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Legal View with Ashleigh Banfield

Police Still Not Releasing Video; Tulsa Officer Charged with Manslaughter; Landmark Racial Case. Aired 12-12:30p ET

Aired September 23, 2016 - 12:00   ET

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

[12:00:00] JOHN BERMAN, CNN ANCHOR: Than Donald Trump. Brett O'Donnell, great to have you with us. You lived up to the billing as a preeminent debate coach on the Republican side.

KATE BOLDUAN, CNN ANCHOR: We're going to set the bar even higher on Monday. Great to see you, Brett. Thank you so much.

BRETT O'DONNELL, REPUBLICAN DEBATE COACH: You're welcome.

BOLDUAN: And thank you all so much for joining us AT THIS HOUR.

BERMAN: "Legal View" with Ashleigh Banfield starts right now.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

We're going to begin in Charlotte. A news conference there just wrapping up. And if you were hoping that police would release the video of Keith Lamont Scott's final moments in a police shooting, you're going to be disappointed because the family has seen it and says that Scott was acting calmly and non-aggressively, and that when he was shot and killed, his hands were beside his sides. They were down by his sides, they say. But for now we're going to have to just take their word for it, or take the police's word for it, or wait -- wait to see for yourself.

The police did, however, informed us that they now have a suspect in custody in the shooting, or at least a suspect in the shooting death of Justin Carr (ph), who was that protestors who was shot to death on Tuesday night near the Omni Hotel. That image you just saw from another story, I'll get to that in a moment.

But I also need to mention this big development in Tulsa. And there you have it. The Oklahoma case. The shooting of Terence Crutcher, who was unarmed. The officer who shot him. That image on your screen. She is now charged with felony first-degree manslaughter. And if she is convicted of that manslaughter, she faces somewhere between four years and life in prison. Her attorney tells us that she now has been getting death threats in this case.

Now, back to Charlotte for a moment. A lot of fast developments. A midnight curfew is going to be in effect yet again tonight. It's Friday night. It seemed to work wonders last night, even though it wasn't really enforced. But the protests by and large were peaceful, in stark contrast to the previous nights.

So what was different? Maybe this. National Guard troops called in by the governor on Wednesday. And they were met in an unusual way, you might think, hugs and handshakes, not rocks and burning trash cans.

Still, the pressure on officials is intense. Not just to investigate the killing on Tuesday of an African-American man by a Charlotte police officer, but to make the videos that exist public, because they may, or may not, show that Keith Lamont Scott was in possession of a gun, as the police say.

The issue came up again in a news conference. You may have seen it live here on CNN just a few minutes ago. And my colleague, Nick Valencia, was there.

A couple of big pieces of news from that news conference, Nick. Number one, the arrest of that person, or at least the identifying of a suspect in the shooting of a protestors who died. The police said it was another protestors. Others had said they weren't sure. But that also that the police chief said about that video, not one piece of evidence makes a case. Are people satisfied with that?

NICK VALENCIA, CNN CORRESPONDENT: Ashleigh, much of this press conference was focused on the piece of police video, the two pieces of police video, the dash cam video and the body cam video. Yesterday, during demonstrations, the frustration was very evident among demonstrators, the call for that tape to be released. Today, at this press conference just about ten minutes ago as it wrapped up, we heard a much different tone from the mayor of Charlotte. It was earlier today that she was calling for full transparency, the release of that tape. She said have that decision been made that it would compromise the integrity of the investigation, then she would try to get community leaders to look at it, as many eyes on it as possible to get those interpretations out to the public.

Today, just a much different tone at this press conference, saying that she thinks the timing is very important. The chief saying this as well, saying that it was a bad decision to release the tape right now. He spoke earlier about that in detail as to why.

(BEGIN VIDEO CLIP)

CHIEF KERR PUTNEY, CHARLOTTE-MECKLENBURG POLICE: The reason I want to release it when I can give more supportive information is because if it's -- if it's proving our case, or proving our case should go in a different direction, the only way to do that is to be able to establish probable cause. And what I can tell you is the video evidence in that case didn't get us to that standard solely.

(END VIDEO CLIP)

VALENCIA: I think perhaps what's causing the public's confusion surrounding this fatal shooting of Keith Scott is the competing narratives. You have the Scott family saying that he was not aggressive, that he had no gun in his hand, he was unarmed. Police saying that they recovered a weapon. The mayor saying earlier that she saw the tape and it was inconclusive, though we've spoken to an official who has said that it was clear to him that Scott was acting overly aggressive and he made a bad decision that cost him his life.

Ashleigh.

BANFIELD: Our Nick Valencia reporting live for us. Thank you for that.

