Rittenhouse trial, Ahmaud Arbery killing: latest developments

LiveNow from FOX

Closing arguments in the Rittenhouse Trial are scheduled for Monday. Criminal defense attorney Jaime Santana speaks with LiveNOW on Rittenhouse developments, and the latest in the murder trial of Ahmaud Arbery, including a defense attorney asking the judge to limit black pastors in the courtroom.



…Rittenhouse trial. Rittenhouse facing six charges, including intentional homicide. Joining us now live is Jaime Santana, criminal defense attorney in the Bronx in New York, also a former judge and prosecutor. Thank you so much for joining us this morning and offering your legal analysis.


Good morning. Thank you for having me. It’s a pleasure to be here today.


We know that the jury is dismissed until Monday. That’s when we expect closing arguments to take place. But happening today, Judge Bruce Schroeder, he’s considering lesser charges in the shooting death of Anthony Huber.

So, my first question is, considering the magnitude of this case, why would the prosecution even want to consider lesser charges?


Oftentimes, that’s a sign that the prosecution truly believes they’re in some sort of trouble. In this particular case, the top charge is intentional killing, which carries a mandatory minimum life sentence in the state of Wisconsin. So, when you see a prosecution ask for the judge to consider having the jury consider lesser included charges, oftentimes, that is because they’re in trouble.

Perhaps their feeling is that they have not done a good job proving their case beyond a reasonable doubt. And so, rather than take a chance and have the jury acquit on a more serious and top charge, they would rather have the jury have the option of considering a lesser included charge so that they may subsequently get some sort of a conviction.


That definitely sounds like bad news for the prosecution if they’re having trouble proving the case beyond the shadow of a doubt. So, what could the lesser charge look like? What could the jury possibly be considering?


In the state of Wisconsin, again, the top charge in this specific case requires a mandatory sentence of life, minimum. If, in fact, the jury can consider a lesser charge, certainly that’s a potential win, if you will, for the defense if, God forbid, he’s convicted. As a defense attorney, of course, you’d much rather have your client be convicted of a lesser included charge if your client is going to be convicted at all.

But in terms of what the defendant would potentially face, it certainly would not be a mandatory minimum sentence of life. It would be something less. And keep in mind that there are other charges on the docket. There’s also a firearms possession charge. I believe he’s charged with illegally possessing, I think it was sort of an AR-15-style rifle, if you will. So, there’s that for the jury to consider.

There’s also something along the lines of an attempted intentional homicide, if you will. So, the jury would definitely have something to consider regardless. But the fact that the prosecution is asking for even more consideration with respect to lesser included charges, I think that’s a sign that they believe they’re in some sort of trouble.


There have been many controversial moments in this case besides this one. For example, the deceased not being able to be called “victims,” the judge asking attorneys to refer to the deceased as “protestors” or “rioters.” That gained a lot of attention. You’re a former judge. What’s your take on this?


As a judge, it’s imperative that you remain fair and impartial. You should not be swaying towards either the prosecution or defense. With respect to that specific comment, I can tell you as a judge, you want to make sure a ruling like that tells the jury, “Hey, we don’t want you to take your emotions into consideration with respect to your job as a juror, and that is to be fair and impartial in this case.”

And even as a defense attorney, I do the same thing. I’ll make some sort of a record to that extent because you want to minimize the personal attachment to emotions the jury may have in connection to attaching themselves to individuals in this case. Certainly, when you hear the term “victim,” that victimization of that position, if you will, automatically may inherently carry some sort of an emotional attachment.

So, as a defense attorney, you certainly want to detach from that. You want to detach the jurors from that, and I believe that’s what the judge in this case was doing. He was looking to be as fair and impartial for both sides.


I do want to turn our attention to another case that we’ve closely been following here on “Live Now from FOX,” and that is the Ahmaud Arbery trial. There was recently another controversial moment inside of that courtroom in Georgia. Let’s take a look.


My understanding while I was cross-examining Investigator Lowry yesterday is that the Right Reverend Al Sharpton managed to find his way into the back of the courtroom. I’m guessing he was somehow there at the invitation of the victim’s family in this case.

