C&B Break Down Rittenhouse’s Testimony in Real Time

10 Nov 2021

BUCK: Right now, as we’re speaking to you, the Kyle Rittenhouse case is underway in Kenosha, Wisconsin. Kyle Rittenhouse has — to the surprise of many — taken his own defense. He is on the stand. He is being cross-examined right now. Let’s go to it live.

All right. So you’re hearing there the real time live cross-examination of Kyle Rittenhouse in Kenosha, Wisconsin, for the trial going on there where Kyle shot and killed two — shot and wounded a third — he claims, in self-defense. It certainly seems, based on the prosecution’s case so far (the prosecutor just stepped away for a second; we’ll continue to watch this) that self-defense is very viable.

Clay, the big moment here for everyone I know… I have defense attorneys texting me right now, friends of mine, saying, “Putting Kyle on the stand in this way? It’s high risk, but it’s pretty riveting to hear him explain in his own words what went on here and what his position is and why he had to use lethal force to defend himself.”

CLAY: It’s riveting. You usually do not see a defendant in a case like this take the witness stand, not to mention a 17- or 18-year-old kid. We’re gonna continue, I would suggest, to break in and share elements of this testimony because he may be on the stand for hours. They are carrying it live on television, and this is the final part of the trial to see whether or not Kyle Rittenhouse is going to be found guilty in this case.

But I gotta tell you, Buck, based on what I have seen, Rittenhouse is holding himself up pretty well on the witness stand so far and I’m not impressed by the questions from the prosecutor. He doesn’t seem to be scoring in the context of… Remember we talked about how the jury is going to perceive the interaction between the two?

BUCK: He’s grasping at straws with this first-person video game stuff and he’s trying to get him on technicalities of firearm law that are in the state of Wisconsin specifically. This is a case about self-defense and lethal use of force. That’s what the case is really about, and the prosecution here realizes that their case so far has been very…

Their key witnesses said basically, “I was trying to hurt him when he shot me,” or other people said, “The guy that got shot and killed was trying to hurt him.” In one case, even a guy who is a convicted sex offender was coming at him to do Kyle Rittenhouse harm, was shot and killed in the process of trying to assault him. If that’s not self-defense, there’s no such thing as self-defense. It doesn’t matter why he was in Wisconsin.

CLAY: That’s right.

BUCK: It doesn’t matter whether he plays Call of Duty or not, and it’s fascinating to see the facts of this actually coming out, given the way the media said — I’m not exaggerating; we could play the audio — he was a terrorist, Clay. They said he was a white nationalist, a racist. he went there to shoot people for no reason. All lies.

That is obviously not true, and this case, to me, seems like an easy one for any fair-minded jury that cares about the law, which this to me seems like clear self-defense. We will come back, and Kyle is still going on the stand, and a lot of people all across the country are watching this play out. It’s very unusual in this high profile of a case to have a defendant take the stand in his own defense.

BREAK TRANSCRIPT

CLAY: Absolutely riveting testimony in the courtroom right now of Kenosha, Wisconsin, Kyle Rittenhouse in his own defense has taken the stand and is being cross-examined right now by the prosecutor in this case. We started off the show playing live testimony for you. We will continue to break in every now and then because this is such an unprecedented situation to have a defendant take the stand like this and speak in his own words about what happened on that night in question.

We’ll continue to break in throughout the course of this program as we talk about many other different subjects as well. But earlier in the last 30 or 45 minutes or so as he began his testimony, Kyle Rittenhouse broke down on the stand discussing that night. Listen…

That’s Kyle Rittenhouse breaking down on the stand. I always try to say it’s hard to analyze what a jury is gonna do, Buck, when you have time been in a courtroom for every moment of a trial. This is eight days that this has been going on now. But based on what I have seen there is an incredibly strong self-defense narrative here that I believe a jury is going to find compelling in many ways.

Certainly, when you see Kyle Rittenhouse breaking down like that as he recalls his experience on that night, that certainly offers strong credence to the idea that he was deeply fearful for what might happen to him in the way that he’s reacting in the retelling — still feeling, it appears to me, that fear even over a year later.

BUCK: Kyle Rittenhouse comes across like a good kid, the kind of kid that you’d to want live next to, the kind of kid that you’d want your children to be friends with or — if you’re a younger person listening to this — that you want to be friends with yourself. He didn’t go there to harm anyone. He went there to defend people. That’s the reality of what we’re seeing play out.

He was attacked. Rittenhouse is the guy who shows up and is trying to scrub graffiti by psychotic Biden voters, by the way. Scrub it off of the buildings, try to prevent people from having their businesses burned to the ground. Democrats don’t care about businesses getting burned to the ground as long as it’s in the name of BLM. Kyle Rittenhouse disagreed.

He wanted to do something about it. He showed up, he wanted to be able to defend himself and others. He was attacked. There’s really no dispute over the facts of whether he was attacked. The only real prosecution point here seems to be, “Can they get him on some point of firearms law,” which wouldn’t go to whether or not he was even able to defend himself in the first place, “and can they create a perception that just by his very presence there, he was the problem?”

