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Soon, Closing Arguments Begin in Trial of Kyle Rittenhouse. Aired 10-10:30a ET

Aired November 15, 2021 - 10:00   ET

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

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[10:00:00]

ERICA HILL, CNN NEWSROOM: Good Monday morning. I'm Erica Hill.

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

We are watching live pictures from Kenosha, Wisconsin. At any moment, closing arguments will begin in the trial of Kyle Rittenhouse. The 18- year-old faces six charges, the most serious of which would carry a mandatory life sentence, but there are many charges possible short of that.

HILL: He has pleaded not guilty to all, testified he was acting in self-defense when he shot three men, killing two, injuring one during protests in Wisconsin last year.

Meantime, a potential major development over the weekend, when a judge indicated, as Jim just referred, to, that he would allow the jury to consider lesser charges.

We are covering this trial as only CNN can. Let's begin this hour with CNN Crime and Justice Correspondent Shimon Prokupecz who is outside that courthouse in Kenosha.

So, what more do we know about these lesser charges which the jury, Shimon, may be able to consider?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Yes. So, we thought, Erica, we would get some word by now on what these lesser included charges would be, but there may be a hiccup here. We're waiting to hear from the court, the clerk indicating that the judge and the lawyers will be in court this morning and going to be discussing some of it. So, that could be one of the first things that we see this morning once the judge takes the bench. They may have some more arguments or some more discussion about the lesser-included charges.

Those lesser-included charges are very vital really for both sides, the prosecutors asking them to be included on Friday. The judge even questioned Kyle Rittenhouse himself about these lesser-included charges, if he was okay, he understood what that would mean if the judge was to allow them. So it would be a significant move for the court to go ahead and do that. Once that's figured out, then, obviously, the prosecution and the defense team will be able to present their closing arguments.

Significant amount time is going to be given to these closing arguments. Prosecutors asking for two-and-a-half hours, the defense saying, well, we only need an hour-and-a-half. The judge agreeing that both sides can have two-and-a-half hours.

What we expect the prosecutors to do in their closing arguments is lay out all that video. We've seen so much of this video. That is a key element of their case. The problem with some of that video, which the defense has been able to argue really successfully throughout this trial is just the chaos of that night, of that -- of what went on that night. So, we're going to see a lot more of that video. And then, obviously after that, what the court is going to do is, at some point, decide who the 12 final jurors are going to be that are going to decide this case. And perhaps we may see the jury start deliberating later this afternoon.

HILL: We'll be watching for all of those developments. Shimon, thank you.

Also with us, Judge Glenda Hatchett, host of The Verdict, and former attorney for Philando Castile's family, and Criminal Defense Attorney Sara Azari.

SCIUTTO: Sara, I wonder, beginning with you, one key revelation of the trial was learning that the victim who was not injured, not killed, Gaige Grosskreutz, pointed his weapon at Rittenhouse, he was armed with a handgun, I believe, before Rittenhouse fired and wounded him. How impactful was that testimony?

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: I think it was impactful. And, Jim, you know, as Rittenhouse's attorney, what I would argue in closing is that, look, my client used the force that was commensurate with the threat that he was facing. So, with respect to Rosenbaum, who had ambushed him and chased him and threatened him all night, and then finally lunged to grab his gun, he had to shoot him.

With respect to Huber, who was coming at him with what is a deadly weapon under the law, a skateboard coming at your neck to whack you, that was also force that was necessary because he was in imminent danger of great bodily harm or death.

But then with respect to this particular witness, he had a pistol in his hand and all Rittenhouse did was shoot his arm to disarm him. So, that is a fact that I think is significant. The prosecution can argue the way it's arguing with the rest of the shootings that this was not in self-defense, that he's a killer. But for Rittenhouse, I think it shows that, you know, how he responded to each of these men was really commensurate with the threat that he was facing.

HILL: Judge, to Sara's point on what we will likely hear in these closing arguments, the judge on Friday actually agreed with the prosecutors' request that the jury could be given instructions on provocation.

[10:05:03] How much do you think we will hear in the prosecution's closing argument to counter, right, what Sara just laid out?

