Anderson Cooper 360: Judge Gertner continues discussing judge's behavior in Rittenhouse trial

On November 11, Judge Gertner again appeared on CNN to talk about the Rittenhouse judge's behavior and its implications for the trial.

November 11, 2021 

Read a transcript of the segment below.

ANDERSON COOPER: Joining us now, Harvard Law School senior lecturer and former Federal Judge, Nancy Gertner. Also CNN legal analyst, Paul Callan, who is both an experienced criminal defense attorney and former prosecutor. 

Paul, what was your biggest takeaway from what you saw today? 

PAUL CALLAN, CNN LEGAL ANALYST: Well, the trial slowed down quite a bit, I have to say. We had a very exciting group of witnesses, including, of course, Rittenhouse himself, earlier in the case and not much happened today. You had a use of force expert who really in the end just established that pretty much all the bad stuff happened in a minute in 30 seconds. So, it all happened fast. That's about all we took away from that. And then there were a couple of additional films that were shown. So, it really – we really didn't see much added to the case today. 

COOPER: Judge Gertner, last night in the program, you said that you were troubled by the Judge's behavior. He admonished the prosecution again today. I'm wondering what your reaction to him doing this two days in a row is? 

NANCY GERTNER, FORMER FEDERAL JUDGE: Well, I mean, I think the thing I was concerned about, which was hard to see on the screen, was how much of his sort of chiding the prosecutor was done in front of the jury, how much he communicated. There certainly were times when he was communicating displeasure at the prosecutor's facial expressions – that, you know, that really was absurd. The defense was making facial expressions as well. And then, he admonished him for asking about the political background of one of the witnesses. This is the witness who was – who took videos and pictures on his phone, and this was a guy who posts on right-wing media. And when he was describing what was going on, he was describing it in terms of who was Antifa. So, it seemed to me entirely legitimate to ask what his bias was, and the Judge dressed down the prosecutor for that. There is a substantial imbalance in the rulings and the treatment of the prosecutor and the defense, and the key question is whether or not the jury is picking that up. 

COOPER: Paul, the witness who analyzed the video gave the exact timing between the shots fired by Rittenhouse. Was he, do you think, effective for the defense?  

CALLAN: I don't think it made a lot of difference. I mean, they're trying to say, well, a minute and 30 seconds is really fast and all of this – I don't find that to be a very fast happening of events. You know, you hold a watch up in front of a jury for a minute and 30 seconds, it seems like a long time. So, I don't really think that that made much of a difference. 

And, you know, and I just had to add something also about the Judge. I mean, he's not a woke guy. That's what we can certainly say for starters – 75 years old. He's been in Wisconsin – he is the oldest judge on the bench in Wisconsin, and he lives in a different age. 

And, frankly, you know, Judge Gertner comes from a very distinguished background serving, you know, as a Federal District Court Judge. And, you know, I have a feeling the courts in the streets of Kenosha are not so genteel as the Federal Courts. I've been yelled at quite a few times myself trying murder cases in, you know, state and local courts, and this character is like a lot of other judges who sit in those courts, unfortunately. 

COOPER: Judge Gertner – go ahead. 

GERTNER: Well, I think that – one of the things that's interesting about this is that at least some people believe that he was sort of a pro-prosecution judge. And so to some degree, this was really a very different picture. And, you know, I tried murder cases in the State Courts of Massachusetts as well, and I've never seen anyone whose positions and biases are as clear as this Judge. That was really my point. 

CALLAN: Well, you know, I think, Judge, what he was trying to do, what he said he was trying to do is keep politics out of the case, and make sure these jurors were decided in the case on the law, but it has gotten out of hand and he has been more anti-prosecution clearly than anti-defense, you know, so I don't disagree with you at all. 

COOPER: Judge Gertner, I don't understand the Judge early on deciding about what words could be used to describe the people who were taking part in protests and whatever, however one wants to describe what happened later, the mayhem that occurred, you know, once it got dark, I guess. That ruling really still stands out and I'm not sure how big an impact it's had on the trial itself, but you – I mean, did that surprise you as well? 

CALLAN: You know, I was shocked by it – 

COOPER: Sorry, sorry, that was for the Judge. 

CALLAN: I am sorry, Judge. Okay, go ahead, Judge. 

GERTNER: Well, I mean, it was – that was a cue to where he was going, right? And for me, it was not just that the call that he – that the defense could call the victims "arsonists, looters and protesters." It was that his rationale was that the defense could demonize these people to score points with the jury. That was a quote from the Judge: "score points." What kind of points was that? That Rittenhouse had a right to shoot them because they were doing things that he thought were unlawful? I mean, that was an extraordinary comment to make, and I don't think it's a question of being woke, I think it's a question of being biased. 

CALLAN: Well, and you know, the other thing that was odd at the beginning of the trial, Anderson, was he doesn't even allow the people who were killed to be called victims. Now, I will tell you in every court in America, the person who gets killed is called the victim and that's what the prosecutor is trying to prove. 

GERTNER: Right. 

CALLAN: So for him to say, you can't use that terminology in my court, but you can call the other people looters and rioters, yes, it was very, very odd behavior by this Judge. 

COOPER: Judge Nancy Gertner, appreciate it. Paul Callan, as well. Thanks so much.