(CNN) — The judge in the trial of Kyle Rittenhouse, who fatally shot two protesters in Kenosha, Wisconsin, made headlines before a jury was selected by reiterating his longstanding rule of not allowing prosecutors to refer to people as “victims” before juries in his courtroom.
At the same time, Kenosha County Circuit Court Judge Bruce Schroeder said at a pretrial hearing last month that the men who were shot could be described as “looters” or “rioters” if the defense can show they engaged in such activity during protests after a police officer shot Jacob Blake in August 2020, leaving Blake paralyzed.
“Let the evidence show what the evidence shows — that any or one of these people were engaged in arson, rioting or looting, then I’m not going to tell the defense they can’t call them that,” Schroeder said in a closely watched pretrial hearing a week before the start of jury selection on November 1.
His decision immediately sparked debate and, in some cases, outrage in legal circles. The longest serving active judge in Wisconsin’s trial courts was, once again, thrust into the spotlight.
“His word is final and he’s not afraid to make tough decisions,” said Dan Adams, a Wisconsin criminal defense attorney and former prosecutor.
Schroeder, 75, has come under scrutiny many times during his nearly 40 years on the bench: From a 2018 sentence — thrown out on appeal — requiring a convicted shoplifter to tell store managers she was on supervision for retail theft to ordering AIDS tests for sex workers in the late 1980s.
“He has a reputation for doing what he believes is the right thing and being an independent thinker,” said William Lynch, a retired attorney who served on the board of the ACLU of Wisconsin at the time of Schroeder ruling about the AIDS tests.
“And it’s his courtroom. He doesn’t like to be pushed around by either party. So he has a strong sense of his own his bearing in the courtroom.”
CNN has sought comment from Schroeder.
Schroeder’s no-nonsense reputation was evident when Rittenhouse took the stand on Wednesday.
On cross-examination, Schroeder twice asked the jury to leave the room before admonishing prosecutor Thomas Binger for his line of questioning.
Defense attorney Mark Richards threatened to call for a mistrial with prejudice.
“This is ridiculous,” Schroeder told Binger at one point.
Defense lawyers and Schroeder took issue with Binger’s questions about Rittenhouse’s silence after his arrest — a right guaranteed under the Fifth Amendment.
“I was astonished when you began … by commenting on the defendant’s post-arrest silence,” Schroeder told the prosecutor.
Schroeder called it “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,” the judge said.
The judge later admonished Binger after the prosecutor asked the defendant about an incident two weeks before the Kenosha shootings that Schroeder has said would not be allowed into evidence.
Binger said he believed Rittenhouse’s testimony opened the door for the questioning but Schroeder was adamant and again spoke sharply to the prosecutor. Schroeder told Binger he should have asked the court for permission first and said the evidence would not be allowed.
“Don’t get brazen with me,” Schroeder said. “You know very well that an attorney can’t go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so, so don’t give me that.”
‘I just killed somebody’
The Rittenhouse case may be Schroeder’s highest profile trial yet.
Defense lawyers maintain Rittenhouse acted in self-defense when he fatally shot two protesters in Kenosha. Prosecutors described him as a vigilante bent on violence. Rittenhouse was among the armed civilians who said they were protecting businesses after nights of arson and looting during a summer of racial justice protests across the country.
Rittenhouse is charged with felony homicide for the fatal shooting of Anthony Huber, 26, and Joseph Rosenbaum, 36, and felony attempted homicide for allegedly wounding Gaige Grosskreutz, now 27, at a protest.
Rittenhouse, who was 17 at the time, is also charged with possession of a dangerous weapon while under the age of 18, a misdemeanor, according to court records. He pleaded not guilty.
Video from the protests showed Rittenhouse, wearing a green T-shirt and a backward baseball cap and carrying an AR-15-style rifle, walking the streets with a group of armed men.
The summer night turned deadly after the teenager scuffled with protesters near a car dealership, according to a criminal complaint based on videos and witness accounts.
Rittenhouse shot Rosenbaum after the protester threw an object that appeared to be a plastic bag at him.
As Rosenbaum lay on the ground, the complaint said, Rittenhouse ran away. He called a friend and said, “I just killed somebody.” Pursued by protesters, he tripped and fell to the ground.
While on the ground, Rittenhouse shot Huber, who appeared to hit him with a skateboard, according to the complaint, and then shot a third protester approaching him, Grosskreutz, in the right arm. Grosskreutz was holding a handgun but had his hands up, the complaint said.
After the shooting, Rittenhouse walked by police with his hands up, bystander videos showed. He turned himself in at his local police department the morning after the shooting.
The debate over labeling the victims
Last month, the court considered whether defense attorneys would be allowed to refer to Huber, Rosenbaum and Grosskreutz as arsonists, rioters or looters for their behavior during the chaotic demonstrations.
“I don’t think I’m inclined toward prior restraint,” Schroeder said.
Binger argued the judge had set a “double standard” because of his rule against the use of the word “victims.”
“If I were to count the number of times that you’ve admonished me not to call someone a victim during a trial, it would be in the thousands,” Binger said.
“The word ‘victim’ is a loaded, loaded word. And I think ‘alleged victim’ is a cousin to it,” Schroeder countered.
“I think it’s the exact same issue,” Binger told the judge. “The terms that I’m identifying here, such as ‘rioters,’ ‘looters,’ ‘arsonists,’ are as loaded, if not more loaded, than the term ‘victim.'”
