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Legal View with Ashleigh Banfield

Lack of Transparency in Investigation; Ferguson Community; What Will Forensics Say in Michael Brown Case?; A Look at Police Training for Interacting With Suspects

Aired August 19, 2014 - 12:30   ET

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

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ASHLEIGH BANFIELD, CNN ANCHOR: Violence and unrest flaring up again overnight in Ferguson over the death of 18-year-old Michael Brown, there are differing accounts of what happened the day that he was shot.

A friend of Darren Wilson has come forward, claiming the officer was bum rushed by the unarmed teenager. But witnesses on the ground say that Brown was not attacking the officer and instead had his hands up.

Want to discuss these discrepancies and how they ultimately may or may not be proven or disproven. Our CNN legal analysts Mark O'Mara and Paul Callan are here as well.

Vastly different opinions of what happened at the moment that second shot apparently hit Michael Brown and he jerked around.

From there, there's the divergence. What will the forensics, Paul, tell us? What kinds of forensics can get to the truth?

PAUL CALLAN, CNN LEGAL ANALYST: The forensics will give us detail regarding angle of entry with respect to the bullets that were fired.

And there are -- they can actually use long sorts of tubing to put into the wound site to trace which way the bullet went. That will give us more detail about whether it was a shot from behind or a shot in front.

This is still quite vague in term, of the forensics, despite the Dr. Baden press conference.

BANFIELD: Speaking of vague, the press conference, this drawing of the positions of the actual shots, it seemed to leave a lot of questions unanswered, like trajectory, like stippling, like gunshot residue, all the kinds of things that might help you actually understand a little bit clearer where the bullets were fired from, how they were fire and what position the body might have been before it actually was felled.

MARK O'MARA, CNN LEGAL ANALYST: I think the forensics are going to help us to a certain extent because they will do just that. They'll give us the geography.

What they're not going to really tell us what was going on between the two individuals, whether or not Michael Brown was coming towards him or bum rushing him as someone said and how the officer was responding.

Don't forget, those six shots probably were taken -- took about two- and-a-half to three seconds to be shot, not very much time. Reaction time is about a second to a second and a quarter.

Somebody can cross over 20 feet in a second. So when you start adding that into it, you have to look at the officer not in the cold light of day, what he was going through and what he perceived because --

BANFIELD: At that moment.

O'MARA: -- the whole issue was, did he perceive himself to be in fear of bodily injury.

BANFIELD: The two accounts of Michael Brown spinning around, having been shot, and it might have been a grazing shot that Michael Baden spoken about yesterday.

But the two accounts of him spin around and putting hands up, could these different accounts, perhaps the witness account of the officer, as related by "Josie," and the witness accounts of the two people on the ground, Tiffany and Dorian, could they have perceived what that action -- and I'm just going to sort of do it, if you're spinning around with your hands up, could have meant?

To Tiffany and Dorian, could it have meant surrender? And to an officer who might have been in fear, could it have meant attack?

CALLAN: That's why I don't think there is a huge conflict between the statements. I think they're actually quite consistent, and it depends upon what you think you're seeing.

Now, let's take it --

BANFIELD: The bum rush is one thing, I will say this. The bum rush is bum rush. It's not position of a body.

CALLAN: Well, let's take it from what we're hearing now about the officer's standpoint.

If he is pursuing who he considers to be a dangerous suspect and he's yelling stop and the suspect then turns and then starts running towards him with his hands out like this, somebody looking from a window -- and, Tiffany, by the way, I was double-checking, she was in a car when she sees this.

And, by the way, she also is reaching for her camera so she can film it, so I'm not so sure that she was watching the whole incident just based on what she said.

But she says she sees him holding the hand up in surrender. Now, how is that different from rushing forward with your hands out in front? It's very, very close.

And as Mark says --

BANFIELD: I'm not sure it's close. I would argue -- if I were an attorney in a court of law --

CALLAN: You can argue all you want, but the officer, the officer's looking at, as Mark has indicated, you can cover 20 feet in one second. This is 34 feet, according to one of the witnesses, so you're talking about less than 2 seconds and this 6'4", 300-pound person is going to be on top of the cop.

