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Testimony Resumes in Kyle Rittenhouse Homicide Trial. Aired 10- 10:30a ET

Aired November 11, 2021 - 10:00   ET

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

(COMMERCIAL BREAK)

[10:00:00]

ERICA HILL, CNN NEWSROOM: Good morning, top of the hour here. I'm Erica Hill.

JIM SCIUTTO, CNN NEWSROOM: And I'm Jim Sciutto.

In just moments the, defense will call its next witness as Kyle Rittenhouse's double homicide trial comes to a close soon. The judge told the jurors to expect to finish as soon as early next week, this after Rittenhouse took the stand in his own defense in what was, well, a dramatic and consequential day in court.

HILL: Rittenhouse maintains he did nothing wrong, he was acting in self-defense when he killed two people and shot another during that police protest in Kenosha, Wisconsin, last summer.

The 18-year-old broke down at one point during his testimony.

(BEGIN VIDEO CLIP)

KYLE RITTENHOUSE, DEFENDANT: I was cornered from in front of me with Mr. Zaminski. And there were -- there was people right there.

MARK RICHARDS, DEFENSE ATTORNEY FOR KYLE RITTENHOUSE: Take a deep breath, Kyle.

RITTENHOUSE: I never wanted to shoot Mr. Rosenbaum.

UNIDENTIFIED MALE: Why did you point it at him if you didn't have any intention of shooting?

RITTENHOUSE: He was chasing me. I was alone. He threatened to kill me earlier that night. I didn't want to have to shoot him.

(END VIDEO CLIP)

HILL: The defense is expected to call at least three more witnesses before resting. Rittenhouse has pleaded not guilty. He faces a mandatory life sentence if convicted on the most serious charge.

CNN's Shimon Prokupecz joining us from Kenosha, Wisconsin. So, Shimon, three, we understand, three witnesses set to be called. Do we know who's up first?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Yes. So, the first witness we believe is going to be a man by the name of Dr. John Black. He's with the Force Signs Institute, and we believe he's going to testify about the use of force situation here.

He normally is used in police cases, cases where a police officer is on trial or facing some kind of action because they've used force. So, it's kind of interesting to see that he's going to be used in this case. But certainly Kyle Rittenhouse's testimony yesterday sets up to what he's going to testify about the moments where, as Kyle testified yesterday, that he felt he was being ambushed, that he was cornered, and where he felt like he needed to shoot in order to survive.

The other thing I think that is going to be important to watch this morning and something that everyone is talking about certainly is the judge. I sat in this courtroom many days watching this judge. He is sensitive to media coverage and he said as much in court, taking issue with some of the things that people in the media have said, some of the things that some of the legal analysts have said. Given what happened yesterday, the way he lashed out at prosecutors and given the reaction certainly for many people to the way the judge screamed yesterday in court, it's going to be interesting to see if this judge, in any way, this morning reacts to that.

You know, he's sort of unconventional. I think people should kind of -- this is -- in some ways this courthouse feels like a community courthouse. He walks in through front door, comes in through the public, where the public sits and he goes and he robes up and then he takes the bench. So, usually he has comments in the morning. So, certainly, it's going to be interesting to see if he has any kind of reaction to what's been said in the last 24 hours.

HILL: Yes.

SCIUTTO: Shimon Prokupecz in Kenosha, thanks so much.

Joining us to talk about, Judge Larry Seidlin, a former Florida state court judge who has presided over murder cases and trials, Bob Bianchi as well, a former head prosecutor in Morris County, New Jersey, he's also a host for the Law and Crime Network. Good to have you both on.

Judge, I wonder if I could begin with you. Set aside the drama if we can for a moment. I just want to get to the law here. What are the standards for self-defense? And as you watch this, I mean, there are two different circumstances here, one in which the person who was shot did have a weapon, another in which the weapon was a skateboard. Do you see one or the other meeting the standard of self-defense?

JUDGE LARRY SEIDLIN, FORMER FLORIDA STATE CIRCUIT COURT JUDGE: Well, the defense laid out a good defense in the past few days.

