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Nov. 17, 2021 - Viva & Barnes
29:00
Rittenhouse RECAP - Jury Deliberations, Mistrial & MORE! Viva & Barnes LIVE
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We're live, people.
We're live, and what a day.
Who would have ever thunk you would have 113,000 people watching a live stream of a trial with live commentary by a panel of lawyers, an invoice of lawyers?
Who would have ever thought that justice and law itself would acquire...
I think we're at mainstream levels of interest.
I mean...
When Reketa has more people watching than PBS, when Crowder and Reketa combined have more than PBS, Fox News combined, we are reaching mainstream levels of interest in the law and the transparency that that doesn't just entail, but that it imposes on the process itself.
Hundreds of thousands of people are watching this.
I think Reketa's stream yesterday, which if you can imagine was nine hours of nothing because it was deliberations yesterday with minimal actual aspects of legal interest.
That stream yesterday has a million plus views now.
That is a million, assuming how it works, I'm assuming it's a million, what do they call them?
You know, distinct users or whatever, even if it's less.
A million people.
Have now watched this trial.
A stream of lawyers talking about the trial when nothing was actually happening in the trial itself.
Volume too low?
Okay, hold up.
How long has that been going on for people?
You see what happens?
How do I...
Why can I not adjust my own volume?
And why is my dog eating something behind me?
Audio?
Oh, there we go.
Okay, sorry, peeps.
Here we go.
Let's bring it up to...
I'll bring up the 75, a nice round number.
Alright, sorry about that.
A million people...
What are you eating?
What are you eating?
Don't eat that!
Okay, dogs eating paper.
Okay, well tell me if the volume is too high.
This is hard evidence that he was eating paper.
What were you doing?
I see.
Go back and do it.
A million people watched a stream of lawyers talking about the legal process and it's a thing of beauty.
And today, And today, there was some serious stuff happening.
Serious stuff.
We were scheduled to have a sidebar with George Gammon.
And the problem is, it would not be fair to a sidebar guest to try and host a sidebar today when this is going on.
I mean, it would be like going to a Rage Against the Machine concert and trying to get somebody to listen to the latest Angels and Airways release.
Both amazing bands, but one is going on right now and people need clarity on it.
So let's do first things first.
A couple of chats so I don't have to...
Shinobi Assault says, I don't have a lot of funds and I super chat to help Kyle.
Well, look, lawyers cannot reach out to represented clients.
It's not clear who is contacting with Kyle, whatever, but I think some of the...
Some of the information online is making its way through to the team.
OJ or Zimmerman trial affected this much interest.
I mean, I don't know.
I don't know how you measured it back in the day.
And they didn't air it 24. You know, they didn't air the entire thing.
Maybe they did air it the entire day and you would tune in and out of it.
I lived through the OJ trial, but I was 13 years old, maybe 14. I remember people waiting on the verdict, but I don't remember people watching the day in and day out of it because, man.
I just can't imagine that there was this level of interest in the OJ trial, although it must have been the most watched trial of the time.
Zimmerman, no.
Zimmerman, even I was relatively conscious at the time and didn't even know if they were broadcasting it live the way they're doing now, but there was definitely not this level of interest in Zimmerman.
But this is a level of interest that is gaining its own momentum and it's becoming...
Like gravity.
You know, the bigger it gets, the more it attracts quicker because the more people it's reaching and spreading out to.
Now he's eating.
Do it.
Stop it.
So it's...
But it's glorious to watch.
It's glorious to watch because there are people now who realize you can get...
Maybe it's not totally neutral because I think right now we all have our opinions on the matter.
I don't think any of our opinions are affected by our politics.
And we are not propagandist entities because we are subject to the scrutiny, the relentless scrutiny of our viewers.
We are definitely independent and more objective assessments than what you get on WAPO, MSNBC, NPR, and whatever.
David Hartman says, Viva, your videos are informative, interesting.
You make the most detailed minutiae of the law exciting because I understand.
Thank you very much.
I put out a vlog today on the motion to dismiss with prejudice.
Based on the information that was available when I made it this morning, information which evolved throughout the day.
We're going to talk about it tonight.
F for Viva Sound Levels, but he fixed it.
Thank you.
And by the way, like a boss.
So this is, this is, okay.
So standard disclaimers, YouTube takes 30% to Super Chats.
So if that bothers you...
And I can understand it might bother some.
You could support us on Rumble, where we are simultaneously streaming.
Rumble has what they call Rumble Rants, which is basically super chat, except Rumble only takes 20%.
And you could feel better supporting a company like Rumble, which is more free-speech-oriented and less censorship-driven.
