- If you were following the trial
of Kyle Rittenhouse on social media,
you might've come to the conclusion
that Judge Schroeder was a hopelessly biased nutcase
who was making up all the rules
to help Kyle Rittenhouse.
Was he?
(gentle music)
Now most of the situations
that people are objecting to involve
the application of the rules of evidence.
In state court, the judge has broad discretion
to make rulings on the admissibility of evidence
and how to run their courtroom.
This includes things like which witnesses
are allowed to testify,
what the lawyers are allowed to ask,
what topics are off limits,
and a whole bunch of other things.
And there were a few incidents that stuck out.
So let's talk about incident number one,
where Judge Schroeder ruled
that the prosecution could not call the people
that Kyle Rittenhouse shot and killed victims.
The defense attorneys argue
that using the word victim
could prejudice the jury against Rittenhouse.
Judge Schroeder said, "The word victim
is a loaded, loaded word."
When the judge ruled in favor of the defendant,
critics jumped to the conclusion
that Judge Schroeder was showing
inappropriate favoritism to Rittenhouse.
Now trial judges have lots of discretion.
The Wisconsin rules of evidence
mostly track the federal rules of evidence.
Even if particular evidence isn't explicitly ruled out,
judges have lots of leeway.
Wisconsin rule of evidence 904.03,
which is very similar
to federal rule of evidence 403 states,
"Although relevant, evidence may be excluded
if its probative value is substantially outweighed
by the danger of unfair prejudice,
confusion of the issues, or misleading the jury,
or by considerations of undue delay,
waste of time, or needless presentation
of cumulative evidence."
In other words, evidence might be minimally relevant,
but if the risk of prejudice is too great,
you shouldn't allow that evidence into the courtroom.
And the way that the victim is used in a courtroom
is different than what's used outside of the courthouse.
Rittenhouse claimed that he was acting in self-defense.
If he was right, the three men
would not be considered victims
in the legal sense of the word.
They would be assailants who attacked Rittenhouse.
People also suggested that Judge Schroeder
was making a special rules just for Rittenhouse,
but the judge's ruling was consistent
with the way that he handles criminal trials.
According to the Kenosha News,
"that is Schroeder standard practice
in criminal cases and is not unique
to this handling of the Rittenhouse case."
Criminal lawyers said these rulings
were commonplace in their jurisdictions as well.
Victims suggest guilt before it is proven
and prosecuting and convicting someone is hard,
as well it should be.
And of course, it's always okay to refer
to these people by their names,
which tactically can be even better
because it humanizes them.
In a court of law, a criminal defendant
must be given his full due process rights.
The whole object of a fair trial
is not to prejudge the defendant.
That means judges should be skeptical of evidence
that a jury could use to infer someone's guilt,
if that evidence is not truly probative of what happened.
And that brings us to the second incidence
where Judge Schroeder ruled
that the three men who were shot
could be referred to as rioters, looters, and arsonists.
Well, specifically what Judge Schroeder said
was let the evidence show what the evidence shows,
that any or one of these people
were engaged in arson, rioting, or looting,
that I'm not going to tell the defense
they can't call them that.
Prosecutor Thomas Binger said
that this was a double standard.
"I think it's the exact same issue.
The terms that I'm identifying here,
such as rioters, looters, arsonists,
are as loaded, if not more loaded, than the term victim."
First, a defendant generally gets to put on
whatever defense they want.
So a court should err on the side
of allowing a defendant to do something
and get more freedom than the prosecution.
But second of all, Judge Schroeder did not rule
that the defense could absolutely call them
rioters and looters.
He ruled that if the defense could prove
that the three men were rioting and looting,
then they could use those terms
during the closing argument.
And the judge prohibited the defense
from using those terms during their opening statement,
very similar to the ruling he made about the word victim.
Neither side could use those terms
unless they prove their case.
That takes us to incident number three,
where Judge Schroeder dressed down
the prosecutor saying,
"Don't get brazen with me!"
Judge Schroeder was again accused of bias
when he blew up at Prosecutor Thomas Binger.
First of all, yes, judges do yell at lawyers
and sometimes those lawyers deserve it.
Some do it more frequently than others.
And Kenosha lawyers say that Schroeder
is definitely a yeller.
Now second, the judge sent the jury out of the room
before admonishing the prosecutor.
And third, and most importantly,
we should look to what caused Schroeder to blow his top.
When Rittenhouse took to the stand
to testify in his own defense,
the prosecutor seemed to refer
to Rittenhouse's prior silence about what happened.
"Since August 25th, 2020,
this is the first time that you have told your story."
That's what the prosecutor asked on the stand.
The defense immediately objected
and Schroeder sustained the objection,
disallowing the question.
And there's good reason for that.
In criminal cases, the 5th Amendment protects
against self-incrimination, among other things.
