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Judge Revising Jury Instructions Ahead of Closing Arguments; Judge Instructing Jury in Rittenhouse Trial; Soon: Closing Arguments in Kyle Rittenhouse Homicide Trial; Prosecution Delivers Closing Arguments in Rittenhouse Trial. Aired 12-12.30p ET

Aired November 15, 2021 - 12:00   ET

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

[12:00:00]

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THOMAS BINGER, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: -- confusion. What - court reported just - for example could be construed as saying anytime with regard to any count you find justified self- defense? He walks on all five counts. And that is absolutely --

BRUCE SCHROEDER, JUDGE: --that is what I intend to tell them at all.

BINGER: I know you intend to tell that, but what's already been said, gives that implication. And again, I just worry that the more we deviate from the standard instructions, the more we get into these issues. I think we should stick with what you drafted, which has been sent to the parties, we've all agreed on them. And I am leery of any additional language that hasn't been cleared by the parties and could cause further confusion.

SCHROEDER: Well, I - in - I can say that, whenever I've dealt with lesser included, I do give a little talk about how they, you know, how they should address them. And this is - this is a more complicated case than most than any, frankly, that I can remember.

I don't think I've said anything incorrect so far. I don't want to step into something that I haven't already done. I am inclined, though, because I've made a statement about if everything's present, you - they're done, because they found their defendant guilty. And I do think I probably should give the alternative, which is, and I'm not going to use terms like perfect self-defense like he did.

I'm going to use the term acted lawfully in self-defense, and they're instructed on that. So I think the correct statement is if as to any of the cases with multiple submissions, if on any individual count, they find in their consideration of the charge defense, that the defendant acted lawfully in self-defense, they're done, any objection?

OK.

UNIDENTIFIED MALE: While we're talking about the jury instructions, it was noticed as you read them on page 10, which is count three, it shouldn't be firstly, reckless endangerment and you - it's written and you read homicide, which is not a homicide count. SCHROEDER: On page 10.

UNIDENTIFIED MALE: Top page, turn on count still at the end of count three. It says you should find the defendant guilty of --

SCHROEDER: Right. You're right. It is in there as homicide. We didn't catch that last night when we talked about I sent you three drafts. But I you know, what, should I just leave that alone? They'll know that I'll change it in the printed copy. OK, OK. Thanks.

UNIDENTIFIED MALE: Are you pausing before lunch now, it's after 11?

SCHROEDER: How long are you going to talk in your first sequence?

UNIDENTIFIED MALE: I'll try and limit myself to two hours.

SCHROEDER: Are you troubled by taking a break in the middle of your presentation? Well, let's just kind of plan on around noon because the lunch has already been ordered. So I'm not going to come in on the lunch. So let's ask the jurors to come back in please.

Take a break and around whenever you're comfortable around noon. Just ask for the break. Yes, well when he's the commander of the - I don't want to interrupt him at a time he doesn't want to be to be.

(END VIDEO CLIP)

JOHN KING, CNN HOST, INSIDE POLITICS: I'm John King in Washington. You're watching a quick break in the proceedings here Judge Bruce Schrader in the trial of Kyle Rittenhouse has been talking just to the lawyers. He stopped himself in the middle of his jury instructions. The jury is now being brought back into the courtroom to conclude the instructions.

Our Legal Analyst Paul Callan is with us, Paul, confusing to say the least the judge stopping himself in midstream after about 40 minutes of jury instructions that you would have to say are confusing.

PAUL CALLAN, CNN LEGAL ANALYST: The most confusing I've ever heard in my life, and I've heard a lot of instructions in murder cases. Judges usually try to simplify on the issues that will end the case. And the big issue in this case, of course is self-defense. If he acted in self-defense --

KING: Paul, I'm sorry we need to go back into the courtroom - the judge has resumed his instructions. Let's go back into the courtroom.

(BEGIN VIDEO CLIP)

SCHROEDER: --acting lawfully in self-defense and you didn't go any further. You're going to return your verdict of guilt based upon that conclusion.