Essentially, Clay, what this really comes down to is the left wants it to be known — and that’s why I think the nation is watching this trial so closely. The left wants everybody to know that when they are angry — when social justice demands neighborhoods get burned to the ground and people live in fear and terror in their own homes, and police aren’t allowed to do their jobs to serve and protect — no one’s allowed to stand is in the way. That’s what they want people to think from the Kyle Rittenhouse. Kyle said, “No.”

CLAY: And we can’t understate here, Buck, what an incredible move it is to put him on the witness stand. This is a young kid 17, 18 years old. His defense attorney — there’s been a lot of positive revelations on the witness stand for his defense, but they still wanted to put him on the stand.

BREAK TRANSCRIPT

BUCK: Clay and I are just riveted here watching in the breaks and we have our team here following the Rittenhouse trial. Kyle Rittenhouse took the stand. Then you got the prosecutor who it looks — to me, at least — is aware of the fact that he is losing this case so far, and so he’s getting kind of desperate. He’s in a pretty tense exchange with the judge.

The judge is verbally smacking him around a little bit here for trying to go over the lines, go around some things. He’s getting desperate. This prosecutor knows he is losing ground and Rittenhouse’s testimony — remember, he took the stand himself; there will be more of it later — is compelling stuff for any jury, honestly. That’s what it looks like so far. It’s not over. We don’t know, and who knows what a jury is eventually gonna do here.

CLAY: Buck, I’ll say this, by the way, when the jury… I’ve long thought… Every now and then… I’ll give you an example: Baylor football. There was a player accused of rape. The jury went out, spent 45 minutes, came back, unanimously said, “Not guilty.” When that happens — and I’m not saying it’s definitely gonna happen in this case.

But it is a clear sign of prosecutorial misconduct that you would bring cases and a jury, if they can debate for 30 or 45 minutes and they come back and they’re, like, “Unanimously not guilty.” It’s such a failure of the prosecutor’s office to have brought the charges that they did, the way that they did. That’s so rare to have it happen.

But I’m looking at this lecture going on right now by the judge against the prosecuting attorney, and it feels to me like, as you said, the prosecuting attorney is throwing out legal Hail Marys right now. He realizes he’s been pummeled for eight days in a row. Now Kyle Rittenhouse has gotten on the witness stand and has done himself, I think, decent favor. Right now, the judge is just slapping around this prosecuting attorney who is desperate to try to figure out a way to get a conviction.

BUCK: Unless something big happens here, folks, it’s looking like the prosecution has put forward a very… Remember, they already rested their case. So now they’re just trying to cross… They’re trying to gain ground against the defense’s case. They’re not looking good for them, which I think is good for the cause of justice.

But then I believe — as Clay was alluding to a moment ago — that this never should have been brought as a murder trial or homicide trial in the first place. So we’ll come back to it and we’ll follow it closely. It is still ongoing. It will probably be going on for quite a while now, the actual Rittenhouse testimony up on the stand.

BREAK TRANSCRIPT

CLAY: In every commercial break, Buck and I are turning and listening to the audio of Kyle Rittenhouse on the witness stand right now live in Kenosha, Wisconsin. We may join again and give you a little taste of what is being said at the top of the second hour of the program. But, Buck, this prosecutor is getting lacerated by the judge, and he’s also just throwing up all sorts of crazy Hail Marys.

One of them was he’s questioning Kyle Rittenhouse about playing video games and suggesting because he played shooter video games that that’s what he was trying to do on the night in Kenosha, Wisconsin. Now, the flaw here is just about every who has played video games has played shooter video games and Kyle Rittenhouse said, “Yeah, I know that’s a video game. That’s not real life.”

Buck, you’re, I believe, an All-Star in Call of Duty and other video game-related — and you your brothers, right? You guys still play, and these are wildly popular. My kids play video games all the time. I’ve retired. But the idea that you would say, “Hey, the reason you shot someone is because you play Call of Duty”? It’s a pretty crazy stretch given how popular these games are.

BUCK: Here’s what we’re seeing. Yeah, I started playing again over covid though I haven’t really played since the lockdown ended. But I like FIFA, too, the soccer game.

CLAY: It’s a great game.

BUCK: What can I tell you? It’s a great game. So here’s what you’re seeing play out all across the this trial right now. And we’re gonna keep following it. We’ll bring you more of the most important moments ’cause this is gonna take some time. People are still in a little bit of shock that Kyle Rittenhouse is even up on the stand. It’s very unusual. It’s considered high risk from the perspective of defense attorneys to do this kind of thing.

It’s really only if you think you have a very solid case and a very capable defendant on the stand that you would do this. And it’s not over. So it still could be a risk that maybe the defense would regret, but so far I think this prosecutor is looking almost buffoonish. But really, it’s because the facts of the case on the self-defense front are very straightforward.

All right, you had an anarchist left-wing mob — including a convicted sex offender, Clay — assaulting a guy with a gun trying to hit him and you have to ask, “Okay, what was Kyle Rittenhouse supposed to do?” Let’s start to look at this from the other perspective. He’s got his rifle there. Whether he should have been out on the street or not is not the criminal charge at issue.

There is no criminal charge, really. I think they dismissed yesterday that he violated the curfew, which is a misdemeanor anyway. So it’s just about the use-of-force situation, and what was he supposed to do? Let a guy bludgeon him with his skateboard, take his rifle, and execute him on the street? Let someone wave a loaded gun in his face at point-blank range?

