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Legal View with Ashleigh Banfield

Officer Not Charged In Second Chicago Police Shooting; No Audio In Video. Aired 1-1:30p ET

Aired December 07, 2015 - 13:00   ET

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

ANITA ALVAREZ, STATE ATTORNEY, COOK COUNTY, ILLINOIS: -- was found in the car where Ronald Johnson was seated that matched the ammunition in a gun that police recovered in this -- in his possession.

In addition, Mr. Johnson's DNA is on that weapon. And this particular weapon was connected through ballistics' testing to a prior shooting in the September of 2013 in the seventh police district and was never recovered.

Again, it is our evaluation of the evidence in this case in its totality and after - with the careful analysis of the laws of the state of Illinois, it is our determination that no criminal charges should be filed in this case against officer Hernandez because a crime cannot be proven beyond a reasonable doubt.

I think that we had the criminal statutes up there or do we?

UNIDENTIFIED MALE: (INAUDIBLE.)

ALVAREZ: Illinois has well established the justifiable use of force as a defense in a murder prosecution when the person's belief is reasonable even if it's mistaken. The reasonableness of a particular use of force must be judged from the perspective of the reasonable officer on the scene, rather than with 20-20 vision in hindsight. The calculous of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments in circumstances that are tense, uncertain and rapid evolving, about the amount of force that is necessary in any particular situation. And this is a relevant case law.

A person is justified in use of force of another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of such unlawful force. However, his justified in use of force which is intended likely to cause death or great bodily harm only if it's reasonably believed that such force is necessary to prevent immanent death or great bodily harm to himself or another or the commission of a forcible felony.

Courts must pay careful attention to the fact and circumstances of each particular case, including the severity of the crime at issue where the suspect possesses an immediate threats and safety to the defenses for others and whether he's actively resisting arrest or attempting to evade arrest by flight. To affecting an arrest, a police officer may use deadly force when he reasonably believes both that the such force as necessary to prevent the arrest and being defeated by reasons (INAUDIBLE) escape and the person to arrest -- to be arrested have committed or attempted a reportable felony which evolves the affliction of threatened -- or threatened or inflected great bodily harm or is attempting to escape by a use of a deadly weapon or other indicates -- or otherwise indicates that he will endanger a human life or inflict great bodily harm unless arrested without delay.

And the United States Supreme Court has expressly held that if a suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened inflection of the serious crime, there will be force maybe used, if necessary, to prevent escape and if and where feasible someone -- some warnings have been given.

What's important -- what's important when we review these cases is you have to consider the mental state of the police officer at the time that this happens. What does he reasonably believe? And that's extremely important when you're making decisions on cases like this. Because that is what the United Supreme -- United States Supreme Court dictates through the case law and that is what Illinois law establishes.

So, questions.

UNIDENTIFIED MALE: How do you handle this perception across the country that the office, your office (INAUDIBLE) is still part of some cover-up? Your transparency at levels we haven't seen before today. But how do you handle this perception that the officer is part of some sort of cover-up?

ALVAREZ: I don't know what cover-up you're referring to. I'm not covering anything up. I don't -- I have shown you -- shown that -- everybody in this room what we have done. You know, we're in different times right now when we're talking about transparency and what the public wants to see and that's what we're doing. I have pretty much opened the door here for you to see our entire analysis and the evidence that we looked at and the videos that we considered and the relevant case law. You know, I have a tough job, Alex (ph), you know? I think I have the hardest job in this county.

And I have to make decisions each and every day, each and every day, on cases like this and other cases that are pending right here in this criminal courthouse, OK? And, you know, no matter what decision I make, someone is going to be unhappy. Whether I charge, whether I not charge. But I run this office with integrity and professionalism.

And I am going to call it as I see it, based on the facts and the evidence and the law. And the law is the one -- is what guides me. And so, I am making the decision which I believe is the appropriate decision here.

UNIDENTIFIED MALE: Does that video definitively show that Johnson has a gun, you're saying, not the other evidence but that video, the forensics show 100 percent certainty that he (INAUDIBLE)?

