Law & the Courts

Trial Explodes: Defense Seeks Mistrial as Kyle Rittenhouse Cries on Stand, Judge Berates Prosecutor

Kyle Rittenhouse breaks down on the stand as he testifies during his trial at the Kenosha County Courthouse in Kenosha, Wis., November 10, 2021. (Mark Hertzberg/Pool via Reuters)

Kyle Rittenhouse’s defense attorneys said Wednesday that they will file for a mistrial with prejudice, citing constitutional violations and misconduct by the prosecution.

Kenosha County Judge Bruce Schroeder said he would take the motion under advisement. Should he declare a mistrial, Rittenhouse would be released and the state would not be permitted to re-try him on the same charges.

The motion for a mistrial was filed in response to Assistant District Attorney Thomas Binger’s cross examination of Rittenhouse, which he began by implying that the defendant’s silence ahead of the trial was potentially incriminating. Rittenhouse’s attorney objected to the line of questioning. After instructing the jury to leave the room, the judge sustained the defense’s objection and berated the prosecutor for implying Rittenhouse should be penalized for exercising his constitutional right to remain silent.

“This is a grave constitutional violation for you to talk about the defendant’s silence, you’re right on the border line, you may be over. It better stop…This is not permitted,” the judge said, speaking to the prosecution attorney.

After the lunch recess, Binger attempted to introduce evidence that Schroeder said he already ruled as inadmissible. Schroeder reacted angrily, accusing Binger of bending the rules in defiance of his ruling to admit banned evidence.

“When you say you’re acting in good faith, I don’t believe that,” Schroeder said.

While the defense is contending that Rittenhouse, fearing for his life, fired his weapon in self-defense, the prosecution is claiming that his actions were criminal, and that he committed five felonies and a misdemeanor that night. The charges Rittenhouse faces include first-degree intentional homicide, first-degree reckless homicide, attempted first-degree intentional reckless homicide, possession and use of a dangerous weapon, as well as failure to comply with an emergency order from state or local government.

Rittenhouse broke down sobbing on the stand while testifying in his own defense on Wednesday, prompting the judge to call a ten-minute recess. The 18-year-old began to sob and hyperventilate as he started to describe the moment he fatally shot two attackers and wounded another during a protest following the police shooting of Jacob Blake in Kenosha, Wisc.

Many legal experts have suggested that the prosecution’s witnesses have bolstered the defense’s case, with witness Gaige Grosskreutz admitting on cross examination that he first pointed his gun at Rittenhouse before Rittenhouse fired at him.

On Wednesday, Rittenhouse said that the first man he shot, Joseph Rosenbaum, was chasing him, as bystander Joshua Ziminsky instructed Rosenbaum to “get him and kill him.”

Rittenhouse then testified that Rosenbaum threw an item at him, later revealed to be a plastic bag, which he believed to be a metal projectile at the time. As Rosenbaum closed the distance on him, Rittenhouse claims he heard a gun shot behind him, prompting him to turn around. Once he turned around, Rittenhouse claims Rosenbaum grabbed the barrel of his gun. In response, Rittenhouse says he shot Rosenbaum four times, after which Rittenhouse searched for help.

Rittenhouse then described trying to turn himself into police because he didn’t “do any thing wrong.” The police told him to go home even after he told them he had shot someone.

The prosecution has attempted to portray Rittenhouse as a vigilante who was looking for trouble when he involved himself in the Kenosha unrest, even though his residence was in Antioch, Illinois, a characterization which the defendant has repeatedly rejected. In the name of protecting “my community,” Rittenhouse stated that he intervened in the unrest, as well as agreed to help an employee of a town car dealership guard the business premises to thwart looters. Defense attorneys have reiterated that Rittenhouse’s decision to take his gun to the protests in Kenosha does not alone warrant a guilty verdict.

Binger questioned Rittenhouse about his choice of an AR-15 when he was purchasing a firearm, adding that “it resembled the types of weapons that are used in first person shooter video games,” in which gamers “pretty much shoot anyone who comes at you.” Rittenhouse retorted that video games are not “real life” and that many types of guns are represented in them, including pistols, shotguns, etc.

“I don’t really understand the meaning of your question,” he said.

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