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Legal View with Ashleigh Banfield

Ferguson Protests; Calls for Special Prosecutor; Grand Jury Could Soon Take Up Michael Brown Shooting; Witness Accounts Differ From Officer's Account

Aired August 19, 2014 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

MICHAELA PEREIRA, CNN ANCHOR: Good day. I'll bring the snacks, LZ, and Sally -

UNIDENTIFIED MALE: Absolutely.

UNIDENTIFIED FEMALE: (INAUDIBLE).

PEREIRA: I hate that we have to be having this conversation, but I'm glad that we can do it and we can do it reasonably. Thank you so much.

That's it for AT THIS HOUR. "Legal View" with Ashleigh Banfield starts right now.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone, I'm Ashleigh Banfield. And it's Tuesday, August the 19th. Welcome to LEGAL VIEW.

It is only a half mile stretch of road but it's being seen all over the world. The streets of Ferguson, Missouri, ground zero of the conflict between predominantly white police and hundreds of mainly black protesters furious over the police shooting death of an 18-year- old young man named Michael Brown. We are bringing you comprehensive coverage this hour. Police arrested at least 31 people last night. Two people were shot, although not by the police. Four of the officers were injured.

These are nightly scenes that we are not used to seeing across America -- stun grenades, tear gas, canisters, rocks, Molotov cocktails and gunfire. The Justice Department has opened a civil rights investigation into Brown's death. Attorney General Eric Holder will travel to Ferguson tomorrow to meet with FBI investigators and the prosecutors as well.

Michael Brown's mother says the continuing violence on the streets night after night is detracting in some way from getting justice for her son. Listen to what she told NBC's Matt Lauer on the "Today" show this morning.

(BEGIN VIDEO CLIP)

LESLEY MCSPADDEN, MICHAEL BROWN'S MOTHER: We have to remain focused and we have to remain strong and the violence needs to stop. When justice is prevailed then maybe they'll regain their trust in the locals. But right now, it's really out of control.

(END VIDEO CLIP)

BANFIELD: Things went from bad to worse yesterday before it even got dark. CNN is right there, on the ground, keeping you informed as everything happens, including my colleague, Don Lemon, who joins me live now from Ferguson, Missouri, in what I can expect, Don, has only been a very long night for you. Can you give me a lay of the land right now and then take me back to the last 12 hours for you.

DON LEMON, CNN ANCHOR: Well, I'll tell you what's happening now. The media, we have been put in the control -- the command center area where the police officers -- I mean just any law enforcement agency that you can think of in the state of Missouri is out here in this parking lot, in this area that we're in. We're really about a quarter of a mile down the road from where it all went down last night on the corner of Ferguson, on that long stretch of road where Michael -- near where Michael Brown lost his life, Ferguson and West Florissant. And, you know, we were on the air last night keeping a close watch on all of the protesters. And, you know, you could call them peace marchers. Most of them are peace marchers. And then it devolved into something that was very ugly.

People started throwing bottles. We were told that it was outside agitators that had come in and started throwing bottles. We were told that it was anarchists who had some in and started throwing bottles. And then the police presence came in to try to push everyone off the street. And then that's when the chaos ensued.

We are told by police that Molotov cocktails were thrown at them. We witnessed a gunshot victim right in front of our live shot. We witnessed protesters being hit with tear gas. We witnessed members of the media being hit and overcome with tear gas. We ourselves were not tear gassed on purpose but from the remnants from it being in the air that we had to deal with it ourselves. Members of law enforcement put on their tear gas masks. They told us that we probably should as well.

And then after we witnessed that gunshot, quite frankly, I put on a -- one of the flak jackets here because, you know, bullets, Ashleigh, don't have GPS and they don't have names on them.

BANFIELD: Sure don't.

LEMON: People started running and scattering -

BANFIELD: So, Don -

LEMON: And their eyes were burning and we were crying and we were having trouble talking and breathing.

