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Prosecutor Cross-Examines Man Who Shot Ahmaud Arbery; Jurors Return For Day Three of Rittenhouse Trial Deliberations; Debate Begins in House on Biden's Social Safety Net Bill. Aired 10:30-11a ET

Aired November 18, 2021 - 10:30   ET



UNIDENTIFIED MALE: Yes, we'll take a mid-morning recess. We'll take a 15-minute recess and continue with the in evidence the case. Thank you.

UNIDENTIFIED MALE: All rise for the jury.

ERICA HILL, CNN NEWSROOM: So, we have been listening here to testimony from Travis McMichael, testifying in his own defense in Brunswick, Georgia. He is one of three men accused of chasing Ahmaud Arbery down in a pickup truck. He is accused of killing him in February of 2020.

Joining us to discuss what we've just been hearing on this cross- examination, Criminal Defense Attorneys Anne Bremner and Sara Azari. Good to have both of you with us.

There was -- we've been hearing from some our own legal voices earlier this morning some criticism on the initial cross-examination yesterday, that half an hour or so from the prosecution, that perhaps she wasn't aggressive enough. What are you hearing today, Sara, in this cross-examination? What do you think she is getting out of Travis McMichael?

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: Erica, she is doing a stellar job. She is actually pointing out, one, his prior inconsistent statements. She is having (INAUDIBLE) to the fact that Arbery was unarmed. She's talking about what we saw 12 days ago. He might have had a gun in his bag (ph). That does not count. That is not imminent bodily injury. And remember (INAUDIBLE) to be satisfied with a citizen's arrest, a valid one, before they get to the self-defense analysis.

I think she's doing an amazing job at getting him to admit that Arbery did not pose a threat, that he was running away, and that this guy was really just investigating. He was not a cop. He was not deputized. He did not have a badge. She got all of this out of him. And yet he was cornering Arbery into answering his questions about where he was going and what he was doing. He was investigating. There is no law in Georgia that allows him to do that and there is no law that compels Arbery to stop and speak to him. I think she's doing an amazing job.

JIM SCIUTTO, CNN NEWSROOM: Those questions you raised there, Sara, overhang this case, right, is that you have a private citizen here making judgments about whether Arbery was a threat, was he armed, had he committed a crime, was there reasonable suspicion or probable cause, I mean, all those things being laid on that person. And that's what the prosecutor seemed to be digging down on.

Anne Bremner, one moment that stuck out to me just a couple of moments ago, she said, the prosecutor, who is Linda Dunikoski, to the Travis McMichael, at this point, Arbery was pinned between the two vehicles, right, one of the points right before the shooting took place. How essential is that detail to you there in terms of describing, you know, over time the cornering of Arbery?

ANNE BREMNER, CRIMINAL DEFENSE ATTORNEY: Right. And we had testimony in this case that he was cornered like a rat. The question in this case is, are these people acting as the law, as vigilantes, acting with some kind of authority or law enforcement on this basically citizen's arrest statute that existed at that time? Are they breaking the law by killing Arbery and not acting in self-defense or are they above the law, which we know they're not. We know nobody is.

So, when you look at whether or not they falsely imprisoned Arbery, that's the felony for felony murder. The question is whether they could lawfully do that under the citizen's arrest statute. And guess what? Arbery didn't commit a felony. He didn't take anything from the building. He didn't intend to commit a crime within a building within meeting the felony burglary statute.

So, that's the problem. I mean, it's kind of a house of cards, a fallacy that they're trying to say we were justified legally, we were acting as the law, and then, therefore, when we pinned him, we were trying to hold him legally, and then when we used force, we were in a place we had a right to be, and we didn't provoke a use of force unlawfully. We were doing the right thing, therefore, we acted in self-defense. The state has to disprove this beyond a reasonable doubt, and it should be a defense verdict.

HILL: And just to pick up too on something you touched on earlier, Sara, one of the things the prosecutor was noting, she repeats, so three times he demonstrated, Ahmaud Arbery demonstrated he didn't want to talk, that he wasn't threatening in any way, verbally or physically, he agrees, Travis McMichael agrees. He didn't want to talk. She was asking him at the time about whether he felt threatened, and he said, no, there was no reason for it, and also talked about his gun falling out of his truck. He put it back because he felt there was no reason for it at the time, but the gun had sort of fallen while he was driving, and he didn't want to pick it up while he was driving because that wouldn't be safe.


