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Judge in Rittenhouse Case Sets Rules; Virginia Governor's Race; Reality Winner Turned into Broadway Thriller. Aired 8:30-9a ET

Aired October 27, 2021 - 08:30   ET




JOHN BERMAN, CNN ANCHOR: Kyle Rittenhouse is set to go on trial next week for murder. The teenager killed two people in Kenosha, Wisconsin, during protests last year in the aftermath of the Jacob Blake police shooting. The judge at a pretrial hearing set some ground rules that generated huge controversy. He ruled that the people that Rittenhouse killed, the dead people, cannot be called "victims" but they can be called "rioters," "looters" and "arsonists."


JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: The word "victim" is a loaded, loaded word. And I think "alleged victim" is a cousin to it.

Let the evidence show what the evidence shows. And if the evidence shows that any or more than one of these people were engaged in arson, rioting or looting, then I'm not going to tell the defense they can't call them that.


BERMAN: CNN chief legal analyst Jeffrey Toobin joins us now.

No to "victim," yes to "rioters," Jeffrey. What do you make of this?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: It's a very weird -- it's a very weird ruling.

It is worth pointing out that there are some judges who don't like the word "victim" in their courtroom because they do feel it's prejudicial. It sort of assumes the conclusion of the trial. Most judges don't do that, but some do. This judge apparently does it in all of his cases. That's one thing. And if that's a consistent policy, that's -- that's understandable.

What's very weird is allowing this extremely pejorative, assuming the conclusion words of "rioters" and "looters," which all in all should help Rittenhouse's defense a great deal.

BERMAN: Yes, if calling the dead people "victims" is prejudicial, you would think that likewise calling them ""rioters or "arsonists" or "looters" would be prejudicial also.

TOOBIN: Well, highly. And that's the argument the prosecutor made in court yesterday, unsuccessfully. And I think, you know, it's a very troubling situation because, you know, again, using that word suggests that Rittenhouse was justified in what he was doing because these were bad people that he shot. They were committing crimes. They were out there looting. They were out there being arsonists when that is very much in dispute in the trial, just, you know, what these people were doing.

And, remember, it's not the -- it's not the victims who are on trial here, it's the -- it's Rittenhouse. So you can see why a lot of people are upset about this preliminary ruling. We'll see if the judge revisit it as the trial progresses.

BERMAN: And it's -- well, once it starts, it starts, right? Once the attorneys use the words, they use the words. They can't put the gene back in the bottle there. And it does set a tone for the entire trial. And I know it's law 101, but if the prosecution feels like the whole trial turned on this pretrial decision and they lose, and Kyle Rittenhouse is acquitted, it's not like they can appeal down the line, correct?

TOOBIN: That's right. That's one of the things that, you know, as a former prosecutor I certainly remember is that, you know, prosecutors usually do well in court with judge -- rulings from judges.


But the big difference between prosecutors and defense lawyers is that, you know, defense lawyers can always appeal down the road. If you get an acquittal, and you feel you got an unfair ruling by the judge, well, it's too bad. You don't get another shot. There's no such thing as a prosecution appeal after the trial. And that's what prosecutors are worried about.

And also, you know, you can't separate the -- the, you know, the racial politics of this situation. I mean the whole issue here is whether Kyle Rittenhouse was a vigilante and whether he was, you know, acting out of racial animus and to essentially convict his victims in advance of the trial of looting, of arson, of crimes for which they are, you know, as dead people they can't be charged, it's really troubling and a really unnecessary and unfortunate beginning to this, you know, really important case.

BERMAN: What's done is done.

Jeffrey Toobin, appreciate you being with us this morning.

TOOBIN: All righty, man.

BRIANNA KEILAR, CNN ANCHOR: So, what is going on with the queen's health? She just canceled on next week's key climate conference, just days after a hospital stay.

BERMAN: And, this hit right there, it cost the Atlanta Braves its star pitcher in game one of the World Series.



BERMAN: Time now for "Five Things to Know for Your New Day."

An FDA advisory panel voting to recommend Pfizer's low dose COVID vaccine for children ages five to 11. If it clears the final hurdles, the Pfizer vaccine would be available for 28 million children in the U.S. with shots rolling out as early as next week.

KEILAR: And the Santa Fe district attorney says the gun that killed "Rust" cinematographer Halyna Hutchins was a, quote, legit gun. A real gun. Not a prop gun. And the D.A.'s office has not ruled out criminal charges in the fatal shooting involving Alec Baldwin on this movie set.

BERMAN: Democrats released the details of what they're calling a billionaire's income tax to use as funding for President Biden's social spending plan. The proposal would tax billionaires on the gain in value of certain assets every year instead of only at the time of sale. This would affect about 700 to 800 taxpayers in the entire country.

