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Brian Lehrer: Brian Lehrer on WNYC. We'll check in again now on some of the issues being raised in the murder trials of Kyle Rittenhouse in Wisconsin who killed two people in the Kenosha, Wisconsin riots last year, the only deaths on those chaotic nights, according to the reporting I've seen, and injured another one, and the three men accused of murdering unarmed 25-year-old jogger Ahmaud Arbery in Georgia. The defendants are claiming self-defense in both trials. The question, "Did they provoke those confrontations?' is central to both.

Among the new developments, one of the men accused of murdering Arbery took the stand in his own defense-- very surprising to some analysts. The Rittenhouse defense is asking for a mistrial again, second time. This time because of the late introduction of a video that's not good for their client, that seems to show Rittenhouse pointing his AR-15 at people before anyone physically confronted him. Back with us for this is Elie Mystal, justice editor for The Nation. Hi, Elie, thanks for coming back on the show.

Elie Mystal: Good morning, Brian. How are you?

Brian: I'm okay. Before we even get to the evidence and the arguments, are these two excruciating cases? Because I never want the legal analysis to get detached from the human reality of what people are going through. Is it difficult for even you to watch in close detail with the immediate issues, but also all the echoes of history and the big picture of things?

Elie: Absolutely Brian, and thank you for asking actually. No, they're hard to watch. The Arbery thing, that was a lynching. We got defense lawyers out here complaining about Black pastors as he's defending his clients who lynched a man, a video that I've had to see maybe 50 times just as part of the analysis and that's terrible. The Rittenhouse house thing is a little different because-- I've said this actually online, one of my favorite series is the BBC mini-series I, Claudius. I, Claudius has a line where it says, "Let all the poison that lurks in the mud, hatch out." Watching Bruce Schroeder who I came on your show a couple of weeks ago and told you what he was going to do.

Brian: He's the judge, right?

Elie: Right, the judge in the Rittenhouse trial. I told you how bias he was just based off of his pretrial motions. Watching him basically beclown himself over the course of this trial, I've watched it with a lot of anger and rage, but also with, see how they do us. The bias of this judge is the bias of so many judges in so many trials, and it's just interesting that America is getting to see what it actually looks like up close one of these days.

Brian: Do you want to talk about that particular confrontation between the judge and the prosecutor that a lot of our listeners probably have seen on TV. They have video and microphones in the courtroom in Wisconsin and Georgia which we don't have here in New York, which is why we never see any of our local trials like this. It is a spectacle for people to see on cable TV.

The prosecutor was apparently trying to establish that Rittenhouse might have a propensity to do something like use his AR-15 in defense, merely of property, which was what was being attacked there, not human life. The judge said that was out of bounds, and the judge really reamed him for doing something that the judge had previously said was out of bounds. For you as a legal analyst, what was that about?

Elie: At 30,000 feet, what's happening here and why I'm saying that the judge has been so biased during this case is that the judge is trying to prevent the prosecution from making its best case. The defense wants to argue, "Just look at the 5 seconds before Rittenhouse shot those people, it's clearly self-defense." The prosecution says, "No, no, no. Don't just look at those 5 seconds, look at how Rittenhouse initiated the entire conflict and then lied about what happened directly after." You have to look at the totality of the circumstances and the judge keeps preventing the prosecution from making that particular case.

At issue in the experience that you're talking about, they want to get an evidence because basically Rittenhouse had just gotten on the stand and cried. I don't want to make a determination about whether those tears were real or fake, but he cried. The prosecution wanted to impeach that crying basically by saying, "Look, he says he was so emotional about it but 5 minutes after, he was lying to the cops. 10 minutes after, he was doing this. Two weeks after, he was taking pictures with Proud Boys." They're trying to put in that evidence, but the judge had said, "No, you can't look at what he did after the shooting essentially, to understand why he did the shooting."

The prosecution was arguing that Rittenhouse opened the door to that testimony by crying and whimpering on the stand. The judge said, "No, it didn't open the door" and got very angry at it. It is not unusual for judges to get angry at lawyers during a trial. It's not unusual for judges to yell at lawyers during a trial. It's not unusual for judges to yell at lawyers during a trial while the jury is present. It is wrong, it is wrong. That's what I'm trying to get people to understand. Just because a judge does something that other judges do too sometimes, doesn't make it right. Some judges are bad judges. Bruce Schroeder in this instance, his decision to yell at the prosecution while the jury was in the room over a colorable issue of law is further evidence that he's bad at his job.

