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Legal View with Ashleigh Banfield

Pathologist Hired by Brown Family Testifies; Tim Kaine, Rand Paul Want Congressional Approval for Use of Force; Door Falls Off Bono's Plane Mid-Flight

Aired November 13, 2014 - 12:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

For a process that is supposed to be secret, we know at least two important things about the grand jury hearing into the killing of Michael Brown. First, we most likely won't get a verdict today. And that's because of the second thing we know. The panel is hearing testimony from the forensics expert that was hired by the dead teenager's family. And there he is.

At issue, of course, whether to indict the Ferguson, Missouri, police officer who shot Michael Brown dead on a neighborhood street at high noon on August the 9th. The unrest that followed explains the anxiety as family and supporters of Brown and those of Officer Darren Wilson await justice as they see justice.

Our Sara Sidner joins me from the St. Louis County Justice Center.

So exactly what's happening with that grand jury today? The specifics.

SARA SIDNER, CNN CORRESPONDENT: Well, the specifics that we know from the family of Michael Brown's attorneys is that the pathologist that they hired to do the autopsy early on in this case is actually -- has been called to the grand jury to testify. It is highly unusual that -- usually grand juries do not take anywhere near this long, but it seems they're really being used as an investigative body, not just to, for example, look very simply at whether or not a crime was committed. And that is what they're deciding. This is not a verdict. It is a decision that a crime was or was not committed. And they're looking at several different charges. And so I think what you're seeing the prosecuting attorney do is give them the bulk of the evidence, everything that they've got, trying to put that in front of the grand jury so that people who have said that they don't think this is going to be a fair process can say, well, actually, we've been putting everything out there for this grand jury to make that decision.

I do want to let you listen a bit now to Darren Wilson's attorney who spoke with "New Day" this morning. He talked a little bit about whether or not the police union was supportive of Darren Wilson.

(BEGIN VIDEO CLIP)

CHRIS CUOMO, ANCHOR, CNN'S "NEW DAY": The St. Louis Polices Officers Association, they know Darren Wilson's story. Do they stand by what he says happened and think it was a correct use of force?

NEIL BRUNBRAGER, GENERAL COUNSEL, ST. LOUIS POLICE OFFICERS ASSOCIATION: You know, the answer is, they don't. I mean what they know, of course, is what everyone has read in the newspapers and they're in a position where they, like everyone else, are waiting until the grand jury makes a decision. So, again, from the perspective of the association as a labor union, obviously they're interested in their members and making sure their members are safe.

(END VIDEO CLIP)

SIDNER: You know, the labor unions, usually for the police, come out very strongly in support of their officers, especially when there's something that happens in the line of duty. Some law enforcement experts telling me that answer was a little bit unusual. But again, you can hear that the labor union wants to see the process go forward and believes in the justice system's process.

Someone who does not believe that this process has gone the way it should go, Michael Brown's family and their attorneys. Their attorneys we asked today, they talked about this process. And I asked them, look, this is supposed to be secret. The grand jury's meeting, the grand jury, the testimony that goes before the grand jury is supposed to be kept secret until a decision is made. And I asked the attorneys if they thought it was appropriate to bring out this information that is normally secret to the public now?

(BEGIN VIDEO CLIP)

BEN CRUMP, BROWN FAMILY ATTORNEY: Sarah, I've been on record, I've always believed, as Michael Brown's family has believed, that we should not have this grand jury, that the police officer should have been charged. There was enough probable cause to charge Officer Darren Wilson with killing unarmed Michael Brown. And that with such mistrust in the Ferguson community, that it being transparent based on the Constitution of the United States of America, that we have a right to trial by jury, that Michael Brown's due process warranted that officer be charged. And that was not to violate the police officer's due process. Nobody's saying he's guilty until proven innocent, but we thought it would be better for everybody here that they saw all the evidence, all the witnesses and that there was cross-examination of all of the evidence and all of the witnesses. So whatever decision that was handed down, people would accept.

(END VIDEO CLIP)

SIDNER: And we know that early on some of the political folks here who have been supportive of the Brown family have asked for a special prosecutor, but that never happened. But the prosecuting attorney's office says, we are giving all of the evidence that we can to this grand jury and that this will be a fair process.

