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New Day

Order Restored In Ferguson; Michael Brown's Parents Speak Out; Attorney For Eyewitness Speaks Out; Pentagon Issues Chilling Warning About ISIS

Aired August 22, 2014 - 06:00   ET

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

CHRIS CUOMO, CNN ANCHOR: The community has been frozen in time, outrage and violence the only outlets. But now we see a shift in mood and momentum. Protests are now peace marches and overnight only a few arrests -- Kate.

KATE BOLDUAN, CNN ANCHOR: A marked change from previous nights, Chris. That's some good progress to see there on the ground. We're also looking at another big development.

Missouri Governor Jay Nixon, he is now ordering the National Guard to begin the process to start withdrawing from Ferguson, a big development. Just shows all the progress that has so far been made.

CUOMO: Yes. The key will be how long will that take because that's going to be a very critical shift? Another major development is Michael Brown Jr.'s parents speaking out. They told CNN they are at peace. They preparing for their son's funeral. That's going to be on Monday.

And they denounce the violence that they say has been shaming their son's name. We're going to hear from them coming up, but here's a look at everything that happened overnight.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: We pray a blessing over here.

CUOMO (voice-over): Overnight in Ferguson impassioned prayer, clergy and police hand in hand.

UNIDENTIFIED MALE: God bless you. God bless you.

CUOMO: Protesters now peace marchers lining the streets. As others pause in solemn reflection, leaving roses as part of a makeshift memorial for Michael Brown Jr. These sounds of calm now set the scene here in Ferguson as law enforcement begins to pull back. Missouri's governor ordering the National Guard to gradually draw down.

GOVERNOR JAY NIXON, MISSOURI: As we see the folks getting calmer, fewer arrests, fewer problems here, that mission, we're going to draw down off that, we don't need the same force strength.

CUOMO: This as new information clarifies reports about Officer Darren Wilson's condition after the shooting. A source with detailed knowledge of the investigation tells CNN, Officer Wilson had a swollen face not a fractured eye socket as some media were reporting.

A new eyewitness, Michael Brady, says he saw the beginning of the tussle through his apartment window, and it looked like Officer Wilson may have gotten hit.

(on camera): Did you ever see Mike Brown do a motion where he was going to hit this cop?

MICHAEL BRADY, WITNESS TO MICHAEL BROWN SHOOTING: That maybe was going to happen. That may be why the tussle was going on.

CUOMO (voice-over): Meanwhile, new details about Dorian Johnson, Michael Brown's friend and the eyewitness to the shooting. According to police documents, Johnson was arrested in 2011 for theft and making a false report to police.

Now as peaceful memorials take the streets where violent clashes once broke out, Captain Ron Johnson commends the community for another night of calm, a coloring book, box of crayons and a sock pocket now on display where handguns and Molotov cocktails set just a few days ago.

CAPTAIN RON JOHNSON, MISSOURI HIGHWAY PATROL: This is what defines a community. This is truly the community of Ferguson is what we see on this table today.

(END VIDEOTAPE)

CUOMO: Three big moments. What happened at the car? Was Michael Brown Jr. running away when the firing started from the officer, and what was the ultimate thing that led the officer to take his life? Michael Brady, the witness that you were hearing in this piece is key on this. We'll go over that later in the show so stick by for that.

There's also new questions emerging about the key witness to the shooting in the situation, and that is the friend who was with him. His name is Dorian Johnson. Now his past has been called into question because the man who says he was shocked by Michael Brown Jr.'s attempt to steal from a store was busted in 2011 for theft and making a false report to police.

In fact, there's a warrant for his arrest right now in Jefferson City, Missouri, not only that, but the medical examiner's findings may challenge some of Johnson's story, that brown was running away with his hands up when the police opened fire, so how much does any of this hurt his credibility if this goes to trial? We took the questions to Johnson's attorneys.

