KENOSHA, Wis. (CN) — Kyle Rittenhouse’s defense attorneys again asked for a mistrial on Wednesday, adding precarity to proceedings in the middle of the jury’s second day of deliberations over the charges against the 18-year-old, including first-degree murder.
Chiefly at issue in the second mistrial motion is the veracity of late-arriving drone video evidence brought by the state, which offered the clearest view of Rittenhouse, then 17, shooting Joseph Rosenbaum, 36, the first of three people he shot at a Kenosha, Wisconsin, protest last year.
Corey Chirafisi, a defense attorney from Madison, argued before Kenosha County Circuit Court Judge Bruce Schroeder that it is unfair that the defense was initially provided with a compressed copy of the disputed video of lower quality than the copy the state brought into evidence on Friday and played for the jury during Monday’s closing arguments. The defense would have approached the case differently if they had the same quality video as the state, Chirafisi said.
In order to have both sides on a “level, fair playing field,” Chirafisi said the defense had to ask for a mistrial, especially because Rittenhouse faces a life sentence without parole if convicted of first-degree homicide. He conceded the motion would be without prejudice, meaning prosecutors could bring back the charges against Rittenhouse if Schroeder grants the request.
“It’s not debatable that it’s not fair what happened,” Chirafisi said. “We can sit here all day and say, ‘it’s been played.’ We didn’t know there was another version [of the drone video]. How is that reasonable?”
The judge agreed to let the jury revisit all the video evidence they have asked for and will allow them to view it as many times as they want in the emptied courtroom but reiterated that he has been “queasy” about the disputed drone video from the beginning.
The hotly contested evidence, the state says, shows Rittenhouse raising his gun at protesters right before Rosenbaum pursued him before being shot. The defense disputes not only the reliability of the video but that it shows such action at all, saying it appears Rittenhouse’s AR-15 is on his left side in the video, not on his right as it should be.
Assistant Kenosha County District Attorney James Kraus traced the chain of custody of the disputed video, saying it changed file names and got compressed as it changed hands from the detective who first received it to the attorneys. The prosecutor said the “unknown technological incident” should not result in a mistrial and reemphasized the video proves Rittenhouse lied on the stand when he said he never pointed his gun at protesters.
Despite not declaring a mistrial for now and allowing the jury to see all the video evidence again as they deliberate, Schroeder was disquieted by more snags arising over the drone video.
“I persistently warned the state that, you know, there’s a day of reckoning with respect to these things,” the judge said. Despite his misgivings, he let the video into evidence, and he said they might as well move forward for now.
“If they’ve got everything correct and it’s reliable, then they won’t have a problem. If it isn’t, it’s going to be ugly,” Schroeder said.
The defense’s first mistrial motion, filed with prejudice, came one week ago as Rittenhouse himself testified when Assistant Kenosha County District Attorney Thomas Binger seemed to impeach Rittenhouse’s silence ahead of his trial. Binger also alluded to an incident two weeks before the shootings, captured on video, when Rittenhouse said he wished he had his AR-15 to shoot what he thought were shoplifters at a CVS.
The move prompted Schroeder to clear the jury and excoriate Binger for violating basic, well-established law regarding a defendant’s right to remain silent and for bringing up the CVS incident even though it had been barred as evidence. Binger backed off the lines of inquiry after the judge’s rebuke.
Schroeder on Wednesday did not bring up the first mistrial motion and seemed warily intent on letting the trial proceed with both mistrial motions pending. They still could be very consequential, particularly if Rittenhouse is convicted.
After 11 days of testimony and arguments from attorneys, the jury spent all day on Tuesday deliberating the five felony charges against Rittenhouse, which include intentional and reckless homicide and reckless endangerment.
Schroeder tossed a citation Rittenhouse faced for violating an emergency curfew in place on the night of the shootings. He also dismissed the protest shooter’s misdemeanor gun charge, agreeing with the defense that he was not explicitly breaking state law by publicly wielding an AR-15 as a 17-year-old.
In addition to Rosenbaum, the teenager shot and killed Anthony Huber, 26, and injured 28-year-old Gaige Grosskreutz on Aug. 25, 2020, during unrest in the small southeastern Wisconsin city sparked after Jacob Blake, a then 29-year-old Black man, was shot seven times by a white Kenosha police officer responding to a domestic disturbance two days earlier.
Rittenhouse’s attorneys say he shot all three in self-defense. He shot Huber and Grosskreutz, they say, while being chased and attacked by a crowd of protesters after shooting Rosenbaum, who Rittenhouse testified chased and threatened to kill him.
The prosecution has painted Rittenhouse, a former youth police cadet, as a chaos tourist who got in over his head acting like a vigilante and unreasonably used deadly force when there was no imminent threat to his life.
Schroeder himself has drawn criticism for his personal quirks and rulings, including his refusal to allow attorneys to refer to the people Rittenhouse shot as “victims” and letting Rittenhouse himself randomly select alternate jurors from a bingo-style tumbler. The judge on Wednesday defended both as longtime rules of his, reiterating that the term “victim” is prejudicial to the accused and that he has let defendants select jurors in the manner Rittenhouse did for decades.
The judge on Wednesday criticized what he said was faulty media coverage of the trial and himself and said he will “think long and hard” about televising trials in the future.
Protesters both for and against Rittenhouse have occupied the Kenosha County Courthouse steps during proceedings since at least Monday. Clashes in the crowds, varying from just a few people to a couple dozen, have been tense but largely not physical.
The court broke for the day on Wednesday at 4:30 p.m. The jury—consisting of seven women and five men, including one person of color—will reconvene at 9 a.m. Thursday for further deliberations.
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