Anderson Cooper 360: Judge Gertner discusses Kyle Rittenhouse testimony and judge's behavior in Rittenhouse murder trial

On November 10, 2021, Judge Gertner joined Anderson Cooper on CNN to discuss Kyle Rittenhouse's testimony and Judge Shroeder's behavior in Rittenhouse's murder trial.

Read a transcript of the segment below.

ANDERSON COOPER: Joining us now: CNN legal analyst Paul Callan, who has considerable experience on both criminal defense and prosecution sides of the courtroom, also Harvard Law School senior lecturer and former Federal Judge, Nancy Gertner. Appreciate both you being with us.  

Paul, what do you make, first of all, of the trial today, the defense strategy putting Rittenhouse on the stand? 

PAUL CALLAN, CNN LEGAL ANALYST: Well, most defense lawyers were shocked that he took the stand because lawyers are terrified to put their own clients on the stand. And I was very surprised at how remarkably effective he was as a witness. He put together really, a very solid self-defense claim. I mean, he said people had thrown rocks at the back of his head, knocked him to the ground, that he had – that one of the individuals he fired the shots at had not only threatened to kill him, but threatened to cut his heart out. 

And then of course, he broke into tears as he, you know, explained how the killing took place. So, I think he made a very, very good witness in his own behalf. 

COOPER: Judge Gertner, you saw how Judge Schroeder admonished the prosecution multiple times today. And I just want to play one of those moments where the Judge goes after the prosecution for what they're bringing up in court to talk about it. Let's watch it. 


JUDGE SCHROEDER: I don't believe you. There better not be another incident. I'll take the motion under advisement. And you can respond. When you say that you were acting on faith – good faith, I don't believe that, okay? Let's proceed. Everybody in good faith. All right –  


COOPER: As a Judge yourself, I'm wondering what you thought of what we saw today in the courtroom? 

NANCY GERTNER, FORMER FEDERAL JUDGE: I don't think that in 17 years that I was on the bench that I ever admonished the lawyer in that way. And you also have to begin with, this is the Judge who, when he began, told the defense that they could call the victims "looters, arsonists and protesters." And that the defense was entitled to demonize the victims to score points with the jury. That was an extraordinary comment. And whereas the prosecutor was not allowed to call the people who had been shot "victims," which of course is standard.  

So, candidly, I was troubled by his behavior. One never knows – I didn't think that anything that the prosecutor did warranted that kind of an outburst and that kind of rage. But of course, I wasn't in the courtroom, so I can't tell.  

But still the – you know, the lawyers make mistakes in the heat of the trial and so this was – I was putting in the context of the other instructions that he had given, which were very, very troubling. 

COOPER: And Judge, I mean, you've seen a lot of defendants on the stand. What did you think of how Kyle Rittenhouse was today? 

GERTNER: You know, I thought – I agree that he was effective. But you know, I really want to step back and say that the self-defense is actually not available to somebody who provokes an attack. And there is an argument that the prosecutor is going to make that some – that the 17-year-old who is carrying around an AR-17 was provoking an attack. You can respond in self-defense, but only if the provocation that you started leads to the person to become essentially the aggressor. What's troubling here is a skateboard and an AR-17 – an AR-15 – that just doesn't match. 

The Judge actually could keep a self-defense instruction from the jury, not likely in this case, it doesn't take much, but you really have to step back. This is really not the kind of situation for which the laws of self-defense were designed. 

COOPER: But Judge, I mean, somebody can be beaten to death with a skateboard. 

GERTNER: Yes, but the standard is to use – you're allowed to use deadly force when you're threatened with imminent deadly force. And to be sure, it doesn't take much to make a self-defense claim. But typically, when you're the provoker, you don't get the benefit of self-defense. That horse is out of the barn. I mean, this Judge is obviously going to let Rittenhouse indulge in a self-defense defense, and he was very effective for that. 


GERTNER: He certainly described his fear, and that was – that was impressive. 

COOPER: Paul, what do you – 

CALLAN: Well – 

COOPER: Go ahead. Paul, go ahead. 

CALLAN: Yes, the defense is going to claim that he was not the initial aggressor. In fact, he was carrying the AR-15 as a self-defense measure, and he only started to use it after he was attacked, and his assailants threatened to kill him. One of them had a gun, and as a matter of fact, the prosecutor brought out that he had heard shots being fired at the scene as well. 

So there's a lot of provocation on the other side. So there is no way that the self-defense claim is going to be taken away from him. It'll be up to the jury to decide. But I think he made as compelling a self-defense claim as I've seen in a courtroom, and I've tried quite a few murder cases. 

COOPER: Judge, it is an interesting argument that you're referencing – the idea that, I mean, somebody – it's not like he is a trained security officer. He doesn't have experience, he clearly – from what it seems like, had never been in a kinetic, volatile, violent situation like this. He chose to insert himself into the midst of it, albeit he said just to protect property.  

Are you saying that if somebody does that, if they insert themselves into a volatile situation, knowing it's a volatile situation, that any form – I mean, that that there's no way he can have self-defense just because he inserted himself – I mean, if somebody in the midst of a riot gets attacked, they can't defend themselves? 

GERTNER: No, listen, it was a point about what the law is, and to some degree about what the legal policy is – that usually self-defense is not in a situation in which you were the provoker. That could – the exception would be where you've provoked a confrontation, and then the other person becomes the aggressor, and you think you're in danger. 

And in this situation, I thought that the prosecutor brought out something that the press isn’t covering – that, you know, he was guarding this car dealership, and then he decided to go into the into the melee carrying an AR-15. And some of the comments that he was getting initially was because he was armed and in that melee. Again, I agree that the Judge is going to give him a self-defense instruction. But I wanted to step back and say this is really not what self-defense was intended to do. 

And your point about police is very interesting, because, you know, we've spent the past almost two years being concerned about police use of deadly force against the civilian, and they are trained. The notion that we're doing anything to privilege a 17-year-old carrying an AR-15, who in fact, has no idea how to deal with these situations has got to be troubling for all of us. 

COOPER: Yes. Judge Nancy Gertner, I really appreciate you being with us. Thank you. And Paul Callan as well, thanks so much.