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Shooter Takes Stand, Claims It Was 'Life or Death Situation'; Soon: Jurors to Return for Day 3 of Deliberations in Rittenhouse Trial; Lawmakers Spar Over Gosar Censure. Aired 6-6:30a ET

Aired November 18, 2021 - 06:00   ET


BRIANNA KEILAR, CNN ANCHOR: Hello. I'm Brianna Keilar alongside John Berman. On this NEW DAY, the man who fatally shot Ahmaud Arbery testifying that he believed he was in a life-or-death situation, even though he was the one with the gun. What else his surprising testimony revealed.


And it is day three of deliberations for jurors in the Kyle Rittenhouse trial. Why a dispute over drone video has the defense now pursuing a mistrial.

JOHN BERMAN, CNN ANCHOR: Republican Congressman Paul Gosar censured over what has been called a fantasy murder video. What he did minutes after this rare rebuke.

And Liz Cheney to Ted Cruz: "A real man would defend his wife." How's he going to respond to that?

KEILAR: Good morning to viewers here in the U.S. and around the world. It is Thursday, November 18. And we begin with three major trials playing out simultaneously and captivating the nation.

In Kenosha, Wisconsin, we're on day three of verdict watch in the Kyle Rittenhouse double homicide trial. Jurors spent their second day of deliberations reviewing video evidence, including one drone video that the defense claims is grounds for a mistrial.

BERMAN: In Brunswick, Georgia, Travis McMichael, one of the three men accused in the killing of Ahmaud Arbery, testified in his own defense, giving his version of the moment he pulled the trigger.


TRAVIS MCMICHAEL, DEFENDANT: He had my gun. He -- he struck me. It was obvious that he was -- it was obvious that -- that he was attacking me, that if he would have gotten the shotgun from me, that it was a -- it was a life-or-death situation.


KEILAR: And in Charlottesville, Virginia, jurors this morning will hear closing arguments in the Unite the Right civil trial. A federal lawsuit seeks to hold white nationalists accountable for the deadly violence that erupted during the two-day rally back in 2017.

BERMAN: Let's start with the Ahmaud Arbery trial. Joining me now, CNN senior legal analyst, former federal prosecutor Elie Honig.

Elie, what we saw yesterday was fascinating: the defendant take the stand right away in the defense there.

And one of the first things they did was try to establish Travis McMichael said he assumed that the man he saw on the video he saw, in this surveillance video, was Ahmaud Arbery. And he assumed that Arbery had committed some kind of illegal act. Listen to this.


MCMICHAEL: He said, Travis, the guy that has been breaking in down the road just ran by the House. Something's happened.

I was under the assumption that it was the same individual that I saw on the 11th. I thought it was reasonable that, OK, there's something to this. This guy may have just ran by. Matt may have seen him, either caught him breaking in and stealing something.


BERMAN: So what was the defense strategy there, Elie, and did it work?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So the defendants have a fundamental problem in this case, which is this. Why did they pursue Ahmaud Arbery?

The prosecution theory is they saw this young black man jogging through their neighborhood, and they set out to harm him. However, what the defendants are relying on here is a Georgia law, a citizen's arrest law. Now, this is an old law. It's from the Civil War era. It's got deeply racist roots. And it was actually repealed earlier this year as a result of the Ahmaud Arbery killing.

However, what I think we just saw there does not meet what the law requires. The law says you have to have witnessed a crime, have immediate knowledge of a crime, or have a reasonable basis to say a felony occurred. And saying, I saw this guy running; I assumed it was the same guy from the 11th, I don't think that's enough under the law.

BERMAN: There was a lot of "assume" and "may have" in his answer, and that was from his own attorney --

HONIG: Exactly.

BERMAN: -- there. So that opens him up on cross.

He talked about the moment that he pulled the trigger. Listen.


MCMICHAEL: I shot him.


MCMICHAEL: He had my gun. He struck me. It was obvious that -- that he was attacking me. That if he would have gotten the shotgun from me, then it was a -- it was a life-or-death situation.


BERMAN: Why did the defense present this, and did it work?

HONIG: So this is part two of the defense, which is after we went to try to citizen's arrest Ahmaud Arbery, there was this struggle; and Travis McMichael testified, I had no choice; my life was in danger.

The key words that he said right there was, He had my gun. Now, watch for this today. The prosecutor's in the middle of the cross- examination. She is going to pounce on that. Because when Travis McMichael spoke to the police shortly after this accident, he said it differently, in a very important way.

They asked him, Did he have your gun. And the response from Travis McMichael back then was, I'm not sure. I want to say he did.

That is an enormous difference between, He had my gun and I'm not sure, I want to say he did. So the prosecutor is going to get -- is going to jump all over that and use that to argue, A, Travis McMichael is not being truthful; B, his self-defense claim doesn't hold up here.


