"The media coverage is insane": What will come first for Rittenhouse -- mistrial or hung jury?

Mark Hertzberg/Pool Photo via AP

Of course, the answer could be neither, but the longer the jury remains out, the less likely a jury verdict seems. National Review’s Andrew McCarthy and I discussed the meaning of the longer deliberation in the Kyle Rittenhouse trial on my show Tuesday, and he expressed concern that it might produce a hung jury. After watching the circus in court yesterday, Andy senses that’s grown even more likely:

The judge has declined to sequester the jury in the Kyle Rittenhouse case — even after publicity about the case intensified as the prosecution’s case buckled and the defendant testified; even as things reached a crescendo as the judge admonished prosecutors over their misconduct and summations loomed; and even as the jury-deliberation stage brought loud, vile protesting, occasional outbreaks of violence, and frenzied police activity to the courthouse steps.

And now, Schroeder has been forced to take drastic action because the jury appears to have been dogged by the hard-left media outlet MSNBC.

At midday on Thursday, as the third day of deliberations dragged on and there grew a foreboding sense that the jury may be deadlocked over a very straightforward case, the judge announced that he had banned MSNBC from the courthouse. …

Meantime, with each passing hour, it is more likely that the case is headed for a mistrial because of a hung jury. If that happens, it will very likely be because jurors were intimidated — believing that an acquittal of Rittenhouse, even if compelled by the evidence, would ignite more of the same violent rioting that led to Rittenhouse’s fateful confrontations on August 25, 2020.

Longer deliberations by their nature have higher risk of hung juries, of course. In this case, though, the straightforward nature of the self-defense claim should have resulted in a faster verdict in either direction. If they accept self-defense, then it’s a complete defense and an acquittal should have been a relatively quick process. If not, then convictions should have resulted by now, although perhaps in a longer process as jurors resolved whether to convict on the top line charges or the lesser included offenses.

With jurors now entering their fourth day, it seems even less likely that they can reach some sort of unanimous verdict. And Andy’s hunch that the media coverage might be frightening them away from acquittal appears to be backed up observationally:

This is why the jury should have been sequestered in the first place, or at least for deliberations. If jurors already have one eye on media coverage, then this trial is hopelessly tainted.

That in itself may end up prompting a mistrial, a prospect that’s already on the table:

The jury in the Kyle Rittenhouse murder trial is deliberating the 18-year-old’s fate, even as the issue of a mistrial hangs over the case — potentially nullifying the verdict they reach.

Rittenhouse’s defense attorneys have asked twice for a mistrial, including one request that would bar the case from being tried again before a jury. Judge Bruce Schroeder has yet to rule.

He said he would allow the jury to continue its deliberations but said the mistrial request will have to be addressed if there is a guilty verdict.

But anyway you cut it, legal experts say the judge waiting to rule on such a momentous motion is fairly odd. Experts say if a mistrial is declared it would bring even more scrutiny to an already divisive case since such rulings typically help defendants.

It would only be the latest in a series of odd developments in this case. Don’t be surprised if the defense doesn’t make a third application for a mistrial after the NYT’s report on juror comments. As always, stay tuned.