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Grand Jury Evidence in Brown Case Released

Aired November 25, 2014 - 10:30   ET

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

JOEY JACKSON, HLN LEGAL ANALYST: Separate ways. And so clearly the grand jury, they did do their due diligence in terms of asking the proper appropriate questions. But, you know, the distrust lies in the fact that when you have an actual trial, Carol, you have cross- examination, you have expert witnesses, you have people who can analyze the evidence and who could put it before a jury and who could put a different presentation on why the blood was there.

Let's also keep in mind that Darren Wilson, according to him, also said that at the time he fired down, certainly from his testimony, Michael Brown was advancing towards him and got between eight to 10 feet before he fired the shot. He also said that when he was firing the shot, he fired it hit into his head and he said there was sort of a vision he saw, the demon look just dissipated and all the aggression ended.

And at that time he knew that the threat was terminated but Darren Wilson put that distance between eight and 10 feet at the time the fatal shot was fired.

MEL ROBBINS, CNN LEGAL ANALYST: And you know what else? Back to physical evidence. The shell casings found at the scene corroborate the eight to nine feet distance in terms of the shot -- the shooting distance. And so what you're seeing when you actually dig into the transcript is instance after instance where the physical evidence is actually corroborating the story or the testimony that Officer Wilson told.

Are there things in his testimony that, you know, you might find fanciful? Of course. I think both Joey and I, when he goes through and says, I thought about my flashlight, I thought about my mace, no, you didn't. You know, you were thinking about one thing, which is get your gun. But the most important thing to me that I think is hard for people to take a look at is the physical evidence.

And what is that telling? Yes, Joey's right, trials allow you cross- examination. Trials allow you to really investigate this. And it allows the public to watch this. However, one of a prosecutor's job is to determine -- when they determine a case and whether or not they're going to bring charges, can I prove this case at trial?

We see this in rape cases all the time where they fail to bring any kind of charge because they don't think they can charge it.

My personal opinion in this case is that the prosecutor probably felt he couldn't prove this case at trial and he took it to a grand jury because he thought that was the just thing to do even though they didn't think they could prove this at trial.

I mean, do you really think this is a winnable case?

JACKSON: Well, a couple of things I need to say. Certainly the standard is different. We have to keep that in mind. It's not up to the prosecutor at that time to make an assessment, can I prove it beyond a reasonable doubt? It's up to a grand jury to say, is there probable cause to believe that a crime was committed and that Darren Wilson committed it?

Now in fairness, certainly, the grand jury did go through and doing their due diligence because they also asked the question, did you use a stun gun? Do you have a stun gun? And he didn't have a stun gun, it's too big, it's too bulky, what have you. I don't hold it.

CAROL COSTELLO, CNN ANCHOR: Or a mace.

JACKSON: Right. I do have my mace. And so clearly they did exercise their due diligence but in terms of, you know, the whole standard of proof and beyond a reasonable doubt, that's a separate question, I think, from a grand juror's question about whether we should go forward in the first place.

ROBBINS: Well, you know, here's the -- go ahead, sorry.

COSTELLO: I know. I've got to throw it out to Don Lemon because I want to get his perspective from the community perspective because, you know, Don, at some level people discount facts and the facts don't matter anymore because you have your mind made up and who's going to -- how many pages --

DON LEMON, CNN ANCHOR: Right.

ROBBINS: Hundred pages --

COSTELLO: Hundred pages?

ROBBINS: Hundred pages of question by the grand jury of this detective.

COSTELLO: Are people going to go through 100 pages to find out the facts?

LEMON: No.

COSTELLO: And even if they did, would they draw a different conclusion?

LEMON: Yes. And I think it's interesting, it's fascinating, guys, you guys are having the same conversation that I had with Mark O'Mara just before I left New York to come here and you know what he said to me? Mark O'Mara said, I think the thing that may end up being the key thing here, the key factor to determine this, blood splatter. If that blood splatter shows that Mike Brown turned around and was coming back towards the officer, that is going to be significant. And now here we are, three days later, talking about having the same

conversation that we had there. And you better -- you can better believe that people at home are having the same sorts of conversations about this.

And, Carol, as we have been saying all along, the big question is, where do we go from here? Where do we move forward?

I want to bring in my next guest to talk about that because she has actually been appointed to the commission here by the governor and that's Reverend Traci Blackman of the United Church the Christ, right, Christ the King, in Florissant, Missouri.

