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Legal View with Ashleigh Banfield

Examining Garner Grand Jury Decision; How Can Police Change Tactics; Latest on Bill Cosby Accusations

Aired December 04, 2014 - 12:30   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: So I'm going to ask the three of you to standby for just one moment because the president himself has just addressed the Eric Garner case as well. And he did this with sort of perhaps not unexpected but he's at the College Opportunity Summit, the White House College Opportunity Summit in Washington D.C. The first lady has attended as well as the vice president and he made these comments about the Eric Garner case. Let's listen.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA: We find an increasing divergence between those who have the skills that today's jobs require and those who don't. So the economy becomes more stratified.

When it comes to the cost of college, there's frustration. In a middle class it feels like folks at the top can afford it, folks at the bottom get help. There's nobody who's looking up for folks in the middle. And given accelerating costs, and the recognition that this is going to the key ticket to the middle class that elicits great frustration.

When it comes, as we've seen unfortunately in recent days, to our criminal justice system, too many Americans feel deep unfairness when it comes to the gap between our professed ideals and how the laws are applied on a day to day basis.

You know I -- I should mention it, before I came here I had a chance to speak with Mayor De Blasio in New York and I commended him for his words yesterday and for the way New York has been engaging in peaceful protests and being constructive.

He was just in the White House with us on Monday as we started taking some concrete steps to strengthen the relationship between law enforcement and communities of color and I intend to take more steps with leaders like him in the months ahead. But...

(END VIDEO CLIP)

BANFIELD: So those comments, just coming in from the president's White House College Opportunity Summit, making a few comments about the situation that he's unfolded here in the last 24 hours.

I want to thank Joey Jackson, Paul Callan, and Michael Bell. And I apologize to the three of your for interrupting, but for the sake of the president I think everyone understand separate from the Eric Garner case in the New York and the Brown case in Ferguson, is a third and controversial case hitting white police against black male. And this one is in Cleveland. A 12-year-old boy was shot and killed by a white police officer about who we are learning some pretty troubling new detail, that story is next.

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BANFIELD: The police officer who shot a boy dead two weeks ago in Cleveland. Apparently ones got such a bad performance review that his superiors wanted to kick him off the force. I want show you a picture of the 12-year-old boy. This is Tamir Rice. He was in a park. He was playing with a pellet gun which looks a lot like an actual handgun. And the police officer in questions, Officer Timothy Loehmann hold up and two seconds later shot Tamir who later died. But there's a lot more to this.

Listen to what's in Loehmann's personnel file from two years ago when he worked in another town. The deputy chief of police there described Loehmann as "distracted and weepy during weapon's training." He said Loehmann "could not follow simple directions", "could not communicate clear thought". And he felt that Loehmann was "not mature enough" to serve in his ranks and apparently wanted Loehmann gone.

There's one more thing to this that's distracting. The Cleveland Police Department hired him, reportedly said yesterday they never saw that bad review. They never saw anything negative from Loehmann's personnel file before they ended up hiring that officer

That police use of force (inaudible) in Cleveland is going to a grand jury to determine whether or not that officer is going to face charges in the shooting of that young boy. The grand jury has cleared police and the death of Michael Brown and Eric Garner. And I know you know that. That has been top of the news in the last week.

So, what about grand jury and the secrecy of them? Does that help or hurt the process? Is there more to the secrecy that meets the eye? Jeffrey Toobin is back with me, also legal analyst Danny Cevallos.

Danny, I'm going to get you to weigh in on this first. I think a lot of people look at that secrecy at the grand jury. And immediately no intended, indict the grand jury processes being unfair and somehow wrong. What are the pros to having a secret grand jury?

DANNY CEVALLOS, CNN LEGAL ANALYST: As a defense attorney, we're always frustrated by the secrecy of the grand jury. But look, the grand jury and the secrecy surrounding it, had been around since the 14th century. We've brought them over, we incorporated it into our own constitution in the Fifth Amendment and it serves purposes. It's not just an arbitrary ruled secrecy, it also -- in cases where the defendant doesn't know he's being investigated, it can prevent a escape, it prevents the destruction of evidence.

When you're calling in witnesses, they may work or live near a suspect or a dependent, and want to preserve their secrecy because it preserve safety of witnesses, preserve safety of victims, and if the defendant doesn't know he's being investigated he can't destroy evidence.

So there are really sound reasons...

JEFFREY TOOBIN, CNN LEGAL ANALYST: But there's an also another reason for -- which was meant as a protection of civil liberties. The idea was we don't want to give the executives, the king, the president unlimited power to charge anyone he wants with a crime. So, we have this body which is a check, which says you don't have to prove beyond a reasonable doubt but you have to prove probable cause.

BANFIELD: That's great but why secret?

TOOBIN: Secret because sometimes they don't decide there is no crime, there is no nothing to indict so we don't want the theory goes. We don't want to injure the reputation of people saying they're under investigation when it turns out they're not charged with anything at all.

