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Juror Photo Help Chauvin Appeal; FaceBook Decides on Reinstating Trump; More Companies Requiring Vaccine; Rocket Debris Hurtling Towards Earth. Aired 6:30-7a ET

Aired May 05, 2021 - 06:30   ET

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

[06:30:00]

JOHN BERMAN, CNN ANCHOR: The question is, does it really matter?

Joining us now, CNN legal analyst Paul Callan and Joey Jackson.

Gentlemen, I want to start with the motion, OK, which does not specifically deal with Brandon Mitchell. In the motion, the defense lawyer writes, the interests of justice, abuse of discretion that deprived the defendant of a fair trial, prosecutorial and jury misconduct, errors of law at the trial and a verdict that is contrary too law. That's what it cites.

What do you think, Paul, does that merit?

PAUL CALLAN, CNN LEGAL ANALYST: Well, it's a bit of a Hail Mary motion. They've packed a lot into this motion saying there are reasons, judge -- this is the trial judge, you should reverse the verdict.

And I think they're focusing on two really important issues that an appellate court will look at. Number one, was there so much pretrial publicity that this case should have been moved to another county in Minnesota where there had been less public exposure. And as a result of that pre-trial publicity, were the jurors who were selected, were they compromised? And, remember, they were not sequestered. The defense asked for a sequestration. This was not a really long trial, so you could have had sequestered to protect them from the influence of the public.

The second thing that's interesting in the motion is, the defense talks about the cumulative impact of many, many errors that were made by the trial court. One, not recording lawyers making objections at sidebar, critical objections in the case. And a couple of other issues as well about evidence that they offered that didn't get into evidence. So I think it's an interesting motion. I don't know that it will carry the day, but the record is being set here for the appellate court to some day take a second look at the case.

BERMAN: Joey.

JOEY JACKSON, CNN LEGAL ANALYST: So, listen, a couple of things. The first thing is, John, as you mentioned, it's expected. It's widely anticipated. Of course they're going to file the motion. I don't think it carries any water for a couple of reasons.

To you point, it does not mention specifically the juror issue that we're talking about now as it relates to Black Lives Matter, as it relates to him wearing the t-shirt that speaks to, don't be on my neck. It talked generally about jury misconduct.

But here are the two critical issues that I think are going to play very poorly for the defense. One is judicial discretion. Not to get in the weeds, but judges have a lot of discretion with respect to rulings they make and rulings they don't. No, the jurors were not sequestered. It was in the judgment of this judge that we live in a day and age of social media. People get information aplenty. We trust you jurors to not go home and to make decisions about what's on TV, but to make them upon what's in court. Judge's discretion is very much honored by an appellate court.

What's the second thing, John, and this is most significant. There's a doctrine called harmless error. At the end of the day, even if there were errors made in the trial, would it have made a difference? The Constitution entitles you to a fair trial, not a perfect trial. And as a result of that, that's the deal.

CALLAN: Joey, Joey, let -- Joey, one question.

JACKSON: Yes.

CALLAN: One question, OK, causes harm --

JACKSON: It doesn't have to be one.

CALLAN: Harmless error. The city of Minneapolis, during jury selection, settled the case for $27 million, one of the highest verdicts in -- one of the highest settlements in the history of wrongful conviction cases. The jurors who were picked, some of them knew about that settlement.

JACKSON: So let's bring it back.

CALLAN: You think that -- you think that didn't influence the jury?

JACKSON: Let's bring it back.

CALLAN: Harmless error?

JACKSON: It's not a matter of influence, it's a matter of carrying the day. What did a settlement have to do with someone leaning on someone's neck for nine minutes and 29 seconds? What did a settlement have to do with not -- that is Chauvin -- bringing someone up from the prone position, face down, when you know when you're trained that that could kill someone. What did it have to do with him not backing up? What did it have to do with him not providing medical attention?

So we can argue about pretrial publicity.

CALLAN: Joey --

JACKSON: We can argue about settlement.

CALLAN: Joey, it's the --

JACKSON: At the end of the day it's about the evidence in the courtroom, period.

BERMAN: Quickly, Paul.

CALLAN: OK. I'm sorry.

BERMAN: Well, because I want to jump in here being I do want to bring up the issue of the t-shirt here with juror and the picture that's been behind you the whole time here.

CALLAN: Yes.

BERMAN: Look, there are two issues here, Joey, we can start with you. Number one, is there something inherently prejudicial about the fact that he's doing this? And, b, was he honest about his attendance at events on the jury questionnaire?

