rosenbaum hurt anyone. Never had a gun, never had a knife, never had a bat, never had a club. And in the Drew Hernandez video, that fight at Ultimate Gas that we showed you, he’s being shoved around by the crowd like a rag doll. And yeah, he’s mouthing off, he’s talking a lot. But he doesn’t actually threaten anybody, doesn’t actually hurt anybody. They’re pushing him around like he’s a tiny little person, which frankly he was.
Mr. Binger: (49:38)
And in the background of this video, you will hear somebody say, “Point your gun at me.” Or something like that. That’s Joseph Rosenbaum. He’s upset because somebody pointed a gun and that triggers him, which is understandable. I think most of us would be triggered by that sort of thing. And that’s what’s upsetting to him. But he gets right in the face of people who have AR-15s, never reaches for their guns, never rears back to punch anyone, never even lays hands on anybody. You’re going to watch this confrontation here at Ultimate Gas and I want you to keep in mind that there’s a group of people on one side with AR-15s and a group of people on the other side. And none of the people with the AR-15s feel their life is in danger, none of them shoot their guns. They can handle themselves. The defendant can’t.
Speaker 5: (50:36)
[inaudible 00:50:36]
Mr. Binger: (50:59)
That sound you heard was somebody throwing some sort of plastic thing at one of the stanchions underneath the gas station. And it makes a sound that almost sounds like a gunshot. So add that into the mix. You’ve got people with guns, loud voices, clear hostility and the sound of something that frankly to me sounds like a gunshot, and yet everybody keeps their cool, nobody hurts anybody, nobody fires a gun. And watch how they push Joseph Rosenbaum around like a rag doll.
Speaker 5: (51:27)
[inaudible 00:51:27].
Mr. Binger: (51:48)
Watch this guy in yellow. He’s going to shove Joseph Rosenbaum about eight feet away. I guess it was a different guy that did that. But they’re shoving him around like a ragdoll. Nobody feels [inaudible 00:52:09]. Mouthy little guy. He’s a little dog that barks.
Speaker 5: (52:16)
[inaudible 00:52:16].
Speaker 6: (52:16)
Hey, hey, hey.
Mr. Binger: (52:22)
And you know what he’s going to do now? He’s going to tell him, “Hey, I need to go grab my bag. I don’t have my bag.” So they let him on through.
Speaker 7: (52:27)
We got to stick together. We got to stick-
Mr. Binger: (52:35)
There he is about to reach down and grab his bag off the ground. That’s Joseph Rosenbaum. You’ve heard testimony that he tells people, “Shoot me.” Asking them to shoot him. I’m curious how that’s a threat to anyone else. He’s triggered, as we saw in that video, by people pointing guns at other people, which is reasonable. Most people would feel that same way. And then we get to the crux of the defense. This threat that he supposedly made to the defendant. The defense would love to be able to play you a video of this threat. They would love for you to see it and hear it yourself. This is a night in which there are dozens of people out there, reporters and regular folks who are recording with their cell phones and with other cameras all night long. We have shown you video of almost every minute of the defendant’s night from multiple different angles. And yet you have not been shown a single video with this threat. Nowhere. It’s not out there. Ryan Balch testified, and we have his transcript. We have his testimony. And what he says is there was an incident in which Dustin Colette had put out a dumpster fire and said something to the effect of, “Fuck around and find out.” And Balch steps in. And he has an exchange with the protestors. And he turns around and Rosenbaum, “… Is right there in front of my face yelling and screaming. And I tell him to back up. And he goes, ‘you know what? If I catch any of you guys…'” Blah, blah, blah. So that’s the timing according to Ryan Balch, right after that dumpster fire. Kristan Harris, from The Rundown Live was there, physically standing right next to Ryan Balch. Not only was he there during the dumpster fire, but he stays with Ryan Balch and/or the defendant for the next six or seven minutes, recording everything. And I’ve played this video for you.
