Jurisprudence

Don’t Blame Judge Schroeder if Kyle Rittenhouse Goes Free

The judge points to a passage in his legal book.
Judge Bruce Schroeder laughs as he attempts to read a law book with a magnifying glass at the Kenosha County Courthouse on Friday in Kenosha, Wisconsin. Sean Krajacic/Pool/Getty Images

On Wednesday, Kyle Rittenhouse’s murder trial reached a dramatic climax when the defendant finally took the stand. Rittenhouse is on trial for the murder of Joseph Rosenbaum and Anthony Huber and assault of Gaige Grosskreutz during an anti-racist protest in Kenosha, Wisconsin, last year. On cross-examination, prosecutors showed video of the then-17-year-old Rittenhouse moving wildly through crowds and shooting at four men with an allegedly illegally acquired semi-automatic weapon.

It remains unclear whether the jury will accept Rittenhouse’s argument that he was firing at the men in self-defense. He could be convicted of first-degree intentional homicide, reckless homicide, or other charges, if they don’t. But initial commentary from legal scholars and on social media has focused extensively on the question of whether Judge Bruce E. Schroeder has tipped the scales for the defense in this politically charged case. Rittenhouse’s trial has become a cause célèbre among the radical right as well as among more standard conservative voices.

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The issues were magnified on Wednesday when multiple clips of Schroeder screaming at prosecutors trended on Twitter.  First, footage circulated  of Schroeder berating prosecutor Thomas Binger.

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Then, the phrase “don’t get brazen with me” trended on Twitter after the judge again admonished Binger.

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Finally, in the middle of the defense asking for the case to be thrown out  completely, the judge’s phone rang and people noticed a familiar conservative anthem:

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A few members of “resistance Twitter” took it a step further, presuming the judge to be a fanatical Trump supporter because he had this post-9/11 Republican theme song on his phone:

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These incidents followed several highly contentious pretrial rulings. One of the most controversial is Schroeder’s demand that the prosecution not use the word victim to describe the men that Rittenhouse shot and killed because the word is “loaded.” At the same time, he left the door open to the defense to call the dead and injured men “looters” and “arsonists.” Schroeder also offered Rittenhouse a relatively light $2 million bond and made multiple pretrial motions preventing prosecutors from offering visual evidence of Rittenhouse’s association with the white supremacist group the Proud Boys, his disdain for the law, and his previous statements about wanting to shoot unarmed civilians who may have been shoplifting.*

Taken as a whole, coverage of Schroeder’s actions led many to believe the judge is determined to ensure the vigilante teen killer walks free. In their individual contexts and in context of how Judge Schroeder has been described as operating his courtroom in the past, though, that picture muddies. If Kyle Rittenhouse goes free when the trial concludes, likely next week, Schroeder will not be to blame.

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To understand why, let’s walk through each of the judge’s actions individually. First, banning the term victim is actually standard practice in Schroeder’s courtroom. Several local defense attorneys see it as a helpful position for criminal defendants in all cases.

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“I think that’s an example of him being independent in a favorable way as a defense attorney who relies on judges to be a check on prosecution authority that is often abused,” said Wisconsin-based defense attorney Craig Mastantuono, who has practiced in Schroeder’s court.

Indeed, multiple local defense attorneys have indicated in the press that Schroeder is generally more favorable to defendants than many other judges. Remember, the vast majority of cases that come through his courtroom are not as high profile or politically charged as the Rittenhouse trial.

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“For a jury trial, if you get him, you are happy as a defense attorney,” Michael Cicchini, a criminal defense lawyer in Kenosha, Wisconsin, told the Washington Post this week. Others have echoed Cicchini’s assessment in media interviews about Schroeder. 

“He marches to the beat of his own drummer and in that sense he’s more of a character in some ways than other judges, but you get a fair trial in his courtroom generally,” Mastantuono told me.

Schroeder’s “victim” ruling this time, though, was coupled with a decision to allow the defense to present evidence that the men he shot and killed were engaged in “arson, rioting, or looting” and then call them “arsonists,” “rioters,” or “looters” if they could prove that.

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This decision was rightfully criticized—if Rittenhouse has the right to a full and fair trial before the men he shot can be labeled in court as his victims, then denying that same right to the men he killed would be an injustice. Painting the men as criminals bent on destroying the city is especially problematic in a self-defense case.

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Fortunately, the “arsonist” label question has not come up in trial yet. (Though this could change in closing arguments.) “I don’t think that’s been the nomenclature of the trial as it’s played out,” said Mastantuono, who has been commenting on the trial for a local network affiliate.

The label question would be less of an issue if the judge hadn’t turned attention to himself again on Wednesday with his flamboyant courtroom performance. Again, though, that seems to be in keeping with his general courtroom behavior.

