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Kyle Rittenhouse Breaks Down on Witness Stand; Judge Rejects New Trump Bid to Keep January 6th Docs Secret; 'Rust' Crew Member Sues Alec Baldwin over Gross Negligence. Aired 6-6:30a ET

Aired November 11, 2021 - 06:00   ET

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

JOHN BERMAN, CNN ANCHOR: Good morning to our viewers here in the United States and all around the world. It is Thursday, November 11, Veterans Day. Our thanks to those who serve and have served in the United States and all around the world.

[05:59:47]

I'm John Berman with Brianna Keilar, and this morning, gripping moments and new questions about the dramatic testimony of Kyle Rittenhouse, on trial for homicide.

Rittenhouse took the witness stand in his own defense, and this is what the jury saw. Sobbing. The defendant appearing unable to speak at times as he explained how he fatally shot two people and wounded a third during unrest in Kenosha, Wisconsin.

(BEGIN VIDEO CLIP)

KYLE RITTENHOUSE, DEFENDANT: There was three people right there --

UNIDENTIFIED MALE: Take a deep breath, Kyle.

RITTENHOUSE: That's what I --

(END VIDEO CLIP)

BERMAN: His mother also appeared to cry as she looked on.

BRIANNA KEILAR, CNN ANCHOR: Now, Rittenhouse testified that he was acting in self-defense while protecting private property and providing first aid, even though he said he knew one of the men he killed was unarmed.

Prosecutors repeatedly questioned his motives, saying that he was just looking for trouble that night.

But the fireworks didn't stop there. The other must-see moment came from the judge in this case. Throughout the day, he unleashed on the prosecution, accusing them of a grave constitutional violation as they cross-examined the teenager.

And at one point, the judge's cell phone rang out loud, playing the patriotic anthem, "God Bless the USA." The judge's actions during the trial so far now coming under scrutiny

and raising questions about his behavior and demeanor. Let's bring in CNN's Shimon Prokupecz, live for us in Kenosha, Wisconsin.

You've been covering this trial from the start. This was perhaps the most dramatic day yet.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Certainly, yes. And this is a highly anticipated day, Brianna. Kyle Rittenhouse taking the stand, telling jurors why he had to shoot to defend himself.

But also, as you said, the judge here, the judge here making headlines after unleashing this attack on the lead prosecutor, which ultimately led the defense to ask for a mistrial.

(BEGIN VIDEOTAPE)

PROKUPECZ (voice-over): Kyle Rittenhouse testifying in his own defense, telling jurors why he shot three men, killing two.

RITTENHOUSE: I didn't do anything wrong. I defended myself.

PROKUPECZ: The defense's star witness explaining why he decided to travel to Kenosha, Wisconsin, during protests last year.

UNIDENTIFIED MALE: On August 25th of 2020, did you come to downtown, Kenosha, to look for trouble?

RITTENHOUSE: No.

PROKUPECZ: Rittenhouse describing his encounter outside a car dealership with Joseph Rosenbaum, the first person he would shoot and kill that night.

RITTENHOUSE: He screamed, if -- sorry for my language. He screamed, if I catch any of you (EXPLETIVE DELETED) alone, I'm going to (EXPLETIVE DELETED) kill you.

PROKUPECZ: While on the stand, Rittenhouse telling jurors what led up to him fatally shooting Rosenbaum.

RITTENHOUSE: Once I take that step back, I look over my shoulder, and Mr. Rosenbaum -- Mr. Rosenbaum was now running from my right side, um, and I was cornered from -- in front of me with Mr. Ziminski. And there were -- there were three people right there.

UNIDENTIFIED MALE: Take a deep breath, Kyle.

RITTENHOUSE: That's what I -- and so I run.

PROKUPECZ: The judge calling for a break. Rittenhouse's mother also sobbing from her seat.

He returned to the courtroom without tears to continue his testimony.

UNIDENTIFIED MALE: As you see him lunging at you, what do you do? RITTENHOUSE: I shoot him.

UNIDENTIFIED MALE: And how many times did you shoot him?

RITTENHOUSE: I believe four.

If I would have let Mr. Rosenbaum take my firearm from me, he would have used it and killed me with it and probably killed more people if I would have let him get my gun.

PROKUPECZ: Rittenhouse testifying about when he shot and killed Anthony Huber, who he says first hit him with a skateboard.

