THESE DON’T TALK ABOUT THE CASE
DURING THE BREAK.
>> John: JUDGE BRUCE SCHROEDER
IN KENOSHA, WISCONSIN, CALLING A
RECESS AFTER THE PROSECUTOR
THOMAS BINGER WAS TRYING TO
QUESTION DREW HERNANDEZ ABOUT
WHY HE PUT TOGETHER THE TWO
VIDEOS THAT HE HAD RECORDED THE
NIGHT OF AUGUST 25TH, 2020.
ONE VIDEO TAKEN FROM THE
BODY CAM ARE WORN ON THE LEFT
SIDE OF HIS BODY AND THE OTHER
TAKEN FROM HIS CELL PHONE WHICH
HE WAS HOLDING IN HIS RIGHT
HAND.
FOR MORE ON THIS, LET’S BRING IN
JONATHAN TURLEY, FOX NEWS
CONTRIBUTOR.
I’M HERE WITH JACQUI HEINRICH
TODAY, WHAT’S YOUR SENSE OF WHAT
THE PROSECUTOR WAS TRYING TO DO
THERE?
IN MY LAYMAN’S EYE HE WAS TRYING
TO SUGGEST THAT MAYBE THE VIDEO
HAD SOMEHOW BEEN MANIPULATED,
THAT HE WANTED TO SHOW THAT
THERE WAS SOME BIAS IN THE VIDEO
THAT HERNANDEZ HAD PROVIDED THE
PROSECUTION AND THE DEFENSE.
>> I THINK IT’S EVEN MORE
SERIOUS THAN NOT.
I THINK WHAT THE JUDGE WAS UPSET
WITH, AND I WOULD HAVE BEEN
VOCIFEROUSLY OBJECTING AS
DEFENSE COUNSEL IS THAT THE
PROSECUTOR SEEM TO CROSS THE
LINE AGAIN.
HE ASKED THE WITNESS, DID YOU
GET THE ASSISTANCE OF AN
ATTORNEY?
AND HE SAID, YEAH.
I SUPPLIED THIS EVIDENCE THROUGH
AN ATTORNEY AND THEN HE SAID IT,
WHO WAS THE ATTORNEY?
THEN WHEN THE JUDGE ASKED HIM
WHY HE WAS ASKING THAT, THE
JUDGEHE SAID,I WANT TO KNOW IF I
AGAINST HIS CREDIBILITY.
WHAT I WANT TO KNOW IS IF
SOMEONE WHO GETS LEGAL ADVICE
THAT SOMEHOW LESS CREDIBLE, MANY
PEOPLE IN LESS THAN AN ATTORNEY
BECAUSE THEY WANT TO DO THINGS
RIGHT.
TYPICALLY IN A CASE THAT SO HOT
HIGH PROFILE AND PASSIONS ARE SO
HIGH, MANY PEOPLE WANT THAT
PROTECTION.
SO I HAVE A FEELING THAT THE
JUDGE IS ASKING ONCE AGAIN, WHY
IS IT THAT YOU KEEP ON CROSSING
THESE LINES?
EARLIER, THE PROSECUTOR REFERRED
TO THE FACT THAT RITTENHOUSE HAD
REMAINED SILENT AFTER HIS ARREST
AND THAT’S A VERY SERIOUS
VIOLATION.
IT COULD STILL END UP WITH THIS
WHOLE CASE BEING DISMISSED AND
IT NOW, HE’S DRILLING DOWN ON A
WITNESS TO SUGGEST THAT BECAUSE
HE GOT AN ATTORNEY THAT SOMEHOW
GOES TO HIS CREDIBILITY, THAT’S
PRETTY OUTRAGEOUS.
>> Jacqui: JACQUI HEINRICH
CARE.
AS YOU JUST REFERRED TO, THE
JUDGE BRUCE SCHROEDER HAS
ADMONISHED THE PROSECUTOR A
NUMBER OF TIMES, TWICE YESTERDAY
IN THE HEATED EXCHANGES AND A
LITTLE BIT JUST NOW THAT WE
HEARD.
WHAT IMPACT COULD THIS HAVE ON
THE JURY IF THE PROSECUTOR IS
SEEN AS DISRESPECTING THE COURT? >> QUITE FRANKLY I DON’T SEE ANY
>> QUITE FRANKLY I DON’T SEE ANY
REAL PROSECUTORIAL STRATEGY.
AND I DON’T KNOW WHY WE WOULD BE
MAKING SOME OF THESE ARGUMENTS.
THE PROSECUTION OBJECTED IN
FRONT OF THE JURY WITH EVIDENCE
BEING BROUGHT IN BY ONE OF THE
WITNESSES INVOLVING THE VIDEOS.