(BEGIN VIDEOTAPE)

CUOMO: Did you know anything about your client's criminal background before today?

JAMES WILLIAMS, ATTORNEY AT LAW, BOSLEY WILLIAMS: You know, the client's criminal background is really a red herring here. This is a case where you have two innocent unarmed citizens walking down the street who eventually had to flee for their lives unarmed with their hand in the air.

Criminal background or not everyone is entitled to constitutional protection. This police officer cannot be judge, jury and execution, criminal, "a" student, honor roll, whatever, the point is you can't gun down innocent person.

CUOMO: Understood, credibility, especially key, especially in assessing testimony. When they hear about the criminal background and type of crimes involved does it hurt your client's credibility?

FREEMAN BOSLEY JR., FORMER ST. LOUIS MAYOR: It's something he took into consideration. He met with the FBI, the Justice Department, the prosecutor's representative and detective and at that time over a week ago, he laid out his whole life to them. They asked him about his criminal background, the matter he had a warrant out against him and talked to them at length and in detail.

CUOMO: If you are counsel, if this goes to try, OK, and you're client comes up and takes the stand and says what his testimony is about let's start with the robbery. He had no idea what was going on of he doesn't know why Mike Brown did what he did and oppose counsel said you had no idea, haven't you been charged with a larceny before? Haven't you been charged with making false statements to the police before, isn't that very damaging?

WILLIAMS: Not at all. His credibility in this case has nothing to do with what he's been charged with in the past. It has to do what he saw here, seeing his friend get murdered in cold blood by a police officer.

CUOMO: You would have to be naive, though, Counsel, to think that this won't try to be used against your client out here but also in a court of law?

BOSLEY: And since you open the door let's go on in that room. When character happens, if you open the door to saying they have good character then they attack you with exactly something like this.

Let's open the door and come into the room. What did he do? What is it that he was charged with? He's with a group of guys that went into an apartment building and while they were there somebody grabbed up a few pieces of mail. Went to the YMCA to work out a little bit. Somebody report that had they took the mail.

The officer comes to the place where they are, he says what's going on here and they wind up charging him with taking a piece of mail and then they ask him, well, who are you, they have already two pieces of his I.D.

They say are you Dorian Johnson and they say, no, charge him with making a false statement. All of that is going to come out, too, and we'll see what the jury thinks about that.

CUOMO: But to do devil's advocate, you know why I'm asking you. I hear all of it and accept all of it and as opposing counsel, they will say the kid is a liar. I can't believe what he's saying here. He's just saying what's convenient. What does that mean?

WILLIAMS: What it means is this. In the jury system, and, unfortunately, that's what's happened in this process. If we have -- we have two young man chased after to be hunted down by a police officer, one of them murdered in the street and this becomes about their past or this becomes about what happens at a store.

None of this is what it should be about, and that's exactly what I would tell any oppose counsel who wanted to bring up these things. I would say, of course, you want to distract from the truth because the truth is two innocent young men were fleeing for their lives when one of them got gunned down right there in the street for no reason at all.

Now his past certainly doesn't justify that. Being in the store picking up a few cigars even if that happened doesn't justify that. Nothing justifies, that and that is what I would say to anyone who tries to make this about a past or character or reputation. Let's make it about justice. Let's make it about the truth.

CUOMO: Fair statement, Counsel. Did the authorities when he went and did the interviews, they had access to what his record was?

BOSLEY: They not only had access to it they talked to him at length about it.

CUOMO: So they knew about it.

BOSLEY: They had an opportunity to ask him whatever it is they wanted to know about it. They wanted to know what happened. They were fine with it.

CUOMO: They were fine with it.

BOSLEY: They understood it and moved on to the next issues.

CUOMO: And they still offered him the opportunity to not be charged after he gave their story meaning they must have found some credibility to it.

BOSLEY: They made the disclosure at the opening of the meeting and at the end of the meeting he was designated as a federal witness.