So you were appointed. These changes don't happen overnight. So where do we go from here in light of what happened last night of the decision, in light of the unrest?

REV. TRACI BLACKMAN, PASTOR, CHRIST THE KING, UNITED CHURCH OF CHRIST: Well, I believe that we begin to look at the issues that brought us to this place. It's fascinating to me, as I stand here waiting and listening to the news reporters try this case on TV. It's fascinating that I hear people trying it in conversations all over town. And what was really requested here was the ability to try the case publicly in a court of law.

It's my understanding that the grand jury's responsibility is to define whether or not the state has enough evidence to go forward with a trial.

LEMON: Not whether the officer was guilty or innocent, right.

BLACKMAN: Not whether the officer was innocent or guilty. I'm not even sure why he was there for four hours. The state's case is what the grand jury should have been looking at. Now I didn't do the grand jury and I appreciate all of the effort and energy and I believe due diligence they put into going over all of that testimony and all the many hours that they spent.

I believe that they did the very best they could, but in the absence of a trial, you don't have that interpretation that always comes with facts. And so where we go from here is that we begin to look at the issues in St. Louis, in this region and, indeed, I would suggest in this nation that bring us to a place where the African-American community is automatically suspicious of anything that law enforcement says because of our history.

LEMON: That's a good point.

BLACKMAN: Right?

LEMON: Talk more about that.

BLACKMAN: Yes. Yes, because in the history of African-Americans in this country there have been so many instances when justice has not been on our side, when law enforcement has not been on our side. And so you have right now the results of that in suspicions. We're not going to just automatically believe. And on the other side, you've had the criminalization and the villainization of black men in America for so long that you also have that fear. So no one is talking about that even the --

LEMON: Can I ask you this? So -- because in this case, what about the possibility people won't allow -- are people allowing in their minds a possibility that in this case that may -- in this instance that may not be the case? Maybe there was a confrontation, maybe the officer felt in fear of his life, and maybe race did factor into it? But it wasn't the overwhelming factor.

One of the factors, he was big, there was fear according to the testimony he went for the gun, and on and on and on. Maybe race wasn't the overriding factor in this? Did people jump to conclusions?

BLACKMAN: What I'm saying to you -- what I'm saying to you, don, is the possibility of that typically does not exist for African-Americans in this society because of the context in which we are having the conversation.

LEMON: Right. Right.

BLACKMAN: So when you say what do we do to begin moving forward? What I say we do is we don't gloss over the issues that have been raised by what we just encountered through the entire 108 days. We don't quickly put a band-aid on it and pretend everything is OK but that we, black, white, young, old, across generations, and let's be clear, this does not just divide along racial lines. There are racial diversity on both sides of this issues but we have to sit in this uncomfortable place until we move to a better place.

LEMON: And if you want to work it out, if you want to be at the table, you have to be at the table.

BLACKMAN: You do.

LEMON: You have to have a conversation.

BLACKMAN: You have to be at the table.

LEMON: You have articulated this better than anyone and I could see why you've been appointed to this commission. Are you going to be as forceful and as strong about fairness in these meetings and in your role as part of this commission?

BLACKMAN: Absolutely. But this commission is comprised of 16 very caring, very knowledgeable, very diverse people of this community. I'm excited about the possibilities here. Our task is not to retry Michael Brown's case. My sympathy and my condolences, my heart breaks this morning because what we have seen over the last night, we are all responsible for and we don't want to have that conversation.

We will work to make a difference in this community, but that difference is based on what brought us here.

LEMON: I've got to get to a break. Thank you so much. When I saw you I said your spirit is troubled this morning, I can feel it. You are not -- it is troubled. Talk to me, what's going on?

BLACKMAN: I just hurt. I hurt for my community. I hurt for all the people in my community. And I hurt for the many young people who did everything they could, everything they could to make sure that last night was not violent and make sure that their voices were heard and unfortunately the pain and the rage of a few have made a different narrative this morning.

LEMON: That's the unfortunate part of it.

Reverend, thank you very much.

BLACKMAN: Thank you.

LEMON: I appreciate you joining us here on CNN.

We'll be right back.

(COMMERCIAL BREAK)

COSTELLO: I want to talk more about Officer Darren Wilson's testimony before the grand jury and other people's testimony because there, what, about 60 witnesses who testified before the grand jury.