BANFIELD: Let me ask this. We do not know any of the forensics from the service revolver of this police officer. Nor do we know any of the forensics from the holster, two very important parts of this picture.

If it ultimately comes out, and this is a big if, that there might be DNA or a fingerprint of the deceased on the weapon, does that change the calculus for what happened several seconds later in the shooting?

O'MARA: I think it does. It gives some insight, because it's the perception of this officer. If this officer knows -- let's say that's true, that they tried to get his gun, that he now has not only opportunity but the obligation to arrest this person, because a felony was committed, battery on law enforcement officer, now he's got to react to it.

Once that person turns around to him, if he's already been the -- been seen or shown an aggressive tendency by Mr. Brown towards him, he's going to react with that thought in mind, with very little time to do anything else but react.

BANFIELD: Because, again, I think we all have to remember this did not play out in slow motion. This played out in a matter of seconds. Probably all of it in less than --

CALLAN: Two to three seconds, once he's out on street, yes.

BANFIELD: Easy to Monday morning quarterback. Real hard if you're any of the players on the ground, including witnesses. It is so hard to be a witness and to recount --

CALLAN: Which is why we should be waiting until all the evidence is in before we decide --

O'MARA: Witnesses --

CALLAN: By the way, the evidence may show the officer's guilty, but we have to see all the evidence first.

BANFIELD: And I agree with you, a hundred percent.

Paul Callan, Mark O'Mara, thank you both. Do appreciate that.

If Officer Wilson's story is true, did he react correctly? You heard Mark O'Mara talk about 20 feet can be advanced in one second.

So coming up, a law enforcement trainer is going to join me to talk about protocol and what evidence could tell investigators about what really happened.

Can an officer fire when someone's about 20 feet away because within a second he or she fears for his life?

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BANFIELD: We have yet to hear directly from the officer in Ferguson, Missouri, but a defense fund has been established. The fund was created on Sunday, and at least 570 people have donated a little over $22,000 to this fund so far.

Because a police officer was the person would pulled the trigger in this case and not a civilian, there's a different, very long series of protocols in the investigation before you even get to a possible criminal proceeding, or at least that's the norm.

The attorneys for the family of Michael Brown have been critical of the timing, and of how long it has taken for information on this case to be released, and how selective police have been in releasing, for example, the surveillance video of Brown in the convenience store.

But we still don't actually have the report, the actual report of the shooting itself. Last night, Anderson Cooper spoke with Gabe Crocker who is with the St. Louis County Police Association to ask him why the investigators in this case still haven't released that initial report.

(BEGIN VIDEO CLIP)

GABE CROCKER, ST. LOUIS COUNTY POLICE ASSOCIATION: Well, I think there is concern about compromising an investigation. I think there's a legal process, Anderson, that has to take place. It varies from state to state, but the criminal justice system has a way of working.

It's not a perfect system. But I can tell you in this case, I understand with it moving a little slower, it's an aggravation to the family. It's an aggravation to basically everyone involved, including the police that are out there working in these areas.

(END VIDEO CLIP)

BANFIELD: I want to now bring in Dennis Root. He is a law enforcement trainer, and he also investigated how the police handled the George Zimmerman case. He was also in that courtroom and testified in that trial.

Mr. Root, thanks so much for being with us today. I want to just expand a little bit on protocol and procedure with regard to what an officer can do and is trained to do in a circumstance that played out in the killing of Michael Brown.

I hope you can take me from at least where the witnesses have placed the shooter, the police officer himself, and the deceased, Michael Brown, and that is, approximately 20 to 30 feet apart after a supposed struggle.

Can you take me from there and tell me what officers learn?

DENNIS ROOT, LAW ENFORCEMENT TRAINER: Sure. I think one of the most important things that we have to consider right off the bat is the variation s that we have in the information.

But based on what's been revealed so far, we have some kind of altercation that takes place within the vehicle. And depending on which version, you see an evolution begin where it's possible that there was a struggle over a firearm, and at least one round or one bullet was fired.

