The Kyle Rittenhouse Trial Judge
He's controversial but consistent.
Bruce E. Schroeder, the judge presiding over the Kyle Rittenhouse trial, received national attention for defendant-friendly pre-trail rulings and has continued to receive scrutiny over how he has handled the trial. According to a WaPo report (“As Kyle Rittenhouse trial nears end, judge’s decisions from the bench come under scrutiny“) this is all typical behavior for the 75-year-old jurist.
Regardless of how he is viewed, Judge Bruce E. Schroeder is indisputably a man with fixed rules for how trials in his Kenosha County courtroom will be run. Some are basic, some unorthodox, and all reflect the experience of a jurist who believes trials can be too easily manipulated, particularly by the prosecution.
“For a jury trial, if you get him, you are happy as a defense attorney,” said Michael Cicchini, a criminal defense lawyer in Kenosha, Wis., who has appeared before Schroeder numerous times, including earlier this year. In that case, he won an acquittal for his client, who was charged with battery.
Schroeder’s reputation has some in Kenosha worried. The 75-year-old judge is running the trial of Kyle Rittenhouse, now in its second week, which will determine if the 18-year-old who brought his assault rifle to town in August 2020 is guilty of homicide. Rittenhouse fatally shot two people and badly wounded a third during unrest that followed a police shooting.
The defense has already logged some wins in Schroeder’s courtroom. Gaige Grosskreutz, the man who survived Rittenhouse’s gunfire, took the witness stand for the prosecution, but acknowledged that he was pointing his gun at Rittenhouse when the teenager fired at him — a boost for Rittenhouse’s self-defense claim.
Then, as the prosecution rested its case on Tuesday, Schroeder dismissed a charge for his alleged failure to comply with curfew. The judge said he agreed with defense attorneys that the prosecution had not entered sufficient evidence to prove that a curfew was in effect the night Rittenhouse killed the two men.
And on Wednesday, Schroeder engaged in several sharp exchanges with Assistant District Attorney Thomas Binger as he questioned Rittenhouse, admonishing the prosecutor: “Don’t get brazen with me!”
For those wanting to see Rittenhouse pay, this is obviously distressing.
“It seems like he’s aiming to let this man out of this courthouse scot-free and we’re not going to let that happen,” said Justin Blake, whose nephew Jacob Blake was shot by a police officer last year, triggering the nights of unrest that drew Rittenhouse to Kenosha. “If it happens, we’re not going to be quiet about it.”
Justin Blake singled out one of Schroeder’s rulings that has generated anger and confusion in many quarters, even though it long has been one of the judge’s most steadfast rules: As the trial began last week, Schroeder forbade the prosecution from calling the three men Rittenhouse shot “victims,” which the judge has long called a “loaded term.” He prefers “decedents” or “complaining witnesses.”
But, as I noted in my post about the pretrial rulings, it’s a longstanding rule.
“That’s been a rule in his courtroom since Day One,” said Cicchini, who has been practicing law in Kenosha for two decades. “Whether the person is a victim is the very thing the prosecution has to prove.”
Which strikes me as perfectly reasonable. Judges should, in my view, bend over backwards to ensure that defendants get a fair trial. Given that the state has every advantage—and is seeking to deprive the accused of life, liberty, or property—the defense should have considerably more leeway than the prosecution.
Several other rulings have gone the defense’s way.
The judge prohibited the prosecution from entering evidence allegedly showing links between Rittenhouse and the Proud Boys, a White nationalist group. He also rejected the prosecution’s request to be allowed to tell the jury about a June 2020 incident when Rittenhouse allegedly attacked a woman, who at the time was in a fight with his sister.
But Schroeder also prohibited the defense from describing the men he shot as “looters” or “rioters,” unless the attorneys can prove they were involved in those acts.
Still, “I’d say he is more pro-defense than pro-prosecution in trial,” said Chris Rose, a second-generation criminal defense lawyer in Kenosha who has appeared before Schroeder “hundreds of times.” “The rulings he has made so far are consistent with what he has done in the past.”
Mostly, though, Schroeder seems to be anti-nonsense more so than pro-defense.