Our legal analysts have been poring through 100 pages of transcripts all morning long and they found some really intriguing elements within that grand jury testimony. So joining me again, Mel Robbins and Mark O'Mara.

Welcome to you both.

You know, what this all boils down to, I guess, is that Officer Wilson was in fear for his life and if he was that it was a justified shooting, right?

MARK O'MARA, CNN LEGAL ANALYST: That's the whole point of it. No matter what happened before, although it may inform -- the fight at the car may inform what his position or his thought process at the time he fired those shots, he has to be in reasonable fear of great bodily injury to himself or somebody else and that's the real issue. And that's why the location of the distance between the two of them, what Mike Brown --

COSTELLO: If you're talking about physical evidence to prove that not just Officer Wilson's testimony but physical evidence and that is contained in the grand jury testimony.

ROBBINS: Yes. Yes. What we've been talking about this morning is that the grand jury on November 21st was asking a detective to confirm that the blood pattern evidence at the scene confirms, it's the wound from most likely Michael Brown's hand as he's running away from the car that he travels away from the car and then the blood pattern comes back at least 21 feet.

And it's right there in the record and what that tells us is that the grand jury, Carol, was looking for any kind of physical evidence that they could use to figure out what the heck happened. And to Mark's point, the big question is, was Officer Wilson's fear reasonable under the circumstances?

I found another interesting thing, which is on page 17, the same day the grand jury is looking at some of the forensics and they're asking questions of the two presenting prosecutors about when are we going to get the report, and the grand juror says this, "I'm not sure that everything that we've done so far is thorough. If we would make a decision before we have his report, that would not reflect good on us."

You know what I mean? And what that tells us all is that this is a grand jury that was very well aware of the optics outside and they were very well aware that things would be scrutinized.

O'MARA: Yes, and also --

ROBBINS: And put this --

O'MARA: Yes, also they were doing their job. That they were sitting there, going, "give us everything we want," which is maybe why Dr. Baden came back in to make sure that we had all of that, and just put everything in context and then make sure that they knew everyone was going to be watching them and looking at this and to make sure that they could justify their own decision, whatever it might be.

COSTELLO: Can a grand juror make themselves known? I suppose they can.

O'MARA: They actually -- yes, can't talk the vote, they can't talk about anything within the grand jury that's protected by law, but I think if a grand juror came out and said, I was one of them, that they could do that.

COSTELLO: Interesting. So, you know, I think it is important to note that there's 100 pages of testimony here and people actually should read it.

ROBBINS: More. No, no, there's a lot more. That's just one --

COSTELLO: There's a lot -- that's just one?

ROBBINS: The hundred pages was only the amount of pages of the detective's third time testifying and the grand jury peppering. That was one of 60 pages.

(CROSSTALK)

O'MARA: It's 70 --

ROBBINS: I mean, I just got -- I mean, we've got stacks and stacks and stacks and stacks --

O'MARA: It's actually 70 hours. So 70 hours is almost a few thousand pages of documents all together. COSTELLO: So talk about a police officer being in fear for his life

because grand juries generally give the benefit of the doubt to the police officer. It's different when --

ROBBINS: Well, the law does.

COSTELLO: The law does. That's what I'm trying to get at. It's different than if a Joe Blow would go in there and gave the same exact testimony, isn't it?

O'MARA: Well, it's slightly different. They're not given a lot. They're given the -- don't forget, they're given the obligation, the authority to enforce law. And we give them guns and say, go put yourself at risk, so they're allowed to protect themselves. So the law still says to cops you have to be in reasonable fear of great bodily injury, just like anybody else.

But we are also realistic with police officers. We know that we tell them to put themselves at risk of great bodily injury much more than most citizens do. So we have to look at it through that filter. It has to still be there but we're going to understand that they put themselves in a position where they have to deal with that situation much more than the rest of us.

ROBBINS: Well, here's another detail. So Joey Jackson was just saying that the officer is an interested witness. The grand jury is very well aware that he's going to testify in a way that puts him in the best light. That doesn't mean that he's lying. There were things that I found not to be credible like when he goes on and says, I reached for -- I thought about my flashlight, I thought about my mace, I thought about this. I was kind of like, no, you didn't.