After yelling that he wants to kill him or wants to shoot him or, you know, “Bleep this, bleep that,” cursing at him? Of course not. It’s crazy. So that’s how you get into a prosecutor saying, “You play first-person shooter games, don’t you? What are you doing with this” as if he’s trying to act out some kind of school-shooting situation, ’cause that’s because brought up by the media.

They’ve referred him saying, “He’s like a school shooter! He’s like a domestic terrorist.” Kyle Rittenhouse is nothing of the sort, and that’s coming across anyone watching the trial — and I gotta say, Discover and these other companies that refused to allow Rittenhouse to try to raise money for his defense? They should be ashamed of themselves, ashamed of themselves.

CLAY: They really should. They really should, Buck, and that’s well said, and I think this is important. You had a kid who it appears based on much of this evidence, at an absolute minimum has an incredibly strong self-defense case. And it is not uncommon for defendants in cases to raise money from others, particularly when you aren’t wealthy enough to pay for your own defense.

Which, likely, if you have top attorneys, is going to cost over a million dollars, right? To go through a trial like this, to put kind of in context what a top defense attorney in a case such as the this would cost, over a million dollars. Now, sometimes defense attorneys will give away basically their representation for the attention that they know they’re going to get, basically an advertisement.

Sometimes they care desperately about the innocence of someone that they are defending, and Kyle Rittenhouse taking the stand here is telling everyone, “I didn’t do this in as direct a manner as is possible.” OJ didn’t do this. The people out there who watch a lot of criminal trials or pay attention to cases such as these, it’s very rare for a defendant to take the stand and tell his side of the story. It is oftentimes considered to be a big risk. But based on what I’m seeing so far, Rittenhouse is doing a very good job of handling his own defense and dealing with this prosecutor who seems crazed at times with his line of questioning.

BUCK: You get the sense as well, it is… The conventional wisdom is that if you’re winning, you certainly don’t have your defendant go on. What I see here, it’s almost as though it’s not enough for Rittenhouse in his mind to get a “not guilty” verdict. He wants the American people to know that he didn’t do anything criminally wrong when it comes to this use-of-force situation.

He wants an “innocent” verdict, so to speak, in the minds of the American people instead of just a “not guilty” verdict, and that’s why he’s taking the stand. That’s why he’s speaking directly to the American people, including us, including millions and millions of folks. I mean, right now they’re running it live on Fox, on CNN, on news networks all over.

BREAK TRANSCRIPT

CLAY: Kyle Rittenhouse has taken the stand in the Kenosha, Wisconsin, case where he’s been accused of killing two protesters, shooting another one. Blockbuster, unexpected development for Rittenhouse to be on the stand. He has been doing phenomenally well so far. They have just broken for lunch. But I want to play for you a montage.

And I know many people out there have been watching this testimony, have been paying attention to this case. I want to play for you a collection of people calling Kyle Rittenhouse a terrorist before he was ever able to have any defense at all. Listen to this media montage, cut 19. Why do any reporting when the media’s already decided Kyle Rittenhouse is a terrorist?

KASPARIAN: Kenosha shooter Kyle Rittenhouse — he murdered two people, by the way.

JOHNSON: Rittenhouse is basically what you would have had in a school shooter. He’s a 17-year-old kid; he shouldn’t have had a gun. He crossed state lines to supposedly protect property? No, he was going out to shoot people!

O’DONNELL: Kyle Rittenhouse, the 17-year-old vigilante…

WALLACE: Kyle Rittenhouse, a vigilante…

REID: Kyle Rittenhouse, the armed teenage vigilante…

HEILEMANN: The 17-year-old vigilante — arguably a domestic terrorist — picked up a rifle, drove to a different state to shoot people!

UYGUR: Kyle Rittenhouse (snickers), a guy who is deeply racist, went with weapons to a Black Lives Matter protest, looking to get in trouble; he did. He murdered a couple of people.

SCARBOROUGH: Rittenhouse, the 17-year-old kid, just running around, shooting and killing protesters.

BUCK: Slander. He should sue them. He should sue them. It’s outrageous the stuff that they said.

CLAY: It’s so hard as a public figure to ever win a case, and this is a big-picture story, Buck. I have argued New York Times v. Sullivan, which basically ingrained the public figure mantra in the 1960s in the Supreme Court and made it almost impossible to sue anyone in the media who says anything about a public figure unless you can show actual malice. He’s not a private figure ’cause he’d been charged with a crime. This is honestly one of the really interesting distinctions about the Covington Catholic case if you remember on the steps of the Lincoln Memorial.

BUCK: Yeah, of course.

CLAY: A lot of people out there obviously remember what happened with that kid whose name is escaping me right now. Sandmann. Nicholas Sandmann, if I’m right about that. He was arguably a private figure ’cause he’s a kid who just happened to be standing on the steps of the Lincoln Memorial when he became a flashpoint, and everybody went after him and tried to accuse him of all this wrongdoing. But what that is emblematic of is they called him a terrorist, basically, they called him a murder.

BUCK: They did. They called him a terrorist. Like a school shooter. I mean, they’re saying things that he’s not charged with that is not in the facts of the case in any way, shape, or form.

