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Shooter Takes Stand, Claims It Was Life or Death Situation; Rep. Paul Gosar (R-AZ) Censured, Democrats Demand Consequences, GOP Defends; Tonight, Oklahoma Inmate to Be Executed Unless Governor Steps In. Aired 7-7:30a ET

Aired November 18, 2021 - 07:00   ET



CHAD MYERS, CNN METEOROLOGIST: Lunar eclipse tonight, John, 4:00 A.M. You'll be up. I know, so will I. But if you're going to be out there, here is what they clouds will be. Northeast looking a little cloudy, all of Canada as well, but the Midwest looks great for that big lunar eclipse. . JOHN BERMAN, CNN NEW DAY: Any time there is an eclipse, my phone is on speed dial to Bonnie Tyler. Chad Myers, thank you very much.

New Day continues right now.

Good morning to our viewers in the United States and all around the world. It is Thursday, November 10th.

Trial watch on three major cases. In Kenosha, Wisconsin, day three of deliberations in the Kyle Rittenhouse homicide trial. Jurors reviewed drone video evidence, including one recording that defense claims is ground for a mistrial.

BRIANNA KEILAR, CNN NEW DAY: And in Brunswick, Georgia, Travis McMichael, one of the three men accused in the killing of Ahmaud Arbery, testified in his own defense. McMichael described his confrontation with Arbery before the fatal shooting.



UNIDENTIFIED MALE: Describe that. What do you mean?

MCMICHAEL: Mad. It wasn't what I expected for just coming up and talking to him. It was clinched teeth, closed brow (ph). He was mad, which made me think that something -- something's happened.


KEILAR: Now, McMichael will be back on the stand today as prosecutors resume their cross-examination. BERMAN: 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 in 2017.

Joining me now is Assistant Professor of Law at Brooklyn Law School Alexis Hoag and Civil Rights Attorney and former New York Prosecutor Charles F. Coleman Jr.

I want to start with Ahmaud Arbery trial, professor. The defendant -- one of the defendants on the stand, right away, we heard him, Travis McMichael, describing the moment that shots were fired there, his justification for self-defense. What's the defense trying to do here and do you think it worked?

ALEXIS HOAG, ASSISTANT PROFESSOR OF LAW, BROOKLYN LAW SCHOOL: The defense has a massive hill to climb here. You can't have it both ways. You can't be an individual who claims to be trained in de-escalation tactics and law enforcement, the constitutional limitations of force, and then go out hunting actively a black man jogging down the street.

And what you heard in McMichael's testimony were really racial stereotypes. Here you have a person jogging in the street and you have this presumption of criminality, this presumption of dangerousness. Some of the language that he used to describe what Ahmaud Arbery was doing, who was really minding his business, is that he came at me. He was like a running back, ready to bolt, that he was focused on me.

And I want us to take a moment to think about what it is that was going through Ahmaud's mind as he was running. You are by yourself in a largely white neighborhood and you see two pickup trucks, you see three white men, you see a 12-gauge shotgun. That's my worst nightmare.

And so I don't think McMichael is doing himself any favors here. He is opening himself broadly to cross-examination, the fact that he says he has training in de-escalation. We already see the prosecutor coming at him saying, well, if you knew to deescalate, if you knew the limitations of force, why is it then that you're pointing a gun and essentially hunting down an unarmed black man?

BERMAN: And there will be much more on cross-examination today. And it is very clear the prosecutor, I think, will focus in on some of the very issues that you bring up, including the statement he just made there describing the moment that shots were fired. The prosecutor will try to describe it may not have gone exactly the way that Travis McMichael said.

Charles, I want to play a little bit more of this testimony. And this gets to Travis McMichael trying to explain in his mind, justify why he was chasing Ahmaud Arbery. Because he thought he might have been a person who was on video that he had seen trespassing. Watch.


MCMICHAEL: Listen, Travis, the guy that has been breaking in down the road just ran by the house. Something has happened.

I was under the assumption that it was the same individual that I saw on the 11th.

I thought it was reasonable that, okay, there's something to this. This guy may have just ran by. Matt may have just seen him either caught him breaking in, stealing something.


BERMAN: So, a guy tells me he saw a video that may have been Ahmaud Arbery jogging by. He assumed it might have been him and that's why he went out there. Talk to me about why all that is important.