You know, like taking down a stream through some internal glitch while the stream was on its way to gaining 100,000 viewers, where Kate is on Monday.
And another amazing thing, actually, about Rumble, I'm not sponsored by Rumble, I just like the platform and I like the company.
I'm not sponsored by Locals, but we have a page on Locals, vivabarnslaw.locals.com, which Barnes is going to say a couple times as we get going.
Subsequent to their merger now, and I think my channel on Rumble is the first one to have this option, that there's a direct link to Locals via my Rumble account.
I mean, it facilitates finding us through Rumble.
It facilitates supporting us on Rumble, if that's what you want to do.
But it's the trial, and it's the integration of the two websites now, and we're going to see how it works.
Did someone just say volume not great?
Volume not great, make it higher.
Can you make it?
Well, I'll wait until Barnes gets in, and we'll see how this goes.
Okay, so that's it for the Super Chats.
I'm going to try to bring them up, but we're at this insane level where I can't bring them up.
And if you're going to be miffed, if I don't bring up your super chat, don't do it.
I don't like people feeling miffed, grifted, show whatever it is.
No legal advice, no medical advice, no undermining election fortification advice.
And with that said, let's get this started because we got what to talk about tonight.
Robert, how goes the battle?
Good, good.
Okay, now let's just let the chat tell us if our respective audio levels are good compared to one another.
All right.
You've had your chance in the audience.
Okay, we'll see if we get some comments in there.
Robert, where do we start?
Where do we start with summarizing the day?
Now, I take for granted there's going to be some overlap with Rakata's stream, but then I also take for granted there's a lot of people who don't have eight hours to watch a day-long stream of the trial.
So, I mean, let's start, I guess, with the initial news of the day before the developing news.
The defense filed a motion to dismiss, sorry, not a motion to dismiss, a motion for mistrial with prejudice.
Anyone who watched the video knows what that is, but explain to the crowd what is a motion for mistrial with prejudice.
Yeah, so I mean, they ended up filing both.
They did a written motion for mistrial with prejudice.
Later in the day, they moved orally for a motion for mistrial without prejudice.
So the difference between the two is a, uh, mistrial with prejudice, any dismissal with prejudice, uh, whether it's labeled a mistrial or dismissal is a bars subsequent prosecution because it violates double jeopardy, a mistrial without prejudice, uh,
Now, as far as I understood, or I think I learned today, there can be a mistrial without prejudice, meaning Kyle can be retried, but certain limitations on a new trial can be placed by the judge, or is that not possible at all?
Not really, no.
And then could you have dismissal on certain charges with prejudice but not on others?
Could you have a partial mistrial with prejudice?
The judge even suggested that it was possible to declare a mistrial with or, well, he was even suggesting mistrial without prejudice to some charges and not to all.
The idea being that I don't think the judge has fully fleshed out that the provocation theory was applied to all of the charges.
Even though the provocation purportedly only happened to Rosenbaum.
Because if Kyle does not have self-defense as to Rosenbaum, then there's less clarity as there's self-defense as to other individuals, other attackers.
And so the judge never really fleshed that out.
And honestly, the jury instructions don't really flesh that out.
But the judge seemed to assume...
That if the mistrial was about the video evidence, the drone video evidence of the quality thereof not being produced to the defense, that that would only apply to the Rosenbaum charge.
It's like, no, it would apply to all of them because he didn't limit his provocation instruction to just the Rosenbaum charge.
So, as Dershowitz noted, this was not the best given jury instructions ever given by a long mile.
You know what?
Remind me to get back to some jury instructions questions because we studied in law school, but I've never worked with a jury because we don't have civil matters that are judged by jury anymore in Canada, and I've never done criminal.
But remind me to get back...
For civil, none at all.
And I've never done criminal with a jury.
I wanted to sit on the jury.
Like, I got jury notice.
I was like, booyah, I'm going to do this.
Then I checked the back of it and said lawyers can't actually be jury members.
So I was kicked off.
Yep.
I was kicked off before I could even be on, and I wanted to be on.
The motion to dismiss, the motion for mistrial itself, I mean, I presume you read it.
It was relatively short.
The written one, yeah.
Yeah.
Was that the first motion for a retrial that was filed in this case in writing?
I guess so.
It appears so.
And it's easy to be critical, and I'll be critical to some extent, drafting stylistically.
Substantively, what did you think about that motion for mistrial?
Glad they filed it.
Could have been much better.
Can they amend it to add more substantive allegations to flesh it out as they wish, or do they have a certain limitation on how many times they can amend?
No, no.
They can keep moving for mistrial until the jury returns a verdict.