WE HAVE TO REALLY AVOID THAT IN
FRONT OF A JURY BECAUSE IT MAKES
THEM WONDER, WHY DON’T YOU WANT
US TO SEE THAT EVIDENCE?
AND WHEN YOU SEE THEM AGAINST
YOU, THE JURY IS THEN QUITE
INTERESTED IN SEEING THIS
EVIDENCE THAT THEY WEREN’T
SUPPOSED TO SEE.
THEN, THE PROSECUTION KEPT ON
OBJECTING, REALLY CONVEYED TO
THE JURY, DON’T LOOK AT THIS.
THAT’S A TYPE OF BASIC PROBLEMS
THAT I’M SEEING HERE WHERE THE
PROSECUTION SEEMS TO BE FLAILING
AROUND IN THE COURTROOM.
>> John: RITTENHOUSE IS FACING
SIX CHARGES IN TOTAL AND ONE IS
UNLAWFUL POSSESSION OF A
FIREARM, SANG AT THE AGE OF 17 1
HE WAS NOT ELIGIBLE TO OWN A
LONG GUN AS HE HAD WITH HIM THAT
NIGHT.
THE PROSECUTION IS PUSHING ON
THIS PARTICULAR MISDEMEANOR
CHARGE OF ILLEGAL POSSESSION OF
A FIREARM.
ANDY McCARTHY, OUR COLLEAGUE
HERE AT FOX HAS AN INTERESTING
TAKE ON THAT IN WHICH HE SAID,
THE PROSECUTORS KNOW THAT THEY
HAVE NO CASE AND THEY NEED THIS
MISDEMEANOR TO DISTORT REALITY
SUCH THAT THEY WILL BE ABLE TO
HOODWINK THE JURY.
UNDER WISCONSIN LAW IF A PERSON
ENGAGES IN UNLAWFUL CONDUCT,
THAT PERSON CAN LOSE HIS RIGHT
OF SELF-DEFENSE WHICH OF COURSE
RITTENHOUSE IS CLAIMING AND THAT
IS WHY PROSECUTORS ARE DESPERATE
TO KEEP THE MISDEMEANOR GUN
POSSESSION COUNT IN THIS CASE.
DO YOU BELIEVE, AS ANDY SEEMS TO
COME UP WITH THE PROSECUTION’S
CASE HINGES ON THIS IDEA THAT
RITTENHOUSE ILLEGALLY POSSESSED
A WEAPON AT THE TIME, WISCONSIN
LAW IS MUDDY, THEREFORE HE IS
NOT ELIGIBLE TO THE SELF-DEFENSE
DEFENSE.
>> AND HE IS ALWAYS VERY
INSIGHTFUL ON THESE ISSUES AND
WHERE I TRAINED AS A CRIMINAL
DEFENSE ATTORNEY COMES FROM A
LONG AND DISTINGUISHED
PROSECUTION CAREER.
I DON’T THINK THAT’S GOING TO
WORK QUITE FRANKLY.
THERE IS ANOTHER EXPLANATION.
THEY’D BE HAPPY TO GET ANYTHING
AT THIS POINT.
IF YOU COME OUT WITH A
MISDEMEANOR, IT’S ALL CONVICTION
CONVICTION.
AS I NOTED EARLIER, THEY SEEM TO
HAVE REDUCED THE RANGE OF
OPTIONS HERE FROM A HUNG JURY TO
AN ACQUITTAL BECAUSE OF ALL OF
THESE PROSECUTORIAL MISSTEPS.
I THINK THEY MAY IN FACT BE
QUITE HAPPY TO GET A
MISDEMEANOR.
BUT ANDY IS CORRECT, YOU COULD
USE THIS TO TRY TO DEFEAT THE
SELF-DEFENSE CLAIM.
THEY ARE GOING TO FIND IT VERY
HARD TO MAKE THIS CAT WALK
BACKWARDS IN THAT COURTROOM AND
THEY HAVE LOST A LOT OF GROUND.
>> Jacqui: PULLING IT BACK A
LITTLE BIT, WHAT ARE THE STAKES FOR THIS KIND OF TRIAL.
FOR THIS KIND OF TRIAL.
IF THERE IS A CONVICTION, AND IF
HE’S NOT CONVICTED, THERE IS
POTENTIALLY SOME SORT OF CONCERN
THAT THERE WOULD BE A PRECEDENT
WHERE VIGILANTE ACTION IS NOT
SCRUTINIZED EFFECTIVELY, WHAT
ARE YOUR THOUGHTS?
