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New Day

Crying, Yelling and Mistrial Demands in Kyle Rittenhouse Case; Brothers Injured at Concert Speak Out, We Feared for Lives; Judge Rejects New Trump Bid to Keep January 6th Docs Secret. Aired 7-7:30a ET

Aired November 11, 2021 - 07:00   ET



BRIANNA KEILAR, CNN NEW DAY: And CNN's Kristin Fisher is joining us now to tell us about this.

This was a big -- we're getting used to this, I will say. But this is a big deal. This is a big mission they're going on.

KRISTIN FISHER, CNN SPACE AND DEFENSE CORRESPONDENT: It is. And this was the crew that was actually supposed to launch on Halloween. You remember, it was first delayed due to weather. Then it was delayed because of a minor medical issue involving one of the astronauts. But last night finally launched a picture-perfect launch to the international space station where the four astronauts are going to spending about six months conducting research and science experiments and doing spacewalks.

But, Brianna, you really hit the nail on the head, because what really stood out to me about this launch last night is just the fact that SpaceX has now launched 18 people into orbit in just 18 months. And that is just a huge acceleration from what we have seen over the last ten years in the United States when we had to spend nearly a decade relying on Russian Soyuz rockets to get our astronauts up to the International Space Station.

And then, Brianna, the other thing that was so remarkable was the fact that the turnaround time on Monday, crew two, the previous crew, splashed down. And less than 48 hours, we saw the launch of crew three. NASA said that was the shortest turnaround between a splashdown and launch in human space flight history.

And so this is all important because this is exactly the moment that SpaceX and NASA have been working towards for so many years, this rapid reusability, this quick turnaround time to make space flight to orbit and eventually the moon and Mars much faster. And so it was exciting to watch last night.

KEILAR: It was. And that turnaround time I think is what is striking, because it's like they're coming up, they're going. It is just very regular. FISHER: It's regular. And it's up to us to make it -- to remind folks that it is so incredible what they are doing. They just make it look easy.

KEILAR: It really is. Kristin, thank you for that.

FISHER: You bet.

KEILAR: New Day continues right now.

Welcome to our viewers in the United States and around the world. I'm Brianna Keilar with John Berman. And it is Thursday, November 11th, Veterans Day. There is a live look at the U.S. Marine Corps Memorial, and, of course, a thank you to all who serve and who have served.

The trial of Kyle Rittenhouse resuming today after a dramatic day in court with the accused killer crying on the stand. The judge berating the prosecution and the defense demanding a mistrial. Rittenhouse broke down on the witness stand as he described what led to him fatally shooting two people and wounding a third during unrest in Kenosha, Kenosha, Wisconsin.


KYLE RITTENHOUSE, DEFENDANT: there were people right there that put --


KEILAR: Kyle Rittenhouse's mother also crying as she looked on.

JOHN BERMAN, CNN NEW DAY: Also of note, the judge unleashed on the prosecution, accusing them of a grave constitutional violation as they cross-examined the teenager.


JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUITY COURT: I was astonished when you began your examination by commenting on the defendant's post-arrest silence. That's basic law. It's been basic law in this country for 40 years, 50 years. I have no idea why you would do something like that.


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

I don't believe you. There better not be another incident. I'll take the motion under advisement.


BERMAN: All right. Joining me is CNN Legal Analyst Elie Honig, a former state and federal prosecutor.

Elie, in just a minute we're going to dive into the drama that we saw in the court. But, first, I think it is important to lay out exactly what's at stake here. Kyle Rittenhouse, what exactly is he charged with?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes. John. So, Kyle Rittenhouse faces six different criminal charges. Let's run through them. Count one relates to the killing of Joseph Rosenbaum. This is the person you've seen on the video chasing Rittenhouse across the parking lot, who then gets shot and killed by Rittenhouse.

One thing to note, this charge is a first degree reckless homicide. Meaning, the prosecutors don't have to prove that Rittenhouse intentionally killed him but he acted for disregard for human life by firing the weapon.

Now, count two is a first degree endangering relating to Richard McGinnis. Now, he's the journalist. He's the testified at the trial who was a few steps behind Rosenbaum in that parking lot scene.

Now, count three, we're going to move out of the parking lot and onto the street scene where Kyle Rittenhouse is down on the ground. Count three is a first degree intentional homicide of Anthony Huber. This is the person who hit Rittenhouse with a skateboard.


Rittenhouse then shot him once in the heart. That is a maximum sentence of life in prison.

