Rittenhouse trial: Defense again calls for mistrial over prosecutors' failure to share high quality video evidence

The defense in the Rittenhouse case has once again asked the judge to declare a mistrial over the prosecutions failure to deliver high quality video evidence to them until the trial was closed.


This morning Ed noted that there was a bit of a mystery about why Judge Bruce Schroeder hadn’t ruled on the defense’s request for a mistrial in the Rittenhouse case. The Detroit Free Press quoted on law professor who found the Judge’s lack of a decision on the motion “odd.” But later on today, Judge Schroeder specifically referred to that comment in the media when explaining why he hadn’t ruled on the motion for a mistrial yet.

“They talked to some professors at the two law schools in the state and they said it was ‘odd,’ I think was the word, that I didn’t rule on the motion to dimiss,” Judge Schroeder said. He continued, “I haven’t even had a chance to read the motion to dismiss. I just got it yesterday and I really think before I rule on a motion I should let the state respond. So why anyone would think that it’s odd to sit on a motion to dismiss I have no idea.”

Later on, after a lunch break, the judge held a discussion about what videos the jury would be allowed to see and whether or not they’d be allowed to see them one time or as often as they wanted. The judge argued that he felt juries should be able to watch the clips as many times as they wanted and argue about them. The prosecutor agreed. But the defense said they had a problem with one particular drone video which had been a part of their motion for a mistrial.

“The video footage has been at the center of this case,” the defense motion states, further calling it the “linchpin in their case.

“The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant,” the motion insisted.


Specifically, the defense argued in that motion that the video that was turned over to them by the prosecution was of much lower quality than the one the prosecutors had. This launched a lengthy detailed argument today about whether the prosecution had done anything wrong regarding this piece of evidence.

Assistant District Attorney James Kraus explained that he’d received notice during the trial that someone had delivered a copy of the drone video to his office. He said that video had been shown on Tucker Carlson’s shows days after the shooting but had later been taken down. However, someone was now offering a copy of that video to prosecutors. “We’ve had a poor quality [copy] of this video the entire time,” Kraus said. But on Friday during the trial the person who took the footage “airdropped” it to Detective Howard. Howard brought that copy into court and showed it to the prosecutors.

ADA Kraus said that during the next break in the trial he called the defense attorneys aside and told them about the high quality version of the drone video. Detective Howard asked how they wanted to receive a copy. Natalie Wisco, one of the defense attorneys who has handled the digital media for the defense, said she’d prefer to received via email. Detective Howard then emailed her the file. Kraus suggested the file couldn’t be airdropped to Wisco because she has an Android phone. Kraus stated, “Going from an iPhone to an Android somehow compressed the file,” Kraus said. He added, “We did not know this would occur.”


All of this came to a head later when Wisco attempted to play the video on a big screen set up in the courtroom and suddenly the prosecution noticed it wasn’t the same quality as the file they had received. Kraus claimed to have no idea how or why that happened. “We of course did not mean to give them a different copy.”

But when Judge Schroeder asked defense attorney Wisco to respond, she told a very different story. She confirmed receiving the email from Detective Howard with a single video file attached titled “IMG_0159.MOV.” The file was 4 Meg. in size. She said she immediately transferred it to the “evidentiary laptop” and never once looked at it on her phone. She said after the later realization in court that the file she had wasn’t the same quality as the one the prosecution had, she emailed both ADA Binger and ADA Kraus and asked for a copy of the exact file the prosecution have given the state crime lab. ADA Kraus responded first and forwarded an email that contained the same video file with the same name and size, i.e. the low quality copy she already had.

“Simultaneously, ADA Binger had been in contact with me; told me I could come pick up the file from a flash drive,” Wisco said. She continued, “I drove here. I had him take me inside and I confirmed that this file that he said was directly provided to the state crime lab was an 11…megabyte file, not four.


“So the information contained in the flash drive was over double the size, almost three times the size as to what was emailed to me.”

ADA Krauss then interrupted and suggested that his Outlook software must have compressed the file when he sent it. However, Judge Schroeder cut him off and let Wisco have the floor. And what she said next undercut Kraus’ claim.

“The file title name in this situation should have been exactly the same as the one provided to the state if it was the exact same copy,” she said. She continued, “The file name was nowhere near similar. The one that was provided to the state crime lab that attorney Binger gave me a copy of on Saturday had a very long convoluted title that involves lots of letters and numbers that are the type that are usually associated with files taken from a drone, because they indicate a lot of different information like the location of the drone and the time.

“The file I originally received on Friday the 5th was not labeled the same and was not the same file amount. There’s no way that what ADA Kraus is saying is true because the file name would not have changed if my computer was compressing anything. It was a different file that we were provided from what was provided to the state, at least for what attorney Binger gave me on Saturday. They are completely different.”

ADA Kraus said the file that was on his phone is the one he took to the crime lab with the same name as the file he sent to Wisco. He said he took exception as an “officer of the court” to the suggestion that what he was saying was not true.


At this point, Judge Schroeder stepped in and said “Obviously, we’re going to have to take this testimony under oath and we’re going to have to get somebody to explain all of this.”

But attorney Wisco got in one more shot at Kraus pointing out that the record of receipt of the file from the crime lab had the full, longer file name and not the shorter one that Kraus had just claimed was on the flash drive he delivered to the crime lab.

After a break, ADA Krauss conceded that there were two files, one of which was apparently compressed when it was sent to him by email. But during that same break, the defense decided the issue was serious enough to renew their call for a mistrial. “We didn’t have the quality of evidence that the state had until the case had been closed,” defense attorney Corey Chirafisi said. “We’ve talked to Mr. Rittenhouse and I’m going to be asking the court for a mistrial,” he said. Here’s the clip of that moment.

Looking over all of this, I guess it’s possible this was just an innocent mistake by ADA Kraus but he was clearly flailing as he tried to explain it. He first suggests the problem was Wisco’s phone but she never played the file on her phone. The he blamed the problem on the Outlook software on his computer which he suggested had compressed the file without his knowledge. But he can’t explain why ADA Binger had a different, much larger file with a completely different name. Then finally he admits there were two files with different names, one of which went to the crime lab and other of which went to the defense. This doesn’t necessarily mean Kraus was pulling a fast one but, at best, this was incompetence. And given how significant this video now is to the prosecution’s case, that does seem like a pretty serious procedural problem.


Here’s the argument in court. I can’t queue this up to the argument about the file so you’ll have to scroll in past the first long break.

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