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Final 12 Jurors Chosen By Lottery in Rittenhouse Trial; Jurors Begin Deliberations in Rittenhouse Trial; Today, January 6 Committee Expected to Discuss How to Handle Mark Meadows' Subpoena Non- Compliance. Aired 10-10:30a ET

Aired November 16, 2021 - 10:00   ET




JIM SCIUTTO, CNN NEWSROOM: A very good Tuesday morning to you. I'm Jim Sciutto.


At any moment, Kyle Rittenhouse's fate will officially be in the jury's hands as they are set to begin deliberations and, of course, will decide whether the teenager acted in self-defense when he killed two men and injured a third last year during protests in Kenosha, Wisconsin.

He is accused of first degree intentional homicide and four other felonies. The most serious charge carries a mandatory life sentence.

SCIUTTO: During closing arguments, prosecutors emphasized that Rittenhouse had no valid self-defense claim.


THOMAS BINGER, ASSISTANT DISTRICT ATTORNEY, KENOSHA COUNTY: You cannot hide behind self-defense if you provoked the incident. If you created the danger, you forfeit the right to self-defense.


SCIUTTO: The response from the defense was that there was reasonable concern of danger for Rittenhouse.


MARK RICHARDS, DEFENSE ATTORNEY FOR KYLE RITTENHOUSE: Every person who was shot was attacking Kyle, one with a skateboard, one with his hands, one with his feet, one with a gun. Hands and feet can cause great bodily harm.


SCIUTTO: CNN Crime and Justice Correspondent Shimon Prokupecz is outside the courthouse in Kenosha. Shimon, first step narrowing this panel of 18 jurors to 12, when and how does that happen, and then what next?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Yes. So, that's supposed to take place any moment now. We expect the jurors to arrive to come down from their room into the courtroom, all 18 of them, and then what we're told is the judge is going to use a tumbler, kind of what you see in a bingo, and he's going to spin it and he's going to pull out cards with perhaps numbers on them and that is how the final 12 will get selected. The six remaining will be alternates. They will not be free to go. They will have to remain at the courthouse in case something happens and they need to replace one of the 12. And that's the process.

So once that is done, once they've selected the final 12, they will go into deliberations and they will have a verdict sheet, they will have the instructions that they can look over on their own. You know, yesterday was very confusing when the judge was reading those instructions. So, he said he's going to give it to them, they're going to be able to read it. And then the verdict sheet, it's 14 pages. And they will go sheet by sheet by sheet going through the charges, the counts as they decide whether or not Kyle Rittenhouse is guilty or not guilty.

HILL: Shimon Prokupecz with us from outside the courthouse there, Shimon, thank you.

Also joining us this hour, Ion Meyn, Assistant Professor of Law at the University of Wisconsin, and former New York City Prosecutor Paul Callan. Good to have you both with us this morning.

Ion, I want to begin with you. When you look at what we saw from the prosecution and the defense yesterday, who do you think had a stronger closing argument?

ION MEYN, ASSISTANT PROFESSOR OF LAW, UNIVERSITY OF WISCONSIN: In terms of closing arguments, I would say the prosecution. In term offense closing, what you're looking for is to frame the issue. And then with that framing, thread through it all the rules and the evidence that you have established during the course of the trial. And so I thought they did a really good job keeping with that.

Surprisingly, the defense started off with not framing a new issue or how they want to see it but just attacking the prosecution, and I thought that was probably a misstep in terms of the traditional way you approach the closing.

SCIUTTO: Paul, central to the argument both the defense and the prosecution, frankly, is the idea of self-defense. Defense says Rittenhouse was acting in self-defense to these threats. The prosecution made the argument that doesn't hold if you put yourself, like Rittenhouse, for instance, with his weapon in the midst of these riots, put himself there and therefore bears responsibility. What is the legal standard, and who do you think at this point is winning that argument?

PAUL CALLAN, CNN LEGAL ANALYST: I think that the defense, although I have to agree, their presentation was a little more disjointed than the prosecutors'. But they showed the films, and, you know, the films and the videos say everything in this case. And they made the argument that in each case when he used force or deadly force, he was always being attacked, somebody was always coming toward him. And there were many of the film clips where there were other pool close by, he didn't shoot at them. He only shot at those people who came at him.

And as to the question that you propounded initially, the law of self- defense says that if you're in danger of serious physical injury or death as a result of being attacked by another person, you have the right to act in self-defense.


The prosecutors' whole argument is -- and, by the way, it's a good, commonsense argument -- what is he doing there in the first place? Why is he putting his nose into the business of Kenosha instead of leaving it to the police in Kenosha?

