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Covid Cases Rise in U.S.; Ahmaud Arbery Trial Closing Arguments. Aired 9:30-10a ET

Aired November 22, 2021 - 09:30   ET

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

[09:30:00]

POLO SANDOVAL, CNN CORRESPONDENT: Authorities there, though it is unclear if they were actually related. San Francisco has been really struggling with a surge in various crimes here, larceny, for example, and theft incidents. Those are up about 88 percent from last year. And, overall, crime in San Francisco, about 52 percent up according to police statistics. But, really, San Francisco is not the only city right now that has been struggling with these kinds of grab-and-go incidents here.

In fact, I want to show you some video right now. We could bring that up full. The incidents took place in Illinois, where about 14 people, as you mentioned just a little while ago, in the middle of the day, basically going into this Louis Vuitton store on Wednesday afternoon making off with about $120,000 worth in merchandise here. When you hear from authorities, they are describing this as brazen, planned and coordinated effort meant to overwhelm employees and authorities. And authorities, for their part, really, Jim and Erica, responding in their way by coordinating and also setting up around there, trying to limit some vehicle access to make sure that it's a safe holiday shopping experience for folks.

SCIUTTO: Yes, you notice people covering their faces, too, so they can't presumably be identified in the security video.

Polo Sandoval, thanks so much for covering.

SANDOVAL: Thanks, guys.

SCIUTTO: Next, a surge in new infections in the U.S. This, of course, before the holiday season approaches. We're going to tell you exactly where the surge is happening, what folks recommend we do about it. That's coming up.

HILL: Plus, just moments away now from the opening bell on Wall Street. Actually, just at the opening bell, 9:31 now. Futures slightly higher this morning. You'll see there, investors weighing President Biden's decision to renominate chairman of the Federal Reserve, Jerome Powell. It will be a slightly shortened week on Wall Street, of course, due to the Thanksgiving holiday. A period with a track record of strong market showings and we'll continue to monitor it all for you.

(COMMERCIAL BREAK)

[09:36:27]

As we begin this holiday week, Covid cases in the U.S., we're seeing a tick up. The seven-day average of new cases approaching 100,000. Dr. Fauci says, listen, if you're gathering with fully vaccinated family members, it's OK to ditch that mask this year. Welcome news for many.

SCIUTTO: True. And the data does seem to show, as we've seen consistently for some time, right, that the new cases concentrated among the unvaccinated, also vaccinated people with pre-existing conditions.

CNN's senior medical correspondent Elizabeth Cohen joins us now with more.

So, walk us through that, right, because I think people often see these headlines and they say, wait a second, how broad is this? So what does the data tell us?

ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: You know, I think that we have to think of the outbreak in the United States is -- it's sort of a bunch of mini outbreaks because the United States is so huge. The problem here, Jim, is that we're seeing more and more states where the cases are going up instead of down.

So I'm going to take you back to about a month ago, October 21st. Take a look at this map. You will see one state, one state, Maine, off in the corner, where the cases are going up. Every other state, the cases were steady or the numbers were going down.

Fast forward to the current numbers. Currently, we have 28 states where the numbers are going up. Twenty-eight states. So this is going in the wrong direction.

Now let's take a look nationally, What we see is that we now have about 92,000 cases per day and 1,100 deaths per day. So, while it feels like we -- I know we all want this to be over, when you have 1,100 Americans dying every day, obviously, this pandemic is still causing terrible, terrible trouble.

Erica. Jim.

HILL: Elizabeth, really quickly to Jim's point, though. What we're seeing, too, is in terms of people getting sick, especially those being -- getting sick enough to be in the hospital, those are the unvaccinated or some vaccinated people who have an underlying condition, is that correct?

COHEN: That is largely what we're seeing. This is still largely, not completely, but largely a pandemic of the unvaccinated. But as Dr. Fauci said, look, if you haven't been vaccinated, and tens of millions of Americans haven't, get vaccinated. If you were vaccinated but it was more than six months ago, get boosted. Now all -- everyone, adults 18 and over, can get a booster. So if you haven't been vaccinated, get vaccinated. If you had got your vaccines more than six months ago, get a booster.

