Kyle Rittenhouse trial, Ahmaud Arbery case both expected to hinge on video

Written by on November 1, 2021

(NEW YORK) — Two trials over killings that have garnered national attention are now going on simultaneously and legal experts said they expect both will hinge on video evidence.

Jury selection in the trial of 18-year-old Kyle Rittenhouse, who is accused of killing two white people and wounding a third during a protest over the police shooting of a Black man in Kenosha, Wisconsin, began on Monday.

At the same time, jury selection is ongoing for the trial of three white men accused of chasing down and killing Ahmaud Arbery, a Black man who was jogging in Brunswick, Georgia.

Opening statements in both cases could commence by the end of this week.

Chris Slobogin, a law professor at Vanderbilt University in Nashville and director of the school’s Criminal Justice Program, told ABC News that he is not aware of two major murder trials such as these occurring at the same time.

Although the allegations are vastly different, video is expected to play a major role in both trials.

“The prevalence of video in this day and age has made many criminal cases much different than was the case 10, 20, 30 years ago,” Slobogin said.

But Slobogin said the video evidence does not necessarily mean a slam dunk for prosecutors in either case.

“Visual evidence isn’t necessarily the truth in the sense that there are a lot of different angles to any given event and the only angle you’re getting when you have video is the angle that the camera was pointed from,” Slobogin said.

Rittenhouse, who was 17 at the time of his alleged crimes, is claiming he used deadly force because he was being attacked by a mob and feared for his life.

The Antioch, Illinois teen Rittenhouse, has pleaded not guilty to charges of first-degree reckless homicide, first-degree intentional homicide and attempted first-degree intentional homicide. He has also pleaded not guilty to a misdemeanor charge of possession of a firearm by an individual under the age of 18.

Rittenhouse, according to his attorneys, answered “his patriotic and civil duty to serve” when an online call was put out by a former Kenosha city alderman for “patriots” to take up arms and help protect lives and property in the city against looting and rioting that occurred in August 2020.

Angry protests broke out in Kenosha after a police officer there shot Jacob Blake, a 29-year-old Black man, multiple times in the back, leaving him paralyzed from the waist down. The local district attorney declined to charge the officer after he was cleared in an investigation by the state Department of Justice.

Rittenhouse, who is white, is accused of using an AR-style semiautomatic rifle to fatally shoot two men, Joseph Rosenbaum, 36, and Anthony Huber, 26, during an Aug. 25, 2020, protest in Kenosha. He is also accused of shooting and severely wounding another white protester Gaige Grosskreutz, 27.

“We have a situation where a 17-year-old boy, who is not even legally able to carry a weapon, was allegedly in town to protect property that did not belong to him. That’s extraordinary,” veteran Michigan defense attorney Jamie White told ABC News. “Clearly, he (Rittenhouse) was under some form of assault when you look at the video in an acute sense. But when you look at the entirety of the situation, he just should not have been there.”

The Arbery case

In the Arbery case, the defendants Gregory McMichael, 65, a retired police officer, his son, Travis McMichael, 35, and their neighbor, William “Roddie” Bryan, 52, are accused of trying to make a citizens’ arrest when Travis McMichael allegedly shot the unarmed Arbery three times with a shotgun, killing him.

Travis McMichael is also expected to claim self-defense, arguing the use of deadly force was justified when the 25-year-old Black man violently resisted a citizens’ arrest under a law that existed at the time. The pre-Civil War-era law that was repealed in May primarily due to the Arbery killing gave civilian vigilantes the power to arrest someone they “reasonably suspected” of trying to escape from a felony.

Gregory McMichael, according to his attorneys, claims he thought Arbery, who was jogging past his house, matched the description of a neighborhood burglary suspect. Both he and his son allegedly brandished firearms while chasing Arbery in Travis McMichael’s pickup truck that prosecutors allege had a vanity plate featuring a Confederate flag.

Bryan recorded a cellphone video of the confrontation that partly captured Travis McMichael shooting Arbery during a struggle and is expected to be the key evidence prosecutors plan to present at trial.

Bryan’s lawyer claims he was just a witness to the incident, but prosecutors alleged he was an active participant in “hunting down” Arbery. Prosecutors also allege that Bryan told investigators he overheard Travis McMichael yell a racial slur at Arbery as he lay dying in the street, an allegation the younger McMichael denies.

Prosecutors say the evidence will show Arbery was just out for a Sunday jog when he was allegedly murdered.

