WEBVTT - Why Britney Spears May Be 'Freed?' 0:00:03.080 --> 0:00:11.080 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:14.040 --> 0:00:16.959 Fans and members of the Free Brittany movement will be 0:00:17.040 --> 0:00:21.279 outside the Los Angeles Courthouse tomorrow where Brittney spears will 0:00:21.360 --> 0:00:23.720 find out whether a judge will free her from the 0:00:23.800 --> 0:00:27.600 conservatorship that has controlled her life and money for nearly 0:00:27.640 --> 0:00:31.360 fourteen years. She already ousted her father from the legal 0:00:31.440 --> 0:00:35.080 arrangement in September, and at a hearing tomorrow a judge 0:00:35.120 --> 0:00:38.120 could end it all together. Joining me is Harry Nelson, 0:00:38.240 --> 0:00:41.400 the founder of Nelson Hardeman. Harry tell us why she 0:00:41.479 --> 0:00:45.000 was put under a conservatorship in the first place. The 0:00:45.080 --> 0:00:47.720 routes of the conservatives ship started back in two thousand 0:00:47.720 --> 0:00:52.120 and eight. There were two circumstances in which, uh, you know, 0:00:52.120 --> 0:00:56.320 Brittany was hospitalized. In one case, she had locked herself 0:00:56.440 --> 0:01:00.279 into a room with her son, Um and she was 0:01:00.880 --> 0:01:02.880 refusing to release him. She was in the middle of 0:01:02.960 --> 0:01:07.480 a dispute, a custody dispute over her children with her 0:01:07.520 --> 0:01:11.120 former husband, Kevin Federline, and there were weren't worrying signs 0:01:11.160 --> 0:01:14.040 about her mental health. There were a number of reports 0:01:14.080 --> 0:01:16.520 that she was suffering from bipolar and there were other 0:01:16.640 --> 0:01:18.640 kind of signs in her financial life that she was 0:01:18.680 --> 0:01:21.880 making very erratic decisions on buying and selling properties. So 0:01:21.959 --> 0:01:25.160 at the time thirteen years ago, there was good reason 0:01:25.360 --> 0:01:29.520 for concern and that was the basis upon which Britney's father, 0:01:29.640 --> 0:01:33.760 Jamie you know, petitioned the court to appoint him as 0:01:33.760 --> 0:01:37.680 a conservator on her behalf. Well, what kind of um 0:01:38.240 --> 0:01:41.920 determination does a court have to make though to put 0:01:42.000 --> 0:01:46.480 someone under conservatorship, which can be so extensive, What kind 0:01:46.480 --> 0:01:49.800 of a finding did the judge have to make? There 0:01:49.800 --> 0:01:52.400 are really are two kinds of conservatorship there. It's really 0:01:52.720 --> 0:01:55.240 the basic concept is that a conservator is a guardian, 0:01:55.640 --> 0:01:59.080 and so there's a conservatorship of the person, and that 0:01:59.280 --> 0:02:02.720 generally is when you demonstrate to a court that someone 0:02:02.880 --> 0:02:06.080 is not able to properly provide for their own personal needs. 0:02:06.240 --> 0:02:08.960 That means that for their own health and medical well being, 0:02:09.120 --> 0:02:12.040 for food, for clothing, for shelter. The other kind of 0:02:12.080 --> 0:02:16.080 conservatorship as a conservatorship of the estate, and that is 0:02:16.120 --> 0:02:18.560 for somebody who is not who is not able. It 0:02:18.560 --> 0:02:20.800 requires a showing that a person is not able to 0:02:20.919 --> 0:02:24.560 manage their own financial resources. Um. You'll often see that 0:02:24.600 --> 0:02:28.280 in the case of people who have compulsive spending issues 0:02:28.480 --> 0:02:32.520 or cannot resist fraud or undue influence from others and 0:02:32.560 --> 0:02:37.000 maybe vulnerable to abuse. So in this case, Jamie Spears 0:02:37.000 --> 0:02:41.160 thought both basically saying that Brittany was unable to kind 0:02:41.160 --> 0:02:43.560 of take care of her own medical needs and particularly 0:02:43.600 --> 0:02:46.400 her mental health needs, and also that she wasn't able 0:02:46.440 --> 0:02:49.880 to safely manage her own financial resources. And he was 0:02:49.960 --> 0:02:52.160 able to persuade a court back then in two thousand 0:02:52.200 --> 0:02:56.000 eight too, to appoint him as a conservator. Some of 0:02:56.000 --> 0:02:59.920 the things he did would strike most people as out rate. 0:03:00.120 --> 0:03:04.280 Just she said that he compelled her to take lithium 0:03:04.320 --> 0:03:08.040 against her will. He insisted does she keep an i 0:03:08.240 --> 0:03:12.799 U D for birth control? Required to undertake performances when 0:03:12.840 --> 0:03:18.160 she didn't want to. Are those kinds of decisions normal 0:03:18.440 --> 0:03:23.320 in a conservatorship? I would say that the level of control, 0:03:23.400 --> 0:03:27.000 both on her medical decision making and the business business 0:03:27.560 --> 0:03:32.000 we were disturbing and very atypical. It is not an 0:03:32.080 --> 0:03:36.080 uncommon issue for UH for people to be required to 0:03:36.120 --> 0:03:39.200 take medication you know when that medication is life saving. 0:03:39.840 --> 0:03:43.280 But in this case, the suggestion that she UH that 0:03:43.360 --> 0:03:45.160 you know that that that that that has come up 0:03:45.200 --> 0:03:48.160 that Brittany was was forced to take lithium against her 0:03:48.160 --> 0:03:52.080 will so that she could tour UH and perform, you know, 0:03:52.080 --> 0:03:55.880 in concerts around the world is disturbing and atypical that 0:03:55.880 --> 0:03:59.480 that sounds like a medication not for her essential health needs, 0:03:59.480 --> 0:04:03.400 but really for her father's business interest in keeping her working. 0:04:03.680 --> 0:04:06.160 And the allegations regarding the hi u D. Likewise, there 0:04:06.200 --> 0:04:10.920 are there are situations where people who have severe cognitive disabilities. 0:04:10.960 --> 0:04:13.680 For example, UM, there are you know, parent a parent 0:04:13.720 --> 0:04:16.280 who was appointed as a conservator may may have concerns 0:04:16.320 --> 0:04:19.080 that this person, you know, that that's a mistake for 0:04:19.120 --> 0:04:21.880 this person to become a parent. But in this case 0:04:21.920 --> 0:04:25.600 here too, Brittany clearly was a highly functional person, and 0:04:25.760 --> 0:04:29.839 the UH of the ability to limit her reproductive choices 0:04:29.920 --> 0:04:33.640 and prevent her from having a child was disturbing. And 0:04:33.880 --> 0:04:36.480 the most disturbing I think of all was the invasive 0:04:37.800 --> 0:04:42.039 allegations about control, you know, a total loss of privacy. 0:04:42.120 --> 0:04:45.719 Every her her cell phone mirrored, so that every single 0:04:45.800 --> 0:04:49.200 text she sent to any person was known to UH, 0:04:49.320 --> 0:04:52.240 the security firm in to her father, that her bedroom 0:04:52.360 --> 0:04:56.320 was implanted with recording devices. Those are unheard of and 0:04:56.400 --> 0:05:01.080 really shocking, abusive and suggestive that this conservatorship went to 0:05:01.120 --> 0:05:04.880 places that are really unimaginable and should never have happened 0:05:05.240 --> 0:05:09.040 in an appropriately functioning system. So is that something that 0:05:09.080 --> 0:05:13.279 the judge should have caught I think the answer is yes. 0:05:13.720 --> 0:05:16.800 But I think we also have to lay part with 0:05:17.000 --> 0:05:19.960 the lay. There's there's plenty of blame to go around here. Um. 0:05:20.000 --> 0:05:22.960 I think that the Judge Penny, there needs to be 0:05:23.040 --> 0:05:26.280 questions about why there wasn't more scrutiny and why this 0:05:26.360 --> 0:05:29.279 was allowed to persist for thirteen years. There should be 0:05:29.400 --> 0:05:32.680 questions as to Britney's counsel, who was not of her 0:05:32.720 --> 0:05:35.240 own choosing at the time. Right now, Britney now has 0:05:35.360 --> 0:05:38.680 effective counsel who was only appointed in the last couple 0:05:38.680 --> 0:05:41.200 of months, But she for for years was represented by 0:05:41.200 --> 0:05:43.839 a court appointed lawyer who appears to have done like 0:05:44.000 --> 0:05:47.680 little to nothing to question anything that was going on. 0:05:48.080 --> 0:05:50.280 So she was sort of passive and it's a real 0:05:50.360 --> 0:05:52.480 question to me what her lawyer was doing. And of 0:05:52.480 --> 0:05:54.480 course the last place we have to look is at 0:05:54.480 --> 0:05:57.560 her father and his counsel and how he was permitted 