Kyle Rittenhouse’s defense team filed an updated motion for mistrial with prejudice ahead of Monday’s closing arguments alleging multiple prosecutorial infractions, including withholding evidence pertinent to the case, attempting to use banned evidence, and violating the defendant’s fifth amendment rights.
In the seven-page motion, the defense accuses the prosecution of introducing drone footage of the incident in question that was lower quality than the footage that was already admitted into evidence and presented to the jury. The prosecution claims the new video, brought in after the trial was already underway, shows that Rittenhouse instigated the altercations in which he fatally shot two men and wounded a third in Kenosha, Wisc. last summer amid the Black Lives Matter riots.
While Rittenhouse swears he was acting in self-defense when he killed Joseph Rosenbaum, the prosecution insists that the defendant first pointed his gun at the man before any threat was initiated. Rittenhouse previously testified that Rosenbaum chased him across a car lot, as well as hurled an object he believed to be a metal projectile, before lunging at him.
“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.”
Judge Bruce Schroeder reprimanded leading prosecutor Thomas Binger last week after he implied that Rittenhouse’s silence about the case ahead of the trial could be potentially incriminating, a forbidden line of questioning infringing on the defendant’s Fifth Amendment right to remain silent. After sequestering the jury, Judge Bruce Schroeder scolded the prosecutor for what he said was serious trial misconduct.
Later on, the prosecutor provoked the judge’s fury again when he attempted to introduce evidence that Schroeder had already ruled as inadmissible. Reacting angrily, Schroeder accused Binger of disregarding a pretrial ruling that prohibited referencing a video, taken weeks before the shooting at the heart of the case, in which Rittenhouse allegedly said he wanted to take violent retributive action against store looters at the BLM protests.
Rittenhouse claims he got involved in the unrest in Kenosha, where his father lives and where he works, in August 2020 to help defend a car dealership at an employee’s request.
When Schroeder accused Binger of trying to sneak in banned evidence, the prosecutor said he misinterpreted the judge’s ruling.
“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 …”
“When you say you’re acting in good faith, I don’t believe that,” Schroeder shot back.
The defense motion, which the judge said he would take under advisement last week, asks to dismiss the case with prejudice. If Schroeder were to declare a mistrial, Rittenhouse would be released and the state would not be permitted to re-try him on the same charges.
The jury began deliberations on Tuesday and the National Guard has been deployed in case of riots following the reading of the verdict.
More from National Review