Day 2 of jury deliberations in Kyle Rittenhouse trial ends with no verdict, motion for another mistrial

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Latest on the Kyle Rittenhouse trial: Click here for updates from day 3 of jury deliberations

The jury in the Kyle Rittenhouse murder trial will deliberate for a third day on Thursday as the judge overseeing the case weighs whether to declare a mistrial.

Rittenhouse's defense attorneys asked for a mistrial Wednesday after prosecutors conceded they'd sent a lower-quality copy of a potentially crucial video to the defense. It's the latest bit of drama in a case that has seen everything from shouting matches in court to tearful outbursts to backlash over off-hand jokes by the judge.

But the underlying questions that the case raises - such as the right to openly carry firearms in public and during protests - is being closely watched throughout the nation and the quest for a verdict is being followed throughout social media.

Jurors will reconvene at 9 a.m. local time Thursday to continue their deliberations.

Rittenhouse's lawyers' mistrial motion would allow for the case to be retried and is different from a motion they requested last week for a mistrial with prejudice, which would not allow for a new trial. The issue came up as jurors requested to review video evidence during their deliberations Wednesday.

Defense attorney Corey Chirafisi said they'd been given low-quality, grainy drone footage showing Rittenhouse opening fire the night of protests in Kenosha, Wisconsin, while prosecutors had a high-quality version that was played during the trial. Chirafisi said their team may have altered their defense based on the video and said it came down to fairness in a court of law, noting Rittenhouse could spend life in prison if convicted on the most serious charges.

"We would have done this case in a little bit different manner," he said. "We have to ask for this."

Assistant District Attorney James Kraus denied that he altered the video but said he believes the video was compressed when a detective emailed it. He said the better quality version was sent to their team via AirDrop, which kept the quality of the footage intact.

Judge Bruce Schroeder did not rule on the new mistrial motion nor has he weighed in on a previous call for one last week. He said he would allow the jury to review some of the video evidence on a laptop and allow deliberations to continue awhile. He added the mistrial request will have to be addressed if there is a guilty verdict.

"I persistently warned the state that there's a day of reckoning with respect to these things," Schroeder said, noting if the video should not have been admitted into evidence, “it’s going to be ugly."

Rittenhouse, 18, is charged with the first-degree intentional homicide of Anthony Huber, first-degree reckless homicide of Joseph Rosenbaum and attempted first-degree intentional homicide of Gaige Grosskreutz. He faces two reckless endangerment charges, and the jury can consider lesser charges on certain counts.

He would face a mandatory life sentence if convicted of the most serious charge.

The trial pitted two competing narratives of the night of Aug. 25, 2020, against each other. Defense lawyers said Rittenhouse, 17 at the time, was in Kenosha to help the community after nights of protest and killed two men and wounded another in self-defense. Prosecutors said the teenager was looking for trouble, armed with an AR-15-style rifle, and provoked the attacks, thereby losing any right to self-defense.

The protests took place after a white police officer shot Jacob Blake, a Black man, multiple times. Blake survived but was paralyzed from the waist down. The officer was cleared of any state or federal violations.

'Hot spots of division': Rittenhouse case, Arbery death trial reflect deepening political and racial divides

Judge blasts media over stories about no ruling on mistrial

After receiving the initial juror question over viewing video evidence, Schroeder commented on news stories that noted he had not ruled on the mistrial motion from the defense.

Rittenhouse's lawyers asked during the trial and again in writing for a mistrial with prejudice, meaning Rittenhouse could not be retired. The request is separate from the one argued Wednesday.

In addition to drone video allegations, the defense said Assistant District Attorney Thomas Binger commented on Rittenhouse's right to remain silent last week and tried to introduce evidence Schroeder did not allow in the trial.

Binger said his comments merely reflected that Rittenhouse might be able to tailor his testimony to what he'd heard during the trial. The prosecutor said he thought Schroeder had not issued a final ruling on the evidence he started to bring up.

Schroeder admonished him last week, yelling at the prosecutor after sending the jury out of the room.

More on mistrial motion: A jury is weighing the Kyle Rittenhouse case, but a mistrial motion is still pending. What happens?

Schroeder said Wednesday that he hadn't read the mistrial motion and heard only partial oral arguments in court.

A story in the Milwaukee Journal Sentinel, part of the USA TODAY Network, included comments from legal experts who called the lack of a ruling "odd."

"The only reason I can think of for waiting is perhaps he wants to give the jury a chance to acquit, so he doesn’t have to, but that’s speculation on my part," said Keith Findley, a professor at the University of Wisconsin Law School.

