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Kyle Rittenhouse Trial Continues. Aired 2-2:30p ET

Aired November 10, 2021 - 14:00   ET

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

[14:00:00]

VICTOR BLACKWELL, CNN HOST: At one point, Rittenhouse sobbed on the witness stand. This happened as he described the moments before he started shooting.

You will remember he shot three people, killed two of them.

(BEGIN VIDEO CLIP)

KYLE RITTENHOUSE, DEFENDANT: I was cornered from in front of me with Mr. Ziminski.

And there were -- there was people right there.

UNIDENTIFIED MALE: Take a deep breath, Kyle.

RITTENHOUSE: That's (INAUDIBLE)

(END VIDEO CLIP)

ALISYN CAMEROTA, CNN HOST: There were also fireworks from the judge directed at the prosecutor.

(BEGIN VIDEO CLIP)

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: You are already -- you were -- I was astonished when you began your examination by commenting on the defendant's post-arrest silence.

That's basic law. It's been basic law in this country for 40 years, 50 years. I have no idea why you would do something like that. And it gives -- well, I will leave it at that.

So, I don't know what you're up to.

Just hours ago, I said I had heard nothing in this trial to change any of my rulings.

THOMAS BINGER, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: That was before...

(CROSSTALK)

BINGER: ... testimony, Your Honor.

SCHROEDER: Pardon me?

BINGER: That was before the defendant's testimony.

SCHROEDER: Don't get brazen with me.

(END VIDEO CLIP)

CAMEROTA: All right, joining us now, we have CNN chief legal analyst and former federal prosecutor Jeffrey Toobin, CNN legal analyst and criminal defense attorney Joey Jackson, and CNN's Shimon Prokupecz, who is on the ground for us reporting in Kenosha.

OK, Joey, I want to start with you because you're a defense attorney. How do you think the defense has done at making Kyle Rittenhouse seem justified for using deadly force?

JOEY JACKSON, CNN LEGAL ANALYST: Don't get brazen with...

(CROSSTALK)

(LAUGHTER)

JACKSON: They have done an excellent job.

Now, putting aside this emotional piece that we just saw there, which was very powerful too -- and people will debate, was it real? Was it not? Was he feigning crying? Was this part of the game?

The reality is, I say they did well for the following reasons. Number one, he explained himself with respect to why force was necessary, how. He explained that, when a gun was being raised that him -- there was a witness that testified who actually lived, right? And he came in and testified he shot him in the bicep. There was a gun pointed at him.

And he said: There was a gun pointed at me. I was in fear for my life. That's number one.

Number two, with respect to the witness that he shot and killed, Mr. Rosenbaum, who grabbed his rifle, he explained the grabbing of the rifle. Number three, with respect to another one who was killed, he explained how a skateboard was being used as a baseball back to him.

So when he talked about those issues, I think it was very good with regard to justifying it. Last point, and that is that we always talk about defendants with respect to conscious of guilt. They do something and they run away. He actually turned himself into the precinct after the fact, thereby negating that issue of conscious of guilt, talking about panic attacks, talking about throwing up.

Listen, long way to go. The reality is, is that the jurors will render a verdict based upon all types of evidence, but with regard to a defendant testifying, I think this could not have gone much better than it did. And the cross didn't touch him, as far as I'm concerned, with respect to the prosecutor cross-examining him to try to otherwise discredit him. Didn't do a good job.

BLACKWELL: Jeffrey...

(CROSSTALK)

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Two thoughts. Two thoughts.

BLACKWELL: Yes.

TOOBIN: One, what kind of idiot 17-year-old gets a giant gun and goes to a riot? He has no license. He has no training. He thinks he's going to scrub graffiti off with his AR-15? I mean, the stupidity of this is like, what could possibly go wrong? Well, a lot went wrong.

The good news for Kyle Rittenhouse is that he's not on trial for being an idiot. He's on trial for homicide. And in that respect, I mostly agree with Joey that this is a tough case for the prosecution, because it does seem like it he has a plausible case of self-defense.

