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CNN Newsnight Aaron Brown
New Video of New Orleans Police Beating Released; White House Dismisses Harriet Miers Withdrawal Rumors; Hurricane Katrina Victims Update; New York Transit Security Hoax Details
Aired October 13, 2005 - 22:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
AARON BROWN, CNN ANCHOR: Good evening again, everyone.
We saw this before. And, when we first saw it, it was plenty shocking enough. But, tonight, there's more.
(BEGIN VIDEOTAPE)
ANNOUNCER: New video of the beating of Robert Davis released, what does it show? Is Davis a victim of police brutality or were these New Orleans cops just doing their jobs?
Wicked and wet weather belts the Northeast -- towns flooded, houses and roads washed away. Is there any relief in sight?
(END VIDEOTAPE)
ANNOUNCER: Live from the CNN Broadcast Center in New York, this is NEWSNIGHT WITH AARON BROWN AND ANDERSON COOPER.
ANDERSON COOPER, CNN ANCHOR: And good evening again, everyone.
Tonight, we are going to focus a lot on the new unedited police beating tape out of New Orleans.
But, first, here's a look at what's happening at this moment.
Today, President Bush spoke by videophone with U.S. forces and an Iraqi soldier in Saddam Hussein's hometown of Tikrit. Mr. Bush praised the soldiers and told them the U.S. will not back down. The soldiers told the president that Iraqi security forces are ready for Saturday's vote on the proposed Iraqi constitution. The White House was then put on the defensive for prepping the soldiers in advance for the talk with President Bush.
We will have more of this in a few moments.
The White House says Harriet Miers isn't going anywhere. It is dismissing speculation that she may ask President Bush to withdraw her nomination to the Supreme Court, amid some sharp criticism from conservatives.
Al Qaeda in Iraq says a letter attributed to Osama bin Laden's top lieutenant is a fake. Through a statement posted on several Islamist Web sites, the Iraqi terrorist group says that Ayman al- Zawahri did not write the note, which mentioned communication and financial problems. The group says the U.S. fabricated the letter, though U.S. officials say they're confident it's authentic.
A smugglers' boat carrying about 30 people from Cuba capsized south of Florida today, as a U.S. Coast Guard vessel tried to intercept it. A 6-year-old Cuban boy drowned. U.S. officials were determining the migrants' immigration status. Cubans stopped at sea are usually sent back to Cuba.
BROWN: We will have more on those stories in the hour ahead.
We begin tonight with the beating of Robert Davis, caught on tape over the weekend in the French Quarter of New Orleans. By now, millions of people have seen the video, and, many, like us, have been left wondering, both by what is seen and what is not. Tonight, there is more to see, another minute or so. We will spend a lot of time on the entire tape tonight.
But, first, a look at the new piece of video.
(BEGIN VIDEO CLIP)
(MUSIC)
UNIDENTIFIED MALE: Get away. Get away from him. Get away.
(MUSIC)
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED FEMALE: (INAUDIBLE)
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: Let him turn over. (INAUDIBLE)
UNIDENTIFIED MALE: (INAUDIBLE)
ROBERT DAVIS, ARRESTED BY NEW ORLEANS POLICE: If you will allow me to turn over, I will!
UNIDENTIFIED MALE: Turn over, man.
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: (INAUDIBLE)
(HORN HONKING)
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: Hey. Hey. Put the cameras away and (EXPLETIVE DELETED) off. Let's go.
UNIDENTIFIED MALE: (INAUDIBLE) Did you get that on camera?
UNIDENTIFIED MALE: Yes.
(INDISTINCT SHOUTING)
UNIDENTIFIED MALE: It makes you proud to be an American, doesn't it?
(INDISTINCT SHOUTING)
UNIDENTIFIED MALE: (INAUDIBLE)
(INDISTINCT SHOUTING)
UNIDENTIFIED MALE: (INAUDIBLE) Put your hand behind your back and stop resisting!
UNIDENTIFIED MALE: (INAUDIBLE)
(END VIDEO CLIP)
COOPER: So, those are all the new pieces of tape that we just saw a few hours ago for the first time.
And whoever said that every picture tells a story only had it half right. In seems that every picture tells many stories. Different people will watch that same tape and see very different parts.
Because they will and because things look different out of sequence and out of context, we'd like you to take a moment to see the tape in full, not the incident in full, because the tape does not show us that, just the tape.
We have invited the attorneys for the three policemen and for Mr. Davis to watch the tape while you are watching.
And then we will get their perspectives as well.
Here's the tape.
(BEGIN VIDEO CLIP)
(LAUGHTER)
(MUSIC)
(INDISTINCT SHOUTING)
UNIDENTIFIED MALE: Whoa. Whoa. Whoa.
(INDISTINCT SHOUTING)
(MUSIC)
UNIDENTIFIED MALE: Get away. Get away from him. Get away.
(MUSIC)
UNIDENTIFIED MALE: (INAUDIBLE) UNIDENTIFIED FEMALE: (INAUDIBLE)
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: Let him turn over. (INAUDIBLE)
UNIDENTIFIED MALE: (INAUDIBLE)
ROBERT DAVIS, ARRESTED BY NEW ORLEANS POLICE: If you will allow me to turn over, I will!
UNIDENTIFIED MALE: Turn over, man.
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: (INAUDIBLE)
(HORN HONKING)
UNIDENTIFIED MALE: Hey. Hey. Put the cameras away and (EXPLETIVE DELETED) off. Let's go.
UNIDENTIFIED MALE: Hey.
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: You should.
UNIDENTIFIED MALE: I don't. I don't. I have been here for six weeks (INAUDIBLE)
UNIDENTIFIED MALE: (INAUDIBLE) Did you get that on camera?
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: It makes you proud to be an American, doesn't it?
(INDISTINCT SHOUTING)
UNIDENTIFIED MALE: (INAUDIBLE) Put your hand behind your back and stop resisting!
UNIDENTIFIED MALE: (INAUDIBLE) man.
(INDISTINCT SHOUTING)
UNIDENTIFIED MALE: I can't (INAUDIBLE) I can't. I can't, man.
UNIDENTIFIED MALE: Oh, God.
UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: Hey, man. Hey, you have got that on film right? He surrendered to them. And then they hit him in the back of the head. And that's when he turned around and started fighting. UNIDENTIFIED MALE: (INAUDIBLE)
UNIDENTIFIED MALE: Did he really?
UNIDENTIFIED FEMALE: Yes, he did.
UNIDENTIFIED MALE: All I saw...
UNIDENTIFIED FEMALE: No. I'm a (INAUDIBLE)
UNIDENTIFIED MALE: OK.
UNIDENTIFIED MALE: (INAUDIBLE) back of the head for no reason.
UNIDENTIFIED MALE: (INAUDIBLE) away. Everybody, go. Smith (ph). S.M. Smith (ph), 1792. Write it down. You got your pen. You got your pen.
UNIDENTIFIED MALE: (INAUDIBLE) ask him?
UNIDENTIFIED MALE: Let's go, folks. Get out. Move. Everybody, move.
UNIDENTIFIED MALE: You videotaping that, bro?
UNIDENTIFIED FEMALE: No. It was good. It was clean. (INAUDIBLE) Rewind it and start it. If you got it from the start (INAUDIBLE)
(CROSSTALK)
UNIDENTIFIED MALE: Turn the camera off and go away!
UNIDENTIFIED MALE: Get on the (INAUDIBLE)
UNIDENTIFIED MALE: Did you see (INAUDIBLE) whole thing?
UNIDENTIFIED MALE: What?
(END VIDEO CLIP)
COOPER: Well, that is the whole videotape as it was released by the Associated Press earlier this evening.
As is always the case, what you see depends at least some on what you believe is there.
BROWN: So, we will talk with both attorneys involved in this, starting with Joseph Bruno, who is the lawyer for Mr. Davis.
Mr. Bruno, good to see you again.
