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Jury Instructions Begin in Kyle Rittenhouse Trial. Aired 10:30- 11a ET

Aired November 15, 2021 - 10:30   ET

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

[10:30:09]

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: There was no objection then.

KRAUS: I understand. There's no basis for objection and they know that.

SCHROEDER: I don't know that. Maybe they do. I don't know. I can't read their minds.

KRAUS: A forensically sound program used by a forensic analyst who's trained, peer reviewed. If they wanted to discuss the proprietary algorithms and how an analyst would not know a proprietary algorithm contained in the software that they are using, that is an industry standard, they can go ahead and argue that. But to give an instruction that tells the jury essentially to ignore this evidence unless everything else proves it is way too far.

SCHROEDER: Well, this whole business about -- well, I won't say whole business, but the Daubert rule is the product of the abuse of so- called scientific evidence by attorneys. There were companies, pension funds, individuals were bankrupted because of legal decisions that were made on the basis of so-called science, which was later shown to be garbage.

So, when you come in here and tell me, well, this is what they rely on, I think that's fine, except when my common sense tells me, well, wait a minute, what's happening here when you get an image that is consistent -- I don't -- I'll say it again, let's say 2,500 pixels and you blow it up to 25,000 or 250,000, and you don't really know what fills the vacant space, that's a little struggle for me.

And this is not being used to decide which camera I'm going to buy or which phone I'm going to buy when I'm at the store. This is being used to decide about whether someone is innocent or guilty of a crime. So, that's why I was -- I was -- when the witness answered he didn't know -- and the only reason I decided -- I left here and I troubled about it, and in the end, I decided, well, wait a minute, we allowed this kind of thing to happen in DUI cases, where the officer is asked, how does the machine work? I don't know. I just am trained how to operate it. But there is a difference there. That has already past judicial scrutiny, and this method has been judicially determined to be accurate. Has that been done in this? I don't know. So, that was -- so that was when I was thinking, well, maybe I should give a cautionary instruction.

I ultimately -- you convinced me in our exchanges that I don't want to be meddling and commenting on the evidence. I will tell you this. Assuming that there's a conviction, one or more, assuming that other motions don't contaminate whatever outcome there is, if it comes out at some time that the method used reproduces unreliable results, this is going to fall like a house of cards, because you're basing this extremely important segment of the evidence on something that I'm really queasy about.

But as I said when I left on Friday, this is the jury's case, it's not mine. And I'm going to let them decide. They have your photographs and your video, and they've got the testimony of the person who was who worked with it who knows a lot more about this stuff than I do. So, I've decided to leave it alone. So, I'm not going to give an instruction on it, but I've made my record on the high risk that I think it presents for the case.

Okay. What's next?

UNIDENTIFIED MALE: The two last things (INAUDIBLE). The court had modified a little bit count six, which was that --

SCHROEDER: I did.

UNIDENTIFIED MALE: Okay. So, the third element that you have listed there is the dangerous weapon was a rifle that had a barrel less than 16 inches or an overall length of less than 26 inches. We have pulled the transcript and looked at it. The Detective Antaramian was asked if this was a short-barreled rifle.

[10:35:01]

He had answered, no, he did not believe that it was. That's the only information regarding that.

SCHROEDER: Was the gun offered as an exhibit?

UNIDENTIFIED MALE: Yes.

SCHROEDER: That is evidence enough in itself.

UNIDENTIFIED MALE: Correct.

SCHROEDER: The jury can measure it.

UNIDENTIFIED MALE: Okay. Fair enough. I just didn't -- the way I looked at it, there was no other information that a reasonable juror could agree that count three has been met.

SCHROEDER: So, what are you telling me? UNIDENTIFIED MALE: That I'm asking you take it from them.

SCHROEDER: You're asking me to dismiss the case for failure to prove --

UNIDENTIFIED MALE: Is this count six?

SCHROEDER: Count six.

KRAUS: Judge, there have been many discussions about this count. I'm not going to rehash everything. The state disagrees with the interpretation the court has established. We do not believe this jury instruction is promote. We do not believe that the exception or further defense, whatever you want to call it, was properly raised. We argued about all that on Friday. I'm not going to rehash it.

