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Defendant Takes Stand in Arbery Trial; Page Pate is Interviewed about the Arbery Trial; Rittenhouse Defense Requests Mistrial; House Censures Rep. Gosar. Aired 9-9:30a ET

Aired November 18, 2021 - 09:00   ET



BRIANNA KEILAR, CNN ANCHOR: Right? You can have like a Zoom. Too many Zooms. I would like to have one with a dog, though. That's sort of an improvement, I think. I love it, but I think it's -- I think it may have some glitches.


CNN's coverage continues right now.

ERICA HILL, CNN ANCHOR: Good morning. I'm Erica Hill.


Busy morning this morning.

Moments from now, prosecutors in Georgia will continue the cross examination of one of the three men charged in the shooting death of Ahmaud Arbery. The three defendants are accused of chasing down and killing Arbery while he was out jogging in February 2020. Travis McMichael, taking the stand, claims he shot Arbery in self-defense.


TRAVIS MCMICHAEL, CHARGED WITH MALICE AND FELONY MURDER: He had my gun. He struck me. It was obvious that he was -- it was obvious that -- that he was attacking me. That if he would have gotten the shotgun from me, then it was a -- it was a life or death situation.


HILL: Also today, jurors in Wisconsin will begin the third day of deliberations in the Kyle Rittenhouse double homicide trial. Now, the panel spent part of the second day reviewing video evidence, including a drone video that the defense claims is grounds for a mistrial. We'll have more on that in just a moment.

Meantime, also following developments in Virginia. Closing arguments expected today in a federal civil trial over the deadly violence that took place in Charlottesville in 2017. This coming after fiery testimony in court from white supremacists involved in the so-called Unite the Right Rally. We are live in Charlottesville ahead. SCIUTTO: Let's begin with our Martin Savidge. He is live in Brunswick,

Georgia, where he's been following the trial of those three men accused of killing Arbery.

Martin, the state prosecutor expected to pick up the cross examination today. Central to this is the question of self-defense. The legal standard for it. Do we know how the prosecutor will pursue that?

MARTIN SAVIDGE, CNN CORRESPONDENT: Well, you can anticipate it's going to be an extremely aggressive cross examination by prosecutor Linda Dunikoski. Travis McMichael is the man who killed Ahmaud Arbery. He was on the witness stand for close to four hours yesterday, but the prosecution only had about a half hour to actually start their cross examination. So you can expect plenty more to come.

And it's not just the self-defense. Of course, the prosecution is going to point out, you had no legal justification to begin the pursuit that led to the altercation. In other words, if you hadn't chased, nothing else would have happened.

One of those who was watching the testimony yesterday was attorney Ben Crump. He represents the father of Ahmaud Arbery.

Here's what he had to say about what he heard.


BEN CRUMP, ATTORNEY FOR AHMAUD ARBERY'S FATHER: If this was your child, how would you be able to keep composure after you see these people lynch him and then you see them offer this self-defense? And people are actually taking this as if it is credible.

And then moments later, (INAUDIBLE), they actually killed their son and yet they're talking about self-defense? It is, I mean, just asinine (INAUDIBLE) intelligence.


SAVIDGE: The judge has just taken the bench.

We know that the three defendants are also inside of the courtroom, Gregory McMichael, his son Travis McMichael, and William Roddie Bryan, the man who took the cell phone video. That's inside the courtroom.

Outside the courtroom today, we are expecting to have a prayer vigil of black pastors that felt a calling as a result of defense attorney Kevin Gough, who said we don't need any more black pastors here.

So there is going to be a vigil of sorts. We expect a number of high- profile religious leaders. And then there is going to be a march as well on this community.

So, a key day inside and outside of court, Jim and Erica.

HILL: Yes, it certainly will be.

Martin Savidge, appreciate it. Thank you.

Also with us now, criminal defense attorney Page Pate.

Page, good to have you back with us this morning.

We heard a little bit from Martin about what we heard on the stand yesterday. Travis McMichael, as we know, says he was acting in self- defense. I want to play a little bit more of one of the exchanges.


