As the jury in the Kyle Rittenhouse trial started its second full day of deliberations, two arguments for a mistrial remained in play before the Wisconsin court.
Rittenhouse’s attorneys asked for a mistrial with prejudice (meaning, if granted, the state could not refile charges) after they claimed prosecutors withheld key video footage shown to the jury that is at the heart of their self-defense argument. They also accused prosecutors of trampling on Rittenhouse’s Fifth Amendment right to remain silent and blasted Assistant District Attorney Thomas Binger for attempting to introduce information that was already ruled inadmissible at a pretrial hearing.
Even though Rittenhouse’s attorneys demanded a mistrial several days ago, they filed a seven-page request less than an hour before closing arguments began on Monday.
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Circuit Judge Bruce Schroeder has not ruled on the motion and seemed to indicate he would do so after the jury reached a verdict. If the jury acquits Rittenhouse, the mistrial motion becomes moot. If the jury returns with a conviction on any of the five criminal counts against him, Schroeder would then have to make a ruling that could potentially clear the Illinois teenager of the charges brought against him.
About two hours into deliberations on Wednesday, jurors asked to view video presented at the trial.
Binger said jurors should be able to view any video they want as many times as they want. Defense attorney Mark Richards said he would object to the jury viewing a high-resolution video taken by a drone, which is at the center of his mistrial motion. That video is a clearer version of one shown during the trial and was only played for the jury during the prosecution’s closing argument. That move provided part of the basis for the defense’s motion for a mistrial.
“If they want to see that, that’s just tainting this jury more,” Richards said.
Ultimately, Schroeder sided with the prosecution and agreed to let the jury view some of the footage they requested, including two videos from when Rittenhouse shot Gaige Grosskreutz in the arm. The decision came about two and a half hours after the jury first asked how it could review the footage.
Schroeder, who said earlier he hadn’t read the defense’s mistrial motion yet and wanted to give prosecutors time to respond formally, also went off on a six-minute rant on media coverage of the trial that ended with him saying he might rethink allowing live television cameras in his courtroom in the future.
His actions, or, in this case, inaction, in the mistrial motion have created a media firestorm around the judge.
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Keith Findley, the co-founder of the Wisconsin Innocence Project, described Schroeder’s decision not to rule on the motion before the case went to the jury as “odd.”
Michael O’Hear, a criminal law professor at Marquette Law School, told the Milwaukee Journal Sentinel he wasn’t sure why Schroeder decided to wait.
“It seems unlikely to me that he would have turned the case over to the jury if he expected to grant the mistrial,” he said.
Rittenhouse, 18, is on trial for fatally shooting two people and injuring a third during a night of unrest, stemming from the outrage over a white police officer in Kenosha, Wisconsin, shooting a black man seven times in the back. He faces five counts, including first-degree intentional homicide, for killing Joseph Rosenbaum, 36, and Anthony Huber, 26. He also shot and wounded Gaige Grosskreutz. Rittenhouse testified that he felt his life was on the line and acted in self-defense. Prosecutors claimed Rittenhouse went to Kenosha looking for a fight.
According to the latest mistrial motion, prosecutors withheld high-definition drone footage from the defense, only sharing it with them after the deadline for evidence expired on Saturday.
Prosecutors initially gave the defense a grainy, hard-to-see version in a 3.6 MB file, less than a third of the high-resolution file they actually had available. The defense had an 11.2 MB version of the file that they showed the jury during closing arguments.
The evidence is considered crucial by the state because it seems to show Rittenhouse was pointing a gun at demonstrators before he faced any harm.
The defense claims it was not given the opportunity to analyze the footage.
“The video footage has been at the center of this case,” the mistrial motion states, according to the Chicago Tribune. “The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant.”
The motion also rehashes arguments from last week when defense attorneys accused Binger of prosecutorial misconduct for trying to sidestep Schroeder’s earlier ruling on inadmissible evidence, as well as comments he made about Rittenhouse’s refusal to speak to police after his arrest.
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The defense, which noted in its motion that the case has “not gone very well for the prosecution,” accused Binger of acting in “bad faith.”
“We know that because he attempted to inform the court of his good faith basis for asking questions regarding inadmissible evidence and was told ‘I don’t believe you,’ (by the judge).”