Mainly, though, Schroeder is all business. As proof, defense attorneys point to the fact that Schroeder empaneled a jury for the Rittenhouse trial in one day, a process that in high-profile cases can often take weeks.
“He has a reputation for having good days and bad days — I’ve heard the word ‘mercurial’ used to describe him,” said Dan Adams, a former prosecutor in Milwaukee County and now a defense attorney. “But he is old school, literally and figuratively.”
The report shares an anecdote that I posted in the comments section of the previous discussion:
While no murder trial has generated as much attention for Schroeder’s courtroom as this one, it is far from his first.
In December 1998, Julie Jensen was found dead in the Pleasant Prairie, Wis., home she shared with her husband. The marriage was an unhappy one, and Mark Jensen had been having an affair at the time of his wife’s death.
He was charged with homicide four years later, accused of poisoning his 40-year-old wife with antifreeze, then smothering her in the garage. His trial did not begin until 2007, nearly a decade after the death, and following years of legal debate over evidence.
Schroeder was the trial judge. A key piece of prosecution evidence was a letter Julie Jensen wrote advising police detectives to investigate her husband should she be found dead. For safekeeping, the “letter from the grave,” as it became known, was given to a friend with instructions to turn it over to police in the event of her death.
“I pray I’m wrong + nothing happens,” Julie wrote in the letter. “But I am suspicious of Mark’s suspicious behaviors + fear for my early demise.”
Schroeder ruled the letter inadmissible. In his view, the letter did not meet the criteria to be categorized as a dying declaration, mainly because Julie Jensen was not in “imminent” danger of death when she wrote it. That meant Jensen had the right to cross-examine his accuser, who in this case was his deceased wife. She was obviously not available, so the letter was out.
The prosecution appealed the ruling, and the Wisconsin Supreme Court ordered the letter in as evidence. The defense followed with its own appeals.
In May of this year, the Wisconsin Supreme Court tossed out Jensen’s guilty verdict and ordered a new trial in which the letter will not be allowed as evidence.
“I had it 100 percent correct in the first place,” Schroeder said in court last week. “That was 20 years ago. The man is still in prison. And the case has again been reversed because of the evidence that the Supreme Court told me to admit.”
I’m not a lawyer and have no strong view on the merits of that ruling. The letter was surely a key piece of evidence as to the state of the relationship. But I lean towards Schroeder’s view that allowing the deceased to testify from beyond the grave, when cross-examination is not possible, is unfair to the defendant.
Regardless, Schroeder seems to be kind of a character.
While generally respected, Schroeder is not universally loved and has been accused of overstepping his authority.
He once ordered a woman convicted of shoplifting, as part of her sentence, to inform an employee of any retail store she entered that she was under supervision for theft. The Wisconsin Court of Appeals later voided that element of her sentence.
In another case from the 1980s, Schroeder ordered a babysitter accused of molesting a child to submit to an AIDS test. He began requiring sex workers who appeared before him to do the same. “There was no statutory authority for him to do that,” said John Anthony Ward, who represented the babysitter and has appeared before Schroeder an estimated 500 times. “But he’s been on the cutting edge with many of my cases.”
But Ward added that Schroeder “believes in giving people a second chance if you admit to your wrongdoing.”
A 31-year-old man who had a case in front of Schroeder as a juvenile said the judge let him off easy. “He said, ‘I’ll let you go this time. But if I ever see you again, I’ll put you away for life,'” said the man, who spoke on the condition of anonymity for fear of legal repercussions. When he faced another charge, this time as an adult, his case was assigned to Schroeder. Mindful of the judge’s warning, he successfully appealed for a different assignment. “He’s a stickler. But he does what a judge is supposed to do,” he said. “He’ll laugh with you, and smile with you, and then he’ll book you.”
I gather anecdotally that this sort of thing is not uncommon but I prefer my judges to be more by-the-book. I’m especially unfond of creative sentencing. And, while it’s perfectly reasonable to inform a guilty man getting leniency not to expect it a second time, threatening a specific outcome in a case that, by definition, hasn’t happened and therefore no facts are known about it, is problematic.
