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Motion for mistrial looms as jury deliberates Kyle Rittenhouse's fate

Judge Bruce Schroeder never ruled on defense requests to toss out charges with prejudice.
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The second day of deliberations in Kyle Rittenhouse's homicide trial ended Wednesday with a defense request to toss out charges still looming over the high-profile Wisconsin trial.

The case went to jury late Tuesday morning with Kenosha County Circuit Judge Bruce Schroeder having not ruled on defense requests for a mistrial with prejudice — to have charges tossed out without the ability for prosecutors to re-file them.

Rittenhouse's lawyers had said in court they had planned to ask for a mistrial before they filed papers on Monday accusing the district attorney of "prosecutorial overreaching" and acting "in bad faith."

They asked Schroeder to "thereby grant the defendant's motion for a mistrial with prejudice."

The defense cited Assistant District Attorney Thomas Binger's questioning of Rittenhouse, suggesting that Rittenhouse had remained silent for months before tailoring his testimony to witness accounts he heard in court. Schroeder excoriated Binger, saying he had tried to use Rittenhouse's constitutional right to remain silent against him.

Rittenhouse's lawyers also accused prosecutors of other lines of improper questioning and of withholding higher-quality drone video of Kenosha streets on the night of Aug. 25 last year.

The defense claimed that the drone video was "compressed" into a 3.6-megabyte file with lower-quality image, while the district attorney's copy was 11.2 MB.

Assistant District Attorney James Kraus claimed no harm, no foul, saying there was no ill intent when prosecutors emailed video to the defense — and compressed it into a smaller file, unbeknownst to either side.

That didn't satisfy Rittenhouse's lawyers, who said had they received higher-quality video that could have radically changed their trial strategy.

"It's not debatable that it's not fair what happened," defense attorney Corey Chirafisi said. "We didn't know there was another version. How is that reasonable?"

Schroeder was unwilling to declare a mistrial immediately but warned prosecutors that if it turns out to be a game-changing error, "it's going to be ugly."

"There's a day of reckoning with respect to these things," he said. "If they got everything correct and it's reliable, then they won't have a problem. But if it isn't, it's going to be ugly."

Schroeder had not ruled by the time Rittenhouse randomly picked juror numbers out of a tumbler Tuesday morning to seat seven women and five men for deliberations.

While discussing a jury question from the bench Wednesday, Schroeder said that he received the defense motion only on Tuesday and that he needed more time to consider it. Schroeder bristled at any notion that he should have ruled immediately or at least before deliberations were allowed to start.

"I really think before I rule on motion, I should let the state respond," he said. "So why anyone would think that it's odd for a judge to sit on a motion to dismiss, I have no idea."

Defense lawyer Mark Richards said Wednesday that a ruling in his side's favor was still possible, even at such a late hour, but not likely.

The motion is more for the future than the now — to document the dispute for any possible appeals — than to get the case tossed out now, NBC News legal analyst Danny Cevallos said.

"Judges err on the side of letting a jury decide a case," he said. "Judges loathe to take a case away from a jury."

Rittenhouse charged with five counts, two of them for homicide, for gunning down two men during the protests. He has claimed self-defense for his actions at protests, which had been prompted by the police shooting of Jacob Blake.

The panel asked Schroeder on Wednesday morning to see some video exhibits and inquired specifically whether the viewing should be in the jury room or the courtroom.

Schroeder ruled that it should be done in the courtroom with no one but the jurors inside.

This is a developing story; please refresh here for updates.