JACKSON: So with respect to number one, inherently prejudicial. We live in the United States of America. We have this thing called the First Amendment, freedom of speech. You can wear what you want, say what you want, do what you want.

The fact is, is there was a questionnaire and there was disclosure with respect to prior activities, Black Lives Matter movements, et cetera. The critical issue, John, is whether or not he disclosed whether he participated in demonstrations regarding police brutality. Yes, he was at the March on Washington. The March on Washington as it relates to the African-American communities and communities of color deals with and relates to racial disparities in voting, in education, in economic disparities. It doesn't have to do solely or, you know, exclusively or any of that with police brutality.

And so the fact is, you ask me the right questions, I will give you the right answers. He gave, in my view, the answers that were proper, and that is that, you know what, I didn't participate in police brutality demonstrations. That's a distinction.

CALLAN: Joey, let me -- one question for you. If that says knee off our necks, the issue in the case before the jury was a cop putting his knee on somebody's neck and killing them as a result.

[06:35:11]

That looks to me like it's an exact reference to the fact pattern in the Floyd case.

Now, the question this juror was asked during juror selection was, have you ever participated in a demonstration against police brutality? That certainly looks like participation in a demonstration against police brutality.

And let me just finish. JACKSON: Please.

CALLAN: So what's going to happen ultimately is the court's going to look at this and say, is that what we call an extrinsic reason to reverse it? In other words, is there a lie that happened in the case that would affect jury deliberations? I don't know that this is enough, but it's the start of an argument that could be a serious argument in the long run.

JACKSON: Yes, so I'm not suggesting there's not an argument here, but what I'm suggesting is that the March on Washington is way above the issue exclusively of police brutality. It is an important issues in this country. But there are other important issues that relate to the African-American community that are not limited to police brutality. If you ask me the question, did you participate in the March and I answered no, separate issue. If you asked me the question, was I involved and did I not participate in the March on Washington to discuss and otherwise deal with police brutality issues and I say, no, it's separate. We have to examine the question. He did not lie. He did not fabricate. He answered what he was asked, and I think, in that regard, we're on solid ground.

BERMAN: Counselors, I appreciate it. We're going to have to take a brief recess from deliberations right now.

CALLAN: Thank you, John.

BERMAN: Will FaceBook allow the former president back on its platform. New details about an imminent decision, next.

KEILAR: Plus, another suspected anti-Asian attack in New York City. There is shocking video. We'll look at it, next.

(COMMERCIAL BREAK)

[06:40:50]

BRIANNA KEILAR, CNN ANCHOR: In a matter of hours, FaceBook will decide whether to allow Donald Trump back on their platform nearly four months after he was banned.

Donie O'Sullivan is with us now in the flesh, as it were.

OK, so what's the thinking here? What is FaceBook thinking?

DONIE O'SULLIVAN, CNN CORRESPONDENT: So basically the decision is, folks who want to see Trump back on the platform make a valid point, which is to say a company, a private company like FaceBook, although private, plays such an important role in public discourse that it shouldn't have the power, frankly, to unilaterally decide to shut off, at the time the president of the United States, or any world leader for that matter. Folks who say he shouldn't come back say, well, one, you know, what -- what message does this send to world leaders, to dictators around the world that you can use a platform like FaceBook to help inspire a violent insurrection and know that you're not going to be suspended indefinitely, that you'll eventually be able to come back.

And, of course, you know, this is a big decision for FaceBook, but the consequences for the Republican Party are quite profound. I mean we saw this week Trump is continuing, of course, to perpetuate the big lie. And this, you know, Trump hasn't had his soapbox. He hasn't had his platform since January. He could, again, come back and start weighing into Republican politics by the hour, by the minute, and, of course, very importantly as well, FaceBook is an extremely useful for the Trump machine fundraising tool. So he could start again fundraising bigtime for his PAC and for pro-Trump candidates.

KEILAR: Real quick -- and, look, we don't know what FaceBook is going to do, but if they reinstated him, would you be surprised?

O'SULLIVAN: I would not. No. This board that has been set up by FaceBook -- so Mark Zuckerberg no longer wants to make these decisions. They have set up what they call an independent board of experts, human rights lawyers. The former editor of "The Guardian" in London is on this board, involved in making this decision.

If they put him back, they, I think, will just make the case to say, look, this is supposed to be a platform for expression. And even if you don't like how -- what people -- what a person is saying, if they are somebody who is a world leader or a former world leader, they should be up there.