I have nothing personally against Mr. Sharpton. My concern is that it’s one thing for the family to be present, it’s another thing to ask for the lawyers to be present, but if we’re going to start precedent starting yesterday, we’re going to bring high-profile members of the African American community into the courtroom to sit with the family during the trial in the presence of the jury, I believe that’s intimidating, and it’s an attempt to pressure – could be consciously or unconsciously – an attempt to pressure or influence the jury.

To my knowledge, Reverend Al Sharpton has no church in Glynn County and never has. He hasn’t been here since Elaine Brown ran for mayor, to my knowledge. Obviously, there are only so many pastors they can have, and if their pastor is Al Sharpton right now, that’s fine, but then that’s it. We don’t want any more black pastors coming in here or other, Jesse Jackson, whoever was in here earlier this week, sitting with the victim’s family, trying to influence the jury in this case.

And I’m not saying the state is even aware that Mr. Sharpton was in the courtroom. I certainly wasn’t aware of it until last night. But I think the court can understand my concern about bringing people in who really don’t have any ties to this case other than political interests.


So, that was the defense attorney for one of the three men on trial for the Ahmaud Arbery killing asking the judge to limit the black pastors in the courtroom. Thoughts?


One word: outrageous. And it was an embarrassment to the defense community, if you will. I understand we have a job to do as defense attorneys. I really do. But, clearly, that attorney’s record that he made to the judge was race-based. It would have been interesting to see if the judge would have responded by saying, “Well, would you have any objections if there were additional white pastors present in the courtroom?” It would have been interesting.

And, more importantly, it didn’t make any sense. Aside from it being race-based, we have to take into consideration the fact that, if we recall, there are, I believe, 11 white jurors and one African-American juror. So, exactly who was he afraid of any potential “black weapons” intimidating? The majority of them are already caucasian.

In addition to that, the court is an open forum. It’s a public court. So long as you’re not being disruptive and there’s room in the court, you can be present there. Whether it’s Latino, black, white, if the individual is there in support of the family and they just so happen to be an African-American pastor, then so be it.

I was also disappointed that the judge didn’t have more to say. Perhaps that speaks volumes to the type of racial climate, if you will, in that particular jurisdiction. But I believe it was a very, very sad record that attorney made.


You bring up an interesting point, Jaime, because it seems like race has really been a central issue even before the trial actually started. You mentioned the racial makeup of the jury. I mean, 11 white jurors seated and only one black. The judge actually declined to change the racial makeup even though a superior attorney found that it was intentional discrimination. So, how does the juror make decisions fair and impartially when, obviously, race is a central issue?


Right, exactly. To begin with, I’m not so certain as to how the dynamics played out with respect to this defense attorney or the judge even allowing 11 white jurors and one African-American.

There’s something called a “Batson challenge.” What happens is, if you’re the prosecution and you believe the defense attorney is excluding all African-American jurors based on race, you have a right to raise an objection, which is called a “Batson challenge.” And then, the judge would have to determine, ultimately, if your argument with respect to a race-based challenge, if you will, is appropriate. If so, the defense attorney would not be allowed to continue doing that. I’m curious to know as to whether or not the prosecution attempted to change the racial dynamic and makeup of this jury.

But in terms of how we may anticipate a jury observing and assessing this case, it’s going to be very interesting. In this particular case, the deceased was a young African-American male being chased by three individuals, and he was murdered. This was not a case of self-defense. Arbery was not in possession of any weapon. There was no indicia of reliability whatsoever to suggest these individuals were justified in, essentially, murdering Arbery. This case is not even close to being what, perhaps, some of the issues are in the Rittenhouse case.

So, in terms of how the jury is going to view it, what we hope is that the jury is going to be fair and impartial, even them being an all-white jury. We hope they are going to be fair and impartial, assess the credibility of each and every witness that’s put on that witness stand, and determine, based on the evidence or lack thereof, whether or not the district attorney’s office has met their burden beyond a reasonable doubt.


All right, Jaime Santana, criminal defense attorney with Santana Law Partners there in New York. Thank you so much for joining,


My pleasure. Thank you for having me.