KEILAR: Now, Queen Elizabeth pulling out of next week's key global climate summit in Glasgow, Scotland, on advice from her doctors to rest. The 95-year-old monarch did an overnight stay in the hospital last week for preliminary investigations. And she plans to send along a video address in her absence.

BERMAN: The Atlanta Braves won game one of the World Series 6-2, but they lost their starting pitcher Charlie Morton. He was hit in the leg by a comebacker in the second inning and was taken out in the third inning with a fractured fibula. He actually pitched on a broken leg for a little bit. Morton is done for the season. Game two is tonight in Houston.

KEILAR: Those are "Five Things to Know for Your New Day." And you can have more on all these stories all day on CNN and And don't forget to download the "Five Things" podcast every morning. Just go to and you can also find it wherever you get your podcasts.

BERMAN: Swoosh. I like the swoosh.

KEILAR: Right. Swoosh.

Breaking news, moments ago the chairman of the Joint Chiefs, General Mark Milley, just likened China's suspected missile test to a Sputnik moment.

BERMAN: And why Toni Morrison's Pulitzer Prize winning novel "Beloved" has become the latest flashpoint in the Virginia governor's race. "Reality Check" is next.



BERMAN: All right, breaking news, America's top military officer, General Mark Milley, is sounding the alarm about China's recent nuclear capable hypersonic weapons test.


GEN. MARK MILEY, CHAIRMAN, JOINT CHIEFS OF STAFF: I've always felt it was a very significant event of a test of a hypersonic weapons system, and it is very concerning. I think I saw in some of the newspapers that they used the term "Sputnik moment." I don't know if it's quite a Sputnik moment, but I think it's very close to that. So it's a very significant, technological event that occurred or test that occurred by the Chinese, and it has all of our attention.


BERMAN: Very close to a Sputnik moment. General Milley comparing the China test to the Soviet Union's launch of a first satellite, which gave them an edge in the space race early on.

The brand-new remarks underscore the Biden administration's escalating concern about Beijing's military capabilities. Again, they've done a successful hypersonic test. The U.S. really hasn't.

KEILAR: A Nobel Prize winning novel has just become the latest flashpoint in the Virginia governor's race. John Avlon has our "Reality Check."

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: One week from today we'll wake up to find out who won the Virginia governor's race. And it's a critical bellwether with polls showing the contest too close to call between Democrat Terry McAuliffe and Republican Glenn Youngkin.

Now, typically, Virginia acts as a counterweight to a new president, electing a governor from the opposition party in ten of the last 11 elections. So while McAuliffe tries to tie his opponent to Trump and then pivot to economic plans, Youngkin is really a test case for the GOP's midterm playbook. He's a wealthy businessman walking the line, refusing to denounce Trump's lies, while also declining to campaign with him, trying to make the campaign about culture war wedge issues instead.

But culture war crusades can lead to some awkward places. You might remember back in March, Youngkin was trying to jump on the Fox News bandwagon to resist some of the alleged banning of Dr. Seuss' books. There was, of course, no such thing happening in his state.

But free speech arguments only go so far when political opportunism is at play. And so one week from election day, the Youngkin campaign released an ad where a mother called for banning a book that she found offensive.

(BEGIN VIDEO CLIP) UNIDENTIFIED FEMALE: When my son showed me his reading assignment, my heart sunk. It was some of the most explicit material you can imagine.


AVLON: So, a few things about that. The book in question was "Beloved" by Toni Morrison, winner of the Nobel Prize in literature. It's a novel about escape from slavery. And, yes, it contains some rough scenes, totally consistent with the horrific subject matter.

But the book wasn't named in the ad. Neither was the fact that it was assigned to her son almost a decade ago in a senior AP English class, which is, of course, optional. Also unmentioned is the fact that the allegedly traumatized teen is now reportedly associate general counsel for the National Republican Congressional Committee, or that the book is reportedly required reading in a class, the private school, where Youngkin sends his kids.


Now, pick your line of hypocrisy. Whether it's snow (ph) fake (ph) accusations, reminders that backs (ph) don't care about your feelings, or First Amendment claims that always seem to fade when they're about books the other side doesn't like.

But it's also a dog whistle for another core theme, critical race theory, which Youngkin routinely says he wants to ban from Virginia schools despite not much evidence that it's actually taught in Virginia schools.

But that doesn't really matter because it's a constant refrain on right wing talk TV. Get this, according to LexisNexis, critical race theory, or CRT, has been mentioned 2,175 times on Fox News this year alone. And those transcripts don't even cover all their shows. Just by comparison, the January 6th commission has been mentioned just 78 times. So you can see where their priorities are, right? Namely, scaring white people while ignoring accountability for an attempted coup. But, hey, tomato, tomato, am I right?

