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Closing Arguments Underway For Three Men Charged in Ahmaud Arbery's Death; Prosecution Wraps Closing Arguments in Arbery Killing Case; Five Killed, 40-Plus Hurt After SUV Slams Into Wisconsin Christmas Parade. Aired 10:30-11a ET

Aired November 22, 2021 - 10:30   ET

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

[10:30:00]

LINDA DUNIKOSKI, PROSECUTOR: Look at this. I mean, take a look at this. He's not even up to those mailboxes on the side. And that's Travis McMichael pulling that shotgun up.

Now, what are they going to tell you? They're going to tell you, what Travis said, oh, he was running toward me. I could tell he was going to attack me. Is that reasonable? Who brought the shotgun to the party? Who took the shotgun out of the car? Who pointed the shotgun? The guy is running, running away from them for five minutes.

Here's the thing. You cannot take the danger to yourself. That means you cannot be the initial unjustified aggressor. You can't create the situation and then go, I was defending myself. You just can't do it. You moved to intercept. He attacked him. I'm not talking about Mr. Arbery attacking Travis.

All right, here's the concept of excessive force, and this is a big one, because here's the thing, if you use excessive force during your self-defense, guess what? You're not justified, you're guilty. Not justified, you're guilty if you use excessive force, because it's force that exceeded what was reasonably necessary. You guys ever heard the term, that saying, can't bring a gun to a knife fight? It's unfair, right? You can't bring a gun to a fistfight. It's unfair, right? You can't use excessive force. You can't call someone out and go, hey, buddy, let's take it outside, you're starting it, and then when that person starts to beat you up and is better at the fight than you, you don't get to pull out a gun and shoot him. You started it. You called them out. They're better at this than you. And all of a sudden, I'm scared, I have to defend myself. That's not the way this works.

Excessive force. So, first off, Ahmaud had to be using unlawful force against them. Remember the guy running down the street right here? He's using excessive force, he's unlawful force against them right here, right? Then Travis McMichael had to reasonably believe that he had to defend himself against Mr. Arbery. And they're going to get up here, and (INAUDIBLE) they're good, these defense attorneys are good. They're going to get up here and make it perfectly -- they're going to make this seem like, oh, yes, this is scary, and Travis had to pull a shotgun out on him. They're going to make it seem so reasonable. Put on your critical thinking caps. Use your common sense after giving their closing arguments.

Now, the force has to be reasonable. Unarmed man running with hands at the sides, never pulled out a weapon, never threatened anybody. This is completely excessive force. Even if you think, ladies and gentlemen, if you go, hey, it was citizen's arrest, hey, he was rally defending himself, you then still have to go, this wasn't excessive force in order to find them not guilty, all right?

What you didn't hear from the defense in their opening statement are the three instances when a person can't claim self-defense under the law in Georgia, can't be the initial unjustified aggressor. This is important. You can't start it with your driveway decision unjustified because you didn't see a crime committed that day and then claim, oh, I acted in self-defense.

What's the justification? What are you going to hear? We wanted Ahmaud Arbery to stop and talk to us and he wouldn't. So, we tried to force him to stop and talk and we killed him. I mean, that's really what they're going to tell you. They'll probably make it seem much more palatable and okay, but that's what really they're going to tell you. You can't commit felonies against someone and then claim self-defense. You can't be the armed robber in the convenience store pointing the gun and when the clerk goes to defend himself by grabbing that gun or hitting the armed robber, you can't shoot him. The law goes, not self- defense when you're committing felonies against someone.

And you can't provoke someone into defending themselves against you so that you can intentionally harm them and claim self-defense. Okay, what is that about, ladies and gentlemen? Think of your schoolyard bullies. Think of the three boys walking behind the one who's the target, you know, kid who's getting abused, right? Okay? So, you've got three-on-one. They're going down the hallway. They're menacing him, maybe threatening him, and they get him up against the locker, and he has nowhere to go. He's trapped, right? So, what does the kid who's being bully do? He takes it and takes it until he can't anymore and finally shoves the one bully. And what does that bully? Bam, punches the target child, right?

