Prosecutors could be barred from re-trying Rittenhouse if prosecutors intentionally caused mistrial: Expert

Rittenhouse trial: Judge scolds prosecutor over cross-examination in heated exchange

Circuit Court Judge Bruce E. Schroeder raises his voice to the prosecution while reprimanding them over their line of questioning pertaining to Kyle Rittenhouse’s gun use and his knowledge of the law as it pertained to his use of the gun.

Wisconsin prosecutors could be barred from re-trying Kyle Rittenhouse if a defense motion for a mistrial is granted and the court rules that prosecutors intentionally caused the mistrial, according to legal experts. 

Lawyers for Rittenhouse asked for a mistrial Wednesday over the line of questioning directed at their client, which prompted Circuit Judge Bruce Schroeder to angrily lash out at the chief prosecutor. He did not rule on the motion. 

Kenosha County Assistant District Attorney Thomas Binger was cross-examining Rittenhouse, who stands accused of shooting three men, two fatally, during a night of chaotic protests and riots in Kenosha last year. Binger asked Rittenhouse about his silence after his arrest and the use of deadly force to protect property. 

Judge Bruce Schroeder, right, reprimands Assistant District Attorney Thomas Binger, left, in his conduct in line of questioning while cross-examining Kyle Rittenhouse during the trial at the Kenosha County Courthouse on Wednesday.
(Sean Krajacic-Pool/Getty Images)

“I was astonished when you began your examination by commenting on the defendant’s post-arrest silence,” Schroeder told Binger after the jury was ushered out of the courtroom. “That’s basic law. It’s been basic law in this country for 40 years, 50 years. I have no idea why you would do something like that. You know very well that an attorney can’t go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. So don’t give me that. That’s number one.”

Following the contentious exchange, defense lawyers made the mistrial request. If the request is granted, prosecutors could re-file the homicide and attempted murder charges against Rittenhouse unless a court finds they deliberately caused the mistrial in an attempt to get a second crack at the case, Alan Dershowitz, a Harvard law professor, told Fox News. 

“If the mistrial was caused by the prosecution because they think they’re losing their case, then the court might impose double jeopardy and say you can’t be tried again, but that’s a rare situation,” he told Fox News. 

Kyle Rittenhouse is sworn in to testify during his trial at the Kenosha County Courthouse on Wednesday in Kenosha, Wisconsin. 

Rittenhouse, who took a gamble when he chose to testify, has claimed he acted in self-defense when he shot fatally shot Anthony Huber, 26, and Joseph Rosenbaum, 36, and wounded Gaige Grosskreutz, 27, with an AR-style semi-automatic weapon. He said he traveled to Kenosha from his Illinois home to protect businesses after rioters looted stores and set fires in the previous nights. 

The prosecution was dealt a setback this week when Grosskreutz testified that he was pointing a gun at the teenager when Rittenhouse opened fire on him. 

“I think it’s going well for the defense and not so well for the prosecution,” Dershowitz said. “We haven’t heard all the evidence yet, so we’ll wait and see, but right now if I were the prosecution, I would prefer to start all over.”

If a mistrial is granted and a court finds prosecutors intentionally tried to disrupt their case, they most likely won’t be disciplined, Dershowitz said. 

Defense attorney Mark Richards waits before calling Kyle Rittenhouse to the witness stand Wednesday. (Mark Hertzberg /Pool Photo via AP)

“They usually just get promoted,” he said. “Prosecutors are rarely disciplined. They should be but they’re not. Prosecutors are generally above the law.”

Prosecutors have attempted to paint Rittenhouse as a vigilante while his supporters claim he was being attacked. During his testimony Wednesday, he sobbed on the witness stand, prompting the judge to take a break. 

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