What’s the “Law and Order” effect? It’s people believing that “Law and Order” is real. Trials don’t impanel a jury, a week after a body is cold. Lawyers don’t stand inches from a witness box with their backs to a jury.
It takes many months to gather and organize evidence for trial. It takes months to prepare for trial. A trial lawyer must rehearse the presentation. This includes opening and closing statements, as well as how to examine witnesses, use exhibits and what questions they should ask.
I haven’t watched much of the Kyle Rittenhouse murder trial, but I’ve seen the prosecutor before. I don’t mean I’ve seen This prosecutor; I mean I’ve seen this guy to the right or left of me at trial.
Assistant District Attorney Thomas Binger’s opening statement sounded more like a closing argument and I think, could be turned on its head by the defense. Binger claimed that Rittenhouse wasn’t pursued by Rosenbaum — rather, Rittenhouse was the pursuer. That’s a significant claim. In an opening statement, you’re supposed to address what the evidence will show. Rittenhouse could have been the one who pursued Rittenhouse and that would be sufficient to justify murder charges. But, he wasn’t a pursuer. None of the video supports that – in fact, just the opposite.
Secondly, he used a line that I think was pretty effective rhetoric, if there isn’t a way to turn it around. He said Kyle Rittenhouse acted like a moth “to a flame” and was “drawn to the chaos” in Kenosha last year when he needlessly gunned down two people”
That line would have been highlighted by me if I had been at the defense table. At closing, I’d turn it against the prosecution. Rittenhouse’s two victims were certainly drawn to fire. Kenosha was set on fire, and Huber as well Rosenbaum and Rosenbaum were attracted to the burning city. They were also drawn to Kyle Rittenhouse. Rittenhouse ran, and the men pursued Rittenhouse, not as a mosquito to a flame but rather like predators to their prey. They wanted to murder Rittenhouse. They wanted Kyle Rittenhouse to be killed.
Binger called two witnesses. They were hostile to him.
Richie McGinniss testified. McGinnis had filmed the confrontation. Before things escalated, he had talked to Rittenhouse and interviewed him. McGinnis saw Rosenbaum attempt to grab Rittenhouse’s AR-15.
But it was in Binger’s follow-up question, I think, where Binger was thinking he’s on “Law and Order.” He asked, You really don’t “know” what Rosenbaum was “thinking,” do you?
Oh no!
McGinniss calmly spoke after McGinniss had paused.
“Well, he said ‘f— you’ and then he reached for the weapon.”
Oh no!
Never ask a question you don’t know the answer to, and don’t ask it so there is an opening to add something. He should not have asked that question, but If Binger wasn’t playing to a camera, he could have prefaced with: “Yes or No, sir…”.
Binger was an insect that had been drawn to a flame. Binger was the camera. Binger thought his witness would just say “No,” and Binger could turn to the camera and the jury, and parade back the prosecutor’s table. But real trials aren’t TV. The script isn’t always followed.
The prosecutor asked his own witness, a witness who clearly wasn’t going to follow a Perry Mason script, a question that could have been answered with a “No.” But that witness added some color to it. According to them, the cat was already out of his bag.
Trials should be based on evidence and facts. But — some inside baseball — that’s not always the case. Rittenhouse may have an argument for self-defense. However, this is televised. The prosecutor is acting on behalf of the cameras. A jury in politically charged times might find Rittenhouse not guilty on the facts; sometimes you can’t tell what motivates a jury.
It is impossible to predict what the jury might do. When we ended the trial early, my defense team was there. Our judge had to leave for a doctor’s appointment. One of my colleagues playfully asked the plaintiff’s lawyer if he going to call for a tee time (golf). The lawyer turned to us and said calling ahead was “for the unwashed masses.”
We didn’t know if he was kidding. It didn’t matter. Problem was, the jury hadn’t yet exited. The jury had yet to exit. We realized then that there was no chance for him to win.
Never say anything in front of the jury, or ask a question of a witness, that you don’t want them to consider in the jury room. I think it’s possible Binger blew his case yesterday by breaking that rule.
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