[12:05:00]

SCHROEDER: If in your discussions as to any individual count of those with multiple possible verdicts in your initial discussion, if you decide that the defendant acted lawfully in self-defense, you're done. And you can return to that guilty verdict without considering the lesser offenses. Any question about that?

It hopefully will become clear. I'm going to give you written instructions. Because I know this is arduous going through this but every bit of it is important and what you'll get written instructions for your reference in considering these things.

Count one through five, that's all the council each contain a guilty verdicts of any submitted offense contain a question based upon the allegation of the information that the defendant committed the crimes while using a dangerous weapon.

If you find the defendant guilty of any of the counts, you must answer the following question. Did the defendant commit the crime while using a dangerous weapon? Dangerous weapon means any firearm whether loaded or unloaded. A firearm is a weapon which acts by the force of gunpowder.

Before you may find the answer - the question - before you may answer the question yes, you must be satisfied beyond a reasonable doubt that the defendant committed the crime while using a dangerous weapon. If you're not so satisfied, then the question must be answered no.

In reaching your evidence, examine the evidence - reaching your verdict examine the evidence with the utmost care and caution. Act with judgment reason to prudence. The defendant is not required to prove his innocence. The law presumes every person charged with a commission of a crime to be innocent.

And this presumption requires a finding of not guilty. Unless in your deliberations, you find that it is overcome by evidence which satisfies you beyond a reasonable doubt that the defendant is guilty. The burden of establishing every fact necessary to constitute guilt is upon the state.

Before you may return a verdict to guilty, the evidence must satisfy you beyond a reasonable doubt that the defendant is guilty. If you can reconcile the evidence upon any reasonable hypothesis and system with the innocence of the defendant, then you must do so and find him not guilty.

The term reasonable doubt means that doubt based upon reason and common sense, it is a doubt for a reason people can be given arising from a fair and rational consideration of the evidence or wanted evidence. It means such a doubt as would cause a person of ordinary prudence to pause or hesitate and called upon to egg in the most important affairs of life.

A reasonable doubt is not a doubt which is based upon mere guesswork, or speculation. A doubt which arises merely from sympathy or from fear to return a verdict of guilt is not reasonable doubt. A reasonable doubt is not adopt, such as may be used to escape the responsibility of a decision, examine the evidence and search for the truth, giving the defendant the benefit of every reasonable doubt. Evidence is defined first as the sworn testimony of witnesses both on direct and cross examination regardless of the party who called the witness. Second, any exhibits which have been received whether or not they accompany you to the jury room. Third, any facts which the lawyers have agreed or stipulated, or which I have directed you to find anything that you may have seen or heard outside the courtroom is not evidence, you are to decide the case.

So on the evidence offered and received at this trial, you should disregard entirely any question to which I did not permit an answer. Do not guess what the witness's answer might have been? And if the question itself suggested that certain information might be true, ignore the suggestion and do not consider it as evidence.

Attorneys reach sight of the right and duty to object to what they feel are improper questions asked of witnesses and receipt of other evidence which they believe is not properly admissible. You should not draw any inference or conclusions from the fact that an objection is me.

By allowing testimony or other evidence to be received over objection, I did not indicate - me to indicate any opinion as to that evidence. You jurors are the sole judges of the believability of the witnesses and of the weight of the evidence.

At the beginning of the trial, I described the charges against the defendant count six and seven, which respectively charged possession of a firearm by a minor and curfew violation, have been disposed of and are no longer part of this case.

[12:10:00]

SCHROEDER: The other accounts remain do not guess about or concern yourselves with the reasons for these dispositions, it must not affect your consideration of the charges that remain. Do not consider evidence that related only to the costs which have been disposed of.

During the trial, I have ordered certain testimony stricken and you must disregard all such stricken testimony. Exhibits become evidence only when received by the court. An exhibit which was marked for identification but not received is not evidence.

Whether or not it should be not an exhibit received is evidence whether or not accompanies you into the jury room. Remarks of the lawyers are not evidence and if the remarks suggest certain facts not in evidence, disregard the suggestion.

