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Fallout from Garner Case Grips Nation; Pentagon: More Sexual Abuse Cases Reported; Interview with Sen. Kirsten Gillibrand

Aired December 05, 2014 - 07:00   ET

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

CHRIS CUOMO, CNN ANCHOR: Let's give you some complete coverage here, starting with Alexandra Field live in New York's Times Square right now.

Alexandra, good morning.

ALEXANDRA FIELD, CNN CORRESPONDENT: Good morning, Chris.

You know at this protest, grown tremendously in terms of numbers. These are larger protests than the city has seen in a long time. Overnight we saw demonstrations popping up in all areas of the city. And also in a number of cities across the country.

There have been arrests, but these are largely peaceful protests, however. The message is full of passion, and the people who are out in the streets say that this is about Eric Garner, but it goes beyond him.

(BEGIN VIDEOTAPE)

FIELD: Why were you arrested? Why were you arrested?

UNIDENTIFIED MALE: For standing and protesting.

FIELD (voice-over): Protesters in cuffs across New York...

UNIDENTIFIED MALE: They wouldn't let us walk through Times Square.

FIELD: ... after some seven hours of marching.

(CHANTING)

FIELD: Police cracking down as thousands of protesters gathered for a second night.

(CHANTING)

FIELD: Standoffs but no serious violence replicated across the country. Nationwide, outrage Garner's daughter says she appreciates.

ERICA GARNER, GARNER'S DAUGHTER: This is not a black-and-white issue. This is a national crisis.

FIELD: In Chicago, protesters clashed with police after shutting down a major thoroughfare. And in D.C., protesters staged a die-in only blocks from the White House.

UNIDENTIFIED MALE: No justice!

UNIDENTIFIED MALE: No peace!

UNIDENTIFIED FEMALE: No peace!

UNIDENTIFIED MALE: No peace!

FIELD: All this after a grand jury declined to indict NYPD Officer Daniel Pantaleo in the chokehold death of 43-year-old Eric Garner.

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

FIELD: According to the New York Supreme Court, the grand jury sat for nine weeks hearing from a total of 50 witnesses: 22 civilians, also police officers and medical personnel. Sixty exhibits were admitted into evidence, including video, records regarding NYPD's policies and procedures, Garner's medical records, and photographs of the scene. But the details of that evidence remain sealed.

GWEN CARR, MOTHER OF ERIC GARNER: What video was they watching? Because obviously it wasn't the one that the whole world was watching.

GARNER: Don't touch me. (EXPLETIVE DELETED)

FIELD: The Department of Justice launching a federal investigation.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Too many Americans feel deep unfairness when it comes to the gap between our professed ideals and how laws are applied on a day-to-day basis.

FIELD: New York Mayor Bill de Blasio ordering the retraining of the NYPD's 35,000 officers.

BILL DE BLASIO, MAYOR OF NEW YORK CITY: We're changing how our officers talk with residents of the city. Changing how they listen.

FIELD: And Attorney General Eric Holder calling for reform.

ERIC HOLDER, ATTORNEY GENERAL: There are real, practical and concrete measures that can be taken.

FIELD: Reform civil rights leaders say is needed nationwide.

MARC MORIAL, PRESIDENT/CEO, NATIONAL URBAN LEAGUE: When we shine a spotlight on the criminal justice system, when we shine a spotlight on the experiences of people, it points to a very big problem.

FIELD: In Cleveland, Ohio, a nearly two-year investigation by the Justice Department found what they call a pattern of excessive force by police, caused by insufficient accountability, inadequate training and ineffective policies.

Three hours south, the NAACP and the Montgomery County Sheriff's Department are investigating racist text messages allegedly exchanged by several deputies. Parts of the texts read aloud by Dayton NAACP president Derrick Foward.

DERRICK FOWARD, PRESIDENT, DAYTON NAACP: "What do apples and black people have in common? They both hang from trees."

(END VIDEOTAPE)

FIELD: Montgomery County sheriff has come out speaking forcefully about those text messages, saying that they have tarnished the office. And we're talking about Montgomery. We're talking about -- we're talking about these different places this morning, because that is what you're hearing from the protesters who are out on the street. Yes, they're talking about Eric Garner and yes, they are talking about Michael Brown.

But also talking about some broader themes here, about policing and about justice. And you've heard them, too, Chris.

CUOMO: Absolutely, Alexandra. The question is what will that talk lead to? So let's talk some solutions. Thank you for the reporting. And let's bring in Senator Kirsten Gillibrand. She's a Democratic senator from New York. She sits on the armed services committee.

