Kyle Rittenhouse’s defense attorneys on Wednesday asked for a mistrial “with prejudice,” arguing the prosecution breached Rittenhouse's right to remain silent and broached evidence that the judge had suggested was not going to be allowed to be used in court.
Judge Bruce Schroeder said he would take the defense motion under advisement but won’t rule on it immediately. If a mistrial is granted “with prejudice,” the state can not re-try Rittenhouse.
Rittenhouse, now 18, took the stand Wednesday and broke down crying while his lawyer questioned him about the night in August 2020 when he killed two people with an AR-15-style rifle during the chaotic unrest in Kenosha, Wisconsin, following a police shooting of a Black man there two days before.
However, when Rittenhouse was cross-examined by prosecutor Thomas Binger, the lawyer brought up comments that the teenager made in a video that Schroeder had not yet allowed to be admitted in court, and had said he was likely to refuse.
“Your Honor, Mr. Binger is either forgetting the court's rulings or attempting to provoke a mistrial in this matter,” said Rittenhouse lead attorney Mark Richards in response.
In the likely-to-be-ruled-out video, shot just 15 days before the shooting in Kenosha, Rittenhouse talked about wanting to shoot shoplifters. Corey Chirafisi, another Rittenhouse defense attorney, implied the prosecution was intentionally overreaching to get the case thrown out to “get another kick at the cat.”
It was long speculated whether Rittenhouse, accused of intentionally killing Joseph Rosenbaum and Anthony Huber during the Kenosha protests against police brutality, would take the stand. On Wednesday morning, almost a week and a half into the trial and after the prosecutors rested their case, Richards called him to the stand.
A large portion of the prosecution’s cross-examination was spent in a heated argument with Schroeder about Binger’s conduct. The prosecutor said that “[Rittenhouse] is tailoring his story to the evidence that’s been introduced”, noting he didn’t speak about the case until the trial. Schroeder paused the trial and chastised Binger by saying he’s “right on the borderline” of violating Rittenhouse's right to be silent.
Schroeder also adjourned the trial once again when Binger asked about the not-yet-admitted video and the defense accused Binger of actively attempting to get a mistrial. Binger told the court he knew there was a motion but the “court left the door open.”
“For me, not for you,” said Schroeder. “You should have come to me and asked.”
“I was already astonished that you started commenting on the defendant's post-arrest silence,” the judge said sharply to the prosecutor. “That’s basic law, that’s been basic law in this country for 40 years…. So I don’t know what you’ve been up to.”
Binger said that he believed he could broach the video comments as Rittenhouse said earlier in his testimony that he pointed his gun at someone standing on a car. This, said Binger, shows Rittenhouse was willing to use force to protect private property. Schroeder said he didn’t see the similarity.
Schroeder told Binger he didn’t want to talk about his conduct again during the questioning. Schroeder has been a controversial figure in the trial with his sharp tone against the prosecution and his ruling that they couldn’t use the term “victims” to describe the men who were shot and killed.
The prosecution began their cross-examination of Rittenhouse bluntly.
“Everyone you shot at that night you intended to kill, correct?” asked Binger.
“I didn’t intend to kill them; I intended to stop the people from attacking me,” said Rittenhouse.
“By killing them,” responded Binger.
Binger also said Rittenhouse skirted rules around him having a AR-15-style rifle. Rittenhouse said that he got his rifle because he “thought it looked cool”—it was bought for him by the friend he went to Kenosha with. Binger also brought up Rittenhouse enjoyed playing first-person shooters like Call of Duty with that same friend.
“Isn’t one of the things people do in these video games is try and kill everyone else with your guns?” asked Binger.
“Yeah, in the video game,” responded Rittenhouse. “It’s a video game; it’s not real life.”
Binger brought up one of Rittenhouse’s online posts showing a photo of him with his rifle with the caption “brah, I’m just trying to get famous.” Binger hammered Rittenhouse about how he talked up his credentials and his lack of experience with the weapon.
Under the questioning of his own lawyer, Richards, Rittenhouse told his version of how the night unfolded. He broke down when first speaking about his encounter with Rosenbaum, the first man he killed that night, forcing the court to briefly adjourn. When he returned, he spoke calmly and confidently about that night, painting a picture of a scene where he was forced to use “deadly force.” You can read more about his testimony here.
The trial has thus far been polarizing; on the left, Rittenhouse is seen as a vigilante who was out looking for blood in Kenosha that evening, whereas, on the right, he’s viewed as a teenager who killed in self-defense. In some far-right corners, Rittenhouse is actively treated as a hero.