Count four, still on the street here, attempted first-degree intentional homicide of Gaige Grosskreutz. This is the person who approaches Rittenhouse on the street, Rittenhouse shoots him, hits him in the arm, wounds him, does not kill him. That is why it is an attempted charge. There's a max there of 60 years.

And count five is first degree recklessly endangering the safety of this unknown man. This is the guy who comes in and gives Rittenhouse a flying kick. They don't know who this person is. But the allegation that Rittenhouse is he shot at or in the direction of this person, endangering his life.

And then count six, this is different from all the others. This is a misdemeanor. It's a less serious crime possession of a dangerous weapon by a person under 18. Obviously, he possessed a weapon. He was 17 at the time. The max here is only nine months. You can get convicted of a misdemeanor and do time at all.

One more important thing, each of these six counts stands alone. The jury will decide separately on each of the six counts.

BERMAN: One through five, the defense is arguing self-defense. Legally speaking, what does that mean?

HONIGH: So here's what self-defense means if you look at the law. A person reasonably believes, doesn't have to be correct, reasonably believes that force which is intended or likely to cause death or great bodily harm, shooting a gun certainly qualifies, is necessary to prevent imminent, meaning close at hand, imminent death or great bodily harm.

Now, there is no duty to retreat or flee under Wisconsin law but the jury can consider, as they can consider the fact that at certain points Rittenhouse was running away from Rosenbaum, for example.

And this is really important. The prosecution has a heavy burden in Wisconsin. They have to disprove self-defense beyond a reasonable doubt. So, if the jury is back there deliberating and say, eh, it's 50/50, that's not good enough. The prosecution has to overcome the self-defense defense.

Now, how are they making this argument? Rittenhouse's lawyers are arguing when he was chased across the parking lot, he was fleeing, they tried to grab his gone, Rosenbaum tried to grab his gun. There were other gunshots going off. And so they argue he was reasonable in using force. And out on the streets, the argument is he got hit in the head with a skateboard, he got kicked in the head. And so he was reasonable fear for his life.

And then to Grosskreutz, there was this important from his testimony the other day. Let's take a look at that.


UNIDENTIFIED MALE: It wasn't until you pointed your gun at him, advanced on him, now your hand is down pointed at him that he fired, right?



HONIG: That's going to be tough for the prosecution. So, now, the prosecution's response to all of this is that he used unreasonable force, that he didn't reasonably believe, for example, being hit in the head with a skateboard or kicked put his life in jeopardy. So that's the back and forth we're seeing now.

BERMAN: How are they doing to try to make that case so far?

HONIG: It's a mixed bag. I think with Grosskreutz, it's going to be a really hard lift because the guy said, he put his gun on me, I put my gun on him before he shot me.

Now, one of the other things we're seeing from the prosecution is they are arguing provocation. And that means if a person, Rittenhouse, the prosecution argues, was engaged of unlawful conduct of a type likely to provoke others to attack him, then you cannot argue self-defense.

So, the prosecution is arguing essentially he went into Kenosha looking for trouble. And they've argued he got a gun illegally, he traveled across the state line from Illinois to come into Kenosha. They've argued that his whole claim that he was there as a medic to just help people out was really a ruse and the real reason he was there was because he wanted to start trouble. That's provocation. That means you cannot argue self-defense.

BERMAN: All right. The legal background here, Elie, thank you very much.

HONIG: Thanks, John.

KEILAR: So much to talk about here with our legal analysts, CNN Legal Analyst and former NYC Prosecutor Paul Callan and Founder of the Hatchett firm and of The Verdict, Judge Glenda Hatchett with us.

Judge Hatchett, to you first. Just what did you think of this really incredible day of testimony? Did Kyle Rittenhouse help himself?

JUDGE GLENDA HATCHETT, FOUNDE, THE HATCHETT FIRM: I thought that it was critical that he take the stand. So often we don't see this. I mean, very rarely do you see a defendant, particularly in a double homicide case, take the stand. But they had to. They had to have him paint the picture that he feared for his life and that he was justified in using lethal force in the situation.

He had to say that he was retreating at one point. He had to say that he feared he heard gunshots. And that was the critical decision I think that the defense had to make to put him on the stand. He showed emotion yesterday but he didn't seem remorseful to me. And I was wondering how the jury will interpret that in that situation.

Elie did an amazing job in laying out all the facts here. And the whole notion of provocation, too, is going to play a real big factor in this case, whether the prosecution will be able to overcome this issue of self-defense by saying that he was there and he was very provocative in his actions.


KEILAR: Paul, what do you think? That's interesting, emotional but perhaps not remorseful?

