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U.S. Backsliding on Democracies List for First Time; Brian Peters is Interviewed about Covid in Michigan; Arbery Trial Live Coverage. Aired 8:30-9a ET

Aired November 23, 2021 - 08:30   ET

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

[08:30:00]

DAVID GREGORY, CNN POLITICAL ANALYST: Since he has been and his position is just always deny everything. So I don't think he, you know, he attaches much importance to that in anybody he endorses. The larger political point is how much stroke does he have? You know, I mean, he -- he has to be seen right now as a kingmaker. Don't forget, Donald Trump lost after four years. That was important that that happened as a sitting president who lost re-election. If he's got any comeback in him, he's got to be able to back the right candidates for the party and has got to be seen in doing so. And, remember, Virginia, who he did endorse Youngkin but kept his distance, looked to be a winning model. So that's the kind of thing that I'll be watching closely.

BRIANNA KEILAR, CNN ANCHOR: David, what do you -- what did you think about in this regular ranking of democracies to see for the first time America has been flagged as a back-sliding democracy?

GREGORY: Well, I think it's disturbing. I mean Europe worries -- the general kind of European angst, you know, goes on about America. It's been going on really since 9/11 in its current incarnation. It's, obviously, happened many other times in our history. But I do think it was worrisome. I think we all have to be worried that what we take for granted in this country, as a highly functional democratic system, is not. And Donald Trump exploited that. Republicans exploited that.

What we saw on January 6th, what we started talking about was an attack on our free election system and our very democracy. Efforts to curtail free and widely available voting in the country is under attack.

So, you know, it's something of a wake-up call, and we've had many to remind us that how we live, how we're governed, is not something that should be taken for granted.

KEILAR: I wonder, Kaitlan, how the White House sees this, how the president sees his role in trying to right this.

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: Well, they have really taken a -- quite a strong stance on January 6th when it comes to these executive privilege fights, which actually could have really broad implications for this White House because, of course, Joe Biden is not going to be in office forever. If he's followed by a Republican successor, is that something they try to use against them? But when you talk to the White House, and you talk to President Biden about this, he says that it's a matter of such grave importance to them, and they think it is so important to get to the bottom of it and look like they are taking it seriously and take it seriously. I think that speaks to how they view it.

And I do think it plays into how the United States is viewed on the world stage at points. They look at something like that, and it makes them question, you know, other conversations that the United States has. Obviously, the United States has officials regularly go around the world and talk about the importance of democracy, and democracy working. And that is something they want other nations to model as well. And so I think it plays into that entire conversation that they have and that they try to push to other nations.

KEILAR: Yes, and do they have a leg to stand on, that's a big question.

Kaitlan Collins, David Gregory, thanks to you both.

GREGORY: Thank you.

KEILAR: So here's what else to watch today.

(BEGIN VIDEO CLIP)

8:30 a.m. ET, Ahmaud Arbery trail resumes.

2:00 p.m. ET, Biden speaks on economy.

3:15 p.m. ET, White House press briefing.

(END VIDEO CLIP)

KEILAR: Health officials in Michigan sounding the alarm as Covid hospitalizations approach the highest level since the pandemic began. What is behind this surge?

JOHN BERMAN, CNN ANCHOR: And we are awaiting the final rebuttal from the prosecution in the trial of the three men accused of killing Ahmaud Arbery. We're going to be live inside the courtroom for these crucial arguments.

(COMMERCIAL BREAK)

[08:36:32]

BERMAN: All right, we have some live pictures for you now from inside the courtroom in Brunswick, Georgia. The trial of the three men accused of killing Ahmaud Arbery. We are awaiting for the rebuttal from the prosecution. This is the final word from attorneys before the judge will send the jury in to deliberate.

Are they talking right now in Georgia? Not yet. Not yet. But you can see, there's the lead prosecutor right there, who made the closing arguments yesterday for the prosecution. And you can see people milling about.

In a moment, they will bring the jury in and we will bring you this rebuttal the second it happens.

In the meantime, the state of Michigan is under high alert amid soaring Covid case counts and hospitalizations. Michigan leads the nation with the most reported Covid cases in the last seven days. And health officials say it's only a matter of weeks before hospitalizations surpass the previous pandemic peak set in April last year.

