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Jury Instructions Begin in Kyle Rittenhouse Trial; Judge Revising Instructions Ahead of Closing Arguments. Aired 11:30-12p ET

Aired November 15, 2021 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[11:30:00]

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: And he uses only that amount of force, which he reasonably believes as necessary to prevent or terminate the interference. And the person may not the person -- excuse me, and the person may not intentionally use force, which is intended or likely to cause death, unless reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.

If you find that the elements of attempted first or second degree intentional homicide have been proved in this case, the effect of the law of self-defense is as follows. The defendant is not guilty of either attempted first or second degree intentional homicide if he reasonably believed that he was preventing or terminating an unlawful interference with his own person and he reasonably believed the force used was necessary to prevent death or great bodily harm to himself.

He is guilty of attempted second degree intentional homicide if he actually believed the force used was necessary to prevent imminent death or great bodily harm to himself, but the belief or the amount of force used was unreasonable. The defendant is guilty of attempted first-degree intentional homicide if the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to him.

Because the law provides that, it is the state's burden to provide all the facts necessary to constitute guilt beyond a reasonable doubt, you will not be asked to make a separate finding as to whether the defendant acted in self-defense. Instead, you will be asked to determine whether the state has proved the necessary facts to justify a finding of guilty for attempted first or second degree intentional homicide. If the state does not satisfy you that those facts are established by the evidence, you will be instructed to find the defendant not guilty.

The elements of each crime will now be defined for you in greater detail. Before you may find the defendant guilty of attempted first degree intentional homicide, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present, first, that the defendant intended to kill another, second, that he did acts, which demonstrate unequivocally under all of the circumstances, that he had formed the intent and would have caused the death of another except for the intervention of another person or some other extraneous factor. Unequivocally means that no other inference or conclusion can reasonably and fairly be drawn from the defendant's acts under the circumstances. Another person means anyone other than the defendant, and may include the intended victim. An extraneous factor is something outside the knowledge of the defendant or outside of his control. The third element is that the defendant did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself.

The third element of attempted first-degree intentional homicide requires that the defendant did not actually believe the amount of force was necessary to prevent imminent death or great bodily harm to himself. This requires the state to prove either that the defendant did not actually believe that he was in imminent danger of death or great bodily harm or that the defendant did not actually believe that the amount of force used was necessary to prevent imminent death or great bodily harm to himself.

On attempted first degree intentional homicide is considered, the reasonableness of the defendant's belief is not an issue. You are to be only concerned with what the defendant actually believed. Whether these beliefs are reasonable is important only if you later consider whether the defendant is guilty of attempted second degree intentional homicide.

If as to the fifth count you are satisfied beyond a reasonable doubt that the defendant intended to kill another human being and that his acts demonstrate unequivocally that the defendant intended to kill and would have killed the other except for the intervention of another person or some other extraneous factor and that he did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find the defendant guilty of attempted first degree intentional homicide. If you are not so satisfied, then you must find the defendant not guilty of attempted first degree intentional homicide and must consider whether the defendant guilty of attempted second degree intentional homicide, which is a lesser included offense of intentional homicide of the first degree.

Again, you should make every reasonable effort to agree unanimously on the charge of attempted first degree intentional homicide before considering the offense of attempted second degree intentional homicide.

[11:35:00]

However, if after a full and complete consideration of the evidence you conclude that further deliberation would not result in the unanimous agreement on the charge of attempted first degree intentional homicide, you should consider whether the defendant is guilty of attempted second degree intentional homicide.

Before you may find the defendant guilty of second degree intentional homicide, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present. First, that the defendant intended to kill another, second, that he did acts which demonstrate unequivocally under all of the circumstances that he had formed that intent, and would have caused the death of another human being except for the intervention of another person or some other extraneous factor.

The third element is that the defendant did not reasonably believe that he was preventing or terminating an unlawful interference with his own person and/or did not reasonably believe that the force used was necessary to prevent imminent death or great bodily harm of his own person and did not believe the force used would not prevent death or great bodily harm to himself. You have been instructed on the definitions of intent to kill unequivocally on a person and extraneous factor. The same definitions apply to your consideration of attempted second degree intentional homicide.

The third element of attempted self-defense intentional homicide requires that the defendant did not reasonably believe that he was preventing or terminating an unlawful interference with his own person or did not reasonably believe that the force used was necessary to prevent imminent death or great bodily harm to himself. This requires that the state have proved any one of the following. First, that the reasonable person in the circumstances of defendant would not have believed that he was preventing or terminating an unlawful interference with his own person or that a reasonable person in the circumstances of the defendant would not have believed that he was in danger of imminent death or great bodily harm or that the reasonable person in the circumstances of the defendant would not have believed that the amount of force used was necessary to prevent imminent death or great bodily harm to himself.