This means that a defendant's decision not to talk
can't be used against them.
The judge sustained the objection
because Binger's question was too close to the line.
But then Binger basically asked
the same question a different way.
He referred to the many months of people
talking about the case and said,
"After all of that now,
you are telling us your side of the story, correct?"
It seems that what Binger was getting at
was that because Rittenhouse hadn't testified before
and was now testifying after everyone else
had taken the stand, and after all of the evidence
had come out, that Rittenhouse was now
in a position where he could change his story
and craft it to be consistent
with everyone else's testimony.
But, of course, a question can be two things at once.
And if it's too prejudicial,
even if there is some probative value to it,
well, then the court can still disallow it,
which the court specifically had done it.
Schroeder had disallowed it.
So Judge Schroeder asked to the jury be removed
so that he could basically just yell at Binger.
- You need to account for this.
The problem is, this is a grave constitutional violation
for you to talk about the defendant's silence.
And that is, and you're right,
you're right on the borderline.
And you may be over.
But it better stop.
- In other words, it doesn't matter
whether you think Rittenhouse was guilty or not
in the context of a criminal trial,
his post-arrest silence couldn't be used against him.
Binger said he understood,
but then to add insult to injury,
he then plunged into a series of questions
about a matter the judge had already previously ruled
was off limits,
a video where Rittenhouse fantasized
about shooting alleged shoplifters,
which takes us incident number four.
The judge ruled that the prosecution
could not show a video showing Rittenhouse saying
that he wished he could shoot two people
leaving a CVS store.
Now the background is that before trial,
the prosecution moved to introduce evidence
of a video where Rittenhouse says
he wished he could shoot two people
who were suspected shoplifters.
The prosecutor said the video was relevant
to Rittenhouse's state of mind and motive.
He said, Rittenhouse was "essentially a teenage vigilante
involving himself in things that don't concern him."
Now the judge excluded the video
on the grounds that the video
wasn't made before the riots.
It was recorded two weeks earlier.
And the judge felt that in another video,
which allegedly showed Rittenhouse assaulting a girl
who was in a fight with her sister
was also not relevant to what Rittenhouse did
on August 20th, 2020 in Kenosha.
The video suggested Rittenhouse
had a propensity for violence,
but neither video had anything to do with the protest.
Now it's important to note that judges
are arbiters and are supposed to protect
the rights of a criminal defendant.
And certainly, these videos make Rittenhouse look bad,
but we aren't supposed to convict people for looking bad.
The judge was limiting the evidence
so that the only evidence the jury heard
had to do with what actually happened on August 20th
when Rittenhouse encountered the three men.
Now crim law 101 is that you can't,
or at least generally you can't
because there are always exceptions,
you can't use propensity evidence
to show someone committed a crime on a specific day.
You can show that they committed the crime at issue,
but you're not allowed to convict them
because they had a certain propensity towards crime.
Generally speaking, a criminal defendant
can be convicted just because they have a history
of doing bad things.
The state still has to prove
that they committed the crimes
they were charged with.
And so when Judge Schroeder yelled,
"Don't get brazen with me,"
it was the culmination of two mistakes
by the prosecutor referring to Rittenhouse's
post-arrest silence, after being told not to,
and referring to the CVS videotape,
despite being told not to.
Binger felt that the defense had opened the door
and it was now okay to go into that subject area.
But even if that were the case,
you still need to get permission
from the judge or face their wrath.
And Binger still had a hard time letting it go.
"This was the subject of emotion,
I'm well aware of that.
And the court left the door open."
But Judge Schroeder screamed, "For me, not for you."
You should have come and asked for reconsideration.
All trial lawyers know that if you appear
to disregard a judge's order,
you're probably going to get it.
And to the judge's credit,
well, we all got to see Schroeder
lambaste the prosecutors on the live feed.
The jury was sequestered away
and would have been completely unaware.
So it wouldn't have prejudiced the prosecution's case.
That takes us to incident number five.
Judge Schroeder allowed Rittenhouse
to pick his own jurors?
Well, not exactly.
Judge Schroeder had Rittenhouse blindly pick
the 12 jurors who would be deciding his case out of a hat.
It's weird, but in Wisconsin and other states,
the courts regularly seat more jurors
than necessary because at the end of trials,
it's common for jurors to be stricken from the panel
for various reasons.
This could be a for misconduct
or a juror having a family emergency
or just getting sick.
And the Rittenhouse trial, 18 perspective jurors
heard all the evidence.
After closing arguments,
the judge told Rittenhouse to randomly pick
six numbers out of a tumbler.
Those six numbers were stricken from the panel.
The 12 who were left were his jury.
Whittling down the jurors is not unusual.
Picking them out of a hat is somewhat unusual.