JUDGE GLENDA HATCHETT, HOST, THE VERDICT: Yes, exactly. The prosecution has to argue provocation. They have to say that this is an underage teenager who crossed state lines, who came in with an assault weapon, AK-15, that he was there to provoke the people in the crowd. They have to be able to argue, and I say, if, and I want to stress, if they are able to convince the jury that Rittenhouse provoked these people, then that will negate the argument of self-defense.

But that is a steep, steep bar. But if I were the prosecution today, I would stress the fact that he lied, that he was not there as a medic, that he was underage, that he was not trained to use this assault weapon, and that he should not have been there walking around and that he was there provoking the crowd. Provocation is the only way that they are going to really be able to counter the argument of self- defense under Wisconsin law.

SCIUTTO: These are pictures you're watching from last Wednesday. We are waiting for the restart of the trial any moment now. We will bring it to you live. Sara, there is some lack of clarity now on what the collection of lesser charges that the jury may consider here. Provocation is mentioned as one of them. What other possibilities are there? And in your experience as a defense attorney, I mean, how quickly or how easily do juries pivot, right, from one charge to another as they're considering, as they're deliberating?

AZARI: Yes, Jim. So, to the point of Judge Hatchett's remarks about the provocation instruction, you know, it's always great for the prosecution to have that instruction because it negates self-defense. But in this scenario, it's somewhat of a hollow gesture by this judge that has really been pro-defense and unleashed some ire on the prosecution, as we saw throughout the trial.

You know, this -- my best analogy is if I gave you this beautifully wrapped box that was empty inside and I said, oh, Jim, I got you this beautiful gift, well, it's not a gift, there's nothing in the box, that's exactly what happened here. The prosecution was so boxed in in their ability to elicit testimony and facts that the jury needs to consider in relationship to that instruction, I think, you know, even though the jury has given this provocation instruction, it doesn't have all the facts it needs to determine whether Kyle Rittenhouse started this scenario, in which case he cannot claim self-defense, or if truly, you know, he was acting in self-defense.

But with respect to the lesser instructions, it always gives the jury a second bite at the apple, right? So, the jury is no longer stuck with guilty or not guilty on some of the very serious first-degree charges. They can now sort of split the baby and settle for less serious charges. And, of course, the lesser the crime, the lesser the time.

HATCHETT: Right. And let me just add too on the provocation piece, I stress if, if, and I do believe and I agree, Sara, that that is a very, very high bar, and that there is not a lot to work on, particularly with the victim who survived. There is testimony very clearly from the state's witness that his hands were up and it was only when he pointed the gun at the defendant that the defendant fired in self-defense. And so I think that's going to be a hard one for the prosecution to get around in this case.

But I do agree that the lesser-included charges -- and it will be interesting to see what they come up with today -- will give the jury an opportunity at a second bite. We do know that the curfew charge was thrown out a long time ago. It will be interesting to see what else ends up with those charges today.

HILL: And, Judge, in terms of those lesser charges, right, the jury first has to look at the initial charges.

HATCHETT: Absolutely.

HILL: And if there is no agreement, then they can move on to those lesser charges.

AZARI: Exactly. And more thing -- yes.

SCIUTTO: Sorry, go ahead. Go ahead.

AZARI: The lesser charges, you know, really are an indication of how the parties feel about the case, right? So, the prosecution is asking for these lesser charges, which is really a tacit acknowledgement that they don't believe they quite met their burden beyond a reasonable doubt on the first degree charges. And for the defense, if you remember on Friday, the defense conceded to some of them but objected to the others. And so that tells us that, you know what, as defense attorney, if I'm pretty convinced that my client is going to walk on a first-degree charge, why would I settle for anything, you know, if I can get him off on nothing, right?

But, you know, obviously the first degree intentional homicide being the most critical and serious charge here, the defense did agree to a second degree intentional homicide as an alternative.

[10:10:03]

HATCHETT: And also there is also the charge of recklessness in the situation, which you don't have to prove intent with. And so I agree that there is a lot of back and forth here because I think that both of them understand that a lot is on the line, and I think the prosecution, because they have the burden of proof beyond a reasonable doubt, has a much, much heavier lift on this case. I think that there is likely that we're going to see an acquittal, particularly with the third victim.