Ashleigh.

BANFIELD: Sara, I'm just fascinated to hear Benjamin Crump use those words, things feel, sound significantly different, especially when he says the word, nobody's saying he's guilty until proven innocent. That's a -- I think that's a big step. I'm going to get into that a little bit later. Sara Sidner live for us in a very cold Missouri. So thank you for that. I appreciate it.

I want to get you back to the forensics, though, because, man, the devil's in the details. Two pathologists who are giving the grand jurors two very, very different scenarios to think about. Here's CNN's Jason Carroll.

(BEGIN VIDEOTAPE)

JASON CARROLL, CNN CORRESPONDENT (voice-over): Dr. Michael Bodden's (ph) testimony isn't the only forensic account of Michael Brown's death grand jurors will hear. They'll also take into account the official report completed by the St. Louis County Medical Examiner. Each report reads some similar results. Both concluded Brown was shot at least six times. Both show Brown had a gunshot wound to his right hand. But where the reports differ is key and how it's interpreted could make a huge difference in the case.

The county report states materials were found on Michael Brown's hand, quote, "consist with products that are discharged from the barrel of a firearm." In other words, probable gun residue on Brown's hand.

DR. LAWRENCE KOBILINSKY, JOHN JAY COLLEGE OF CRIMINAL JUSTICE: The significant of that wound is great.

CARROLL: Dr. Lawrence Kobilinsky is a professor of forensic science at John Jay College of Criminal Justice.

KOBILINSKY: So, for this testing, I would say it's very consistent with gunshot residue and supports the contention of Darren Wilson that there was a struggle for the gun. Very close in shot.

CARROLL: Ferguson's police chief told CNN in August Officer Wilson was hurt during a struggle.

CHIEF TOM JACKSON, FERGUSON, MISSOURI, POLICE: The officer was taken to the hospital and treated for a swollen face. That's pretty much all I know.

CARROLL (on camera): Swollen face. And were -- did you see the officer's face?

JACKSON: I did not.

CARROLL (voice-over): But others disagree. One witness, Dorian Johnson, told CNN, Brown did struggle, not for Officer Wilson's gun, he says, but to get away from him.

DORIAN JOHNSON, FRIEND OF MICHAEL BROWN: The officer then reached out and he grabbed his arm to pull him into the car. So now it's like the officer's pulling him inside the car and he's trying to pull away. And at no time the officer said that he was going to do anything until he pulled out his weapon. His weapon was drawn. And he said, I'll shoot you or I'm going to shoot. And, in the same moment, the first shot went off.

CARROLL: And as for the final moments, whether Brown had his hands up to surrender or whether he was charging at Officer Wilson, there are conflicting eyewitness accounts that the grand jury will have to consider. Like the forensic evidence in this case, much is up for interpretation.

KOBILINSKY: No question about it, you've got to interpret it. And some people will interpret it differently than others. And that's why this is an adversarial system. This it's art. It's not just the science.

CARROLL: Jason Carroll, CNN, New York.

(END VIDEOTAPE)

BANFIELD: Ah, there's so much on the table and so much that could result from this either way.

I want to turn to my legal team right now, best in the business, CNN's legal analyst Danny Cevallos, CNN commentator Mel Robbins and HLN legal analyst Joey Jackson.

OK, the three of you, I know, were riveted when you were listening to Ben Crump and how he characterized his impression of this process thus far. He said those words, nobody's saying he's guilty. He was referring to the officer in this case. Nobody is saying he's guilty until proven innocent. Is it just me or is that a drastic turn from saying things like, "I think justice to them," the parents, "would be for any other parent and that is that the person who executed their child in broad daylight will be arrested and brought before a court of law to be and to have to answer for the evidence and the witnesses against him and that he's held accountable." To me, that word execution or executed, executed has been used so many times and today Ben Crump is saying, nobody's saying he's guilty. Did this land pretty solidly to you?

