Rittenhouse lawyers ask judge to declare mistrial over video

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.

Kyle Rittenhouse pulls numbers of jurors out of a tumbler during his trial at the Kenosha County Courthouse in Kenosha, Wis., on Tuesday, Nov. 16, 2021. The jurors selected through this process will not participate in deliberations. [Photo: Sean Krajacic/The Kenosha News via AP, Pool]

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 smaller compressed version of the video and didn't get the higher-quality larger one used by the prosecution until the evidence portion of the case was over.

He said that the defense would have approached things differently if it had received the better 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.

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 Jacob Blake, Black man, by a white police officer. 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. Rittenhouse is white, as were those shot. The case has become a flashpoint in the debate over guns, racial injustice, vigilantism and self-defense in the U.S.

He could get life in prison if convicted of the most serious charge against him.

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. The same footage prompted heated dispute earlier in the trial over technical questions of whether a still image taken from the video was distorted when it was enlarged.

The prosecution contends the video proves Rittenhouse lied on the stand when he said he didn’t point his rifle at protesters. But the key moment in the video is hard to decipher because of how far away the drone was and how small a figure Rittenhouse is in the frame.

A smaller file size or lower-resolution video file is fuzzier and grainier, particularly if played on a larger screen, said Dennis Keeling, adjunct professor in the cinema and television arts department at Columbia College Chicago. That’s why people working with video footage are careful to check file size, length and other details after making a copy to ensure the new version is what they wanted, he added.

Prosecutors told the judge Wednesday that the jury saw the highest-quality version during the trial and that it was not the state's fault that the file size got smaller when received by the defense.