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At This Hour

Defense Begins in Ahmaud Arbery Murder Trial; Sentencing of QAnon Shaman for Capitol Insurrection; U.S. OD Deaths Hit Record High during Pandemic. Aired 11-11:30a ET

Aired November 17, 2021 - 11:00   ET

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

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KATE BOLDUAN, CNN ANCHOR: At this hour, two riveting trials capturing America's attention this morning. The jury in the homicide trial of Kyle Rittenhouse deliberates while lawyers for the men accused of killing Ahmaud Arbery begin their case.

Sentencing the shaman: the so-called QAnon shaman faces years behind bars. He learns his sentence today for his role in the January 6th insurrection.

An uptick in COVID just as millions of Americans plan to travel for Thanksgiving.

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BOLDUAN: Thank you so much for being here.

We begin with these new developments in two high-profile trials gripping the nation.

First in Wisconsin, we're awaiting the verdict in the Kyle Rittenhouse homicide trial. The jury has just begun its second day of deliberations after spending more than eight hours behind closed doors yesterday.

This morning, we learned that the defense team filed a motion for mistrial, accusing the state of intentional prosecutorial overreach.

And in Georgia, the defense is presenting its case in the trial of three men accused of killing Ahmaud Arbery while he was out jogging. Prosecutors rested their case after calling 23 witnesses.

The state's medical examiner, the last to testify, he conducted the autopsy on Arbery. Important testimony will go through jurors, who were shown graphic photos of the gunshot wounds that killed Arbery.

We have both of these trials covered for you. Let's begin with CNN's Shimon Prokupecz outside the courthouse in Kenosha, Wisconsin.

Shimon, what's happening there? SHIMON PROKUPECZ, CNN CRIME AND JUSTICE PRODUCER: The jury is back in their deliberation room, in the jury room, deliberating since about 9:00 this morning. So we're about an hour or so Central time. About an hour or so into deliberations.

No notes, no word on anything from the jury yet. The other thing that has happened here is we just learned today that the defense filed a motion, we had heard about this, a motion for a mistrial with prejudice.

This all stems from the fiery exchange between the judge and the prosecutor that occurred during the cross examination of Kyle Rittenhouse, the judge getting angry at the prosecutor, asking questions about the defendant's, Kyle Rittenhouse's, silence.

What they say in this motion is basically the prosecutors were acting in bad faith, that they were doing it intentionally because they were losing their case. They say there was overreach.

Of course, this all stems from the argument between the judge and the prosecutor, and the judge arguing that they were violating Rittenhouse's rights by saying he didn't have some kind of a duty to remain silent or insinuating that he didn't have the right to remain silent. So that's what that is about.

What I'm trying to figure out, and the court has no answer for us, is why this hasn't been responded to by the judge. The judge has not addressed this at all. This was filed on Monday. We're just learning about this today. The judge has not made a ruling.

Also, prosecutors haven't responded to any of this. We don't know where this is going because the jury is continuing to deliberate. Hopefully we'll get more answers.

BOLDUAN: We get news of this filing and the jury is behind closed doors, deliberating on this trial. Shimon, thank you so much.

Let's turn to the trial of the three men accused of killing Ahmaud Arbery. The defense began presenting their case today arguing those men acted in self-defense when they shot and killed Arbery. CNN's Martin Savidge is live in Brunswick with more on that.

What's happening there?

MARTIN SAVIDGE, CNN NATIONAL CORRESPONDENT: There's been a bit of a delay when it comes to the defense actually starting to make its presentation. What's happening before the jury is brought in has been arguments by the defense team for directed verdicts.

This is essentially where the defense will get up and say, hey, look, the state did not make the case on the various charges that have been made against these defendants and, thereby, Judge, we're asking you to acquit them on charges one, two, three, four, whatever.

That's the example here. That argument was supposed to take an hour. It's taken two hours. This is a clear example of what happens when you have got three defense teams instead of just one and how it complicates things. And going forward, how it could continue to complicate this case.

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SAVIDGE: There's still evidence issues they've got to debate before they bring the jury in. So again, some delay.

One of the key questions is will any of the defendants take the witness stand?

It's not only a question for those who monitor this case but also a question for Ahmaud Arbery's mother.

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WANDA COOPER-JONES, AHMAUD'S MOTHER: I would really like all three to get up and actually address the court, because I really want to know their mindset on how they were thinking on that day.