I believe it should go to the jury. And if the jury believes that it was proven beyond a reasonable doubt, they can return a verdict on that. But the state has objected all along or has given its version all along. We stand by that version. I believe that this jury instruction essentially swallows the entire statute. We've gone over that before. So, I believe that if they raise an exception, then it should go to the jury, the standard instruction. Clearly, the court is not going to do that.

SCHROEDER: Well, up to now, the motions were motions to dismiss the complaint, and you filed a very nice brief, which well explained what the law is, and, of course, we were dealing with what the complaint stated and whether the complaint stated sufficient facts to bring the case to court. And the court is confined on that kind of a motion to the -- to what's in the complaint and whether it meets the law.

And as you pointed out, these are offensive matters affirmative defenses and the D.A.'s doesn't have to play them (ph). So, that's why I ultimately denied the motion to dismiss, although I think it ought have been made clearer that I have big problems with this statute. I have made bones (ph) about that from the beginning.

And there always was access to the court of appeals all along here. Well, I guess that's not fair for me to say because I was sitting on it. But -- so, shame on me. But I ultimately read the statute and have -- even when I ruled on the motion to dismiss, I was of the opinion that the statute was -- as interpreted by the defense but that was not sufficient grounds to grant the motion to dismiss. Is the firearm here? No?

UNIDENTIFIED MALE: Yes.

SCHROEDER: We can either measure it or you can stipulate that it is -- it does not meet what I've stated are the requirements. And if it is out of compliance, if it is -- if the barrel length is less than 16 inches or an overall length less than 26 inches, then I'll deny the motion. If it does not meet those specifications, then the defense motion will be granted.

KRAUS: We are not disputing that the barrel -- that the barrel length is appropriate.

SCHROEDER: Is it legal?

KRAUS: It is not a short-barreled shotgun or a short-barreled rifle, yes.

SCHROEDER: Either by barrel or by overall length?

KRAUS: Correct.

SCHROEDER: All right. And count six is dismissed.

What's next?

COREY CHIRAFISI, DEFENSE ATTORNEY FOR KYLE RITTENHOUSE: One other thing, Judge. I had filed on November 8th. We had addressed a motion to -- a motion for mistrial with prejudice. The court had taken that under advisement. What I informed the court was -- so I have filed something in writing on that. I know the court likely hasn't had an opportunity to review it.

I don't know -- I'm assuming --

SCHROEDER: I haven't seen it.

CHIRAFISI: Okay. I'm assuming that we're going to go obviously through closing arguments today.

[10:40:02]

But I did want to make sure the court was aware that it had been filed and at some point have the court make a final ruling on it just for the record.

SCHROEDER: I will.

CHIRAFISI: Okay.

SCHROEDER: If it's necessary. The -- okay. Came in this morning?

UNIDENTIFIED FEMALE: Yes.

SCHROEDER: Okay. Okay. Anything else?

UNIDENTIFIED MALE: Were you ever able to use the defendant's interview link that we sent to play, the Washington Post story?

SCHROEDER: I did. I did receive that. I did receive that.

UNIDENTIFIED MALE: It relates to the motion. That's the only reason I asked. The defense motion, it relates to that.

SCHROEDER: Well, I'm not going to take up the motion now.

UNIDENTIFIED MALE: I know. I just know there are typical problems. I just wanted to make sure they were known. SCHROEDER: I did receive it.

UNIDENTIFIED MALE: Okay.

SCHROEDER: Okay. Anything else right now?

KRAUS: The only thing, judge, in our arguments, we would like to indicate that pointing a loaded AR-15 at someone without reasonable justification would be a criminal act without citing, you know, the statute, but that pointing under 941.20 is a crime. We would like to point that out, and we just wanted to preview that. So, if there's objection, we can handle it now.

SCHROEDER: Okay. Do you want to respond?

UNIDENTIFIED MALE: We're going to object. This is once again relying on the exhibit that is so far out of focus, and there's been nothing in the record. When I specifically asked the detective, Detective Howard, regarding strong-arm robbery, I asked about it, strong-arm robbery while asked, I asked about it. It's in the record.