Those specific moments, how is that laying the groundwork for, if this is obviously what she wants to do, dismantling that claim of self- defense and how Travis McMichael was feeling in those moments?

AZARI: Done and done, Erica, right? Because if he didn't feel a threat, if he didn't believe that Arbery had gun, if he was running away and just didn't even want to talk to him, how is he a threat? How is that an imminent threat of great bodily injury or death to justify self-defense?

And also to Anne's point, you have to have that felony burglary, and the criticism that was expressed about the D.A. yesterday, no, I think she did a great job yesterday too, because she presented video evidence of Arbery being at this unoccupied home under construction, but that he never broke in, which is an element of burglary, and that he never committed a felony. He didn't steal anything. He didn't do anything while he was on these premises. Unclear why he was going there, it's undisputed that he was going there, but there is no underlying felony to justify a citizen's arrest.

So, like Anne said, these guys, are they taking it upon themselves, maybe because he was a Coast Guard back in the day, that he gets to investigate, he gets pin down people to speak to them because he's fishing around, seeing what's going on in the neighborhood. That is not justification and this is not self-defense.

SCIUTTO: Anne, as folks watch this, there are the things that seem right or acceptable to people, then there's the law, as it was, in Georgia at the time, and there was at the time, though it's since been repealed or largely repealed, a law that allows for citizen's arrest.

From a legal standpoint, how does that change the standard for a private citizen determining probable cause but also a private citizen making a reasonable judgment about self-defense? Does it change it and how significantly, in your view?

BREMNER: Well, basically, the underpinning of the defense is basically saying we were acting lawfully. But the problem is there has to be a reasonable and probable basis that there's a felony committed or that they saw it, that it was committed in their presence for them to make a citizen's arrest. That gives them the justification, basically, to say this is not false imprisonment, we didn't commit felony murder in the course of a felony false imprisonment. So, they're trying to get rid of that charge.

But then when they get to the situation of pinning Arbery and then being involved with having a weapon that they say he grabbed, they can't do that unless they were acting lawfully. And on these facts, it's apparent that they weren't.

And the prosecutor is doing a nice job. You know, one thing with cross-examination, you want to be brief, be brilliant, be seated. I think she needs to wrap it up because I think she's done well with him, and his story, at least, I think at this point is not credible.

SCIUTTO: Yes. Oftentimes, as you watch these things, if you don't often watch it, they can seem very methodical, right, but you do see that each of the points the prosecutor was trying to tick off there. Of course, the question is how the jury receives it.

Anne Bremner, Sara Azari, thanks so much for joining us this morning.

AZARI: Thank you. SCIUTTO: We're going to continue, of course, to watch the Arbery trial. But still to come, the jury has returned to deliberate in the trial of Kyle Rittenhouse. We're going to be live outside the courthouse there, coming up.



SCIUTTO: Right now, another trial we're following closely this morning, jurors in the Kyle Rittenhouse homicide trial, they are back at work for day three of their deliberations.

HILL: On Wednesday, they asked to review a series of videos, including one that led defense lawyers to ask again for a mistrial.

CNN Crime and Justice Correspondent Shimon Prokupecz is live in Kenosha, Wisconsin, outside the courthouse this mornig.

So, just walk us through. What more do we know about that particular video in question, Shimon?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: So, the video is very significant for the prosecution. It is drone video that has been out there that they have had. The difference is that during the trial, they got a hold of a high-definition version. And then what they did was they had it enhanced by one of their forensic folks who enhanced the video.

The prosecution is saying, well, we never -- the defense, I should say, is saying, we never got the high-definition video and, therefore, because we never got it, now they're asking for a mistrial. They're very concerned, understandably, over the jury viewing this video, because when you look at this video, and we're going to show it to our viewers, and it is disturbing, is that it captures the moment where Rittenhouse turns around. It's in slow-mo here. But you can see there Rittenhouse turns around and fires at Joseph Rosenbaum. That is the first person that he shot that then sort of begins a chain of events that led to other shootings.

The defense has been arguing that this video certainly in terms of the self-defense, the proportionality of it, whether or not it's equal to what was going on, prosecution has been arguing it's not. So this is a key piece of evidence for the prosecution. The defense arguing, look, we got this late high-definition video, so, therefore, we want it out. So, that's what they're arguing now, that there should be a mistrial over this. It's not the first one, the first mistrial that they've asked for.

