News & Politics

Mistrial? Prosecution Withheld Evidence From Rittenhouse Defense

Mark Hertzberg/Pool Photo via AP

In a shocking twist, Kyle Rittenhouse’s defense has submitted a motion for mistrial with prejudice—meaning the state could not try the case again—due to prosecutorial misconduct that includes the withholding of high definition drone footage of the shooting.

Among other allegations of prosecutorial misbehavior, like bringing up evidence that was not admitted into trial by the judge, the defense alleged that District Attorney Thomas Binger gave the defense a lower quality of drone footage than what they actually possessed.

On November 5, 2021, the fifth day of trial on this case, the prosecution turned over to the defense footage of a drone video which captured some of the incident from August 25, 2020. The problem is, the prosecution gave the defense a compressed version of the video. What that means is the video provided to the defense was not as clear as the video kept by the state. The file size of the defense video is 3.6 MB and the state’s is 11.2 MB. Further, the dimensions on our video are 480 x 212, the state’s 1920 x 844. The video which was in the state’s possession wasn’t provided to the defense until after the trial concluded. During the jury instructions conference, the defense played their version of the video for the court to review. The state indicated their version was much clearer and had their tech person come into court to have the court review their clearer video. The video is the same, the resolution of that video, however, was not. The state did not provide their quality video to the defense until Saturday, November 13, 2021, and only did so upon specific request by Attorney Wisco—two days before closing arguments and after the evidence had been closed.

The motion goes on to accuse Binger of acting in bad faith and quoted the judge telling Binger that he doesn’t believe he acted in good faith. This is important because one of the requirements to declare a mistrial and bar a retrial is that the “prosecutor’s action must be intentional in a sense of a culpable state of mind in the nature and awareness that his activity would be prejudicial to the defendant.”

The prosecutor’s conduct was clearly intentional. Initially, he asked the defendant about post-arrest silence and that objection was sustained. He then did it again, moments later..lThat behavior by the state was intentional and he knew it would be prejudicial to the defendant. He had previously attempted to get the evidence admitted as a bad act….This record has bad faith on the part of the prosecutor. We know that because he attempted to inform the court of his good faith basis for asking questions regarding the inadmissable evidence, and was told “I don’t believe you.” If it is not a good faith basis for seeking admission of previously excluded evidence then it is bad faith. The Court has made the statement that it does not believe the prosecutor’s statement. It is reasonable to conclude the court believes bad faith was involved.

The motion also argues that the prosecution should be required to “explain to the court why they did not copy the footage for the defendant with the same quality as their copy,” alleging that the footage is the centerpiece of evidence in the state’s case. “The idea that the state would provide lesser quality footage and then use that footage as a linchpin in their case…is intentional and clearly prejudices the defendant.”

Related: Kenosha DA Thomas Binger Has a History of Trial Screw-Ups

If this motion is granted, the judge would take the decision away from the jury and Rittenhouse would be set free without the ability for the state to retry him.

You can see a breakdown of the motion for mistrial on Rekeita Law below.