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Prior to Wednesday’s shouting exhibition, CNN interviewed a Wisconsin defense attorney who said Schroeder is a yeller.

“He barks some and, for younger lawyers, they are very sensitive to that sort of thing. ‘Oh, the judge yelled at me,’ ” the attorney said. “Like, toughen up, buttercup. This is felony court. Older lawyers are like, ‘OK, he yelled at me. And then I saw him in the hallway and he asked me how my son’s basketball game was.’ That’s just his style.”

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Schroeder dismissed the jury before each hollering round. But his behavior still raises questions about whether it is appropriate for judges to yell at lawyers even if the jury is not in the room. Still, watching the events that led to his blow-up, it’s easy to understand why he got so mad with the prosecution.

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Schroeder was enraged over the prosecution’s apparent flouting of basic trial rules. Prosecutors are not supposed to lead juries to presume any sort of guilt based on a defendant asserting his Fifth Amendment right not to incriminate himself by staying silent. During Binger’s cross-examination of Rittenhouse, the judge felt that the prosecutor was coming close to impugning the defendant’s silence.

“Since Aug. 25, 2020, this is the first time that you have told your story,” Binger said to Rittenhouse, at which point defense counsel objected. Schroeder sustained the objection.

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Within seconds, Binger repeated another version of his rejected question, saying following months of waiting and watching other versions of the story unfold, “after all of that now, you are telling us your side of the story, correct?”

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This violation of the judge’s warning that such questions run afoul of the Fifth Amendment is what set off Schroeder, who asked that the jury then be removed to admonish Binger the first time.

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“You need to account for this,” he told the prosecutor in a calm tone. “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, but it better stop.”

“Understood,” Binger responded.

The jury returned to the courtroom and cross-examination continued. Not soon after, Binger violated another rule of the court: seeking to introduce testimony about an episode the judge had previously suggested he would bar. This sent Schroeder into a rage and made the courtroom clips go viral.

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“You have previously indicated that you wished you had your AR-15 to protect someone’s property, correct?” Binger asked Rittenhouse in an attempt to introduce the banned video showing  Rittenhouse talking about wanting to shoot alleged shoplifters with his AR-15 two weeks before killing two people in Kenosha. The judge previously said this video evidence was inadmissible “propensity” evidence that pointed to a defendant’s character without offering proof that they committed a specific crime. When Binger flagrantly violated his ruling, Schroeder once again asked the jury to leave before lashing out at Binger.

“This was the subject of a motion, I’m well aware of that. And the court left the door open,” Binger said.

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“For me, not for you!” Schroeder screamed. “You should have come and asked for reconsideration!”

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Binger kept arguing his case, prompting Schroeder’s now viral response: “Don’t get brazen with me.”

What is important to point out again here is that the jury was not present during either of these viral incidents. It is true that the judge’s rulings have been generally favorable to the defense. But so far, he’s seemed to apply those rulings fairly evenhandedly. For instance, Schroeder has banned references to a photo showing Rittenhouse drinking with members of the Proud Boys and wearing a “Free as Fuck” T-shirt while out on bail. And he’s also banned any reference to Rittenhouse’s first victim, Joseph Rosenbaum, having been in the hospital for mental illness prior to being shot by Rittenhouse—the defense argues this is relevant because they say Rosenbaum threatened and attacked Rittenhouse before the shooting, but the judge hasn’t allowed it. And despite the prosecution mentioning Rosenbaum’s hospital stay, the judge has not ruled that this opened the door to introduce this character evidence about the victim.

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Part of the rush to judgment about Schroeder stems from the politics of the case itself. Rittenhouse has become an icon on the right, a symbol of their Second Amendment freedoms and belief in a right to act as an extension of the police. Against the backdrop of rising white supremacist violence, Rittenhouse’s trial becomes a bellwether for how this kind of violence might be treated in a courtroom. That may help to explain why so many rushed to judgment, taking Schroeder’s “God Bless the USA” ringtone as a sign of his supposed right-leaning politics and bias.

So far Schroeder has not done anything to suggest he overtly favors one side over the other. And his past record doesn’t suggest partiality either. If Kyle Rittenhouse goes free, there will be lots of blame to go around: the prosecution for antagonizing the judge when their case appeared to be going poorly, an almost entirely white jury that may empathize more with a killer than the men he killed, a political machinery that turns right-wing vigilantes into conservative folk heroes, and a criminal justice system that gives white defendants a benefit of the doubt it never offers to Black defendants.

In this case, Judge Schroeder is the least of the problems.

Corrections, Nov. 11, 2021: This post initially misstated that the judge blocked the defense from offering evidence that condemned Rittenhouse. The judged blocked the prosecutors from offering the evidence.

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