0:05:57.960 --> 0:06:01.920 to just have kind of untrammeled control, you know, even 0:06:01.920 --> 0:06:03.600 though a lawyer is supposed to be an advocate for 0:06:03.640 --> 0:06:06.880 their client. How there was no sort of oversight even 0:06:06.920 --> 0:06:09.360 by his lawyer, to question the ethical ends of this 0:06:09.400 --> 0:06:12.000 conservatorship in the place where it had turned fraudulent and 0:06:12.040 --> 0:06:14.960 abusive is to me also a fair question for us 0:06:15.000 --> 0:06:18.520 to ask. If someone who is as famous as Brittany Spears, 0:06:18.560 --> 0:06:22.400 who's performing around the world, who has tons of fans 0:06:22.680 --> 0:06:25.760 watching her, if that could happen to her for thirteen years, 0:06:25.800 --> 0:06:28.800 what happens to an average person who gets put into 0:06:28.800 --> 0:06:31.359 a conservator ship? How did they get out of it? 0:06:31.360 --> 0:06:33.720 It's a fair question. I think our system is much 0:06:33.760 --> 0:06:37.279 better at at starting conservatorships than an ending them. And 0:06:37.400 --> 0:06:39.440 like a lot of things in our society, they have 0:06:39.520 --> 0:06:42.160 kind of a self perpetuating quality. Um. You know, I 0:06:42.320 --> 0:06:44.720 I've seen plenty of There are plenty of places where 0:06:44.760 --> 0:06:49.200 conservatorships are necessary, you know, where you have frankly sad 0:06:49.760 --> 0:06:53.360 uh situations in family life, where you have a child, 0:06:53.560 --> 0:06:57.480 for example, who's not who just physically has cognitive impairments 0:06:57.480 --> 0:06:59.320 that don't allow them to take care of themselves. Where 0:06:59.360 --> 0:07:02.760 you have a sibling, for example, who is dealing with 0:07:02.800 --> 0:07:05.920 mental health challenges and not able to protect themselves. We're 0:07:05.920 --> 0:07:08.480 living through a time when the number one form of 0:07:08.520 --> 0:07:11.720 abuse that we're seeing spread is elder abuse, elder abuse 0:07:11.720 --> 0:07:14.000 in the form of financial abuse, and you have children 0:07:14.000 --> 0:07:18.720 of aging parents who need structures to protect their family members. Right, 0:07:18.760 --> 0:07:20.800 So there is a legitimate place for this, But what 0:07:20.960 --> 0:07:23.920 this case highlights is that there is also a very 0:07:23.960 --> 0:07:27.280 abusive side to these where people can be preyed upon 0:07:27.640 --> 0:07:29.760 by the very people who are supposed to be protecting them. 0:07:29.960 --> 0:07:32.560 And I think that we are being forced to confront 0:07:32.600 --> 0:07:36.200 that there is a substantial amount of abuse by the 0:07:36.240 --> 0:07:39.880 conservators by the guardians themselves, and I think that's something 0:07:39.920 --> 0:07:42.520 that is going to need attention and and is going 0:07:42.560 --> 0:07:45.600 to lead to much more scrutiny and much more pressure 0:07:45.600 --> 0:07:49.120 on judges in the future to h to question and 0:07:49.200 --> 0:07:52.720 make sure that that that people aren't using their guardianship 0:07:52.760 --> 0:07:57.440 powers under conservatorship to uh to to engage in abuse themselves. 0:07:57.920 --> 0:08:01.320 In an abrupt turn around from his position, her father 0:08:01.520 --> 0:08:05.080 earlier this year said that he wanted the conservatorship to end. 0:08:05.520 --> 0:08:08.480 So he wants it to end. She wants it to end. 0:08:08.760 --> 0:08:11.000 How likely is it that the judge will end it? 0:08:11.800 --> 0:08:15.280 So I think there's a good chance that the judge 0:08:15.320 --> 0:08:19.559 is either going to terminate the conservatorship at the next hearing, 0:08:19.720 --> 0:08:22.680 or at least at a minimum, provide a roadmap of 0:08:22.720 --> 0:08:24.880 the steps that the judge is going to require and 0:08:24.920 --> 0:08:26.920 the showing that's going to be needed to terminated. So 0:08:27.160 --> 0:08:28.760 it was it's gonna be one or the other by 0:08:28.800 --> 0:08:30.760 the way we should It's important to note that her 0:08:30.800 --> 0:08:35.880 father's reversal is only really only happened in the last 0:08:36.040 --> 0:08:40.440 several months when it became clear