Yesterday, a lawyer for one of the men who killed Ahmaud Arbery asked the judge in his client's murder trial to ban Black pastors from the courtroom.
I wish I were kidding. But "we don't want any more Black pastors coming in here" is, in fact, a direct quote.
Kevin Gough, attorney for William "Roddie" Bryan, actually stood up, in open court, in a public courtroom, and said those words. Whining that Al Sharpton had "managed to find his way into the back of the courtroom," Gough emphasized that while he has "nothing personally against Mr. Sharpton," the presence of "high profile members of the African American community" could be "intimidating" and "an attempt to pressure ... or influence the jury." He also complained that they have "all kinds of pastors in this town" and Reverend Sharpton doesn't even have a church in the county.
And then, he just went for it.
"The idea that we're going to be serially bringing these people in to sit with the victim's family, one after another ... Obviously, there's only so many pastors they can have. If their pastor's Al Sharpton right now, that's fine. That's it. We don't want any more Black pastors coming in here, or other, Jesse Jackson, whoever was in here earlier this week sitting with the victim's family, trying to influence the jury in this case."
So, to be clear, Gough didn't ask the judge to remove Al Sharpton from the courtroom. He asked the judge to ban other Black pastors from sitting with Arbery's family in the future. Would a white pastor be okay, Kevin? Asian? What race of pastor is acceptable to you? Why stop at pastors?! Maybe we should ban ALL Black people from the courtroom!
Judge Timothy Walmsley, to his credit, declined to ban Black pastors from his courtroom. The judge said he was "not going to blanketly exclude members of the public from this courtroom," and anyone who complies with the courthouse's rules can watch the trial. Because see headline above, is "ban Black pastors from courtroom" a thing you can do? The answer is no.
Gun violence? Check. White supremacy? Check. Entitled white guy not facing any consequences for his actions? Mayyyyybe!
At every turn, Kenosha County Circuit Court Judge Bruce Schroeder has done what he can to assure an acquittal for Rittenhouse, who killed two men and maimed a third while defending "his community" (not his community) from anti-racist protesters after a policeman in Kenosha, Wisconsin, shot Jacob Blake in the back. And now, the prosecution is helping, too!
Yesterday, Rittenhouse testified in his own defense. He boohooed some great big crocodile tears à la Brett Kavanaugh. (It's even more maddening because it's working.)
Not to be outdone, when it was the prosecution's turn to cross-examine Rittenhouse, they did something no prosecutor should ever do. They questioned the defendant about why he invoked his right to remain silent. THIS IS A BIG WHAT THE FUCK.
HOWWWWWWWWWWW did the prosecution fuck this up so badly?
At one point, Judge Schroeder had the jury leave the courtroom so he could yell at the prosecutors.
Outside the presence of the jury, Kyle Rittenhouse trial Judge Bruce Schroeder loudly scolded prosecutor Thomas Binger in a dramatic exchange in court https://reut.rs/3kKrryf\u00a0pic.twitter.com/NsNMEWV3ja
So here's the thing. I think some of what the judge screeched about here is silly. He clearly relishes being the king of his courtroom and grandstands at every opportunity. And the thing Judge Schroeder seems the most pissed off about isn't actually the prosecution's big fuck-up.
The prosecution has a video of Rittenhouse, two weeks before he shot three people in Kenosha, saying he wants to shoot men who he thought might be shoplifting from a CVS. Naturally, because the video doesn't cast Rittenhouse's penchant for violent vigilantism in a good light, the judge doesn't want the jury to see it.
But the judge didn't issue a final ruling on whether the video could be admitted. At a pre-trial hearing, he said he was inclined to keep the video out but didn't make a final ruling.
During the cross-examination, prosecutors asked a bunch of questions about whether Rittenhouse thought it was acceptable to use deadly force to protect property. My guess is prosecutors hoped Rittenhouse would contradict himself so they could introduce the video to impeach his testimony. It didn't work. The defense objected and the judge sent the jury away so he could rant.
I don't actually think what the prosecution did with this line of questioning was wrong. Most lawyers would probably think the judge's pre-trial ruling left the door open for them to lay the appropriate foundation to get the evidence admitted. The prosecutors did not mention the video.
But OMFG, NEVER BRING UP A DEFENDANT INVOKING HIS RIGHT TO REMAIN SILENT. Maybe someone should make little cheat sheets to pass out to new prosecutors with notes like "NO DESTROYING EVIDENCE" and "NO WHINING THAT THE DEFENDANT DIDN'T TALK TO POLICE."
