CHICAGO (CBS) — A former federal prosecutor said Wednesday that the prosecution in the Kyle Rittenhouse trial may be hoping for a mistrial without prejudice – under which the trial would start over with a new jury.

The reason, former prosecutor Phil Turner said, is that things are not going well for the prosecutors in the Rittenhouse case. As CBS 2’s Chris Tye reported Wednesday evening, Turner said that even before Rittenhouse took the stand Wednesday, the case was going poorly for prosecutors – and the events Wednesday may have made for an even steeper climb for the State of Wisconsin.

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“They’re flailing,” Turner said. “They’re trying to do anything possible.”

Turner knows a flailing prosecutor. He represented the federal government out of Chicago for years.

He said the state’s case against Rittenhouse has been bruised. Its latest setback came Wednesday as Rittenhouse painted himself a threatened, scared teenager last summer.

“He was very emotional, and it was genuine. There wasn’t any put-on,” Turner said, “and he acted like a true human being up there. He wasn’t some robot. He didn’t seem programmed.”

Putting defendants on the stand is always a gamble, but Turner thinks it paid off for the Rittenhouse defense lawyers.

“I think he’s done very, very well,” Turner said. “He has not hurt himself, and that’s the key.”

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A less obvious play may be unfolding as prosecutors rankle the judge. On Wednesday, Kenosha County Judge Bruce Schroeder raised his voice at prosecutor Thomas Binger, and even questioned Binger’s knowledge of basic law, over questions Binger asked Rittenhouse.

The judge felt the prosecutor was trying to get around his past rulings on what could be introduced in the trial.

Turner said prosecutors who know a case isn’t going well sometimes try out of the box approaches for a legal re-do.

“Perhaps the prosecution is trying to provoke a mistrial because they believe they’re losing – and if they get a mistrial, well then, they get another shot at the defendant – it it’s not a mistrial with prejudice,” Turner said.

If it is a mistrial with prejudice, Rittenhouse walks free and cannot be tried again.

The judge has yet to rule on any kind of mistrial. And even though the jury was excused for those exchanges with the judge, jurors can feel the air in the room shift.

“Has the jury gotten it? Of course, they have,” Turner said. “Jurors respect and look up to the judge. They do no, matter what.”

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Provoking the judge is a big gamble. Turner thought the prosecution needed a Hail Mary of sorts to set things back into their favor after Rittenhouse’s tearful recap Wednesday morning, but they didn’t deliver one.