But regardless, on page 281 when Officer Wilson testified on September 16th, I found this to be extremely interesting. When he's done testifying, the prosecutor turns and asks the grand jury, who we know has been very active with other witnesses, any questions? There's only one. Just one question. And that question was, along those lines, you feel like a police officer it is your obligation to follow that suspect? The officer responds, yes, sir.

That's it. And so what I take away, and I'd be curious to hear what you take away from this, is that this was a grand jury that for the most part probably believed him, well, obviously since they didn't return an indictment. But they also didn't question him. So a lot of us that have sat back here and said, well, why didn't he shoot him in the knees? Why did he shoot him at all? They didn't ask any of those questions which is I found to be pretty significant.

O'MARA: Well, we also have to look at the context of how McCulloch, the prosecutor, presented this to the grand jury. He started with the witnesses who went against Wilson first, the street -- the witnesses on the street. And then he sort of discounted them with the forensic evidence and so basically told the grand jury subtly but told them those witnesses who I showed you first, obviously they're not believable because the forensics counter them. So by the time you get to Wilson's testimony it's couched in this

system that the prosecutor set up, properly so, they can do their case however they want, so that Wilson came in with this air of credibility and when he testified through with everything he said about the reasonable fear of what he did and the anger, the animosity from Mike Brown that he perceived, it just went very well.

COSTELLO: Yes, but --

O'MARA: So I was --

COSTELLO: If people are listening to you right now, they would -- some would say, well, that's not fair.

O'MARA: I say that I wish the grand jury had been more activist with him to say well, wait a minute, how much fear were you in?

ROBBINS: Right.

O'MARA: How much were you hurt? You know, this idea that -- the next shot could have knocked you out? Did you actually -- did you feel -- I mean question him. But that's the issue.

COSTELLO: At this point he knew Michael Brown was not armed. Like that bothers me on some level. He knew it.

ROBBINS: I think it bothers a lot of us. I mean, this -- at the end of the day, this is somebody's son. But also in this country if you assault a police officer and you go for his gun and then you run away and then you charge back, which is what this blood evidence is suggesting, what do you expect an officer to do?

O'MARA: That's my concern. I don't want to be a Wilson file here, just giving his position, but the reality is, if you -- if I shoot somebody and they go away and for whatever reason I think you have to keep it in sight, if that person who had been shot by my gun turns back on me, I'm thinking he doesn't care that I have a gun and that's an additional level of fear or misunderstanding or confusion in the very few seconds you have to react to the situation like that.

He comes at you 25 feet, you don't know what's going on but you do know that he's no longer afraid of you or your gun.

COSTELLO: Well, you know, and I've got to stop it there.

Mel Robbins, Mark O'Mara, thanks so much.

I've got to take a break. We'll be right back with much more in the NEWSROOM.

(COMMERCIAL BREAK)

LEMON: Welcome back, everyone, I'm Don Lemon in Ferguson. We'll get back to Carol Costello in just a little bit.

But the question is, was justice served in Ferguson? Of course, that really depends on who's answering that question. Protesters have taken to the streets overnight, whether violently or peacefully, they certainly don't think justice was served but others say the grand jury has spoken and their decision should be accepted.

I'm joined now by CNN commentator L.Z. Granderson and also former special assistant to President George W. Bush Ron Christie joins us as well.

Thank you, gentlemen, for joining us here.

Ron, to you first. You agree with the grand jury's decision in this case. I want to show our viewers a little bit of what you wrote for "The Daily Beast" in your column. It's titled "Justice was Served in Ferguson. This is not Jim Crow America."

And here's the quote. You said, "Civil rights figures decided long ago that the only fair outcome would be indictment. But that was driven by ideology, not facts. For some, the grand jury proceedings to determine whether the shooting of a black teenager by a white police officer was justified was never about seeking justice."

Explain that, Ron. Some may say that's also ideological and a bit aggressive.

RON CHRISTIE, FORMER SPECIAL ASSISTANT TO PRESIDENT GEORGE W. BUSH: Good morning, Don. Well, the Fifth Amendment to the Constitution says that a capital indictment cannot be returned against an individual unless, of course, they have had the chance to have a presentment before the grand jury or, of course, they're actually indicted.

So for those to have pre-judged the outcome, and I look at an icon of the Civil Rights Movement, John Lewis, who was making comparison to Selma and saying of course if justice wasn't done, if there was an indictment that was not handed down, then justice would not be done, that's pre-judging the outcome.

