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Ferguson Braces for Grand Jury Decision; South Carolina Same- Sex Marriage Ban Overturned; Climate Deal "Disappoints" Senate GOP Leaders; Space Probe about to Land on Speeding Comet

Aired November 12, 2014 - 10:30   ET

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

(COMMERCIAL BREAK)

PAMELA BROWN, CNN ANCHOR: Good morning to you, I'm Pamela Brown in for Carol Costello. Thank you for being here with us.

Right now, the community of Ferguson, Missouri is bracing for a decision by a grand jury whether to indict Officer Darren Wilson. He's the white police officer who shot unarmed black teenager Michael Brown last August. The grand jury has until January to make a decision, but a ruling could come down any day now.

That has many people fearing a potential backlash. Over the summer, hundreds of people were arrested during clashes with local law enforcement. Pending a decision Governor Jay Nixon says he's prepared to send in the National Guard to help keep the peace.

(BEGIN VIDEO CLIP)

GOV. JAY NIXON (D), MISSOURI: The National Guard has been and will continue to be part of our contingency planning. The guard will be available when we determine it is necessary to support local law enforcement. But simply we must and will be fully prepared.

(END VIDEO CLIP)

BROWN: Let's talk about this. Joining me now CNN legal analyst Paul Callan and HLN legal analyst Joey Jackson -- a lot of ground to cover here. Let's first start with the protesters because there's a lot of anticipation that we will see more protests -- hopefully peaceful. But in the even they're not tell us, where is the line for protesters? They're protected under the constitution but what will get you arrested as a protester -- Joey?

JOEY JACKSON, HLN LEGAL ANALYST: Sure. Good morning Pam. Good morning Paul.

Listen, it comes down to this. It's a balancing test with anything. We have so many rights under the constitution but we balance those rights -- right. Like we have the First Amendment right to free speech but you can't yell "fire" in a theater nor can I defame you by saying something that factually untrue that ruins your reputation -- right.

Same thing with the Second Amendment -- right to bear arms. Does that mean we can carry arms wherever we want? No, the state can impose reasonable regulations which leads me to this issue. When you're talking about the right to peacefully protest or right to protest at all, there's a balance between your right but the government has a right to restrict the time, place, and manner in which you do it.

And so as long as you're protesting and you're exercising your right and your liberty as you can as an American or as any type person, you know, who's in this system of government and justice, the United States, you can do what you want. But you have to do it peacefully and you can't do it in a way that's disruptive to the safety of the general public.

BROWN: Ok. Well, thank you for summing that up for us. I want to talk about the grand jury right now, Paul, because as we know they're still looking at evidence, hearing from witnesses. The bar is higher for law enforcement, for police officers, I understand. How often is it that a police officer is actually indicted, Paul?

PAUL CALLAN, CNN LEGAL ANALYST: It's extremely rare. You know, Joey and I, we're both former prosecutors and we were talking about this. You know, very few lawyers actually get to stand in front of a grand jury and can tell you what goes on in the room because usually it's a secret proceeding. Even defense attorneys don't get to see it.

And what I've seen in many years as a prosecutor in Manhattan and in Brooklyn that very rarely do cops get indicted -- maybe one or two over the last 20 years. They give them -- the jurors give them the benefit of the doubt more often than not. So if there's an indictment in this case it will be a very rare event.

BROWN: You wonder if this is going to be different at all given all the controversy surrounding it.

JACKSON: I think it certainly could. It has the potential of being different but that raises other questions, Pam, in terms of how the case is being presented to the grand jury. And grand jurors have a way of presenting cases and Paul and I have discussed this issue, too. You either present everything and allow the grand jury to make a decision in terms of whether there will be an indictment, or you present very limited information because you've heard the old adage, it's overused, a grand jury can indict a ham sandwich.

BROWN: Exactly. We hear that all the time.

JACKSON: All the time. But that's if the prosecution is limiting because you're the judge, the jury, and the executioner and that's if you limit the scope of the information you're giving the grand jury and you tailor it to what you want. It's not clear to me in this case that that's what's happening --

CALLAN: But you know -- and the reason for that -- the reason for that is this. In a garden variety case, robbery that happens on the street, prosecutor goes in, wham, bam, puts the case in, one witness he gets out because he doesn't want to make a big record that can be used at the trial to make his case look weaker. In a case like this which is so controversial and where the prosecutor knows everything he does is going to be scrutinized, you know what most prosecutors do? They are very neutral, they present all of the evidence to the grand jury and they say "You know something? It's up to you." He'll give them the law and they will make the decision because the prosecutor doesn't want to be criticized.

I suspect that's what's going on in St. Louis now. A complete presentation of all of the evidence and the grand jurors will then decide.

BROWN: It certainly appears that way because as we know typically it's just a prosecutor who presents evidence to the grand jury. We know that Darren Wilson actually testified so that's a little bit unusual. Also we learned that the Brown family pathologist who actually performed an independent autopsy will be testifying this week.