TRAVIS MCMICHAEL, CHARGED WITH MALICE AND FELONY MURDER: I didn't know where I was at, but I knew that he was on me. I knew that I was -- I was losing this. I knew that if I was getting tripped, if I would have tripped, or if he would have got a lucky strike on my head, or if I would have had lost that grip on that shotgun, that -- that I would have been shot or I would have been -- I'd have been in serious trouble at that point.

I knew that he was -- I knew that he was overpowering me, but I didn't know which direction or what mechanics he was doing to overpower me.


HILL: So, Page, Ahmaud Arbery isn't alive to tell us how he felt in that moment or the moments leading up to it. But we do know is he didn't start this encounter.


So, when we look at the facts here, the fact that Travis McMichael went after Arbery first, and had that gun, how does that impact the self-defense claim.?

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Erica, I think it's going to be difficult to prove that self-defense is an appropriate defense here. I think it's going to be difficult to prove that they had a legal justification for citizen's arrest.

But I think Travis McMichael did a very good job on the witness stand. I think he was well prepared. I think this was well rehearsed. And I think he caught the prosecutor flat-footed. I do not think she was expecting him to take the stand. And I think her initial cross examination was weak. It was unfocused. She has got to come back this morning and focus in on the key points. Your training and experience? What training and experience? Did you really have a reason to believe that Ahmaud Arbery had committed a felony offense? She has got to be aggressive. Otherwise, this jury is going to be left with the impression that this was a reasonable person, doing something to protect the neighborhood, because right now, given the makeup of this jury, I think that's what they believe. So she has a huge challenge ahead of her today.

SCIUTTO: A remarkable analysis.

Central to this, of course, is the question of the legal standard for self-defense. And I wonder, does Georgia's citizen's arrest law, which has since been largely repealed, but was the law of the land at the time, does it change the standard as jurors approach this this question of self-defense?

PATE: I mean that's a great question, Jim. The citizen's arrest law never talked about deadly force one way or another, but it is a two- step process. If Travis McMichael and Greg McMichael had a legitimate, legal reason to pursue Ahmaud Arbery, if they were conducting a legitimate citizen's arrest, in other words, if they either saw him commit a crime or had direct knowledge that he committed a felony, then they could pursue him and detain him. And if they were legally doing that, and there was a struggle, and Travis McMichael felt himself in imminent danger of being killed by Ahmaud Arbery, then, yes, he could use self-defense. But those are two huge obstacles that the defense will have to convince the jury that they were legally authorized to take.

HILL: And just weigh in on that, if you could, dig a little deeper on that point for us. In terms of that being a huge obstacle, why, in this case, do you think it is such a huge obstacle for them to say, yes, we were -- this was legitimately a citizen's arrest?

PATE: Because if the judge instructs the jury at the end of the trial, like I expect him to, that a citizen's arrest is not legal unless you actually see the person commit a crime, or you know that this was a felony offense. So it's kind of a two-part analysis as well. And there is insufficient evidence right now. I mean we've seen the videos. We've seen surveillance. We've heard from neighbors. He was hanging around this house under construction. But no one accuses him of committing a crime. So even if they saw him that day in the house, they didn't have a legal basis to pursue him for citizen's arrest.

SCIUTTO: The question of probable cause there.

Page Pate, great to have you on. Appreciate you sharing your experience.

PATE: Thank you.

SCIUTTO: Well, other big trial we're following, less than an hour from now, jurors will begin day three of deliberations in the homicide trial of Kyle Rittenhouse. As the jury presses forward, though, a major development now threatens potentially to derail the trial.

HILL: On Wednesday, the Rittenhouse jury requested to view drone video evidence introduced by prosecutors. Now the video sparking the defense to renew its push for a mistrial.

CNN crime and justice correspondent Shimon Prokupecz is live in Kenosha, Wisconsin, this morning.

So, what more can you tell us about this video the jury wanted to see and why it has the defense now pushing once again for a mistrial?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Yes. Well, first thing, some context and the importance of this video. For the prosecution, this was a key piece of evidence for them. They made a big deal of it. They had it enhanced. They had a forensic imaging specialist come in and enhance this video.