He wasn't in the grand jury room, he didn't sit through 25 different sessions of the testimony and look at facts. We can all have a very emotional reaction to this very tragic story, but as a lawyer I can tell you, you're trained to look at facts in evidence, and not on emotion. And I think that is the real tragedy of what's happened in Ferguson.

LEMON: L.Z. Granderson, has there -- was there a rush to judgment?

L.Z. GRANDERSON, CNN COMMENTATOR: Well, I think there may have been a rush to judgment on both sides. I agree there may have been some African-Americans that have -- that characterized Michael Brown as being innocent. But I also know that the police officer said -- were wearing wristbands that say, "I am Darren Wilson."

Now why would you say "I am Darren Wilson" when you and the police department don't know all the evidence either. You didn't pore through all the paperwork as Ron talked about, you didn't sit through all the indictment interviews. So it seems as if both sides rushed to a judgment. LEMON: And he's saying that this is basically civil rights leaders,

if you look at that exact quote, and I don't want to put words in your mouth and say something that you didn't write, Ron, but he's saying it's civil rights leaders basically fuelling -- basically fuelling the protests and the explosion of what happened last night.

GRANDERSON: Well, I think that's sort of racism on Ron's part, assuming that, you know, civil rights leaders, you know, also known as black people, were the only ones that were concerned about the facts surrounding this. The fact of the matter is I have been in Ferguson many times, I was in Ferguson last night. There are white people who are concerned about the way justice was being paid out here as well as black people.

And it wasn't just, quote-unquote, civil rights leaders. It's people who are concerned about the huge disparity between the criminal justice system and the way that black people are treated in this country.

LEMON: All right. Ron?

CHRISTIE: L.Z., with all due respect, it's not racism on my part. I look at so many of the people who have been agitating, who have descended to Ferguson who should have let this matter be a local matter and not try to turn it into some national situation which unfortunately it's digressed into.

If these so-called civil rights leaders actually cared about justice they would have been telling people not to incite violence, not to burn down, and not to destroy a community, and I think unfortunately it served a narrative for some people who are trying to profit and get their name out rather than to actually have justice --

GRANDERSON: Who are these civil rights leaders that said to burn things down?

CHRISTIE: Who are the civil rights leaders who actually did not call for calm and did not call for peace? President Obama and --

(CROSSTALK)

GRANDERSON: No, no, no. Who are these civil rights leaders who said go out and loot?

CHRISTIE: No, I did not say that. What I said was, these folks should have actually been out there, L.Z., telling people not to protest violently, not to loot, not to damage. You didn't hear any of that. Unfortunately, only Michael Brown's father was the person I heard yesterday saying that we should --

(CROSSTALK)

LEMON: Ron, I'm going to -- Ron, I'm going to have to disagree with you. Listen, I understand that ideology has a lot to do with this, and some of what you wrote I agree with, but I have to disagree with that leaders were out not telling people to -- you didn't see leaders telling people not to loot.

I did see that. Now I don't know about the narrative that went before this, you know, but as far as telling people not to loot, not to riot, I think that came from every single person, including the father of Michael Brown which you mentioned, Ron Christie. There were public service announcements from leaders all over this area telling people not to loot and riot.

But I think the question is, and the comment here is, those people didn't listen, what was the disconnect? Why didn't they listen? Was it narrative? Was there a rush to judgment on one part? Was that overriding? Did that override the urging of people not to riot?

GRANDERSON: This is what we know, this is not a local issue. There are other police departments in this country right now that arrest black people at a rate 10 times higher than any other race. So the assertion that this is only about Ferguson and Michael Brown is wrong.

LEMON: Yes.

Ron, I've got 10 seconds. I'll give you the last word.

CHRISTIE: Sorry, L.Z., when you look at the number of riots and protests that took place across the country last night, this shows there are those trying to gain at their own personal expense and are exploiting the tragic death of this young teenager:

LEMON: Ron Christie, L.Z. Granderson, thank you very much.

Carol Costello, Carol, I said -- Carol's in Atlanta. Carol, you're in New York. Back to Carol Costello in New York.

COSTELLO: It's OK, you've had quite the couple days. Den Lemon, thanks so much. It's just been a very insightful show. And I'm grateful to all the contributors.

Thank you for joining me today. I'm Carol Costello. "@THIS HOUR" with Berman and Michaela starts now.