INCLUDING AFTER THE JURY
RETURNED A VERDICT.
DAGEN: THANK YOU FOR THAT.
ANDY MCCARTHY, FORMER ASSISTANT
U.S. ATTORNEY FOR THE SOUTHERN
DISTRICT OF NEW YORK, FOX
GRADUATED, YOU’VE BEEN FOLLOWING
THIS INCREDIBLY CLOSE, WHAT DID
YOU MAKE OF THIS ISSUE, I
THOUGHT IT WAS ON MR. TRIAL BY
THE DEFENSE BECAUSE OF THIS
LO-RES VERSUS HIGH-RES VIDEO
MEANING THEY WANT TO PREVENT THE
PROSECUTION FROM BRINGING
CHARGES IN THE FUTURE BUT WHAT
YOU MAKE OF THIS MOTION AND WHAT
THE QUESTIONS THE JURY SET WHERE
THE DELIBERATIONS SEEM TO BE?
>> IT’S A SIGNIFICANT MOTION AND
NOT A STANDALONE, THE OTHER
THING THEY EMPHASIZED A WEEK
AGO, AND ISSUE WHERE PROSECUTOR
COMMENTED ON THE DEFENDANTS
AMENDMENT RIGHT TO SILENCE, A
THIRD RAIL TRIAL PROSECUTOR
SUPPOSED TO KNOW YOU’RE NOT
SUPPOSED TO GO NEAR AND HE
DECIDED TO GO THERE SO IT IS A
COMBINATION OF THINGS BUT IT’S A SIGNIFICANT ISSUE BY THINK THE
SIGNIFICANT ISSUE BY THINK THE
JUDGE WAS WRONG TO LET THE VIDEO
COME INTO THE CASE IN THE FIRST
PLACE.
WHAT IT ESSENTIALLY ALLOWED
PROSECUTORS TO DO IS TAKE THIS
DISPUTED VIDEO AND ESSENTIALLY
TESTIFY WHAT I THOUGHT WAS GOING ON WITH NO TESTIMONY FROM
ON WITH NO TESTIMONY FROM
ANYBODY ON THE SCENE SO AN
IMPORTANT PIECE OF EVIDENCE IN
THE TRIAL BUT IF RITTENHOUSE WAS
CONVICTED, I DON’T THINK HE WILL
BE BUT IF HE IS, IT WILL BE
SIGNIFICANT QUESTION.
DAGEN: CORRECT ME IF I AM WRONG,
THE MOST RECENT MOTION WAS A
MOTION FOR MISTRIAL WITH
PREJUDICE, WASN’T IT?
>> THERE IS A SLIDING SCALE OF
WHAT THEY WANT SO RIGHT NOW, IF
THE JUDGE WERE TO RULE ON THE
MOTION, THEY NEED IT WITH
PREJUDICE BECAUSE THEY HAVE A
JURY IN THEIR DELIBERATION THAT
THEY HAVE A GOOD CHANCE TO GET
AN ACQUITTAL FROM THE LAST THING
THAT THEY WANT IS A MISTRIAL,
LOSE THE JURY AND THEY GET
RETRIED AGAIN.
THEY WOULD WANT FIRST IS JUDGE,
IF YOU THROW IT OUT, THROW IT
OUT WITH PREJUDICE SO HE CAN’T
BE TRIED AGAIN.
IN THE ALTERNATIVE, SEE WHAT THE
JURY DOES AND THEN IT’S A MOTION
AFTER A POSTTRIAL MOTION, IF THE
JURY CONVICTS RITTENHOUSE OF THE
JUDGE CAN LOOK AT IT AND FIRST
DECIDE WHETHER TO THROW OUT THE
CONVICTION AND THEN DECIDE
WHETHER THERE WAS SUCH
PROSECUTORIAL MISCONDUCT THAT
WARNS TO NOT RETRY HIM.
USUALLY IF THERE IS A HUNG JURY
OR IF A JUDGE THROWS OUT A CASE
ON GROUNDS OTHER THAN
SUFFICIENCY OF THE EVIDENCE, THE
GOVERNMENT CAN TRY HIM AGAIN BUT
IF YOU THROW OUT A CASE ON THE
BASIS OF PROSECUTORIAL
MISCONDUCT, THEY CAN TOSS THE
WHOLE THING.
