By Jenn Selva and Kelly McCleary, CNN
(CNN) -- The men shot by Kyle Rittenhouse in August 2020 can potentially be referred to at his trial as "rioters" or "looters," a Wisconsin judge said Monday while reiterating his long-held view that attorneys should not use the word "victim."
Defense lawyers maintain the young man acted in self defense when he fatally shot two protesters in Kenosha, Wisconsin. The protesters were shot during a demonstration against the police shooting of a Black man. Rittenhouse was among armed civilians who said they were there to protect businesses after nights of arson and looting.
"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," Kenosha County Circuit Judge Bruce Schroeder said during the pre-trial hearing.
Schroeder has had a longstanding rule of not allowing prosecutors to refer to people as "victims" at trial.
Rittenhouse is charged with felony homicide related to the shooting and killing of Anthony M. Huber and Joseph Rosenbaum and felony attempted homicide for allegedly wounding Gaige Grosskreutz during protests that followed the police shooting of Jacob Blake in August 2020.
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 has pleaded not guilty.
The debate Monday over the use of terms in court could foreshadow contentious proceedings when the trial gets underway for the teen accused in the deadly shooting that unfolded during a summer of racial justice protests across the country.
On Monday, Rittenhouse's legal team and prosecutors attended a pretrial hearing to review outstanding issues before jury selection begins on November 1.
The conversation turned to whether defense attorneys would be allowed to refer to Huber, Rosenbaum and Grosskreutz as arsonists, rioters or looters due to their alleged behavior during the chaotic and fiery demonstrations.
"I don't think I'm inclined toward prior restraint," Schroeder said.
But Assistant District Attorney Thomas Binger argued the judge was setting up a "double standard" due to his rule on the use of referring to people as "victims" at trial.
"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 said.
But Binger disagreed, telling the judge, "I think it's the exact same issue. The terms that I'm identifying here, such as 'rioters,' 'looters,' 'arsonists,' are as loaded, if not more loaded, than the term 'victim.'"
The debate over labels and how they may inform the jury's impression of those at the center or the trial gets to the heart of the defense's argument that Rittenhouse opened fire that night to protect himself.
'Unnecessary and unfortunate' start to 'really important case'
CNN legal analyst Areva Martin called the judge's decision "incomprehensible."
"Even if these individuals who were shot were involved in rioting and looting, the evidence, what we hear to date, is that [Rittenhouse] didn't know that," she told CNN Wednesday.
"He didn't have that information when he pulled the trigger and shot these three individuals, killing two. So his state of mind is what's on trial. And the fact that he didn't know that they were involved in this activity makes ... that evidence irrelevant."
Martin said "rioter" and "looter" were "loaded" and "pejorative" terms that suggested the victims "deserve what they got. They deserve to be shot and even deserved to die."
With his decision, Martin said, the judge is "definitely signaling something to these jurors" and appeared to be "leaning towards supporting the defense."
CNN chief legal analyst Jeffrey Toobin said allowing use of "rioters" and "arsonists" to describe the dead men "should help Rittenhouse's defense a great deal."
"It's a very troubling situation because ... using that word suggests that Rittenhouse was justified in what he was doing because these were bad people that he shot," Toobin said. "They were committing crimes. They were out there looting. They were out there being arsonists when that is very much in dispute in the trial, what these people were doing."
He added, "The whole issue here is whether Kyle Rittenhouse was a vigilante and whether he was ... acting out of racial animus, and to essentially convict his victims in advance of the trial of looting, of arson, of crimes for which they are, you know, as dead people they can't be charged, it's really troubling and a really unnecessary and unfortunate beginning to this really important case."
Shots fired amid chaotic scene
Numerous videos taken during the protests show Rittenhouse, wearing a green T-shirt and a backward baseball cap and carrying an AR-15-style rifle, walking the city's streets with a group of armed men.
According to the criminal complaint against Rittenhouse, which is based on videos and witness accounts, the situation turned deadly after the teenager scuffled with protesters near a car dealership. He allegedly shot Rosenbaum, a 36-year-old unarmed protester, after Rosenbaum threw an object that appeared to be a plastic bag at him and missed.
As Rosenbaum lay on the ground, the complaint says, Rittenhouse ran away while calling a friend and telling them, "I just killed somebody." He was pursued by protesters, and then tripped and fell to the ground.
While he was 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 says.
After the shooting, Rittenhouse walked by police with his hands up, bystander videos show, and he turned himself in at his local police department the morning after the shooting.
Binger, the prosecutor, argued Monday that any behavior Rosenbaum, Huber or Grosskreutz may have participated in that night that could lead the jury 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, it's designed to paint them in the worst possible light to prejudice them. Two of them can't defend themselves ... because the defendant killed them. And it's unduly prejudicial to the jury to be told about any of those things."
But a defense attorney said the shootings should be weighed against the wider context of what was happening that night.
"All of that lawlessness, all of the facts and circumstances surrounding what is going on, is relevant in terms of Kyle Rittenhouse's conduct. I think it's impossible to say that it's not."