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Kyle Rittenhouse is on trial for shooting and killing protestor/rioters (depending on your point of view; I consider them to be both) in Kenosha, Wisconsin during the riots last summer.  He is claiming self-defense.  This means that he must show by a preponderance of the evidence that he was acting to prevent imminent harm to himself, harm that was potentially lethal (i.e., could potentially result in Defendant’s death).

The Defense is doing text book work.  I tip my cap to my brothers in Wisconsin. I would hire them if I needed a good lawyer, and I rarely compliment other lawyers.

The Prosecutor?  OMG, Not so much.  He got up to begin his cross, the point of the trial where he should be destroying the self-defense claim, and immediately floundered.  He began not with a bang, but with a whimper, and likely has already committed reversible error.  The judge told him that he probably had during the first few minutes of his questioning of Rittenhouse, after first excusing the jury.

The Defense could ask for a mistrial because the Prosecution asked Rittenhouse, half a dozen questions in, about the fact that he had never given any statements before testifying.

In Washington that is BAM!  MISTRIAL!   This line of questioning amounts to an Impermissible comment on the Defendant’s Constitutional Right under the Fifth Amendment to remain silent.  It can be an issue created either because the prosecutor talked about the fact that the Defendant did not testify at trial, or because, during the investigation, they refused to talk to the cops and invoked “The Fifth”.  Here it is the latter, since Rittenhouse is testifying.

The lead case in Washington is State v Sargent. I have argued this more than once, successfully.  The Sargent court cited other established cases as the basis for their ruling, showing how very clear and long established this rule is:

The prosecutor directly commented on the defendant’s failure to tell about others with possible motives to commit the crime. Drawing attention to the defendant’s failure to testify is constitutional error. Griffin v. California, 380 U.S. 60914 L.Ed.2d 10685 S.Ct. 1229 (1965). State v. Messinger, 8 Wn. App. 829509 P.2d 382review denied, 82 Wn.2d 1010 (1973), cert. denied, 415 U.S. 926 (1974).

But once or twice I have done the unthinkable, something almost no other defense attorney would dare to do.  Turn down the mistrial.

I did that once in a gnarly trial where my client was in deep doo-doo, a caught in the act Burglary.  Smiley’s Pizza in Oak Harbor.  He had mass priors so was looking at some serious time.  We were scoring some good points with the jury and I knew that if we moved for a mistrial, it would be granted by the judge.  Then we would have to start all over again with a new jury.  It is not an automatic win, just a new jury panel in a new trial, a panel that is not tainted by the prosecutor’s malpractice.

Most lawyers go by the book on decisions like this.  The book says move for a mistrial so they do.  I don’t believe in that approach. I go with my gut. And with my experience.  I take the chance when most would not, and turn down the Mistrial when things are going well in the trial.  So far every time I have done that, it has paid off with a Not Guilty, which it did with the pizza case.  I took a chance and it paid off.  It is a calculated risk, however.

I suspect the Defense is doing that here.  It’s a bit like Russell Wilson throwing a crazy pass after the other side has stepped offsides in their rush to sack him. No matter what happens, even a “Pick 6,” where the other side intercepts and runs the other way for a touchdown, he has literally a “free pass”.  It could get called back and the play done over (like a Mistrial).  But, if Russell hits his target in the end zone he can waive, or turn down, the offsides penalty.  Then, the touchdown stands and the play is not called back.  That would be like turning down the Mistrial, then getting the Acquittal, the touchdown.

Here, I think the Defense is going for a straight up Not Guilty.  Based on what I have seen, I would.  If there is a conviction, which I seriously doubt there will be, then they can probably get it reversed on appeal because of this grievous error by the prosecutor.  Sometimes appellate courts say that the Defense waived their argument by not objecting and asking for a Mistrial, that they gave up their chance to make the argument. But when the error is at this level, the analysis usually does not require the Defense to preserve the error by asking for the mistrial.  It is that serious.

Another reason I think this is what the Defense is up to, is that they did NOT object to the prosecutor’s questions. I was literally screaming “OBJECT!” at the TV (I am a nightmare to watch crime shows with). If they had, then the issue of a Mistrial would have been on the table. Instead, the JUDGE objected and stopped the prosecutor to lecture him about how bad his behavior was, after first excusing the jury.  I would call the prosecutor here a total incompetent sleaze bag.

My concern is that a Not Guilty verdict will be analyzed by the ‘pundits’ who are all over TV, misunderstanding trial work as usual.  They will talk about institutional racism and the unfair defense attorneys and other nonsense.  They will never have been in a situation like this.  They don’t know a lot about mistrials and reversible error in real life.  They only know what they see on TV.

And I shudder to think what we are going to see on TV when this jury acquits Mr. Rittenhouse.