But you know something? Wisconsin is an open-carry state. You're allowed to walk around with, you know, an assault rifle, and, by the way, assault rifles are legal in Wisconsin. So, he wasn't violating the law by being out on the street with that rifle. And the prosecutors are now trying to say that that's an active provocation. Well, that's a legal act in Wisconsin.

And I think that's the Achilles' heel and the problem with the whole prosecutors' case. If he has the right to be on the street with an AR- 15 rifle, then that can't, by definition, be provocation. So, you have to look at each individual encounter. And if the jury is doing its job, that's what it will do, to see if a reasonable person would have felt threatened in that situation. And that's how they're going to evaluate in the jury room.

HILL: Ion, you've also made the case, I believe, that when we look at self-defense, this community standard of self-defense, that's evolving. How is it evolving, and how is this case, in your mind, adding to that?

MEYN: I think it's evolving just from the commentary over the former guest and also what we're hearing on social media. We're actually considering the possibility that someone with a plastic bag versus someone with an AR-15, that the person with the plastic bag is the one who is posing a deadly threat. The idea that you can carry an AR-15 doesn't mean that you should do it or that you can do it without any consequence. And so, again, we have this debate about rights and consequence, and the responsibilities that go with having a right. And I think we're having a really interesting cultural discussion right now.

And we don't really need to talk about provocation. Instead, this is just a self-defense issue. At what point do we allow a person with an AR-15 to think that they are under deadly threat because someone is approaching them?

Now, we give special privileges to police officers in officer involved shootings. And then those officer involved shootings, we give special privileges because they are in the course of conducting a public duty. And I'm wondering if we're going to be extending that privilege, the idea that if you have a gun you have a greater discretion to use it against people and to detect a threat where otherwise you wouldn't have one, to civilians who are engaged in open carry. So, it's a really interesting point in terms of the crossroads on this debate.

SCIUTTO: Yes, no question, with the Supreme Court considering open carry laws around the country.

Just quickly, Paul, before we go, there are lesser charges that the jury can now consider below first degree intentional homicide, second degree intentional homicide, attempted first degree attempted -- intentional homicide, and it goes down the line. Are there any of those lesser charges that you look at that you believe have been proven by the prosecution?

CALLAN: I think that if the jury finds that he was acting in self- defense, they're finding that his use of force was reasonable, and so the lesser charges wouldn't be applicable either. But I will say one thing. A lot of times juries don't strictly apply the law as it's given to them. And I think one of the things that this jury may be looking to do is compromise on a lower charge.

And if they compromise, I think the fact that these were full metal jacket bullets and that they threatened innocent bystanders, that's -- some of the charges relate to that, that would give them an area where they could compromise and say even if he was acting in self-defense, he was reckless with respect to bystanders. So, I think if you see a compromised verdict, it will be in that area.

SCIUTTO: Interesting.

HILL: I believe these are live pictures that you're seeing of the courtroom. The judge has now made his way, you see him there, Judge Schroeder, into the courtroom. Again, what's going to happen now is, as Shimon said, almost -- let's listen in as he talks about how the jury will now be whittled down to 12.

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: Six of you who are dismissed will be kept here in the courthouse just as the deliberating jurors will do, and you'll not be permitted to discuss the case in any way.

There was a request, if you could use laptops, and the answer to that is yes, but, of course, under the same rules that you've had all along, which is you're not to communicate in any way or access any site respecting the case.

And let's take the jurors as necessary. All of the jurors' numbers have been exhibited to the defendant, I believe. And they're paper clipped together now.


And then please put them in the tumbler and we'll rotate it and then the defendant will draw six of the numbers. No, just separate them.

And then (INAUDIBLE) that you've drawn will be jurors that will be dismissed.

UNIDENTIFIED FEMALE: As I call your number, will you please stand up. Number 11, number 58, number 14, number 45, number 9 and number 52. Then if you'll follow the bailiff into the back room.

SCHROEDER: All right. Members of the jury, it is for you to determine whether the defendant is guilty or not guilty of each of the offenses charged. You must make a finding as to each count in the information. Each count charges a separate crime, and you must consider each one separately. Your verdict for the crime charged on one count must not affect your verdict on any other. As I indicated I think yesterday that you must return only one verdict for each count of the information.

If you need to communicate with me while you are in deliberation, please send a note through the bailiff which is assigned by the presiding juror whom you have elected. In the event that you have questions, I will talk with the attorneys before answering, so it may take some time. You should continue your deliberations while you await an answer. I will answer any questions in writing or orally hear in open court.