Joining me now is Brian Peters, he's the CEO of Michigan Health and Hospital Association, which represents all community hospitals in Michigan. It is one of the nation's largest state hospital associations.

Thanks so much for being with us.

What's the situation in your hospitals this morning?

BRIAN PETERS, CEO, MICHIGAN HEALTH AND HOSPITAL ASSOCIATION: Well, thank you for having me this morning.

And you're exactly correct. I would say that the situation confronting our Michigan hospitals today is as dire as it has been since the start of the pandemic. And, quite frankly, that's because we are, as you said, rapidly approaching our all-time record high for Covid hospitalizations. But at the same time, we're seeing a real surge of patients who likely delayed seeking treatment for care that are now showing up in the hospital. Our staff, who have been dealing with this pandemic for nearly two years now, are as fatigued as they have ever been.

And so, again, the situation is incredibly dire. And we need the public's support to get out of this very dangerous predicament.

BERMAN: As dire as it's been. I know people will hear that and say, well, how can that be? I know Michigan's vaccination rate is 55 percent, which is below the national average. But how can it be the worst it's been at this point of the pandemic?

PETERS: When we look at emergency department volume and we look at positivity rate, we know that in the days and weeks ahead those hospitalization numbers are only going to increase. We have hospitals now that are on diversion, hospitals that are rescheduling elective procedures, all of the things that we saw earlier in the pandemic during the first surge. But the difference is now we have employees who have left the healthcare field for other jobs, they have retired if they're in a position to retire. Our workforce is challenged. They are burned out, fatigued. And that's what's created this incredibly difficult situation.

Beyond that, we have a shortage in terms of individuals who can provide transportation services. And so there are patients in hospital beds that could be transferred to a different setting, either higher acuity or lower acuity, and we don't have the staff to facilitate that transfer. And so that's creating a real roadblock in the process as well.

BERMAN: All kinds of logistical issues, workforce issues and a significant part of the population still unvaccinated. And I know they are making up still the vast majority of the Covid patients.

[08:40:01]

Brian Peters, it's a struggle. Hopefully -- hopefully you'll get the help you need and hopefully people will help as best they can as well in their own homes.

Brian Peters, thank you.

PETERS: Thank you so much.

BERMAN: Let's go right back to Brunswick, Georgia, now. The rebuttal from the prosecution in the case of the men charged with killing Ahmaud Arbery.

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: The definition of reasonable doubt. That is the law that will be provided to the panel. And, again, if we could just have everybody argue or in argument make sure that you are referring to the law that the panel will be charged with so that there's no confusion about the standard that should be applied.

Thank you.

LINDA DUNIKOSKI, LEAD PROSECUTOR: The doubt of a fair minded and impartial juror honestly seeking the truth. Not seeking doubt, not beyond doubt, or for mathematical certainty. That's what the judge is going to charge you, OK?

Once again, if you believe they have committed these crimes, and the state has proven it to you beyond a reasonable doubt, you're authorized under the law to come back with a guilty verdict on all the charges. It's as simple as that.

Now, in this case, the defendants have raised an affirmative defense. And what does that mean? An affirmative defense means, hey, even if you think we really did these things, because the evidence is sufficient to say, yes, we did do these things, the four felonies in the indictment and the murder. Hey, we have an affirmative defense which justifies us doing that. For the murder, it's self-defense. For the other charges, it's citizen's arrest.

So here's the thing, you find they didn't commit a citizen's arrest, that's not what they were doing, under the law, they didn't meet the criteria. OK, I'm going to remind you guys, ignorance of the law is no excuse. It's not like, oh, they were probably mistaken. Uh-uh, you can't be mistaken about the law. If you're going to take the law into your own hands, you better know what the law is.

So, if you find they were not doing a citizen's arrest, under the legal standard, OK, the judge is going to give you, well, then, it takes it out of self-defense for the homicide. That means they're guilty on all the charges. All right, it's as simple as that.

So, count one, malice murder. Remember, premeditation is not required and the state is not require to prove motive, all right. You may find malice when there does not appear to be significant provocation and all the circumstances show an abandoned and malignant heart.

OK, I want to be real clear. The state is not saying that Greg and Travis McMichael ran out of the house to go murder somebody right then and there. We all now that's not how it works, right?

