Kyle Rittenhouse looks on as John Black, use-of-force expert, testifies during Kyle Rittenhouse’s trial at the Kenosha County Courthouse in Kenosha, Wisconsin, U.S., November 11, 2021. (Mark Hertzberg/Pool via REUTERS)
This is a rush transcript of “Your World” on November 11, 2021. This copy may not be in its final form and may be updated.
NEIL CAVUTO, FOX NEWS ANCHOR: Thank you, Martha.
And this is it, the prosecution now getting a final crack at a final witness before the judge says this case can close, the jury can deliberate. But that probably won’t formally be the case until Monday.
The back-and-forth over the future of one Kyle Rittenhouse and whether he will be able to survive this trial and come out, as some analysts are saying, maybe legally unscathed.
At issue here, and under Wisconsin law, the defense only must cite some evidence of self-defense on the part of Kyle Rittenhouse. In other words, that puts the burden on the prosecution to negate the claim beyond a reasonable doubt. So, in Wisconsin, that is a particular uphill climb.
Let’s listen.
(JOINED IN PROGRESS)
CAVUTO: Again, the judge is weighing in the significance of this and what these images hold.
We’re going to go back and forth here. But while we’re looking at this and what the judge is looking at, Jim Trusty, a former Justice Department, prosecutor, with us.
Jim, why is this going to be such a big deal apparently to both sides, jury not in the room, the judge deciding whether they will get access to and see these images?
JAMES TRUSTY, FORMER FEDERAL PROSECUTOR: Yes, well, the judge is the gatekeeper for evidence. The case law has firmly established that they have to make these calls on whether the proponent of the evidence has established enough foundation to deem it reliable evidence.
And, of course, I think what’s going on is, the prosecutors are saying, these are the pictures we want to wave around in closing argument. These are the pictures that we want to say, check it out, it shows that he’s aiming at people, contrary to his testimony.
Well, the defense is realizing, hey, they haven’t set up a technological foundation of enough detail to let these into evidence. So I would say that it also probably reflects the fact that the prosecutor — the prosecuting team does not seem to have a ton of credibility with this judge.
They have overshot. They have trod on his Fifth Amendment rights, Mr. Rittenhouse’s Fifth Amendment rights. I think you’re in a position now where he is jaded towards the prosecution when they say, trust us, the lab uses this kind of algorithm all the time. And he’s thinking, hey, do I want to have an appellate issue where I just kind of winked and nodded at the foundation?
So I think it’s uphill at this point. I think he’s looking at. He’s saying, I don’t think I’m going to let these pictures in because they haven’t proven to me that there’s not some form of distortion.
CAVUTO: All right. And it’s immaterial that it was deliberate distortion or not. When a digital image is expanded, as we would, let’s say, on a smartphone, there is some distortion that occurs.
But this distortion, in the eyes of the defense, makes it look unfair to Kyle Rittenhouse, right? They’re saying, no, he is not a pointing a gun and he wasn’t pointing a gun earlier than thought.
So this idea that, all of a sudden, he was threatened and responded to that, that that is the entire prosecution’s argument, right, that he was a provocateur, that he brought this on himself, and that this was not a self- defense.
Like, they will see — they have great import in that. But if the judge were to allow these images, what kind of a difference would that make?
TRUSTY: Well, it really comes down to how clean those images are to the jurors.
If the jurors look at it, after all this fighting. And they say, OK, now I’m seeing a bigger blurry image where he may or may not have been pointing his gun, it’s not going to move that far. And it could be this thing is a huge battle over something that turns out to have little import to the jury.
And, by the way, this judge can look at all of this, hear all of these issues, and say, basically, I’m going to consider it for weight, but not for admissibility. In other words, he can even instruct the jury that there’s a live issue as to whether or not these algorithms distort the pixels in some way, and that they should consider that when they look at these images.
He could kind of discount them in front of the jury, but still let them in. That’s a relatively safe route for the judge to go in terms of appeals. But what the jury makes of it is really hard to know.
I mean, I think, from this case, you have had some very powerful, emotional moments and a lot of video. And so I’d be a little surprised if a single still photo is going to tilt everything the prosecution’s way at this juncture.
CAVUTO: All right, Jim, if you can hang in there, my friend, I want to go back to this.
TRUSTY: Sure.
CAVUTO: Because this is kind of an important point in the trial that rests with the prosecution for getting these images out to the jury right now not in that room, and the defense saying it’s totally unnecessary, and this is the distortion of what really happened that night.
Let’s listen to the judge.
CAVUTO: We’re continuing to watch it. They’re going to bring the jury back into the room.
Jim Trusty, there was another development here that my immediate thought could lengthen this, where an additional witness — can you update me on the significance of that?
TRUSTY: Well, what they’re talking about are witnesses that would affect credibility, not enough — not anything about the night in question.
But it does appear to be true rebuttal. In other words, it’s information that came out during Kyle Rittenhouse’s testimony about where he goes to school, how he got a bulletproof vest. And now the government is saying, essentially, they’re hearing from people real time to contradict that.
And they want to line up these people and perhaps bring them into the courthouse. So it seemed to have struck a fairly reasonable chord with the judge, that it’s not something that the government should have anticipated, and that they will probably have a chance overnight, at least, to produce one or two of these witnesses to come in and try to take some shots at Kyle’s testimony.
CAVUTO: You know, you’re the lawyer, and a darn good one, Jim, but it seems pretty clear to two lawyers and nonlawyers alike that the judge has been particularly tough on the prosecution.