that everybody associated with him, 0:08:40.800 --> 0:08:44.120 hit the financial managers, the the attorneys, everybody working for 0:08:44.200 --> 0:08:46.520 him were sort of like rats office thinking ship, and 0:08:46.600 --> 0:08:50.840 that he is really facing significant financial risk for his 0:08:50.920 --> 0:08:53.360 abusive behavior and posential that he's going to need to 0:08:53.360 --> 0:08:56.880 repay millions of dollars. So his his last his reversal 0:08:56.920 --> 0:09:00.440 should not be seen as as a supportive decision, in 0:09:00.480 --> 0:09:03.079 my opinion, It should be seen as really a kind 0:09:03.120 --> 0:09:06.640 of desperate attempt to uh to get out of harm's 0:09:06.679 --> 0:09:10.160 way himself. But but I think the fundamental challenge for 0:09:10.160 --> 0:09:12.600 for Judge Penny is going to figure out It's going 0:09:12.640 --> 0:09:14.520 to be to figure out how to how to set 0:09:14.520 --> 0:09:17.079 things right. And I think it makes sense and it's 0:09:17.080 --> 0:09:20.760 appropriate for her to terminate the conservatorship on the petition 0:09:20.840 --> 0:09:25.160 that was filed by Britney's lawyer, Matthew Rosenart hopefully hopefully 0:09:25.200 --> 0:09:29.240 this this coming week. Spears said she'd done research that 0:09:29.280 --> 0:09:33.079 showed her Conservative ship could be ended without further evaluation 0:09:33.120 --> 0:09:35.920 of her. Is that the case or what it would 0:09:35.960 --> 0:09:40.880 have to be proven under California law so traditionally so, 0:09:40.880 --> 0:09:42.560 so judge is going to have to find that she 0:09:42.840 --> 0:09:47.240 is she's capable of managing her that she you know, 0:09:47.280 --> 0:09:50.440 she's capable of relying and taking the advice of the 0:09:50.480 --> 0:09:54.040 advisors around her to uh, you know, to appropriately manage 0:09:54.040 --> 0:09:58.200 her financial affairs. And also that she is likewise able 0:09:58.240 --> 0:10:01.560 to you know, uh rely upon and she's listening to 0:10:02.240 --> 0:10:06.200 uh doctors and getting appropriate medical care. Um uh And 0:10:06.280 --> 0:10:09.920 so I think you know my typically you know, on 0:10:09.960 --> 0:10:12.680 the on the issue of her mental state, judges have 0:10:13.000 --> 0:10:20.040 wanted psychological psychiatric evaluations hum of the Conservatives conservative uh, 0:10:20.120 --> 0:10:23.679 the person in Brittany's position to to have some record 0:10:23.720 --> 0:10:26.319 to go on, um, you know. And that's really the 0:10:26.360 --> 0:10:28.640 big question is is Judge Penny going to say that 0:10:28.640 --> 0:10:31.080 that's still necessary. Brittany has made it very clear that 0:10:31.160 --> 0:10:33.760 she doesn't want to have to undergo that evaluation, and 0:10:33.840 --> 0:10:38.160 that her performance over the last uh several years it 0:10:38.200 --> 0:10:40.640 should be indicative that she's like a very high functioning 0:10:40.679 --> 0:10:45.880 person who is obviously succeeding in uh, you know, in 0:10:45.679 --> 0:10:49.760 in in building an incredible career and uh and it's 0:10:49.760 --> 0:10:52.120 clear that she's got good and she's getting good advice 0:10:52.160 --> 0:10:54.600 and she's following it. So it's really a close call. 0:10:54.720 --> 0:10:58.199 To me, there's no reformal requirement that a psychiatric or 0:10:58.280 --> 0:11:02.600 psychological evaluation done, but and it would be a conservative step, 0:11:02.640 --> 0:11:04.800 But I do I suspect that the judge is going 0:11:04.840 --> 0:11:07.160 to be feeling an awful lot of pressure to put 0:11:07.200 --> 0:11:09.840 this thing um in the rear view mirror, and so 0:11:09.920 --> 0:11:12.560 that she's not going to require That's just that's my 0:11:12.559 --> 0:11:14.920 my prediction. But we'll we'll have to find out this week. 0:11:15.480 --> 0:11:20.640 So Brittany's lawyer vows to investigate her father, Will his 0:11:20.720 --> 0:11:25.800 financial decisions be investigated when the conservatorship is ended and 0:11:26.440 --> 0:11:31.079 control is given back to her over her finances. I 0:11:31.120 --> 0:11:33.679 think we I think it's almost the certainty