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SAVIDGE: We have repeatedly asked the defense attorneys if they intend to put any of their clients on the stand. Their answer has always been it's a moment-by-moment decision that they will make. Back to you.

BOLDUAN: Martin, thanks so much for that.

Joining me now, CNN legal analyst Paul Callan and criminal defense attorney Sara Azari.

Sara, we're going to speak about both of these cases but I want to ask you first about the Rittenhouse trial. The defense asking for this mistrial with prejudice, as Shimon was laying out, this is about moments that we all saw play out between the prosecutor and the judge.

What do you think about this filing?

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: Kate, I think that we knew this was coming. The prosecutors' comments a week or so ago were highly inappropriate and unconstitutional. The judge has made that very clear. This judge has always been very pro defense regardless.

What's interesting to me is why there's been no response to this filed motion and why the judge hasn't ruled on this. This is something that should be ruled on fairly quickly. The jury is already deliberating.

I also think this prosecutor did such a poor job presenting this case. You saw what happened with the sixth count of a misdemeanor on possession of the gun. A lot of mishaps on the part of the DA. I'm not so surprised that he slipped so gravely as to make a comment about Rittenhouse's Fifth Amendment right.

BOLDUAN: Paul, your view on this. This was filed, I think Shimon said, on Monday. The judge hasn't weighed in or ruled on it yet, this motion for mistrial.

PAUL CALLAN, CNN LEGAL ANALYST: Kate, it's very surprising, the delay. This is a very important motion.

The thing I was struck by in watching the exchange was, what happened was the prosecutor made a statement at the very end -- toward the end of his cross examination that this is the first time you're telling this story about what happened.

Now the implication there is that you had an obligation to tell the story before. Of course, you don't under the Fifth Amendment. You have an absolute right to remain silent. That's why the defense is saying this is a major constitutional problem.

And the judge seemed to weigh in that he agreed with the defense.

Why hasn't he ruled on this important motion?

Sometimes what judges do is they hold back the ruling until they get a verdict in the case, because if there's a verdict of acquittal, then it doesn't go to an appellate court and the judge doesn't have to worry about whether he ruled correctly or not.

On the other hand, if the judge ruled that he had to give a mistrial, the case would be taken away from the jury and that would be the end of it.

And if it was due to prosecutorial misconduct, double jeopardy would apply and the defendant could never be tried again. So I think that's why the judge is holding back. He's waiting to take the verdict and then he'll rule on the motion.

By the way, he could set the verdict aside if there's a conviction and he says that that misconduct was of a constitutional nature and very prejudicial.

BOLDUAN: Very interesting. Let's turn now to the trial of the men who are accused of killing Ahmaud Arbery, Paul. The defense is going to begin, we assume, to present its case and its argument in this trial at some point today.

What do you expect the case is that they will be laying out to try, as they're going to prove that these men were acting in self-defense, even though they were chasing Ahmaud Arbery down?

CALLAN: Their entire defense, Kate, is going to be depending upon an 1863 law that was passed in the aftermath of the Civil War, really to help round up slaves in the South. That law grants citizens the right to make arrests, citizens' arrests in Georgia.

It gives them that right in two situations. One if they actually observe a crime being committed and the other is if they have it in their immediate knowledge that a crime was being committed. That's what the statute says; it's a vague statute.

The defense, of course, is saying that they had the right to apprehend Mr. Arbery because he had been walking inside and was filmed inside a house under construction in the neighborhood. That law has since been thrown out by the Georgia legislature, by the way. But it does apply in this case.

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CALLAN: I think you're going to see a lot of focus on that. Then there's a secondary aspect of this and that is that, when the three men on trial confronted Mr. Arbery, he resisted them and tried to grab the shotgun that was being aimed at him.

They're going to try to say in some way that that was a provocative action by him and he caused his own death.

Now personally, I think that's a real stretch and the defense is going to have an awfully difficult time prevailing on those theories. But remember, this is a jury trial. There's only one African American on this jury. All of the others were challenged off the array.

And you have to -- we have to wonder how local people in this particular Georgia community will feel about the case. So it's a difficult case to predict what the outcome will be, regardless of the facts.

BOLDUAN: Guys, I want to dip into this trial just for a second. The judge is addressing all three defendants as we speak. Let's listen in.

JUDGE TIMOTHY WALMSLEY, CHATHAM COUNTY COURT: No matter what you may have discussed with counsel.

