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Testimony Resumes in Kyle Rittenhouse Homicide Trial; Judge Rejects New Trump Bid to Keep January 6 Docs Secret. Aired 10:30-11a ET

Aired November 11, 2021 - 10:30   ET

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

[10:30:00]

JIM SCIUTTO, CNN NEWSROOM (voice over): 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? Bob, you have 15 seconds or so to complete your thought, having interrupted you twice now.

ROBERT BIANCHI, FORMER HEAD PROSECUTOR, MORRIS COUNTY,NEW JERSEY: Yes. It was -- he said, since the day you were arrested after he asserted his right to a lawyer and his right to remain silent to the time that you took the stand, you have not spoke on the anybody about this case. That is clear, directly, a violation and that's why the judge called it a grave constitutional error that went over the line.

There is no question, as a former homicide prosecutor, a seasoned prosecutor should have known. He did that as an act of desperation, and I anticipate not only will the case get reversed because of it, but this judge may put him up on ethics charges for doing that.

ERICA HILL, CNN NEWSROOM (voice over): If you're looking at this, Judge Seidlin, is that a move that you would make?

JUDGE LARRY SEIDLIN, FORMER FLORIDA STATE CIRCUIT COURT JUDGE: Well, the defense likes the error that was made by the prosecutor, keeps it in his back pocket. If he needs it, it's a great issue to appeal on.

And another thing that one needs to look at, the prosecutor can't piss off this judge too much because he needs the proper jury instructions read to the jury. He wants to write lesser included offenses. The media hasn't embraced this issue yet, lesser included offenses. It's not black, it's not white. They may find this guy, this defendant, this 18-year-old boy, guilty of lesser offenses, because you cannot isolate the fact that this meatball goes to a riot with a rifle. You can't isolate that. The jury is going to have a hard time chewing on that.

Judge, I'm going to interrupt you for just --

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST (voice over): Especially because it's a meatball. HILL (voice over): I'm going to have to interrupt you for a moment. I believe we are getting started in Kenosha. Let's take you back to the courtroom now.

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: And then -- oh, I wanted to just observe that it's veterans day. Any veterans in the room, on the jury or anywhere else? Well, that's unusual not to have at least somebody in here. Well, Dr. Black is -- what branch?

JOHN BLACK, USE OF FORCE EXPERT: (INAUDIBLE).

SCHROEDER: Okay. And I think we can give a round of applause to the people who have served. Our country.

Okay. So, you may proceed.

MARK RICHARDS, DEFENSE ATTORNEY FOR KYLE RITTENHOUSE: The defense will call Dr. John black to the witness stand.

UNIDENTIFIED FEMALE: Raise your right hand. Do you solemnly swear the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God?

BLACK: I do.

UNIDENTIFIED FEMALE: Please be seated.

RICHARDS: Doctor, I'm going to hand you a series of documents and then ask you to testify and authenticate to them, please. The first document I'd like you to look at is state's exhibit -- excuse me, defense exhibit 140.

BLACK: Yes, sir.

RICHARDS: And what is that?

BLACK: This is the curriculum vitae of May Annex A that was tendered with my expert report.

RICHARDS: And how long is that document?

BLACK: 43 pages, sir.

RICHARDS: And does that include your life and professional experiences?

BLACK: It includes the highlights of them, yes, sir.

RICHARDS: And what I want to get into is a little bit of your background as it applies to this case. Have you ever worked in a law enforcement capacity?

BLACK: Yes, sir, I have.

RICHARDS: How long?

BLACK: Approximately 23 years.

RICHARDS: Where?

BLACK: Washington County, Oregon.

RICHARDS: Is there a city around there that we --

BLACK: It's the first county to the sort of -- if you're looking at it, between the coast and Portland.

RICHARDS: Okay. And what were your duties in that department?

BLACK: My duties ranged from a lot of stuff. I started as a patrol officer. It would be actually a deputy. From there, I was a corporal. I went -- became a sergeant, again, in patrol or operations, what you commonly think about as patrolling. I was also a training sergeant. I then became a lieutenant. And there's four divisions in there, corrections, patrol, investigations, and support, sort of you think the way it operates. And then I was lieutenant and in some cases acting commander, which is the person that oversees all the operations within those individual divisions.