CLAY: And so what I would ask you to do — and it’s what we tried to on this show. What I would ask you to do is compare what all those people said about Kyle Rittenhouse with the testimony that you are seeing from Kyle Rittenhouse today and what the actual facts that are at issue in the case. And things are going so well for Kyle Rittenhouse…

I think you’re right, Buck. I think one reason he wanted to get on the witness stand is he doesn’t want to be “not guilty.” He wants to be “innocent,” and that’s rare in a criminal case for someone to say, “Not only am I not guilty of this crime, but I’m innocent of any wrongdoing at all.”

BUCK: There are other countries that have actually in their legal standard “not guilty” and also “innocent.” That is a thing that has existed in other places.

CLAY: He’s not trying to get off on beyond a reasonable doubt, right? He’s not trying to —

BUCK: This isn’t “It looks bad for me, but on technicalities I’m gonna get away.” This isn’t an OJ situation where it’s “Because of historical injustice I should get let free as a clear double murderer.” This is a kid who’s saying, “I defended myself. I did nothing wrong. Look into my eyes, America. Look at the truth. Look at the facts here,” and it’s remarkable how much hatred you saw in the media for this guy.

CLAY: Yes. Even right now while he’s on the witness stand, Buck!

BUCK: Yeah. Based upon the fact pattern that was known from the very beginning, they had video, Clay. This wasn’t just like an eyewitness thing. They had video of people attacking him. What is he supposed to do? He’s supposed to get hit in the face with a skateboard? He’s supposed to wait ’til someone who has a loaded handgun waving in his face pulls the trigger?

This was always crazy, but it was because BLM. There was a narrative here. The narrative was, “Get out of the way. The left is rising in America,” in an election year, by the way, in an election year that saw us have businesses boarding up in preparation for a possible Biden loss. This was the rage of Biden voters on the streets of large and small American cities, and no one was allowed to get in the way.

It almost turned into something like this, remember, with I believe it was the McCloskeys in St. Louis where that mob came across their lawn. They had the guns, and remember the prosecutor there charged them for essentially brandishing or pointing their weapons at a mob that was trespassing on their property.

At what point do we realize that some of the people in charge here are so ideologically invested in taking the side of the mob that they would sacrifice someone like Kyle Rittenhouse just to make a point? “Don’t ever stand in the way of our arsonists and rioters. They have social justice on their side!”

CLAY: Not only that, we had a caller yesterday who pointed out — or maybe it’s a couple days ago — the absolute abandonment of responsibility in Wisconsin. They didn’t want police on the streets. They didn’t want people to actually try to enforce the law. The idea was, “Let’s let the rioters just tire themselves out by destroying businesses, by burning down buildings, by looting and pillaging in massive numbers.”

So what’s gone so bad for the prosecutor here, Buck, is that it appears, I think, whenever this goes to a jury, that the jury is likely to be very favorably disposed toward Kyle Rittenhouse. That he’s going for innocent, not guilty, in terms of the media analysis going forward. “Oh, this is not a kid who got off for a crime he deserved to be punished for because of a technicality. This is a kid who didn’t commit a crime at all.”

And the prosecutor increasingly is just throwing up Hail Marys which are driving the judge bonkers. Let’s listen here to the judge going after the prosecutor as the prosecutor basically, basically insinuates that Kyle Rittenhouse hasn’t spoken, and somehow not speaking until now is a major flaw in his defense. Listen to this.

ATTORNEY: Why would you think that that made it okay for you — without any advance notice — to bring this matter before the jury? You are already… You are… I was astonished when you began your examination by commenting on the defendant’s post-arrest silence. That’s basic law! It’s been basic law in this country for 40 years, 50 years! I have no idea why you would do something like that, and it gives… Well, I’ll leave it at that.

CLAY: He was starting to say it gives the defense grounds to call for a mistrial, which is why the defense has since come back and said, “We’re going to make a potential filing for a mistrial with prejudice, which would mean the reason why this mistrial has to be tossed out is because they think they’re gonna win. “We want these tossed out and you can never bring these charges again because your conduct was on so egregious in violating the law and you were doing it because your Hail Mary plea is, ‘We’ve lost this case; let’s try to get a mistrial.'” You can’t intentionally try to get a mistrial to avoid a loss that you are going to take.

BUCK: One part of this, Clay, that I think also sits in the background that everyone should be aware of as we see this is that because — and you heard one of the left-wing commentators say Kyle Rittenhouse is a racist, which was an interesting thing. Based on what, exactly? You’ve seen a lot of rioters in Kenosha. At least on the footage, a lot of them — I don’t know what the exact numbers are — are white leftists.

CLAY: Yes.

BUCK: A lot of the people that are rioting are white leftists who were there. All of the people that Kyle shot were white, as I understand it, unless I’m missing something. I believe in all three cases. If you had a different angle with that respect people would be concerned about more riots if Rittenhouse was found not guilty. Because the people that attacked him and that he defended himself against — again, that’s my opinion; the trial is playing out now.

But because of the situation is that he shot three guys, there’s no racial angle to the shootings. It’s less likely, I think, there would be a nationwide outrage from the left about this at the same level. So that is one factor, I think, here that’s at least, if there is a not-guilty verdict, it’s less likely that we’ll see people saying, “The system is so racist,” and there will be more buildings and businesses burning as a result of it.

