00:00:00.000Today on the Charlie Kirk Show, we have two amazing defense attorneys, Alan Dershowitz and Andrew Branca from Self-Defense, Lawofself Defense.com, to go over the Kyle Rittenhouse trial and the implications of it as we await a verdict.
00:01:23.000Let me tell you about some of these incredible speakers we have coming, everybody.
00:01:26.000We have Tucker Carlson, Kaylee McEnany, Ted Cruz, Jesse Waters, Candace Owens, Jim Jordan, Donald Trump Jr., Madison Cawthorne, Kimberly Guilfoyle, Jack Pesobic, Benny Johnson, Sean Foyt, and more.
00:01:38.000Brantley Gilbert, Dustin Lynch, Russell Dickerson, and others as country music artists.
00:01:46.000Be there in person, can't wait to see you again.
00:01:49.000You can always email us directly freedom at Charliekirk.com, and make sure you are subscribed to the Charlie Kirk show podcast.
00:01:55.000It is an upper, it is a plus sign in the upper right hand corner, and if you say Charlie, I want to get back to the show, but I have no money, then just go, take some of your friends phones and subscribe to the Charlie Kirk show.
00:02:33.000We will not embrace the ideas that have destroyed countries, destroyed lives, and we are going to fight for freedom on campuses across the country.
00:04:40.000Well, not only do I think he should be acquitted, but I don't think he got a fair trial.
00:04:44.000Whether he's acquitted or convicted, the media has put not a thumb on the scale, but an elbow on the scale.
00:04:51.000They have told everybody, particularly CNN, New Yorker Magazine, MSNBC, they've already told the public, this guy is a white supremacist, a vigilante.
00:06:03.000And so right now the jury is deliberating or they're arguing over many different kind of technical aspects or issues of evidence being provided.
00:06:11.000You know, Professor Dershowitz, you are the expert on this.
00:06:14.000Have you ever seen a prosecution act like this prosecution did, especially in regards to potentially challenging the Fifth Amendment rights of Kyle, the defendant?
00:06:26.000Do you think that was an intentional tactic to try to trigger a mistrial?
00:06:30.000What's your take on that with all of your experience?
00:06:33.000Tragically, I've seen this happen over and over again.
00:06:36.000Prosecutors constantly violate the Constitution and judges let them get away with it.
00:06:41.000This judge has been criticized because he hasn't let them get away with it.
00:06:44.000If the shoe were on the other foot, if this were a Black Lives protester who had killed and was being charged and was claiming self-defense, the hard left media would be taking exactly the opposite view.
00:06:55.000They'd be praising the judge, et cetera.
00:06:57.000So this is clearly a violation of the Constitution, what the prosecution did.
00:07:04.000And I said from day one, because this case is going badly for the prosecution, they may win.
00:07:09.000Can't predict the outcome of the case, but because they thought the case was going badly, they may have deliberately tried to get a mistrial without prejudice so that they could start all over again and do a better job.
00:07:21.000The same thing happened in the O.J. Simpson case.
00:07:23.000When the O.J. Simpson case wasn't going well, the prosecution tried to get rid of jurors and go below the 12 numbers in order to do it again.
00:07:33.000I actually argued that aspect of the case went to LA and prevented them from doing that.
00:07:39.000But prosecutors will do that from time to time.
00:07:42.000That's a kind of a learning curve for a lot of us that are watching from the outside and kind of not as much in the legal world.
00:07:49.000So can you explain to our audience the difference between a potential motion for dismissal of prejudice or a mistrial?
00:07:56.000Would a motion for dismissal with prejudice mean that Kyle could never be retried again?
00:08:18.000On the other hand, if it's an ordinary mistrial, it just means you start all over again, you pick 12 different jurors, maybe a different judge, and you present the evidence.
00:08:27.000You don't present some of the evidence that backfired the way the prosecution would like not to present the evidence of the man who is the alleged victim of attempted murder.
00:08:38.000So there is a big difference between dismissal with prejudice and dismissal without prejudice.
