i agree if we did it from scratch we could do it better but i don't agree should deviate any better because of think it's causing confusion. what madame court reporter just read back, for example, could be construed as saying, any time with regard to any count you find it justified self-defense, he walks on all five counts. >> that's not what i intended to tell them at all. >> i know you don't intend to tell that both already been said is that implication and i just worry the more we deviate from these instructions the more we get into the issues. i think we should stick with what you drafted which has been sent to the parties, we've all agreed on them, and i'm leery of any additional language that hasn't been cleared by the parties and could cause further confusion. >> i can say that whenever i've dealt with lesser included, i could give a little talk about how they should address them.

this is a more complicated case than most. i don't think i've said anything and correct so far and i don't want to step into something that i've already done. i am inclined though, because i made a statement about if everything is present, and i do think i should probably give the alternative which is, and i'm not going to use terms likes perfect self-defense like he did. i'm going to use the term, acted lawfully in self-defense. they are instructed on that. so i think that a correct statement is, if as to any of the cases of multiple submissions, if on any individual account they find in

their consideration of the charged offense that the defendant acted lawfully in self-defense, they are done. any objection? >> no. >> while we are talking about the jury instructions, it was noticed as you read them, on page ten, which is count three, it should be first be reckless endangerment. and you've written and you read homicide, which is not a homicide count. >> on page ten? >> top of page ten which would still be count three. we find the defendant guilty -- >> you're right. it is and there is homicide and that we didn't catch that i guess when we talked about them. i sent you three drafts. but you know what, should i just leave that alone? they will know that. i'll change it in printed copy.

>> argue closing for lunch now? it's after 11. >> how long are you going to talk in your first sequence? >> i limit myself to two hours. >> are you troubled by taking a break in the middle of your presentation? well, let's just kind of plan on around noon. because the lunch has already been ordered. so let's ask the jurists to come back in. i'll take a break, why not you, whenever you are comfortable around noon. just ask for the break. when he's the commander of the dash i don't want to interrupt him at a time he doesn't want to be.

>> harris: it's welcome to "outnumbered"'s hour of coverage here of the kyle rittenhouse murder trial. at this point we've seen a lot of back-and-forth with the judge giving his instructions in the defense and for prosecutors wanting to find tune without going back to the drawing board to rewrite them all. they seem to have reached a point of agreement now where they can go forward. it's been a lengthy amount of time listening to those instructions from the judge and stops and starts, but here we are. while the jury reenters the court room so that the prosecution can begin its closing arguments, undoubtedly, they will stop about halfway through because they are way over time and people will start to get hungry. i am a harris faulkner, emily compagno and kayleigh mcenany, we will be snding by for the next break. now back to the trial.

>> when you address the crime, if you and your discussions you conclude that the elements are present and the defendant was not acting lawfully in self-defense then you'd be go any further. you can return your verdict of guilt based upon that conclusion. if, in your discussions, as for any individual account and those with multiple possible verdicts, and your initial discussion if you decided that the defendant acted lawfully in self-defense, you're done. and you can return the not guilty verdict without considering the lesser offenses. in a question about that? hopefully it will become clear. i'm going to give you written instructions, because i know this is arduous going through this but every bit of it is

important. you will get written instructions for your reference in considering these things. counts one through five, that's all the accounts now. each contain the guilty verdicts of any submitted offense and paint a question based upon the allegation of the information that the defendant committed the crime using a dangerous weapon. if you find the defendant guilty on any of the counts, you must answer the following question. that the defendant committed the crime while using a dangerous weapon? dangerous weapon means any firearm at whether loaded or unloaded, at a weapon is -- use of gunpowder. before you may answer the question yes you must be

satisfied beyond a reasonable doubt that the defendant committed the crime while using a dangerous weapon. if you are not so satisfied, then the question must be answered "no." in reaching her evidence, examine -- in reaching a verdict examine the evidence with utmost care and caution. act with judgment, reason and prudence. the defendant is not required to prove his innocence. the law presumes every person innocent in this requires a finding of not guilty unless in your deliberations you find it is overcome by evidence which satisfies you beyond a reasonable doubt that the defendant is guilty. the burden of establishing every fact necessary to constitute guilt as upon the state. before you return a verdict of guilty the evidence must satisfy you beyond a reasonable doubt that the defendant is guilty. if you can reconcile the evidence upon any reasonable hypothesis consistent with the

