The defendant was not cooperative with the prosecution during the Rittenhouseself-defense trial when he tried to cross-examine him about the Constitutionally protected Fifth Amendment right to remain silent after his initial arrest.
Non-attorneys might not have picked up on the verbal collision course that Thomas Binger, the prosecutor, was on when he said about the defendant that today’s testimony was “your first time telling your story.”
Discussions centered on the prosecutor’s conduct and a motion by the defense for a mistrial with prejudice.
Commenting on the right of a defendant to remain silent in court is both illegal and prejudicial. This seemed to be the main point.
Binger was reprimanded by the judge, who noted that it was a violation of the Constitution for him to speak about the defendant’s silence. He told Binger, “…you may be over, but it’d better stop.”
It happened again. Judge Bruce Schroeder was shocked.
The judge, who is normally friendly and accommodating, rushed the jury out of their room and gave Binger a lecture for referring to evidence that was not allowed during the trial.
After a lunch break, defense attorney Corey Chirafisi declared that he would request a mistrial without prejudice. He cited “to provoke another mistrial to kick at the cat” as one of the reasons. Translation: This case is so bad for prosecutors, they want another chance to convict. Rittenhouse may not be able to refile the case if he asks for it to be dismissed “with prejudice”.
Later, the judge told the prosecutor that he did not believe he was acting in good faith.
Robert Barnes, a former Rittenhouse attorney, called for severe sanctions against Binger.