It's really hard for me to overstate what a major fuck-up this is. Like the judge said,
"The problem is this is a grave constitutional violation for you to talk about the defendant's silence. You're right on the borderline, and you may be over it. But it better stop."
On this, Judge Schroeder is right. It's shocking that a prosecutor in any case would go anywhere near a defendant remaining silent until trial. Apparently the Kenosha County District Attorney's office needs to get a CLE — "continuing legal education," noobs — called "NEVER THIS IN COURT."
Noting the judge's hatred of the prosecution, the defense moved for a mistrial yesterday afternoon. And more than that: They requested the judge dismiss the case with prejudice, so it can't be tried again in front of a new jury.
Let's Talk About Jeopardy!
No, not that Jeopardy! The jeopardy that's in our Constitution.
The Fifth Amendment's Double Jeopardy Clause says that no one can "be twice put in jeopardy of life or limb" for the same offense. This clause is why prosecutors don't just get to appeal and re-try acquittals until they can get a conviction.
As a general rule, cases that end in mistrials can be retried. But there's an exception for when the government — the prosecutor or judge — does something stupid to intentionally force a mistrial. The Supreme Court gave us this rule in the 1982 case Oregon v. Kennedy, where a prosecutor asked his own expert witness if he didn't do business with the defendant "because he is a crook."
But there's a catch. A new trial is prohibited "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial[.]"
Here, the prosecutors told the judge they had been acting in good faith. Judge Schroeder snapped back, "I don't believe that." So that's not great for the state.
Now, the judge has three options. (1) Grant the mistrial and dismiss the case with prejudice, so it can't be tried again. (2) Grant the mistrial and dismiss the case without prejudice, so it can be tried again. (3) Deny the motion and let the trial continue.
The judge allowed testimony to resume after the defense made its motion but said he was taking it under advisement. (Possibly to later grant the mistrial if things start to go well for the prosecution?)
To be honest, I'd kind of love to see some appellate litigation over whether Rittenhouse could be tried a second time. What happens when you give this double jeopardy issue to a bunch of judges who (a) hate most criminal defendants; but (b) really love them some state-sanctioned white supremacy? We just might be about to find out!
But what about ...
There is one more exception to the double jeopardy rule that I should mention: The double jeopardy clause doesn't prohibit separate state and federal charges for the same events.
I have no idea if the feds are considering charges against Rittenhouse, but it's not out of the realm of possibility. We already know Rittenhouse crossed state lines to illegally obtain a gun and mow down protesters, which puts us in potential federal charges territory.
To my knowledge, neither the Department of Justice nor the applicable US Attorneys have announced investigations. But that doesn't mean there aren't potential charges coming.
Fuck this trial
Pretty much everything about this trial is a shitshow. From the judge's rulings to the nearly all-white jury and the Kavanaugh Defense from Rittenhouse, it's a perfect storm of animal feces.
I'm getting major Casey Anthony vibes, here — and I don't just mean because Rittenhouse is headed for Acquittalville. I mean because the prosecution is absolutely blowing it.
I will grant you that it's going to be nearly impossible to get a criminal conviction when the judge clearly thinks the defendant is innocent. But, the judge's asinine rulings aside, the prosecution has been lackluster at best.
This is a trial where we already KNOW the defendant killed two people and shot a third. We know that he illegally obtained a semiautomatic assault-style rifle and crossed state lines to live out a white supremacist vigilante fantasy.
The prosecution should have been emotional, clear, and in your face. Instead, it lagged — and sometimes the prosecution's own witnesses actually helped the defense.
Yesterday was a great example of what the prosecution is doing poorly. The cross-examination of Rittenhouse should have been short and explosive. Not whatever this was.
#KyleRittenhouse - Pool reporter in court: When Rittenhouse first took the stand, jurors appeared attentive and took extensive notes as he spoke about fearing for his life. But as cross-exam cont into the afternoon by prosecutor Binger, jurors began to tire and took fewer notes.pic.twitter.com/VtpqxgXZ1N
Here's the cold, hard truth: Rittenhouse is getting off. Whether the jury comes back with an immediate "not guilty" verdict or Judge Schroeder grants a mistrial, it's happening.
Probably, this kid is on his way to becoming a Republican congressman — or hell, maybe he'll join his boy Kegs on the Supreme Court.
Buckle your seatbelts and find some good drugs, because we're on the fast track to Rittenhouse doing rallies and speaking tours with Trump, those gun-toting assholes from Missouri, and the men who murdered Ahmaud Arbery.