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The Lead with Jake Tapper

Hung Jury in Freddie Gray Case; Republican Debate Reaction; Sparks Fly Between Cruz, Rubio on Immigration. Aired 4-4:30p ET

Aired December 16, 2015 - 16:00   ET

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

[16:00:10]

ANNOUNCER: This is CNN breaking news.

JAKE TAPPER, CNN HOST: Welcome to THE LEAD. I'm Jake Tapper.

We have breaking news off the top in today's national lead, a big decision just coming in from Baltimore this hour, where a judge moments ago declared a mistrial after a third day of jury deliberations in the first Freddie Gray trial.

William Porter was the first of six officers to go on trial. Freddie Gray, of course, died back in April after he was dragged into a police van, shackled and never put into a seat belt, according to police. Cell phone video of Freddie Gray's arrest sparked days of protests and destructive riot.

CNN's Jean Casarez joins me now live in Baltimore.

And, Jean, what can you tell us right now? Obviously, police are bracing, preparing for the worst, hoping for the best.

JEAN CASAREZ, CNN CORRESPONDENT: That's right.

I would say the pulse of this community right now is anxious. And overhead we have helicopters. We have just people hustling and bustling, but I think when I look into the eyes of this community, Baltimore City, right here where we are, I see sadness. They wanted a verdict.

It is obvious they wanted a verdict. I also see some anger. And I also see some fear. Some of the members of Baltimore City community have told me that they do not want unrest in this community. They don't want it to be like it was in April.

Now, when I was in the courtroom just probably about an hour ago, I watched as the jury came in. And they looked tired. They looked defeated. They looked angry, some of them. And they looked like that they had fought so hard for the side that they were on and did not have that resolution.

The judge at that point -- and there had been a long sidebar before they came in, and you could tell that the prosecutors were very, very distraught at what was happening at that moment. And the courtroom was packed. Marilyn Mosby, the elected state's attorney, was seated in the front

row. And then suddenly the judge said to the jury, I understand that you cannot come to a unanimous decision on all four charges. Therefore, this is a hung jury. And he dismissed the jury at this point.

Now, this is no win for the defense, because the defendant in this case, William Porter, looked very sullen and sad himself. And the judge then later announced once the jury had left that tomorrow he wants all attorneys at the administrative judge's office to decide on a new trial date.

So this will go forward as a retrial. But it was all very, very calm yesterday morning, because they had their pencils. And they asked for poster board and notebooks. But when we got that hung -- that they couldn't reach a decision yesterday afternoon, we knew something was up, Jake.

TAPPER: All right, Jean Casarez, thank you so much. We will check back with you.

We just received a statement from Baltimore Mayor Stephanie Rawlings- Blake. It reads, in part -- quote -- "We must respect the outcome of the judicial process. In the coming days, if some choose to demonstrate peacefully to express their opinion, that is their constitutional right."

I want to bring in my legal team, CNN legal analyst Sunny Hostin. Also with me, CNN senior legal analyst Jeffrey Toobin, and Van Jones is here as well.

Sunny, what could this mean for the other officers charged in the Freddie Gray death? Is it possible that those cases will not now go forward?

SUNNY HOSTIN, CNN LEGAL ANALYST: Well, I think that's a possibility in terms of timing. I do think that all those cases will be tried.

But this is a problem for the prosecution, because the prosecution wanted to try this officer first, so that in the event of a conviction, they could use his statements against the other officers. In the event of an acquittal, they would have tried to use his statements against the other officers.

They didn't offer him immunity, so now they're in a situation where they have this charged defendant remaining out there. And they can't have him -- they can't force him to testify against these other officers. And so I think that this is in many respects a game-changer for this prosecution.

I'm unclear, I think, as to why they tried this case first. Many times, you want to send a message to the defense team that you are going to get a conviction. And so the fact that they were unable to secure a conviction does have an impact on all of the other cases.

And so I think this is a gamble that was taken by this prosecution, Jake. I have been very critical of the decision to try these cases and charge these cases so very quickly. I have been critical of that from the very beginning. And I think that these cases were brought too quickly. And this is the result when you bring a case too quickly.

TAPPER: Jeffrey, let's go off of what just Sunny said.

[16:05:00]

When I was covering what was going on in Baltimore, Marilyn Mosby, the state's attorney who brought these cases and gave a speech that many outside Baltimore thought was inappropriately political, she was heralded in the streets of Baltimore by the community, by the protesters as somebody who was doing right.

