MADISON, Wis. -- The murder case against Kyle Rittenhouse flirted with a mistrial Wednesday after the lead prosecutor angered the judge with his questioning of the defendant.
Rittenhouse's attorneys called him to testify about his actions on Aug. 25, 2020, when he shot three men, killing two and wounding a third, during protests on the streets of Kenosha that followed a white police officer shooting
Jacob Blake, a Black man, while responding to a domestic disturbance.
Legal experts said doing so risked exposing Rittenhouse to harsh cross-examination, and lead prosecutor Thomas Binger did so — with a line of questioning that prompted Judge Bruce Schroeder to shout at him and say, “I don't believe you," at one point when Binger argued he had been acting in good faith.
Rittenhouse's attorneys said they would seek a mistrial with prejudice — meaning the case could not be re-filed — and Schroeder said he would consider their motion later.
So what got the judge so angry?
Prosecutors earlier this year sought permission to introduce into evidence a brief video taken 15 days before the protest shootings, in which Rittenhouse is heard watching some men exit a CVS pharmacy and commenting that he wished he had his rifle so he could shoot them because he thought they were shoplifters.
Binger argued at a pretrial hearing that it showed Rittenhouse’s mindset as “a teenage vigilante, involving himself in things that don’t concern him.” But Schroeder questioned its relevance and said at a pretrial hearing that he was inclined not to allow it — but suggested he might reassess that at trial.
Binger peppered Rittenhouse with question after question asking him whether it was acceptable to use deadly force to protect people. The defense eventually objected and Schroeder angrily sent the jury out.
When Binger told the judge he had left the door open in his early ruling, Schroeder yelled: “For me! Not for you!”
Rittenhouse’s attorney also accused Binger of commenting on his client’s right to remain silent about the case, to which Binger responded that the defendant was tailoring his testimony to details already introduced in court.
That also angered Schroeder, who called it a “grave constitutional violation” to talk about the defendant’s silence and warning him that he “better stop.”
“That’s basically, it’s been basic law in this country for 40 years, 50 years,” Schroeder said. “I have no idea why you would do something like that.”
Phil Turner, a Chicago-based defense attorney and former federal prosecutor, agreed.
“You can never, never comment on the fact that the defendant did not say something,” Turner told The Associated Press. “He or she has a Fifth Amendment right not to incriminate themselves. You don’t go near it as a prosecutor. Never.”
Though Schroeder took the mistrial request under advisement, it seemed unlikely he would grant it. Near the end of the court day Wednesday, he told the jury he expected the case to wrap up early next week.
“What Binger did was deliberate,” Daniel Adams, a defense attorney and former Milwaukee County assistant prosecutor, told The Associated Press Wednesday. “He didn’t ask for permission. He thought he could slip it in and ask for forgiveness. He knew better. He tried to pull a fast one and he was called on it. In a case where you’ve been preparing for months, it’s of national importance, this wasn’t an accident.”
But Adams said the judge would have to find Binger’s actions egregious for him to declare a mistrial with prejudice. He said he couldn’t remember when a judge has ever granted such a motion.
It’s not unusual once testimony concludes for criminal defense attorneys to ask a judge to dismiss charges — or in a civil case, issue what’s known as a directed verdict — if there’s insufficient evidence to support a conviction before a case goes to a jury.