[10:05:01]

Is the defendant in fear of being struck in a dangerous way? Is his life at risk? But you need to look at the total circumstances in a case. We have a 17-year-old boy going to a riot, to a dangerous environment, with a rifle. How does that sit with the jury? The judge is going to instruct the jury to use their common sense, their everyday knowledge, to try to analyze what took place.

One of the defendants, the one that was struck by him and was not killed, he said he pointed his gun at the defendant. I think this judge at the end of the case may direct the verdict on some of these charges. Some of these charges are not going to go to the jury. Some of them are just going to be outright lost.

What happens is the prosecutor has a big balloon at the beginning of the case and the defense punches holes in that balloon as the case proceeds. Unfortunately in this case, there's a political environment, there's a toxic environment on this case. Some of the extreme left and some of the extreme right are advocating their positions. This is a difficult case for the judge, but we have a judge that's very experienced, been on the bench a long time, and is not afraid to voice his displeasure with the attorneys.

HILL: No, I mean, that we've seen clearly I think even from the beginning when we were dealing with jury selection.

Bob, when you look at, you know, as the judge pointed out, this is about the defense poking holes, right, in what the prosecution has put out there. As a witness, how was Kyle Rittenhouse on the stand yesterday? How effective was he at making really his own case for self-defense?

ROBERT BIANCHI, FORMER HEAD PROSECUTOR, MORRIS COUNTY,NEW JERSEY: He was extremely effective, and the prosecutors are on the canvass with this case. What has to be proven in a self-defense case is that there was a reasonable likelihood that the person felt that they were going to die or great bodily harm in Wisconsin law.

SCIUTTO: Bob, I have to interrupt and I apologize because the proceedings have started in the courtroom. Here is the judge, Bruce Schroeder, directing. Let's listen in.

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: In any event, so anything I said about schedule is somewhat compromised. It would be ideal if we could finish on Friday, but let's see what happens.

Anything else before we get started?

RICHARDS: (INAUDIBLE), your honor. One, my next witness is going to be Dr. John Black, and his testimony will involve a computer program and demonstrative evidence with all videos that have already been entered into evidence and how he establishes the times that he'll testify to. And what I'm asking the court to allow is to have him testify at this witness stand to my left so that he can be hooked into the cord and manipulate his computer.

SCHROEDER: Any objection to that?

UNIDENTIFIED MALE: No.

SCHROEDER: Okay.

RICHARDS: And then there's the Armstrong report, there's been new photographs and there's already been testimony about some -- I shouldn't say photographs, enhancements of video evidence would be the correct statement.

It's my understanding that Mr. Armstrong testified that the video program he uses is Amped, and Amped has an internal printout of everything that the operation or the does on it. So if i do X, X is documented, you push the button, it says he did X.

My understanding is that there should be a report for that and then the new photographs today. And our question comes into on testimony, on cross-examination, when he was testifying to what he did to the video, there's been a discrepancy between the aspect ratios and the amount of pixels, so I'm asking for that report. And then the new photographs, which the state intends to introduce in their rebuttal case, I would like the report from Amped for that so that we can check that.

I've had -- I spoke to Mr. Binger. He said he would try to do that. I don't know if he can or can't.

UNIDENTIFIED MALE: Are you saying the program is being Amped?

UNIDENTIFIED MALE: Yes.

UNIDENTIFIED FEMALE: He needs a microphone on.

UNIDENTIFIED MALE: Yes.

UNIDENTIFIED MALE: My understanding from Senior Examiner Armstrong's testimony is that he used a program known as Amped, A-M-P-E-D, the number 5. If he did use that program, Amped 5, which is a gold standard of forensic analysis, Amped 5 does produce a report of all manipulations or actions taken upon the start to the finish.

[10:10:08]

That's the report I think we're talking about right now.

UNIDENTIFIED MALE: Okay.

RICHARDS: There should be two of them.

SCHROEDER: I didn't know the last thing you said.