innocence of the defendant, then you must do so and find him not guilty. the term reasonable doubt means that doubt based upon reason and common sense. it is a doubt for which reason can be given, rising from a fair and rational consideration of the evidence or want of evidence. that means such a doubt as would cause a person of ordinary prudence to pause or hesitate when called upon to act in the most important comparative light. a reasonable doubt is not a doubt based upon current gas or speculation. but that which arises mainly from sympathy or from fear of return of a verdict of guilt is not reasonable doubt. i reasonable doubt is not a doubt such as may be used to escape the responsibility of a decision. examine the evidence and search for the truth, giving the defendant the benefit of every reasonable doubt. evidence is defined as testimony for witnesses direct and cross-examination regardless of what party called the witness. second any exhibits which have

been received have a company due to the jury room. third any facts which the lawyers have a great or stipulated order which i have directed you to find it. anything that you may have seen or heard outside the courtroom is not evidence. you are to decide the case solely on the evidence offered and received at this trial. you should disregard entirely in a question to which i did not permit an answer. do not guess what the witnesses answer might have been and if the question itself suggested that certain information might be true ignore the suggestion and do not considered as evidence. attorneys have the right and duty to object to what they feel are improper questions asked who witnesses and to receive other evidence which they believe is not properly admissible. you should not draw any inference or conclusions from the fact that an objection is made. by allowing testimony or other evidence to be received over objection, i did not mean to indicate any opinion as to that

evidence and your jurors are the sole judges of the believability of the witnesses and of the weight of the evidence. at the beginning of the trial i described the charges against the defendant, counts six and seven which respectively charge of possession of a firearm by a minor and curfew violation have been disposed of and are no longer part of the case. the other counts remain. i do not guess about or concerning ourselves with the reasons for these dispositions. it must not affect your consideration of the charges that remain. do not consider evidence that related only to the counts which have been disposed of. during the trial i have ordered such testimony stricken and you must disregard such stricken testimony. tibbets become evidence only when received the court. an exhibit which was marked for identification but i received is not evidence.

and an exhibit received is not evidence whether or not the company is used for the jury room. if there are certain facts not in evidence disregard the suggestion. consider carefully the closing arguments of the attorneys, but their arguments, openings and conclusions are not evidence. draw your own conclusion from the evidence and decide upon your verdict upon the evidence under the instructions given to you by the court. i have taken judicial notice from the facts and you are order to accept them as true. the state has introduced evidence of statements which it claims were made by the defendant. and it is for you to determine how much weight if any and in evaluating each statement you must consider three things, whether the statement was made by the defendant, only so much of a statement as was actually made by a person may be considered in evidence. whether the statement was accurately restated here at the trial, whether the statement or any part of it ought to be believed, you should consider the facts and circumstances surrounding the making of each

statement along with all of their evidence along with any weight if any of the statement deserves. the weight of the evidence not depend on the number of witnesses on each side. you may find the testimony of one witness has entirely greater weight than that of another witness and you may be given such weight in considering your verdicts. in awaiting the evidence he may take into account matters of your common knowledge and observations and experiences in the affairs of life. ordinarily witnesses may testify only about facts. however witnesses with specialized knowledge in particular fields may give opinions in those fields. in determining the weight that you give to these opinions you should consider the qualifications and credibility and the facts upon which the opinions are based. and of the reasons given for the opinion. opinion evidence was received to help you reach a conclusion, however you are not bound by any witnesses opinion.

it is your duty as jurists to scrutinize the testimony of the witnesses and to determine the effect of the evidence of the hole. you are the sole judges of the credibility which is the believability of the witnesses and the weight to be given to their testimony. in determining the credibility of each witness and that what you give and the testimony of each of you should consider these factors. whether the witness is interested and the trial, conduct and demeanor and the clarity or lack of clarity of the witnesses declarations on the opportunity of the witness had to know and observe the matters of things about which testimony was given, the reasonableness of the testimony, the witnesses apparent intelligence, bias or prejudice if any has been shown. possible moments to falsify and all of the facts and circumstances during the trial which tend either to support or discredit the testimony and then get the testimony of each witness the weight to believe it