Mr. Binger: (55:12)
It is exhibit 18. And I played for you a period of time from one hour and 22 minutes to one hour and 28 minutes. And I asked Kristan Harris, I call him to the stand and I said, “I’m going to ask you two questions. Number one, do you independently remember seeing Joseph Rosenbaum, hearing this threat?” And he said no. And then I said, “Okay, well maybe you missed it because there’s a lot going on. So re-watch your video for me and tell me, is it in there?” And he said, “No.” This video captures that entire period of time with Ryan Balch and the defendant right there and there’s no threat, there’s no Rosenbaum, it didn’t happen. The defense desperately wants this because they’ve got to give you a reason why it’s okay to kill Joseph Rosenbaum and this threat is critical to their case. But it’s not there. In exhibit number three, and I’ll play it for you here as I’m talking, Joseph Rosenbaum isn’t even visible. Now I submit to you that even if… I’m sorry, this is exhibit 18. Even if there was a threat made, it’s still not enough. Because Joseph Rosenbaum’s unarmed and you can’t kill him. But the defense has pinned a lot of their case on a threat that didn’t happen and they can’t prove. It’s not on video. It’s not there. So I’m going to pull up exhibit 18, the Rundown Live video. And I’m going to go to that mark.
Kristan T. Harris: (57:07)
Kristan T. Harris here at The Rundown Live and I’m here with a bunch of…
Speaker 5: (57:09)
[inaudible 00:57:09].
Kristan T. Harris: (57:09)
Kristan T. Harris here at The Rundown Live. If you are live, share this in all your groups, your [inaudible 00:57:22].
Speaker 8: (57:21)
Just like the year, man.
Kristan T. Harris: (57:24)
Yeah, right?
Mr. Binger: (57:26)
So here’s the dumpster fire.
Kristan T. Harris: (57:27)
If 2020 was a blunt it would be just the fucking stem.
Speaker 8: (57:31)
It would be shit. It would just be stem and seed, man.
Kristan T. Harris: (57:33)
Yeah, right? I could use a doobie right now.
Mr. Binger: (57:35)
Joseph Rosenbaum is not in this video. Here’s Dustin Colette about to put the fire out.
Dustin Colette: (57:42)
You guys want to fuck around and find out?
Kristan T. Harris: (57:49)
Hey. Hey, hey, hey, hey. Reel in. Reel in. Reel in. Don’t cause problems when there’s none here. Yeah, that’s true. Just stay on your property. [inaudible 00:58:04] which way it is.
Speaker 9: (58:06)
Protect your property, not the streets. Protect your property, not the streets. Protect your property, not the streets. Protect your property, not the streets. Protect your property, not the streets. Protect your property, not the streets. Protect your property, not the streets. Protect your property, not the-
Kristan T. Harris: (58:06)
I have to agree with her.
Mr. Binger: (58:15)
Here’s Ryan Balch standing right next to Gaige Grosskreutz. Joseph Rosenbaum isn’t here. And defendant and his group are being told an important message. As long as you stay on your property, but don’t go out there and cause trouble.
Speaker 9: (58:30)
Protect your property, not the streets. Protect your property, not the streets. Protect your property, not the streets. [inaudible 00:58:39].
Kristan T. Harris: (58:42)
I have to agree with her. They shouldn’t on the street. They’re just protecting their property. The other guy’s an asshole.
Ryan Balch: (58:48)
I know. I thought they were yelling about it. I was like, “Why? You guys were-”
Kristan T. Harris: (58:53)
Well the other guy is losing his patience. He should go inside.
Ryan Balch: (58:55)
Yeah. That’s where we’re about to send him.
Kristan T. Harris: (58:57)
Yeah. If you guys can switch him out [crosstalk 00:58:59].
Mr. Binger: (58:59)
He’s talking to Ryan Balch right now.
Kristan T. Harris: (59:02)
He’s got a lot rage. He says the wrong thing, this whole property is guys life. Protect your property, they’re respecting that. Just keep it there.
