Did judge Bruce Schroeder act prudently?

November 12, 2021
Judge Bruce Schroeder during Kyle Rittenhouse's trial in Kenosha, Wis., on Thursday, Nov. 11, 2021.
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In the Kyle Rittenhouse murder trial, Judge Bruce Schroeder began the day on Thursday asking everyone in the courtroom, including the jury, if they had served in the military.  As it turned out, the only military veteran in the courtroom who spoke up was the defense expert on use-of-force, John Black. Schroeder then motioned to the jury, and said that he thinks that everyone should give a “round of applause to the people who have served,” while gesturing back over toward Black. 

I have been a criminal law attorney for 27 years. I was both a federal and state prosecutor, and defense attorney. In all my years of practice, I have never seen a trial judge during a trial put the jury in a position where they would have to applaud a defense witness right before they are about to take the stand and testify. 

More:Kyle Rittenhouse deserves an award for his melodramatic performance on the witness stand.

Bad behavior on the bench

A judge in any criminal jury trial should never put members of the jury in a position where they are asked to applaud for a witness about to testify for something that they have done in the past. I am a Marine Corps veteran. I certainly appreciate it when people thank me for my service. But trial judges must do everything possible to avoid any appearance that they favor or agree with one side or another in a trial.  A judge must also not express a favorable personal opinion about a witness – even to laud them for military service. 

This incident has followed a series of rulings and admonishments against the prosecution that has created the impression on many in the public that the judge is biased toward the defense for political reasons. 

Jeffrey Abramson and Dennis Aftergut:Arbery, ‘Unite the Right,’ Rittenhouse cases show difficulty of finding impartial jurors

That was only exacerbated when Schroeder’s phone rang in the middle of the trial, and his ring tone was, “God Bless the USA” by Lee Greenwood. That happens to be the unofficial theme song of the Trump rallies, typically playing whenever he takes the stage. 

Faith in the process

The parties to a trial and the public must feel confident that the process was fair and unbiased. These unusual incidents have created the impression in the minds of many that the judge in this case is biased, and that is unfortunate. 

In a trial as high profile as Rittenhouse, it is crucial for everyone to have confidence that due process was fairly applied. Whatever the verdict, many people have already concluded that it wasn’t. 

Ron Filipkowski is a former prosecutor and Marine and current criminal defense lawyer. 

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