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Grand Jury Doesn't Indict NYC Cop in Choking Death; American Hostage Pleads for His Life; NYPD Commissioner Speaks Out about Garner Case

Aired December 04, 2014 - 06:00   ET

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

(BEGIN VIDEOTAPE)

JOHN BERMAN, CNN ANCHOR: Protests erupting in New York and across the country.

CROWD: There'll be no peace.

BERMAN: A grand jury decides not to indict a white police officer.

UNIDENTIFIED MALE: We are marching against wrong.

CHRIS CUOMO, CNN ANCHOR: : The police here have shut off the Henry Hudson.

UNIDENTIFIED MALE: This was an arrest for an extremely minor crime.

ERIC GARNER, KILLED BY POLICE: I can't breathe, I can't breathe.

UNIDENTIFIED FEMALE: He shouldn't have been killed in that way.

UNIDENTIFIED MALE: We see a man dying on video, and there's no indictment. How frustrated do people feel?

CROWD: I can't breathe.

UNIDENTIFIED MALE: Can you imagine if we didn't have this video what their story would be?

BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA: This is an issue that we've been dealing with for too long, and it's time for us to make more progress than we've made.

ERIC HOLDER, ATTORNEY GENERAL: All lives must be valued. All lives.

UNIDENTIFIED FEMALE: Yes, we want you to rally, but rally in peace.

UNIDENTIFIED FEMALE: I'm determined to get justice for my husband.

(END VIDEOTAPE)

CUOMO: Good morning, welcome to NEW DAY. It is Thursday, December 4 th, just before 6:00 in the East. Chris Cuomo and Alisyn Camerota here. Just a week after Ferguson, another grand jury decides not to indict another white cop who killed another unarmed black man. This time it is Officer Daniel Pantaleo. He was cleared despite the video that you're seeing right now of the cop choking the man to death in an attempt to arrest Eric Garner. The outrage palpable after the decision. Waves of protestors crisscrossed the city. We were with them most of the night in what was, thankfully, not a repeat of Ferguson, mostly peaceful as I said. Just anger at a system seen as broken.

ALISYN CAMEROTA, CNN ANCHOR: Well, Chris, dozens of people were arrested, mostly for disrupting traffic and causing gridlock.

Attorney general Eric Holder is demanding a federal probe be launched into this case.

Meanwhile, Garner's family is speaking out, rejecting the officer's apology and vowing that this is not the end. We will talk with the speaker of the New York City Council in a moment, who is expressing her frustration and disappointment.

But our coverage begins with Jason Carroll. He is live in Times Square -- Jason.

JASON CARROLL, CNN CORRESPONDENT: Well, this is just one of the places where protesters gathered to voice their anger throughout the night. Hundreds of protesters marched throughout the streets to peacefully express their outrage.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

CARROLL (voice-over): Protesters pouring into the streets of New York last night, after a grand jury did not indict New York City Police Officer Daniel Pantaleo in the chokehold death of 43-year-old Eric Garner.

GARNER: I can't breathe.

BILL DE BLASIO, MAYOR OF NEW YORK CITY: It's a very painful day for so many New Yorkers.

CARROLL: Arrests made throughout the night as outrage pulsed throughout the city streets for more than nine hours.

UNIDENTIFIED MALE: Black lives matter. Black lives matter.

UNIDENTIFIED MALE: Black lives matter. Black lives matter.

UNIDENTIFIED MALE: Black lives matter. Black lives matter.

CARROLL: Most chanting Garner's last words...

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

CARROLL: ... before dying on this Staten Island street.

GARNER: I can't breathe. I can't breathe.

UNIDENTIFIED MALE: I can't breathe.

UNIDENTIFIED MALE: I can't breathe.

UNIDENTIFIED MALE: I can't breathe.

CARROLL: Police, some in riot gear, blocking intersections as protesters began shutting down the city's most iconic landmarks, stopping the flow of traffic into and out of the island of Manhattan for hours. Some lying down right in the middle of the road. The same inside Grand Central Station.

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

UNIDENTIFIED MALE: I can't breathe. I can't breathe.

CARROLL: Where other protesters staged a massive die-in as evening rush hour hit its peak.

Police heavily guarding the Rockefeller tree-lighting ceremony as protesters tried to disrupt the show.

The city's public outcry reaching a fever pitch nationwide...

(CHANTING)

CARROLL: ... from Los Angeles...

UNIDENTIFIED MALE: I am Eric Garner.

