Is this standard operating procedure among prosecutors, or is this as bad as it looks? When this clip from the testimony of Nathan DeBruin in the Kyle Rittenhouse trial got published on Twitter, I asked that question in earnest. The answer remains unclear, but it certainly looks as though DeBruin is describing an attempt by prosecutors to pressure DeBruin into amending his police statement to favor their case.
“Suborn perjury” isn’t quite accurate, but this seems to go beyond mere witness coaching too:
ADA binger tried to suborn perjury pic.twitter.com/KhtzwE8LYH
— oak_tree_upheaval (@oaktreeupheaval) November 9, 2021
Not being an attorney myself, perhaps this episode has more nuance than it seems. However, one can imagine that the jury has little or no insight into prosecutions either. Does anyone wonder what they make of this exchange?
Andrew Branca, an attorney covering the trial for Legal Insurrection, calls DeBruin perhaps the most powerful defense witness yesterday:
I say that DeBruin seemed an unlikely candidate to be the defense’s most powerful witness of the day because he presented—and conceded—that he was extremely anxious, and he also suffers from a rather prominent speech impediment.
Despite this, DeBruin was absolutely coherent and firm in his testimony, almost driving ADA Kraus into a rage with his calm and cool testimony that was so helpful to the defense and so damaging to the prosecution. Indeed, at times ADA Kraus’ cross-examination of DeBruin became completely unprofessional, and almost personally bullying.
Perhaps nothing was as damaging to the prosecution, and as personally infuriating to ADA Kraus, as DeBruin’s testimony that in a meeting with ADA Binger and ADA Kraus he had the perception that they were asking him to “change” his statement to police about what he had observed the night of the 25th. Here “change” should be read to mean “falsify”—in particular, to falsify some conduct or presence of Joshua Ziminskiy.
Indeed, immediately after that meeting with prosecutors, in which DeBruin refused to change a word of his prior statement, he immediately left and retained his own legal counsel—and that counsel was present in the courtroom during DeBruin’s testimony today.
Branca clearly is no fan of the prosecution and their decision to charge Rittenhouse anyway. However, this point seems especially pertinent as to the motives of prosecutors in bringing these charges. Whether they just got overzealous or are pushing a political agenda, it doesn’t look good for them that a witness felt compelled to hire an attorney to protect himself from prosecutors.
The case continues today, perhaps to the surprise of some. After the prosecution basically stumbled into establishing a case for self-defense through their own witnesses — at the very least, a truckload of reasonable doubt on that score — the prospects for a directed verdict seemed pretty decent. Branca explains why that was an unreasonable expectation:
Many people have wondered if the defense would make a motion for a directed verdict. This is a motion arguing to the judge that no reasonable jury could convict based on the state’s case is chief, and asking the judge to take the matter out of the hands of the jury and render a verdict himself.
Motions for a directed verdict are made as a matter of routine in almost every criminal case I’ve ever been involved in—and they are as routinely denied. The best path to a directed verdict is where the prosecution has simply produced zero evidence on some element of the underlying crime—or, in the context of this case, zero evidence attacking some element of the defense
Once virtually any evidence has been presented, however, most judges are loathe to take from the jury their role in being the weigher of evidence, the finders of fact, and barely more than zero evidence is therefore enough to deny a motion for a directed verdict.
Juries are unpredictable, too. Even for those observing a trial in some detail, the dynamics of juries are somewhat inscrutable. It seems almost unthinkable that they will look at the prosecution’s case and have all reasonable doubt removed as to Rittenhouse’s guilt, but you never know. A directed verdict would have been safer, clearly, but Branca’s perspective makes sense.
This will likely come down to closing arguments and jury instructions, where a judge can exert a lot of influence on the shape of the debate in the jury room. What it won’t come down to is Rittenhouse’s testimony, not unless his attorneys are insane:
Rittenhouse’s attorney Mark Richards told the jury during opening statements last week that they would hear from Rittenhouse himself about how protesters were carrying rocks. But the witnesses that prosecutors have called to the stand since then have frequently made Rittenhouse’s case for him, testifying that the men he shot were the aggressors and that Rittenhouse told people in the immediate aftermath he had no choice but to pull the trigger.
Putting Rittenhouse on the stand now could risk hurting more than helping his case, legal experts say.
“(The state’s witnesses) enabled the defense to tell their story of self-defense more through cross-examination . . . and that may be enough to get the reasonable doubt or self-defense verdict,” said Loyola Marymount University law professor Laurie Levenson. “I think that many lawyers would say that Rittenhouse could cause more problems for himself than advantages by taking the stand at this point.”
I think they planned to have the jury “hear from Rittenhouse” through the testimony of witnesses, not from putting a teenager on the stand in his own defense. Both sides have gotten testimony from witnesses about Rittenhouse’s exclamations and utterances at the time of the shooting, most of which has backfired already on the prosecution. Another attorney puts that explicitly to the Associated Press:
Phil Turner, a former federal prosecutor turned defense attorney in Chicago, said if Rittenhouse was his client he would not put him on the stand.
“There’s a possibility (he testifies) but I think it’s not great that he will,” Turner said. “He doesn’t need to. I think his defense is already there with all the people who were shot or threatened or whatever that they were the aggressors. (Rittenhouse) can’t add anything to it and the only thing he can do is hurt himself somehow. The prosecution has the burden of proof and in this case, from the sounds of it, they haven’t even come close.”
Indeed. Keep up with events by following our Townhall colleague Julio Rosas on Twitter, and don’t forget that it’s our VIP and VIP Gold programs that supply the resources that allow us to dedicate him to the trial. Sign up today and use the promo code 2022 to get our biggest discount yet!
Update: Hoo boy:
🚨🚨🚨: The defense called Rittenhouse to the stand but the Judge said they need to take a five-minute break.
— Julio Rosas (@Julio_Rosas11) November 10, 2021
They’re putting a teenager on the stand in his own defense, in a case they clearly seem to be winning already? That is, um … an interesting choice. They’re setting him up to be a punching bag for a prosecution that’s already demonstrated a lack of scruples in pursuing this case. Either his attorneys are insane, or Rittenhouse demanded a chance to tell his story.