"I’m not sure why the judge has waited to rule," said Michael O'Hear, professor of criminal law at Marquette Law School. "It seems unlikely to me that he would have turned the case over to the jury if he expected to grant the mistrial."

“It’s just a shame that irresponsible statements are being made,” Schroeder said of comments in the Milwaukee Journal Sentinel story.

Schroeder also blasted other coverage of him during the trial, including that he allowed Rittenhouse to draw numbers for alternate jurors, a practice he said was common in his courtroom, and his decision to not allow those shot or killed by Rttenhouse to be called “victims."

Jury asks for extra copies of instructions; Rittenhouse draws numbers from tumbler

The jury asked no questions of Schroeder during their first day of deliberations Tuesday beyond requests for additional copies of their juror instructions.

Included in those instructions are the legal requirements the prosecution must meet to prove each charge and whether Rittenhouse provoked the shootings, as well as the requirements the defense must meet to prove self-defense.

Schroeder briefly raised eyebrows Tuesday when he allowed Rittenhouse to draw numbers from a tumbler to select the six alternates and set the final 12 jurors. The alternates will remain at the courthouse in case they are needed.

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.
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.

More on Schroeder: Kyle Rittenhouse judge has gotten his share of criticism. Can a judge be removed from a case? Not likely.

Schroeder said he has allowed defendants to perform such a move for the past 20 years. Though not illegal or unethical, the task is usually reserved for the clerk of courts, said Ion Meyn, an assistant professor at the University of Wisconsin Law School.

The jury consists of five males and seven females and 11 white people and one person of color. The six alternates are an even split of white males and females.

Deliberations ran from around 9:30 a.m. to 5:30 p.m. Tuesday. Schroeder said he would let jurors decide how late they wanted to stay.

How much prison time could Rittenhouse face?

If convicted of first-degree intentional homicide in Huber's death, Rittenhouse would face a mandatory life sentence. The modifier of "use of a dangerous weapon" in the charge carries an additional five years of prison time.

Lesser charges the jury can consider are second-degree intentional homicide and first-degree reckless homicide, which both carry up to 60 years in prison.

The first-degree reckless homicide in Rosenbaum's death carries up to 60 years in prison, plus five additional years for the "use of a dangerous weapon" modifier.

If convicted of attempted first-degree intentional homicide of Grosskreutz, Rittenhouse would face up to 60 years in prison, plus five years for the same weapon modifier.

The lesser charges the jury can consider are attempted second-degree intentional homicide and first-degree reckless endangerment charges, punishable by up to 30 years and up to 12½ years, respectively.

Each count of first-degree recklessly endangering safety, connected to the unidentified man and the Daily Caller reporter, carries up to 12½ years in prison, plus a five-year weapon modifier.

National Guard on standby as Kenosha waits on verdict

In anticipation of the potential for violence after a verdict, Gov. Tony Evers sent about 500 Wisconsin National Guard troops to the Kenosha area to be on standby.

The troops would help the "hundreds of officers from volunteering law enforcement agencies" if they need assistance in case of unrest, according to Evers' office.

Groups of demonstrators waited on word from the jury outside the courthouse Tuesday. Protesters chanted, "No justice, no peace" and held up signs.

Kenosha police and county sheriff's officers stand outside the Kenosha County Courthouse, Tuesday, Nov. 16, 2021 in Kenosha, Wis., during the Kyle Rittenhouse murder trial.
Kenosha police and county sheriff's officers stand outside the Kenosha County Courthouse, Tuesday, Nov. 16, 2021 in Kenosha, Wis., during the Kyle Rittenhouse murder trial.

"As of now, we really don’t have a lot of intel suggesting we’re going to have an issue down here," said Sgt. David Wright, spokesperson for the Kenosha County Sheriff's Department. "We’ve been working in contact with our local, state and federal law enforcement partners to ensure the safety of our community."

Wright noted Kenosha County Sheriff David Beth neither declared an emergency nor requested the National Guard.

"I’m sure it will be very nice to have that in place if we do need it," Wright said. "But we’re not anticipating to have any issues down here. Everyone who has been down here has been very cordial and not really showing any signs of aggression or anything like that."

Contributing: Molly Beck and Elliot Hughes, Milwaukee Journal Sentinel; The Associated Press

This article originally appeared on USA TODAY: Kyle Rittenhouse trial: Day 2 jury deliberations, motion for mistrial