CARROLL: ... to Philadelphia. Where protesters took to city hall during their tree-lighting ceremony, holding up signs reading "Black lives matter."

The demonstrations across the country disruptive, but peaceful, fulfilling Garner's family wish.

UNIDENTIFIED FEMALE: Yes, we want you to rally, but rally in peace.

UNIDENTIFIED MALE: No violence. (UNINTELLIGIBLE)

CARROLL: Officer Pantaleo said in a statement, "It is never my intention to harm anyone, and I feel very bad about the death of Mr. Garner." But Garner's wife says it's too late.

ESAW GARNER, ERIC GARNER'S WIFE: Hell no. The time for remorse would have been when my husband was yelling to breathe. That would have been the time for him to show some type of remorse or some type of care for another human being's life.

(END VIDEOTAPE)

CARROLL: A lot of emotion there. Police will be conducting their own internal investigation. The U.S. attorney will be conducting a civil rights investigation. As for the protests, Alisyn, those will continue.

CAMEROTA: OK. Jason, thanks so much for that.

President Obama says the lack of an indictment speaks to larger issues between minorities and police officers. So what's his plan to bridge that gap?

Let's bring in senior White House correspondent Jim Acosta for reaction from the White House. What are they saying, Jim?

JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: Morning, Alisyn.

In a rapid response to the Eric Garner case, President Obama once again promised changes to the criminal justice system. After Ferguson and now New York City the White House knows all too well patience is wearing thin.

(BEGIN VIDEOTAPE)

ACOSTA (voice-over): Sensing a crisis that is growing, President Obama waited just a few hours to weigh in after the decision was announced not to indict a New York City police officer in the chokehold death of Eric Garner.

OBAMA: When anybody in this country is not being treated equally under the law, that's a problem.

ACOSTA: With emotions already raw across the country after the unrest in Ferguson, the president tried to strike a balance, recognizing the important work of law enforcement, while insisting the justice system must change.

OBAMA: I'm not interested in talk; I'm interested in action. And I am absolutely committed as president of the United States to making sure that we have a country in which everybody believes in the core principle that we are equal under the law.

ACOSTA: Attorney General Eric Holder, who will be visiting five more U.S. cities to meet with civil rights leaders on the issue, said the Justice Department is investigating the Garner case.

HOLDER: All lives must be valued. All lives.

ACOSTA: Adding more pressure on the administration, the U.S. attorney overseeing the chokehold investigation also happens to be the woman tapped to replace Holder, Loretta Lynch.

HOLDER: Our prosecutors will conduct an independent, thorough, fair and expeditious investigation. ACOSTA: On Capitol Hill, members of the Congressional Black Caucus

are insisting the president cannot tackle the problem alone.

REP. CHARLES RANGEL (D), NEW YORK: I do hope that the Department of Justice gives Americans an opportunity to take this cancer and cut it out once and for all.

UNIDENTIFIED MALE: Shut it down! Shut it down!

UNIDENTIFIED MALE: Shut it down! Shut it down!

UNIDENTIFIED MALE: Shut it down! Shut it down!

ACOSTA: On the streets of the nation's capital, there was a different kind of gridlock as protesters snarled traffic to send a message.

UNIDENTIFIED MALE: I'm sorry people over here are inconvenienced, but it's inconvenient to get shot in the street. It's inconvenient to get choked on videotape. It's inconvenient to have no justice.

(END VIDEOTAPE)

ACOSTA: And President Obama says he wants to start rebuilding trust in minority communities, in law enforcement quickly. That is why he's calling on this new 21st century task force -- policing task force, which he launched on Monday to issue some recommendations within 90 days -- Alisyn, Chris.

CAMEROTA: OK. Jim Acosta. Thanks so much for that update.

We want to bring now in the speaker of the New York City Council, Melissa Mark-Viverito. Great to see you this morning. What was your reaction when you heard the grand jury's decision?

MELISSA MARK-VIVERITO, SPEAKER, NEW YORK CITY COUNCIL: To be honest, angry and very much frustrated and exasperated. Because we were seeing nationally, right, a sense of injustice that is being meted out and communities feeling that somehow justice is elusive. And so we have to heal, obviously, as a city and we have to consistently demand reform, which many of us are doing. But the anger and the frustration is very valid. And we need to be able to express it in productive ways.

CAMEROTA: I mean, you say a sense of injustice, but this is the justice system. They went before a grand jury with 22 civilian witnesses; 38 interviews were conducted. The officer testified in front of the grand jury, and he said that he was holding onto Mr. Garner just to regain his balance. That was one thing he said. He was also trying to make sure Mr. Garner was not injured, he said, by the other officers who were rushing into the situation. And he wanted to prevent Mr. Garner, he says, from biting them. The grand jury believed him.