Seriously though, if a book detailing the horrors of slavery is so offensive, wait until folks learn about the real thing, which they most certainly would not have done if they read some of the official Virginia state approved textbooks back when Glenn Youngkin was a kid. Because, according to an essay in "Washington Monthly Magazine," some of those books said, quote, the colony was determined to preserve the racial purity of the whites, which was the foundation on which Virginia's handling of the racial issue rests.

Not only that, the textbook asserted that, quote, the debt that the negro race owes to Virginia and the south has never been less recognized than it is today. Now, that's racial indoctrination.

Muscle memory of the desegregation efforts that finally put those textbooks out of circulation are one reason why local school board fights can feel so loaded, particularly in the south. But reckoning with that history isn't going to be resolved by calling everyone on the other side of the aisle a racist. Instead, it's evidence of why we need to confront our shared history, the successes and the failures, so that we can learn from the past, live up to our ideals and continue to try to form a more perfect union.

That's your "Reality Check."

KEILAR: John Avlon, thank you so much for that.

The FBI raid that led to the conviction of former NSA contractor "reality winner" is now a Broadway thriller. The director and the star of the show joining us live.



KEILAR: Broadway is back and it's bringing us the drama of a real life national security scandal. Former intelligence contractor "reality winner" was sentenced to five years in prison for leaking evidence of Russian interference in U.S. elections. And now you can see the transcript of her FBI interrogation performed live verbatim in a new Broadway show called "Is This a Room."

Joining us now is Tina Satter. She conceived the play. She serves as its director. And Emily Davis is the star of the show playing "reality winner" in "Is This a Room."

Thank you so much to both of you for joining us on set this morning. And, you know, first to you, Tina, because you conceived of this. You were reading about "reality winner" and you were reading the transcript and you thought, this is a play, why?

TINA SATTER, CONCEIVED AND DIRECTS "IS THIS A ROOM": It was just the language on the page and the fact that I knew this woman as I was reading it was in prison already. And I -- she has this encounter with the agents. I'm, like, how does this actually go down? Because at first they're just saying hello and talking to her about her pets. And I was like, when does this turn to the fact where she gets caught. And it felt like a thriller to me on the page. And this incredible young woman's personality was coming through. So it really felt like a rich document to make into a play.

KEILAR: It's quite the transcript, right?


KEILAR: IT's got every verbal tick, every stutter. And, as you mentioned, the interview goes in these kind of weird, tangential directions, which felt sort of like an experimental playwright that you would -- seen or were familiar with?

SATTER: I mean it felt like work I had made and been influenced by and seen where it's like doing top level security conversation that then diverges into a question of where is a cat. Like, it just was mixing the banal with like geopolitics and then in the moment surrealness in such a fascinating way. And it was real. Like, it had actually happened.

KEILAR: And, Emily, what has it been like playing "reality winner"?

EMILY DAVIS, PLAYS REALITY WINNER IN "IS THIS A ROOM": I think I approached this role as I would have approached any other acting part, you know, going into it with as much integrity as I could. I think what's particular about this is, we've worked on this show for so many years now that actually I've learned more about this person, so that definitely has influenced how I've thought about, you know, arriving each night to the show. But she's endlessly compelling. And so, like, part of my work has always been to just keep considering the things that keep drawing me back in because I continue to learn more about her literally daily.

KEILAR: She got a hefty sentence for what she did, for releasing this information.

DAVIS: She did.

KEILAR: What did you learn about her specifically that you did bring to the performance?

DAVIS: Well, I mean, reading the transcript or when we turned it into a play, like I said, I sort of thought of it as I would any other character. You only have the words on the page and you're making educated guesses about how that person might move through the world, how they might stand, how they might register discomfort visually, you know, what their voice might sound like, and then, as I corresponded with "Reality" early in the process, and I could really feel her sense of humor through the early letters that we had and that sort of, I think, was probably the most impactful, like, real world knowledge that I got from her.

KEILAR: Because during the curtain call in the opening night, you actually received a Zoom call. I mean she's aware of this. She's very aware, obviously, that you have this show going on. You received a Zoom call from "Winner" and her family. What was that like?

SATTER: It was just incredibly moving to share this night because it's such a platform for this like horrible day in their life, but also the resilience of that family and "Reality," who want, like, had wanted "Reality's" freedom, but also feel like a lot of the issues that were at question of this day in her life should get more attention and that people should talk about these and have discourse on them, and maybe not agree, but all should get to think and talk about how this and why this went down.


KEILAR: It sounds like you're not trying to impose some opinion on the audience, but what are -- what are you hearing?