The Kenosha County, Wis., judge presiding over Kyle Rittenhouse’s murder trial clashed with the lead prosecutor several times during the teenager’s cross-examination on Wednesday, while defense attorneys requested a mistrial alleging prosecutorial misconduct.
The first instance took place shortly after Kenosha County Assistant District Attorney Thomas Binger began cross-examining Rittenhouse, an Illinois teen who is being tried for fatally shooting two people and wounding another during a chaotic night of protests following the police shooting of Jacob Blake in Kenosha in the summer of 2020.
The defense objected to Binger’s questions about Rittenhouse’s decision to remain silent about the shootings until taking the witness stand Wednesday, arguing that this line of inquiry infringed on Rittenhouse’s Fifth Amendment right not to incriminate himself.
While Binger said he was making the case that Rittenhouse had tailored his testimony based on what other witnesses had said before him, Kenosha County Circuit Judge Bruce Schroeder appeared to agree with the defense, ordering the jury out of the room before rebuking the prosecutor.
“The problem is this is a grave constitutional violation for you to talk about the defendant’s silence,” Schroeder yelled. “You're right on the borderline, and you may be over it. But it better stop.”
Later on in the cross-examination, Schroeder admonished Binger for attempting to question Rittenhouse about evidence that the judge had previously deemed inadmissible.
The first item in question was a video that was recorded weeks before the shootings in Kenosha, which appears to show several shoplifters running out of a CVS pharmacy carrying stolen merchandise. In the video, a voice that sounds like Rittenhouse can be heard saying, "Bro, I wish I had my f***ing AR. I'd start shooting rounds at them."
“You knew very well that attorneys can’t go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. So don’t give me that,” Schroeder said, yelling, “Don’t get brazen with me!” when Binger attempted to push back.
Binger was similarly shut down when he tried to question Rittenhouse about a photo taken in January 2021, months after the shootings, that shows the teenager posing in a bar with members of the Proud Boys, a right-wing male chauvinist group with ties to white nationalism, and wearing a T-shirt that says “Free as f***.” The photo had reportedly been taken 90 minutes after Rittenhouse, who had been released from jail on bond, pleaded not guilty in a remote court hearing.
In September, Schroeder had denied a motion from the prosecution to allow the photo to be admitted during the trial as evidence of Rittenhouse’s alleged associations with white supremacist groups.
On Wednesday, Binger said he intended to use the photo as evidence of the teenager’s “disregard for human life,” explaining that he wanted to “probe” whether the emotions exhibited by Rittenhouse, who broke down in tears during direct testimony, were sincere.
Schroeder stood by his earlier ruling that the photo is not relevant to the case, saying: “If he were on trial for using exquisitely bad judgment, if he were on trial for behaving in an offensive way, then I could see the purpose.”
After returning from a lunch break, defense attorney Corey Chirafisi asked the judge to declare a mistrial with prejudice, meaning that a retrial for the shootings would not be possible. Chirafisi charged that Binger’s questions about Rittenhouse’s silence and his attempts to include inadmissible evidence amounted to “prosecutorial overreaching.” Schroeder did not immediately issue a ruling on the mistrial motion, allowing the prosecution to continue its cross-examination. However, the judge made clear that he believed Binger had deliberately defied his orders.
“When you say that you were acting in good faith, I don’t believe that,” Schroeder told the prosecutor, warning that “there better not be another incident.”