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Legal View with Ashleigh Banfield

Another Eyewitness Comes Forward in Ferguson; Grand Jury Hearing Evidence in Michael Brown Shooting; St. Louis Police Shoot Man Advancing on Them With Knife; Suspected British Jihadist

Aired August 21, 2014 - 12:30   ET

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

(BEGIN VIDEOCLIP)

ANDERSON COOPER, CNN ANCHOR, "AC360": Did you see him running toward the officer in any way?

MICHAEL BRADY, WITNESS TO MICHAEL BROWN SHOOTING: No, no. Not after when he was running away, no. Not at all.

Like I said, by the time I come outside, I'm thinking he's now hit, after I seen the officer shooting at him while he was running away. So I'm thinking that he's hit because now he's turned around, like this, like he was going down.

It didn't even look like that he was getting up. It just looked like, you know, oh, I'm hit. I'm going to go down. That's what it looked like.

COOPER: That was your impression.

BRADY: Yes, yes.

COOPER: So from what you saw, there weren't hands up or anything.

BRADY: Yes. I didn't see no hands up. If he did, I probably just missed it from going out from my bedroom, going outside.

COOPER: Right. There was a gap in what you saw.

BRADY: Yes. And on top of that, and there was also a gap of from the officer pausing as he was shooting.

Like I say, I was in the window, and he shoots a couple of times. And by the time I gets outside, he's shooting again. So I really didn't hear a shot between running. He probably did.

COOPER: You don't know.

BRADY: Yes.

COOPER: This entire thing, about how quickly, from the time you first heard what sounded like a tussle and started seeing that tussle to the time Mike Brown was down on the ground, how long do you think?

BRADY: It was -- I would definitely say it was seconds. Not even a minute.

COOPER: It all was quick.

BRADY: Yes, it was just quick. It was quick. Definitely quick. Probably, what, within 30 seconds, 40 seconds, maybe.

(END VIDEO CLIP)

ASHLEIGH BANFIELD, CNN ANCHOR: Michael Brady's account to our Anderson Cooper.

Interestingly enough, as of last night when he conducted that interview, Michael Brady had not been canvassed by any federal authorities yet, so you can only imagine that of the 100 or so witnesses that have been interviewed by the feds, there's still more to be interviewed before the full story could possibly be reached.

And by the way, his version is the latest of several different witnesses who have come forward to describe the shooting of Michael Brown, at least come forward to the press. Certainly other people have spoken quietly to authorities.

But how will the differing stories impact any case that could be brought against Officer Darren Wilson? You'll find out next.

(COMMERCIAL BREAK)

BANFIELD: A grand jury is hearing evidence in the Mike Brown shooting case and whether police officer Darren Wilson is going to face any charge. All of that still hangs in the balance.

Perhaps the biggest issue in the case against Wilson could be the differing accounts from the eyewitnesses. All of their accounts so far that have been public anyway because there are many that we probably know nothing about. They have slight variations.

I want to discuss this with CNN legal analyst Paul Callan and our CNN legal analyst Danny Cevallos as well.

First to you, Danny, the differences, sometimes they're slight, but sometimes a slight difference can be a massive chasm. All of the accounts that you've heard publicly so far, do you see any problems, or do you see, for the most part, consistency?

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, I think it's consistent in the sense that we always expected that one side would have a story that favored Mike Brown, and once we hear the officer's story, it's going to nothing like we've heard before. There's going to be a lot of inconsistency.

But inconsistency between the eyewitnesses we've heard from so far can present a problem. You start to build that reasonable doubt. Even though a witness who has no interest in the outcome, like this Brady that we've heard from, Mr. Brady, he is a disinterested witness, which in the world of eyewitness testimony --

BANFIELD: Is the best.

CEVALLOS: -- is probably the strongest.

However, consider how the credibility of that witness can be brought down by maybe another interested witness like Dorian Johnson, whose credibility may be a little more suspect.

The problem for the prosecution in a case like this is that the more eyewitnesses, there is more potential for discrepancies, and those discrepancies can be exploited by any defense attorney.

BANFIELD: I think that's the point. Those discrepancies can be exploited by masterful attorneys in a courtroom. We've seen it happen many times.

CEVALLOS: Like Paul Callan.

BANFIELD: Like Paul Callan, who's about to explain to me why I'm hearing a lot of critics saying that, even if Officer Wilson is indicted, charged, that Missouri law makes it nearly impossible for a conviction.

I don't think I've heard that kind of terminology before, anywhere in American jurisprudence, but there is some "arcanity" in the Missouri law that some people say you'll never see a conviction in this case. Why or why not?

PAUL CALLAN, CNN LEGAL ANALYST: It's a bunch of legalese, doublespeak that means nothing. Every state in the Union phrases its laws a little bit differently, but Missouri, like every place else, in the end it means one thing. If self-defense is put on the table by the defense, it's in the case, and the prosecution has to disprove it beyond a reasonable doubt.

Now, in Missouri, they use the term "preponderance of the evidence," puts it in the case.

