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Ferguson Grand Jury Decision Expected Today; Missouri DPS Director Talks Security in Ferguson; Wilson Could Be Indicted, Face Federal Charges or Lawsuits.

Aired November 24, 2014 - 13:30   ET

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

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ANNOUNCER: This is CNN breaking news.

WOLF BLITZER, CNN ANCHOR: And we're getting significant breaking news coming in from Ferguson, Missouri. U.S. and local law enforcement officials telling CNN that a decision by the grand jury in the Darren Wilson case is expected to be announced later today. The sources did not know what the decision is, what the announced decision will be.

Let's go to CNN's justice reporter, Evan Perez. He's on the scene for us in Clayton. That's where the grand jury has been meeting in Missouri.

They were supposed to get a decision on Friday. They couldn't over the weekend. Presumably, they were considering more facts. Now they've met again and they've reached a decision. Is that what you're hearing, Evan?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: That's right, Wolf. The officials here are getting ready to make a public announcement. On Friday, they -- instead of asking to see more evidence, they simply said that they wanted to think about it some more. They wanted to discuss it some more. That's why they were back here today to finish their deliberations, to finish the decision making. We're now told by sources that they are getting ready to make that announcement later this evening. They want law enforcement to be prepared for a possible announcement. It won't take much but they want to make sure that they can remind the public that they've got enough resources to protect the public and make sure that everybody keeps calm whatever the decision is -- Wolf?

BLITZER: So the prosecutor, Mr. McCullough, will make the announcement?

PEREZ: That's what we are expecting. He would be making an official announcement, from what we are told. All the best-made plans have gone out the window given that they were expecting this to come on Friday, and then on Sunday, giving law enforcement plenty of time to get ready. They don't want to push this back any further. We have the holiday coming up later this week so that's the idea that they want to get this out and get -- deal with whatever the blowback or whatever the reaction publicly is, they want to deal with that now. BLITZER: So presumably, correct me if I'm wrong, is McCullough

notifying parties, including Michael Brown's parents, for example, the attorneys, various law enforcement authorities, state and federal law enforcement authorities, what the decision is so they can be ready? And if he's telling these people what the decision is, aren't there serious concerns of leaks coming out in advance of a public announcement?

PEREZ: Well, yes, Wolf. That's exactly right. There's a big concern about possible leaks. So there is, obviously, a procedure to go through here. There's some things that they have to notify the judge to get ready. They also -- McCullough has said publicly that he wants to release all of the materials presented to this grand jury. That is a little more complicated because they need to make sure the judge is OK with that. There is obviously the question of how do you protect the identities of some of the witnesses that came before the grand jury. So all of that is going to be taking place in the next few hours.

We expect that Michael Brown's family will be told before the decision is made publicly. And also Darren Wilson's team, his attorneys, would also be told if there's an indictment. They will have to make arrangements to have himself turn himself in. So all of those things are in place and they are being worked on at this hour.

BLITZER: And it takes nine members of the grand jury, 12 people on the grand jury, to reach a decision.

PEREZ: Right.

BLITZER: And it could be the various options, first or second-degree murder, voluntary or involuntary manslaughter, or none of the above and he walks. Those are the various options before the grand jury, right?

PEREZ: Right. You have nine people who have to agree on one of those charges. And if there's not enough members of the grand jury who agree on any of those things, then you end up with no charges. So there's various ways that it can go.

BLITZER: Stand by, Evan.

Because Evan is reporting that they have reached the decision, that decision is expected to be announced by the St. Louis County prosecutor later today.

I want to bring in Daniel Isom. He's the director of the Missouri Department of Public Safety. He's joining us from nearby Jennings, Missouri.

Mr. Isom, thanks very much for joining us.

You hear the breaking news -- a decision has been reached and will be announced by the prosecutor shortly. Are you ready, the people in Missouri -- and you're responsible for public safety -- are you ready for any eventuality? DANIEL ISOM, DIRECTOR, MISSOURI DEPARTMENT OF PUBLIC SAFETY: Yes, we

are. Law enforcement and the community has been preparing for this decision for a long time. Law enforcement operations are all set. And more importantly than that, there's been so much dialogue that's gone on between law enforcement in all sectors of the community that we are prepared for any decision that comes down.

BLITZER: How worried are you, though, about outside agitators coming in from out of state trying to provoke some kind of confrontation with law enforcement?

ISOM: Well, a couple of things. Because of the dialogue and the communication that has gone on between law enforcement and the community, I think we have an understanding of the sort of rules, ground rules that we're going to move forward on. So I think that's very, very important. We've learned a lot of lessons, both the community and law enforcement, over the last couple of weeks. I think that's going to help in terms of our tone. And then when we do those things, we believe that the people who are coming from outside will be clearly identifiable and we'll deal with those people as well.

