Rittenhouse Mistrial Motion Looms as Jurors Appear Deadlocked

T here are ever stronger reasons to believe that we could be headed for a hung jury in the Kyle Rittenhouse prosecution in Kenosha, Wis. For a third day, in what (as I explained yesterday) ought to be a very straightforward case, jurors are deliberating over whether the defendant is guilty of murder and attempted-murder charges, or whether he acted in self-defense. If jurors are persuaded of the latter, he must be acquitted.

The weight of the evidence at trial seemed to be strongly in Rittenhouse’s favor. Prosecutors, however, laid the groundwork to refute Rittenhouse’s self-defense claim by means of controversial video-image evidence, about which they appear to have tricked or lulled defense counsel in violation of due-process rules.

While the jury is currently deliberating, the defense is pleading with Judge Bruce Schroeder to declare a mistrial based on three instances of prosecutorial misconduct, including the handling of the disputed video images. Judge Schroeder appears inclined to hold the motion in abeyance until after the jury reaches a verdict or — quite possibly — indicates that they are hopelessly deadlocked. Were the court to grant the mistrial motion, after either a conviction or a hung jury, the prosecution could be barred from retrying Rittenhouse.

Two of the defense’s allegations of prosecutorial misconduct have already gotten a great deal of attention: Assistant district attorney Thomas Binger’s (1) allusion to Rittenhouse’s post-arrest silence — a violation of the defendant’s Fifth Amendment privilege and a third-rail all experienced prosecutors know to avoid — and (2) pressing a question about a statement by Rittenhouse that the judge had excluded from the case.

Let’s get to the third episode, in which Binger’s co-counsel James Kraus seems to have played a central role.

Some relevant principles: The state is obligated to disclose to the defense, prior to trial, all evidence that is to be offered against the defendant. Sometimes, the state does not obtain evidence until the trial is under way. When that happens, prosecutors are supposed to disclose the material to the defense immediately, with whatever explanation is necessary to aid the defense’s preparation — in recognition of the fact that late disclosure, even if unavoidable and in good faith, undermines the defendant’s ability to conduct appropriate examination and investigation.

In this instance, days after the trial began, the state somehow acquired a drone video from an individual that prosecutors failed to identify. (The footage had apparently been broadcast by some media outlets, but the state had failed to track it down prior to trial.) The footage depicts the all-important confrontation between Rittenhouse and the first man he shot, Joseph Rosenbaum, along with Rosenbaum’s husband-and-wife companions and fellow rioters, Joshua and Kelly Ziminsky.

Prosecutors did not comply with their obligation to give the defense a copy of what they’d received. Instead, they provided what they represented as a copy but was actually a file of significantly poorer quality — only one-sixteenth the resolution. This apparently went unnoticed until the very end of presentation of evidence. At the end of the prosecution’s rebuttal case, after Rittenhouse had testified and the defense had rested, prosecutors introduced the drone footage and, in particular, two enhanced images said to be drawn from it — although the relevant witness (James Armstrong, a crime-lab expert) could not testify that he had compared the enhanced version to the original to ensure that it was fair and accurate.

From these photos, the prosecutors have, in essence, testified that Rittenhouse was the aggressor in the first shooting. Understand: There is no fact witness to the state’s version of events. Prosecutors could have called Joshua or Kelly Ziminsky to attest to these claims. Indeed, Joshua would seem to be a central witness, having fired an apparently stolen gun in the air while he and Rosenbaum were chasing Rittenhouse, which clearly increased the latter’s perception that he was under potentially lethal attack. The prosecutors, however, conveniently charged Joshua Ziminsky with crimes, including arson and obstructing police, so they could insist that his Fifth Amendment privilege rendered him unavailable as a witness.

That is nonsense, of course: They could have given Joshua immunity, which would have made him an available witness. They could also have called Kelly Ziminsky to testify, since they dropped the misdemeanor rioting charges against her. They did neither. The only fact witness is Rittenhouse, who plausibly says he was attacked.

Instead of calling a fact witness who could rebut Rittenhouse, prosecutors produced blurry enhanced photographs from which they themselves, the prosecutors who are not witnesses, claim that they detect Rittenhouse pointing his rifle at Joshua Ziminsky.

This “provocation” theory is flawed: the claim that Rittenhouse’s supposed gun-pointing at Ziminsky provoked not Ziminsky but Rosenbaum, such that Rittenhouse no longer had a legally valid basis to act in self-defense when Rosenbaum rushed him. There is simply no testimonial evidence of this assertion. But put that legal defect aside. The prosecutors are giving their own testimonial spin on disputed photographic evidence. Even more significant, it is video evidence that they failed to disclose to the defense.

There is no doubt about that. The only question is whether they sandbagged defense counsel on purpose or through good-faith error. That may matter for disciplinary purposes down the road; but in the here and now, the only pressing question is whether the defendant was denied due process.

He clearly was. The Rittenhouse defense did not receive a copy of the evidence on which the prosecutors relied. They were given a drastically inferior version. At the last moment, then, prosecutors introduced enhancements from that superior evidence they’d hoarded. Over defense objections, and with explicit misgivings, Judge Schroeder allowed the evidence to be used. Moreover, he granted the state’s request for a “provocation” instruction to the jury largely based on the prosecutors’ interpretation of the disputed evidence.

And now, it has become increasingly obvious that the jury is heavily weighing these disputed images as it struggles to resolve the case. The great weight of the evidence favors Rittenhouse’s claim that he fired in self-defense; pushing against that is the prosecutors’ insistence — unsupported by any testimony, derived from their dubious interpretation of evidence that should have been excluded — that Rittenhouse provoked Ziminsky . . . which somehow provoked Rosenbaum . . . which caused a chain of events in which Rittenhouse somehow forfeited his right to defend himself.

There should not be a conviction in this case. If there is, I expect it to be thrown out. If there is a hung jury, Judge Schroeder would be on firm footing if he did not permit Kyle Rittenhouse to be retried.