BERMAN: Also, I think a lot of people who may not have gone to law school are watching this saying, Wait a second. These three guys were chasing Ahmaud Arbery in a truck, one of whom had a gun there. What was Arbery supposed to do?

HONIG: Right. So this is what's called the initial aggressor doctrine. It's the same idea as provocation that we're seeing in the Rittenhouse trial. But the idea is, if you're the initial aggressor under Georgia law, you don't then get to use self-defense except as an absolute last resort.

And if you look at the totality here, you've got three on one, three men on one, two trucks against one. You've got a shotgun on one man, and an unarmed man on the other. So that's another argument we're going to hear from the prosecution.

BERMAN: So the citizen's arrest law, you highlighted that as something the defense is leaning on there. The prosecution, in cross, really focused on that. Let's listen.


LINDA DUNIKOSKI, LEAD PROSECUTOR: You just testified under oath that you are not going to chase or investigate someone who is armed. That's correct, right?

MCMICHAEL: Yes. DUNIKOSKI: All right. And not once during your direct examination did

you state that your intention was to effectuate an arrest of Mr. Arbery, until your attorney asked you that leading question. Isn't that right?



BERMAN: Basically, if you're pinning your whole defense on citizen's arrest, why didn't you say it was a citizen's arrest as that was going on here?

HONIG: Exactly. This is really effective cross-examination. The way they teach it is one fact per question, yes and no answers. So the prosecutor gets two important things here. The first question she gets Travis McMichael to admit he understood that Arbery was not armed. That's basic but really important.

And the second one is you basically are coming up -- you came up with this citizen's arrest defense after the fact. It's a post hoc, after- the-fact rationale for what you did back then. So those are two key points that I think the prosecutor really drove home.

BERMAN: Now, the defense spent a lot of time focusing on Michael's Coast Guard training, that he learned how to use deadly force. The prosecution turned that around. Listen.


DUNIKOSKI: Deadly force is only to be used as a last resort, correct?

MCMICHAEL: That is correct.

DUNIKOSKI: You were also trained never to point a firearm at someone unless you intended to use it; is that correct?

MCMICHAEL: Under certain situations -- yes. Yes, and under certain situations, it could be used as a deterrent.


HONIG: Again, really effective cross-examination. Because Travis McMichael spent a ton of time on his direct examination talking about his Coast Guard training.

And the prosecutor got up, and she turned it around on him. She essentially said, You were the one who was armed. You were the one who had training in handling firearms. You understood pointing a firearm at someone is essentially as good as using it. You were trained in de- escalation, she questions him about.

So when you can take that fundamental feature of the direct testimony and then turn it back around on cross-examination, I think that's really important. And that's going to go, again, to this initial aggressor idea, which is key to the self-defense move. BERMAN: And we're going to watch for it again today. Cross-examination

begins at 9 a.m. again. Will be fascinating.

Elie Honig, thank you very much.

HONIG: Thanks, John.

KEILAR: Joining us now is global human rights leader and chairman of the Drum Major Institute, Martin Luther King III. He will be in the courtroom today.

Sir, thank you so much for being with us today. I wonder what you think as you've been watching this trial, about Travis McMichael claiming self-defense here.

MARTIN LUTHER KING III, CHAIRMAN, DRUM MAJOR INSTITUTE: Well, first of all, you know, I -- I'm not in the courtroom to see. I see what is reported. But what has been reported, I don't really understand the concept of that when you are chasing someone, as he -- he did.

KEILAR: He's saying that he reached for his gun. Of course, we know there were a number of events ahead of time where Ahmaud Arbery all along was not armed. Does that -- you know, does that make a difference to you as you listen to this claim of self-defense?

KING: Well, I guess my position -- and, again, this has got to be decided by the jury. And none of us should be attempting to actually, you know, create what a jury has got to do.

I mean, it's very -- it's crystal-clear to me that this man was hunted down and basically murdered. And there's a lot of evidence that shows what the, you know, person is saying, the guy who did the shooting, is not necessarily consistent.

Nothing is an open-shut case. And at the end of the day, it is my hope that the jury renders a guilty verdict.

KEILAR: One of the defense --

KING: I mean, for all the gentleman, because they all were involved in some way.

KEILAR: One of the defense attorneys in the case again moved for a mistrial, citing the presence of Rev. Jesse Jackson in the courtroom. Let's listen to that.


KEVIN GOUGH, DEFENSE ATTORNEY FOR WILLIAM BRYAN: If we're going to start a precedent starting yesterday, we're going to bring high- profile members of the African-American community into the courtroom to sit with the family during the trial in the presence of the jury, I believe that's intimidating. And it's an attempt to pressure, could be, consciously or unconsciously, an attempt to pressure or influence the jury.