The video was graphic. But it's important to see because it gives some context. And it shows the first initial shooting in the parking lot of the car dealership. But warning to viewers, that it is graphic. And what it shows is, in the moments that Kyle Rittenhouse has this encounter with Joseph Rosenbaum, Kyle Rittenhouse turns around and fires. Here is that video now. Kyle Rittenhouse turns around and fires at Rosenbaum. The prosecution making a very big deal of this video.

What happens here now is that the defense is arguing that they got an enhanced version of this video. It was HD video. They got it late. And so because they got it late, it should have been thrown out. And now they're calling for a mistrial.

Here's the defense and the prosecutors arguing over this yesterday.



COREY CHIRAFISI, DEFENSE ATTORNEY: We would have done this case in a little bit different manner if that was the situation.

We didn't have the quality of evidence that the state had until the case had been closed.

I'm going to be asking the court for a mistrial.

JAMES KRAUS, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: But their client lied about this on the stand, is the state's position. There seems to be evidence to support the position that he lied on the stand about -- about raising the gun. He was confronted with the exhibit. He denied it. The jury wants to see these exhibits.


PROKUPECZ: And that's the other key point there. You heard the prosecutor there talking about Kyle Rittenhouse raising the gun. That drone video the prosecutors believe captures the moments of that where Kyle points the gun at protesters, they say Rittenhouse lied about that on the witness stand and that is why the jurors should see it.

What happened yesterday was that the jurors came into the courtroom, they viewed that video for 45 minutes. This morning, we do expect to hear more from the defense. We'll see what happens. And also keep in mind, the judge has yet to rule on another mistrial motion that the defense has submitted. That's still to be determined, what happens. So we wait for the jury to get here. And, obviously, we'll see what the defense does this morning.

HILL: Yes. All right, Shimon, appreciate it. Thank you.

Up next here, the Republican congressman who was just stripped of his committee assignments for tweeting a violent video doubling down, retweeting that same video. We'll talk about why just two Republicans were willing to hold him accountable.

Plus, the Manhattan DA expected to clear the records of two of the three men convicted for the assassination of Malcom X. How one of them is now responding. One who has maintained his innocence for decades.

SCIUTTO: And we are keeping a close eye on the trial of the three white men accused of killing Ahmaud Arbery. As soon as the cross examination begins of Travis McMichael, the man who pulled the trigger, we're going to bring it to you inside that courtroom, live.



SCIUTTO: Republican Congressman Paul Gosar remaining defiant after becoming the first lawmaker in more than a decade to be censured by the House, just a little over an hour after being stripped of his committee assignments for tweeting an anime video depicting him killing Congresswoman Alexandria Ocasio-Cortez, as well as attacking President Biden. What did osar do? He retweeted a tweet that praised his actions and included, Erica, that very same video.

HILL: Indeed it did. Just two Republicans, Liz Cheney and Adam Kinzinger, crossed party lines voting to punish Gosar.

Let's get straight to CNN congressional correspondent Lauren Fox, who is live on Capitol Hill this morning with the latest.

There are also calls for an ethics investigation into Gosar's actions. Speaker Pelosi saying it should also warrant attention from law enforcement, Lauren.

LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: That's right, Erica. And really a stunning moment yesterday, the defiance from Representative Paul Gosar retweeting a tweet that included that video that got him in trouble, lost him his committees in the first place. And it also ran counter to the fact that Gosar's defense on the floor was that he self-censored and made sure that he took down the video. To retweet a tweet including it just a little over an hour after that censure vote really remarkable.

We should also note that when he was standing in the well of the House of Representatives, he was surrounded by fellow conservative colleagues. He wasn't standing there alone. He had others defending his actions.

And, yes, as all of this is taking place, the ethics committee is going to be investigating what happened here. They are going to be looking into this. And, you know, their work is usually shrouded in secrecy. We may not know the results of that work for many weeks or even months. But another thing to keep in mind here is that House Speaker Nancy Pelosi told me yesterday that this warrants law enforcement attention. She said, any time someone threatens not just a member of Congress, but anyone, and in this case including the president of the United states, she says she hopes that this does get law enforcement's attention. So that's another outstanding question. I do want to give you a sense of what the mood was like yesterday on

the House floor as this was all unfolding. Here's what Representative Alexandria Ocasio-Cortez said about what was at stake yesterday before this vote.