SCIUTTO: So, there's a lot of -- both of you have a lot of experience in the courtroom. Juries take signals, right? They're 12 human beings, right? When a prosecution lowers the target, as it were, right, it brings down the charges that they're asking the jury to consider, Sara, perhaps, as a defense attorney, maybe you want to give your view here, do juries tend to, in your experience, say, well, wait a second, does that raise questions about the whole case? Actually, hold that thought. The judge is in the courtroom. So, let's listen to what he has to say.

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: -- proposal or draft number three of the instructions to the attorneys this morning, and we'll make record now on --

SCIUTTO: Sorry, the -- we can no longer hear the judge, they killed his mic, as we say, in television. So, as we wait to hear -- he's back. Let's listen in again.

SCHROEDER: All right. Has everybody received a copy of draft number three of the proposed instructions?

UNIDENTIFIED MALE: Yes.

UNIDENTIFIED MALE: Yes, your honor.

SCHROEDER: And state objections?

UNIDENTIFIED MALE: We have no objection. I know the defense has asked that the self-defense instruction be read with every count in which is applicable. If they're asking for that out of abundance of caution, we would agree with that request.

SCHROEDER: What about that?

UNIDENTIFIED MALE: We've had -- we've all talked about things off the record in terms of our jury conference. I was under the impression that that was a requirement. I understand we're trying to streamline it. We're trying to not bore the jury with the instructions. I think that is, and if I'm wrong, I'm wrong, but I think that is what the law requires.

SCHROEDER: I inquired on the message last night, is anybody familiar with authority on this subject that requires that? I guess I'll argue and then hear the rest of what you have to say.

You know, attention span, as you know, you speak to juries all the time, and when you start repeating yourself, you lose your audience mighty fast. They've got a lot to hear today from me and from you lawyers. And I -- if I am reading the self-defense instructions five times, I would expect to lose the audience rather rapidly.

And this is just -- this is so typical of lawyers. We've always done it this way. And I will tell you that for years I have -- I have taken out common elements of things and put them in separate areas of the instructions. And once they learn what the term intent to kill means, I don't have to define it every single time it comes up. And I have never gotten -- even to my knowledge, there hasn't even been an appeal on it.

My job here is to communicate with the jury so that they understand what the law provides. And I think that can be done better, briefly and concisely than by repeating the same old stuff over and over again. But given the position of the party, if that's your position, we'll do it. But, to me, it's a monumental waste of time and may end up having a negative effect.

But, you know, I'm not going to mess around with a case of this magnitude over two days or two weeks to try.

[10:15:03]

So, if you think that risks everything to proceed, as I have suggested, then we'll go with the long forms every time.

I'm going to have to count on you to make timely objection if you feel that I'm leaving something out on a particular count, because I've prepared it in the 36 pages of instructions, I've prepared them using a brief form without -- there's already plenty of repeating going on. But if I have to do longer, you're going to have to objectify. If you think I'm missing something or it's going to be a waiver. So, you're forewarned. You have to make a contemporaneous objection. Is that clear?

UNIDENTIFIED MALE: It is, sir. And the only one that you don't have it in that we had talked about a little bit was count five. You had -- there's a lesser-included offense of recklessly endangering safety.

SCHROEDER: Oh, yes. I'm sorry. On that one, I do think that -- well, no, I didn't put it in there, although it does in the final sentence, it says they have to be satisfied beyond a reasonable doubt that the defendant was not acting lawfully in self-defense. But I'll try to squeeze the content in there as well. And I guess I'm not sure that I agree with your statement that -- I'd like to take a look at it.

And, of course, the state wants me as I read the self-defense portions in, then they want me to repeat every time (INAUDIBLE) provocation, which you have opposed, so they're going to hear that again. What?

UNIDENTIFIED MALE: They don't want that anymore.

SCHROEDER: They don't want that anymore?

UNIDENTIFIED MALE: I'm going to throw that request simply because of time.

SCHROEDER: Okay. I think I'll go back to bed. Okay. But in counts two and three, I gave special instruction only with respect to Mr. McGinniss, because the law is different with respect to him. And we'll get to that. But I didn't reread it with respect to the count involving Mr. Jumpsuit Man.