I want to bring in our law enforcement analyst, Cedric Alexander, and defense attorney and CNN legal analyst Joey Jackson.

[12:05:07] And before I get your insights, guys, I want to let our audience hear from the Scott family attorney, who, with that family, has also seen the dash cam and the body cam video of those final moments of Scott's life. Have a look.

(BEGIN VIDEO CLIP)

JUSTIN BAMBERG, ATTORNEY FOR KEITH LAMONT SCOTT'S FAMILY: What we see on the video is Mr. Scott, the officers are yelling commands. He steps out of his vehicle. He doesn't appear to be acting aggressive whatsoever, is not making any quick moves, moving slowly. You know, he doesn't appear to be arguing or yelling at law enforcement. His hands are down by his side. It is -- you can see what appears to be some type of object in his hand, but he never raises it at any point. Actually, when he's shot, it looks like he's stepping backwards.

If at the end of the day the evidence shows that there was a gun recovered from the scene and that gun was on his person, then we have to deal with that. But the key point here is, the process. It's the transparency. It's the family deserves to know why their loved one was shot and killed, and we need to know all of the facts.

(END VIDEO CLIP)

BANFIELD: So, Cedric, you heard that attorney's account of what he saw on the video. The police have given their account saying, well, maybe we are -- we don't have that -- that definitive moment with a gun pointing right at the victim in this case, Keith Lamont Scott. We have a lot. We have a lot of evidence. And it points to what happened. Why are they so divergent? Why are they so divergent about this? The mayor wants the video released. The P.D. doesn't want the video released. The public wants the video released. Why not just go ahead and release it? What's the down side?

CEDRIC ALEXANDER, CNN LAW ENFORCEMENT ANALYST: Well, I'll tell you, if they are confused, certainly the community there must be confused, and so is the rest of country is becoming confused. It is very clear that what the chief is seeing, what the family is seeing in a video, and if others get to watch that video, they all potentially may see something very different, which is going to continue to confuse the public, who's out here waiting to see that video in terms of what occurred.

But here's the part that's really important that we have to remember, Ashleigh, is that this case in and of itself may not totally be judged simply on that video. The video becomes a piece of this. It is not the entirety of it, depending what's on it. You still have to look at the physical evidence collected at the scene. You still have witness statements. There still could be other camera views from a different or a variety of directions in which that event was captured. But the important piece is, we have to still consider the fact that this has to be a total investigation and not trying to make a determination as to what occurred merely based on the video in and of itself.

But what I would suggest, as a police administrator, is that they get that video out to the public so people can see it for themselves. That's what the people have come to expect in this country, and in that community, and at some point they're going to have to do that, without jeopardizing the integrity of that investigation.

BANFIELD: Right. Because right now -- and I'm glad you said that, because right now the only images that are out there is a social media photo. It's like a screen grab.

ALEXANDER: That's right.

BANFIELD: I want to show it. And it's a close-up with what appears to be, in that little circle on the bottom, a gun on the ground at the moment when people are trying to attending to Mr. Scott.

ALEXANDER: Right.

BANFIELD: So, Joey Jackson, this is the kind of thing -- I feel like we've been through this before.

JOEY JACKSON, CNN LEGAL ANALYST: Yes.

BANFIELD: Witness accounts are critical here. We're in the -- we're in the offings of this just happening. We need to gather as much evidence to get to justice, right? And if you start to taint people's view of what happened, witness accounts can change, if they're watching TV, if they're seeing images with -- they start to think of it as their own memory, right?

JACKSON: Well, that is true, Ashleigh. And I think an investigation has to encompass everything. But I don't think that alone, because witnesses could be influenced, would be sufficient to withhold the tape.

Let me make a general point before I make a legal one. From a general perspective, the country's in a world of hurt right now. Ashleigh, we have discussed this, along with Dr. Cedric Alexander and Paul Callan and other guests about the police and conduct across the country. When you talk about the release of a videotape, we're in an era of transparency. If you want to bridge relations with the police, if you want trust between police and communities, there has to be that transparency. Not so that an incident can be prejudged, because I do agree that a video provides one sort of perspective of something and there's certainly more information to be gathered, but you need the public involved. You need the public's perspective and you need them to work and trust the police.

So I think not releasing it presents a problem, specifically on the issue of, you see the gun right there. Yes, you do. But the fact is, as a person, you know, may or may not have a gun. The issue become, what's they were doing with the gun at the time they were shot? Was there an immediacy of danger such that the police had to use excessive force? Perhaps that was the case here. And if it was, then the case will go accordingly.