is entitled. at the defendant has testified in this case and you should not discredit his testimony just because he is charged with the crime. that's the same factors to determine the credibility and weight of the defendant's testimony that you use to evaluate the testimony of other witnesses. there is no magical way for you to evaluate the testimony. instead you should use your common sense in your experience. in your everyday lives you determine the reliability of statements made to you by others and you should do the same thing here. evidence has been received from that two of the witnesses in this trial have previously been convicted of crimes. this evidence was received solely because it bears upon the character for truthfulness and it must not be used for any other purpose. we are going to have the closing arguments -- you know what, does anyone want a break? even a short one? okay. we are going to get into the closing arguments of the attorneys now and we followed a

classical debate format in the court, and that is the proponent of a proposition is entitled to get the first and the last argument. so mr. binger, we will address the first on behalf of the state. then mr. richards for the defense and then after his remarks, one of the attorneys for the state will be addressing you on behalf of the state in rebuttal and, limited rebuttal of the interest during the presentation. we are going to break obviously, i'm not going to make us there for five hours, unless you want to. so we will break. i asked mr. binger while you are out of the room if he was comfortable breaking his argument into parts and he

indicated he was. so at this time he thinks it's appropriate that around noon, we will take our lunch break. and then, pick up this afternoon and, after all of the arguments have been presented, i will give you three or four more minutes of instruction and then we will do our striking with the tumbler over there and then it will be all yours. let me ask you -- which one do you want? okay. we will take a boat right now. supposing the case arguments are finished at four, 4:30 or 5:00, and we will be working well to get there, how many would like to begin their deliberations

tonight and stay until a later hour? or, how many would like to come back and start fresh in the morning? at the cutoff point would be, let's say we get finished by four, given the case, the latest i would let you go if you didn't want to stay late would probably be about 5:00. you would have the option to get started today, or we could start fresh in the morning if we finish up anytime after 3:30 or 4:00. so how many of you would want to continue on today? one, two, three, four, five, six, seven, eight. 8 out of 18. how many would rather come back fresh tomorrow?

okay. and of course as always i will make the final decision but i will certainly try to follow your wishes. with that, it's all yours. >> thank you, judge. good morning, ladies and gentlemen. i want to assure you that everything the judge just read to you, you'll get a copy of. so you can look it over yourself. i think it's no surprise that this is a case where there is a lot of noise and a lot of static surrounding it. so what i would 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. >> your honor, there's no curfew charge anymore, there's no gun charge. >> i know that there is no charge. there has been some discussion about the lawfulness, not in this case, but elsewhere. but there had been a curfew announced and that does not mean it was technically lawfully illegal curfew but there had been unannounced curfew. i will leave it at that. >> it was a curfew that all of 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.

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 to consider as you think about this case what his true motivations were. was this a situation where he sincerely cared about car source even though he had never heard of it, never bought anything there, or worked there and not even its owners were out there that night protecting it? was he genuinely interested in helping people? he ran around with an ar-15 all night and lied about being an emt. does not suggest to you that he was genuinely there to help? it is not there for the same purpose as the protesters, so why was he there that night? 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 is a lot of political issues back and forth and the judge has made it clear, this case is not about politics. here is common ground here. we have all agreed to, and i asked you this two weeks ago today. raise your hand if you agree that life is more important than property and all of you raised your hand. we also agreed that no one person's life is more valuable than another. you don't get to kill someone simply because they are a drug dealer, you don't wait a pastors life over a teacher's life, you don't wait 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. finally, i want you to keep in mind that we've all read the stories and heard about heroes that step into stop and active

shooter or give their lives to save others. many people in wisconsin went out and got carrying concealed weapons permits just so they could be there if there was an active shooter and wanting to stop them. 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. if they have a preconceived notion in the tailor the facts to fit whatever they believe. you all agreed to keep an open mind. you all told us that you didn't have any of those preconceived notions. now, you have 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 lied about being an emt. i think all of us are familiar with someone who does the sorts of things of the defendant has done. they enjoy the thrill of going round and telling people what to do without the courage or the

owner to back it up and without the legal authority to do so. and when you think about the defendant's behavior in this case, contrasted with anthony huber a man who was there because he knew david blake. a man who carried a skateboard everywhere. so i in my closing argument i will focus first on the murders that the defendant committed. second i will address some background issues, give you some context and talk about things i don't think are relevant in this case and finally i will try it e it all into the jury instructions of the judge just gave you. my prosecutors in this case, my colleagues 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 than that at the end of this, you would be the expert.