And then afterwards, they can ask for a new trial on the same grounds they ask for a mistrial.
The appellate difference is a motion for mistrial with prejudice granted while Jeopardy is outstanding before the jury has returned a verdict.
There's arguments about whether that should be or is appealable.
In the federal system, if a judge grants a mistrial with prejudice or a directed verdict prior, after Jeopardy is attached, after the jury has been impaneled, but before a verdict is returned, is not appealable.
It's not clear whether that's appealable or should be in Wisconsin.
But if you grant the motion for mistrial, either with or without prejudice, after I'm not making those jokes, people.
Okay, so the motion for mistrial, they raised the obvious examples that we've seen for those who have been watching or have not been watching.
At one point, Binger fundamentally violated one of the most basic rules, the Fifth Amendment right to remain silent, by questioning Kyle in front of the jury on his silence, leading to having viewed all of the witnesses during the trial and then speaking for the first time.
The judge kicked the jury out of the room and admonished Binger, who then, you know, two minutes later, five minutes later, whatever, when the jury came back in...
Then proceeded to ask Kyle questions on evidence that the judge had ruled would not be admissible.
The other acts evidence of what Kyle allegedly said in his card.
Don't even need to get into it.
So he had those two immediate...
One was a constitutional violation.
One was a violation of a court order that said, you're not asking any questions on the other acts evidence.
And Binger goes and does it in front of the jury without asking for permission, resubmitting whatever.
And the judge said, you know, if you're not over the line, you're close to it.
What were the other violations that Binger did?
Oh, then the big new issue is the disclosure of the drone footage or the higher quality video that was in the possession of the prosecution, but they didn't communicate it to the defendants.
So not only did they communicate certain evidence...
Late in the game.
Magically discovered evidence that was submitted to them by an unnamed individual who showed up to the police station to give them this drone footage.
So we don't know the provenance of the drone footage itself, which we'll get into.
But they then communicated in a tardy manner to the defendants after evidence is closed, basically.
They've given them this low-quality version of this footage, which they are now effectively relying on for the provocation response to the self-defense privilege.
So those are the three elements as of today for the motion for a mistrial.
I mean, what does the judge do time-wise?
Because the jury's deliberating now.
What is the judge waiting on?
And if he sets a time frame for a response from the prosecution, you know, unless deliberations take two weeks to a month, he's going to run out the clock through the jury before he adjudicates on the motion to dismiss.
No?
Yeah.
Made clear that's what he's going to do anyway.
Okay.
So the motion for mistrial.
They can amend it and add details.
Do we know what the time frame is for the prosecution to respond?
Judge didn't give any.
Okay.
And you look a little irritated, Robert.
I mean, what's your feeling on what's happening?
And especially the developments of today.
Sure.
So, I mean, my view is this is the product of poor jury selection, failing to do jury selection, and that was predictable before trial, and that reflects three or four rogue runaway jurors being on the jury, holding up the jury from acquitting.
I think that a random jury, that's what a random jury in Kenosha produced.
It produced a mistrial.
That's what the...
I mean, we were the only ones, to my knowledge, to poll the Kenosha community.
Richard Barris, People's Pundit Daily, you know, polled it extensively to figure out what was the mindset and mentality of jurors in Kenosha.
What were the indicias you could use to determine whether they presumed Kyle guilty or not?
By law, you have to presume a defendant innocent.
So anybody presumed him guilty should not be on the jury.
But you need to do probing voidire, probing jury selection.
Not only, you get their names and information a week in advance in this case.
And so you can do a full deep dive on their social media.
Find out everything about them.
There were certain demographic associations.
There were certain political affiliations associated with being biased and presuming Kyle guilty.
And then certain beliefs.
And certain life experiences and certain attitudinal biases and certain reliance on certain media sources.
And to my knowledge, most of that was not inquired into at all in jury selection.
And it's apparent they didn't do any meaningful deep dive at all in data, even though it was made freely and fully available to them.
And that was their choice.
You know, some people think it's Kyle's choice.
He's 18 years old.
He has no idea how jury selection works.
He's going to defer to his lead defense lawyers, Mark Richards.
And it was Mark Richards who said no.
And not only said no, he said he wouldn't allow anyone to even know, to even be able to help, to even be able to contribute at all.
Can't come into the courtroom during jury selection.
Won't allow you to even know the names to look them up and tell us what you have.
That's what he did.
And that was legal malpractice, in my view.
It's been, you know, it's been a slow awakening in the court system.
They think juries, a lot of judges, you know, pick juries by roll the dice effectively.
And they assume prejudice doesn't exist, that this is not the modern world anymore.
The social media, I mean, this became clear in the Chauvin case.