BANFIELD: It's a balance.

CALLAN: Another state, they say there has to be a prima facie showing. In another case they say, the defense has the burden of moving forward.

But you know what a trial judge does? He says, is there any evidence of self-defense? If there is, OK, you, Mr. Prosecutor, have to disprove it beyond a reasonable doubt.

BANFIELD: Which is huge.

CALLAN: So the law professors can argue about this and say it makes a big difference, but people who actually try cases know it's not going to make any difference. It's the same in Missouri as any place else.

If the jury believes the cop, he wins. If they believe people who support Mike Brown's contentions, the family's contentions, the cop is going to get convicted. That's the reality of it. BANFIELD: (Inaudible) so, so clear that if this ever gets to a grand jury indictment, charge and then ultimately to trial.

I mean, those are a lot of different steps, and there could be all sorts of things that thwart that process or change it up in any way.

Danny Cevallos, Paul Callan, thank you both.

St. Louis area police, by the way, yesterday shot and killed another African-American man that they say posed a threat. The man was wielding a knife and advancing on them.

So the question becomes, as you look at the video, did the officers react too quickly, or did they follow standard procedure?

We're going to go through the video with an expert in police training and protocol, and you will hear for yourself what the police are trained to do in a circumstance just like this.

(COMMERCIAL BREAK)

BANFIELD: Less than four miles away from Ferguson, in St. Louis, another fatal shooting involving two white police officers and a young black man, it happened on Tuesday, and police say 23-year-old Kajieme Powell walked out of a convenience store with two energy drinks and a package of pastries but did not pay for them.

Police were called, and then as they arrived, once outside, he came at the officers brandishing a knife. Twenty seconds after the police arrived, they opened fire, and Kajieme was killed.

We have cell phone video of the fatal shooting. I just want to warn you, it is very graphic, so CNN has chosen to freeze the footage right before Powell is shot. But you can certainly see what transpires, and you can hear the audio. Have a look.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The police going to pull up. Y'all call the police?

UNIDENTIFIED MALE: Get your hands out of your pockets.

UNIDENTIFIED MALE: He's got his gun out. Oh (bleep), oh (bleep), oh (bleep)! Oh (bleep)!

UNIDENTIFIED MALE: Damn!

UNIDENTIFIED MALE: Oh, my god.

(END VIDEO CLIP)

BANFIELD: After the shooting, people were immediately upset. Protesters gathered at that scene. The shooting was fueling more controversy over excessive force by police.

Our Chris Cuomo and our Don Lemon were able to speak with the St. Louis police chief, Sam Dotson, last night after this had happened, obviously, and they asked him the question that a lot of people want to know. Couldn't the police have done something else other than killing him?

(BEGIN VIDEO CLIP)

DON LEMON, CNN ANCHOR, "CNN TONIGHT": Why use bullets? Why not use a stun gun?

CHIEF SAM DOTSON, ST. LOUIS POLICE: Well, certainly a taser is an option that's available to the officers, but tasers aren't 100 percent, so you've got an individual armed with a knife who's moving towards you, not listening to any verbal commands, continues, says, "Shoot me now, kill me now." tasers aren't 100 percent. If that taser misses, that subject continues on and hurts an officer.

(END VIDEO CLIP)

BANFIELD: So the two officers who were involved have been placed on administrative duty, and that's per department policy.

I want to bring in David Klinger in Ferguson, Missouri. He's an associate professor of criminal justice at the University of Missouri- St. Louis and he's also a former police officer and an expert in police tactics involving officer-involved shootings and the use of deadly force.

David, thanks very much for being with me right now.

I know you've seen the video several times over. I just want to get your overall thought as to whether you think to the letter proper protocol was actually followed here or if you think this was -- and I hate to use the term, but I will -- overkill.

DAVID KLINGER, ASSOC. PROF., UNIV. OF MISSOURI-ST. LOUIS: First of all, thanks for having me, and sorry that we have to come and talk once again about a tragic circumstance. But getting to the point of your question, no, it's not overkill, and let me explain why. It could be that there's something going on that I'm not aware of, but if you look at the video closely, what you see is all of the aggressive action by the suspect towards the officers. One of the things we train officers to do when they are coming upon someone who's armed with a weapon other than a firearm, an edged weapon, a baseball bat, whatever, is to keep their distance. And what they did is they pulled up and they kept their distance. They exited their vehicle. They started giving verbal commands and the suspect came towards them.

I think another thing that in my mind was very telling is at some point the suspect decides which of the two officers he wants to take on. He walks past the driver officer, who is closer to him, so basically he goes parallel to where the two officers are and then starts to move in towards the passenger officer. And also what he does is he moves up onto this elevated parking lot, curb, whatever that might be. And if I'm a police officer reading this, what I'm seeing is, he's selected which of us he wants to try to take out and he's going to the high ground. And when someone is in a high ground position, even if it's just a knife that they have, and I say just a knife as opposed to a firearm, that puts the police officers at a tactical disadvantage.

