WI v. Kyle Rittenhouse Trial Day 11 – Arguments Over Jury Request to View Drone Video
This is what it says at paragraph 31, by playing the recording in open court during jury deliberations. The circuit court can guarantee the jury does not play the recording multiple times and may instruct the jury as necessary to minimize the risk of overemphasis so thats. How i take that um so its clearly an open court. I think we all agree on that, at least under anderson. It can be played once not rewound and started and stopped thats. How i read anderson state anderson makes some interesting findings in looking at franklin. It talks about how the risk of break breakage or accidental erasure of the tape, which obviously is not an issue here. What we have here are digital copies of everything, theres no risk of erasing or breaking they can be duplicated as much as we would like. Now i do agree that that is what anderson says, but i think its important to note that what anderson says is about a statement, a video of a statement not actual evidence and your honor. I had a case state of wisconsin versus antoine flint, in which you, because it was actually a video of the incident itself, not of a statement. So franklin is about a defendants statement. Andersons about the statement of a child. Here were talking not about statements, but a video video of the actual incident, and that was you sent the video. I think it was an armed robbery back to the jury room.
It was appealed. There is a pure courier, curium, unpublished opinion. Can you cite a case? The judge actually remembers uh that one i remember this was on 75th street. I hold up at the um at the uh. I dont know its about what about 43rd avenue and 75th street, and there was a video of the the incident itself and youre go ahead. Im gon na ill ill take the finest fifty dollars um. I hope, hes ready to take you too, i dont know you know this is. This is what i mean about insulting the jury thats. What were doing the the thing about breaking the tape thats from the original uh maurice franklin case – i talked about it a few days ago. I tried that case right here in this courtroom. I was a district attorney and he was on trial for murder and he was he had a very small role in the in the armed robbery in which the man was was killed. And so he was charged as part of the crime and he had a very non knowledgeable and stubborn attorney and insisted on taking the case to trial without really for whatever reasons, and the law was clear. It was a premeditated murder by a 15 year old boy and mr franklin was, i think, 18, and he was not. He never even entered the building. He was a lookout and the the defense attorney stood right down there and said the intent does not transfer from one person to another and then judge correctly read the instruction its called, transferred, intent and hes guilty of any act, which is a natural probable unusual consequence Of the armed robbery and uh that concluded the murder, and so mr franklin was convicted of first degree.
Murder judge morton, who was a wonderful man uh, who was a had a heart of gold and who knew the law granted judgment and sentenced him to life imprisonment and commented that he hoped the case got reversed and it was reversed for a different reason. But they discussed that statement that youre talking about a tape recorded statement. This was in 1974, as i recollect right on the heels of watergate rosemary woods. He raised 14 minutes of president nixons uh behavior and uh. There was a well, he lost his job, and so this was a big deal, and so the supreme court mentioned about the breakage of the tape thats, not an issue youre correct. They also talk about exaggerating some aspect of the evidence. The defense, the state i should say, is totally correct that the incident on 75th street that i had happened more recently. What was the name of the flinch flint um? I admitted that because i said no, that those rules dont apply, because this is actually an image. These are images of the event occurring as opposed to a statement of the accused or a statement of a witness which were the case in the franklin and anderson cases and um. So i i do feel that those rules are not. The rules to be derived from anderson are not strictly applicable to the um to footage from the Music actual event which is claimed to have been criminal, so ive its.
Not just that one case there have been other cases that ive admitted these videos and let the jury play them um. I complain about the case of well. I dont remember the mans name, but he was convicted of attempted murder of a police officer. Well, actually, i think of rec reckless endangerment or something but um because of video footage that they had to come down here and watch on a tiny computer and we had to bring them down three at a time, because we could only let them see one time. Uh, i think thats, so outrageous um, but you know i have to be aware. You want me to kind of just let them have what they gather, what you say, although actually most of the time your office has come in here and told me, no judge, dont dont risk our case, so dont send this. What do you want me to do? What do you want me to do? Tell me judge, i i do not believe anderson applies directly. I i believe that, because it is of the the all, these requests are of the incident themselves or incidents themselves that i believe the jury should be able to watch them as they see fit. Watch them, pausing them re, watching them watching them in any way. They see fit in any configuration they see fit. I believe that the franklin and anderson cases i understand how someones statement a videotaped statement could be overemphasized.
