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Legal View with Ashleigh Banfield

Analysis of Chokehold Video; Communities Across the Nation on Edge

Aired December 04, 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.

In the past two weeks, America has seen two white police officers avoid criminal charges in the deaths of two unarmed black men. We expect to hear more about the latest case about 90 minutes from now when New York's mayor, Bill de Blasio, and the New York Police Department's commissioner, Bill Bratton, will talk live about police restraining efforts and CNN's going to bring you -- the retraining efforts, rather, the retraining efforts among the NYPD and CNN's going to bring you that live news conference in just a few moments.

But in the meantime, communities from New York to Ferguson, Missouri, and far beyond, are on edge. The protesters spilled out on to the streets of Manhattan last night after a grand jury decided not to indict Officer Daniel Pantaleo, who was caught on tape using a fatal chokehold on Eric Garner back in July of this year. Police arrested 83 demonstrators throughout the night.

NYPD sources are telling CNN that while the criminal case is closed, the internal investigation of Garner's death and Pantaleo's actions is ramping up. It should be noted, chokeholds are banned under New York Police Department regulations.

For his part, Attorney General Eric Holder is promising a federal investigation into this as well. And Mr. Garner's family is vowing the fight in this case has only just begun.

Garner's case has fewer ambiguities than the shooting of Michael Brown simply because this time there is video. Two bystanders captured the run-in on cell phones and we're going to show you both of their videos, about seven minutes worth in total. The videos are disturbing because you have to remember these are showing a man in the last moments of his life. Here is the footage leading up to, including and after in a moment the moment that Officer Pantaleo chokes Eric Garner.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: See, I just came here.

UNIDENTIFIED MALE: (INAUDIBLE) (EXPLETIVE DELETED) minding my business. I (INAUDIBLE) I stopped. (INAUDIBLE) on me.

UNIDENTIFIED MALE: That's right. I'm (INAUDIBLE). UNIDENTIFIED MALE: (INAUDIBLE) and walk away? Are you serious? I didn't do nothing. (INAUDIBLE). (INAUDIBLE) my I.D. on me. (INAUDIBLE). I didn't sell anything.

UNIDENTIFIED MALE: (INAUDIBLE).

UNIDENTIFIED MALE: I did nothing. We were sitting here the whole time minding our business. (INAUDIBLE).

UNIDENTIFIED MALE: I watched you.

UNIDENTIFIED MALE: (INAUDIBLE) who'd I sell a cigarette to? To whom?

UNIDENTIFIED MALE: (INAUDIBLE) not that red shirt. There's another guy (INAUDIBLE).

UNIDENTIFIED MALE: (INAUDIBLE) for what? Every time you see me, you want to mess with me. I'm tired of it. This stops today.

UNIDENTIFIED MALE: This guy right here is forcibly trying to lock somebody up for breaking up a fight.

UNIDENTIFIED MALE: (INAUDIBLE) I didn't do nothing. Everybody's standing here (INAUDIBLE) I didn't do nothing. I did not sell nothing because every time you see me you want to harass me. you're going to stop me trying to sell cigarettes. I was minding my business, officer. I'm minding my businesses. Please, just leave me alone. I told you the last time, please, leave me alone.

UNIDENTIFIED MALE: (INAUDIBLE).

UNIDENTIFIED MALE: Don't touch me. Don't touch me, please. Don't touch me, please. (EXPLETIVE DELETED). Don't touch me. (EXPLETIVE DELETED).

UNIDENTIFIED MALE: Damn, man.

UNIDENTIFIED MALE: All right, right, stop, stop, stop. Put your hands -- put your hands behind your back right now.

UNIDENTIFIED MALE: I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe.

UNIDENTIFIED MALE: Once again, police beating up on people. Right here.

UNIDENTIFIED MALE: Back up and get on that steps.

UNIDENTIFIED MALE: OK.

UNIDENTIFIED MALE: Back up.

UNIDENTIFIED MALE: All he did was break up a fight and this is what happens for breaking up a fight. This (EXPLETIVE DELETED) crazy.

He can't breathe. Look, now, man, they gave this man a seizure. UNIDENTIFIED FEMALE: No, move out of the way. No.

UNIDENTIFIED MALE: That's my brother. We live here.

