The prosecution and defense attorneys clashed Wednesday afternoon in the Kenosha County Court before Judge Bruce Schroeder over disputed video evidence as jurors continued a second day of deliberations.
The dispute involved several videos, especially a high-definition video that the prosecution used in closing arguments on Friday, but which had not been provided to the defense, which only received a low-definition version. The defense moved for a mistrial Tuesday on that basis.
Assistant District Attorney John Kraus told the judge that the prosecution had not intentionally withheld video evidence from the defense, but that there was an accidental compression involved in moving video between iPhone and Android devices.
The person who took the footage, according to Kraus, had earlier provided it to Rittenhouse’s former attorney, John Pierce, who had shown it last year on the Tucker Carlson Show on Fox News.
When it was emailed to the defense, there was a compression, he said, which had not been deliberate.
“If I knew how to compress files, and do all these technology things, I’d have a much better job,” Kraus said, claiming that the prosecution had done nothing to alter the video file.
The defense countered that the files appeared to be different, and the “metadata” accompanying the video appeared different. It also said that the video provided to Carlson — which Carlson’s show apparently bought — was different, as it was black-and-white. The prosecutor’s video was in color; that had not been the problem, but rather the superior quality of the prosecution’s video.
“At this point, your Honor, they have not requested what we’re fighting about,” defense lawyers Mark Richards observed at one stage.”
“You are correct,” the judge replied.
Earlier Wednesday, the jury sent a question to the judge about whether it would be permitted to review video evidence in the courtroom, or in private. The judge, while ruling that the video would have to be viewed in the courtroom — with no others present — added that this was his “nightmare” scenario, where disputes about the video evidence could consume the trial.
The court reconvened after the jury had asked two more questions about reviewing video evidence, focusing on three videos in particular, relating to the shooting of Gaige Grosskreutz (who was armed, and who was wounded and survived).
The prosecutors argued that the jurors should be able to watch videos as many times as they want, while the defense only wanted the jury to be able to watch once, as in court proceedings.
The lawyers argued over the applicable legal precedents, and Judge Schroeder expressed concern that earlier legal problems with the artificial intelligence technology used to enhance zoomed-in video evidence would only be amplified if the jury were able to watch those videos repeatedly.
The judge said that he would not rule on the motion to dismiss the case unless and until the jury convicted the defendant for something.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.