Kyle Rittenhouse took the stand in his defense Wednesday, Nov. 10,  the seventh day of his trial, for shooting three men, two fatally, and it wasn’t even close to the most interesting thing that happened in the courtroom. The move surprised most analysts and commentators, but paled in sheer drama and consequence compared to prosecutor Thomas Binger’s behavior. His shocking conduct made Rittenhouse’s chances for a mistrial more likely and could even result in losing his license to practice law.

Mr. Rittenhouse is on trial for his actions on Aug. 25, 2020, in Kenosha, Wisconsin. Amid riots and civil unrest following the police shooting of Jacob Blake, Rittenhouse shot three men, killing Joseph Rosenbaum and Anthony Huber and wounding Gaige Grosskreutz. The trial will determine whether those shots were a legal form of self-defense, as Rittenhouse claims, or murders and assaults, as the prosecution alleges. That’s if the jury ever gets a chance to render a verdict, which became much less likely as a result of Mr. Binger’s actions in court.

Strike One

First, Binger made reference to Rittenhouse keeping silent prior to his testimony in court. It was a textbook violation of the defendant’s right to remain silent. Kenosha County Circuit Court Judge Bruce Schroeder called it a “grave constitutional violation” and told Binger, “You’re right on the borderline, and you may be over, but it better stop.” Mr. Binger replied, “Understood.” He did not approach the Fifth Amendment borderline again. Instead, he violated Rittenhouse’s rights in a new fashion by ignoring the judge’s pre-trial ruling about another piece of evidence.

Judge Schroeder was undone because Mr. Binger asked Rittenhouse about a recording of him made weeks before the Aug. 25 shootings concerning shoplifters. The judge had previously indicated he would not allow it to be introduced in court. Binger was cross-examining the defendant and went through a litany of questions about whether Rittenhouse thought it was okay to use violence to protect property in various ways, culminating in this exchange:

Binger: “So you understand that there’s a difference between using deadly force to protect yourself and using it to protect property, correct?”

Rittenhouse: “Yes.”

Binger: “And you’d agree with me that you’re not allowed to use deadly force to protect property, correct?”

Rittenhouse: “Yes.”

Binger: “But yet you have previously indicated that you wished you had your AR-15 to protect someone’s property, correct?”

The judge stopped the trial and let Binger have it. “I had made a ruling that that evidence wasn’t coming in and you had decided that it was,” he admonished. “You’re an experienced trial attorney and you’re telling me that when the judge says ‘I’m excluding this,’ you just take it upon yourself to put it in because you think you’ve found a way around it? Come on.” He concluded with a dire warning, saying, “I don’t believe you. I’ll take the motion [to dismiss with prejudice] under advisement.”

That is no small matter for Mr. Binger. All attorneys owe a duty of candor to the court and often swear an oath promising the same. The American legal system depends on a judge’s ability to trust an attorney’s representation to the court. Making a false statement in court or failing to disclose an important fact is a major violation. Wisconsin’s attorney’s oath includes the following pledge:

“I will employ, for the purpose of maintaining the causes confided to me, such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law.”

(Photo by Sean Krajacic-Pool/Getty Images)

While Mr. Binger may have licensing issues to deal with in the future, that has little bearing for the defendant. To remedy the violations against him, Rittenhouse’s defense lawyers asked the judge for a mistrial with prejudice. Ordinarily, a mistrial would mean the current trial would be stopped and bear no legal significance on Rittenhouse’s guilt. That is of little utility to a trial team that thinks it is winning its case, however. If granted with prejudice, Rittenhouse would walk free, and prosecutors could not try him again. The defense accused Mr. Binger of intentionally provoking a mistrial through his violations of the defendant’s rights. Judge Schroeder has yet to rule on that motion.

What About the Jury?

It’s important to remember in all this that the jury did not see Judge Schroeder’s stern rebukes of the prosecutor. While they could likely tell through the judge’s tone and manner, combined with the timing of breaks, that he was not happy with Binger’s performance, it was a spectacle for those not on the jury.  For jurors, the big moment of the day was Mr. Rittenhouse’s emotional breakdown during direct examination by his lead defense counsel, Mark Richards. It happened when he was describing the events leading up to the shootings.

Mr. Binger went through a lengthy cross-examination of Rittenhouse and asked him many times concerning each person Rittenhouse shot if he intended to kill them. Each time, Rittenhouse responded that he shot his attackers only to stop their attacks, not kill them. Given the spectacular drama, the trial day ended with a prediction from the judge to the jury that the case would be in their hands by Tuesday. That, of course, supposes Judge Schroeder lets them have it at all in the face of Binger’s malfeasance, which is far from settled.

~ Read more from Scott D. Cosenza.