ALVAREZ: Well, you saw it and that's why we sent it to get blown up. Because the video of -- in and of itself -- you know, the video, these dash cam videos, what we've been seeing in these particular cases, you know, they're not Hollywood quality videos. They're grainy. It's dark. It's blurry. It happens so fast.

[13:05:12] You saw it. You've watched the original video, Karris (ph). Could you tell and how quickly? You probably couldn't, right? So, we had to slow it down. We had to take more pictures. We had to send it to our CFL to see whether or not they could definitively find -- and I'm look looking at this, and it appears to be an object in there.

You know what? The other thing to point out about that video, we know officer Hernandez's gun is out, don't we? Of course we do. You can't even see that when you watch that video the first time. You can see his weapon. And then you see flashes. But you don't actually see officer Hernandez's weapon and we know he had a weapon and we know he fired. So, these videos are only -- you know, they are what they are. They are not the best quality and you only get in the direction of it -- that squad car is facing. So, it's not a cameraman, you know, like we have here today that are following that case. What I believe --

UNIDENTIFIED FEMALE: Why is there no audio? Why is there no audio?

ALVAREZ: There's a lot of audio in here.

UNIDENTIFIED MALE: Why do you think it was necessary to release the video?

ALVAREZ: The -- you know, well, first, let me talk about the audio. That is frustrating because now we have seen, in the cases that we are reviewing with these dash cams, that there are no audio. And that's a problem for the Chicago Police Department, and I think they need to answer to that. I don't know why there's no audio. There should be audio. There's supposed to be audio.

But, you know, whether it's a malfunctioning or officers physically turning them off when they get into that squad car. But that's a -- you know, that's an inter -- that's a policy. And that's something that, I believe, the police department has to address and they have to -- they're going to have to address it and they're going to have to fix -- because we would prefer to have the audio. But time and time again, we're looking at these videos, and we don't have any audio.

UNIDENTIFIED FEMALE: And as a follow up, why did their officers in marked not activate their dash cam video as well?

ALVAREZ: You know, unmarked squads or unmarked SUVs, they don't -- they do not have dash cams. So, an unmarked vehicle, the one marked -- it goes on when they activate their emergency light. So, in a marked squad car, if they activate their emergency lights, it goes on. If you saw, in that video, the one SUV that's coming around, he never had -- he never activated his lights. His lights weren't activated so that's why the video didn't go on. UNIDENTIFIED FEMALE: But they can manually activate it, also, right?

ALVAREZ: They could manually activate it.

UNIDENTIFIED FEMALE: Why was that (INAUDIBLE)?

ALVAREZ: I can't answer that.

UNIDENTIFIED FEMALE: Can I ask you why you decided to release the video? And I also want to know if -- you read off the statute. Do you think people just don't understand what excessive -- the use of excessive force and how police can use it? And then, thirdly, you have the U.S. attorney today who said there should be an investigation to look into the police use of excessive force. What do you think about it?

ALVAREZ: You know, first of all, as far as the U.S. attorney, I understand -- I did not see it. But I understand that he did confirm that he, in fact, is still investigating the McDonald case. And I understand that the Department of Justice is going to be looking into, you know, the policies and procedures and -- of the Chicago Police Department. You know, I welcome that, because I think anything that we can do to improve police relations with the public, to build confidence in our communities that the police officers are out there doing their job and doing it correctly. I welcome that. I welcome that.

I all -- and, you know, what was the other part of your question? Oh, the releasing of the video. Well, because I think what we've all seen, at this the date and time, and clearly the events of the last several weeks, you know, I'm not hiding anything. And these videos are going to eventually be released. And so, I thought it was appropriate and, you know, to be transparent and show you exactly what we looked at, what we considered, what we did before, you know, announcing any decision on this case.

(CROSSTALK)

ALVAREZ: I'm sorry, go ahead.

UNIDENTIFIED MALE: Was the decision to release this today forced by the mayor's comments (INAUDIBLE)?