I do not see how videotapes of an incident could be overemphasized or looked at too much and really thats. What this whole trial has been uh there, while theres been lots of testimony. Almost everything testified to is on video. So to me i believe it is clear that, given that, as a viewer tape of the incident, they should be able to view it as they see fit. Now, anderson again of a statement says it should be an open court. That certainly can be done. The jury may feel uncomfortable. Obviously, so i think if the court makes specific findings as to why its appropriate in this case, to send it back, we could send it or actually, what i would propose is making the courtroom the jury room, clearing out the courtroom. Looking for checking for any devices that would be recording the deliberations, we can either give them all the exhibits and extract them to only watch the numbers that we agree on or that are allowed or i we can put them on a separate drive. The exhibits that theyve requested or that will be theyll, be allowed to see and they can essentially have access to all the screens here and they can play it and do it as they see fit. Now, with this distinction of the being the incident itself, if the court makes findings of why its appropriate, the state believes that it will survive any scrutiny on that issue. If there is a any kind of guilty verdict, well youre suggesting an abandonment of the insulting precedent of the last hundreds of years that the jury might overemphasize some aspect of the exhibit.
He says it should be played only once if its played at all and um. You say played as much as you want, which my my my intellect tells me is the best way because, as i talked about the tsarnaev case, uh thats how it got solved and um, it seems to me this is a pursuit of truth and the you should Take the course that you think will lead you there and if the jury thinks they want to look at it 80 times, and they want to talk about it and criticize each other for their for their respective views of it. I i think they should be allowed to do so without interference on our part. That has not been the law in this country which, in my estimation, treats jurors very poorly and um, and so i dont know your office is the first for me that your office is agreeable to this um. But that doesnt mean you cant. Do it because you cant and usually the only time ive ever encountered this issue? I cant speak to everyone. Thats been in my office the last few years. The only time ive ever encountered, this issue with you or any judge, i believe, is because its a statement and the video of the incident is different, so and and and what the court must weigh is whether the exhibit will aid the jury in proper consideration of The case which i you and i at least agree whether a party will be on delete prejudice by submission to the exhibit theyve already been submitted and then improper use.
I understand how especially a statement of a child or a statement of a defendant being reviewed over and over and stopped and rewound how that could be an issue. But if it of an actual incident like this, which is what this whole trial has been, is showing videos of the incident – and i think it is fair to this jury and fair to the process and, frankly, fair to the defendant. If theyre able to see the videos as they see fit, so i would we can either give them. If the court adopts this, we can give them a drive with the acceptable exhibits. They can play them that they could have access to the cork technology. If everyone is kicked out and and it can continue as that – i dont know – if court can allow that with its calendar, but this is more important than anything ive got. The states position is that anderson is very strictly relevant only to a statement of a witness or defendant um by the way. What about i? I now have had the chance during the break, to read the defendants motion for dismissal. Yes, uh and there are allegations made there about the material that was provided to them. Yes, certainly if i follow through on what you want, i think i warned the other day because i was quizzy very queasy about the this particular exhibit of the from the drone um Music, and we exchanged a lot of emails over the weekend about it.
And i think i warned you the other day that youre putting an awful lot of emphasis on this, and if it turns out that its not technologically sound, this is ive referred to it as a situation as a house of cards. This is just more weight on that. If i now allow them to review it without restriction as to the number of times youre comfortable with that, we are now. If i, if, if i can respond at least to that portion of the emotion to dismiss its its its factually inaccurate, so i let me go back to the first friday of trial uh mr lukowski was testifying in the middle of his testimony. I got a notification that there was someone at our office who was refusing to give his name with a drone video. This drone video was shown on fox news a couple days after the incident. It apparently was on the internet briefly and then taken down uh the defendants. First attorney mr pierce appeared on the tucker carlson, show and discussed the video and seemingly brought the video the weve been told since then by the person who took the footage that theyve sold the video to fox news. Now we have had this weve had a poor quality of this video, the entire time its actually in exhibit 41, which the defense submitted on friday, the individual who took the footage who we were had been unable to find, came and airdropped the footage to detective howard Air dropping is a way that it just goes from phone to phone.
It doesnt go through text, messages or email; it has to be iphone to iphone. So in the middle of mr lakowskys testimony, i asked mr howard to go and our investigator to go speak with this individual to see what he had. I suspected it was this video from the tucker carlson show it was detective. Howard got a air dropped copy. He brought it into court as soon as the next break happened, which i believe was just minutes after he arrived i as soon as the next break occurred, which i believe was just minutes after detective howard arrived. I took all three defense attorneys in the back to discuss a couple of issues which are not relevant, and i also indicated that we now had a much better quality drone video detective howard asked them how they would like to receive it. Miss wisco asked it to be emailed to her. He emailed her the file now somewhere along the lines whether it was uh it appears. The issue is, i believe ms wisco could not have an airdrop, because she has an android phone going from an iphone to a android. It appears somehow compressed the file an android phone too. I didnt. We did not know that this would occur. If i, if i knew how to compress files and knew all this technology things id have a much better job, so this file was given to us. We gave what we fully believe was the full file to ms wisco.