RITTENHOUSE: He grabs my gun and I can feel it pulling away from me, and this -- I could feel the strap starting to come off my -- my body.

UNIDENTIFIED MALE And what did you do then?

RITTENHOUSE: I fired one shot.

PROKUPECZ: Rittenhouse also discussed when he shot Gaige Grosskreutz, the only surviving victim.

RITTENHOUSE: I lower my weapon, and I see Mr. Grosskreutz with his hands up. And as I'm lowering my weapon, I looked down. And then Mr. Grosskreutz, he lunges at me, with his pistol pointed directly at my head. And his pistol was pointed at me, and that's when I shoot him.

[06:05:03]

UNIDENTIFIED MALE: How many times did you shoot him?

RITTENHOUSE: Once.

PROKUPECZ: In cross-examination, the judge asking the jury to leave the room twice. First when the prosecution asked Rittenhouse about his post-arrest silence, a right solidified in the Fifth Amendment.

BRUCE SCHROEDER, JUDGE: The problem is this is a grave constitutional violation for you to talk about the defendant's silence. That is -- and you're right -- you're right on the -- you're right on the borderline, and you may -- you may be over. But it better stop.

PROKUPECZ: Lashing out at the prosecution for attempting to ask Rittenhouse questions related to evidence he already banned from the trial.

SCHROEDER: Don't get brazen with me. You knew very well -- you know very well that an attorney can't go into these types of areas when the judge has already ruled, without asking outside the presence of the jury, to do so. So don't give me that.

PROKUPECZ: The defense outraged, making this appeal.

UNIDENTIFIED MALE: At this point, the defense is going to be making a motion for a mistrial. However, that motion is going to be requested with prejudice.

PROKUPECZ: That means that, if granted, Rittenhouse cannot have a retrial. Judge Bruce Schroeder says he's taking the request into consideration.

Rittenhouse faces five felony charges and a misdemeanor, including first-degree intentional homicide, first-degree reckless homicide, and attempted first-degree intentional homicide.

Prosecutors asking Rittenhouse why he brought an AR-15-style rifle with him to Kenosha during the time of unrest.

THOMAS BINGER, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: Why do you need the gun when you go out there?

RITTENHOUSE: I need the gun, because if I had to protect myself because somebody attacked me.

BINGER: Why would you think anybody would do that?

RITTENHOUSE: I don't know.

BINGER: But you clearly planned on it. You were prepared for it. You thought it was going to happen.

RITTENHOUSE: No, I did not.

BINGER: That's the whole reason you brought the gun, isn't it?

RITTENHOUSE: I brought the gun to protect myself.

PROKUPECZ: And pressing Rittenhouse on why he claimed he was a medic.

RITTENHOUSE: We're running medical, and we're going in and we're getting people.

BINGER: You lied to him, correct?

RITTENHOUSE: I told him I was an EMT, but I wasn't.

PROKUPECZ: The prosecution also focusing on what led Rittenhouse to shoot Rosenbaum and his two other victims.

BINGER: You just assumed that he was going to use it, that he was going to try and take it from you, first of all. And then you assumed he was going to try and use it on you?

RITTENHOUSE: I would have let Mr. Rosenbaum get my gun, he would have killed me.

BINGER: But you had already pointed your gun at him.

RITTENHOUSE: Yes, because he was chasing me.

BINGER: Did you want him to think that you were going to shoot him?

RITTENHOUSE: No, I never wanted to shoot Mr. Rosenbaum.

BINGER: Why did you point it at him if you didn't have any intention of shooting?

RITTENHOUSE: He was chasing me. I was alone. He threatened to kill me earlier in that night. I didn't want to have to shoot him.

BINGER: But you understand how dangerous it is to point a gun at someone, don't you?

RITTENHOUSE: I pointed it at him, because he kept running at me and I didn't want him to chase me.

BINGER: But you --

(END VIDEOTAPE)

PROKUPECZ: And, Brianna, the defense still has three witnesses to call, one of them a use of force expert. He's expected to testify this morning. There are going to be two other witnesses.

The other thing to look for today is whether or not the defense files this -- this request for mistrial, which they say they were going to do, and that's with prejudice. So that means that this case would be outright dismissed.

But the other thing, I think, to look for today is whether or not the judge comes in this morning and says something about some of the things he said to the prosecutor because, from sitting in this courtroom and watching this judge, he's been very conscious about the media and how the media has been covering this trial. He certainly has commented about it. So I'm going to be curious to see if he responds to some of the criticism he's now receiving.