Additionally, I oversaw professional standards, which is the unit that oversees -- things that are done right, that things can be done better, to include internal affairs. And then I was also the person that oversaw and designed the use of force program within that agency.

[10:35:02]

RICHARDS: At any time in the employment in law enforcement, did you have an opportunity to work with videographic evidence?

BLACK: Oh, absolutely. As a deputy coming up, we would commonly use video type of evidence in our investigations. I mean, think about robberies or anything else, you have ATM video or similar type of things. When I oversaw such things in the jail, jails are commonly monitored with cameras, and if there was allegations of complaints and for a period of time, as the jail operations lieutenant, I oversaw every allegation of a complaint. We would review evidence to include the video evidence that would have been the timeframe for that.

As I oversaw the detective division, detectives, which oversaw sex crimes, homicides, car task force, fraud, you name it, it was underneath the detective division. Again, video evidence is pervasive. It's used throughout. And then we would have to make sure that the examination of such video evidence would withstand challenge in court, and more importantly, that we were doing it correctly. So, I would commonly be, as the head of the unit on the big cases, make sure that sort of a quality control I guess would be the best way to put it.

RICHARDS: And in your military experience, did you have any occasion to work with videographic evidence?

BLACK: Yes, sir. In the military, the branch I was in of the service, army, my entire time was in what's called special operations. And because of that, I have what they call military occupational specialties, or MOSs. One of the MOSs I have, I think last count, was seven of them. One of them is specifically about intelligence, just like you think about intelligence to gather information.

As part of being in intelligence qualified officer, or noncommissioned officer, is we would routinely look at surveillance video, we would use surveillance video to plan operations. We would covertly make sure video is happening, drone video. We used video in our -- how operated. Body-worn cameras were with the military long before they were with police.

And we would have to make sense of this video or when it came in from another thing, you have intelligence units, there was an entire portion of that unit designed to focus on what's called ImInt, or imagery intelligence, I-M-I-I-N-T. And then so because of that, we routinely both used it, operated with it, similar type of things.

RICHARDS: And in the intelligence capacity, did you analyze, enhance, and do things to video?

BLACK: When required.

RICHARDS: Okay. When it was --

BLACK: When required.

RICHARDS: And in the course of your profession -- ket me back up a second. I apologize. What was the highest ranking achieved in the military?

BLACK: I retired from the military after 30 years with the rank of sergeant major, which, to put it lateral to other services, is an E-9 or enlisted rank 9, which is you have a command sergeant major, which I did as I'll call it a temporary duty, but I remained primarily an operation sergeant major, which is the highest non-commission rank in the military.

RICHARDS: Now, in this case, I engaged you for several task, but one of those was video analysis, correct?

BLACK: Video analysis in support of understanding the event, yes.

RICHARDS: Okay. And are you certified in the operation of any video programs that you used in this case?

BLACK: Yes. I used a video program known as iNPUT-ACE version 2.6.3. iNPUT-ACE is a program specifically designed to allow people without a lot of high computer forensics or anything else to examine video in such a way that when you examine it, you're not doing things to it, like altering it or anything else. When you're looking at it, you can have some trust with what you do with it that you're looking at the best that it can be with what it can provide. And within iNPUT-ACE, I'm certified at what they call both the operator level and I'm also certified at the examiner level.

[10:40:00]

RICHARDS: And what's the difference between an operator level and an examiner level?

BLACK: So, an operator level would, let's say, import videos, allow them to basically transfer with codex or anything else. You can play them, maybe cut a couple pieces out, do these type of things. An examiner level, you're actually doing we'll call it manipulation. In other words, you're scaling it, you're looking at things, and so you have to have an understanding about how that happens.

So, for example, there are certain ways -- and I think you heard earlier in the testimony of Senior Examiner Armstrong, he used the word, interpolation. So, with interpolation, there are certain ways things get interpolated. (INAUDIBLE) word but it will work for now. And so the thing is if I don't understand those things, I can't have trust within what I'm working with to better understand the totality of the event and what I'm looking at.

RICHARDS: Now, when you look at videographic evidence, is frames per second something that's important?

BLACK: It's one of the things, yes, sir.

RICHARDS: Tell the jury what frames per second means.