JOSEPH BRUNO, ATTORNEY FOR ROBERT DAVIS: Thank you.
BROWN: There is a -- early in the tape, your client, Mr. Davis, is up against the wall. The officers are trying to pull his arm behind him. And a reasonable person, looking at that tape, might conclude that he is resisting.
So, I wonder if you still would argue, as you did to me the other night, that, at no point, he resisted the officers who were trying to cuff him?
BRUNO: Oh, absolutely.
In fact, and what I -- what I -- one of the things that I'm hearing tonight that I didn't see -- because there's two components to what we are -- what I'm seeing now -- I'm able to hear the voices in the background. And I heard clearly voices in the background say, he didn't start the fight until he got hit in the back of the head. That's what I heard on this tape.
BROWN: And who says that?
BRUNO: So it -- it's -- well, I don't know. It's a voice. It's -- it's one of the voices that I -- that I heard while watching this tape in full.
All of the other, you know, times I have seen the tape, you can't really pick up the audio as well as I was able to pick up the audio tonight. You could hear the -- a woman screaming as well. You know, my -- you will recall my client saying that a woman is screaming, he didn't do anything wrong. Get off of him.
BROWN: Right. Mr. Bruno, just going back to what you just said, if -- if someone there -- if you hear someone say, he didn't start to fight until he was hit in the head, it does suggest that, at some point, he started to fight. And that's a problem for Mr. Davis, isn't it?
BRUNO: Oh, absolutely not.
You -- a police officer has absolutely no right to strike you. A police officer has no right to put his arms on you unless there's some reason for it. I mean, you see, that's where this thing is -- is spinning out of control. You know, he wasn't drinking, but, even if he was drinking, he has to be a danger to the police officers or others before they have the right to put their hands on him.
That's why the police officers have been indicted for battery. They have inappropriately touched this man.
COOPER: Mr. Bruno...
BRUNO: They have used excessive force.
COOPER: Mr. Bruno, it's Anderson Cooper, also in New York, with -- with Aaron. You didn't quite answer Aaron's question, though.
You started talking about what you heard voices say on the street. It might be a danger to pay too much attention to what voices late at night are saying on Bourbon Street, people talking to a cameraman.
In -- in trying to answer Aaron's question, though, as you see the tape now...
(CROSSTALK)
COOPER: ... there's an extra section where Mr. Davis does seem to be resistant to the notion of being hand -- handcuffed, does he not?
BRUNO: I don't -- maybe we can play it again. I -- I don't see -- I don't see what you're referring to. What I saw...
COOPER: Well, let's -- let's -- let's actually play that section.
BRUNO: ... at the beginning of the tape...
COOPER: We can actually play that section.
BRUNO: I would -- yes, because you have...
COOPER: The section...
BRUNO: Yes, I would. One police officer...
COOPER: Right.
BRUNO: ... right in the beginning.
(CROSSTALK)
COOPER: The -- there's the new section that we can show you, where -- or let -- let's try to cue that up in the control room. Here it is -- well, no. No, that's not the section. Let's put up the section where Mr. Davis is still against...
BRUNO: No, right...
COOPER: ... the wall.
BROWN: He's still standing at this point. And they pull his arm around in back of him -- or try and pull his arm around in back of him. And -- and...
BRUNO: No.
(CROSSTALK)
BROWN: I don't presume to know what he's thinking or doing. I'm just telling you that it looks like he's not fully cooperative.
BRUNO: Well, my point is, go all the way back. And you will see -- what I remember seeing is one police officer and Mr. Davis alone. That's what you need to start with.
COOPER: Well, yes. That's how it...
(CROSSTALK) BRUNO: This...
COOPER: That is how it starts. But this is the -- the new piece of tape where -- well, this is the fall to the ground.
BRUNO: Yes. We -- we have seen this.
And the point is that there was no reason to pound the man in the face. One starts to pound someone when one is in some kind of personal danger. The resisting of arrest occurs how? Where the guy refuses to do something he's told to do.
COOPER: Well, this -- this is the new part of the tape in which Mr. Davis -- someone seems to -- they throw -- someone tries to throw a punch at him. They seem to miss his face. But, up to this point...
BRUNO: No.
(CROSSTALK)
BRUNO: They hit...
(LAUGHTER)
BRUNO: They hit -- I don't know. You're -- you're -- you're a human being and someone is -- is throwing a punch at you. Whether he misses or not, what is -- what are you thinking? I -- I...
BROWN: I think, he's trying to hit me in the face.
BRUNO: Yes.
BROWN: Sure.
BRUNO: And that, what -- you know, that -- that's -- you see, that -- what -- what you have got to understand is, is, if you are in the predatory mode, if you -- if you -- if you're in the mode where you will -- where the slightest thing will tick you off -- and these -- that's, I think, what's really going on here.
These guys were like flint. All you had to do was touch them and the spark, and they went in this predatory mode. And they started pounding on the guy. What you're supposed to do is, you're supposed to stay, stop. If the guy doesn't stop, you say, you're under arrest for failing to stop. And then, if a guy -- and you -- and you say, turn around. Put your hands behind your back. You have seen this in the movies a billion times.
That's what you're supposed to do. You don't strike the man first and then say, you're under arrest, and then say, stop. And the reason why you don't, primarily, is because you want to protect the police officer -- officer. You don't touch a person without establishing a basis for the touching, because you want to have the psychological setup for the person's response.
That's why you must tell them what you're going to do. Proper police procedure says, you tell them, all right, I'm now going to -- I'm now going to turn you around. Put your arms behind your back. I'm now going to place the cuffs on you. That's so the person will not get alarmed and will not react, because when you -- when you -- when -- when you are faced with someone who's about to throw a punch at you or who has already struck you, the natural reaction is to go into defensive mode.
BROWN: All right, Mr. Bruno, hang -- hang around for a bit.
BRUNO: Yes.
(CROSSTALK)
BROWN: Let's -- let's -- let's bring Mr. DeSalvo into this.
And I think we have got lots of questions, Mr. DeSalvo. It's good to see you again.
FRANK DESALVO, ATTORNEY FOR NEW ORLEANS POLICE OFFICERS: It's nice to be seen.
BROWN: You said to me the other night, and I think you said to Anderson last night as well, that, at no point, did any of your guys -- you represent the police officers -- punch Mr. Davis in the face. Upon viewing the tape again, all of it again, do you still maintain that?
DESALVO: Yes. I think -- I think there was one -- one glancing blow on the side of the face. Clearly, all the blows were aimed between the shoulder and the head. And some didn't.
But the most important thing in that new tape you showed us -- and it's really nice that you showed it -- is, you see his right hand grabbing on to the frame of that window, not wanting to be cuffed. You see a man clearly not wanting to come into compliance. It's...
COOPER: At...
DESALVO: It's that simple.
COOPER: At this point, though, couldn't it be argued, which I think is the argument that Mr. Davis' attorney is making, is that he has already been struck multiple times on the back of his head and his neck. Someone just tried to punch him in the face. Is it understandable why he might not want to put himself in handcuffs with these -- with these three officers?
DESALVO: All he had to do was put his right hand behind his back, so he could have been cuffed with his left hand and it would have ended.
Mr. Davis was belligerent. He was resisting. He didn't want to do what he was supposed to do. He had to come into compliance. And, as far as I know, they don't teach police procedures by going to the movies and to see how it's done. That's the most ridiculous thing I ever heard. COOPER: Well, let -- let me ask you...
DESALVO: We don't -- we don't judge what police officers do or not do by movies.
COOPER: Let me ask you what you have said in the past. You have said that Mr. Davis sustained his -- his injuries to his head and his face by falling on the ground and hitting his face on the ground.
That's what you told me last night. That's what you have said in other interviews. On this tape -- and we can cue it up to the fall -- Mr. Davis' head is basically locked in the grip of the man in a black shirt. And -- and Mr. Davis' face actually doesn't touch the ground when he falls. It's actually the body of the officer that touches the ground. Mr. Davis' -- maybe his lat muscle touches the ground. But there you see it. His head is not touching the ground.