PAUL CALLAN, CNN LEGAL ANALYST: Yes. And I have to agree with the judge that a jury might decide that. Although the defense is going to say his remorse was demonstrated when he broke down and virtually started crying as he relived what happened that day. There might have been an element of remorse in that expression of emotion.

But I think, Brianna, the defense walked him through a very compelling self-defense case. I mean, when Rosenbaum, one of the people who was killed in the incident, he first encounters Rosenbaum, Rosenbaum says, I'm going to kill you, I'm going to cut your heart out, and then pursues him. And he ends up shooting Rosenbaum, allegedly, when Rosenbaum tries to jump him and grabs the gun.

And then a mob of people pursue Rittenhouse. And he falls to the ground. And he says then that Anthony Huber struck him with a skateboard being used like a baseball bat and that the second individual, Grosskreutz, actually pointed a gun at his head. So, he had no choice but to fire the shots in self-defense. That's the case that the defense put on the table, and I'll tell you it's a strong case. It is a hard case for the prosecutor to overcome.

KEILAR: Judge Hatchett --

HATCHETT: I agree with you, Paul.

KEILAR: You agree with him.

I wonder, Judge Hatchett, what you think about the judge in this other key moment yesterday admonishing the prosecution not just once, many times. But this was perhaps the most heated moment. Let's listen.


SCHROEDER: I was astonished when you began your examination by commenting on the defendant's post-arrest silence. That's basic law. It's been basic law in this country for 40 years, 50 years. I have no idea what you would do something like that.

Don't get brazen with me.

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.

I don't believe you. There better not be another incident. I'll take the motion under advisement.


KEILAR: The motion was by the defense for a mistrial with prejudice, which would mean it could be declared a mistrial and then there would not be a retrial of Kyle Rittenhouse. Judge, what did you think of that moment?

HATCHETT: Well, I -- first of all, the judge is absolutely correct on both of the points. If there had been a ruling, and there was in this case, that they couldn't bring in evidence of prior acts, but particularly the second piece of this, of commenting on Rittenhouse's behavior post-arrest. I mean, we know that that is not allowed and the prosecutor should not have done that.

Now, you know, the judge has been criticized. People say he was over the top. And I thought he was a little over the top. But we are human. But he was absolutely correct on both points.

Now, as to the motion for a mistrial with prejudice, I really doubt that that will happen. Some speculate that the prosecutor really wants a mistrial in this case. But that's a risky, risky road for him to go down under these circumstances and to do what he did.

KEILAR: What do you think, Paul?

CALLAN: Well, I agree with the judge here. And I just want to add something else to the table. If a mistrial in a case is caused by prosecutorial misconduct, sometimes the appellate courts say double jeopardy applies. And that means he couldn't be retried on these charges again. This is very different from a juror getting sick and you're not able to finish the trial or a hung jury maybe. You hear a lot of times that there's a mistrial after that and they retry the case. But if you have deliberate misconduct by a prosecutor causing the mistrial, double jeopardy can apply.

So, I think the judge is going to be very careful about this. This is a murder case. It's an important case. I don't see him granting the mistrial because it would be too dangerous. The judge is going to rather, I think, take the verdict from the jury in this case.

KEILAR: Yes, what a day in court, though. What a day.


KEILAR: Judge Hatchett, thank you so much. Paul, I really appreciate it.

CALLAN: Thank you.

KEILAR: Breaking overnight, a judge's decision on Donald Trump's new attempt to keep January 6th documents a secret.

BERMAN: Plus, what was it like to be trapped in a deadly crush during the Astroworld concert tragedy. We're going to speak with two brothers who were right there.

And this story is just stunning. A mysterious attack on a star soccer player. Why it might remind you Of Tonya Harding and Nancy Kerrigan.



BERMAN: Survivors coming forward to describe the scene from the deadly crowd surge at last week's Astroworld festival in Houston. Two brothers who were at the concert say they were pinned against metal barricades, gasping for air and fearing for their lives while they witnessed hundreds of bodies on the floor from fellow concertgoers passing out.

Joining me now the two brothers, Jonathan Espinoza alongside with their attorney, Rick Ramos, he plans to file a class-action lawsuit on their behalf and two dozen others. Jonathan, thank you for being with us.

Why don't you just tell me what you guys went through?

JONATHAN ESPINOZA, INJURED IN STAMPEDE AT TRAVIS SCOTT'S ASTROWORLD CONCERT: A tragedy, sir. The moment we got there, it was an eye- opener. We got there with excitement. We were waiting for this event the last two years.