ALVAREZ: No, it wasn't forced by the mayor's comments. You know, this case, it brought -- again, I think the -- and back to your other part of the question, I do think that the general public -- the general public and the average citizen doesn't understand the use of force model. They don't understand the relevant case law. They don't. You're right. You're absolutely right, they don't. And so, I think we have to educate the public that, you know, how officers are trained. What they can do. What they can't do. And when it's appropriate.

So, in this particular case, Dane (ph), how these police shootings -- they are investigated by IPRA. OK? IPRA is the investigative agency. Not me, IPRA. And Laquan McDonald, we chose to go with the FBI. And they were the investigative agency in Laquan McDonald. IPRA was the investigation -- investigating agency on this one.

[13:10:22] And I know there's been some announcements today that there's going to be some changes at IPRA. You know, we can't get in front of the evidence. You know, we have to wait to -- for IPRA to bring us evidence. They are the ones that go out and interview these people, find these people, get the evidence bring it to us for review, OK? I know for a fact that back in April, I supplied -- my office supplied to IPRA two names of people that Mr. Johnson's family had asked to be interviewed in regards to this case. April. They just interviewed them, like a week and a half ago.

UNIDENTIFIED MALE: Do you have concerns about IPRA?

ALVAREZ: I do have some concerns because I personally would like to get information much sooner. I would personally like to have been able to wrap this case up, whatever decision we were going to make, much earlier. But I am bound by that. You know, there's a new law that's going into place in January that I supported. And, it -- you know, all about police accountability and actions. And part of that law -- although this is the situation we have here in Chicago. We do have an independent investigative agency which is IPRA. That doesn't exist throughout the entire state.

So, the new law is going to create that for the entire state. But one of -- one of the actions in that new law is for the independent agency to be more efficient and get a -- well, to get the evidence in their -- in whatever statements or to the local prosecutor in a more timely fashion. That's going into law come January. So -- and I welcome that. I welcome that.

UNIDENTIFIED FEMALE: When did you get all the investigatory information from IPRA on investigations?

ALVAREZ: How do we get it?

UNIDENTIFIED FEMALE: When did you get it?

ALVAREZ: It came in piecemeal. It came in when they had it.

UNIDENTIFIED MALE: What are your --

ALVAREZ: And Lynn (ph) had -- Lynn had to stay and keep asking and stay on top of them to give us the example of the witnesses. Months.

UNIDENTIFIED FEMALE: Didn't you release -- did the original report say that he had turned and fired at them? The original police report on this, didn't it say that --

ALVAREZ: No, not -- no. You know what? There might have been -- and, actually, we've been seeing this more and more, a certain spokesperson who would go out and say things at the site of a police shooting. I wouldn't rely on any of those statements.

UNIDENTIFIED MALE: Are you concerned that maybe your investigation could be impacted any way by a flaw in the IPRA investigation? ALVAREZ: You know, we believe, based on what we've done -- and, you

know, we're the ones who sent this to RCFL to enhance it. We believe we've looked at everything.

UNIDENTIFIED MALE: Did the city hall know you were going to release this today?

ALVAREZ: The -- I don't know if they knew we were going to release it today but I --

UNIDENTIFIED MALE: Did you share with the -- did you tell the mayor you were going to be releasing it today?

ALVAREZ: I didn't talk to the mayor.

UNIDENTIFIED MALE: Your office?

ALVAREZ: You know --

UNIDENTIFIED FEMALE: (INAUDIBLE) was a fairly clear-cut one in your mind?

ALVAREZ: You know, I think -- again, I think everybody -- when they hear video, everybody hopes it's going to be Hollywood quality but it's not. And so, I think in watching your faces, when we ran that video in real time, what happened, right? Wait, wait, wait, let's slow this down. Let's look again. Let's look again. Let's look again. And that's what we had to do, meticulously go over it, go over it, go over it, get these stills, try to see, is there an object in his hand? I submit that there's an object in his hand.

UNIDENTIFIED FEMALE: You said that you had an outside agency.

ALVAREZ: Yes, RCFO.