When you agree upon your verdict, have it signed and dated by the presiding juror as to each count and all of your return with the verdict to the court.

Bailiffs? Will you solemnly swear that you will keep all persons sworn on this jury together in some private and convenient space and that you will not speak to them nor comment anyone else to speak to them according to the state of their deliberations or the verdicts on which they have agreed, so help you God?


SCHROEDER: Okay. All right, folks, you can retire to consider your verdicts.

HILL: And there you have it, the judge offering those final instructions. And so as you saw, we are now down to 12 jurors who will now begin their deliberations. Obviously, they can ask questions of the judge, as he said. It may take a little bit for him to get back to them because he'll confer with attorneys.

I want to bring back Ion Meyn and Paul Callan. We knew that we were going to have this little sort of bingo-style picking to take out six alternate jurors because there were 18.

Paul, the fact that we saw Kyle Rittenhouse as the person who selected those numbers, just walk us through what we were seeing there.

[10:15:07] CALLAN: Well, this is a very common procedure of picking at random the jurors who will sit on the case and then having six backup jurors. And, usually, of course, it's best that the jurors don't know which ones will be the backup jurors while the evidence goes in. It forces everybody to pay attention.

It's very unusual if you're saying you saw Kyle Rittenhouse picking -- actually picking from the drum, that is extraordinarily unusual, in my experience. I've tried cases in, you know, several states across the United States, and I've never seen a defendant actually do the picking.

HILL: Who typically would do that?

CALLAN: The court clerk usually does it and then hands it up to the judge. That's -- in most states, that's the procedure. This is an odd procedure.

SCIUTTO: Would that be a statewide? I don't know. I wonder if you're -- and sorry to put on you on the spot, if you're aware with that, would that be a statewide regulation or up to the decision or the discretion of the judge?

CALLAN: I would think that it probably would be a statewide custom practice. It would be very unusual if one judge was doing it and nobody else was doing it.


HILL: And, Ion, you are a Wisconsin expert here. How common is that, or is it up to the judge?

MEYN: I think it's probably up to the judge in this situation. Counties have different practices, and I'm not aware of any particular state law that provides that the defendant choose these names.

SCIUTTO: Okay. So, the jury is now beginning its deliberations. They've got multiple charges. Let's listen in to the judge, more to come from the courtroom.

SCHROEDER: And then when you take them up, you can take that up too. There have been rare instance, sometimes in cases you'd recognize by their importance where jurors have been restored to the jury after having been dismissed, so that is conceivable it would happen in this case. It's not likely, but it's -- in fact, it's quite unlikely but it's possible.

So, I'm going to ask you continue with the instruction that you not discuss the case with anyone, not even amongst the six of you. You can't deliberate at all or discuss the case in any way. You can't read, watch, or listen to anything from the trial. Did some of you bring laptops? No, no. Well, I feel badly about that. Because I had jury some years ago that was in a similar situation and the extra jurors were -- all they had to watch was daytime T.V. and I'm afraid they can't even arrange that for you.

But I don't know, maybe there was something about movies or something, wasn't there? I hope they appeal to everyone.

Well, anyway, we'll see what we can do to give you some kind of entertainment. But in the meantime, please adhere to those rules and we're not going to sequester anybody or anything at this particular point, so -- and I hope that they have a comfortable place. I understand they do.

So, any questions? Yes, ma'am.

UNIDENTIFIED FEMALE: Are we allowed to get our belongings?

SCHROEDER: Yes. In fact, I'm having the bailiff escort you out there now. And while you're there, you're not to have any conversation with the other jurors, okay?

Anything else? Okay. Thank you very much. And give those to the jurors, yes.

SCIUTTO: Paul, the jury now considering multiple charges. You've been involved in your share of cases, Paul Callan, jury trials. Tell us how juries tend to begin the process. Do they just start talking?

CALLAN: Well, the usual thing that happens when they go out to jury room is they elect a foreperson of the jury. And, of course, his vote isn't any more powerful than any others, but he's kind of the person in charge and organizes the jurors.

And then they decide -- usually, the next thing they decide on is how are we going to approach this? Sometimes they'll go all around the table expressing their general feelings about the case. And then in a case like this, they may come back and say, well, all right, let's start with count number one. And -- yes.

HILL: Sorry. I think Shimon Prokupecz is with us outside the courthouse.

Shimon, we heard the numbers there of the six jurors who are now officially the alternates. Do we know anything more then about the 12 who remain who actually make up this jury now?

PROKUPECZ: Right. So, one of the significant things is that there was one person of color, a male, a black man, who is on this jury.