KEILAR: Yes, very curious. Shimon, thank you for that report.

BERMAN: All right. Joining me now, CNN legal analyst and criminal defense attorney Joey Jackson; and professor of law at Brooklyn Law School, Alexis Hoag.

Counsel, let me start with you. How do you assess the decision to put Kyle Rittenhouse on the stand and the results?

JOEY JACKSON, CNN LEGAL ANALYST: All right. In terms of the decision, we always know that when you put a defendant on the stand, there are complications, right? So you have to make a calculated decision as to whether it's appropriate to do that. It really is a risk.

Having said that, I thought it was very effective. I would say, from a defense perspective, it was excellent. Why do I say that? Three factors.

No. 1, you want to demonstrate that your client is a human being. We saw that with the sobbing. Now, people will assess that and say, they were crocodile tears; he wasn't doing this. His comportment, whatever. I thought that, from a human perspective, you want to establish that this is an individual, he has feelings, he has emotions and he didn't -- he didn't want to do it. He had to do it.

[06:10:05]

No. 2, John, you look at what he said. You have to, when you are in a self-defense case, explain to the jury and justify what your actions were. He did that in every regard. How?

He talked about the fact that a pistol was pointed at his head. What else am I to do?

He talked about getting ripped like a baseball bat with the skateboard. And so he needed to do what he had to do from that perspective.

And then he talked about, with respect to the other person, the rifle, the grabbing for the rifle. So I think he did that.

Final point. The final point is, is that he turned himself in thereafter. We, as lawyers, always talk about this notion of consciousness of guilt. What does that mean? It means, I did something wrong, so I ran away. I'm hiding, I'm concealing myself.

He went, he turned himself in. That goes to the fact that he felt, at that time, he did nothing wrong.

I think on balance, it was very effective. Risky move. But I think in this case, it worked. That's my assessment.

BERMAN: I will say, and I don't mean this by means of praise or pejoratively, he was extraordinarily well-prepared for this. It seemed as if he had gone over each and every aspect of this case multiple times and was surprised by nothing. But, Professor, if you're in the jury, how do you think you perceived that emotion?

ALEXIS HOAG, ASSISTANT PROFESSOR OF LAW, BROOKLYN LAW SCHOOL: Yes, as Joey said, you have got to put your witness on. You've got to put your defendant on if you're alleging self-defense. And so the jury needs to see how he operates.

And I think his display of emotion, we may have a variety of reactions to it. But the jury has to believe that he reasonably felt in fear of his life, and that's why he used lethal force.

And in terms of whether or not someone is reasonably in fear of their life, that's a subjective analysis. And so we saw him display high degree of emotion. He got extremely anxious. He couldn't speak. It allowed the jury to see, maybe, this person, as a 17-year-old, was in fear of his life, even if objectively, another actor in a similar situation wouldn't have been.

So it's actually quite critical, that display of emotion. Whether they were crocodile tears or not, it allows the jury to then assess subjectively what his fear of the risk, potentially, of his life.

BERMAN: Also, the jury only sees him once. Right? We can rewind and watch it again and try to assess, oh, were there tears or not tears? They see it once.

HOAG: Exactly.

BERMAN: Let's talk about the judge. Actually, let's play this, because I've never seen anything like this before, where a judge yelled quite like this. Oh, we don't have it. But you saw the judge going bonkers there. On the law, professor, the judge's concerns.

HOAG: So I teach evidence this term, and I will talk about this case in a couple of hours when my class meets. And what we talk about throughout that course is that the judge has a high degree of discretion.

The judge is sort of the almighty in that courtroom. No one is going to question his behavior. No counsellor, no advocate is going to question what he's doing.

And I think we have seen this before. And we've seen it on Shonda Rhimes shows. We've seen it on "How to Get Away with Murder." This is not what we're used to seeing from an officer of the court.

And I don't know how effective with -- in the whole scheme of things, what the impact of the judge's behavior would be. The only appeal here would come from Rittenhouse, if he is convicted.

BERMAN: Yes. The prosecution can't appeal. The legal issues he had, Joey, performative issues aside, were the prosecution was getting into the propensity to commit a crime, which I know from professors like you is a problem.

HOAG: It is.

BERMAN: And also, the constitutional issue of the right to remain silent. So how close to this third rail was the prosecution?

JACKSON: Extremely. And I think that they exceeded that.