And that also, to me, means the jury is more likely to rule on the facts. That’s really the key here. The jury doesn’t feel like, “Oh, my gosh. We’ll be branded racists forever if we don’t put Kyle away, and maybe they’ll burn down another neighbor if we don’t put Kyle away.” So I think that’s strongly in his favor.

CLAY: I think that’s a hundred percent right, because the subtext of the Derek Chauvin trial was — for both jurors and anyone else who was following this case — if Derek Chauvin isn’t found guilty, Minneapolis is gonna burn and many other cities are going to burn as well. That’s the subtext. And that, by the way, is what was allowed to happen in an entire summer of riots, which is why the idea of this January 6th obsession in the Democratic Party…

After an entire summer where they allowed cities to burn, where lawlessness ran rampant, suddenly they’re gonna put a lot of people who walked into the Capitol with selfie sticks in solitary confinement and in prison for years over what are relatively minor, in the grand scheme of things, trespassing violations. Certainly within the context of the summer of riots we saw, nothing approaching the level of violence that ran rampant through so many of our city streets this summer.

So I think all of that ties in in many ways. And the fact that Kyle Rittenhouse has taken the stand and has done, so far, such a compelling job of providing his own defense has got the prosecutors, it appears, throwing all sorts of crazy directional questions on him. They, by the way, right now are on a lunch break if you’re wondering what’s going on right now.

And the judge is just fed up. If you could hear him, but if you could see his body language, he is done with the prosecutors completely. And this is what I said from a directed verdict perspective, Buck — and I’m not an expert on Wisconsin criminal law so I won’t pretend to be. But when you have witnesses on the witness stand saying that you are pointing a weapon at somebody?

It’s almost not a question of fact anymore for a jury. The judge decides questions of law. A jury decides questions of fact. If someone says, “I pointed a gun at you and you saw me point a gun at you and you decided to fire at them,” that is the very definition of self-defense. Arguably that’s not even a fact-based determination for a jury. A judge could look at that and say, “There’s no dispute about the facts in this case. By law, that’s self-defense.”

BUCK: There’s still two other shootings, obviously. But, yeah, in that one case, that could have been where the judge went. And I think… I don’t want to get ahead of ourselves here. You never know what a jury’s gonna do, but it has been a strong showing to be sure for Kyle Rittenhouse so far.

BREAK TRANSCRIPT

BUCK: You’ve had Kyle Rittenhouse’s trial going on in Kenosha, Wisconsin. He took the stand today, which every defense attorney (and now everybody who knows a defense attorney) will tell you is unusual, considered risky. So far, it looks like it has — to all viewers, all analysts that I’ve seen, and Clay and I have been bandying this back and forth and talking to you about it.

Obviously, on air, it looks like Rittenhouse has done well for himself against cross-examination. He laid out his story well. It seems to me like this is all clear-cut self-defense. What’s been noteworthy is how the prosecution has been getting admonished at various points by the judge, shouted at by the judge in this case. It makes people feel like…

Certainly, I see it as the prosecution knows they’re likely losing at this phase. They are not, in fact, making the case they need to get a guilty verdict on any of the major counts and perhaps even angling for a mistrial because things have gone so awry. Clay, you watch enough of these trials, if you’re somebody who follows true crime and watches these legal proceedings that play out in different courtrooms.

It’s rare to see a lot of what we’ve seen today, right? You don’t see a criminal defendant, at this level, take the stand. He broke down in tears, really emotional moment. You don’t see judges shouting at prosecutors and saying, “You may get a mistrial over this.” This looks like what people think of as courtroom drama. We’re actually getting it today in the Rittenhouse case.

CLAY: Yeah. When you’re a practicing attorney, sometimes when you are training, they will say juries expect for there to be Law & Order moments. They expect for the A Time to Kill moment. They expect that because they’ve seen the way that Hollywood and television bring trials to their essence, and oftentimes they’re disappointed by the minutia involved in daily trials.

You don’t very often get A Few Good Men moment where Jack Nicholson is sitting on the bench and he’s saying, “You’re right. I did order the code red,” basically. What we have seen just in the two or three hours so far that he has spent on the witness stand is unbelievable, compelling, riveting, can’t-look-away testimony in a case that has received a massive amount of attention but from a defendant that most of us have never really heard speak.

I think that’s why this is so important, Buck, because when you hear someone tell their own story oftentimes for the first time, that is incredibly striking to a potential juror, who has seen the film, has seen Rittenhouse sitting at the table as a defendant. But when he actually speaking, most of these jurors don’t even know what his voice sounds like. They don’t know what his mannerisms are.

I always say this as a lawyer. “Don’t talk to police when they question you.” Lots of people think, “I’m gonna talk my way out of this,” and you aren’t prepared for that statement to be made, and maybe you’re under an incredible amount of duress. And, by the way, I’m talking about people who may be charged with a crime. I’m not saying don’t talk to police if you’re trying to get help from police.

BUCK: Someone breaks in your house.

CLAY: Yeah. But I’m saying, you know, there’s so many people who think, “Oh, I’m gonna talk my way out of this,” and they don’t really think through what their story is and they contradict themselves and they’re not even intentionally trying to do that. So you’re right not to speak to police. I’m kind of stunned that this kid was smart enough in that scenario at 17 years old to not make an immediate statement and walk through everything because he hasn’t had the opportunity to watch the tape.