JOEY JACKSON, HLN LEGAL ANALYST: Yes. Well, you know what it is, Ashleigh, it's not about fanning the flames because you don't want to create additional hysteria. You want to be responsible in speaking about this. Now, Ben Crump, he's the advocate. He's the advocate for the family. And make no mistake about it, at the end of the day, he'll continue that advocacy. But remember the process now, and it's about respecting the process that we have because that's what we do have. And in the event, even when you heard from the union official for the police officer, we're protecting the police, we're doing to do everything we can. He didn't say that. What he was saying is, we're going to look, we're going to listen, we're going to hear the evidence and information, and, of course, we support and stand by our officer, but at the same time respect the process. That's what Ben Crump's doing. I think that's a responsible move considering the heightened tensions in this case.

BANFIELD: And that's it. I mean there has been so much, so fast and so furious. And as we head towards whatever is going to be, on decision day, and announcement day, is this exactly what we need? Is this exactly -- up until now, I've got to say, I do not like that counselor using the term executed. It's unfair if you're talking about juris prudence. Is this exactly what needs to happen, Danny?

DANNY CEVALLOS, CNN LEGAL ANALYST: There's two ways of looking at this, right? I mean Ben Crump is not an impartial observer. He's an advocate with a client. So he starts from O Wilson is guilty and works backwards from there. And every narrative is going to have to be consistent with that. On one - on one level you can look at that is, that is our job as advocates to take the facts and marshal them in a way that's consistent with our theory. On the other hand, it is a dangerous thing to announce that someone is guilty and then say, we have respect for the system. I mean that is a dangerous thing.

BANFIELD: Right.

CEVALLOS: However, again, as an advocate, you have to wonder, after a while maybe that falls on deaf ears because people are increasingly going to recognize he has a drum to beat.

BANFIELD: Mel.

MEL ROBBINS, CNN COMMENTATOR: Yes.

BANFIELD: OK, look, I want you to listen to two things that were said. Today, Ben Crump saying, as Michael Bodden was going in to testify about his autopsy results -

ROBBINS: Right.

BANFIELD: This is how Benjamin Crump characterized what that grand jury is going to hear from Michael Bodden. Have a listen.

(BEGIN VIDEO CLIP)

BENJAMIN CRUMP, BROWN FAMILY ATTORNEY: There is evidence that shows Michael Brown had his hands up. Yes. That -- no doubt about that. And that is not in regards to his testimony, that is in regards to what we know based on our review of all the opinions, his and others.

UNIDENTIFIED MALE: And forensic evidence as well?

CRUMP: Yes. Absolutely. Forensic evidence. And Dr. Bodden is coming -- basing his testimony on science and nothing more.

(END VIDEO CLIP)

BANFIELD: OK, science and nothing more. But Dr. Bodden went live on television weeks and weeks ago and characterized exactly what his science told him.

JACKSON: Right.

BANFIELD: And his associate, Shawn Parcells, I want you to listen to his associate with Bodden standing next to him talking about that science, the bullet wound through an arm and what it tells us about where Michael Brown's hands were, whether he was looking at the shooter or whether he was walking away from the shooter. Have a listen. (BEGIN VIDEO CLIP)

SHAWN PARCELLS, ASST. FORENSIC PATHOLOGIST: That wound occurred from him walking away and then he turns around. It's consistent with that. However, understand too that while the shot could have come from the back, because if I'm standing here walking along and get shot from that direction, you see I pull my arm up, it's in that same general area. The arm is a very mobile part of your body. So it also could have occurred when he was putting his hands up.

(END VIDEO CLIP)

BANFIELD: Mel Robbins, I'm hearing the science saying it could go either way and that is the advocate's autopsy.

ROBBINS: Yes. And, in fact, that it the exact issue in this case. Every single piece of evidence and point of fact could go either way. Do hands up mean I'm surrendering or am I lunging toward you? That's a question of fact that could go either way. Does the fact that the bullet went into the hand prove that there was a struggle over the gun or does it prove that Michael Brown was being pulled into the car and shot there? It could go either way.

And what nobody seems to be talking about is the fact that the law is going to look at whether or not Officer Wilson was reasonable in feeling threatened. That's it. If this jury, after dozens and dozens and dozens of witnesses, and all of this physical evidence, decide that based on the evidence, if there's no probable cause that he committed a crime because the evidence supports that he felt threatened and that's reasonable, there will be no indictment.

