Kyle Rittenhouse judge has gotten his share of criticism. Can a judge be removed from a case? Not likely.
The judge in Kyle Rittenhouse's murder trial has been under fire for everything from yelling to making supposedly insensitive jokes. But getting him removed or recused is nearly impossible, legal experts say.
For many spectators who admittedly don't follow court cases closely, Judge Bruce Schroeder has been a surprising fixture in headlines - at times becoming more of a focus in news stories than Rittenhouse.
Such was the case on Monday as closing arguments wrapped up. Schroeder had been expected to file final jury instructions on Sunday, but instead took arguments from attorneys until the last minute Monday as he edited the instructions on the bench. Then he sent the jury out midway through to talk with attorneys about making them clearer.
Instructions are always closely scrutinized by attorneys and judges. In a case complicated by multiple charges, victims and Rittenhouse’s self-defense claim, the document’s importance is clear.
But controversy ensued anyway. Prosecutors repeatedly asked Schroeder not to veer far from the model instructions and disagreed with the judge’s preferred wording for some procedures. At one point, prosecutor Thomas Binger told Schroeder: “That’s not the law.”
Perhaps it shouldn't be surprising. Schroeder has inserted himself into the courthouse drama early on, even before the 18-year-old defendant took the stand in Kenosha, Wisconsin.
In late October, in a pretrial ruling, Schroeder said the men shot by Rittenhouse — Joseph Rosenbaum, 36, and Anthony Huber, 26, were killed, while Gaige Grosskreutz, 27 — could not be called “victims,” but could be called “rioters and looters.”
On Twitter, Philadelphia Inquirer columnist Will Bunch detailed what he called Schroeder's "troubling history."
Schroeder has also drawn criticism for, among other things, exploding at lead prosecutor Thomas Binger for his line of questioning when Rittenhouse was on the stand, and making a comment about Asian food that some interpreted as offensive.
"The biased judge in the Rittenhouse trial just made a thinly-veiled anti-Asian comment," tweeted Stanford law professor Michele Dauber. "Because all Asian food comes from China like the boats haha what a bigot."
Former Vermont Gov. Howard Dean, a Democrat, used the clip to criticize the judge and the judicial system that led him to preside over the trial: "Schroeder has provided an example of how not to be a good judge. The selection system in Wisconsin is also badly flawed," he tweeted.
"They are elected after initial appointment and there is no retirement age," Dean said of Schroeder, who public records show is in his mid-70s. "This is why we have intemperate and unfit judges like this all over the country."
Schroeder also drew second-guessing from some legal experts on Veterans Day last week when he encouraged everyone in the courtroom, including the jury, to applaud for any veterans who were present.
The only veteran in court, it turns out, was a witness for the defense, who received the round of applause. That led some legal experts to question whether the jury was essentially being told that the witness was beyond reproach and should be believed because he was a veteran.
Schroeder also grabbed headlines last week when testimony focused on the accuracy of photo enlargement and what happens when someone zooms in on a video. At one point, after the defense objected to using Apple software via an iPad to zoom in on a video, Schroeder told the prosecution it was up to them to prove that zooming in on an iPad doesn’t alter footage.
He gave lawyers 20 minutes to find an expert who could testify to the efficacy of pinch zooming.
What does it mean to recuse a judge?
Recusing or disqualifying a judge - which leads to replacement - typically happens when a judge is biased in favor of one side or another. Motions to recuse judges can come if one party feels the judge has a conflict of interest.
Conflicts of interest can include a personal or previous relationship with someone from the prosecution or defense; previous work on the subject matter if the judge used to be an attorney; personal knowledge about any of the people involved in the case. A judge's rulings, comments and/or conduct can also be called into question.
To a casual viewer, it’s easy to wonder why Schroeder hasn’t been replaced. But Nancy Gertner, a retired judge who teaches at Harvard Law School, said it’s actually pretty simple: There’s virtually no way to do it.
“The prosecutor would have to move to disqualify the judge, the judge would have to deny the motion, then the prosecutor would have to seek an emergency appeal to the Wisconsin Supreme Court and that would delay the trial,” Gertner explained. “The whole thing is a very complicated strategic issue because if you challenge the judge and that challenge fails, you’re often in a worse situation than before."
As a result, she said, lawyers basically never move to disqualify judges, many of whom they're likely to see at later trials. When alleged bias from a judge comes up "while [a trial] is going on, it's virtually impossible to remove him."
Complicating matters in the Rittenhouse case is that Schroeder was elected to his position by Wisconsin voters.
What are other examples of judges becoming the story during trials?
Perhaps the most famous example of a judge who inserted himself into a trial is that of Judge Julius Hoffman, who oversaw the trial of the Chicago Seven. In 1969, the federal government charged eight anti-Vietnam war activists with conspiracy, accusing them of inciting a riot at the 1968 Democratic National Convention in Chicago. (The Netfilix movie, "The Trial of the Chicago 7," is based on this true story.)
The trial took place over five months and Hoffman, who was 74 at the time, was widely thought to be favoring the prosecution. Hoffman's antics included issuing arrest warrants for four defense attorneys no longer working on the case; denying the jury the ability to view several pieces of evidence; admonishing defendants and their attorneys for small things like their posture and laughing during the trial.
Five of the defendants were eventually convicted for inciting riots, but those convictions were later overturned, with the U.S. Seventh Circuit Court of Appeals saying it was in part because of Hoffman's biases and "antagonistic" courtroom conduct.
In 2018, during the trial of Larry Nassar, the former team doctor for the U.S. gymnastics team who was found guilty of sexually abusing hundreds of young women over almost 20 years, Michigan Judge Rosemarie Aquilina drew praise for her willingness to let 156 of Nassar's victims speak during his sentencing.
Aquilina told Nassar "it is my honor and privilege to sentence you" to 40 to 175 years in prison. She drew acclaim from the #MeToo movement for her compassion, telling the women who spoke,"thank you so much for being here, and for your strength" and "you are no longer victims, you are survivors." Gold medalist Simone Biles called Aquilina "my hero."
Other factors to consider with Judge Schroeder and Rittenhouse trial
Another factor that can’t be ignored, Gertner said, despite Schroeder’s comment earlier this week to Binger that this isn’t a political trial — the entire situation has become so fraught politically, partially because Rittenhouse fired shots in the aftermath of protest in Kenosha that followed a white police officer shooting a Black man, Jacob Blake.
There’s recourse for judge who leans in the favor of the prosecution — a much more common scenario, Gertner said. In the case of a guilty verdict, the defense can appeal. But if a judge appears to favor the defense and the defendant is acquitted, there’s nothing the prosecution can do. The trial is over.
Gertner empathizes with the public, some of whom likely don’t fully understand America’s justice system.
“That’s why I’ve been speaking out,” she said. “If Rittenhouse is acquitted, people have to understand what happened.”
“That’s why it’s important to talk about this judge and his fairness — Kyle Rittenhouse could very well be acquitted because this judge has his thumb on the scale.”
Contributing: Associated Press