It was admitted to evidence. It was the the authenticity was stipulated to it came in without objection. Weve heard many times this trial, how there is no objection, it was an exhibit for four days and played and and shown to the jury and on the screen for four days and then on friday is when i think we all discovered that something had happened to. Ms wiscos file, she played it on the big screen. It clearly looked different than the copy we all had. I believe we offered to airdrop it to the other attorneys and i think it was declined because they didnt know how to use airdrop, and then we got her the full copy. We cannot be held responsible for the software on ms wiscos phone um. It was we we didnt compress anything we didnt change, anything that would have been something that happened in the transfer that we had. No knowledge of we have. We, of course, did not mean to give them a different copy, and until friday, when ms wisco played it and it looked different than what weve been looking at, we had no idea it was any different and then, when requested, i gave her. So what i did is i took an email from detective howard. He emailed me the file, it was not compressed, i dont know because, probably because its apple to apple or i was using gmail at the time, it was the full. As far as we know, the only the only copy of the video we were ever given the only copy thats ever been had, and then i put it on a thumb drive to give the state crime lab.
So i cannot explain why ms wiscos file had been compressed. That is not something that we can be held accountable for. We didnt know it we dont and if ms wisco knew it, it wasnt brought up until friday. Now there was some dispute friday about there being different copies. There was no different copy. The software on ms wiscos phone or whatever software she used to view it compress the file. The only compressed file is the one ms wisco has all the ones that we have seen and we did not alter the file. None of us know how to alter the file. None of us know how to compress the file we wouldnt have had time to do so. You can probably go back on the footage and see when mr howard or sorry detective howard brings it in, and while mr lakowsky is being questioned, were looking at it to see if its the drone footage that apparently the defendants first attorney had or or was aware Of and i understand, hes different attorneys now, but this is still the defendants attorney at the time, knew of this three days after the incident and was talking about on national television. So to somehow now accuse us of compressing a file and somehow being able to do this technical wizardry to somehow sabotage the defense is preposterous. The defense saw this video and thought highly enough of it that they went and bought a large television that is now being used in court because they wanted to show it and now all of a sudden to come back and say well, we had a bad copy.
They could have checked, they could have asked for a thumb drive. They could have asked for whatever. As far as we knew until we had this hearing on friday, everyone had the exact same copy and that ms wiscos uh phone compressed it is, is not our problem. Its not were not responsible for that. Well, no one at a time one at a time! Well, why dont? You start ms wisco, yes, um! On november 5th 2021 um i received at 10 33 am an email from detective martin howard with one video type file attached. It was a four millibate video that was titled img, underscore 0159 dot mov. I have never looked at that video on my cell phone as soon as i received that video via email – i downloaded it to this laptop, which is the evidentiary laptop weve, been using through the duration of this trial. What manufacturer is that? This is a lenovo and i re labeled it after it had been brought into evidence by the state, as exhibit 73, because it was exhibit 73 for ease for bringing it up, showing it to the jury after we found out in friday that there was this discrepancy. After the video is being shown and for the record, we did not buy that tv because of this drone video we actually brought it in for um john blacks slowed down testimony. That was the reason we brought this tv in. However, when we were in court, i played the exhibit 73 on my computer, because the states computer wasnt here ada kraus – was the one who brought up the fact.
This isnt the good quality video we didnt realize until playing them side by side, mine and then the states that there was any difference in quality that was friday after friday happened. I emailed both banger and ada krauss, and i asked for an exact forensic copy of what they had given to the state crime lab ada krauss responded back to me forwarded me, the email hes talking about to detective howard and that also contained one file named as Img underscore zero one: five nine dot mov – that was a four millibar megabyte file simultaneously ada banger, had been in contact with me told me. I could come pick up the file from a flash drive. 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 millibate file megabyte file, not four, so the information contained in the flash drive has was over double the size almost three times. The size as to what was emailed to me when ada kraus, followed up to me with that email forwarding me his email from detective howard. It was the same four millibate file that i had gotten previously so clearly attorney wiscos email is compressing. These files thats not thats, not our responsibility. Oh i i didnt write outlook software. You know what i think excuse me. I forwarded wait a minute. I dont know if she had finished every other piece of evidence from the state crime lab in this situation has been provided to us via dropbox dropbox provides an exact forensic copy of what they have.