Senator, good to have you back on NEW DAY. I hear tell that you met with U.S. Attorney General nominee Loretta Lynch, and you said you think there should be a probe of what happened with Eric Garner. Why?

SEN. KIRSTEN GILLIBRAND (D), NEW YORK: Well, I think there needs to be an investigation by the DOJ. Because in New York today, America today, someone committing a low-level crime shouldn't end up dead, and their family really deserves a day in court. And I think having Loretta look at this case is important. I think she's uniquely positioned with her civil rights background, as well as the trust she enjoys with law enforcement, that she has a reputation of being very fair.

CUOMO: Do you think it is about the crime or it's about the altercation between police and, in this case, Eric Garner. No matter what they were stopping him for, it's about what happens once they ask him to comply and he doesn't, and how they respond to that, and how they use force. Is it a little red herring what the underlying crime is?

GILLIBRAND: Correct, and I think it's the use of deadly force for a low-level crime is the problem.

CUOMO: So the feds do their investigation. Not often the greatest promise of change, these federal investigations. So if you look at what the problem is here with the grand jury, do you identify the fact that a prosecutor wound up investigating their own police, as part of the problem here with transparency and faith in the process?

GILLIBRAND: Well, I think the reason why we need a Department of Justice investigation is so the country can feel like there was a fair hearing. And I think Loretta, as I said, is uniquely positioned because of her experience; and because of the work she's done previously and the trust she does enjoy with law enforcement. That I think she can actually look at this case from top to bottom, and people can feel that it has had the appropriate review, given that a man has died.

CUOMO: Would you support having special prosecutors or having independent investigative bodies when cops are in the focus of excessive force?

GILLIBRAND: You know, every -- every community will make those decisions about how to manage their law enforcement. But I think our mayor is working very hard to put reforms in place as well as additional training.

CUOMO: Speaking of the mayor, the former mayor, Rudy Giuliani, says if blacks don't want to get in trouble with cops, let them focus on the amount of crime that's going on in their communities, specifically black-on-black crime. That's the real problem. Do you agree with that?

GILLIBRAND: I think these are very, very difficult issues. And the concern that I have is a very serious conversation that's taking place in America. That there seems to be two systems of justice. And what we need is fairness, we need people to know that they are safe in their communities. And we have a lot of work to do.

CUOMO: And you're going to stay on this, and we will follow your efforts there. Another pervasive problem that you want to take on is sexual assault in the military. So this study comes out that says it declined in the past year from 6.1 percent in 2012, to 4.3 percent in 2014. Unwanted sexual contact. They said good, we're making progress. You say no.

GILLIBRAND: Well, there were 20,000 incidents of sexual assault, rape and unwanted sexual contact last year alone. And if only, you know, 2 out of 10 are reporting these crimes, we have a serious breach in our system of trust.

And unfortunately, the retaliation of brave victims who have come forward to report their crimes has continued. No change on the level of retaliation. Sixty-two percent of survivors who reported that they were raped were retaliated against. It's unacceptable.

And so what we really need is accountability. And all we've heard from the military for 25 years is zero tolerance for sexual assault. And what we truly have is zero accountability.

CUOMO: Well now, you know, similarly, we have two similar issues between the first problem that we're dealing with, with policing and this one. One is, you asked for an independent review of these cases from the take it out of the military justice system and put it outside of it. You lost that fight early on. We'll see how it goes.

But do you believe that's the answer, is to remove it from the military?

GILLIBRAND: Well, my suggestion is not to remove it from the military but remove it from the commanders. Because what we have, if commanders are holding all the cards and making all the decisions, they have biases. They want to -- they don't necessarily want these cases to come to light. It makes them look bad.

And so who I want to review these cases are trained military prosecutors. People who have no skin in the game. People who are going to weigh the evidence, make the decision on evidence alone. Not on whether they like the accused or not. And that's what we have today.

So we need these trained independent prosecutors to be able to create transparency in the system. And actually have cases going to trial on the merits, on the facts and on the evidence.

CUOMO: It sounds to be not only a sound argument in this regard, but also with regard to the other issue that we're discussing, that you know, when the cops are involved with something, do you see those two as analogous?

GILLIBRAND: Well, you want to make sure there's no biases in the system. And that's why we have to look at it, and that's why you have to make sure it's fair and that justice will be done.

But in the military context today, Chris, the survivors tell us, they don't feel justice is possible. They don't believe their commanders will do anything. And they've either witnessed or experienced retaliation for those who have reported crimes. And so you have a system that's not working. And if you're unwilling to change the structure and really create transparency, you're not going to solve the problem?

