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Ahmaud Arbery Trial Set to Begin; Capitol Rioter Sentenced; Vaccine Mandate Deadline. Aired 3-3:30p ET

Aired November 04, 2021 - 15:00   ET

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

[15:01:59]

VICTOR BLACKWELL, CNN HOST: Top of a brand-new hour. Good to be with you. I'm Victor Blackwell.

ALISYN CAMEROTA, CNN HOST: And I'm Alisyn Camerota.

As the U.S. surpasses 750,000 people killed by coronavirus, the Biden administration is announcing a date for new vaccine mandates. By January 4, private businesses with 100 or more employees, certain health care workers and federal contractors will need to be fully vaccinated.

If they're not, they have to provide a negative test each week and wear a mask in the workplace.

BLACKWELL: So, this new deadline, coupled with a new wave of eligibility for kids ages 5 to 11, has health officials optimistic about the prospect of controlling the spread of the virus.

(BEGIN VIDEO CLIP)

DR. ANTHONY FAUCI, CHIEF MEDICAL ADVISER TO PRESIDENT BIDEN: What we're really talking about is control. And control has a wide bracket. You can have it under control where you have enough infections in the community where it isn't a pandemic phase, but it still is interfering with what we would like to get back to what we used to know as normal.

What we hope to get it is at such a low level that, even though it isn't completely eliminated, it doesn't have a major impact on public health or on the way we run our lives.

(END VIDEO CLIP)

BLACKWELL: Hospitalizations and deaths are both trending down. Good news there. But the president's new mandate, we know, is facing opposition.

CNN's chief White House correspondent, Kaitlan Collins, has more for us now.

Kaitlan, first, the decision to enact this in January, is the White House explaining why? KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: Basically, essentially, there's a timeline that happened here, because we know it was back in September that President Biden announced.

This is part of that rule when he essentially had been against vaccine mandates, but changed his mind given the level of resistance from so many tens of millions of Americans who did not want to get vaccinated. And, of course, the concerns that were happening in September with the Delta variant led to this.

So what you have seen happening behind the scenes since then is the Labor Department working on crafting this rule and getting it ready and having these basically rules for these businesses to go by when it comes to their employees. Those are companies that have 100 or more employees that now by that January 4 deadline will either have to have them vaccinated or they will have to undergo weekly testing.

And that doesn't always mean that companies are going to be on the hook to pay for that testing. That is something that the Labor Department says essentially each of these businesses is going to have to work out on their own, whether or not they have a union, whether or not it's the employees paying for that.

But that is that January 4 deadline, though we will see a deadline go into effect before then. And that's in early December, when those unvaccinated employees who go into the office at these private companies that have 100 or more employees will have to wear a mask and undergo weekly testing.

But the vaccine requirement doesn't go into effect until January. We are told by the Labor Department that's essentially so these workers have time to get the vaccine, get those two shots, which, of course, there is a week of -- a period of weeks in between when you get the first shot, when you get the second shot.

And that's for non medical employees, Victor and Alisyn. There are also rules for medical employees. And that is about 17 million people who work at health care facilities that get funding from Medicare or Medicaid.

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They are going to be required to vaccinate their employees. They are not going to have any option to undergo this potential testing if they don't want to get vaccinated. They actually have to get vaccinated.

And one more thing we should note that comes with these deadlines that we are seeing from the Labor Department today is that one for federal contractors. Initially, it was going to go into effect in a few weeks. By December 8, they were going to have to be tested or be vaccinated to do work with the federal government. That has now changed and been pushed to January 4 as well.

Of course, that came with some businesses said it was going to affect the holiday season if it went into effect in January -- or in December. The White House says they just wanted all these timelines to be lined up together.

BLACKWELL: All right, Kaitlan Collins, thank you.

So, a recent Kaiser Family Foundation survey found that 37 percent of unvaccinated workers would leave the job if the employer mandated they get COVID shots or undergo weekly testing.

Evan Armstrong is the vice president of work force at the Retail Industry Leaders Association.