BLITZER: Where do you anticipate, Mr. Isom, the bulk of the protests to occur? Let's assume -- we don't know what the decision is by the grand jury. But let's say there's no indictment, which fuels a lot of anger, would they be in Ferguson, in Clayton, where the grand jury has been meeting? In other words, where are you potentially gearing up for these demonstrations?

ISOM: Well, we're prepared to go anywhere. Law enforcement has an operational plan that is mobile and is prepared to show up anywhere that is needed to protect people and property, and then to have their voice heard. Of course, the focal point will be here in Ferguson and in Clayton, and maybe some other areas around the city. But those seem to be the two focal points.

BLITZER: And you have a good plan, coordination with local, state and federal authorities, including the National Guard? We heard the governor, Jay Nixon, say a few days ago that he's activated National Guard. Is everybody coordinated and working together?

ISOM: Yes. The unified command, St. Louis City, St. Louis County, the Missouri Highway Patrol, have been planning for weeks. They are ready and they are prepared. If we need more support, we will have the National Guard in place. But that will only be in a support role, and only if necessary. And then there are other smaller police departments around the community who are willing to assist and support as well.

BLITZER: Mr. Isom, good luck to you and to everyone over there. Let's hope for a peaceful amount of demonstrations if, in fact, they do occur.

Thanks very much for joining us.

ISOM: Thank you, Wolf. BLITZER: And just, again, U.S. and local law enforcement officials

tell CNN that a decision in the Darren Wilson case is expected to be announced later today. We don't know what the decision is. We don't know when it will be announced. We do believe the announcement will come directly from the St. Louis County prosecutor.

Once again, we don't know when that decision will be announced or what the decision is. But here is what could happen. Wilson could be charged potentially with murder or manslaughter. But if he is not indicted, he could face possible federal charges. He could also certainly face some sort of civil suit.

Let's bring in our senior legal analyst, Jeffrey Toobin.

Jeffrey, based on what you know -- and I know it's speculation that we're all guessing here, because we don't know what nine members of this grand jury have decided -- what do you think are the most likely scenarios?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You know, Wolf, I'm going to give you a non-answer to your question because I honestly don't know. One thing you have to say for this grand jury, it's been a secret proceeding. We know that Darren Wilson himself has testified. That is unusual. The target of a grand jury proceeding rarely agrees to give up his Fifth Amendment rights to remain silent and testify. But outside of that, we don't know. Certainly, I don't know a lot of the evidence.

And one thing I would like to -- one prediction I will make is that if and when the evidence comes out of what the grand jury heard, we're going to see some surprises. We knew there were some eyewitnesses and we're familiar with their testimony because they gave interviews, but not everybody did and not all of the scientific tests are out. So I don't know what they are going to do. I don't think this deliberation was particularly long, given the length and complexity of this investigation. And we'll know the answer soon.

BLITZER: We certainly will. Presumably, in the next few hours if not sooner than that.

How unusual -- let's say we don't know what the decision is -- but let's say he's not charged, he's not indicted. The prosecutor still wants to go ahead and then release all of the information, all of the evidence, all of the testimony that was put before the grand jury over these past many weeks? How unusual would that be?

TOOBIN: It would be very unusual. But if there were ever a circumstance where it might be appropriate, this would be one, I think, given the degree of public interest, given, frankly, the suspicion that this prosecutor was not conducting a thorough investigation. I think it would be in the interest of the prosecuting attorney, Mr. McCullough, to see all of the evidence and prove that he did a thorough investigation.

Now, one interesting possibility is that if there is an indictment, there will probably be no release of evidence until the trial and then only the trial testimony will come out. So, in fact, more testimony might come out if there's no indictment in this circumstance than if there is an indictment, which is certainly unusual, but it's an unusual case.

BLITZER: Stand by, Jeffrey, because I want to continue this.

Danny Cevallos and Mark O'Mara, two of legal analysts, are joining us.

Mark, you've got a lot of experience with grand juries. What do you make of the breaking news that a decision has been reached and it's expected to be announced later today by the St. Louis County prosecutor?

MARK O'MARA, DEFENSE ATTORNEY & CNN LEGAL ANALYST: Well, they have taken a lot of time. They've gone over a number of witnesses. They've done everything that we should ask them to do as a grand jury, and they seem to have deliberated long enough. A lot of questions within the grand jury. I'm sure they've answered it for themselves, and looking forward to a decision so that, one way or the other, the nation can move on.

BLITZER: And, Danny Cevallos, what was your immediate reaction when you heard the news that they have reached a decision?

