(This is an article published in the Daily Mail on November 11, 2021 authored by Mark Eiglarsh as a guest contributor)
‘Desperate times call for desperate measures.’
That’s the quotation that comes to mind after observing the prosecutor’s behavior in court during the cross examination of Kyle Rittenhouse, who is on trial for shooting and killing 2 men and wounding a third during a night of violent riots and protest in Kenosha, Wisconsin in the wake of George Floyd’s death.
Why else would the prosecutor intentionally risk committing a ‘grave constitutional violation,’ according to the judge, and then ignore a court order and inform jurors of evidence that had previously been ruled inadmissible?
In the first instance, Assistant District Attorney Thomas Binger questioned Rittenhouse’s constitutional right to remain silent prior to trial, earning him a stinging rebuke from the bench.
‘You’re right on the borderline and you may be over, and it better stop,’ warned Kenosha County Circuit Judge Bruce Schroeder, after sending the jury out of the courtroom. ‘This is not permitted.’
A short time later in cross examination, Binger referenced a video purportedly filmed weeks before the August 2020 Kenosha killings, allegedly showing Rittenhouse saying he wanted to shoot shoplifters.
It was evidence that the judge had told Binger not to introduce.The defense team erupted and accused Binger of trying to sabotage the trial.’He’s an experienced attorney and he knows better,’ shouted Defense Attorney Mark Richards.
In a murder trial focused largely on the issue of justifiable use of force, I understand Binger’s desire for jurors to hear that the teen defendant had commented on social media about wishing he had his AR-15 so that he could shoot criminals. However, what he chose to do reeks of desperation and bad faith.
In defying the court order, the prosecutor jeopardized the entire case since the judge may grant the defendant’s pending motion for mistrial, with prejudice.
If granted, the trial ends with no opportunity for a retrial. Rittenhouse would walk free.
If the judge doesn’t grant the motion for mistrial, I think that the defense would have strong grounds for an appeal, assuming he’s ever convicted.
I think the prosecutor knows that an acquittal is likely.
His key witness even admitted under cross-examination that Rittenhouse only shot him after he pointed his gun at the teen. A detail that the witness had neglected to initially tell police.
So, in desperation, and belief that he has nothing to lose, he blatantly defied a court ruling.
Binger’s hopelessness increased as the 18-year-old defendant performed brilliantly on the stand.
He stuck to his position that he reasonably feared death or great bodily harm and had no alternative but to use deadly force. ‘He was chasing me, I was alone, he threatened to kill me earlier that night,’ testified Rittenhouse, ‘I didn’t want to have to shoot him.’The prosecutor’s attempt to rattle him proved futile.
At one point, Rittenhouse dramatically broke down on the stand, appearing to sob uncontrollably, when describing the events that led to his shooting and killing of one of two men, who died that night.
The prosecutor knew his case was weak from the start.Because of that, I think it’s fair to question why charges were brought to begin with.I understand that this is an extremely high-profile case. That means that the prosecutor is under immense pressure with the eyes of the world watching his every move.
Even then-presidential candidate Joe Biden waded into the case, when a campaign video that he tweeted, showed an image of Rittenhouse as the audio referenced ‘white supremacists and militia groups.’
However, the prosecutor has an obligation to seek the truth.
Prior to trial, the prosecutor would have interviewed all potential witnesses and should have known he cannot prove that the defendant’s actions were not in self-defense. While it would have been a very tough move and likely a very unpopular decision with many, the prosecutor should have announced that his chances of success were extremely low and remote. I don’t think it’s too early to wonder whether this trial is a gross waste of taxpayer dollars and precious judicial resources.