Will Kyle Rittehouse trial be declared a mistrial? Why drone footage could see Kensha shooter walk free

Defense demands mistrial with prejudice after emotional proceedings on November 10, leads judge to slam prosecution: 'I don't believe you'

                            Will Kyle Rittehouse trial be declared a mistrial? Why drone footage could see Kensha shooter walk free
Kyle Rittenhouse waits at his table as his attorneys speak with Judge Bruce Schroeder at the Kenosha County Courthouse on November 8, 2021, in Kenosha, Wisconsin. (Sean Krajacic-Pool/Getty Images)

The highly contentious trial over Kyle Rittenhouse's actions in Kenosha on August 25, 2020, took a dramatic twist on November 10, after the defense called for a mistrial. In the now-viral moment, the defense has asked the judge to consider a mistrial with prejudice, arguing that the prosecution is attempting to "throw" the case because it is going badly for them. The judge is yet to weigh on those accusations, but he certainly made his feelings towards the prosecution felt by reprimanding them strongly in response.

The case is being overseen by Judge Bruce Schroeder, who has been dubbed "the worst in town" for his businesslike and no-nonsense demeanor. Prosecuting the case is Thomas Binger, who has won 13 jury trials in just the last two years. But, over the past several days, it appears Bringer's experience has come to naught, with the case going badly for the prosecution. A good example of this is Gaige Grosskreutz, who admitted he raised his gun first at Rittenhouse on the stand. 


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Between Grosskreutz's testimony and Rittenhouse's emotional breakdown, things are looking very good for the defense, and could likely get even better if Judge Schroeder considers their appeal for a mistrial. The appeal was made after Binger attempted to bring forward evidence the judge ruled out pre-trial, leading the judge to issue a stern warning, "'There better not be another incident." Adding to that, the defense also alleged that the prosecution withheld a high-definition video, and instead shared with them a low-resolution one.

Circuit Court Judge Bruce Schroeder addresses the jury pool on the first day of trial for Kyle Rittenhouse in Kenosha (Wisconsin) Circuit Court on November 1, 2021, in Kenosha, Wisconsin. (Mark Hertzberg-Pool/Getty Images)


How a mistrial can happen?

In pre-trial hearings, Judge Schroeder explicitly ruled out a TikTok video where Rittenhouse says he wished he had an AR-15 to shoot looters. Those comments were recorded two weeks before the fatal shootings in Kenosha. Despite that, Binger attempted to bring up that information when cross-examining Rittenhouse when he was on the stand. In response, Rittenhouse's attorney Corey Chirafisi said "The prosecutor is clearly attempting to provoke a mistrial. He's an experienced attorney and he knows better."

That led to a furious exchange between Judge Schroeder and Binger after the prosecutor claimed he thought the "door had been left open." In response, the judge yelled, "Open for me! Not you! Why would you think that made it okay for you to, without any notice, bring the matter before the jury." He then added, "don't get brazen with me you know very well that an attorney can't go into these areas when a judge had already ruled."

Later, Chirafisi announced his intention to move for a mistrial, telling the court, "You had warned him. You had told him prior to Mr. Rittenshouse testifying." He added, "The prosecutor's actions must be intentional…(with) an awareness that his activity would be prejudicial. The second one says that the prosecutor's actions was designed to allow another chance to convict, to provoke a mistrial to get another kick at the cat because the first trial is going badly."

Assistant District Attorney Thomas Binger during Kyle Rittenhouse's trial at the Kenosha County Courthouse on November 4, 2021, in Kenosha, Wisconsin. (Sean Krajacic-Pool/Getty Images)


Later on November 15, the defense did file a motion for a mistrial, with another grounds for doing so - the highly contentious drone footage at the center of the prosecution's case. Reportedly, the defense only received a low-resolution file at 3.6MB on November 5. "The problem is the prosecution gave the defense a compressed version of the video. What that means is the video provided to the defense was not as clear as the video kept by the state," they argue, noting that the full-resolution file which was 11.2MB was only given to them after the trial concluded. 

The act of not sharing the high-resolution file has strengthened the defense's argument of prosecutorial misconduct, which was one of the many grounds for a mistrial. During the November 10 exchange, the judge took the defense's request under advisement but has so far not ruled a mistrial. It's possible he could if Rittenhouse is found guilty, or that another court could do so, if the defense pushes for the mistrial.

Notably, there are two ways this can go. The first would be a simple mistrial, which leaves the door open for Rittenhouse to be prosecuted again. If the judge rules a mistrial with prejudice, it would mean the case would be tossed and cannot be brought again, for the same charges. Since the judge has taken it under advisement, it means he can call a mistrial at any moment he chooses, without having to listen to any more arguments in court.

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