[12:10:12] But I think in order to get the full scale of this out and to get the community involved and to stop, you know, the protesting that is so vociferous, the community has to feel respected and involved. And to the extent that the transparency is not there, they don't. And that presents a major issue in this case.

BANFIELD: Yes. And it's important for our audience to know that, yes, if there was a gun there it doesn't mean there's illegal activity. That's not, you know, that's not in itself a reason to fear for your life. If there's a gun pointed at you and if someone won't drop it --

JACKSON: Another story.

BANFIELD: That's certainly another -- right. Exactly.

And then there's this issue, and the police wouldn't have known this at the time, that this particular person, Keith Lamont Scott, would not have been legally in possession of a gun because he had a prior conviction.

So I think we just -- we all have to wait for the facts. And I appreciate your measured responses. Gentlemen, thank you, Cedric Alexander and Joey Jackson.

ALEXANDER: Thank you for having us.

JACKSON: Thank you, Ashleigh.

BANFIELD: Coming up next, a major development in the other police shooting that's been dominating the headlines, the officer who pulled the trigger in the Tulsa, Oklahoma case, she's now been charged with manslaughter. It's a week less a day where that move comes and this is a move that her lawyer is saying is a rush to judgment. Is it?

(COMMERCIAL BREAK)

[12:15:13] BANFIELD: It has been one week since Terence Crutcher was shot and killed by a police officer in Tulsa, Oklahoma, and we have now learned that he died from a penetrating gunshot wound to the chest. That's the official cause of death. That's probably not a surprise. The manner of death is also listed now in the official autopsy, it's listed as homicide, also not a surprise. But the big surprise may be the toxicology results. And sadly we can't tell that to you because they are not complete yet. That's not a surprise. They often take a very long time.

Here's what we do know. The officer who fired the lethal shot, Officer Betty Shelby, was just charged with first-degree felony manslaughter. She is now out on a $50,000 bond. Her attorney tells us that her arraignment date should be set sometime in the next ten days. If Officer Shelby is convicted of this crime, she's facing between four years and life in prison.

So the Crutcher family says that they are happy that charges have been brought in this case, but that they will not be satisfied unless there's a conviction.

(BEGIN VIDEO CLIP)

TIFFANY CRUTCHER, TERENCE CRUTCHER'S TWIN SISTER: We know the history of these cases. We know this is the formality. We know she's been charged. But then we get no convictions. We're demanding full prosecution. We want a conviction. And when that happens -- this is a small victory, but we know we've got to get ready to fight this war. And so we want for everyone, the community, the world, to join arms, lock arms with us as we go out.

(END VIDEO CLIP)

BANFIELD: So for the legal view I want to bring in CNN legal analyst Paul Callan, a criminal defense attorney and a former prosecutor. And also with us, Alexis Johnson, who's the executive director of the Perception Institute. They study race and gender bias.

Paul, first to you. Wow, one week and there's an officer charged. Do you see anything right or wrong with that?

PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, that's almost a record. It may be the record, most swift indictment of a police officer in a situation like this. But, on the other hand, the video in this case seems to be so clear that the officer overreacted under the circumstances. Did doesn't -- in a lot of these cases, when you look at it from a different angle, you can understand how the officer might have been in fear. But this case just looks to be a case where the officer has an almost impossible defense for the use of deadly, physical force under these circumstances. So I'm not surprised. And I think under the circumstances, it probably was warranted in terms of the swiftness of the action.

BANFIELD: So, Alexis, you know, the standard for a conviction here is going to be that the jury is going to be asked, put yourself in Officer Shelby's shoes. Don't put yourself in your shoes as you're standing there with your gun out. You've got to be a reasonable man, a reasonable officer. So they have to sort of catapult themselves into a different circumstance. And that's going to be tricky. And some say, some jurors will say, well, sure, I have that same implicit bias. I'm maybe not going to say it out loud, but I might have feared that very big man, too. Do you see how the perception is critical when it comes to the conviction rate?

ALEXIS JOHNSON, EXECUTIVE DIRECTOR, PERCEPTION INSTITUTE: Absolutely. And I think that is exactly right. I think it was remarkable that she actually named that -- that she had a fear that led her to this unreasonable action. And the question is whether or not her perception of being threatened was enhanced by her bias or by, you know, the perception of race, of seeing an African-American man.

The job of a police officer is to be able to discern between a real threat and a perceived threat. And if bias is somehow getting in the way of that ability to discern, that's really where the concern is. So I definitely can see the strategy in terms of her defense, but I think it's a bigger question around whether or not we are training our officers to recognize the role that race plays in enhancing perceptions.

