Kyle Rittenhouse defense team seeks mistrial, claiming prosecutorial misconduct

KENOSHA, Wis. — As Kyle Rittenhouse’s jury officially began its deliberations Tuesday, a piece of unfinished business still hung over the case.

The defense filed a motion ahead of Monday’s closing arguments asking for a mistrial based on prosecutorial misconduct. The request will be moot if the jury — which began deliberations at 9:15 a.m. local time — acquits Rittenhouse of the five felony charges against him, so it appears the judge will not address the issue until after deliberations.

Eighteen jurors listened to the case, though only 12 have been tapped to reach a verdict. Before deliberations began, Rittenhouse on Tuesday pulled six numbers from an old-fashioned lottery tumbler that is original to the 100-year-old courtroom, and those six people were designated as alternates.

The deliberating panel includes seven women and five men. The jurors did not identify themselves by race, but the jury appears to be predominantly white.

The mistrial motion rehashes an issue that arose last week when the judge berated an assistant district attorney for ignoring a pretrial order that barred the jury from hearing certain evidence and for infringing on Rittenhouse’s right to remain silent upon his arrest. It also levels a new accusation at prosecutors, accusing them of not properly sharing a piece of video evidence.

There has been no mention of the defense motion in court since it was filed.

Rittenhouse, then 17, fatally shot Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreutz while ostensibly guarding a used car lot and providing first aid services amid Kenosha’s August 2020 unrest surrounding the shooting of Jacob Blake, a Black man, by a white police officer.

Rittenhouse has pleaded not guilty, saying he acted in self-defense.

In its seven-page motion for a mistrial, the defense accused the prosecution of providing a drone recording at a lower-resolution than the one the state possesses and showed to the jury. The state has argued the drone recording, which was received after the trial had begun, is key to proving Rittenhouse provoked the shootings by first pointing his gun at a bystander.

Prosecutors say Rosenbaum chased Rittenhouse across a used car lot before the teen turned and shot him four times with an AR-15-style rifle.

“The video footage has been at the center of this case,” the defense motion states. “The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant.”

The first issue raised in the defense’s mistrial motion concerns a moment during Rittenhouse’s testimony last week when Assistant District Attorney Thomas Binger referenced the teen’s decision not to talk to police after being arrested. Considered one of the accused’s most important protections, defendants cannot be questioned on the choice to remain silent at any point in their criminal case.

When the jury returned to the courtroom during last week’s proceedings, Binger began an unrelated line of questioning and soon incurred the judge’s wrath for a second time, as he asked questions about whether Rittenhouse believed he could use his gun to protect property. The defense objected, and the judge sent jurors from the room again.

A furious Judge Bruce Schroeder accused Binger of ignoring a pretrial ruling that barred him from mentioning a video shot weeks before the August 2020 shootings in which Rittenhouse allegedly talks about wanting to shoot people he believes are shoplifting from a local convenience store pharmacy.

Some of the judge’s pretrial rulings have dealt a setback to prosecutors’ efforts to portray Rittenhouse as a “chaos tourist” who came to Kenosha to impose his own sense of justice. Besides the convenience store video footage, prosecutors also had hoped to bolster that claim by showing pictures of Rittenhouse socializing with members of a far-right organization at a Wisconsin bar earlier this year.

Schroeder barred the evidence in a pretrial hearing because the judge said he believed it could prejudice jurors against Rittenhouse.

Last week, when Binger questioned Rittenhouse about whether he thought it was appropriate to use deadly force to protect property, Rittenhouse responded that he did not, prompting Binger to ask: “But yet you have previously indicated that you wished you had your AR-15 (rifle) to protect someone else’s property, correct?”

Defense attorney Mark Richards furiously objected, accusing the prosecution of trying to provoke a mistrial or forgetting basic rulings regarding pretrial motions. “He’s an experienced attorney and he knows better,” Richards said last week.

The judge agreed.

“I didn’t interpret your ruling to mean this is absolutely not coming in,” Binger, the prosecutor, said. “This is my good faith explanation to you.”

“I don’t believe you,” the judge responded. “There better not be another incident.”

The defense motion, filed less than an hour before Monday’s closing arguments were set to begin, asks the judge to impose the most severe punishment possible and dismiss the case with prejudice so Rittenhouse can’t be tried again.

“This record has bad faith on the part of the prosecutor,” the motion states. “We know that because he attempted to inform the court of his good faith basis for asking questions regarding inadmissible evidence and was told ‘I don’t believe you.’”

The defense used the mistrial motion to take a swipe at the prosecution’s case, saying it has “not gone very well for the prosecution.”

As of Tuesday, the state had not formally responded to the motion.