that we're 0:11:33.679 --> 0:11:37.760 going to see a substantial investigation, particularly given the given 0:11:37.760 --> 0:11:43.360 the allegations of uh, the of the bugging, you know that, 0:11:43.600 --> 0:11:47.520 and all the security and personal privacy invasions that happened 0:11:47.559 --> 0:11:51.080 at substantial expense. I think that is that's one factor 0:11:51.120 --> 0:11:53.880 that's likely to lead to this investigation. The other is 0:11:53.920 --> 0:11:56.400 that we we heard from one of the co conservators 0:11:56.440 --> 0:11:59.360 of the estate, who was the professionally appointed person that 0:11:59.400 --> 0:12:02.120 Brittany spot they're spent sent at least a million, and 0:12:02.440 --> 0:12:06.520 I believe the allegation was several million dollars on pr 0:12:07.200 --> 0:12:11.439 and on lawyers try to fight his daughter's own efforts 0:12:11.559 --> 0:12:14.120 to uh to sort of write the ship and to 0:12:14.240 --> 0:12:17.760 terminate the conservative ship. So um. The fact that he 0:12:17.840 --> 0:12:20.640 spent so many millions of dollars that don't appear to 0:12:20.640 --> 0:12:22.640 have been for her benefit and appear to have been 0:12:22.679 --> 0:12:26.040 to preserve his power is almost certainly, in my view, 0:12:26.200 --> 0:12:29.199 likely to lead to an investigation. And I fully expect 0:12:29.200 --> 0:12:30.920 that at some point we're going to see an order 0:12:31.040 --> 0:12:34.480 from the court for him to return moneys that were 0:12:34.480 --> 0:12:38.400 Brittany's that he spent not on her behalf but ultimately 0:12:38.440 --> 0:12:40.800 for his own gain, uh, and that he is going 0:12:40.840 --> 0:12:43.600 to you know, be be forced to repay. So we'll 0:12:43.600 --> 0:12:47.200 see what happens tomorrow. Thanks Harry. That's Harry Nelson of 0:12:47.280 --> 0:12:52.160 Nelson Hardeman in a high stakes gamble. Eighteen year old 0:12:52.240 --> 0:12:55.439 Kyle Rittenhouse took the stand at his murder trial yesterday 0:12:55.800 --> 0:12:58.600 and testified that he was under attack when he killed 0:12:58.600 --> 0:13:01.800 two men and wounded a ord during a chaotic night 0:13:01.840 --> 0:13:07.400 of protests in Kenosha, Wisconsin. During cross examination, prosecutor Thomas 0:13:07.480 --> 0:13:11.360 Binger question why Rittenhouse brought his A R style semi 0:13:11.400 --> 0:13:16.280 automatic rifle to Kenosha. I need the gun because if 0:13:16.280 --> 0:13:19.760 I had to protect myself because somebody attacked me. Why 0:13:19.800 --> 0:13:22.000 would you think anybody would do that? I don't know, 0:13:22.920 --> 0:13:25.280 but you clearly planned on it. You were prepared for it. 0:13:25.320 --> 0:13:28.400 You thought it was gonna happen. No, I didn't. That's 0:13:28.400 --> 0:13:30.480 the whole reason you brought the gun, isn't it. I 0:13:30.559 --> 0:13:34.640 brought the gun to protect myself. My guest is John Gross, 0:13:34.640 --> 0:13:37.520 a professor at the University of Wisconsin Law School and 0:13:37.559 --> 0:13:42.839 director of the Public Defender Project, explain why Rittenhouses lawyers 0:13:42.920 --> 0:13:46.480 asked the judge for a mistrial. Well, the request for 0:13:46.520 --> 0:13:49.920 a mistrial was based on the fact that the prosecutor 0:13:50.080 --> 0:13:55.320 made some commentary or asked some questions about the fact 0:13:55.360 --> 0:13:59.240 that Kyle Rittenhouse did not talk to the police officers 0:13:59.360 --> 0:14:03.160 who took him into custody and first interviewed him. And 0:14:03.200 --> 0:14:06.160 the problem with that is that there is a longstanding 0:14:06.559 --> 0:14:11.760 constitutional rule against prosecutors commenting on the fact that a 0:14:11.800 --> 0:14:15.679 defendant chose to remain silent when questioned by law enforcement, 0:14:15.800 --> 0:14:18.800 because that is a constitutional right that we all have. 0:14:19.360 --> 0:14:21.760 Mr Rittenhouse doesn't have to talk to law enforcement. He 0:14:21.840 --> 0:14:23.720 doesn't have to take the stand at his own trial, 0:14:23.760 --> 0:14:28.400 even though he did. And so prosecutors who suggest or 0:14:29.400 --> 0:14:33.760 question defendant