We don't want any more black pastors coming in here or other -- Jesse Jackson, or whoever, was in here earlier this week, sitting with the victim's family, trying to influence a jury in this case. If a bunch of folks came in here dressed like Colonel Sanders with white masks sitting in the back --


KEILAR: What did you think about that, sir?

KING: Well, I think, first of all, you should never state ethnic group -- he didn't say "pastors." He said "black pastors," and then he specifically cited Rev. Jesse Jackson.

African-American pastors have a history of being supportive of the family. In fact, many pastors are coming to the courtroom -- courthouse today to have a prayer vigil. But basically, it is to support this family.

This is a tragedy. I said yesterday I certainly understand what the family is going through, losing a father when I was 10 years old and a grandmother when I was 16, both being assassinated. But that kind of support is traditional in the African-American community.

KEILAR: You, as you mentioned, will be there for this prayer vigil. It's being called a -- the Wall of Prayer. This is going to happen in front of the Glynn County Courthouse today. And it's going to be you. It's going to be many, many pastors. It's going to be the Arbery family.

What's the message that you're -- you're hoping to relay?

KING: The message is that -- the hope is that the jury will do the right thing.

First of all, the message is lifting up this family. That's -- you cannot lose sight of that. This is really about support. This family knowing they are being -- they are being attacked by some of the things that have been said, from what I understand, in the court.

And so pastors decided, Reverend Sharpton being the leader of all of the individuals that are coming.

And of course, the attorneys are involved, Mr. Crump and Mr. Merrick. But the message is we want justice to occur in this case. And really, justice for all cases, but certainly, this is what we have focused on right now.

KEILAR: We, sir, appreciate you being with us ahead of this important day. Martin Luther King III, thanks so much.

KING: Thank you.

KEILAR: Up next, a mistrial over a drone video? That is what the defense wants and what jurors in the Kyle Rittenhouse trial are now weighing.

Plus, Republican Congressman Paul Gosar censured, stripped of his committee assignments. His defiant reaction.

KEILAR: And "a real man would defend his wife." That's Liz Cheney to Ted Cruz. And that might be one of the gentler things she said.



BERMAN: In just a few hours, jurors return for a third day of deliberations in the Kyle Rittenhouse homicide trial. They asked to review a series of videos yesterday, including one that led defense lawyers to ask again for a mistrial.

CNN's Shimon Prokupecz in Kenosha, Wisconsin. The jury certainly seems very interested.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: They are very interested. Fourteen hours already, John, of deliberations.

We don't hear much from the jury. You know, yesterday they sent another note, just really one note, requesting to see more video. Significant for the prosecution, because this is drone video, video that they used to show that Kyle Rittenhouse was the aggressor here.

This video, they say, shows him pointing the gun at protesters that sort of set off this chain of events.

Interestingly enough, the defense attorneys obviously argued against this video during the trial, because they say the prosecution enhanced this video. They didn't offer it to them in an enhanced version. They never received it.

And so that's why yesterday, as you mentioned, they again asked for this mistrial. This is, like, the third time that they've asked for a mistrial. There's still that other mistrial pending, a mistrial that they asked that the judge dismiss the case with prejudice over a -- during cross-examination over questioning by the prosecutor. So all of that is still pending as the jury continues to deliberate.

As you say, they'll be back here this morning, and we'll see. But really interesting to watch this jury. They came in briefly yesterday. Before they left for the day, they seemed fine. No one seemed agitated. One of the jurors even made a joke with the judge. The judge sent them home and said they'll be back this morning in just a few hours -- John.

BERMAN: All right. Shimon Prokupecz, watching it very closely. Thank you.

KEILAR: Let's bring CNN senior legal analyst in, former federal prosecutor Elie Honig, back here.

Elie, these particular videos, these are the videos of the shooting of Rittenhouse's first victim. Why do you think the jury wanted to see these?

HONIG: Yes. These are crucial videos, Brianna. And it's important that -- I think they're looking at the most important pieces of evidence in the case, which is really the frame by frame of the first shooting of Joseph Rosenbaum.

Because the question is was this use of lethal force by Kyle Rittenhouse, was it necessary? Was he reasonably in fear for his life or of great bodily injury?

And I will say this. The fact that they're looking at the right evidence, at the most important evidence, the video itself, however this verdict comes out, I think tells us that they're going about this in a methodical, fair way.

And I think, ultimately, the videos are going to determine how this case comes out. Because they tell the story frame by frame of the key interactions here.

KEILAR: You're confident they're doing the work, which is -- which is really interesting, that they're looking at the right things here.

The defense called for a mistrial. They asked for a mistrial again. They said the prosecution didn't give a clear enough drone video. Can you explain that moment to us?


HONIG: Yes, Brianna. This was a mistake by the prosecutors. Prosecutors have an obligation in our system to turn over all the evidence in advance to the defendants. We do not do trial by surprise in this country.

Now, there's going to be two questions that decide whether this was serious enough to merit a mistrial. I don't think it will be.

