The defense team for Kyle Rittenhouse, who says he was acting in self-defense when he fatally shot two people and wounded a third in Kenosha, Wisconsin last summer, filed a motion for a mistrial with prejudice on Monday before closing arguments and following alleged misconduct by the prosecution that involved withholding evidence.
The motion includes the previously raised issues of prosecutors ignoring a pretrial order that barred the presentation of certain evidence to the jury, as well as them infringing on Rittenhouse’s right to post-arrest silence. But it raises a new accusation: that the state did not properly share a critical piece of video footage with the defense.
On the fifth day of the trial, the defense alleges, prosecutors gave them video footage taken from a drone showing some of the events that transpired on Aug. 25, 2020. The prosecution, however, allegedly gave the defense a low-quality, compressed version of the video while keeping a clearer one for themselves. The defense’s copy was allegedly only 3.6 MB with a 480 x 212 resolution, while the state’s video was 11.2 MB and 1,920 x 844.
The defense alleges that although prosecutors possessed the video, they did not provide it to the defense until the trial was done on Nov. 13, two days before closing arguments and after evidence had already been closed. The state played its higher-quality video for the court to review during the jury instructions conference, indicating it was much clearer than the other videos.
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“As it relates to the compressed drone footage. The prosecution should be required to explain to the court why they did not copy the footage for the defendant with the same quality as their copy,” the defense’s motion states. “The video footage has been at the center of this case. The idea that the state would provide lesser quality footage and then use that footage as a linchpin in their case is the very reason they requested and were granted the provocation instruction by the Court. The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant.”
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Rittenhouse’s defense says that when considering a mistrial, the judge can bar a retrial when there’s prosecutorial overreach. This requires that the prosecutors’ actions to prejudice the defendant be intentional and that they’re intended to produce another opportunity to convict “because the first trial is going badly,” the defense said, going on to make the case that the state met both of these criteria.
“This record has bad faith on the part of the prosecutor,” the motion continued. “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’s motion will be moot if the jury, which started deliberating on Tuesday morning, acquits Rittenhouse on the five charges against him, the Chicago Tribune reported. On Wednesday morning, Judge Bruce Schroeder said he had not yet ruled on the motion because he hadn’t read it yet and because he wanted to give the state a chance to respond.
Later, after the judge read the motion, the defense and the prosecution offered conflicting stories, with the judge saying the testimony would need to be taken under oath with somebody brought in to explain the cause for the video file discrepancies.
This article has been updated.
