Defence attorneys for Kyle Rittenhouse have accused the state attorneys of prosecutorial misconduct in their motion for a mistrial in the teenager’s double homicide case.
Mr Rittenhouse’s legal team, which signalled its intention to file the motion after Kenosha County Circuit Court Judge Bruce Schroeder lambasted prosecutors in his courtroom last week, has asked the judge to dismiss the case with prejudice so Mr Rittenhouse cannot be tried again.
Their request will be moot if the jury – now entering a second day of deliberations after meeting for more than eight hours on 16 November – decides to acquit Mr Rittenhouse of the five felony charges against him after he fatally shot two men and injured another in the aftermath of police brutality protests in Kenosha, Wisconsin last year. Judge Schroeder would then likely make a determination in the defence’s motion after the jury’s verdict.
The seven-page mistrial motion filed late Monday revives the defence’s objection to lines of questioning from Kenosha County Assistant District Attorney Thomas Binger during last week’s cross examination of Mr Rittenhouse, who took the witness stand in his own defence on 10 November.
Defence attorneys also accused prosecutors of using a drone-recorded video at a lower resolution than the one possessed by the state and shown to jurors.
Prosecutors have pointed to the video as evidence that Mr Rittenhouse provoked an already-chaotic scene by raising his AR-15-style rifle and pointing into the crowd before Joseph Rosenbaum, the first man Mr Rittenhouse killed, chased after him before he was shot four times.
Mr Rittenhouse, now 18 years old, faces five felonies, including first-degree reckless homicide, first-degree intentional homicide and attempted first-degree intentional homicide, and two counts of recklessly endangering safety in the first degree.
“The video footage has been at the centre of this case,” according to the motion. “The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant.”
Defence attorneys claim they were given a “compressed version of the video” that is “not as clear as the video kept by the state”.
Last week, Judge Schoeder assailed Kenosha County Assistant District Attorney Thomas Binger as the prosecution sought to question Mr Rittenhouse over pieces of evidence that were previously determined to be inadmissible in court.
He also chastised Mr Binger for his line of questioning into Mr Rittenhouse’s public silence in the months after the shootings and decision to not talk to police following his arrest.
Judge Schroeder dismissed the jury twice on Wednesday during cross examination, and warned Mr Binger that he was “bordering” on a “grave constitutional violation” as defendants cannot be questioned on their decision to remain silent.
The judge dismissed the jury a second time after Mr Binger appeared to discuss a video taken before the shootings on 10 August 2020 that allegedly shows Mr Rittenhouse saying he would shoot shoplifters, a statement that prosecutors have sought to prove that he was willing to use deadly force to protect property.
A motion by the prosecution to include the evidence earlier this year argued that the video “demonstrates that the defendant fervently sought to insert himself as an armed vigilante into situations that had nothing to do with him”.
During the trial, Mr Binger asked Mr Rittenhouse whether he “previously indicated that you wished you had your AR-15 to protect someone else’s property”.
Defence attorney Mark Richards accused Mr Binger of trying to provoke a mistrial by introducing evidence that was deemed inadmissible.
Mr Binger said he did not believe Judge Schroeder’s pretrial ruling on the evidence meant that it was “absolutely not coming in.”
“When you say you were acting in good faith, I don’t believe you,” Judge Schroeder replied.
On 17 November, Judge Schroeder said he does believes “motions to dismiss should be kept under advisement unless they’re crystal clear and they’ve had a chance for both parties to respond.”
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