Rittenhouse lawyers ask judge to declare mistrial over video

[SouthBayDem]

Source: AP

KENOSHA, Wis. (AP) — Kyle Rittenhouse’s attorneys asked the judge on Wednesday to declare a mistrial, saying they received an inferior copy of a key video from prosecutors and would have approached things differently if they had received the higher quality video earlier.

Judge Bruce Schroeder did not immediately rule on the request, which came after jurors deliberating for a second day at Rittenhouse’s murder trial asked to review video evidence.

Defense attorney Corey Chirafisi said they initially received a compressed version of a video taken by drone that the prosecutors played for jurors during closing arguments. Prosecutors said it showed Rittenhouse pointing his gun at protesters before being chased by the first man he shot and killed during a night of turbulent street protests against racial injustice in Kenosha in the summer of 2020.

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. The former police youth cadet is white, as were those he shot.

Read more: https://apnews.com/article/kyle-rittenhouse-wisconsin-homicide-kenosha-0e4b6ad5a286af9ddbb8c8546550f1dc

[berni_mccoy]

1. That means the video had an impact and the defense knows it.

[marble falls]

2. They're trying to get a mistrial to negotiate a plea.

[berni_mccoy]

3. Seems that way. Let's hope the prosecution

Can refute the motion.

[marble falls]

4. No way they're getting the judge who allowed the video to rule he made a mistrial ...

... level mistake. The Defense hopes they can get a deal from the Prosecution before the jury returns. It just seems to me the longer the jury is out, the more likely there will be more guilty verdicts on the counts.

[Yarnie]

5. The prosecution

withheld the clearer copy of the video from the defense. Prosecutorial malfeasance? There is speculation that the prosecution, in withholding the video, may have been trying to get the judge to declare a mistrial. They may want a "second bite of the apple."

[LiberalArkie]

15. I think the prosecutor sent what he had, but he sent it via E-Mail and the email program compressed

the video as they are known to do.

[iluvtennis]

29. + agree. n/t

[NullTuples]

37. I don't disagree but it scares me how many people think email is at all secure.

[reACTIONary]

38. I don't think evidence would be given to the defense via email...

... and for the compression to have affected the quality, it would have been lossy compression like mp4. I don't think email would have done that.

On edit - according to another post it was emailed. That does not seem to be the right way to handle important evidence in a high stakes trial.

[TexasBushwhacker]

57. It doesn't seem right, however the defense accepted it that way

If they felt it was inferior, shouldn't they have asked for it on a thumb drive or other media?

[reACTIONary]

60. If they were given an MP4 file...

Regardless of how it was delivered, if were given an mp4 file, they would not have known if an original, uncompressed file existed. It would have been reasonable to assume they were given the best available.

Mp4 is a video and sound "lossy" compression method. The data volume is reduced by tossing data that normally would not make a big difference to the quality of the image.

An email program, on its own, would not automatically compress a video using mp4, or any other compression. It would tell the sender the file is too large, then the sender would have to do the compression and resend.

Details about what actually happened are not known to me. If they say they were given a "degraded" or "low res" copy, I presume they are complaining about a lossy compressed file. That is the only explanation I can think of that makes any sense.

[Calista241]

53. The problem is the prosecutor talked about how he didn't even know how to edit video.

And then in the video displayed to the jury and the courtroom, before he clicked on the video to start it, you see the program Handbrake in the background. Handbrake is a video editing software that's designed to clip, crop, degrade and enhance video software.

It's not hard to use, and it was on his computer!

[LiberalArkie]

59. Hand brake is a program to compress the video. Like to take the MKV uncompressed video and change

it to the compressed video like a mp4. An uncompressed video might be larger than he can send via email. Very common. Question did the prosecution offer to send it via thumb drive? Did the defense say just send it via email? Email does have proof of delivery and reception where as handing a thumb drive to some one does not.

HandBrake is a tool for converting video from nearly any format to a selection of modern, widely supported codecs.

Reasons you’ll love HandBrake:

Convert video from nearly any format
Free and Open Source
Multi-Platform (Windows, Mac and Linux)

I use Handbrake all the time to convert my DVD's so I can store them on my computer.