All three men have pleaded not guilty to state charges of murder, aggravated assault, false imprisonment, and criminal attempt to commit false imprisonment stemming from the Feb. 23, 2020, fatal shooting in the unincorporated Satilla Shores neighborhood near Brunswick.

The three men were also indicted on federal hate crime charges in April and have all pleaded not guilty.

“We have men who had no property interest in the home where the deceased was apparently trespassing at the worst-case scenario and ended up shot to death,” said White, the Michigan trial attorney, referring to a home that was under construction Arbery was caught on surveillance video leaving empty-handed just before he was killed.

‘I just shot somebody’

Video evidence expected to be presented in the Kenosha case could prove favorable in the defense of Rittenhouse, Obear said.

“You know the old saying, a picture speaks a thousand words, a video speaks a million. Having watched the videos, I think it’s very apparent exactly what the defense argument will be: ‘You just have to watch the videos,'” Obear said. “He’s basically naturally in a position where he would seem to be defending himself with people approaching him in that manner.”

Cellphone videos played at earlier court hearings, partly captured two confrontations the teenager was involved in. In the first, Rosenbaum allegedly followed Rittenhouse into a used car lot and confronted him in an attempt to disarm him before he was shot to death, according to a criminal complaint. As Rosenbaum lay on the ground, Rittenhouse was recorded in a video running away while allegedly calling a friend and telling them, “I shot somebody.”

Defense attorneys have cited what appears to be the muzzle flash of a gun in the video before Rittenhouse fired his first shot.

Other videos recorded after Rosenbaum was shot show people chasing Rittenhouse down a street and him apparently being hit by Huber with a skateboard and falling to the ground. The video shows Rittenhouse allegedly shooting Huber, who apparently tried to take his gun away and firing at Grosskreutz, who investigators said was armed with a handgun. Grosskreutz suffered a severe wound to his arm when he tried to grab Rittenhouse’s rifle, prosecutors said.

The videos prompted then-President Donald Trump to comment on the Rittenhouse case in August 2020, saying it appeared he was acting in self-defense.

“He was trying to get away from them, I guess, it looks like,” Trump said during a news conference. “I guess he was in very big trouble. He probably would have been killed.”

A number of conservatives and gun-rights advocates rallied to Rittenhouse’s defense, contributing to his defense fund and putting up $2 million to cover his bail.

Judge’s controversial ruling

During what was expected to be the final hearing before the Rittenhouse trial begins, Kenosha County Circuit Judge Bruce Schroeder made a series of rulings that White said appeared to help the defense.

Schroeder ruled that defense attorneys can refer to the two men who were killed and the one wounded as “looters” and “rioters,” but barred prosecutors from referring to them as “victims” or even “alleged victims” during the trial, saying they must be called “complaining witnesses” or “decedent.”

The judge also granted the defense permission to call an expert witness in police use of force, even though the testimony will pertain to a civilian’s use of force.

“We do see the judge already acting in a way that could be arguably biased,” White said.

But Obear said much is being made over what he described as a “pretty standard” ruling.

“No one is a ‘victim’ until there’s an adjudication of guilt and the prosecutors like to throw that term around as if it’s a prejudged sort of situation,” Obear said. “But it’s a loaded term. When people hear the term victim it naturally conjures sympathy.”

Both White and Obear agreed that allowing the defense to call an expert on the use of force is a “huge win” for Rittenhouse.

“I think that what Mr. Rittenhouse did on this occasion is so extraordinary that to allow a third party to come in and make commentary about that from a legal point of view is certainly going to be powerful and probably will persuade the jury in one way or the other,” White said.

Obear added, “If this all has to do with what was going on inside of Kyle Rittenhouse’s mind the only way to solve that question is to let a jury decide this.”

“What possible reasonable resolution could there be here? We’re talking about homicides and his position is, ‘I didn’t do anything wrong, and self-defense is an absolute defense,’” Obear said. “If that’s correctly posited to the jury, they’ll find him not guilty, and he’ll go home.”

Will Rittenhouse take the witness stand?

Legal experts interviewed by ABC News were split on whether defense lawyers should put Rittenhouse on the witness stand.

“This is a case where I can actually see the defense prevailing here without putting him on the stand,” Obear said, citing the video evidence.

But White believes Rittenhouse should testify.

“He’s a child … and anytime you can present someone who’s vulnerable in that kind of way it’s going to benefit the defense from the standpoint of a jury,” White said.

Slobogin, however, said that if Rittenhouse testifies, he runs the risk of opening the door for prosecutors to raise broader questions about his actions and intentions.

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