So, how did Mr. Davis start bleeding so profusely once he was already down?
DESALVO: Look at his face on the way down. You don't see any blood.
COOPER: Right. But you said before -- what you...
DESALVO: You can't just look at one part.
COOPER: But what you...
DESALVO: You got to look at the whole thing.
COOPER: But what you have been arguing for days now is that his face was injured by hitting the pavement on his way down. We have just seen on...
DESALVO: Look at him right now.
COOPER: ... this tape...
DESALVO: Do you see any blood on his face? Look at him right now. Do you see any blood on his face?
BROWN: Mr. DeSalvo, I think you're making our point, with all due respect.
DESALVO: Well...
BROWN: Excuse me. I'm sorry. Honestly, I will let you finish.
It's just -- as I look at this tape, it is not -- it is not the fall. I don't know what causes the bleeding, but it's not that fall, because, here, on his head...
DESALVO: Well, what about -- what about when he's turning over? You don't see anybody hitting him anymore.
COOPER: Well, actually, that's not true, sir.
(CROSSTALK)
COOPER: No, that's not true. What we have just now seen on this tape, for the first time, you see an officer punching him twice when he's down. And, in fact, we see an officer kicking him.
DESALVO: And...
COOPER: Did you not see that?
DESALVO: Where do you see an officer kicking him?
COOPER: Well, let's get that segment.
DESALVO: Where do you see an officer kicking him?
COOPER: Oh, well, there you see the punch, right there. That was one punch right there.
DESALVO: Yes. That's when they were trying...
COOPER: And...
DESALVO: That was on -- that's when they're trying to bring the arm into compliance. And we told you that before.
COOPER: Well, OK. So...
DESALVO: They hit him in the shoulder after he was down. They try to bring it around.
COOPER: Well, we don't know where they're hitting him...
(CROSSTALK)
DESALVO: ... told in a previous interview.
COOPER: ... because you can't see that. Here's the kick.
Now, there's the one kick. Did you see that?
DESALVO: Where? I didn't see it.
COOPER: OK. Let's show it again.
(CROSSTALK)
COOPER: Let's cue it up again.
BROWN: Sir, it comes from the left side of the screen. There we go.
COOPER: There we go. That will help.
BROWN: That would be a kick. COOPER: Do you know? Was that -- was that a kick to the head or the face or the shoulder?
DESALVO: It looks like a step down to me. It didn't look like a kick.
COOPER: What's a step down?
DESALVO: It looked like, pick my foot up -- I pick my foot up and put it down to stop him from moving. I didn't see a kick.
BROWN: Gentlemen, Mr. Bruno, Mr. DeSalvo, if you could stay with us for a second, we need to take a quick break here to stay on time. We will come back. There are still questions for both of you. We appreciate your patience.
And our coverage and this program continues in just a moment.
(COMMERCIAL BREAK)
BROWN: As you look at the tape of the incident in the French Quarter last night, we're talking with the lawyers for the three police officers who have been charged and for the man who is being punched.
Mr. DeSalvo, I said earlier, a reasonable person might conclude that Mr. Davis was, early on in this, resisting his arrest, or certainly not totally compliant.
It seems to me, a reasonable person at this point, looking at this tape, where they're trying to turn him over, might conclude that the cops are totally out of control here. You have got people sitting on him. You have got a guy who has got a hammerlock on his head, or a choke-hold on his head, whatever you call it. You have got someone else on his feet. He couldn't comply if you gave him $10 million at that point, Mr. DeSalvo.
DESALVO: Have you ever tried to cuff a man that didn't want to be cuffed?
BROWN: Well, Mr. DeSalvo, honestly...
DESALVO: It can't be done.
BROWN: Respectfully...
DESALVO: Not by yourself.
BROWN: Respectfully, sir, that's not the question.
The question is, even if he tried to comply, to roll over on his stomach, so that they could put the cuffs on him, even if he wanted to do that at that point, he couldn't physically have done it.
DESALVO: All he had to do was cry uncle, move his arm behind him and say, I'm stopping. Stop. It's over. He didn't do that. He continued to resist.
COOPER: So, at this point, what did -- what...
DESALVO: And, if -- if you go back, I mean, he was hanging on to that -- that -- that rail of that -- that -- that window, the grate of that window, not wanting to give that hand up.
COOPER: And though...
(CROSSTALK)
DESALVO: And, before that, it was in his waistband.
COOPER: At what point, though, does he start bleeding, in your opinion? Because what you have been arguing now for days is that it was the fall that hit his head and he started him to bleed. Clearly, his head was protect...
DESALVO: We know...
COOPER: What -- what -- what we see now is, his head was protected by one of the officers, because it was in a lock. He didn't hit his head on the ground. He's now been kicked or stepped down on once and punched at least once while on the ground. Did that cause the bleeding?
DESALVO: Well, I don't know what caused the bleeding.
COOPER: There's the punch.
DESALVO: But I -- but I do know this. On the way down, you did -- that's to the back -- you didn't see any blood in his face.
COOPER: Yes, you're right.
DESALVO: And what they're doing now is still -- is still trying to get the arm behind him.
COOPER: But where did all the blood come from?
DESALVO: Once his arm is behind him, once -- well, it came from his nose.
COOPER: OK. Well...
DESALVO: That's where it came from.
COOPER: So who hit his nose?
(LAUGHTER)
DESALVO: I don't know. You tell me.
COOPER: Well, I don't know. For days, you have been saying it was the sidewalk that did it. Clearly, that is not the case. DESALVO: It may very well be.
COOPER: OK.
DESALVO: It may very well be. Do you see any blood there?
COOPER: One other question. When -- before he is -- when -- in the first -- when the first -- when this tape first begins -- let's put back where the tape first begins...
BRUNO: He's kick...
COOPER: Within 15 seconds of this tape beginning, Mr. Davis -- Mr. Davis is struck three or four times by the officer in the back of the head, the upper part of the neck.
Do you still maintain...
DESALVO: Right.
COOPER: I mean, we have talked to the superintendent's office. I have personally talked to New Orleans police officers off the record. They all -- who went through the police academy there. None of them say -- in fact, they all say it is not police procedure to hit somebody in -- punch them in the back of the neck or in the head. It's too close to the spine. It is simply too dangerous.
Are you really, seriously, still maintaining that that is proper police procedure?
DESALVO: Proper police procedure is to strike between the shoulders and the head, the shoulders and the neck. That's where the pressure point is.
COOPER: OK. Well, there -- there was no shoulder involved...
(CROSSTALK)
DESALVO: The situation is...
COOPER: There was no shoulder involved in these four punches.
DESALVO: It's...
COOPER: I mean, it was the neck or the lower part of the head. Is that proper police procedure? And, if so, where...
DESALVO: It was.
COOPER: ... is your proof?
DESALVO: Well, you want me to have it right here?
COOPER: Well, yes. You have been saying for days...
DESALVO: What I could tell you is -- well, did you tell me to bring proof or did you tell me to come look at this tape? I can only do what you tell me to do.
COOPER: Well, do you have a book that says...
DESALVO: If you look at that tape...
COOPER: ... that is proper police procedure?
DESALVO: If you look at that tape, they didn't -- they were striking him. And they were striking him and they were continuing to strike him until he was either going to give the arm up and show his hand -- they don't know what's inside that hand. They don't know whether they're going to be shot with a weapon or stabbed with a knife or anything.
And they have the right to continue to do that. You know what happens -- when -- when -- when a police officer gets killed in a line of duty in a situation like that, we mourn his death. But when he does what he has to do to stay alive, then we want to scorn him. And -- and that's where your problem lies.
BROWN: That's why...
(CROSSTALK)
DESALVO: If there had been a weapon involved...