RICHARDS: There should be at least two of them, one for each change.

SCHROEDER: Anything else?

UNIDENTIFIED MALE: No. We don't have to -- I don't believe I have an obligation to provide that. This is a very late request. This will probably push rebuttal in to tomorrow because he's going to have to go -- if these reports exist, then I am not saying that they do, he'd have to go back -- he's on his way here now. He'd have to go back and get them.

SCHROEDER: Can you reach him and --

UNIDENTIFIED MALE: I can certainly try.

SCHROEDER: Why don't you do that. I'm not going to worry about anything until it happens. And, well, let's see what can be done on that.

And then -- (INAUDIBLE) one on that?

UNIDENTIFIED MALE: Yes.

SCHROEDER: Then I did get Mr. Binger's transmission of last night, which unfortunately was not -- was there -- other than the initial minute or two, was there actual video or was it black screen?

UNIDENTIFIED MALE: It's a 20-some-minute compilation video with the defendant's voice.

SCHROEDER: Well, let me try opening it here because at home it was -- I was able to hear the audio, but the video was all black. So, I don't know what the significance of that is until I look at it. Hopefully, it will be here.

And I guess that's it. All right, anything else?

UNIDENTIFIED MALE: No, your honor.

UNIDENTIFIED MALE: I just forwarded an email that we just received a phone call from someone who supposedly spoke to a juror, spoke to someone who spoke to a juror. I don't think it's anything but just for the -- just to be --

SCHROEDER: I didn't mean to interrupt you.

UNIDENTIFIED MALE: I'm sorry. Just to be transparent and when we get these communications, we are giving them to the court.

SCHROEDER: Excellent, and I appreciate it.

And we've gotten inundated, as you would expect with a case with this degree of publicity and kinds of wild things are said. And as long as you folks are aware of them and can deal with it or ask me to deal with it to the extent I'm able, we'll do it. I would hate to be someone who got -- doing some of this stuff.

All right, anything else?

UNIDENTIFIED MALE: I'm just going to call Mr. Armstrong. I just want to verify --

SCHROEDER: Yes, go ahead.

HILL (voice over): So, we brought the audio down, the courtroom has, for a moment. So, we're getting ready here, obviously. As we know, three witnesses we're told left to be called on the defense side. The first one, we're told, will be John Black.

So, right now, they're dealing with really some procedural issues, deciding where they're going to put this witness dealing with some of the technology that I think he needs to reference. This is the really exciting stuff in a trial, right, Jeffrey Toobin?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST (voice over): I was going to say, even the most interesting trial has intensely boring moments, and we happened to have capture one of those for our viewers.

HILL (voice over): We did.

SCIUTTO (voice over): Tell us about the day, Jeffrey Toobin, about these defense witnesses that are going to come in and then where we stand on the trial, Thursday. The judge says things could be wrapped up as soon as next week.

TOOBIN: Well, one of the things that's remarkable about what we're going to hear today is that this is a use of force expert, the kind of expert you usually see in a prosecution of police officers. But here we have some who could easily be described as a vigilante, and he is being -- you know, his actions are being described by the use of force expert trying to justify or explain why he fired these fatal shots, which is -- I mean, it's pretty unusual to have a use of force expert --

HILL (voice over): On the defense side.

TOOBIN (voice over): -- in a case against a civilian.

SCIUTTO (voice over): We remember this from the George Floyd trial, actually. You had the use of force experts talking about the cops' behavior.

TOOBIN (voice over): Sure.

SCIUTTO (voice over): We also have with us still Larry Seidlin as well as Bob Bianchi.

Larry, I want to go back to a point you made, and, again, as we wait for them to begin actual witness testimony in the courtroom, you said that the judge might direct on charges (ph).

[10:15:03]

Can you explain what you're talking about there?