OK, what happens? Let's give you an example. I'll make up an example. She's leaving him, right. They're getting a divorce. And she's there to pack up her stuff, OK. He's not at the house to murder her, right? No. But what happens? She's packing up the stuff, they start arguing, they start bickering, then it starts into shoving, then it's, if I can't have you, nobody can have you, she's thinking, oh, my God, he's an idiot. She's taking the stuff out to the car. He goes up and kills her. Shoots her with a gun. OK, it started out one thing and it escalated and escalated and escalated. That's how you get to the murder.

So don't be fooled, OK. The state's not saying they left the house to go murder Ahmaud Arbery. What happened? They left the house to go investigate, right? Stop, we want to talk to you. Where are you coming from? What did you do? What's going on, right?

And then what happened? Mr. Arbery ignored them. OK. He took off running. He wouldn't do what they were commanding him to do. He wasn't obeying their orders. Why? Well, under the Constitution of the United States, he didn't have to do anything except walk away. In this case, he ran away. And they chased him. They backed up on him, and then they followed him down Burford (ph).

You saw the night owl video repeatedly yesterday when Mr. Gough was here. At that point, I mean, let's face it, to Travis and Greg McMichael, that was a big go jump in the lake, I'll use polite language. I mean, wasn't it? Here they are, ex-law enforcement, Coast Guard, we're demanding that you stop and talk to us. We have questions. Stop, stop right there. Talk to us. And he ignores them. Basically telling them, you know, I'm not doing it.

And it starts escalating. They start getting mad. Oh, yeah? And then, all of a sudden, Roddie Bryan pulls out. And then it is like, oh, yes, we'll go around and we'll cut him off over here. We'll go get him. Now they want to get him. Now they want to stop him because they're mad at him. He has totally ignored them and run away from them. And how dare he do that to these two people, OK?

[08:45:01]

What right did they have to stop Ahmaud Arbery? What right did they have to go ahead and demand a fellow citizen stop and talk to them and then use pickup trucks to try and cut him off and force him to be detained right there on Burford? None whatsoever.

So when we're talking about malice murder, we are talking about the fact that this can happen. And the judge is going to charge you on this. No specific length of time is required for malice to arise in the defendant's mind. Malice may be formed in a moment, and instantly a fatal wound may be inflicted.

Hey, you see malice? Well, you can consider it as reckless disregard for human life. You bring your 12 gauge pump shotgun with you, ready to fire, you point it at a man you know is unarmed. I mean, you think they couldn't tell with those baggie shorts that he didn't have a gun on him? Who's being forced toward you by Mr. Bryan in his black Silverado, and then you go ahead and intercept him and pull the trigger without a thought. Abandoned malignant heart, reckless disregard for human life.

And they're in it together. Greg McMichael and Travis McMichael are acting together, in concert, in the truck. Their actions are all together. They're parties to the crime. Even though Greg McMichael is in the back of that pickup truck on that 911 call when Travis pulls this trigger, he is still responsible because he's a party to this crime. Because without Greg McMichael, this would never have happened.

Now, felony murder, once again, is based on the four felonies. Now, the felony murder is you're committing a felony. There's no intent to go ahead and kill the person. But because you're committing that felony, someone dies.

OK, let's not be fooled. We're not talking about but for his parents getting married, that is -- that's the red herring. What are we talking about, ladies and gentlemen? But for the felony, OK, that's the thinking. But for the criminal attempt at false imprisonment, but for the false imprisonment, but for the aggravated assault with the motor vehicles, but for the aggravated assault with the shotgun, he wouldn't be dead. That's how you think about it.

Look at these crimes and ask yourself, OK, if we take that out, would he be alive? It's real simple. The answer is, you can't take out any of these crimes. You take out any one of these crimes that they committed, and he's still alive. All of the underlying felonies played a substantial and necessary part in causing the death of Ahmaud Arbery.

What do we have, aggravated assault with a shotgun. Pretty simple. The aggravated assault was continuous. It started with pulling that shotgun up. Ahmaud Arbery was 30 to 40 yards away, not an imminent threat at all. And what did it do? It ended with the pulling of the trigger, shotgun blast here, the pellets right here.

Did that felony contribute? Of course it did. It's the cause of his death.