HILL: Elizabeth Cohen, appreciate it. Thank you.

Well, right now, a lot of focus on Europe, where cases are surging, particularly in Austria. A spike there sparking a strict 20-day lockdown. So now what that means there is residents, whether vaccinated or not, they can only go out for essential reasons.

SCIUTTO: CNN reporter Salma Abdelaziz, she is in Vienna, Austria, with more.

Salma, I wonder there, we talk a lot in the U.S. about how this is largely a pandemic or remains one of the unvaccinated. Is it similar in Austria with what we're seeing right now?

Oh, stand by. Apologies, Salma.

We do have the court -- news from court, live pictures inside the court for the trial of Ahmaud Arbery, developments there.

Let's listen in.

LINDA DUNIKOSKI, PROSECUTOR: Today, you are Glynn County.

So why we are here is to go ahead and present you with the state's closing argument. Now, the state gets to go first and last because the state has the burden of proof to prove this to you beyond a reasonable doubt. But not just to prove to you beyond a reasonable doubt the charges in the indictment, but remember from voir dire, you were asked, can you give me full consideration to the defenses presented by the defense if they put any up, OK.

[09:40:06]

And what we've heard is, what? Self-defense and citizen's arrest, which the state has to disprove beyond a reasonable doubt to you as well.

So, ladies and gentlemen, what the state is going to do right now is we're going to go through kind of going to give you a snapshot that kind of like, here it is in a nutshell sort of thing, and then I'm going to take you kind of through systematically, piece by piece, what the law is as it regards to charges in the indictment, self-defense, and citizen's arrest, all right? But the one thing I wanted to tell you before we got started is this, you will have a copy of the indictment with you in the back, OK. You don't have to write down the charges in the indictment. You'll have a copy in the back.

In addition, Judge Walmsley is going to give you a copy of the law, OK, so you'll have a copy. So when I'm putting the law up here, you don't have to furiously write it down. You will have a copy of it back there with you, all right?

So let's go ahead and get started.

This case is really about assumptions and driveway decisions. Now, you heard the defense talk about, well, probable cause. You're going to have to distinguish between assumptions based on gossip and rumor and all this neighborhood talk on Facebook, an actual probable cause to believe a crime had been committed and someone had committed that crime. The state's position is, all three of these defendants made assumptions. Made assumptions about what was going on that day and they made their decision to attack Ahmaud Arbery in their driveways, because he was a black man running down the street.

So, here's what we've got. The bottom line, they assumed he must have committed some crime that day because he's running real fast down the street, right? They did not call 911. They wanted to stop him and question him before they called 911. How do we know? Because that's what they told the police that night. That's what they said on the scene. Hey, stop, we want to talk to you. You can't do that. They made these decisions in their driveways.

So, what's really going on here? You know what's really going on here. Mr. Arbery was under attack. They committed four felonies against him. And those are the four felonies in the indictment. Then they shot and killed him, not because he was a threat to them, but because he wouldn't stop and talk to them. And they were going to make him -- absolutely make him stop. We're going to point a shotgun at you. That will make you stop. That should make you stop right here in your tracks because we want to talk to you.

And what did he do? He still ran away. He still ran away. For five minutes ran away.

Travis McMichael went to intercept him with that shotgun and he turned that corner. We can't see whether Mr. Arbery attacked him or grabbed the shotgun or anything. It doesn't matter because how fast did he shoot him? How fast did he just pull that trigger?

They shot and killed Ahmaud Arbery. They all acted as a party to the crime. You'll note that they've been indicted that way. And I'm going to talk about what party to a crime is that you understand that concept.

But the bottom line is, but for their actions, but for their decisions, but for their choices, Ahmaud Arbery would be alive. And that's why they've been indicted with murder, felony murder and the four felonies that led to the murder.