He doesn’t know. He would contradict, potentially, what the film shows. You want to wait ’til all the evidence is out there, and now he’s speaking with that prosecutor, Buck, who tried to come after him for not speaking, which is a foundation right of American jurisprudence, and that’s why the judge was so furious at the prosecutor, ’cause it feels in some ways as if the prosecutor realizes the case is not going his direction and wants a mistrial so he can avoid Kyle Rittenhouse being found not guilty by this jury.

BUCK: I remember when I worked with cops at the NYPD and FBI because there was a fusion element there with the joint activism task force; they would all tell you, “If you’re under arrest and you speak, you’re a fool.” It’s absolutely… It doesn’t matter how clever you think you are,” it doesn’t matter if you’re a lawyer yourself!

CLAY: Yes.

BUCK: You are foolish to speak the moment they place you under arrest, the moment you think you’re about to be arrested, you say nothing.

CLAY: You shut up.

BUCK: So for the prosecutor to try to in some way impugn credibility and the getting of Kyle Rittenhouse here because this is the first time he is actually speaking in this way is essentially to try to hold his constitutional right, his Fifth Amendment right against self-incrimination against him which is why the judge — rightly in this case — really, I mean, lost his temper, lost his cool.

I think, I mean, it was the right thing to do but was obviously very upset about it. But, Clay, we look at why was this such a big — why is this such a big case? What are the prevailing narratives in the background of it in why are people paying so much attention to it? This got all they way up to the level of the Biden administration weighing in on it. This got all the way up to a national news story where you had the biggest lib media platforms in the country making it seem like Kyle Rittenhouse was — and the words this at that they used.

CLAY: We should play that clip again because some people haven’t heard that.

BUCK: Yeah, let’s play the left-wing news anchors and pundits who are all calling Kyle Rittenhouse things like a terrorist, a school shooter. Here you go.

KASPARIAN: Kenosha shooter Kyle Rittenhouse — he murdered two people, by the way.

JOHNSON: Rittenhouse is basically what you would have had in a school shooter. He’s a 17-year-old kid; he shouldn’t have had a gun. He crossed state lines to supposedly protect property? No, he was going out to shoot people!

O’DONNELL: Kyle Rittenhouse, the 17-year-old vigilante…

WALLACE: Kyle Rittenhouse, a vigilante…

REID: Kyle Rittenhouse, the armed teenage vigilante…

HEILEMANN: The 17-year-old vigilante — arguably a domestic terrorist — picked up a rifle, drove to a different state to shoot people!

UYGUR: Kyle Rittenhouse (snickers), a guy who is deeply racist, went with weapons to a Black Lives Matter protest, looking to get in trouble; he did. He murdered a couple of people.

SCARBOROUGH: Rittenhouse, the 17-year-old kid, just running around, shooting and killing protesters.

BUCK: All lies. Everything they say there is a demonstrably false statement. Everything they’re saying there — we talked about he won’t be able to sue successfully. But it is slanderous in the sense that these are known falsehoods that they’re using to try to malign him. And, Clay, it went even beyond just the usual idiots in the media trying to turn this kid into some kind of monster. GoFundMe shut him down! He wasn’t allowed to raise money for his defense. And this is a guy who is innocent of the charges, in my opinion, that would have leveled against him.

CLAY: This is indicative — and this is a problem in many ways. When I was in law school, I was taught by my criminal defense attorney — and I’d later go on to practice some criminal defense myself — the only three he things that matter in any case are the facts, the facts, and the facts. And so often what happens? We just played you that clip. Some of the accusations.

Murderer, school shooter, 17-year-old vigilante, domestic terrorist, deeply racist murderer, those are the things that were said about Kyle Rittenhouse. So far, none of those things have been proven. Now, if he’s found guilty, he could be a murderer. But at the time that all of these people are speaking, that is not in any way an accurate way to describe a defendant.

BUCK: Clay, can I just say, right now we got breaking news. The Rittenhouse team has made a motion for mistrial. So this now… This whole thing, we gotta see what the judge is gonna do here —

CLAY: Let me and I’ll analyze that.

BUCK: Can we join in? Do we have him? Let’s go right to this for a second.

All right, Clay, let’s come back to that in a moment here because right now, this is the procedural back-and-forth between the prosecutor and the judge here. But the Rittenhouse team is making a motion for a mistrial, which, if granted, would bring this whole thing to a halt. Yeah, Clay’s gonna get into details of this.

CLAY: Well, I’ll explain exactly what they’re trying to do when we come back because it’s not just a mistrial motion. I’ll explain exactly what’s going on, but you got it.

BREAK TRANSCRIPT

CLAY: So in this Kyle Rittenhouse case, the Rittenhouse defense has argued — and there is discussion going on right now — about whether or not there is going to be a mistrial. This is me putting my lawyer hat on, Buck. You can quiz me on this a little bit if you want. There are different types of mistrials. The Rittenhouse team of attorneys — and I am analyzing without obviously having talked to the Rittenhouse team.

I’m trying to analyze this in real time as it’s going on. The Rittenhouse team does not want a mistrial in the context of, “We’re going to go do this all over again.” That’s oftentimes what happens in the case of a mistrial. Something occurs that is inappropriate, improper within the trial itself, which necessitates a new trial all over again. That’s not what they want.