DANNY CEVALLOS, DEFENSE ATTORNEY & CNN LEGAL ANALYST: Well, it's like any time that you wait for any jury, you have no idea when they are going to get done. The fact that there is an announcement tells us that they've looked at all of the evidence and we're going to know one way or another.

But I can tell you, for sure, just like Jeff said, just like any legal analyst should say, there's no way to read the tea leaves and guess at whether there will be a true bill or no true bill in this case. And consider also the jury may be instructed on several different crimes but they've undoubtedly been instructing in the law of self-defense and police use of legal force.

BLITZER: Mark O'Mara, if they have a decision now, they've reached that decision, why do they have to wait a few hours to release it? Why can't they just go ahead and release it right away?

O'MARA: Well, that's probably the logistics that's been put in place with the Department of Justice, local law enforcement agencies, because we know whatever the decision is, it's going to be looked at by the nation and considered and there's going to be a reaction to it across the board. So I know that they had planned initially to have a 48-hour delay from decision to announcement. We also know that law enforcement has already been ready and willing to go forward whenever the grand jury was. So I think what they have done is abbreviate that 48 hours. But it looks like it's down to five, six, seven hours. And I think it's good for law enforcement to have some time to get ready to react to whatever is going to come.

BLITZER: Given the passions involved, Danny -- and I want all of you to weigh in on this. Jeffrey, you as well. Let's say there's no indictment -- we don't know what the decision is. No indictment, would it be wise knowing how angry that would result in a lot of folks out there, would it be wise until it's dark to make that announcement, until it's nighttime?

CEVALLOS: That's a tactical decision by not only the prosecution but also the local police when they are considering crowd control. Really, there's no handbook on when to announce vis-a-vis the court. Although, we should be mindful that the concept of secrecy is a slippery and elusive one when it comes to courthouse gossip. Every hour they hold on to this information is another hour that somewhere, some staff member may accidently mention something to the wrong person. So it's exceedingly difficult to keep anything truly secret in a courthouse.

BLITZER: Jeffrey Toobin, that's an excellent point because I know there's enormous concern about leaks.

TOOBIN: There is. And, remember, the defense -- the Michael Brown's family is going to be notified in advance of the public disclosure. There is going to be a lot of pressure on them. And don't kid yourself, from people like us, from journalists, who want to learn from them first what this result is. So I would be very surprised, frankly, if it goes the full six hours. I don't know the answer to what the best way to release the news is. But I think six hours is -- is a long time to hold a secret like this, especially when you're starting to disclose it in a piecemeal way. Sooner is probably better than later.

BLITZER: Under these circumstances, Mark --

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BLITZER: Hold on. I want to hear what you have to say -- but 12 members of the grand jury, are they now free to go? Are they still being sequestered, if you will? They have reached the decision. Can they simply walk out of that building over there, go home, even if they promise they'll remain quiet, or do they keep them under wraps? What's the normal situation in a highly tense environment like it is right now?

O'MARA: Remember, there's a Missouri state law saying that they can't disclose the testimony to witnesses or the results. They are under court order and state law that they don't disclose it. And there is, again -- we're sort of in unchartered territory. I would imagine that the prosecutor is going to ask them to stick around, stay sequestered, if you will, to stay in session or to stay quiet until the decision comes out. Can they go home? I guess they could but I believe they'll take the tact of leave them where they are for right now and wait until it's all over.

I will say, Wolf, I think it's a mistake -- I hear what you're saying earlier about waiting until nighttime. There is going to be reaction one way or the other, and the idea of doing it in the dark makes it much more difficult for law enforcement to identify and to surveil it and respond to it.

BLITZER: That was my concern as well. Danny, I want you to react to what we just heard from Mark about this

notion that the 12 members of the grand jury will simply be sequestered, if you will, until an announcement is made. They won't necessarily be allowed to go home to their families.

CEVALLOS: Our system does that to jurors all the time. They essentially hold them -- and I'm being a little flip. They hold them against their will, whether it's deliberating. The grand jury at this point is accustomed to the courthouse telling them what they can and cannot do. So I would imagine a few extra hours added on to this already very, very substantial intrusion on their time and their privacy and time away from work, really, in the grand scheme of things, is not that much more to wait. But the courthouse has that -- remember, grand jury, the most important thing about them is secrecy. So to preserve that, courts go to extreme lengths with good reason. The secrecy of the grand jury is what is to be preserved. And they will do that at all costs.

BLITZER: I want to play this little clip. This is Benjamin Crump, one of the attorneys from Michael Brown's family. He said this. Listen.

We don't have that clip. We're going to get that momentarily.

Jeffrey, let's talk about some of the possible scenarios out there. I'm going to walk through what the possible charges could be and you give us your analysis of what would have to be -- what these grand jurors, nine of them out of 12 would be. One would be first-degree murder. Is that likely or realistic?

