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Rittenhouse Trial Midday Update: Kyle Takes the Stand; Prosecutor Incurs Wrath of Judge

Rittenhouse Trial Midday Update: Kyle Takes the Stand; Prosecutor Incurs Wrath of Judge

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.

Ouch.

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

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

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.

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Comments

Every day of this trial is more epic than the last! Feels like it’s building up to a head this afternoon.

Yowza!

Thanks Andrew!

Never seen a judge so pissed. Amazing…

    SeiteiSouther in reply to OnePingOnly. | November 10, 2021 at 2:40 pm

    Popehat’s on Twitter, trying to minimize the inference on the judge’s anger.

    Dude, I’ve seen, first hand, what happens when you piss off a judge. I think any inference one would take away from this would be correct.

      DirkBelig in reply to SeiteiSouther. | November 10, 2021 at 2:52 pm

      My mom was a legal secretary and served on a couple of juries and she often noted what a lawyer she worked for once said regarding picking fights with the presiding judge: “Never forget you’re standing on the Judge’s carpet.”

      This case was only brought forth for one reason: The violent Democrat mobs demand the blood of innocents in the name of their black supremacist/Death to America! ideology. This is why the jurors are being taped so as to intimidate them into lynching this kid and the persecutors (deliberate typo) are trying to cause a mistrial (so they can blame the “white supremacist judge”) or lose outright so mythical “white supremacy” can be blamed and they can launch another round of violence, arson, burning, looting, and murdering a la Los Angeles 1992 post-Rodney King trial.

      There is no justice anymore in America. There is only JUST US and that is reserved for Democrats alone.

Bucky Barkingham | November 10, 2021 at 2:02 pm

Perhaps the DA not only wants to force a mistrial so that he can try again but also wants to get a friendly judge next time.

    Antifundamentalist in reply to Bucky Barkingham. | November 10, 2021 at 2:25 pm

    A mistrial seems like it might actually be the goal at this point. And if the defense succeeds in getting a mistrial with prejudice, then the DA can point bluster about miscarriages of justice and so forth and so on and pretend that the judge was the problem rather than the prosecution not having a case.

    When the judge declared he didn’t believe Binger was acting in good faith, it seemed like a warning to Binger that if there were a mistrial, it would be with prejudice.

I have no legal training what so ever.

I could prosecute a case better than Binger.

    irv in reply to Andy. | November 10, 2021 at 2:54 pm

    Maybe not this particular case, which should have never gone to trial.

      I’m with Andy on this one. “Your honor, we are dropping all charges against the defendant with prejudice, because after due consideration of the evidence, we see no way that we could possibly prevail at trial.”

      That in one line would be a better prosecution than Binger has done in months.

So this gives the Defense a hour or more the finnish the Motion to Dismiss. I just have to believe it’s ominously awaiting for after lunch.

OUTRAGEOUS

Binger is so hateful of Kyle that he is willing to risk losing his law license to destroy Kyle. Is he secretly Antifa ?

Love the judge’s Binger Zingers® !

Good grief, around the 7 minute mark in the 2nd video Binger even told off the court reporter.

Colonel Travis | November 10, 2021 at 2:26 pm

Seeing Binger after lunch, I think he is truly stupid.

In these videos Binger’s motto seems to be: Interruptions for thee but not for me.

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.

When discharging a firearm in public I believe FMJ is considered more dangerous than hollow point, since the latter is designed to expand when it hits a fluid-like substance. It sounds ghoulish, but it reduces the chance of a bullet passing through one human body and hitting another.

    I think the prosecutor is trying to plant the idea in the jury’s minds that Rittenhouse is an ignorant gun nut who recklessly endangered lives by not knowing what different ammo types can do.

      Of course, this is all a coulda-shoulda-woulda argument, since none of his shots did anything unexpected. You may as well excoriate a defendant for getting into a car and driving to the store, because car accidents cause more deaths than gunshots (accidental OR deliberate).

      LongTimeReader in reply to Recovering Lutheran. | November 10, 2021 at 3:31 pm

      I thought he was angling that Rittenhouse was reckless for using a round that might travel further rather than a hollow point. I honestly expected him to go that way.