UNIDENTIFIED FEMALE: Did they conclude that's a gun in his hand?

ALVAREZ: They don't give an opinion. They just add -- they just do what we ask.

UNIDENTIFIED FEMALE: (INAUDIBLE.)

ALVAREZ: Right, exactly.

UNIDENTIFIED MALE: (INAUDIBLE) enhancement, is that darkened at all or --

ALVAREZ: I don't -- I don't -- no, I don't believe so. Yes, I don't believe so. But that's their procedure.

UNIDENTIFIED MALE: (INAUDIBLE) make any kind of recommendation as far as this officer Hernandez being disciplined or fired or anything like that?

ALVAREZ: They do that, but that's a separate matter. I'm not involved in the administrative -- what they recommend to CPD. UNIDENTIFIED MALE: Have they made a recommendation?

ALVAREZ: I don't know. I don't --

UNIDENTIFIED MALE: This level of transparency, is this because of Laquan McDonald? Because of the pressure the last 10 days?

ALVAREZ: You know, this level of transparency, Alex, is because we're in the digital age now. OK? We didn't have videos like this 15-20 years ago. We didn't. Now, we do. And so, we, as prosecutors, are changing the way we have to do things because of the fact that we have communities and we have the public that want to know. And now, we have evidence like this that we didn't have before. So, we are going to continue to do it.

UNIDENTIFIED MALE: Why has it taken a year to review the videos? Why has it taken so long?

ALVAREZ: Because IPRA was doing the investigation. And, again, as I said, you know, I can't get ahead of the evidence. I have wait to -- for IPRA to give me what they have. And it has taken them that long. It took them eight months to find two witnesses to interview.

[13:15:08]

(CROSS TALK)

QUESTION: On Friday you requested a number of documents be released in the Laquan McDonald case and the police reports that showed real discrepancies from what you see on the video. Were you aware of those discrepancies in the police report (INAUDIBLE)?

ALVAREZ: You know, as - and I believe the U.S. attorney confirmed that this morning, we -- and, again, looking at these police cases, it's - they're complex and very thorough. The only thing I could say is what he said this morning, the investigation continues. And he has not wrapped up his investigation. And that's all I can say about Laquan McDonald. And I think that was the last question.

UNIDENTIFIED FEMALE: Thank you.

ASHLEIGH BANFIELD, CNN ANCHOR: A fascinating development in Chicago, complete with a Power Point and video presentation for the media. The Cook County state's attorney walks out of a press conference having announced there will be no charges levied against Officer George Hernandez in the shooting death of Ronald Johnson. The video has taken a year to be shown and today you just saw it for yourself for the first time. It's now been shown with context.

I want to bring in legal analyst Joey Jackson and CNN legal analyst Danny Cevallos.

Gentlemen, I think we just witnessed what would effectively have been the case in chief. I mean the - for the prosecution. I mean this is a different time. The public wants transparency, as Anita Alvarez just said. And this is the way it seems now they have to announce these things to the public, with a massive degree of context.

JOEY JACKSON, HLN LEGAL ANALYST: Well, it's important because that's what you want to do, you want to provide the context that underlies your decision, right? At the end of the day, it's about the reasonableness of the officer's conduct. So you can't assess the reasonableness of the conduct until you know what the factors were that existed at the time.

And what were those factors? Apparently there was some type of party, and that's what apparently the decedent, now he's dead, he left the party. There was some shootout involved there. It involved the car that he was in with four other individuals. So they have to set up what was going on. The chaotic nature of the scene.

And ultimately they relied and came back to the law itself, and they relied upon Supreme Court cases. And then that Supreme Court case, what it basically says is, if you're a fleeing felon, when can an officer shoot you dead if you're a fleeing felon. And the answer to that question is, if you pose a significant risk of death or physical injury to the officer or others. And so in that context they were talking about when he was running. He had a gun in his hand. There were other officers apparently in the direction where he was going, in addition to unknown people who were in that park. So the context was important to lay out, what was the basis for decision that that prosecutor made.

