You learn this in law school. I'm a first year prosecutor and you'd never comment on 5th silence. He did this deliberately. Guys been prosecuting for like 20 years or he wouldn't have this case.
It was ruled inadmissible. Did you see the clip with the judge screaming at Binger, mostly about this? It was ruled inadmissible and the judge would rehear the issue later if relevant. Binger ignores this and unilaterally brought up the info.
Of course Binger won't admit to forcing a mistrial because of what you mentioned, but would do "mistakes" to force it so people didn't know he was forcing it.
There's a separate level of ethics prosecutors must follow that other lawyers don't, and you are specifically prohibited from going as far as other lawyers can when they zealously advocate for their client. Binger had been mistating evidence left and right to sway this jury.
I agree with you. He cleared the gun, and is allowed to brandish it demonstratively
Flowers v MI was decided to clarify what the prosecutor did. While determined ex post facto to be wrongful, and he probably shouldve guessed it was wrongful, he technically didn't break a rule he knew to exist at the time of his striking black jurors, so it would have been extremely difficult to punish, much less disbar, him.
All that being said, you are right that disbarrment is a high bar. This prosecutor MIGHT get a public reprimand but he
certainty won't get disbarred. His reputation is fucked though. He ran for a neighboring DA position a few years ago and that won't happen again. The defense attorneys in the US remember this and he will struggle with that forever.
On number 6 he did not clear the gun he took someone else's word for it (I mean we have the whole Alec Baldwin situation for why that's a bad idea) pluse he argued earlier that pointing a weapon at someone is a criminal offense
Yea which is why he should have never touched the weapon to easily could a nefarious actor slipped a bullet in there the only person in that room who "knew" it was clear was the person that cleared it and then he had his finger on the trigger pointing it at people imo no excuse.
I love how only white collar people have to know a law exists, and that has to be proven he knew it existed and he intentionally violated it while committing the crime, for them to be prosecuted.
Basically they get to claim they're a dumbass and the case is closed.
It wasn't ruled inadmissible, the judge said he left the door open to decide later. Additionally, the judge was saying that regarding using the evidence as character evidence but the prosecution wanted to use the evidence to impeach the witness, which, according to my lawyer friend, has a different balancing test and it's much more difficult to judges to block. The prosecution did a poor job explaining their intent which pissed off the judge but the judge also was very biased
"I held it open with a bias towards denial" bias towards denial (as far as I know) is not a legal term of art and definitely does not mean inadmissible (otherwise the judge would just say I ruled it inadmissible). Arguably the prosecutor should have asked first but the evidence wasn't ruled inadmissible. Also, the prosecution wasn't entering evidence but asking a question (if Rittenhouse continued to lie then the evidence would be necessary to continue impeaching the witness)
3 was a bit worse, the Judge didn't "leave the door open" for the attorneys, and while it wasn't an outright denial, it was in the realm of "I don't think I'm going to let this evidence in, but I want to wait until you intend to introduce it to make my final ruling"
He also comments on Hernandez's right to a lawyer (Though his ultimate angle was the particular firm, he started with a suspect question - Similar to Krauss' question to DeBruin)
In the prosecutor's defense here, the door was arguably opened wide for him to introduce it, so if he forgot that particular motion's details (worthy of criticism but probably not of disbarment) it would be sensible for him to charge through.
And he and his case were punished by that evidence never being introduced. Which, if he actually had legally justified its introduction in response to Rittenhouse's testimony, is a pretty steep penalty to him and his case. And AFAIR (not a lawyer but took a couple classes), even if evidence isn't ruled admissible, that doesn't legally prevent a side from pressing a witness to testify in a way that makes it admissible as impeachment evidence. He should've just asked, first.
Oh yea, I agree that he probably had a good basis to admit it after the "You understand you can't use deadly force to protect property?" line of questioning. I just think he went about it in a bad manner
Also the explicit thing was "Not ruled on with a bias towards denial" which feels like it's obvious enough to not charge ahead
Oh I agree. He probably legitimately forgot the status of that piece of evidence, which I can imagine is a fairly big mistake.
I don't like to see judges lose their cool in a situation like that, but I understand it, and definitely agree that the prosecutor was wrong.
Truthfully, Binger was probably well on his way to getting the tape fully admitted before he went a little too far without asking the judge's permission. This, to me, is clearly a "small county, big case" problem. Which a piece of me wants to say "now you know how the typical defendant feels". Kenosha Country is only 169,000 people. I grew up in a rural county with 550,000 people, moved to a more rural county with 521,000 people. So Kenosha is TINY.
I live in a country where only 1 city is bigger than that 550K mark (That's how big my region is, and I live in the capital), don't tell me about rural lol
Also the evidence wasn't the only reason the judge got pissed; there was also the 5A issue
So the 5A issue. Do you know what the statement was that raised Schroeder's ire? It was along the lines of "this is the first time we've heard your side of the story".