about why they didn't talk to police, why 0:14:33.800 --> 0:14:38.080 they didn't offer some type of exculpatory testimony, why in 0:14:38.120 --> 0:14:41.600 this case Mr Rittenhouse didn't say I fired in self defense, 0:14:41.960 --> 0:14:44.520 that would be improper for them to do. They're asking, 0:14:44.640 --> 0:14:49.160 essentially the jury to infer that their failure to talk 0:14:49.240 --> 0:14:52.160 to the police suggested that they were guilty. That was 0:14:52.240 --> 0:14:55.920 the basis of the defense motion yesterday. Um On a 0:14:55.960 --> 0:14:59.640 more basic level, of mistrial occurs when something about the 0:14:59.640 --> 0:15:03.720 perce meetings because of some highly prejudicial and improper evidence 0:15:03.840 --> 0:15:06.760 that was introduced, that the proceedings themselves become sort of 0:15:06.800 --> 0:15:12.560 fundamentally unfair and it requires a new trial. Now in 0:15:12.600 --> 0:15:16.720 this case, they were asking for a mistrial with prejudice 0:15:16.840 --> 0:15:21.200 so that written House couldn't be tried again. That's pretty 0:15:21.280 --> 0:15:25.400 unusual for a judge to grant, isn't it. Yes, mistrials 0:15:25.480 --> 0:15:28.840 in general, aside from trials where there is a hung jury, 0:15:28.880 --> 0:15:31.480 which also results in a mistrial, but the granting of 0:15:31.520 --> 0:15:35.280 a mistrial during the trial is very rare, and the 0:15:35.360 --> 0:15:39.320 granting of one with prejudices even rarer. Still. You know, 0:15:39.480 --> 0:15:42.880 throughout the course of a trial, sometimes witnesses make statements 0:15:42.920 --> 0:15:47.240 that are not admissible, Questions are asked that are improper, 0:15:47.600 --> 0:15:50.960 but judges simply give an instruction to the jury. They 0:15:51.080 --> 0:15:53.280 uphold an objection and they tell the jury that they 0:15:53.320 --> 0:15:56.640 should disregard the question. Or a witness says something that's 0:15:56.680 --> 0:15:59.520 irrelevant and the judge says, don't pay any attention to that. 0:15:59.600 --> 0:16:02.880 And so usually judges have these curative instructions that they 0:16:02.880 --> 0:16:07.120 give throughout the trial, and that's sufficient and the judge 0:16:07.160 --> 0:16:09.920 doesn't need to say, what we have to startle over again, 0:16:10.160 --> 0:16:13.160 this is a mistrial. The root of the argument that 0:16:13.240 --> 0:16:18.160 the defense was making the mistrial with prejudice. That can 0:16:18.200 --> 0:16:23.080 be granted when a judge believes that the prosecutor intentionally 0:16:23.240 --> 0:16:28.840 caused the mistrial. So the prosecutor knew the evidence was improper, 0:16:28.960 --> 0:16:32.000 knew that the questions they were asking were improper, but 0:16:32.160 --> 0:16:36.200 did it anyway and did it intentionally to create a 0:16:36.240 --> 0:16:41.400 situation where the trial became fundamentally unfair. And if they 0:16:41.480 --> 0:16:45.200 do that on purpose, then there is the possibility that 0:16:45.200 --> 0:16:48.160 the judge can say double jeopardy does apply here and 0:16:48.200 --> 0:16:51.600 you can't retry to defend it. In this case, the 0:16:51.640 --> 0:16:54.680 prosecutor told the judge he'd been acting in good faith. 0:16:54.960 --> 0:16:58.240 The judge said, I don't believe that. There is seems 0:16:58.240 --> 0:17:02.800 to be a very antagonist relationship between the judge and 0:17:02.840 --> 0:17:06.800 the prosecutor. He even yelled at him. I'm just wondering 0:17:07.040 --> 0:17:09.920 how that affects the jury when they see the judge 0:17:10.000 --> 0:17:15.199 and the prosecutor not behaving properly. Well. Part of the 0:17:15.240 --> 0:17:19.359 initial jury instructions that jurors get is that they they 0:17:19.400 --> 0:17:22.399 shouldn't draw any inferences from the fact that a judge 0:17:22.440 --> 0:17:27.360 may uphold an objection or chastise one of the attorneys 0:17:27.520 --> 0:17:30.399 in the course of the case. That basically the judge 0:17:30.480 --> 0:17:32.600 gives them an instruction to say that the jury shouldn't 0:17:32.600 --> 0:17:35.639 infer any from this. It's it's not personal. Lawyers have 0:17:35.680 --> 0:17:39.080 an obligation to make objections, They have obligations to make arguments. 