BANFIELD: Danny, important to note some facts that - that the prosecutor just laid out. And that was that there was DNA found on the gun that a lawsuit alleges was planted. There was DNA of the decedent on that weapon. There's this traffic - this - this dispatch traffic, one minute, fifty seconds, after the shooting that says weapon recovered. There is also a cartridge that matches that weapon that was found in the backseat where Ronald Johnson was seated, according to the witnesses in the vehicle. Those witnesses, the prosecutor said it took eight months to track them down and interview them about that. Those are pretty strong facts in her case.

DANNY CEVALLOS, CNN LEGAL ANALYST: Very strong facts. I mean, when you look at the totality of the circumstances, and that's exactly what the Supreme Court dictates when evaluating a deadly force claim, these are all important factor. And it's important to know that under Supreme Court precedent, even where there is no firearm, deadly force may be justified base on the facts and circumstances.

But conversely, the mere possession of a firearm by someone does not automatically authorize deadly force. It is the threat that is posed by that firearm. And that threat must be fleshed out by the facts. And you can see that's exactly what the prosecutors in this case were seeking to do, establish not only the existence of a firearm, but establish evidence of the threat that particular firearm posed.

BANFIELD: And to that end, to that end, the state's attorney just outlined there was another officer on the scene who was involved in this chase named Officer Hooper (ph), I believe it was, who the state's attorney says was engaged with Ronald Johnson and there - there was a struggle, and that she alleges Ronald Johnson shoved that officer to the ground and then continued. And she says what's critical there is that Officer Hernandez, who has not been charged in this case, witnessed that struggle, and that the shooting happened shortly thereafter. So with that whole fleeing felon notion, that is an important aspect.

I want to go out to Ryan Young, our correspondent who's standing by live now in Chicago.

Ryan, this is such a tender, tender time in the community there, especially on the heels of Laquan McDonald. The state's attorney, Anita Alvarez, says we are in different times right now. The public wants transparency. Is there any indication that this is the kind of transparency that will be enough?

[13:20:14] RYAN YOUNG, CNN CORRESPONDENT: Well, there will still be question. And the first thing, let's point out this, that video in this case absolutely helped, and we know that the Chicago Police Department is going to be wearing body cams sometime in the near future and they're going to actually spread that throughout the command and all throughout the police officers. So this video helped in this case.

But there will be questions about the police report that was filed by the police officers. That's the same thing that happened in the Laquan McDonald case in terms of the intention about what happened. I believe in this case, when you read through it, the officers said there might have been a turn in terms of whether or not there was going to be a shot fired toward them. So people will actually ask questions about that part. I've already looked on Twitter and seen some people reacting to that saying that the police report does not match up to what she was saying.

But absolutely, the way she laid it out, especially in this community, this was carried live on all the news station. You've got to think, people are hearing this for the first time, getting a chance to see the video, getting a chance to hear the 911 calls is absolutely important when you have people who are upset, who've already taken to the street and who already feel like 400 days is too much.

She also pushed and talked about the other agency that was investigating this case before she got her hands on it. And that's all a part of this. People in this community are desperately saying they want transparency. If a young man gets shot, they want to go through it step by step by step so they know that everyone in this community is being treated fairly, and that's obviously something that's being done now with all this intense pressure and scrutiny from around the country.

BANFIELD: Yes, that other agency, Ryan, that you're referring to, the Independent Police Review Authority, that Anita Alvarez outlined very specifically, had its hands all over this case in advance of her decision.

I want to bring in Evan Perez, our justice correspondent, in Washington, because there was one piece of information that stuck with me at a federal level, and I wanted you to weigh in on this, Evan, and that was that the shooting video arrived on her desk, in her office, on October 31st. That's roughly two weeks after the shooting itself, October 12th, OK? And then she said she shared that video with the FBI in November as well, and that the FBI would not participate in this investigation. Help me understand that.