Brian: Interesting. In the Rittenhouse case, the crying-- I've watched stretches of these cases on TV. I personally thought the crying was real. I personally disagreed with some of the commentators on cable who've said, "Oh, he was doing great theater." I think he's an 18-year-old kid who maybe got in over his head and was really upset at what he wound up doing that he at least, thought was in self-defense well. What I haven't been happy with is the fact that that's what the news-- if you're not watching the trial live and seeing other things, that's all that people are seeing. Is this kid crying on the stand and they're not seeing all the evidence in the case. They're not seeing all the testimony in the case which makes it much more complex.

Elie: Brian, I totally agree with the second point about the coverage. I think the coverage and the folk-- look, the media coverage of the Rittenhouse trial has been entirely in the tank for Rittenhouse's defense. Not only have they replayed the clips of him crying over and over again, they replayed the clips of the judge shouting at the prosecution over and over again. They've replayed Kyle Rittenhouse's witnesses over and over again as opposed to the prosecution's witnesses and the prosecution's case.

Even the write-ups of the case have focused-- I saw one headline in The New York Times, the boy who wanted to be an EMT. There's no evidence that he wanted to be an EMT. He just said that he wanted to in order to justify his appearance across state lines with an AR-15. The entire coverage has been slanted towards Rittenhouse which is why people are getting one impression of what's happening at the trial as opposed to the other.

In terms of the crying stuff, I do want to push back a little bit just this far. If I was coaching him, I would have told him to cry when he cried. You will notice that that crying bit was real self-contained because the rest of his testimony was extremely well-word. He was extremely careful with his answers. At one point, the prosecution was just like, "Did you lie?" He was like, "I said that I owned an AR-15." "But you weren't allowed to own an AR-15." "Right." "So you lied." "I said what I said," basically. He never would say the word lie. He would never say certain legal touch words. It was interesting to me that he was able to maintain his composure under cross-examination so well but then didn't maintain his composure the one time where maybe I would have told him not to if I was on his side.

Brian: People will interpret that any way that it strikes them.

Elie: I totally agree with you that it doesn't matter. It doesn't actually matter in terms of what's happening in this case and how the media is covering it.

Brian: Yes. The central question then is, did he provoke the attacks that led him to then feel that his life was in danger and kill people? That's where we get to the defense's latest request for a mistrial because relatively late in the case, came this video apparently showing Rittenhouse pointing his assault weapon at people before he was attacked. That would indicate provocation. Can you characterize that video and its role in this case?

Elie: It's the prosecution's best evidence. I would argue that the prosecution's real best evidence hasn't been allowed in the courtroom. The video that Rittenhouse has two weeks before talking about shooting people, the video he has after taking pictures with white supremacists. In terms of the contours that the judge allowed into the courtroom, that is the prosecution's best evidence. That he started, he provoked the fight, that the people he shot were the proverbial good guys with a gun. That Rittenhouse was proposing a threat at that protest and they were trying to stop him from threatening people as opposed to threatening Rittenhouse himself. That's the prosecution's arguments, that's their best case. We'll see if it works.

There have been a lot of criticisms of the prosecution in this case. I don't think that all of those criticisms are fair. I don't think the prosecution has been bad. This is not an O.J. situation. I don't think the prosecution has been bad at their job. I don't think the prosecution was as prepared as it could have been for a judge to be biased against them. Prosecutors, you got to remember Brian. Most of the time, prosecutors walk in the courtroom with the judge as their advantage. Most judges are biased for the prosecution and some prosecutors tend to rely on that. If you look, however, you can compare how this prosecution has gone versus what Keith Ellison did in the Chauvin trial in Minnesota.

Brian: Again, just to remind people Keith Ellison, the attorney general of the state of Minnesota, prosecuting Derek Chauvin who the jury found murdered George Floyd. Go ahead.

