Kyle Rittenhouse’s defense team is seeking a mistrial. Could it happen?

On Balance with Leland Vittert

CHICAGO (NewsNation Now) — Things got heated inside the courtroom Wednesday in the trial of 18-year-old Kyle Rittenhouse. Rittenhouse’s defense attorneys asked a judge to declare a mistrial over several out-of-bound questions asked of Rittenhouse while he took the stand in his own defense.

During cross-examination by lead prosecutor Thomas Binger, Judge Bruce Schroeder paused the trial to admonish Binger twice over improper lines of questioning. The first time, Binger asked about Rittenhouse’s silence after he got arrested. The second pause related to questions about an incident two weeks before the shootings, which Schroeder had previously said would not be permitted to come into evidence, although he said he might revisit the decision.

“Don’t get brazen with me,” Schroeder told Binger in the courtroom. “You know very well that an attorney can’t go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so, so don’t give me that.”

His attorneys are seeking a mistrial “with prejudice.” If granted, Rittenhouse would not be able to be tried again in the future.

Criminal defense attorney Phillip Turner says he was shocked at Binger’s actions during the trial.

“What the prosecutor did is just completely outrageous, quite frankly,” Turner said during his appearance on “On Balance”. “But it’s something that’s endemic of prosecutors these days, trying to just get a conviction at all cost.”

Civil rights attorney Robert Patello, who also joined “On Balance,” agreed. 

“If you want to get that evidence in, you … approach the bench … you reestablish the motion, and then you try to allow it in,” Patello said. “You … don’t just do it by yourself.”

Rittenhouse shot and killed Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreutz during the protest in Kenosha in August 2020. He faces multiple counts, including intentional homicide, which carries a mandatory life sentence.

Rittenhouse, 18, has argued he fired in self-defense after the men attacked him. To win an acquittal on self-defense, he must show he reasonably feared for his life and used an appropriate amount of force.

On Wednesday, Rittenhouse testified that Rosenbaum twice threatened to kill him, chased him and grabbed for his gun. He also testified Huber hit him with a skateboard twice and tried to take his gun and that Grosskreutz pointed a pistol at him. Rittenhouse said repeatedly that he felt he had to shoot the men to protect himself.

Turner said that the defense has done a good job so far to show that Rittenhouse acted in self-defense.

“The defense was able to get in a substantial amount of their case right through cross-examination … so they didn’t have to put on very much.”

Patello believes that Binger should have been tighter with his questioning of Rittenhouse. He said the prosecution is basically walking a fine line for a mistrial.

“Prosecutors often do not have a lot of experience cross-examining defendants and so this is why he (Binger) bombed bumbled it so badly. … I think if this ends up failing, (it) is because of the incompetence of those prosecutors.”

Turner said if a mistrial is granted, it shouldn’t be with prejudice.

“Some of the things that they’ve done here are clear, black letter law violations, commenting on post-arrest silence? Any law school student who … (has) taken a primary course in criminal law … knows that. It was just deliberate. ”

Though Schroeder took the mistrial request under advisement, it seemed unlikely he would grant it. Near the end of the court’s day Wednesday, he told the jury he expected the case to wrap up early next week.

It’s not unusual once testimony concludes for criminal defense attorneys to ask a judge to dismiss charges — or in a civil case, issue what’s known as a directed verdict — if there’s insufficient evidence to support a conviction before a case goes to a jury.

The Associated Press contributed to this report.

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