>> THE PROBLEMS WITH THESE
TRIALS IS IT’S LIKE WATCHING
DIFFERENT TRIALS DEPENDING ON
WHERE YOU GET YOUR NEWS.
UNLESS YOU ARE WATCHING THE
TRIAL YOURSELF, EITHER THIS
TRIAL IS FALLING APART DUE TO
SYSTEMIC ERRORS OR IT’S FALLING
APART DUE TO SYSTEMIC RACISM.
IT DEPENDS ON WHERE YOU ARE
GETTING YOUR NEWS.
IN REALITY THIS WAS A DIFFICULT
CASE TO MAKE UNDER WISCONSIN
LAW.
THEY HAVE A VERY ROBUST
SELF-DEFENSE RULE AND MORE
IMPORTANTLY YOU FOLLOWED THAT
DIFFICULT STANDARD BY A SERIES
OF PROSECUTORIAL MISSTEPS.
AT THE PROSECUTION KEPT ON
CALLING WITNESSES THAT KEPT ON
EXPLODING ON THE STAND.
AND THE PROSECUTION OFTEN ASKED
QUESTIONS AND THEY DIDN’T KNOW
THE ANSWER TO WHICH IS A REAL
PROBLEM IN A COURT ROOM AND SO
WITH ONE WITNESS FOR EXAMPLE THE
PROSECUTOR DRILLED DOWN AND
SAID, HOW WOULD YOU KNOW WHAT
WAS IN THIS VICTIM’S MIND?
HOW WOULD YOU KNOW THAT HE HAD
THREATENING INTENT?
AND HE SAID WELL, BECAUSE HE
SAID HE WAS GOING TO KILL ME.
IT’S THAT TYPE OF RESPONSE THAT
IS A NIGHTMARE FOR TRIAL
ATTORNEY IS, WHEN YOU TRIGGER
SOMETHING LIKE THAT.
BUT IT HAPPENED OVER AND OVER
AGAIN FOR THE PROSECUTION.
TO BE ONE OF THE BIG MOMENTS
YESTERDAY WAS WHEN KYLE
RITTENHOUSE BROKE DOWN ON THE
STOCK TO MAKE A STAND NOT LONG
AFTER HE GOT UP ON THE STAND AND
THE PROSECUTOR LATER TRIED TO
ENTER INTO EVIDENCE WHAT HE
THOUGHT WAS CONTRADICTORY
EVIDENCE TO KYLE RITTENHOUSE’S
EMOTIONAL STATE.
HE APPEARED AT A PLACE CALLED
PUDGY’S BAR AND MOUNT PLEASANT,
WISCONSIN, WEARING A T-SHIRT
THAT SAID "FREE AS F-WORD."
HE WAS THERE AS HIS PARENTS AND
TOOK A BUNCH OF SELF HE IS AND
APPEARED TO BE IN A CELEBRATORY
MOOD.
THE EVIDENCE THAT IT WOULD HAVE
BEEN FOR MONTH AFTER THAT
INCIDENT HAD NO BEARING ON THE
CASE THAT THEY WERE TRYING AT
THE MOMENT.
THE PROSECUTION WAS TRYING TO
SAY THIS GOES TO WHETHER OR NOT
HIS EMOTIONAL STATE OF MIND WAS
REALLY AS WE THOUGHT IN THE
COURTROOM, TRYING TO PUT THAT
CONTRADICTION OUT THERE.
WAS A JUDGE RIGHT, JONATHAN, TO
DISALLOW THAT EVIDENCE?
>> I THINK HE WAS. IT DOESN’T GO FROM STATE OF MIND
IT DOESN’T GO FROM STATE OF MIND
TO THAT DAY THE JUDGE IS TRYING
TO PROTECT THE RIGHT OF THE
DEFENDANT, AND I’VE NEVER SEEN A
PROSECUTION THAT DANCED ON THAT
LINE FOR SO LONG.
THESE ARE BRIGHT LINES, YOU
DON’T TALK ABOUT A DEFENDANT’S
USE OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION, YOU REMAIN
SILENT.
YOU DON’T TRY TO PAINT HIS
CONDUCT WITH HOW HE APPEARED
MONTHS LATER.
THE JUDGE IS TRYING TO MIND IS
THAT LINE, TO KEEP PREJUDICIAL
INFORMATION OUT.
BUT PART OF THE PROBLEM I THINK
THE PROSECUTION IS FACING IS
THAT THE JURY IS GETTING A
VIRTUAL AEROBIC WORKOUT HAVING
TO LEAVE THAT COURTROOM EVERY
FEW MINUTES WHEN THEY KEEP
TRIPPING THESE WIRES.