SEIDLIN (voice over): Yes. When the prosecution rests, the defense attorney then makes a motion to direct a verdict on certain charges that the overwhelming evidence is in favor of the defendant, that certain charges shouldn't even be brought to the jury. He's going to do that. He's going to do that on that fellow that was just wounded, because he admitted that he pointed the gun at the defendant. He pointed that gun. That charge may not get to the jury. And I'm a betting man. I say it does not get to the jury. And there are other charges that may not make it to the jury. You see, the prosecutor, when they first get the case, they're looking at it in the most rose-colored glasses. But as the case proceeds, as the defense puts money into the case, does investigations, the case weakens tremendously for the prosecution. That's why the prosecutor was a little desperate yesterday and asked the witness, asked the defendant, well, why were you silent for so long? And that violated the most fundamental rights of the defendant, the right to remain silent. The prosecutor was feeling in fear of losing this case.

Remember, the prosecutor and the defense attorneys are gladiators. They're warriors. They want to win this case. This case will define their career. And they want to win it on the trial level. On appeal, the prosecutor gets reversed, it's years from now. It's now that matters. This is the moment for the prosecutor. And the world is watching this case. He wants to win. Unfortunately, you don't want to win at all costs, but he wants to win.

HILL (voice over): When we look at this, Bob, so you're a former head prosecutor, when you look at this, you were noting just before we went back to the trial this morning, what an effective witness Kyle Rittenhouse himself was yesterday, he was. As we look at the prosecution, there has been a lot made of how the prosecution has made its case to this point. Do you feel that they had really brought the strongest case?

BIANCHI (voice over): They brought the strongest case they have based on (INAUDIBLE) with the one you brought. And these are the facts of the case. Two of the witnesses -- I was actually hosting a show at one point in time and I had to ask the producer, is this a defense witness that was called out of turn? Because it seemed so much justified the self-defense claim to find out it was the third victim who had been shot.

So, you're dealing with an evolving situation. And like I said before, we can't underestimate the fact that the prosecution has to disprove self-defense beyond a reasonable doubt. The prosecution has to do that. They had two witnesses up there that they put on themselves that said it was a chaotic scene, it was a riot, people were going after him. He's trying to run away. Rocks are being thrown. People are being hit with skateboards. He's being kicked in the head. A guy is putting a gun to him. And also of all the elements and the times he used restraint where he pointed a weapon at a person and backed down, he didn't fire. When he fired one round, the person was no longer afraid and he stopped.

SCIUTTO (voice over): Okay. But, Jeffrey Toobin, why was he there? Why is a 17-year-old with an AR-15 from out of state in the middle of protests? That's the police's job.

TOOBIN (voice over): Right.

SCIUTTO (voice over): Does the law look at that and say how you put yourself in that moment or no?

TOOBIN (voice over): Not really. That's the tremendous advantage that Rittenhouse has in this case, is that he is not on trial for the incredibly stupid, wrong-headed, dangerous decision to go in the first place. That is not the crime for which he's on trial. He is on trial for homicide, these two homicides. And as we have said, and as the evidence has come in, he does appear to have a reasonable self-defense argument.

SCIUTTO (voice over): So, not too look too far ahead because we don't know how it turns out, but would an acquittal give a message to every American with a gun that they can show up and do the same thing?

TOOBIN (voice over): Absolutely. Look how he's become a hero in the right-wing community in this country. He is not viewed as, frankly, the appropriate way, which is I think someone who made an incredibly irresponsible decision to show up in the first place. He is someone who is perceived by many as supporting the police, supporting law and order, and I think it would send a tremendously dangerous message to portray him as a hero.

[10:20:05]

But, you know, the prosecutors may have bit off more than they can chew in charging him with these homicides.

SCIUTTO (voice over): Well, we'll be watching closely. We continue to monitor events from that inside that courtroom while we wait for it to move to the next step. And you see the judge, Bruce Schroeder, speaking now.

We're going to take a short break and we'll be right back.

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[10:25:00]

HILL: You're just joining us. We are continuing to follow the trial of Kyle Rittenhouse out of Kenosha, Wisconsin. We checked in a short time ago. We're monitoring what's happening in that courtroom right now, some discussions between attorneys and the judge as they prepare for the first of what we expect to be three more witnesses who will be called by the defense starting today with one of them, John Black.

