Deliberations in Kyle Rittenhouse's homicide trial continued on Wednesday with a defense request to have charges tossed still looming over the high-profile Wisconsin trial.
The case went to jury late Tuesday morning with Kenosha County Circuit Judge Bruce Schroeder having not ruled on defense requests for a mistrial with prejudice — to have charges tossed without ability for prosecutors to re-file.
Rittenhouse's lawyers had said in court they had planned to ask for a mistrial before filing papers on Monday accusing the district attorney of "prosecutorial overreaching" and acting "in bad faith."
They asked Schroeder to "thereby grant the defendant's motion for a mistrial with prejudice."
The defense cited Assistant District Attorney Thomas Binger's questioning of Rittenhouse, suggesting the defendant had remained silent for months before tailoring his testimony to witness accounts he heard in court. The judge excoriated Binger, saying he had attempted to use Rittenhouse's constitutional right to remain silent against the defendant.
Rittenhouse's lawyers also accused prosecutors of other lines of improper questioning and withholding higher-quality drone footage of Kenosha streets on the night of Aug. 25 last year.
By the time Rittenhouse randomly picked juror numbers out of a tumbler on Tuesday morning to seat seven women and five men for deliberations, Schroeder had not ruled.
While discussing a jury question from the bench on Wednesday, Schroeder said he only received the defense motion on Tuesday and that he needed more time to consider it. Schroeder bristled at any notion he should have ruled immediately or at least before deliberations were allowed to start.
"I really think before I rule on motion, I should let the state respond," he said. "So why anyone would think that it's odd for a judge to sit on a motion to dismiss, I have no idea."
Defense lawyer Mark Richards told NBC News on Wednesday that a ruling in his side's favor was still possible, even in this late hour, but not likely.
The motion is more for future than the now — to document its dispute for any possible appeals — than to get the case tossed now, NBC News legal analyst Danny Cevallos said.
"Judges err on the side of letting a jury decide a case," he said. "Judges loathe to take a case away from a jury."
Rittenhouse is facing five charges, including two for homicide, for gunning down two men during the protests. He's claimed self-defense for his actions at protests, which had been prompted by the police shooting of Jacob Blake.
The panel on Wednesday morning asked Schroeder to see some video exhibits and inquired specifically if that viewing should be in their juror room or the courtroom.
Schroeder ruled it should be done in the courtroom, but said he'd have to research case law over who may be allowed in the court when this viewing takes place.
This is a developing story, please refresh here for updates.
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