UNIDENTIFIED MALE: Yes, sir.

WALMSLEY: And did you have a full opportunity to discuss with counsel your right to testify before this court?

UNIDENTIFIED MALE: We have.

WALMSLEY: And you understand that, if you do testify before this court, you'd be treated as any other witness, which means the state will cross examine you.

UNIDENTIFIED MALE: I understand.

WALMSLEY: You understand that also if you choose not to testify, the court will instruct the jury that that cannot be held against you in any way.

Do you understand that?

UNIDENTIFIED MALE: Yes, sir, I do.

WALMSLEY: Do you need any additional time to speak with counsel about your right to testify in this court?

UNIDENTIFIED MALE: No, sir.

WALMSLEY: Thank you, sir.

UNIDENTIFIED MALE: Thank you.

WALMSLEY: All right,

Mr. Gough, you indicated two matters before the panel comes back?

KEVIN GOUGH, BRYAN DEFENSE ATTORNEY: Yes, your honor. Since we last broached the subject, I would note that an individual that matches the general height and build of pastor Mark Baker, a local pastor -- I believe in jury selection he was referenced by one of the jurors or potential jurors as having had the attorney general of Georgia Chris Carr as a guest at his church, where this case was discussed.

BOLDUAN: All right, so what we were just listening to was just the judge addressing all three of the defendants about their right to testify.

Sara, this gets to a question that Martin Savidge, our correspondent on the ground, was speaking to, which is, will these defendants testify in their own defense?

We saw that in the Rittenhouse trial.

What do you think of that as a possibility, because the defense attorneys are not addressing that yet, in this trial?

AZARI: Kate, I think it's very possible and very likely. It's very, very difficult to tell a story of self-defense just by the evidence, without putting up your client. Even though it's not ideal to put up your client, you may be digging a hole; you may be subjecting them to some evisceration by the prosecution.

You almost always have to put them up because they can tell that story. You also want to humanize your client. With Rittenhouse, it was easier to do that. He's a 17-year old, he was weeping, he told a story that he was in fear for his life.

But with these three defendants, in a highly racially motivated case, I'm not sure they'll buy the same sympathy from the jury, although the jury in that community might be quite aligned with them.

But I think it's necessary to put them up to be able to tell the story of self-defense. And I think to Paul's point, it's a much more difficult analysis of self-defense in this case than it is in Rittenhouse.

In this case, the jury has to first get to that valid, justified citizen's arrest before they can determine whether these gentlemen acted in self-defense. So it will be interesting to see what they say.

It will also be interesting to see if they can change the optics. To me, they lack sympathy. And it will be interesting to see if their story will buy them some sympathy.

BOLDUAN: Sara, thank you very much. Paul, thank you as well.

Much more to come in covering both of those trials.

Up next, prosecutors are hoping to make an example now of a key figure in the Capitol insurrection. The so-called QAnon shaman now in court, awaiting sentencing. That's next.

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BOLDUAN: Developing at this hour, one of the key figures, a very visible figure in the Capitol insurrection, the so-called QAnon shaman, whose actual name is Jacob Chansley. He's in court and about to be sentenced for his role in the insurrection on January 6th. CNN's Whitney Wild is outside the court following all of this.

Whitney, what are you hearing?

What's happening right now?

WHITNEY WILD, CNN CORRESPONDENT: At this very moment, Jacob Chansley is addressing the court. I can give you a brief summary of what he said.

He said he was in solitary confinement because of himself, because of his own decisions. He says, I broke the law, I should do what Gandhi would do and take responsibility.

The defense for Jacob Chansley throughout this hearing has been that he's simply someone with a lot of mental health issues, who was largely mixed up for a long time. He was not violent, not threatening but instead really intended to show a love for his government by his actions that day.

Obviously the DOJ has a very different perspective. They argue he was a threat, that he left a note that was threatening in nature. This note that he left on the Senate dais, which minutes before he left this note, in which he said, Kate, justice is coming.

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WILD: Vice president Mike Pence had basically run away from that very spot. That's the perspective DOJ is bringing; they're requesting 51 months behind bars. That is significant, Kate, because, just last week, we saw someone sentenced for actually punching a cop, for a crime of violence on the police, defending the Capitol.

That request from DOJ was for 44 months. Jacob Chansley not charged with a violent crime but DOJ saying he was the flag-bearer of this riot so they're asking for 51 months. BOLDUAN: We'll bring you back.