he would have all the information and you would be the one who would know all about the case and make the decision. that's what we have to do. so let's go to august 5th, 2020. the defendant came from outside of the community carrying a gun that wasn't his because he expected and anticipated violence at night and he pretended to guard what turned out to be an empty building owned by people he had never even met. while fraudulently claiming all night long to be an emt. there were a lot of people out that night. at some people stayed home protecting their homes and their families and others went to their businesses, boarded them up and protected them. a lot of those people had weapons and 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-15 just like the defendant.

in fact you will see a video, you've already seen it, of a clash between people with ar-15s ultimate gas and other folks that are i guess protesters and there are people getting in people's faces. these yelling and shouting and even shoving. and yet in this entire sequence of events from the shooting of jacob blake on 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 is here to defend that and no one is here to tell you it was okay to commit arson or looting, i'm not defending any of that. you know because you've been told in a testimony, i'm prosecuting joseph simmons ski for arson. and that's not okay. but what you don't get to do is kill someone on the street for committing arson.

but let's keep that in mind when we are talking about people in this case. so let's begin, with provocation and of the murder of just the comic joseph rosenbaum because it's all captured on video. as the defendant and mr. rosenbaum arrived at the 63rd street car source, mr. rosenbaum is ahead of the defendants. 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 that the defendant is behind him. there's no indication in this record that he knew the defendant was there. it's not a net ambush, not a situation where he goes there in place and wait for the defendant. the defendant arrives at that location and hear him yell, friendly, friendly. because he's aware of the fact that the people that he's about to confront our hostile to him.

i'm going to show you in a moment the video, in which the first thing that he does on the rise of that location is drop the fire extent was sure that holding his left hand so he can raise the gun with his right and left hand and pointed. this is when you hear someone, i think the testimony is rosenbaum, it's not clear to me, but he yells a gun, gun in. then mr. rosenbaum charges around to try to 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 fold drone video. as we've pointed out to you before and jim will point out to you in a second on the screen, when the defendant arrives at that seen it, the first thing

you do is see him drop that fire extinguisher and point his weapon at people. the chase occurs right after that and you will see that entire sequence of events on the fold drone video. the defendant turns as he's being pursued and points the gun at mr. rosenbaum and as he enters the area between the parked cars, he slows and turns. before mr. rosenbaum comes close, he fires at him, shooting him and not aimed at the ground.

now let me show you the zoomed in that slow down video and i will direct your attention to the larger screen which is exactly where you will see the defendant. i'm going to replay it a few times so you can see quite clearly but 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.

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 you will see but a little bit, mr. rosemont doesn't take kindly to people pointing guns and i don't think anyone does. it's not unusual. no one wants the gun pointed at him and no one wants to watch someone else to do this someone else. we have the gun and it is in evidence as exhibit number 28. i'm having the detectives check it to make sure that it is safe.

at the defendant comes running in and it drops the fire extinguisher on the ground like this. >> then he raises his left hand to the gun and points. this is what we see in the video. in putting the fire extinguisher on the ground and then raising the gun. >> your honor, it's facing the wrong direction. >> that's an argument. >> actually like to have -- what you see in this video is a left arm reaching for the gun holding it up. you can see it again in the video here. his left arm reaching up towards the gun. that is what provokes the entire

incident and one of the things to keep in mind is when the defendant provokes the incident he loses the right to self-defense. you cannot claim self-defense against danger you create. that is critical right here. if you are the one who is threatening others, you lose the right to claim self-defense. then, we have the chase that occurs after that and we have taken that drone video and we have slowed down portions of it chase for you. so what we have right there 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 and throwing that plastic bag and the defendant turns and points the gun back at mr. rosenbaum. this is the time where mr. rosenbaum essentially does a little hop with both of his hands in the air and the defendant has testified he saw at that moment that there was

nothing in the defendant's hands. or in mr. rosenbaum's hands. he was unarmed. there is the defendant turning and pointing the gun. mr. rosenbaum leaps, as hands out to the air. then watched 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 and mr. rosenbaum raises his arms off to the side. the defendant approaches the scars and slows down. and then turns and shoots mr. rosenbaum. finally, i will play you exhibit 86. this shows you the final part of

that zoomed in and slowed down. here's the defendant running in between those two parked cars slowing down and you can see just how close or rather how far away mr. rosenbaum was on the defendant shot him. you can see from this video that mr. rosenbaum is not even with n arms reach 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 will note that during this entire sequence it's a defendant who chooses where to go. he's the one that she he -- and that's what allows rosenbaum to get closer. we see this from the aerial footage and i expect you to see that as well.

