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CBS 2 Legal Analyst Irv Miller Suspects There May Be Discord Among Kyle Rittenhouse Trial Jurors

CHICAGO (CBS) -- Jurors in the Kyle Rittenhouse trial left the Kenosha County courthouse for the third night with no verdict late Thursday – and the deliberations seem to be taking longer than some thought.

The jurors also went home earlier on Thursday than they did Wednesday.

We asked CBS 2 Legal Analyst Irv Miller what he believes is happening behind the closed doors of the jury room. He said it could well be that the jury is not in a state of peace and harmony.

"I'm going to take a shot at a guess – I think this jury is in deep trouble. I think they're fighting with each other about different counts; different lesser included offenses," Miller said. "I think there may be some personality differences, and they said: 'Hey listen, we're going to leave an hour and a half earlier today than we did yesterday. I know we can stay here until 9 o'clock, but I think they decided that's not a very good idea. So I think they decided, 'Listen, let cooler heads prevail. Let's go home, get a good night sleep. Let's come back tomorrow and start fresh and see if we can get along."

Miller explained what would happen if the jury just can't reach an agreement.

"They'll send a note to the judge telling the judge that they can't reach an agreement, and that time, the judge has the option of giving them one more instruction – and it's called the Allen charge, also known as the dynamite charge – that tells them: 'Listen, go back. I want you to deliberate in good faith. I want you to talk to one another. I want you to have an open mind. I'm not trying to force you to reach a verdict, but talk to each other civilly, and try to come to a verdict,'" Miller said.

At that point, the jurors would go back to deliberating.

"If at that time, they can't come back with a verdict after that charge, the judge will be declaring a mistrial," Miller said.

Meanwhile, Rittenhouse's defense attorneys have now twice called for a mistrial – most recently on the grounds that prosecutors provided them with a lower quality version of some drone video entered into evidence, which was improper.

Kenosha County Judge Bruce Schroeder may not rule on the requests until after a verdict – which he has the power to do. CBS 2's Brad Edwards noted that this conveys the judge could be holding the mistrial requests like poker chips in case his desired outcome does not pan out.

"There's no legal reason why he shouldn't be ruling on this already, but I think there is a practical reason why he's not ruling on these motions," Miller said. "I don't think he wants to see a guilty verdict from the jury on first-degree murder, and I think if that happens, that he doesn't want to have to sentence this young man to life in prison. So I think at that time, he will exercise his discretion in deciding whether or not he should grant a mistrial with prejudice – which means that charge cannot be tried again."


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