What's the bully always say?

[10:35:00]

He started it. Isn't that what the bully always says? He pushed me. I was defending myself. Yes, three-on-one with one kid up against the locker. You're bullying him. And he actually pushes you and you get to then claim you're acting in self-defense when you punch him? Yes, what the law knows people do this. I mean, you did this, this is the law. The law knows people will go to other people into defending themselves so that they can claim, I was acting in self-defense. You can't do that either, three-on-one, two pickup trucks, two guns, unarmed. Mr. Arbery was unarmed.

So, what are you going to hear? I don't know what they're going to say. They're good. They're good defense attorneys. They're going to get up here and the state is so worried they are going to make it seem so reasonable that everything Travis did and Greg did is so reasonable. I'll just ask you, use your common sense and put your thinking caps on.

But this is what I anticipate, what we anticipate they're going to say. The victim started it or you're going to hear that he was the aggressor, okay, because he was running towards Travis McMichael, but he was running away from Mr. Bryan, who'd already tried to hit him with the pickup truck. And Gregory McMichael said it, he was trapped like a rat. He knew there was nowhere else to go. Or they're going to tell you that, ladies and gentlemen, this is really about the front of the pickup truck. Forget everything else. It was all about the front of the pickup truck. And they're going to try to make it seem like, well, he attacked Travis McMichael.

We can't see. What we know is his hand was like this, right? It doesn't matter. You know why it doesn't matter? Because they weren't committing a citizen's arrest, they weren't in fear, real fear of imminent danger from Mr. Arbery, they were committing the four felonies. That's what they were doing. You're going to hear, we weren't committing felonies. We were doing a citizen's arrest. We were trying to provoke him into defending himself. You're probably going to hear this. Yes, we pointed a shotgun at him to get him to comply with our orders, not sure anyone should comply with their orders, to stop and talk to us, but there was no reason for him to defend himself against because this was a citizen's arrest.

Ladies and gentlemen, this is the bottom line. As I said in opening, and I'll say it to you again, this was an attack on Ahmaud Arbery. They committed the crimes. They committed the four felonies. They attacked him. They shot and killed him. They can't claim self-defense under the law because they were the initial unjustified aggressors and they started this. And they were committing the felonies against Ahmaud Arbery.

They have to somehow justify their actions by claiming citizen's arrest. I'm going to remind you once again evidence from the witness stand, they never, ever said on February 23rd, 2020 that they were doing a citizen's arrest or trying to arrest him. It was all, we wanted to stop, we wanted to question him about what he was doing because he must have committed a crime that day and we were going to hold him so the police could go back and figure out what crime it was that he must have committed because he was running down the street. Citizen's arrest, the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping, a private person may arrest him.

So, what are they going to do? They're going to do this. Oh, I'm sorry. I forgot to tell you this. A private person may not act on the unsupported statements of others alone for their probable cause. What does that mean? No, gossip, no hearsay, nothing along those lines. In other words, my mom told me about this, where she has no personal knowledge of it, doesn't count. That's unsupported, unreliable statements of somebody else. You have to have more than stale information from an unreliable source.

A private citizen's warrantless arrest must occur immediately after the offense or in the case of felonies during the escape. If the observer fails to make the arrest immediately after the commission of the offense or during an escape in the case, his power to do so is extinguished.

What does that really mean? A citizen's arrest is for emergency situations when a crime really happens right in front of you and you can take action right then and there to arrest somebody, because you know about it.

[10:40:05]

You've seen it. You're taking action right then and there. If it's a felony, you can run after the person and chase him down. That's all this means. So, it's not a citizen's arrest. They never said it. None of the defendants saw Mr. Arbery commit any crime that day. They were detaining him for police so that they could investigate and find the crime that he must have committed that day, because what is he doing? He's running down the street. That's not the law, ladies and gentlemen. It's not the law at all.