KEILAR: Well, we know that Trump is certainly chomping at the bit to say this piece. He's got this blog that he's put out. So we'll have to see what FaceBook does and if they give him that platform.

Donie, thank you so much.

O'SULLIVAN: Thanks, Brianna.

BERMAN: Blogs are so 2006.

New York City police asking for the public's help to identify the person seen on video attacking two Asian women. The video is disturbing. The video shows the women walking when they're suddenly attacked from behind by a person swinging a hammer at them. One of the woman suffered a head wound and was treated at a hospital. According to the NYPD, Asians have been targeted in 80 hate crimes since the beginning of the year, up from 16 over the same period in 2020.

As companies begin to resume normal operations, a growing number now requiring workers to be vaccinated. So is this new vaccine mandate good for business?

CNN's Vanessa Yurkevich joins us now live with much more.

Vanessa.

VANESSA YURKEVICH, CNN BUSINESS AND POLITICS CORRESPONDENT: John, companies are seriously considering whether or not to mandate vaccines for their employees coming back to work. But the question is, is it legal? Seventy percent of CEOs say they're thinking about it. And we spoke to one organization who says they're already doing it.

(BEGIN VIDEOTAPE)

PETER FORTENBAUGH, CEO, BOYS AND GIRLS CLUBS OF THE PENINSULA: We have chosen to mandate vaccines.

YURKEVICH (voice over): This year the summer program at the Boys and Girls Clubs in the Bay area has a new requirement, all 225 staff member must get the COVID-19 vaccine.

FORTENBAUGH: It's a very simple decision. The vaccines have been proven to be safe, they're effective, and we have to do what's best for our students and families.

YURKEVICH: The organization plans to welcome 1,000 students in June. In December, the Equal Employment Opportunity Commission announced companies can legally mandate employees and new hires be vaccinated with two exceptions.

JOHNNY C. TAYLOR, CEO, SOCIETY FOR HUMAN RESOURCE MANAGEMENT: One, under Title VII, there's an exception for religious accommodation. Secondly, under the ADA, if someone has a disability and with that disability actually taking the shot might, in fact, put their lives at risk, then there's also an appropriate exception.

YURKEVICH: Almost half of all Americans support requiring vaccines for employees returning to work.

[06:45:04]

But as of now, 26 percent of adults in a CNN poll said they don't plan to get the vaccine.

FORTENBAUGH: We have had a handful of staff, a very small number, who have hesitancies, and so we're giving them time, but we are drawing a hard line in the sand, if you want to be present with students, you have to have a vaccine.

YURKEVICH: Time is what Bonnie Jacobson says she needed. She was a server at Red Hook Tavern in Brooklyn. The restaurant mandated the vaccine in February, but Jacobson told her manager she wanted do more research about its effects on fertility before getting the shot.

BONNIE JACOBSON, FIRED FOR NOT GETTING VACCINE: Because I feel like I'm allowed to have hesitation. I feel like I should be allowed the time to do the research that I need and want to do.

YURKEVICH: Two days later, Red Hook Tavern fired her for not getting vaccinated according to email she shared with CNN. The restaurant did not return CNN's request for comment but told "The New York Times" in February they have since revised their vaccine exemption policy.

TAYLOR: The employer can terminate you for any reason or no reason at all. The reason in this instance could be you're not taking the vaccine that's been available to you and, therefore, you cannot work there any longer. YURKEVICH: Jacobson works in two new restaurants and says she's now

fully vaccinated after seeing studies that COVID-19 vaccines do not affect fertility. But she says she still doesn't think employers should mandate the vaccine.

JACOBSON: I always wanted to get vaccinated. I needed to just make sure that I was 100 percent comfortable with it.

YURKEVICH: Over 70 percent of current or recent CEOs at major companies said they're opening to requiring vaccines, but many, like American Airlines, Amtrak and Publix are offering incentives, like extra time off or bonuses instead. Many smaller companies say they can't afford to make vaccines optional.

TAYLOR: Just think about it, one employee gets sick, you have ten employees, you could end up having to shut your entire business down. They feel like there's more pressure on them to ensure that they have a safe workplace for all employees.

(END VIDEOTAPE)

YURKEVICH: And we did a quick online job search just to see what kind of industries were requiring vaccinations. We found that the restaurant industry, summer camps, and even hospitals are requiring their staff to be vaccinated if you're going to be applying.