I said before the Chauvin case, I didn't think historically there's at least some jurors who have not been exposed to pretrial prejudice, even in high profile cases.
Social media has changed that.
Everybody now has been impacted.
Everybody.
Every single juror raised their hand, perspective, apparently, according to what we heard and listened to and saw, when the judge asked whether they knew about the case, had heard about the case, had seen video about the case.
And again, the video they'd seen was misleading video, media video.
And then there were certain ancestral backgrounds, certain socioeconomic backgrounds.
What it all corresponds to is if you trust the institutional media, you were prejudiced against Kyle.
Not only that, their prejudice was intense and deeply held.
It was prejudiced that you were not going to budge in jury trial.
And there was a lot of naivete by the defense team about that.
And even when they were given data and information, they ignored it.
Not only that, one of the great concerns was we found about 80% of Kenosha jurors were concerned that if they were on the jury...
That what the outcome would be if they voted for acquittals.
And, you know, that's a problem.
That's a problem that has to be dealt with in jury selection.
Frankly, it's a group that should never be on the jury.
I mean, I was going to ask, Robert, I was going to ask if they even asked that question, but given the duration of jury selection, I'm taking for granted that specific question was, if asked, barely fleshed out at all?
Yeah, I mean, jurors volunteered the information is what happened.
And then there was pushback against them volunteering that information.
So, in other words, saying that shouldn't be a problem.
And so that's why we're here.
So Kyle is, I think, put unnecessarily and needlessly at risk by lawyers who decided not to do real jury selection.
Now, the second mistake, in my view, was not prepping the judge for this fact.
Because I think that the reason why the judge, the judge thinks an acquittal.
We'll bail him out of any consequential decision in political controversy.
What happens if there are convictions?
Does anybody think this judge is going to step up to the plate then and now dismiss?
That's at risk now.
And people were saying, you know, the judge is saving it to save Kyle.
It's a win-win.
If the jury acquits, then the judge doesn't have to make a hard decision.
If the jury convicts, then the judge can save Kyle.
But by virtue of the fact that the judge is holding off, intervening in any way whatsoever with the outcome.
Do you think the judge is going to effectively overturn an outcome of conviction by granting the mistrial with prejudice or without prejudice?
Maybe without prejudice, especially if this external and clearly visible pressure on the jury and the courthouse itself could be argued to have an impact.
But yeah, I mean, I think you made that point during Ricada's dream today.
Far more likely that the judge is trying to save, not save his own butt in a cynical sense, but just not make a decision.
Hope for an acquittal, but if there's a conviction, he's not going to necessarily be inclined to intervene.
You can't trust that at all.
You can't trust that at all.
Because again, now if this judge knew about the pretrial prejudice and its impact on the jury, then he would be more eager to step in now.
Because he's hoping an acquittal saves him.
He's assuming a conviction can't happen.
And in part, I think because of his own opinions about the case.
And in part, I believe because the defense lawyers, that's what they've been signaling to him.
They haven't been, they didn't scream for extensive jury selection.
They didn't ask a lot of questions during jury selection themselves.
They didn't tell him at all about how much the pretrial prejudice had hurt the jury pool.
In fact, their behavior had been quite the opposite direction.
And so, you know, this judge could be sitting there saying, ah, there's a few holdouts, they'll fall, no problem.
I won't ever have to face this.
And, you know, that's the problem.
Do you get the impression, like, I say strategic mistakes are that this judge continually or repeatedly references reading the news and he responds in the court to what he's reading in the news, which I think is a mistake in and of itself.
But to me, it also is an indication that this is the first time he's received such public scrutiny or, you know, commentary from the media during a trial because...
I don't know that he appreciated it would be this high profile a case.
I don't think anybody ever appreciated it.
You'd have 100,000 people watching this live on the internet.
But I don't think he fully appreciated that at any point.
And now he's seeing...
You call it scrutiny?
Call it evisceration from a media that has decided he's not necessarily an ally anymore.
And he seems to be unable to deal with it.
But it's putting him in a position now where he's either afraid or reluctant to intervene in any meaningful way because of the Right, and that's the problem.
I think that he may grant a mistrial without prejudice if the jury hangs.
So that option is still on the table.
But because they didn't push hard enough, the other thing is like, I've filed mistrial motions before, and they're broad, long, and extensive, and detailed.
You know, you cite the law, you find analogous cases where other courts have done what you're requesting they do on comparable facts, and then you cite all of the evidence.
I mean, it's not just what he's done in parts of the issues they cite.
The prosecutor is also, you know, he's been lying about Kyle and created the pretrial prejudice with defamatory statements using the cover of courtroom privilege to make the false statements in the guise of bail issues and the guise of evidence issues and the guise of pretrial issues.