00:08:44.000So Professor, I'd love to get your take on Kyle himself taking the stand.
00:08:56.000Of course, if he ends up losing, people will say it was not wise in this case, but I would have done the same thing as a very experienced defense counsel.
00:09:04.000You can't win a self-defense case without the defendant looking the jury in the eye and saying, look, I feared for my life.
00:09:12.000If you were in this situation, you would have done the same thing.
00:09:15.000And Rittenhouse, I think, presented himself quite effectively.
00:09:20.000Of course, the hard left media, Don Lemon and others, said it was crocodile tears, you know, it's white privilege.
00:09:32.000But I think it was necessary for him to take the stand.
00:09:34.000He also doesn't have a criminal record, and they didn't open the door to questioning him.
00:09:42.000The other people, the people who were shot, had criminal records.
00:09:46.000But of course, that doesn't come in unless the defendant essentially knew about their dangerousness and their criminal record, which he didn't.
00:10:15.000It started in the deep south when jurors were intimidated into convicting innocent African Americans, or in one case, an innocent Jew, Leo Frank, because of crowd pressures.
00:10:29.000It happened in the famous case of Shepard versus Maxwell, which led to the TV series, The Fugitive.
00:11:00.000Maxine Waters threatened violence, essentially, if there were anything less than a murder verdict in the George Floyd's case.
00:11:12.000So we're seeing the mob hijacking the justice system all over the United States today.
00:11:19.000And it's happening on both sides, much more the hard left trying to hijack the juries in cases where they think that conviction is appropriate.
00:11:35.000And in modern America now, with everyone having a smartphone, is it even realistic to act as if the jury's not going to be able to hear everything else that's happening?
00:11:44.000No, the jury should have been sequestered in this case, certainly during deliberations.
00:11:49.000Juries, I think, have to be sequestered more than they used to be sequestered because, as you say, of modern media, and it's very hard to insulate jurors from what's going on outside.
00:12:01.000It's not enough to tell jurors, don't talk about it when you get home with your wife or your children.
00:12:07.000We know that juries don't always obey those orders.
00:12:11.000Yeah, and so you mentioned something I think that's really important, which is a troubling new trend that if enough people protest or demand it, it's as if there is this extra pressure outside of the courtroom.
00:13:18.000But because of mob pressure, she was indicted.
00:13:21.000Now mob pressure wants to increase the charges from manslaughter to murder.
00:13:26.000That's the worst example I've seen of how mob pressures influence the charging process.
00:13:32.000But I also think in the George Floyd case, that mob pressures may very well have had an influence on the verdict in that case.
00:13:42.000Well, and it's just for anyone that wants a fair hearing in court, it's a scary set of circumstances to think that the prosecution can be influenced by outside forces to go to higher charges and more aggressive charges, and then the jury can as well.
00:13:58.000Our system has to have some sort of additional measures in place, as you mentioned, sequestration of jury or some set of circumstances because I'm...
00:14:09.000We're moving trials outside of the urban areas to more isolated rural areas where the influence isn't as great or as direct or as dramatic.
00:14:35.000Is there any doubt that the pastors who are praying for a guilty verdict hope that the jury will hear them and listen to their prayers?
00:14:44.000Yeah, they're praying to God, to be sure, but they have two audiences.
00:14:48.000God, on the one hand, fortunately will not intervene in this case and in others, and the jurors who will decide the fate of the defendant.
00:14:58.000I think those defendants in that case in Georgia are horrible.
00:15:02.000And what they did was inexcusable, but they're entitled to a fair trial.
00:15:06.000And a fair trial means not having the jury hear from pastors who are praying for a guilty verdict.
00:15:13.000Well, and Professor, you have been so consistent on this for years.
00:15:17.000And, you know, as someone who would be more on the liberal side, you know, and me on the more conservative side, I think we have this agreement that if we just kind of shred the Constitution, it's regardless of your political affiliation, we're going to go in a direction we don't want to go.