CUOMO: And you believe they had every ability to know about what we're discussing right now and they could have made a different judgment if they saw fit.

BOSLEY: I disclosed that matter in detail to the county prosecutor, Bob McCulloch two days before and he said that was not of his concern.

CUOMO: The people who needed to know about the past of your client knew in advance.

WILLIAMS: Absolutely. He's not hiding anything. He hasn't hidden anything from anyone. He has nothing to hide. He and Michael Brown were innocent victims here, and so the fact that whoever the powers might be want to make this about something other than what happened by bringing up the past.

As you put and as the former mayor put, when in fact that was disclosed to the right people, never hidden, never shied away from, I think underscores the fact that we should not be focusing on their past. What we should be focusing on is what happened in this street.

CUOMO: And, again, to the speculation that there have been story changes, that the client has not been consistent with what he said about the matter, what do you want to say on record about how strong a story his stood up over time and what the reaction to it.

WILLIAMS: The story at its core is not changed and what the witnesses saw, two men were fleeing unarmed down the street when a police officer started shooting and walked over to Michael Brown and as he was on the ground dying when the police officers continued to shoot into him. That's undisputed. That hasn't changed and that's not inconsistent.

(END VIDEOTAPE)

CUOMO: The bottom line is legally Michael Brown and Dorian Johnson come into this situation with this police officer clean in terms of who they are. It's all about what happens in the moment, Kate. However, at trial when you assess testimony credibility is key in terms of how believable somebody is.

But you do have to remember that the story that Dorian Johnson has told doesn't exist in a vacuum. There's so many other eyewitnesses and there's a lot of corroboration involved, but it's certainly going to make the investigation more challenging.

BOLDUAN: Still is shocking, Chris, that the attorney general said that the FBI has conducted hundreds of interviews already, at least for the part of their investigation so that's exactly to your point of all of the eyewitnesses that are going to be interviewed as part of this process. We'll get back to Chris on the ground in Missouri in just a moment.

We also want to look at this, a startling warning from the Pentagon about the terror group, ISIS. Secretary of Defense Chuck Hagel saying the U.S. needs to take a cold steely hard look at ISIS and get ready, days after American James Foley was beheaded by the militants.

And as U.S. air strikes on ISIS targets continue in Iraq. The chairman of the Joint Chiefs of Staff warns defeating the terror group won't be possible unless its presence in Syria is also addressed, a serious statement coming from Martin Dempsey. Barbara Starr has much more for us from the Pentagon.

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Good morning, Kate. The question is could ISIS come to the United States and attack here? The Pentagon isn't ruling anything out.

(BEGIN VIDEOTAPE)

STARR (voice-over): As ISIS continues its murdering rampage, alarming words from the U.S. secretary of defense about the threat the group poses to Americans.

CHUCK HAGEL, DEFENSE SECRETARY: This is beyond anything that we've seen, so we must prepare for everything, and the only way you do that is you take a cold steely hard look at it and -- and get ready.

STARR: But ready for what? U.S. officials insist there are no is sleeper cells in the U.S. right now, but U.S. intelligence agencies are worried some Americans fighting with ISIS overseas could come back to this country and carry out attacks.

HAGEL: They are beyond just a terrorist group. They marry ideology, sophistication of strategic and tactical military prowess. They are tremendously well-funded.

GENERAL MARTIN DEMPSEY, CHAIRMAN, JOINT CHIEFS OF STAFF: This is an organization that has an apocalyptic end of days strategic vision and which will eventually have to be defeated. Can they be defeated without addressing that part of their organization, which resides in Syria in the answer is no. That will have to be addressed on both sides of what is essentially at this point a non-existent border.

STARR: For now, U.S. military strategy remains limited to air strikes inside Iraq, not in Syria, ISIS' home base, but there has been the first U.S. military mission into Syria with the acknowledgement of a failed July 4th raid to rescue James Foley and other American hostages. The Pentagon insists it wasn't an intelligence failure.

