November 15, 2021 

Read a transcript of the segment below.

ANDERSON COOPER: Joining us now, Harvard Law School senior lecturer and former Federal Judge, Nancy Gertner. Also CNN legal analyst, Paul Callan, and Ron Johnson, former Captain in the Missouri Highway Patrol. He was appointed in the wake of the unrest there to coordinate law enforcement agencies in Ferguson. 

Judge Gertner, what do you make of the closing arguments from both the prosecution and defense? 

NANCY GERTNER, FORMER FEDERAL JUDGE: Well, I was sort of struck by themes that people haven't sort of identified before. 

In the defense, it was explicitly political. At one point, he said literally that the government was just charging the first white supremacists that it could find, only Rittenhouse wasn't a white supremacist. He said that the attack on some of the witnesses for being politically biased, and then he said, “their viewpoints are kind of like my viewpoints.” He was making this explicitly political, and he was making it personal. At one point, he talked about the prosecutor being "whiny,” and then there was obviously the call to what I in other settings talked about, vigilantism, which is that to stop them from wreaking havoc in Kenosha, like they had done the night before. Those were the things that I thought was sort of stunning. 

And then in addition, his role – the defense's role – was to show that in the chaos, Rittenhouse had no choice. The defense – I mean, the prosecution – was saying this kid can't get a pass and wanted to slow down the action, and I thought that was particularly impressive, was – particularly slowing down the action with respect to Rosenbaum. Rosenbaum was stopped by the first shot, and therefore, there was no need for two, three, and four. 

But ultimately, the prosecution has the burden of proof here, and it is hard to know what the themes I've just described, how effective they'll be, and particularly the Judge's affect throughout the trial. It's hard to know. 

COOPER: Paul, do you believe prosecution made up any ground today? You know, late tonight, there was reporting from CNN that during the prosecution's rebuttal, some jurors were seeing fidgeting, at least one appeared to be struggling to stay awake. I don't know what, if anything, can be read into that. 

PAUL CALLAN, CNN LEGAL ANALYST: I didn't think they gained a lot from the rebuttal case that was put in. I thought that earlier in the day, they had presented really a compelling case against the defendant and what struck me throughout the whole day is you had these two starkly different pictures of what happened that night. 

From the defense standpoint, it was like "Nightmare in Elm Street." You know, every time he turned a corner, there were people trying to attack him, coming out of the corners, coming out of the darkness, whereas the prosecutor was saying they were all heroes, trying to stop an active shooter. 

In the end, I think the jury is going to see the "Nightmare on Elm Street" scenario, and I say that because when they tried to establish provocation, they relied on some pretty shaky evidence. This picture that had been blown up and over-pixelated, but in the end, even if you saw him pointing a gun in that picture, there is no proof that Rosenbaum was aware of that and that Rosenbaum, because of that provocation, started chasing him. 

So, I don't see where they are going with that. 

It seems to me that that doesn't say he is deprived of his right to self-defense. So, then you're left with analyzing each encounter. And with respect to – as Judge Gertner was just talking about, the shots – the number of shots that hit Rosenbaum, those shots were all fired, I understand, in under a second. So he was literally flying through the air when most of those shots were fired. 

So, I don't think the number of shots adds up to much.  

COOPER: Captain Johnson, if Rittenhouse is acquitted, do you think law enforcement should be concerned about more armed people showing up to future, you know, events or demonstrations that they think may turn into violence? 

RON JOHNSON, FORMER CAPTAIN, MISSOURI HIGHWAY PATROL: I think we'll have to put some rules in place and we will have to talk with our politicians and put some laws in place. 

We ran into this in 2014. We had a right-wing group that came out there armed with weapons, and it was unnecessary, and it actually was inflammatory toward bringing peace to the protests. 

COOPER: Judge Gertner, I mean, this boiling down between provocation and self-defense, I'm still confused by this. I mean, just because he is there with a gun and has no business being there. He's not trained. He's just a guy who wanted to be there and clearly enjoyed being there, you know, high fiving the – or at least waving to the police. And, you know, he certainly seemed to take some encouragement from the other people he was around. But just because he is there – and maybe it is provocative to some people – does that justify shooting three people? 

GERTNER: Well, no. I mean, the point of the provocation, I think, it was more than whether Rosenbaum saw the gun. I mean, the notion was that this kid is walking around with an AR-15. The prosecution has to walking a very thin line, because there are a lot of people who thought that well, you know, he has a right to do that. So what's the point? 

But certainly, the testimony had been that he had gone from protecting property to suddenly walking in the middle of the street, and it was inconsistent with what he said he was doing. So, he had put himself in a situation where he was provocative. And the argument at that point is that he then loses his right to self-defense. 

I think the more substantial argument will be, whether or not he – well, you know, with respect to one of the people he shot, he was hit with a skateboard. A skateboard and AR-15. That's not – he is not matching the force that he is receiving with the same amount of force. 

And with respect to Rosenbaum, there was great – there was testimony and the prosecutor went on and on about it – about Rosenbaum's height, that, you know, he seemed like a crazy person and he was unarmed. 

So, I mean, I think, it really depends upon whether the jury walks away with “scared kid, chaotic night, he did what he had to do,” or he walks away with an "agent provocateur,” who was essentially, you know, inserting himself in a situation in which he didn't belong. 

COOPER: Paul, though, someone can look at, you know, someone running full force at somebody on the ground with a skateboard and swinging at their head as a potentially – I mean, that's potentially lethal, isn't it? 

CALLAN: Yes, it is potentially lethal, because remember, he is not hitting him with the broad side of the skateboard, he was using the skinny side. It was almost like a knife hitting his neck, and he was on the ground. And there were other members of the crowd sort of coming in close to him at that period of time. And all of that seemed to add up to a very, very serious threat. 

The thing that impressed me more than anything else during the defense presentation, the final presentation, when they slowed down the film. Of course, you see how the film, depending upon how you slow it down, depicts very, very different things. 

But every time he fired at a person, that person was approaching him and aggressively approaching him. He didn't fire at anybody else who was just standing around or who backed off. So, it looked like he was evaluating a threat before he fired. 

So, I think when the jury steps back and looks at those, all of those filmed encounters, that there is adequate ground for a not guilty finding. 

Now, bear in mind, listen, he is a vigilante and if you come into this case, saying, “we have to send a message that we're not going to tolerate this kind of behavior,” he loses, and he'll go to jail. But juries aren't supposed to do that. They're supposed to look at each encounter and decide whether self-defense occurred and a legitimate self-defense occurred. 

So, we'll have to see how the jury reacts to the evidence. 

COOPER: Captain Johnson, you know, when you've seen folks show up with an agenda and a weapon to a demonstration, what is the – what usually happens? I mean, you've said it's caused tensions in the past.  

JOHNSON: Well, you’re trying to separate them from the crowd. And I think that's why it is important when we have these protests that law enforcement embeds himself within the protests, not only to engage with the protesters, but when they see subjects like this, who are interjecting themselves inappropriately, that they can remove them from the situation. 

COOPER: And Captain Johnson, are you concerned about, you know, unrest or demonstrations when this verdict comes down?  

JOHNSON: I think there, I think they're preparing for that. I think depending on what the verdict is, I think we could see some of our protesters take the streets. Because many of those people were out there for change, their right to protest, and speak their voice. And so I think we will see some. I don't know if we'll see it across our country like we've seen in the past with some other protests. 

COOPER: Ron Johnson, I appreciate you being with us. Judge Gertner, thank you so much. Paul Callan, as well.