An Important Clarification Regarding The Rittenhouse Trial

Closing Rittenhouse

In yesterday’s post, And The Trayvon Martin-George Zimmerman/ George Floyd/ Kyle Rittenhouse Ethics Train Wreck Rolls On….., I wrote in reference to the certifiably terrible closing arguments by both sides in the Rittenhouse trial,

“It looks to me as if Judge Schroeder has stacked the deck: he allowed enough improper summation conduct from the State to ensure a reversal if Rittenhouse is convicted, and also allowed sufficient cheats by the defense to make an acquittal more likely.”

That statement is still accurate as far as it goes, but a friend, colleague and experienced trial lawyer just called to remind me that improper statements or actions in summary arguments in civil and criminal cases that would otherwise justify a mistrial are considered waived if opposing counsel doesn’t make a timely objection.

The judge can (and should) also intervene if an attorney crosses the ethical and legal lines in closing, but my friend emphasizes that most judges won’t, preferring to leave that task to the lawyers. Attorneys, meanwhile, are very reluctant to interrupt an opponent’s closing argument to object. If they do and are over-ruled, they lose credibility with the jury. Mid-closing interruptions are also seen as Golden Rule breaches, though that should not matter: the lawyer’s duty to the client surpasses any obligations to opponents.

There are five generally recognized types of prosecutorial misconduct in closing arguments. The Rittenhouse prosecution engaged in at least the first four:

1. Intentionally misstating the evidence or misleading the jury regarding permissible inferences.

2. Expressing personal beliefs or opinions regarding the veracity of testimony or evidence or guilt of the defendant;

3. Engaging in arguments (or conduct) designed to inflame the passions or prejudices of the jury;

4. Using arguments which divert the jury from deciding case on the evidence, injecting issues broader than the question of guilt of the defendant under the controlling law, or making projections of consequences of the jury’s verdict;

5. Intentionally referring to or arguing facts not in evidence where the facts are not matters of common public knowledge.

Remember, however, that while an improper closing may slip through to the point where it can’t be remedied by the law, engaging in any of the five breaches above are still subject to ethics sanctions, at least theoretically. But as we’ve also discussed here recently, examples where unethical prosecutions are disciplined are rare.

The two routes that can allow a prosecutor’s improper statement or action (like aiming a gun at the jury) to be be used to argue for a reversal and a new trial is if it proves ineffective assistance of counsel because it was not objected to, or if an appellate court holds that it constituted judicial error for the judge not to intervene. Both routes are difficult and seldom work; the latter is especially hard to achieve.

22 thoughts on “An Important Clarification Regarding The Rittenhouse Trial

  1. Jonathan Turley wrote today that the defense was motioning for mistrial because of something to do with evidence not being submitted to them by prosecution. Is this something that also happens?

        • Oh snappers. The defense pointed out that the file names were different and the metadata on the file given to the defense is that it was created 21 minutes after the video that the state had. Kraus is either incompetent or lying…. This is an incurable error and the only question is whether it was deliberate. Judge is calling for testimony.

          • Honestly, as someone who does tech support for a living, I’m leaning towards incompetent. I can see several different ways in which a program could try to ‘help’ and compress a video to save space. Trying to send via email for instance. Not that evidence has any business being sent via email, but again: incompetent. I’ll bet Jack has many stories of lawyers who have no idea how badly they are screwing up confidentiality rules using technology.

              • Name and metadata maybe, if it’s generating a copy to send. The cropped edges, no. I can’t see any way for that to happen without personal intervention by somebody.

            • The problem is they are not supposed to use “drop Box” or “AirDrop” to send the files, they are supposed to be on a USB key so that the same file (as in it passes a hash check) can be transferred instead of whatever alterations AirDrop might make to save transfer bandwidth or cloud space. That is an inappropriate way to transfer that kind of data in this situation. No one cares if it is a video of grandma falling over in the snow, but when it is a file you are going to use to zoom in to 3 pixels to “prove” someone is pointing a firearm, the integrity is pretty important.

              Again, it is standard procedure for them to transfer video files via USB, not AirDrop, and this is why.

