Kyle Rittenhouse’s defense lawyers filed a motion on Monday asking for a mistrial due to prosecutorial misconduct, although it appears Judge Bruce Schroeder will not address the issue until the jury is finished deliberating.
Members of the jury started their deliberation process on Tuesday morning and are expected to again deliberate Wednesday. The defense’s motion to declare the case a mistrial with prejudice was filed before closing arguments were made on Monday.
If Rittenhouse, 18, is acquitted of the five felony charges stemming from the August 2020 shooting, the request will be rendered moot. The judge hasn’t held any arguments or rendered a decision yet over the motion.
Rittenhouse’s attorneys accused prosecutors of providing them with drone a recording that had a lower resolution than the one the state possesses. The prosecution argued that the footage allegedly shows Rittenhouse pointing his weapon at a bystander, which provoked the shooting.
Rittenhouse’s lawyers alleged that they only obtained the higher-quality clip from prosecutors on Saturday after their testimony concluded.
“The video footage has been at the center of this case,” the defense motion said. “The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant.”
Their mistrial motion also made reference to prosecutor Thomas Binger’s comments last week when he made reference to Rittenhouse not speaking to police after he was arrested. Schroeder last week admonished Binger over the move, claiming that he imperiled Rittenhouse’s Fifth Amendment right to remain silent.
“The problem is this is a grave constitutional violation for you to talk about the defendant’s silence. You’re right on the borderline—and you may be over—but it better stop,” the judge told Binger last week.
Further, the motion accuses Binger of violating the court’s order by telling Rittenhouse that “you have previously indicated that you wished you had your AR 15 to protect someone’s property.”
“I’m not sure why the judge has waited to rule” on the mistrial motion, Michael O’Hear, professor of criminal law at Marquette Law School, told the Journal-Sentinel on Schroeder’s decision not to make a decision. “It seems unlikely to me that he would have turned the case over to the jury if he expected to grant the mistrial.”
Schroeder on Wednesday responded to the comments in the Journal-Sentinel report, saying that he is “waiting for the state to respond” to the defense’s motion, while adding that he’s “somewhat astounded” by the report.
On Tuesday night after a day of deliberations, the jury hadn’t produced a verdict before Schroeder retired the 12 jurors around 5:50 p.m. CT.
Rittenhouse has pleaded not guilty for shooting two men and wounding another during a night of riots, protests, and arson attacks in Kenosha, Wisconsin, on Aug. 25, 2020, arguing that he acted in self-defense.
Rittenhouse, who was 17 during the time of the shooting, faces five felony charges. The most serious charge carries a mandatory sentence of life in prison.
During closing arguments, Assistant District Attorney Thomas Binger on Monday argued that Rittenhouse set the deadly chain of events in motion by bringing a semi-automatic rifle to a protest and menacing others, then walked off like a “hero in a Western.”
However, Rittenhouse lawyer Mark Richards countered that Rittenhouse was ambushed by a “crazy person” he feared would wrest away his gun and use it to kill him, referring to Joseph Rosenbaum. Other than Rosenbaum, he shot and killed Anthony Huber, 26, and wounded Gaige Grosskreutz, now 28.
The Associated Press contributed to this report.