Kyle Rittenhouse verdict not yet reached after 2 days of deliberation; defense files for mistrial

Defense files for mistrial over Kenosha shooting video from drone played during Antioch teen's trial

Liz Nagy Image
Thursday, November 18, 2021
Gaige Grosskreutz, the man who survived a shooting by Kyle Rittenhouse that left two others dead has filed a secret petition to change his legal name.

KENOSHA, Wis. (WLS) -- The jury in Kyle Rittenhouse's Kenosha shooting trial is hours into their second day of deliberations in an attempt to reach a verdict on whether the teen is criminally responsible for shooting three people, two fatally, last summer.

Jurors weighing charges against Rittenhouse returned for a second day of deliberations after failing to reach a swift verdict on whether he was the instigator of a night of bloodshed in Kenosha or a concerned citizen who came under attack while trying to protect property.

But Rittenhouse's defense team filed a motion for a mistrial, ending the proceedings with no conviction, all over still-contested high resolution drone footage the state says shows Rittenhouse pointing his gun before firing at Joseph Rosenbaum, the first man he shot fatally.

SEE MORE: Prosecution rests; drone video shows shooting of Joseph Rosenbaum

Prosecutors said they received the video after testimony was already underway. In a formal motion filed Monday, the defense team said "the problem is the prosecution gave the defense a compressed version of the video" meaning "the video given to the defense was not as clear as the video kept by the state."

Prosecutor Thomas Binger said they should be able to view any video they wanted as many times as they wanted, and the judge seemed to agree. "Sometimes there is one piece of evidence that is absolutely critical. ... To me, if they want to watch it 100 times, that's them," Schroeder said.

Defense attorney Mark Richards said he would object to the jury viewing video taken by a drone that prosecutors said showed Rittenhouse pointing his gun at protesters before the shootings. The image prompted heated dispute earlier in the trial over technical questions about whether enlarging images notably changes them.

"I think we're focusing on, too heavily on, a technological glitch and less on the, and we should be focusing, that this exhibit was played. The jury is asking to see any exhibits that they have seen, and that the defense saw when they were played in court," said Assistant District Attorney James Kraus.

The high resolution drone video is the very clip that brought Judge Bruce Schroeder down from the bench to view up close during the courtroom conference Friday over submitting it as evidence.

"If it comes out at some time that the method used produces unreliable results, this is going to fall like a house of cards," Schroeder said. "Because you're basing this extremely important segment of evidence, and something that I'm really queasy about. But as I said when I left here Friday, this is the jury's case. It's not mine. And I'm going to let them decide."

For now the ruling will stand while jurors review other clips of video evidence, warning this could make for a messy outcome in a closely watched trial.

"My view on it now is that it's reliable, and if it isn't it's going to be ugly," Schroeder said.

SEE ALSO | How did Kyle Rittenhouse do on stand in murder trial? He 'helped himself,' legal experts say

Kyle Rittenhouse testifies in his own defense (1 of 9)

Before that, Schroeder took exception to news stories about his decisions to not allow the men Rittenhouse shot to be called victims and to allow Rittenhouse to play a minor role in determining which jurors were alternates, and the fact that he had not yet ruled on a defense motion for a mistrial.

RELATED: How the Kyle Rittenhouse jury was narrowed down to final 12 jurors

The judge had Rittenhouse pull the numbers of the six alternates from the drum just after 9 a.m., and the remaining 12 went to deliberate.

Schroeder said he hasn't read the motion to dismiss because he just received it on Tuesday.

"It's just a shame that irresponsible statements are being made," Schroeder said of comments in a Milwaukee Journal Sentinel story from law school professors about him not ruling on the mistrial motion.

The case went to the anonymous jury after Schroeder allowed Rittenhouse to reach into a raffle drum and draw numbered slips that determined which of the 18 jurors who sat through the case would deliberate and which ones would be dismissed as alternates.

That task is usually performed by a court clerk, not the defendant. Schroeder has said he has been having defendants do it for at least 20 years.

SEE ALSO | Jacob Blake, Kyle Rittenhouse shooting timeline

The jury of 12 deliberated for a full day Tuesday without reaching a decision.

Rittenhouse, 18, faces life in prison if convicted on the most serious charge for using an AR-style semi-automatic rifle to kill two men and wound a third during a night of protests against racial injustice in Kenosha in the summer of 2020. The former police youth cadet is white, as were those he shot.

RELATED: 'God, I'm coming:' Jacob Blake speaks out about being shot by Kenosha police officer

Though protests have been generally muted around the courthouse during the trial, on Wednesday a man arrived carrying a long rifle and wearing what appeared to be body armor. After being approached by police, he left and returned a short time later without the gun. The man had spent Tuesday shouting anti-Black Lives Matter statements through a megaphone and was involved in a confrontation that day with another protester.

READ MORE: Kenosha protests over shooting trial possible as Kyle Rittenhouse jury deliberates

Two people were taken into custody Wednesday for an incident on the courthouse steps. A 20-year-old man was arrested for battery, disorderly conduct and resisting arrest, and a 34-year-old woman was arrested for disorderly conduct, according to the Kenosha Sheriff's Department.

Rittenhouse was 17 when he went to Kenosha from his home in Antioch, Illinois, in what he said was an effort to protect property from rioters in the days after a Black man, Jacob Blake, was shot by a white Kenosha police officer.

In a fast-moving series of clashes in the streets, Rittenhouse shot and killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounded Gaige Grosskreutz, now 28.

RELATED: Kenosha shooting victims depicted differently throughout trial

The jury is now considering the five remaining criminal charges against Rittenhouse. Two charges, one about curfew and another about illegal gun possession, have already been dropped or dismissed.

There's been no indication about where they stand in their deliberations.

"The key question is whether he acted recklessly, Rittenhouse did, and whether he acted with utter disregard for human life," said ABC7 Legal Analyst Gil Soffer. "And, of course, underlying that charge and every other one is was he acting in self-defense?"

Jurors are reviewing hours of livestreamed video that showed Rittenhouse shooting and killing two men and badly injuring a third, from countless angles.

"There's a near certainty that this jury is looking at those videos and looking at them again and again," Soffer said. "It's the most important kind of evidence. In this case, each side made an enormous deal of it. So, I have to believe those jurors are looking at those videos, talking to one another about what they're seeing, what it proves, what it doesn't."

They'll first decide if Rittenhouse fired in self-defense, or if the armed teenager provoked Joseph Rosenbaum before fatally shooting him. If jurors believe Rittenhouse was reasonable to fire, trying to save his own life, he could be acquitted of recklessly endangering Richie McGinnis, an online videographer who was a few feet away when Rittenhouse killed Rosenbaum.

"It was clear to me that something with the weapon was about to happen and I didn't want to be on the wrong side of that," McGinnis testified during the trial.

Jurors now have more options to convict Rittenhouse after Judge Bruce Schroeder allowed them to consider less severe charges related to the killing of Anthony Huber and the attempted homicide charge for Gaige Grosskreutz, the armed medic who Rittenhouse shot in the arm. But those additional options could prolong the closed-door deliberations.

Rittenhouse's defense team said if he is convicted on any of the charges, he's likely to be taken into custody immediately.

Outside the courthouse, there were some tense moments Wednesday.

A man armed with a rifle was confronted by a team of sheriff's deputies coming from inside the courthouse.

They surrounded him, escorted him to their vehicles and asked him to leave.

"If you want to be here, you're going to have to put the rifle away," one said, adding he was too close to a school to be carrying the weapon.

The Associated Press contributed to this report.