00:15:32.000It's lost me a lot of friends on the left.
00:15:35.000It's cost me institutions in New York like the 92nd Street Y, which have banned me and won't allow me to speak.
00:15:42.000When you stick to your principles and you don't choose sides politically, you pay a heavy cost.
00:15:47.000I'm actually writing a book on that subject called The Price of Principle.
00:15:52.000How expensive it is to stick to your principles in an age of partisan division.
00:15:58.000And I'm hated by the right, some people on the extreme right as well, because I have an op-ed yesterday condemning former National Security Advisor Flynn for saying that we need one religion in this country.
00:16:11.000And so I condemn the right and the left equally when they try to violate the Constitution.
00:16:41.000Big tech is monitoring, censoring, mining, and selling your online information.
00:16:45.000Squadpod is the solution, 100% U.S. programmed, owned, and operated.
00:16:48.000SquadPod is a convenient, all-in-one application supporting your private connection with others of your choice.
00:16:53.000I know the people behind SquadPod, they do a great job.
00:16:56.000Safely bring together your family, your friends, your team, club businesses, or congregation with SquadPod's chat, document sharing, discussion, and televideo capabilities.
00:17:04.000The SquadPod application is encrypted, protecting your communications and content without any annoying advertisements.
00:17:10.000They do not censor mine profile or sell your information.
00:17:13.000I have gotten to know the SquadPod team, and they are true patriots with a mission dedicated to your privacy, safety, and freedom of speech.
00:17:19.000Join myself and other organizations such as Turning Point USA, nonprofits, and churches by adopting SquadPod as your collaboration platform.
00:17:26.000Take back control of your privacy by visiting squadpod.com/slash Charlie.
00:17:37.000With us is an expert and someone who is terrific and came highly recommended from the wonderful Jack Pesobic is Andrew Branca from lawofselfdefense.com.
00:17:49.000Andrew, welcome to the Charlie Kirk Show.
00:17:51.000You have been terrific explaining this case.
00:17:55.000What has been your greatest frustration in how the media has covered the Rittenhouse case from your perspective and knowing the law as it pertains to self-defense?
00:18:06.000Well, of course, the media is largely a propaganda arm of the political left in America.
00:18:10.000So with all these politicized cases, they rapidly develop a false narrative about what happened, a narrative that, if it were true, would outrage anybody.
00:18:24.000They do this with, and now the Kyle Rittenhouse case.
00:18:26.000And unfortunately, you know, normal human beings only know what they perceive in their environment.
00:18:33.000They only know the information that's presented to them.
00:18:35.000And if all they see is the news media propaganda, well, that's what they're going to believe.
00:18:41.000So people believe, for example, that Jacob Blake was shot in the back seven times for no good reason when, in fact, he was armed with a knife and getting into a car with children in it, being non-compliant with lawful arrest.
00:18:52.000And people, for some reason, believe that Kyle Rittenhouse was an active shooter who shot a bunch of black people at a protest.
00:18:59.000Kyle Rittenhouse never shot anyone who wasn't actively attacking him with deadly force.
00:19:04.000But you see people on Twitter over the course of this trial shocked to discover that what they thought had happened with Kyle Rittenhouse was not at all true.
00:19:13.000And unfortunately, the power of the media to effectively brainwash the American population is tremendously powerful.
00:19:36.000What does the law say when it comes to self-defense?
00:19:39.000And what argument did the prosecution make that to try to possibly say that Kyle had a premeditated intent?
00:19:50.000That's essentially the standard that they had to try to meet here.
00:19:54.000Well, intent in a killing can form in an instant.
00:19:57.000So it doesn't necessarily mean need to be premeditated in the sense we might think of from TV shows and movies where someone has a plan and purchases items and rope and duct tape and all this.
00:20:07.000That's not required to have criminal intent for a murder.
00:20:11.000The difficulty for the prosecution here was that there was literally no evidence inconsistent with lawful self-defense in a case where the state, like they do in every self-defense case, has to disprove self-defense beyond a reasonable doubt, which is a very high threshold.
