December 3, 2021

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Will there be a mistrial in the Kyle Rittenhouse case? Here’s what it would mean – USA TODAY

6 min read

The jury in the Kyle Rittenhouse murder trial is deliberating the 18-year-old’s fate, even as the issue of a mistrial hangs over the case — potentially nullifying the verdict they reach.

Rittenhouse’s defense attorneys have asked twice for a mistrial, including one request that would bar the case from being tried again before a jury. Judge Bruce Schroeder has yet to rule. 

He said he would allow the jury to continue its deliberations but said the mistrial request will have to be addressed if there is a guilty verdict.

But anyway you cut it, legal experts say the judge waiting to rule on such a momentous motion is fairly odd. Experts say if a mistrial is declared it would bring even more scrutiny to an already divisive case since such rulings typically help defendants. 

“From the defense point of view, to get a mistrial is generally considered a favorable thing,” said Ion Meyn, an assistant professor at the University of Wisconsin Law School. “If you’re the defense, you’re definitely going to be doing this.”

Rittenhouse, 18, is charged with first-degree intentional homicide, first-degree reckless homicide and attempted first-degree intentional homicide stemming from shootings during a violent night of protest over police brutality in Kenosha, Wisconsin in the summer of 2020. He faces a mandatory life sentence if convicted of the most serious charge.

Throughout the trial, the prosecution painted Rittenhouse as a tourist vigilante from Illinois, armed with bad judgment and an AR-15 styled rifle he couldn’t legally possess, looking for vengeance against anti-police rioters. Rittenhouse’s defense attorneys argued he was essentially a Kenoshan, driven by a youthful sense of patriotism to protect and defend his community, who was forced to kill two people and wound a third to save his own life.

Here’s what a mistrial is and what it could mean for the case. 

Third day of jury deliberations:Kyle Rittenhouse jury will continue deliberations Friday; MSNBC barred from courtroom

Tears, yelling and calls for a mistrial:What a dramatic day could mean for the Kyle Rittenhouse murder trial

2 calls for a mistrial — 1 that would bar Rittenhouse from being retried 

Mistrial with prejudice: Rittenhouse’s attorneys originally asked for a mistrial with prejudice last week over prosecutors questioning the 18-year-old over evidence that the judge previously said he was mostly opposed to allowing in the trial. 

A mistrial with prejudice, which is rarely granted, would mean Rittenhouse could not be prosecuted again. Judges rarely grant such motions and the bar is fairly high to argue for a mistrial of this caliber. 

In such a case, it would mean the judge agrees that prosecutors purposely acted out or that the transgressions were so harmful that Rittenhouse couldn’t get a fair trial.

The episode that led to the defense asking for a mistrial with prejudice happened as prosecutor Thomas Binger was questioning Rittenhouse on the stand about whether he felt use of deadly force was appropriate to protect property. The prosecutor eventually asked him about comments he’d made in the days before the shootings that were unrelated to the protests.

Binger asked about Rittenhouse saying on video that he’d wanted to shoot suspected shoplifters — a piece of evidence that Schroeder had said he was leaning toward not allowing in the trial.

Rittenhouse’s attorneys immediately objected, jurors were told to leave the courtroom and Schroeder scolded Binger.

Rittenhouse’s lawyers called for a mistrial with prejudice. Defense lawyer Corey Chirafasi all but suggested prosecutors might be deliberately trying to cause a mistrial because the current one is “going badly” for the prosecution and authorities want a do-over. 

Binger apologized for not seeking permission from the judge before the questioning. When Binger said he had been acting in good faith, the judge replied: “I don’t believe that.”

Mistrial without prejudice: A second mistrial conundrum boiled over this week as the jury began deliberating a verdict in the case. 

Rittenhouse’s defense team filed a motion asking for a mistrial without prejudice in part over a key video that shows Rittenhouse fatally shooting the first man he fired at on the night of Aug. 25, 2020. The footage, both prosecutors and the defense agree, was given to Rittenhouse’s team in a lower quality format than what was presented during the trial by the state.

Defense attorney Corey Chirafisi said their team may have altered their defense based on the better quality video, which is much clearer and easier to see Rittenhouse. He argued the call for a mistrial came down to fairness in a court of law, noting Rittenhouse could spend life in prison if convicted on the most serious charges.

Assistant District Attorney James Kraus explained he believes the issue was an unintentional technical glitch as the video was compressed when a detective emailed it. He said the better quality version was sent to the prosecution via AirDrop, which kept the quality of the footage intact.

Chirafisi argued for a mistrial without prejudice, meaning the case could be tried again. It’s typically rare and declared due to an error that would make a fair trial impossible. Similarly, a mistrial could be declared if the 12-member jury panel could not come to a consensus, forcing a hung jury — which is also fairly rare. The jury is meeting Friday for a fourth day of deliberations. 

What would a mistrial mean for Rittenhouse? Will one be declared?

Mistrials are fairly rare and a costly endeavor judges typically don’t want. A mistrial without prejudice, allowing it to be retried, also can impact a final verdict in a case.

Law experts say mistrials tend to be more helpful to the defense. They can provide new hurdles for the state or, in the case of a mistrial with prejudice, eliminate the option of prosecuting a defendant altogether. If there is a second trial, the defense will already have a good idea what type of case the prosecutors intend to put forward, eliminating surprise witnesses or evidence. 

It “enables your team to adjust its case and possibly make changes to strengthen it,” Mays Law Office, a law firm based in Middleton, Wis., said, adding it can serve as a “do-over” and “go through the trial again knowing what worked and did not work before.”

Prosecutors already were wrestling with a number of problems during the trial, from being chastised by the judge multiple times to being denied allowing evidence into the trial that they said was key to their case. The judge also ruled against calling those shot by Rittenhouse “victims” but allowed them to be referred to as “looters.” 

Prosecutors could appeal if the judge grants a mistrial with prejudice, Meyn said. But if the order stands, the state would face enormous pressure when deciding whether to pursue a second trial of this magnitude, he said. The state could also decide to bring reduced charges or seek a plea deal, all of which benefit the defense.

The defense seeking the mistrial without prejudice, after initially seeking it with prejudice, is a change in tone, said Milwaukee defense attorney Julius Kim.

“They are essentially saying, ‘We just kind of want a new trial at this point, no matter what,’” Julius said.

Still, they must explain to the judge why what happened hurt Rittenhouse, Meyn said.

“You can’t just say the state gave me a lower-quality video and therefore I get a mistrial,” Meyn said. “That’s a losing argument for sure.”

The defense has a higher bar to meet in convincing the judge that a mistrial with prejudice is warranted, Meyn said. “It’s a pretty big lift,” he added. 

If Schroeder declares a mistrial without prejudice, prosecutors may file new charges. If there is no plea, Rittenhouse would wind up right back before the same judge, according to Michael Cicchini, a Kenosha defense attorney not involved in the case.

All in all, Kim said it’s a little unusual for a judge to wait for a verdict before ruling on a mistrial request: “I think he just kind of wanted to see where the cards fall, because depending on what the verdict is, that may let him off the hook on some of these decisions he has to make. … If he’s acquitted of everything, that makes these decisions a lot easier.”

Contributing: Associated Press

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