I want to bring in our panel, former Federal Prosecutor Jeffrey Toobin, former Florida State Circuit Court Judge Larry Seidlin and former Head Prosecutor in Morris County, New Jersey, Bob Bianchi.

Jeff, I just want to start with you. when it comes to who we're expected to today, so we know John Black, this use of force expert, is expected to be the first witness called today, first person we're going to hear from. It's interesting that this is, right, who's being brought in now by the defense.

TOOBIN (voice over): It's a little unusual when the Defendant testifies that he's not the last witness. The defense lawyers often want their client's story the last thing in the jury's head before they go to deliberate. Here we have a use of force expert who will come in essentially to justify everything Kyle Rittenhouse just said on the witness stand, which may be an effective tactic. But, you know, the problem the prosecution has in this case is they don't have a witness who can say Rittenhouse is lying about what happened, or at least we haven't seen that witness yet. I mean, there's a chance for a rebuttal case. And the reason most defendants don't take the stand is that they have a prior criminal record that they don't want revealed to the jury or they have a history of false statements that they don't want revealed to the jury. Rittenhouse had neither of those. So, he was a better witness to put on the stand. And I think he was a pretty effective witness. Let's see how they can back him up with an expert witness today.

SCIUTTO (voice over): Bob Bianchi, and apologies we had to interrupt you earlier as we're going to the courtroom. I do want to ask you what the range of potential outcomes are here, because you have full-on acquittal, but you also have the possibility of lower charges, perhaps. Can you walk us through that?

BIANCHI (voice over): I'm so glad you asked that because nobody is really talking about another area of the law of self-defense just called imperfect self-defense. And that is where a defendant had a reasonable belief that he was in great bodily harm or could die, but that the jury finds that that belief, the honest belief was however unreasonable. And the reason that's important is it lowers a first- degree degree life sentence in Wisconsin down to a second-degree conviction, which carries only a maximum of 60 years, a maximum of 60 years.

So, that is why I think -- and one last point here, you may be seeing the prosecutor, his desperate attempts yesterday, and, by the way, doing stuff with the Fifth Amendment, that is just mind-blowing (INAUDIBLE) reversal of this case with even a conviction, I can guarantee to that. So, this is a free shot for the defense at trial.

But you saw the prosecution, to your point, Jim, bringing the weapon and you were there and if it wasn't for you. What the prosecutor is trying to do is go to an area of law that the judge will read at the end of the day called provocation. You cannot provoke an incident and then avail yourself the self-defense. That's why I think you saw the prosecutor asking those kinds of questions yesterday.

But, nevertheless, if this is a conviction, I don't know what my colleagues here think, the judge said this was a grave constitutional error to talk about it, his post-arrest silence. It is. We know this prosecutor is never going to get anywhere near it, don't think about it. He directly went to it. If there is a conviction here, I am certain it will be reversed.

TOOBIN (voice over): Just if I can offer one word of explanation, at least what the prosecutor said when that issue came up, he was saying, and I agree, he handled it poorly when he was asking the questions, is that Rittenhouse gave certain interviews to the news media that he was referring to in -- referring to prior statements. He certainly had right to do that. You have no Fifth Amendment right to talk or not talk to a reporter. He did it in a very clumsy way. I am less sure that this would be a reversible error. It was a brief matter. BIANCHI: He said -- I'm sorry to interrupt -- he said, since you've been arrested, to this day, you've never spoken about this case, you have not discussed this case. That is a clear violation of his post- arrest silence.

SCIUTTO: Bob, hold that thought because it does seem that things are picking up in the courtroom. Let's listen in. This is Judge Bruce Schroeder.

SCHROEDER: Yes. This looks like it's complete, so I'll take a look at it at the break.

Okay. Get the jury down.

[10:30:00]

You heard the judge there just say they're bringing in the jury. That might take a couple moments.

Bob, perhaps -- was it Bob or Jeffrey finishing up?