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No Indictment for Officer in Eric Garner Case; What Will Be Response to Staten Island Grand Jury Decision; Bernard Kerik Talks Officer Training

Aired December 03, 2014 - 14:30   ET

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


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BROOKE BALDWIN, CNN ANCHOR: Bottom of the hour. I want to welcome our viewers around the world and here in the United States. I'm Brooke Baldwin.

We now officially have a decision, as has been anticipated since July, involving Eric Garner. A grand jury in Staten Island has come back and decided against an indictment involving a police officer, who you see in this video.

And before we show it to you, a quick heads-up, it's tough to watch. It's incredibly graphic.

What you will see -- Eric Garner was accused of loosely selling cigarettes, which was illegal. You watch the beginning of this confrontation with members of New York law enforcement. Soon enough, you see multiple police officers surrounding him, confronting him, engaging him. And you see one officer in particular -- and this was the subject of this grand jury's decision because he is placing Eric Garner in a chokehold. Eric Garner suffered from medical issues. The full picture here is important. Overweight. Asthmatic. Later died. Medical examiner ruled this a homicide. So members of the Staten Island grand jury have been convened, parsing through the evidence and details, and arrived at this decision that they had to determine whether it was malicious intent that the officer, who threw his arm around Eric Garner's neck, did so with an intent to kill, with malicious intent. And as we're now learning, they did not decide to indict that police officer.

Even bigger picture, 20,000-foot view, with a non-indictment in New York just one week, a little over one week, after the non-indictment involving an unarmed 18 year old in Ferguson. We've seen the walkouts. We've seen the marches. We've seen the protests. We will wait to see what happens in the wake of this decision in Staten Island here in New York. We're waiting to get more details but, again, this has been confirmed through two law enforcement sources close to this investigation. No indictment in this Eric Garner chokehold case.

I have Michael Skolnik and Michaela Angela Davis sitting here with me.

Your reaction to the news?

MICHAELA ANGELA DAVIS, CULTURAL CRITIC & WRITER: I just hear him saying, "I can't breathe. I can't breathe." And I feel like that's how the black community feels. We can't breathe. This just happened in Ferguson, we're not over Trayvon. We've got a 12 year old just shot that someone thought was a 20 year old with play gun. When do we get to breathe? When do we get to heal? It looks like you are allowed to kill with impunity. Whether it's the truth or not and whether or not that police officer intended to kill him, I don't believe that's so. I do believe -- he did not see his humanity. He did not hear him. He saw him as a threat for selling Loosies. At what point -- taze him. At what point do you get to just stop the violence? You're supposed to stop it and not escalate the violence.

BALDWIN: I hear you. But critics will say, why would -- if you were confronted by multiple law enforcement, why wouldn't Eric Garner listen, agree, comply, why not?

MICHAEL SKOLNIK, EDITOR-IN-CHIEF, GLOBALGRIND.COM: He did nothing wrong. America was hit on her right knee a week and a half ago. We have fallen to our knees. This is not just about black people. I'm white. It's about white people, black people, Latinos and Asians and documented and undocumented. Who are we going to be as a nation? What kind of a nation will we be? When will we see the humanity in everybody? Whether he's selling loosie cigarettes on the street or whether he's walking in the middle of the street as a teenager, when will we see the humanity?

DAVIS: But, Michael, we don't see this happen to white boys.

SKOLNIK: That's exactly right.

DAVIS: So when you say the community sees it as a whole. I had never heard of a young white man getting shot before his wedding. I've never heard of a young white boy getting shot --

(CROSSTALK)

DAVIS: I'm just saying I have not heard of it.

(CROSSTALK)

KEVIN JACKSON, EXECUTIVE DIRECTOR, THE BLACK SPHERE, LLC: Yeah, you haven't heard of it because --

BALDWIN: Kevin, go ahead.

JACKSON: You haven't heard of it because it isn't media worthy to hear about it.