00:20:26.000So what you expect to see when the state presents their witnesses is an accumulation to a mountain level of evidence that this was not self-defense.
00:20:34.000They didn't have anything like that for any of the use of force charges against Kyle.
00:20:39.000So they tried to do a backdoor attack.
00:20:42.000They tried to say that Kyle provoked the attacks against him.
00:20:44.000Because if you do that, then they don't have to worry about the self-defense claim because someone who provokes a fight cannot claim self-defense.
00:20:51.000They're ineligible to claim self-defense.
00:20:53.000The only evidence they had of this provocation was this drone video that if you've seen it, doesn't look like much under the best of circumstances.
00:21:04.000Plus, the version they provided the defense was 1 16th the resolution of what they ended up showing to the jury.
00:21:11.000So the defense had only this low resolution version for a few days because it showed up from the evidence ferry on the prosecution's doorstep in the middle of the trial.
00:21:24.000And they didn't have the high resolution version until after the evidence was closed.
00:21:28.000So in other words, they didn't have it to prep their client for his testimony on the witness stand.
00:21:34.000And so there's a motion to, I want to make sure I get my language right.
00:21:44.000That is currently under consideration.
00:21:48.000There's actually two because they filed one motion to dismiss with prejudice after prosecutor Binger inappropriately referenced Kyle's assertion of his Fifth Amendment right to silence in front of the jury, as well as referenced evidence that the judge had ruled excluded from the court.
00:22:12.000They had discussed it just that morning in court that the judge had not changed his rulings on any of this.
00:22:18.000And he mentioned it in front of the jury anyway.
00:22:19.000So that was the basis for the first motion for a mistrial with prejudice.
00:22:24.000And for folks who don't know, a normal mistrial, the trial is dissolved, but the prosecutor is completely free to bring the defendant back again.
00:22:33.000And this is not harmful to the prosecution.
00:22:38.000They have the same amount of resources every day.
00:22:41.000But for the criminal defendant, it's catastrophic because just think about the resources you'll put into not spending the rest of your life in prison.
00:22:49.000Well, you spend those resources in your first trial.
00:22:52.000And when it comes back for a second trial, a retrial, you don't have those resources anymore.
00:23:00.000So what you want as a defendant is not just a mistrial, but a mistrial with prejudice.
00:23:04.000The prejudice part means the prosecutor is not free to bring the case again.
00:23:09.000So they had that first motion for a mistrial with prejudice, and then they discovered just this past Friday after the evidence had closed that they had not, in fact, received the same resolution video as was in the prosecution's possession.
00:23:22.000So they've now added that as another reason why they should have a mistrial with prejudice and filed a new motion, including the drone video resolution issued just this past Monday.
00:23:33.000So if that's the case, then that would, in my personal opinion, feed into this narrative that maybe the prosecution is trying to trigger a mistrial without prejudice.
00:23:44.000And that's what that's what the defense is arguing.
00:23:48.000I mean, we can't see into the prosecution's mind, right?
00:23:51.000But what we do know is that their case is terrible.
00:23:54.000And there have been previous cases in Wisconsin courts where prosecutors have done this, where they've had a losing case and they decided, you know what, we're just going to deliberately throw the case.
00:24:04.000So it goes away and then we'll try them again.
00:24:07.000And maybe we'll get a better jury the second time around, or maybe we'll get a more amenable judge the second time around.
00:24:12.000And of course, that's a terrible injustice to allow that to happen.
00:24:16.000So the conditions that have to be met is not just that the prosecutor engaged in misconduct, but that he did so intentionally for the purpose of throwing the trial so you can get another shot.
00:24:26.000And I think the judge is onto it, though.
00:24:28.000I mean, if you read carefully into what the judge says, I don't really know what you're up to here.
00:24:32.000He was almost implying that, you know, I'm not going to let you throw this thing.
00:24:37.000Do you think that that could be there?
00:24:40.000The judge talks a lot and you might make reasonable inferences from the things he says.