      With respect to FMJ v FHP, all the shots were fired at very close range. Either round would likely be a through-and-through, a 556 round has a muzzle velocity of around 3,000fps and at that range, unless it hits a big bone and ricochets, it’s not going to be stopped by a body without some kind of body armor.

      I believe the appropriate term for all that bluster from Binger is “mental masturbation.”

        FreeSpeechIsAbsolute in reply to mbecker908. | November 10, 2021 at 8:53 pm

        actually that’s incorrect.
        At 3000fps a 556 is doing 270,000 RPM.
        rifle rounds at point blank will absolutely shatter into pieces and dump all the energy into the target.

        At rifle velocities hollow point vs FMJ doesn’t make as much a difference, only matters at distance when hunting when the bullet has slowed to pistol speeds.

        There’s a test of shooting a washing machine. 9mm goes right through, 556/223 does not

          I dunno. I shot a pretty good buck at about 3 yards with my .308 and it went through. That bullet has to travel a LONG way before it gets down to pistol velocities.

        Brave Sir Robbin in reply to mbecker908. | November 11, 2021 at 1:21 pm

        “Either round would likely be a through-and-through, a 556 round has a muzzle velocity of around 3,000fps and at that range, unless it hits a big bone and ricochets, it’s not going to be stopped by a body without some kind of body armor.”

        You are very obviously not familiar with the terminal ballistics properties of a 5.56 round. One reason the AR-15 is a good home defense choice is it lack of over-penetration. At close range, the round tends to fragment and disintegrate after initial penetration. If anything comes out the back of the target (or wall) it’s fragments.

        A 7.62 or .308 is a larger and slower round, and so tends to hold together after initial penetration, and therefore a greater propensity to carry through the target and continue. The 5.56 is a superior close combat round for a variety of reasons. One reason is that over-penetration is far less of a problem. The round and its effects stay in the target.

      Of course it would help if the prosecutor had the slightest idea of what different ammo types can do also.

    If there had been hollow points loaded into Kyle’s gun, binger would be arguing that Kyle deliberately used the deadliest possible type of ammunition possible.

      markm in reply to darwin. | November 12, 2021 at 10:57 am

      Someone loaned the gun to Rittenhouse. I assume that was with ammunition. Unless the prosecution has evidence that Rittenhouse chose the ammunition, all of this is irrelevant. The defense could object, but probably doesn’t want to interfere with the prosecutor further beclowning himself.

    That is incorrect. In fact hollow-point bullets are designed to be more lethal, but also safer. For example, a hollow point bullet is designed to expand on impact with it’s target creating a larger wound channel and consequently faster blood loss, hence the increased lethality. This increases PUBLIC safety (certainly not safety for the bad guy!) in two ways:

    1) More rapid blood loss incapacitates the target more quickly, hopefully meaning that fewer follow up shots need to be fired. Fewer shots fired means a lesser chance of the shooter missing the target with follow up shots.
    2) The hollow point bullet, via expansion, is designed to dump all its kinetic energy inside the bad guy, hopefully reducing the chance that it will travel through his/her body and take out an innocent on the other side.

    I say “hopefully” because when ammunition is tested to determine its penetration/expansion properties, it is fired into a block of “calibrated ballistic gel”. It is then removed, measured and weighed. But a human body is not ballistic gel; It has bones, fluid between organs, etc., all of which cause the bullet to behave in ways that usually cannot be predicted with any degree of accuracy.

Bucky Barkingham | November 10, 2021 at 2:33 pm

In the 2nd video Binger says at least twice that he is “trying to make a record”. Does that mean that he wants to have a basis to appeal the judges rulings in this trial?

Am I to understand that a prosecutor willfully violating the right to silence in front of a jury merits nothing beyond chastising the prosecutor?

Why is that not an INSTANT dismissal with prejudice? The prosecutor should be disbarred at a minimum.

    Elzorro in reply to Dathurtz. | November 10, 2021 at 9:55 pm

    I think the judge is going to let the defense complete their case and then motion for mistrial with prejudice. If the motion is on point I do not see how he can let this case go to the jury even though I know he wants to. Bingers purposeful violations of the constitution can not be allowed to stand.

smalltownoklahoman | November 10, 2021 at 2:39 pm

Geez and I thought Kraus made an a** of himself yesterday with Debruin! Yeah seriously wondering if Binger is angling for a mistrial after today’s display!

