Violent scuffles took place outside the courtroom in Kenosha on Wednesday where the 12-person jury are deliberating the fate of Kyle Rittenhouse, with at least one Rittenhouse critic arrested.
Tensions rose when a young man wearing a ‘F**k Kyle’ T-shirt, Bart Simpson backpack, and Chicago Bulls beanie was arrested after scuffling with prominent Rittenhouse supporter Emily Cahill.
The two traded insults before the man threw a sign at Cahill.
He and fellow anti-Rittenhouse protestors tried to wrestle the sign back and as he was being pulled off Cahill he sucker-punched one reporter in the jaw.
Other protestors tried unsuccessfully to lead the man away and calm him down, but he then went on to strike several other people — including a DailyMail.com photographer — before being pinned to the ground and hauled away in a paddywagon.
He was heard calling for his mother as the vehicle pulled away.
Wearing a Bart Simpson backpack, a protester calling for Kyle Rittenhouse’s conviction scuffles with an opponent on the steps of the courthouse on Wednesday
A BLM supporter is seen scuffling with pro-Rittenhouse demonstrator Emily Cahill on Wednesday
The man in the Bart Simpson backpack is pictured on Wednesday being arrested by Kenosha police following the scuffle
A second person is seen being detained by Kenosha police on Wednesday
The flurry of violence as dark fell came after a calm day, which saw supporters of both sides had been sharing pizza as they awaited the verdict for the second day.
Inside court, however, Wednesday saw high drama as Rittenhouse’s defense team made a new request for a mistrial based on the controversial drone footage that they described as a ‘linchpin’ of the state’s case against him.
Addressing the court, defense attorney Corey Chirafisi said: ‘We’re talking about a potential life sentence here and it has to be addressed.’
Chirafisi made his request for a mistrial without prejudice this time acknowledging that the state could – and will – retry the case.
The jury has now asked to review the controversial footage, as well as the best views of all of the shootings, from six video clips, that they will be able to watch and re-watch as many times as they like.
Justin Blake (center), whose brother Jacob was shot by police on August 23, 2020 – sparking the Kenosha riots – is seen on Wednesday night leading a protest outside the courthouse
Speaking to the point that had dominated today’s proceedings even before their request to re-watch the footage, Chirafisi said that it needed to be addressed and that they would have tried the case differently had they possessed evidence of the same quality as the state.
According to Chirafisi there is no getting around the fact that the defense has been hamstrung because they did not have the highest quality version of one of the most significant videos played to the jury, while the state did.
‘We would have done this case in a little bit different manner [had we had it].’
He continued, ‘We didn’t have the quality of evidence that the state had until the case had been closed, the parties had rested, and we were going to closings.
‘We’ve talked to Mr Rittenhouse and I’m going to be asking the court for a mistrial based upon if we’re really trying to get to the heart of this, I’ve watched the video and I can tell you what I think, but it doesn’t matter what I think because we can’t put it to the jury anymore.’
Kyle Rittenhouse’s defense team made a new request for a mistrial Wednesday
The jury in the trial of Kyle Rittenhouse asked if it must return to the courtroom to watch video footage or if they can do that in private. Judge Bruce Schroeder said Wednesday that he ‘hasn’t even had a chance to read the motion to dismiss’ filed by the defense yesterday
Standing to defend the state’s position Assistant District Attorney James Kraus said that he thought they were ‘putting too much emphasis on a technical glitch.’
But he admitted, for the first time, that the video that had been sent to the defense was compressed.
In a brief break it appeared that the state had realized that the video file had been compressed when Detective Martin Howard emailed it to Kraus – who then forwarded it to defense attorney, Natalie Wisco.
Chirafisi said, ‘If you’re a prosecutor, your job is fairness and being a truth seeker.
‘It’s not debatable that it’s not fair what happened.
‘We can sit here all day and say it’s been played, we didn’t know there’s another version. How is that reasonable?’
Judge Schroeder decided to allow the jurors to view the footage but told the prosecution: ‘I’ve persistently warned the state that there’s a day of reckoning with respect to these things. I had my qualms.
‘I forewarned you and you pressed with this I let it in. My view on it now is we might as well follow through with it and if they’ve got everything correct and it’s reliable we’re okay.
‘But if it isn’t it’s going to be ugly.’
The defense stated it has found evidence that the program used to enhance the footage is not for use in law enforcement, nor regarded as forensically reliable.
Shortly after 3pm all parties returned to the court as they had come to an agreement over how the drone footage should be viewed – over defense objections to it being viewed at all.
The judge cleared the courtroom as jurors viewed it on the large monitors there rather than on a laptop in the jury room. A bailiff was positioned at the door.