CHARLES F. COLEMAN JR. , CIVIL RIGHTS ATTORNEY: first of all, none of that matters because it's all hearsay. Let's start there.


These are not things that he observed with his own eyes. Let's start there right in terms of evidence and what is actually going to be able to move the jury. That's all hearsay. That's all, what, someone told me and it may have been and so on and so forth.

There are two things that I want to point out about McMichael's testimony that I thought were critically important. One of them was his tone. He was one of the earliest witnesses for the defense's case in chief, and it was a stark difference between his tone and what we saw from the prosecution. The prosecution, rightfully so, put on strong images of Ahmaud Arbery, you saw him in the street. You saw what it looked like, that very, very horrific video. That was something that the prosecution focused on.

When Travis McMichael took the stand, he was very casual. He was very conversational. He tried -- if you were paying attention, you would not have even thought he was on trial for a murder case. That was number one. And I thought that was intentional because what he wanted to do was essentially disarm the jury for what it is that he's on trial for to begin with because Ahmaud Arbery is not there to talk about what happened to him.

The second thing, and Alexis alluded to this already, is the fact that in this case, one of the things that the defense is trying to play on is the fact that they have 11 white jurors and 1 black juror. So, when you talk about the state of mind, there are a lot of decisions and questions that were asked by the defense attorney to McMichael in terms of explaining or trying to get out what he thought was reasonable in his state of mind. Without more black people on that jury to explain, as Alexis already said, that's actually very reasonable action for someone in that situation who has the cultural experiences and the background that Ahmaud Arbery had as a black man, those points may go unaddressed in that jury room, which is a very dangerous thing.

BERMAN: What does the prosecution have to do on cross? And I ask this because I really -- there are two questions here. One, is it just how this is being portrayed, but the other question is will it work. So, if you're the prosecutor, how do you address the will it work part?

HOAG: Yes. You have to go through each of the statements really that Travis McMichael is making on direct examination, that he had this specialized training, that he knew how to deescalate situations, that he knew what probable cause meant, that he had experience in arrest and de-escalation. And basically in cross-examination, you can ask leading questions that result in a yes or no response.

And so this state's attorney, who is actually not from Glynn County, is in from Cobb County, a suburb of Atlanta. We know that this case has had a lot of time in terms of who is going to prosecute, who is the most appropriate prosecutor and who didn't have bias in this case. And so the prosecutor on cross-examination is going to carefully go through all the statements that Travis opened himself up to during direct examination.

BERMAN: I'll tell you, I think this trial has been fascinating to watch, in some cases, painful to watch. If there's one day, I think you want to focus on because it would be fascinating, it's today when this cross happens.

I want to ask about the Kyle Rittenhouse, Charles, because what we saw was the jurors asking to see drone video of one of the killings, right? And this drone video is video that the prosecution, I think, likes and wants in the case. What's interesting is the prosecution wanted the jurors to be able to see it as many times as they wanted. The defense wanted them to only see it once. What should we read from this?

COLEMAN: Well, I think at this point, it may be too early to tell exactly what we should (INAUDIBLE). But what I can tell you is that, more than likely, what is happening is that the jury is in that room and they're trying to compare the competing narratives from both parties.

We have one narrative which paints Kyle Rittenhouse as a vigilante who came there looking for trouble, and that's where the provocation charge becomes so important that the judge read and that the prosecution really hammered home during the summation. You another narrative, which the defense has painted, which makes Kyle Rittenhouse the victim, and say, oh, he was just defending himself.

And so what they're likely going to be looking for in terms of reviewing this video is to really understand was it reasonable that Kyle Rittenhouse says that he thought his life was threatened, was it reasonable that he decided to respond by using deadly force and was it reasonable given the fact that he provoked this altercation that he now wants to claim that he was the victim and fired in self-defense?

And so I think just those competing narratives and sort of watching that drone footage is really driving the jury right now to try to see which of those narratives they believe and one is established as fact.

BERMAN: It seems like they're doing their jobs.

HOAG: Exactly. They are considering evidence. 16 hours of deliberation. We know they're going to started again today, Central Time at 9:00 A.M. I don't think -- and I don't want to make too explicit of a prediction, but they're going to come back with an across the board acquittal. They are carefully considering each of the five charges, including the lesser included offenses on that top charge of intentional first degree homicide.