JACKSON: Wow.

BROWN: So it certainly appears they're laying it all out.

CALLAN: Right. And that's a shocker. If they --

JACKSON: Right.

BROWN: Tell us how unusual that is.

CALLAN: If they allow the family of -- the Brown family went out and they hired Dr. Baden to perform an independent autopsy. If they allow him to testify that would be highly unusual because I mean can the police officer then say, well, "Am I allowed to hire my own doctor and present my evidence?"

It's not illegal to do it but it's very unusual and I don't know that it's fair to the police officer because Baden will be used in a civil case subsequently to recover money damages.

JACKSON: Yes. Unless, Pam, in this case, usually you have to be really careful when you're putting experts in because as a prosecutor certainly you want to give the grand jury the information but make it more explanatory as opposed to persuasive.

In other words, to explain concepts, to explain issues that the grand jurors may not know themselves as not being medical professionals, et cetera. However, in the event they put in Baden, you might believe that perhaps they put in the person who did the autopsy for the state in addition to the feds because remember, there were three separate autopsies here -- the local one that was done by the Ferguson itself, the federal government is doing its own and then Dr. Baden will be in. And so who knows when they're putting every one in?

CALLAN: Can we add one other thing that I think most people don't realize? In that jury room, the grand jury, the grand juror cans tell the prosecutor what to do. They can say to the prosecutor "Hey, we heard -- we think there was another autopsy. We want you to get that evidence in, we want you to issue a subpoena." Now, the prosecutor doesn't have to go along with it if it's an illegal request but they have the right to issue subpoenas and they can ask for what evidence they want. So we don't know who asked for this evidence and we'll only know when the case is over.

JACKSON: Fair point.

BROWN: And also something else, you know, there's so much anticipation for a decision. It could take while even if they lay out all the evidence by week's end, which they very well could, it could still take a while after that for a decision to come. They could ask for more information, they could ask questions and it's not like, ok, all the evidence was presented.

JACKSON: Very true.

BROWN: Exactly.

JACKSON: And a very quick point, though Pam. In this instance, remember there are 12 grand jurors -- not all of them have to agree. They don't have to be unanimous in the decision to indict. Just nine out of the 12 have to agree and it doesn't have to be beyond a reasonable doubt. It's just is there probable cause to believe that a crime was committed.

BROWN: Right. But as we know, the bar is higher for police officers, as we talked about.

CALLAN: Yes.

BROWN: We have some breaking news actually coming in right now so stay tight. I'm going to get your reaction on it in just a minute. Reuters reporting a U.S. judge overturns same-sex marriage ban in South Carolina. This is obviously a very big deal. We're right the middle of a big same-sex marriage debate across the country, the U.S. Supreme Court decided not to take up the case this year, this term, at least. That could change, of course. What is your reaction to this?

CALLAN: Well, you know, my feeling was that there is such a momentum toward legalizing same-sex marriage that most federal judges and state judges will go along with allowing it to go forward but until the Supreme Court rules definitively on it, it remains a local decision. So -- and we're seeing this now.

JACKSON: And that's the issue, Pam. You know, interestingly enough, every state is a sovereign unto itself. We have governors, we have state legislatures and we have different views and opinions. Just like there are issues relating to gun control. Those laws are different, the death penalty, those laws are different.

You know, this is a major human rights issue that different states are going to take -- you know, either present in a way that they favor and they respect everybody's rights or they curtail those rights based upon the opinions of those.

CALLAN: And you know Pam, people forget that the landscape has changed very quickly with respect to gay marriage. Remember, just a few years ago President Obama was saying he was opposed to a constitutional amendment ensuring that all the presidential candidates were and now we're talking about it like it's a given. Well, it's still controversial in a lot of America so I think you have to remember that.

BROWN: And like you pointed out, I think this is exactly what people said was going to happen when the Supreme Court decided not to take it up. Ok, we'll then, we're going to continue to see it divide on the state level.

JACKSON: We are evolving as a society.

BROWN: Right. Yes.

JACKSON: We'll see where this goes in due time.

BROWN: Exactly.

All right. Paul Callan, Joey Jackson -- great having you on and chatting with you.

CALLAN: Thank you.

JACKSON: Thank you.

BROWN: Thank you so much, we'll be right back.

(COMMERCIAL BREAK)

BROWN: The economic summit in China was never expected to produce high drama, but just hours ago a surprise announcement on a landmark agreement to limit greenhouse gases. It's a deal struck by the U.S. and China, the world's most powerful economies and earth's biggest polluters. President Obama pledges that Americans will cut carbon emissions by more than 25 percent by the year 2025. It's still very unclear, though, exactly how he plans to do this but that goal may not be as daunting as convincing a hostile congress.