And the other thing I wanted to say about Benjamin Crump, these guys are absolutely right, he's an advocate and he's playing a game of chess. He's trying to move this case to a trial. So you start by calling him an executioner to get to a grand jury. Now that you're at a grand jury, you start saying things like, we want a trial, we want to hear the evidence, so that you can push it forward into a court of law, Ashleigh.

BANFIELD: All right, guys.

JACKSON: And there's another piece to that, quickly.

BANFIELD: Quick last point.

JACKSON: An that is that, look, there are people who obviously have very inflamed tensions about this.

BANFIELD: Yes.

JACKSON: And so for you, at this point, even as an advocate, to be speaking about executions -

BANFIELD: You've got a bigger role.

JACKSON: Yes, you know, exactly. BANFIELD: You've got a bigger role.

JACKSON: It's about calming people. It's about having, you know, having them respect it. Exactly.

BANFIELD: Look at this. This is what it ends up being about ultimately as well.

JACKSON: Yes.

BANFIELD: There are a lot of people across this country that feel very strongly one way or the other. Joey, Mel, Danny, stand by. Lots coming up.

Does the U.S. military have the legal authority to go after those ISIS fellas in Iraq and Syria? It seems kind of simple, but it isn't. How far can the Obama administration go without, without those people in Congress giving him the stamp? We're going to get some serious answers to deadly questions, next.

(COMMERCIAL BREAK)

BANFIELD: President Obama has always laid it down this way. His priority against ISIS is getting rid of the extremist group. Not doing anything to make changes inside Syria, though. But that policy may not be so hard and fast as of today. I say that because the president now wants a top to bottom review of the United States' policy towards Syria.

Now, policy review usually means changes. And senior official tell us it looks more and more likely that, in their view, the Syrian president named Bashar al Assad has to go. We're about to talk about how an official policy like that could even be legal. But I want you to hear from one U.S. senator, a Democrat, a Democrat, who doesn't like that United States troops are involved in the fight against ISIS right now and wants the rules to be even clearer.

(BEGIN VIDEO CLIP)

SEN. TIM KAINE (D), VIRGINIA: We have to have a legal authorization to cover this current military mission against ISIL because, in my view, from about mid-August to now, there has not been legal authority that is sufficient to authorize this mission. I have introduced legislation with Senator McCain to do this, is go back into the War Powers Resolution of 1973 and come up with better process for this discussion that will take place, always will take place, between Congress and the president. A process that respects both sides' constitutional prerogatives.

(END VIDEO CLIP)

BANFIELD: CNN's senior legal analyst Jeffrey Toobin is here with me. And with D.C. in your backdrop, this is perfect. So how is it that we are engaged now in this 13-year long war on terror, but this particular incident becomes an issue? What exactly is the problem that some people have with this fight against ISIS? TOOBIN: Well, as you know, Ashleigh, the Constitution says only Congress can declare war, but we haven't had a declaration of war since World War II. So the process that has evolved is that there have been congressional effectively bills, laws, that say we authorize the use of force. And Congress did that right after 9/11. They authorized the use of military force to basically go after al Qaeda. And everything that's gone on since then, the war in Iraq, the war in Afghanistan, and now the war against ISIL, has been justified by first President Bush, now President Obama, as authorized by that initial Congressional act right after 9/11. What Tim Kaine and Rand Paul are saying is that, you know what, that's too long, it's not relevant to what's going on. If we want to use force, we need to have Congress approve it now.

BANFIELD: OK. So since you mentioned the Authorization for the Use of Military Force from 2001, which was right after 9/11, everyone was inflamed about what happened and that al Qaeda had sought refuge inside Afghanistan and that the Taliban had happily given him that refuge there, want to actually read what that authorization says because it keeps getting quoted over and over again in all of these offshoot battles. Here we are 13 years later. So here it is.

"In general, that the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of internal terrorism against the United States by such nations, organizations, or persons."

A lot of words, but effectively, if you had anything to do with 9/11, we're coming for you because you're a threat to us now. Can we really look at ISIS, so many iterations since al Qaeda and the Taliban, as fitting into that authorization, Jeffrey?