And even though the judge excused, dismissed the gun charge, there is still a weapons charge attached to each of those five charges, the fact that he endangered others with a deadly weapon, that he committed homicide with a deadly weapon. So, that is still relevant.

COLENA: Really quickly -- I'm sorry, John. Really quickly, to make a point, I think in a lot of ways viewers and the public, we were spoiled by the very fast verdict in the Derek Chauvin case. People need to understand, this is a much different case. Three different sets of victims, sets of charges, much, much more complicated. And so it is not unusual for them to deliberate at this level.

BERMAN: No, they should do it right. The important thing is to be careful. I really appreciate you both being here. This is a really good discussion. Thank you.

KEILAR: The House issuing its most severe form of punishment outside of expulsion, Congressman Paul Gosar censured and stripped of his committee assignments. It's the first time that a sitting House member has been censured in more than ten years.

And this major rebuke comes after Gosar, who is a Republican from Arizona, posted a violent animated video targeting Congresswoman Alexandria Ocasio-Cortez and also President Biden.


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 the 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 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 are going after that today because they don't like freedom.


KEILAR: Joining us at the magic wall is Chris Cilizza, our CNN Politics Reporter and Editor-at-Large.

And, Chris, when you look at the history here of the U.S. and of Congress, Gosar doesn't have a lot of company, and the company that he has is pretty bad.

CHRIS CILLIZZA, CNN POLITICS REPORTER: Yes, that's exactly right. There's only 24, two dozen members have ever been censured before, and as you noted in the open, Brianna, it hasn't happened in a decade.

I want to highlight one, kind of the company he keeps. This guy right here, Lovell Rousseau, 1866, he came to another member of Congress. That's why he was censured. We're not there, but I want to also note this. Look, this -- since the 1890s, this has extremely worse, seven total cases including Gosar.

Now, I want to highlight a couple of these more recent ones to show you the company he's in. All right, so these two games, Gerry Studds and Daniel Crane, they showed you how much time has changed. Okay, both of them admitted to having sexual relationships with 17-year-old House pages. In Studds' case, it was a male page, in Daniel Crane's case, it was a female page. They were both censured and both remained in office. Imagine that happening now.

This is the one I think most people are familiar with, to the extent you pay attention to this. You have Charlie Rangel. He had been found guilty on the Ethics Committee of 11 separate campaign finance violations. This is not reporting all of his income. This is using campaign income to pay for stuff in his congressional office. This was a long time coming. The House Ethics Committee had investigated for a long time. And then, obviously, Mr. Gosar.

Now, let's go through what happened. As you know, the video showing a Photoshop of Gosar killing Alexandria Ocasio-Cortez, threatening President Joe Biden, he takes the video down after criticism. But then after the censure vote yesterday, he puts the video back up. He re- tweets someone with the video included, he then takes that back down two hours later. So, not exactly the picture of remorse there, Brianna.

This, I think, is important. This is not Paul Gosar's first trip around the controversy machine.

[07:15:00] In 2017, he said that an Obama sympathizer, his words, was responsible for organizing the neo-Nazi white supremacist rally in Charlottesville, Virginia. He also said that George Soros was somehow funding it. He -- the day after John McCain was diagnosed with a brain tumor, Gosar's chief of staff texted a lawyer for the governor, Doug Ducey, and said that he would be interested in the seat. He has been on the front end of promoting QAnon conspiracy theories. He appeared at a February event with a white supremacist. And as recently as last month, he has called for not just another recall of the Arizona results but re-running of the Arizona results for the 2020 presidential electoin. He wants Joe Biden and Donald Trump to run that election again in Arizona which, by the way, isn't a thing.

Now, how will the Republicans respond? As that tape you played showed, you had Kevin McCarthy, you had Jim Jordan and others angry, saying this is just partisan. Well, if Republicans take over the House in 2022, as I would say, seems likely based on history and everything we know from the 2021 election, these are folks who I think are going to come in for some attention.

Eric Swalwell is based on a relationship he had with a woman named Christine Fang, who wind up being a Chinese spy, he has been -- there's been no wrongdoing accused there, but even yesterday, you heard Lauren Boebert from Colorado mentioned Swalwell and that relationship.