And let me just come back from a practical perspective. As a practitioner in this state, as a person who is in courtrooms and who deals with judges, this is what happens, right? This is televised, so we get to see it.

Judges do this. And whether it's to the defense attorney, taking you to task for doing something with respect to disregarding a ruling that the judge made, we talked about this before.

The judge's issue, you had a motion on this issue. We agreed that this would not be stated, and if it was, you were to talk to me. Judges, and he had a right in my view, to say what he said.

And in terms of -- look, you have a right against self-incrimination. You're really going to cross-examine someone as a prosecutor, on the defendant not saying a word? Well, guess what? I'm allowed not to speak. If I don't want to speak, you cannot use that against me. And that's a problem. And to the issue of propensity evidence, you know, you can't talk

about the issue of because you did this, you would be inclined to do it again.

And I think, regardless of the criticism, I'm with this judge. I've been ripped apart. I've seen attorneys being ripped apart before me. I'm not immune to it. Attorneys aren't immune to it. When you're in the court, you behave yourself appropriately. You follow the rules. And when you don't, get prepared to be undressed by the judge. And he did that.

BERMAN: We have time for basically a one-word answer. On balance, did Kyle Rittenhouse help or hurt himself yesterday?

HOAG: He helped himself.

JACKSON: Helped, very much.

BERMAN: What are you looking for today?

JACKSON: I'm looking for the defense to continue to lay out the issue of why it was self-defense. And if they can establish the immediacy of the fear, the reasonableness of his conduct, and the proportionality of his actions, I think that they're on their way.

[06:15:13]

BERMAN: Any way for the prosecution to fix what happened yesterday?

HOAG: This use of force expert, that's where they need to focus their attention on. Because if they can establish that it was unreasonable for Rittenhouse to fear his life; if the proportion of his -- of his shooting those three men was disproportionate; and then also, if he provoked the attack. So I'm going to look for those three things with the prosecution's case.

BERMAN: Counselor, Professor, I'd love to sit in on your class later today. That's going to be some --

HOAG: Ten forty-five.

JACKSON: I'll be there.

BERMAN: That's going to be some class today.

Thank you both for being with us.

Breaking overnight, new ruling against Donald Trump and his efforts to keep his January 6th records secret. So what can he do now to stop the release, set to happen tomorrow?

And a "Rust" movie crew member now suing Alec Baldwin.

KEILAR: Plus, prosecutors play 911 calls two of the defendants made in the weeks before Ahmaud Arbery's shooting. What the jury heard on those tapes ahead. (COMMERCIAL BREAK)

[06:20:16]

BERMAN: Breaking overnight, a new ruling against Donald Trump. The same federal judge who determined that Trump must release a series of records relating to the insurrection to Congress, or that the Archives should release, or is permitted to release those records.

That same judge said overnight she would not block or slow down her own ruling.

Joining me now, "EARLY START" anchor and attorney at law, Laura Jarrett, and CNN senior legal analyst Elie Honig.

Elie, I'm going to put it in the Captain Obvious file, that the judge who ruled against Trump said she's not going to slow down or get in the way of her own ruling.

The real question is what happens now? These records, the Archives is going to release them tomorrow.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes.

BERMAN: So Trump's got 24 hours to stop it.

HONIG: This is a legal nail-baiter. Right? It is Thursday morning. They come out tomorrow on Friday.

Trump's lawyers need to get to the court of appeals now, today, by the end of this show.

And by the way, they've been slow off the mark. I mean, this ruling came down Tuesday night. If you're a lawyer, you know this ruling is coming. Have your papers ready. Go in an hour later and say, OK, judge, we'd like you to stay it. She'll say no. They could have been in the court of appeals yesterday.

Here we are now, we're a day before. If they're lucky, the court of appeals will take the case and rule by tomorrow. That's not even a given. So they've also cost themselves any opportunity to go through the court of appeals and then try the Supreme Court.

So they're dragging their feet here, but they don't have time for it.

LAURA JARRETT, CNN ANCHOR, "EARLY START": As much as as a nail biter as it is, I agree with you. They're moving at sort of a slow pace for the gravity of what's at stake here. Right?

Because if the documents come out, the cat's out of the bag. There's no point in going to the court of appeals or the Supreme Court. By tomorrow afternoon, the documents will be in the hands of the committee.