TOOBIN: Well, the president has said that it does, that his action fits within that definition. But here's where the politics comes in. It's a stretch. I think everyone acknowledges it's a stretch given the passage of time, given how much the Middle East has changed since then. But you notice that you have individual senators complaining, but you don't have Harry Reid, the current majority leader, Mitch McConnell, the incoming majority leader, saying, well, we're going to take a vote, because the senators don't want the heat of calling off a war. So individual senators may complain about the authorization, but you don't see them lining up to have an actual vote where they have to take a stand. That's where the politics gets dicey.

BANFIELD: Yes. And if we're going to stretch that all the way to Syria, this could get even trickier, especially when we're talking about Bashar al Assad.

Jeffrey Toobin, good to see you. Thanks so much.

TOOBIN: Ashleigh B., see you.

BANFIELD: We'll see you soon. All right, so some very, very scary moments in the sky for an international rock sensation and I am happy to say the music will continue, folks. A door came off of Bono's airplane. Yes, midflight. Find out how this happened and how big a threat it would be if this happened on a flight that you were on. That's next.

(COMMERCIAL BREAK)

BANFIELD: It is a beautiful day. I mean it. It is truly a beautiful day. Thank you, creator, for saving Bono because that U2 front man and four of his friends cheated death yesterday when the rear door of a private jet they were flying on just fell off. And it fell off midflight. The Irish rock star was on his way from Dublin to Berlin when a hatch just malfunctioned. Nobody really knows if it was closed improperly, if something broke, but luckily that plane was able to land without incident and that magician of a musician stepped off the plane uninjured. So did his friends. CNN's Rene Marsh following this story.

You can tell how much I like this band -

RENE MARSH, CNN AVIATION CORRESPONDENT: That's right.

BANFIELD: And how thrilled I am he's OK. The music in my life would have just stopped had anything happened to Bono. But what the heck happened? How does this kind of thing happen midflight?

MARSH: You know, Ashleigh, so it goes without saying the bottom line is the door of your private jet really shouldn't fall off, but it really could present a danger for anyone below. How does it happen? It's really unclear. We know it's under investigation. You hit the nail on the head a little earlier. It could be that the door wasn't closed properly. It could be some other malfunction with the door. You're looking at photos of actual plane there. Not the day that the incident happened, but this is the actual plane that he was on.

The question that some may be asking is, could this have caused a crash? We know it ended well. It is possible. You know, if this door struck the tail of the plane or even the wing of the plane or any other critical part of the plane that flew off, it could really have been bad news for the five passengers who were on board. But instead, as you mentioned, they have a very amazing story to tell.

BANFIELD: So just real quickly, because I'm very curious as to if anything's different on board a private jet. When this kind of thing happens, would this have depressurized the plane given that this was the luggage area? And do they also have the oxygen coming out of the ceiling? Is everything kind of the same as on a commercial flight?

MARSH: No, this is different. Because this was a Learjet 60, we know that the luggage compartment was totally separate from the passengers' cabin. So that's why everyone was able to get off without even a scratch. They were all just fine. Because when this door flew off, it did nothing to impact the pressurization of the main cabin. They were all breathing just fine. No oxygen masks were deployed. However, on a commercial jet, we do know that the luggage compartment,

all of that, is connected. So if by some chance the door of the luggage compartment on a commercial jet was able to fly off, then you would have that depressurization, which could really be deadly.

BANFIELD: Yes.

MARSH: But it is worth pointing out, let's just say the passenger door of a commercial jet, really hard to get that off or even open that. If you try to open that, Ashleigh, midflight, it would be virtually impossible because it's built so that the pressure inside of the plane keeps that door in place.

BANFIELD: So testimony to his badassness. If that was me, I'd have gotten often the plane and gone to the nearest bar and downed a bottle of Jack. And this guy, instead, you know what he did, Rene? He just met with Germany's special representative in the fight against Ebola to talk about the virus. Went right to work. No, that is Bono.

MARSH: He's focused.

BANFIELD: Man, he is more than that. Come on.

Rene Marsh, thank you. Nice talking to you.