Another thing that I think your viewers need to be aware of is that police officers are trained that when a suspect is moving aggressively towards them with an edged weapon, such as a knife, when they get to within 20, 25 feet or so, it starts to become that area where you really have to be alert. If they continue to breach that line in the sand as it were mentally, use of deadly force is appropriate. And so these officers were actually very restrained up until the point that they decided that they needed to shoot to stop the threat to their life.

BANFIELD: One of the things that's difficult for, I think, our viewers to understand is, we've had to bleep out a lot of that video and audio because of the swear words of the person -- or the people behind the lens. And, therefore, you can't hear a lot of what is transpiring between the suspect and the officers, which I think is difficult. But we do know this. He was saying things like "shoot me" or "kill me," -

KLINGER: Right.

BANFIELD: And they were saying things like "freeze, stop, put the weapon down." Still, to that end --

KLINGER: Right.

BANFIELD: Does an officer, when he or she has chosen that it is time to discharge my weapon, is the only goal shoot to kill, or are there other goals in other circumstances?

KLINGER: The goal is never shoot to kill. The goal is always shoot to stop the threat. And, unfortunately, the way the human body is put together, there's two ways you can stop a human from moving. One is to shut down their central nervous system with a shot to the brain, brain stem, spinal column. The other way is to do what we basically call hydraulic evacuation. And it's a terrible technical term, but that is to shoot and to damage the organs so that the blood goes out. That's really the only two ways you can stop somebody.

If somebody is shot -- a good friend of mine in Los Angeles was literally shot through the heart in a shootout with a bad guy, and somehow she managed to stay alive. And so she managed to stay alive long enough to kill the suspect, get away from the area, and retreat to an area in front of her vehicle for safety where she collapsed. And there's an example of someone being shot literally with a -- what should have been a fatal wound and managing to carry a fight on.

BANFIELD: And, so, David Klinger, just to be clear, there was somewhere around nine shots that were fired by those two officers. You're saying that wasn't necessarily an effort to kill. That was something possibly else. And I just have to get a quick answer, if possible.

KLINGER: It's an effort to stop, ma'am. BANFIELD: OK. David, thank you so much. I appreciate your insight into

this. Again, sorry we meet under these circumstances yet again. David Klinger for us live in Missouri.

KLINGER: Thanks for having me.

BANFIELD: So who is behind the brutal killing of American hostage James Foley? We're going to have the very latest efforts to track him down, whoever he was, behind that coward's black mask.

(COMMERCIAL BREAK)

BANFIELD: The beheading of American journalist James Foley was shown to the world on a gruesome video. A video that officials are now studying for clues about who his killers are. Killers, by the way, who are still holding U.S. journalist Steven Sotloff and others captive. Well, linguistic experts say the executioner, who was pictured in that video, he speaks with a type of British accent that is common in London's east end. And clues are also coming in from European captives who were held by the same group and later set free for ransom. The former hostages told "The Guardian" newspaper that the executioner was one of three British handlers they referred to as "The Beatles" because of their British accents.

CNN's Atika Shubert joins me now from London.

There's so many pieces that we're trying to put together, as I'm sure the investigators are trying to put together as well, but we just did an interview with someone who was held alongside Jim Foley for seven months. Nicolas Henin said he didn't think he remembered anyone named John with a British accent, nor did he say he knew anything about "The Beatles" and suggested it be the wrong road to go down if the investigators are looking into that area. Does that surprise you from what you're researching today, Atika?

ATIKA SHUBERT, CNN CORRESPONDENT: No, that doesn't surprise me in the sense that there have been a number of kidnappings conducted in Syria. And what tends to happen is that one group will then, say, carry out, capture someone and then hand them over to another group and another group and another group. So we're talking about multiple captors. So it could quite be that one group is held by a group of say British jihadis, but another group is held by a different group of foreign fighters. It doesn't necessarily mean that there's only one group - this so-called "Beatles" group.

BANFIELD: OK.

SHUBERT: So I think what investigators are looking at is a lot of different possibilities, and this is one of them.

BANFIELD: And what about the fact that the executioner was left- handed, was wearing Timberland boots and has that specific accent? Are they saying that that's been tremendously helpful?

SHUBERT: They haven't said that that's specifically helpful, but the accent is one thing that linguistic experts are looking at. And one linguistic expert we talked to said they basically have a databank that looks at not only video recordings but audio recordings of known jihadists that have gone into Syria. So what they'll be doing is now comparing that voice there and looking at what they already have and seeing if they can find somebody that matches that exact audio recording.

What we do know from talking to linguistic experts is that this is somebody who grew up here in England, probably considers themselves very British, well-educated and very articulate.

BANFIELD: Atika Shubert live from London for us. Thank you for that.

And thank you, everyone, for joining us. My friend, Don Lemon, is in for Wolf in the next hour. He's reporting live from Ferguson, Missouri, and he starts right after this quick break.

(COMMERCIAL BREAK)

LEMON: Hello, everyone. I'm Don Lemon.