And if it were illegal to be an idiot, the jails would be even more crowded than they are now. Homicide is a different matter. And he may have a defense here.

BLACKWELL: Before we go into the specifics and some of the really important points of the cross-examination, what do you think of the case that -- what the lead prosecutor, Thomas Binger, is doing right now? How's he making...

TOOBIN: Well, I don't think it's been terribly effective so far, but I want -- I'd like to reserve judgment on that.

I think this cross is going to go...

BLACKWELL: He's got more time.

TOOBIN: ... go on for a while.

He established that he intentionally shot, that this wasn't some accident. I mean, this whole case comes down to self-defense. And the recklessness with how he behaved, especially the second shot, the second victim, I think is a stronger case, because he's saying, well, people were attacking me.

[14:05:06]

Well, since you just shot a guy four times, maybe people were afraid of you. I mean, so I think there is the possibility for a different verdict on each of the two deaths.

CAMEROTA: Joey, one thing I just want to bring up because you said, basically, that the prosecution hadn't been able to lay a glove on him.

But what about the depiction of him as sort of a wannabe cop, a wannabe fireman, a vigilante, who, though -- I mean, just before they broke for lunch, the prosecutor was basically saying, so you don't know the difference between ammo, you don't know the difference between bullets, you don't know whether you chambered the ammo -- the bullet in the gun, like basically showing that he didn't know what he was doing with the AR-15 and showed up where he had no business being.

JACKSON: Yes, OK, so that you can argue his point, but not really.

Look, at the end of the day, what is this case about? It's about self- defense. That's what you have to establish. And the prosecution to me has to otherwise demonstrate why Rittenhouse didn't do what he did properly, meaning we can argue all day and all night, should he have been there? It was a stupid decision for him to go. Should he have crossed lines to have been there?

Should he have gotten the weapon in the first place? Should he have asked his friend to get him the weapon? That's not the issue. The issue is, when you were under attack good, did you appropriately use force to preserve your life? And if the jurors focus on that issue, I think they really acquit, quite frankly.

This is a very difficult case for the prosecution.

TOOBIN: Under -- the key words they are under attack, and that's what I would like to see the prosecutor focus on in the rest of the cross- examination, which is, how much of a threat was he really under?

Because if the jury believes that he is fighting for his life, this is an acquittal, and it should be an acquittal. But if the prosecutor can show recklessness, which is part of one of the charges, then I think they have a better chance.

And we really weren't that far along in the cross-examination, I think. We don't really know how long this is going to go. But I think the prosecutor has more to work with here.

BLACKWELL: Let's go to Kenosha, Wisconsin.

Shimon Prokupecz is there outside the courthouse.

Shimon, that moment that Kyle Rittenhouse broke down and sobbed there on the stand, what was the reaction from the jury? How did they respond?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Right.

So, Victor, according to a pool report, this is a reporter who was in the courtroom -- there are only so many seats in the courtroom for reporters. So there's a pool reporter, who said that the jury as they were leaving when the judge broke for a short break after he broke down crying, after Kyle Rittenhouse broke down and started to cry, said that the jury seemed sympathetic to Kyle Rittenhouse.

Obviously, a very significant moment. I can tell you, having been inside this courtroom, the jury has been paying attention, really paying attention throughout this case, take -- a lot of them with clipboards, taking notes, listening to everything. So that's the way this person certainly perceived. I don't know why

this pool reporter felt that the jury was sympathetic. They don't really explain beyond that. But there were a lot of interesting moments, certainly on the direct examination, but also during the cross-examination.

And it would seem -- and I think that Joey Jackson there and Jeffrey Toobin would agree that this witness, that Kyle Rittenhouse has been well-prepared. I mean, he's using key words like he was ambushed, that he was cornered, that he was defending himself. Listen to some of his responses to the prosecutor during the cross-examination.

(BEGIN VIDEO CLIP)

BINGER: Everybody that you shot at that night, you intended to kill, correct?

RITTENHOUSE: I didn't intend to kill them. I intended to -- I intended to stop the people who were attacking me.

BINGER: By killing them.

