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‘He could lose it’: Legal experts see prosecutorial missteps in Rittenhouse trial

Assistant District Attorney Thomas Binger walks into the courtroom during Kyle Rittenhouse’s trial at the Kenosha County Courthouse in Kenosha, Wis., on Nov. 11. (Sean Krajacic/Pool/Reuters)

Judge Bruce Schroeder suddenly halted the homicide trial of Kyle Rittenhouse, the teenager charged with killing two people and wounding a third during unrest in Kenosha, Wis., last year, to lambaste the chief prosecutor on Wednesday. The judge accused him of violating orders about discussing a video in which the defendant had allegedly talked about wanting to shoot looters.

Kenosha Assistant District Attorney Thomas Binger insisted it was his “good-faith feeling” that he could introduce the evidence, but Schroeder shot back with fury, “I don’t believe you.”

And neither did some legal experts.

The dramatic rebuke in front of a national audience that is watching the streaming trial encapsulates what some experts saw as a rocky prosecution for Binger, who was undercut by his own witnesses, made strategic missteps and has struggled with inconvenient facts and a high legal bar to prove Rittenhouse’s guilt.

Janine Geske, a former Wisconsin Supreme Court justice, said Binger, a seasoned litigator, must have understood it was dicey to introduce the evidence without the judge’s permission, but probably did it anyway because he was worried he hadn’t proven his case to the jury.

“I think he sees that he could lose it. It’s a case where the jury could come back not guilty,” Geske said. “I think he’s cutting corners as close as he can to get his evidence in front of the jury. Unfortunately, he’s really angered the trial judge.”

As Rittenhouse trial nears end, judge’s decisions from bench come under scrutiny

The testy exchange has thrust the little-known prosecutor and his lawyering into the spotlight as the divisive case nears its conclusion. Rittenhouse, 18, is charged with homicide and attempted homicide for opening fire on three people, killing two of them, during a chaotic night following a police shooting in Kenosha in August 2020. He has pleaded not guilty.

The defense rested on Thursday afternoon. Schroeder then spoke to the prosecution and defense about their closing arguments, which are set to take place Monday. The judge initially suggested both sides get 90 minutes for their closing arguments, but Binger asked for more time, prompting some skeptical remarks from Schroeder. The judge relented when Binger noted that he needed time to show video evidence.

Binger did not respond to requests for an interview, and the Kenosha County district attorney’s office declined to comment. Binger has decades of experience as an attorney and has handled murder and rape cases previously, but the Rittenhouse trial is far and away his most high-profile case.

It has come with close scrutiny.

Dan Adams, a defense attorney and former prosecutor in Milwaukee, said Binger may have felt compelled to introduce some witnesses who saw the shootings, but their testimony sometimes ended up bolstering Rittenhouse’s claim that he shot in self-defense.

Adams said the most glaring instance came when Gaige Grosskreutz testified that he approached Rittenhouse with a gun and pointed it at him, before the teen shot Grosskreutz in the arm.

“That was the most explosive testimony in the whole trial,” Adams said. “Binger introduced . . . witnesses that could have easily been introduced in the defense’s case. It was unclear what the strategic value of those witnesses were.”

Binger also called Richie McGinniss, a videographer for the conservative website the Daily Caller, who affirmed he felt he was in danger when Rittenhouse shot and killed the first victim, 36-year-old Joseph Rosenbaum. But McGinniss’s response to a question from Binger established a crucial point for the defense — that Rosenbaum, not Rittenhouse, was the instigator of the encounter.

Legal experts said Binger charged aggressively in the case, something not uncommon for prosecutors in Wisconsin since judges can instruct juries to consider lesser charges in addition to the more serious offenses.

Still, some felt strategically it might have been wiser to pursue fewer and lesser charges given the facts.

“They overcharged the case for sure,” said Paul Bucher, a defense attorney and former district attorney in Wisconsin. “Why would you charge a curfew violation? This is a homicide case.”

