By David M. Greenwald
This week saw a dramatic close to the murder trial of Kyle Rittenhouse as he took the stand, cried, and the judge berated the prosecutor and the defense asked for a mistrial.
“I didn’t do anything wrong. I defended myself,” Rittenhouse testified Wednesday and began to cry before the judge called for a morning break.
The defense is arguing self-defense and some think the law and the case may be murky enough to get it.
“In Wisconsin, like in all states but (I believe) Ohio, the burden of proof is on the STATE to DISPROVE the need for defense force beyond a reasonable doubt,” Fordham Law Professor John Pfaff tweeted on Wednesday.
“A Rittenhouse acquittal does not mean that he affirmatively established that his use of force was legitimate. It means that the state failed to prove beyond a reasonable doubt that it was illegitimate.”
The Vanguard spoke with former Miami-Dade County Judge and current Criminal Law Professor at Western Michigan University Cooley Law School, Jeffrey Swartz.
He told the Vanguard that he believes Judge Bruce Schroeder’s rulings from the bench are one-sided in favor of the defense.
“It’s abundantly clear the judge is trying to direct the case toward an acquittal,” said Swartz.
The rulings started early, with the judge taking the highly unusual step to preclude the prosecutor from referring to the deceased as victims.
“Allowing them to be called riders and looters when there literally is no evidence that they were riding or looting, just because they were there,” Swartz said. “Those people who were there and those who died, had no ability to contest that label being placed on them – it was a horrible ruling.”
“Even if they find Rittenhouse not guilty, there’s still victims, they still died as a result of somebody shooting a gun at them – that makes you a victim,” he added.
The judge reprimanded Binger during his cross-examination of Rittenhouse. Binger for instance, pointed out that after 14 months of news coverage, investigations, social media commentary and the seven days of the trial, Rittenhouse was now telling “your side of the story.”
The defense attorney Mark Richards objected that Binger was crossing into the defendant’s right to remain silent.
Binger countered that he was simply showing that Rittenhouse had plenty of time and opportunity to tailor his testimony to the evidence already presented.
“It’s a grave constitutional violation to talk about” Rittenhouse’s right to remain silent, the Judge said.
Swartz said, “I don’t see any difference between pre-indictment silence and post-indictment silence. It is still silence, and he was giving interviews.”
Swartz cited case law to suggest that it was fair game for the prosecution to ask why he said nothing to to the police, “while he was giving interviews to the media.”
“Salinas versus Texas says so,” he said. “I don’t like Salinas versus Texas, but it is the law, and I just think that was a bad ruling. I think that the prosecution has every right to ask him why he was giving interviews and that he wouldn’t talk to the police.”
Swartz said that the Judge “was putting his bias on display for the whole world to see it. To me, if I were still a judge, I’d be embarrassed.”
He added, “I’m not sure in his mind that he doesn’t think Rittenhouse was justified (in his actions).”
Like others in this case, the self-defense instruction places the burden of proving that it wasn’t self-defense on the prosecutor.
“It is very difficult, not impossible, but difficult,” he said. But he added, “I think the prosecutor has adequate evidence in the record that I’ve seen to be able to argue that Mr. Rittenhouse didn’t meet the standard for self-defense,” he said.
He would have needed to reasonably believe that his life was in danger, which entitled him to use deadly force.
“He has a very simple argument,” Swartz believes. “You’ve got a 17-year-old kid walking around with a gun that he illegally purchased with his hand on the trigger, the safety off and his left hand on the sock in a ready to fire position. And yet he claims that he is the victim.”
Swartz said he believes that there is adequate evidence “for them to find him guilty of some of the lesser included charges like manslaughter as opposed to murder.”
He said, “I think that the prosecution has tried to make it clear that despite the fact that he was 17 years old, he was acting in a manner of someone who knew exactly what he was doing. It’s not like he was just a kid on a joy ride.”