BROWN: I'm sorry. That's -- that's exactly why these cases are very difficult to prosecute.
So, Mr. Bruno, let me give you the last word.
You don't have to prosecute this case. That's not going to be your job...
BRUNO: No.
BROWN: ... except in so far as there might be a civil case at some point.
But do you believe that the officers, A, were undercharged with misdemeanor battery, and, B, that there's enough evidence on the tape alone to successfully gain a conviction?
BRUNO: I think that there is enough evidence alone to gain a conviction.
And I really -- you know, as to how they should be charged, I have to tell, I think that's a decision better left to the city attorney. What we have indicated to you guys in the past is, our interest is simple. We're concerned about the city. We're concerned about Mardi Gras and your public perception of us. We don't want you to be afraid to come to New Orleans.
Let me just make two quick notes. One, look at the age of these guys. That's what's significant here. Number two, you can't resist arrest until you're told you're under arrest. In other words, there has to be something that would indicate to the officer that you are going to resist, meaning you're not going to comply. Step one, then, is to tell the person, stop, turn around or whatever.
This tape shows, that police officer, one on one, he's on him from the beginning. There is no opportunity for this guy to arrest because -- I'm sorry -- to resist -- because they never told him he was under arrest.
COOPER: Gentlemen...
BRUNO: But the age thing is significant.
COOPER: Gentlemen, I don't think we're going to get anything decided tonight. But it is -- it is great to get both of your -- your viewpoints on this tape. This is the first time we're seeing this tape.
Frank DeSalvo, it's always good to talk to you.
And Joseph Bruno as well.
Thank you very much, gentlemen.
BROWN: It points out what a jury ultimately, we presume a jury, will ultimately have to decide. They'll hear two versions of the same event.
And Mr. DeSalvo, in particular, will frame -- because he'll be in court -- he will frame that defense as you have just heard him do, again and again, frame by frame, officer by officer.
Our coverage continues, the program continues, after a short break.
This is NEWSNIGHT on CNN.
(COMMERCIAL BREAK)
AARON BROWN, CNN HOST: Well, it continues to be rainy in the Northeast and that continues to cause problems. We'll have that story coming up in a moment. First to Atlanta, some of the other stories that made news today. Christi Paul is there for us tonight. Good evening.
CHRISTI PAUL, CNN ANCHOR: High, Aaron. Senate Majority Bill Frist subpoenaed today by the Securities and Exchange Commission. Federal regulators want Frist to hand over documents relating to a sale of stock in a healthcare company his family helped build. Frist sold the shares just days before the stock value plunged.
In Washington, a new spy service for America. The CIA's Directorate of Operations no longer exists replaced by the National Clandestine Service which will manage covert officers of the CIA as well as those in the Defense Department, FBI and other agencies.
Of course, we can't tell you who will be leading this new service. He's still undercover so his name remains a secret.
Tomorrow, Sony Pictures, however, announces the actor of who will replace Pierce Brosnan as the world's most famous celluloid secret agent. Several British tabloids are predicting it will be this man, British actor Daniel Craig. He would be the first blonde 007.
And wedding lists may not just be a state of mind. A new Census Bureau study finds regional differences in when we marry. Couples on the East and West Coast tend to get married later. Southerners are the least likely to live together before marriage.
And Anderson, apparently a lot of people out there willing to take a leap of faith.
BROWN: Christi, thank you, I was so close to the 007 job and it didn't come through.
PAUL: I was wondering about that.
BROWN: I was very close..
COOPER: Would have been good.
Ahead tonight. What happens when the case of the taped beating goes to court.
Later, the people brutalized by Katrina and still traumatized by the uncertainty of things to come. From New Orleans and New York and points in between, this is NEWSNIGHT.
(COMMERCIAL BREAK)
COOPER: It isn't always the way it seems even if you see it on videotape. Tonight, with the release of the full length tape shot by an Associated Press TV crew. They nation saw police officers beating a retired schoolteacher police officers, punching him several times on a French Quarter street in New Orleans. Now the beating victim and the police officers involved all face criminal charges. What we have learned, however, from past beating cases is when presented to a jury, the tapes often end up looking very different.
(BEGIN VIDEOTAPE)
COOPER (voice-over): The pictures are painful to look at. Sixty-four-year-old Robert Davis accused by police of public intoxication being beaten on the streets of New Orleans. Two of the cops were charged for battery of beating and a third faces the same charge for shoving a journalist filming the scene. The officers' attorney says there's more to the incident than meets the eye.
FRANK DESALVO, POLICE OFFICERS' ATTORNEY: Obviously they were trying to arrest the man. He was up against the wall and he was resisting and what happened before that was not on tape.
COOPER: Robert Davis tells a different tale.
ROBERT DAVIS, BEATEN BY POLICE: I was sucker punched and thrown against the wall.
COOPER: In court, the police officers' attorney, Frank DeSalvo will have to try to get a jury to see the tape as he sees it. An uphill battle John Barnett knows all too well.
JOHN BARNETT, DEFENSE ATTORNEY: My first thought was when I saw it on television was is that the lawyers in that case are going to have a very difficult time.
COOPER: Barnett defended the officers involved in perhaps the most famous videotapes police beating case. The victim was Rodney King. In 1991, three Los Angeles police officers kicked, stomped and beat him batons while their supervisor stood by. Their actions were captured on videotape and broadcast over and over again. Despite a public out cry, Barnett was able to use the tape to his advantage in the courtroom.
All but one of the cops were acquitted of all charges. Barnett says that's because the tape may have told the story but it didn't tell the whole story.
BARNETT: One portion of the tape that was redacted from the television coverage was the very beginning, when Rodney King, after having been tazed, got up and charged officer Powell and he actually had his hands out in a manner as though he was going to strangle Officer Powell.
COOPER: While that argument worked with an all-white Simi Valley jury, it didn't play well with a more diverse federal court jury and two of the cops were later convicted on civil rights charges.
Eleven years later, another police beating, this time in Inglewood, California. Police Officer Jeremy Morris was caught on camera slamming 16-year-old Donovan Jackson against the hood of a car and then punching him in the face. Morris was charged with assault and after two trials and two hung juries, the charge was dropped.
Again, John Barnett was the defense attorney and again he said it wasn't what the tape showed but what it did not show that proved important in the end.
BARNETT: When Donovan Jackson refused to obey orders and actually attacked another officer, then their concerns were heightened and I also knew that before the punch was delivered that Donovan Jackson had grabbed my clients' genitals.
COOPER: It's hard to imagine there's much of this beating we haven't seen, but John Barnett says in this case as well it could all come down to how the jury interprets the tape.
BARNETT: And we don't see what the officers saw and we don't hear what the officers heard. And we don't know what went on before this even started and we don't know what the subject is saying at the time and so it's premature to judge the actions of the officers.
(END VIDEOTAPE) COOPER (on camera): CNN senior legal analyst Jeffrey Toobin has been watching this new tape and so has William Gaut, a former police captain Alabama who is also an instructor at the police academy there and now is an expert witness in cases like these. Good evening to both of you.
Jeff, let's start off with you. Anything new on the tape that you saw?
JEFF TOOBIN, CNN ANALYST: Well, just to see the entire duration is what's interesting. And it goes on for a long time you can see that there is grounds for a defense there. He is not handcuffed at any point. And the argument the cops will certainly make over and over again is that, look, as long as he wasn't handcuffed, he was a threat to us so we had to do what we needed to do to subdue him.
COOPER: Mr. Gaut, how about you? Anything new that you saw?
WILLIAM GAUT, POLICE MISCONDUCT EXPERT: Yeah. This is my first view of the entire tape. I see lots of things there. Just a second ago, after the punches were delivered, his left arm pretty obviously is pulled down and pulled behind his back by one officer there. Reminds me of an old saying we had in the South, you could put lipstick on a pig. In the end, it's still a pig.