And thank you so much for being with us. Let's talk about this new mandate, Evan.

First, your group was one of the groups that asked the White House to push back this deadline to after the holiday season. It's now right after the new year. How does that change the equation for the companies you represent?

EVAN ARMSTRONG, RETAIL INDUSTRY LEADERS ASSOCIATION: Well, thank you for the opportunity to be here today.

Yes, we strongly advocated to the administration, to the White House that the implementation timeline push us past the holiday season. Obviously, the holiday season is vital to the retail industry. We are already very busy.

And we thought the implementation of this new testing protocol mandate and the vaccine mandate, we needed to push that beyond the holiday season, so we were more successful in its implementation. And, specifically, we did ask for 90 days to push us well past January 1.

And, unfortunately, the 60-day implementation period that gets us to January 4 is likely to result in exactly what we were worried about, which is our members are going to have to implement this during the holiday season, which, again, is going to create additional obstacles for us.

BLACKWELL: So, tell us what that means. I mean, we know that this could impact, what, up to 86 million workers across the country.

Phil Mattingly at the White House reported for us OSHA doesn't require companies to pay for or provide the test. But how do you get this done?

ARMSTRONG: Right.

And we appreciate that the White House and the administration did listen to RILA and other business stakeholders on a few issues, including testing costs. They also strongly wrote in preemption language to ensure that this was a uniform standard across the country and did not conflict with certain state mandates or anti-mandates.

But, ultimately, the implementation of this is going to have to occur during the holiday season. And, as you already mentioned, the first requirements are due in 30 days, on December 4, where the mask mandate will go into effect. And, essentially, that means that our members will have to begin immediately understanding who exactly is our unvaccinated population, because we have to know who is going to be required to wear those masks.

So, in effect, the ETS is going into effect now. And we simply have to be in compliance on January 4, which we plan to be.

BLACKWELL: So let me ask you about vaccines in general.

The White House argues, and they cite Goldman Sachs studies to support this, that vaccine mandates are good for the economy, they're good for the businesses you represent, that it could get some of the five million people who were out of the work force or on the sidelines since the start of the pandemic back into the work force.

So is it the deadline that you oppose or is it the vaccine mandate in general?

ARMSTRONG: The Retail Industry Leaders Association and our members have long been advocates for vaccinations. We have held -- we have created incentive programs and reward programs for our employees throughout this year.

What our main concern was is to be able to have enough time past the holiday season to be successful in the implementation of this policy. And we are concerned that some of these requirements like vaccinations are going to create a talent strain, potentially creating resignations.

And, again, that's a risk that we are worried about taking during the holiday season, where, again, it's the most crucial season for retail. And we are already trying to fulfill high consumer demand, which we know we will, but this is just an added obstacle for us during the season.

BLACKWELL: All right, Evan Armstrong, thanks so much for being with us at, Retail Industry Leaders Association. Thank you for your perspective.

Let's get a different perspective now.

David Michaels served as assistant secretary of labor for OSHA from 2009 to 2017. He wrote the book "The Triumph of Doubt: Dark Money and the Science of Deception, ' served on President Biden's COVID advisory board during the transition to the White House as well.

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Sir, thanks for being with us.

I want your reaction to what you heard there from Evan Armstrong. The one concern about resignations that the Kaiser Family Foundation poll I cited at the top, 37 percent said that they would resign if they had to get vaccinated or take the test every week, let's say that that's just a third of the people who actually follow through with that.

Is this not the wrong time for that, considering that there aren't enough workers to fill the jobs that the companies need filled?

DAVID MICHAELS, FORMER U.S. ASSISTANT SECRETARY OF LABOR FOR OSHA: Well, first of all, the previous guests talked only about the retail industry. But that's only one piece of the whole economy.

This covers 84 million workers in thousands, millions of work sites. But the key is the polling data doesn't reflect reality. United Airlines announced that everybody's going to have to be vaccinated, and they heard that everybody going to resign.

Well, you saw the headlines. Slightly under 600 people finally didn't get vaccinated. Sounds like a lot of people. But United has 67,000 employees. Less than 1 percent actually refused to get vaccinated.

