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New Witness Comes Forward about Michael Brown's Death; Failed Missions to Rescue James Foley and Others; Interview with Adam Schiff Regarding ISIS

Aired August 21, 2014 - 08:30   ET



CHRISTINE ROMANS, CNN ANCHOR: Time now for the five things to know about your new day.

Number one, a sense of calm returns to Ferguson. The latest protests were peaceful with a few minor disturbances. Attorney General Eric Holder promised Michael Brown's parents a thorough investigation.

The American doctor infected with Ebola will be released from Atlanta's Emory University Hospital today. Kent Brantly contracted the virus while treating infected patients in Liberia.

A major revelation in the wake of ISIS' barbaric killing of American James Foley. A U.S. official says special ops units went into Syria this summer to rescue him and other American hostages but they were not successful.

Three senior Hamas military leaders reportedly killed in the latest Israeli air strike in Gaza. It comes as Hamas warns airlines against flying into or out of Tel Aviv's Ben Gurion Airport.

The Supreme Court has put a last minute hold on same-sex marriages in Virginia. The state was supposed to start issuing same-sex marriage licensed today.

We are always updating the five things you need to know, so go to for the latest.


KATE BOLDUAN, CNN ANCHOR: Thanks so much, Christine.

Coming up next on NEW DAY, we're going to have more on the Michael Brown shooting death investigation. A new eyewitness has come forward. What impact will now what seems like conflicting accounts have on the investigation?



We are in Ferguson, Missouri. The grand jury has started to hear evidence in the Michael Brown shooting case. And that's a big moment for this community. The question is, what will it yield? In the investigation there is a new eyewitness. He stepped forward and he is adding his account to what the jurors will get to dissect in the coming months. Here's what Michael Brady told Anderson Cooper about what he saw in a critical moment when Brown was shot by Officer Darren Wilson.


MICHAEL BRADY, FERGUSON RESIDENT: By the time I gets outside, he's already turned around, facing the officer. He's balled -- he has his arms like under his stomach and he was like half way down, like he was going down. And the officer lets out about three or four shots at him.


CUOMO: And, remember, it may sound obvious, of course it's the critical moment that's what happened is that this kid got killed. But, remember, it comes down to the moment the officer shoots and why. That will be the focus of justification.

Let's bring in some attorneys who know what they're talking about. Mel Robbins, CNN commentator and legal analyst, and Midwin Charles, criminal defense attorney.

It's good to have both of you with us.

When you're looking at the story, you heard what I just said - Midwin, I'll start with you. When you're looking at the story about credibility and now you have the new witness, do you see consistency of story coming out and what does it tell you?

MIDWIN CHARLES, CRIMINAL DEFENSE ATTORNEY: You do see consistency, especially when you take it and put it together with the autopsy report that was recently released by Dr. Michael Baden, who was a doctor who was hired by the Brown family, and also as well as the autopsy that was done by the federal government. The federal government said that the autopsy was similar to the one that Dr. Baden did. In other words, there were six bullets, two of which were to the head, one to the top of the head, which would indicate that Michael Brown was bending down. And so this police officer is going to have to account, Chris, for each and every bullet that went into Michael Brown's body. So in other words, if he feared for his life, if that fear was reasonable, why not stop shooting after the first shot? So I think that this witness account is very, very helpful in the sense where it is consistent at least with the autopsy report and the positioning, the trajectory of the bullets.

CUOMO: Mel Robbins, other side?

MEL ROBBINS, CNN LEGAL ANALYST: Yes, you know, it may be consistent with the final shots, but it doesn't tell us what is most important, Chris. Even the accounts that kind of disagree, all kind of converge and agree on some of the same facts, that there was some kind of altercation in or around the officer's patrol car, that there was a shot that went off inside the car, that the kids -- or that the teenagers then took off running and that the officer ran after them. There's also witnesses that say that there were then a shot fired as

the kids were - or as the teenagers were running. The critical thing in this case is what happens when Michael Brown turns around. Are his hands up or are his hands down and is he bum-rushing the officer as some witnesses have said? And so, you know, unbelievably, Chris, this case, I think, is going to come down to a matter of seconds. Seconds of whether or not his hands were up or whether or not he was rushing toward those officers.

And for the purpose of the grand jury, you know this, Chris, they're only looking at probable cause. So if there's a conflict -- if there's conflicting witnesses on that account, they could kick it to a trial, or they could say we don't have enough to indict.

CUOMO: OK. I agree with you that the critical moment will be when the shots are fired, but as Midwin starts with this analysis, everything matters because it goes to credibility. I want you to hear what the witness said to Anderson in a very critical point about credibility. Listen to this.


ANDERSON COOPER, CNN ANCHOR: Had there been a shot when there was still that tussle in the police car?