First of all, was this intentional by the prosecutors or unintentional? They said in court yesterday this was unintentional. They had an explanation of it. That's really important.

And the second thing is, is the difference between the clear video and the blurry video, is there a difference in there that's significant enough to the defense? The defense lawyer is going to be able to point out you can see this in one video but not the other, and that would have made a difference to your defense strategy.

If they can't do that, and if it was unintentional, I think this will get chalked up as a mistake by the prosecutors -- not the first one -- but not enough for a mistrial.

KEILAR: All right, Elie. Look, day three we're watching here. Elie Honig, thank you.

HONIG: Thanks, Brianna.

KEILAR: Coming up, Republican Congressman Paul Gosar censured over what has been called a fantasy murder video. What he did minutes after his rare rebuke.

BERMAN: And comedian Bill Maher making a prediction about Donald Trump.


BILL MAHER, HOST, HBO'S "REAL TIME WITH BILL MAHER": Trust me, he's going to run. Absolutely. He's going to get the nomination. And I certainly wouldn't be surprised if he just won the election.



KEILAR: The House voted to censure Republican Congressman Paul Gosar after he posted a violent animated video that depicted him killing Democratic Congresswoman Alexandria Ocasio-Cortez and attacking President Biden. The measure also stripped Gosar of his committee assignments.

All 221 Democrats and only two Republicans, Cheney and Kinzinger voted in favor of Gosar's censure after a heated debate.


REP. ALEXANDRIA OCASIO-CORTEZ (D-NY): What is so hard about saying that this is wrong? This is not about me. This is not about Representative Gosar. But this is about what we are willing to accept.

REP. PAUL GOSAR (R-AZ): There is no threat in the cartoon other than the threat to what immigration poses to our country.

OCASIO-CORTEZ: Our work here matters. Our example matters. There is meaning in our service. And as leaders in this country, when we incite violence with depictions against our colleagues, that trickles down into violence in this country.

REP. KEVIN MCCARTHY (R-CA): For Democrats, this vote isn't about a video. It's about control.

REP. STENY HOYER (D-MD): This is about this incident of a member using whatever medium you want to say on the public dime, threatening and showing the killing of a member of this House. Can't that appall you, even that act? Do you have no shame?

REP. MATT GAETZ (R-FL): Today we're critiquing Paul Gosar's anime. Next week, we might be indicting the Wile E. Coyote for -- for an explosive ordinance against the Road Runner.

REP. NANCY PELOSI (D-CA): The resolution on the floor today is about accountability.

REP. JIM JORDAN (R-OH): Here we go again, censoring speech. The most fundamental liberty we have is our right to speak, our right to talk, our right to communicate, and they're going after that today, because they don't like freedom. (END VIDEO CLIP)

BERMAN: Joining me now, CNN political commentator S.E. Cupp.

S.E., what did we learn about the Republicans in the House?

S.E. CUPP, CNN POLITICAL COMMENTATOR: That almost all of them are willing to stand up and vote in defense of a video attacking another member of Congress.

And I think the big takeaway here is that this will probably end in real violence. I know that, because when Donald Trump and Republicans go ahead and incite violence, it ends in violence. We saw that on January 6th. We've seen that in the death threats against people like Fred Upton and other lawmakers; death threats against health officials for enforcing mask mandates; death threats against election officials for refusing to certify an election for Donald Trump.

We've seen the violence. We've seen the death threats. This will end badly. And Republicans will have blood on their hands.

BERMAN: Why were there only two, then, Kinzinger and Cheney, who voted for the censure?

CUPP: Because there is no punishment for this sort of behavior. Republicans know that Kevin McCarthy is not going -- is not going to discipline them for this terrible, indefensible behavior.

Why? Because he wants to be speaker. It's that craven and that gross, but it's not complicated, John.

BERMAN: No. And of course, Gosar after, I guess, retweeted a tweet that had the video in it.

CUPP: Of course he did.

BERMAN: So it's not like it stopped anything.


BERMAN: What about the argument -- some Republicans, Don Bacon, who voted against censure but is -- is a more moderate Republican on these issues.

He says, Look, what's going to happen to the Republicans, if Republicans take power next year, which could very well happen --

CUPP: Yes.

BERMAN: -- Democrats are just going to start getting censured left, right and center here. I asked Jim Clyburn about this yesterday. He goes, Well, we certainly hope that Republicans take it on a case by case basis and responsibly.

CUPP: John, I -- I look forward to the day when I'm sitting here with you in 2022 or 2023, because my contract has been renewed, when we are talking about Republicans doing this. And you are playing back the tape of Kevin McCarthy saying good for thee but not for me.

Because all the arguments the Republicans made yesterday about censorship and free speech and process and what a waste of time, we should be doing more important things, I guarantee will fall away when they get power again.