So, when push comes to shove, it turns out a lot of people who are hesitant, for various reasons they don't want to get vaccinated, but they understand that now they have to do it.

In terms of employers, we're all making sacrifices. This is a national crisis. We had 1, 700 deaths yesterday. And this has been going on for over a year-and-a-half. This is the way to step in now and really make a change. We can't wait three months before we implement these things.

So I think this is the right time to do it. I think the White House has been very accommodating to employers who wanted to wait some. And I think what we will see -- and this is what the various surveys have shown -- is, there are millions of people who have left the work force because they're afraid of either getting COVID or spreading it.

Eventually, this is going to bring people back into the work force and really healthy economy.

BLACKWELL: So on the point of these 84 million workers, as you say the number is, how does OSHA enforce something like that?

I mean, first, the 84 million workers who are in private sector jobs with more than 100 employees won't be the same 84 million next week or next month. What's the bureaucracy that's required to make sure that it's verified that there's -- these are the tests and the vaccinations on a schedule that's regular enough that it has some effect?

MICHAELS: Now, I'm glad you asked that question, because so many people don't understand how OSHA works.

This rule will be primarily self-enforcing. When I speak to employers -- and I speak to hundreds of employers -- they don't ask, how will OSHA enforce the rule? They asked, how can we comply? Employers aren't resisting. They're adapting.

This is because, most employers, they want to do the right thing. They want to follow the law. They want their workers to be safe. And they want guidance to make sure they're following the rules. They want know what to do. And they want a level playing field, so they're not disadvantaged by doing the right thing.

And that's what a rule gets you. (CROSSTALK)

BLACKWELL: But, of course, the rule is for those who don't follow that. I mean, there would be no need for government mandate if private sector decided on their own that they would enact these mandates.

So for those that are not following this, how do you then enforce it?

MICHAELS: Right.

And so there will be some. I think, primarily, it'll be enforced by following up on worker complaints. OSHA is going to go out and do some inspections, but for the most part, workers will see what's going on. And the rule says that employers have to explain to workers what their program is.

And then I think OSHA will follow up a lot of times by phone when, if a complaint was made, the employer will e-mail records to OSHA, which have to be done very quickly under the rule. And, sometimes, OSHA is going to send out inspectors.

But, as I said, for the most part, most employers, they do the right thing and figure out exactly how the follow the rule. And it's going to have a big impact.

BLACKWELL: All right, David Michaels, thanks so much for your perspective, sir.

MICHAELS: Thank you, Victor.

BLACKWELL: All right.

CAMEROTA: OK, this is just into CNN, another sentencing in the January 6 Capitol riot.

A Texas real estate agent who had previously tweeted that she was definitely not going to jail is now going to jail.

BLACKWELL: Jennifer Ryan has been sentenced to 60 days behind bars, marking the harshest punishment handed down to any rioter who pleaded guilty to a misdemeanor offense.

Let's go to CNN's Whitney Wild now.

So, did she have anything to say when she was leaving the courthouse?

WHITNEY WILD, CNN LAW ENFORCEMENT CORRESPONDENT: Well, she spoke a little. She and her attorney told reporters that the judge punished her as a warning to other people.

However, they also say she is remorseful. She is regretful. She's going to jail, so you could assume so. Ryan pleaded guilty in August to illegally demonstrating inside the Capitol Building that day. Prosecutors said Ryan pushed a self-serving narrative of the day and that she -- quote -- "did nothing" -- she said she did nothing wrong. She says she did not know that the protest was violent. The judge

said, even if your own conduct was peaceful, you still bear at least some degree of responsibility.

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Judge Christopher Cooper said that Ryan was a cheerleader and noted that she celebrated the riot. The judge also said -- quote -- "I don't think you could have missed the fact that this was no peaceful protest."

Here is what Jen Ryan told reporters after that hearing.

(BEGIN VIDEO CLIP)

JENNIFER RYAN, DEFENDANT: I think that that is a travesty. I think that everybody should be able to tweet without being persecuted and treated like crap.

