After a third full day of deliberations, the jury in the criminal trial of Kyle Rittenhouse, the 18-year-old who fatally shot two men last year during unrest in Kenosha, Wis., has again broken for the night without reaching a verdict.
The panel of 12 jurors has deliberated for roughly 23 hours since Tuesday morning in an attempt to reach a unanimous verdict on the five counts facing Rittenhouse. If convicted on the most serious charge, first-degree intentional homicide, Rittenhouse will be sentenced to life in prison.
Jurors must evaluate whether Rittenhouse’s fear for his life was a legitimate and reasonable fear, and if so, whether his use of deadly force was reasonable, or whether he acted recklessly when he shot his AR-15-style rifle that night, killing Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounded Gaige Grosskreutz, then 26.
Experts said that a long deliberation time is not necessarily a surprise in this case.
Rittenhouse faces five felony counts, four of which are different charges. In addition, on the counts related to the shootings of Huber and Grosskreutz, jurors may consider lesser versions of the original charges.
“There’s so many layers involved here. I’m not surprised it’s taking so long,” said Angela Jones, an assistant professor of criminology at Texas State University who studies jury behavior.
Complex jury instructions can add to deliberation time, she said.
Judge Bruce Schroeder took more than an hour to read aloud the 36 pages of jury instructions, which are filled with ambiguous legal terms like “reasonable belief” and “utter disregard for human life” that are crucial to jurors’ evaluation of the case. On Thursday, a juror asked the judge if she could take the instructions home.
“Even if you have a college degree, if you’re not a lawyer, you just don’t understand the legal jargon that’s being used,” said Jones. “If jurors have different views on what is ‘reasonable,’ … that is where they can get hung up on coming to a unanimous decision.”
Conventional wisdom holds that longer deliberation times tend to be better for the defense, Jones said.
The jury reviewed versions of two key videos
On Wednesday, the jury spent nearly an hour reviewing versions of two crucial videos that captured Rittenhouse’s encounter with Joseph Rosenbaum, the initial confrontation that sparked the events that followed on the night of Aug. 25, 2020.
One, an infrared video recorded from an FBI surveillance aircraft, shows a crowd milling around a used-car lot as Rosenbaum runs into the frame with Rittenhouse tailing him. The two pause; then Rosenbaum begins to chase Rittenhouse, who then turns to shoot him.
The second, a video that was filmed by a drone located roughly a block away from the used-car lot, captures much of the interaction. But due to the drone’s distance from the encounter and the fact that it was filmed at night, it is difficult to see exactly what happens between the two before the chase begins.
Prosecutors have argued that the videos show that Rittenhouse provoked the encounter when he pointed his rifle at Rosenbaum, prompting Rosenbaum to chase him into the lot. If successful, the provocation argument would undercut Rittenhouse’s claim that he had acted in self-defense.
During testimony last week, Rittenhouse denied pointing his rifle at Rosenbaum before the chase.
Two mistrial requests loom
Rittenhouse’s lawyers on Wednesday called for a mistrial over the drone video. They said that prosecutors — who obtained the full-quality drone video halfway through the trial — sent a compressed version of the video to defense lawyers, meaning they did not have access to the higher-definition version until testimony closed last week.
“We would have done this case in a little bit different manner,” said defense attorney Corey Chirafisi.
Prosecutors acknowledged the mistake but said it was inadvertent, and urged the judge to reject the motion. The jury saw the high-quality version during closing arguments and deliberations on Wednesday.
It was the defense team’s second mistrial motion of the trial, following a motion filed after lead prosecutor Thomas Binger’s cross-examination of Rittenhouse, during which Judge Bruce Schroeder admonished Binger for encroaching on Rittenhouse’s right to remain silent.
Andrew Martinez, a defense attorney based in Baraboo, Wis., who is not involved in the case, said it is unusual for defense lawyers to file a second mistrial motion before the judge rules on the first.
“I feel like the defense is feeling nervous here,” Martinez said.
But perhaps even more unusual, Martinez added, is that Schroeder has not yet ruled on either mistrial request.
“That is antithetical to what almost every judge wants to do,” he said. “Judges want to give the parties a reasonable chance to be heard, a reasonable trial, and then end it. There are victims, there are survivors, there are deeply interested parties here. And everyone wants this done.”
Judge bans MSNBC from courtroom
Kenosha police reported on Thursday that a journalist who claimed to be working for MSNBC had been stopped by police after running a red light while appearing to tail a bus transporting jurors away from the courthouse on Wednesday evening.
“This is a very serious matter,” said Schroeder in court Thursday. The judge has banned MSNBC journalists from entering the courthouse for the duration of the trial.
Last night a person who is alleging to be affiliated with a national media outlet was briefly taken into custody and issued several traffic related citations. Police suspect this person was trying to photograph jurors. This incident is being investigated much further.
— Kenosha Police Dept. (@KenoshaPolice) November 18, 2021
In a statement sent to NPR, an NBC News spokesperson acknowledged that a freelancer working for the organization had been stopped by Kenosha police.
“Last night, a freelancer received a traffic citation. While the traffic violation took place near the jury van, the freelancer never contacted or intended to contact the jurors during deliberations, and never photographed or intended to photograph them. We regret the incident and will fully cooperate with the authorities on any investigation,” the spokesperson said.
Additional reporting by Wisconsin Public Radio’s Corrinne Hess.