Though Schroeder is generally perceived to be more friendly to the defense than to the state, he appeared to protect prosecutor Thomas Binger from what could have been a tactical error in the Rittenhouse case.
During pretrial motions, Schroeder ruled that the defense could not introduce Rosenbaum’s history of mental illness, including the fact he was released from a psychiatric hospital just before showing up at the demonstrations in Kenosha. Allowing the evidence would have strengthened the defense’s argument that Rittenhouse was acting in self-defense when he fatally shot Rosenbaum.
In his opening statement, Binger had mentioned that Rosenbaum had been in the hospital, although he did not say it was for mental illness — which could have opened the door for the defense to introduce his health struggles.
Another piece, in the NYT (“The judge, who has clashed with prosecutors, has been ‘in this business for 50 years.’“) adds a bit more context, including that Schroeder was once a prosecutor himself.
Bruce Schroeder, the longest-serving circuit court judge in Wisconsin, is presiding over the homicide trial of Kyle Rittenhouse.
At times during Mr. Rittenhouse’s testimony on Wednesday he took a strict line with prosecutors, clashing with them over a reference to Mr. Rittenhouse’s silence in the months before the trial and an attempt to introduce testimony on a previous incident that the judge had ruled inadmissible.
“The problem is this is a grave constitutional violation for you to talk about the defendant’s silence,” Judge Schroeder told prosecutors.
Judge Schroeder, 75, who has said he believes that he has seen more homicide trials than any other judge in the state, graduated from Marquette Law School in 1970, worked as a prosecutor and began serving as a circuit judge in 1983.
His longevity is a subject of frequent conversation in the courtroom. As he said during jury selection in the trial, he has been “in this business for 50 years.”
In Kenosha legal circles, Judge Schroeder has a reputation for strictness in sentencing. He is known for delivering lectures to prospective jurors about their civic duty, which in this trial he likened to serving as an American soldier in Vietnam.
It may simply be that Schroeder wants to ensure that convictions are arrived at justly and, more importantly, that they stick.
Back to the WaPo report:
In Kenosha, Schroeder has won support from conservative AM radio hosts and callers, who have praised his decisions, his manner and his willingness to go after critics in the media.
But the judge’s rulings have alarmed the small group of racial justice advocates who have gathered outside the courthouse during the trial. Primarily they cite Schroeder’s ban on the word “victims” as the cause of their concern.
Among some Kenosha residents, as well, there is concern that Rittenhouse will be acquitted — and a suspicion that the judge’s rulings will play a role. “I think Kyle Rittenhouse is going to get off,” said Justine Tidwell, a 25-year-old Black resident. “They gave the case to the worst judge in town.”
I’m pretty sure Rittenhouse will be acquitted, too, but it’s mostly because the law is on his side.
In high profile cases, we all get tied up in the generalities. Here, Rittenhouse put himself in a situation that created more danger for the people around him and more danger for him. Maybe worse, the Kenosha police – not on trial here – encouraged him. The entire circumstance was outrageous on a number of levels. But the trial is not about all that. It is about the far more particular question about Rittenhouse’s state of mind and culpability at the time(s) he fired his gun. James may well be correct that Rittenhouse will walk. We will all waive our hands with outrage. But the question the narrow judge (and the law) is forcing the jury to answer is simply not the question that we are all outraged about.
Damnit. No edit function for me today.
*But the narrow question the judge. . . .
@barbintheboonies: Oh, barb. How we have missed your insights.
If the law is on his side then the law is an ass. This fool grabbed a gun and crossed state lines because he wanted to shoot someone. He wanted to play hero. Instead he played murderer.
Now, just imagine the same circumstances, the same people, with no gun. See? No problem.
The sickness of gun nuts pervades this country and perverts justice.
@barbintheboonies:
Is it ever not projection with you people? You’re so devoid of imagination that you can’t even make up your own lies.
Judge: ‘You are charged with stealing a car.’
MAGAt: ‘I didn’t steal a car, you stole a car!’
Judge: ‘You ran over a mailbox.’
MAGAt: ‘I didn’t run over a mailbox, you ran over a mailbox!’