[sarisataka]

8. I believe they are asking

For a mistrial with prejudice. There would be no need to negotiate a plea

[Hav]

12. The defense said they are aware it would be

a mistrial without prejudice and that the prosecution would go for another trial.

Though not exclusively, the video in question seems to be related to a specific count that might have also consequences for other counts. The defense seems worried that the jury is very interested in reviewing that footage. It was already used during the trial and they are aware it would be used in another trial. These are the things that are confusing for me as a layman.

[sarisataka]

18. It's hard to keep track of all the motions

But it makes sense. I've believed all along the first shooting is the key to the whole case. If he's guilty on that one he's guilty of all. However if he's found not guilty on the first shooting, the odds swing in his favor on all other charges.

If they are looking at the video I think they are, the defense in likely worried the jury is leaning to the prosecution's claim of provocation rather than their claim of self-defense

[iluvtennis]

6. This is nonsense. The defense saw the video in the courtroom when prosecution played it.

It is illogical that the copy of the [lower res] video they received impacted their case.

Btw, during court discussion on this matter today, it appears there was some corruption of the file as it was transferred from MacBook ( prosecutor) to flash thumb drive to PC ( defense) and over email. It’s not common, but this stuff happens with technology sometimes. Judge should simply have the defense get a copy of the original video file. Hours wasted on this nonsense

[Alexander Of Assyria]

24. Yes sir. They saw the so called inferior copy long time ago...did nothing.

And exactly how might it have changed their defence, burden is on them?

[greenjar_01]

40. Burden's not on them in the United States

[Alexander Of Assyria]

49. Burdens pertaining to evidence admissibility and exclusion shift depending upon the context.

[Calista241]

54. The baseline fact is that it's a 6th amendment violation for Rittenhouse.

The video would have been shared with a defense expert that prepared his testimony based on the degraded video.

By itself, this would probably result in no more than an admonishment for the prosecution, but combined with all the other mis-steps by the prosecution, it may very well put them over the hill into mistrial territory.

[Hoyt]

7. So, defense has lost confidence. Good.

[iemanja]

9. Yep, they think he might be convicted

Otherwise, there is no reason to request a mistrial.

[hamsterjill]

10. Something has happened obviously.

I mean, what judge could they have gotten that would have been any more favorable to the defense? I think most sensible people who watched the farce of a trial believe that he's going to walk, so to request a retrial NOW seems pretty desperate.

[Under The Radar]

16. It was a very good closing by the prosecutor

It looks that they are caught off guard. The defendant and his attorneys lied and a video clearly proves that they did. They are likely praying for a mistrial

[Hoyt]

21. Thought so too. Up until prosecutor put it all together, was almost sure Ritt would walk.

[iluvtennis]

30. Yes, a very good close by the prosecution - emphasizing Ritt provoked the protesters and that

Ritt was an active shooter, so the protesters (Anthony Huber, Gaige Grosskreutz) had the right to try to stop an active shooter.

[Historic NY]

11. It was already shown in court...

I'm sure the defense could have enhanced their version compression also allows for sending it.

[LiberalArkie]

13. Just about all video is compressed. JPG is compressed so are GIFs just about everything except RAW

video.

[C Moon]

14. Pretty sure that judge would buy Rittenhouse a new house and car if he could. He'll declare mistrial

[Marthe48]

17. Will the defense accept the verdict?

Or say they were cheated?

[JohnnyRingo]

19. The defense was going to ask for a mistrial no matter what.

They just had to find something, anything.

[Tomconroy]

20. I think that what the jury wanted to see all related to the first

shooting.

[PortTack]

22. Saw an attorney interviewed by Ben Meiselas that said the defense is seeing body language from

The jurors that have them worried. Also said the defense does not put the accused on the stand except when they really have little else to bring up as a defense

[iluvtennis]

33. Defense put Ritt on the the stand as a "sympathy play" in my opinion. They ere thinking how

could a jury believe their baby faced client could murder two people and maim a third.

[BobTheSubgenius]

23. So, they would have approached the case differently if they had a higher-res video?

The HR version must be some video.

I'm also struck by the final sentence of the OP. So....news reporting now has to include a genealogy report? F'ing lovely.