00:24:45.000I mean, he's shouted at the prosecution.
00:24:47.000He's told them he doesn't believe they're acting in good faith, which means, of course, he believes they're acting in bad faith.
00:24:52.000I mean, those are the only two options.
00:24:55.000I mean, he doesn't follow through and hold them accountable.
00:24:58.000Certainly, if they provided this drone footage in a lower resolution, knowing they were doing that, I mean, that's an explicit Brady violation of a violation of the prosecution's duty under the U.S. Constitution to provide the defense with the evidence that's going to be used against them.
00:25:13.000And that should lead to a malicious prosecution case against these prosecutors.
00:25:18.000They should pierce their normal prosecutorial immunity.
00:25:21.000But we don't know if it was intentional.
00:25:26.000And I'm not a technology-savvy guy, but I hear that you put a big file in Dropbox, sometimes it shrinks it, compresses it, results in a lower resolution without the person who put it there knowing.
00:25:35.000So it's possible the drone video resolution issue was unintentional.
00:25:41.000But even if it was unintentional, it puts the defendant in such a bad position in combination with the other acts by the prosecutor that we know were intentional that I really don't see any other recourse but a mistrial with prejudice in this case.
00:25:58.000Yeah, with prejudice means that he couldn't be retried again.
00:26:02.000So my other question, though, and I'm kind of still learning on the fly with this alongside the audience, how is it that the prosecution just add charges as we go along?
00:26:14.000As if they're second degree, first degree.
00:26:16.000Aren't those different arguments that need to be presented to the jury?
00:26:21.000So this is very normal in criminal cases.
00:26:23.000You'll have a high-level charge, and the high-level charge is often an aggravated form of a lower charge.
00:26:30.000So for example, with these recklessness charges, they're claiming not only was he reckless, but he had utter disregard for human life.
00:26:36.000That's an additional element that turns second degree recklessness into first degree recklessness.
00:26:41.000Well, they charged him with first degree, but it's possible the jury could look at the evidence and say, well, you know, we don't see utter disregard for human life here, so it's not first degree, but we do see the other parts of it.
00:26:50.000And that is what qualifies as second degree.
00:26:53.000So it's called a lesser included offense.
00:26:55.000And in the law, when you have a client that is charged with a higher level offense, you're on notice.
00:27:00.000You know what the lesser includeds are.
00:27:01.000You know you're going to have to defend against those two.
00:27:04.000So this was not a surprise to the defense that they were going to be facing these lesser included charges.
00:27:11.000Yeah, I just found it to be interesting because I suppose the arguments have to be a little bit, I mean, you obviously tried to go after the one that could land you in life in prison, right?
00:27:20.000But did you see the defense also trying to simultaneously, you know, defend against those charges as well?
00:27:28.000I mean, it's a very complicated fact pattern case because there's so many people involved and so many different uses of force and they're under slightly different circumstances.
00:27:38.000So there were some cases where the lesser included just it wasn't reasonable under the under the facts of that particular case.
00:27:45.000And they pushed back on those and the judge pretty much accepted that.
00:27:48.000But for the most part, the lesser included got in.
00:27:52.000The only way for the lesser included not to get in really is if the state doesn't want them.
00:27:56.000So the state can say, we want only the highest level charge.
00:27:59.000We're going, you know, we're placing all our chips on that highest level charge.
00:28:03.000And we don't want the jury to have an opportunity to only convict on the lesser offense.
00:28:09.000We want everything or we want nothing.
00:28:11.000That's what they do for Timothy McVeigh or Eric Rudolph, right?
00:28:14.000That's what they do for Charles Manson.
00:28:16.000They don't do that for cases like this.
00:28:18.000They try to hedge their bets here because a lot, you know, if it's Eric Rudolph, they don't want him to get off with a reckless endangerment for the centennial bombing, right?
00:28:26.000And what it tells you is that they, you know, they don't have confidence in their highest level charge, right?