The reasonableness of the defendant's belief must be determined from the standpoint of the defendant at the time of his acts and not from the viewpoint of the jury now. The standard is when a person of ordinary intelligence and prudence would have believed in the position of the defendant under the circumstances existing at the time at the alleged conduct.

If as to the fifth count you are satisfied beyond a reasonable doubt that the defendant intended to kill and that the defendant's acts demonstrated unequivocally that the defendant intended to kill and would have killed another except for the intervention of another person or some other extraneous factor and that the defendant did not reasonably believe that he was preventing or terminating an unlawful interference with his own person or did not reasonably believe that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find the defendant guilty of attempted second degree intentional homicide.

If you are not so satisfied beyond a reasonable doubt that the defendant is guilty of attempted first or second degree intentional homicide, you must determine whether the defendant is guilty of the lesser included offense of first-degree recklessly endangering safety, as defined in the criminal code, which is a lesser included offense of attempted first and second degree intentional homicide.

First degree recklessly endangering safety is defined in the criminally code as committed by one who recklessly endangers the safety of another human being under circumstances which show utter disregard for human life. Before you may find the defendant guilty of first degree reckless endangerment, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present.

First, that the defendant endangered the safety of another human being, second, that he did so by criminally reckless conduct, which means that his conduct created a risk of death or great bodily harm to another and that the risk of death or great bodily harm was unreasonable and substantial and that he was aware that his conduct created the unreasonable and substantial risk of death or great bodily harm.

Great bodily harm means injury which creates a substantial risk of death or which causes permanent serious -- serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

Third, that the circumstances of the defendant's conduct showed utter disregard for human life in determining whether the circumstances of the conduct showed utter disregard for human life, you should consider these factors, what the defendant was doing, why he was doing it, how dangerous was the conduct, how obvious was the danger, whether the conduct showed any regard for life and all other facts and circumstances relating to the conduct.

[11:40:08]

If you are satisfied that all three elements of this offense have been proved beyond a reasonable doubt and that the state has proved beyond a reasonable doubt that the defendant was not acting lawfully in self- defense, then you should find the defendant guilty of reckless endangerment in the first degree, as submitted. If you are not so satisfied, then you must find the defendant not guilty.

You are not in any event to find the defendant guilty of more than one of any sequence of offenses. So, you can return only one verdict per count. You should consider the charged offense first. If you find unanimously that the defendant is guilty of the highest degree of crime, you need not consider lesser included charges. If you decide unanimously the defendant did not commit the greater crime and was acting lawfully in self-defense -- I've got myself into a midsentence and I don't like it.

KATE BOLDUAN, CNN AT THIS HOUR (voice over): All right. Hello, everyone. I'm Kate Bolduan.

We are in the middle of listening to judge's jury instructions in the middle of the Kyle Rittenhouse trial. And as the judge just said, he caught himself in midsentence and now is clearly conferring with counsel on both sides as to something that has popped up.

Let's talk about where we are in this moment. We're going to keep a very close eye on what's playing out in the courtroom. CNN Chief Legal Analyst Jeffrey Toobin is here as well as Shan Wu, Defense Attorney and former Federal Prosecutor.

Jeffrey, talk to me about what we have been hearing. Clearly, the judge was caught in the middle of something. He was midsentence and stopped himself. Tell me what you think actually just happened right there.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, if I can just focus on a somewhat bigger picture, I feel so sorry for these jurors. What the hell is he talking about? I mean, this is the most incomprehensible collection of instructions that I have ever heard. I mean, jury instructions as a rule are terrible in the United States. But to ask reasonable, normal people to listen to this droning recitation and expect them to make sense of it is really extraordinary, especially now -- I don't know what he's confused about, but, I mean, I just think this is an appalling system.

BOLDUAN (voice over): Hey, Jeffrey, let me jump back in. Let's see if he offers any clarity. Let's listen in.

SCHROEDER: -- that I have and I -- you know, I worked with the instructions all weekend, and we discussed them by email. And then I'm reading them, and little things are striking me as I read them. But the jurors are never told to actually discuss self-defense except in the context of charged offenses.

And what I was about to say to the jury, and I decided I better talk to you people beforehand, is if the jury gets into a discussion of a charged offense, any charged offense, but let's use this one as an example, and decide the elements are there and he wasn't acting lawfully in self-defense, they're done. They never discuss the lessers. What?

UNIDENTIFIED MALE: Was or was not acting lawfully in self-defense?

SCHROEDER: Well, let's say if they decide the elements are there when he was -- was not acting lawfully in self-defense, they're done. Then they find him guilty of the charged crime.

