As the jury deliberated for a second day in the criminal trial of Kyle Rittenhouse, the 18-year-old who fatally shot two people during unrest last year in Kenosha, Wis., defense attorneys petitioned for a mistrial over a key piece of video evidence that could be crucial to the prosecution's case.
The mistrial request — which is the defense's second of the trial — came Wednesday afternoon after jurors asked to review a handful of videos from the case.
That included a video introduced by prosecutors halfway through the trial. Filmed by a drone from roughly a block away, the footage shows an overhead view of the first deadly incident on the night of Aug. 25, 2020, in which Rittenhouse fatally shot Joseph Rosenbaum, 36, after being chased through a used car lot.
The video, which was shown to the jury during prosecutors' closing statements on Monday, is key to their argument that Rittenhouse provoked the encounter with Rosenbaum by pointing his AR-15-style rifle near him, prompting him to chase Rittenhouse. Rittenhouse testified that he feared Rosenbaum would steal his gun and use it to shoot him.
The jurors spent 46 minutes Wednesday reviewing the drone video and other video evidence, including another recording of Rittenhouse's encounter with Rosenbaum filmed from overhead by an FBI aircraft.
Why the defense is calling for a mistrial
At the crux of the defense's mistrial request Wednesday was a difference in video quality between the prosecution's version of the drone video file, and what was given to Rittenhouse's attorneys.
Although the footage had appeared on Fox News during an interview with Rittenhouse's original defense attorney just days after the shootings, neither prosecutors nor Rittenhouse's current lawyers had been able to track it down before the trial began.
Then, halfway through the trial, a person who refused to give his name came to the prosecutors' office in Kenosha County with the video, said Assistant District Attorney James Kraus in court Wednesday.
Prosecutors conceded that the video file was inadvertently compressed when they attempted to send it to Rittenhouse's defense team. The file size, according to Natalie Wisco, a defense lawyer, had shrunk from 11.2 megabytes to 3.6, an indication that the file had lost some of its visual quality.
Defense lawyers said they did not realize there was a difference until after testimony ended last week.
"We would have done this case in a little bit different manner if that was the situation ... where we didn't have the quality of evidence the state had until the case had been closed," said defense attorney Corey Chirafisi as he called for a mistrial.
Chirafisi added that they would ask for a mistrial without prejudice, meaning that, if granted, Rittenhouse could be tried again.
"But then I think we will all have the same information, the same quality of videos, and I think that is required in a case like this where he's looking at a life sentence potentially without parole if he's convicted," he said. "And to not get that until the evidence has already been closed? That doesn't strike me as fair."
Prosecutors called the difference unintentional
Prosecutors replied that it was an honest mistake, and that the defense lawyers were only objecting now because Rittenhouse testified that he had not pointed his gun at anybody until after Rosenbaum began to chase him.
"We didn't compress anything. We didn't change anything. That would have been something that happened in the transfer that we have no knowledge of. We of course did not mean to give them a different copy," said Kraus.
Judge Bruce Schroeder said he had "qualms" about the video, but still allowed jurors to review it. He did not rule on the mistrial request.
"My view on it now is, where we are — we might as well follow through with it, and if they've got everything correct and it's reliable, then we won't have a problem. And if it isn't, it'll be ugly," Schroeder said.
Jurors also asked Wednesday to review several other videos, including bystander footage of Rittenhouse shooting Anthony Huber, 26, and Gaige Grosskreutz, then 26, and a video filmed by Grosskreutz as he spoke briefly to Rittenhouse in the moments after shooting Rosenbaum. Grosskreutz survived the shooting, but Huber was killed. They have not yet reviewed that footage.
The jury has now spent roughly 16 hours in deliberation
Jurors deliberated for about 7.5 hours Wednesday after roughly 8.5 hours of deliberation on Tuesday.
Deja Vishny, a criminal defense attorney based in Wisconsin who is not involved in the case, said lengthy deliberations are not unusual.
"With this many counts, it's not a surprise that they have come to a lengthy period of discussion," Vishny said.
Rittenhouse faces five felony counts for the shootings. The most serious charge — first-degree intentional homicide — carries a mandatory sentence of life in prison. Jurors may also consider lesser versions of the charges related to Huber and Grosskreutz.
When jurors consider lesser charges in Wisconsin, they must first attempt to reach a unanimous conclusion on the most serious charge, Vishny said. Only when they cannot can they move on to the second most, then the third most. "That can be a very time-consuming process," she said.
The defense had previously called for a mistrial after lead prosecutor Thomas Binger was admonished by the judge for two lines of questioning while cross-examining Rittenhouse. The judge has not ruled yet on that motion.