So I know you and I have a little bit of a disagreement about what the courts are going to do here. You think the Supreme Court is going to weigh in in enough time. I don't think the time works in the president's -- the former president's favor here. I think that there's just -- it's a truncated timeline here. So many things would have to happen.

BERMAN: Yes.

JARRETT: There are too many different levels. I may be eating crow tomorrow. We'll see. But I think the time is -- the timeline is not in his favor.

BERMAN: I only applied to law school. I didn't go, unlike you. But I think it's such a big legal issue. I have a hard time seeing either the appeals court or the Supreme Court saying, We want some time to take a look at it. That's all I'm saying.

There's another interesting legal matter that happened overnight, which is that a crew member on the "Rust" set is suing Alec Baldwin and the producers of the film for emotional distress, saying there was emotional distress caused by the killing on the movie set. And hit by bullet fragments also. The chances of success here?

JARRETT: You know, it's hard to say. Obviously, the -- the facts here are so disturbing and so dramatic.

This is a guy who knew the victim, Halyna Hutchins, for years. They had worked on something like nine films together. He was holding her in his arms when she was dying. He himself says he was almost hit by the bullet. He was hit by, I think, some shrapnel or some other material.

So on the face of it, he has a pretty sympathetic claim. Whether or not he can tie Baldwin legally to have a duty of care and responsibility to him, I think remains to be seen.

HONIG: Yes. The key question here, of course, is negligence.

I'm also interesting, from this story, in the allegation that this guy's lawyer is making, that there was some intentionality here. Right? I'm looking at this, perhaps, through my old prosecutorial lens. But, you know, there could be criminal charges here for criminal negligence, if there's some intentionality. That's a game changer.

Now, he said this in the public. But I would approach him, if I was an investigator, and say, What's your basis for this? What's your basis for thinking that there was some intentionality and perhaps framing the armorer, Hannah Gutierrez.

If he has some basis for that, I'm very interested in it. He may just be out there sort of spouting theories for attention. But -- but there needs to be follow-up there.

JARRETT: But thus far, we haven't seen any evidence of that --

HONIG: Exactly.

JARRETT: -- from the armorer's lawyers, even though they went on "The Today Show" and said it.

And they also now are saying that the crime scene may have been tampered with after the fact. Again, explosive allegations. If you have something, it's kind of the put up or shut up moment. You would think the armorer's lawyers wouldn't put that out there. I understand they want to say that their client is innocent here and that, you know, she's not to blame. But those are pretty explosive claims to put out there without any evidence.

BERMAN: A federal judge ruled overnight that Texas cannot ban mask mandates from local school districts. That local school districts can institute mask mandates in schools if they want. Texas can't stop them. The significance here?

JARRETT: I think this is a really interesting decision, because the state Supreme Court had ruled in Abbott's favor, I think, a couple different times now.

But this is a federal court judge weighing in, saying when you do that, you actually violate the Americans with Disabilities Act. So it's actually students with disabilities who are being disadvantaged by Abbott's order, not allowing, essentially, schools to do what they need to do to protect students.

[06:25:02]

That's what these mask mandates are about, right? We hear a lot about free choice and sort of a nanny state. This is about schools actually making a choice to -- to allow students to live freely and exercise their rights in school.

HONIG: And big picture here. Let's just keep in mind. It has long been established, going back to the early 1900s, that the government, the state, school boards, have very broad authority to police safety, health and welfare. That's the fundamental principal here.

And that's really all that's going on in these cases that have gotten a lot of political attention. Butt by and large, they're going to go in favor of governmental authorities, trying to protect safety, health and welfare.

JARRETT: But don't you think the federal judge gives sort of a blueprint for maybe other states to follow? Any other Republican, other GOP-led states that are trying to do this now having a federal court judge on the books with saying this is unconstitutional seems pretty significant.

HONIG: Yes. And the ADA approach --

JARRETT: Yes.

HONIG: -- is a smart one and one that could work in the future.

JARRETT: Yes.

BERMAN: From the law firm of Jarrett and Honig, thank you. JARRETT: I think we have something here.

HONIG: She's the first named partner. I go second.

BERMAN: You guys got my business. I'm signing up. I appreciate you guys being here.

A new witness testifies that one of the men accused of killing Ahmaud Arbery didn't even know whether he had committed a crime prior to the chase.

KEILAR: And inflation becoming a political nightmare for President Biden. What you can expect to pay more for in the months ahead.

(COMMERCIAL BREAK)