BANFIELD: So the protection being here. Because Danny, I think what you were saying is you protect witnesses who may want to come in and testify against an organized crime family and they're terrified, and they themselves that the organized crime family knew that they were testifying might kill him or her. So that's a great protection. But you're also saying this protects the person who's being investigated from public exploration.

TOOBIN: Correct.

CEVALLOS: Right. When you think of trials, and you made the point earlier, trials are public. There's no secrecy in a trial but a trial is an open proceedings. Grand juries are not about guilder innocence. They're about accusations, they're about investigations, and there are very good reasons like reputations and others that we talk about, why those proceeding should be kept secret. And it pains me to say that because defense attorneys everywhere lament the fact that they usually cannot get access to grand jury transcript. So, change the system if you want. It just will no longer be the grand jury as we have known in history.

BANFIELD: And it's fascinating to see the benefit of it, because so often you're hearing people saying how on earth could this be so secret and if it must some be kind of hard. I wish I could have a longer conversation about this and perhaps there will time in coming days Danny, thank you. And Jeff, thank you very much.

Again, we here talk as well about body cams and whether the police use a body cams might have made a big difference. Some people saying that had they been used in Ferguson we would have known exactly what happens between Michael Brown and Officer Darren Wilson.

So with the Garner case here in New York, we can actually see the video on how it all went down and still there was no indictment from this grand jury. So the question is, will police body cams change anything at all or there something more to just the pictures that could help in the process? That story is next.

(COMMERCIAL BREAK)

BANFIELD: It's understandable why a lot of people are confused about the grand jury's decision not to indict Eric Garner in the New York case. There was video this time around and what everybody has seen. You watch it for yourself at the beginning of this program.

The thinking in the Michael Brown case though is that if Officer Darren Wilson had been wearing a body camera, it might just have cleared a whole lot more. But what does the research actually say about police body cam? Well, it turns out we've got some, it's pretty good.

In Rialto, California police introduced body cameras back in February of 2012. And the results were this, found that citizen complaints against the police went down by 88 percent from 24 to previous 12 months to just 3 complaints, 24 complaints down to 3.

Use of force by officers, well, that went down too. By almost 60 percent, the number of instances was 61 it fell to 25. CNN Law Enforcement Analyst Tom Fuentes, joins me live now, once again from Washington. Tom, those Rialto stats are really impressive. Is there anything to suggest that there's evidence that would indicate nationwide we could extrapolate and see those kinds of results right across the country, we just paid the money and put the cameras on the body?

TOM FUENTES, CNN LAW ENFROCEMENT ANALYST.: Yes. OK, Ashleigh, before we extrapolate let's look at this particular case that's causing all the commotion. We're only seeing a partial video of the Garner case. And the reason I say that is that as mention, this is one of the smallest, minorist (ph) violations in the law there is. And when we see this video, there's already six cops at the scene trying to subdue or at least talk to Garner.

What would have happen in the case is that one police officer or two would have encounter him and would already not be going well. He would already say I'm not under arrest, I'm not going with you. They would call for additional help, more officers would arrive. They still have the discussion he doesn't comply, they call for a supervisor. And by the way, you see in the video that there is a black female sergeant from NYPD at the scene of this arrest.

So, then the finally make a decision, OK. Now, they're going to take him into custody, we haven't seen the last 15 or 20 minutes and we also have not heard the police dispatch where the officers might be radio in, OK, send another officer, send backup, please send a sergeant, we need help at the scene. So, you don't see the evolution of the event until the violence starts, until the...

BANFIELD: Right, right.

FUENTES: ... first, call her and tackle him, and put him on the ground.

BANFIELD: So, that's critical. That is critical.

FUENTES: That matter, that matters.

BANFIELD: It does. And there's something that the chief of police in Rialto said, I think you'll appreciate this, I think our audience will appreciate it as well. He's name is William Farrar. He said, when you put a camera on a police officer, they tend to behave a little better, they follow the rules a little better. And if the citizen knows the officer is wearing a camera chances are the citizen will be behave a little better, I assume he means two.

I ask somebody about that the other day and they said look, sometimes you get into these circumstances as a responding police officer and there's nothing that will deescalate. But generally speaking, doesn't that just make sense that everybody knows you're being taped, you tend to change your behavior.

FUENTES: Absolutely. Well, that's true. I would buy that. And, you know, if the subject who is dealing with the police officer realizes that he's on video and behaves better, then the police officer is not going to be violent with him. I mean, these events often happen because the individual chooses to not comply with an order from a police officer. And again, we're not training our police officers to be Harvard debaters on the street and take 20 minutes to convince somebody that they should be under arrest, and we're also not training Olympic wrestler and that's really important in the Garner case.

If would have had an Olympic wrestler instead of just handful of police officers, they might have been able to put the right kind of hold and move beyond in the right kind of way to take Garner into custody without hurting him, without causing this whole event. But they're not. And the reason these various holds, the carotid artery holds et cetera came up was so police officer didn't have to use a nightstick. And that's been -- this has been an ongoing debate in law enforcement for decades. And so, I was a cop on the street.