BROWN: And the significance of that the way you see it, I see his arm coming back also is at that point, at that point they had him under control?
GAUT: It's hard to tell from the video whether he's actually under control at that point. But his arm ...
BROWN: I'm sorry. That's the same point. Now, they're starting to punch him again. But that's the same point it seemed to me he was less than completely compliant. As a citizen, do I have a responsibility here to be absolutely compliant or take the consequences of not -- of not being so?
GAUT: No. That's the problem incidents like this. Is that too many times police officers don't have a clear understanding of exactly what their powers are or, more particularly, what their limitations are, as well as citizens not fully understanding what they can and can't do, in terms of resisting orders.
I heard one attorney -- I heard one attorney earlier say something about you can't resist arrest until you're actually placed under arrest. And he's exactly correct. Someone who is not placed under arrest, never told or given a lawful command, it's pretty hard for him to resist.
TOOBIN: What's so difficult ...
GAUT: Something that's unlawful.
TOOBIN: About trying these cases from the prosecution's point of view, the defendants, the police officers almost have always testified themselves. And so they tell the jury, at this second, I was thinking this, at this second I was thinking that.
COOPER: That's how it was done, lawyers break it down individual by individual.
TOOBIN: Person by person and second by second for each person, so the prosecution is in the position of saying, well, look, you're lying. At every step of the way. We know better than you. We who are not police officers who don't understand the danger of the job, are going to second-guess you. And that's why juries are reluctant to do that because they don't want to second-guess.
BROWN: Mr. Gaut, let me throw out a theory here, tell me what you make of this. The way they handled this was a complete mess. They screwed it up, they didn't do it right, they didn't do it by the book but they did not commit a crime.
GAUT: I don't know. In the video there, the -- especially the officer who is pretty forcefully with his fist punching the subject in the back of the head three, four times, I'm -- from my experience that crosses that magic line from being a good guy to being a criminal, criminal assault and battery.
BROWN: I'm sorry. That's a point, Jeffrey, you were making earlier, we tend to look at this in totality but a jury will be asked to look at this each individual officer by each individual officer. The fact one officer does one thing doesn't mean all officers did everything.
TOOBIN: And I think Mr. Gaut is exactly right. The worst part of this tape and the worst police officer in the most trouble is the one who threw that punch. Because that seems like the most indefensible.
COOPER: Mr. Gaut, every time I talk to Frank DeSalvo, the attorney for the police, I am going to have proof that it is taught in the police academies that is proper procedure to punch someone in the back if the neck or the head or the upper shoulder as he keeps calling it. You were an instructor in the academy in Alabama. Is it possible that's taught somewhere in some police academy?
GAUT: No. That's a play on words. If you listen to what the attorney is saying, he is saying the wording correctly, officers are taught to strike and it is a pressure point between the shoulder and head. The area they're talking about is the clavicle, it's from the shoulder point from the clavicle to the collarbone. It does not encompass the portions of the neck and head. It's actually that area between the end of the shoulder and where the neck connects to the shoulder. And that in fact is a pressure point.
But that's not what I'm seeing on the tape. He's pretty clearly being punched in the back of the head.
BROWN: Gentlemen, I suspect we'll call on both of you again before this is all over. Thank you very much. Mr. Gaut, Jeffrey, thank you. Up next, a movable city of hotel rooms and trailer parks and families of Katrina trying to make them a home, how they're doing. We'll check in on them.
And the terrible rains of the northeast, seven days in the making, creating a mess in parts of the area. We'll check out that too, because this is NEWSNIGHT.
(COMMERCIAL BREAK)
BROWN: There's a photograph, a now famous one taken during the Great Depression. It shows a migrant worker sitting in a tent in a field in California. She has a child on each arm, a baby asleep on her lap. She is looking off into the distance, and there is a lifetime written on her face, all 32 years of it. Storms, whatever kind of storms will do that. They still do. Here's CNN's Candy Crowley.
(BEGIN VIDEOTAPE)
CANDY CROWLEY, CNN CORRESPONDENT (voice-over): In a FEMA trailer park just north of Baton Rouge alongside a gravel road inside one of hundreds of identical units, three-month old Arthur Collins (ph) sleeps.
GENEVIEVE COLLINS, DISPLACED BY KATRINA: He'll sleep through it all. Not a care in the world.
CROWLEY: Except for Arthur, sleep does not come easily in the Collins family and they are not alone. Beneath the rubble, below the waters, there is the unseen damage of Hurricane Katrina.
In a poll of people who sought help from the Red Cross after Katrina, CNN/"USA Today" Gallup found 61 percent have trouble sleeping, 63 percent feel depressed. Though they are far-flung now. The respondents come from three states, Alabama, Mississippi, Louisiana.
And as Katrina rolled through their homes, more than half, 53 percent were afraid they would die. That moment came for the Collins and their five kids, ages 14 to then six week old Arthur at the convention center.
COLLINS: On the third or fourth night it got so terrible - just where you had to lay out and sleep, we went outside and slept outside. We were almost at our wits end.
CROWLEY: Since they fled New Orleans, the Collins have been in six different places. This trailer is heaven, a place to be alone as a family after weeks of Katrina nomads in motels, churches and shelters, struggling with circumstances and feelings.
COLLINS: Anxiety, a sense of worthlessness to my kids, like I wasn't the best I can be and I wasn't a good provider to them because they look up to me to be the mom. And I just felt like that was taken away from me. CROWLEY: Sixty-six percent of Katrina's victims say they feel anxious. More than 80 percent say their home was damaged or destroyed and one in four needs a job and when asked what they most need, money tops the list.
Most are at least somewhat worried about the immediate future but feel better about the prospects five years from now.
COLLINS: In five years, I might be sipping on margaritas in the Bahamas, girl. I will be well-established within five years if the Lord feels the same. He is going to guide my path.
CROWLEY: One in four of Katrina's victims say it's getting better.
COLLINS: I'm getting to be a good mother again. I just felt so out of place. I felt like this isn't me and what am I going to do.
CROWLEY: In a FEMA trailer park, just north of Baton Rouge, on a gravel road, Arthur Collins' mom dances.
COLLINS: I'm happy.
CROWLEY: Candy Crowley, CNN, Washington.
(END VIDEOTAPE)
BROWN: Just a couple quick footnotes here. That CNN "USA Today" Gallup poll, Candy refers to was conducted in cooperation with the American Red Cross. And as for the 61 percent of victims who say they have trouble sleeping, just to put that in perspective, according to the National Sleep Foundation 48 percent of Americans, almost half, report insomnia occasionally, 22 percent experience insomnia every night.
COOPER: You and I know what that's like.
BROWN: I do.
COOPER: Just ahead on the program, yet another part of the world that is simply no place to be tonight and the rain just keeps on falling. That story when NEWSNIGHT continues.
(COMMERCIAL BREAK)
COOPER: Water under the bridge is history. Water over the bridge is what you're about to see, is current events, it's the soggy reality, two inches of rain today on top of five inches yesterday and rain before that even. Ten people have died so far, at least three are missing. It isn't a hurricane, but it is trouble in places. Reporting for us tonight, here's CNN's Rob Marciano.
(BEGIN VIDEOTAPE)
ROB MARCIANO, CNN METEOROLOGIST (voice-over): Racing floodwaters thrash trees, cars and homes throughout many parts of the soggy Northeast. Four people are still missing in New Hampshire and thousands of sandbags get ready for more flooding.
And in northern New Jersey, high water rescue vehicles searched flooded neighborhoods in Oakland (ph). Many roads under water, voluntary evacuees under way. Emergency crews in Fairfield major flooding of the Passaic and Pompton Rivers.
LT. STEVEN GUTKIN, FAIRFIELD, NJ, POLICE DEPARTMENT: At that point, we begin evacuations, use fire department boats and police boats and actually go to those areas and offer to bring residents out to a shelter that's already been opened, make other arrangements for them and help them to get to other family in the area if possible.