MARK-VIVERITO: The grand jury got it wrong. And I think the grand jury's responsibility was just to determine whether there was probable cause and then throw it over to a trial. And I think at minimum there should have been a criminal trial to get the facts fully out there.

The deliberations of this grand jury are not transparent. It is all secretive right now. We don't know what was presented to the grand jury. We don't know exactly what was said by the prosecutor. That's information -- that's a system that is broken, right, where there is no transparency. And so we need to seek that kind of change and demand that that sense of fairness in the process, as well.

So there's a lot of work that we need to get done. But it is wrong to be living in a democracy where certain communities feel a sense of justice is not equal for them.

CUOMO: So you've had that problem for a long time, Speaker.

MARK-VIVERITO: Yes.

CUOMO: And the question is now you have new opportunities to address it. What is the fix?

One fix was you being present in Staten Island last night. Ferguson saw a big vacuum of leadership. So you were out there to let these people know that they are not alone, those who want to protest this decision.

But now you get into what you say is secretive and lack of transparency. That doesn't go to the grand jury system. Because we use it well in a lot of ways. It goes when cops are involved and the prosecutors in those communities investigate their own cops.

MARK-VIVERITO: Right.

CUOMO: Do you think that has to change? And if so, how do you change it?

MARK-VIVERITO: No, I believe that that has to change. I think there is, obviously, a problem when you have individuals who are elected, first of all, and second of all, that have a very close relationship...

CUOMO: They make their cases off the same cops.

MARK-VIVERITO: Exactly. So there's an issue there that has to be resolved.

CUOMO: So how do you change it? Because that's a big issue.

MARK-VIVERITO: Well, what I -- what I'm concerned about as a speaker of the city council and being the legislative body for the city of New York, is how do we insure that reform is happening within the NYPD in the way that they are policing our communities?

Thanks to the mobilizations that have happened, consistently, I, as well as other council members, consistently under the last administration, we're asking for reform and for changes. We've seen vast changes, which we're not going to see the benefits of it overnight. It's very hard to legislate attitude. It's very hard to legislate people's sentiments and feelings. And if there is a bias within individuals who are policing our streets, it's very hard to prove that, right? So there are greater systemic challenges that we need to do with and I think, as a country, we need to face.

And I think the president is speaking to it. We see, obviously, Eric Holder speaking about it, that there is bias within the system and we've got to work to uproot that. That is what our task is at the end of the day. And as legislators and elected officials, we need to step up and show leadership on that front.

CAMEROTA: Why isn't this grand jury releasing the evidence and releasing the testimony in the way that the Ferguson grand jury did?

MARK-VIVERITO: Well, the system here in New York is very different, and that's the way the system is set up here. My understanding is that the D.A. is asking for some aspect of releasing of information. Not all of it.

CAMEROTA: Would that help? Would that go a long way towards the transparency that you're talking about?

MARK-VIVERITO: I believe that if people know exactly what was presented.

CUOMO: But not how. They still won't know how. And it's important. Not to cut you off, Speaker, but...

MARK-VIVERITO: Well, if you have the full transcript, you could see that.

CUOMO: Right. Except you're still not in the room. And we all know, and I don't know why this doesn't come across clearly enough to people. The grand jury is a tool of the prosecutor. You can indict a ham sandwich, because the prosecutor shapes testimony.

MARK-VIVERITO: Correct.

CUOMO: Influences, weighs and -- because the grand jurors, they're not set up to investigate this independently. That's not what it's supposed to be. And if you have that system stay, what are the calls you're hearing right now? Why wasn't there a special prosecutor?

MARK-VIVERITO: Which is what we're asking for. And thankfully, the DOJ...

CUOMO: But it's not that easy in New York, is it?

MARK-VIVERITO: Correct.

CUOMO: Don't you need legislation in order for this to be a mechanism, every time?

MARK-VIVERITO: Well, look, I -- that is a broader, obviously, conversation that we would have to get into. I'm not a lawyer, per se. Obviously, we're interested in the city of New York. Those of us that are council members on the ground in our communities every day, and I represent a community that has high levels of interaction with the police. And this is a reality that I hear from my constituents every day. It's a real problem. When African-Americans, when Latinos, feel that there is a sense of two-tiered system. And that's a very real -- that's a reality. We have to face it.