BANFIELD: It seemed odd to me, and that's just me, but it seemed odd that there was a curfew lifted for last night and now we're hearing about a letter -- I think it's from the city of Ferguson -- calling for yet again something -

LEMON: Yes.

BANFIELD: Can you shed light on what the city's asking for tonight? LEMON: Yes. I have something here and I'm not -- we're checking on it.

My producer is checking on it. What it says, "Ferguson issues a call for nighttime quiet and reconciliation." And my producer, Julian Cummings (ph), is telling me that that is indeed a fact. And it says, "the city leadership has issued the following statement. St. Louis and Ferguson, on this day, the national center" -- let's see, I'm getting -- I'm reading it from my e-mail. And it starts at what time? Yes.

So anyway, they're calling for basically a moratorium on nighttime protests because of what happened last night and in the wake of all the violence that has been happening. I think what they wanted to do is regroup. And we're going to have to see how that plays out, Ashleigh, because people were -- became upset yesterday because they thought, hey, listen, we have the right to assemble. That's part of our American rights. That's part of our rights as Americans. And when the officers were telling them that they couldn't assemble at the QT, you know, we were on the air yesterday. They were saying, you can't assemble at this QT. You can't assemble on the streets. And so they -- that's really what kind of fueled some of the violence anyways because people were fighting back saying, hey, this is my right, don't tell me what to do. So we'll see what happens.

BANFIELD: Well, and you can't throw -- you know, you can't throw things at the police. I remember hearing some of the demonstrators last night saying it was only a bottle of water.

LEMON: You got it.

BANFIELD: Well, guess what, these things can escalate in mere seconds, you know?

LEMON: But how do they know? How do you know what's in that bottle of water? I mean the officers don't know if it's a bottle of water or what it is, right?

BANFIELD: Well, it's true. You know, good point. Or a Molotov cocktail, which is a bottle of some kind of fluid. Right.

LEMON: Right.

BANFIELD: All right, Don, excellent work. I hope you're getting some rest. I've watched you day in, day out, working so hard. And by the way, to that end, I said I hope you're getting some rest, but yet again tonight on CNN at 10:00 p.m. Eastern, Don Lemon is, yet again, going to do his special coverage. He's going to host a town hall event on the dividing issue of race.

Thanks, Don.

LEMON: Thank you, Ashleigh.

BANFIELD: Doing a great job out there. And by the way, in this case, a grand jury could begin to actually hear testimony from witnesses as early as tomorrow. We're going to get into what that might mean and also what they might here hear just a little bit later on in the program. But first, more than 26,000 people have signed a petition on

moveon.org calling for a special prosecutor to come into this case. Critics are saying the Missouri prosecutor who's overseeing the investigation can't be fair and impartial. Missouri State Senator Jamilah Nasheed laid out her reasons why she feels that way to Carol Costello just a short time ago. Have a look.

(BEGIN VIDEO CLIP)

JAMILAH NASHEED (D), MISSOURI STATE SENATOR: First and foremost, Bob McCulloch, if you are listening, it is incumbent for you to step up and do the right thing and voluntarily recuse yourself from this investigation. The people and the African-American community, they do not have the confidence that you will be fair and impartial. You are unbiased due to the fact that you have a close relationship with the police department out here in Ferguson and St. Louis County.

(END VIDEO CLIP)

BANFIELD: For the legal view on all of this, I want to bring in CNN legal analyst Mark O'Mara, who you'll remember as George Zimmerman's defense attorney in the Trayvon Martin murder case, and then CNN's legal analyst Paul Callan, a criminal defense attorney and former prosecutor.

And, Paul, you've been doing some digging into Bob McCulloch's background. You have some insight into just who this person is. And he's about to become pretty darn famous. What do we know about him?

PAUL CALLAN, CNN LEGAL ANALYST: Well, he's the elected prosecutor from the county. He's been elected on multiple occasions. And he's been considered quite popular through the years. But he also has very close ties to law enforcement. His father was a police officer. And, in fact, in 1964, when Prosecutor McCulloch was only 12 years old, his father was killed while affecting the arrest of an African-American man. And this is, of course, one of the things that's being said, you know, you're a little too close to the fact pattern here.