They want a mistrial with prejudice, which means these charges can never be brought against Kyle Rittenhouse again, which is a big step up. Effectively, it is arguing that the prosecution’s behavior is so egregious and intentional that they should not benefit from a mistrial because otherwise, just kind of putting it in context, let’s say you have a bad week. You’re a lawyer, everybody can have a bad week at their job, and you just get whipped by the opposing side. What we don’t want to happen, then, in a court proceeding is for someone to intentionally create a mistrial and benefit from their intentional error.

BUCK: Like in tennis if you call a redo when someone aces you. No, no, it’s an ace, it’s not a redo just ’cause you got a second and that’s what they try to avoid. My understanding, Clay, is that even if they did have a dismissal with prejudice, mistrial with prejudice, rather, that the state do still appeal it, though, right?

CLAY: A hundred percent.

BUCK: So even if you get the best possible outcome for the defense here, you could still have a situation within a higher court steps in and says, “Actually, you can try this again and then you’d be back at square one with a new trial if the state wanted to bring the case”?

CLAY: That is true. And again, I want to make it clear: I’m licensed in the state of Tennessee’ I am licensed in the U.S. Virgin Islands. Those are the two places that I am licensed. So every state law can be different as it pertains, although there’s often a model code, particularly in criminal courts, that are somewhat similar.

I want to make it clear: I’m not an expert in Wisconsin criminal procedure, right? But if the trial court judge determines that a mistrial with prejudice should be granted, there is a great deal of discretion given to the trial court judge even on appeal, it would have to be a substantial legal error filed case.

BUCK: Wisconsin as a state is — and I know we all can talk like big boys and girls here. We all know the justice system. There are conservatives and leftists in the justice system and the judges you’re gonna get, the prosecutors you’re gonna get, some are very conservative. Some are gonna be very liberal.

So you’d be rolling the dice. It’s not like you’d be having this in a very red state or a very blue state depending on what judges you get who would look at this after the fact. But they’re really going very deep right now into the possibility here of this mistrial which just goes to show you, if nothing else, Clay, I think it’s clear prosecution is messing this thing up and it’s because Kyle Rittenhouse isn’t guilty. That’s what’s happening.

CLAY: Well, the other thing I would add is that it’s highly unlikely that the judge is going to make a ruling from the bench. He would probably ask for briefings. He would probably want that to be analyzed. In my guess, it would be later tonight he might ask for briefings. Just FYI.

BREAK TRANSCRIPT

BUCK: We are following very closely this Rittenhouse trial, Kyle Rittenhouse. He is now back live on the stand in his own defense. The nation is watching. Let’s join as he deals with this cross-examination right now.

We’re waiting here for evidence. Clay and I are watching here Kyle Rittenhouse testifying in his own defense. He’s on the stand currently as we are speaking to you being cross-examined by a very aggressive prosecution. Here we go.

So, we’re continuing to watch closely here as the prosecution is now getting more into the specifics of the self-defense claims here that Kyle Rittenhouse has made. I mean, Clay, I know this is piece by piece. It’s in the courtroom, so it’s not all in 15- or 30-second sound bites. Anything noteworthy to you based on how this is being built here by the prosecutor?

CLAY: I would just say this, Buck, you cannot understate the stress level that you are on as you are sitting there as the witness, trying to keep yourself from going to jail, maintaining your composure while you are being grilled by a prosecutor. Just the mental stress that you are under. Leave aside whatever you are talking about in a criminal case like this where you are facing time in prison.
It will be interesting to see how long Kyle Rittenhouse is on the stand and how much of a grilling this prosecutor will try to go after him on, hoping that as he is talking, he can find some small measure of inconsistency to exploit. And for everybody out there listening to us right now, I just… I think a lot of times it’s underrated how much stress in a criminal case witnesses are under as they are grilled.

So the time that you’re on this witness stand… This is coming out of a lunch break. So the time that you’re on there, the sweating, the stress, your elevated heart rate, all of those things play into your ability to accurately recall mentally what exactly was going on and to try to forecast where this was headed. I think people just need to keep that in their mind.

And they may not be thinking about the mental acuity and the mental strain that somebody on a witness stand is under because when you’re listening to it, you’re like, “Oh, that’s just somebody answering questions.” It’s a crowded courtroom, cameras are on you, you’ve got a jury box sitting there watching your every move’; judge next to you. It’s an overwhelmingly intimidating experience for anyone, much less a high school kid who is being grilled about whether or not he’s going to be able to return to a normal life or go into a prison.

BUCK: Yeah. His next 30 or 40 years of his life perhaps could be spent in a cell determined by the answers he’s giving here. Now, so far, he seems to have a very strong case. But as Clay points out, it is still going right now, this cross-examination. This prosecutor really does come across to me as, first of all, being a smarmy lib. That’s part one, but part 2, doesn’t like Kyle Rittenhouse. I think that’s quite clear.

CLAY: And, by the way, the jury is judging the prosecutor just like they’re judging the witness. And a lot of people forget that. The way that the prosecutor is coming across, he’s on a stage just like the witness himself and much of… You remember, they’re not hearing the debates over whether or not there’s a mistrial, whether or not there’s inappropriate things that have been said. But they are judging whether they trust the prosecutor just like they’re judging whether or not they trust Kyle Rittenhouse.