And, John, one expert told us that if you are a job applicant and you are fully vaccinated, go ahead and put that on your resume. It's actually somewhat of a leg up if you're applying for a new job, whether or not the company is requiring vaccines for their employees.

John.

BERMAN: That's really interesting. I would never have thought of that.

Vanessa Yurkevich, thank you so much for that report.

YURKEVICH: Yes.

BERMAN: So, out of control, rocket debris hurdling toward earth from space. I miss you, baby, and I don't want to miss a thing. Where's Ben Affleck when you need him?

KEILAR: Amazing.

And the FAA cracking down amid a rise in unruly passengers. What is driving this spike?

(COMMERCIAL BREAK)

[06:52:01]

BERMAN: This morning, a large Chinese rocket is hurdling out of control in space. The Defense Department expects it to re-enter earth's atmosphere this weekend, raising concerns about where the debris might make impact. Not to be confused with "Deep Impact," a worse movie than "Armageddon."

Barbara Starr joins us now from the Pentagon.

Barbara, I don't mean to make light of this because this is something the Pentagon is actually watching very closely. What's going on here?

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Well, good morning, John.

Yes, you know, this is a story about rocket science. It's -- there's no way around it. This Chinese rocket was used by them to launch their space station. Now it is out of control in space, traveling 18,000 miles an hour, 100 feet tall, 22 tons. And that's the big concern.

Many objects, of course, burn up in the atmosphere when they come back down. But at 22 tons, the concern is this is too big, it may not break up, it may not burn out, where will it impact earth? The calculation is it will reenter sometime this weekend as soon as Saturday. The Pentagon says they will not be able to predict much about it, where it reenters, where it's going to hit until just a few hours before that. So there is a lot of concern.

Look, is it going to hit you or me on the head? One in a trillion chance. The chances? The chances are maybe the Pacific Ocean because the Pacific Ocean is 70 percent of the world's surface. But nobody actually knows. And that is the big problem.

Here at the Pentagon, they are tracking this object in space around the clock. And I think people will be interested to know, the U.S. military actually tracks 27,000 manmade objects in space every day. It is crowded up there. Space traffic is heavy these days, and that is why they want to see it all done in a very orderly fashion. Nobody's really excited about rockets out of control.

John.

BERMAN: I mean space junk is a thing, right, but, generally speaking, the concern is, in orbit, what could happen to satellites or other things that are around there? This is just so big, Barbara, that there is a concern of what can happen.

STARR: Right. Well, and I just want to add, one of the reasons it is so important, all of our lives depend on satellite technology, your computer, your cellphone. It's why satellites, it's why all that space junk up there has to be very orderly and very controlled. This time, not so much.

BERMAN: Barbara Starr, thank you and thank you for not making fun of me for my bad movie jokes. I appreciate it.

KEILAR: Yes, that's where I come in, right?

BERMAN: Yes, exactly. Exactly, that's where you're here for.

KEILAR: And I'm going to talk to you -- I'm going to talk to you about some space junk, and some space junk is you knocking "Armageddon."

BERMAN: No, no I think it's a great movie.

KEILAR: And -- you say said that "Deep Impact" is even worse than "Armageddon."

BERMAN: No, a much worse movie than "Armageddon."

KEILAR: OK, fair. "Armageddon" is not rated well, by the way, 38 percent on Rotten Tomatoes, but I loved that movie.

BERMAN: It's fantastic. I -- as I've said to you, the ensemble cast, the chemistry between all the performers, so good.

KEILAR: So good.

I know. Some people think it's unrealistic, the idea that you would take like a team of oil drillers, train them to be astronauts in a week, send them up to an asteroid that's moving very quickly, drop -- drill and drop and nuking it.

[06:55:09]

I know that's maybe hard to believe but I think that's why I miss those movies of that time period.

BERMAN: Look, the people who have said that was unrealistic, they haven't been alive the last five years in America. Let's just say that.

KEILAR: So true.

BERMAN: All right, so Liz Cheney's days in Republican leadership appear to be numbered. The revealing new hot mic moment, next.

KEILAR: Plus, another Republican defending the 18th century policy designating a slave as three-fifths of a person. How are his constituents responding?

(COMMERCIAL BREAK)

KEILAR: I'm Brianna Keilar in Washington, alongside John Berman in New York.

On this NEW DAY, support is fading fast for the third ranking Republican in the House. Why Liz Cheney's days as conference chair could be numbered.

[07:00:00]

BERMAN: A federal judge blasts former Attorney General William Barr, coming close to suggesting a cover-up in the DOJ to protect then President Trump.