If that cop responded wrong, and apparently he did, and that man died, it's a tragedy that it occurred and they need to look at police procedures. But there's nobody that can say he was targeted him and it was a black situation. It could have happened to a white man. It could have happened to anybody who is asthmatic or overweight or whatever.

The problem in America is that we run to that deep, dark place where -- whoever the gentleman on the panel is, that wants to go to that says America has been hit in the knee or mouth or the crotch.

BALDWIN: Michael Skolnik.

JACKSON: Michael. We don't need to run there. What we can look at is every situation in its own -- simplistically. If something happens to me, I don't think it's indicative of everything that happens to black America. I think of what happens to Kevin Jackson.

BALDWIN: Hold on. I think it's important to bring in a legal voice here.

Mel Robbins, I have on the phone, one of our CNN legal analysts and a contributor.

Mel, so we are crystal clear, this grand jury had to determine whether or not this particular police officer who held him in a chokehold wanted to kill, correct? It was malicious intent. That was the bar whether or not they would hand down this indictment.

MEL ROBBINS, CNN LEGAL ANALYST & COMMENTATOR (voice-over): No, actually, no it's not. That's only if we're talking about first- degree murder. There were other charges that were available like second-degree manslaughter being caught up in the meet of the moment. Criminally negligent homicide is what the charges should have been. We're talking about a situation here where the police are judged based upon the reasonableness of their actions given the circumstances. And I am dumbfounded that you have a police officer on camera using a move that has been outlawed by the police department because it can cause death on people when you use it on them. And we've got it on camera. You've got him clearly in a chokehold on this guy. And given the fact that it is outlawed as a practice by the police because it can cause death, and the guy is using it, that in and of itself shows that the police officer was not acting within accordance of the law. I'm floored.

BALDWIN: They had other options. They had other charges. And the answer was nothing.

ROBBINS: Nothing. Absolutely. Unlike the Michael Brown case, where you had forensics, you had a blood trail that went 30 feet away from the car and 21 feet back that supported witnesses that said that Michael Brown had charged the officer. He had the officer testifying as to the fact that he felt personally threatened. You had other officers testifying in the Michael Brown case that under the same circumstances, they would have done the same thing. In this instance, we have a police officer using an illegal move on a citizen that they are making an arrest of. A move that was not necessary. A move that was excessive and a move outlawed because it can cause someone to die and the grand jury finds no probable cause to take this to a trial? What's it going to take to actually have officers be held accountable? I'm not saying he's guilty. At least this should be going to a jury for crying out loud.

BALDWIN: Mel, stay with me.

Michaela? DAVIS: That's a critical point. The act itself is illegal. So even

if we have these other ideas about it, that fact is true. That was an illegal procedure.

SKOLNIK: If I can add to that. I think the folks at home need to understand we're not asking for a guilty verdict. In Michael Brown, we didn't ask for a guilty verdict. We were asking for a jury trial. We were asking for an arrest. This is a grand jury. This is not a trial. There is no verdict here. This is a decision made. We can't even get to a trial, at least to be judged by the jury of your peers whether you were right or wrong. That's all we're asking for.

BALDWIN: As a lawyer, Mel --

(CROSSTALK)

BALDWIN: Hang on, Kevin.

As a lawyer, Mel, why do you think this didn't go to trial? Looking at all of the facts presented? Looking at the video?

ROBBINS: Well, the only thing that I can think of and I don't know that Staten Island district attorney is planning on releasing all of the transcripts so I don't know that we'll even be able to make an analysis. The only thing I can think of is perhaps, perhaps the prosecutor put evidence in around what the police call continuum of force. You have an escalating series of actions on the part of somebody that you are trying to arrest, you can escalate your response and they talk a lot about what they call "pain compliance technique." Maybe this officer instead of talking about a chokehold, even though that's what you clearly see, maybe he didn't use that language. I was using the lateral vascular neck restraint that we've been trained to use which is not a chokehold. It's something we use where elbow is pointed down. I never intended to kill him. If he had only stopped resisting, this never would have happened. I feel sorry. Maybe he used different language and kind of wrapped this all up and kind of police jargon around this. The jury had to decide, was the force used reasonable or was the force used excessive. And when a police officer uses an outlawed practice, I find what they're doing is unreasonable by definition and excessive. And I just am shocked. Last year -- I just heard one of your guests, Brooke, say that you just want accountability. Last year, there were 461 justified killings by the police. And how do we know they are justified? We have no idea. There is no independent body that's actually investigating these things.