That was level one of his misconduct.
Level two is withholding documents, withholding information, delaying disclosure of information all the way through, including the FBI video and the HD video of the FBI that magically went missing.
That purportedly didn't know how it went missing.
And then during trial, it came out that he had attempted to suborn perjury.
I believe he did suborn perjury with certain witness testimony, that he had effectively obstructed justice, in my view, his manipulation of criminal charges of other co-defendants, hid the fact that he knew who Jump Kick Man was, that kept Jump Kick Man from testifying effectively by not granting him immunity and having criminal charges stay outstanding against him without disclosing the information and the details about Jump Kick Man.
And then engaged in Fifth Amendment violations and clear pretrial court orders during his cross-examination of Kyle, on top of making repeated misstatements of fact or misstatements of law, both in his opening statement and particularly and perniciously in his closing argument.
And then now this last piece of evidence that they withheld critical essential material evidence appeared to have doctored the timeline to make it look like they weren't responsible or accountable for the failure to produce the HD version of the video.
And so it's just been item after item after item after item.
But because Richards didn't want anything negative said about Binger before trial, didn't want investigations into Binger before trial, didn't want any of that revealed in the court of public opinion or the courts of law, is partially why we're here.
I mean, Kyle is at risk solely due to the failures of his defense team, which is in part the product of David Hancock, the security guy who's basically hijacked the defense.
I want to come back to so many things you mentioned.
I'm just going to bring this up.
Is CCAP wrong stating Richards filed motion with prejudice?
The mistrial with prejudice?
They filed it on Monday.
That is correct, November 15th.
CCAP, I have to just get the...
It's the Circuit Court Access Program of Wisconsin.
It's no longer called that.
Apparently that's the older term, but whatever.
That's where you find the filings.
The written motion for mistrial that was filed is with prejudice.
Which brings me to the question now, Robert.
Today, Shira Fisi in court.
He volunteers for a motion for mistrial without prejudice.
My question at the time watching this, does this trump the motion for mistrial with prejudice that they filed?
Is he effectively renouncing to that aspect of the motion with this verbal motion?
If not, okay, but then why on earth does he soften his position in what he's pursuing to go after a motion for mistrial without prejudice, which in theory, I presume, had Krauss...
Accepted at the time.
They could have accepted.
He could have accepted on the bench right there, and then it would have been a mistrial without prejudice?
Yes, that's correct.
Okay, so now I'm thinking Krause just blew it by not accepting that offer.
I would have done that in a heartbeat if I were the prosecution.
But why did he do it?
Why did he do it?
We don't know.
And so how usually that's interpreted is two different ways.
A judge may interpret that, that you're just preserving appellate review.
That you don't really want it to be granted, but you want it to be on paper so that if something goes sideways, they have an additional appellate issue.
The other possibilities the judge saw, I do think that's the way the judge saw it.
The other possibility is that he really wanted the mistrial, and usually that's interpreted as the defense thinking they're going to get an adverse verdict.
That's usually the assumption.
The prosecutor not going along with it.
Suggests the prosecutor thinks now they could get a verdict in their favor.
Now, I think they're both misreading the jury.
My view is that convictions are still very unlikely on any of the top three counts, any homicide count.
And reckless endangerment doesn't likely pose major sentencing risk, given most people's interpretations on the ground, including longstanding journalists in the area.
Of the court's predilections on this case for sentencing on reckless endangerment.
But that would be the common interpretation is that you as a defense lawyer only ask for a mistrial without prejudice if you think the jury is likely to rule against you.
You never ask for it if you think the jury is about to rule your way.
I mean, I just let the jokes begin.
I could not believe he made the offer because if I'm the prosecution...
First of all...
I'm a cynical man now.
I think I might have taken a black pill, Robert.
I'm thinking if I'm Sheriff Fisi and Richards and I don't think that Rittenhouse has the finances for a retrial, no way do I ever pursue that as an option.
I would accept it as the worst outcome, but I would pursue with prejudice tooth and nail.
Part of me feels like they might look at Kyle Rittenhouse like something of an ATM, knowing that, hey...
So many people are now emotionally invested in this.
If it's a retrial without prejudice or a mistrial without prejudice, we'll be able to raise a million bucks for a second trial.
Why not?
If I'm the prosecution, I'm saying, I don't know how they refused it.
I would have accepted it on the spot.
We'll learn from our mistakes.
We'll soften some of our strategic mistakes.
We'll pad some more of the witnesses to fill in the gaps of our weaknesses.
I would have accepted it on the spot.
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