HAGEL: Intelligence doesn't come wrapped in a package with a bow. It is a mosaic of many pictures, of many factors.

(END VIDEOTAPE)

STARR: U.S. officials say that they are looking at what to do about ISIS, maybe expanding air strikes in Iraq and maybe even considering air strikes across the border in Syria, but they say all of this just options, just ideas. No decisions have been made yet -- Kate.

BOLDUAN: Barbara Starr at Pentagon for us, thank you so much, but important, as Chuck Hagel said, Michaela, that all options are on the table, a statement in and of itself.

PEREIRA: And it's a very real concern, imminent I think is probably the part that's most chilling to me.

Let's take a look at your headlines and sort of playing off of there, the parents of James Foley, the American beheaded by ISIS, have released the final e-mail they received from his captors.

The terrorists told him he was going to die as retribution for U.S. air strikes in Iraq saying, quote, "He will be executed as a direct result of your transgressions towards us."

Foley's former employer "Global Post" says they put the full text online for the sake of transparency, and in the meantime we've learned that Pope Francis has spoken with Foley's parents. He called them Thursday offering his condolences. Breaking news this morning from Ukraine, a Russian convoy carrying humanitarian aid has started crossing the border into Eastern Ukraine according to a Russian official. The trucks are making their way to the rebel-held city of Luhantsk.

But Red Cross is no longer accompanying the trucks as planned because of continued fighting in the area between Ukrainian forces and rebels. More than 30 trucks had been cleared by Russian and Ukrainian customs based on the assumption that the Red Cross was with them.

To the Middle East, Israel stepping up air strikes on Hamas targets in Gaza. Overnight Israeli forces attacked targets mainly on vehicles and motorcycles. Dozens of Palestinians were killed in the latest round of violence.

Meanwhile, as Egypt attempts to end the conflict falter, the United Nations says the U.S. has joined the European effort to come up with a resolution that will call for a sustainable cease-fire and advance the goal of long-standing peace in the region.

The prisoner swap that freed Army Sergeant Bowe Bergdahl in exchange for Taliban leaders wasn't just controversial, it was illegal, according to the Government Accountability Office. It says the Pentagon broke the law by failing to give relevant congressional committees 30 days notice and spending more money than authorized in order to conduct that transfer.

Repercussions to come from that.

BOLDUAN: I would say so. People say, if you're going to sue the administration, get in line at this point.

PEREIRA: That's a good point. Join the club.

All right. Next up on NEW DAY, we turn back to Ferguson, the Michael Brown investigation moves forward in Ferguson, with calls for a special prosecutor and new questions about the credibility of witness statements. What does all of this mean for the case?

BOLDUAN: Plus, more on those warnings coming from the Pentagon about the danger posed by ISIS? Is the U.S. doing enough to neutralize the terror threat and will U.S. policy change at all in light of the beheading of American James Foley?

(COMMERCIAL BREAK)

CUOMO: Welcome back to NEW DAY.

A night of calm here in Ferguson, Missouri, but there is growing debate over several key issues in the Michael Brown Jr. shooting case, including the credibility of witness statements and whether Officer Darren Wilson was injured. And if so, how badly? And if so, how relevant in any struggle with Brown?

Now, a source has told CNN that Wilson did not suffer a fractured eye socket despite reports. So, let's figure out what this will all mean because there is a grand jury going on right now, and it is going to be presented with evidence once a week in this matter.

So, we have Paul Callan, CNN legal analyst, Mo Ivory, an attorney and radio host.

Thank you to both of you for being with us this morning.

Let's start with Dorian Johnson, key witness, there with Michael Brown. Nobody was closer than he, nobody should understand it better than he. However, his past, 2011, a larceny charge, also lying to cops, falsifying a false report.

Let's do the upside on this to his credibility and the down.