But, at the end of the day, is it possible that this hung jury, this mistrial is an indication that while that might have been a short-term political high, if you will pardon the expression, at the end of the day, these cases weren't ready to go to trial?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Or never should have been brought at all.

Jake, the technical legal term for the prosecution at this point is up a creek. I mean, they really have big problems here, because they were counting on using Porter as a witness against the others. And now he's now in this sort of hyperspace.

Prosecutors -- when you have hung juries, that is almost always a win for the defense. In American jury trials, in criminal cases, the prosecution wins somewhere between 80 and 90 percent of the time. So a hung jury is a defeat for the prosecution, especially when they needed Porter to make some of these other cases.

Now, it's not impossible that at least some of these other cases can go to trial without Porter. But his testimony was going to be important. Now, there are lots of strategic decisions ahead. They may decide to give up on prosecuting Porter, give him immunity, and use him as a witness anyway.

But that's obviously not a solution they wanted. All of these issues will have to be debated. And the prosecution here is in serious trouble.

TAPPER: Van, let's talk about the judge today denying the jury's request to see the transcripts. Why?

VAN JONES, CNN POLITICAL COMMENTATOR: Well, you know, you would think that if a jury is working that hard, struggling that much and wanted a little bit more help and support, the judge would do everything possible.

The reality is, though, a transcript is not in evidence. The videotape is in evidence. Whatever notes you took, you can have, but a transcript is not formally in evidence, and so the judge really could not give that over.

And so now you have a very tough situation. Those jurors, the ones who wanted a conviction, are going to be very bitter. They're going to be very upset. Hopefully, they will keep their vow to be quiet, but the reality is, you know, if you're in Baltimore, if someone died and you didn't have a police officer involved, all five, six people involved in whatever went down go down on felony murder.

In other words, if you're a normal person, if you're a civilian, you're involved in something, you grab somebody, something happens, somebody dies, the convictions go bang, bang, bang. In fact, you don't even go to trial. You just plead.

And so you're going to see people have a reaction in Baltimore, saying, hold on a second. If this were a normal situation with normal civilians, where something happened and somebody died, somebody would do time. The police are probably not going to do time here. There's going to be a concern.

That said, I think the mayor is handling this very, very well. I think she's very clear. She's scrambling the resources. Last time, they said she held back. She's scrambling those resources. She's sending a message of calm, but this is a very, very tough pill for this community to swallow.

Everybody knows that a mistrial, though it sounds like kind of a neither/nor, it really is a defeat for the prosecution.

TAPPER: At least right now. She could bring the charges again. Who knows.

Sunny Hostin, Jeffrey Toobin, Van Jones, thank you all so much.

Today's politics lead: Who is leaving Las Vegas with the most chips? Donald Trump and Ted Cruz, still the two best friends that anyone could have, but did we see the future of this Republican race in a different, intense tangle? Stay with us.

(COMMERCIAL BREAK)

[16:11:56]

TAPPER: Welcome back to THE LEAD.

You are looking at live pictures out of Baltimore, protesters weaving down the streets of that city after a jury declared a mistrial moments ago, or, rather, the judge declared a mistrial. The jury was hung.

The case is involving one of the police officers accused of negligent homicide in the death of Freddie Gray. We're going to keep an eye on that story throughout the hour, especially keeping an eye on what's going on in Baltimore.

But let's turn to our politics lead now. Maybe it was destiny that, in the last Republican debate of 2015, the two candidates who seemed fated to collide finally did. No, I'm not talking about Donald Trump and Jeb Bush 2.0. I'm talking about Senator Marco Rubio and Senator Ted Cruz, the senators so alike on a superficial surface level, both of them children of Cuban immigrants, both former Tea Party darlings, insurgent candidates that beat long odds in the Republican establishment to get to Washington.

But, last night, they never seemed more different on the stage, sparring with new urgency on the national security debate after the chilling terrorist massacres in Paris and San Bernardino, California. Topics such as surveillance and defense spending and ISIS and immigration put Rubio and Cruz in what seemed sometimes like a constant split-screen shouting match.

CNN's Sunlen Serfaty is in Los Angeles. That's where Ted Cruz is today with his newfound momentum.

Sunlen, the new co-front-runner in Iowa or front-runner, depending on the poll you're looking at, last night, Ted Cruz seemed more concerned with neutralizing Rubio than in going after the guy who is actually the front-runner with whom he's statistically tied in Iowa, Donald Trump.