RITTENHOUSE: I did what I had to do to stop the person who was attacking me.

BINGER: By killing them.

RITTENHOUSE: Two of them passed away. But I stopped the threat from attacking me.

BINGER: By using deadly force.

RITTENHOUSE: I used deadly force.

BINGER: That you knew was going to kill?

RITTENHOUSE: I didn't know if it was going to kill them, but I used the -- I used deadly force to stop the threat that was attacking me.

BINGER: You intentionally used deadly force against Joseph Rosenbaum, correct?

RITTENHOUSE: Yes.

BINGER: You intentionally used deadly force against the man who came and tried to kick you in the face, correct?

RITTENHOUSE: Yes, right.

BINGER: You intentionally used deadly force against Anthony Huber, correct?

RITTENHOUSE: Yes.

BINGER: You intentionally used deadly force against Gaige Grosskreutz, correct? RITTENHOUSE: Yes.

BINGER: With regard to Joseph Rosenbaum, you fired four shots at him, correct?

RITTENHOUSE: Yes.

BINGER: You intended to kill him, correct?

RITTENHOUSE: I didn't intend to kill him. I intended to stop the person who was attacking me and trying to steal my gun.

(END VIDEO CLIP)

PROKUPECZ: And, Victor and Alisyn, one of the things, when the jury is -- when this case is finally done and the closing arguments are complete, the jurors are going to get instructions from the judge.

And they're going to have to consider -- he's going to tell them, you need to consider what was going through the defendant's mind at the time, perceptions to other things.

[14:10:11]

So that's why this testimony in the way Kyle Rittenhouse is explaining what he felt, what he saw, what he thought, that's why this is so important in all of this.

(CROSSTALK)

BLACKWELL: All right, Shimon, we have to interrupt you. We're going to back into the courtroom.

This is Judge Bruce Schroeder.

COREY CHIRAFISI, ATTORNEY FOR KYLE RITTENHOUSE: ... mistrial does not preclude a retrial, I understand that. There are exceptions to that, however.

And the case that I am drawing this from is Day (ph) vs. State. It's 76 (INAUDIBLE) second 588. And what it says is: "An exception to this rule exists where a defendant's motion is necessitated by prosecutorial impropriety designed to avoid an acquittal."

Now, what has happened in this -- this morning was, two times, the state had commented on Mr. Rittenhouse's right to remain silent. The first time, he was admonished by the court. The second time, the court had the jury leave and re-admonished him on that. Prior to Mr. Rittenhouse testifying, this court addressed various things not only Mr. Rittenhouse, but with the lawyers.

You had cited various statutes and you had asked if anything would be coming up, for example, I think 90608. One of the other things you addressed was 90404.

And you had said that, based on the information that had come out at the trial, nothing had changed as it relates to your ruling. Shortly thereafter, Mr. Binger stated -- and we looked it up. "Previously," he said to Mr. Rittenhouse -- "previously indicated that you wished to have your AR-15 to protect someone's property," clearly in violation not only of the prior ruling that you had made, but the ruling that very day, that very morning.

It appears to be that there are two really elements the court wants to consider when making a determination on a mistrial for what amounts to prosecutorial overreaching. And the first one is the prosecutor's actions must be intentional, in the sense of a culpable state of mind and a nature of awareness that his activity would be prejudicial to the defendant.

I would argue to you that that's clearly where I'm at. You had warned him. You had told him prior to Mr. Rittenhouse testifying that these things -- certainly, the 90404 was off-limits. You had warned him about the infringement on his constitutional right to remain silent. He did it again.

The second one, I think, requires some action by the court in terms of a finding. The second one says the prosecutor's actions was designed to allow another chance to convict, that is, to provoke a mistrial in order to get another kick at the cat because the first trial is going badly or to prejudice the defendant's rights to successfully complete the criminal confrontation at the first trial.

Now, the case that I had cited is a Kenosha case, State vs. Coping (ph).

SCHROEDER: Copening?

CHIRAFISI: Yes, 100 (INAUDIBLE) second 700.

SCHROEDER: C-O-P-E-N-I-N-G?