You should consider carefully the closing arguments of the attorneys. If their arguments, opinions and conclusions are not evidence, draw your own conclusions from the evidence and decide upon your verdict upon the evidence under the instructions given you by the court.

I have taken judicial notice of certain facts and you are directed to accept them as true. The state has introduced evidence of statements which it claims were made by the defendant, it is for you to determine how much weight if any to give to any statement. And evaluating each statement, you must consider three things whether the statement was actually made by the defendant. Only so much of a statement as was actually made by a person may be considered evidence?

Whether the state was accurately stated here at the trial, whether the statement or any part of it ought to be believed, you should consider the facts and circumstances around surrounding the making of each statement, along with all other evidence and determining how much weight if any, a statement deserves?

The weight of the evidence does not depend on the number of witnesses on each side, you may find the testimony of one witness and entitled a greater weight than that of another witness, and you may give it such weight in considering your verdicts.

In weighing the evidence you may take into account matters of your common knowledge and your observations and experiences in the affairs of life. Ordinarily, witnesses may testify only about facts. However, witnesses with specialized knowledge and particular fields may give opinions in those fields.

In determining the weight that you give to these opinions, you should consider the qualifications and credibility of the expert the facts upon which the opinions are based, and the reasons given for the opinion, opinion evidence were received to help you reach a conclusion however, you are not bound by any witnesses' opinion.

It is your duty as jurist is scrutinizing the way the testimony of the witnesses and to determine the effect of the evidence as a whole. You are the sole judges of the credibility that is the believability of the witnesses and of the weight to be given to their testimony.

In determining the credibility of each witness and the weight you give to the testimony of each, you should consider these factors whether the witness is interested or just interested in the outcome of this trial, conduct appearance and demeanor on the witness stand the clarity or lack of clarity of the witness's recollections, the opportunity which the witness had to know enough?

They're the matters and things about which testimony was given the reasonableness of the witness's testimony, the witness's apparent intelligence, bias or prejudice, if any has been shown, possible motives to falsify, and all other facts and circumstances during the trial which 10 either to support or to discredit the testimony, and then give the testimony of each witness the weight to believe is entitled to receive.

The defendant has testified in this case, and you should not discredit his testimony just because he is charged with the crime. Use the same factors to determine the credibility and weight of the defendants' testimony that you use to evaluate the testimony of other witnesses.

There is no magical way for you to evaluate the testimony instead, you should use your common sense and your experience and your everyday lives, you determine for yourself the reliability of statements made to you by others, and you should do the same thing here. Evidence has been received the two of the witnesses in this trial have previously been convicted of crimes. This evidence was received solely because it bears upon their character for truthfulness, it must not be used for any other purpose.

We're going to hear the closing. You know what does anybody want to break even just a short one or not? You want to go right into your discount. Anybody need a break? OK. We're going to go to the closing arguments of the attorneys now and they - we follow the classical debate format in the court that is that the defense - of the proponent of a proposition is entitled to give the first and the last argument.

[12:15:00]

SCHROEDER: So Mr. Binger will address to you first on behalf of the state then Mr. Richards for the defense and then after his remarks one of the attorneys for the state will be addressing you on behalf of the state in rebuttal limited to rebuttal of things stayed stated by Mr. Richards during his presentation.

The - we're going to break obviously, I'm not going to make you sit there for five hours unless you want it. And so we'll break - Mister, I ask Mr. Binger while you were out in the room, if he was comfortable with breaking his argument in parts, and he indicated he was, so at a time he thinks is appropriate around noon, we'll take a - we'll take our lunch break and, and then pick up this afternoon.

And then after all of the arguments have been presented, I'll give you about three or four more minutes of instruction. And then we'll do our striking with a tumbler over there. And it'll be ours. So let me ask you which one do you want - the sisters' pointer, OK.

We'll take a vote right now. Supposing the case arguments are finished 4:30, 5 o'clock, and we'll be working well to get there. How many would like to begin their deliberations tonight and stay until a later hour or how many would like to come back and start fresh in the morning?