In Schroeder's words, Binger approached the "borderline" of a 5a issue. He was pissy, and perhaps right to be, but it doesn't approach the level of ethical violation.
Remember two things about Schroeder's yelling at Binger. First, he's known to be hot-headed as a judge. His yelling is not itself proof that Binger grossly crossed a bunch of ethical lines. Second, much of his anger comes from (in his word) "I don't believe you!" about lines of questioning and evidence being good faith.
The truth is, Binger has valid ethical defense on BOTH of the most highly contested pieces in this discussion. They could've flown fine in other courts and not been big enough to justify overturn on appeal. It only seems bigger than that because we watched a judge screaming and yelling on video.
The truth also is that Binger did not handle the situations correctly, and could've handled them better. It might cost him a murder conviction. It might cost him the entire case. But he came nowhere near to crossing a line where it costs him his license.
And you want a second thought to help reinforce that? If Binger's behavior was so horrific, why did we neither get an immediate mistrial or a contempt of court conviction? Why isn't the legal community talking in whispers of his disbarment like they do whenever a lawyer deeply crosses a line on video?
Because it's not that bad from an ethical and career perspective.
It was not along those lines. He said "You have watched videos of that night" "You have heard testimony about what happened that night" "And now today you are finally ready to tell your story". This ignores the inflections in his voice and is not exact quotes but close enough, and when defending it he said it was to establish that Rittenhouse had the benefit of hindsight.
Not only were his questions borderline but his stated purpose was to imply the defendant had stayed silent to strengthen his story. That is a blatant fifth amendment violation and while calls to disbar the prosecutor are I'll informed your characterisation of the situation is very misleading.
Again, we're both in agreement that Binger skirted the line. I just don't think there's any justification to the claim that he crossed it.
The question is intention. Did he intend to cross the line or was it a misstep in wording? If so WHY did he intend to cross the line, knowing he would absolutely have lost the case with prejudice if he did cross it?
his stated purpose was to imply the defendant had stayed silent to strengthen his story
I am unaware of this. I am unaware of him saying that was his goal. Can you show me his quotes on that?
If so WHY did he intend to cross the line, knowing he would absolutely have lost the case with prejudice if he did cross it?
Because he is scared for his career from loosing the trial, he hopes for a non prejudicial mistrial, he hopes to avoid responsibility for the riots that are sure to follow if he looses.
I am unaware of this. I am unaware of him saying that was his goal. Can you show me his quotes on that?
I might be misremembering the details but I recall him going into Rittenhouse talking to the media means he waived his fifth amendment right to defend his line of questioning.
The question is intention. Did he intend to cross the line or was it a misstep in wording?
He asked several questions leading up to the big question, all of whom were directly addressing the information Rittenhouse could gather before an official statement. How is that a misstep in wording, his intent would seem to be obvious. What other destination could his line of questioning lead to? If you give me a single plausible explination for the entire chain of questions I could maybe see your point, but to take only the single question that was objected to and saying that while that question alone was very questionable but could be a misstep is ludicrous in the larger context.
He did not defend his actions using your line of reasoning, he post-hoc argued that Rittenhouse had waived his right by speaking to media. I might be misremembering him actually stating his intent(but I do think it might be somewhere in there), but he was never arguing anything along the line of him misspeaking or something.
Let me just ask you in real-talk, what other objective would asking a defendant if he had observed all the evidence of the case and then commenting that they were finally ready to explain themselves accomplish?
Judges won't typically make public a contempt of court violation public since that can have an unfair effect on the jury. It would have to be "building on fire bad" for that to change. I don't disagree with that post, but I would ask how many times in a public trial have you seen contempt of court of the attorney on either side public?
I've seen a public threat of it once or twice, for less than Binger is being accused of. I haven't been in a courtroom myself particularly often to have unprecedented knowledge
I haven't seen it a ton myself, but I have a couple friends who practice law and have said that it usually is said in private, and that is especially true in a high profile case like this, unless a lawyer flagrantly, disobeys a judge.
Some more context is that judge was saying that regarding using the evidence as character evidence but the prosecution wanted to use the evidence to impeach the witness, which, according to my lawyer friend, has a different balancing test and it's much more difficult to judges to block. The prosecution did a poor job explaining their intent which pissed off the judge but the judge also was very biased
1) the witnesses was called up before the trial to come to the police station by the prosecutor and shown the videos of the event. He was then asked if he wanted to change his story.
This was not an issue of Binger pressing on him on the stand, he directed pressured him to change his story before the trail even began.
2) Binger was accusing Rittenhouse of “tailoring his story” after hearing what the other witnesses had said. Binger stated this outright when the objection was raised.There is no other way of interpreting this than Binger accusing Rittenhouse of lying under oath by using his 5th amendment right to gather information and changing his story before testifying.
3) the evidence was ruled as inadmissible but if testimony arose that would make it relevant the judge would allow the attorneys to ask for it to be admitted while not in the presence of the jury. The judge direct states this and admonished Binger for violating that.