Maxine Waters is another one that has come for a lot of criticism among Republican leaders, including yesterday, for a comment she made at a Black Lives Matter rally in Minneapolis last year, saying they needed to get more confrontational. Ilhan Omar, as you know, is someone that's come for a lot of criticism from Republicans, Adam Schiff, who led the impeachment inquiry, these are people who are likely to face in some way, shape or form, the bending back of the -- the boomerang coming back if and when the Republicans do take the majority.

I think that is just the risk that Democrats know they are taking. Obviously, they had already removed Marjorie Taylor Greene from her committees earlier, didn't censure her but removed her from her committees, now this. I think Republicans are itching to target some of these folks. And I think you'll see that if and when they do take back the majority in 2022. Brianna?

KEILAR: Yes, they are promising retribution. No reason to think they won't make good on that. Chris, thank you so much.

CILLIZZA: Thank you.

KEILAR: Up next, the guy wearing the horns who stormed the Capitol, you remember him, I'm sure, sentenced to 41 months in prison. Why some are arguing that sentence is too harsh.

Plus, the whereabouts of a top Chinese tennis star still unknown. Why an email is raising concerns about her safety.

BERMAN: And Julius Jones scheduled to be executed today. Will Oklahoma's governor step in?



BERMAN: Closing arguments set to begin shortly in the Unite the Right civil trial in Charlottesville, Virginia. 14 white nationalists and 10 white supremacists organizations are accused of conspiring to commit violence at the two-day rally in 2017 that killed counter-protester Heather Heyer and left many others injured.

CNN's Jason Carroll joins us now live from Charlottesville. Jason?

JASON CARROLL, CNN NATIONAL CORRESPONDENT: And good morning to you. It's going to be a long day here in Charlottesville, John. We are already getting a sense of what we are likely to hear during closing arguments. Remember, some of the defendants representing themselves. And actually during opening statement, I remember the judge saying that some of their opening statements sounded basically like a closing statement. So, again, that is giving us a hint in terms of what we are likely to hear.

If you take someone like Christopher Cantwell, for example, known in circles as being a neo-Nazi, during his opening statement, we heard a lot of propaganda during his opening, heard some of his political leanings, and so likely to hear some of that again today during closing arguments as well.

Defense attorneys, though, are going to try to stay away from that. They are going to be looking and reminding jurors about the foundation of their case, basically saying that the plaintiffs did not show enough evidence to show that these defendants conspired to commit acts of violence here. They are basically going to say that, once again, the violence during this Unite the Right rally was inspired by those on the far left and that things basically spiraled out of control.

Plaintiff attorneys, for their part, they are going to remind jurors that during the course of this three-week trial that they did show evidence that these defendants conspired to commit acts of violence. They showed evidence through text messages, through social media posts and basically saying they are going to remind jurors that there was an intent for violence here, and in addition to that, it was all driven by racial hatred.

Also, a reminder here, jurors basically, when they end up getting this case, they just have to show a preponderance of the evidence. So, basically, what does that mean? Jurors have to look at themselves and say, after all that they have seen and all that they've heard, basically, they have to say, is there a 51 percent chance or greater that, based on what they heard, that these defendants are basically guilty. That gives jurors a lot of legal wiggle room here.

So, again, long day here as closing arguments get underway. Their jury is expected to take up the case and start deliberating tomorrow. John?

BERMAN: Very important to point out that different standard in the civil trial. Jason Carroll, thank you very much.

KEILAR: And here in just a few hours, Trump ally and notorious political operative Steve Bannon will be in federal court to face criminal contempt of Congress charges for defying the House committee investigating the January 6th. He will plead not guilty.

CNN's Whitney Wild is joining us with more on this. So, what should we be expecting here today?

WHITNEY WILD, CNN LAW ENFORCEMENT CORRESPONDENT: Well, I think it will be a very brief hearing. This is the second of this week. So, this is just a formality. But it is putting a finer point on what we already knew, which was Steve Bannon is going to fight this at every step he can.


In fact, here was what he told reporters as he left the courtroom on Monday.


