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Rittenhouse Trial Judge Blocks Prosecutor From Asking If Far-Right Videographer Is Biased

A far-right political commentator appeared as a defense witness at Kyle Rittenhouse’s murder trial. So why were questions about his political views shut down by the judge?

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Defense witness FRANK HERNANDEZ testifies about his body cam when he is cross examined during trial in Kenosha (Wisconsin) Circuit Court Thursday November 11, 2021. Rittenhouse faces six charges including one count each of First Degree Intentional Homicide, First Degree Reckless Homicide, and Attempted First Degree Intentional Homicide. Rittenhouse, then 17, shot three people, two of them fatally during the unrest that followed the shooting of Jacob Blake seven times by a Kenosha police officer.
Drew Hernandez, a far-right political commentator and video journalist, testified as a defense witness in the murder trial of Kyle Rittenhouse in Kenosha, Wis., on Nov. 11, 2021. Photo: Mark Hertzberg/Pool Photo via AP

Judge Bruce Schroeder, who is presiding over the murder trial of Kyle Rittenhouse in Kenosha, Wisconsin, interrupted the lead prosecutor on Thursday to prevent him from asking a far-right political commentator if the right-wing network he works for is biased.

Schroeder has insisted from the start of the trial that it is not political in nature, even though the circumstances of the shootings were driven by politics, since Rittenhouse took an assault rifle to police a Black Lives Matter protest in Kenosha alongside a volunteer militia.

On Thursday, he reminded the assistant district attorney leading the prosecution, Thomas Binger, that, in his view, “this is not a political trial,” after Binger had asked a defense witness, Drew Hernandez — who recorded video of one fatal shooting — if his employer, Real America’s Voice, has “any sort of political bias or agenda.”

“I don’t know how you would isolate a person’s particular politics and determine that that person is going to evaluate the evidence one way or another,” the judge told the prosecutor, to explain why the witness should not have to answer the question.

The prosecutor appeared to focus on Hernandez’s extreme politics to encourage the jury to disregard testimony in which he repeatedly cast the people who were killed by Rittenhouse as not protesters distressed about the shooting of a Black man by the police, but a mob of rioters and antifascists.

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Because this line of questioning was halted, the jury did not get to learn that Real America’s Voice is not a conservative-leaning network; it is a platform for far-right views, including those of Steve Bannon, who uses his show to promote lies and conspiracy theories about the 2020 election and the coronavirus pandemic.

But Hernandez, who calls himself both a commentator and a reporter, has made no secret of his far-right politics. As I reported previously, Hernandez spent much of last year capturing video of violence, arson or looting on the fringes of racial justice protests, helping to support the misleading Republican talking point that the nation was under siege from violent rioters and antifascists.

When the prosecutor was permitted to resume his questioning, he noted that when Hernandez posted his video on Twitter of Rittenhouse shooting Joseph Rosenbaum in Kenosha last year, he did so with a caption that maligned the victim as a “rioter.”

Forty minutes after posting the video, Binger noted, Hernandez tweeted a clearly biased (and factually incorrect) comment that falsely described the shooting by Rittenhouse as a measure taken to prevent someone from trying to destroy the car dealership he was guarding. “It appears an armed citizen was defending the car dealership and opened fire on the rioter who was attempting to vandalize or burn the dealership down,” Hernandez wrote that night.

In fact, Rosenbaum had chased Rittenhouse onto the car lot, apparently because he was enraged that the armed teenager had taken it upon himself to police the protesters.

Binger said that he wanted to demonstrate for the jury that Hernandez, who repeatedly characterized the protesters as rioters, was not an impartial reporter but a political commentator whose views influenced how he presented the video evidence he recorded in Kenosha that night.

While the prosecution made no mention of it, there is abundant video evidence that Hernandez is a far-right agitator who has called for “bloodshed.” Video recorded by another conservative journalist, Brendan Gutenschwager, who was also in Kenosha, shows that Hernandez gave a fiery speech at a post-election rally for Donald Trump in Washington, D.C., last November, in which he seemed to urge the crowd to use violence against their political enemies.