Travis McMichael, remember all his assumptions? He got up here and I wrote them all down. He may have run by. Madam Albenzi (ph) may have seen him. He may have broken in. Maybe the owner is down there. He may have been caught. He may be trying to avoid the police. That's testimony from the witness stand. He didn't know anything, absolutely nothing.

So, where are we going to end up? This is where we're going to end up. Travis McMichael had probable cause to believe that Ahmaud stole the stuff off the English boat in 2019 because his mother gave him some gossip about stuff being stolen, and he was escaping. Use your common sense. How do you escape from a crime on an unknown date in 2019 on February 23rd, 2020? I'm sure they'll explain it to you, but use your common sense.

And remember, what do you think? You think all this was completely made up for trial especially given no one ever said it on February 23rd, 2020? Ladies and gentlemen, use your common sense. Put your critical thinking caps on. That's all the state is going to ask you to do.

Ladies and gentlemen, I give you the defense.

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: All right. What we're going to do, ladies and gentlemen, is take a short recess. Let's go ahead and take a 15-minute recess and then we'll come back for the continuation of closing arguments. Again, do not discuss this case amongst yourselves until all of the closing arguments have been made and you have received the final charge of the court, all right?

ERICA HILL, CNN NEWSROOM: You're listening to the judge there. We have just wrapped up -- the prosecution just wrapping up its closing argument. The judge announcing a short break before they come back with the defense.

We also have with us Sara Azari, White Collar Criminal Defense Attorney, who has been watching along with Jim and myself for the last, oh, well, not quite an hour, I guess, maybe about an hour. Sara, as you watch this, one of the things that struck me was this very methodical closing argument that the prosecutor put out there. She went through each one of the charges, actually said to the jury the order in which she thought they should consider those charges. And she kept coming back to two phrases, common sense and critical thinking. How effective is it when a prosecutor approaches the jury in that way?

SARA AZARI, WHITE COLLAR CRIMINAL DEFENSE ATTORNEY: I think she was really effective, Erica. Look, the defense has been factually deprived in this case from the get-go and McMichael's testimony did not help at all. But we saw the defendant become the prosecution star witness. There is -- he confirmed that there was no threat, that, really, the only threat were the three defendants committing multiple felonies that this prosecutor laid out very clearly, refute self-defense. You don't get to commit felonies and be the first aggressor and under the self-defense law in Georgia claim self-defense.

And she also went through this methodically in terms of the analysis, right, because the first part of the analysis was the citizen's arrest. If you don't have a valid citizen's arrest, you don't get to self-defense.

JIM SCIUTTO, CNN NEWSROOM: So, on that question, because that was also central to the prosecutor, Linda Dunikoski's closing argument here. She described the standards for citizen's arrest as requiring a crime committed in your presence, which she says is not met in this case, or that you had immediate knowledge of a crime being committed. She said, this case doesn't meet that standard.

Now, there was a moment when the defense lawyer jumped up and said, wait, the prosecutor is not accurately describing the citizen's arrest law. You're a lawyer. Who was describing it correctly?

AZARI: The prosecutor. I think the defense lawyer was -- you know, sometimes we interject to sort of break up the prosecutor's momentum in closing arguments. But, really, she's correct, right, because these guys proceeded on assumption. They said, oh, February 11th, this might have been the same guy at this house. No. That is not immediate knowledge. They didn't know where Arbery was earlier that day, let alone committing a felony offense, and they certainly didn't see it.

So, she's very correct to say you can't proceed on gossip, you can't proceed on hearsay.

[10:45:03]

You have to have either seen the crime or have had immediate knowledge. 12 days ago was not immediate.

HILL: It seems like an odd -- I mean, you point out, Sara, that this will happen. Maybe the defense attorney will try to disrupt the momentum for the prosecution. The judge, though, when that moment happened, said to the jury, didn't really be another way, either way, simply said, the jury will have a copy of the law. If you're interrupting by saying that she's not accurate and you know the jury is going to get a copy of the law, which you say is accurate, I mean, it seems like sort of an odd decision to make if that's where you're going to interrupt momentum.