UNIDENTIFIED MALE: (INAUDIBLE) the one that I think is -- where -- so you've done attempted first degree with self-defense, attempted second degree with self-defense, but the way that I read it, and if I'm reading it wrong, I know the court will correct me, on page 27 of the final instructions, it simply says here are the elements. I didn't see self-defense mentioned in there.

SCHROEDER: You're right. You're right. Because as I did -- now, let me see. On counts -- the attempt murder and the murder, on those, that's the patterned instruction. If I had my way, I think that's overly verbose and we didn't used to do it that way and then they came up with this, and I follow it, but I think it could be better stated, but I follow the guidance of the instruction committee because there's more of them thanes there me and they're very smart people.

But then on count three, I gave a special instruction because of the situation with Mr. McGinniss but I didn't on count two or count five because I relied upon the general principles of self-defense, on which I instructed them. So, if you want me to do it on five, we need to do it on two, too. And they've just -- that's on two also. And that's right after they've just heard it, so, all right.

UNIDENTIFIED MALE: My only concern that the instruction makes it clear that self-defense is an issue for first degree attempt and second degree attempt. I don't know what --

SCHROEDER: I understand.

UNIDENTIFIED MALE: Right.

SCHROEDER: And that's because that's from the patterned instruction. I understand you're thinking, well, because I didn't discuss it in the portion on reckless endangerment that they're going to think it's not part of it. But the last sentence tells them. And if you are satisfied beyond a reasonable doubt that the defendant's conduct was not privileged under the law of self-defense, you should find the defendant guilty.

[10:20:08]

UNIDENTIFIED MALE: Did you see that under the reckless endangering safety one here? Is that what you're telling us?

SCHROEDER: That's on -- yes. That's on -- excuse me. I'm reading the report down here. Let's see. Let me look at what I said on five.

See, if I had set this up, I would have put -- I'm not going to say what I was going to.

You know, you're right. Well, maybe I misunderstood what you wanted. Did you want the whole self-defense instruction discussed again or just the clause? And if you are not satisfied beyond a reasonable doubt that the defendant -- actually, I would say all three elements of the crime of endangering safety of the first degree have been proved and that the defendant is not privileged under the law of self- defense, you must find the defendant not guilty.

UNIDENTIFIED MALE: I think that's fine as long as they're aware that self-defense is an option.

SCHROEDER: Yes. Well, you're right. All right, I was misunderstanding what your email said. So, if you are not satisfied beyond a reasonable doubt -- well, there's more missing there than that, you know that? There is not the clause about if you are satisfied.

All right, so it will read at page 27, fourth line will be, if you are satisfied that all three elements of the crime of reckless endangerment have been proved and that the conduct of the defendant was not privileged under the law of self-defense, then you should find the defendant guilty of reckless endangerment of the first degree has charged -- as submitted, if you are not so satisfied, then you must find the defendant not guilty. Is that satisfactory?

Okay. What's next?

UNIDENTIFIED MALE: I have nothing else on the instructions.

SCHROEDER: Defense?

UNIDENTIFIED MALE: So, Judge, and I'm just -- this is more for the record, you've already made, I think, preliminary, you had talked a little bit about the Richie McGinniss instruction --

SCHROEDER: Right.

UNIDENTIFIED MALE: -- which is on page 8 and 9.

SCHROEDER: Right.

UNIDENTIFIED MALE: The position that I had taken was one of the lines says, but the defendant does not have a privilege of self-defense, as to Richard McGinniss. After that, there's discussion about self- defense and what that means. On page 9, there's a sentence that says, if the defendant was acting lawfully in self-defense, his conduct did not create an unreasonable risk to another. I had told you in an email that all the parties who were involved in that, I thought that that -- there was some incongruence in that in terms of how that reads.

I know the court disagrees, but just for the record, I wanted to make sure that that was on there because I do think it's confusing. However, I know it's the patterned instruction. I know you took it from the pattern.

SCHROEDER: Yes. I'm not going to argue with you, it is the pattern. And I'm not going to argue with you that it is confusing, but it's an accurate statement of the law. Mr. McGinniss does not have a self- defense status because his -- the defendant has no right of self- defense as to any harm he would cause to Mr. McGinniss.