CUOMO: How do you deal with that culture, though? I mean, if you want to talk about culture within the police, it's nothing within culture, you know, compared to the culture within the military, about what you say and to whom and respecting your command chain. How do you deal with that?

GILLIBRAND: Well, you need some level of independence. And I think that is the key that's missing. You need trained prosecutors, because right now the commanders who make the decision about whether cases go to trial, they're not trained as lawyers. They have no legal training. So they'll make that decision based on things other than evidence.

And that's what's wrong with the system. So in order to guarantee civil liberties, both for plaintiffs and defendants, you have to have the decision maker be independent and have no biases.

CUOMO: Twenty thousand cases a year, 55 cases a day. You say that is not progress. And it is important to point out, while many of them are women, men are involved as well as victims. Is that true? Because that's something the military does not like to acknowledge.

GILLIBRAND: More than half those victims are men, and so if you know anything about the crime of rape, it's a crime of domination. It's a crime of aggression. And it has nothing to do with romance. And so what we have are, you know, extensions of hazing, extensions of bullying. Really aggressive behavior.

And the posttraumatic stress disorder for rape survivors is so high, and unfortunately, the incidents of suicide rates amongst men and women in the military who have experienced sexual trauma is high.

So if someone cannot come forward and report that they were raped, then they can't get the services they need to recover and to somehow heal. Interesting also, the percentage of people who are actually willing to report and make their name public went down. That's why I know the system is not working. There's not faith that justice is possible.

CUOMO: Senator Kirsten Gillibrand, thank you very much for joining us on NEW DAY. We will stay on this story of sexual assault in the military. Let us know how we can be of help.

GILLIBRAND: Thanks, Chris.

CUOMO: We have two guests coming up with important views. They'll be in the 8 a.m. hour on NEW DAY. We have former New York City police commissioner Ray Kelly and Gwen Carr, the mother of Eric Garner. We will get their take on what happened and why.

All right, Mick. Over to you.

MICHAELA PEREIRA, CNN ANCHOR: All right. Lots of news to get to. But right now, we have lift-off, folks. Just moments ago, the unmanned Orion spacecraft launched from Cape Canaveral. Orion blasted off atop a Delta 4 rocket a day after its scheduled liftoff. The spacecraft will orbit earth twice before it splashes down into the Pacific Ocean about 600 miles off the coast of Baja, California. That should happen around 11:30 a.m. Eastern this morning. The capsule is designed to eventually take astronauts back deep into space, and eventually as far as Mars.

In other news, an emotional plea from Luke Somers' family, begging his captors to release him. American commandos tried to free the 33-year- old journalist last week but failed. In that moving video, Luke's mom and brother say they don't know why al Qaeda targeted him.

(BEGIN VIDEO CLIP)

JORDAN SOMERS, BROTHER OF LUKE: Luke has spent the last two years making Yemen his home. He is a good person, and he's only been trying to do good things for the Yemeni population.

PAULA SOMERS, MOTHER OF LUKE: Please show mercy and give us an opportunity to see our Luke again. He is all that we have.

(END VIDEO CLIP)

PEREIRA: The terrorists have threatened to kill Somers by the end of this week.

In about three hours, President Obama is going to announce his nominee to succeed Chuck Hagel as defense secretary. The president is expected to select Ashton Carter, a physicist and former deputy defense secretary with quite a long history at the Pentagon. His confirmation hearings are expected to actually go smoother than Hagel's did.

Actor Mark Wahlberg seeking a pardon in Massachusetts for a 1988 assault conviction. The actor was arrested in Boston when he was 15 or 16 years old for trying to steal alcohol and hitting two men while he tried to evade police. When he was arrested, he had a small amount of marijuana on him. In a statement, Wahlberg said that since that time, he has dedicated himself to being a better person and a better citizen.

ALISYN CAMEROTA, CNN ANCHOR: He does seem to have turned around his life.

CUOMO: It was 25 years ago.

PEREIRA: Twenty-five years ago when he was a teenager.

CAMEROTA: All right. Let us know what you think, if he should be exonerated for that.

What evidence, meanwhile, did the grand jury hear that made them decide not to indict the New York City police officer who choked Eric Garner to death? A forensic scientist joins us next to examine the evidence.

(COMMERCIAL BREAK)

CAMEROTA: The grand jury that made the decision not to indict Officer Daniel Pantaleo studied the evidence for nine weeks, they watched the same video that the rest of America saw showing the chokehold leading to Garner's death.