BANFIELD: So, Paul, put on your prosecutor hat for a minute because the quote that the D.A. actually used here was fear resulted in her unreasonable actions. So whether it's real or perceived fear, we're asking these jurors to do a massive mental gymnastics here to try to get themselves into that moment and figure out if it's real or perceived or if they could put themselves in this reasonable man's standard. I mean this is going to be really hard.

[12:20:00] CALLAN: Oh, it's not going to be an easy case at all. But I think it -- the jurors will have to be convinced that the law says it's not enough just to have a fear yourself, OK? Maybe an unreasonable fear. But a lot of people have -- let's say you're particularly shy and afraid in situations. That doesn't give you the right to take out a gun and kill in a situation where you're not legitimately threatened.

So the law has two standards. Number one, you have to have really been afraid. All right, we'll give her that. She was. Maybe it had to do with racial bias. But the second thing is that a reasonable police officer, under the circumstances, would also have to have been reasonably afraid. And she flunks that test here. So I think as long as the prosecutor tries the case and explains this to the jury as the judge will that there's a double standard, an objective and a subjective standard, as the lawyers would say, the prosecution has a chance here of getting a conviction.

BANFIELD: Yes. And you know what? It all comes down to what's reasonable for juror number one may not be reasonable for juror number six. That's where the complexity of that decision-making comes in.

Paul Callan, Alexis Johnson, thank you both. Appreciate it.

CALLAN: Thank you, Ashleigh.

BANFIELD: Coming up next, a serious question, if a black man runs away from police officers of any color, does that automatically presume that he's guilty of something or give them probable cause to chase? Or is he legally justified in running away because he has a fear of the police? Think about this perception conversation we just had. Now think about Walter Scott, think about Freddie Gray. A state supreme court has just ruled on all this, this whole notion of fear. And this is one heck of a landmark decision. We're going to give you the details and tell you what it means for the entire country, next.

(COMMERCIAL BREAK)

[12:25:20] BANFIELD: While the city of Charlotte is dealing with racial tension between the people and the police, there's something very different happening in another part of the country. And this is super fascinating. The highest court in the state of Massachusetts has declared that sometimes -- sometimes black men run from the police because they have good reason to be afraid, not necessarily because they've done anything wrong.

I want you to read along with me the language from the opinion. "Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity."

So to say that this is landmark is an understatement. A state supreme court has ruled that black men may actually be justified in running from the police. It stems from a particular case, but there are plenty of cases that this opinion can arguably apply to.

And I want to talk to Alexis Johnson, the executive director of the Perception Institute that studies race and gender bias. She's back with us. And our legal analyst, Joey Jackson, is also back with us.

All right, guys, I think it's important to give some context here and a couple of names as well. Walter Scott. Freddie Gray. We've covered these cases. And now we have the case of Jimmy Warren. All three black men who ran away from the police. Two of them are dead, but Jimmy Warren is alive. He, in fact, got arrested, but he got arrested on an unrelated gun charge by the police after he had run from them. He saw the police. They wanted to ask him about something that had happened in community, but he ran and he had a gun that he wasn't supposed to have, but this ruling has exonerated him.

So, Alexis, it's so fascinating that we had a conversation prior in this show about the perception that, you know, officers might have of those they may be interacting with. Well, now we have a perception that those people that are interacting with have of those officers. It's significant, isn't it? It works both ways.

JOHNSON: Absolutely. No, it absolutely by works both ways. And I think, you know, the idea that the supreme court could say, look, cops, we know you need a multitude of tools in order to kind of make your decisions about who you're going to go after, but just because someone walks away does not necessarily give you that right to suggest that that's suspicion. Just because they're avoiding you doesn't mean that that's -- there's actual criminal activity involved. And the reality is these -- so many of these local incidents that have happened across the country are falling into a national narrative about the relationship between black men and police officers and suggesting that, you know, there is something completely undignified about being racially profiled, about having -- going about you day, every day, just living and not being able to change the color of your skin and being followed, assumed suspicious by a police officer. So the fact that the supreme court took it to this level and put the burden on the cops to add additional criteria when going after men of color, I just think it's huge.

BANFIELD: Sure. And you said walking away. I mean you can even be running away, right? Significantly different actions.

JOHNSON: Way different. BANFIELD: So, Joey, to you, what's super fascinating about this is

that, if I recall, and help me out, counselor, Freddie Gray took off when the police made eye contact with him. And that gave them a probable cause to pursue him. The arrest probable cause was because they found a knife that looked like it might have been illegal. It wasn't, but the look of it was enough for that probable cause. So go back to the initial chase. I mean if this law had been in existence, Freddie Gray would never have been chased down, would not have been arrested, correct?

[12:30:08] JACKSON: OK, so a couple of things, Ashleigh.