SCHROEDER: You know, the struggle I'm having with that, and I will -- well, I'll leave that. How do we know it was pointed at or towards Mr. Ziminski or Mrs. Ziminski or whomever? The theory that it's pointed in that direction, I agree with that, but the statute prohibition is pretty explicit. And I'm not sure that the evidence that you have, especially because it's just you -- well, not just especially but in part because it's just a regular photograph, it's not multidimensional, it doesn't show the exact area which the firearm was in --

KRAUS: Judge --

SCHROEDER: -- even if you see the firearm.

KRAUS: Again, the photograph is perhaps the fifth or sixth most relevant piece of evidence on this topic.

SCHROEDER: The most what?

KRAUS: Fifth or sixth most relevant piece evidence on this topic. We have testimony, we have videos, and I'm not going all over that again. The defense submitted their own exhibit of the FBI video with the Ziminskis denoted as being the only two that were on that side of the Duramax. Mr. Ziminski starts out by the -- one of the windows of the Duramax, I guess the rear passenger side window. And so there's no real dispute that they are in that area, and that is where we argue that he is pointing the weapon. It's for the jury to decide if he's pointing it at the Ziminskis or not.

SCHROEDER: It's for the jury to decide. It is not for the jury to speculate. I mean, let's look at the statute. That's a good place to start. Was 941. --

KRAUS: Two, zero. SCHROEDER: Yes. That brings up a special issue, I suppose, that what is the role of Mr. Rosenbaum assuming the defendant violated that statute? That's the very theory that the state has proceeded on in the first place, is that the defendant was a vigilante who was getting himself involved in something that was not his concern, and now you're telling me that would justify Mr. Rosenbaum's actions? I'm kind of struggling with that too. How old that justify -- I mean, what does the jury do with that?

KRAUS: I don't fully understand the court's question. I would also --

SCHROEDER: What is -- pardon me?

KRAUS: He also pointed the weapon at Mr. Rosenbaum before the shooting.

[10:45:00]

While he's being pursued, he turns and points it at Mr. Rosenbaum.

SCHROEDER: Well, there's no question about that.

KRAUS: Correct.

UNIDENTIFIED MALE: He's being chased by him.

SCHROEDER: Pardon me?

UNIDENTIFIED MALE: I said he's being chased by him.

SCHROEDER: Well, they've made it much more complicated. It used to be points or aims a firearm at another. I'm not seeing that exact language anymore but I'm not seeing it here on the statute that there would be a broad enough sweep to capture some wrongfulness in just pointing the firearm towards the west without evidence that it was pointed specifically at or toward another. What am I missing?

UNIDENTIFIED MALE: 1A is endangers another's safety where the negligence operation or handling of a dangerous weapon.

UNIDENTIFIED FEMALE: Just start all over.

UNIDENTIFIED MALE: Sure. 1A is endangers another's safety by the negligent operation or handling of a dangerous weapon. We would argue that it is -- if the court feel otherwise, we just simply -- we'll talk about it --

SCHROEDER: Well, where was the firearm aimed? You say the Ziminiskis. I didn't hear the Ziminskis come in here and say that. Who said it?

UNIDENTIFIED MALE: Looking at the video, there's -- and that's who's over there, that would be --

SCHROEDER: I beg your pardon?

UNIDENTIFIED MALE: Looking at videos and indicating that those were the ones over there, that would be the evidence.

SCHROEDER: I can't say -- I'm not saying it didn't happen, I'm saying I don't think I can give an instruction to the jury telling them, you know, something when I don't see the statutory --

UNIDENTIFIED MALE: Well, we'll ask for instruction. In our closing -- in our arguments, we just wanted to say that it's --

SCHROEDER: I think it would be okay for you to say -- state what the law says, but you have to be careful because the jury cannot be invited to speculate. So, I don't want to -- there's such a universe of possible statements that could be made, but I don't want to try to, you know, rule in advance. I refrain from doing that. I always try to because I can't read your mind. But -- so I'm not going to say you can't mention that at all, but it's unlawful to point a gun at somebody. The jurors probably have a sense of that anyway. But as to what might be said, I can't tell you what's in and out of bounds.