(CROSSTALK)

BALDWIN: That's an excellent point. That's an excellent point.

Let me get to that point in a minute. Let me ask my guests to standby because I have Joe Johns joining us from live outside of the district attorney's office there in Staten Island.

Joe Johns, are you with me? JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: I am, in fact,

Brooke. As you know, two law enforcement sources telling CNN now that grand jury here has decided not to indict the officer in the death of Eric Garner. Of course, this raises all kinds of issues similar in some ways to what happened in Ferguson, an unarmed African-American man dying in an altercation with white police officers. Of course this happened back in mid July. Now, the question is, what will be the response in the community here? Police certainly have staged and prepared for demonstrations that could occur here in the Staten Island area. It's just not clear what's going to happen. We do expect some demonstrations. I reached out to Reverend Al Sharpton within the last two or three hours to try to find out what it is he plans to do.

There are other questions besides simply the death, which has caused so many controversies here in New York. There's also the question of chokeholds. Chokeholds have been an issue for years and years in the United States. This man died, apparently, in part, as a result of a chokehold. It's against the policy of the police department here in New York for police officers to use chokeholds, although, at the time, it was not illegal. Many other places in this country have outlawed them in one form or another, so that, too, is subject to debate in New York City.

The question, of course is, what will be the reaction of the community, especially in light of what has happened in Ferguson. Many concerns about African-American men dying in altercations with police.

The bottom line, again, the jury here, the grand jury, deciding, according to two law enforcement sources, telling CNN there will be no indictment in this case.

BALDWIN: Joe Johns, thank you so much, live in Staten Island in New York for me.

Kevin Jackson, thank you.

Michaela Angela Davis, Michael Skolnik, thanks to all of you.

I do want to get a quick break in. If you are just joining us, breaking news here. No indictment, no indictment for the police officer who held Eric Garner in that illegal maneuver, in that chokehold back in July. Grand jury has decided that the police officer will not be indicted.

What will that bring tonight as far as demonstrations? We have to wait and see. What do the legalities of this mean moving forward? We'll have two of our top attorneys here at CNN join me next.

Stay with me.

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BALDWIN: Welcome back. This grand jury in Staten Island, New York, decided not to indictment a police officer, New York police officer, after placing Eric Garner, here, who you see in this graphic video on the streets of New York back in July, placing him in a chokehold, which again to reiterate to everyone, that's an illegal police maneuver. Eric Garner ultimately died. And so members of this grand jury had to decide whether or not that police officer here should be indicted and the answer, no indictment.

Again, bigger context, this coming just a little over one week after there was no indictment in the case of Ferguson, Missouri, in which 18-year-old Michael Brown was shot and killed by that police officer. That police officer not indicted there as well.

Let me talk to our top legal guy, Jeff Toobin, who is joining me now.

Jeff, can you just explain to all of us what these grand jurors listened to, what they saw, how they had to arrive at this decision.

JEFFREY TOOBIN, CNN LEGAL ANALYST: What's so unusual about this situation, Brooke, is there was a video as we've been watching of most of the encounters. So that is something the grand jury saw. They heard testimony from officers involved who explained their action, just like Darren Wilson chose to testify in his grand jury and explain what he did. And just like with Darren Wilson, the grand jury decided that there was not enough evidence to bring charges here.