REP. ALEXANDRIA OCASIO-CORTEZ (D-NY): What is so hard -- what is so hard about saying that this is wrong? This is not about me. This is not about Representative Gosar. But this is about what we are willing to accept.


FOX: And, in the end, only two Republicans joining with Democrats here to censure and strip Representative Gosar of his committee assignments. Really a striking moment yesterday. And really a commentary on what the culture in the House of Representatives is at this moment.

SCIUTTO: Lauren Fox, thanks so much.

Joining us now, CNN political commentator Scott Jennings. He's former special assistant to President George W. Bush, also worked a bit for Mitch McConnell.

Scott, good to have you on.

I mean there used to be red lines in Congress, right? I mean we saw how the GOP treated Steve King with his racist positions, and so on. That red line clearly moving here. Some of that, it seems, about McCarthy making sure he's got the votes if Republicans get the majority in 2022 to become speaker.


Tell us, as someone like yourself, a loyal member of party, how you see this. Are you disappointed? I mean clearly there are limits for your old boss Mitch McConnell, right? I mean we saw his speech after January 6th calling out the president for his involvement there. Has -- have we dipped farther than even you would have imagined?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Well, I mean, there are people in the House, including in my own party, who have said and done things that most of us don't condone or approve of. I think the issue here for Republicans was, when the Democrats decided to take the step of stripping him of his committees, when as Republicans see it, Democrats have not policed some of the more extreme elements in their own party. And so I think, ultimately, the -- what's going to happen here is, they did what they did to Gosar. When Republicans take the House, which I believe, by the way, is a mortal lock in the next election, you are going to see retribution and you're going to see Kevin McCarthy -- I mean he laid it out on the floor yesterday of all the members that they think have crossed the lines. And the system that has been set up here is you've got one party policing the conduct of the other party, and not just saying they're wrong, but saying now we're going to take action against you. And so we're now sort of being trapped in this spiral where the two parties are punishing each other, you know, depending on who's in charge.

SCIUTTO: Two Republicans did vote along. I mean Kinzinger and Cheney aren't exactly, you know, left leaning Republicans, just to note.

But, Erica, I'll leave it to you.

HILL: No, I -- well, I think you make an excellent point, Jim. But also, you know, it does raise the question, Scott, of revenge politics, which is what really has been promised and what, to your point, there's a very good chance we could see play out depending on the outcome of the 2022 elections.

But the reality, I think, as you look at that for many Americans is that what they see is a failure of governance, right? And that's across the board here. They're looking for real action in Washington. They're not seeing it.

Now, Republicans may jump on that and say that's great for us because they're seeing Democrats can't lead. But the bottom line is, if you're then coming into office on revenge politics, it's the American people and its democracy that loses.

So, how do Republicans push forward, right, do what they want to do in terms of punishing the opposition, but are they actually going to get anything done, or are they going to be so focused on that?

JENNINGS: I don't think the -- this is going to be a central issue in the election, candidly. I think we have much larger macro issues going on in this country that people are more focused on. And, frankly, a lot of this seems like, to the average casual observer or somebody who doesn't pay that close of attention to politics, they just see this as more fighting between the parties, which we've all come to expect. So I don't expect this to be a leading issue for the Republicans.

But I do expect it to be a reality. If I were Adam Schiff, Eric Swalwell, Maxine Waters, the squad, you know, I mean, there's a number of Democrats that I think Republicans are going to come for, and they're going to say, look, you guys med made this bed, now you're going to lay in it. And we're just basically enforcing the rules that you set up when you had the majority.

And, you know, for the average person, I don't think it's going to make that big of a political difference to them. No one's going to walk into the polling booth and say, well, I was going to vote this way, but now I'm going to vote that way because of some, you know, inner party warfare, you know, over, you know, some House rule that I don't understand.

SCIUTTO: Listen, I do think you're right. I mean it would be nice if we could set qualitative distinctions that threatening members of Congress or the president is in a different category of other things, but, I don't know, subtlety's not a big game on Capitol Hill right now.

Scott Jennings, thanks so much, as always.