He remains as part of the 12. The jurors who were dismissed are three white males and three white females. And the lone person of color, this black male, he remains on the jury.

I've watched this jury throughout this trial. Certainly, yesterday, I spent a lot of time watching them during the closing arguments. And, obviously, they all were really paying very close attention during the prosecution's arguments and then, obviously, also during the defense. But, you know, as the day wore on yesterday, you could see them starting to get tired. So, this is what we know about this jury now. The alternates, they will remain at the courthouse, the 12 others obviously sworn in together, collectively as a group. And so they're now off to begin their deliberations.

SCIUTTO: Ion Meyn still with us. And Ion, you heard Paul just a few minutes ago talk about how juries sometimes approach this when they have multiple charges here. Of course, you have the law. And, by the way, we can't predict what happens in that room. It could be very surprising at times, challenge expectations.

But Paul made the point that sometimes juries look for a compromise, right, that if you see something happen and see two people came away dead, right, that they look for some charge to agree on. Is that something you have experience with in jury trials like this one?

MEYN: I think that's absolutely correct. I think juries are always looking for accountability, and even folks who are unsure that the most severe charge is the correct one still may feel like there should be some accountability. And as those kind of fractures begin to develop within the jury, they have to come to the decision whether they're going to be unified or not in front of the nation.

And there's a lot of pressure on a jury to actually come together to a decision. And so having multiple options does allow that release valve and permit that kind of exchange that otherwise you get with a situation where there's one, say, severe charge and there's one holdout. This allows kind of to breakthrough that kind of deadlock.


HILL: Ion just mentioned the pressure that jurors feel. I feel that, Paul, we often talk about how seriously jurors do take their job. That being said, with such a -- being involved in such a public trial that has elicited such strong reactions from various sides, how does that figure in when these 12 folks are now in that room?

CALLAN: It's hard to believe that they could remain impervious to the public pressure that's out there. You know, in this case, Erica, of course, we also have the National Guard, I understand, has been called to Kenosha, and the jurors would certainly know about that. So, that puts an extra element of pressure on them. Do they have to worry about whether their verdict would set off civil unrest? So, they're in a tough, tough spot. And they're also going home to other fellow residents of their community who are going to be upset whatever way they decide.

So, it's a brave thing to sit on the jury like this, and we're fortunate to have jurors who are willing to do this and take on this enormous responsibility. And the responsibility really is to make a judgment based on the law and the facts of the case, not on public pressure, not on what's being said on television, but only the evidence that was presented in the courtroom. And that's how we decide cases in America.

SCIUTTO: Yes. HILL: Paul Callan, Ion Meyn, I appreciate you both joining us. Thank you.

CALLAN: Thank you.

MEYN: Thank you.

HILL: Still ahead, the House committee investigating the January 6th insurrection meeting about bringing charges against Mark Meadows, the calculations being made by every Trump ally who's been summoned by the committee, more on that next.



SCIUTTO: Back in Washington, the January 6th committee continues its work, is meeting today, expected to discuss how to move forward with subpoenas for former Trump White House Chief of Staff Mark meadows.

HILL: Meadows refused to appear for a deposition on Friday, which was already a rescheduled date. The committee now threatening contempt charges, like those filed against former Trump Chief Strategist Steve Bannon. Bannon, of course, now free on conditions after turning himself in to the FBI yesterday. His attorney claims that Bannon is the victim of a political witch-hunt.


DAVID SCHOEN, ATTORNEY FOR STEVE BANNON: This is not equal justice under the law, and that no American should stand by and accept this kind of politicization of the criminal process. It's not right. It's not fair. You should be outraged by it.


SCIUTTO: Philip Bump, National Correspondent for The Washington Post, joins us now.

Philip, a question about Bannon's approach to this indictment as opposed to what, say, a Mark Meadows, if he were to be indicted -- I mean, Bannon has got a lot of money. He's already been talking about this a lot on his podcast. Mark Meadows, different situation, and his lawyer even granted that some of his conversations might not be covered by privilege. Do you see Meadows with a different approach to this subpoena?

PHILIP BUMP, NATIONAL CORRESPONDENT, THE WASHINGTON POST: Yes, absolutely. I mean, I think that Steve Bannon is relishing this moment, right? He gets to be very public and very obvious face of opposition to the anti-Trump forces. He gets to use this as a rallying cry of how he is being oppressed and put upon and so on and so forth.

I mean, there are a lot of ways in which Bannon could have avoided this fate. He chose not to comply with the subpoena at all.


The actual indictment itself articulates the ways in which he could have complied.