And these kinds of incidents where we have a grand jury in the case of Mr. Garner, and in the case of Michael Brown, where people feel that it's not fair, that is really a greater challenge that we have.

You know, at the end of the day, Eric Garner's family does not have their father coming home at night. Mrs. Garner does not have her husband coming home, and those parents don't have their child. There is a real, something really wrong when all of us were able to witness this individual, this man being killed in front of our eyes. When you have eight to nine cops around who still cannot listen to his calls for help. There is something broken here.

And I think that, at minimum, that this case should have been taken to trial and that we should have been able to witness that in a fair and open way. Justice was not served here yesterday. The city needs to heal, and I and my colleagues are committed to making sure that New York City system, and nationally we have a system that is fair to all.

CAMEROTA: Speaker, thanks so much for coming to NEW DAY.

MARK-VIVERITO: Thank you.

CAMEROTA: We appreciate hearing from you.

Be sure to stay with us. Later this morning, we will be speaking with Eric Garner's widow about the grand jury decision. That's coming up in our 8 a.m. hour.

We have other news to tell you about. Let's bring in Michaela.

MICHAELA PEREIRA, CNN ANCHOR: Yes. I want to bring you up to date on some breaking news overnight. Good morning, everyone.

Newly obtained video from an al Qaeda affiliate in Yemen, threatening to kill British-born American hostage, Luke Somers. The militants saying that the U.S. has three days to meet their demands. Reports say U.S. Special Forces narrowly missed freeing Somers in a rescue operation just last week. The question is will the U.S. negotiate somehow with these terrorists?

Pentagon correspondent Barbara Starr joins us now. We know we don't negotiate for terrorists. What's being done?

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Well, the U.S. will tell you they're looking for Mr. Somers. Al Qaeda in Yemen, one of the most dangerous al Qaeda affiliates, posted this video, showing him for the first time. He was working as a photojournalist in Yemen when he was kidnapped last year. Let's listen just very briefly to some of what he said on the tape.

(BEGIN VIDEO CLIP) LUKE SOMERS, HOSTAGE: My name is Luke Somers. I'm 33 years old. I was born in England but I carry American citizenship and have lived in America for most of my life.

(END VIDEO CLIP)

STARR: Now, as you say, Michaela, late last month U.S. Special Forces staged a raid inside Yemen, trying to free him and other hostages. He apparently had been moved just a short time before the commandos got there.

Also on the tape, an al Qaeda operative makes that statement threatening Mr. Somers with a, quote, "inevitable fate" if their demands are not met within three days. Of course, we don't know when that three-day clock runs out. We don't know exactly when this tape was made.

The U.S. policy by all accounts remains intact. They do not negotiate with terrorists. U.S. officials say they are still looking for him -- Michaela.

PEREIRA: Barbara Starr, thanks to you.

More victims of sexual assault in the military are coming forward. Now according to a new report from the Pentagon, obtained by CNN, nearly 5 percent of active-duty women report being the victims of unwanted sexual contact in the last year. The number of incidents is actually believed to have gone down, but one in four women are now willing to report misconduct. That is up from one in ten just a few years ago.

A member of the St. Louis Rams is defending his actions following the controversial "hands up, don't shoot" gesture. Some of he and his players did before Sunday's game. Jared Cook says he has nothing but respect for police in the community. Take a listen.

(BEGIN VIDEO CLIP)

JARED COOK, RAMS PLAYER: It was a perfect example of a peaceful protest. If anything, if anything should have been said about it by anybody, it should have been an example of a way to peacefully protest and peacefully get your point across without tearing up your neighborhood.

(END VIDEO CLIP)

PEREIRA: The St. Louis Police Officers Association called the gesture tasteless and offensive.

How about $2 for a gallon of gas? It's a reality in some parts of the country. In fact a gas station in Oklahoma City had regular gas at under 2 bucks a gallon on Wednesday. Parts of Virginia, Missouri, South Carolina, Texas and New Mexico could see prices under $2 by the weekend.

Increased production and more fuel-efficient cars are contributing to the four-year low. The average nationwide remains about $2.75 a gallon.

It feels like the 1970s.

CAMEROTA: Wow!

PEREIRA: It's been a long time since we've seen that price.

CAMEROTA: I'm going to drive to Oklahoma to get that price and then drive back.

PEREIRA: Road trip.

CUOMO: A lot of people feel like it's still the 1970s in terms of what we're seeing with the police.

PEREIRA: Isn't that a good point? Isn't that a good point?

