November 12, 2021

Read a transcript of the segment below.

ANDERSON COOPER: Joining us now, CNN legal analyst, Paul Callan, who's experienced on both the criminal defense and prosecution sides. Also Harvard Law School Senior Lecturer and former federal judge, Nancy Gertner. 

Judge Gertner, what do you make of the jury possibly considering lesser charges? What could that mean?  

NANCY GERTNER, FMR FEDERAL JUDGE: Well, I mean, it actually could enhance the possibility of a conviction. Because the jury may feel that the higher charge is unlikely, and they don't want to acquit, and so you give them a third option. A third option, I might add – the more serious charges are life charges, life imprisonment charges. If he's found guilty of the lesser charges, it would be a term of years, and this judge would be the sentencer – and from what we have seen, not a particularly harsh sentencer when it comes to Rittenhouse. But that's a prediction. 

COOPER: Paul, what would the lesser charges possibly be? 

PAUL CALLAN, CNN LEGAL ANALYST: Well, you have charges now, which are – there several first-degree charges: first-degree reckless homicide, first-degree intentional homicide – those can be knocked down one notch to second-degree or lower, depending upon what the judge decides to do. And that would carry a lesser sentence. 

And a lot of times, Anderson, the jury gets into a heated discussion about whether he's guilty or not guilty of intentional conduct. And they compromise on a lesser charge when they have one available. If they don't have one available, it's either guilty of one of the higher charges or not guilty. So it gives the jurors more options to consider during jury deliberation. 

COOPER: Judge Gertner, we've sort of discussed this before. But one of the things that confuses me about this situation is, if you go to some place you have no business being and with a weapon, and you're putting yourself into a situation – which is probably just not a wise idea for this young man to have done – and you end up killing somebody, you say in self defense, is the fact that you have put yourself in this situation, brought a weapon there – does that matter? Or is all that matters what the person feels in the moment that they are feeling threatened? 

GERTNER: No, the judge is going to give a provocation instruction, which means it – the way it works is a person who engages in unlawful conduct likely to provoke and does provoke cannot claim self-defense. There's an exception to that, which is if the attack you've provoked reasonably puts you in imminent danger of harm or death. So the fact that the judge is going to give a provocation instruction certainly means – makes the bar higher for the defense, because they have to prove more – they don't have to prove anything, but that is to say that they clearly have to deal with a different kind of instruction. 

If you provoke, you actually can't claim self-defense, unless the attack that you provoked puts your own life in danger. And so that's an instruction – I think it's an instruction the judge has to give. But that's essentially going to be the prosecutor's argument: he put himself in a position of danger and then reacted. And that reaction was caused by his actions, as opposed to the victims of this. 

COOPER: Paul, what do you think of that argument? 

CALLAN: Well, I think, Anderson, what complicates this argument is that in, I mean, a lot of people say, hey, what was he doing walking around with an AR-15 style gun, and if he wasn't there that night with that gun, nobody would have been killed, all right, because nobody was killed in these demonstrations and protests. But Wisconsin is a state that permits open carry of weapons. And so, the defense of course, is going to be well, everybody there who had a – an AR-15, or at least most of them, were acting in a completely legal way. And he wasn't attacked because he was underage and carrying an AR-15. 

And that the provocation law really means, if you start an attack – for instance in other states, it's called if you're the initial aggressor, you start the attack on somebody else, then you don't have the right to claim self-defense. But of course, Rittenhouse here is claiming, “I didn't attack anybody. I was walking along with the AR-15 style rifle. But Rosenbaum threatened to kill me twice, and then I was jumped. And essentially, I had no choice.” 

So, the prosecution will be helped by this provocation charge, but I don't know that they're going to win on it. But they do have one ace in the hole, Anderson, and that's he's charged with carrying a dangerous weapon under the age of 18. And I don't know how he's going to get around that. But that's a misdemeanor charge that I think the jury will absolutely have to find him guilty of, regardless of the rest of the charges. 

COOPER: Judge Gertner, what do you expect to hear from the prosecution next week? 

GERTNER: Well, I mean, I think that they're going to talk about the fact that he was illegally carrying a weapon because he was 17. And the standard is likely to provoke. And walking around the streets of Kenosha with an AR-15, where he was walking, when he had no business being there, he was talking about basically, protecting property, was likely to provoke. 

In addition, the prosecutor, you know, this is for the jury to decide – there's a lot of testimony about reaching for Rittenhouse's gun. Very interesting – you could reach for someone's gun in the hopes of disarming this young man or for the hope in, you know, in the possibility of actually shooting him. And the prosecutor is going to argue that these people – perhaps not Rosenbaum, but certainly the others, were trying to disarm him. And that's when he shot them. 

So I mean, I think it's going to be very interesting. And it's also going to be interesting how much, in the closing argument, the prosecutor is going to be allowed, you know, to talk about Rittenhouse's proclivities, which the judge has kept him from – you know, what Rittenhouse would thought he was doing when he came to this demonstration. There's been a lot of testimony about what the demonstrators thought they were doing. That's been an unequal aspect of this trial. 

COOPER: Judge Nancy Gertner, Paul Callen, appreciate it. Thank you.