CHIRAFISI: Yes, sir.

In that case, the court didn't make findings regarding the prosecutor's actions. So, I don't know that it's my role to sit here and say who's winning. I don't think that's necessarily what I'm supposed to do.

But I think the court has to make some findings as it relates to the bad faith on the part of the prosecution. And if the court makes a finding that the actions that I had talked about were done in bad faith, then I think both elements for mistrial with prejudice have been met.

And I think, under the circumstances, based on what I have put forth on the record, I would certainly ask the court to consider those. And I would ask that the court grant the motion with prejudice.

Thank you.

SCHROEDER: Thank you.

State?

BINGER: Your Honor, I would like an opportunity to more fully respond to this, with a little bit of research.

At first blush, though -- and I reserve the right to present the case law and additional cites to the court, but I do want to point out, for the record, that the defendant has presented interviews to at least one media source and at least one online source since his arrest.

[14:15:13]

And there have been questions about that night. There have been questions about what he did, things like that. He has decided, probably on advice of counsel in those circumstances, not to give a statement in the media about what happened, but he's talking about his family life.

He's talking about his friends. He's talking about the circumstances of the case. He's talking about how this has affected him and things like that.

So, my point in asking those questions was, you have agreed to talk to me. You have agreed to talk about yourself. You have agreed to give interviews. But, until now, this is the first time you're explaining your actions.

And so I'm not -- I wasn't referring to his in-custody statements. In fact, I never asked either detective about what the defendant told them. He actually starts to tell them some things. And then he says he wants a lawyer. And they stop him. And they Mirandize him first, by the way.

And then he starts to tell him some things. And he says, but I want to talk to my lawyer. And they're like, OK, we're done.

So I'm not referring to that. I didn't ask any questions of the detectives about that. But since this, the defendant has spoken to the media. He has talked about his life, about circumstances related to this case. He just hasn't given his exact version of events that night.

So, his voluntary discussion to speak to the media has nothing to do with Fifth Amendment. That is his own decision. And if he's going to pick and choose what he wants to talk about in those voluntary interviews with the media, then I think that's fair game.

It doesn't implicate his Miranda rights. It doesn't implicate the Fifth Amendment. He's making his own voluntary choice.

SCHROEDER: Well, wait a minute. You don't think he could give an interview about his awards he won in high school or his (INAUDIBLE) that he got or his -- and about his sports activities, and his swimming and that, and decline to answer any questions about the incident in question, and that is somehow a waiver of his right of silence?

BINGER: I think he's doing more than that, Your Honor, in these interviews.

SCHROEDER: I don't know. I knew nothing about them. I never -- I haven't seen all what -- all -- I haven't seen probably 1 percent of all the evidence, which is pretty typical, as you know.

So I have no way of knowing it. And you have some interviews -- some interviews that he gave to media or to whatever?

BINGER: Yes, there's an interview that I'm -- we're looking at on our computer right now from "The Washington Post," where he talks to them.

I know there's one -- I think it's either "The New Yorker" or the "GQ" magazine where he speaks to the reporters also. And he doesn't go into specific details about what happened that night, but it's not like it's talking about school or swimming or things like that.

SCHROEDER: Well, no, no, no, no. Just don't leave it -- if he doesn't go into specific details, I mean, that's -- certainly, there could be a waiver by a very modest discussion about the activities of that night.

And if you're suggesting that occurred, that could make a big difference. But even a small discussion on his part of the night in question might be a full waiver. I don't know.

But I -- and I won't know until I see it. But why don't you make copies of it? And...

BINGER: Can we have a few minutes to...

(CROSSTALK)

SCHROEDER: Well, we won't do it right now. I do agree with you that this is not something that I would want to do sitting here, without giving you an opportunity to respond, although I would be interested in your preliminary response to the excluded evidence that you touched on after having been told not to do this or having been told that I was confirming my prior rulings.

BINGER: I do want to just point out right now -- we have got it on the screen.

This is a "Washington Post" article, and there's reference to an interview that he says -- the defendant says he did not regret having this gun because -- quote -- "I would have died that night if I didn't" -- end quote.