this is exhibit 25 and this is the annotated aerial footage. you see the defendant approached, running in the same direction as mr. rosenbaum. this is where the pointing occurs in the direction of the ziminskis. you can see josh ziminski right there on the screen. i'm going to put the cursor over where the ziminskis are, they are right in there. the defendant is pointing the gun right here, and they are standing next to that car. and on the chase occurs.

what's interesting to me is watch when the crowd starts to run. it starts to run here even before the defendant fires a shot. that's because they are the first shot when it comes to josh ziminski, and 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. finally i will this incident from the perspective of joo hernandez because he is behind all of this and he comes upon mr. rosenbaum's body. is that audio playing?

>> is brian around? he's not. text brian please. [video playing] >> at this point the defendant has shot and killed joseph rosenbaum and mr. rosenbaum's laying face down, that's where

he falls. mr. mcginnis rolled him over after trying to stem the bleeding here and you see that plastic bag that mr. rosenbaum through on the ground, i don't think you can dispute that there was nothing harmful in that bag. it was a clear bag with some items. >> -- of this argument and you will be allowed to respond. >> you can see in this video the crowd is attempting to save mr. rosenbaum's life.

so we have shown you the defendant murdering joseph rosenbaum from three different angles. the drone footage, drew hernandez and also fbi video. the defendant admitted that during this entire incident, he knew that joseph rosenbaum was unharmed. unarmed. but there was an alleged threat that mr. rosenbaum made earlier in the evening to kill the defendant and i will debunk that. if that did not happen. but the one fact in this case that the defendant wants you to believe that there is no video of. in fact i have a video of the entire incident and i played it for you and will 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 going to take your gun. i never said i want your gun, there is no that. dr. kelly has testified that the

first shot but the defendant fired at joseph rosenbaum hit the victim in the right pelvis, fracturing it. mr. rosenbaum was incapacitated at that point. he is, whatever threat he might have posed, it's over. there is no further threat and he's falling to the ground. 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 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. there is no evidence that mr. rosenbaum was reaching for the defendants gun. after that first shot there was no way that mr. rosenbaum could have taken that gun even if he

wanted to. is already falling to the ground and he's helpless, he's vulnerable. as i said, the kill shot is the one to the back. this is that wound. dr. kelly testified that the angle of the shot was from the left shoulder towards the center of the back and at the bullet continued on down toward the right lower back area, tearing through bodily organs and killing mr. rosenbaum. 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 and 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 is soot in that area suggesting that the handles close to the end of the defendants barrel of the ar-15 at the time of that shot. the defense wants you to believe it's there because mr. rosenbaum's deliberately reaching for the gun. while that doesn't make any sense. first of all this occurs after mr. rosenbaum has been shot in the hip and has a fractured pelvis at that point. he has fallen and he's not able to walk. probably not able to control much of his movement at this point. when you are reaching for that gonna come up 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 mr. rosenbaum's hand ever got close to the end of the defendants gun, it was completely inadvertent and not at all intentional.

now, we heard about ziminskis in this case and i want to carve them out of the case right now because it's a red herring, it has nothing to do with any of this. there's been some focus on this because i think the defense was hoping they could work this into their self-defense claim and make an argument that the first shot at by joshua somehow made the defendant here for his life. unfortunately to stomach the defendant was on board with that because in his testimony he told you that shot had nothing to do with the shot to mike about process. it didn't affect him in anyway and 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 that joshua ziminski did. celestial scar of joshua ziminski out of this case. i will deal with him on his arson trial in january, but until then, it doesn't factor

into any of the decisions the defendant made. in fact as you see on the fbi video, the ziminskis continue walking down the sidewalk and they don't pursue the defendant or threaten the defendant in any way. now. the defense wants you to think that joseph rosenbaum was there to attack the defendant. we will never know what joseph rosenbaum was thinking because the defendant killed him. so we are just guessing. but let's assume for a moment that joseph rosenbaum was chasing after the defendant because he wants to do some physical harm. he's an unarmed man. this is a bar fight. this the fistfight, a fight that may be many of you have been involved in. two people hand-to-hand, throwing punches, pushing and shoving, whatever. what you don't do as you don't bring a gun to a fistfight. what the defendant wants you to