    There is a reason Kraus and Binger aren’t in private practice.

    Having that nice little public prosecutor sinecure means they get paid whether they are competent or not.

I cannot believe what I am seeing with Binger. He is doing the kind of stuff that when I see lawyers do in TV shows I yell at the screen that you can’t do that stuff.

smalltownoklahoman | November 10, 2021 at 2:51 pm

Crowder makes a very good point about when Kyle had an emotional breakdown on the stand today: https://www.youtube.com/watch?v=mBvi0LX5USA

    The left automatically claimed he was faking it. You can’t fake that level of emotion. The people who’ve never felt real loss or real regret don’t understand how talking about it can trigger that type of uncontrollable response.

What do you all think of this comment?

254 >>> The judge right now is giving me General Flynn trial vibes. Where the prosecution continually fucks up and the judge berates them for it. But it’s all just a show and he knows how it’s going and is only pissed about the prosecution making him look bad.
Posted by: Buzzion at November 10, 2021 02:29 PM (G2zl5)

Seems like a blatant attempt at emotional manipulation and playing to the media’s bias. I guess these guys want to see their city burn again. Prosecutors in the US have become untouchable monsters and there needs to be a legal reckoning.

While there has been a lot of discussion about Binger’s offensive and insulting behavior to the court and the judge, is there really any possibility that he will be punished for it in any substantive way? The way I see it, he’s making himself a hero to the woke mob, and will become one of their legal experts making the rounds on the cable news shows.

Why do you wear a seatbelt if you aren’t planning on getting in an accident

Bunger filibustering Kyle at this point (2:25 PM PST). My guess he’s trying to get Kyle to lose patience and show anger. I can’t for the life of me get what he is trying to establish. If you harangue someone long enough, you’ll get some slight inconsistencies (Are you lying NOW or were you lying THEN?) Maybe that’s his game?

Setec Astronomy | November 10, 2021 at 3:32 pm

did the defense attorneys fall asleep?

Does anyone honestly believe there will be any personal consequences suffered by Binger for this behavior, beyond some insignificant fine and a scolding in private? It’s not clear which may be more grievously threatened here, the defendant or maintaining belief in the integrity of the process.

Broadly, today, in this country both seem in trouble. The threat to both future defendants everywhere and belief in the integrity of the our legal systems is very real. The leap from the behavior in and tolerated by the Department of Justice and FBI in Washington, DC to a local courtroom is not as great as one may think. Cynicism, not just mine, abounds. A great deal is about to asked of this judge in his charge to the jury and one hopes for a greater display of courage, thoughtfulness, and integrity of it than was demonstrated by jury in the Chauvin trial. I’m skeptical, but would like to be surprised. Cynicism and concern deepen. Everywhere. (See the thugs who have openly intimidated the jury for details.)

    Gosport in reply to Owego. | November 10, 2021 at 8:30 pm

    Well, I wouldn’t want to be in Binger’s shoes next time he has a case in Judge Schroeder’s Court.

    And if he has peed his effectiveness away by his reckless incompetence (and being a dick) why keep him on the payroll?

Surprised the judge has not had the bailiff take Binger into custody for contempt, and then dismiss with prejudice – the people have co-counsel present. This is the worst attorney conduct I’ve seen in 34 years as an attorney.

carolinaandbaby | November 10, 2021 at 4:08 pm

DAs Binger and Klaus are the gift that keeps on giving. Now we have the judge acting as protector to the witnesses. I think these DAs know better than to do this and are getting their orders from a higher up.

Sure looks like Binky is looking to earn some kind of leftist badge of honor so he can get a low level role on a courtroom drama show.

Someone mentioned Gary Oldman from the movie Batman (whichever sequel). Cannot get out my my head while watching.

    guyjones in reply to tekovyahoser. | November 10, 2021 at 6:19 pm

    I had thought the same thing; Binger does resemble Gary Oldman. I give Binger points for having a nice suit wardrobe collection, but, that’s it — he’s as dishonest, unethical and greasy a prosecutor as I’ve ever seen.

This was an historic day, folks — recall that Mr. Branca wrote that in all of his lengthy professional career, he had never seen a prosecutor chewed-out by the judge to the extent that clueless and dishonest Binger was rightly castigated by the judge, today.

