A mistrial for Kyle Rittenhouse is still in the cards as the jury heads into their second day of deliberations on Wednesday. Before closing arguments were given Monday, the defense team filed a motion for mistrial on the grounds of prosecution misconduct.

Judge Bruce Schroeder, who has clashed with prosecuting assistant district attorney Thomas Binger on multiple occasions, has delayed a decision on a mistrial. While some critics are asking why the judge has yet to comment on the pending mistrial motion, Schroeder is presumably waiting to hear if it will be made moot by jury acquittal.

This late in the trial, experts attest that the ruling most likely will not come. If Kyle Rittenhouse is convicted, the defense team’s motion of mistrial for Kyle Rittenhouse will likely be used mainly as a steppingstone for the appeal’s process.

“Judges err on the side of letting a jury decide a case,” said NBC News legal analyst Danny Cevallo. “Judges loathe to take a case away from a jury.”

Judge Schroeder is expected to address the issue once deliberations are over.

Kyle Rittenhouse, 18, is accused of killing Joseph Rosenbaum, 36, and Anthony Huber, 26, during the violent protests of the police shooting of Jacob Blake in Kenosha, Wi. On the streets with his AR-15, allegedly protecting storefronts from rioters and offering the injured medical aid, he shot and killed the two men, as well as injuring a third, 28-year-old Gaige Grosskreutz.

While the defense team claims self-defense, since Kyle Rittenhouse was attacked by the three men during the protest, the prosecution claims that they were provoked by “an active shooter” looking to cause harm.

Protestors on the streets in Kenosha in the Summer of 2020, the event leading to the possible mistrial for Kyle Rittenhouse after he shot and killed two men
Protestors on the streets in Kenosha in the Summer of 2020, the event leading to the possible mistrial for Kyle Rittenhouse after he shot and killed two men. Photo Credit: Shutterstock

In the possible mistrial for Kyle Rittenhouse, defense attorneys Mark Richards and Corey Chirafisi asked for no possibility of a retrial, citing seven pages of prosecution misconduct.

The defense bring up the prosecution’s insistence to discuss and show a video of the incident despite it being blocked by the judge, as well as a bizarre move in which D.A. Thomas Binger pointed the AR-15 automatic rifle that Kyle Rittenhouse used at the jury to reenact the scene.

Early in the trial, Judge Schroeder also berated Binger, after sending everyone out of the room, for cross-examining Rittenhouse on the stand over his right to remain silent following arrest.

“He’s an experienced attorney and he knows better,” said defense attorney Mike Richards.

The judge agreed at the time, and yelled at Binger for ignoring “basic law in this country for 40 or 50 years.”

The motion of mistrial for Kyle Rittenhouse was reportedly filed less than an hour before deliberations began and asked the judge to dismiss the case with prejudice.

“This record has bad faith on the part of the prosecutor,” the mistrial for Kyle Rittenhouse read, according to The Chicago Tribune. “We know that because he attempted to inform the court of his good faith basis for asking questions regarding inadmissible evidence and was told ‘I don’t believe you.'”

The judge allegedly told Binger that he did not believe him when the District Attorney argued that his line of questioning was not in violation of the inadmissible video.

“You’re an experienced trial attorney, and you’re telling me that when the judge says, ‘I’m excluding this,’ you just take it upon yourself to put it in because you think that you found a way around it? Come on,” Judge Schroeder said, according to The New York Times. “When you say that you were acting in good faith, I don’t believe that.”

Binger continued to deny any wrongdoing, later citing that he believed a double-standard was in place over a ruling regarding not being able to call the dead men “victims.”

The case has “not gone very well for the prosecution,” Rittenhouse’s defense team said.

Kyle Rittenhouse faces five charges, including two for homicide.