So, what is the defense? I mean what -- I'm just going to take it right down there and talk about that. What is the defense? We've got self-defense. What is that? Well, they're going to try and convince you that Ahmaud Arbery was at attacker, that he was somehow threatening to them, three on one, two pickup trucks, two guns. Mr. Arbery, nothing in his pockets, not a cell phone, not a gun, not even an ID. They want you to believe that he is the danger to them. And Mr. (INAUDIBLE) said it in the opening statement, he was scary.

So, here's the thing, they're going to try to claim that they were justified in their actions, OK, because here's the thing, ladies and gentlemen, you cannot claim self-defense under certain circumstances. You can't. You don't get to say I was acting in self-defense and there's three of them and it's the law. This isn't just something made up. There's three of them in the law. OK.

[09:45:03]

If you are the initial, unjustified aggressor, you don't get to claim self-defense. If you're committing a felony against somebody, you don't get to claim self-defense. And the third one is if you provoke somebody, so that they defense themselves against you, and then you go, oh, look, he attacked me first, but you really were the one who's provoking the attack on yourself, you don't get to claim self-defense. And that's the law.

So, here's the problem. They're going to try and claim they were justified in starting this in their driveways. They're going to try and claim they were justified in committing all these felonies against Mr. Arbery. How? Because they're going to try and convince you that this was a citizen's arrest. That's what they're going to do.

But here is what a citizen's arrest really is, OK. This is what the law says. This is the statute. And the judge is going to give it to you. A private person may arrest an offender if the offense is committed in his presence, right here, right now, I'm seeing you do it, OK? Right here, right now, I'm watching you commit the crime. I'm witnessing it. You're doing it in my presence.

So, what's the problem for the defendants? Well, we all know that Mr. Bryan's on his porch, fixing it. Where's Travis McMichael? He's on the sofa inside the house. Where's Greg McMichael? This all started when I saw him running down the street.

Now, it also says within his immediate knowledge. Well, the judge is going to charge you that that's synonymous, that means the same thing. So you've got to think about, well, in my immediate knowledge, what does that mean? Think about the eye in the sky, you know, at Walmart. Like you're in Walmart, right, and you see all those things on the ceiling. You know there's a guy in a booth watching a bunch of video cameras, right? So he's not standing next to the person shoplifting, right, when he -- when she shoplifts, right? What's he doing? He's watching it on the camera. That's immediate knowledge. He's not right there, next to the person shoplifting, but he's watching it, so he has immediate knowledge because he can see it, eye in the sky. That's just an example of how to think of immediate knowledge.

But immediate knowledge and inner presence is the exact same thing. In order to make an arrest of an offender, the offense has to be committed in the private citizen's presence.

Do we have that here? No. In addition, you will be charged -- this is the second line, if the offense is a felony. So, once again, the offense has to be a felony. The judge is going to charge you with criminal trespass and loitering or prowling (ph) are misdemeanors, OK?

I'm going to pause right now. I'm going to ask you to read the criminal trespass thing. In order to be a criminal trespasser, you have to enter on the property with the intent to go do an unlawful act or somebody has to have told you, you can't come back here, like Larry English or his representative. Well, Mr. Arbery was never told, don't come back here. You're not allowed. This is private property. He was never told, so he doesn't fall under criminal trespass.

Now, I don't want you guys to make the mistake of thinking that we're endorsing kind of or not acknowledging what Mr. Arbery was doing. I mean, let's get real, all right, what was Mr. Arbery doing? He's going on to somebody else's private property. Yes. What was he doing? We can see it. Wandering around for a few minutes each time, right? And then what would he do? He'd leave. On video, never took anything, never damaged anything.

So, ladies and gentlemen, you decide, is he this giant burglar who just happened to never show up with a bag or any means to steal anything, all right, or is he a looky-lou? Yes, a looky-lou is going in there at night. He shouldn't be doing that. We all know this, OK? But it's trespass. It's a misdemeanor. And on February 23, 2020, none of the defendants knew that he had been inside, in broad daylight, that location. And what did he do on the 23rd of February, he did the same thing he always did, wandered around, wandered around, and then left and ran off down the street.