From there, it exits the car. They come out of the patrol car and begin to travel down the roadway. At some point, whether he was firing toward him, while he was turned away, or after Mr. Brown turned back toward him, the officer felt compelled to discharge his firearm again.

What we have to understand is you have to look at officer-subject factors, height, weight, physical abilities, known to the officer, known about each the officer and Mr. Brown.

Then you have to look at the fact that Mr. Brown could have been charging the officer. And if that, in fact, was the case, and he already knew that he was willing to go for his firearm, he would be justified in using deadly force for shooting Mr. Brown.

BANFIELD: So that's the if. And I've got to ask you, on the other side of the coin, because clearly officers are trained to exercise as much restraint as possible, what are they trained not to do? What are they trained to look for so as not to discharge a weapon when there is perhaps 20 or 30 feet between a subject and an officer?

ROOT: Well, that's a very gray area. And the reason I say that is, most people immediately say, well, they're looking for a weapon or a firearm, a knife, a gun, something like that to pose a threat to the officer. But the truth is, officer subject factors alone are enough to justify the use of deadly force or the discharge of your handgun. And the other thing that you really have to consider is, when somebody's looking down the business end of a handgun and they're still coming towards you, that changes your perception of the event in and of itself and heightens your concern for your safety. And we always used to train in the academies that, if somebody's screaming I give up as they're punching you, it's safe to say they're not giving up.

BANFIELD: So is there any circumstance, Mr. Root, that you can foresee or that you can tell me about whereby if a subject has his hands up and isn't advancing, as is one of the -- two of the witness accounts -- three of the witness accounts actually so far, is there any circumstance that you can see where an officer could still legally discharge a firearm in the manner in which this young man was shot?

ROOT: Well, if we take away variables, we change the outcome. If we place an individual such as Mr. Brown in front of the officer and he's not advancing, he's got his hands up, he's saying I surrender, you have verbal and physical cues that tell you there is not an immediate threat. Doesn't mean that there's not an imminent threat, but there's not an immediate threat because he's not making effort to close the gap. So those come in. Now you change those variables. Now the officer keeps the distance, gives verbal commands, tells him to get on the ground, and now you try to get him into a position that allows you to maintain visual control over him until other officers can arrive and they can properly secure him.

BANFIELD: I think what you're telling me is it's not an easy answer. Dennis Root, thanks very much for being on the show today. Appreciate your insight.

ROOT: Thank you.

BANFIELD: You know it seems like now no matter what investigators or police or riot officers do, nothing seems to calm the anger, especially at night. We're getting the view from people who are part of the protests in Ferguson about what it is like on the street and the toll that this conflict is taking on that community.

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BANFIELD: After yet another night of protests and tear gas and arrests, what can the community that's trying to find peace and justice do about all of those people who are throwing bottles and Molotov cocktails and firing guns? What can the community do so that the focus can come back to what's critical here, and that is the shooting death of an unarmed teenager? My colleague, Don Lemon, has been on those streets. He has been taking the pulse of that community day in, day out, and I dare say a lot of late nights too.

So, Don, walk me through the feeling of this community, if they feel there is going to be an end to this cycle anytime soon.

DON LEMON, CNN ANCHOR: Yes. And what the -- I think it's better to talk to some of the community activists here, some of the people who are in political office, and they can explain a lot better than I can because I just sort of dropped in here, right, and got to experience it. But Renita Lamkin is a pastor here, she's a community activist. And, of course, we've been seeing Antonio French, who's an alderman in St. Louis.

And you can explain - listen, you were out there last night. You have been out there almost every night. You got hit with a rubber bullet. You went to jail. But you say there's an important distinction here between a protester and someone who's inciting the riots. And you want to explain. You want to make sure that the world knows that.

REV. RENITA MARIE LAMKIN, PASTOR, ST. JOHN AME CHURCH: Right. The protesters are the ones who are speaking out for a just cause. The inciters are the ones who are just trying to stir up violence and incite people to behave in ways that serve their own particular cause that they came here with that has nothing to do with our community.

LEMON: So when you watch it on television, I mean, people don't -- it all seems the same. And maybe even to the police officers it seems the same, Antonio.

