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Jurors ask to review video evidence on second day of deliberations in Kyle Rittenhouse’s homicide trial

<i>Pool</i><br/>Kyle Rittenhouse reaches into the tumbler to pull out a juror number on Tuesday.
Kyle Rittenhouse reaches into the tumbler to pull out a juror number on Tuesday.

By Eric Levenson and Brad Parks, CNN

The jury deliberating in Kyle Rittenhouse’s homicide trial on Wednesday asked to review a series of videos that show the teenager fatally shooting two people and wounding another during last year’s unrest in Kenosha, Wisconsin.

The 12-person jury, made up of five men and seven women, started deliberating on five felony charges Tuesday morning. The jury asked two questions on Tuesday to get copies of the jury instructions.

The jury deliberated from 9 a.m. to 4:30 p.m. CT on Wednesday and asked three more questions requesting to rewatch much of the video evidence in the case.

The videos include FBI surveillance video and drone video of the shooting of Joseph Rosenbaum, defense attorney Mark Richards told a courtroom pool reporter. In addition, jurors asked to see livestream video by Gaige Grosskreutz in which he speaks with Rittenhouse and another video showing Rittenhouse fall to the ground and shoot at three people.

Separately, defense attorneys on Monday filed a motion for mistrial with prejudice in the trial, accusing the state of intentional “prosecutorial overreach.” The seven-page defense motion, obtained by CNN on Wednesday, relates to the prosecution’s line of questioning during Rittenhouse’s testimony last week as well as concerns about access to video evidence.

Judge Bruce Schroeder said Wednesday he has not had a chance to read the motion and wants to let the prosecution respond first.

The deliberations come after a two-week trial highlighted by emotional and compelling testimony from Rittenhouse, the 18-year-old at the center of debates around self-defense, gun ownership and Black Lives Matter demonstrations. On the stand, he told jurors — and the viewing public — that he acted in self-defense.

“I didn’t do anything wrong. I defended myself,” he testified.

Rittenhouse is charged with five felonies: first-degree intentional homicide, first-degree reckless homicide, attempted first-degree intentional homicide and two counts of first-degree recklessly endangering safety. Jurors are also able to consider lesser offenses for two of the five counts. If convicted on the most serious charge, Rittenhouse could face a mandatory sentence of life in prison.

Schroeder dismissed a misdemeanor weapons possession charge and a non-criminal curfew violation prior to deliberations.

The charges stem from the chaotic unrest last year in the wake of the Kenosha police shooting of Jacob Blake, a 29-year-old Black man. After instances of rioting and fiery destruction, Rittenhouse, 17 at the time, took a medical kit and an AR-15-style rifle and joined up with a group of other armed people in Kenosha on August 25, 2020.

There, Rittenhouse fatally shot Rosenbaum — who was chasing the teenager and threw a bag at him — and then tried to flee. A crowd of people pursued the teenager, and Rittenhouse shot at an unidentified man who tried to kick him; fatally shot Anthony Huber, who had hit him with a skateboard; and wounded Grosskreutz, who was armed with a pistol.

Defense asks for mistrial

Rittenhouse’s defense team told the court last week they planned to file a motion for mistrial with prejudice — meaning the trial would end and there would be no chance for a retrial — and on Monday they did so.

The motion points to two testy exchanges between the judge and Kenosha County Assistant District Attorney Thomas Binger over the prosecutor’s line of questioning during Rittenhouse’s testimony last Wednesday.

In the first incident, the judge sent the jury out of the room and then warned Binger his questioning could be a violation of Rittenhouse’s right to remain silent under the Fifth Amendment of the US Constitution. In the second incident, Schroeder admonished the prosecutor for asking questions about an incident two weeks before the shootings that the judge said would not be permitted into evidence.

The motion also concerns a drone video played for the jury that shows Rittenhouse shooting Joseph Rosenbaum. The prosecution has made that video a central piece of their case, arguing that it shows Rittenhouse pointing his firearm at a man near Rosenbaum and provoking the fatal confrontation.

In the motion, defense attorneys said that they were given a compressed version of the video that was only 3.6 megabytes, while the state had a higher resolution version that was 11.2 megabytes. They realized the discrepancy after testimony had already ended.

In court Wednesday, prosecutor James Kraus said the video was inadvertently compressed when it was sent via email to the defense. He said the state did not know that would occur and “we cannot be held responsible” for a transfer issue.

“We didn’t compress anything, we didn’t change anything,” Kraus said.

The judge, who has expressed his unfamiliarity with technology issues this trial, said that he would like to “get somebody to explain this.” He asked for expert testimony on the issue and said he would take testimony under oath from attorneys to get to the bottom of the episode.

Defense attorney Corey Chirafisi requested a mistrial without prejudice — meaning the trial would end but Rittenhouse could be tried again — due to the video issue. Not getting the high-definition video until after testimony ended was a question of fairness, he said.

“We would have done this case in a little bit different manner if that was the situation,” he said. “We didn’t have the quality of evidence that the state had until the case had been closed.”

Kraus said the issue was not the state’s fault and noted that the defense watched the high-definition video in court along with the jury. He also noted a previous attorney for Rittenhouse had access to the video.

Judge Schroeder said he wouldn’t rule on the mistrial yet but warned the prosecution they could have problems going forward.

“My view on it now is where we are, we might as well follow through with it,” he said. “If (the prosecution) got everything correct and it’s reliable, then they won’t have a problem. If it isn’t, then it’s going to be ugly.”

What happened in the trial

Prosecutors called 22 witnesses over the course of six days as they sought to show Rittenhouse acted recklessly that night and provoked Rosenbaum by pointing the rifle at him, setting off the ensuing series of events.

“That is what provokes this entire incident,” Binger said in closing arguments. “When the defendant provokes this incident, he loses the right to self-defense. You cannot claim self-defense against a danger you create.”

The prosecution portrayed the three other people who confronted the teen as “heroes” trying to stop what they believed to be an active shooting. Binger also questioned the teenager’s decision to take a gun into the city in the first place, calling him a “chaos tourist.”

However, on the stand, Rittenhouse testified he acted in self-defense when he shot four times at Rosenbaum, who he said had threatened him earlier, chased him, thrown a bag at him and lunged for his gun. Rittenhouse also referred to the three other people he shot at as part of a “mob” chasing him.

He became emotional and broke down into tears during his testimony as he began to recount the initial shooting, leading to a break in the case.

In closing arguments, defense attorney Richards said Rittenhouse feared for his life when he opened fire.

“Every person who was shot was attacking Kyle. One with a skateboard, one with his hands, and one with his feet, one with a gun,” Richards said. “Hands and feet can cause great bodily harm.”

The trial featured more than a dozen videos from the night that showed what happened before, during and after the shootings. Most of the facts of what happened that night were not up for debate — rather, at the heart of the trial was the analysis of Rittenhouse’s actions and whether they can be considered “reasonable.”

The prosecution faced an uphill challenge in the case because Wisconsin law requires the state to prove beyond a reasonable doubt that Rittenhouse did not act in self-defense. But there are limits to a self-defense claim.

“The defendant may intentionally use force which is intended or likely to cause death or great bodily harm only if the defendant reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself,” the jury instructions explain.

™ & © 2021 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.

CNN’s Mike Hayes, Carma Hassan and Cheri Mossburg contributed to this report.

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