His wife is connected with law enforcement. He's got an uncle and a cousin who are -- and I think there's a brother involved also. So lots of family connections to law enforcement that are inspiring people to say he's not the right guy for the job. But I have to add, as a matter of law, and I'm sure Mark can expound on this, the fact that you have close friends or even relatives who are in law enforcement does not disqualify you to handle a legal case.

BANFIELD: Can I just add before we go to Mark on that, is the response from this prosecutor, because clearly he's hearing these calls, he's hearing this criticism, and he has sent out by his executive assistant, Edward Mcgee (ph), he has sent out this statement. "Mr. McCulloch has been the elected prosecutor in St. Louis County since 1991. He's been re-elected every four years by an overwhelming majority of St. Louis County. The people have faith in Mr. McCulloch and he'll continue to do his duties."

So, Mark, what happens in the circumstances where the people are saying they don't have faith, the voters apparently have said they do, and how does a special prosecutor ultimately end up in this case, if one does?

MARK O'MARA, CNN LEGAL ANALYST: My initial reaction is he -- it's his job, let him do it. And whether or not this case has racial overtones to it, which it obviously does, should not impact on the way he's going to discharge his duties. But we also have to think that we are in a completely different world. And if we're going to have an event which is three quarters of truly a social event and one quarter of a murder investigation or homicide investigation --

BANFIELD: It's different.

O'MARA: Maybe we have to look at it differently and say, we will do what we otherwise don't need to do to really gain trust of the people that are going to be the most affected by this. So, hesitantly, maybe he should say, let's bring somebody else in who is not connected to local law enforcement.

BANFIELD: And so as we look at today, because today's the only snapshot that we have in play, there is this word that we could have a grand jury convene as early as tomorrow. I think we're only on day 11 or 12 right now of this entire case and grand juries often, in a case that's similar to this, can take upwards of five or six months, Paul, before they're seated and they hear the whole case. How on earth is this playing out so quickly and is that a good thing?

CALLAN: Well, I'll tell you why it is, and I've been looking into this situation in other jurisdictions, like New York City, how long does it take on average in a police shooting case to get a grand jury in action. And it's usually a long time. As you said, five, six months. Sometimes it's a year before they proceed. They're very slow in investigating these cases and presenting the cases.

Now, why so fast here? Well, one, Eric Holder, the U.S. attorney general is in town, and the feds are looking at maybe superseding and taking over the investigation. That's one reason why McCulloch might be convening his own grand jury to get the jump on a federal grand jury. The second thing is, if the governor and other political figures start putting pressure on him to allow a special prosecutor to be appointed, he will be able to say, listen, I'm halfway into this investigation, there's no reason to throw me out. So I think that's why McCulloch is moving quickly. And, of course, there's a third thing, the public wants a swift resolution of this problem.

BANFIELD: The public wants a swift resolution to this problem. If there's someone who knows a lot about what the public thinks of a case, it's you, having gone through, Mark, -- through the Zimmerman case, Mark O'Mara. And my question to you is this, the public is asking for justice now. No justice delayed. But is justice now always the best kind of justice?

O'MARA: It's not. It's absolutely not. If you rush to the investigation without doing everything right, without crossing every "t" and dotting every "i," then you're going to get criticized for having not done it right. These investigations take time. There are dozens of witnesses to be talked about. There's a lot forensic evidence to be accomplished, looked at and analyzed.

We are rushing to judgment because we've gotten so used to the idea of wanting it now. But justice, given this time, is going to be the justice most people want. And what we really want to do is try to insulate the process from criticism afterwards. Whatever the result is, it's going to be looked at and criticized. Why rush? Take the time and do it right.

BANFIELD: Yes, apart from appeals, you really don't get a do over in these circumstances.

O'MARA: No.

BANFIELD: Mark, Paul, thank you. Stay with me, if you would.

