KENOSHA, Wis. — Kyle Rittenhouse’s attorneys asked the judge to declare a mistrial even as the jury in the murder case was deliberating Wednesday, saying the defense received an inferior copy of a potentially crucial video from prosecutors.
Judge Bruce Schroeder did not immediately rule on the request, the second mistrial motion from the defense in a week. The jury deliberated a second full day without reaching a verdict and will return in the morning.
At issue was a piece of drone video that prosecutors showed to the jury in closing arguments in a bid to undermine Rittenhouse’s self-defense claim and portray him as the instigator of the bloodshed in Kenosha in the summer of 2020. Prosecutors said the footage showed him pointing his rifle at protesters before the shooting erupted.
Rittenhouse attorney Corey Chirafisi said the defense initially received a compressed version of a video and didn’t get the higher-quality one used by the prosecution until the evidence portion of the case was over.
He said the defense would have approached things differently if it had received the superior footage earlier and that it is now asking for “a level, fair playing field.”
He said the mistrial request would be made “without prejudice,” meaning prosecutors could still retry Rittenhouse.
Last week, the defense asked for a mistrial with prejudice, meaning Rittenhouse could not be put on trial again. That request was prompted by what the defense said were improper questions asked by prosecutor Thomas Binger during his cross-examination of Rittenhouse.
Jurors were weighing charges against Rittenhouse for a second day after they failed to reach a swift verdict Tuesday on whether he was the instigator of a night of bloodshed in Kenosha or a concerned citizen who came under attack while trying to protect property.
About two hours into deliberations Wednesday, jurors asked to view video shown earlier in the trial, and Judge Bruce Schroeder said he would determine the procedures to allow that.
Binger said jurors should be able to view any video they wanted as many times as they wanted, and the judge seemed to agree.
“Sometimes there is one piece of evidence that is absolutely critical. ... To me, if they want to watch it 100 times, that’s them,” Schroeder said.
But defense attorneys said they would object to the jury viewing video taken by a drone that prosecutors said showed Rittenhouse pointing his gun at protesters before the shootings. The image prompted heated dispute earlier in the trial over technical questions about whether enlarging images notably changes them.
Both sides agreed with loading the videos that jurors wanted to see onto a computer for them to view in the jury room. The judge — who said he was “queasy” about allowing the drone video — said jurors hadn’t asked to rewatch that video, but prosecutors said they did.
Earlier Wednesday, Schroeder took exception to news stories about his decisions to not allow the men Rittenhouse shot to be called victims and to allow Rittenhouse to play a minor role in determining which jurors were alternates, and the fact that he had not yet ruled on a defense motion for a mistrial.
Schroeder said he hasn’t read the motion because he just received it Tuesday.
“It’s just a shame that irresponsible statements are being made,” Schroeder said of comments in a Milwaukee Journal Sentinel story from law school professors about him not ruling on the mistrial motion.
The case went to the anonymous jury after Schroeder allowed Rittenhouse to reach into a raffle drum and draw numbered slips that determined which of the 18 jurors who sat through the case would deliberate and which ones would be dismissed as alternates.
That task is usually performed by a court clerk, not the defendant. Schroeder has said he has been having defendants do it for at least 20 years.
“I would admit that there are not a large number of courts that do that, maybe not any,” Schroeder said Wednesday.
Rittenhouse, 18, faces life in prison if convicted as charged for using an AR-style semi-automatic rifle to kill two men and wound a third during a night of protests against racial injustice in Kenosha in the summer of 2020. The former police youth cadet is white, as were those he shot.
Rittenhouse testified he acted in self-defense, while prosecutors argued he provoked the violence. The case has become a flashpoint in the U.S. debate over guns, racial justice protests, vigilantism, and law and order.
The jury appeared to be overwhelmingly white. Prospective jurors were not asked to identify their race during the selection process, and the court did not provide a racial breakdown.
As the jury deliberated, dozens of protesters — some for Rittenhouse, some against — stood outside the courthouse. Some talked quietly with those on the other side, while others shouted insults. One woman could be heard repeatedly calling some Rittenhouse supporters “white supremacists.”
Wisconsin Gov. Tony Evers, who faced criticism over his response to the Kenosha protests in 2020, urged calm as the jury deliberated. He announced last week that 500 members of the National Guard would stand ready for duty in Kenosha if needed.
“Regardless of the outcome in this case, I urge peace in Kenosha and across our state,” Evers tweeted. He added: “I ask all those who choose to assemble and exercise their First Amendment rights in every community to do so safely and peacefully.”
The large protests that some had anticipated did not materialize during the trial’s testimony phase. On most days, only a few demonstrators gathered on the courthouse steps, and the high fence that protected the building during last year’s unrest is gone.
Rittenhouse was 17 when he went to Kenosha from his home in Antioch, Illinois, in what he said was an effort to protect property from rioters in the days after a Black man, Jacob Blake, was shot by a white Kenosha police officer.
In a fast-moving series of clashes in the streets, Rittenhouse shot and killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounded Gaige Grosskreutz, now 28.
During closing arguments Monday, Binger said Rittenhouse was a “wannabe soldier” who set the deadly chain of events in motion by bringing a rifle to a protest and pointing it at protesters just before he was chased.
But Rittenhouse lawyer Mark Richards countered that Rittenhouse was ambushed by a "crazy person" — Rosenbaum.
Rittenhouse testified that Rosenbaum chased him down and made a grab for his rifle, causing him to fear the weapon was going to be used against him. His account of Rosenbaum’s behavior was largely corroborated by video and some of the prosecution’s own witnesses.
As for Huber, he was gunned down after he was seen on video hitting Rittenhouse with a skateboard. And Grosskreutz admitted he had his own gun pointed at Rittenhouse when he was shot.
In his instructions to the jury, Schroeder said that to accept Rittenhouse’s claim of self-defense, the jurors must find that he believed there was an unlawful threat to him and that the amount of force he used was reasonable and necessary.