Even the judge subtly agreed with the defense that the trial so far has been terrible for the prosecution.

I think that Binger cut every single one of his Criminal Law classes, in law school. Actually, maybe he cut all his Constitutional Law classes, as well. The judge’s reprimand was totally on-point.

Insufficiently Sensitive | November 10, 2021 at 7:47 pm

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.

Is this the prosecution trying to irregularize the trial deliberately, to have it serve as a base for an appeal, realizing that their prosecutorial goose has been cooked in nearly every session of the Court?

I only took the LSAT, but I’m pretty sure I’d look like a Supreme Court justice compared to Binger.

Dang, this prosecution team is making the Zimmerman Prosecution Team look like consummate professionals.

When I was working as a Deputy, I often picked up people who had failed to appear in court for their hearings. They were often chatty about how they would tell off the judge for putting out a warrant. I always told them RULE #1: Don’t piss off the judge!! Be sorry and penitent, come clean, and explain your situation.

Those who followed my advice generally got a reasonable response from the judge. Those who pissed off the judge generally got the book thrown at them. I’m sure Binger knows better, so I can’t understand why he would want to repeatedly piss off the judge.

    guyjones in reply to OldProf2. | November 10, 2021 at 9:18 pm

    An honest and ethical prosecutor never would have brought this case, and/or, tried it, given the glaring absence of evidentiary and factual supports for the charges. Binger strikes me as a “win at all costs” type of prosecutor, and, a highly dishonest unethical one, at that. And, it bears mentioning that a prosecutor’s ethical role is “to see Justice done,” not to win at all costs. And, seeing Justice done means possessing the ethical honesty and the moral integrity to refrain from bringing charges that aren’t legitimately supported by facts and evidence, as with the charges in this case.

Binger is a Dead Man Walking. Deservedly so.

The look on Richards’ face when Binger tells the judge not to interrupt him is priceless. He can’t believe how stupid this guy is, who talks to a judge like that?

A retired attorney, and never criminal, asking, but is a judgment notwithstanding the verdict (JNOV) also a possibility here. Judge Schroeder lets this slam-dunk for the defense case nevertheless go to the jury, and the woke jury returns a Chauvinesque guilty on all counts verdict, is a JNOV a possibility if Judge Schroeder believes the jury verdict is not supported by the evidence?

I’ve sat through plenty of trials in various capacity and I am impressed by the judge’s self control. I’ve rarely seen a lawyer keep digging a hole like that. I’ve seen defendants and witnesses keep digging out of ignorance but the prosecutor is stubbornly unethical and energetic about it. I realize the judge knows history is watching this one.

Hard to see how the tptb can let the kid get away with it. It would mean pretty much anyone could protect themselves from antifa and blm and that the system cannot afford.

Maybe ADA Binger has been instructed to get a mistrial and dismissal with prejudice in state court, so the Feds can persecute young Rittenhouse in Federal Court??? I wouldn’t put that past those assholes.

SEND A MESSAGE AGAINST PROSECUTORY MISCONDUCT
— DISMISS WITH PREJUDICE

Every attorney I have talked to (and I know many) have said the conduct of this prosecutor is far beyond the line. The ONLY rational explanation is that he is blatantly seeking a mistrial.

Instead, the judge should dismiss with prejudice AND refer Binger to the State Bar for a disciplinary hearing.

The Court simply cannot tolerate such conduct. Zero tolerance is the ONLY standard that matters in such a grievous constitutional violation. Binger is a seasoned prosecutor – he knows what he is doing. He knows he crossed the line.

Any other action would send a message to slimy lawyers everywhere that they can manipulate the judicial process.

DISMISS WITH PREJUDICE. The facts of the case already show that the State cannot come close to achieving their burden to show, beyond a reasonable doubt, that Kyle R. was not acting in self-defense.

Justice WILL BE SERVED AND A MESSAGE SENT TO PROSECUTORS WHO THINK THEY MIGHT DEPLOY SUCH TACTICS.

The only institution with less integrity left than the Lawfare Left is the mainstream media. They will probably be writing stories: “Judge Appearing to Favor Defense; Experts Question If Just Verdict Can Result…” etc.

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