AZARI: It is. But remember, I mean, this is not the same lawyer, but we've seen another defense lawyer in this case make those frivolous -- the black pastors can't be in the courtroom motions over and over and over again. You know, they're just grasping. They're grasping. This is an indefensible case. Honestly, I rarely say this, but it's a very difficult case for the defense.

And so I think this judge is saying -- this judge did not admonish the prosecutor. You can absolutely, as an attorney making closing arguments, break down the law, break down the elements unless you're grossly misstating the law, then that's obviously going to be an issue with the court. But this judge would have told her she was wrong if she really was wrong. Sorry for the interruption. I think this judge did not because she was correct.

And he was basically saying, look, ultimately, the instruction will come from me and you are to use those instructions as the law that you're applying the facts.

SCIUTTO: Understood. And, listen, we're about to hear the defense argument. Of course, we will bring that to our audience live.

There was a moment in the prosecutor's argument that struck me as critical to the prosecution's case, and that was what she described what the accused, the three men accused of the murder of Arbery, brought to this, including the weapon. Have a listen to that. I just want to see in your experience if you thought that was an impactful moment.

(BEGIN VIDEO CLIP)

DUNIKOSKI: That's Travis McMichael pulling that shotgun out. What are they going to tell you? They're going to say, what Travis will say, oh, he was running towards me. I could tell he was going to attack me. Is that reasonable? Who brought the shotgun to the party? Who took the shotgun out of the car? Who pointed the shotgun? The guy is running, running away from them for five minutes.

Here's the thing. You cannot take the danger to yourself. That means you cannot be the initial unjustified aggressor. You can't create the situation and then go, I was defending myself. You just can't do it.

(END VIDEO CLIP)

SCIUTTO: Impactful moment? Does she describe the law correctly there?

AZARI: Absolutely, Jim, because, look, he was unarmed. That's a huge fact, right? He was unarmed. He was running away. So, who's really the threat? It's the defendants. One has a gun. One's threatening him. Two are going at him with a truck.

So, the idea here is that also remember she talked about this in the context of credibility, she said that, initially, he had an hour to write out a statement for the detective and never mentioned that Arbery was grabbing his gun and striking him with it. And then suddenly he gets before the jury and these facts come out. Whenever a defendant or witness adds facts over time, that's a big red flag that they're lying.

And we have got video here. We know exactly what happened. This was a guy who was running away from them. They had no idea whether he had committed a crime. They brought the gun. They used the gun. They committed multiple felonies. They were not acting in self-defense.

HILL: Sara Azari, great to have you with us, as always. Thank you. As Jim said, we'll bring you the defense closing arguments too once those begin.

Up next here, disturbing new details about the SUV that plowed through a Christmas parade in Wisconsin on Sunday killing least five people. We're now learning where the suspect was coming from with a live report, next.

(COMMERCIAL BREAK)

[10:50:00]

HILL: We have more for you on the tragedy at a Christmas parade in Waukesha, Wisconsin. Witnesses say they knew something was wrong right away.

(BEGIN VIDEO CLIP)

THOMAS KLUKA, WITNESS: I noticed something was not right. And then I seen kind of like just people flying as I stood up. I'm, like, oh, no, my daughter stood up. I threw her out of the way, and then I basically yelled, get out of the way. And my wife got out of the way. And by the time she did, the car came right past me within at least two feet. I could have touched the car going by.

(END VIDEO CLIP)

SCIUTTO: He threw his child out of the way of that car.

CNN's Natasha Chen joins us from the scene in Waukesha. Natasha, what more are we learning particularly about the person of interest in this case?

NATASHA CHEN, CNN NATIONAL CORRESPONDENT: Yes, Jim and Erica. We know that there is a person of interest in custody, and the police wouldn't really answer any questions about what role that person played or anything that person said to them when he or she was taken into custody. That story that you just heard from, that man who was at the parade, it's what we're hearing from other folks as well, including people who lived in a nearby apartment building who actually grabbed people and pulled them into the building to get them out of the street.