It's probably the second or third, at least, at this point. The judge has yet to rule on anything.

I could tell you, I was just in court. The judge is back on the bench listening to other matters.


So, we don't know if we're going to get a ruling on this mistrial request from the defense anytime soon.

HILL: All right. We know you'll keep us posted. Shimon, I appreciate it.

Still to come here, Speaker Nancy Pelosi offering an update on when the House will vote on President Biden's build back better bill. We expect to also hear more from the speaker any moment.

SCIUTTO: Yes, possible progress on a vote.

We are also keeping a close eye, a very close eye on Brunswick, Georgia, where the man who shot Ahmaud Arbery, one of the three defendants in that murder trial, has been answering questions from the prosecution during cross-examination. We're going to bring that to you live as soon as it resumes.

And here is a look at what else to watch for today.


HILL: Right now on Capitol Hill, debate underway on the House floor on President Biden's sweeping social safety net package, House Speaker Nancy Pelosi sending a letter to colleagues this morning updating the timing on a potential vote.

SCIUTTO: CNN Congressional Correspondent Lauren Fox, this has been a long time coming, seems to be some optimism among Democrats and Democratic leadership and public support expressed by moderates now, that there might be a vote this week.


Is that realistic?

LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: Well, that is the major question today and tomorrow. Will this be the moment that a vote actually takes place on the floor on the president's signature piece of legislation? We are going to find out in the next 48 hours.

What is happening on the floor is they are beginning debate on that larger social safety net package, and the House speaker said that they are still waiting on some key analysis from the Congressional Budget Office on some expensive provisions in both the Ways and Means Committee and the Energy and Commerce Committee. Once they get that analysis, they can give it to their members. Those members can read that analysis and understand whether or not it will affect their yes or no vote on the legislation. Once all of that transpires, then the House speaker, Nancy Pelosi, said in a letter to her colleagues, a vote can take place.

So, what is the timeline for that? It's stale little bit unclear at this moment. All is really resting on the CBO score and that analysis that we expect to come before close of business tomorrow. But it could potentially come sooner. In fact, leadership has been telling members, according to several that I've talked to over the last couple days, that their expectation is that analysis could come as soon as today. If they get it, there's a potential they could vote very late tonight. It looks like it would be more likely they would vote tomorrow.

But, again, this is all very fluid. Things are in flux. And at any minute we're going to see whether or not this analysis is going to be enough for a few holdout moderates who still haven't decided how they're going to vote on this bill. Jim and Erica?

SCIUTTO: Then it would go to the Senate, of course. Are Democrats confident that they have the votes there? I might mention, say, Joe Manchin in that conversation.

FOX: Well, our colleague, Manu Raju, just caught up with Senator Manchin a few minutes ago, and he wouldn't commit to voting for this legislation, as it's written out now. I think the expectation, and this is helping with some moderates in the House of Representatives, is this bill is going to get changed, it may even become a little bit more right of center or left of center over the next couple of days and weeks as this goes through the U.S. Senate.

So, Manchin is still a huge question mark here. He has not committed to voting for this bill, although he did say yesterday that he'll vote when it comes to the floor. When I pressed him on whether he would be a yes, again, he was noncommittal. Jim and Erica?

HILL: Keeping it close to the vest. Lauren, we know you'll be busy. I appreciate it. Thank you.

We do want to bring you right back to Brunswick, Georgia, Travis McMichael on the stand in his own defense in the killing of Ahmaud Arbery. Let's listen in.

Brought back in here, Jim, as we're watching this, I believe we do still have Sara Azari with us, defense attorney, and Anne Bremner with us as well.

As we look at this, what's been interesting is it's always interesting, right, when a defendant takes the stand as a witness. We have three defendants here. We have different legal teams at the same time for the defense. Sara, I'm curious, do you think based on what we're seeing with Travis McMichael, Gregory McMichael, and William Roddie Bryan will also take the stand?

AZARI: Not necessarily, Erica. You know, I think the fact that the defense put up Travis McMichael first, he was the shooter. He was the one that shot and killed Arbery. And he was the critical witness to establish self-defense. And so even though they're all apparently claiming self-defense, to the extent that the evidence will tell the story, I think it's best not to put your client on the stand because look at what had happened, you know, in the course of this cross- examination. It's a very big risk to put your client on the stand. But, of course, with self-defense, sometimes that's the only way you can tell the story, and, of course, you also want to humanize your client.