SUNLEN SERFATY, CNN NATIONAL CORRESPONDENT: That's absolutely right, Jake.

And I asked Senator Cruz just moments ago here in Los Angeles, is that the sign that he's getting a little nervous by Marco Rubio? And he said quite opposite. He thinks it's Marco Rubio that is the nervous one here.

This has been a battle that's certainly been brewing for quite some time and has finally boiled over.

(BEGIN VIDEOTAPE)

SERFATY (voice-over): The GOP field leaving Las Vegas with new battle lines drawn.

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: Everyone on that stage talks tough. It's easy to stand here tonight and say we're -- or this morning -- and say we're going to utterly destroy ISIS, we're going to blow them up, we're going to make the sand glow.

That's easy to say. What are you going to do it with?

SERFATY: The sparring between Marco Rubio and Ted Cruz moving from the debate stage to the campaign trail today.

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: I think Senator Rubio's campaign understands that if conservatives continue to unite, they don't have a path to victory, and so their only hope is to try to launch false attacks.

SERFATY: The rivalry between the two first-term senators revealing divisions within the Republican Party on government surveillance.

RUBIO: We are now at a time when we need more tools, not less tools. And that tool we lost, the metadata program, was a valuable tool that we no longer have at our disposal.

DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Senator Cruz?

CRUZ: Well, I would note that Marco knows what he's saying isn't true.

SERFATY: Cruz trying to draw a contrast on one of Rubio's potential vulnerabilities with the Republican base, his work on a comprehensive immigration bill that included a path to citizenship.

[16:15:01] CRUZ: There was a battle over amnesty. And some chose, like Senator Rubio, to stand with Barack Obama and Chuck Schumer and support a massive amnesty.

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: As far as Ted's record, I'm always puzzled by his attack on this issue. Ted, you support people in this country illegally.

CRUZ: For Marco to suggest our records are the same is like suggesting the fireman and arsonist have the same record because they're both at the scene of the fire.

SERFATY: Rubio pressing Cruz to define his immigration stance.

RUBIO: Does Ted Cruz rule out ever legalizing people in this country illegal now?

DANA BASH, CNN MODERATOR: Senator Cruz?

CRUZ: I have never supported legalization.

RUBIO: Do you rule it out?

CRUZ: I have never supported legalization. And I do not intend to support legalization.

SERFATY: That tit-for-tat largely shadowing the focus on the front- runner.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: I went in this saying, boy, this is going to be a tough evening, because I heard all of them were going to come at me, right? Fourteen 14 of them were going to be coming at me. I was prepared.

SERFATY: Who tried to stay above the fray on the candidate stage.

JEB BUSH (R), PRESIDENTIAL CANDIDATE: But he's a chaos candidate. And he'd be a chaos president.

SERFATY: Even while Jeb Bush had him in his sights.

TRUMP: I think Jeb is a very nice person. He's a very nice person, but we need tough people.

(CROSSTALK)

WOLF BLITZER, CNN MODERATOR: Please, one at a time.

TRUMP: Build up your energy, Jeb, but it's not working very well.

See, I'm at 42 and you're at 3. So far I'm doing better.

BUSH: Doesn't matter. Doesn't matter.

SERFATY: In a big shift from just days ago, Trump backing off his charge that Cruz doesn't have the right temperament to be president.

TRUMP: I've gotten to know him over the last three or four days. He has a wonderful temperate. He's just fine. Don't worry about it.

(END VIDEOTAPE)

SERFATY: And back on that Rubio/Cruz battle that's really that new front that's opened up from last night's debate, it certainly shows that each of these candidates really understand the threat that the other one poses to their path ahead.

So, Jake, we'll certainly be seeing this dynamic really play out in the days to come, Jake.

JAKE TAPPER, CNN ANCHOR: Sunlen Serfaty, thank you so much.

Let's talk about how the candidates acquitted themselves last night with two of the people who peppered the Republicans with questions, CNN chief political correspondent Dana Bash and conservative talk radio giant Hugh Hewitt.

First, congratulations to both of you last night. You did an expert job.

Dana, let me start with you.

You asked a question that ignited this heated exchange between Rubio and Cruz on immigration. Now, we heard the back and forth in Sunlen's piece. Rubio says Cruz believes a lot of the same things he does, doesn't understand why this line of attack. Cruz says there's an ocean's length of distance between them.