[ShazzieB]

25. Defense attorneys seem to do this kind of stuff a lot.

At least in high stakes trials like this one, they usually make all kinds of motions that can sound nonsensical to observers. I'm not sure why, but I've watched a fair number of trials closely, and it seems to happen a lot.

[Tomconroy]

27. They are trying to preserve issues for an appeal.

[Scruffy1]

28. They work for money.

The defense had lot of dollars, so it gets turned into billable hours. If you don't have a lot of money few lawyers will go to the length of this kind of action. They have bills to pay like everyone else. I also think that losing a high profile case like this could dent their reputation more than a little. A winning record is how you get the big bucks. I'm thinking that if they get the defendant off they will have plenty of work at a higher rate. personally. I'm thinking hung jury and retrial.

[monkeyman1]

26. well shit !

in china , found guilting , take 'n out back , then shot ,end of story ! no appeals , no nothing , case closed !!

[muriel_volestrangler]

31. Wording at link now has an important change

From the 3rd para onwards (my bold):

At issue was a piece of drone video that prosecutors showed to the jury in closing arguments in a bid to undermine Rittenhouse’s self-defense claim and portray him as the instigator of the bloodshed in Kenosha in the summer of 2020. Prosecutors said the footage showed him pointing his rifle at protesters before the shooting erupted.

Rittenhouse attorney Corey Chirafisi said the defense initially received a smaller compressed version of the video and didn’t get the higher-quality larger one used by the prosecution until the evidence portion of the case was over.

He said that the defense would have approached things differently if it had received the better footage earlier and that it is now asking for “a level, fair playing field.”

If that's correct, then there could be a case for a mistrial - if the better quality shows something they'd like the jury to notice.

[underpants]

32. So the video would have to show something that would have helped their case

not just that they didn’t get the same copy previously?

[muriel_volestrangler]

44. Or, I suppose, they might claim that they'd have asked Rittenhouse to explain features

of the video. If there's something extra in the video that looks incriminating, they'd say he should have have the chance to rebut it when he was on the stand, rather than it appearing after that.

Whether there really is important detail, or it's just slightly lower quality without showing anything significantly different, I don't know.

[underpants]

45. Okay. Thanks.

[iluvtennis]

34. The higher res video was played in open court. If there was something the defense thought they

could use, they could have played the video during their cross examination.

[Buckeye_Democrat]

36. Exactly. nt

[muriel_volestrangler]

43. The article currently says the high res version was only shown after the evidence phase

and that the defense didn't have it available during the evidence phase, which would mean they would not have been able to play it while cross-examining anyone, nor while they were examining the defendant, or calling any other defense witnesses.

[Buckeye_Democrat]

35. I doubt it. They probably would've just told Rittenhouse...

... to NOT LIE, which he did when he was on the stand and said he didn't point his gun at protestors before being chased.

[Hav]

48. I also think that there's a reasonable case for a mistrial if there's a conviction

In fact, it seems like a probable outcome because the defense actually has a point that they could have approached the case differently.

If the defense had a shitty video, they might have thought that you cannot conclude anything from it that is beyond a reasonable doubt. So they might have instructed Rittenhouse to not admit anything. If there's a video they weren't aware of before the trial that clearly shows Rittenhouse raising the gun, they would have incorporated that into their defense. For example, it might have been a reaction to a perceived threat of seeing another protester, I think a guy called Ziminski, approaching Rittenhouse with a gun.

[greenjar_01]

39. Fan Club agrees, apparently

Fucking shameless.

[jmowreader]

41. Requesting mistrial is all they have left

The video depicts Rittenhouse as an active shooter. As such, trying to take his gun from him was the right thing to do.

“Your Honor, we have a hung jury. Six of us say he’s guilty as charged, four say he’s guilty as fuck and two say he’s the guiltiest man in the history of the State of Wisconsin.”

“Return to the jury room and come back when you decide which one he’s going to be.”

//five minutes later…//

“Your Honor, now we have 11 confirmed guilty as fucks and one ‘I say he’s guilty as sin, but if saying he’s guilty as fuck will put an end to this, then he’s guilty as fuck.’”

“Is that on all six counts?”

“It is, Your Honor.”