Judge Schroeder said he'd have defendants
do the selection for years.
He said that responding to critics,
he started doing it after a case
where there was only one perspective black juror.
That person was eliminated from the jury
when the clerk picked that juror's name
out of the panel.
That resulted in a black defendant
being tried by an all white jury
as a result of one of the court administrators.
Judge Schroeder felt that that was not ideal.
He said, "It was a bad optic, I thought.
I think people feel better when they have control.
So ever since that case,
I have had an almost universal policy
of having the defendant do the picks.
When only one part of Judge Schroeder's explanation
was cherry picked and then circulated among social media,
it looked terrible.
But actually it seems like his explanation
makes perfect sense.
While this process is a little bit theatrical,
the reasons for doing so actually empower the defendants.
And it's hard to imagine that there would be any prejudice
to either the defense or the prosecution
as a result of this particular foible.
That takes us to incident number six.
The judge disallowed zooming in on a video.
Well, not exactly.
Judge Schroeder was mocked for sustaining
a defense objection to zooming in
on video footage via in iPad.
This was presented as either a nefarious plot
between the defense lawyers and the judge,
or is evidence that the judge was old and out of touch.
Now it's not that the judge said
that they couldn't zoom in at all.
The judge just ruled that the prosecution
could zoom in on images
as long as they had an expert testify
as to how the pinch and zoom worked on an Apple device,
to make sure that that process
wasn't adulterating the evidence.
Now, the prosecution couldn't produce an expert
on short notice so the jury wound up seeing the video
on a Windows machine hooked up to a TV.
Now this was kind of a ticky-tacky objection
by the defense, but in fairness,
lawyers are required to authenticate an item of evidence.
And this applies to every piece of evidence it's introduced,
including government records,
business records, photographs, video, audio, you name it.
But look, the prosecution has the burden of proof.
So it's on them to make sure
that what they're doing, if they are changing
the evidence in any way,
isn't adulterating the underlying evidence.
And of course, there was also an issue
with drone footage where a file was smaller
than it should have been.
And that takes us to the next incident
where the judge apparently asked the jury
to applaud for a defense witness.
Well, sort of.
This one is interesting.
On Veteran's Day, Judge Schroeder decided to recognize
anyone in the courtroom who had served in the armed forces.
"I just want to observe that it's Veterans Day,
and any veterans in the room?
On the jury or anywhere else?"
When no one responded, the judge said,
"Well, that's unusual not to have at least someone in here,
but Dr. Black is, what branch?"
He was referring to the defense witness, John Black,
who was about to take the stand.
Black is a use of force expert
who told the judge that he had served in the army.
The judge then said,
"Okay, I think we can have a round of applause
to the people who have served our country."
The entire courtroom applauded,
including members of the jury.
This one was just sloppy and completely unnecessary.
It seemed have the unintended effect
of bolstering the reputation of Dr. Black
before he took the stand,
who happened to be a defense witness,
but it was just completely unnecessary
to run that risk for a little grand standing
in this particular case.
And then there were accusations
that Judge Schroeder was just unusually chummy
with Rittenhouse and wanted to see him acquitted.
For example, there's a picture of the judge
and Rittenhouse being very close together
as they're watching a video.
But equally likely is that Schroeder
was just a relatively pro defendant judge.
And of course there's a wide disparity
between criminal defendants who are remanded to custody
and those who are out on their own recognizance.
Rittenhouse was able to attend, not in shackles,
not going back to prison and in a suit.
We don't wanna make things too easy on the prosecutor.
And maybe the answer here is that criminal defendants
more often should get the benefit of the doubt
like Rittenhouse did.
But more pragmatically, if a judge doesn't err
on the side of the defense,
they are likely to see an appeal
and no trial judge wants to, A, get reversed
by the court of appeals, and B, have to retry a defendant.
And that's one reason why they might err on the side
of disallowing evidence that might otherwise come in
to make sure that there aren't other
constitutional violations.
And for better or worse,
Schroeder was clearly paying attention
to how the trial was covered.
"When I talked about problems with the media,
when this trial started,
we're there in part, not fully,
but in part, because of grossly irresponsible handling
of what comes out of this trial.
I will tell you this,
I'm going to think long and hard
about live television of a trial again, next time."
"I don't know, I've always been a firm believer in it
because I think the people should be able to see
what's going on, but what I see,
what's being done is really quite frightening.
Frightening, that's the right word for it."
Now I can't imagine how he possibly got that impression,
which takes us to the final incidents.
Schroeder had a racist cell phone ringtone.
Come on, people.
A cell phone ringtone, really?
Come on, you're better than this.
But also, Judge Schroeder, dude,
turn your cell phone off in court.
That is rule number one.
Now there is no doubt that Schroeder
is a crotchety old man,
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is too expensive.
He's getting calls all the time,
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