Binger argued that any behavior Rosenbaum, Huber or Grosskreutz may have engaged in that could lead jurors to believe they were arsonists, rioters or looters wasn’t witnessed by Rittenhouse and shouldn’t be part of his defense.
“He can’t argue self-defense against things he’s not aware of,” Binger said. “These other acts are strictly designed to attack the reputation of these individuals.”
A defense attorney argued that Rittenhouse’s actions should be weighed against the overall “lawlessness” of that night.
CNN legal analyst Areva Martin called Schroeder’s decision “incomprehensible.” She noted that allowing the use of the words “rioters” and “looters” suggested the victims “deserve what they got. They deserve to be shot and even deserved to die.”
In September, Schroeder denied motions filed by prosecutors seeking to admit evidence at trial showing Rittenhouse’s involvement in a previous fight and his alleged association with the Proud Boys, a far-right extremist group.
One motion involved a video taken two weeks before the Kenosha shooting that showed Rittenhouse talking about an AR rifle and wanting to shoot people he believed were looting a CVS store.
A seasoned southeast Wisconsin attorney who has appeared before Schroeder many times described the judge as “someone who has studied the Constitution and the enumerated rights for criminal defendants and… respects the right of the defense to put on a defense.”
“He’s a super old school guy,” said the attorney, who asked not to named because he still appears before Schroeder.
“And that doesn’t mean that he’s old. I mean he’s 75 years old, which is older than most judges, but he’s just an old school guy. He still operates his courtroom like it’s 1980.”
‘He’s going to give you a fair trial’
In the late 1980s, Schroeder drew scrutiny after ordering a convicted child molester who also engaged in prostitution to get an AIDS test, according to attorney John Anthony Ward, who represented the man.
“We objected on privacy grounds,” Ward said.
Schroeder started ordering convicted sex workers to submit to AIDS tests over concerns they were spreading the virus.
”I’m concerned about the man who patronizes a prostitute who has AIDS and then goes home and transmits the virus to his girlfriend, or to his wife, and there is a baby born who later dies of AIDS,” Schroeder said at the time, the Chicago Tribune reported. ”What about the rights of that child?”
Ward does not view Schroeder as a jurist who is favorable to the rights of defendants.
“Judge Schroeder is not a pro-defense judge,” he said. “He’s a very tough judge… But he’s going to give you a fair trial.”
New trial ordered in high-profile case
In 2008 Schroeder presided over the homicide trial of Mark Jensen, who was accused of poisoning his wife with antifreeze a decade earlier.
Schroeder allowed into a evidence a letter Julie Jensen gave a neighbor accusing her husband should anything happen to her. The defense maintained that Julie Jensen was depressed, killed herself and framed her husband.
The letter, read in court, said in part: “I pray I’m wrong + nothing happens … but I am suspicious of Mark’s suspicious behaviors + fear for my early demise.”
The so-called “letter from the grave” evidence proved key to conviction. After the verdict, one juror said the letter gave the panel “a clear road map” to finding Jensen guilty. Schroeder sentenced the defendant to life in prison without a chance of parole.
Schroeder, before announcing his sentence, told the defendant: “Your crime is so enormous, so monstrous, so unspeakably cruel that it overcomes all other considerations.”
Wisconsin’s Supreme Court this year ordered a new trial for Jensen, and ruled that the letter should not have been admitted as evidence.
The court’s opinion said the letter is considered inadmissible “hearsay” evidence that violated Jensen’s Sixth Amendment right to confront witnesses against him. Schroeder had ruled the letter was a “dying declaration,” or evidence of her state of mind at the time of her death.
Jensen awaits a new trial.
The dramatic six-week trial in 2008, nearly a decade after Julie Jensen was found dead in bed, was one of Schroeder’s highest profile cases. It too made national headlines.
“He is not someone who is going to be intimidated by the involvement of the press, or the attention that the case is receiving,” the Wisconsin attorney who asked not to be identified said of Schroeder.
“He’s not going to change his rulings because of publicity or because he wants a certain outcome. At this point in his career, he is who he is.”
‘That’s just his style’
In another case, the state Court of Appeals in May vacated a condition of supervision that Schroeder imposed on a woman convicted of shoplifting in 2018.
The condition was that “upon entering any place that sells goods to the public, she notify management at the service desk that she is on supervision for retail theft.”
The court-imposed condition “falls into the category of shaming,” the appeals ruling said.
The appellate court noted that the judge told the woman the condition was “going to embarrass you, of course.” And, while people are no longer put in stocks, “embarrassment does have a valuable place in deterring criminality,” Schroeder told the woman.
“We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation,” the higher court said. The appellate judges also noted that the condition could adversely impact the woman’s children.
“I would say his overall career as a trial judge I have found to be one which I find fair to the defense in the presentation of evidence and at a trial,” Kenosha defense attorney Terry Rose said of Schroeder.
“I don’t support the idea of announcing one is a shoplifter before you go in a store. That I’m opposed to absolutely,” Rose said. “I think he will be a good judge in this trial and be able to do what is correct under the law and maintain control over the courtroom, giving the defendant the opportunity to present his best defense.”
Schroeder will be 80 when his current terms ends in 2026.
The Wisconsin defense attorney who asked not to be identified noted that Schroeder’s sharp tongue and sometimes combative manner have “mellowed” over the years.
“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, ‘Okay, 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.”