“Whether Donald Trump wins or not, we will not go down without a fight,” Hernandez shouted to a cheering crowd. “We will not go down without bloodshed!”

At the end of his remarks that day in support of Trump’s delusional claim that he won the 2020 election, Hernandez screamed: “We will make America great again and again and again and again! Let me just say what’s on all of your minds: if they want a second civil war, then they got one, because I will not let this country fall! I will not let this country burn! I will fight to the very last breath!”

The presence of Hernandez on the stand on Thursday was a reminder that almost all of the video of the Rittenhouse shootings were recorded by journalists who either work for far-right websites or hold far-right views. While the judge dismissed the idea that the politics of those witnesses has any bearing on the case, Hernandez and another far-right journalist who recorded video that night, Elijah Schaffer, have played an important role in promoting the idea that Rittenhouse acted in self-defense, as “a good guy with a gun” who had put himself in harm’s way to defend the town, rather than an underaged vigilante in illegal possession of a weapon who had provoked the attacks on him by the men he killed.

Hernandez also explained under cross-examination that his video of the shooting of Rosenbaum by Rittenhouse, and the chase that preceded it, which had been played for the jury, was not simply the raw footage from both of the cameras he had used that night — his phone and a body-worn camera — but an edit he made, combining parts of two clips into one sequence. Binger, the lead prosecutor, expressed surprise that Hernandez had submitted edited video instead of just raw footage.

While Schroeder seems to be focused on the fact that there is no evidence before the court that Rittenhouse shot at four protesters because of their politics, killing two and wounding one, it seems clear that the teenage vigilante was only on the streets of Kenosha that night because of his own conservative views.

Observers of the trial, which is being streamed live online, have previously questioned Schroeder’s own politics and his competence to make rulings on digital video evidence he has appeared confused about at times.

On Wednesday, when the judge’s phone rang during the proceedings, several critics noted that his ringtone seemed to be from the patriotic Lee Greenwood song “God Bless the U.S.A.,” which is also used at rallies by Trump.

On Thursday, Schroeder began the proceedings by asking the court, including the jurors, to applaud the service of the first defense witness, an Army veteran, to thank him for his service on Veteran’s Day.

During Rittenhouse’s testimony on Wednesday, the judge also accepted a garbled and factually incorrect objection from the defense that the prosecution should not be allowed to zoom in on drone footage that showed the shooting of Rosenbaum, because the “pinch and zoom” function of an Apple iPad would fundamentally alter the original video.

“iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three-dimensions and logarithms,” Mark Richards, one of Rittenhouse’s lawyers, claimed. “It uses artificial intelligence, or their logarithms, to create what they believe is happening. So this isn’t actually enhanced video, this is Apple’s iPad programming creating what it thinks is there, not what necessarily is there.”

Instead of asking the defense to produce an expert witness to testify that this was the case, Schroeder told the prosecution that they would have to find a witness to say that that was not the case within 20 minutes, or they could not show the jury the zoomed-in footage.

The prosecutors then decided to show the video without zooming in, which made it more difficult to see something that was not captured in the video of the same scene Hernandez had submitted to the court: that Rittenhouse had turned around and pointed his rifle at Rosenbaum near the start of the chase.

The prosecutor argued that this was an important detail, since it showed that Rosenbaum had reason to fear for his life when he decided to charge at Rittenhouse in what appeared to be an attempt to disarm him before the fatal shooting.

Before breaking for lunch on Thursday, the judge also made a bizarre joke about when the “Asian food” he was expecting might arrive, saying that he hoped it was not still on a boat waiting to dock in a California port.

Updated: November 12, 2021
This article was updated to better explain that video of the fatal shooting of Joseph Rosenbaum by Kyle Rittenhouse recorded by Drew Hernandez, which was introduced as evidence in the trial, had been edited by Hernandez without the knowledge of prosecutors.

Contact the author:

robert.mackey@theintercept.com @RobertMackey on X

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