As I mentioned, that grand jury could hear evidence as early as tomorrow in this case, and that's the first step towards a possible indictment for Officer Darren Wilson. What will the grand jury do? What will they hear? And maybe more importantly, will you or anyone else in that community ever know anything about it? You might be surprised. That's next.

(COMMERCIAL BREAK)

BANFIELD: Welcome back.

The protesters in Ferguson, Missouri, may get what they want, and that is swift justice for Mike Brown. There are some unconfirmed reports that a grand jury could be meeting as early as tomorrow to decide whether to charge Police Officer Darren Wilson in Brown's death.

The family attorney told Anderson Cooper he is concerned about prosecutors taking the case to a grand jury because of the secrecy that surrounds grand jury proceedings.

(BEGIN VIDEO CLIP)

BENJAMIN CRUMP, BROWN FAMILY ATTORNEY: I'm always concerned about a grand jury because what you want is equal justice and when things go to the grand jury, it's all in secret, as you say, Anderson, and nobody knows what the prosecutor presents to the grand jury.

So these people need transparency. There's a large distrust there. They know if the shoe was on the other foot there wouldn't be no grand jury. They would be arrested at least and charged with crime.

We want equal justice too. We don't want anything unfair to the officer, but what about our children?

(END VIDEO CLIP)

BANFIELD: Joining me to talk about the potential case against Officer Darren Wilson are CNN analysts Mark O'Mara and Paul Callan, back with me.

Paul, start me off with the Primer 101 on grand jury proceedings because I think a lot of people don't understand you don't have the right to know.

Not only are there no cameras, they don't often release or rarely ever release any kind of information about what happens. Who are those people who make the decisions? What do they hear?

CALLAN: It's a very secretive process. Grand juries have been around for a long time, and the idea was that it was a check on the prosecutor. If he was overzealous and he was looking to charge somebody for political reasons, the grand jury would look at the evidence and say there should be charges or there shouldn't be charges.

But as part of that function, secrecy applies. For instance, they take an oath that they can't reveal any evidence that they hear in the grand jury. So a lot of secrecy shrouds the grand jury. And so we'll hear that said as this investigation goes on.

A second thing I want to mention, Ashleigh, just because the grand jury is beginning this investigation doesn't mean they're going to decide the case instantly. You can carry a grand jury over from month to month. It still could be a long-term investigation. They could vote quickly, but it could also be long term.

BANFIELD: That was my next question. Just the fact that it might actually begin tomorrow doesn't mean you'll have any answers tomorrow. In fact, I've heard of grand jury proceedings that have gone on upwards of a year. But you can't imagine that would happen in this case?

O'MARA: Probably not in this case. There's got to be an end-point. If it takes 90 days, 120 days to get there to the end-point where enough information is given to the grand jury where they can look at it and say, we have enough to make a decision.

I'm not sure why he's starting so quickly unless he's just giving in to some of the pressure to get the event started. I would much rather see a prosecutor get his act together, get the case together, look at it appropriately, and then present it.

BANFIELD: Gentlemen, you have heard often the refrain "you can indict a ham sandwich." It's not true, but you can get an indictment pretty easily.

CALLAN: Oh, it is pretty much true, I think. That comes out of New York, that saying. The chief judge in New York once said that, yes.

BANFIELD: So, my question to you, if this doesn't get indicted, are we going to have hell on the streets?

CALLAN: I mean, you know, what are we seeing on the streets now? The view, the public view of this case, on the street, is very one-sided. And it's against the police officer.

BANFIELD: Mark --

CALLAN: -- unless the other side gets presented, yeah, I think people are going to have trouble.

BANFIELD: You can indict a ham sandwich and you don't get an indictment here, are people going to accept that?

O'MARA: No, just not going to accept it, because at the very least -- don't forget -- it's a probable cause standard to get the indictment and then the trial happens.

BANFIELD: All right, Mark O'Mara, Paul Callan, thank you both.