And I’m wondering, and, of course, this latest issue notwithstanding, where he seemed to be open to such witnesses, is that a means by which, let’s say, the prosecution lost this case, to appeal?
TRUSTY: Yes, generally, no. When you’re a prosecutor, if there’s a not guilty, you’re pretty much done.
If it’s something where the judge takes control and dismisses the case, then you might have some appellate grounds, or a judgment notwithstanding the verdict. They act as a 13th juror, basically.
But most of the time, if the breaks are going against you because the judge doesn’t trust you at this point, or the judge doesn’t like your case or some combination, there’s not a whole lot you can do as a prosecutor.
CAVUTO: You know, Jim, if you think about it, you’re the defense.
All you have to make sure of is that one year, one juror has doubts, that – – has the prosecution — let’s go back to this right now.
CAVUTO: Here, this is James Armstrong from the Milwaukee Crime Lab describing these images. I believe there are four.
Back with Jim Trusty, the former DOJ prosecutor.
The judge has allowed the jury to see these photographs that have been digitally enhanced, in other words, enlarged, so you got a better idea what you’re looking at. The prosecution claims it shows, Jim, that Kyle Rittenhouse was indee
d pointing a weapon, what they say is a weapon, at someone earlier in the evening.
The defense had argued against the jury now getting access to these images, say that it’s inconclusive and it’s been distorted anyway. The significance of this back-and-forth, and now the jury having access to these photographs, what do you think?
TRUSTY: Probably overblown by both sides a little bit in terms of fighting kind of routine technology from the defense perspective, when they have allowed other blowups to go into evidence, but also for the government acting as if this is the end-all/be-all that’s going to be literally the smoking gun that shows that Kyle Rittenhouse was pointing a firearm.
I mean, I doubt, from a drone’s angle, that it’s going to be such a devastating piece of evidence. But you never know how a jury is going to take it. Certainly, the government, the prosecutors need something to break their way in terms of having some better arguments at closing argument than they might have right at this moment.
So they’re pushing, and they’re going to get it into evidence. And the jury will look at it, along with everything else that the jury has to consider.
CAVUTO: And as I was saying before — and we will be going right back to Judge Bruce Schroeder and his weighing in on some of this latest material – – that you really, if you’re the defense, have to just convince one juror that it doesn’t add up, that it is not a deliberate — deliberate action the part of Rittenhouse, that he killed two people, according to the defense, in self-defense.
You just need one, right?
TRUSTY: Well, yes and no.
One’s going to prevent convictions, but one’s not going to be an acquittal. I mean, I think that they have a strong enough case, from the defense perspective, where they’re hoping for the acquittal, at least on the serious charges. They might have some problems with a minor in possession of a gun or crossing state lines.
But for the homicide charges, I think they’re feeling it. I think they realize that they’re in play to get 12 people to agree that the government has not proven beyond a reasonable doubt that this was reasonable self- defense. And that’s really the — kind of the legal standard of where we are with that jury’s consideration.
CAVUTO: As well as the definition of the way they died, right, whether it’s murder or manslaughter. And how does that come into the mix?
TRUSTY: Right.
Well, there are essentially reckless-based charges. And there are intentional-based charges. And, essentially, what you’re telling the jury if you’re the prosecution is, this guy had time to essentially willfully shoot people without justification.
The defense is saying, we have a — what’s called a perfect self-defense. We have generated self-defense. It’s before the jury. It’s another thing that government now has to prove didn’t happen by proof beyond a reasonable doubt. And you hammer away on the fact that it’s justified and hope that they keep that burden in mind, and that they agree that, whatever they think happened, whatever bad judgment call Rittenhouse might have exhibited by just going down to the scene in general, doesn’t necessarily translate into proof beyond a reasonable doubt that he was unreasonable in defending himself.
CAVUTO: So, the uniqueness of Wisconsin law, Jim, that states that offense must only cite some evidence of self-defense, it seems to be less of a burden for the defense, by that definition.
Or am I misinterpreting it?
TRUSTY: No, it’s a little bit defendant-friendly.
But it’s actually not uncommon that — this is what’s referred to as an affirmative defense. In other words, it’s not in play until the defense has enough of a threshold showing of substantial evidence that it becomes part of the case.
And so, again, that’s the big reason why Kyle Rittenhouse testified was to sufficiently generate self-defense. It’s kind of hard without him testifying himself. Now that it’s in play, under Wisconsin law, it’s another thing that government has to knock down by proving it beyond a reasonable doubt.
And so it’s almost like insanity or some other affirmative defenses. They’re not routinely in play. But if the defense makes it an issue substantially, then the government has a new hurdle to try to leap over.
CAVUTO: All right, Jim Trusty, I think we’re going to go right back now.
CAVUTO: All right, so this is almost done, but not quite done.
A couple of developments that might stretch this a tad longer, a witness who must have heard Kyle Rittenhouse’s testimony yesterday, and the prosecution claims disputes some of the remarks that Rittenhouse made regarding the night of the shootings.
We’re told now that the judge is still intent on hearing all closing arguments as soon as Monday. We don’t know how that maybe is potentially pushed back by these latest developments, hearing from at least one additional witness.
You have heard about the jury now getting access to these four photographs. They’re always in the eye of the beholder, as our legal experts have said.
But the bottom line is, for Kyle Rittenhouse, it’s going to be the prosecution’s argument that he came to Wisconsin to inflict damage and do harm, and the defense’s argument, that anything that happened that night, including the death of two individuals and one other who was severely wounded, that it was all self-defense.
The details continue. That will do it here.
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