The judge presiding over the Kenosha shooter ‘hasn’t even had a chance to read the motion to dismiss’ filed by the defense yesterday and revealed by DailyMail.com.
Judge Bruce Schroeder made the admission as he was addressing the court Wednesday morning after a jury question sparked discussion over the controversial drone footage.
The jury alerted the judge that they had two questions related to the footage.
They asked if it must return to the courtroom to watch video footage or if they could do that in private as well as whether they need to have the exact exhibit number to do so.
Both Assistant District Attorney Thomas Binger and defense lead Mark Richards agreed that they should return to the courtroom.
But Richards had one reservation in respect to the possible footage viewed.
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
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’
Yesterday the defense filed a motion for mistrial with prejudice based in part on the fact that the prosecution did not share high-definition drone footage with the defense until after the trial part of proceedings had concluded, and evidence closed.
Today he said, ‘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.
Richard’s 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.
Today 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’?’
James Armstrong, a photographic expert in the Wisconsin State Crime Lab, testified about drone video during the trial last week
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 flack over the unusual method with which the alternate jurors had been selecting – Rittenhouse drew their numbers from a tumbler in court.
According to Judge Schroeder he had come up with that method two decades ago when trying a murder case in Racine.
He said, ‘There was a black defendant and 13 jurors one of whom was black. 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.
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
Six of the 18 jurors who have heard the case were selected as alternates Tuesday morning and must remain in the courthouse while the remaining 12 deliberate in case any of the selected jurors are unable to continue deliberations for any reason such as ill-health. If that were to happen one of the alternates will be asked to step in.
While they wait, the alternates will be kept separate from the rest of the jurors and allowed to access their laptop computers and watch movies provided by the court but they cannot discuss the case with each other or view any information about it.
Kyle Rittenhouse himself drew the numbers of the six jurors from a brown metal tumbler, handing the slips of paper to the bailiff who handed them to the judge to be read.
The three men and three women who were drawn stood as their number were read. The remaining jury now consists of five men and seven woman and all but one juror is white.
Addressing the remaining 12 jury members, Judge Bruce Schroeder said Tuesday, ‘It is for you to determine whether the defendant is guilty or not guilty.
‘You must make a finding on each count [and your] verdict on one count must not affect your finding on any other count’
The entire proceedings lasted less than ten minutes with the jury sent out at 9.14am.
Rittenhouse, 18, is charged with first-degree intentional homicide and other counts for killing Joseph Rosenbaum and Anthony Huber and wounding Gaige Grosskreutz on August 25, 2020.
Six of the 18 jurors who have heard the case were selected as alternates Tuesday morning and must remain in the courthouse while the remaining 12 deliberate in case they should be re-called
Defense attorney Mark Richards began closing statements Monday afternoon claiming Assistant District Attorney Thomas Binger ‘lied to the jury’s faces’
Assistant District Attorney Thomas Binger said in closing arguments Monday that when the shooting stopped, Rittenhouse walked off like a ‘hero in a Western’
On Monday, Judge Bruce Schroeder told the jury to ignore ‘everyone’s opinion’ – including that of President Joe Biden, who labeled Rittenhouse a white supremacist, and Donald Trump, who has described Rittenhouse as someone who acted in self defense.
Assistant District Attorney Thomas Binger said in closing arguments Monday that when the shooting stopped, Rittenhouse walked off like a ‘hero in a Western.’
But Rittenhouse’s lawyer countered that the shooting started after the young man was ambushed by a ‘crazy person’ that night and feared his gun was going to be wrested away and used to kill him.
The case has divided the nation and brought back to the surface the debate that tore through cities last summer when Rittenhouse shot dead two BLM protesters during a riot in Kenosha, Wisconsin, that was triggered by the police shooting of Jacob Blake, an unarmed black man.
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
On Tuesday Black Lives Matter protesters demonstrating on the steps of Kenosha’s courthouse threatened to ‘shut down’ the city if Rittenhouse is acquitted, as the National Guard were put on standby to deal with any potential unrest.
An activist with a megaphone, wearing a BLM hoodie, urged on his fellow protesters, chanting: ‘If Kenosha don’t get it, shut it down’.
He then began chanting: ‘Seven shots in the back’ – a reference to Jacob Blake, a black man who was shot seven times by a white officer in Kenosha on August 23, 2020.
Blake’s shooting sparked the Kenosha riots, during which Rittenhouse on August 25, 2020 shot and killed two white BLM demonstrators and injured a third.
Ahead of the verdict, the governor of Wisconsin, Tony Evers, ordered 500 members of the National Guard to be put on standby, 60 miles away, in case of unrest.
Many expect there to be fury from the ‘losing’ side of the argument, regardless of whether the 18-year-old is convicted or acquitted.
A protester is restrained by a friend during a confrontation with a counterprotester on the steps of the courthouse in Kenosha on Tuesday
Waving the black, red and green flag of Black Lives Matter, demonstrators gathered on Tuesday outside the Kenosha courthouse
Behind him, supporters of Kyle Rittenhouse held placards aloft backing the teenager
‘Maserati Mike’ gets out of his black Maserati at Kenosha courthouse on Wednesday. He was the first protester there and chanted through his megaphone ‘Black Lives Matter is a terrorist organization’
‘We continue to be in close contact with our partners at the local level to ensure the state provides support and resources to help keep the Kenosha community and greater area safe,’ Governor Evers stated.
‘The Kenosha community has been strong, resilient, and has come together through incredibly difficult times these past two years, and that healing is still ongoing,’ Evers said.
‘I urge folks who are otherwise not from the area to please respect the community by reconsidering any plans to travel there and encourage those who might choose to assemble and exercise their First Amendment rights to do so safely and peacefully.’
Kenosha Police Department and the Kenosha County Sheriff’s Department said they are monitoring the trial and are working with local and federal authorities to ensure the ‘safety of our communities.’
‘We recognize that there are varying opinions and feelings that revolve around the trial that may cause concerns,’ the two agencies said.
The protests outside Kenosha courthouse continued on Wednesday with the arrival of an armed man calling himself ‘Maserati Mike’. ‘Mike’ arrived in the black sportscar where he takes his nickname, carrying a megaphone and wearing thin-rimmed glasses and a bow-tie.
‘Black Lives Matter is a terrorist organization,’ he chanted, before being told by cops to put his gun away because he was within 1,000ft of a school – an order he complied with. He complied, then left the court in his sportscar.
There were only a handful of others there, including a woman holding an American flag, but more are expected throughout the day.