0:17:39.119 --> 0:17:41.919 The judge has an obligation to to rule on those 0:17:41.960 --> 0:17:45.000 and to keep order in the courtroom, and that the 0:17:45.080 --> 0:17:48.719 advocates are going to make passionate arguments for their cause, 0:17:48.800 --> 0:17:52.920 and and that that's okay. It does become problematic if 0:17:53.200 --> 0:17:55.960 if a jury starts to perceive that the judge is 0:17:56.080 --> 0:18:00.879 hostile to one party's point of view or one party's case, 0:18:01.240 --> 0:18:04.640 or has a dislike for one of the litigants and 0:18:04.880 --> 0:18:08.119 is demonstrating that through the language they use or the 0:18:08.160 --> 0:18:10.040 way that they're referring to them or treating them throughout 0:18:10.080 --> 0:18:13.880 the trial. I don't see anything that rises to that 0:18:14.040 --> 0:18:17.920 level in this case. You know, the prosecution here has 0:18:18.560 --> 0:18:21.119 kind of a challenging case to make out. They have 0:18:21.280 --> 0:18:25.320 to disprove beyond a reasonable doubt that Mr Rittenhouse acted 0:18:25.359 --> 0:18:28.120 in self defense. So it's a challenging case for them, 0:18:28.160 --> 0:18:31.120 and they are pushing hard. They're they're pushing the limits. 0:18:31.560 --> 0:18:34.800 But I think one of the things that sparked the 0:18:34.920 --> 0:18:41.200 judges anger at the prosecutor yesterday was this rule about 0:18:41.320 --> 0:18:45.280 not commenting on a defendant's silence is a long standing 0:18:45.359 --> 0:18:49.240 rule and it implicates constitutional rights to the defendant. And 0:18:49.640 --> 0:18:53.720 this particular prosecutor is very experienced. So this was not 0:18:53.840 --> 0:18:56.520 an accident in the judge's mind. This was not sort 0:18:56.520 --> 0:18:59.680 of a rookie mistake. This was something that the prosecutor 0:19:00.200 --> 0:19:02.720 knew he shouldn't be doing, but he did it anyway. 0:19:02.880 --> 0:19:06.080 And that's why the judge says to him that the 0:19:06.200 --> 0:19:08.840 judge doesn't feel like he was acting in good faith. Now, 0:19:09.359 --> 0:19:11.840 is that one incident even if the judge thinks it 0:19:11.880 --> 0:19:16.400 wasn't bad faith enough to prompt an entire mistrial, Probably not. 0:19:16.600 --> 0:19:18.760 It doesn't rise to that level. And the judge addressed 0:19:18.760 --> 0:19:20.600 it as it came up, and then he addressed it 0:19:20.640 --> 0:19:23.320 outside of the presence of the jury. So let's talk 0:19:23.320 --> 0:19:27.840 about Rittenhouse testifying. Did he help or hurt himself with 0:19:27.920 --> 0:19:31.920 his testimony? I think he helped himself. Um. I think 0:19:31.960 --> 0:19:34.920 any time the defendant can get on the stand, especially 0:19:34.920 --> 0:19:38.080 in a case like this where emotions are running high, um, 0:19:38.680 --> 0:19:41.679 and they have been sort of portrayed in a certain 0:19:41.800 --> 0:19:44.960 light um in the media by the prosecution. In this case, 0:19:45.200 --> 0:19:48.760 you know, the prosecution was to paint him as a vigilante. Um. 0:19:48.840 --> 0:19:51.879 And when he gets on the stand, I think you 0:19:52.080 --> 0:19:54.919 see him as a person. At any time the defendant 0:19:54.960 --> 0:19:58.040 takes the stand, you get the opportunity to hear from them. Uh, 0:19:58.240 --> 0:20:01.760 see them as as a as a fellow human being 0:20:01.800 --> 0:20:04.280 and not some caricature that's being made out by the 0:20:04.280 --> 0:20:07.640 other side. Um. He showed emotion on the stand. Um. 0:20:08.040 --> 0:20:10.280 You know, obviously he continued to say that he thought 0:20:10.320 --> 0:20:13.360 he was justified in doing what he did. But UM, 0:20:13.640 --> 0:20:16.920 the emotion that you could see when he took the stand, 0:20:16.920 --> 0:20:19.679 when he was in answering questions and explaining what happened 0:20:19.720 --> 0:20:22.560 that night, that can be powerful for a jury. And 0:20:22.600 --> 0:20:24.760 can you know, really humanize him and see that he 0:20:24.800 --> 0:20:28.000 does struggle with what happened that night on a on 0:20:28.080 --> 0:20:31.240 a personal level, on a on an emotional level. Um. 0:20:32.119 --> 0:20:35.200 And and I you know, again, it wasn't a surprise 0:20:35.240 --> 0:20:37.960 what he said. I mean, we all pretty much knew 0:20:38.000 --> 0:20:39.480 what he was going to say, and he said it. 0:20:39.960 --> 0:20:41.960 But having him say it, and having him say it 0:20:42.119 --> 0:20:46.240 in the way that he did, UM, showing some emotion 0:20:46.280 --> 0:20:50.200 about it, and UM, you know, I think that was important. 