ANTONIO FRENCH, ALDERMAN, CITY OF ST. LOUIS: Yes. And I think the story of the violence and the looting has really kind of overtaken what this thing is really about. And you have a lot of people, most people, the vast majority of people, here to - be here for protest about injustice, about police brutality, about specifically what's happened to Mike Brown (INAUDIBLE) justice for his family. But then you have some folks here with their own agenda. And they've come from all over at this point.

LEMON: So but -- what do you do about that?

FRENCH: It's difficult. So what we did last night was we had some success in kind of weeding out a few of those people who were really trying to incite the riot. And some of us community folks that were out there keeping the peace were able to actually physically remove those guys and then police were able to come and get them out of the crowd. In the past what's happened is that police weren't able to get in there to get the individuals and they would gas the whole crowd.

LEMON: Let's talk about the presence of police officers. What people are calling the over militarization of police departments. There was a lot of presence out there last night. And to be fair, the police officers say, we don't know what's in the bottles that are being thrown. We don't know if it's water. We don't know if it's a Molotov cocktail. We have no idea. We are simply trying to protect the community, protect ourselves and the law abiding citizens who are not out there creating a ruckus.

LAMKIN: That's fair, but we've offered our assistance. And we know the difference when we're standing out there. And so we've asked for direct communication with somebody -- whoever it is that makes that command to attack the people, so if we can get the information to the command that this is water or this is an empty bottle, then that could prevent a lot of people from being hurt.

LEMON: But that's asking a whole lot. In the heat of the moment, you don't know every single person who's out there and what their intentions are.

LAMKIN: That's why we've asked for -- well, we're pretty good at seeing what's going on out there. And so far, we've known, in our group, now, you know, if there's other faction groups that are, you know, on the other side, but on Sunday, a whole group of very peaceful people were attacked because of something that happened on the other side of the road. And that's not fair. It's not fair for gas to be thrown where there's elderly and women and children and people in wheelchairs in the middle of the road and cars coming in and cars coming out and creates complete chaos. People can't get out. They're being told to get out and they can't get out and they're being continually gassed because they can't get out. That is not fair. There has to be a better way.

LEMON: Go ahead.

FRENCH: Yes, and no one wants to see a scene like that repeat. And so I thing that's why the police changed their tactics last night to try to weed out the few individuals. But, still, I understand, because further back, especially around the Canfield area, it becomes almost a war zone.

LEMON: It does. FRENCH: And those guys who do have guns and are willing to fight with police and want to get in those gun battles, they really go at it out there. But that is separate from the folks here with the signs protesting.

LAMKIN: There needs to be more lighting on the streets too. For some reason the lighting goes off. There needs to be better lighting, especially around the Quik Trip.

LEMON: I want to get something in really quickly because we got a note from the city that they're asking for a moratorium on nighttime protests. Do you think that will help or hurt? Will that incite people?

FRENCH: I think what's being discussed on the community leader level is trying to move a lot of these protests from West Florissant to really more productive areas. It's - you know, we - protesting in front of the same street is one thing, but taking this to, say, the county prosecutor's office or downtown to the justice center is different. And that might be what we'll be doing over the next few days.

LEMON: Antonio French, Renita Lamkin, thank you very much.

LAMKIN: Thank you.

LEMON: We appreciate it. And I hope -- how's your injury?

LAMKIN: Fine.

LEMON: You're good.

And you're free, are you clear? You don't have a record or anything?

FRENCH: I'm free. Didn't charge me with anything.

LEMON: All right. Thank you, guys. We really appreciate it. We'll be out here until this is over.

And, Ashleigh, we are certainly hoping that there is peace and calm this evening on the streets of Ferguson. There is not a repeat of what happened last night. And, of course, we will be here following it. And I hope everyone will tune in to our town hall tonight at 10:00 p.m. Eastern on CNN and we'll talk about all these issues, Ashleigh.

BANFIELD: Without question I look forward to it and you're the man to do it. Don, great work. Please, get some sleep before your big special tonight. Again, 10:00 p.m. Eastern, "Race in America." My colleague, Don Lemon, will be doing that. And he's coming back right after this break. Thanks for watching, everyone.

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