TOOBIN: I would say that's the least likely possibility. That implies a degree of it premeditation, or planning, or intentionality. And, yes, it is true, it doesn't have to be planned a day in advances. It can be planned minutes or even seconds in advance, but that strikes me as, if there is any charge at all, the least likely possibility.

BLITZER: What about second-degree murder?

TOOBIN: There you get to a lesser degree of intentionality, but still intentional murder. Again, I think, given the facts of this case, if there's going to be a charge, some sort of manslaughter seems the most likely.

BLITZER: What about that, Mark, voluntary -- a lesser charge off voluntary manslaughter or involuntary manslaughter. Explain to our viewers what those mean.

O'MARA: Sure. The difference seen with voluntary manslaughter is you do something that's voluntary. You decide to do something and you do it, not with the intentionality we were talking about, but it's an act you do and it has that consequence. Compare that to involuntary manslaughter and that is a reckless maneuver, something you do driving your car at 75 miles per hour through a school zone. It's so reckless that if you kill somebody, it's that type of crime. We also have to realize in the overall cover of this. As mentioned a moment ago, what this grand jury will do, the 12 of them who are sitting back, what I really think they're doing, in their gut, in their common-sense gut, is saying to themselves, saying to themselves, under the situation that existed at the moment that Darren Wilson reacted to it, was he reasonable in his fear of great bodily injury or not. And if he was, then there's no indictment, no true bill, and they are done, because he acted, quote, "reasonably" under the then-existing circumstances. If they don't see that --

(CROSSTALK)

BLITZER: Danny -- go ahead finish your thought.

O'MARA: If they don't see that, then they start going down the list of potential crimes, looking at what he may have done if he didn't have that perfect self-defense. It was an imperfect self-defense.

BLITZER: So those basically, Danny, would be the four potential charges, first-degree murder, second-degree murder, voluntary manslaughter or involuntary manslaughter. Is there anything else they could potentially come up?

CEVALLOS: What they also will be instructed in is the law of self- defense, which will be critical. We can talk about the charges, and if you walk through the statute, the jury will be instructed, for example, first-degree murder, everything except for involuntary manslaughter is some form of intentional act. And there's no question that the firing of the gun was intentional. So it's important the instructions the jury receives because there's so much more than just the intentional pulling of a trigger. They have to countervail it, they have to confront that or reconcile with the law of self-defense. So that's another very important consideration the jury will have.

I'll also add that when it comes to voluntary, involuntary manslaughter, that's kind of a legal misnomer. Those two crimes should not be called very close to each other or have that similar sound. The involuntary is exactly that, an unintentional killing. The distinction however in Missouri between first and second-degree murder is very slight. It's that deliberation element. So if they are thinking first or second-degree murder, which is statistically probably unlikely, they are going to have a tough decision. I think more likely, if there's a high degree of recklessness, we may see the lowest charge, the involuntary manslaughter or the voluntary manslaughter.

BLITZER: There's been some, Danny -- and I want Mark and Jeffrey to weigh in on this as well. Missouri law is pretty specific, correct me if I'm wrong, Danny. I know you've taken a close look at Missouri law. If a police officer believes that that police officer was in danger for whatever reason, he potentially is allowed to go ahead and shoot to kill a suspect even if that suspect may be running away. Is that right?

CEVALLOS: Yeah. All right, there's a lot of law in this area. The Supreme Court case of Tennessee versus Garner suggests you can use force to apprehend a fleeing. This has been hotly contested. When I say a felon, I'm not saying he's been convicted of a felony. The rule is that if the police officer reasonably believes a felon is fleeing, they be able to -- and I stress may -- use deadly force just to apprehend. However, there's some disagreement about the extent of force authorized by Missouri law compared against what the Supreme Court allows in terms of apprehending a fleeing felon. So you have not only the fleeing felon part, but remember also, police occupy a special place in our law. They are privileged to do what citizens general are not, and that is initiate force, initiate an arrest. Because they have that privilege to initiate force in the form of an arrest, they do, in a way, have special rules that don't apply to the rest of us.

BLITZER: Very quickly, Mark, what about that?

O'MARA: It's very true. If you look at Missouri law, it says you can use force against a fleeing felon. But, as Danny said, that's been modified and all police officers know in Missouri it's modified. You can't do it just because they are fleeing. However, when that person turns on you, it's that traditional self-defense. You have to be in reasonable fear of personal great bodily injury or that person before you can use deadly force. And that's what they have to focus on with Wilson's actions.

BLITZER: Guys stand by. We'll continue the breaking news coverage.

Once again, a decision has been reached by the Ferguson grand jury in Clayton, Missouri. Much more of our breaking news coverage right after this.

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