The Criminal Complaint (the charging instrument) against Kyle Rittenhouse alleges, in Count Five, that he recklessly endangered the safety of “an unknown male.”
This count is before the jury as “the third count of the Information”:
The general rule is that the State must prove beyond a reasonable doubt what it alleges. I didn’t find a Wisconsin case on this, but it stands to reason that the State must prove that the male is “unknown,” just as it must prove (for the second Reckless Endangerment count) that he recklessly endangered the safety of Richard McGinniss:
In the trial, the alleged victim of this count, who kicked Rittenhouse in the head before Rittenhouse took one shot at him (and missed), was referred to by both parties as “Jumpkick Man.”
It appeared that neither side knew his identity.
I didn’t watch the whole trial, so I don’t know if the State elicited testimony that Jumpkick’s identity was unknown, but the parties seemed to take that for granted.
If the defense had known who Jumpkick was, they’d have put him on trial as well, just as they put Josh Ziminski on trial (arguing that the jury should hold the State’s failure to call Ziminski to the stand against the State).
They also would probably have beaten Count Five, because they could show that Jumpkick was not an “unknown male.”
I think we can safely conclude that the defense did not know Jumpkick’s identity, which makes this revelation huge if true:
"The Dan O'Donnell Show" is not naming Jump Kick Man, as he has not been criminally charged in connection with the Rittenhouse case. Sources indicate that he contacted prosecutors and offered to testify, but in exchange requested immunity from an ongoing drunk driving and domestic abuse case with which he was charged in June. Prosecutors declined his offer and chose not to call him as a witness in the Rittenhouse case.
I don’t know how to evaluate the truth of the claim that unnamed sources said the prosecution knew who Jumpkick was, except that the State’s lead prosecutor, Thomas Binger, did not strike me as either particularly competent or terribly ethical.
If it is true that Binger knew who Jumpkick was, he has taken a gamble with his license. Binger might have thought that Jumpkick would not be a witness, because he could take the Fifth, but even if Binger believed that Jumpkick could not be persuaded to waive his privilege against self-incrimination, his identity was crucial to the defense.
None of that is reason to hide a material witness from the defense.
If I’m the defense and I know who Jumpkick is, I’m going to go talk with him. He might talk to the me where he won’t talk to Binger or Kraus, for obvious reasons.
If not, Jumpkick’s identity itself is valuable, not only because the defense could argue the State’s failure to call him as a witness (discussion of how easy it would have been for the State to put Ziminski or Jumpkick on the stand is below the paywall) but also because that information was likely to lead to other admissible information.
If I know who Jumpkick is, I know who his friends and family are. I start interviewing them to find out what Jumpkick has said about that night. What he told them may be admissible without him having to come into court.
If I know who Jumpkick is, I have his cellphone number. I get those records from February, 2020 (an arbitrary six months before the night of his attack on Rittenhouse) to the present. I also get such records for Huber, Grosskreutz, Rosenbaum, and Ziminski. I interview whoever they talked to in the days immediately after August 25, 2020. I interview whoever they talk to most.
I stick their cellphone records in a database, and I find the common contacts among them (Huber, Grosskreutz, and Ziminski certainly have friends in common). I interview those common contacts. I put together an exhibit for the jury showing how these people are connected to each other.
I say that Binger has taken a gamble with his license. The Wisconsin criminal-discovery statute does not appear (to this casual reader) to require the State to provide the defense with the names of witnesses who the State does not intend to call at trial.
But Brady v. Maryland and its progeny require the prosecution to provide the defense with exculpatory evidence—evidence that, if disclosed, would in reasonable probability have changed the outcome of the trial. So if Binger hid Jumpkick from the defense, he’s probably not jeopardizing his license (or a conviction, if he somehow obtains one) unless the defense can make something of the information after the fact—do the sort of investigation I suggest above, perhaps, and find some fact that would have been reasonably likely to have resulted in an acquittal.
Still, if this turns out to be true, Judge Schroeder is not going to like it one bit. This may be the straw that breaks that camel’s back. There’s a motion for mistrial pending, and if Judge Schroeder grants it with prejudice there’s not a damn thing Binger and Kraus can do about it.
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