CUOMO: And what do we know now? We know that the officer in the NYPD chokehold case will not face a judge. The question is will he keep his job? Chokeholds are not allowed by the NYPD. But it turns out not all chokes are the same in the eyes of the department. We interviewed the New York City police commissioner about this. You'll hear his explanation.

CAMEROTA: And we're counting down as NASA gets set for a big launch. This could take us one day to Mars. We'll take you live to Florida.

(COMMERCIAL BREAK)

CUOMO: It looks awful, but it is lawful. That's what NYPD Commissioner Bill Bratton had to say in his predictions about how the Eric Garner case would turn out back in August. He said some things that will now be key in determining whether the officer involved keeps his job. Turns out not all chokes are the same to the NYPD. Hear it for yourself.

(BEGIN VIDEOTAPE)

CUOMO: The Eric Garner case, what you referred to as the incident out in Staten Island. It looks bad on its face, because the chokehold that seems to be being used is not allowed to be used. So it's frustrating to hear for your critics that there's an investigation when the situation seems obvious.

COMMISSIONER BILL BRATTON, NEW YORK POLICE DEPARTMENT: It seems to speak for itself. Well, it does not. That's why we have the expression, "It looks awful. But it's lawful."

The role of the district attorney is to determine were any of the actions of the officers involved illegal? My role and responsibility is were any of the actions of the officers involved inappropriate?

CUOMO: Could they be illegal but appropriate? No, right?

BRATTON: There's a potential possibility, interestingly enough.

CUOMO: They could be illegal, but appropriate?

BRATTON: That, for example, many in the media have referred to the chokehold as illegal.

CUOMO: Yes.

BRATTON: You can't find anywhere in the statutes of New York a chokehold.

CUOMO: So where does that come from?

BRATTON: It's a police term of art. It's a policy term. We have a prohibition against chokeholds. It appears to be a chokehold as we understand it. Was it?

CUOMO: How could it not be? Based on what you've seen and I've seen?

BRATTON: I've been around a long time in this business that what it appears to be sometimes may not be what it is.

CUOMO: The Garner incident grew out of a stop for selling illegal cigarettes. The criticism is that you go after these petty things, you wind up targeting poor people, minority people all the time. You got a guy who's now dead, and all he was doing was selling illegal cigarettes. Is that fair criticism?

BRATTON: I think it's an unfair criticism. We're focusing on behavior. And if that behavior happens to be occurring in an African- American neighborhood, a Latino neighborhood or a white neighborhood, we are going to take action. If we were ignoring it, it would be taking our heads off.

(END VIDEOTAPE)

CUOMO: Is that true? That's for to you decide. Tweet us and let us know.

Let's get some perspective. CNN law enforcement analyst and former FBI assistant director Tom Fuentes; and CNN legal analyst and criminal defense attorney Danny Cevallos.

You have problems with how this case was prosecuted or not prosecuted in the grand jury, and then you have problems with what's OK and not OK for police.

So Tom, let's start with the police. New York has its own prohibition against chokeholds for various reasons. It came out in the '90s. You know this. How, when you see that, will it not be interpreted as a chokehold by the cops?

TOM FUENTES, CNN LAW ENFORCEMENT ANALYST: Well, unfortunately, Chris, it -- he was choking him. And whether he meant to or not, I think is a different issue. And we don't know what all the testimony was, with all of the officers, and particularly Pantaleo at the grand jury.

But the particular hold, you know, that's not a hold that was ever taught by the police. And I was taught, you know, a method years ago, when I was a police officer, and when I was an FBI agent; and it was basically to put pressure on both sides of the carotid artery to cut off blood flow to the brain, or reduce it until the person fainted.

CUOMO: Right.

FUENTES: And it supposedly did no permanent damage. The reason police departments banned it was because it was so easy to mis-apply it and put pressure directly on the throat, directly choking a person, cutting off air, as opposed to making them faint.

CUOMO: Sure.

FUENTES: It was just too easy to have an accident.

CUOMO: I get it.

FUENTES: So is you say a lawful hold, I think Pantaleo's side of it is that once they tried to take him into custody and he refused...

CUOMO: Right.

FUENTES: ... it looks more like a horse-collar tackle, that he throws his arm around -- around his neck, and he's trying to bring him down; and in the process of holding him, he does have his forearm across his throat and is choking him.

CUOMO: Tom...

FUENTES: And that is -- that is unfortunate.

CUOMO: Tom, it just seems like, what are we talking about here? He's choking the guy. He's choking him. The choke is not illegal. The grand jury obviously found it was justified in the circumstances. That's why they didn't indict. But he's choking the guy.