MARCIANO: Homeowner Laura Barry of Picuanic (ph) Township says the knee-deep water is nothing new
Do you have flood insurance?
LAURA BARRY, FLOODED HOMEOWNER: Yes, I do. From the day I bought the house I was told I needed flood insurance and we've had it ever since.
MARCIANO: Only those with webbed feet seem to be taking things in stride. Barry is not looking for sympathy.
BARRY: Don't feel sorry for me. It's just nature. There's nothing you can do. Absolutely nothing you can do about this. It's going to happen.
(END VIDEOTAPE)
MARCIANO (on camera): The only thing you can, really, is get away from it. As the waters begin to surround us here as we sit in Wayne Township, New Jersey a place where three counties converge and two rivers collide and make their way toward the New York Bay and the Atlantic Ocean. The Pompton River and the Passaic River both of which are rising tonight. The Pompton is actually flooding right now and they're not expected to crest, over flood stage until late tomorrow night into Saturday morning as we can expect another two to four inches of rain on top of what has already fallen.
It's just beginning to pick up, we had a little bit of a break earlier today, Anderson, but more rain now coming onboard tonight as that area of low pressure starts to crank in yet more Atlantic moisture. They could use a bit of break but doesn't look like it's coming until likely the weekend.
COOPER: It really doesn't look like it. Rob, thank you very much for that. The last thing people in New Jersey want is more rain.
BROWN: But we had such a dry summer, it's weird. We've gotten it all in about a week.
Much more ahead tonight, including a look at how the president is sending a message about Harriet Miers religion in so many words, sometimes without saying the words and new perspectives on the beating of Robert Davis as well, what we're seeing on the piece of tape and what you can hear and we'll let you hear.
We'll be back in a minute or two, take a break first. This NEWSNIGHT on CNN.
(COMMERCIAL BREAK)
BROWN: Welcome again to NEWSNIGHT. I'm Aaron Brown.
COOPER: I'm Anderson Cooper. You've seen the New Orleans police beating tape, but tonight, the parts of the tape you haven't seen and haven't heard.
BROWN: New video of the beating of Robert Davis released. What does it show? Is Davis a victim of police brutality or were these New Orleans cops just doing their jobs?
Charges of Bush cronyism at FEMA. And now he's appointed his former personal attorney to sit on the highest court of the land. Tonight, a list of President Bush's questionable nominations and why sometimes in Washington, it's not your resume that counts, it's who you know.
Were New York's rich and well connected tipped off to the subway terror threat even before the city's mayor? Tonight, how did this information get leaked? And why were the privileged given advanced notice before everyone else?
Live, from the CNN Broadcast Center in New York, this is NEWSNIGHT, with Aaron Brown and Anderson Cooper.
COOPER: All those stories ahead on the program tonight, but first a look at what's happening at this moment.
The mayor of New Orleans tonight wrapped up a two-day motorcade blitz of shelters in Louisiana. Ray Nagin urged thousands of displaced residents to come back, saying there are jobs and opportunities in the hurricane ravaged city. They mayor promised to give those who agreed to work in the city priority treatment for housing.
A 6-year old Cuban boy drowned today after a smuggler's boat, carrying him and 30 other people capsized off the coast of south Florida. The Coast Guard says it first tried to intercept the boat, but it pulled away. Twenty minutes later, the Coast Guard crew found the boat capsized with people clinging to the boat or in the water. When the boat was righted, the youngster was found inside.
Tonight there is almost no help left for finding survivors of Saturday's earthquake in Pakistan, prompting some international rescue teams to prepare to pull out. Tens of thousands of people died in the worst natural disaster to hit the south Asian country. Relief workers are holding mass burials for those who were found.
BROWN: That's what's happening at this moment. We begin the hour with what is now being simply called the tape. It is perhaps the only simple thing about the whole affair. It shows a retired school teacher being beaten during an arrest in the French Quarter of New Orleans over the weekend, but it certainly does not reveal the entire incident.
We now can show you about another minute of the tape, made public for the first time tonight by Associated Press, which shot the tape. It's reported for us this evening by CNN's Dan Simon.
(BEGIN VIDEOTAPE)
DAN SIMON, CNN CORRESPONDENT (voice-over): The entire videotape shot by the agency's photographer runs five minutes. The extended footage shows a little more of what happened at the beginning of the incident. We see a woman try to communicate something to the officers, before she is shooed away by the mounted policeman. This appears to be the woman Davis has publicly asked to come forward to corroborate his story.
After the officers strike Robert Davis, the new tape shows the FBI agents watching the struggle for at least 15 seconds before they assist in the eventual takedown.
Moments later, according to one law enforcement trainer who watched the tape at CNN's request, it appears the officers are working against one another. One holding Davis in what's called a leg lock; the other, sitting on his back, effectively pulling and pushing Davis in opposite directions.
And listen carefully, this could be significant in court. You can hear the 64-year old yell, quote, "If you allow me to turn over, I will." It also appears one of the officers delivers a kick to Davis. Bear in mind, he is already on the ground restrained.
Later, a witness can be heard, saying, quote, "Did you get that on film?" He surrendered to them. They then hit him in the back of the head, and that's when he started to fight.
As the drama continues to unfold, it's clear at least two additional officers -- state policemen from Louisiana and New York are also at the scene. It's not clear in what capacity. Then, this chilling cry, apparently from Davis.
ROBERT DAVIS, VICTIM: Oh, God. Almighty God.
SIMON: At the very end of the complete tape, there are a few more seconds of the handcuffing of Relief Worker Calvin Riles (ph), who told CNN he wanted to report the alleged brutal treatment of Davis, but was told to mind his own business.
(END VIDEOTAPE)
SIMON: Aaron, like you, I've seen this tape many times now. And it seems to me, if there's anything that helps the officers, it's that Davis does appear to struggle. He does not want to be taken into custody. So that might help the officers. And something else worth mentioning, and I consulted a lawyer on this -- this is a municipal court case. So if this does go to trial, it will be handled by a judge and not a jury, Aaron.
BROWN: And actually, that's significant in several ways. A lot of times police officers in New York -- I'm not sure this is necessarily true in place -- prefer to be tried by a judge, rather than a jury. They feel like they get a better hearing that way. Is that the case in New Orleans? Do you know?
SIMON: Well, I would suspect these officers would probably want to be tried by a judge in New Orleans, because after all, you know, this New Orleans Police Department doesn't have the greatest reputation in town, and if you have a jury of your peers, that may not help the officers, but again we've been told that a judge will handle a trial if in fact it does to get to a trial, Aaron.
BROWN: Thank you. That's a good point. We've talked about juries a lot, Dan, thank you, very much. Dan Simon, down in New Orleans.
COOPER: Earlier, I spoke with Joseph Bruno -- we both spoke to Joseph Bruno, who is representing Mr. Davis. This was his reaction to what he saw on the tape tonight.
(BEGIN VIDEOTAPE)
BROWN (voice-over): If you hear someone say he didn't start to fight until he was hit in the head, it does suggest that at some point he started to fight. And that's a problem for Davis, isn't it?
JOSEPH BRUNO, ATTORNEY FOR ROBERT DAVIS: Oh, absolutely not. You -- a police officer has absolutely no right to strike you. A police officer has no right to his arms on you unless there's some reason for it. I mean, you see, that's where this thing is spinning out of control. You know, he wasn't drinking, but even if he was, he has to be a danger to the police officers or others before they have the right to put their hands on him. That's why the police officers had been indicted for battery. They've inappropriately touched this man. They've used excessive force.
COOPER: Mr. Bruno, it's Anderson Cooper, also in New York with Aaron. You didn't quite answer Aaron's question though. You started talking about what you heard voices say on the street. It might be a danger to pay too much attention to what voices late at night are saying on Bourbon Street, people talking to a camera man.