DAGEN: AS A FORMER PROSECUTOR,
DO YOU SEE MISCONDUCT FROM WHERE
YOU SIT?
>> I AGREE WITH THE JUDGE THEY
HAVE TO TAKE TESTIMONY, LET ME
TALK ABOUT TWO CATEGORIES OF
MISCONDUCT.
WHEN YOU ARE DEALING WITH TRIALS
ESPECIALLY TOWARD THE END OF THE
TRIAL WHERE EVERYBODY IS WORKING 18 PLUS HOUR DAYS, MISTAKES
18 PLUS HOUR DAYS, MISTAKES
HAPPEN AND AS A PROSECUTOR,
WHETHER YOU ARE ACTING IN GOOD
FAITH OR SINISTER, YOU STILL OWE
THE DEFENDANT DUE PROCESS SO IF
YOU DEPRIVED HIM OF DUE PROCESS
AND THAT IS A PROBLEM WHETHER BY
ACCIDENT OR ON PURPOSE.
WHETHER IT BY ACCIDENT OR
PURPOSE MAY WAY ON WHETHER YOU
GET TO TRY HIM AGAIN BUT IF YOU
DENY THE DEFENDANT TO PROCESS
THE CONVICTION WOULD HAVE TO GO
SO THEY WILL HAVE TO GET MORE
EVIDENCE EXACTLY WHAT WAS THE
PROSECUTOR TURNED OVER DID
SOMEBODY MAKE AN HONEST MISTAKE
EVEN THOUGH IT WAS A COSTLY ONE
OR WAS IT SOMETHING THAT WAS AN
EARLIER MR. SCHEME?
DAGEN: WHERE YOU THINK THE JURY
ISN’T DELIBERATIONS, SOME MESSAGES SENT, THEY WATCHED
MESSAGES SENT, THEY WATCHED
VIDEO TODAY AND BASED ON WHAT
THEIR QUESTIONS WERE, CAN YOU
MAKE OUT WHERE THEY ARE IN TERMS
OF ASSUMING THEY MIGHT BE GOING
IN ORDER ON THE CHARGES WHERE
THEY ARE IN ORDER OF THE CHARGES
AGAINST KYLE RITTENHOUSE?
>> AS THEY SAY, IT’S ALWAYS
READING BECAUSE YOU NEVER KNOW
IF THEY ARE WORKING
SYSTEMATICALLY THROUGH THE
INDICTMENT OR IF THEY HAVE A TEN
AND HAMMER THE JURORS WITH
EVIDENCE SO WE WON’T KNOW THE
WHOLE DYNAMIC UNTIL AFTER THE
TRIAL IS OVER AND THERE IS
REPORTING ON IT BUT IT LOOKS TO
ME WHAT THEY HAVE HONED IN ON IS
THE ONLY REAL FACTUAL ISSUE IN
THE CASE, THE STATE SAYS
RITTENHOUSE WAS THE AGGRESSOR IN
THE ALL-IMPORTANT FIRST
CONFRONTATION WITH ROSENBAUM AND
THEY CLAIM THAT HIS PROVOCATION
AND IT CAUSES HIS RIGHT TO
SELF-DEFENSE TO BE
DISTINGUISHED, EVERYTHING THAT
FOLLOWS.
RITTENHOUSE’S POSITION, I THINK
IT’S THE STRONGER ONE THAT HE
WAS THE ONE WHO WAS PURSUED.
ROSENBAUM WAS THE ASSAILANT, NOT
RITTENHOUSE.
IT SEEMS TO BE THE MAIN THING
THEY WANT TO LOOK AT THE MAIN
VIDEO EVIDENCE FOR AN TO LOOK AT
IT IN CONNECTION WITH THE LAST
PERSON WHO SHOT SO IF THEY ARE
WORKING SYSTEMATICALLY THROUGH
THE INDICTMENT, YOU COULD INFER
THEY ARE AT THE END BUT WHO
REALLY KNOWS?