So, it will be interesting to see whether the other two will also testify or just rely on the evidence.

SCIUTTO: Sara, I hate to interrupt. As we've been speaking there, the cross-examination has resumed. Let's listen in.

LINDA DUNIKOSKI, LEAD PROSECUTOR: You can see Mr. Arbery is well out in front of Mr. Bryan who's videotaping this, correct?


DUNIKOSKI: All right. And you're telling this jury that at this point in time, both your truck is behind Mr. Arbery and Mr. Bryan's truck is behind Mr. Arbery?

MCMICHAEL: That is correct.

DUNIKOSKI: And so he turns around and runs back towards your truck and Mr. Bryan's truck?

MCMICHAEL: From the video, yes.


DUNIKOSKI: Isn't it true that the reason he turned around is he saw your truck coming at him down Holmes?

MCMICHAEL: From that video there, I don't believe so, no, ma'am.

DUNIKOSKI: And isn't it true that you're coming back down Holmes and he sees the front of your truck, so he turns around and that you pass him as he's passing Mr. Bryan?

MCMICHAEL: No, ma'am.

DUNIKOSKI: So, for absolutely no reason whatsoever, Ahmaud Arbery, who could have kept running up Holmes to get away from both of these pickup trucks that have been chasing him, turns back around to go back towards both the pickup trucks?

UNIDENTIFIED MALE: Objection, speculation, your honor. The reason that he turns is a speculation. She's asking him to speculate.


DUNIKOSKI: Sure thing.

UNIDENTIFIED MALE: Your honor, I'm asking for the court to sustain or --

UNIDENTIFIED MALE: It's sustained. She can rephrase it.

DUNIKOSKI: Thank you, Judge.

UNIDENTIFIED MALE: The court permitting her to ask open-ended questions just like the defense would be permitted to ask open-ended and was permitted to ask open-ended questions on cross. Ms. Dunikoski?

DUNIKOSKI: Thank you. So, when you assert that your truck is behind Mr. Arbery and we know Mr. Bryan's truck is behind Mr. Arbery, Mr. Arbery has the opportunity now to run up Holmes, is that correct?


DUNIKOSKI: And yet on the video, we see him turn around, is that correct?

MCMICHAEL: That's correct.

DUNIKOSKI: To run back toward the black pickup truck that had already tried to hit him four times, is that correct?

MCMICHAEL: I didn't see him try to run him over.

DUNIKOSKI: Did you hear Mr. Bryan's statements in open court while you were sitting here?


DUNIKOSKI: All right. And you know he told the police that on four separate occasions he tried to hit Mr. Arbery. You know that?

UNIDENTIFIED MALE: Objection, relevance, your honor.

UNIDENTIFIED MALE: That's sustained. You can rephrase it.

DUNIKOSKI: All right. I'll rephrase that. Did you hear the officers testify to what Mr. Bryan had said?

MCMICHAEL: I heard the officers testify to that, yes.

DUNIKOSKI: All right. And you heard that Mr. Bryan told the police that Mr. Arbery tried to get into his truck or grab his hand or whatever that was on Burford?

MCMICHAEL: On Burford, yes.

DUNIKOSKI: All right. And so, at this point, you're telling this jury, I just want to make sure, that turning around -- you don't know why Mr. Arbery turned around. That's what you're telling this jury?

MCMICHAEL: I don't know why.

DUNIKOSKI: Okay. But when he turned around, you're contending he's now running back towards both your truck and Mr. Bryan's truck?


DUNIKOSKI: All right. So, I'm going to ask you about this whole thing about on Holmes, Mr. Arbery is trying to attack the truck, is what you said yesterday, right?

MCMICHAEL: Yes, ma'am.

DUNIKOSKI: All right. You never told anyone that in any of your statements, did you?

MCMICHAEL: I did not.

DUNIKOSKI: And that's something you've now told this jury for the very first time, correct?

MCMICHAEL: Yesterday, yes.

DUNIKOSKI: All right. You never mentioned that he was running alongside the black truck in any of your statements?

MCMICHAEL: In the statements, no.

DUNIKOSKI: All right. You never mentioned that you were worried about the person in the black truck because you saw the person trying to attack his truck?

MCMICHAEL: Can I refer to the notes?