Ryan Balch: (59:09)
Hey, let’s keep it moving guys. We’re not [inaudible 00:59:18]
Mr. Binger: (59:18)
This is where Ryan Balch goes and talks to a protestor.
Ryan Balch: (59:21)
He’s just trying to protect his property. He didn’t want anything, he has no problem with you guys. He just doesn’t want anyone to burn down his shit. I can’t blame him. I understand. Hey. Hey, your job isn’t to be in the street. You got to stay in your property. That’s why you got problems already with people. No one’s bothering your property. Don’t look for trouble with anyone. A medic?
Speaker 10: (59:56)
I am a medic.
Ryan Balch: (59:56)
I know you are, but they got your own medics and they don’t…
Speaker 11: (01:00:00)
I know you are, but like they got their own medics and somebody will try to take care of them. I know you’re just trying to make peace. I get that. But they don’t look at it that way. They look at you guys as [inaudible 01:00:12]. As much as you guys [inaudible 01:00:16]. I know.
Speaker 11: (01:00:18)
Thanks, guys.
Speaker 12: (01:00:18)
Back away from the business. Back away from the business.
Mr. Binger: (01:00:47)
The rest of the video is the crowd being warded off by gas launched by the police. They launched tear gas, which affects the defendant. It affects Ryan Balch. It affects Kristan Harris. And that group all runs alongside the 59th Street Car Source, away from the street, away from any protestors. At no point in that video do you hear any threat that Joseph Rosenbaum makes. It’s not there. Trust me. If the defense had it, they’d play it for you.
Mr. Binger: (01:01:25)
Now, they want you to believe that that threat is made. And they also want you to believe that it was something that the defendant took into account when he decided to kill Joseph Rosenbaum. One of the questions that occurs to me is, how would the defendant even know who that guy is? Because earlier in the night, Joseph Rosenbaum is wearing a red shirt and a blue bandana, but by the time he’s killed, he’s got no shirt on. He’s got no blue bandana. This is someone the defendant has never even met before. He’s one of hundreds of people in the crowd. And yet we’re expected to believe that in a split second, the defendant remembers this guy. I don’t believe so.
Mr. Binger: (01:02:09)
So then, that video that I just showed you leaves off at about 11:35 PM. The police have moved the protestors south of 60th Street. They’ve teargassed the crowd, and there’s no protestors left. 59th Street is no longer in any danger. It wasn’t in much danger to begin with it. There wasn’t anything left there to protect. But by this point, there’s no more danger. As law enforcement comes through, you’ve heard this video where they tell the defendant and his group, “We appreciate you,” and hand them out bottles of water. As long as you stay on that private property, yeah. No one is saying you don’t have the right to stay on private property and protect private property. What people are saying, what the crowd is saying is, “Stay there. Don’t go out looking for trouble.”
Mr. Binger: (01:03:04)
The defendant hears this message from the police and takes it the wrong way. He thinks, “Oh, well, now I’m junior policeman. I can go run around stopping crime.” But I asked him and I asked some other witnesses, if the police are there on the scene and the protestors are gone, go home. Why are you still here? Shouldn’t have been here in the first place, but why are you still sticking around? And interestingly enough, one of the questions I’ve always had in the back of my mind is, “What’s the endgame here? When is this crew going to be done and decide that it’s time to leave?” Well, right after the defendant kills Joseph Rosenbaum, kills Anthony Huber and comes back, they all flee like rats off a sinking ship.
Mr. Binger: (01:03:49)
But it’s boring at 59th Street. There’s no protestors. There’s no action. So the defendant decides about 11:35 PM to cross the police line and go looking for trouble. He knows at this point, he’s entering a hostile crowd. He’s seen this crowd. He knows what they’re like. That’s why he has to yell, “Friendly,” to them. Because he knows they’re not going to see him and think he’s friendly. And he knows. He’s got to have Ryan Balch with him, some sort of buddy to protect him. And he’s immediately confronted by that man with the yellow pants who says, “You just pointed your gun at me.” And the defendant says, “Yeah I did.” He admits that.