[07:20:00] We worked really hard to get our ticket. And we show up, and it just unraveled by the second we were there.

BERMAN: Unraveled how? What was going on around you?

J. ESPINOZA: In chaos. We got there, immediately we went through the COVID line. We go through there. We go to another line where you get your tickets checked in and scanned in. When we were walking to get our tickets scanned in, fans immediately busted down a fence that shouldn't even be busted down. You have cops that are going to stop them but, I mean, there was about 50 people that just break the fence down, immediately started running. And right there, I mean, it's eye- opening. You see a bunch of kids started running towards you and you're just like, what do I do?

BERMAN: Bryan, you say you're having trouble sleeping. Why?

BRYAN ESPINOZA, INJURED IN STAMPEDE AT TRAVIS SCOTT'S ASTROWORLD CONCERT: Yes, sir. Just because I saw people screaming in front of my face, just trying to fight for their lives, basically, everyone's life was in danger. And I just saw people passed out, bodies on the floor, just a lot of stuff you don't see on a daily basis.

BERMAN: Did you think you were going to make it out of there alive, Bryan?

B. ESPINOZA: I had a 50/50 chance. It was either me living or either dying. At one point I thought I wasn't going to make it.

BERMAN: And, Jonathan, you know, you guys are obviously Travis Scott fans. How much do you hold him responsible?

J. ESPINOZA: Completely responsible, sir. He had the biggest microphone out of everybody. And I think it's crazy how poorly it was set up. And like I said, from there, when you start off poorly, I don't get how you would expect it to finish with a success.

BERMAN: So, Rick, Counselor, I understand you're filing a class- action lawsuit immediately, within minutes. What are you alleging here?

RICK RAMOS, ATTORNEY REPRESENTING 30 ASTROWORLD TRAGEDY VICTIMS: We're alleging Travis liability. We're also holding Mr. Scott responsible. Mr. Scott had full control of that crowd. If you just look at social media or any other type of video or audio, you're going to see Mr. Scott dictating the pace of the concert to the crowd, whether it is raising the hand in the air and give the middle finger, which the crowd does right on cue, jump up and down, they do that right on cue.

At some points Travis stops because of an ambulance that's coming. But he finished the entire set all the way to the end even though there were bodies in front of him. And there's videos of this floating, meaning they were basically being surfed right out of the crowd, outside of a barricade, while kids were passing out. And they were stomping over each other because they couldn't breathe. They were all barricaded into one slot almost like cattle. So that's essentially what caused these kids basically to be pinned up against iron bars that essentially were bolted into the ground, which essentially caused cracked ribs for them essentially and it didn't stop. And they were had he pinned for about 15 minutes a pop.

BERMAN: Counselor, Travis Scott's lawyers are saying there's too much finger-pointing going on at this point. What do you say to that?

RAMOS: They want the finger-pointing because they want to relieve him of the liability or the consequence and the liability. But he has the mic. At some point in time, he has full control of that crowd. And the best example I can give you, is if you look at the video when he says, put your middle finger up in the air, the entire crowd puts the middle finger up in the air. So, Mr. Scott has full control of that crowd. If he told them to do a back flip, they would have done it.

But, you know what, he chose to just continue, get them amped up, shake the ground and just continue the energy of that crowd even though he knew exactly what was going on in front of him. There's no finger-pointing here. You should not do that. You are held hereby responsible for your actions and your behavior.

The question will be, as part of this investigation, how much was Travis Scott aware of what was going on in the crowd during the concert? And I imagine that will come out during the investigation. Rick Ramos, Counselor, thank you. Jonathan and Bryan, I wish you the best. I'm sorry you had to go through this and I hope that over the next few days you feel better and you can get some sleep. Thank you.

The January 6th committee targeting people in the Mike Pence inner circle. What do they know and will they cooperate?

KEILAR: Plus, 2024 here we go.


Chris Christie taunting Donald Trump as the two former allies spar with each other.


KEILAR: Breaking overnight, a federal judge saying that she will not help former President Trump as he attempts to buy time in his argument to keep records from his presidency around the January 6th events secret, Judge Tanya Chutkan instead pointing him to an appeals court to seek help.

Her latest decision comes a day after she ruled against Trump in a historic case regarding access to records sought by the January 6th committee.

And joining us now Robert Costa, he is co-author with Bob Woodward of the best seller, Peril, which I will say keeps popping up time and again as the committee cites it in these subpoenas.

What do you think about this development, the judge has denied this request basically for a stay, but it's not the end of President Trump's potential legal avenues to get this information to --