So it's -- watch what you tweet, because, if you tweet, you can go to jail. I regret ever tweeting. But it's a free country, and I'm allowed to say -- it's free speech.

(END VIDEO CLIP)

WILD: When she told reporters after that hearing indicates that she really believes it was the tweet that landed her in jail, although she does say she's remorseful. She does say she's regretful.

She also says that she's cooperating with the government. The attorney admitted that she met with the House Select Committee -- Victor and Alisyn.

CAMEROTA: Whitney Wild, thank you.

And be sure to join Jake Tapper for a new CNN special report, "Trumping Democracy: An American Coup." It's tomorrow night at 9:00 p.m. only on CNN.

OK, so a nearly all-white jury will decide the fate of three white men charged with killing Ahmaud Arbery. Why the judge thinks that's OK.

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CAMEROTA: Opening statements begin tomorrow in the murder trial of three Georgia men accused of killing Ahmaud Arbery. The defendants are all white. Arbery was black.

BLACKWELL: But the lopsided racial makeup of the jury, 11 whites and one black juror, is igniting some anger and protests across the city of Brunswick, protesters rallying outside the Glynn County courthouse.

Arbery's parents say that they're devastated by these choices.

(BEGIN VIDEO CLIP)

MARCUS ARBERY, FATHER OF AHMAUD ARBERY: They're all racial. And now you have a jury like 1955 trying to bring the same -- trying to repeat the same cycle. That's why we're here fighting. We ain't going for this. We're not going for this here.

WANDA COOPER-JONES, MOTHER OF AHMAUD ARBERY: I was very shocked that we only had one black, African-American man. I mean, that was just devastating.

(END VIDEO CLIP)

BLACKWELL: CNN Amara Walker is in Brunswick.

So the judge acknowledged that there appeared to be some racial bias. But what did he say after that?

AMARA WALKER, CNN CORRESPONDENT: Well, Victor, the judge indicated that he had to act within the bounds of Georgia law, and because of -- the defense provided legitimate and nondiscriminatory reasons as to why they were striking these jurors -- and, of course, many of them were black potential jurors -- they would still be allowed to be seated.

But despite his ruling -- I mean, it was remarkable to listen to this judge, because, as you said, it seemed like the judge was siding with the prosecutors at one point when he said that it appeared there was intentional discrimination in this jury selection process, which ended with, as you said, 11 jurors who are white, and only one who is black.

During this exchange, for about more than two hours in court yesterday, the state was arguing that these potential jurors who are black were disqualified because of their race. The defense denied that and maintained that this was about their already formed opinions about Ahmaud Arbery and their concerns that they would not be able to remain impartial during the trial.

Look, at the end of the day, Victor and Alisyn, nearly all of the jurors are white, 11 white, one black, and they will be deciding the fate of three white men who are accused of chasing down a 25-year-old black man who was jogging, as prosecutors say, in a neighborhood when he was shot and killed by a shotgun.

And there's been a lot of criticism regarding this jury selection and that the jury should reflect the community, right? And if you just look at these numbers, 26 percent of Glynn County is black, while you compare that to 8 percent of this jury being black.

Right now, as you were mentioning, a march is under way here in downtown Brunswick. They're demanding justice for Ahmaud Arbery. It was organized by the Transformative Justice Coalition. And the president of this civil rights group, Barbara Arnwine, basically said this process and even the line of questioning by the defense of the potential jurors was discriminatory.

Listen. (BEGIN VIDEO CLIP)

BARBARA ARNWINE, PRESIDENT AND FOUNDER, TRANSFORMATIVE JUSTICE COALITION: There's so much wrong with what has happened in this trial. It has been racialized from the beginning. And that was done purposefully by the defense.

They lied on us, tried to remove our presence from this courthouse ground.

UNIDENTIFIED FEMALE: We ain't going nowhere. We ain't going nowhere.

(CROSSTALK)

ARWINE: We're not going anywhere until there's a verdict.

UNIDENTIFIED FEMALE: That's right.

