Defense says if ADA Binger misconduct continues, will ask for mistrial with prejudice
Welcome to today’s Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial. I am, of course, Attorney Andrew Branca, for Law of Self Defense.
Today the trial heard testimony from the defendant himself, Kyle Rittenhouse—a high-stakes bet by the defense, and one that always has risk of snatching defeat from the jaws of victory.
Fortunately for the defense, however, it appears that Assistant District Attorney Binger is leveraging this remarkable opportunity for the state to collapse not only the State’s own narrative of guilt in this trial, but to collapse the entire trial itself.
Indeed, so grievous has been Binger’s over-stepping on fundamental Constitutional rights of defendants, and curb-stomping on evidentiary rulings previously made by Judge Schroeder, that not only is the defense threatening to seek a mistrial with prejudice—meaning Rittenhouse could not be tried again, as would normally be permitted if there was a mistrial—but Judge Schroeder has repeatedly dismissed the jury during Binger’s cross-examination of Kyle to forcefully scold the prosecutor, and sometimes angrily shouting at him.
Throughout it all, Binger remains unable to pry even from the defendant himself any testimony that in any way undermines Kyle Rittenhouse’s core legal defense of self-defense. As usual, we’re hearing little but innuendo, snark, snide, and table pounding from the State.
Although Binger’s cross-examination could best be characterized as flailing from his first question until the moment a frustrated Judge Schroeder abruptly broke for lunch, there were three major incidents during the prosecutor’s cross of Rittenhouse that particularly frustrated the court.
ADA Binger Talks At Length On Kyle Exercising Right to Silence
The first was by far the most egregious: ADA Binger began to raise before the jury the fact that Rittenhouse had exercised his Constitutional right to silence prior to taking the witness stand today in court.
For those who may not know, the right to silence is inviolate, and the fact that a defendant has remained silent may not be used against him in any way—including the prohibition that it may not be mentioned AT ALL by the prosecution at any time of the trial, EVER.
If there’s a single most inviolate civil right in American criminal law, this is it—the right of a defendant to remain silent, and not have the exercise of that right be used against them.
To observe an experienced prosecutor breach this fundamental Constitutional right in open court, in the presence of a jury, was professionally shocking to me personally—and the defense and Judge Schroeder acted with the severity you might expect.
Here’s the video of Binger delving in front of the jury into Kyle’s exercise of his right to remain silent, and Judge Schroeder’s reaction:
Binger Begins Introducing CVS Video Evidence Prohibited by Judge
A short time later, Binger asked a lengthy series of questions about Kyle’s understanding that deadly force cannot be used in defense of mere property. He asked the question in perhaps a dozen different ways, and then revealed that it was all a long build-up into asking Kyle about the CVS video.
The CVS video involves Kyle sitting in a car with someone while they watch an apparent shoplifting or robbery take place at a CVS across the street. Kyle says that he wished had his AR, he’d sound rounds in the criminal’s direction. He did not have his gun with him, he obviously fired no rounds, he did not engage the criminal in any way—it was the chatter of a 17-year-old boy. All Kyle actually did was call 911 to report the event to police.
The prosecution had sought in pre-trial hearings to have this CVS video admitted as evidence at trial. The defense objected, it was argued out at length in court, and Judge Shchroeder announced he was not going to admit it, but would leave the door open to further consideration as the trial developed.
This morning, when it was learned that Rittenhouse would testify, the Judge affirmed that he was still not willing to admit the CVS video evidence.
So, when Binger began to reference the CVS video front of the jury, he was revealing evidence the judge had already prohibited after lengthy argument pre-trial, and which the judge affirmed remained prohibited just prior to Rittenhouse beginning to testify today.
Folks, he may as well have just spit in the judge’s face.
The way this is done, if a lawyer feels evidence has opened a door or done something to justify asking a judge to change an evidentiary ruling, you request of the judge an opportunity to make that argument without the jury present. Then the judge makes the call.
The lawyer does not, himself, get to just pretend that the judge’s prior ruling excluding the evidence simply no longer matters.
But that’s what ADA Binger did, and this is how it happened:
Defense Threatens to Offer Motion for Mistrial with Prejudice
After this second incident, the defense informed the judge that this was inexcusable conduct from an experienced prosecutor who knows better, that they suspected Binger knew his case was so weak that he didn’t want it to go to a jury, that he was angling for a mistrial, and that if he engaged in misconduct again the defense would offer a motion for a mistrial with prejudice—meaning that if granted, Kyle could never be tried on these charges again.
Binger Begins Providing (Wrong) Testimony on Ammo
Third, Binger began to get into a lengthy and tiresome series of questions with Kyle about the difference between full metal jacket (FMJ) bullets and hollow-point bullets. The point of all this is beyond me, frankly, but in any case Kyle repeatedly indicated that he didn’t really know all that much about bullets.
But Binger couldn’t let it go. He kept asking, and asking, and asking, and when Kyle kept repeating that he just lacked the knowledge necessary to answer the questions, Binger began to explain to Kyle what the difference in ammo types was.
Folks, this is simply not permitted. The lawyer asks questions, and the witness provides testimony.
The lawyer does not get to provide testimony—which is what Binger was doing.
The defense objected, Judge Schroeder interrupted Binger’s questionin—and Binger responded by interrupting Judge Schroeder.
One does not interrupt a judge in his own courtroom.
Judge Schroeder, with the jury still present, immediately informed Binger that, first, the information about ammo he was spouting in front of the jury was incorrect.
Second, that it was inappropriate for the prosecutor to provide testimony.
At that point Binger interrupted the judge again.
That’s when a clearly frustrated Judge Schroeder abruptly announced the court would recess for lunch, which is where we are as I write this.
Here’s that exchange.
And that’s where we are as I finish this up.
Keep following our live commenting and analysis as the Rittenhouse trial continues after lunch, right here:
LIVE: Rittenhouse Trial Day 7
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.