So what convinced them that the officer should not be charged. Let's look at the evidence. Lawrence Kobilinsky is a forensic scientist and chair of the science department at John Jay College of Criminal Justice.

Dr. K, great to see you this morning.

DR. LAWRENCE KOBILINSKY, FORENSIC SCIENTIST: Good morning.

CAMEROTA: OK. Let's start with the chokehold. The so-called chokehold. And I want to know what you see when you look at this still frame. We've frozen the video to the moment where the chokehold begins.

And we've learned in the past couple of days, there are many different kinds of chokeholds. Some are restraint. Some hit the carotid artery. What do you see?

KOBILINSKY: That's correct. Well, here you see the forearm is under the neck. His right arm, Pantaleo's right arm actually goes under his arm, which is unusual for a chokehold. One could argue that this is a take-down method. But it does appear to me that there is a pressure that is exerted on

the neck. The medical examiner thinks this is a compression, and most likely this is compression of the veins, of the jugular veins and carotid arteries that leads to lack of oxygen going to the brain. Unconsciousness in a matter of seconds.

CAMEROTA: OK. But he wasn't unconscious yet, I mean, or for many seconds, because the next thing that happens is that he is forced to the ground. And he's still talking when he's on the ground, even though you can see that they're restraining his head against the pavement. This is the moment where he's saying, "I can't breathe. I can't breathe."

KOBILINSKY: Indeed. He's still talking. That tells me that the airway was not obstructed or not completely obstructed. Air was capable of moving across the vocal chords. But he had trouble breathing. Because in this position, a big man lying prone, and with people on top of him, exert pressure against the chest. That prevents the chest from expanding, and that prevents the lungs from expanding and inhaling air. So he had trouble breathing, no question about that.

CAMEROTA: So the grand jury saw this video that I'm going to play now. But they reached a different conclusion. And what happened was they heard from this officer, Officer Pantaleo, who is behind Eric Garner there. And what he told them was that during this moment of the fight that you just saw, that they had, he had gotten backed up against a plate glass storefront window. He felt that they might go through the window. So he had to take Eric Garner down to the ground as fast as possible to avoid that from happening.

KOBILINSKY: Well, it's difficult, if not impossible to really get into the mind of Police Officer Pantaleo. But it does appear to be a very forceful encounter. I think the size of Mr. Garner intimidated the police. They felt they needed multiple people; they needed to bring him down. They said he was under arrest. He, quote-unquote, "resisted." And they felt they had to take him down.

When you're dealing with somebody like this, you don't know underlying conditions. This fellow had asthma. He was -- had diabetes. He had sleep apnea. That means there may have even been anatomical issues in the throat. So this is a dangerous situation here. You've got a combination of compression of the blood vessels. You've got pressure on the chest. It's a, really, recipe for disaster. And again, he still might have been saved had EMS rushed to the scene and...

CAMEROTA: But here they are, they did come to the scene, and they tried to save him and they tried to resuscitate him, but was it after the chokehold? Was it too late?

KOBILINSKY: Well, some people would say he was in the process of dying. However, what EMS normally does is check the vital signs.

I mean, my understanding is that one of the responders, whether it was an EMT or an advanced EMT, I don't know. But there was a check of the pulse, but there weren't any other vital signs taken. If they noticed a problem of breathing, respiratory rate; if they noticed a blood pressure problem, they could have treated him. He ultimately died of cardiac arrest. But that was secondary to what we see here.

CAMEROTA: So when you see all this video, you're a forensic scientist. When you look at all of the video evidence, and of course, the transcript of what the officer testified to has not been released. But we do know from a "New York Times" article his attorney said that he felt that he was on the ground, having to protect Eric Garner from the other officers rushing to the scene and having to protect the officers from Eric Garner biting them. That was his fear. Do you understand why the grand jury reached the conclusion they did.

KOBILINSKY: Well, unfortunately, we're not in the grand jury. We don't know what they heard. But it seems to me that they interpreted police Officer Pantaleo's testimony as meaning there was no intent to do harm, but only to subdue. And I think they bought into that, and they felt a crime was not committed.

I think people seeing the video would start to think about excessive force and I think police training might have prevented this tragic loss.

CAMEROTA: Dr. Kobilinsky, always great to see you. Thanks so much for coming into NEW DAY.

KOBILINSKY: Pleasure.

CAMEROTA: Let's go over to Chris.