JENNINGS: Yes. Thank you.

SCIUTTO: We do want to take you inside the courtroom in Georgia where -- and there he is, Travis McMichael, the man who pulled the trigger against Ahmaud Arbery has now taken the stand for cross examination by the prosecution.

Let's listen in.

LINDA DUNIKOSKI, LEAD PROSECUTOR: You thought first that Mr. Arbery, the man you'd seen on February 11th, may be the one who had run by?



And then you said that you thought maybe Matt had seen him.

MCMICHAEL: That's correct.

DUNIKOSKI: And Matt is Mr. Albenze?


DUNIKOSKI: Then you said, he may have broken in.


DUNIKOSKI: And then you said, maybe Larry English is over on his property?



DUNIKOSKI: And later you indicated that you thought that maybe Mr. Arbery had been caught?


DUNIKOSKI: And then you said that you thought maybe he was trying to get away from the police.

MCMICHAEL: Yes, ma'am.

DUNIKOSKI: But you hadn't heard any sirens or anything in the neighborhood?

MCMICHAEL: Not yet. No, ma'am.

DUNIKOSKI: So, I want to talk to you about some of the legal terms that you used yesterday, OK? All right, so first I want to talk to you kind of about probable cause, all right. And you testified yesterday that you had been trained in the military, for the Coast Guard, that even when you had arrest powers, before you could arrest somebody, you needed probable cause, correct?

MCMICHAEL: That's correct.

DUNIKOSKI: All right. And you even gave the jury the definition of probable cause, correct?

MCMICHAEL: Yes, ma'am.

DUNIKOSKI: All right. And you said it was a level of suspicion by a reasonable and prudent person given the overall circumstances to believe a crime has been committed.

MCMICHAEL: Yes, ma'am.

DUNIKOSKI: All right. But that's really only half the definition, isn't it?

MCMICHAEL: That's what I was -- that's what I was taught, in my training, was that definition right there.

DUNIKOSKI: All right. So isn't it correct that -- well, let me ask this way, didn't you learn from your training that you need two parts? That --

MCMICHAEL: Reasonable suspicion first, and then probable cause.

DUNIKOSKI: So, isn't it true from your training that you need two parts of probable cause. You need probable cause that a crime has actually been committed and that the person you're arresting is the one who committed the crime?

MCMICHAEL: That would be correct.

DUNIKOSKI: All right. But you left out the second part, that you actually have to have probable cause that the person you're arresting is actually the one committing the crime.

MCMICHAEL: That makes sense. I mean -- that was the person that I assumed that was committing the crime. The probable cause was him.

DUNIKOSKI: So you assumed he was the one committing the crime?


DUNIKOSKI: All right. So you'd agree that as law enforcement, when you were there in the military as a boarding officer, that even if you know a crime is committed, when you have several suspects, you can't just go and arrest the first suspect, you have to actually have evidence that that person is the one who committed that crime, correct?

MCMICHAEL: That's correct. And at -- and I believe I had it with the videos that I have seen with him -- with Mr. Arbery being the one that has been there multiple times, and then what I witnessed on the 11th, with him sneaking through those yards -- or through that yard and then the way that he reacted to me when I put the lights on him, reacting like he was going for a gun and then went into that house after we had our altercation.

And then Mr. Albenze being there that same evening and verified that he's -- that on the video is the same guy that he's seen. And then seeing Mr. Albenze pointing down the road led to probable cause and then dad saying that that was the same individual, the probable cause that it is the same guy that has been at that house that has been breaking into and stuff has been stolen. So that overall, if -- the totality of everything led me to go down there and see if that was him.

DUNIKOSKI: So, the totality of all of that led you to go see if that was him?


DUNIKOSKI: Meaning the guy you had seen on the 11th?


DUNIKOSKI: All right, so you used the word totality of the circumstances a whole bunch here, haven't you?


DUNIKOSKI: All right. So, let's go ahead and back up for a second.


You had your gun stolen, correct?


DUNIKOSKI: On January 1st, 2020.

MCMICHAEL: Yes, ma'am.

DUNIKOSKI: And you had a suspect in mind for that theft of that gun, correct?