In trying to answer Aaron's question, though, as you see the tape now, there's an extra section where Mr. Davis does seem to be resistant to the notion of being handcuffed, does he not?
BRUNO: I don't -- maybe we can play it again. I don't see what you're -- what I saw --
COOPER: Well, let's actually play that section.
BROWN: He's still standing at this point and they pull his arm around in back of him -- or try and pull his arm around in back of him. And I don't presume to know what he's thinking or doing. I'm just telling you that it looks like he's not fully cooperative.
BRUNO: The point is, that there was no reason to pound the man in the face. One starts to pound someone when one is in some kind of personal danger. The resisting of arrest occurs how? Where the guy refuses to do something he's told to do.
(END VIDEOTAPE)
BROWN: That's Joseph Bruno, who represents Mr. Davis. Frank DeSalvo represents the New Orleans police officers. He watched the tape. Obviously he sees it differently and we talked to him as well.
(BEGIN VIDEOTAPE)
COOPER (voice-over): You have said that Mr. Davis sustained his injuries to his head and his face by falling on the ground and hitting his face on the ground -- that's what you told me last night, that's what you've said in other interviews. On this tape -- and we can queue it up to the fall, Mr. Davis's head is basically locked in the grip of a man in a black shirt. And Mr. Davis's face actually doesn't touch the ground when he falls. It's actually the body of the officer that touches the ground. Mr. Davis's -- maybe his lat muscle touches the ground, but there you see it -- his head is not touching the ground. So how did Mr. Davis start bleeding so profusely once he was already down?
FRANK DESALVO: Look at his face on the way down. You don't see any blood.
COOPER: Right. And but you said before when
(CROSSTALK)
COOPER: But what you have been arguing for days now is that his face was injured by hitting the pavement on his way down. We've just seen --
DESALVO: Look at it right now. Do you see any blood in his face? Looking right now, do you see any blood in his face?
BROWN: Mr. DESALVO, I think you're making our point, with all due respect. That it's not the fall -- excuse me, I'm sorry -- obviously I'll let you finish. It's just, as I look at this tape, it is not the fall -- I don't know what causes the bleeding, but it's not that fall. You can see it on his head.
DESALVO: Well what about when he's turning over? You don't see anybody hitting him anymore.
COOPER: Well, actually that's not true sir. No, that's not true. What we have just seen now on this tape for the first time, you see an officer punching him twice when he is down. And in fact, we see an officer kicking him. Did you not see that?
DESALVO: Where do you see an officer kicking him? Where do you see an officer kicking him? COOPER: Well, let's get that -- well there you see the punch, right there. That was one punch right there.
DESALVO: That's when they were trying -- that was on -- that's when they're trying to bring the arm in compliance and we told you that before --
COOPER: Well, okay --
DESALVO: It was his shoulder, after he was down, they tried to bring it around.
COOPER: Well, we don't know where they're hitting him. You can't see that. Here's the kick now. There's the one kick. Did you see that?
DESALVO: Where? I didn't see it.
COOPER: Okay, let's show it again.
BROWN: Sir, it comes from the left side of the screen. There we go.
COOPER: That will help.
BROWN: That would be a kick.
COOPER: Do you know, was that a kick to the head or the face? Of the shoulder?
DESALVO: That looked like a step down to me. It didn't look like a kick.
COOPER: What's a step down?
DESALVO: When I pick my foot up -- if I pick my foot up and put it down to stop him from moving. I didn't see a kick.
(END VIDEOTAPE)
COOPER: Never really got too deep of information exactly what a step down entails.
BROWN: Something less than a kick and more than a love tap, I think.
COOPER: Apparently so.
BROWN: Pretty much.
COOPER: Coming up tonight, charges of cronyism in the White House. The latest linked to the nomination of Harriet Miers to the Supreme Court. A look at the potential political fallout.
Plus, believe it or not, some New Yorkers actually found out about last week's terror threat before New York's mayor did. How did that happen? A leak within Homeland Security. That story when NEWSNIGHT returns.
(COMMERCIAL BREAK)
COOPER: We're talking about New Orleans a lot tonight. On to Washington now and all the noise over Supreme Court Nominee Harriet Miers. The White House today said that Miers won't succumb to conservative criticism and withdraw her nomination. It says anyone who knows her credentials would not even suggest such a thing.
President Bush, of course, knows her credentials very well, since she's a friend of his. To some, that of course, is the problem. And they say Miers is nothing more than a crony.
But is that really a big deal? CNN Congressional Correspondent Joe Johns looks into it.
JOE JOHNS, CNN CONGRESSIONAL CORRESPONDENT: The word crony, essentially means old friend. Nothing wrong with that unless old friends, with questionable credentials get hired to protect the public.
Ex-FEMA Chief Michael Brown triggered all this when he lost his job and critics blamed him for botching the federal response to Hurricane Katrina.
(BEGIN VIDEO CLIP)
NANCY PELOSKI, REPRESENTATIVE, HOUSE DEMOCRATIC LEADER: Meanwhile the Katrina response remains plagued by cronyism -- cronyism that gives jobs to the friends of the Bush administration, without qualifications for those jobs.
(END VIDEO CLIP)
JOHNS: Now political appointees are taking a lot of flack. And the president's pick for Supreme Court, Harriet Miers, has even been tagged with a crony label.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Harriet, thank you for agreeing to serve. Congratulations.
(END VIDEO CLIP)
JOHNS: But there's nothing new about putting your friends in top jobs. John F. Kennedy put his brother in charge of the Justice Department. Bill Clinton handed healthcare policy to his wife. And some say there's nothing wrong with it.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: You do not want to undercut the ability of a president to do his job or undercut the ability of the president to carry out his agenda. JOHNS: But what about some of these people being put in positions that affect public safety? And if they're incompetent, there could be a negative effect on public safety.
UNIDENTIFIED MALE: You're absolutely right. And the good news is if somebody in fact is not doing a good job as a political appointee, you can get rid of them immediately.
(END VIDEO CLIP)
JOHNS: On the Democratic watch list right now, several appointees, including two at the Department of Homeland Security. Julie Myers, a former federal prosecutor and Treasury Department official is married to the chief of staff at the DHS. And she's the niece of former Joint Chiefs Chairman Richard Myers. Most recently, she ran a division of the Commerce Department with a $25 million budget and fewer than 200 employees.
Myers has now been nominated to head DHS's Immigration and Customs Enforcement Division with a budget of $4 billion and 20,000 employees.
Andrew Maner, one time press and travel aide to the first President Bush; most recently, a deputy at the U.S. Customs Office, another division of DHS. Now he's chief financial officer of the entire department, with a budget of $40 billion.
Beth Daley (ph) works for the project on government oversight. She keeps in close contact with career civil servants and she's hearing a lot of complaints.
(BEGIN VIDEO CLIP)
BETH DALEY (ph), PROJECT ON GOVERNMENT OVERSIGHT: There's a pattern to some of the stories that we're getting, which is that political appointees come into an agency. They reorganize it. They fire some people and then they hire their friends.
(END VIDEO CLIP)
JOHNS: It's a system that rewards the winners and schmoozers in politics. Sometimes in Washington, it's not your resume that counts. It's who you know. Joe Johns, CNN, Washington.
BROWN: overcoming that wrap may turn out to be impossible. Cards to the boss with puppy dogs on them do leave an impression, after all. But that's just one objection that she's a crony hire. The other centers on religion, which is supposed to be out of bounds, but never really is. You just can't come out and say it. Though from preachers to the president, people are coming very, very close.
It was an awkward moment in a series of awkward moments as the president tries to sell Harriet Miers to his own party.
(BEGIN VIDEO CLIP) BUSH: People are interested to know why I picked Harriet Miers. They want to know Harriet Miers' background. They want to know as much as they possibly can before they form opinions. Part of Harriet Miers' life is her religion.