And the cutoff point would be say we get finished by four and I give you the case. And the latest I would let you go if you didn't want to stay late would probably be about five o'clock. And so I don't know how much you get done.

But you'd have the option to get started this this today. Or we just start fresh in the morning if it's if we finish up any-time after 3:30 or four o'clock. So how many would want to continue on today? 1, 2, 3, 4, 5, 6, 7 8 - 8 out what do we get a 10 how many would rather come back fresh tomorrow knowing that somebody worked on it?

But OK, let's I and of course, as always, I'll make the final decision. But I certainly will try to follow your wishes. So OK with that, Mr. Mayor, it's yours.

BINGER: Thank you, Judge. Good morning, ladies and gentlemen. I want to assure you that everything that the judge just read to you, you'll get a copy out. So you'll have a chance to look it over yourself. You don't have to memorize everything he just told you.

I think it's no surprise that this is a case that there's a lot of noise and a lot of static surrounding it. So what I'd like to do at the beginning is crystallize it in a nutshell for you, and keep it as simple as possible. This is a case in which a 17-year-old teenager killed two unarmed men and severely wounded a third person with an AR- 15 that did not belong to him.

UNIDENTIFIED MALE: --gun charge.

BINGER: Although he claimed --

SCHROEDER: --charge but - and there has been some discussion about the lawfulness of the curve unite in this case, but elsewhere. So it's - there but - there had been a curfew announced that does not mean that it was technically lawfully legal curfew, but there had been an announced curfew, so I'll leave it at that.

BINGER: And it was a curfew that all the rest of us here in Kenosha were aware of, and I think most people, most reasonable people obeyed. Although the defendant claimed to be protecting a business that he wasn't familiar with.

The actual killings in this case had nothing to do with that. And he also spent the entire evening lying about the fact that he was an EMT. None of the things that I just told you are in doubt in this case. So when we think about the defendant, I'd like you to consider as you think about this case, what were his true motivations were?

[12:20:00]

BINGER: Was this a situation where he sincerely cared about care so - car source even though he'd never heard of it never bought anything there never worked there and not even its owners were out there that night protecting it?

Was he genuinely interested in helping people? He ran around with an AR-15 all night and lied about being an EMT? Does that suggest to you that he genuinely is there to help? He's not there for the same purpose as the protesters. So why was he there that night?

When you think about these things, I think there are some things that we can all agree on. In America, it's hard these days, people are polarized, and there are a lot of political issues back and forth. And the judge has made it clear this case is not about politics. There is common ground here.

We've all agreed, and I asked you these two weeks ago today, raise your hand if you agree, life is more important than property, and all of you raised your hand. We also agree that no one person's life is more valuable than another. You don't get to kill someone simply because they're a drug dealer.

You don't weigh a pastor's life over a teacher's life. You don't weigh a police officers' life over an engineer's life. All life is sacred. I think we can also agree that we shouldn't have 17 year olds running around our streets with AR-15 because this is exactly what happens.

And finally, I want you to keep in mind that we've all read stories and heard about heroes that step in to stop an active shooter or to give their life to save others. In fact, many people in Wisconsin went out and got carrying concealed weapons permits just so that they could be there in case there was an active shooter and wanting to stop them.

So when you consider this case, look for the truth. So many people look at this case, and they see what they want to see. They have a preconceived notion, and they tailor the facts to fit whatever they believe. You all agreed to keep an open mind.

You all told us, you didn't have any of those preconceived notions. Now you've heard the evidence, and it's time to search for the truth. So consider, for example, whether or not it's heroic, or honorable, to provoke and shoot unarmed people. Consider whether it makes someone a hero, when they lie about being an EMT.

I think all of us are familiar with someone who does the sorts of things that the defendant has done. They enjoy the thrill of going around and telling people what to do without the courage or the honor to back it up without the legal authority to do so.

And when you think about the defendant's behavior, in this case, contrast it with Anthony Huber, a man who was there because he knew Jacob Blake, who carried a skateboard everywhere, and who rushed towards danger, to save other people's lives.