But let's fact check this for a second. When Rubio was working with the gang of eight, Democrats and Republicans, pushing his immigration reform bill that would have offered a path to citizenship for the undocumented immigrants in this country, Cruz did offer an amendment that took away the path to citizenship but kept a path to legal status. Is that right?

BASH: It is right but it's part of the Alice in Wonderland of Congress and that of legislative process that we see sometimes. Because what you see isn't really what it -- what it appears to be isn't really the meaning.

So, let me just explain that. Yes, it is accurate that Ted Cruz did offer an amendment to allow undocumented immigrants to stay legally, but the reason he did that was what is called on Capitol Hill a poison pill. He only offered that to try to kill that piece of legislation.

TAPPER: But that's not what he said at the time, right?

BASH: To try to bring it in.

He didn't say that at the time because he didn't want to show his hand. Look, I'm not defending it, but Jeff Sessions, one of the most anti-illegal immigration senators out there voted for it as well. So it was a parliamentary trick or a maneuver to try to kill the entire thing that didn't work.

But I will say just the fact that Rubio brought this up and the fact that we're talking about this --

TAPPER: Right.

BASH: -- and not the path to citizenship that Rubio supports, that was clearly very well rehearsed. He knew he was going to get the question. And he wanted to try to shift the conversation back onto Cruz.

TAPPER: Sure.

BASH: Big liability for Rubio.

TAPPER: Hugh, Ted Cruz said last night that he doesn't intend, doesn't intend to support legalizing undocumented immigrants. In my interview with Senator Cruz after the debate, when I said, "Well, what would you do about the 11 million undocumented immigrants in the U.S.?", he said he would enforce the law.

Now, there are a lot of conservatives out there who say it sounds like he's building in a little wiggle room. What do you think?

HUGH HEWITT, CNN REPUBLICAN PRESIDENTIAL DEBATE QUESTIONER: Well, I think that the conservative Republican primary voter finally got the debate they wanted last night, largely because Dana knows this issue up and down and she set it up for five debates, the immigration debate has been off to the side, not completely avoided, but there have been other issues that have dominated. Primarily, Donald Trump's commanding lead and his presence in the race last night because Dana I think has covered this on the Hill, she was able to bring very specific questions that allowed a lot of Republican primary voters to see those two superstars of the future.

And let's be clear, Marco Rubio and Ted Cruz are the future of the Republican Party. They're incredibly able. They are both first generation Americans of immigrant parents, of extraordinary eloquent ability, and a lot of charisma.

And so, because Dana had the background from the Hill, it was able to be put front and center.

[16:20:00] I'm not surprised it's dominating the day after conversation because that's what a lot of Republican primary voters want to have thrashed out on TV in front of a large audience. And I saw the numbers this morning. It was an enormous number of people watching that exchange. And they got it.

BASH: Clearly, Hugh and I bonded during the days and days of prep.

TAPPER: You guys are besties, I'm a little jealous.

Dana, outside Governor Bush there weren't many Republicans on stage or any willing to really take on Donald Trump especially on the issue of this proposed ban of Muslims entering the U.S.

Why do you think that is?

BASH: The numbers, because -- two reasons. One is the Republican candidates and their campaigns woke up and saw several polls that showed a majority of Republican voters think that Donald Trump is right. Now, whether or not that is going to bear out to be true, who knows? But they don't want to risk it at this point in the election cycle.

And the second is, even if it weren't true, nobody has come out of attacking Donald Trump unscathed, particularly on a debate stage. So, you know, why bother?

And for Jeb Bush, look, he has gone in as the establishment guy, gone in as the guy especially on issues of kind of inclusiveness, whether it was -- it's Hispanics or others that he's going to kind of be the one to defend what he considers the Republican brand and the right thing to do. And I don't think that he feels like he has a lot to lose. And he wants to be who he is. And that's why he did it.

TAPPER: Hugh, Jeb Bush today trying to turn this into a pitch on the campaign trail, to donors, to supporters, he'll stand up to Trump.

Do you think that could move the needle for him?

HEWITT: I think it helped him last night. I gave the gold to Chris Christie, and if I can overwork an analogy, if you've seen the movie "Creed," spoiler alert coming, Creed, an Englishman, trade body blows like Rubio and Cruz last night. But Chris Christie was rocky. He stood over there and had a few home runs and he got back into this race in New Hampshire.

