Jurors in the the homicide trial of Kyle Rittenhouse ended a second day of deliberations with no verdict, and will return to Kenosha County courthouse for a third day on Thursday.
Rittenhouse attorney Corey Chirafisi told Judge Bruce Schroeder that the defense will ask for a mistrial without prejudice over a dispute regarding a drone video.
If a mistrial without prejudice is declared by the judge, the state would be able to retry the case. Rittenhouse, if convicted of the most serious charge, faces a mandatory life sentence in the shooting deaths of two individuals on the night of Aug. 25, 2020.
Earlier this week, his lawyers originally motioned for a mistrial with prejudice because the “prosecution gave the defense a compressed version of the video,” which “was not as clear as the video kept by the state.” They also raised other issues in their motion, including prosecutor Thomas Binger’s line of questioning of Rittenhouse last week that, according to the defense, violated his Fifth Amendment right to remain silent.
Rittenhouse’s lawyers further said they were handed a drone-captured video that “was only 3.6 megabytes, while the state had a higher resolution version that was 11.2 megabytes.”
During Wednesday’s court proceeding, district attorney James Kraus said the difference in videos was due to a technological error. The video, he argued, was compressed because it was transferred from an iPhone to an Android smartphone.
Because of the glitch, the state can’t be held responsible for “something that happened in the transfer that we had no knowledge of,” Kraus argued. “We didn’t compress anything; we didn’t change anything,” he told the judge.
But lawyer Corey Chirafisi said that the defense “didn’t have the quality of evidence that the state had until the case had been closed.”
And “to not get that until the evidence has been closed, that doesn’t strike me as fair,” he told the judge, pointing out that ”this is a potential life sentence here.”
Another defense attorney, Natalie Wisco, said that the video she was sent had a different file name than the original one. The prosecution wasn’t telling the truth, she said, which was disputed by Kraus.
Following the back-and-forth arguments, Schroeder didn’t immediately rule on the mistrial motion but indicated may call in an expert to testify under oath from the attorneys to determine what actually occurred.
The video in question shows Joseph Rosenbaum chasing Rittenhouse in the parking lot of a used-car dealership before the teen turned and opened fire as Rosenbaum approaches him. Prosecutors heavily relied on that video to argue that Rittenhouse provoked the incident that triggered the chain of events.
Members of the jury on Wednesday asked to review the drone video and other videos of both the Rosenbaum shooting and the subsequent shootings of Huber and Grosskreutz. Schroeder cleared the courtroom for the jurors, who were to watch the videos on a large screen TV just outside the jury box.