So when I talk to you here, in my closing argument, I'm going to focus first, on the murders that the defendant committed. Second, I'm going to address some background issues, give you some context, and talk about some of the things that I don't think are relevant to this case.

And finally, I'm going to tie it all into the jury instructions that the judge just gave you. As prosecutors, in this case, my colleague, Jim Krause, and I have tried to present you with all of the relevant evidence that we think you should consider in this case.

And I told one of you in jury selection, that at the end of this, you would be the expert, you would have all the information, you would be the one who would know all about this case, and make that decision. And that's what we've tried to do.

So let's go to August 25th, 2020. The defendant came from outside our community carrying a gun. That wasn't his because he expected and anticipated violence that night. And he pretended to guard what turned out to be an empty building, owned by people we've never even met, while fraudulently claiming all night long to be an EMT.

There were a lot of people out that night. Some people stayed home protecting their homes and their families, others went to their businesses boarded them up and protected them. And a lot of those people had weapons. A lot of them had guns.

There were other people who came along to protect car source or ultimate gas or other businesses, and many of them were armed with AR- 15s just like the defendant. In fact, you're going to see a video and you've already seen it of a clash between people with AR-15s at ultimate gas and other folks that are I guess protesters, and there's people getting in people's faces, there's yelling they're shouting, there's even shoving.

[12:25:00]

BINGER: And yet in this entire sequence of events from the shooting of Jacob Blake on Sunday August 23rd, 2020 all the way after that everything this community went through the only person who shot and killed anyone was the defendant.

Yes, there was property damage. No one's here to defend that. No one's here to tell you it's OK to commit arson or looting. No one's here to tell you it's OK to be rioters. I'm not defending any of that. You know, because you've been told in the testimony, I'm prosecuting Joseph - for arson. That's not OK.

But when you don't get to do is kill someone on the street for committing arson. So let's keep that in mind when we're talking about the people involved in this case. So let's begin with the provocation and the murder of Joseph Rosenbaum because it's all captured on video.

As the defendant and Mr. Rosenbaum arrive at the 63rd street car source, Mr. Rosenbaum is ahead of the defendant. And as you see in the FBI video, when Mr. Rosenbaum starts to run, the defendant starts to run as well, at the same time, as if he's pursuing him.

Mr. Rosenbaum could not possibly have known the defendant is behind him. There's no indication in this record that he knew the defendant was there, it's not an ambush. It's not a situation where he goes there and lays and waits for the defendant.

The defendant rise at that location and you hear him yell friendly, friendly, friendly, because he's aware of the fact that the people that he's about to confront, are hostile to him. And I'm going to show you in a moment, the video in which the first thing he does when he arrives at that location is drops the fire extinguisher that he's holding in his left hand, so he can raise the gun with his right and left hands and point it.

This is when you hear someone, I think the testimony is Rosenbaum it's not clear to me but either way, yells gun, gun, gun! And then Mr. Rosenbaum charges around to try and stop the defendant from pointing his gun or shooting anyone.

So let's take a look at some of that video. This is Exhibit 73, the full drone video. And as we've pointed out to you before and Jim will point out to you here in a second on the screen. When the defendant originally arrives at that scene, the first things you see him do are drop the fire extinguisher and point his weapon at people and then the chase occurs right after that.

And you're going to see that entire sequence of events here on the full drone video. The defendant turns as he's being pursued and points the gun at Mr. Rosenbaum. And then as he enters the area between the parked cars, he slows and turns and before Mr. Rosenbaum can even come close, he fires at him shooting and knock him to the ground.

Now I'm going to show you the slowed down and zoomed in video of the defendant when he first gets there. And - is going to help me by directing your attention on the larger screen here to exactly where you will see the defendants.

I'm going to replay it a few times. So you can see quite clearly that the defendant sets the fire extinguisher on the ground with his left hand and then brings his left hand over to the gun and raises it and points. Guys, check the gun. Make sure it's empty.

Under Wisconsin law, you're not allowed to run around and point your gun at people. This is the provocation.

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