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, the file name was nowhere near similar, the one that was provided to the states crime lab that attorney finger 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 received originally on friday. The fifth was not labeled that same and was not the same file amount theres, no way that what ada krauss 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 theyre completely different, i think, were confusing the issue here. The work prod dropbox thats, how theyve submitted all the videos that they worked on in the photos. They worked on the email from my personal gmail account is the file that went to the site crime lab. I was told to bring to the state crime lab. I was already home on saturday. I did not have access to anything, but my computer. I had detective howard email it to me and i put it on a thumb drive at home and i took it to the crime lab the i i dont know if mr binger somehow retitled it, but the image i gave the crime lab is on my phone As the title that she indicated, that was the one that went to the crime lab and i will testify to the officer of the court.
I take offense that what im saying is untrue clearly well, were going to obviously were going to have to take this testimony on our oath and were going to have to get somebody to explain all this uh. Who has some confidence? If you look at which report from the state crime lab that indicate the originating file that they received was the one with the expanded title that we did not receive until saturday. If it had been the same file as ada kraus says it is why wasnt that labeled on their receipt as being img059 or 159. – some it? That does not add up mr krause, why did he include in his report a different title im looking at the email? It is image0159.mov when its downloaded to computer. Perhaps it has a different title on my phone and on my gmail, that is the image im watching the video right now. This is the precise one that was given to the state crime lab. I had no other access at this point. The first time this was ever put on any kind of hard drive is when i did it saturday at my home and um ill, do a little experiment here, ill save it to my computer and see if the title changes but were going to do this. Um pardon me, i accidentally saved it three times, because i was trying to redownload it multiple times and it all saved it as img0159.
Okay. Well, you know what we cant resolve this now, because this is going to require expert testimony from from people and were going to have to take testimony testimony under oath as what the facts are and so that that ill reiterate. My comment, which started this discussion, which was that, given the the uh cloudy picture about um, this particular exhibit yeah. This is your. This is a high risk strategy for the state. I was quizzy about this from the beginning and im only queasier about it now, um. So we propose is to show the jury. The exhibits, im im really not concerned about the image i as ive said multiple times, i believe multiple. I i believe much too much has been made of this image um, mr mr bigger didnt, even mention it in his closing. We didnt show it in either our closing rebuttal um. The other evidence was admitted without objection with a stipulation to authenticity and i believe it should be played its already been played for the jury and they should be brought down and we can put all the other exhibits on a thumb drive outside of 160. What is it outside of exhibit 155, which is the the image that the court is received over objection, but the other exhibits were not objected to and again the defense, although a prior attorney had access to this video three days after the incident. So to now claim that that they are somehow prejudiced is preposterous.
I understand his previous counsel, but is still the defendants attorney. He was charged with this crime and, if attorney pierce did not turn something over that he had and that he seemingly brought to the tucker carlson show. That is. That also is not our responsibility. Your honor briefly respond to that. Yes, sir, mr pierce was my clients attorney. As mr krauss said, tucker carlson purchased that video that video is very different from the video that was delivered here in quality color. There we stipulated to the video based upon what they gave us. We didnt see it as anything different we were given. I want to stop you now, okay, because why do you say that the one that mr carlson bought, tigger carlson bought, is different from black and white? Ah, that was okay go ahead and we stipulated to that video when we looked at our copy because it didnt add anything except color. We didnt have the quality and thats where this whole problem starts and we didnt werent aware of the quality until after the evidence had closed on friday, when we were here and it was plugged in as miss wisco was saying thats. When we found out there was a problem, what had been given to us versus what they had thats when the whole problem comes up. So that says to that video, the other one and ill just say it, because its going to be an issue. Um fbi, aerial with all poid marked that when were going over this list, has come to my attention.
I played that for the jury. It never got marked or moved in, even though its been played. Are you kidding me? I am not kidding. Can we put it in evidence now thats? What i think would be the proper way to do it if uh, if the defense agrees that all the drone videos go back, we will agree that thats gon na compromise. This isnt lets make a deal here. Well, they did not mark the evidence, they did not move it, but it was played to the jury, yes and not marked or moved. I thought it was part of the hard drive, but because everything was going in and i thought we gave them a full and complete copy of the video so well im going to reopen the evidence and admit what they saw. Give it the next sequential number um. Well, how can i, how can i not give it to them? You tell me, then i then i would ask that evidence. Thats been admitted also go to the jury that has been legally admitted in front of the jury and followed the proper procedure. I i lets take one thing at a time just for the record as well. There was an additional difference that we found in the metadata between the two videos is that if you look at the metadata from the file that we received from the state is their create date is eleven five, twenty twenty one at fifteen, ten, thirty one! If you look at our video that we were provided, the metadata, the create time is 21 minutes and 19 seconds later george im watching the were looking at the tucker carlson interview with tony pierce.