Whitney will stay close.

The Congressional investigation into the insurrection is also ramping up. The House Select Committee investigating the Capitol siege sent a new warning to Trump White House chief of staff Mark Meadows, who is still refusing to cooperate with their investigation.

The chairman of the panel expects more subpoenas could be issued this week. Let's get over to CNN's Jessica Schneider, who has been tracking this one.

What is the panel still considering when it comes to Mark Meadows, Jessica?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Kate, contempt is not off the table just yet. They did send that new letter to Meadows last night to reiterate that they need him to engage, they need to provide them with information.

What are they looking for?

The key question they want answered by Meadows is whether he used a private cell phone to communicate on January 6th and where the text messages from that number now are. The committee believes the number is no longer in service and they don't know if Meadows is still in possession of the phone.

Of course, Meadows didn't show up to his deposition last week. His attorney is saying he won't testify until the court rules on executive privilege issues.

The committee shot back, saying if Meadows was using a private cell phone as opposed to a government issued phone, executive privilege wouldn't apply. So the committee going back to Meadows with this letter, hoping to secure some degree of cooperation.

That comes at the same time the committee says it will issue more subpoenas, all as committee members are saying they have gotten a lot of info so far.

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REP. PETE AGUILAR (D-CA): The reality is we've had over 200 interviews with witnesses. We've looked at over 25,000 documents. We continue to make significant progress, irrespective of this fight that some of this small group of advisers continues to put forward, are seek (ph) and determination for the truth and to find out what happened that day on January 6th and leading up to it and will continue.

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SCHNEIDER: And all of this comes at the same time the executive privilege case at the appeals court is moving forward. Trump's lawyers filed their brief last night. They argued that if the contested documents are handed over, it could give Congress, in their words, lopsided power.

They said it would change the dynamics between the executive and legislative branches. But arguments on that will be November 30th; the decision not likely until at least the beginning of December -- Kate.

BOLDUAN: Jessica, thank you so much for that.

Also developing on Capitol Hill, the House is getting ready to vote to punish Republican Congressman Paul Gosar. Lawmakers are considering censuring Gosar and stripping him of two committee assignments over a violent anime video that he posted that depicts him killing Democratic Congress woman Alexandria Ocasio-Cortez and also attacking President Biden.

Gosar took down the post of that video but is not apologizing. Censure is a serious punishment in the House. It requires the censured member to stand before the chamber as the resolution is read. We'll see if Gosar follows at least that rule this afternoon if it happens.

Coming up, a record number of Americans are dying of drug overdoses. The startling new numbers are next.

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BOLDUAN: Developing right now, alarming new figures released by the CDC that show that over 100,000 Americans died of drug overdose in a 12-month period ending in April of this year, meaning the drug problem in America is the deadliest it's ever been.

Not just a record high but it jumped by nearly 30 percent since last year. Opioids are still the leading cause; synthetic opioids, primarily fentanyl, are accounting for nearly two-thirds of the deaths, up 49 percent from the year before. It's amazing and terrifying.

President Biden issued a statement moments ago saying, quote, "We cannot overlook this epidemic of loss."

So true, so true.

Let's turn to the other major health story in America still. COVID cases are on the rise once again; 22 states are seeing increases in new infections of more than 10 percent in the last week.

It comes as the FDA is considering whether to expand authorization of Pfizer's booster shots to all adults. That could happen by the end of the week. Joining me is Dr. Paul Offit. He's a member of the FDA Vaccine Advisory Committee. Good to see you. Let's start on boosters. You've been clear and we've talked about this many times all along but the focus shouldn't be here necessarily.

What then do you think of the move that the FDA could be making, to expand access to boosters this week?

DR. PAUL OFFIT, U.S. FDA VACCINE ADVISER: So the question is what do we want from this vaccine?

If what we want is protection from serious illness, meaning the kind of illness that causes you to seek medical attention or go to the hospital or to the ICU, these vaccines seem to be holding up. So that's good.

If, on the other hand, we want the vaccine to prevent mild illness or asymptomatic infections, that's not true with these vaccines. And that's what you would expect. You'd expect decline in neutralizing antibodies and with that a decline in protection against mild illness; whereas for serious illness all you need is immunological memory which these vaccines are very good at inducing.

And that's likely to be long-lived, meaning years. We have to define what it is.

When you see the infections increase, the critical question becomes, associated with those infections, which may be mild and moderate.

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