BLACK: Yes. I mean -- it's frames per second, so when you look down an your phone and it's recording a video, something else like that, you might see something that it's 30 fps, shorthand for frames per second. What that's telling you, imagine if you were to take 30 still shots and just keep taking them at approximately 0.033 frames per second, one second divided by 30, you would take 30 of those pictures in a continuous stream to make the one second that you leer looking at, 30 frames per second, 60 frames per second. 60 frames means rather than having 30 still shots you've got 60 still shots, still one second, still the same resolution, potentially, depending if you haven't changed anything else. You're just getting more just microsnapshots with each point in time. RICHARDS: Do all videos run at the same frame per second amount?

BLACK: Oh, no, absolutely not. And, for example, in the examiner certifications, one of the things you're looking for just is get a feel, is you look at things like frames per second and the resolution and the codex that it's using and these type of things.

For example, 30 frames per second is common, but also 24 frames per second is common for high-definition video, because it's a more universal type of thing. Or I want to say 23.95 something or 6 something is used for what they call NTSC. November, Tango, Sierra, Charlie, which is a more European format --

SCIUTTO (voice over): Okay. We've been listening there to the expert witness who's going to get to standards for use of force. Right now, he's talking about some more technical issues involving video, quality of video, et cetera.

But as we wait, Judge, if I could go back to you, and, again, just so folks at home understand what could happen next, because judge is saying this could wrap up for the jury as soon as early next week, you could get acquittal, you could get acquittal on some, not all the charges, you could get, as you cited, the judge lowering or bringing a lesser charge up. How would that work, exactly?

SEIDLIN (voice over): The judge would, at the end of the case, reflect on the facts of the case, and then the prosecutor would urge the judge to read the following jury instructions to the jury. The defense attorney may welcome that concept or may say, let's roll the dice, either he's guilty of homicide or he's not. The prosecutor will urge the judge to try to get lesser included offenses because it's very difficult with this fact pattern to get convictions on the homicide.

Even though this young man, this 17-year-old boy, is walking around that ugly environment, that toxic environment with a rifle, it's still going to be difficult. Two of the individuals that were killed, that died, they're no longer obviously alive to tell their side of the story.

SCIUTTO: Yes.

SEIDLIN: They positioned it well. I'm practicing law now 14 years since my case that was pretty high-profile, and what I do is what this defense did. They put the mother right in that courtroom and said, bring plenty of tissues, because the jury is looking at the mother crying.

[10:45:06]

SCIUTTO: Yes.

SEIDLIN: Is that staged? Is that theatrical? Broadway is ready. And then the defendant, when he takes the witness stand, this 18-year-old boy, he tears up for the jury, trying to show them both they're very human.

But the question for the jury would say other mothers kiss their children off and say you're going to go school today, you're going to do employment, this kid is going off to another state with a rifle in a very ugly environment, in a riot. And where was she prior to that moment, prior to the moment of being in this courtroom?

There's a lot of stuff going on. And this judge picked a jury in one day. If it was the O.J. Simpson case, it would have been weeks. This judge doesn't mess around. He was able to force those lawyers, be on top of them to pick the jury in one day. It's pretty incredible.

HILL: As we look at this, and, Jeff, I think it was you who brought this point up earlier, but the fact that, you know -- and, Bob, we were talking about -- this prosecution obviously is dealing with the case that it has, but it is interesting what we've seen from the defense and I think specifically what we saw from Kyle Rittenhouse yesterday. He was, I would say, very comfortable in all honesty on that stand, comfortable answering questions, Bob, you know, didn't give too much in some cases. Oftentimes, you'll see someone take the stand, and sometimes maybe they'll ramble on a little bit, right?

SCIUTTO: Yes.

HILL: And anybody who watches any sort legal knows that there is often an instruction from your lawyer, you don't want to say too much.

You've said he was a very effective witness. What did you see from him that you found most convincing?

BIANCHI: Despite the fact he's walking around with an AR-15, he's a vulnerable cop wannabe, he was going there for the purposes of trying to be noticed. He was trying to render first aid to people. I noticed that he was able to answer questions directly. He was very well prepared. He was confident in his decisions to have done what he did, in my opinion. And the bottom line is was the prosecution able to score points on him in cross-examination? And despite how hard the prosecutor was trying, he was sticking to his story.