Paul, you take the upside. What is this going to mean for any defense of the officer? How will they use it against him?

PAUL CALLAN, CNN LEGAL ANALYST: Well, a very good defense attorney is going to say that this attacks his credibility, his believability in a very, very serious way. The report in question indicates that not only did he lie about his age in committing a theft of mail which, by the way, is also a federal crime, but he also lied about his name, and a warrant had to be issued for his arrest.

Now, when he's interviewed by federal authorities in the current case, he's offered essentially a deal. He says that he was told that nothing will happen to him, so now, defense attorneys will say he's testifying this way because they made a deal.

Now, you have to combine that, of course, Chris, with the fact that, unfortunately, the victim in the case, Michael Brown, when they bring in the convenience store robbery, they are going to say he had just committed a robbery in the second degree, by the way, a very serious crime under Missouri law, five to 15 years is the penalty for robbery in the second degree or a strong arm robbery. That will get to the jury and be presented to them, and I think it's going to be a big weakness in the case.

CUOMO: All right. Mo Ivory, I can hear Paul Callan telling his law students: falsus in unum, falsus in tutu (ph), the Latin phrase "if you lie about one thing, we must assume you're lying about everything".

But the past is the past. Doesn't this come down to what you saw on this day and what was done to you on this day, not the past?

MO IVORY, ATTORNEY: Well, it sure should, Chris, but will it? And does it when it comes to these kinds of cases and especially when we're talking about a black victim at hands of the police? So I am concerned about it, and I continue to be concerned about how this information is being disseminated because the police knew about this when they interviewed Dorian, but now just, you know, several, you know, days later, five, six, seven, eight, nine, 10 days later, now it's coming out that he had a past and they knew about it. This is continuous activity to taint a jury pool. And that's why I

worry about it. It's Rachel Jeantel all over again. Let's make him a villain before he gets on the stand, then let's make him a criminal on the stand. I mean, I'm really concerned about them doing this, and not giving the exact same exact treatment to what you just mention, the lie about the eye socket with Darren Wilson.

Now, who is the liar there? Are we attacking Darren's credibility when it comes to that?

CALLAN: You know, Chris, just getting back to one point that Mo raises. I've defended a lot of white defendants, and they get attacked just as viciously for this kind of an arrest. So, I don't think this is a racial thing. This is a credibility thing. And, you know, I think it has nothing to do with the race here.

This is lawyers -- this is a standard tactic if there's a prior conviction, you attack a witness based on the prior conviction.

IVORY: Sure, Paul, and I understand that, and I do think it's a legal tactic. But race does have something to do with this.

We're not even at a trial yet. We're not even the beginning of a grand jury and we certainly don't even have an arrest, and we're already talking about the main witness' past? I mean, come on, it absolutely has to do with race.

CALLAN: Well, I've always taken positions in my discussions that we shouldn't be making our mind up about this case at all until we have all the evidence.

CUOMO: Right.

IVORY: I agree.

CALLAN: And we still don't have all the evidence.

CUOMO: Right. The point is as we learn, we want to provide context and that's what you do. You take it step by step and you leave the conclusions, you leave them for the end.

For instance, Mo Ivory, the autopsy, medical examiner comes out. It seems if you look at the first two autopsies, it's fairly consistent that the bullet wounds seem to be coming from the front. There's some discussion of trajectory but mainly they come from the front. That has been assumed to be a thorn in the side of the theory that Michael Brown was shot from behind. I would submit it's not.

And, Mo Ivory, I would want you to take this position if you agree. It doesn't mean he wasn't fired at while running away, it means he may not have been struck while he was running away, isn't that a fair distinction?

IVORY: Chris, absolutely. And I even think it's a fair distinction to say that he could have been struck with that one bullet that the autopsy that was done by Dr. Baden who was unsure whether it came up from a hand up or from behind.