“Fine. We have a verdict. Kyle Rittenhouse, you will stand. You have been found guilty as fuck by a jury of your peers on all six counts that you were charged with. Foreman of the jury, do you have a sentencing recommendation?”

“Yes, Your Honor. Hang him by the balls for the rest of his miserable life.”

“Hanging by the balls is not a recognized punishment in this state.”

“Well, why the hell not?”

“It just isn’t. I don’t know why. Would you settle for life imprisonment?”

“That’ll work too, Your Honor.”

“Mr. Rittenhouse, you’re going to the clink for the rest of your sorry life. Bailiff, take him away.”

“Your Honor, we move for mistrial with prejudice on the grounds the jury hates my client.”

“Foreman, does the jury hate the defendant?”

“Not until about ten seconds ago, Your Honor. Now we think he’s a whiny little asshole.”

“Motion for mistrial denied.”

“Your Honor, the jury just called my client an asshole!”

“That’s because he is one. Sit the fuck down and shut the fuck up.”

[Buckeye_Democrat]

42. I looked online for the drone video...

... that allegedly showed Rittenhouse pointing his gun at protestors BEFORE he was chased by his first shooting victim, but I haven't found it yet.

Every drone video that I've seen posted online is from various TV news reports, and they NEVER show the earlier part!

They just keep starting that video just before the first guy was shot, with Rittenhouse already running away from him at that point!

And with the news reporters talking, talking, talking as they keep interrupting the video, of course.

From the AP article in the OP:
At issue was a piece of drone video that prosecutors showed to the jury in closing arguments in a bid to undermine Rittenhouse’s self-defense claim and portray him as the instigator of the bloodshed in Kenosha in the summer of 2020. Prosecutors said the footage showed him pointing his rifle at protesters before the shooting erupted.

[Hav]

46. I have the same problem of finding good videos

The prosecutor went through it during the closing starting at 14m:24s in this video:

I think we can all understand the problem. I cannot see anything, that's why the zoom was needed. I think Rittenhouse is supposed to be under the white shield, below that bright light in the center of the footage, behind the red light.

Here is a zoomed version by someone on Twitter going through the video in several tweets:

Link to tweet

I'd only use it to look at the footage and not put too much weight into his conclusions.


I think it's fair to say that the jury's wish to go over this video again is of concern for the defense. I suppose they have some big screens and maybe better quality versions. If they see him raising the gun, he might actually get convicted for something.

[Buckeye_Democrat]

50. Thank you!

It's indeed difficult to see Rittenhouse raising his gun before he was chased, without it being zoomed as the jury experienced. TV reporters might've only had that same courtroom video that you found, so they didn't want to delve into it.

Again, thanks for actually finding it!

I thought the defense attorney looked very worried immediately after that video was shown, with a prosecutor also raising the gun to help demonstrate what Rittenhouse was doing at that point.

[olegramps]

47. They are just grasping at straws; nothing new for defense attorneys.

[melm00se]

51. The question is

whether the defense is entitled to the same quality of evidence that the prosecution has and has used.

The motion stated:

“The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant”

The judge has to determine if the motion has merit. Remember, the state is required to turnover any evidence they plan to use. Whether it must be of the same quality, is an open question.

[zanana1]

52. If there's a guilty verdict...

the judge will consider a mistrial? I don't understand that. It seems that he is part of the defense team.

[Hav]

55. Why would there be a mistrial if he's not convicted?

The video in question is a crucial part of the prosecution's narrative and the same video wasn't available for the defense. Some of the decisions the jury will make will likely be based almost entirely on this video. The prosecution messed up. But if the video doesn't lead to a conviction for some specific charges that could be seen as related to the footage, then the judge can ignore the motion for a mistrial because it didn't have an influence. If the video had an influence, the judge has to go back and make a decision because the defense could have argued their case based on clearer evidence.

[zanana1]

56. The defense did get a copy of that video.

They're saying it was grainy and the prosecutor's isn't.

[Hav]

58. Yes, I worded that poorly

The footage in question is already not high quality and only a very small part of that video that requires zoom is of relevance. This will be the difference between whether he walks or spends decades in prison. The quality of the video the defense had was considerably worse from what I heard and they based their defense on that.