By MICHAEL TARM, SCOTT BAUER and AMY FORLITI
KENOSHA, Wisconsin (AP) – Kyle Rittenhouse’s lawyers asked the judge to declare a trial even as the jury in the murder case debated Wednesday, saying the defense received an inferior copy of a possibly decisive video from prosecutors.
Judge Bruce Schroeder did not immediately rule on the request, the defense’s second null and void trial in a week. The jury deliberated for a second full day without reaching a verdict and will return in the morning.
In question was a piece of drone video that prosecutors showed to the jury in closing arguments to undermine Rittenhouse’s self-defense claim and portray him as the instigator of the bloodshed in Kenosha in the summer of 2020. Prosecutors said the footage showed him. pointing his rifle at protesters before the shooting erupted.
Rittenhouse lawyer Corey Chirafisi said the defense initially received a smaller compressed version of the video and did not receive the higher-quality larger one used by the prosecution until the trial part of the case was over.
He said the defense would have handled things differently if it had received the best footage earlier and that it is now asking for a “level, fair playing field.”
He said the misdemeanor request would be made “without prejudice,” meaning prosecutors could still retry Rittenhouse.
Last week, the defense filed a lawsuit with prejudice, meaning Rittenhouse could not be tried again. That request was prompted by what the defense said were inappropriate questions asked by prosecutor Thomas Binger during his cross-examination of Rittenhouse.
Rittenhouse, 18, is on trial for manslaughter and attempted manslaughter for killing two men and injuring a third with an AR-style semi-automatic rifle during a tumultuous night of protests over the police shooting of Jacob Blake, a Black man, by a white man. police officer. Rittenhouse, a then-17-year-old former police youth cadet, said he went to Kenosha to protect property from rioters.
He shot and killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounded Gaige Grosskreutz, now 28. Rittenhouse is white, as were those shot. The case has become a hotbed in the debate over guns, racial injustice, surveillance and self-defense in the United States.
He could get a life in prison if convicted on the most serious charge against him.
The dispute over the video erupted after the jurors asked to respect footage on Day 2 of their deliberations.
Defense attorneys said they would oppose the jury watching the drone video. The same footage caused a heated dispute earlier in the lawsuit over technical questions as to whether a still image taken from the video was distorted when it was enlarged.
The prosecution claims the video proves Rittenhouse lied on the stand when he said he did not point his rifle at protesters. But the key moment in the video is hard to decipher because of how far the drone was and how small a Rittenhouse figure is in the frame.
A smaller file size or a lower resolution video file is more confusing and grainy, especially when played on a larger screen, said Dennis Keeling, an assistant professor in the film and television arts department at Columbia College Chicago. That’s why people working with video footage take care to check file size, length and other details after making a copy to make sure the new version is what they wanted, he added.
Prosecutors told the judge Wednesday that the jury saw the highest-quality version during the trial and that it was not the state’s fault that the file size was reduced when received by the defense.
“We’re focusing too much on technology failure,” said prosecutor James Kraus.
The judge said he had “doubts” about acceptance of the video during the trial, but since it had already been shown in court, he would allow the jury to respect it during consideration.
But if it turns out the video shouldn’t be accepted into evidence, “it’s going to be ugly,” Schroeder warned.
He said the unsolicited request will have to be dealt with if there is a guilty verdict.
If Rittenhouse is acquitted, the matter will be questionable. But if he is found guilty, an unsuccessful verdict would essentially invalidate the verdict.
Julius Kim, a Milwaukee-based defense attorney who observed the case, said a misdemeanor could be declared even if the judge finds it to be an honest mistake or a technical problem.
But to win a lawsuit, the defense will have to face a high bar and explain to the judge why what happened actually injured Rittenhouse, said Ion Meyn, an assistant professor at the University of Wisconsin Law School.
“You can’t just say,‘ The state gave me a poor quality video and that’s why I get a lawsuit, ’” Meyn said. “That’s a losing argument for sure.”
Earlier in the day, the judge criticized news coverage of the case and a second guess from legal experts in the media, saying he would “think long and hard” about allowing television trials in the future.
He made an exception to news of his decisions not to allow the Rittenhouse men shot to be called “victims” and to let Rittenhouse draw the lots that determined which jurors were substitutes. The judge also complained of criticism that he had yet to judge on the earlier misdemeanor.
Schroeder said he did not have a chance to read the motion because he had just received it and wanted to give the state a chance to weigh in.
“It’s just a shame that irresponsible statements are being made,” the judge said in comments in a Milwaukee Journal Sentinel story by law professors.
Forliti reported from Minneapolis; Bauer of Madison, Wisconsin. Associated Press writer Tammy Webber contributed from Fenton, Michigan; Kathleen Foody from Chicago.
Find the full AP coverage of the Rittenhouse trial: https://apnews.com/hub/kyle-rittenhouse