Elie: He went in there with that defense lawyer energy. He had a dream team, he had experts, he had people who had worked on the defense side now helping the prosecution of Chauvin. He brought together both prosecutorial skills but also defense attorney skills and was quite literally ready for anything that a judge, whether for him or against him, could have thrown out there. That prosecution is what I was hoping for the Rittenhouse case. I haven't seen that in the Rittenhouse case but that's not to say that the prosecution is bad. They have been competent. Some of the judge has put a pretty high bar.

Brian: I guess this will be the transition from this to the McMichaels case in the killing of Ahmaud Arbery which will go to next. This is where the cases diverge. Arbery wasn't doing anything when the McMichaels confronted him. Rittenhouse, whether he was right or wrong to be there, whether he provoked people to attack him or not which is certainly a question that has to be answered, was in a violent scene. Eventually, his defense is saying the first guy he killed was apparently lunging for his gun. What do you do once you're at that point?

The second guy he killed was apparently attacking him with a skateboard. The guy he shot and wounded was apparently pointing a gun at him because the guy says Rittenhouse was an active shooter at that moment. The jury must be grappling with all these things and the fact that he was 17 years old. How do you think a jury conversation like that might be going here on day three of deliberations?

Elie: To be honest Brian, I'm a little bit surprised that the jury is still out. Watching the trial and watching the judge, I thought this would be a quick acquittal. The fact that they're still holding out makes me think that maybe we'll get a hung jury as opposed to straight acquittal. That's important because if it's a hung jury, the case can be retried. If it's a hung jury, double jeopardy doesn't attach. Double jeopardy is our constitutional rule that says you cannot be prosecuted twice for the same wrongdoing.

Double jeopardy is important because a lot of people-- You brought up in your open about how the defense asks for a mistrial, that's pretty standard defense attorneys usually ask for a mistrial. Maybe they get lucky and they get one but the real reason why you ask for a mistrial is to preserve your arguments for appeal. People need to understand. If Kyle Rittenhouse is convicted, his attorneys will appeal. If he is acquitted, the prosecution cannot appeal because double jeopardy would have attached. We don't allow prosecutors to keep trying and trying and trying until they get it right. That's a good thing by the way. That's generally a good thing, but the prosecution gets one shot at this.

If it's a hung jury, they do get to try again so that'll be interesting to watch. As this jury stays out longer, it suggests to me that there's a real split in the jury room with some people saying like, "No, he's clearly guilty" and other people saying, "No, he's clearly innocent." Do they compromise on a lesser charge? You remember there was that conversation last week about, can he be added lesser charges? Apparently, yes. Could you get a lesser charge just as a jury trying to compromise and go home? Because remember they're sequestered. They've been there for weeks. They've been away from their families and their Twitter. You might get that situation or you might just straight up hang the jury. I thought this would be back a little bit sooner so that's interesting.

As we transition to Arbery, I think one thing I don't want to leave before we go there is just when you look at the differences between the coverages of these cases, you see the problem with a judge like Schroeder, because if you think that Rittenhouse has a good claim for self-defense, and I think he has a colorable claim. I don't agree with that. I think he's wrong. I understand reasonable people can disagree about whether or not what he did was self-defense. If you think that way you should be more angry at the judge than I am because it is the judge's bias throughout the trial that's going to make this thing seem unfair regardless of the outcome. If you think that this kid should walk away free, the judge being in his corner is actually bad not for the eventual freedom but for the country to accept the verdict as just.

As we look at the Arbery trial which you will notice is that the judge has not beclowned himself. He has not made himself the story. He has not put his thumb so obviously on one side of the scale or the other. I think the judge in the Arbery case has made a bad decision. I don't agree with every decision the judge, in that case, has made but he hasn't been overtly and almost cartoonishly biased about it. One might hope at least that more people will accept the outcome of that trial regardless of how that trial goes because the hasn't been as biased.

Brian: A few more minutes with Elie Mystal, justice correspondent for The Nation, as we talk about the Rittenhouse trial and the so-called McMichael trial of the two man, father, and son, both McMichaels and a third man accused in the murder of Ahmaud Arbery. Let's talk about the McMichael case, father and son, and third man. Here's a clip of the younger McMichael, he's in his 30s, on the stand in his own defense yesterday after establishing that he was in the Coast Guard and trained in weapons use, asserting that pulling a gun on someone as he did with Arbery, could actually be seen as a form of deescalating a conflict.

Prosecutor: In your experience, can pointing a gun at somebody deescalate a situation?