After last week's midterm elections Republicans are poised to have the most dominant majority on Capitol Hill in decades. CNN's Dana Bash is on Capitol Hill. Dana, you just talked to the top Republican in the Senate. What was his reaction to this?

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Hey Pamela. Well, Mitch McConnell, who is the incoming senate majority leader, was having a meeting with the newly elected Republican members, nearly a dozen of them. In that meeting he talked about the fact that he is incredibly unhappy with this deal that the President struck in China. Listen to what he said.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R), KENTUCKY: The problem is the President continues to send signals that he has no intention of moving toward the middle. I was particularly distressed about a deal apparently he's reached with the Chinese on his current trip which as I read the agreement requires the Chinese to do nothing at all for 16 years while these carbon emission regulations are creating havoc in my state and other states around the country.

(END VIDEO CLIP)

Now, the timing of this is noteworthy because Mitch McConnell became the Senate Majority Leader, Pamela and you know this being from his home state of Kentucky. Promising, vowing to fight what he calls the war on coal which is a huge, huge business in his home state and says that he believes that the kind of emissions that the President has done on his own through the EPA is exactly what's wrong with those policies so this -- Senator McConnell and other Republicans here think it's just an extension of that never find fact that Senator McConnell and other Republicans say that they simply can't trust the Chinese.

The incoming chair of the senate energy committee, the committee that actually is involved in overseas the EPA and environmental regulations, James Inhofe literally wrote the book on the fact that he believes that climate change is a farce and a hoax and it is not man made. He said that he believes it's a charade for the Chinese to believe that the Chinese will actually go through with this, Pamela.

BROWN: Dana bash, I guess it's not surprising that the reaction is what it is. Thank you so much. We'll be right back.

(COMMERCIAL BREAK)

BROWN: Welcome back. Looks like the comet -- there's going to be a landing on the comet shortly from now, as you see here. Here's a live picture from mission control. The scientists that worked on Philae which is supposed to land there as we said any moment, just tweeted that it's almost there. So it appears to be imminent. Here's the tweet right here. "Almost there, thank you for the ride." It's been a ten year journey for it to get to the comet and apparently it's supposed to be a very tenuous landing potentially very tricky. Of course, you see those scientists there, they are on the edge of their seat for that arrival.

Meantime, we know that serious business goes on behind closed door at international summits but sometimes the funny stuff we see out in the open is what stays with us long after the leaders have left.

Here's CNN's Jeanne Moos.

(BEGIN VIDEOTAPE)

JEANNE MOOS, CNN CORRESPONDENT: Gum chewing and flirtatious gallantry, too many gaffes worth a laugh at the APEC summit. But they've also created fireworks. Chinese have been chewing out President Obama over gum chewing. A mere five-second glimpse of the President's jaw moving moved Chinese commenters to call him a slacker and a rapper. "Let us forgive these unenlightened barbarians."

But at least the President proved what he has maintained all along that he can --

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Walk and chew gum at the same time. MOOS: He once sat and chewed Nicorette at the D-Day remembrance.

But even worse than getting caught chewing gum is getting nabbed removing it.

From Rosie O'Donnell in plain view on "The View" to Senator Barbara Boxer, trying to subtly ditch the evidence as she met with the U.N. secretary general. Nothing subtle about Toby Keith spitting his gum into the crowd or Joaquin Phoenix.

DAVID LETTERMAN, TELEVISION HOST: I'll come to your house and chew gum.

MOOS: Sticking his wad on Letterman's desk.

At least President Obama didn't pull a "Pretty Woman".

RICHARD GERE, ACTOR: Just give me your gum.

MOOS: And speaking of pretty women, there's China's first lady. She used to be a huge singing star.

So, what does Russia's president do while waiting for the fireworks? He drapes a shawl or blanket over her shoulder. Within five seconds, she discreetly slips it off and replaces it with a coat brought by an aide. In China, the moment was obliterated by the censors, while in the West, headlines popped up like goosebumps. Putin flirts, Putin hits on China's first lady. What's the big deal?

It wasn't as if he got caught like the husband of Finland's former president, seeming to check out a princess' cleavage.

But habitually shirtless President Putin might do better covering himself.

Come on, a little discreet gum-chewing, a little flirty chivalry, is that enough to rub people the wrong way?

Now, this is rubbing someone the wrong way. If you ever saw this at a summit --

UNIDENTIFIED MALE: I'm sorry.

UNIDENTIFIED MALE: (inaudible) clean it up.

MOOS: That would be a little too much free trade.

UNIDENTIFIED MALE: That was my last piece.

MOOS: Jeanne Moos, CNN, New York.

(END VIDEOTAPE)

BROWN: Thank you to Jeanne Moos and thank you for being here with me today. I'm Pamela Brown in for Carol Costello.

"@THIS HOUR WITH BERMAN AND MICHAELA" starts now.