[11:45:00]

What if they discuss count one -- or count five, I should say, and decide that the elements are there but they also decide it was privileged under the law of self-defense, they're not -- is there anywhere they're being told -- are they being told, you're done? See, under the old law, we did do that. Is that in here? Where does it say that? Yes. That's -- I used to construct these from scratch, and I would tell the jury, which I was just doing now, that, you know, once you have exhausted this, you're done, as opposed to having them needlessly go through these lessers if they've already concluded that -- and this is a case where this could happen, I'm not saying it should or would, I'm saying it could, that they would decide, well, yes, the elements are there, and then they make a decision. And if all of them say -- well, if they all vote not guilty on the basis of valid self-defense, then they really should not be considering lesser included. Am I wrong about that?

UNIDENTIFIED MALE: So, if they find perfect self-defense on the charged count --

SCHROEDER: Yes.

UNIDENTIFIED MALE: -- they should be told --

SCHROEDER: You see what this -- yes, I'm sorry.

UNIDENTIFIED MALE: I mean, I understand where the court is coming from. I guess they could consider the other ones in 30 seconds and just, fine, go down and be not guilty, but --

SCHROEDER: They're so complicated, as it is.

UNIDENTIFIED MALE: No, I understand.

SCHROEDER: I feel terrible about giving this kind of stuff. It's just so -- well, anyway, the instruction is telling them that kind of cryptically. It says -- it tells them, if after a full discussion -- after a full discussion -- it says, however, if after a full and complete consideration of the evidence you conclude that further deliberation would not result in unanimous agreement on the charge of self-defense intentional homicide -- I'm going back to a different count -- you should consider whether the defendant is guilty. So, it is telling them -- it is telling them -- I just think it's kind of unclear.

UNIDENTIFIED MALE: I think it's very unclear. What you're saying isn't wrong. They all agree that the elements are met and there's a privilege, you don't go any further.

SCHROEDER: Pardon me?

UNIDENTIFIED MALE: I believe the pattern instruction makes that clear enough. If they can unanimously agree, which includes the privilege, they're done. They don't have to go forward. They're going --

SCHROEDER: Where is it used? It says, you should make every reasonable effort to agree unanimously on the charge of second degree intentional homicide before considering the offense of first degree reckless homicide. However, after a full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of self-defense homicide. You should consider whether the defendant is guilty of first degree reckless homicide.

So, I don't think it's -- look, it's not way a person would speak if he wanted to make things clear. And I'm not saying anyone did deliberately -- is trying to make things unclear, but --

UNIDENTIFIED MALE: I think (INAUDIBLE) that about all 30-some pages of the --

SCHROEDER: Don't do that. People will find out our lawyers' secrets.

UNIDENTIFIED MALE: I think it's clear in the instructions. If the court did wish to make it clearer, I would just say just explain if you're unanimous, either way, on the first count, there's no need to go to the lessers.

SCHROEDER: Yes. I think that's good way of doing it. I think I'll tell them that in any sequence if there are lessers submitted to them, once they've discussed the highest count, if they are unanimous either way, then they're done. Does that make sense? No, Mr. Binger is having a problem with that and let's see where he is or what he's -- actually, I don't like the way I said that either.

[11:50:01]

How about this? In any count -- in any count where there are multiple verdicts submitted to you, if at any point in your deliberations you are unanimous as to both the elements -- the presence or absence of the elements of the crime and the presence or absence of the right of self-defense, you need go no further.

THOMAS BINGER, LEAD PROSECUTOR: The reason I was shaking my head, your honor, is because let's take Anthony Huber's counts, for example. If the jury is unanimous that he is guilty of first degree intentional homicide, they go no further.

SCHROEDER: Right.

BINGER: If they are unanimous that he's not guilty of first degree intentional homicide, then they are instructed to consider second degree intentional homicide.

SCHROEDER: Only if they are not satisfied that it was done in self- defense. For example, if they -- if in your example, if they discussed it and said, well, sure, the elements of intent murder are there and then they go around the table and they say, well, we all think it's -- it's not self-defense, then guilty. If they all say, we don't think -- well, actually if they all say, we don't think it's self-defense, then it's not guilty. And what the jury is being told is if you can't agree unanimously, then consider these lesser. But I don't think it's so clear as it should be.

BINGER: It says if you are not so satisfied.

SCHROEDER: I know it. But that's at the very end.

BINGER: And I think what the court was originally proposing is telling the jury that if you're unanimous on the charge of count one way or the other, then you go no further.

SCHROEDER: I like that.

BINGER: That's not -- that's not the law.

