As we begin day three of the Kyle Rittenhouse Jury deliberations, two mistrial motions also hang in the air. The judge, Bruce Schroeder, has indicated the he won’t rule on the mistrial motions until a verdict comes back.
Long Jury Deliberations
For many, there was an expectation that there would be a quick acquittal as self defense. However, this case included A LOT of video and photographic evidence for the jury to consider. There is also the consideration of “provocation” introduced late in the trial.
The jurors must also wade through A LOT of misinformation presented by the prosecution. Such as, “You lose the right to self-defense when you’re the one who brought the gun,” assistant district attorney Thomas Binger told the jury.
The “provocation” charge comes from a drone video, entered into evidence at the last minute. After extensive enlargement, the prosecution alleged it showed Kyle Rittenhouse rasing and pointing his weapon at the Ziminski’s. According to the prosecution theory, this “provoked” Joseph Rosenbaum to attack Rittenhouse “in defense of others.
During Kyle Rittenhouse’s testimony he stated that when he arrived, he saw Joshua Ziminski brandishing a weapon. Though he testified that he did not raise his own firearm. The drone footage and its enlargement are at the heart of the defense’s mistrial motions.
The defense has called for a mistrial several times throughout the proceedings. A mistrial would give the prosecution the ability to refile charges and get another shot at putting Kyle Rittenhouse on trial again. However, the defense is seeking a mistrial “with prejudice.” With Prejudice means that the prosecution could NOT get a new trial.
Besides the misinformation presented by the prosecution stated above, prosecutors have been admonished on several issues throughout the trial. Some being constitutional violations, like questioning Kyle Rittenhouse’s “silence” since the events. The right to remain silent is his 5th Amendment and Miranda right. Questioning that silence in front of the jury is a major violation.
The prosecution pushed that envelope again in questioning why a witness would retain a lawyer before turning over video evidence. Which, again, is a protected right that cannot be questioned in front of the jury.
If that wasn’t enough, the prosecution also tried to bring in evidence, in open court, that had been previously ruled in admissable in pretrial. Which brings us to the late entry of the drone footage, enlargement and provocation allegation.
The previous misconduct on the part of the prosecution go towards the “with prejudice” part of the mistrial motions. Making the case that the prosecution is maliciously and intentionally trying to provoke a mistrial. Given the weakness of their case, the dismissal of two of the original lesser charges and testimony of their own witnesses that supports self defense, it’s not hard to imagine that they would like a do-over.
The “meat” of the mistrial motions revolves around the “provocation” drone video. One part being an allegation that the prosecution withheld evidence from the defense. The defense claims they were given a smaller, low resolution copy of the drone footage while the prosecution withheld, the larger, higher resolution version until after evidence introduction ended.
Yet, even the larger, higher resolution video, still had to be dramatically enlarged to show one frame of the video where Kyle Rittenhouse allegedly raised and pointed his rifle. Even with the enlargement, the defense described it as 20 hrs of hocus pocus to produce an out of focus image.
The other issue with the drone video is the enlargement itself. The defense claims that the manual for the software used to do the enlargement. They claimed it states that enlargement is for investigative purposes only and not to be used as evidence.
The drone footage and enlargement are the basis of the jury instruction that “provocation” could nullify Kyle Rittenhouse’s self defense claims. Therefore the jury could come back with a conviction, based on faulty or inadmissible “evidence of provocation.” Which would likely be overturned on appeal, especially in conjunction with the numerous other objected to missteps of the prosecution.
As it stands, at the time of this posting, the Rittenhouse trial could end in Acquittal, Mistrial With Prejudice and no retrial, Mistrial with potential retrial or conviction reversible on appeal.