Judge Bruce Schroeder denounced the prosecution in the Kyle Rittenhouse murder trial on Nov. 10 for asking questions that may have violated the defendant’s right to a fair trial.
When Rittenhouse took the stand on Nov. 10, it was the first time he told his version of events that occurred on Aug. 25, 2020—when he shot three men, two of them fatally, during the Kenosha, Wisconsin, protests over the police shooting of Jacob Blake.
Choking back tears at some points, Rittenhouse told the jury about being cornered by assailants and shooting out of self-defense.
When it was time to cross-examine the witness, Assistant District Attorney Thomas Binger asked Rittenhouse why he had waited until now to tell his story.
“Since August 25, 2020, this is the first time that you have told your story,” Binger said, prompting an immediate objection from defense attorney Mark Richards.
Schroeder sustained Richards’s objection, but Binger continued to pursue the line of questioning.
“You’ve also had the opportunity to read articles about what happened that night. ... You’ve also had the opportunity to listen to all the testimony from the 30-some witnesses that have testified in this trial,” Binger said. “And after all of that, now you are now telling us your side of the story.”
At this point, Richards objected again, and Schroeder dismissed the jury.
“He’s commenting on my client’s right to remain silent,” Richards told the judge.
Binger said he asked Rittenhouse the questions for a reason: “I’m making the point that, after hearing everything in the case, now he’s tailoring his story.”
But Schroeder disagreed.
“The problem is, this is a grave constitutional violation for you to talk about the defendant’s silence,” Schroeder said. “You’re right on the borderline, and you may be over. But it better stop.”
Binger agreed, and the jury reentered the courtroom.
Later, the prosecutor again started asking questions that drew an objection from the defense.
This time, Binger asked Rittenhouse about comments he had made before the Aug. 25, 2020, incident about wanting to use his gun to protect property and shoot shoplifters.
Schroeder again dismissed the jury before Richards accused the prosecution of possibly “trying to provoke a mistrial in this matter.”
“He knows he can’t go into this, and he’s asking the question. I ask the court to strongly admonish him, and the next time it happens, I’ll be asking for a mistrial with prejudice,” Richards said of Binger. “He’s an experienced attorney and he knows better.”
Binger said he was trying to establish that Rittenhouse was using his AR-15 to protect property—and not himself. But Schroeder said he already indicated that this line of questioning wouldn’t be allowed, because Rittenhouse’s earlier comments about shooting shoplifters had nothing to do with the night he used deadly force.
“You’re talking about his attitude. ... Nothing in your case suggested that the defendant was lying in wait to shoot someone. ... Every matter involves decisions that take seconds in time ... whether premeditated murder or acts of self-defense is for the jury to decide,” the judge said.
Schroeder further chastised Binger for pursuing the line of questioning in front of a jury without asking him first.
“You should have come to the court and said you want to get into this,” the judge said.
Coupled together with his earlier questions about Rittenhouse’s silence, the prosecution’s actions could risk triggering a mistrial, Schroeder warned.
“I was astonished when you began your examination by commenting on the defense’s post-arrest silence. That’s basic law. It’s been basic law in this country for 40 years, 50 years,” the judge said. “I have no idea why you would do something like that. I don’t know what you’re up to.”
“I have to be concerned with the progress of the trial—and you were over the line or close to in commenting on the defendant’s silence, which is a well-known rule,” he said. “I’m astonished that that would have been an issue.”
The trial then broke for lunch. When it reconvened, the defense indicated that it may file a motion for a mistrial with prejudice.
“The prosecution’s actions were designed ... to provoke a mistrial, to take another ‘kick at the cat’ because the prosecution’s case is going badly,” defense attorney Corey Chirafisi said.
Binger said that Rittenhouse allegedly provided media interviews in which he said he thought he was going to die the night of the incident. Binger said these interviews constitute a waiver of Rittenhouse’s right to remain silent.
Schroeder said he agreed that potential interviews by Rittenhouse could make a difference about whether the prosecution violated his right to remain silent, but said he’d have to review the evidence and would take the defense’s motion under advisement.
The trial was ongoing as of the publication of this article.