BUCK: Yeah. This prosecutor double masks outside alone just ’cause he takes the virus seriously; I can tell you that right now.

BREAK TRANSCRIPT

CLAY: Much of today’s show has been focused on, frankly, the riveting, the unexpected testimony of Kyle Rittenhouse in his own defense as he is being cross-examined by prosecutors in Kenosha, Wisconsin. And there has been a motion in the last hour made by the Rittenhouse defense team to have a mistrial declared “with prejudice,” which would mean these charges would never be able to be brought against Kyle Rittenhouse.

A mistrial with prejudice is a more severe standard than simply a mistrial, which would just require a new trial. They were discussing this within the last 30 minutes, and the judge in this case is furious with the prosecutor, with the state of Wisconsin prosecutors which are attempting to convict Kyle Rittenhouse. I want to just play a cut for you of the judge lacerating the prosecutor over his decision to ask questions that he said were outside the bounds of his rulings.

THE COURT: Don’t get into other subjects! Get… Come on. What you’re telling me…? You’re an experienced trial attorney and you’re telling me that when the judge says, “I’m excluding this,” you just take it upon yourself to put it in ’cause you think that you’ve found a way around it? Come on. I don’t believe you! There better not be another incident. I’ll take the motion under advisement.

BUCK: That’s rough.

CLAY: I don’t ever want the judge saying “I don’t believe you” on either side. And if you have seen, you just heard the angry in his voice. I think that he wants to grant a mistrial with prejudice in this case. But I also think, in the moment, he wants to take it under advisement as opposed to doing it from the bench during the course of this trial. And also, he’s been sitting there for eight days. He may prefer that the jury render their verdict and take this necessity out of his hands by finding Kyle Rittenhouse —

BUCK: You’re almost at the end, right?

CLAY: Yes, yes.

BUCK: So to do effectively, to open the door for, in any context, a redo, especially given how this seems to be going for the defendant so far, would be pretty severe. And as we discussed, I believe under Wisconsin law they could appeal even a mistrial with prejudice and so this could get back into the system. And everybody knows the politics behind this are enormous.

CLAY: Yes.

BUCK: Because Rittenhouse, for the left, represented somebody, an armed citizen standing up and being willing to use force in the defense of himself and his community against the left-wing hordes that were ravaging cities all across America. That’s what actually happened here, and they don’t want people… First of all, of course, they completely reject that narrative.

They have this whole thing about Rittenhouse was a racist, even though there’s still zero evidence of any kind. Not only is he not a racist, he seems like a very civic-minded and mild-mannered and nice and neighborly fellow. I mean, this notion of him as a white supremacist or a school shooter or anything is just the kind of hyperbolic bull crap you can expect on MSNBC and CNN to tell their left-wing audiences what they want to hear.

So, Clay, this is a circumstance where right now as we’re talking he’s looking at the screens in court where they have all this footage. And from the very beginning the video footage, to me, was strong enough that I think that it was unjust for them to even bring these charges against Rittenhouse based on the video evidence that shows clear self-defense.

You can’t mob somebody who has a gun — or anybody, for that matter — and attack them and expect that they’re just gonna sit there and take it. I know that that’s what we’re supposed to do in the left-wing mobs’ clutches, but people actually don’t want to do that in this country.

CLAY: We played the clip, and I told our crew to flag it because we’ll wait and see what the jury ends up ruling here. But the mainstream media labeled him, Kyle Rittenhouse, a murderer, a school shooter, a 17-year-old vigilante, a domestic terrorist, a deeply racist murderer. First of all, the three people that he shot were all white.

BUCK: Mmm-hmm.

CLAY: Not that if the race of one of these perpetrators alleged attackers had been different, that would demonstrate something different, necessarily. The self-defense claim would still be the same white, black, Asian or Hispanic no matter what the race of the individuals were. And given that he was acting as he was being attacked, I doubt that the race of the individuals involved factored very much into his decision-making at all. But all three of these guys that were shot on that night were convicted felons. So this, again —

BUCK: One was a sex offender, by the way, just to say.

CLAY: Yeah. I’m reading their rap sheets right now. One was a sex offender. Another had been found guilty of felony burglary and illegal weapons and had violated probation. That would be —

BUCK: These are the people, Clay, that are out there… These are the sort of left-wing Biden voters who are out there for social justice, you’re supposed to believe. If you watch CNN, the people who attacked — the criminals who attacked — Kyle Rittenhouse are supposedly the good guys.

CLAY: Yes, and then the other individual was a convicted felon as well. Assault and battery, domestic abuse, false imprisonment, illegal weapons. I’m reading from their rap sheets. Now, that, to a large extent, is not, in the same way that people said… Remember we took calls yesterday and somebody said, “Oh, why was this kid out there with a weapon in the first place?”

The question is did he have a defense, and believe that he was in danger in that moment in time. It’s not why was he there. It’s not what were these guys who were chasing him, what was their background. It is “Did he believe that his life was in peril in that moment, and was he justified in executing self-defense?” And based on the evidence so far and his own testimony, I think it is very hard to prove beyond a reasonable doubt that he did not have elements of self-defense here which would render him not guilty of these charges.

BUCK: We’ll come back tomorrow with more analysis of this Kyle Rittenhouse trial, and also all the rest of the news in this country.

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