              • air drop would not change all of the things already listed by the others and on top of all that the prosecution had hand break a software used to compress video installed on their laptop, the only way to solve this is to check the prosecutors email to which file he actually sent.

      • Is this prosecutorial conduct and performance just standard issue prosecutorial misconduct/incompetence or are these guys intentionally screwing up because they were made to bring the case by their DA and they, the assistants, didn’t want to do so because it has no merit? Is this just office squabbling being played out in public?

  2. I think the motion to dismiss that the defense filed is mind blowing.

    Two new things that we didn’t know this time yesterday:

    -The drone footage the prosecution used was not supplied to the defense. The prosecutor took the drone footage, quartered the resolution, and sent the much grainier copy to the defense. When you’re talking about 10 pixels of kyle in an image that’s 200 pixels high, every dot counts, and having 40 more would have been nice.

    I’m not saying it would have materially influenced the case… But it begs a question: The drone footage went full size to the DA’s office, what possible reason is there for there to be a quarter resolution video?

    -Second thing is that the prosecution has represented to the court that they did not know the identity of “Dropkick Man”. This ended up being false. Dropkick Man turned himself into Kenosha PD and asked for immunity in exchange for testimony in the Rittenhouse trial, but because his actions were felony level, the DA declined to make the trade. As far as I can tell, at this point, the DA has not actually filed charges against Dropkick Man despite knowing who he is and having direct video evidence of his crimes.

    I *am* saying that knowing the identity of dropkick man would have materially influenced the case, and I would love an explanation that didn’t involve the DA trying to hide Dropkick Man’s identity from the defense on why he hasn’t been charged.

      • The reasons…. Brady violations, impugning the defendant’s fifth amendment rights, trying to backdoor in excluded evidence… Any of these individually could be grounds for a mistrial. Binger is a seasoned trial attorney, he knows better.

        I think that the judge is trying to wait hoping that the jury comes back and makes the whole thing moot, because he seems to be very conscious about social media and the publicity of the trial…. Which is kinda ugly in and of itself… I mean, that kind of effect is the exact reason why juries are instructed to avoid information about the case out of the courtroom.

  3. I’m assuming it’s at the judge’s discretion at this point whether these revelations (as detailed in HT’s post above) would justify a dismissal with prejudice, right? Meaning the prosecution couldn’t play these games in order to get a mistrial and try again?

  4. Eureka! I’ve finally figured out who Judge Schroeder looks like! Holy crap! He’s Peter Boyle playing Frank Barone on “Everybody Loves Raymond.”

  5. I just went back and read something I wrote last year the morning after Rittenhouse shottings took place, How Continuous Rioting Morphs the Thinking of Society, and I noticed that not much has changed in the last 15½ months. Expectations of violence are relatively the same. I wrote…

    I wasn’t surprised and somehow I was actually expecting this kind of “blood in the streets” event to unfold on our streets somewhere across the United States; after-all, violence begets violence using a tit-for-tat rationalization on an ever increasing violent scale.

    Two days earlier I had written on another bloggers site when I viewed the “protesters” in Kenosha on a video…

    In a group of about 30 people scattered around the vehicle, I counted two AR’s, I think I caught sight of one concealed pistol that printed under a shirt, one person had what appeared to be a bat.

    This is going to end very badly.

    Here is the video…

    Then I found this poster that was posted online that was literally inciting riot…

    Those are the irrational people that are going to be opposing Rittenouse not guilty verdicts or any kind of mistrial if by chance Rittenhouse is convicted of anything. I think it’s fair to say that these irrational people will not accept anything except guilty on all accounts and if they don’t get their way all hell is going to break loose in major cities across the USA starting with Kenosha. Governor Evers has the National Guard on standby in Kenosha, WI but what about Milwaukee and Madison? What about Chicago, Seattle, Portland, New York, Washington DC, Atlanta, etc? What happens when these irrational people start protesting the use of the National Guard to put down their riots? Can you see where I’m going with this?

    This is not an unreasonable prediction of escalating possibilities, this is applying a verifiable patterns of behaviors as they have been wittnessed.

    I genuinely hope cooler heads prevail.

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