The judge in the Kyle Rittenhouse self-defense trial in Kenosha, Wisc. came unglued at the prosecutor in the case when he cross-examined the defendant about his Constitutionally protected fifth amendment right to remain silent after he was first arrested.
Non-attorneys may not have picked up the verbal collision course prosecutor Thomas Binger was on when — not once, but twice — he said of the defendant that “today’s testimony is your first time telling your story.”
The prosecutor’s behavior became the subject of discussion for a motion for mistrial with prejudice by the defense.
Commenting on a defendant’s right to remain silent in court is illegal and prejudicial, which appeared to be the point of the matter.
The judge admonished Binger, noting “this is a grave Constitutional violation for you to talk about the defendant’s silence. That is — and you’re right, you’re right on the borderline. And you may, you may be over, but it’d better stop.”
— Blue Line Armor (@ArmorLine) November 10, 2021
Then it happened again. Judge Bruce Schroeder couldn’t believe his ears.
Judge in #Rittenhouse trial (to State Prosecutor) "Don't get brazen with me." The Prosecutor previously admonished at abridging Kyle's Constitutional rights… thank God this Judge is brilliant, and is protecting Kyle's rights and integrity of his trial.
— Geri Ricci (@RicciGeri) November 10, 2021
The normally compliant and affable judge rushed the jury out of the room and gave Binger a mouthful for referring to evidence that was not allowed at the trial.
I held it open with a bias towards denial. Why would you think that that made it OK for you to, without any advance notice, to bring this (unintelligible) before the jury? You were already, I, I was astonished when you began your examination by commenting on the defendant’s post-arrest silence! That’s basic law. It’s been basic law in this country for 40 years, 50 years – I have no idea why you would do something like that! So … I’ll leave it that. So, I don’t know what you are up to.
After a lunch break, defense attorney Corey Chirafisi announced he would move for a mistrial with prejudice. Among the reasons he cited was “to provoke a mistrial to get another kick at the cat.” Translation: this case is such a stinker for prosecutors that they want another chance for a conviction. Asking for the case to be dismissed “with prejudice” means that the charges may not be refiled against Rittenhouse.
The judge later told the prosecutor he didn’t believe he’d been acting in good faith.
Former Rittenhouse attorney Robert Barnes called for serious sanctions against Binger’s behavior.
— Robert Barnes (@barnes_law) November 10, 2021
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