But they didn't know that. They had no immediate knowledge of that. It wasn't in their presence. Travis McMichael was on the couch. Mr. Bryan's in front of his house. Greg McMichael, you saw, he can't even see down the road. There's that trailer there. Remember the drone video?

[09:50:00]

Citizen's arrest. This was not a citizen's arrest. Not present when any crime was committed. The suggestion that Ahmaud committed a crime is based on what? Not immediate knowledge. Speculation. Speculation. How do we know? Because of the defendants' own words to the police. That's how we know.

Wanting to question Ahmaud demonstrates uncertainty. Hey, where are you coming from? They don't know where he's coming from. What are you doing? They don't know what he's doing. Remember Mr. Bryan heard, what did you steal? OK. They don't know what he's done. They don't know why he's out there running. They don't have immediate knowledge. They have no knowledge. They have speculation because he's running down the street. Wanting to question Ahmaud demonstrates a lack of immediate knowledge, which is required, required under the citizen's arrest law.

Because it's required, that means this was not a lawful citizen's arrest. Remember what Greg McMichael said? Did this guy break into this house today? I don't know. But, hey, law enforcement officers, I'm sure he must have committed some crime today, so why don't you go out and figure out what crime it was that he must have committed today. Why do they think he must have committed something? Because he's running down the street. He might have gone into somebody's house. Pure speculation.

And after he's lying there dead, Greg McMichael's there telling the police, hey, why don't you investigate, because I'm sure he committed some crime today. That's not a citizen's arrest. Not legitimate at all.

So what are you going to hear?

UNIDENTIFIED MALE: I hate to interrupt closing arguments, but the state is misstating the citizen's arrest law repeatedly in this section of its argument, and I'd like the court to instruct the jury that the law will come from the court. This is not an accurate statement of it.

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: The court is going to charge the jury on the law, and, as indicated, you'll have a copy of that charge with you to review during your deliberations.

(INAUDIBLE)

DUNIKOSKI: Thank you.

The judge is going to charge you these exact words. The judge is going to charge you these exact words.

So, what are you going to hear? The state suspects that what you're going to hear from the defense is this, that Travis McMichael had probable cause to believe that Ahmaud stole the stuff off the English's boat in 2019 and was escaping that felony on February 23, 2020, not really sure how you escape on February 23, 2020, from a crime you supposedly committed on some unknown date in 2019 that Travis McMichael's mom told him about. But, basically, we have this where he came in, took the stand, and said, yes, that's what was going on. So I was going to go ahead and arrest if him for this.

Here's the problem. This was completely made up for trial because no one anywhere at any time ever mentioned Larry English's boat, never, on February 23, 2020. Travis McMichael had two hours and 45 minutes to talk to the police. He was given an hour to write a three-page statement. An hour to write it down. Never, ever, ever once said anything about this.

So, what can you go ahead and assume a year and nine months later? Completely made up for trial.

All right, so, simply put, ladies and gentlemen, if you determine that this was not a citizen's arrest, this was not legitimate, he had no probable cause, you can't do this based on the law, then, guess what, they're not justified in killing him. They're not justified in any of the felonies they committed against him. Not a citizen's arrest. Therefore, you're not justified. You're the initial aggressor. You're committing felonies. Eh, self-defense.

And that gets us to the charges in the indictment. So that's what we're looking at here. Based on that, at that point, you may find them guilty of all the charges in the indictment.

All right, ladies and gentlemen, that was the snapshot view of what I think you're probably going to hear from the defense and what the state's position is on that. So now we're going to do some deep diving. What we're going to do is we're going to talk about the jurors' duty, we're going to talk about some legal concepts that you need to be aware of, that the judge is going to charge you. We're going to go over the charges in the indictment.

