November 16, 2021 

Read a transcript of the segment below.

ANDERSON COOPER: Joining us now, CNN legal analyst and former Federal prosecutor, Laura Coates; and former Federal judge, Nancy Gertner. 

Judge Gertner, what do you make of the jury asking for extra copies of the instructions? Is that common in deliberations? 

NANCY GERTNER, FORMER FEDERAL JUDGE: Well, they are very complicated instructions. The Judge acknowledged that. There were multiple charges per person who was shot, and lesser included offenses. So, the asking for multiple copies only suggests that sometimes -- sometimes, I would see jurors' notes after deliberations and they will have written on the jury instructions that I had distributed so that partly it's just a way of recording what they are thinking. I don't think you take any significance from it, except they are doing their job, or trying to at least. 

COOPER: And, Laura, Kyle Rittenhouse chose the final jurors by lottery today, basically selecting six numbers from a batch of 18 in a tumbler kind of device to kind of like what you would see in a raffle drawing. Is that something you've seen done before? I have never seen that. 

LAURA COATES, CNN SENIOR LEGAL ANALYST: No, it's very odd to have that done. Normally, you pick the alternate numbers at least beforehand so that you know going in perhaps -- not the actual jurors, but the parties know. But the idea of having him have a hand in it is not the oddity, it was the sort of bingo tumbler. But for the reasons that Sara explained, the idea of being the defendant playing a role in the type of jurors in this case, they are often a part, even though a passive one, of the voir dire process giving their input because they can actually do so. But having the bingo sort of tumbler, pulling out the names, that's very, very odd. But again, ultimately, it is about having those alternate jurors available in the event they are called upon to try to deliberate on this case. 

COOPER: And, Judge Gertner, the Judge last night before he sent the jury home said that sympathy can't play a part in their decision. In your experience, how tough is it for juries to try to put those feelings aside and however that may influence them one way or another? 

GERTNER: That's very -- that's very difficult. You know, it's interesting, we choose jurors precisely -- we choose jury trials precisely because we want the commonsense, empathic decision-making of a jury as opposed to the more formal decision making of a Judge. 

So, I mean, it seems to me what you are really saying is look at the evidence. Try to -- you know, look at the evidence. Look at the law. Try to match one to the other and don't be swayed by your gut. It's very difficult to tell a jury not to be swayed by their gut since that's, to some degree, what lay jury decision-making is all about. 

COOPER: Laura, the longer the jury deliberates in a case like that, does that usually favor one side over the other? 

COATES: Not necessarily. I mean, the jury instructions were very convoluted. The Judge ad libbed quite a bit, which is irritating for the prosecution and defense because you actually go beforehand, and you work together to try to actually come up with a streamlined, direct way to present to the jury. You don't want them to be bogged down prior to your closing argument. You want them fresh and top of mind. But the idea of going through the motions and talking about it added some of the irritation here. But ultimately, this case does come down to the jury instructions. The ones that were offered here in two main categories. One, the idea about provocation. Very important, because if they find that Kyle Rittenhouse provoked any of the aggression, they don't end the inquiry there. They can actually go beyond, according to the jury instruction, and essentially say, well, look, did he try to exhaust all means to escape? Was he reasonably in fear for his life for the retaliatory attack that came his way? They have to go through that. 

Also, the idea of self-defense. Kind of like the cases involving an officer-involved altercation, the idea of looking at it through the eyes of the reasonable person of ordinary intelligence that would be Kyle Rittenhouse, not the juror through hindsight. 

And so, all of these things are very precise as it relates to each of the victims and they have to be very cognizant of what the jury instructions say because they might be quite counterintuitive to what you would normally think if you were just coming to this case as a layman. 

COOPER: Laura Coates, Judge Nancy Gertner, I really appreciate it. Thank you.