For the first time in this case, we're actually hearing -- somewhat hearing -- about the officer's side of the story. It's coming from a friend of officer Darren Wilson. And we have that account for you, coming up next.

Plus, and this is a big part of it, how does the officer's account stand up when you hear it side by side with the other witnesses? You're going to get the opportunity to hear the witnesses and the officer's account, side by side, after the break.

(COMMERCIAL BREAK)

BANFIELD: Some of the most critical evidence in the investigation into the death of 18-year-old Michael Brown could certainly be eyewitness accounts of the shooting. And let's be clear here. There are vastly differing versions of what happened during that shooting.

A friend of Darren Wilson's has come forward claiming the officer was bum rushed by the unarmed teenager, citing what the officer has said in his account.

But the witnesses say that Brown was not attacking the officer, the other witnesses from the scene.

I want you to listen to a phone call that was made to "The Dana Show" on Radio America by a woman claiming to be someone named "Josie" who details the officer's version of the events.

(BEGIN VIDEO CLIP)

"JOSIE," SAYS SHE KNOWS OFFICER'S STORY: Michael takes off with his friend. They get to be about 35 feet away and, you know, Darren's first protocol is to pursue. So he stands up and yells, "Freeze!"

Michael and his friend turn around and Michael starts taunting him, "Oh, what are you going to do about it?" You know, "You're not going to shoot me." Then he said all a sudden he just started to bum rush him. He just started to come at him, full speed.

And so he just started shooting. And he just kept coming. So he really thinks he was on something because he just kept coming. It was unbelievable. And then so he finally ended up -- the final shot was in the forehead.

(END VIDEO CLIP) BANFIELD: And CNN has confirmation from the authorities that that is indeed the version of events that was given to them and the account from the officer in question.

So now that you have that picture, I want you to listen once again ton those witnesses who came forward last week shortly after the shooting. And perhaps you can see where they are apart.

(BEGIN VIDEO CLIP)

DORIAN JOHNSON, WITNESS TO SHOOTING: He was trying to get away, and the officer again reached out, and he grabbed his arm to pull him into the car. Now it's like the officer's pulling him inside the car. He's trying to pull him away.

At no time the officer said that he was going to do anything until he pulled out his weapon. His weapon was drawn. He said, "I'll shoot you." Or, "I'm going to shoot." And the same moment, the first shot went off.

And we looked at him. He was shot. There was blood coming from him. We took off running. As we took off running, I ducked and hid for my life because I was feared for my life and I hid behind the first car I saw.

My friend, he kept running. He told me to keep running because he feared for me too. So as he was running, the officer was trying to get out of the car and once he got out the car, he pursued my friend, but his weapon was drawn.

Now, he didn't see any weapon drawn at him or anything like that, us going for no weapon. His weapon was already drawn when he got out the car. He shot again and once my friend felt that shot, he turned around, and he put his hands in the air, and he started to get down.

But the officer still approached with his weapon drawn, and he fired several more shots, and my friend died.

TIFFANY MITCHELL, WITNESS TO SHOOTING: I saw the officer pulling him in. I saw him trying to pull away. I got on my phone to try to get a video because it didn't look right. I didn't know exactly what was going on, but I know it didn't look right for someone to be wrestling with the police through the police window.

But I didn't get the video because a shot was fired through the window, so I tried to get out the way. As I pull onto the side, the kid, he finally gets away. He starts running.

As he runs, the police get out of his vehicle and he follows behind him shooting. And the kid body jerked as if he was hit from behind, and he turned around, and he puts his hands up like this.

And the cop continued to fire until he just dropped down to the ground. His face just smacked the concrete.

(END VIDEO CLIP)

BANFIELD: Now, those are some pretty vast differences between those two witnesses on the scene and the friend of the officer.

So coming up, we're going to get the LEGAL VIEW on what those discrepancies mean for this investigation and what ultimately could help to get to the truth of what happened that fateful day. That's coming up.

(COMMERCIAL BREAK)