It is not black and white, it is color and it actually does seem to be high definition like this video were watching its its online. You can watch it. What i have is black and white. Mr written house attorney had has seen the real version. What about that? You know if his prior attorney its hes got it i dont know they said that tucker carlson bought it and thats. What goes to this whole thing, this urban air. We sent out an investigator to interview the owner of urban air to try and get this video, and i can get the report. I dont have it with me and the individual lives out in the lake geneva area and he lied to our investigators and said. We are mistaken that the drone permit wasnt for this video and now its come from his company. He shut down his company 17 days after this video was released, weve tried to get this video and then it shows up on the friday after the trial has started and its dropped off by his employee, not the person who we interviewed who owned the company. I i dont know who was interviewed. I believe that is the owner. Mr beamon. Oh yes, well, this is number five and they say please prepare and then it lists these things and then it says we will request when ready and they havent followed up so im playing short. Maybe the ball wont come to me so um.
Well, if were if were moving on, at least for the moment, lets go number four yeah, so it seems that the request it says view video, but i believe its actually, i believe three videos um. I did not hear you, sir. It asks for a video, but i believe, theyre actually asking for three videos, and i think we agree on this – that the ass view, video, starting with mr gross prices, interview with mr rittenhouse – that is, exhibit three its also duplicated, as exhibit 57. That is the live stream that mr gross kreutz took that night. That does not actually depict the second incident it does. You can hear the shots, but then it asks to 10 seconds after mr gross cried shooting, i believe, thats the whats referred to as the bg on the scene, video which is number five, and then it indicates in regular and slow motion. The only slow motion of that incident is the bg on the scene, video, and that was the one that dr black created and played. That does not. That was moved and admitted it does not formally have a number uh because its on a drive, we do not object to it being given a number and uh sent back or well played, however, that court deems appropriate so all correct. So we would ask, we would ask that so i believe theres three exhibits theyre requesting the state does not object to them having access.
However, it is deemed appropriate to those exhibits all right so and there that spike by agreement and um, then the question is where and what restrictions will be put on their use of those videos. Um todays position is that they should be given the exhibits or told what numbers they are uh. The carbs should be cleared. They should watch them on the uh on the monitors. Theyve been watching the whole case on and that can be set up, and then everyone can leave and they can discuss it now. It says all by themselves or um by themselves. Okay, just as they are that somebody has got the technical ability to trigger playing on the videos thats a fairly simple process, we can, they can be given a computer with the you just plug it into the side, and then they can just press the thing. If theres, we have, i believe, our computer, if it doesnt, have anything else. In this case it may have like microsoft word or something on it, but um its theres. No other evidence of this case on it its not my computer. It would be a we have. Some standalone laptops to do this type of thing, um whats, this defense position. We were talking about it and the question that i have – and i dont have an answer because it wasnt in any of these cases is: is there any right if were doing it in court? Is there any right for mr rittenhouse to be present more than if they had paper exhibits and um and Music they were discussing them? Certainly the defense cant be in the room while theyre talking about them.
Well, i agree. Why is the video different? Well, i, if you clear the room and say this is now the jury deliberation room, which is what theyve asked. No, no. I want to go back a step. Supposing i said well lets just get a computer that has nothing else on it, or that is everybody feels is sufficiently sanitary. Uh and lets put these exhibits on a flash drive or download them onto the computer or whatever, and then send that upstairs. Let them do it just like they would if they were paper exhibits and they can play it and discuss it as much as they want now. Im talking right now only about question number four, because theres other issues with respect to question number five and unfortunately theyre not here yet because they havent requested it but um. This would be a departure from the anderson case for sure not in that would not be incompatible with what i did in the flood case. Flint Music was okay with that im. Sorry whos. Okay with that, we are okay with that, based on what you said so were not waving anything on five youre, not waving anything on five. Then then thats, okay for four okay! Now we just need to get a clean computer. Can you see you have some available? Mr cross, this is one of those yeah look at it. Well, im gon na go and uh do something else. Ive got well im, not gon na go im gon na stay im gon na day and stay and do something else and ill.
Let you fellas try to work this up and uh at this point, your honor. They have not requested over fighting alone. They have not requested at this point. They have not requested what were fighting about.