December 5, 2021

Milne News

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Rittenhouse could be tried again if judge declares mistrial – but not if it’s mistrial with prejudice

3 min read
Rittenhouse could be tried again if judge declares mistrial - but not if it's mistrial with prejudice

Kyle Rittenhouse’s trial is now being conducted under the specter of a possible mistrial.

The defense has requested one to be declared with prejudice on the grounds of ‘prosecutorial impropriety.’

If granted this would mean that the case would be tossed and could not be brought again – a highly unusual move but applicable under such circumstances.

The judge has taken the defense’s request for a mistrial with prejudice under consideration, meaning should he feel it necessary, he can now call a mistrial at any moment with no need for further arguments in court or in-camera.

Lead attorney Mark Richards accused prosecutor Thomas Binger of behaving in bad faith and of behavior designed to provoke a mistrial. A simple mistrial would mean the case could be tried again.

He accused him of doing this to ‘throw’ the trial that is going badly for the state, prevent it from ending with an acquittal and open the possibility of ‘another kick of the cat.’

The prosecutor was admonished on three occasions by Judge Bruce Schroeder shortly after beginning his cross-examination.

He was twice admonished for questioning Rittenhouse’s right to remain silent post being charged – a move deemed a ‘grave constitutional violation’ by the judge who first reprimanded him in front of the jury and then sent the jury out to read him the riot act a second time.

Binger also attempted to bring into evidence information that the judge had specifically excluded in pre-trial motions.

As an experienced trial attorney Binger’s actions ‘astonished’ both the defense team and the judge neither of whom accept that he was acting in good faith.

Essentially, he stands accused of doing things that he knows will see the trial thrown out of court and the defense has therefore called for a mistrial of their own on terms that would prohibit the state from prosecuting Rittenhouse again.

Corey Chirafisi set out the defense’s stance. He said, ‘Normally a mistrial does not preclude a retrial [unless] a defendant’s motion is necessitated by a prosecutorial impropriety designed to avoid an acquittal.’

But, he continued, ‘What has happened is two times the state commented on Mr Rittenhouse’s right to remain silent.

‘The first time he was admonished by the court. The second time the judge had the jury leave, and he was re-admonished.’

As far as bringing in the excluded material Chirafisi said, ‘The prosecutor’s actions must be intentional…[with] an awareness that his activity would be prejudicial.

‘You had warned him. You had told him prior to Mr. Rittenhouse testifying.

‘You had warned him about the infringement of his constitutional right to remain silent. He did it again.

‘The second one says that the prosecutor’s actions were designed to allow another chance to convict, to provoke a mistrial to get another kick at the cat because the first trial is going badly.’

Addressing Binger, Judge Schroeder said, ‘You’re an experienced trial attorney and you’re telling me when the judge says, ‘I’m excluding this’ you decide to bring it in because you think you’ve found a way around it. Come on!’

‘When you say you were acting in good faith, I don’t believe you.’

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