I think it's worth pointing out, the parallels are so obvious, but there are differences as well. We do have a video. There was no video of the actual encounter between Officer Wilson and Michael Brown. There was no gunshot here. This was a physical altercation.

I think it's also worth pointing out, you know, we are often referring to the illegal chokehold. The chokehold is against New York City police department policy now. It's not a crime. It's not against the law. Officers are not allowed to use it and they can be disciplined for it but it's not a crime against New York State law.

BALDWIN: When it comes to a grand jury as we learned in Ferguson, it's either you indict or you don't indict, correct?

TOOBIN: Right. And the standard is much lower than a criminal trial facing the decision of a verdict.

BALDWIN: Explain the standard for me.

TOOBIN: In New York State, and in Missouri, is there probable cause for this -- was there probable cause that a defendant committed a crime. "No" was the answer in both states. If the case went to trial, the higher standard to meet is proof beyond a reasonable doubt.

BALDWIN: What's your reaction to the decision?

TOOBIN: Again, I think it's surprising. This was an encounter about a very minor crime. Eric Garner was selling so-called "loosies," loose cigarettes --

BALDWIN: Single cigarettes.

TOOBIN: Right, individual cigarettes. Not pot. Actual cigarettes. They're not taxed. And the store owners in the area don't like it so they ask the cops to tell people to knock this off. This was what Eric Garner was arrested for. A very, very minor crime. The confrontation escalated and there were arms around his neck and he died.

I do think this was a surprising decision. I didn't hear all of the evidence in the grand jury. I didn't hear the officer's testimony. I don't want to say this was clearly an incorrect decision. Given the facts available and given the fact that Eric Garner did very little wrong, if anything wrong, a very minor crime, wound up dying, it's surprising.

BALDWIN: My guests, to my right, share that same reaction as you.

Jeff Toobin, thank you so much.

We're showing you live pictures. This is where this whole thing happened here in New York where you see the video of the officer surrounding him. This is the very street. And it looks to me like there are people standing along the sidewalk. We're looking at this together for the first time. Perhaps quietly -- in the quiet and drizzle and cold of New York reflecting on what happens.

And the big question is, what happens from here on out? We saw the demonstrations, the walk-outs and marches in the wake of what happening in Missouri. And that wasn't just happening in Missouri. That was across the country. What could come tonight? We'll let you know in just a moment.

Meantime, you're going to have to repeat what you just told me.

We have joining me now on the phone, Bernard Kerik, for more insight on how police officers are trained. Former New York police commissioner.

Commissioner, are you with me?

BERNARD KERIK, FORMER COMMISSIONER, NEW YORK POLICE DEPARTMENT (voice- over): Yes, Brooke, I am.

BALDWIN: Sir, your response to this decision from the Staten Island grand jury?

KERIK: Well, first of all, I think it's a tragic event. I think the grand jury saw evidence that obviously you did not see and they heard testimony we did not hear. I think there are two important points to focus on that Jeff just talked about. One of which is the crime itself. I know there's a lot of people out there that would say, as Jeff did, this was a very minor crime. The problem is the police officer, when he's affecting an arrest, he doesn't have the ability to say this is a minor crime so I'm going to arrest in a different way, I'm going to do something differently. Once that police officer says, you're under arrest, you're obligated to comply with that arrest. And obviously, Mr. Garner, based on the tape, did not comply. He resisted. That resisted escalated into a position where the officers affected a restraining hold that turned into a chokehold, if you will, or whatever they want to call it, and this man died while he was resisting arrest. It's unfortunate. It happens.

The other thing that Jeff talked about was the legality of a chokehold. It's against New York City department policy but it's not illegal. The New York City Police Department will have to deal with that in another arena outside of the grand jury.

BALDWIN: OK. Commissioner Kerik, stay with me on the phone. We need to get a quick break in.

We're following breaking news that the grand jury did not indict the police officer in the wake of the death of Eric Garner back in July.

Stay with me. We'll be right back.

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