Aggravated assault with pickup trucks. I want to be real clear about this. You do not have to hit the person with the pickup truck. The judge is going to charge you that. Actual injury to the alleged victim need not be shown.

What has to be shown? This. Were the defendants' actions such that it placed Ahmaud Arbery in reasonable fear of immediately receiving a violent injury? What did Mr. Bryan do? He actually ran him into a ditch. Check. I mean Mr. Bryan, right now, aggravated assault with his motor vehicle, check, felony murder, check. Because this contributed to his death. This played a substantial part because it put Mr. Arbery in reasonable fear of Mr. Bryan and that truck.

So what do we know? We know that Mr. Arbery was running back up Holmes (ph) when Mr. Bryan came back down, and he had to turn around at that blue mailbox. You don't see him turn around, but see how far he is at that blue mailbox and he heads back toward the white truck? If he wasn't already in fear of Mr. Bryan and his Silverado, would he still be alive? Yes. But because of what happened, over on Burford, because of the criminal attempt at false imprisonment and this aggravated assault, Mr. Arbery's dead.

False imprisonment. You violate the personal liberty of Ahmaud Arbery. You unlawfully confine and detain him. Well, how do you do that? Well, you chase him down with a Ford F-150 or a Silverado. And they did confine and detain him on Holmes.

[08:50:04]

Ladies and gentlemen, come on, we've looked at this, all right. What do we got? We got Mr. Bryan chasing him up Holmes. Now, yes, this line doesn't go far enough, because what did Travis McMichael tell the police? I stopped a few houses down, got out of my truck and shouted at him, stop, stop. Now, he denied it on the stand, but that's what he told the police in his written statement, the one he had an hour to fill out, right?

So, Mr. Arbery got this far and had to turn back around. Then, he goes back this way. Then he has to go back down this way because now he's turned around. Now he has to come back this way, once Mr. Bryan turns around. He went up and down this street at least four times. I mean, come on, confined and detained on Holmes. That's false imprisonment. Up and down. Four different times. Right there.

Criminal attempt. You saw the night owl video. You saw how fast they took off after him. I mean Greg McMichael is yelling, cut him off, cut him off, cut him off. Travis denies that he did anything to cut off Mr. Arbery. Doesn't even say he pulled in front of Mr. Arbery. But, for some reason, Mr. Arbery turns around and runs back. You decide what to believe. But what was he trying to do? What was his intent? He told you what his intent was. Our intent was to stop him. Can't stop somebody, United States of America, OK. People are free here. They had no authority to demand that he stop and they're yelling at him, stop, we want to talk to you. And he's running away. That's the criminal attempt by the McMichael's on Burford.

Now, of course, we know the criminal attempt at false imprisonment on Mr. Bryan. He pulled out, pushed him, yes, shoved him, did whatever, got him into a ditch. Now, those actions on Burford, did it put Ahmaud Arbery in reasonable fear of receiving bodily harm? Yes.

So now what's he doing? He is running away from them. For five minutes, he's running away from them. If they hadn't put him in reasonable fear of receiving serious bodily harm so that he ran away from them, would he be dead? The answer is no. Therefore, that substantially contributed to his death because, why? All right. Where did he go? He went up Holmes.

Now, this whole thing of, oh, well, the reason he didn't really run out this way is Mr. Albenze was down there with a gun. Nobody has x- ray vision. Mr. Albenze had the gun in the pocket of his overalls, OK. And what do we know Mr. Albenze did after all this? He went home. Remember, he walked back and he goes on home -- I'm sorry, goes on home here. So this idea that Ahmaud isn't going to run this way because Mr. Albenze's out there, we don't know what's in the mind of Ahmaud Arbery. Not at all.

But what did Mr. Bryan do? Well, Mr. Bryan got in front of him and then went to back up at him and that's when he turned up Holmes. Those are the words of Mr. Bryan. I pulled in front of him, I backed up at him, and that's when he turned up Holmes. Therefore, the criminal attempt at -- criminal attempt at false imprisonment substantially contributed to the felony murder. Based on that alone, ladies and gentlemen, criminal attempt at false imprisonment, guilty. Felony murder for that, on all of them, Mr. Bryan included, and the McMichaels, guilty on felony murder.