believe, the fund the gun. so contrast this with two different scenarios. one scenario there are two guys throwing punches at one another like a bar fight. i think we'd all agree that you can't kill someone. you can't punch the guy, knocking to the ground and then get on them and strangle the life out of income that's murder. so what's the difference there. the only difference is the defendant brought a gun. he brought his ar-15. and 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 turn it on the defendant. in 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 was really ironic considering the defendant was the one who killed people in this case, the only one. 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 are the run who brought the gun and you are the one creating the danger, when you are the one provoking other people. 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's falling face first to the ground and he's vulnerable. the second shot went through his left hand and probably ricocheted off the ground and hit his lower left thigh. it's a flesh wound. and in the third shot mr. rosenbaum has fallen completely to the ground and he's parallel to the ground, the

defendant fires around into his upper back which is a kill shot and the another round which raises his right scalp. at this point as you saw in the video a crowd rushes to that body to try to save joseph rosenbaum. they are trying to put clothing on the wound to stop the bleeding. they take them across the street to a hospital. km h, freighter south is later gnomic literally right across the street and this crowd to come except for the defendant are all focused on trying to save this person's life. a person, by the way, they probably never even met before because that's what most people do. richard mcginnis testified, i rode with rosenbaum in the back of that suv. i told him, we will have a beer together when this is 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. 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 assess whether or not there was still a need to keep firing. but he went four times in .76 seconds on the defense has made a big point of this, how fast he fired. does this somehow excuse you? exactly the opposite ladies and gentlemen, he controls how quickly he pulls the trigger. he's in control of that decision-making process. no one else made him do that. this is indicative of someone who doesn't care about the consequences, doesn't care to

stop and figure out, and my good, do i need to stop or am i just going to keep on going? he tracks the body all the way to the ground which is the second, third and fourth shot. the only way that could possibly justify the murder of joseph rosenbaum is if you believe that joseph rosenbaum was actually reaching for the defendants gun and that a reasonable person in the defendant's position without ar-15 strapped tightly to his chest would think that joseph rosenbaum was even capable of taking that gun away as he fell to the ground with a fractured right pelvis. then that not only all of that but you'd also have to believe that joseph rosenbaum was going to turn that gun around and use that 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 to desperately convince you that joseph rosenbaum threatened to kill the defendant which never happened. that's why they are trying so desperately hard that joseph rosenbaum was it not reaching for that gun. it's not justified and there is no valid self-defense claim. one of the things that judge does, constructed 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 him. he's the one who chose to run. he chose to run between those parked cars. he slows down as he gets there and the crowd is already running away.

there are a whole bunch of people who are doing stuff to cars on the defendant had no escape route. the crowd is running away at this point. they are already starting to scatter. 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 mistake before killing mr. rosenbaum. your honor, i do have more video i want to play but i'm having some technical problems i need to work on so this would be a good time to pause if that's okay. >> please don't talk about the case during the break. and we will begin at -- is at 140 to soon?

-- about 12:45, is that better? let's do that. please don't talk about the case. >> harris: so the murder trial of kyle rittenhouse is going to take a break right now with the prosecution putting on the closing argument. you just heard the judge say that it will be less than an hour before they come back, judge bruce schroeder had given his instructions and it took part of an hour. so we are running up a bit behind but they are on track for up to two hours of closing arguments from the prosecution alone. they were then initially going to take a break from lunch and come back for the defense closing arguments and then rebuttal, rebuttal. so we will have to see what the timing will be like but in this short break i will bring it out to the couch here on "outnumbered" with my cohost's kayleigh mcenany and emily compagno. emily, we are watching here and

there was contention along the way about what the instructions were for the jury and then the judge took a vote on whether or not they would take a break and go home tonight before they start to deliberate, no matter what time they finish this evening. >> that's right. it appears they will start fresh tomorrow morning so don't expect a verdict tonight likely unless something changes. now just to remind viewers that, what we are dealing with, after all the deliberation of the jury instructions, you mentioned there are five counts and four of those counts, the defendant kyle rittenhouse has the self-defense privilege that the jury can assess whether or not that is in play. so four of them he does. and the ones with recklessly endangered safety, that's one where it's essentially pointing the weapon at an innocent bystander, sort of the bottom line. but he's charged with first-degree reckless homicide, first-degree recklessly

