Kenosha County Circuit Judge Bruce Schroeder admonished assistant district attorney Thomas Binger for attempting to question the defendant, Kyle Rittenhouse, about evidence the judge had ruled inadmissible. Rittenhouse is accused of killing two men and wounding another in August 2020, during protests over a police shooting in Kenosha, Wis.
BRUCE SCHROEDER: Mr. Richards?
MARK RICHARDS: Your Honor, Mr. Binger is either forgetting the court’s rulings or attempting to provoke a mistrial in this matter. He knows he can’t go into this. And he’s asking the questions.
I ask the court to strongly admonish him. And the next time it happens, I’ll be asking for a mistrial with prejudice. He’s an experienced attorney and he knows better.
BRUCE SCHROEDER: Mr. Binger?
THOMAS BINGER: First of all, Your Honor, this was the subject of a motion. I’m well aware of that. And the court left the door open.
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BRUCE SCHROEDER: For me! Not for you!
THOMAS BINGER: My understanding of your–
BRUCE SCHROEDER: You should have come and asked for– for reconsideration. You did on the one motion. And in fact, I granted your motion for reconsideration.
THOMAS BINGER: That was not a motion.
BRUCE SCHROEDER: Excuse me. I– I– that’s a– excuse me. I– I did. I granted–
THOMAS BINGER: We did not move to reconsider.
BRUCE SCHROEDER: That was their motion. I–
THOMAS BINGER: We have not filed any motions to reconsider in this case.
BRUCE SCHROEDER: Forgive me. Forgive me. That was their motion for reconsideration, which I denied.
But I said I denied it. Or I indicated a bias towards denial, is what I did. Held it open with a bias towards denial.
Why would you think that that made it OK for you, without any advance notice, to bring this matter before the jury? You are already– you were– I was astonished when you began your examination by commenting on the defendant’s post-arrest silence. That’s basic law. It’s been basic law in this country for 40 years, 50 years.
I have no idea why you would do something like that. And it gives– well, I’ll leave it at that. So I don’t know what you’re up to.
THOMAS BINGER: May I respond?
BRUCE SCHROEDER: Yes.
THOMAS BINGER: We filed another ex motion on this exact issue because in my mind– and I argued this– it is identical to what was going on on the night of August 25, in the sense that the defendant was using this exact same weapon. He was using it in a manner to try and protect property.
BRUCE SCHROEDER: No, he wasn’t.
THOMAS BINGER: There’s– Your Honor, with all due respect–
BRUCE SCHROEDER: I’m not going to rehash the motion. That’s absolutely untrue.
THOMAS BINGER: It is–
BRUCE SCHROEDER: There’s– no, no, no. Your argument’s of record. My comments are of record. And why I ruled as I did is of record.
There’s nothing that I heard in this trial to suggest anything’s changed. Even if you’re correct in your assumption that you know more than I did at the time, you should have come to the court and say, I want to go into this. Why you would think that you could go into it without any advance notice to the court, I don’t understand that.
And as the defense is pointing out, you’re an experienced trial lawyer. And this should not have been gone into.
You know why it was excluded in the first place, because it was propensity evidence. That is exactly what 904.04 is designed to prevent.
You’re talking about his attitudes? His attitude is he wants to shoot people.
Now, I’ve admitted that kind of evidence in other trials when it’s been appropriate. I didn’t admit it in this case because to me, what I’ve heard in this trial– and by the way, Mr. Richards absolutely correctly points out that just hours ago, I said I had heard nothing in this trial to change any of my rulings.
THOMAS BINGER: That was before the defendant’s testimony, Your Honor.
BRUCE SCHROEDER: Pardon me?
THOMAS BINGER: That was before the defendant’s testimony.
BRUCE SCHROEDER: Don’t get brazen with me! You knew very well– 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. That’s number one.
Number two, this is propensity evidence. I said at the time that I made my ruling, and I’ll repeat it again now for you,
I see no similarity between talking about wishing you had your AR gun, which you don’t have, so that you could take– fire rounds at these thought-to-be shoplifters, and the incidents in these cases, which are not– there’s nothing in your case that suggests the defendant was lying in wait to shoot at somebody or reflecting upon the shooting for a vast amount of time. Every one of the incidents involves matters that involved seconds in time.
So I don’t– I commented at the time I don’t see the similarity. And I don’t see the similarity now. If it’s not similar– that’s– that’s the whole rule. Those are all the exceptions to 904.04.
Check the authorities. “Wigmore on Evidence.” Judge Weinstein. Colonel McCormick. It’s– the crime– the prior act has to bear the signature of the accused, or it has to be so similar as to suggest it’s a common plan or something like that.
You have an incident where he’s making comments about some alleged shoplifters versus– and crimes that involve instantaneous actions, whether premeditated murder or whether self-defense, that’s for the jury to decide.
But I don’t see the similarity. I said it couldn’t come in. And it isn’t coming in, no matter what you think.
Number two, I have to be concerned that with what Mr. Richards has said about the– the progress of the trial and when– when you were way– well, I said you were over the line, close to or over the line on commenting on the defendant’s pre-trial silence, which is a well-known rule.
I’m astonished that that would have been an issue. So I don’t want to have another issue as long as this case continues. Is that clear?
THOMAS BINGER: It is.
BRUCE SCHROEDER: Thank you.