So but for his actions would Ahmaud still be alive? If he had not helped to stop Ahmaud with his Silverado, would Ahmaud still be alive? And the answer is, yes, he would have been. That's all you got to think about is, well, what did he do to contribute to help the McMichaels? The answer is yes. Mr. Bryan played a substantial and necessary part in causing his death. He is responsible for the murder of Ahmaud Arbery.

All right, so that brings us to self-defense. All right, I'm just going to go over this quickly. I want you to know what the basics are, the essentials, OK, because self-defense really applies to the aggravated assault with the shotgun, OK, and the murder charges.

So, what have we got? One can use lethal force in self-defense, but only under certain circumstances. You can't claim self-defense if you are the unjustified initial aggressor. Meaning, if you started it.

Who started this? Wasn't Ahmaud Arbery. If you're committing a felony against that person, once again, we're back to our convenience store armed robber.

[08:55:05]

He doesn't get to defend himself against the clerk he's robbing. He doesn't get to claim self-defense. He's committing a felony.

In this case, they committed four different felonies, including aggravated assault with a shotgun. They started it. They do not get to claim self-defense.

And then, of course, provocation. You can't force someone to defend themselves against you so you get to claim self-defense. This isn't the wild west. No.

So there's three instances where the defendants don't get to claim self-defense. And they committed all of them.

So, once again, initially provoked the use of force against himself with the intent to use such force as an excuse. No wild west. This is the important one, cannot commit aggravated assault with a shotgun, with trucks, false imprisonment, or criminal attempt at false imprisonment, any of those. Not justified using force if you're doing any of those things. They're were doing all four of them. And you're not justified in using force if that person was the unjustified aggressor. You can't start it and claim self-defense. And they started this with their driveway decisions.

So, here's the main concepts. The defendants had to believe that deadly force was necessary. There were no other alternatives. Pointing a shotgun at somebody, there were a whole bunch of other alternatives to that. That belief must be reasonable. And, once again, that's reasonable for everybody. That reasonableness applies to you. That reasonableness, there's no special exception for previous training in the Coast Guard or law enforcement. The reasonableness standard in Georgia applies to everyone equally.

The danger to yourself has to be imminent, meaning, I am about to get killed. Not, some guy I've been chasing for five minutes is running at me.

Can't use excessive force. The minute it's excessive, self-defense goes out the window. The defendant's reasonable belief must be what prompts him to use force.

What prompted Travis McMichael to pull up that shotgun? He wanted him to stop. He was trying to get him to stop. Oh, yeah, you're not going to stop me for me and my dad. Up comes the shotgun. Now you're going to stop. OK, you're not going to stop, you're going to go around the truck, that's fine. He goes to intercept him. He's not afraid. He moved toward Mr. Arbery. He moved toward Mr. Arbery with the gun. He's not afraid.

You got to act out of fear. You can't be acting out of anger. That this guy won't stop and talk to you and won't obey your commands. OK.

What was there to be afraid of? Well, let's see, Ahmaud was wearing a t-shirt and cargo shorts that were so baggie he has this big belt loop out here. Let's see what else. Didn't have a bag or a backpack. So, you know, don't have anything that he's carrying. He was running with his hands empty at his sides. Ran away from them for five minutes. Did not have any weapon. Nothing on him. Didn't say one word to them. Didn't threaten them verbally. Didn't say, oh, yeah, didn't say anything.

And he had no help from anyone. So what's there to be afraid of? He went this way. He goes this way. He goes that way. And you see Travis McMichael move down to the center of the street there, blocking his way. He's trying to get away. And then, oh, look, he's going to go this way, and he does, and he goes around.

And what do you have here? Travis McMichael going to intercept. And that shadow underneath there, I mean, you can have the stills back there. We printed some of them out. That shotgun is pointed right at him. Right at him, OK.

So when he gave the police that story about, (INAUDIBLE) arms and he was striking me and hitting me and striking me and hitting me and I finally, you know, had to do this, that's what he told the police. A bunch of lies. Shotgun, shadow right here. OK.

Here's the other thing, ladies and gentlemen. Lawyers aren't good at math. But I'm going to trust you guys are. What did the M.E. say, this arm on Ahmaud Arbery was 26 inches.

[09:00:00]

This arm on Ahmaud Arbery was 25 inches. And the barrel of that shotgun is over 28 inches. Do the math.