Danny, let me bring you on. How is that not a choke? He put his arm across him. He grabbed him; he held. The guy went to the ground. He held onto him the whole time there. It's a choke. It's just a choke. The question is what do the police do about it? But how is it not a choke?

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, I have to admit, in the last few days, I'm starting to question what exactly a chokehold is. Because there are many definitions, Chris. There's submission holds.

CUOMO: Are we playing with this?

CEVALLOS: There are chokeholds.

CUOMO: Are we playing with something to give a cop a break?

CEVALLOS: Well, then let's take a step back. You're asking -- we should is take a step back and ask -- all right, so you're asking was there too much force? Five police officers, however many officers, they apply pressure around the neck. Some people think that's excessive force.

CUOMO: The guy is screaming, "I can't breathe, I can't breathe." He holds the hold.

CEVALLOS: It's interesting you bring that up, because if you talk to law enforcement experts, they will to a man say that if a person is saying, "I can't breathe," that means they can still breathe.

But to a citizen, that sounds like, good lord. If you can't breathe, sometimes you can say, "I can't breathe." And it sounds a little harsh.

So that is -- that goes to the problem right there, which is when it comes to officer's safety, if we tinker with it at all and restrict officers' ability to use force...

CUOMO: Do you think the officers were at risk here? Do you think that's why they found it justified...

CEVALLOS: No.

CUOMO: ... because they thought the officers were at risk?

CEVALLOS: No, but watch -- no, but watch the force continuum as trained to officers. Once you make an arrest, everything is designed for officer safety. And if a person doesn't immediately comply, then they can move right up the force continuum as needed. That's the way they're trained.

CUOMO: Right. But Tom, when you look at this situation, do you think this was a situation where they had to do everything they did to get this guy down? Do you they think he needed to hold onto him?

FUENTES: Yes. I think at that point they had, because he wouldn't comply.

And I think that what you're asking for police officers is that, once the determination is made that an individual, you're under arrest, well, now we can debate it. We can have a constitutional debate on the sidewalk, and you don't see how long that discussion lasts. The police don't immediately put hands on him until after they've been talking about it and four or five officers, including an African- American female sergeant, who was on the scene, overseeing this whole operation.

CUOMO: Understood.

FUENTES: At a certain point they've got to touch him. And that's just the way it goes. And when you resist arrest, physically resist, bad things can happen. And that's what happened.

CUOMO: Understood. Understood. And that is a separate discussion about how you get to that point of why you're resisting.

FUENTES: But it's a big discussion, and it's important.

CUOMO: Absolutely, Tom. I'm with you, and that's why we love having you on.

Now you get to the second piece, and we'll just do it quickly, because this will continue beyond today. A prosecutor uses a grand jury as a tool, Danny. That's why you get so many indictments. Probable cause is a low bar. And they're shaping cases in that direction. That's the reality, true?

CEVALLOS: Of course. Yes.

CUOMO: Not here.

CEVALLOS: Yes.

CUOMO: Not here.

CEVALLOS: No. Well, listen, people are up in arms, because they say, well, the prosecutor, he went into it with some subtle bias. He may not have presented it way he should have if he wanted an indictment. But that's exactly the way our system is designed. Prosecutors have -- and we use the word "plenary." It means almost complete unfettered discretion to decide which cases to charge...

CUOMO: Right.

CEVALLOS: ... and which cases not to charge.

CUOMO: Well, they chose not to charge it and then put it to a grand jury.

CEVALLOS: Exactly, exactly. So if you don't like the grand jury outcome, I've got some bad news for you, because the grand jury is probably the most democratic form of criminal prosecution in a completely undemocratic system that we have, which is criminal prosecution.

CUOMO: Right. We'll continue this conversation. Tom Fuentes, thank you, as always.

Danny Cevallos, there's one last note: the reason you don't put your defendants in front of a grand jury is because you're afraid of what the prosecutor is going to do to them. But when it's a cop, it seems like it works to their advantage, and that's something that's got people very confused. Thank you very much, though. Appreciate it, as always.

What do you think about this? Please join the conversation. We're doing these interviews to keep the dialogue going. You can use Facebook.com/NewDay, or you can just tweet us with our names. All right? Alisyn.

CAMEROTA: OK, Chris. The comments are already rolling in, and we will read some of those.

And we're just minutes away from NASA's next giant leap. Orion could eventually take us back to the moon or even Mars. Will its test flight go as planned? We're counting down to the launch. (COMMERCIAL BREAK)