I’d say it’s childish, but had my kids ever been such pitiful liars I’d have been ashamed. We value originality around here. Also the truth.
@Michael Reynolds:
I cited this in today’s open forum, but it seems relevant here:
http://www.thebulwark.com/prepare-for-the-shock-troops/
@Gromitt Gunn:
I wonder if it was worth crawling out from under his rock to make a trump of himself in this manner.
I think this is another case where folks’ feelings about a specific case tend to trump their priors. A lot of folks who normally think that judges are too deferential to the prosecution suddenly are appalled. And others who think the courts bend over backward to protect the rights of the accused over their victims are suddenly celebrating a judge who seems to be anti-prosecution.
HL92 can talk to this more directly, but this is my general understanding based on talking with folks in the legal system. They especially don’t like a verdict being overturned because the judge allowed questionable behavior on either side.
It seems pretty clear that in the specific situation he acted in self-defense. That said, it’s horrible that this kid’s reason for being there resonates with so many people. He is so obviously a total fucking loser, and there you go, I guess. Anyone who didn’t laugh at his tears is an idiot. I would say that the guys he killed were probably no different, except you’re not going to see anybody mainstreaming their identities or believing that they were not creeps.
With white American gun culture, there’s just a deepening blur between normal law and order and wanting to kill. If there wasn’t video evidence in the Ahmaud Arbery case, it would be about a jogger who was shot in self-defense after trying to grab the gun of a normal citizen, and they would be walking. And it’s going worse. We’re heading towards 40% of this country being 1960 Mississippi. Just white thugs in love with guns and dumbness.
@mattbernius: “A lot of folks who normally think that judges are too deferential to the prosecution suddenly are appalled”
Yeah, that’s me. I’m trying to own it, though…
@mattbernius:
The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.
Simply put, the goal of the system is that juries / judges should render decisions about culpability based solely on an objective evaluation of neutral (in reality, as neutral as they can be made to be) facts. Hence his prohibition on the use of the term “victims” by the prosecution and of “looters / rioters” by the defense without directly establishing that the three men were actually involved in looting and/or rioting (the facts that I’ve been able to ascertain suggest that they were not). Both examples would, if permitted, open the door to suggesting on appeal that the jury was emotionally swayed by them and motivated to render its decision based on that emotion rather than objective evaluation of the facts. From my chair, Schroeder is simply a stickler for the rules of evidence and isn’t going to brook any shenanigans. On balance, that’s a good thing.
@Modulo Myself:
Bingo. Completely agree on every point.
@HarvardLaw92:
Agreed on all counts.
@wr:
Trust me I am trying to do the same thing.
@CSK: @Modulo Myself:
Gun culture in this country has always been about men wanting to kill other men. (Generally Black men. Indians, if we’re talking South Dakota. Mexicans if we’re in Texas. Azeris if we’re in Armenia. Etc…) It’s a hero fantasy. Young men grow up on hero stories where an other attacks the wimmin folk, and their virtue is saved by Righteous Man With Gun. Who is then rewarded with sex and money and status.
It’s core programming for probably most men. We all want to be Batman, but we can’t afford the gear and we’re too fat and lazy for all that pilates and parkour, but we can afford a gun. With which we will save Polly Pureheart from the Evil Other and be rewarded with sex, the chance to pass along our DNA and be applauded by jealous but admiring lesser men.
Race defines the target, but the need for a target precedes the specifics of that target. The underlying motivations aren’t about race per se, but about sex and status.
The judge here seems to be acting within the law and consistent with his long time practices. The defense attorneys are doing what they’re supposed to do and the law doesn’t hold it against them that they’re conservative
griftersentrepreneurs. The prosecutor is an Assistant DA, to an elected DA in an 88% white county who may have followed a lot of precedent by overcharging. The ADA may be doing his best, but aren’t elected prosecutors a prime example of structural racism?The real problem is the law. The law will look at the last few minutes and find at least reasonable doubt it wasn’t self defense. But the real problem is some underage dweeb bought an almost assault rifle, crossed a state line to join a riot, and surprise, found himself in way over his head. Not to mention the cops who were doing anything but protecting and serving. Maybe Rittenhouse will, down the road, get slapped on the wrist, but the upshot of this trial is going to be to endorse what he did in the eyes of a lot of people.