endangering safety, first-degree recklessly endangering safety again, this is the jump kick man from the video. first-degree intentional homicide and attempted first-degree intentional homicide and again, all four of the ones that resulted in a wound or death, he has at self-defense privilege and it's a standard of beyond a reasonable doubt for each counts and as you and i have been discussing the standard for whether or not self-defense, whether the jury finds that, it's whether reasonable person in that situation reasonably believes his life is in danger or being threatened with great bodily harm and he is a reasonable amount of force. >> harris: right. kayleigh net, we often talk about your political acumen if you welcome your an attorney and went to law school. we always have the camera on the defendant, the judge and sometimes a kind of floats between the prosecutor and whatnot. during the occasion we will sometimes see if family members

of kyle rittenhouse which is your observation and the jury today. >> yes. you saw that camera study on kyle rittenhouse's mom. this has to be excruciating for her, her son facing imprisonment and just watching her face and thinking about what must be going through her mind. i also wanted to bring up a point and get some reaction from emily on this but there was that six count that was dropped. because the prosecution essentially conceded that he was not carrying a short barreled rifle, this is counts six and that dropped. jonathan turley is really interesting and made this point, the overreach on the six count capture as much about this case and the speed and framing of the prosecution clearly satisfied public demand because we know there was a lot of public demand here. i satisfied public demand but ultimately undermined any case against kyle rittenhouse. so i'm curious, bringing the six

count and charging to this degree, did it essentially undermined their case while appeasing this feverish public sentiment of going after kyle rittenhouse? >> that's a great question and that will all go into these jury deliberations which will again, this is what the jury is going to consider and this is what they way at the end of the day. it's been presented in the macro sense and also the micro sense whether each element of every count was in indeed proven beyond a reasonable doubt and whether the self-defense privilege has been honored in this way. why is the jury not sequestered when 500 national guard are on standby? because isn't that what folks read about when they go home? of course the jury has been instructed not to read about the trial and whatnot but it's sort of a common theme in a general question that a lot of times we ask in these high-profile trials, how can you avoid it. you can't even take an elevator here and not see the news so how could a jury member effectively be protected from seeing, oh, my

gosh, the national guard is deployed on standby for the potential the verdict. >> it's been a while since i was in downtown kenosha, wisconsin. because i was next door in minneapolis for a number of years as a news anchor but i don't even think you would have to read it. you had gather 500 of anyone and you might see that. i would imagine there would be more of an instance of just knowing the presence of that, and i don't want to jump the gun on that but if you put 500 on anybody, i know they are using private entrances, but that's not a lot -- a lot not to know. but here's my question. if you need that for a projected verdict, how culpable is the city of kenosha not to have more of a response on the night of. and let's not call them peaceful

protests that night because we've all seen the video. martin luther king did not march at 3:00 in the morning. you do things in the daytime with your protest signs and you want to get your messaging out. so if the city knew that people were on the streets in those numbers and there were other people carrying ar-15 style guns. i'm going to get to the question, why not that night? why not other nights as a verdict comes, why not that night? is that too much to ask? >> and i think that's part of the larger question, why now is the national guard being deployed on standby by a governor who refuses to do anything for days in those moments when people felt the need to go out on the streets, destroying livelihoods? at the thought of the argument and something the defense has brought up as well. in the micro sense, and matters

in those moments but the question is why wasn't the seven -- why was the 17-year-old out on the streets? one of the original charges had to do with him breaking a curfew and it was established that there wasn't one at that moment which is why the count was dropped. so that goes to your larger question, why wasn't there a curfew and why wasn't there any semblance of leadership by that governor or by the mayor et cetera? i went to kenosha with the former president and we stood in front of a business that had been burned to the ground and people said, president trump, why don't you send the national guard? he didn't have the power but the governor does and it seems like is not making the same mistake twice which is good but the first mistake wasn't fatal. it led to arguably the loss of life. >> i realize that you could argue it from different directions and reach the same

facts, those were the only three who were shot, and it to, but why didn't the governor do more? we are going to continue to watch it with you because we are going to continue our coverage of the closing arguments and let kyle rittenhouse "america repo." >> sandra: thank you peer fox news alert. the trial has broken for lunch for a few minutes. they're expected to resume her and 1:45 p.m. eastern time. the jury could begin deliberating as early as this afternoon. i'm sandra smith in new york. >> john: good to start a new weekly. i'm john roberts in washington. the jury will decide whether he acted in self-defense on that night or whether reckless actions of the then 17-year-old were the reasons that human are dead. he's facing life in prison if convicted on the most serious charges against him. all of this as this has wisconsin