UNIDENTIFIED MALE: Everybody, back up this way. Everybody now back up. It's not going to become a fight (ph).

UNIDENTIFIED MALE: Back up!

UNIDENTIFIED MALE: Back up!

UNIDENTIFIED MALE: Back it up.

UNIDENTIFIED MALE: How many miles?

UNIDENTIFIED MALE: This way. Let's go.

UNIDENTIFIED MALE: I can't go in my house?

UNIDENTIFIED MALE: (INAUDIBLE) your house or that way.

UNIDENTIFIED MALE: All right, I call that way.

UNIDENTIFIED MALE: Pick a choice. (INAUDIBLE).

UNIDENTIFIED MALE: Let me get my bike.

UNIDENTIFIED MALE: You had your chance to get your bike, sir. Stand over there right now. we have (INAUDIBLE).

UNIDENTIFIED MALE: And he was just breaking up a fight.

UNIDENTIFIED MALE: He's all right. He's (INAUDIBLE).

(END VIDEO CLIP)

BANFIELD: Piece of video. You may have only seen the shorter clips of the takedown up until now because they've been playing over and over but we really wanted to give you some context. That's the takedown. And now I'm going to play a clip that was shot by another bystander that shows the police reacting after Mr. Garner is taken down. And again, I want to warn you, the video is disturbing but it's important to know context. And just so you know what you're seeing, there will be a clock that's running in the top left corner. That's the time from when the tape started to roll so that you know how long Mr. Garner was lying on the ground.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Where's the ambulance?

UNIDENTIFIED MALE: (INAUDIBLE) before the ambulance can get here?

UNIDENTIFIED MALE: (INAUDIBLE), where's the ambulance?

UNIDENTIFIED MALE: Back up. Back up. UNIDENTIFIED MALE: They're coming.

UNIDENTIFIED MALE: All right.

UNIDENTIFIED MALE: He was breaking up a fight.

UNIDENTIFIED MALE: Can you back up, please. We're trying to give him some air. We're going to get him an ambulance, all right.

UNIDENTIFIED FEMALE: You need me to back up you've got him on the floor. I got him on the floor. They're telling me to back up. You hear this? Now they're trying to get him an ambulance after they harassed him, slammed him down, NYPD, you understand.

It's going (INAUDIBLE) right here. It's going viral right here. NYPD harassing people for no reason. He didn't do anything at all. (INAUDIBLE) Now they want to step back. They want to try to get him an ambulance after they beat him up, (INAUDIBLE) him to the ground. (EXPLETIVE DELETED).

(END VIDEO CLIP)

BANFIELD: And there is much more of the tape as well. This next clip picks up as EMTs arrive and place Mr. Garner on a gurney. And again, I want to warn you, it is disturbing video but it's a crucial part of a story. Take a look.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: (INAUDIBLE) right now, EMS.

UNIDENTIFIED MALE: Sir, EMS is here, answer the question, OK?

UNIDENTIFIED FEMALE: He can't breathe.

UNIDENTIFIED MALE: Yes.

UNIDENTIFIED FEMALE: Sir, it's EMS, come on. We're here to help, all right. We're here to help you. We're getting the stretcher, all right?

UNIDENTIFIED MALE: (INAUDIBLE).

UNIDENTIFIED FEMALE: Yes, yes, yes.

UNIDENTIFIED MALE: All right, we're going to try to get him up on the stretcher. We - it will take like six of us.

UNIDENTIFIED FEMALE: Yes. Yes.

UNIDENTIFIED MALE: Get by.

UNIDENTIFIED MALE: Why ain't nobody doing CPR?

UNIDENTIFIED FEMALE: They're not doing nothing.

UNIDENTIFIED MALE: Because he's breathing. UNIDENTIFIED MALE: He's breathing?

UNIDENTIFIED MALE: Yes.

(END VIDEO CLIP)

BANFIELD: So you'll notice at the end of that piece of video, you heard the person in the background say, why are you not doing CPR and you heard the response from one of the police officers or it could have been one of the EMT members that he was breathing. And it's also important that you know that the video you were just watching, the police and the EMTs say that Mr. Garner was alive at that time and it appears that the female EMT who was taking the pulse, it appears she may have said that he has a pulse, but we're not clear if that's exactly what was said at the moment. But it is important to know that that is not the moment that Mr. Garner was dead and, according to the police, he died on the way to the hospital.