What to know about the contentious trial of Kyle Rittenhouse

Schroeder dropped the curfew charge Tuesday, indicating prosecutors failed to present evidence a curfew was in place.

But legal experts said the most questionable conduct may have come Wednesday when the judge launched into a series of fiery asides against Binger for allegedly overreaching during his cross-examination of Rittenhouse.

Judge Bruce Schroeder admonished Assistant District Attorney Thomas Binger over his line of questioning of Kyle Rittenhouse, who fatally shot two people in 2020 (Video: Reuters)

When Binger questioned Rittenhouse for not previously speaking about the shooting — suggesting Rittenhouse’s earlier silence has allowed him to listen and then tailor his testimony to the trial narrative — Schroeder erupted.

“You’re right on the borderline, and you may be over,” Schroeder said, warning Binger that he was impugning the defendant’s constitutional right to remain silent. “It better stop.”

Later, when Binger blitzed Rittenhouse with questions over when it is acceptable to use deadly force, he began to ask about an incident from days before the Kenosha shooting.

Binger had touched on video evidence that had been the subject of a pretrial hearing in August that appears to capture Rittenhouse saying last year, “I wish I had my AR, I’d fire some rounds” at people he believed were looting a CVS store in Chicago.

Binger argued that the video goes “exactly to [Rittenhouse’s] state of mind” when it came to understanding use of force and self-defense: the same weapon, the same desire to take matters into his own hands with regard to a business he has no ties to and a community he doesn’t live in.

At the time, Schroeder was unconvinced but said he would withhold a final decision until trial. When Binger waded into the evidence in court Wednesday, the judge sent the jury out of the room before yelling at Binger.

The defense motioned for a mistrial with prejudice — meaning Rittenhouse couldn’t be retried — arguing that Binger was losing the case and trying to provoke a mistrial himself so he could have another shot.

Defense attorneys said Binger has a reputation for being careful and methodical.

In 2016, Binger ran for district attorney in neighboring Racine County as a Democrat, losing to the Republican in the race. If elected, he planned to implement a diversion program for drug offenders and use academic researchers to create data to guide prosecutions.

“I think that Racine County needs to have a district attorney that is willing to go in to court and fight for justice and put away the most violent offenders,” Binger told a local newspaper during the Racine race. “In the last two years as a prosecutor, I have won 13 jury trials. I have convicted murderers, rapists, child molesters, drug dealers, drunk drivers, home-invading burglars and men who abuse women.”

Kenosha: How two men’s paths crossed in an encounter that has divided the nation

Binger previously worked as a civil litigator for a large firm and in the Milwaukee prosecutor’s office. He graduated from the University of Michigan Law School in 1996.

Not all reviews of Binger’s performance were critical. Geske said his cross-examination of Rittenhouse was effective, but Rittenhouse was also well-prepared.

“I think he’s been good,” Geske said of the questioning. “He certainly tried to lead Rittenhouse where he needed to go.”

And many said some factors were beyond Binger’s control.

The case is challenging for prosecutors, Adams said, because the extensive video evidence portrayed a scene of mayhem on Kenosha’s streets, before Rittenhouse opened fire. He said Binger did an “adequate job” presenting his case given its limitations.

“It follows the old adage that you can’t make a silk purse out of a sow’s ear,” Adams said. “There were a lot of inconvenient facts for the state and a lot of those inconvenient facts were documented in the video evidence.”

Defense attorneys also said the case quickly became quite challenging for prosecutors. Under Wisconsin law, once self-defense has been raised as an issue, the burden switches to the state to disprove self-defense beyond a reasonable doubt.

“It’s almost like the state has to prove a negative once somebody claims self-defense,” said Racine, Wis.-based defense attorney Patrick Cafferty. “We all know from our philosophy class in college that it’s next to impossible to prove a negative.”

Mark Berman and Mark Guarino contributed to this report.