Defence lawyers in the Wisconsin murder trial of Kyle Rittenhouse said on Wednesday they would ask for a mistrial because of a dispute with prosecutors over video evidence, as the jury watched footage of his shootings at protests last year.
Rittenhouse, 18, is charged with killing Joseph Rosenbaum, 36, and Anthony Huber, 26, and attempted homicide in the wounding of Gaige Grosskreutz, 28, during a chaotic night in Kenosha, Wisconsin, on August 25, 2020. The protests that night – marred by arson, rioting and looting – followed the police shooting of a Black man, Jacob Blake, who was left paralyzed from the waist down.
Rittenhouse has pleaded not guilty.
At issue in the trial is a drone video that shows Rosenbaum chasing Rittenhouse in the parking lot of a used-car dealership and the teenager turning and opening fire with his semi-automatic rifle as Rosenbaum gets close to him.
The prosecution made the video a central plank of their case to the jury, which is in the second day of deliberations on a verdict. They said it showed Rittenhouse pointing his rifle at protesters before the shooting erupted.
Rittenhouse’s lawyers accused the prosecution of withholding a high-definition version of the drone footage until Saturday, after the case was already closed to new evidence. Prosecutors said the video was likely compressed by the defence lawyer’s computers after it was sent to them.
Judge Bruce Schroeder did not immediately rule on the request, the second mistrial motion from the defence in a week.
Rittenhouse lawyer 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, a then-17-year-old former police youth cadet, said he went to Kenosha, Wisconsin, to protect property from rioters.
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 US.
The dispute over the video erupted after the jurors asked to rewatch footage on Day 2 of their deliberations.
Defence lawyers 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.”
Rittenhouse took the stand last week to argue that he only fired his weapon after the men attacked him. He said Rosenbaum, the first person he shot that night, grabbed the barrel of his rifle.
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 had 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 had just received it.
“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.
He sent the jury home on Wednesday after a second full day of deliberations.
Livestreamed, the Rittenhouse trial has emerged as the most closely watched case involving a civilian’s right to self-defence since George Zimmerman was acquitted in the fatal shooting of Trayvon Martin, an unarmed Black teenager, in 2013.
Like Zimmerman, Rittenhouse has become a polarizing figure, viewed as heroic by some conservatives who favour expansive gun rights and as a symbol of a reckless American gun culture by many on the left.
Kenosha has been on edge during the trial, and a small crowd of demonstrators assembled on the courthouse steps again on Wednesday, some holding signs in support of Rittenhouse and others calling for his conviction.