[09:55:01]

We're going to talk about party to the crime and then we're going to kind of really get into what self-defense and citizen's arrest is. And I know it's going to take a minute. Bear with me. But this burden's on the state. So we have to go through all of these things, all right? So, here we go.

Jurors' duty. First off, this is your search for the truth, OK? This isn't about the state. This is your search for the truth. You are Glynn County. You decide whether they're guilty or not guilty. Not the defense attorneys. Not the state. You. Your search for the truth. You determine what really happened based on the evidence presented, OK?

And, ladies and gentlemen, I'm going to go ahead and tell you right now, what's the evidence presented? Well, you can go ahead and look at State's Exhibit 190, which was the actual video. And 191 is the half speed video. You can take a look at State's Exhibit 194, the night owl video. You can go ahead and take a look at 129. That's that close-up, compressed sort of enhanced for coloration video that was produced that shows the close-up of Travis pulling that shotgun up. You can go ahead and take a look at State's Exhibit 117, Officer Rash's video. You can also take a look at 124, the video from December 17, 2019. And, of course, you can always ask to see State's Exhibit 315, the frame-by-frame, if you want to see it.

So how that works is, you send a note to Judge Walmsley and you go, we'd like to go ahead and review that evidence. And you come into the courtroom. When you come into the courtroom, we don't have to -- we don't get to say anything, OK? Nobody gets to talk. And, actually, at that point in time, you're in control of what you get to watch here in the courtroom. So I want you to be aware of that in case you want to review any of this evidence.

All right. You are the finder of fact, not the state, not the defense. You are the finder of fact. You determine witness credibility, all right? You're the one who decides whether you believe these witnesses or don't believe these witnesses or how much weight you give a witness' testimony. You're going to apply the law that the judge gives you to those facts as you find them to be. And there's what you're going to do.

So, you have a duty to follow the law. You're bound by the instructions and the law that the judge gave you. In other words, this isn't about being an advocate for one side or the other. This is about, what are the facts and here's the law and we apply the law to the facts.

You have a duty to deliberate. OK. The reason I put this slide up is because one time we had a woman who went and hid in the bathroom for like an hour and a half, like hid in the bathroom. And the jurors didn't know what to do. They were just sitting back there for an hour and a half and had no idea what to do. Anything like that happens, just send the judge a note, OK? Anything weird happens, anything you're unsure of happens, send the judge a note. But you have this duty to deliberate, to talk about the case.

Now, sometimes it's helpful to think about what's inside the circle and what's outside the circle, OK, because there's some things outside the circle that you're not -- or shouldn't really talk about. And what are those? Well that mostly concerns penalty and punishment. Ladies and gentlemen, you're going to be given a verdict form. And on that form you're going to write not guilty or guilty. That's all you're going to do, OK? So, it's not about passion or prejudice or you disagree with the law, you don't like the law, conjecture. It's about the evidence.

And so what do you consider? Well, you consider the elements of the crimes. Judge Walmsley's going to give you that. The law. The expert testimony. OK, fingerprints, fibers, the medical examiner, the photos and documents. Look at the crime scene photos. Take a look at those photos. They're hard, but take a look at them. The testimony of the witnesses. The credibility of the witnesses. The defendants' actions. Their driveway decisions and how it led to someone lying dead from two gunshot wounds in the middle of the street.

The elements of the offenses. The reasonableness. And above all, use your common sense. This is the time when you put on that critical thinking cap, OK, meaning you question everything. It's sometimes really easy to see somebody and we want just to go, I want to believe what they had to say. You know, I don't want to believe automatically that they're a liar or anything like that. I want to kind of give them the benefit of the doubt. This is the time, ladies and gentlemen, that you put on that critical thinking cap where you go ahead and scrutinize everything the people on the stand said to you.

So, reasonable doubt. That's the doubt of a fair-minded and impartial juror honestly seeking the truth. It's not about seeking out doubt. It's about seeking the truth.

[10:00:01]

And it's not beyond all doubt or to a mathematical certainty. No, no, no. It's just beyond a reasonable doubt. That's the burden that the state has.