Travis McMichael: Yes.

Prosecutor: How so?

Travis: If there's a threat or if you don't know what's going on in the situation and you pull a weapon on someone, from what I've learned in my training, usually that caused people to back off or to realize what's happening, compel compliance.

Brian: Compel compliance. Elie, I watched that live yesterday and could hardly believe where we're trying to go with that. What's your lawyers take if you can separate it from your head exploding?

Elie: I've got gout and a great way to cure my gout is to shoot me in the face because I'll be dead and that will cure the gout. That's literally the argument he's making. Every argument that these lynchers have made is dumb. Every single one. They argued they were making a citizen's arrest. You can't make a citizen's arrest in Georgia unless you actually witnessed the crime which they admit they didn't.

It wasn't a citizen's arrest, they were trying to make a kidnapping. They hopped in their trucks, Confederate flags emblazoned on their license plates and ran down a Black kid running. They're surprised that he kept running. I would keep running. I would hope my kids would keep running. Everybody I've ever met would've kept running in that situation. Then trying to get after cornering him with their cars and trucks, he tries to still get away and this Yahoo is saying that by pulling a gun he was trying to calm things down.

There is nothing legal about any of their arguments. What they are actually arguing to the jury, what's happening between the lines is not a legal argument. What they're saying to the jury is, "I shot this Black guy, why is that a problem? Why shouldn't I get away with that?" They are asking for essentially jury nullification of our laws against lynching. Despite all of the racism that I know exists in this country and maybe it's my own naivety and my own foolish [unintelligible 00:19:45] hopes, I cannot see these people walking free. They lynched them. It was on tape and their arguments are ridiculous. Even in front of all-white jury, I cannot see that winning, at least I hope it doesn't.

Brian: As much reason as you with all your experience at this legal analysis game, have reason to be skeptical of whether justice will be done in cases like this. It's interesting for me to hear that you actually do think these guys are going to be convicted. I saw a legal analyst yesterday, who said, putting McMichael on the stand was a desperate move, basically, because it does look like their cases going down and the prosecution would probably tear his story apart on cross-examination which began this morning. I don't know if you got to see any of that before we went on the air. That analysis said there they're not even aiming for an acquittal in the case, they're just hoping for perhaps, one juror who they can sway into a little doubt, and hope for a hung jury in that case, so they'd have to be tried again. How much of that seems right to you?

Elie: Again, the defense attorney said that that was his strategy, essentially during jury selection, when he said he was looking for Bubbas. Then we talked about this before that the defense attorney in that case, who would later go on to criticize Black pastors and try to get the judge to exclude Black pastors from the trial, that's this guy. During jury selection, he said that he needed more Bubbas. Bubbas, he defined as white men over 40, with no college education. They're trying to hang this jury because they got nothing else. Again, their legal arguments are ridiculous to the point of absurdity in terms of their likelihood of success, they're trying to just get one guy who doesn't care about killing Black people.

Look, it's always risky to put your defendant on the stand in a criminal trial. The fact that Rittenhouse did it in his case, I wonder if that somehow inspired these guys to do it because it got so much good play in the media. Again, that's because of media bias, that's not because it's a good idea. As, I think you saw with this guy, the younger lyncher, it was-- You should never take the stand in your own defense unless you (a), as you said, desperate and have to or (b), are so well lawyered up that you can truly answer every question as your own attorney would. It's always a risk and I think that's going to backfire against them. Again, they're not trying to win. They're trying to get an acquittal, they're trying to get one guy to be okay with this lynching.

Brian: By the way, I've been saying McMaster. I don't know why. It's McMichael, right?

Elie: Okay, good. [laughs] I didn't want to correct you because I thought maybe I had gotten it-- I had been wrong all this time. Okay.

Brian: I don't know why. Maybe I was thinking of the former military guy and I get the more famous Mc-something that sounds like that and I wrote it one time in my notes, and then I just kept saying it wrong. I apologize, everybody. Obviously, these guys are named McMichael, not McMaster. All right. Well, we will see what happens in both of these cases. Elie Mystal, justice correspondent for The Nation. Thanks for coming on with us twice on these so far, and talking about the larger context as well as the particular legal issues at play right now. Thanks a lot.

Elie: Brian, thank you so much for having me.

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