MADISON (Wis.) — After the lead prosecutor upset the judge with his questioning, the jury was forced to mistrial Kyle Rittenhouse’s murder case.
Rittenhouse’s lawyers called him to give testimony on his actions on Aug. 25, 2020 when he shot three men killing two and injuring one more, during demonstrations in Kenosha. This was following a white officer who shot Jacob Blake, a Black male, responding to a domestic disturbance.
Legal experts warned that Rittenhouse could be subject to harsh cross-examination. Lead prosecutor Thomas Binger did this — with a line he asked that caused Judge Bruce Schroeder shout at him and to say, “I don’t believe you.” This was at the point when Binger claimed he was acting in good faith.
Rittenhouse’s lawyers stated that they would seek a mistrial without prejudice, meaning that the case cannot be re-filed. Schroeder indicated that he would reconsider their motion later.
What is the reason for this judge’s fury?
An earlier year, the prosecution sought permission to present into evidence a short video that was taken 15 days prior to the protest shootings. In it, Rittenhouse can be heard commenting on some men leaving a CVS pharmacy and saying that he wishes he had his rifle so that he could shoot them. He thought they were shoplifters.
Binger claimed that the pretrial hearing showed Rittenhouse’s mind as a “teenager vigilante” who is involved in activities that don’t concern his feelings. But Schroeder challenged its validity and stated at a pretrial listening that he was hesitant to allow it. However, he suggested that he might reconsider that statement at trial.
Binger asked Rittenhouse question after question, asking him whether it was okay to use deadly force in order to protect people. Schroeder furiously sent the jury out after the defense objected.
Schroeder shouted at Binger, who told him he had left the door open during his earlier ruling. You are not for me!”
Rittenhouse’s lawyer also accused Binger that he commented on his client’s right not to speak out about the case. Binger replied that the defendant was tailoring testimony to specific details already presented in court.
Schroeder was also furious, calling it a “grave Constitution violation” to speak about the defendant’s silence. He warned him that he “better quit.”
Schroeder stated, “That’s basically it, it’s been fundamental law in this country since 40 years, 50 years.” “I don’t know why you would do that.”
Phil Turner, a Chicago-based defense lawyer and former federal prosecutor, agreed.
Turner stated to The Associated Press, “You cannot never, never comment upon the fact that defendant didn’t say anything.” “He or she is protected by the Fifth Amendment from being incriminated.” As a prosecutor, you can’t get near it. Never.
Although Schroeder did take the mistrial request under his advisement, it was unlikely that he would grant it. He told the jury that he expected the case would be over by the end of Wednesday’s court day.
Daniel Adams, a former Milwaukee County assistant procuror and defense attorney, said Wednesday that “What Binger did” was deliberate. “He didn’t ask for permission. He believed he could just slip it in and ask forgiveness. He was wrong. He tried to pull off a quick one, but he was caught. This was not an accident in a case that you have been working on for many months.
Adams stated that the judge would need to consider Binger’s actions as egregious before he could declare a mistrial without prejudice. Adams said that he can’t recall a time when such a motion was granted by a judge.
Once testimony is over, criminal defense attorneys may ask the judge to dismiss the case or issue a directed verdict in civil cases. If there’s insufficient evidence to support conviction, a case will go to a jury.
