The Corner

Law & the Courts

Bang-Bang Binger

Assistant District Attorney Thomas Binger holds Kyle Rittenhouse’s gun as he gives the state’s closing argument in Kyle Rittenhouse’s trial Kenosha County Courthouse, Wis., November 15, 2021. (Sean Krajacic/Reuters)

There’s lots of coverage today about Kenosha assistant district attorney Thomas Binger’s mishandling the AR-15-style rifle that is, naturally, central evidence in the Kyle Rittenhouse trial. Most notorious is a still photograph of his pointing the gun at people in the courtroom during his erratic summation. In this morning’s Jolt, Jim has a section on it drawing from my pal (and former FBI agent) Jim Gagliano’s New York Post column.

As a federal prosecutor, I handled lots of cases involving the mafia, drug cartels, gangs, and terrorism. Lots of violent crime, so lots of guns. Handling firearms in a courtroom, just feet from the jury, is a very delicate matter.

It was always drilled into young prosecutors by veterans (I was trained by Louie Freeh, a former FBI agent and later FBI director) that we should very obviously demonstrate that the gun was unloaded and/or otherwise disabled before we could handle it, mainly to present it to the witness who would identify it so it could be introduced it into evidence. There is almost never a time when it is necessary or helpful to have a witness, much less the prosecutor, handle a gun for demonstrative purposes — a demonstration can always be done without the actual gun, and the gun can make the jurors (and others) very uncomfortable, even if you have shown them that it is not capable of firing in its current condition.

Moreover, many things have changed since I was a young prosecutor in the mid Eighties. The Rittenhouse trial is a good example of the main thing: Cameras are ubiquitous. Much of the relevant activity a prosecutor would want to demonstrate to a jury that involves the handling of firearms (usually by defendants and their cohorts) can be done by videos and still photographs drawn from them. This has the advantage for the prosecutor of basing demonstrations on the pertinent evidence in the case and focusing the jury’s attention on the defendant’s violence on the street — in contrast to his benign courtroom appearance in a nice suit at the defense table.

There is also the matter of common sense. As the prosecutor in a violent crime cases, you are trying to convey that the defendants and their weapons were extremely dangerous — often lethally so. Ergo, a prosecutor should never handle gun exhibits as if they are in a game or as if the weapon is a toy. It lends a disturbing unseriousness to the presentation of the case that does not help the government. In a word, it’s idiotic.

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