At TAC Dreher has an article titled Free Kyle Rittenhouse and the commenters applaud. To them Rittenhouse is a hero who stepped up to defend his community, well some white community. Over in the Forum CSK links to a Bulwark article about armed RWNJ’s ready to go shoot someone. This is going to get ugly. And don’t think people like Cruz and Hawley and Americans for Prosperity or other Koch surrogates aren’t eagerly cultivating ties to the
brownshirtspatriots willing to stand up for freedumb!!! What would restrain them? Norms?@Modulo Myself:
It is clear that with the one person who survived being shot, that person had already raised their gun when Rittenhouse shot him.
The jury will have to determine whether the other three victims were killed in self defense, and whether to accept Rittenhouse’s claim of self defense in the fourth based on the totality of the circumstances.
I know I haven’t been following the trial closely enough to have all the relevant details at my fingertips, and I doubt you have either (like, you have a job, and a life, etc., and there are a lot of details). I also know the media is cherry picking the bits that they tell us in a lot of the stories.
I suspect that this is going to be a case where state law says everyone was acting in self defense and it’s an unavoidable tragedy that people carrying weapons to a protest end up shooting people… in a just world we would throw all their asses in jail for a very long time and be done with it, but the law and justice are not the same.
Keep in mind the law of unintended consequences.
In future situations, it may be the wingnut with the gun will be shot and killed, as that affords the aggressor a chance to claim self-defense, and in any case you need to be alive to be locked up.
The judge had the jury applaud a witness for the defense.
@Gromitt Gunn:
“How we have missed your insights.”
We will aim better next time.
@Kathy:
That’s what happened in Portland, and the guy who killed the wingnut was then killed by the police in a somewhat-suspicious shooting. What’s interesting is that I don’t remember the guy’s name, and that nobody on the left is chanting or saying it. Why? Because he was clearly there for the violence. He was like 50, a total mess, and not at all innocent.
@Michael Reynolds:
Yeah, there’s something specific to American masculinity in gun culture that isn’t universal. It’s like talking about the masculine ideal and then pointing to a picture of a shirtless Putin on a horse.
Today Judge Shroeder ordered the jury to applaud Rittenhouse’s use of force expert for being a veteran:
@Gustopher:
Again I have to ask if the right has really thought through the implications of establishing a precedent that merely bearing a firearm is sufficient justification for shooting someone and claiming self-defense.
@Stormy Dragon:
@Mikey:
Anyone pretending that this is a fair trial after the judge has everyone, including the jury, applaud a defense witness, is just full of shit. Period.
So I can show up somewhere with a gun, openly and cockily brandishing said firearm, and shoot someone who I knew was unarmed, and testify under oath that i knew they were unarmed, because I was acting in self defense? Makes sense…
From the Daily Show:
Some of the controversial rulings are undoubtedly correct. I think most trials should not refer to the deceased as victims: it is a loaded term. However, the judge opening the door to refer to the deceased as looters seems immaterial as there is no way the defendant would have known this and what matters is his state of mind. I read, don’t know if it is accurate, that the judge phone rang in the courtroom with some hymn that has been appropriated by right wingers. If so, that’s simply unacceptable. The veteran tribute is also unnecessary and could be prejudicial.
@Jc:
If you were, at the time, reasonably in fear of severe injury or death, yes.
Rittenhouse doesn’t just get to say “self defense” and walk away. He has to show that he was in a situation where he (or a reasonable person) was in fear for his life. And he has to convince the jury of that–assuming that the jury doesn’t find “not guilty” because the prosecution has failed to convince them of the charges.
@Mu Yixiao: if I am ever confronted by an unarmed man while holding a loaded AR,and fear for my life. Then I should truly rethink firearm ownership. Because I am truly a coward and should have never put myself in that kind of situation to begin with. For the party of personal responsibility, “self defense” in that kind of scenario is truly a stretch. Kid should get something instead of a free walk.
