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NEW: Rittenhouse prosecution allegedly withheld video evidence from the defense; mistrial still on the table

Sean Krajacic-Pool/Getty Images

As the jury continues its deliberation in the Kyle Rittenhouse case, a motion for mistrial still hangs in the balance that includes an allegation that the prosecution withheld critical video evidence from the defense.

What are the details?

The Illinois teenager's defense team filed a written motion on Monday requesting a "mistrial with prejudice," including two previous allegations and a third that claims the prosecution deliberately withheld a higher-quality version of drone video evidence, the Milwaukee Journal-Sentinel reported.

According to the outlet, on Nov. 5, prosecutors gave defense attorneys a "compressed version" of the drone video that "was not as clear as the video kept by the state." Then on Saturday, they handed over the higher-quality video to the defense.

The prosecution argued that they did not intentionally withhold the higher-quality version of the video. They also said that version of the video was played many times during the trial, thus affording the defense opportunity to comment on it.

The video in question shows the defendant pointing his gun towards at least one bystander during the Aug. 25, 2020, Black Lives Matter riots in Kenosha, Wisconsin, the Chicago Tribune reported.

In their motion, the defense team argued the evidence was withheld on purpose since the action caught on camera is the "linchpin" of the prosection's case. Throughout the trial, the state has claimed that Rittenhouse provoked the violence that night by bringing a gun to the protests.

On Wednesday, as the jury deliberated, defense attorneys asked for a mistrial without prejudice on the matter.

Rittenhouse, who was 17 at the time of the incidents, is facing multiple felony murder counts for fatally shooting two men and wounding a third during the riots in Kenosha last summer. The teenager's legal team has maintained that he acted in self-defense when he fired the shots.

Video evidence of the actual incidents seen by the public appears to show Rittenhouse being chased down by rioters and physically threatened before he opened fire.

What else?

Despite the fact that the jury is on the second day of deliberation, a mistrial can still be declared by Kenosha County Circuit Court Judge Bruce Schroeder even after a verdict is read.

The defense made the request for a mistrial with prejudice last week in light of two occasions of possible prosecutorial misconduct. On one occasion, Kenosha County Assistant District Attorney Thomas Binger seemed to question the defendant's post-arrest silence during cross-examination, something Judge Schroeder called a "grave constitutional violation." Then minutes later, Binger brought up an Aug. 10 incident that had reportedly been excluded from open discussion in a pretrial order.

The behavior prompted Schroeder to dismiss the jury and give Binger a fiery lecture.

A mistrial with prejudice declaration would effectively acquit the defendant and protect him from being tried again on the charges.

Anything else?

Legal experts told the Journal-Sentinel that the issuance of such a declaration after a verdict is read is unlikely, but not outside the realm of possibilities.

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

"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," added Keith Findley, a professor at the University of Wisconsin Law School, in an interview.

John P. Gross, also a professor at the University of Wisconsin Law School, argued that a mistrial declaration "should be off the table" at this point but noted that Schroeder has shown "he likes to keep his options open."

Editor's Note: This article has been updated to include further detail about the drone footage in question and responses by both the prosecution and the defense.

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