As he told everyone to get out, Judge Schroeder warned: ‘If you leave anything electronic in here be sure to say goodbye because you will never see it again.’
Rittenhouse, who was 17 at the time of the shootings, is charged with first-degree intentional homicide and other counts
Lawyers for Rittenhouse filed their motion for mistrial with prejudice based on this and several other grounds. According to a motion filed yesterday by the defense, ‘The problem is the prosecution gave the defense a compressed version of the video’
Earlier on Wednesday the jury asked to see three separate videos, all of which relate to Rittenhouse’s shooting of Gaige Grosskreutz.
They asked for footage from Grosskreutz’s own livestream that night as well as two other videos that capture his shooting.
They have asked to view one – presented by the defense’s expert witness Dr. James Black – in both regular and slow motion and up until 10 seconds after Grosskreutz was shot.
Grosskreutz admitted on the stand that he had been pointing his gun at Rittenhouse when the teen pulled the trigger on him – a crucial point for the defense’s claim of self-defense.
Gaige Grosskreutz was shot by Kyle Rittenhouse on August 25, 2020 and his right bicep was almost entirely blown away. Grosskreutz, the state’s star witness, took the stand last week
Judge Bruce Schroeder felt compelled to again warn the state that their dependence on the controversial drone footage that the defense has accused them of withholding, is a ‘high risk strategy’ that could see their case collapse.
He said the state’s case could ‘fall like a house of cards’ if the footage proves to be forensically unsound.
Schroeder had earlier admitted that he had not even had a chance to read the motion for a mistrial filed by the defense, which argued in part that the state failed to provide high-definition drone footage central to their case in a timely fashion.
He returned to the court having done so.
Turning to address the matter he asked Assistant District Attorney James Kraus to explain the state’s position.
As revealed by DailyMail.com, the defense stated in their motion that the prosecution provided them with a file that was 4MB in size while they possessed a file that was 11MB – and provided that one to the state’s crime lab for enhancement.
Kraus insisted that he had emailed the same file and said that it must have been compressed by the Android phone to which it was sent or by the defense’s email.
It was a version that the defense robustly rejected.
Defense attorney Natalie Wisco addressed the court for the first time in proceedings.
She explained that she had never viewed the footage on her phone and that the file name and creation time of the footage supplied by the state on November 5 was different to that of the high-definition footage of which they only learned later.
The difference was only exposed in court Friday, she explained, when the state did not have an exhibit ready for the judge to view and so she played the defense’s version – which was markedly different in quality.
‘This is your best picture?’ asked the judge of the blurry image – a request that prompted Kraus’s admission that they had better.
On Wednesday Wisco was blunt.
‘There is no way that what ADA Kraus is saying is true because the file name [we received] should have been exactly the same as the one provided to the state crime lab,’ she said.
Kraus hit back, saying that ‘as an officer of the court’ he was ‘insulted’ at the allegation that he would lie.
But in a startling move Judge Schroeder silenced him, saying: ‘We are going to have to take testimony under oath.
‘This is going to require expert testimony under oath as to what the facts are.
‘I re-iterate my [earlier] comment that given the cloudy picture about this particular exhibit this is a high-risk strategy or the state.
‘I was queasy about this from the beginning and I’m only queasier about it now.’
Kraus suggested that the relevant exhibits could be downloaded onto a thumb drive and the courtroom turned into the jury room so that jurors could watch it under the supervision of court officers.
He said that the court would have to be cleared and searched for any devices that might record deliberations.
Rittenhouse fatally shot Joseph Rosenbaum (left), 36, with an AR-15-style semiautomatic rifle after Rosenbaum chased Rittenhouse across a parking lot and threw a plastic bag at him shortly before midnight on August 25, 2020. Moments later, as Rittenhouse was running down a street, he shot and killed Anthony Huber (right), 26, a protester from Silver Lake, Wisconsin
James Armstrong, a photographic expert in the Wisconsin State Crime Lab, testified about drone video during the trial last week
Defense attorney Mark Richards said on Wednesday: ‘I don’t know what exhibits the jurors wish to see.
‘We have a real problem with them seeing the drone footage.
‘We have a motion pending based upon disclosure. If they want to see that, that’s just tainting the jury further.’
As revealed by DailyMail.com the state only provided a full-size file of the footage in question on Saturday November 13, two days ahead of closing.
Richards’ objection sparked the judge to respond to comments that he claimed he had seen in the media from experts expressing surprise that he had not ruled on the defense’s motion for a mistrial.