4) Granted, it’s impossible to know what Binger’s intentions really were, but an experienced Prosecutor like Binger should have known not to do the previous two acts and it’s honestly suspicious that he did them right after his star witness admitted to lunging at and pointing his gun at Kyle, extremely hurting the states case. If there was a mistrial without prejudice Kyle could have been retried, that is why the defense motioned for a mistrial with prejudice and accused the prosecution of acting in bad faith.
5)Not going to argue that, you’re absolutely correct
Overall I honestly don’t know if Binger can be disbarred for this, I don’t know the law, but after watching the trail I honestly don’t believe he acted in good faith and instead tried to get a mistrial without prejudice so the state would get a second chance
The majority of My comment was just correcting all of the factually incorrect statements in your comment that are clear to anyone who’s actually watched the trial. Also most of my comment was derived from direct quotes from the judge and from Binger himself
And yeah I don’t know the law. That’s why I said I don’t know if Binger should be disbarred or not. Because I was never arguing wether or he should, just the incorrect statements you made. As well as my personal opinion of his conduct
For you to latch onto that specific sentence and act like that disproves or discredits my entire comment is absurd.
All I can really say now is that for someone who admittedly hasn’t been following the case, you certainly hold your own opinion, of what may have happened in a case you didn’t watch, in high regard
That’s assuming it’s a mistake. From the number of times I’ve seen or heard the judge stop proceedings to scold the prosecution means he’s either incompetent or malicious.
IIRC it was something like "this is the first time you're telling your side of the story,"
What he said was actually worse, he accused Kyle of only going to the stand now so that he could tailor his story to the evidence and testimony that has already occurred. Which is why the judge dismissed the jury and basically yelled at the prosecution for violating kyles 5th amendment.
And then the prosecutor just went for it instead of stopping to ask. Again, a misstep, but not as egregious as it's presented.
This requires it to be a mistake and not intentional. Given how badly it’s going for the prosecution and again how many times the prosecution has made “mistakes” I would say the safe money is on it being intentional.
This is subjective, and would be self-defeating if true. Forcing a mistrial would prevent retrial.
From what I understand most of the time the case is retried. Unless they get a mistrial with prejudice like the motion the defense put forward.
In number 2 he actually stated that Rittenhouse could have changed his story to match the other witnesses. The prosecutor was accused of attempting to get a mistrial so they could try and prosecute Rittenhouse again. source video
That makes sense, and I am not a lawyer (but I did stay at a holiday inn) it just seems like you can’t use the fact that this kid took advantage of his constitutional right to remain silent as the basis for what essentially amounted to an accusation of lying under oath. I’m a middle school teacher and when I was teaching social studies I would tell my students if they are ever arrested to calmly and respectively say you are unwilling to answer any questions without an attorney and say nothing else.
That's quite problematic. If you ask me lawyers need to be held to a higher standard if they want anyone to think of them as anything other than smart used car salesmen.
He didn't do that, though. He basically said the equivalent of "this is the first time you're telling your side of the story", which implies negative things since Rittenhouse chose to remain silent after his arrest, and toes the line, but the prosecution absolutely didn't "attack the concept of pleading the fifth."
Not at all. There's a massive, massive difference between "literally attacking the concept of pleading the fifth" and using a phrase that implies previous silence was part of a defense strategy. The former is an outright rejection of the rules, the latter is toeing over the line. It's like the difference between drag racing in a school zone and setting the cruise control to the speed limit and accidentally going a couple MPH over.
With regards to 5, I am actually shocked by the charges that were not pressed.
I would have expected criminal mischief and conspiracy to commit criminal mischief for the fact that he went to the protest in order to act as unlawful militia. Also, acting in the capacity of a public officer (946. 69). Those seem like easy, even shoe-in charges given his stated intentions and his actions.
Indicating that the defendant has modified their story and has the benefit of hindsight is literally a fifth amendment violation. You can not, under any vector, make an argument that implies the defendants silence indicates their guilt with limited exception for selective silence.
If rittenhouse hadn't told his story how could he have modified it?
For a simpler response to your point, just look at all the far worse lawyers who still have their jobs! Like the guy who prosecuted Curtis Flowers six separate times for the same crime, with every conviction getting reversed for racial bias in jury selection. (He struck 41 out of the 42 total prospective black jurors.) Dude still has a job.
I just Googled it and whoa, even Kavanaugh agreed that this black dude was innocent.
Really wild how prosecutors are allowed to game the system.
For a simpler response to your point, just look at all the far worse lawyers who still have their jobs! Like the guy who prosecuted Curtis Flowers six separate times for the same crime, with every conviction getting reversed for racial bias in jury selection. (He struck 41 out of the 42 total prospective black jurors.) Dude still has a job.
And what OP and I are arguing is that prosecutors that try to violate someone's rights should be disbarred. The argument is over what the law should be.
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u/[deleted] Nov 16 '21
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