(END VIDEO CLIP)
BROWN: The White House has been using Ms. Miers' religion as a selling point to conservatives. They used it with James Dobson, the powerful radio preacher. This is what Carl Rove told him.
VOICE OF JAMES DOBSON, FOCUS ON THE FAMILY: She is an evangelical Christian that she is from a very conservative church, which is almost universally pro life.
BROWN: This is the same White House who through its allies have said a candidate's religion is off limits, not relevant to his or her qualifications.
This is what Texas Senator John Cornyn said about the new Chief Justice John Roberts, who is a Roman Catholic.
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SEN. JOHN CORNYN, (R), TEXAS: We have no religious test for public office in this country.
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BROWN: And here's Attorney General Alberto Gonzales.
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ALBERTO GONAZLES, ATTORNEY GENERAL: And the president has said that there is no litmus test.
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BROWN: So why have the rules seemingly changed?
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DAVID GERGEN, FORMER PRESIDENTIAL ADVISOR: By raising a religious issue, there's an implication that she may turn to her religious faith, that the conservatives can trust her because of her religious faith to bring conservative views to interpretations. In other words, to look beyond the constitution. That's exactly what he's been saying justices should not do.
BARRY LYNN, EXECUTIVE DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE: I think liberals and conservatives are very nervous about religion and the role that it might play in a judicial nominee. They don't like this kind of discussion. They want religion to be off the table. But now, sometimes it's off the table, as with John Roberts; sometimes it's on the table. BROWN (voice-over): Many conservatives seem to agree with that. A widely read conservative web log called Captain's Quarters, had this to say this morning: "The only motivation for using this as a public strut for the Miers nomination is because the White House clearly has no plans to market Miers (before) a skeptical public," wrote the editor. "They have run out of a short list of talking points, having done no homework on Miers before announcing her nomination." Harsh, perhaps. But by using Ms. Miers' religion as a selling point, the president has left himself open to just that sort of reaction from all sides.
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BROWN: All of which moves us closer to a moment when a number of things could play out. Ms. Miers might win confirmation, with a majority not of republicans, but democrats. Not likely, but it could happen. She could suddenly decide she needs to spend more time with her family back in Texas. Or what else?
Joe Klein writes about politics for "Time Magazine." We talked with Joe earlier tonight.
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BROWN: I have no problem if people join whatever church they want to join and believe whatever they want to believe. God bless them for that. But if you can't talk about religion with Judge Roberts or before that, Judge Pryor down in Alabama, I believe -- if you can't talk about religion there, it's off limits, we shouldn't even discuss it -- what are they doing talking about it here?
JOE KLEIN, TIME MAGAZINE: What they've had to do is been to shore up their conservative support, because they were totally surprised by the fact that movement conservatives -- especially intellectual conservatives, came out against her. And so this is the way they're doing their kind of winking to the right and saying, she's really okay. She's religious.
BROWN: But, I mean, doesn't it --
KLEIN: It's obnoxious.
BROWN: Right. I understand that in politics hypocrisy has a totally different meaning than it does perhaps in my life, but doesn't it just scream hypocrisy to people? I mean, you've got the "Wall Street Journal," say, not exactly a liberal bastion -- the editorial page of the journal saying, cool it on the religion stuff.
KLEIN: This is an administration that is in real trouble and guess what? He has about 1,195 days left in office at this point, which is longer than the entire John F. Kennedy administration. And so, he's going to have to figure out how to re-launch his presidency.
BROWN: Administrations have lots of ups and downs and clearly their in a trough here, I mean whether it's Iraq, which is more than a little troublesome; Katrina, where no matter -- I think he's been down there eight times -- and it doesn't seem to alter the perception of either the president or the administration on it.
Judge Miers is trouble from his own side. Democrats just sit back on this one for now.
How do you get out of it?
KLEIN: Well, you know, the interesting thing about New Orleans, about Katrina, is that they keep on doing the same thing over and over again, going back down there, having photo ops. This week it was building a house. And they keep on expecting the results to change, but they won't change because I think the public has caught up to the fact that the Bush administration -- as one republican senator told me last week -- the Bush administration is excellent at politics and spinning and it's not very good at management.
So, what did Ronald Reagan do in a similar situation in his second term? He brought in a bunch of really terrific managers, which is what some republicans are now proposing for this administration. Switch gears, stop trying to spin the war, stop trying to spin the Supreme Court process and really do the management, the due diligence, the scud work that's the essential part of actually governing.
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BROWN: Joe Klein from "Time Magazine." Let's bring it back to the beginning. The Miers' nomination, the use of religion, I just think it points out how much trouble they have on this. And if I were putting money down, which I won't do, because someone will call me on it. I don't think she's going to get there.
COOPER: You don't think so? Really?
BROWN: I don't think she's going to get there. I think more time with my family in Texas is coming.
COOPER: It does surprise me how it was apparently off limits to talk about it with John Roberts, but this is a whole different case and maybe is a sign of how deep they are in trouble.
BROWN: It just depends on whether it helps you or not.
COOPER: I guess so. Coming up, are some Americans safer than others from terrorist attack? The Department of Homeland Security wants to know if any of its employees tipped off relatives and friends about last week's terror threat in New York. There are some emails which are raising a lot of questions.
This is NEWSNIGHT.
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COOPER: We talked earlier tonight about the importance of connections in Washington, D.C. Well now it seems connections in New York help as well. The Department of Homeland Security is investigating whether any of its employees tipped off their relatives or their friends about last week's terror threat in New York, even before some New York officials heard about the threat.
CNN's Homeland Security Correspondent Gina ___ has been investigating.
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MICHAEL BLOOMBERG, MAYOR, NEW YORK: The FBI has recently shared with us a specific threat to our subway system.
JEANNE MESERVE, CNN HOMELAND SECURITY CORRESPONDENT(voice-over): Most of the public learned about the threat to New York's transit system when Mayor Michael Bloomberg announced it on October 6. But not everyone. Some private citizens apparently found out before even the mayor did, tipped off by an email, "As some of you may know my father works for Homeland Security, at a very high position and receives security briefings on a daily basis," the email reads. "The only information that I can pass on is that everyone should at all costs not ride the subway for the next 2 weeks." The time on the email: 6:05 p.m., October 3 -- an hour and half before the mayor was informed of the threat and three days before the public was.
CLARK KENT ERVIN, CNN SECURITY ANALYST: If there is in fact a threat to the public, that information ought to be communicated at the right time for the public at large. Whether you're informed of a threat should not depend upon whether you have a friend or a relative in the Department of Homeland Security who has access to that information.
MESERVE: But that's not all. On October 5, still one day before the ramp-up of subway security was announced, a second email from a different sender, who claimed to be a friend of the chief of intelligence for the U.S. Coast Guard. This email was even more specific, saying the subways should be avoided October 7 through 10 because of potential terrorist activities.
A spokesman says the New York Police Department became aware of both emails while the NYPD was being instructed to keep quiet by federal officials who didn't want to jeopardize a threat-related military operation in Iraq.
The Coast Guard says a preliminary investigation has determined none of its current employees were involved. A DHS investigation is ongoing.
GEORGE PATAKI, GOVERNOR, NEW YORK: I think it's appropriate to look into that, find out who was responsible and certainly take appropriate action. That should not happen.
MESERVE: One expert says he believes leaks like this happen all the time.
TOM LARSEN, INSTITUTION FOR HOMELAND SECURITY: Just think about it. If you had that information and you know that your mom and your wife and your kids rode the subway every day, would you not tell them?
MESERVE (on camera): Although someone connected with the Department of Homeland Security apparently found the threat information alarming enough to warn friends and family, when New York City went public, DHS played down the threat -- an irony that is not lost on some New York officials.
Jeanne Meserve, CNN, Washington.
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BROWN: And for reasons that Mr. Cooper is about to explain, that's it for this edition of NEWSNIGHT.
COOPER: That's right. Coming up next, CNN Security Watch Special, the Syrian connection. Stay with us.
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