EVAN PEREZ, CNN JUSTICE REPORTER: Well, Ashleigh, you know, they are - they look at these types of cases and decide whether or not there's something likely - some federal jurisdiction that is likely for them to pursue. And it - apparently what they did is they looked at this video. I haven't been able to check with the FBI just yet to see whether - to verify what the state's attorney said just now in that press conference. But typically what they do is, they look at the evidence that is presented to them and they decide whether - they make a call whether or not this is something that seems likely to produce a federal case, federal jurisdiction. Again, what we're looking at here is state responsibility is to bring a homicide case if they believe this person was murdered by a police officer. If that doesn't work, then the federal government has a civil rights jurisdiction and responsibility.

I want to also, just real quick, pick up on one last thing that Ryan just mentioned with this Independent Police Review Authority. In many of these cases that we have been discussing over the last year or so, the problem is, that there's no independent authority that is looking at what police do in these types of shootings. But Chicago has one, and clearly that apparently isn't working. So it's really remarkable to me that for - after looking at these types of shootings over the past year or so, the outcry from communities is that, OK, we need to make sure the police aren't investigating themselves. Well, in Chicago, they weren't. They have a separate authority. And apparently that system was also broken. That's something the Justice Department is going to have to take a look at for sure because it indicates that one of the recipes for fixing this type of problem is really not working.

Ashleigh.

BANFIELD: All right, hold that thought for a moment, Evan.

I want to bring Danny and joey back into this conversation.

I has been a year, and this is part of the problem, the public is not happy about having to ask over and over again for a year to get this kind of video. When you saw what Anita Alvarez just laid out, it took eight months to find the witnesses that provided some layer of context for what happened in that street that day. But is this what we're going to start seeing over and over again?

JACKSON: What I think you need to see is, you need to see a process that allows the community to have trust in the outcome. Now, one of the things we learned in her press conference is that she shared this video with the FBI in November of 2014. Once she shared it, they evaluated this in addition to other information and they said, we're not inclined to move forward with anything. So that's important.

We should also note, in the larger context of things like this going on, that - what we talked about before, the pattern and practice evaluation investigation that's being undertaken by the FBI in Chicago to find out, what are the use of force policies, what are the procedures, what are the prior cases, what happened, is this a systemic problem and, if so, how do you get to the root cause. Ultimately, if you're going to get and grapple with the issue of crime, you need police and the community on the same page. If you're working at odds, it presents a problem.

BANFIELD: You do. But she did say the public at large. And I'll say anchors and reporters, many of us don't necessarily understand the intricacies of the use of force procedures. A video looks like what it is to the layperson and then in comes Anita Alvarez to says, hold the phone, there's a lot you need to know. Which is why I'm asking, from now on, in this new age of video and digital, are we going to see a year where prosecutors have to put context before they release these videos so that cities don't burn, and so that there can be some understanding of police work?

CEVALLOS: It's funny you bring this up because we're now starting to hold prosecutors to a standard of disclosure and swift disclosure. And oh how they have enjoyed for the last couple centuries as an agency the privilege of telling us virtually nothing at all when and how they feel like it. Prosecutorial discretion is near plenary. It means they can charge or not charge. And up until recently, they haven't had to show their work. So we are absolutely entering a new era and a new era with agencies, state, prosecutorial offices that have not historically been designed to disclose information to the public. In fact, they have been designed quite the opposite, to conceal investigations.

JACKSON: You bet (ph).

BANFIELD: It's been a fascinating, a fascinating development. I think what we just saw, that Power Point, that crossing every t, dotting every i, announcing through video and a digital package to the media that there will not be charges in this case. My how we have changed from Sanford, Florida -

JACKSON: Probably be the standard.

BANFIELD: From Ferguson, from Cleveland, from Baltimore to now here in Chicago.

Thank you both. I appreciate your insight into this, Danny and Joey, as always.

JACKSON: Thank you, Ashleigh.

BANFIELD: And Evan Perez and Ryan Young, my thanks to you as well.

And thank you for watching our extended version of LEGAL VIEW. Please stand by. My colleague John Berman is in for Wolf Blitzer, who's on assignment. They're going to begin right after this break.

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