ARWINE: And we want people to understand that, in this moment, that there has to be some serious work done in our country.

(END VIDEO CLIP)

WALKER: So the jurors we're told to report to court at 9:00 tomorrow morning.

Of course, that could change as there is a session going on right now and several motions being considered. So we're listening to what will be allowed to be included or excluded when the trial is expected to begin tomorrow -- Alisyn and Victor.

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CAMEROTA: OK, Amara Walker, thank you very much for the preview.

Page Pate is a criminal defense and constitutional law attorney.

Mr. Pate, thanks so much for being here.

Just help us understand why there would only be one black juror, when, if I pull up the demographics of the city where this happened, Brunswick, it is, according to the latest U.S. census, 55 percent black, 40 percent white, Hispanic 8.5 percent, Asian 2 percent. You're allowed to identify yourself as more than one thing, which is why that adds up to more than 100.

But the point is, it's more than 50 percent black, so why only one black juror?

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Well, Alisyn, that's a great question.

Let's start with the fact, though, that the jury is being pulled not just from the city of Brunswick, but from the entire Glynn County area. So you're watering down that percentage to probably about 30 percent. But that's still much, much higher than what we ended up with on this

jury. And even the amount of people, the amount of African-American potential jurors that made it through the lengthy two-and-a-half-week selection process to get to the end, even most of those, almost all of them more struck by the defense.

So it's certainly a very unrepresentative jury if you're looking at the demographic makeup of this county.

BLACKWELL: Yes.

And it's interesting, because one of the attorneys for one of these accused -- this is Mr. Gough, who represents Roddie Bryan -- earlier in jury selection, said that they weren't enough, as he described them, Bubbas and Joe Six Packs, speaking of white men over 40 born in the South without a college education.

So, they know the value of the racial makeup of the jury. But I wonder, if you are making this case to this jury of 11 whites, one black member, does that influence the case you make and how you make it if you believe race was in play in this killing?

PATE: Victor, I don't think there's any doubt that race was at play here in some form or fashion.

And that has been on the minds, not just of the lawyers, not just of the people in this community, but, obviously, of the potential jurors. As we went through the jury selection process, everyone was being asked questions. What do you think about the case? Was race a factor? What are your views on race relations?

So it's been a part of this case. And I think it is critically important to talk about how difficult it was, if you are an African- American juror, to get from stage one a couple of weeks ago, until yesterday, very difficult, because they were questioned with a lot more scrutiny, given the relationships and the social media and what views they may have about the case.

So I can understand the criticism about the process.

CAMEROTA: So why did the judge let that happen?

PATE: Excellent question.

Under Georgia law, basically, it's a two-part process. The state or whoever's challenging the strike has to show that there's at least some basis to believe that the strike was based on race, it was discriminatory. And so, when the judge came out, after hearing the evidence, he said, yes, I think the prosecution has made out an initial case.

But the defense have come up with other reasons. And that is so easy to do under Georgia law. I mean, if you can't come up with a race- neutral reason for a jury strike, you shouldn't be practicing law. And so the judge is not going to drill down, really question them. He's simply going to accept what they have said. And under Georgia law, that's enough.

BLACKWELL: Is there -- if the prosecutor here believes that the racial makeup of the jury played a role in an acquittal, if that's what happens, is there anything the state can do, or does double jeopardy take all that off the table?

PATE: Yes, there's not a single thing the state can do. If they're found not guilty, they're not guilty. The state has no right to appeal at this point.

What I think could happen, if there's a mistrial, and there's an attempt to retry the case, this issue could be argued. But, look, there's a record. And, again, an appellate court is certainly not going to look into the legitimacy of the reasons the defense lawyers are giving for the strike, any more than the trial judge would. So it's a done deal.

This is the jury that's going to hear the case.

BLACKWELL: Page Pate, thanks for helping us understand it.

PATE: Thank you, Victor.

CAMEROTA: OK, food prices are rising, gas prices are rising. Families across the country are facing an uncertain future because of inflation.

We look at that next.

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