I think there was a lot of sympathy for him by the jurors. I know somebody who's sitting in that courtroom, and they were saying the jury looked sympathetic to him as he was going through this, he was explaining how he was being attacked, rocks being thrown and shots are being fired. So, I think he made an effective witness.

SCIUTTO: A lawyer, a trial lawyer, a friend of mine, said he struck him as a very prepared witness.

Jeffrey Toobin, before we go, big picture, if there is an acquittal here, what message will this send to the country? Will it be that, as Bob was saying, wannabe cops can patrol the streets where they want to and when they want to?

TOOBIN: Well, you can see it already, and you've seen it in the months since this incident, where Kyle Rittenhouse has become a rifling hero. The idea that you can take the law into your own hands, carry a gun, enforce the law on your own as opposed to leaving it to the police. And if he wins this case, if he gets acquitted, he will be an even bigger hero, and the message will be it's okay at the age of 17 to take an assault weapon, even though you don't have a permit, even though you have no training, even though it's at night, even though it's a community where you don't live, to go and try to enforce the law. That will be the message if he's acquitted.

SCIUTTO: And have your mom drive you there.

Listen, stand by, we are going to continue to watch the trial as proceedings continue there.

HILL: We will.

Just ahead, the January 6th committee expects that they could be seeing some of those documents that they have been waiting for from the Trump White House. That could happen tomorrow, could being the operative word here, because the president is not giving up in the latest legal battle. Those details, just ahead.

(COMMERCIAL BREAK)

[10:50:00]

SCIUTTO: Former President Trump has just one day left to get court, some court, any court to block White House documents from being shared with the January 6th committee. The National Archives is set to begin sharing documents tomorrow after Trump's first appeal, still trying to invoke executive privilege, failed. Then in a new ruling, Judge Tanya Chutkan says said the former president needs to go to an appeals court to make that happen, if it is.

HILL: Now, all of this coming as the House select committee investigating January 6th is ramping up efforts to gather information from those closest to former Vice President Mike Pence.

CNN Reporter Kara Scannell joins us from Washington. So, Kara, what information do we expect the committee to get next?

KARA SCANNELL, CNN REPORTER: Well, Erica, we have new reporting from my colleagues, Jamie Gangel, Zach Cohen and Michael Warren, that the committee is interested in speaking to people in former Vice President Mike Pence's inner circle, at least five people.

And according to their sources, among those people that they want to speak to or get information from is the former national security adviser to Pence, Keith Kellogg.

[10:55:01]

He was someone who was with Donald Trump on January 6th. And according to those sources, he has received a subpoena from the committee. You can see why he would be someone that they would want to speak to. Other people that the committee are interested in is Pence's former chief of staff, Marc Short, as well as former Chief Counsel Greg Jacobs, all these people that they're interested in getting some information from, possibly testimony.

And according to these sources, some of these individuals might be more willing to cooperate than some of Trump's allies. I know that this comes as the committee is waiting to see what will happen if they will get, you know, some of these 46 documents that the former president is trying to stop the National Archives from turning over to them by this deadline tomorrow.

Last night, the judge rejected Trump's second attempt to get a temporary block for them turning over these records. We're waiting now. This is kind of a nail-biter. We'll see if the president asks the appeals court to step in, but so far this morning there's been no activity there. Erica, Jim?

SCIUTTO: And we'll see if they do. Kara Scannell, thanks so much for following it.

HILL: And we are going to continue to follow the trial out of Kenosha, Wisconsin, as well, as we've been doing over the last hour. Stay with us for that.

Also ahead, the president and the first lady at Arlington National Cemetery, they'll be arriving there soon to lay a wreath at the Tomb of the Unknown Soldier as we pause to thank the veterans who have served and who are currently veterans who have served this country.

SCIUTTO: It is Veterans Day. And please do stay with us. There are more from the nation's capital coming up.

(COMMERCIAL BREAK)

KATE BOLDUAN, CNN AT THIS HOUR: Hello, everyone. I'm Kate Bolduan. Thank you so much for joining us.

On this Veterans Day, we are following two important stories. Any moment now, you're going to seeing President Biden and the first lady. They will be honoring all of those who have served our nation, taking part in a wreath-laying ceremony at the Tomb of the Unknown Soldier at Arlington National Cemetery.

[11:00:08]