That's a direct quote from the defendant to the media about that night.

SCHROEDER: What about that?

UNIDENTIFIED MALE: Your Honor, all I can say about that interview is there were prior counsel representing him.

SCHROEDER: I don't care about that. UNIDENTIFIED MALE: Well, and I believe it was a telephone interview.

I don't know anything about the circumstances of that. I'd have to read the article.

SCHROEDER: Well, that might make a difference.

And what -- now, what about the -- your asking questions about excluded evidence?

[14:20:04]

BINGER: Your Honor, we went over this earlier. And I don't want to repeat myself because I know you have heard me.

But if I could just summarize, I did hear you talk about that evidence this morning before testimony. The defendant then took the stand. He had said to the person in the yellow pants that he had pointed a gun at that person.

I have seen that video. It was actually introduced by the defense. I think it was even in their opening statement. And there's this person who confronts the defendant and accuses him of this.

Frankly, to be honest, Your Honor, when I watched the video the first time, I didn't hear the defense reaction. I thought it was someone making an accusation and then the defendant walking away, as if trying to avoid a confrontation.

I was surprised to hear the defendant admit in his testimony on direct by his attorney that, yes, I did tell that person that I had pointed the gun at them.

He explained then that he was joking when he said that. The jury can evaluate that. It goes to his credibility. It goes to whether or not he's telling the truth. It goes to his decision-making. That is -- again, this is an incident that occurred that night separate in time. It presumably happened a few minutes before.

But I -- like I said, I was taken aback by the defendant admitting that he had said to this person, yes, I pointed the gun at you.

And I think it's fair to say that, watching that video, that that person believes strongly that this happened. The defendant is telling him it happened. Now the defendant today is giving us a different version and saying, oh, I made -- it was joking. I was just kidding that guy or whatever.

I would like to probe that. I would like to probe what he said to that person. I'd like to probe what his motivations were, et cetera. I'd like to probe whether, in fact, he really did do that. And I think that that changes the equation with regard to the CVS video that was the subject of the other acts motion, because, in my mind, it is very similar.

And I know we have disagreed on that. And I'm not going to belabor the point, Your Honor. But that was where I was coming from was, there's been a change in the testimony of the defendant today that I think makes that evidence, it's admissible and much more relevant than it already was.

And I thought it was already relevant. And the court has -- I do want to be clear also, Your Honor...

SCHROEDER: So, I'm just here on the sidelines just...

BINGER: Well, you...

SCHROEDER: Now, I had made a ruling that that evidence wasn't coming in, and you decided that it was.

BINGER: I -- if I could just respond to that briefly, Your Honor, I was about to say, I did not interpret your ruling as an absolute.

We have had three state motions in limine. There was one in which we asked the court to introduce evidence that the defendant was at Pudgy's bar with Proud Boys, and you were clear that is not coming in.

There was...

SCHROEDER: Don't get in other subjects. Get it -- come on. What you're telling me -- 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 would think that you have found a way around it? Come on.

BINGER: If I may finish, Your Honor, I was about to say that your ruling on our three motions in other acts motions was -- there was some gradations there, that you were clear that some things were absolutely out, and then you left the door open on other things?

SCHROEDER: No.

BINGER: So, I saw that distinction and I thought to myself, clearly left the door open on other things.

So I didn't interpret your ruling as, this is absolutely not -- I have practiced before you, Your Honor. I have filed other asks. Your practice, oftentimes, is to reserve ruling on those until you see the evidence. And I think you even said something to that effect at...

(CROSSTALK)

SCHROEDER: I totally did.

BINGER: So I thought -- this is my good-faith explanation to you. And if you want to yell at me, you can.

My good-faith feeling this morning, after watching that testimony was, you had left the door open a little bit. Now we had something new. And I was going to probe it.

SCHROEDER: I don't believe you.

There better not be another incident. I will take the motion under advisement. And you can respond.

When you say that you were acting on faith -- good faith, I don't believe that, OK? Let's proceed, everybody in good faith.