Okay. What's next?

UNIDENTIFIED MALE: That's all we have.

SCHROEDER: Okay. Ready for the jury? I'll probably take a break after these lengthy instructions. And --

ERICA HILL, CNN NEWSROOM: So, the jury, if you're just joining us, jury in the Kyle Rittenhouse trial now being brought into the courtroom. The judge going over some points there with the attorneys. Interestingly, count six was dismissed. So, this was the count -- possession of a dangerous weapon by a person under 18.

We still have Judge Glenda Hatchett, Sara Azari with us.

So, this was something -- there's a statute in the state, as I understand it, that allows a 16 or 17-year-old to carry a long gun in public. Prosecution said this is really only if they have a hunting license, this should only be for hunting. This count now, Judge, was now dismissed. Just walk us through what we just heard and why this is so important.

JUDGE GLENDA HATCHETT, HOST, THE VERDICT: Yes. It's very interesting to follow that because at the end of the day, we still have to remember that Kyle was not licensed to carry that gun regardless of the barrel. And so you heard them talk about the length of the barrel because they're referring to the statute and count six being dismissed.

But, really, what the prosecution really had to be able to show -- and I think is going to be confusing for the jury -- is that still, this is a kid who came across state lines, was underage, should not have had the weapon in the first place and should not have been in possession and that his possession in and of itself was illegal.

[10:50:05]

So, it will be interesting to see how that plays out with the other jury instructions that are going to be given.

JIM SCIUTTO, CNN NEWSROOM: Sara Azari, the other guidance early on was the judge, I don't know, chastising is too strong a word, but criticizing the defense saying that they might bore jurors if they went over again what the requirements are under self-defense under the law, for self-defense under the law. I wonder what you thought the significance of that was.

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: God, no. I mean, when you're talking about self-defense, and I think the next thing that I would say is just as important, is proof beyond a reasonable doubt, right. Those are things that you really want to drill into the juror's head. These are lay people. Most lawyers don't make it on the jury, so I'm assuming they're lay people. The law is what they have to follow and apply to the facts that they heard throughout this trial.

I would repeat it more and more because, I mean, just to err on the side of caution, I think the judge was basically saying, we'll lay it out in great detail as the first time we're giving that instruction, but then we won't do it as much in detail because we're going to lose the jury. I don't think so. I think when you're dealing with such a critical issue that someone's guilt or innocence turns on, you can't repeat it enough. I mean --

HILL: Judge, to Sara's point, was that surprising at all to you?

HATCHETT: Interesting because I hear exactly what Sara is saying from the perspective of a defense attorney. I get it. I get it. But I also understand that there has to be some sensitivity about the attention span of the jurors.

And I think that's a delicate balance. However, having said that, if the attorneys weighed that and said there can be a concise piece around the issue of the standard of proof, the burden of proof here, and particularly the self-defense argument here or instructions, rather, then I think that that could proceed in a more concise form that gets the information to the jurors but does not just prolong it indefinitely.

SCIUTTO: Okay. So big picture, Sara, we're about to begin closing arguments here, we're down to five charges, we are expecting the possibility of instructions to the jury that they have the ability to consider lesser charges than the top charge of homicide here. Tell us, in your view, how this plays out in the coming hours and days.

AZARI: Yes. I think that the prosecution is going to rely heavily on what is shown on the video, and that's why that cautionary instruction is a big deal, right? Because if that video is altered in a way or where it emphasizes something more than it should, the jurors need to know that.

So, the prosecution is going to rely on the video. The prosecution is going to argue that Rittenhouse had no justification to shoot these three men, killing two of them. They're going to highlight the credibility issues that Rittenhouse has. He says he was an EMT, he's poser. He said he went there to protect a business. The business owner said he never enlisted his help. He lied about not shooting anyone. He said he was there not to cause trouble --

HILL: Sara, I'm going to interrupt you there, as we're listening. The judge is just beginning his jury instructions. Let's take listen.

