Rittenhouse Defense Torches the Prosecution, Moving for Mistrial With Prejudice

Mark Hertzberg/Pool Photo via AP

It’s hard to express how badly the prosecution has been doing in the Rittenhouse case.

They were in trouble from the start, with the prosecutor claiming, falsely, that right before the shooting, Kyle Rittenhouse was chasing Joseph Rosenbaum — the first person shot — when in truth, it was the other way around.

Then the prosecution seemed to ask questions of its own witnesses that just blew up the prosecution’s position and indeed supported the defense’s argument of self-defense.

But there was another issue that hasn’t gotten the attention that it deserves — that’s the testimony of witness Nathan DeBruin. DeBruin appeared to be saying that the prosecutor was trying to get him to change his statement.

That’s definitely problematic if that’s what was going on there.

Then today, when Kyle Rittenhouse testified, the prosecution on cross improperly referred to Rittenhouse not previously giving his story. That’s remaining silent, which is his constitutional right to do. It’s improper to comment on it or imply anything negative from it. Judge Bruce Schroeder ripped into prosecutor Thomas Binger, “The problem is this is a grave constitutional violation for you to talk about the Defendant’s silence. You are right on the borderline, you may be over. It better stop.”

But the judge didn’t stop there. He continued saying this was something the prosecutor who was experienced should know, given what settled law it is.

“I was astonished when you began his examination by commenting on the defendant’s post-arrest silence,” Judge Schroeder declared. “That’s basic law. It’s been basic law in this country for 40 years, 50 years.” He also made the point that even if he, the prosecutor, thought he had a point, he should have asked the court out of the hearing of the jury to get a determination on the issue.

It appears that the defense has finally had enough with the actions of the prosecution at this point.

While they mentioned the possibility of moving for a mistrial earlier today after the prosecution improperly impugned Rittenhouse’s right to remain silent, now the defense is saying they will in fact make that motion to the judge. They announced they would be asking for a mistrial with prejudice, meaning the case would be done as to the allegations and the prosecution would be foreclosed from refiling it.

The defense said that while it isn’t normally granted with prejudice it can be in the case of prosecutorial misconduct “designed to avoid an acquittal” and then they laid out how just today, the prosecution improperly stepped on Rittenhouse’s right to remain silent, twice, the issue the judge had previously called a “grave constitutional question.”

So bring the popcorn and we’ll keep you apprised as to what the judge rules and where this goes from here.