@Jc:
I strongly suspect the prosecution could’ve gotten a reckless endangerment conviction had they focused on getting one, for trying to cross a riot with a slung rifle alone. IANAL, but some levels of stupid should be criminal. However it seems to my eye all they cared about was getting a murder conviction. He will skate.
And then there’s this:
Rittenhouse defense incorrectly claims iPad pinch-to-zoom modifies footage
And the judge gave the prosecution 15 whole minutes to show that the video was not manipulated (the defense did not have to prove any manipulation of the video). Why even waste the money on the rest of the trial? Just end it and ask the jury to applaud Rittenhouse on their way out.
https://finance.yahoo.com/news/kyle-rittenhouse-ipad-pinch-to-zoom-lawyers-claim-142110207.html
@barbintheboonies:
They were for the most part peaceful. Some right wing agitators did manage to create violence.
Patriots do not participate in a coup.
Day.@Modulo Myself:
For the American right “shirtless Putin on a horse” IS the masculine ideal.
These are people who think Trump exemplifies manhood. That says it all.
WTF?
RittenhouseTrial Judge Bruce Schroeder breaks for lunch referencing the food that was ordered saying, “I hope the Asian food isn’t coming.. isn’t on one of those boats from Long Beach Harbor.”
Is this guy effing kidding? Or maybe he’s already thinking abut his next career move, possibly a stint on One America Network
@Modulo Myself:
The shooting seems suspicious as hell, and should be investigated. The guy was a dirtbag,and the world is not particularly poorer without him, but we shouldn’t have police acting like death squads.
Reporting of the situation, based on witnesses, says that the dirtbag was given no opportunity to surrender. Last I checked, there has been no body camera footage or other evidence contradicting this, only Donald Trump’s praise.
@barbintheboonies:
You have that backwards. The Nazis painted white supremacists as patriots, not patriots as white supremacists.
Personally, I prefer judges who don’t have Donald Trump’s theme song as their cell phone ring tone, and demand the courtroom applaud veterans just before the defense calls a veteran to give expert testimony. Especially when they haughtily instruct the prosecution that the trial is not political.
I’m puzzled by the confidence so many people express that the kid will get off. If feeling threatened by an unarmed man is sufficient reason to shoot them dead – including a final kill-shot in the back – it makes a mockery of the whole idea of “self defense”.
Thought experiment: if Grosskreutz had killed Rittenhouse before the latter shot him, there would have been three bodies in Kenosha. Does anyone doubt Grosskreutz would have been praised for taking down an active shooter and saving lives, and today nobody would even remember who Rittenhouse was?
@Ken_L:
The feeling he’s going to get off is based on the fact that this judge is acting in a manner that can be seen as favoring the defense. He’s influencing the jury with his choices, words and actions to lean to acquittal without letting the evidence in the trial speak for itself. He’s allowed easily demonstrable false claims to stand unchallenged, stopped the trial to yell at the prosecution for something he *thought* they were going to do and demanded appraisal for a defense witness before testimony thus indicating they should be considered extremely important and worthy of respect.
In other words, he’s not acting impartial but giving a ton of unearned and undeserved gooses to the defense. Rittenhouse may get a pass because he was given a pass, not because justice evaluated the circumstances and took his side.
Yes. The right would have started screaming about how a young child, just trying to defend a business and himself was MURDERED by a lib mob. He’d have been the new Ashley Babbitt – a wonderful martyr for the cause that was killed doing something legally problematic but pleasing to their mythology. Grosskreutz would have been on trial right now and the mother would be sobbing out how her little boy was just trying to Make America Great Again and some antifa super-solider rioters cut his promising life short. Remember, they don’t give a damn about Rittenhouse himself, just what he can add to their narrative. A dead innocent young boy trying to using 2A to stop rioters works just as well as a live young man bravely exercising self-defense in the face of deadly skateboard wielders.
Everyone who usually supports the rights of defendants are suddenly demanding this defendant’s head, and people who are normally law-and-order types are suddenly very concerned about the rights of defendants and people in jail.
Funny how that works.
The judge is bang zoom to the moon kind of guy in world gone all pinch and zoom. He needs to go gather some dust in a rocking chair on his front porch, so he can start yelling at the kids to get off his lawn.