SCHROEDER: -- on these instructions, apply that law to the facts in the case, which have been properly proved by the evidence. Consider only the evidence received during the trial and the law as given to you in these instructions, and from these things alone, guided by your soundest reason and best judgment, reach your verdict.

If any of you has any impression of my opinion as to the innocence or guilt of the defendant, you must disregard that impression entirely and decide this case solely as you view the evidence. You are the sole judges of the facts, and I am the judge of the law only.

Keep in mind that the information is nothing more than a written formal accusation against the defendant, accusing him of the commission of crimes. You are not to consider it as evidence against the defendant in any way, and it does not raise any inference of guilt. The information contains six counts of charged unlawful behavior against the defendant and to each of these he has entered a plea of not guilty, which is a demand that the state prove every element of each crime beyond a reasonable doubt.

Self-defense is an issue in this case as to each of counts one through five. And I might interject here, count six is no longer part of your consideration. That was the firearm charge. So, that will not be something that you will need to address. You'll need to address -- only to address only the first five counts.

Count -- well, self-defense is an issue in this case as to each of counts one through five.

[10:55:00]

The state must prove by evidence, which satisfies you beyond a reasonable doubt that the defendant did not act lawfully in self- defense.

The law of self-defense allows the defendant to threaten or intentionally use force against another only if he believed that there was an actual or imminent unlawful interference with his own person and he believed that the amount of force which he used or threatened to use was necessary to prevent or terminate the interference and his beliefs were reasonable.

The defendant may intentionally use force, which is intended or likely to cause death or great bodily harm only if he reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to his own person.

A belief may be reasonable even though it is mistaken. In determines whether the defendant's beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offenses. The reasonableness of the defendant's beliefs must be determined from the standpoint of the defendant at the time of the defendant's acts and not from the standpoint of the jury now.

There is no duty to retreat. However, in determining whether the defendant reasonably believed the amount of force used was necessary to prevent or terminate the interference, you may consider whether the defendant had the opportunity to retreat with safety, whether such retreat was feasible and whether the defendant knew of the opportunity to retreat.

You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack and who does provoke an attack is not allowed to use or threaten force in self-defense against that attack.

However, if the attack which follows causes the person reasonably to believe that he is in imminent danger of death or great bodily harm, he may lawfully act in self-defense. But the person may not use or threaten force intended or likely to cause death unless he reasonably believes that he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.

Counts four and five require intent to kill as part of the elements. Intent to kill means that the defendant had the mental purpose to take the life of another human being or was aware that his conduct was practically certain to cause the death of another human being. While the law requires that the defendant had acted with the intent to kill, it does not require that the intent to kill have existed for any particular length of time before the act was committed.

The act need not have been brooded over, considered or reflected upon for a week, a day, an hour, even for a minute. There need not have been any appreciable time between the formation of the intent and the act. The intent may be formed at any time before the act, including the instant before the act and must continue to have existed at the time of the act.

You cannot look into a person's mind to determine intent. Intent to kill must be found, if found at all, from the defendant's acts, words and statements, if any, and from all the facts and circumstances in this case which bear upon intent.

Intention not be confused with motive. Proof of motive is necessary -- excuse me, while proof of motive is necessary to a conviction, proof of motive is not. Motive refers to a person's reason for doing something. While motive may be shown as a circumstance to aid in establishing the guilt of the defendant, the state is not required to prove motive on the part of the defendant in order to convict. Evidence of motive does not, by itself, establish guilt. You should give it the weight you believe it deserves under all the circumstances.

The first count of the information charges that on or about Tuesday, the 25th of August of last year, at the city of Kenosha in this county, the defendant recklessly caused the death of another human being, Joseph D. Rosenbaum, under circumstances that would show utter disregard for human life. First-degree reckless homicide, as defined in the criminal code, is committed by one who recklessly causes the death of another human being under circumstances which show utter disregard for human life.

Before you may find the defendant guilty of reckless homicide for the first-degree, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present. First, that the defendant caused the death of another. Cause means that the defendant's act was a substantial factor in to producing the death.

[11:00:01]

Second, that the defendant caused the death by criminally reckless conduct. Criminally reckless conduct means the conduct created a risk --