How can we go or the cop goes from bare hands to nightstick to shooting the subject? What can we do in between? And we development mace and pepper spray which usually doesn't work and the tasers and that's caused few people to die here and there's so some departments are leery of that.

So, all of these holds and maneuvers and wrestling matches, the evolution of the training has been to try to find a nonlethal way for police officers to subdue a subject who doesn't want to do it. And I'd like to see this case I analyzed and I'd like to see the attorney general and the president United State say when the police officers says you're under arrest and the person won't go, now what?

BANFIELD: Now what? Do you let him go? Do you let him go on that -- that's a big question I think a lot of people (inaudible) this but...

FUENTES: That's what some cops are going to do. That's what some cops are going to do. Walk away.

BANFIELD: Alec Baldwin go, riding his bike the wrong way and the guy ended up (inaudible) for it is just because of saying no to the police officer, could have been escalated on a number of -- deescalated on a number of levels. Tom, it's always good to have you. Thank you, I appreciate it.

FUENTES: Thanks Ashleigh.

BANFIELD: So, we're not going to leave the story. There are so many more issues and clearly what the president (inaudible) and yet again today, the story has a lot of reverberations but so does this one. That's Gloria Allred and flanked by three more women who have joined the chorus of those who said Cosby accused them but this time something's different.

Gloria Allred says she has the solution and she's putting out the offer to Mr. Cosby. You're going to hear the offer and see what she has to say about it next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

HELEN HAYES, ALLEGED VICTIM: I believe that Mr. Cosby drugged me and sexually assaulted me that night. For years I did not tell anyone about what he had done to me because I was afraid. I felt threatened by him. I did not think anyone would believe me.

(END VIDEO CLIP)

BANFIELD: That is one of three more accusers have come out against Bill Cosby and they are now allied with Gloria Allred famed attorney who joins me live from Los Angeles. I know Gloria that you're putting out the offer to Bill Cosby to either wave the right to invoke the statute of limitations and go forward with this case or put a $100 million into a compensation fund administered by retired judges. My guess, an educated one, is that you haven't heard from him and if you don't hear from him what do you do next?

GLORIA ALLRED, CIVIL RIGHTS ATTORNEY: Well, Ashleigh, it is a very serious proposal, actually two proposals that I made yesterday. And I think that very reasonable proposals he could decide not to assert the defense of statute of limitations and allow these women to have their day in court. He could accept my second proposal which would be a confidential proceeding before retired judges, then the victims could make their claims, he could make his arguments and defense. The judges could decide if the arguments on his side have any merit and if there are, if there is merit for the victims and -- or the alleged victims then he could (inaudible) damages. I think that's reasonable. So, it's not a surprise to me I haven't heard from him yet because it's something serious to consider.

BANFIELD: Yes, we haven't heard either. I mean, we're all waiting for Mr. Cosby to speak a little more thoroughly on this issue and not just to his lawyers. Here is my question for you, though, Gloria. I know that you've worked with many people in the past, you know, who have been victims of this kind of violence. Is there anything to the notion that perhaps somewhere in another state there is an issue that is within the statute of limitations that you could actually go forward with another victim's case and these women could become witnesses? And there could be a pattern established thereby allowing their witness testimony much like the Phil Spector case in which a parade of woman came in to say the exact same MO (ph) happened to them.

ALLRED: Well, I mean that's very important. And by the way, you know, victims of child sexual abuse even if they are adults, for example, in some states like California may still be able to in fact sue and depending on if they meet the requirements of the law and of course one such lawsuit was filed against Mr. Cosby a couple days ago. And I do not represent that victim in any event.

So as the victims in other states, we have been contacted by many persons who alleged they're victims of Mr. Cosby who live in other states. And what we tried to do is look at the statute of limitations in those states to see if they are within the time period to sue or not.

There are differences to statute of limitations depending on the state. And of course there are different statute of limitations for criminal prosecutions, and there are for the filing of a civil lawsuit. But I think it's good for all victims to seek the advice of an attorney and find out whether they are within a time period...

BANFIELD: Thirty seconds left.

ALLRED: ... where the act occurred to them.

BANFIELD: The jurisdiction. I have a couple seconds left but I need to know that three women who are with you yesterday, they all fall outside of the statute my function of limitations. Do they have any recourse other than hoping that Mr. Cosby takes your deal?

ALLRED: Two of them are without are outside of the statute of limitations, meaning it's too late for them unless he agrees to not assert the defense. One of them alleges that he did it to her when she was 17 years old. So she might have a right to sue.

BANFIELD: Well, I'm glad to get your time today and I always appreciate having a chance to talk to you, help to keep us updated. Gloria Allred, thank you.

ALLRED: Welcome. Thank you Ashleigh.

BANFIELD: And thank you everyone for watching. It's been a very busy impact show and like I said CNN is not leaving the case of Eric Garner, the chokehold case, not indicted in New York. My colleague Wolf Blitzer is going to pick up that story and the rest of today's news right after this quick break.

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