All of it, brutal to watch. It's tough to watch it, but it certainly does give perspective that a mere 20-second clip that's been played over and over does not. But does it change your views at all in any of this or does it raise some new questions for you? Because after the break, we're going to analyze that bit by bit, by a great panel who knows a lot about this, all in hopes of painting a more accurate picture of what happened in those tragic moments back in July. Back in a moment.

(COMMERCIAL BREAK)

BANFIELD: If you're just joining us, we just played two separate bystander videos of Eric Garner's confrontation with the New York Police back in July and that extremely controversial chokehold that led ultimately to his death.

I want to bring in our experts on this because the devil is in the details. CNN's legal analyst Paul Callan has prosecuted cases here in New York. I'm also joined by CNN senior legal analyst and former federal prosecutor Jeffery Toobin. CNN political commentator Marc Lamont Hill is with us. And then joining us from Washington, D.C., CNN law enforcement analyst Tom Fuentes.

Tom, I'm going to start with you. The notion of the chokehold, we have been told and it is clear from reading NYPD policy that it is not allowed under NYPD policy, but what does the law say about the chokehold in that kind of an instance?

TOM FUENTES, CNN LAW ENFORCEMENT ANALYST: I think the law basically, Ashleigh, says that an officer can use any means if his life is threatened. In this case, it's not threatened. We know that. Garner is merely resisting arrest and they're trying to get him into custody.

But it appeared to me, you know, when you look at this video and really try to analyze it and take it, you know, at a little slower pace, it appeared to me like the officer does a horse collar tackle, which is even outlawed in the National Football League, but he jumps on him, throws his arm around his neck in an effort to get him to the ground. In the process, though, he does not take his left arm away from the throat of Eric Garner and he is choking him. That part we can see. His left forearm.

But that's not the hold that has been taught to police officers and then later banned. The hold that we're talking about is called carotid restraint technique, which is to reduce the blood flow on each side of the neck so the person faints. It's not to choke them and cut off the wind and crush the Adam's apple or the trachea. So, yes, he's not using what's a legitimate hold and actually, at this point, all these holds were banned because it's so easy to accidentally choke a person and kill them.

BANFIELD: So now let's go to the other part of the video. Procedurally, it was very difficult to watch as Mr. Garner was on the pavement and he seemed to be unconscious. But he was still cuffed. Is that procedure to keep him cuffed even at that time?

FUENTES: Yes, because many times a person will wake up and go back to, you know, whatever the activity was or try to resist or try to continue, you know, when they wake up and people, you know, they would not have known at that point that he is dying and that he's having that trouble. But as you hear the officer say and the EMT later, who examines his pulse, you know, by taking his neck pulse, that he is still breathing, he does still does have a pulse, so CPR would be inappropriate and at that point, he gets turned over to the medical technicians and the paramedic and it would be their responsibility to care for him and, you know, and try and keep him alive.

BANFIELD: Right. So I want to bring in Marc Lamont Hill on this one as well. You hear about the technical, the moment by moment, the procedural issues versus the legal issues.

MARC LAMONT HILL, CNN POLITICAL COMMENTATOR: Yes.

BANFIELD: And then you just see the tape.

HILL: Right.

BANFIELD: And it just feels awful. It feels uncomfortable. It feels sad knowing what ultimately has happened. But, ultimately, can anybody get inside the mind of a grand juror who saw so much more than even we just saw with all that tape?

HILL: Well, and that's a fair point and that's why I say, we need transparency. We need to know what the grand jury saw. Same thing with Michael Brown, we want to know what they saw, what evidence was presented. And when that evidence is presented, we can then question that. We can question the procedure. We can question what kind of decisions they made.

I think what concerns many of us is what we saw in that tape, though, just viscerally. There is a very strong reaction that you get. One question is, was this preventable? You know what I mean? And the other question is, was this excessive? And most of us saw that tape and said yes to both things. It doesn't, however, mean that the officer had bad intent. I don't - I

don't ever try to reduce this to the officer's intent. And that's what I think many people do. They say, well, he's a bad guy, he did it because he was black. I don't necessarily think that's what was going through his mind. The tragedy of this is, oftentimes though when black men are in public space like this, they are legitimately seen as threats that warrant that type of force, and that, to me, is a more substantive legal question.