Just to remind people of exactly what happened here, the annual Christmas parade by the city of Waukesha here started in the afternoon.

[10:55:01]

The parade route was along mostly Main Street headed west. And this red SUV was actually going in the same direction as the parade.

Where we are standing right now is about three blocks we of where that car hit the first group of people. There are some really disturbing videos of that SUV hitting a marching band, speeding right past a small child, missing her by inches, a lot of people jumped in immediately to help.

Right now, we know of at least five people who have been kill killed, about 40 people who have been injured. And that number really rose overnight because, initially, there were emergency responders bringing people to six different hospitals in the area, but officials also said that people arrived at hospitals on their own in private cars. So, you can just imagine the panic and the people trying to help each other, family members trying to figure out if their loved ones are okay.

Something that really stuck with me in talking to one of the witnesses was how she described parents calling out their children's names and just the screams and another witness saying that she heard thuds when there was impact between the car and people. So, just really horrifying for this town right now.

HILL: Yes, absolutely. Natasha, thank you.

Joining us now to discuss is CNN Law Enforcement Analyst Andrew McCabe, former Deputy Director at the FBI.

As we look at what we know this morning and how this is playing out, what are your main questions at this point?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST: Well, Erica, I think everyone has the same question in terms of motive, like what compelled this person to drive their car at that rate of speed through a crowd of people, you know, gathered to celebrate the holidays? It's just confounding. But, you know, we're not going to get an answer to that right away, certainly not until law enforcement feels more comfortable sharing some of those details.

We've heard different reporting this morning that he may have been fleeing another incident. Law enforcement has not corroborated that as far as we know just yet. But it makes sense in a way based on what we saw in those videos last night. The vehicle appeared to -- even though going down the parade route, it appeared to avoid some of the folks that he passed, at least initially, which is, you know, not what you typically see when someone attacks a large crowd with a vehicle intentionally.

SCIUTTO: Yes. Andrew, there are hundreds of parades like this, as you will know, from your time in the FBI, you cannot protect against everything. Not everything is a fortress. Do you see any security shortcomings here, right, given that we do know a larger threat from the possibility of vehicles, the circumstances still unclear? Any shortcomings you would have identified?

MCCABE: Well, it's hard to say definitively, Jim, at this point. But I will say this. I mean, you're absolutely right. We have a broad spectrum of tools to use to protect these sorts of events, but every city, every town doesn't have the same resources to deploy, right? So, here in the nation's capital when the president is going to walk down Pennsylvania Avenue after he's been inaugurated, the Secret Service completely locks that into what we call a frozen zone. That's just not possible in every small town around America when you have a local parade.

But I think what local officials will be questioning, how did they block the major access points to that route? We saw the use of some barricades that were easily penetrated. Maybe next year you see salt trucks or snow plows or larger, heavier, movable barriers utilized in those places rather than just kind of warning signs and things of that nature. But that all remains to be seen. I hope the security officials in Waukesha will take a hard look at that.

HILL: In terms of that too, we did see some changes, right, after other incidents had happened where vehicles were used as weapons. There's also, you know, the fact that more people are out this year. The fact you're holding events again, I would imagine that will also come into play for local law enforcement as they put out their messaging surrounding upcoming events so that they can let people know what measures are in place.

MCCABE: No question, Erica. We are very focused on the enjoyment of being able to convene together as communities, as crowds in public spaces. But what we have to remember is that with those convening moments, we are also going back to the conditions that we have seen very clearly many times in the last few years, conditions that are exploited by folks who are wishing to do harm or to terrorize populations.

You know, I was looking back last night. I think in 2017 alone, we saw about four or five different events like that around the world but here in the states as well. So, it's a persistent concern.

SCIUTTO: Andrew McCabe, thanks so much, as always.

[11:00:00]

And thanks so much to all of you for joining us today on yet another busy news day. I'm Jim Sciutto.

HILL: And I'm Erica hill.

Stay tuned. At This Hour with Kate Bolduan starts right now.