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Law professor describes how dual mistrial motions could impact Rittenhouse verdict

Closing Arguments Delivered In Kyle Rittenhouse Trial
Sean Krajacic - Pool
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Mark Richards, Kyle Rittenhouse's lead attorney, talks about how letting the jury take home the jury instructions may not be a good idea during Kyle Rittenhouse's trial at the Kenosha County Courthouse on Nov. 18, 2021.

The jury is heading into its fourth day of deliberations in Kyle Rittenhouse's murder trial.

Rittenhouse is the 18-year-old who killed Joseph Rosenbaum and Anthony Huber, and wounded Gaige Grosskreutz. The shootings occurred during looting and unrest in Kenosha after police shot and seriously injured Jacob Blake, Jr., a Black man.

Rittenhouse faces five felony counts, including first degree intentional homicide. If convicted of any of the offenses, two defense motions for mistrial wait in the wings.

The defense has asked for a mistrial with prejudice, meaning Rittenhouse couldn't be tried again. The defense has also raised a separate second motion asking for a mistrial without prejudice, which could result in the state retrying Rittenhouse. John Gross is a clinical associate professor of law and director of the Public Defender Project at the University of Wisconsin Law School. He breaks down the two motions.

The defense raised its motion to dismiss with prejudice during trial on the day Rittenhouse testified. The defense argued that the prosecutor asked impermissible questions about excluded evidence, specifically statements Rittenhouse had made: that he wished he had a gun so he could shoot suspected shoplifters. Judge Bruce Schroeder had made earlier rulings closing the door on those statements, but the prosecution still tried to ask Rittenhouse about them.

Additionally, the prosecution asked Rittenhouse about his decision not to tell his story earlier instead of waiting until after dozens of state witnesses testified. Judge Schroeder excoriated Assistant District Attorney Thomas Binger for stepping into territory which could violate Rittenhouse's constitutional right to pre-trial silence.

Ultimately, a motion for a mistrial with prejudice hinges on the idea that the prosecution was throwing the trial. "Normally a mistrial [without prejudice] is just 'do-over, you start again and pick a new jury and try the case,'" says Gross. "But if the mistrial was prompted by the prosecutor and if the judge thinks the prosecutor caused the mistrial on purpose because the case was not going well, and they wanted to do it over again, that's a mistrial with prejudice, which means the prosecution would not be allowed to retry Mr. Rittenhouse."

Judge Schroeder took the motion for a mistrial with prejudice under advisement and allowed the testimony and deliberations to continue. But when ADA Binger said that he had been acting in good faith, the judge said, "I don't believe you."

LISTEN: Trial Recap: Rittenhouse testifies, judge scolds prosecution, defense asks for mistrial.

Then came the drone video that was a crucial piece of the state’s case. The state entered the evidence through one of its last witnesses. The defense argued that it got a potentially inferior copy of the video during the trial and didn’t get a higher quality version until the case was over and that it was prejudiced.

During the jury deliberations, the panel asked to see several videos in evidence related to the shootings, including the late-obtained drone video. That prompted the defense to bring a second motion for a mistrial without prejudice, meaning that, if granted, Rittenhouse could be tried again.

“[This type of motion] for a mistrial is essentially a motion asking the court to do the trial over because some evidence was introduced that should not have been, or a prosecutor asked a line of questioning that was impermissible, and that that has unfairly prejudiced the defendant,” says Gross. “So, there was a serious error that makes it impossible for the jury to be fair.”

Here, Gross says the defense is essentially saying, not that the prosecution did anything intentionally wrong, but "it was just that we thought we had the highest quality video available but turns out, we didn't, and the prosecution did. And that means that we were placed at a disadvantage in terms of our preparation for the case and our questioning of witnesses because the higher resolution video would have helped us."

The judge held off on deciding that mistrial motion and allowed deliberations to continue and for the jury to watch videos in evidence. But there are now two separate mistrial requests from the defense in this case.

Procedurally, the judge can delay ruling on a motion for a mistrial until after a jury has reached a verdict, says Gross. And the judge could also call a post-verdict hearing on the mistrial motion.

"And at that hearing, the state could produce an expert witness to talk about the authenticity and validity of the video that was put into evidence, the defense could do the same, they could cross-examine the state's witnesses put on their own expert," Gross says. "And in that hearing, then the judge could decide whether or not he thought that something about the video was problematic or if it was altered, or the high-resolution copy was it provided to the defense, and therefore, some sort of prejudice occurred because they didn't have access to it."

Judge Schroeder has said he’s postponed ruling on the motions for mistrial and let the jury continue deliberating in part because he just received briefs from the defense on Monday.

Gross says another potential reason is that if the jury acquits Rittenhouse of all or most of the charges, that could make the motion moot in the eyes of the defense.

But Gross says if the jury were to convict Rittenhouse of one or more of the offenses and then the judge were to decide before sentencing to declare a mistrial, that could have consequences for public perception of fairness in the justice system.

"I think, based on Mr. Rittenhouse, his race and the legitimate concern that people have about racial bias within the criminal justice system and in policing, I think it would certainly appear that he is gaining the benefit of white privilege. That the judge is declaring a mistrial in his case because the judge simply doesn't think that he is guilty, and that [the judge is] undermining the determination of the jury. And the optics of that, the public perception of it, will be highly problematic," said Gross.

Gross said in one sense, the judge shouldn’t play to public opinion at all. But at the same time, the public needs to see the trial as legitimate and fair.

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