BANFIELD: You could also say he's big, he's huge. I mean, black or white, someone with that kind of, you know, mass is a threat to four smaller officers, right?

HILL: No doubt. No doubt.

BANFIELD: And, Jeffrey, weigh in on this because doesn't that come in to what the grand jurors are being presented with as well?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, sure. I mean they see the video and they see how big he is. But, you know, the key fact to me in this story, from the very beginning has been, the so-called crime for which he is being arrested. That is not a crime -- an arrest for a robbery, for a murder -

HILL: Right.

TOOBIN: For drug dealing. That is an arrest for selling loosies (ph) -- loose cigarettes without paying taxes on it. Perhaps the single most minor crime on the books in the state of New York.

BANFIELD: Right.

TOOBIN: And, yes, it is perhaps technically true that an arrest is an arrest regardless of what it's for, but every police officer I've ever dealt with has a sense of proportion and appropriateness about how you deal with someone.

BANFIELD: OK, fair point.

TOOBIN: And the fact that you have six guys -- six guys taking down someone for this --

BANFIELD: Fair point. You know what - OK, because he's a - because he's a big guy. Let's say the six guys are because he's a big guy. But I recall Alec Baldwin riding the wrong way on a New York street, which is a citation, if he had just complied. And instead, he was cuffed. He says he was roughed up. He was spoken rudely to. He was thrown in a cruiser. So it happens if you don't do what officers say. But that's what - like it could be -- both sides could have deescalated this.

PAUL CALLAN, CNN LEGAL ANALYST: It does. But, you know, I - but I think in terms of - and I agree with most of what Jeff said. But you can't blame the cops on the street for this policy of arresting him for selling loosies. This is the police commissioner, the mayor, they're the ones who determine police policy on the street. And this policy of going after these low-level offensives is called part of the broken windows policy, which is, you take care of minor crime, clear the streets of the panhandlers and that you create a better atmosphere in the city.

HILL: Yes.

CALLAN: So the cops are just doing what their commanders tell them to do. So I think it's unfair to blame these cops for having made the decision to arrest in this case.

BANFIELD: I have to wrap up, quick.

HILL: But, I don't know, I think - I think you may have missed the point on that just a little bit. I don't think the issue is whether or not the cops were right or wrong for arresting him. The point is, that if he's selling loosie cigarettes as opposed to selling crack on the street or robbing people, there may be a sense that there was less danger. He wasn't a violent criminal who warranted that type of response.

CALLAN: Oh, I think -- I think they probably - and this is one thing we don't know, of course, because I - you know, I was talking to a close friend who's a high-ranking D.A. in New York who was saying -- because I said, you know, everybody who sees this film says, why didn't they indict?

BANFIELD: Yes.

CALLAN: And what have they been doing for three months in the grand jury?

HILL: Yes.

CALLAN: And what this person said to me was, listen, you had a crowded street. You have seen this video. For all we know there could have been other video taken that maybe the grand jurors saw. There might have been medical experts in the grand jury. The complexity of the grand jury presentation is something we don't know about, as we sit here. And I'm thinking in response to your question, maybe they knew his background. You know, he had been arrested many times before for selling these cigarettes. So they --

BANFIELD: Apparently 30 times. So he wasn't unfamiliar.

CALLAN: So the cops knew and -

BANFIELD: Guys, I have to wrap this.

CALLAN: OK.

BANFIELD: Only because there's so many topics in this one hour.

HILL: (INAUDIBLE).

TOOBIN: To be continued.

BANFIELD: And it is complex, which is exactly why we've got so many guests that are coming as well to analyze different aspects of this crime.

But Paul Callan, Jeffrey Toobin, Marc Lamont Hill and then Tom Fuentes in Washington, thank you all for those comments.

And after the indictment in Ferguson and now here in New York, there are a lot of Americans who are asking, does the justice system unfairly protect police officers? Are white people given preferential treatment over minorities? And that is a very big discussion. That's coming up.

Plus, you're going to meet a father whose son was gunned down by a police officer and there was no indictment in his case either. But this father, he took it upon himself to change the law and you're going to hear his story next.