Mr. Binger: (01:04:32)
Now, what’s interesting to me is they want you to believe this never happened. They want you to believe this guy in the yellow pants made it up or is lying. But he’s just standing there by the side of the road minding his own business when the defendant happens to walk up to him. Do you think he just sat there and thought, “Oh, I’m going to make up a lie about this guy on a spur moment,” or did it really happen? And is it consistent with everything else you’ve seen about the defendant? Does he sound like the sort of guy who would point a gun at someone for standing on a car?
Mr. Binger: (01:05:03)
Does he strike you as the kind of guy that would threaten deadly force to protect property? Because that’s what happened. The man in the yellow pants says it happened. The defendant agrees. And then he comes into the trial and says, “Oh, I was being sarcastic,” like he’s a little 17 year old and he wants to get out of it. Shortly after that, the defendant loses track of his protector, Ryan Balch. So now he’s in a position where he knows that he’s surrounded by people that consider him a threat. He knows that he’s not supposed to go anywhere without Ryan Balch. He knows he’s supposed to go back to 59th Street. And he does. He tries. He walks up to the police line. He says, “I work there. That’s my business,” which isn’t true, but whatever. And they won’t let him through.
Mr. Binger: (01:05:51)
Now, Ryan Balch makes it on through shortly thereafter. But the defendant gives up. He could go one block in either direction and make it back easily if he wants to, but he stops and decides, “You know what? I’m going to stay here and maybe see what’s going to happen.” So then he talks to these people with fire extinguishers and he’s just going to go on to 63rd Street and he asks one of them to come along, and they say no. Now, at this point, doesn’t have Ryan Balch. He knows he’s supposed to go back. He knows he’s supposed to have a buddy. And yet he decides to go it alone. He decides to walk down to 63rd Street. Doesn’t even know if that other group is still there. Doesn’t even know if he’s really needed, but he can’t wait to take this opportunity to go down and confront people because he thinks he’s some sort of cop, some sort of law enforcement agent, some sort of junior cadet who’s out there with the responsibility to fight crime. Nobody asked him to do that. Nobody gave him the right. Nobody deputized him.
Mr. Binger: (01:06:53)
Ryan Balch says, “The police told me the crowds, we’re going to push them down by you. You’re going to deal with with.” The bearcats hand out water and tell him he’s appreciated. As he’s crossing the police line, they warn him about people throwing rocks. What is the message the defendant takes from all of this? The wrong message. “Oh, well, now I’ve got the power. I’ve got the gun. I’m going to go confront these bad guys. I’m going to stick my nose in things.”
Mr. Binger: (01:07:20)
So what does he do when he gets down to 63rd Street? The first thing he does. We showed it to you at the very beginning, that drone video. Grabs that gun and points it at someone to protect property. Points it at the Ziminskis, because why? Because they’re what? About to mess with some sort of fire. They’re not threatening anyone’s lives. He doesn’t need to protect anyone. He doesn’t need to protect himself. He’s pointing a gun because he thinks he needs to protect property. He says he wants to put out a fire, but the first thing he does is drop the fire extinguisher on the ground. His AR-15 isn’t going to put out a fire. So why is he really there? And we all agree, you can’t use or threaten deadly force to protect someone else’s property.
