Kyle Rittenhouse trial’s dramatic moments could have legal implication

November 11, 2021
Kyle Rittenhouse trial's dramatic moments could have legal implication
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Tears from an accused killer, an irate judge yelling in the courtroom, and calls for a mistrial.

The drama in one of the final days of the Kyle Rittenhouse trial may bring more than just unforgettable scenes — it could also play a role in whether the 18-year-old is convicted of murder.

Jurors saw courtroom moments seldom seen Wednesday in the trial over shootings Rittenhouse committed last year during protests in Kenosha, Wisconsin, after a Black man was wounded by a white Kenosha police officer. Rittenhouse, in a high-stakes gamble, took the stand early in his defense. Sobbing at times, he testified he fatally shot two men in self-defense. 

Rittenhouse faces counts of intentional homicide, reckless and attempted homicide and could get life in prison if convicted. He’s accused of fatally shooting Joseph Rosenbaum, 36, and Anthony Huber, 26, along with wounding Gaige Grosskreutz, 27.

Things took a turn as prosecutors questioned Rittenhouse’s actions that night — from traveling to the city during at-times violent protests to being armed with an AR-15 and his plans to protect property during the demonstrations.

Circuit Judge Bruce Schroeder stopped prosecutors several times, ordered the jury out of the courtroom and loudly chastised prosecutor Thomas Binger. The questions posed to Rittenhouse eventually led his attorneys to demand a mistrial with prejudice — a typically rare action that, if granted, would prevent Rittenhouse from being prosecuted again. 

Legal experts say while the jury wasn’t present for all the theatrics of Wednesday’s events, the day’s proceedings could prove crucial in determining his fate, from Rittenhouse bursting into tears to prosecutors testing an irritated judge who will determine whether crucial evidence is allowed to be shown to the jury. 

“It would be a pretty dramatic turn of events,” Keith Findley, a former public defender and University of Wisconsin law professor, said of the judge possibly declaring a mistrial. “This is a judge who likes to be in control of his courtroom and everyone knows it, and he doesn’t particularly care if people are unhappy about it or his rulings.”

More:Kyle Rittenhouse murder trial turns heated, emotional as defense demands a mistrial

A key line of questioning that made Schroeder livid centered on a video taken 15 days before the fatal shootings. In the footage, Rittenhouse and his friend are seen in a car watching people leave a CVS store across the street. Rittenhouse apparently believed the people leaving the store had robbed it or were shoplifting.

Rittenhouse said, “I wish I had my AR, I’d fire some rounds at them.”

Binger on Wednesday repeatedly asked Rittenhouse about whether he felt use of deadly force was appropriate to protect property. The prosecutor eventually asked him about the comments to shoot suspected shoplifters. 

Rittenhouse’s attorneys immediately objected, prompting the judge to tell jurors to leave the courtroom. Binger was then scolded.  

“Don’t get brazen with me!” Schroeder yelled as he told Binger not to continue the line of questioning. “I don’t want another issue,” Schroeder added. “Is that clear?”

Rittenhouse lawyer Corey Chirafasi all but suggested prosecutors might be deliberately trying to cause a mistrial because this one is “going badly” for the prosecution and authorities want a do-over. The defense asked for a mistrial with prejudice, which means the judge would agree prosecutors purposely acted out or that the transgressions were so harmful that Rittenhouse wouldn’t get a fair trial. 

Binger apologized for not seeking permission from the judge before the questioning. When Binger said he had been acting in good faith, the judge replied: “I don’t believe that.”

Nancy Gertner, a retired judge who teaches at Harvard Law School, said it seemed the prosecutor was acting in good faith. 

He “thought that the judge’s earlier ruling was not, ‘Don’t get into this ever,’ but, ‘Let’s see where the evidence goes, and it may be made relevant.’”

“That seemed a fair belief,” Gertner said.

Gertner said in both cases when the judge and prosecutor butted heads, the prosecution seemed to be following reasonable lines of questioning, and it was also reasonable for the judge to take issue with it. What was unusual, she said, was the judge’s tenor.

“Even if you believed that the prosecutor was wrong, the judge’s reaction was really quite extraordinary, the rage that he reflected was quite extraordinary,” Gertner said.

More:Men shot by Kyle Rittenhouse can’t be called ‘victims’ at trial, but may be called ‘looters,’ judge says

Rittenhouse’s tearful testimony may well play in his favor. “This is going to help fortify the defense and really show the human side of this defendant — that he’s not some cold, calculated person,” Phil Turner, a defense attorney and former federal prosecutor in Chicago, told NBC News.

While courts are asked quite frequently for mistrials and they typically aren’t granted, the judge’s remarks left the door open. He declined to rule on the request, leaving time for prosecutors to respond. 

Findley noted “it would be unusual” to grant a mistrial over Wednesday’s events, adding Rittenhouse’s lawyers will not only have to show the remarks would prevent him from receiving a fair trial but also that the prosecutors’ conduct was “outrageous, calculated and provoked a mistrial” in the case. 

But Schroeder’s actions and decisions, which sometimes have gone against norms, have played a key role in the case and generated headlines of their own, from ruling that those killed in the shootings couldn’t be described as “victims” but could be called “looters” to halting proceedings to rant about the media coverage of his rulings. 

Gertner said Schroeder usually has a reputation for forgiving prosecutor errors, and being “pro-prosecution.”

“He’s certainly not in this case,” she said.

Gertner said Schroeder’s opening ruling about how each side could refer to protesters who were shot by Rittenhouse is a strong example that the judge is acting out of character. On Wednesday, Gertner added, Schroeder’s demeanor turned “furious.”

“He seemed to be on the verge of losing his temper… it engendered rage on the part of the judge, and that was troubling,” she said.

Throughout Wednesday, Schroeder stopped prosecutors several times and sided with Rittenhouse’s defense team on several objections, which in itself has an impact on the trial in stopping prosecutors from building up to a point and reaching a crescendo during questioning, Findley said. Schroeder stopped prosecutors at one point to ask those in the courtroom if the temperatures were OK then sided with Rittenhouse’s lawyers that prosecutors couldn’t use an iPad to zoom in unless they provide an expert saying this wouldn’t distort an image. 

Gertner said it’s hard to know what impact Wednesday’s testimony and tension between the judge and prosecution will have on the jury. They were absent from the room during some of the exchanges between the judge and prosecution. However, she said any hint of prejudice from a judge can influence the jury’s decision.

“I would be naive if I suggested that the judge’s facial expressions and rulings don’t impact the jury. The jury looks to the judge oftentimes for cues,” Gertner said.

Findley said judges are supposed to rule on the basis of the law, but every lawyer holds concerns over angering a judge and the impacts it could have on a case and subsequent rulings. Prosecutors testing the judge Wednesday could be problematic. 

“Judges are human beings,” he said. “At some level, the feelings or anger they have toward one side or another certainly could creep into it. What affect it will have in this case, I don’t know.” 

Contributing: Associated Press 

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