So, those three came out, but Governor Bush gave himself new life, new lift. I think if you look at the end of the debate last night, people are talking about those five people -- Donald Trump, who many people think won the debate again. He's very commanding lead in the polls. He was very confident in the spin room. Chris Christie had a great night. Jeb Bush came back into the race. And then you had Marco and Ted throwing punches at each other.

That's really the takeaway for me. And I also want to say it's the most substantive foreign policy debate that I can ever remember having and 18 million people watch it. I'm stunned to hear that number of people sticking around to hear folks talking about Assad, Iran, whether or not carpet bombing is appropriate, I was very impressed that the audience wanted to watch that. And they'll be talking about it at Christmas dinner. And I think that's what the intent was of the debate.

TAPPER: All right. Great. Hugh Hewitt, Dana Bash, thank you to both of you and superb job again.

Will we see Ted Cruz surge in the polls after his debate performance last night?

One man in the Cruz camp is banking on it. He will join me next to talk about the senator's tactics and plans going forward.

Stay with us.

(COMMERCIAL BREAK)

[16:26:49] TAPPER: Welcome back to THE LEAD. I'm Jake Tapper.

More now on our politics lead. Our next guest said Senator Ted Cruz has a, quote, "titanium spine" and that he showed it last night as Cruz was more than ready to trade punches with Senator Marco Rubio.

But while Cruz held ramrod firm whenever pitted against Rubio, it has to be said he was a little more pliable when matched up against the front-runner Donald Trump.

I want to talk about Senator Cruz's performance last night with Bob Vander Plaats. He's a conservative leader in Iowa whose endorsement was hotly pursued and ultimately, it went to Cruz for whom Mr. Vander Plaats now fund-raises, live from Urbandale, Iowa.

Bob Vander Plaats, thanks so much for joining us. Good to see you again, sir.

BOB VANDER PLAATS, EXECUTIVE PRESIDENT, THE FAMILY LEADER: Good to be with you, Jake.

TAPPER: So, I know you thought Senator Cruz won the debate. Who else on stage impressed you though?

VANDER PLAATS: Well, you know, I was in the environment, I was front row sitting with Heidi Cruz and the girls, and it was just -- first of all, it was a great environment. And I thought it showcased Republicans very well.

However, I do believe that Cruz was firm and people can see him as a commander in chief. And I thought Rand Paul kind of came into his own again, and people reminded why they like Rand Paul.

But Rand Paul was also very beneficial for Ted Cruz when he took on Marco Rubio saying, hey, there's some discrepancies here. You want to talk about national security and border security, the "gang of eight" thing left us extremely exposed.

So I think Rand Paul gave a great assist to Ted Cruz last night.

TAPPER: People forget, Rand Paul a year ago was a front-runner.

Your candidate came out swinging last night. Let's listen to how he started the debate.

(BEGIN VIDEO CLIP)

CRUZ: America's at war. Our enemy is not violent extremism. It is not some unnamed malevolent force. It is radical Islamic terrorists.

We have a president who is unwilling to utter its name. The men and women on this stage, every one of us, is better prepared to keep this nation safe than is Barack Obama or Hillary Clinton.

(END VIDEO CLIP)

TAPPER: That's tough talk, red meat, what the base wants to hear. Policy-wise though, how would Ted Cruz's war against ISIS differ from President Obama's beyond an intensified air campaign?

VANDER PLAATS: Well, first of all, I think what Ted Cruz did there is first of all he united Republicans on stage saying any one of us better than Hillary Clinton and Barack Obama.

But two is, he is sending a message to ISIS. There will be a new sheriff in town. Just like when Ronald Reagan came in and the Iranian hostages and Jimmy Carter was president. As soon as Reagan came in, the people holding the Iranian hostages, they knew that Reagan meant business.

I think that's what you'll see with a President Ted Cruz. They'll know he means what he says. And he will do what needs to be done to keep this country safe.

TAPPER: All right. Bob Vander Plaats, thank you so much. We'll see you out there on the campaign trail.

VANDER PLAATS: All right. Look forward to seeing you, Jake.

TAPPER: It was Donald Trump who said last night he wanted to penetrate the Internet in an effort to defeat ISIS. It was one of many ideas presented with national security in mind, but how many of the ideas presented were realistic? We'll look at that next.

(COMMERCIAL BREAK)