He said: ‘I haven’t even had a chance to read the motion to dismiss. I just got it yesterday and I really think that before reading I should let the state respond.’
He said that motions should be ‘taken under advisement’ unless they were ‘crystal clear.’
Warming to his theme Judge Schroeder continued, ‘It’s a shame that irresponsible statements are being made. As long as I’m talking about it [let’s talk about] the business of people not being identified as ‘victims.’
Judge Schroeder’s ruling that the men shot by Rittenhouse could not be described as ‘victims’ caused a great deal of backlash for the judge.
DailyMail.com revealed that there was a huge swell in the hate mail he has received as a result.
On Wednesday he said: ‘How would you like to be put on trial for a crime and the judge introduced the case to the jury by introducing you as the defendant and the person who’s accusing you as the victim?
‘Is it so difficult to use the term ‘complaining witness’?’
Prosecutors in the Kenosha shooter trial withheld evidence from the defense that was ‘at the center of their case,’ only sharing the high-definition drone video footage (pictured) on which they have hung their prosecution after the trial had concluded
Assistant District Attorney Thomas Binger played the enhanced drone footage to the jury during his closing statements and claimed that it showed Rittenhouse ‘pointing his gun’ at people – an assertion that opened the door to the state claiming Rittenhouse provoked the violence of the night of August 25, 2020
The judge also addressed the criticism he had received over the unusual method with which the alternate jurors had been selecting – Rittenhouse drew their numbers from a tumbler in court.
Schroeder said he had come up with that method two decades ago when trying a murder case in Racine.
‘There was a black defendant and 13 jurors – one of whom was black,’ he said.
‘The clerk drew the name out of the tumbler, and it was the only black [juror].
‘It was okay, but it was a bad optic I thought. I think people feel better when they have control.’
Before returning to the matter in hand the judge went onto defend all five attorneys trying this case as ‘very reputable and competent’ and though he did not go into specifics he said it thought it ‘shameful some of the things that are being done to these people.’
He described some coverage as ‘grossly irresponsible’ and said: ‘I’m going to think long and hard about live television of a trial again.
‘When I see what’s being done it’s really quite frightening: frightening. That’s the word for it.’
Turning his focus back on the jurors’ question, the judge ruled with the attorneys’ agreement that they should return to the courtroom to watch any exhibits.
As to how many times they are allowed to watch that video there was some discussion.
Judge Schroeder felt that limiting the number of times the jurors can re-watch any footage or look at any still images was an ‘insult’ to their intelligence.
Richards disagreed saying that watching or re-watching ‘three or four times’ was okay but that watching without limit could lead to an undue emphasis being placed on one piece of evidence.
The judge will make a final decision on that detail once the defense has had an opportunity to research legal precedents.
What charges does Kyle Rittenhouse face?
Kyle Rittenhouse shot three men, killing two of them and wounding the third, during a protest against police brutality in Kenosha, Wisconsin, last year. Rittenhouse has argued that he fired in self-defense after the men attacked him.
Here’s a look at the charges that prosecutors carried into court, as well as lesser charges that the judge could put before the jury in final instructions:
COUNT 1: FIRST-DEGREE RECKLESS HOMICIDE, USE OF A DANGEROUS WEAPON
This felony charge is connected to the death of Joseph Rosenbaum, the first man Rittenhouse shot. Bystander video shows Rosenbaum chasing Rittenhouse through a parking lot and throwing a plastic bag at him. Rittenhouse flees behind a car and Rosenbaum follows. Video introduced at trial showed Rittenhouse wheeling around and firing as Rosenbaum chased him. Richie McGinniss, a reporter who was trailing Rittenhouse, testified that Rosenbaum lunged for Rittenhouse’s gun.
Reckless homicide differs from intentional homicide in that prosecutors aren’t alleging Rittenhouse intended to murder Rosenbaum. Instead, they’re alleging Rittenhouse caused Rosenbaum’s death in circumstances showing an utter disregard for human life.
Former Waukesha County District Attorney Paul Bucher said prosecutors’ decision to charge reckless instead of intentional homicide shows they don’t know what happened between Rittenhouse and Rosenbaum and what might have been going through Rittenhouse’s mind when he pulled the trigger.
The charge is punishable by up to 60 years in prison. The dangerous weapon modifier carries an additional five years.
Prosecutors asked Judge Bruce Schroeder to let the jury also consider a lesser charge, second-degree reckless homicide, that does not require a finding that Rittenhouse acted with utter disregard for human life. It’s punishable by up to 25 years in prison. But after Rittenhouse’s attorneys objected, Schroeder said he did not plan to give that instruction. He said he expected that a guilty verdict on that count would be overturned because the defense objected to adding it.