All right.

Bring -- would you come up please, Mr. (INAUDIBLE).

BINGER: I do have...

SCHROEDER: Yes.

BINGER: Your Honor.

SCHROEDER: Yes.

BINGER: I do have another item that I want to raise before the jury comes in and raise it with you.

There was an other acts motion with regard to the defendant being at Pudgy's bar after a court appearance in January in which he poses for selfies wearing a shirt that says "Free as Fuck."

[14:25:10]

I would like to ask the defendant if he posed for selfies after a court appearance with members of the public wearing that shirt. I do not intend to talk about who those people were, what groups they were affiliated with, or anything along those lines.

But I believe that it is relevant when the defendant goes to a bar after a court appearance and poses for selfies wearing a shirt like that. I think it is relevant to some of the issues that have come up in this case, for example, his remorse or lack of remorse, his utter disregard for human life.

Those are things that I think it comes into play, because I think that behavior is not consistent with someone who has a regard for human life. The jury's already watched him break down on the stand with emotion. I'd like to probe how heartfelt and sincere these emotions are, when you go to a bar and you pose for selfies with people when you're out on the bond in a first-degree intentional homicide trial wearing a "Free as Fuck" shirt.

So, as I said, I want to use the photograph. I'm not going to talk about any of the people or who they were from. In fact, the photograph I'm going to use has actually got their faces blocked out. So we won't see any of the people in crowd. We will just see the defendant standing with a group of people for a selfie with that shirt on.

That's as far as I want to go.

UNIDENTIFIED MALE: (OFF-MIKE) handled this issue.

CHIRAFISI: Nobody got an opportunity -- first of all, you have made a ruling on it, and it was clear prior to him testifying. So part of this is, would we have raised it, would we have brought it

up if we -- if we would have known that it was going to be coming in? We have done -- there's been nothing to open this door, Judge, nothing that has been said to open the door about what happened four months after this is relevant in any way to what happened that evening.

That is part of what the court had ruled. You had said, four months after, I don't see how that goes to any 90404 type of admissible evidence. So, my argument is, A, you ruled on it previous to him testifying. You confirmed your ruling, which you had made previously, where Mr. Binger just said you had shut the door on it.

So, apparently, he doesn't believe a door that is shut should stay shut. However, now he's asking that something be admitted that, to be fair, this should have been brought up sooner. This jury, I would have -- I did the voir dire. I would have voir dired on an issue of whether or not they heard it, saw it, were aware of it, how they felt about it, whether it had an impact on their ability to be fair in the case.

We never went there because of your prior ruling. So there's nothing that's opened this door. And I don't think it's relevant, something that happened four months later. He talks about indifference to human life. That's that night, not four months later. There's nothing, nothing that's relevant about that.

You have already made your ruling. I ask that you stick with it.

SCHROEDER: I'm struggling with why it would be relevant to any of the issues in this case.

If he were on trial for using exquisitely bad judgment, if he were on trial for behaving in a very offensive way, then I could see the purpose. But an incident that occurred four months after the incidents in question, I don't see how the jury can work with that in reaching any conclusions about the issues in this case.

BINGER: First of all, Your Honor, we have introduced evidence that the defendant had a slogan on his TikTok page, "Bro, I'm just trying to be famous."

This case has made him famous, and he's posing for selfies as a result. One of our theories of this case is that his behavior that night was intended to gain attention, to be famous. And he's reaped the benefits of that.

Second of all, he is on trial, in my opinion, for exquisitely poor decision-making, taking a gun that he's not legally entitled to have, coming down in violation of curfew, running around the community with that gun, trying to be a police officer, when he's not, confronting protesters that he knows are hostile.

And all of those behaviors, I think, are exquisitely bad judgment. So the jury can make that decision. The jury can give what weight they want to this evidence, but it's moments after he has a court appearance here. He's out on bond in this case when he decides to do this behavior. And nobody made him do it. Nobody forced him to go to the bar. Nobody forced him to wear the shirt. Nobody forced him to pose for selfies. It's his own decision-making.