So, if we take the idea that it was from behind, well then that one shot came from behind, he turned around and the other ones came from the front. So, to make the assessment that the eyewitnesses say he was shot from the front but first had his back turned, that that testimony is not consistent I think is absolutely wrong.

Everything that I've heard the eyewitnesses for the prosecution say seemed very consistent to me, that there was a shot from the back, he felt it, he turned around, and then he was shot from the front. That's very consistent.

CALLAN: Well, you know, on --

CUOMO: Paul Callan, I want to follow up on something else.

CALLAN: Sure.

CUOMO: Paul, I want to follow up on something else which is this -- a lot is being made of the officer being injured. I would set aside whether it's true, whether it's not, whether he was hit after the fact because I don't think it's relevant. I think too much is being made of whether or not he's hit, Paul Callan.

I want you to analyze why it matters -- I think it works against him if he was hit in the car because it suggests that he might have been in a rage and that's why he chased and shot after the kid. Why -- what does it matter if he was hit?

CALLAN: Well, I don't agree with you on that, Chris, and I also want to go back to something mo raised on that very issue. You know, the officer is not releasing the information that his eye socket was broken. I don't know where that information is coming from. It has nothing to do with him.

CUOMO: Right. That's true.

CALLAN: And his role in this case. So we have to wait for his testimony.

But assuming he was injured, and there seem to be a lot of reports that his face was swollen, maybe lacerated, we'll find out.

CUOMO: Right.

CALLAN: That indicates, and this is what the defense will say. That indicates that Michael Brown, who was at that point a robbery suspect at least in his own mind because he knew he had committed the strong arm robbery, struggles with the officer to stop the arrest and the officer's gun goes off in the process. It was such a severe struggle that the officer is injured.

Now, this officer is going to say, of course, I thought I had to take my gun out because I was fearful that he would attack me again. He had injured me in the car. So, I think the injury will play in the officer's favor in a trial in this case. IVORY: And, Chris, let me just --

CUOMO: All right. We'll leave it there. Give me a quick point, though, Mo.

(CROSSTALK)

IVORY: To say that we don't know that the officer is saying the information about his eye socket. It's true, we don't know, but why do we have the benefit of the doubt he's not the one disseminating the information? We don't know anything about what he's saying. So, he could have told the police that he had an injury to the eye socket. How do we know that they checked it? How do they know there was a medical report? How do we know anything?

So, to say that, well, it's not coming from him I think is giving him the same benefit of the doubt we continue to give him so that we don't go against his character, but unquestionable about Darren Wilson's character and his credibility?

CALLAN: Mo, they have a word for that in the court system which is called the presumption of innocence.

IVORY: I totally understand that, and the presumption of innocence has been following him forever. That presumption of innocence has not been given to Michael Brown, the dead boy in the street, nor to the eyewitnesses that are coming forth with their stories about what happened.

CALLAN: And they are not -- they are not --

IVORY: That's all I'm saying.

CALLAN: They are potentially not on trial in the matter. It's the way the system works.

CUOMO: That's true.

IVORY: What they say could be broken down in the same way what Darren Wilson says. So, they are, in effect, on trial as well.

CUOMO: Right. Paul is speaking to the analytics of tactics of trial, mo. You're going to the idea of what the narrative is surrounding it.

IVORY: I get it.

CUOMO: Just for the audience. You both get it very well. You're both polished pros.

IVORY: I get it.

CUOMO: Thanks for taking us through it this morning.

Paul Callan, Mo Ivory, thank you. There will be more rounds of this as we learn more and we get everybody ready for what may or may not happen in this prosecution. Let's take a break right now. When we come back, we're going to have

more from here in Ferguson.

But, first, ISIS, obviously the new focus of the war on terror. The Defense Secretary Chuck Hagel now says they are large, they are well- organized and, quote, "beyond just a terror group". So, the question is obvious, how will the U.S. deal with the threat, especially in the wake of the beheading of journalist James Foley? What's next, coming up.

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