THE JURY CLEARLY UNDERSTANDS
THAT WHAT THEY ARE BEING ASKED
BECAUSE THE PROSECUTION DID
SOMETHING THAT THE JUDGE DOESN’T
LIKE.
THAT’S NOT GOING TO ADD TO YOUR
CREDIBILITY.
>> Jacqui: THE RITTENHOUSE
SPOKESPERSON DAVID HANCOCK HAS
MADE SOME POINTS ABOUT BIAS IN
THIS CASE.
HE POINTED OUT THE FACT THAT THE
PRESIDENT, JOE BIDEN APPEARS TO
BE REFERRING TO RITTENHOUSE AS A
WHITE SUPREMACIST AND HE HAD
THIS TO SAY ABOUT MEDIA COVERAGE
COVERAGE.
>> THE MEDIA HAS BEEN ABSOLUTELY
IRRESPONSIBLE, AND SURELY
ABHORRENT WITH THIS ENTIRE
SITUATION.
THEY’VE BEEN PARROTING THE SAME
FALSE INFORMATION TIME AFTER
TIME AFTER TIME.
AND EVEN DO IT TO THIS DAY.
AND HE DIDN’T CROSS STATELINE
WITH A WEAPON, THAT WAS KNOWN
LAST YEAR.
IT’S APPALLING.
>> Jacqui: WHAT ARE YOUR
THOUGHTS JONATHAN?
>> WELL, THE PEOPLE WATCHING THE
TRAILER QUITE SURPRISED AND I
THINK THE MOST OUTRAGEOUS ASPECT
OF THIS IS IN FACT PRESENT BY
DENSE COMMENTS.
WHEN BEFORE ANY REAL FACTS WERE
KNOWN BEYOND THE TRAGEDY ITSELF,
DECLARED THIS INDIVIDUAL TO BE A
WHITE SUPREMACIST.
HE DID SO RECENTLY AGAIN WITH
CUSTOMS AGENTS WHO WERE ACCUSED
OF FLOGGING OR WHIPPING
IMMIGRANTS TRYING TO COME INTO
THE COUNTRY.
HE JUST STATED THAT IS A FACT
AND SAID THAT THEY HAVE TO BE
PUNISHED.
THOSE ARE DAMAGING STATEMENTS
FROM THE PRESIDENTIAL CANDIDATE
OR THE PRESIDENT OF THE
UNITED STATES.
>> John: JONATHAN, DAVID
HANCOCK TOOK ON THE MEDIA FOR
HIS COVERAGE OF THIS.
IT WAS SUGGESTED EARLY ON THAT
RITTENHOUSE WENT TO KENOSHA
BECAUSE HE WAS OUT FOR BLOOD AND
WANTED TO GET INVOLVED AND HE
HAS DENIED THAT.
AND NOW SOME LIBERAL
PUBLICATIONS ARE CRITICIZING
JUDGE BRUCE SCHROEDER SAYING,
ESSENTIALLY, HE’S AN ALLY OF
RITTENHOUSE BECAUSE OF THE WAY
HE’S TREND TO MIKE HANDLING THIS
TRIAL AND SOME OF THE RULES THAT
HE’S MAKING.
WHAT DO YOU SAY?
>> IT’S ASTONISHING TO ME THAT
SO MANY PEOPLE THAT ARE CALLING
FOR EQUAL JUSTICE ARE CALLING
FOR THE REMOVAL OF A JUDGE WHO’S
HOLDING THE LINE ON BASIC
CONSTITUTIONAL PRINCIPLES.
WAS HE SUPPOSED TO ALLOW THE
PROSECUTOR TO TALK ABOUT A
DEFENDANT’S RIGHT TO REMAIN
SILENT OR USE IT AS
INCRIMINATING DESPITE A LONG
LIST OF SUPREME COURT CASES
SAYING YOU CAN’T DO THAT?
WHAT THESE PEOPLE ARE ARGUING
FOR IS THAT HE SHOULD BE MORE OF
AN ADVOCATE FOR PROSECUTION.
THAT’S NOT A CALL FOR EQUAL
JUSTICE, THAT THE CALL FOR MOB
JUSTICE.
YOU DON’T WANT TO JUDGE TO BE
BIASED AND I DON’T THINK THIS
JUDGE HAS BEEN. MOXLEY A CRIMINAL DEFENSE
MOXLEY A CRIMINAL DEFENSE
ATTORNEY, AND AN I HAVE NOT SEEN
A TRIAL LIKE THIS ONE IN TERMS
OF WHAT THE PROSECUTION HAS
ATTEMPTED TO DO HERE.
THIS IS WAY BEYOND THE PALE.
IT MAY BE A BIT OF SIDE OF