(COMMERCIAL BREAK)

BANFIELD: A lack of an indictment in the Eric Garner case has sparked a discussion about the American justice system overall. Some people saying it's multi-tiered favoring white people over minorities. Other people, like my next guest, says the system unfairly protects police officers, regardless of the color.

Ten years ago, 21-year-old Michael Bell Jr. was gunned down by the police in Wisconsin. After investigating for just 48 hours, the D.A. there decided against charges for the officer who killed Bell's son. The father, Michael Bell Sr., spent the next decade working to have the state law changed to require independent review of police shootings. Michael Bell Sr. joins me live now from Chicago. And also joining me is defense attorney and HLN legal analyst Joey Jackson and former prosecutor and CNN legal analyst Paul Callan.

Michael, I'd like to start with you. Tell me about this battle that you waged and how far you actually got to make changes and if you're satisfied?

MICHAEL BELL, SON WAS KILLED BY POLICE 10 YEARS AGO: Oh, OK. I had a son that was killed by a police officer and they cleared themselves within 48 hours, for a lesser incident than what happened both in the case in Ferguson and also with Eric Garner. My son, we don't even know why he was pulled over. But he was shot in the head. An officer took a gun, placed it right to my son's head, and within 48 hours, the police cleared themselves of any wrong doing.

You had mentioned earlier that there are no indictments, but the U.S. attorney is still investigating our case. In fact, he told me that he's going to give us an answer regarding the fraud, the perjury and the obstruction of justice that we claimed occurred with my son's case on January 3, 2015. The law we passed had three parts. We only got the second part passed. But essentially it mandated that on a statewide level, that no police involved deaths can be investigated by the department involved.

BANFIELD: So I want to bring in Paul Callan on this. There are a lot of people, Paul, who have said, it just seems odd that the very people who are supposed to either indict or not indict or make these decisions in grand juries, who even hold them, are the very people who are in need of working with police officers every day to provide them with evidence for their trials. It just seems like too close a relationship. Why does this relationship exist?

CALLAN: Well, you know, we're talking about who issues here. Number one is, is the grand jury the way to do this? And -- but there's a second issue, then, who runs the grand jury? You can make a strong argument, I think, that in police cases, you should have a special prosecutor in place who doesn't work with the cops day to day, who's only job is to investigate.

BANFIELD: You can make a great argument.

CALLAN: Well, you can. But let - but it's not as simple as making the argument because it's a big deal. You can't just do it for an individual case. You'd have to have a permanent office setup and it's very, very expensive. You'd need a - you'd need an elected or appointed special D.A. You'd need a whole staff. He'd need his own special police independent of the regular police. And to do this in a small county, there are lots of small counties in America that have grand juries, very, very expensive proposition. So it's very easy to say, we should do it. It resonates, it sounds great, but paying for it and implementing it is another matter.

BANFIELD: And, Joey Jackson, I know you've seen the inside of a courtroom just a few times as well, and the notion to suggest that all prosecutors would treat police officers with kid gloves I think would be unfair. I've covered trials where prosecutors were livid with the notion that cops could go bad or do something bad and thereby sort of besmirch the whole process. Have you had that experience as well?

JOEY JACKSON, HLN LEGAL ANALYST: Well, I have, Ashleigh. But just focusing on what's the appropriate process - and, Mr. Bell, God bless you. I think it's wonderful. I understand you even donated resources, you know, to get the legislation passed. While you could have taken your ball and gone home, you've done a lot for that state, and that's what needs to be done.

And what Mr. Bell speaks to, Ashleigh, is the issue of independence. Should you have a local prosecutor who works with that police department, and to the point that you were addressing with Paul Callan, who depends upon that police department for investigations to be doing and prosecuting cases? The answer is no.

And with regard, Ashleigh, to the costs, you know, listen, it costs a lot of money for civil lawsuits to be shelled out and paid by the police department for wrongful conduct. A life is worth a whole bunch of money and if people died, you know what, I'd much prefer they're alive and that cost is spent. And so I think the reality is, moving forward, that we have to address the process.

Why, Ashleigh? Because it comes down to public trust. It comes down to people feeling confident in the notion that an evaluation has been done, that things have been analyzed and that justice has been obtained. And until you get that, Ashleigh, I think it's going to be problematic. People have to have confidence. And when you don't, you're going to see protests and you're going to see people continue to call for the type of reforms that Mr. Bell was able to implement in his state.