00:28:30.000If they did, they would just go for that one.
00:28:34.000I want to tell you guys about Good Ranchers, okay?
00:30:55.000I want to just listen for a second here to what's happening in the courtroom, and you could tell us what's happening because I'm sort of confused.
00:31:07.000Actually, what I would propose is making the courtroom the jury room, clearing out the courtroom, looking for checking for any devices that would be recording the deliberations.
00:31:17.000We can either give them all the exhibits and instruct them to only watch the numbers that we agree on or that are allowed, or we can put them on a separate drive, the exhibits that they've requested or that they'll be allowed to see, and they can essentially have access to all the screens here, and they can play it and do it as they see fit.
00:31:38.000Now, so normally the distinction of it being privately, no one is with them, but these concerns about giving them unlimited access to the video.
00:31:49.000So, and is that normal in a proceeding, kind of the back and forth?
00:31:52.000Well, this, this should already have, everyone knew there was going to be video evidence here.
00:31:56.000I don't know why these procedures weren't defined beforehand.
00:31:58.000They're doing this in the middle of deliberations.
00:32:00.000I mean, I don't understand how this was allowed to happen, frankly.
00:32:06.000But there are real problems with some of the video.
00:32:08.000I mean, some of the video, when shown in court as evidence, the prosecution had to mute and unmute because they were saying militia in it.
00:32:14.000Militia was not something that was supposed to be presented to the jury.
00:32:18.000So you can't just give the jurors the original videos and let them watch whatever they want because some of that was objected to and the objections sustained.
00:32:25.000And of course, we have the whole issue with the drone video now, where it's being contested that the defense was not even not ever given the high-definition drone video until after the evidence was closed.
00:32:36.000So it feels just like a, it's like JV prosecutors, quite honestly, is what this feels like, with way too much power on a national stage.
00:32:57.000Andrew, I want to ask you, what do you think is the current threat to self-defense?
00:33:02.000My current opinion is that if they can't confiscate your guns, they're going to criminalize your ability to protect yourself.
00:33:08.000Are you seeing a disturbing increase in baseless prosecutions against people that want to protect themselves?
00:33:14.000Yes, what they do is even if they know they can't convict you because your use of force was so clearly within the bounds of lawful self-defense, they use the process as the punishment.
00:33:23.000They bring you to trial anyway because we have no effective probable cause threshold here.
00:33:28.000The prosecution can bring anybody they want to trial and then they destroy you through the expense and time and risk of the trial process.
00:33:35.000Folks, no matter how innocent you are, if you're put in front of a jury, there's a 10% chance you can get convicted.
00:33:43.000And even if you're acquitted, if you've killed someone in self-defense and you're on trial for murder or manslaughter, it's easy to burn through $200,000 before you even get to trial.
00:33:52.000So if you don't have that kind of money sitting around just in case you're compelled to defend yourself or your family, that's what they'll do to you.
00:33:58.000Well, and so we also saw this with the McCloskey case, right?
00:34:02.000Which is where they even come outside their home.
00:34:23.000People have to really know the law, don't they?
00:34:25.000Because it's not as simple as just being able to, you know, it's as simple as being able to defend yourself, but I think there's some things people have to know.
00:34:59.000You guys can get it at, you guys can check it out, lawofselfdefense.com.
00:35:03.000And if you know anyone that's involved in any of these cases, because I know personally a couple of people that are, you know, they defend themselves during Floyd Apalooza last summer, and they're getting caught up in a lot of different things, right?
00:35:16.000But it was just self-defense of, you know, fist fights or whatever, baseball bat stuff.
00:35:20.000And then they got charged, even though they defended themselves.
00:35:23.000And so it's important that, you know, you continue to get the message out.
00:35:27.000We'd love to have you back on once this, you know, the verdict comes because I'm immensely curious.
00:35:31.000This is one of the most high-profile self-defense cases, as you said, since George Zimmerman, in my personal opinion, especially all the implications.
00:35:37.000Thank you so much, lawofselfdefense.com.