We won’t know the final answer to this until the jury comes back, of course, but perhaps Kyle Rittenhouse’s decision to testify isn’t as “insane” as it first looked. With prosecutors seemingly doing their level best to establish all of the elements of self-defense for Rittenhouse, putting the 18-year-old defendant on the stand and subject him to cross-examination appeared to be a pointless risk.
Not so, writes our friend Andrew McCarthy at National Review. While the testimony took place today, McCarthy reminded readers that a refusal to testify would also have been a risk. And given how badly prosecutors had performed already, the gamble here was calculated … and likely a winner:
(2) Rittenhouse appears to be a likeable kid (or at least, not unlikeable). He is no rocket scientist but not dumb, and he obviously feels very strongly that he is innocent. He has clearly been dying to explain why. Critically, he does not have a criminal record to speak of, so the prosecutors cannot paint him as a died-in-the-wool bad guy. The examination is focusing on the facts of this case, and here, that helps the defense.
(3) In murder cases, juries want the defendant to get on the stand, look them in the eye, and tell them that he is innocent. It is obviously not required, and juries try hard to follow the court’s instruction that they may not count a defendant’s decision not to testify against him. But a defendant who can pull it off — even one facing more damning evidence than Rittenhouse is — greatly advances his chance of being acquitted.
(4) The prosecutors in this case have been ineffective. Judges, no matter how annoyed they get at the lawyers, try not to bash them in front of the jury. But Judge Bruce Schroeder has lost his patience with these prosecutors a few times. And the worst episodes have involved badgering witnesses — including the prosecutors’ own witnesses — who have not testified as the prosecutors hoped. One defense witness even claimed, credibly, that the prosecutors pressured him, in a private prep session, to change his version of events. Rittenhouse’s able defense lawyers clearly calculated that their client would be obnoxiously badgered by the prosecutor, that Rittenhouse could handle it, and that the defendant would become more sympathetic in the jury’s eyes, while the state seemed more desperate.
It was a good bet. Even in their wildest dreams, the defense lawyers couldn’t have imagined that a prosecutor would flirt with reversible constitutional error by arguably using Rittenhouse’s Fifth Amendment privilege against him, as Caroline’s report details.
John wrote about this as well, but this violation nearly ended the trial after lunch, after another bit of prosecutorial misconduct — and still might. ADA Binger’s attempt to advance a line of questioning that Judge Schroeder had already precluded got him a loud and lengthy rebuke from the bench. However, it’s the constitutional violation that could bring the prosecution to an abrupt and permanent end:
The motion for a mistrial was filed in response to Assistant District Attorney Thomas Binger’s cross examination of Rittenhouse, which he began by implying that the defendant’s silence ahead of the trial was potentially incriminating. Rittenhouse’s attorney objected to the line of questioning. After instructing the jury to leave the room, the judge sustained the defense’s objection and berated the prosecutor for implying Rittenhouse should be penalized for exercising his constitutional right to remain silent.
“This is a grave constitutional violation for you to talk about the defendant’s silence, you’re right on the border line, you may be over. It better stop…This is not permitted,” the judge said, speaking to the prosecution attorney.
After the lunch recess, Binger attempted to introduce evidence that Schroeder said he already ruled as inadmissible. Schroeder reacted angrily, accusing Binger of bending the rules in defiance of his ruling to admit banned evidence.
“When you say you’re acting in good faith, I don’t believe that,” Schroeder said.
The attack on Rittenhouse’s sensible and perfectly constitutional decision to not engage with police after the shooting will almost certainly create an opening for a reversal, assuming prosecutors get a conviction at all. The standards of Miranda are clear — defendants cannot be penalized for invoking their right to remain silent, nor can that silence be used against them in court. Binger clearly tried to do the latter. If he manages to get a conviction at all out of this trial, it’s not going to last long. In fact, one has to wonder whether this judge would entertain a motion to reconsider and set aside the verdict after a conviction with this on the record, but that would be extraordinary indeed.
Still, providing an experienced prosecutor with a teenager as a sitting target seemed pretty risky. So far, though, Binger hasn’t done much damage except to the perception of Rittenhouse’s maturity. He’s forced Rittenhouse to admit to a couple of instances of dishonesty, but nothing connected to the shootings or his claim of self-defense. On those points, Rittenhouse seems unmovable. Binger has ridiculed Rittenhouse’s claims about wanting to help out with fire control and medical assistance, but hasn’t really rattled Rittenhouse on those points, either.
PROSECUTOR: "You decided you needed to run because of the fire?"
P: "Why? What was so urgent?"
R: "It was a fire."
P: "There's fires all over the place. So?" pic.twitter.com/M77ZvgU2gt
— Townhall.com (@townhallcom) November 10, 2021
What exactly was the point of this question, and why did Binger look unprepared for the obvious answer — “I was getting to the fire to put it out”? If this did anything, it only helped corroborate and emphasize Rittenhouse’s expressed motivation for being in the riot zone: to provide medical assistance and help put out fires started by rioters. Binger promised to “get back to this,” but it’s a mystery why he pursed it in the first place.
The cross-examination appears to have had an impact on the jury, but perhaps not the one Binger hoped to get:
A quick jury update in the #Rittenhouse trial:
There's a few that seem to be unattentive, no longer focused on the testimony. Several are leaned back with their legs and arms crossed.
Almost everyone has stopped taking notes.
— Jiovanni Lieggi (@lieggiji) November 10, 2021
That may not mean that jurors have reached a conclusion about the trial itself yet. It certainly suggests that they’re not terribly interested in this cross-examination any longer. Based on the meandering and pointless directions Binger has taken with it (as Bonchie details in his RedState analysis), one can hardly blame them for checking out.
All of this supports Andy’s point, which is that the Rittenhouse prosecution had been incompetent enough to take the qualified gamble that they couldn’t take advantage of the defendant. Until the jury returns with a verdict, we won’t know that for certain, but … at least thus far, it doesn’t appear the prosecution has been adept enough to take the advantage Rittenhouse’s decision to testify offered. Or even adept enough to recognize that they didn’t have a case from the start even from their own witnesses.