[10:25:04]

And that's what the instruction is telling the jury. But if he was acting lawfully in self-defense with respect to Mr. Rosenbaum, then it kills one of the elements. I think I'm reading that right. It gives him an absolution with respect to the element of -- what is the precise element? It's --

UNIDENTIFIED MALE: Probably number two?

SCHROEDER: Part of element, yes, unreasonable and substantial risk of death. It says then the jury can't find it, well, if they can't find that, they can't find one of the elements, so they have to find the defendant not guilty. UNIDENTIFIED MALE: Judge, do you think it's appropriate on page 9 to say if the defendant was acting lawfully in self-defense as it relates to Joseph Rosenbaum?

SCHROEDER: On what point do you want that put in?

UNIDENTIFIED MALE: I just think that makes it clearer?

SCHROEDER: Where do you want it put in?

UNIDENTIFIED MALE: Where, did you say?

SCHROEDER: Yes.

UNIDENTIFIED MALE: On page 9, it would be the -- right, so there's a subheading determining whether the beliefs were reasonable. I think it's the third or fourth to the last sentence says, if the defendant was acting lawfully in self-defense, comma --

SCHROEDER: Okay. With respect to the --

UNIDENTIFIED MALE: To Joseph Rosenbaum.

SCHROEDER: With respect to Joseph Rosenbaum.

UNIDENTIFIED MALE: His conduct did not create an unreasonable risk to Richard McGinniss.

SCHROEDER: Yes. I'll do that. Any objection?

UNIDENTIFIED MALE: No.

SCHROEDER: Okay. Okay. What's next?

UNIDENTIFIED MALE: Your honor, on page -- these are small, but on page 34, two of the witnesses -- you said one of the witnesses had been convicted of a crime. Mr. Grosskreutz had been convicted of a crime and Mr. Smith had been convicted of a crime, juvenile adjudication. So, I think you should say the witnesses, I think something like that.

SCHROEDER: Okay. What page is that on?

UNIDENTIFIED MALE: I'm sorry, 34. And we are asking for the --

SCHROEDER: You want the word some instead of one?

UNIDENTIFIED MALE: Or multiple?

UNIDENTIFIED MALE: Yes, that's fine.

SCHROEDER: How many was it?

UNIDENTIFIED MALE: Two, that I recall.

UNIDENTIFIED MALE: There actually were -- well, I don't think you asked this sort of (INAUDIBLE). There was another witness with convictions, but I don't think the question was asked, so, two.

SCHROEDER: What was the answer?

UNIDENTIFIED MALE: Two.

SCHROEDER: All right. I'll put down two then.

UNIDENTIFIED MALE: And then there were some conversations regarding a cautionary instruction regard Mr. Armstrong.

SCHROEDER: Yes, and I've really struggle with that.

UNIDENTIFIED MALE: And we had proposed the instruction to the court, which I think we took off of 245 or something like that.

SCHROEDER: Yes.

UNIDENTIFIED MALE: So, we are asking based on his testimony that the court instruct with that modified 245 instruction as it relates to Mr. Armstrong.

SCHROEDER: Did you want to be heard?

UNIDENTIFIED MALE: Well, I would stand by what I indicated over the weekend in my email, but I believe that -- I'm looking at the specific instruction. Did you say 245? I think it's testimony of accomplices.

SCHROEDER: Yes, and that's a good model for it. That was what I had planned on using if I drafted it myself.

UNIDENTIFIED MALE: Judge, I just don't think it's necessary. The evidence was received. The points that the defense wanted to get into were made on cross-examination. Giving any kind of instruction on this would essentially be telling the fact-finders how to weigh the evidence. I proposed a different -- or some different wording. You should not face a verdict of guilty upon it alone unless after consideration of all of the evidence you are satisfied beyond a reasonable doubt that the defendant is guilty, is completely inappropriate.

I can understand where it's appropriate if you're talking about accomplices but certainly not where it's talking about a one picture of 100-some-odd exhibits. So, I don't believe it's appropriate. I don't believe it's necessary. Again, I believe that these arguments about pixels and zooming are specious, that using a similar software programming with Zooming was cropping --

[10:30:09]

SCHROEDER: There was no objection then.