CUOMO: All right, Alisyn. So every year we hear from the State of the Union address, right? But he's invited by Congress to give it. Will that happen next year? Some members are actually saying no. We're going to take it on in "Inside Politics" with John King.

(COMMERCIAL BREAK)

PEREIRA: Good to have you back with us here on NEW DAY. Let me give you a look at your headlines.

Massive demonstrations, bringing parts of New York City to a standstill overnight. Hundreds of people arrested while protesting the verdict in the Eric Garner case. Meanwhile, in Chicago, demonstrators choked traffic on the Magnificent Mile, delivering their message of social injustice. And in D.C., thousands of protesters gathering outside the Department of Justice. They were heard chanting, "No justice, no peace."

New Jersey Governor Chris Christie has been cleared in the so-called Bridge-gate scandal. The Democrat-led investigation found no conclusive evidence the governor was aware of the closures on the George Washington Bridge that caused major gridlock. There have been allegations that Governor Christie had closed the bridge lanes in an apparent act of political retribution. The governor all along denied all wrongdoing. Two of his aides were fired for orchestrating that unforgettable traffic jam. A manhunt is under way right now in Florida for a suspect in a triple homicide. This man, 33-year-old Andre Avalos, fatally shot a pastor at a church and then murdered his own wife and another woman at a nearby home in Bradenton. Police have issued a warning to residents, saying Avalos may be armed and dangerous. Those killings appear to involve a domestic dispute.

Here is quite a story this fellow is going to have to tell. A 13- year-old Arizona boy has a pretty good idea the challenges that face Santa. He got stuck in the chimney of his own home. This unidentified teen locked himself out of the house. It happens; I've done it. He instead decided to -- no, this is where we differ. He decided to use an extension cord to rappel down the chimney to get back inside.

CAMEROTA: A window wasn't available.

PEREIRA: It seemed like a good idea. Well, let me just tell you, he was not successful in his efforts. Luckily, though, the young man had a cell phone. He was able to dial 911. It took an hour for first responders to get the seventh grader out. We're told that he's going to be just fine. The chimney, on the other hand, not so much.

CUOMO: Whoa!

PEREIRA: They had to demolish it to get him out. Young man, while ingenious -- not so much -- is going to have some explaining to do to mom and dad.

CAMEROTA: Resourceful, he had an extension cord to lower himself down.

PEREIRA: I think the conversation starts, "Honey, you're not MacGyver."

CUOMO: Let me tell you, that's not how the conversation starts. That kid was hoping he'd be stuck in that chimney for a long time.

PEREIRA: The conversation with dad is going to be -- that's why we hopefully have two parents.

CUOMO: Demolish the chimney. All my kid's going to hear is, "See, that's why I need a phone. That's why I need a phone. It's a safety device." So is common sense.

All right. So let's get to "Inside Politics" on NEW DAY with John King. Happy Friday, my brother.

JOHN KING, CNN HOST, "INSIDE POLITICS": Never been stuck in a chimney. Happy Friday. I've done a lot of stupid things, but never been stuck in a chimney.

CUOMO: He's not Santa.

KING: Happy Friday to you guys, as well. Let's go "Inside Politics." It's been a very busy week, and it will be a busy day here in Washington.

With me here this morning to share their reporting and their insights, Julia Pace of the Associated Press, Margaret Talev of Bloomberg News.

The president has a meeting today at the White House with some incoming governors, including the incoming governor of Texas who's joining the lawsuit against the president over immigration.

The House voted yesterday to essentially slap the president on the wrist. The speaker allowed this vote. He's hoping it mollifies conservatives so they don't now go shutting down the government. But the House said the president doesn't have the power to do what he did by executive action. But the Senate won't even take up this bill. But the politics of this are getting quite toxic.

JULIE PACE, ASSOCIATED PRESS: Yes, it's really interesting. I mean, we've had this start to roll pretty quickly after the president's executive orders.

What I think will be most interesting in the conversations with the governors today is what the president's response is. Because while the House had the vote, it is largely symbolic. But these governors are actually looking for ways to, if not totally roll back the executive orders in their states, at least change what their states can do. It's possible that they could be effective. And then, if they do have momentum there, what does the House and the Senate do next year when Republicans have full control?

KING: And on the policy side, a lot of Republicans say, "OK, we should -- first we pass this thing in the House that says he doesn't have the power to do it." But again, it's politically symbolic, but it's not going to get anywhere. Then they say, "Let's do border security. Let's do other things."

Do you expect the Republicans will actually pass several pieces through the House and a newly Republican Senate to try to challenge the president's policy?