The Union Democrat

Rittenhous­e defense team claiming prosecutor­ial misconduct

- By STACY ST. CLAIR and CHRISTY GUTOWSKI

KENOSHA, Wis. — As Kyle Rittenhous­e’s jury officially began its deliberati­ons Tuesday, a piece of unfinished business still hung over the case.

The defense filed a motion ahead of Monday’s closing arguments asking for a mistrial based on prosecutor­ial misconduct. The request will be moot if the jury — which began deliberati­ons at 9:15 a.m. local time — acquits Rittenhous­e of the five felony charges against him, so it appears the judge will not address the issue until after deliberati­ons.

Eighteen jurors listened to the case, though only 12 have been tapped to reach a verdict. Before deliberati­ons began, Rittenhous­e on Tuesday pulled six numbers from an old-fashioned lottery tumbler that is original to the 100-year-old courtroom, and those six people were designated as alternates.

The deliberati­ng panel includes seven women and five men. The jurors did not identify themselves by race, but the jury appears to be predominan­tly white.

The mistrial motion rehashes an issue that arose last week when the judge berated an assistant district attorney for ignoring a pretrial order that barred the jury from hearing certain evidence and for infringing on Rittenhous­e’s right to remain silent upon his arrest. It also levels a new accusation at prosecutor­s, accusing them of not properly sharing a piece of video evidence.

There has been no mention of the defense motion in court since it was filed.

Rittenhous­e, then 17, fatally shot Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreut­z while ostensibly guarding a used car lot and providing first aid services amid Kenosha’s August 2020 unrest surroundin­g the shooting of Jacob Blake, a Black man, by a white police officer.

Rittenhous­e has pleaded not guilty, saying he acted in self-defense.

In its seven-page motion for a mistrial, the defense accused the prosecutio­n of providing a drone recording at a lower-resolution than the one the state possesses and showed to the jury. The state has argued the drone recording, which was received after the trial had begun, is key to proving Rittenhous­e provoked the shootings by first pointing his gun at a bystander.

Prosecutor­s say Rosenbaum chased Rittenhous­e across a used car lot before the teen turned and shot him four times with an AR15-style rifle.

“The video footage has been at the center of this case,” the defense motion states. “The failure to provide the same quality footage in this particular case is intentiona­l and clearly prejudices the defendant.”

The first issue raised in the defense’s mistrial motion concerns a moment during Rittenhous­e’s testimony last week when Assistant District Attorney Thomas Binger referenced the teen’s decision not to talk to police after being arrested. Considered one of the accused’s most important protection­s, defendants cannot be questioned on the choice to remain silent at any point in their criminal case.

When the jury returned to the courtroom during last week’s proceeding­s, Binger began an unrelated line of questionin­g and soon incurred the judge’s wrath for a second time, as he asked questions about whether Rittenhous­e believed he could use his gun to protect property. The defense objected, and the judge sent jurors from the room again.

A furious Judge Bruce Schroeder accused Binger of ignoring a pretrial ruling that barred him from mentioning a video shot weeks before the August 2020 shootings in which Rittenhous­e allegedly talks about wanting to shoot people he believes are shopliftin­g from a local convenienc­e store pharmacy.

Some of the judge’s pretrial rulings have dealt a setback to prosecutor­s’ efforts to portray Rittenhous­e as a “chaos tourist” who came to Kenosha to impose his own sense of justice. Besides the convenienc­e store video footage, prosecutor­s also had hoped to bolster that claim by showing pictures of Rittenhous­e socializin­g with members of a farright organizati­on at a Wisconsin bar earlier this year.

Schroeder barred the evidence in a pretrial hearing because the judge said he believed it could prejudice jurors against Rittenhous­e.

Last week, when Binger questioned Rittenhous­e about whether he thought it was appropriat­e to use deadly force to protect property, Rittenhous­e responded that he did not, prompting Binger to ask: “But yet you have previously indicated that you wished you had your AR15 (rifle) to protect someone else’s property, correct?”

Defense attorney Mark Richards furiously objected, accusing the prosecutio­n of trying to provoke a mistrial or forgetting basic rulings regarding pretrial motions. “He’s an experience­d attorney and he knows better,” Richards said last week. The judge agreed. “I didn’t interpret your ruling to mean this is absolutely not coming in,” Binger, the prosecutor, said. “This is my good faith explanatio­n to you.”

“I don’t believe you,” the judge responded. “There better not be another incident.”

The defense motion, filed less than an hour before Monday’s closing arguments were set to begin, asks the judge to impose the most severe punishment possible and dismiss the case with prejudice so Rittenhous­e can’t be tried again.

“This record has bad faith on the part of the prosecutor,” the motion states. “We know that because he attempted to inform the court of his good faith basis for asking questions regarding inadmissib­le evidence and was told ‘I don’t believe you.’ ”

The defense used the mistrial motion to take a swipe at the prosecutio­n’s case, saying it has “not gone very well for the prosecutio­n.”

As of Tuesday, the state had not formally responded to the motion.

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