COUNT 2: FIRST-DEGREE RECKLESSLY ENDANGERING SAFETY, USE OF A DANGEROUS WEAPON
This felony charge is connected to the Rosenbaum shooting. McGinniss told investigators he was in the line of fire when Rittenhouse shot Rosenbaum. The charge is punishable by 12 1/2 years in prison. The weapons modifier carries an additional five years.
Prosecutors asked Schroeder to let the jury consider a second-degree version of this charge. The difference is that the second-degree version doesn’t require a finding that Rittenhouse acted with utter disregard for human life. Schroeder said he was inclined to allow that instruction, though he didn’t make a final ruling. The charge is punishable by up to 10 years in prison.
COUNT 3: FIRST-DEGREE RECKLESSLY ENDANGERING SAFETY, USE OF A DANGEROUS WEAPON
Video shows an unknown man leaping at Rittenhouse and trying to kick him seconds before Anthony Huber moves his skateboard toward him. Rittenhouse appears to fire two rounds at the man but apparently misses as the man runs away.
This charge is a felony punishable by 12 1/2 years in prison. The weapons modifier again would add up to five more years.
Schroeder said he would decline prosecutors’ request that jurors be allowed to consider this charge in the second degree.
COUNT 4: FIRST-DEGREE INTENTIONAL HOMICIDE, USE OF A DANGEROUS WEAPON
This charge is connected to Huber’s death. Video shows Rittenhouse running down the street after shooting Rosenbaum when he falls to the street. Huber leaps at him and swings a skateboard at his head and neck and tries to grab Rittenhouse’s gun before Rittenhouse fires. The criminal complaint alleges Rittenhouse aimed the weapon at Huber.
Intentional homicide means just that – a person killed someone and meant to do it. Bucher said that if Rittenhouse pointed the gun at Huber and pulled the trigger that would amount to intentional homicide. However, self-defense would trump the charge.
‘Why I intended to kill this individual makes the difference,’ Bucher said.
The count carries a mandatory life sentence. The weapons modifier would add up to five years.
Prosecutors asked Schroeder to give the jury the option of second-degree intentional homicide, first-degree reckless homicide and second-degree reckless homicide in Huber’s death. The defense objected only to the second-degree reckless homicide charge, and Schroeder said he ’embraced’ that argument.
Second-degree intentional homicide is a fallback charge when a defendant believed he was in imminent danger of death or great bodily harm and that it was necessary to use force – but either belief was unreasonable. It’s punishable by up to 60 years in prison.
The first-degree reckless homicide charge sought in Huber’s death matches an original charge in Rosenbaum’s death – it would require jurors to decide that Rittenhouse caused Huber’s death with an utter disregard for human life – and is punishable by up to 60 years in prison.
COUNT 5: ATTEMPTED FIRST-DEGREE INTENTIONAL HOMICIDE, USE OF A DANGEROUS WEAPON
This is the charge for Rittenhouse shooting Gaige Grosskreutz in the arm seconds after he shot Huber, and as Grosskreutz came toward him holding a pistol. Grosskreutz survived. Video shows Rittenhouse pointing his gun at Grosskreutz and firing a single round.
The charge carries a maximum sentence of 60 years. The weapons modifier would add up to five more years.
Prosecutors asked that the jury be allowed to consider lesser counts in the Grosskreutz shooting: second-degree attempted intentional homicide, first-degree reckless endangerment and second-degree reckless endangerment. Defense attorneys didn’t oppose the first, but did oppose adding the reckless endangerment counts. Schroeder didn’t rule but said he was inclined to side with prosecutors.
The possible punishment for attempted second-degree intentional homicide is 30 years.
DISMISSED – COUNT 6: POSSESSION OF A DANGEROUS WEAPON BY A PERSON UNDER 18
Rittenhouse was armed with an AR-style semi-automatic rifle. He was 17 years old on the night of the shootings. Wisconsin law prohibits minors from possessing firearms except for hunting. It was not clear on Friday what Schroeder intends to tell jurors about that charge.
The charge is a misdemeanor punishable by up to nine months behind bars.
Judge Bruce Schroeder dismissed count 6 from Rittenhouse’s rap sheet Monday morning.
COUNT 7: FAILURE TO COMPLY WITH AN EMERGENCY ORDER FROM STATE OR LOCAL GOVERNMENT
Rittenhouse was charged with being out on the streets after an 8 p.m. curfew imposed by the city, a minor offense that carries a fine of up to $200. Judge Bruce Schroeder dismissed the charge during the second week of trial after the defense argued that prosecutors hadn’t offered enough evidence to prove it