The prime video on Wednesday from the trial of Kyle Rittenhouse, who killed two men and wounded a third in Kenosha, Wisconsin during the disturbances there that followed the police shooting of Jacob Blake in August 2020, is going to be Rittenhouse’s operatic breakdown under the questioning of defense attorney Mark Richards. Either that, or yet another high-decibel scolding of the prosecutors by Judge Bruce Schroeder.
(A note: while I thought it odd that a 17-year old who’d so coolly turned himself in to police after shooting three people in the middle of a riot would come apart so completely while testifying in his own defense, I would point out that the witness box is a godawful place to be. I have testified twice in my life, both in civil actions in which I was neither plaintiff nor defendant. It’s a goddamn nerve-wracking experience even in the most benign circumstances.)
However, late in the afternoon session, as Rittenhouse was being cross-examined by prosecutor Thomas Binger, the trial veered into a very strange place. Binger, as I noted, has been the target of Judge Schroeder’s ire on several occasions, including earlier on Wednesday, when Schroeder told Binger, flatly, “I don’t believe you when you say you were acting in good faith.” (Binger had attempted to introduce, through a side door, evidence that Schroeder already had refused to admit under other circumstances.) When they came back from recess, the defense accused Binger of trying to incite a mistrial, and then moved for a mistrial with prejudice, which would mean Rittenhouse would walk and then he never could be tried again. Schroeder took the motion “under advisement,” keeping it in his pocket where it could function as a warning against angering him further.
Which is about when things got weird. Binger began to show Rittenhouse drone footage from the night of the shootings that seemed to contradict some of Rittenhouse’s account of what happened. Binger quite naturally asked the detective who was operating the iPad on which the drone footage was being shown to use the pinch-zoom function common to any of us who have an iPhone. The defense leaped to object on the grounds (I think) that “artificial intelligence” in the pinch-zoom changed the pixels according to what Richards called the “logarithms” of the device’s design. The software, Richards argued, might create “what it thinks is there, not what necessarily is there.”
Frankly, I didn’t know what in the hell Richards was talking about. Artificial intelligence? Logarithms? (I guess he was going for “algorithms,” but I can’t be sure.) But Judge Schroeder then leaped in and further confused matters. From the New York Times:
That objection set off a 10-minute discussion among the lawyers and Judge Bruce Schroeder. Mr. Binger said zooming in on images shown on iPads, iPhones and other similar devices is a routine part of daily life that all jurors would understand, and that the procedure would not affect the integrity of the image.
He argued that if the defense lawyers thought otherwise, they should have to present expert testimony saying so. But Judge Schroeder said that the burden was on Mr. Binger to prove that zooming would not distort the video. “Is the image in its virginal state?” the judge asked.
(Ed. Note: Oh, dear god in heaven.)
Mr. Binger then asked for an adjournment, but Judge Schroeder denied the request. Instead, he ordered a 15-minute recess and suggested that Mr. Binger could, perhaps, get somebody to testify to the zoomed video’s accuracy “within minutes.”
Were I a cynical fellow, I might conclude that Richards knows better, but that he was counting on the judge being something of a Luddite, which turned out to be a pretty good bet. So the judge gave the prosecution 15 minutes to find an expert to testify that something every baby’s grandma knows to be true is actually the way things are. Right now, that witness box Kyle Rittenhouse is in looks an awful lot like the catbird seat.
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