SCHROEDER: If you're unanimous on --

BINGER: So, for example --

SCHROEDER: No. If you're unanimous on the legal, question intentional -- well, you're right because it could be an elements issue.

BINGER: They jury --

SCHROEDER: Maybe the construction committee is right, I don't know.

BINGER: The jury only goes to lesser included if they are either unable to agree on the charge count or if they are unanimous not guilty on the charge count. Then they go to the lesser included. So, there is no requirement that they be charge on the count to move to the lesser.

SCHROEDER: No, they shouldn't be -- if they are unanimous -- if they are unanimous, then they are done. That's why I'm trying to tell them but I don't know how to say it.

BINGER: But that's not true. Because if they are unanimous on first degree intentional homicide, what they are concluding as that point is that the defendant -- either the elements aren't met or the defendant actually believed that deadly force was necessary. They would still then have to consider the second degree intentional because it changes the self-defense into the objective reasonable one.

So, they can be unanimous on count one -- let's take Huber, for example. They can be unanimous on the first degree intentional homicide. They can be unanimous on that and in the defendant's favor, but they still have to then move to the second element or to the lesser included.

SCHROEDER: You might be right. Pardon me?

UNIDENTIFIED MALE: If it's perfect self-defense, it's perfect self- defense for everything.

UNIDENTIFIED MALE: But they are not told to consider perfect self- defense on first degree intentional homicide. They're specifically told --

UNIDENTIFIED MALE: It's defined.

SCHROEDER: Yes, you're right. He's right. He's right.

BINGER: They're not told or consider that until second degree intentional homicide. The instructions, your honor, are the patterned instructions. I understand your point that if we had to redraft them today from scratch, maybe we could do better.

SCHROEDER: Maybe we could do better.

BINGER: I'm sure we could. But we need to follow them and I don't think the issue is appropriate.

SCHROEDER: I think you're right. And they are certainly correct in what they say. I just think that they are not clear, but maybe -- maybe they are, I don't know.

[11:55:03]

Now, let's see how much damage I've done already in my last paragraph. So, can you go back to what the last thing I said to the jury?

UNIDENTIFIED FEMALE: If you find unanimously that the defendant is guilty of the highest degree of crime, you need not consider lesser included offenses. If you decide unanimously the defendant did not commit the greater crime and was acting lawfully in self-defense, and then that's when you stopped in midsentence.

SCHROEDER: So, the first part was right, did not commit the greater crime and was acting lawfully in self-defense. You know, if -- if he was acting lawfully in self-defense, the ball game is over, yes. I think that's correct.

Your suggestion is seductive, Mr. Binger, but if -- but see, they are not asked to consider that. That's where I'm having the problem. You know, they may even make reference to it. They even make reference to it. I think maybe one of the comments, they talk about -- we don't have -- like some states do, they have a question right off the bat, was the defendant acting lawfully in self-defense? If they answer that, yes, we're all done. We've got interlaced in all these cumbersome instructions and -- no. Does anyone have any objection to what I've already told the jury?

UNIDENTIFIED MALE: You should finish it.

SCHROEDER: And tell them what?

UNIDENTIFIED MALE: Just what we said. If you find perfect self- defense, you don't go on to the next count. It's over.

BINGER: I understand what the term perfect self-defense what that means but we haven't told the jury what that means. We're deviating from the standard instructions here and the words perfect self-defense don't have a meaning to ordinary people, would require further definition from the court and now we're going much further afield.

I also have a problem with the wording of, you know, do you -- if you find the defendant is justified in his self-defense, because we've instructed them on his own subjective self-defense belief, which is a defense to the first degree intentional homicide, and then we've given the instruction on what the law considers to be objective self-defense is what a reasonable person would think when the wording that was just read by the madam court reporter doesn't delineate between those two things.

And I think as I said, and I've repeated this several times, I think the more we deviate from these standard instructions the more confusion it causes. Counsel has asked you to read the self-defense individually on each count. So there are already being told on each count that you are to consider the -- the final thing is the objective self-defense and that is a -- if you find that, then he's not guilty.

And to say across the board that you find self-defense is a defense to everything is not technically true because there are different self- defense claims as to the different counts. So, for example, he may be justified in self-defenses to Rosenbaum but not as to Huber. So, a blanket statement that says every time you find justified self-defense is not guilty it's not technically true.

SCHROEDER: Well, it is if you're talking just about an individual count.

BINGER: But I was saying the blanket --

SCHROEDER: And I think what I'm going to tell them in addition to what I've already said is if they are discussing a count that has multiple possible verdicts.

BINGER: I think the standard instruction already spells that out, your honor. I agree if we had to do it from scratch, we could do it better. But I don't think we should deviate any further because I think it's causing confusion.

[12:00:00]