STEVE BANNON, FORMER TRUMP WHITE HOUSE CHIEF STRATEGIST: This is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden. Joe Biden ordered Merrick Garland to prosecute me from the White House when he got off Marine One. And what we're going to do, we're going to go on the offense. We're tired of playing defense. We're going to go in the offense on this and stand by.


WILD: This is just the first of several court appearances we are going to see. This is going to be a lengthy court battle, certainly a case to watch.

And there is an added nuance here, and is that the court -- the judge overseeing this case, a judge named Carl Nichols, a Trump appointee, has deep experience defending executive privilege. He did so as a top Justice Department official during the Bush administration defending executive privilege claims.

However, Brianna, I would certainly caution against making any kind of assumption about where his sympathies may lie or how he may rule. I think that information is just important to provide our viewers an understanding that he has a deep foundation here. So, he understands the nuances, which is important, because this case simply doesn't have a ton of definitive case law. It's a highly technical case. There are a lot of arguments to be made.

You heard the attorney earlier this week. You did that brilliant interview with him. So, we have some idea what the defense will be. But, today, the first of -- well, really, the second of many more cases to come.

KEILAR: Interesting. Look, the judge has a lot of working knowledge, which is important to note. Whitney, thank you for the report. BERMAN: This afternoon, at 5:00 P.M. Eastern Time, Julius Jones, a death row inmate of 20 years, is scheduled to be executed by the state of Oklahoma unless the Governor Stitt grants him clemency, as has been recommended by the State Parole Board. Journalist Mara Schiavocampo spoke to Julius Jones on the phone, and he had this message for his family.


UNIDENTIFIED MALE: I wish I was there to protect them, comfort them, lift them up. But, hopefully, if I'm not here, they will remember that that was always my intention. I'm sorry I was a bad kid. I'm sorry I made mistakes. But you know I'm not a killer. I'm not a murderer.


BERMAN: Joining me is co-Anchor of Early Start and Attorney at Law Laura Jarrett. First of all, it's emotional to hear that. But don't you just explain exactly what this case is and why there are questions.

LAURA JARRETT, CNN ANCHOR: So, it's a fascinating case. It's also an infuriating case, I think, for a lot of Jones' defenders and his supporters who feel this is yet another example of how our criminal justice system is broken because of the mountain of evidentiary problems at trial.

So, a little bit of background for those who might not have been following all the twists and turns here. This starts back in 1999 when a man, a father named Powell Howell, is killed in front of his young daughters. It's a terrible, terrible murder. His sister is there watching. His sister tells authorities, I saw a black man with a white T-shirt and red bandana. Jones is picked up a few days later in his home in a raid, police finding a red bandana and a gun.

Now, the problem is there is an alibi problem. His family says he was actually home on the night of the murder, there is bad lawyering going on. His lawyers didn't call a whole bunch of witnesses. They didn't introduce a lot of evidence at trial that Jones now says in his clemency position should have come out. His co-defendant has bragged to people about the fact that he actually framed Jones for the murder. He got a sweetheart deal, he is out of prison. And perhaps most troubling of all, one of the members of the jury has been accused of calling Jones the N word.

So, there is a ton of problems here. All of that is factoring into the clemency position. Over 6 million people have now been trying to get Jones -- not to get out of prison, by the way. Even the parole board is not saying he should get out scot-free. They are saying he should just get another trial, and that's what his mom is saying too.

BERMAN: You just can ask about the State Parole Board. Because if Governor Stitt is looking for political cover here, he says he is praying on this and he is taking his time to make the decision today, but the parole board does gives him cover here. JARRETT: Yes. They recommended in a vote 3-1 to have his sentence commuted. So, not that he would walk free but that his sentence would be commuted from a death sentence to life in prison. As you said, it is now in the hands of the governor. They're literally just hours now. He is going to be executed unless the governor intervenes at 5:00 P.M. tonight. We wait to see what he does here, but he does have an out.

BERMAN: And that's it. That is the last thing to happen here is to wait for the governor. There're no machinations before then, just the wait.

JARRETT: This case has literally been going on for 20 years, twists and turns, tons of appeals, tons of courts have weighed in. This is his last chance.

BERMAN: Laura Jarrett, thank you very much.

So, we have new CNN reporting on how the White House plans to handle hundreds of Afghan evacuees who have failed to pass the vetting process.