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A jury is weighing the Kyle Rittenhouse case, but a mistrial motion is still pending. What happens now?

Milwaukee Journal-Sentinel logo Milwaukee Journal-Sentinel 11/17/2021 Ashley Luthern, Milwaukee Journal Sentinel
Judge Bruce Schroeder speaks to issues on jury instruction during Kyle Rittenhouse's trial at the Kenosha County Courthouse in Kenosha on Monday. © Sean Krajacic/The Kenosha News /Pool Judge Bruce Schroeder speaks to issues on jury instruction during Kyle Rittenhouse's trial at the Kenosha County Courthouse in Kenosha on Monday.

As the jury began weighing the case against Kyle Rittenhouse Tuesday, another legal issue remained in limbo before the court.

Last week, Rittenhouse's attorneys asked for a mistrial with prejudice, meaning if the judge granted their motion, prosecutors could not refile the charges.

Kyle Rittenhouse listens as the attorneys and the judge talk about jury instructions at the Kenosha County Courthouse in Kenosha, Wis., on Monday, Nov. 15, 2021.  Rittenhouse is accused of killing two people and wounding a third during a protest over police brutality in Kenosha, last year. © Sean Krajacic/The Kenosha News /Pool Kyle Rittenhouse listens as the attorneys and the judge talk about jury instructions at the Kenosha County Courthouse in Kenosha, Wis., on Monday, Nov. 15, 2021. Rittenhouse is accused of killing two people and wounding a third during a protest over police brutality in Kenosha, last year.

As of Tuesday morning, Judge Bruce Schroeder had not issued a ruling.

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If the jury comes back and acquits Rittenhouse in the fatal shooting of two people and the wounding of a third, the motion is moot.

But if the jury returns a conviction on any count, Schroeder will need to make a ruling.

Given those dynamics, legal experts told the Journal Sentinel it was somewhat unusual that Schroeder had not yet issued a ruling on the motion.

"I’m not sure why the judge has waited to rule," said Michael O'Hear, professor of criminal law at Marquette Law School, in a email. "It seems unlikely to me that he would have turned the case over to the jury if he expected to grant the mistrial."

Keith Findley, a professor at the University of Wisconsin Law School, called the lack of decision "odd."

"The only reason I can think of for waiting is perhaps he wants to give the jury a chance to acquit so he doesn’t have to, but that’s speculation on my part," Findley, co-founder of the Wisconsin Innocence Project, said in an interview.


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John P. Gross, professor at the University of Wisconsin Law School, said the delay possibly made sense in terms of the resources already expended in the case, which included eight days of testimony. Still, he said it was rare.

"It really should be off the table but as he’s shown during the trial, he likes to keep his options open," Gross said of the judge.

On Wednesday, after this article published, the judge said he wanted to give prosecutors a chance to respond formally and that he was "astounded" anyone would speculate as to why he had not made a ruling on the motion.

The motion centers on the prosecution's cross-examination of Rittenhouse. Assistant District Attorney Thomas Binger attempted to establish that Rittenhouse had heard more than a week of testimony and that may have had an influence on his own testimony.

The judge admonished Binger for doing so, saying the questioning was more commentary on Rittenhouse's silence during the earlier proceedings — silence that Rittenhouse has a constitutional right to invoke — and called the prosecutor's actions "borderline."

Later in questioning, Binger referenced a previous incident involving Rittenhouse in which he was seen on video witnessing a shoplifting and saying if he had a gun, he'd shoot the person stealing. The judge already had ruled that incident should not be brought up in front of the jury, and again admonished Binger.

The motion was raised in court last week. Defense attorneys filed a written motion Monday with a third allegation that prosecutors had given defense attorneys a "compressed version" of drone video on Nov. 5 that "was not as clear as the video kept by the state." The higher-quality video was given to the defense on Saturday.

Defense attorneys argued that was done intentionally, calling the video the "linchpin" of the state's case in their motion.

The mistrial with prejudice could be granted if the judge decides that the prosecution was trying to purposefully induce a mistrial. If that happens, prosecutors could appeal Schroeder's decision. If the judge did not grant the motion, then Rittenhouse's attorneys could raise the same issues about prosecutors' conduct during an appeal of the conviction.

The three outside legal experts said Tuesday they believed it unlikely that Schroeder would overrule a jury's decision to convict and grant the motion, but one pointed out the judge has been "full of surprises." Schroeder has emerged as a lightning rod in the case, yelling at the prosecutor and receiving blowback for his conduct during the nationally-watched trial.

"If he invalidated the conviction and declared a mistrial, I think it would be a really bad look," Gross said.

The jury is weighing the evidence and navigating complicated legal definitions, O'Hear said.

"I don’t think a judge would normally ask a jury to go to that effort if it was all going to be in vain," O'Hear said.

Elliot Hughes of the Journal Sentinel staff contributed to this report.

Contact Ashley Luthern at ashley.luthern@jrn.com. Follow her on Twitter at @aluthern.

This article originally appeared on Milwaukee Journal Sentinel: A jury is weighing the Kyle Rittenhouse case, but a mistrial motion is still pending. What happens now?

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