Mr. Binger: (01:08:10)
You are here to decide whether or not his actions are legally justified, not to buy pathetic excuses that might be given to you. As a teacher, when a student says to you, “The dog ate my homework,” that’s an excuse. It doesn’t get you out of the homework assignment. If you panic in a situation that is not reasonable, that is an excuse, it is not a legal justification. If you’re 17, if you don’t have training or experience, if you put yourself in a situation where you’re in over your head, if you’re scared, those are excuses. Those are not legal justifications to kill. They do not erase your personal responsibility for your own actions. The court has read to you the instructions in this case. They lay out the law that you should apply. That reading took a long time. And I understand there was a lot to digest. And one of the things that you will have the opportunity to do when you go back and deliberate is read through those instructions yourselves, because I get that listening to them doesn’t always make it clear. But I encourage you to focus on some things when you consider the defendant’s behavior in this case. You are told that criminally reckless conduct is conduct that threatens other people’s lives and poses an unreasonable and substantial risk to other people. There is no dispute the defendant’s activities here threatened other people’s lives. He took two lives.
Mr. Binger: (01:09:48)
This is not like a normal murder case. A lot of murder cases, we’re in here trying to convince a jury that the defendant killed somebody. That’s not in dispute here. That’s the easy part. The question is, “Does he get a pass? Do we think that’s okay? Do we think what he did was right?” That’s the question you have to answer. And when you consider whether his conduct was criminally reckless, consider, “Did it pose an unreasonable and substantial threat to the safety of others?”
Mr. Binger: (01:10:18)
Count four charges him with first degree intentional homicide of Anthony Huber. There is no doubt that the defendant intended to kill Anthony Huber or committed conduct that he knew was practically certain to kill Anthony Huber. That gun was pointed in Anthony Huber’s lower left rib cage and the defendant deliberately pulled the trigger. That was no accident. And when you do that with an AR-15 against someone’s body, it is practically certain to kill.
Mr. Binger: (01:10:50)
We all know this case comes down to self defense, but there’s a high bar for using deadly force in a self-defense situation. The law says that the defendant may intentionally use force, which is intended or likely to cause death or great bodily harm, only if the defendant reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself. So did Joseph Rosenbaum pose an imminent threat of death or great bodily harm to the defendant? No way. Did Anthony Huber pose an imminent threat of death or great bodily harm to the defendant? Absolutely not. Did jump kick man or Gaige Grosskreutz? No. None of these people posed an imminent threat to the defendant’s life or to cause great bodily harm.
Mr. Binger: (01:11:48)
The standard when you make this decision is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense. The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of the defendant’s acts and not from the viewpoint of the jury now. So put yourself in the defendant’s position. Would you have done the same thing? Would a reasonable person have done the same thing? Would you have engaged in the reckless conduct that led to this course of events? Would you have gone out after curfew with an AR-15 looking for trouble? Would you have aimed at other people? Would you have tried to use the gun to protect an empty car lot? No reasonable person would’ve done these things.
Mr. Binger: (01:12:40)
The court has also instructed you on provocation. You cannot hide behind self-defense if you provoked the incident. If you created the danger, you forfeit the right to self-defense. By bringing that gun, aiming it at people, threatening people’s lives, the defendant provoked everything. And if he does that, he has to exhaust all reasonable means to avoid a confrontation. All reasonable means. So if Joseph Rosenbaum’s running at him, Joseph Rosenbaum is no threat to his life. And not only is the defendant expected to run, he’s expected to yell, push, shove that rag doll around, run back for help, call 911, call for help, do all sorts of other things besides just turn and fire four shots as Joseph Rosenbaum falls helpless to the ground.
Mr. Binger: (01:13:45)
Ladies and gentlemen, there is no doubt in this case that the defendant committed these crimes. He committed a first degree reckless homicide against Joseph Rosenbaum. He put Richie McGinniss’ life in jeopardy. He put jump kick man’s life in jeopardy. He intended to kill Anthony Huber and he attempted to kill Gaige Grosskreutz. All of those elements are true. The question is whether or not you believe that his actions were legally justified. And I submit to you that no reasonable person would’ve done what the defendant did, and that makes your decision easy. He’s guilty of all counts. Thank you.
Judge: (01:14:37)
Thank you, Mr. Binger. Let’s take a break and how about 2:25, hopefully. And please don’t talk about the case, read, watch, or listen to any account of the trial.