Kyle Rittenhouse, left, and his attorney Corey Chirafisi stand up after meeting with Judge Bruce Schroeder for questions on a video the jury has asked for while they deliberate at the Kenosha County Courthouse in Kenosha, Wis., on Nov. 17.POOL/Reuters
Kyle Rittenhouse’s attorneys asked the judge to declare a mistrial even as the jury was deliberating Wednesday, saying the defence 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 defence in a week.
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-defence claim and portray him as the aggressor. Prosecutors said it showed him pointing his rifle at protesters before the shooting erupted.
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Rittenhouse attorney Corey Chirafisi said the defence initially received a compressed version of a video and didn’t get the higher-quality one used by the prosecution until the evidentiary portion of the case was over.
He said that the defence 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.
Rittenhouse, 18, is on trial on homicide and attempted homicide charges for killing two men and wounding a third with an AR-style semi-automatic rifle during a tumultuous night of protests over the police shooting of a Black man in the summer of 2020.
Rittenhouse, a then-17-year-old former police youth cadet, said he went to Kenosha to protect property from rioters.
He shot and killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounded Gaige Grosskreutz, now 28.
He could get life in prison if convicted of the most serious charge against him.
Rittenhouse is white, as were those shot. The case has become a flashpoint in the debate over guns, racial injustice, vigilantism and self-defence in the U.S.
The dispute over the video erupted after the jurors asked to rewatch footage on Day 2 of their deliberations.
Defense attorneys said they would object to the jury viewing the drone video, which prompted heated dispute earlier in the trial over technical questions of whether the image was altered when it was enlarged.
Prosecutors countered Wednesday that the jury saw the highest-quality version during the trial and that it was played without objection.
Prosecutor James Kraus said it was not the fault of prosecutors that the file got compressed when received by the defence: “We’re focusing too heavily on a technological glitch.”
The prosecution contends the video proves Rittenhouse lied on the stand when he said he didn’t point his rifle at protesters.
The judge said he had “qualms” about admitting the video during the trial, but because it had already been shown in court, he would allow the jury to rewatch it during deliberations.
But if it turns out the video should not have been admitted into evidence, “it’s going to be ugly,” Schroeder warned.
He said the mistrial request will have to be addressed if there is a guilty verdict.
Earlier in the day, the judge criticized news coverage of the case and second-guessing from legal experts in the media, saying he would “think long and hard” about allowing televised trials in the future He took exception to news stories about his decisions not to allow the men Rittenhouse shot to be called “victims” and to let Rittenhouse draw the lots that determined which jurors were alternates. The judge also complained about criticism that he had yet to rule on the earlier defence request for a mistrial.
Schroeder said he hadn’t had a chance to read the motion because he just received.
“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.
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