0:20:50.240 --> 0:20:52.679 And I and the danger with putting him on the 0:20:52.720 --> 0:20:56.160 stand is that the prosecution can cross examine him. UM. 0:20:56.200 --> 0:20:59.520 But I thought during the cross examination, once again, I 0:20:59.520 --> 0:21:02.040 think he was a very well prepared witness and acquitted 0:21:02.080 --> 0:21:06.000 himself fairly well. He took the opportunity when the prosecution 0:21:06.080 --> 0:21:10.040 gave it to him on cross too tell his story. UM. 0:21:10.119 --> 0:21:12.840 And I think in any case where they're where you're 0:21:12.880 --> 0:21:15.280 asking the jury to kind of put themselves into the 0:21:15.320 --> 0:21:19.520 perspective of the defendant, to view things through the eyes 0:21:19.560 --> 0:21:21.880 of the defendant on that evening and make a decision 0:21:21.880 --> 0:21:26.320 about whether or not their conduct was reasonable. UM. Hearing 0:21:26.359 --> 0:21:30.840 directly from the defendant is really important. It struck me 0:21:30.920 --> 0:21:34.639 that he said I didn't do anything wrong. I defended myself. 0:21:35.000 --> 0:21:38.280 It seemed like there wasn't remorse. I think he's actually 0:21:38.280 --> 0:21:41.280 in a difficult spot when he's on the stand about 0:21:41.320 --> 0:21:45.200 that because UM and and and this will have come from, 0:21:45.240 --> 0:21:48.800 you know, discussions with his defense lawyers, and I have 0:21:48.920 --> 0:21:52.199 to say, I want to just caution listeners to UM. 0:21:52.240 --> 0:21:56.040 It's perfectly normal and part of UM, you know, part 0:21:56.080 --> 0:21:59.639 of trial strategy, UM, to prepare witnesses to get on 0:21:59.640 --> 0:22:02.520 the stand. And I mean you could see Mr Grosscroiz 0:22:02.720 --> 0:22:06.200 was also a very well prepared witness and often would 0:22:06.240 --> 0:22:08.119 answer when he was asked questions. He would turn and 0:22:08.160 --> 0:22:11.000 speak directly to the jury, which is something that you 0:22:11.080 --> 0:22:13.600 encourage witnesses to do so. So I don't want to 0:22:13.600 --> 0:22:17.440 suggest any lawyer was acting improperly, but I think I'm 0:22:17.520 --> 0:22:22.679 I'm quite certain that when they were discussing Mr. Rittenhouse testimony, 0:22:22.720 --> 0:22:25.639 I'm i'm certain that the issue of what level of 0:22:25.680 --> 0:22:30.080 responsibility and remorse should he show on the stand, What 0:22:30.160 --> 0:22:33.280 what should he say? Um And? I would expect his 0:22:33.400 --> 0:22:37.240 lawyers probably counseled him that if he felt he was 0:22:37.320 --> 0:22:40.879 justified in shooting, which that that has been his testimony, 0:22:40.880 --> 0:22:43.600 that's been his position, he should hold to that position, 0:22:44.000 --> 0:22:47.720 um and. And he should not say that he feels 0:22:47.720 --> 0:22:50.359 bad or remorseful about what happened. He should stick to 0:22:51.480 --> 0:22:54.560 maintaining his claim that he was justified in doing what 0:22:54.600 --> 0:22:57.840 he did. Um And. So it's a difficult place for 0:22:57.920 --> 0:23:00.639 him to be on the stand. Um. I can't imagine 0:23:01.520 --> 0:23:05.720 any person who takes the life of another human being 0:23:05.760 --> 0:23:10.840 not feeling some remorse for doing that, especially under these circumstances. 0:23:10.840 --> 0:23:14.400 But whether or not, the lawyers sort of counseled him 0:23:14.400 --> 0:23:16.560 that that was a good thing to say on the stand, 0:23:16.920 --> 0:23:20.239 right because it it might lessen his claim that he 0:23:20.400 --> 0:23:24.639 was justified. UM. I'm sure that entered into the calculation. 0:23:24.800 --> 0:23:27.200