BRADY: I'm not -- I didn't hear the shot.

COOPER: You didn't?

BRADY: I didn't hear the shot. Quite a few people that was around said they heard a shot go off in the car. Maybe -

COOPER: But the important thing is what you heard.

BRADY: Right, right, right.

COOPER: You did not hear it?

BRADY: Right. So I did - I definitely didn't hear that.


CUOMO: Midwin, now, why does that matter for credibility? I would suggest, and I you're your take on it, because the main witness, the kid, Dorian, who was there with Michael Brown, 22 years old, a kid to me, he says that there was a shot. The shot was the precipitating thing. It wasn't about what Mike Brown was doing to the officer, it was this shot. This witness says no shot. What does that mean in terms of credibility to you?

CHARLES: Well, this witness says he didn't hear a shot. Chris, one of the things that we have to remember here is, we're going to get testimony or we're going to get witness accounts of what happened that day, but we're also going to have to match that up with forensics. I'm sure that this car is going to be analyzed and determine whether or not a shot went off in the car or not. And you have to ask yourself, if this police officer had his gun holstered when he was sitting in the car, how could somebody reach in and take it off of him while he was in the car?

So, yes, credibility matters, but there's more than one witness. Attorney General Eric Holder said that the FBI has interviewed over 100 different people that have accounts on what happened that day, so I think it's difficult for us to sort of try to piece together what happened because we don't have all the information.

Right now, we have perhaps accounts from two different witnesses, but there's so many others. And when you take that along with autopsy report, you take that along with forensics, then you get the case. But as Mel suggested, we're just looking for probable cause here, which is a very low threshold.

CUOMO: Right.

CHARLES: What is the likelihood that this person committed the crime and what is the likelihood that it's this actual person?

CUOMO: Right.

CHARLES: I mean that's what probable cause is. And I think you have enough here, at least what we've seen. Six bullets will get you there.

CUOMO: Well - well, right, but, remember, just one tweak on that, probable cause is, what is the likelihood that a crime was committed on the basis of what I'm telling you right now in this grand jury.

CHARLES: Of course.

CUOMO: And that's why credibility is very important.

But let me ask you this, Mel, there's a lot of drama around whether or not the officer was hit in the face. Why would that matter?


CUOMO: And why would it not matter?

ROBBINS: Well, it matters -- if it did happen, it matters because now you've got a scenario where presumably Michael Brown has assaulted a police officer. Also, I want to point out something that I haven't heard anybody talking about, Dorian Johnson said that the officer reached out of the car and grabbed Michael Brown by the neck. Michael Brown is about 6'2". How does somebody sitting in a patrol car reach up and grab a neck that is about six feet high? It's impossible. And so I think that if it actually happened --

CUOMO: Mel Robbins.


CUOMO: I will stop you and here's why.

ROBBINS: OK. CUOMO: I just asked that to Dorian's lawyer. You don't watch my interviews. You don't even watch this show and now you're going to try and take my point. You don't get to do it.

ROBBINS: Stop it.

CUOMO: And I will now return it to Midwin. And here's why. Midwin, I want you to answer this because it's going to be fundamental. Mel's making the right point. That goes to credibility also. How can you reach out and grab a 6'3" man by the neck? Is that reasonable? Do we believe it happened? It goes to credibility. At the end of the day, do you think you can defend this case if it goes to trial as the lawyer for the officer when it comes down to shooting six times at someone who is unarmed, if you can show that they charged you? How hard is this of a case to beat?

CHARLES: It's a type of case that relies on the perception of Darren Wilson. So if Darren Wilson felt that he was reasonably about to be hurt by Michael Brown, if he feels as though he was about to perhaps be killed by Michael Brown, then of course his attorneys are going to argue that. And so this is when the forensics come into play and start to sort of put together that case that makes it relevant, at least from the defense perspective.

But one of the hardest things that I think that Darren Wilson's attorney's going to have to do here is account for each and every bullet. In other words, if you felt reasonable fear after bullet one, OK, you have bullet two. But what about bullet three, what about bullet four, what about bullet five and then the final shot that Dr. Baden and Attorney Crump have said is the possible kill shot, is the shot to the head. Why the need for that sixth shot? What happened after bullet five that made you feel you were still in reasonable fear for your life? And I think that's going to be one of the harder things for the defense to do.

CUOMO: Midwin, Mel, thank you very much for making good points and help us understand something that seems simple but actually has a lot of layers to it. I appreciate you both. Thank you.

CHARLES: You're welcome.

ROBBINS: Thanks, Chris.

CUOMO: Coming up on NEW DAY, we have new details about that failed mission to rescue Americans held by ISIS, including the journalist who lost his life, James Foley. The question now is, what can the U.S. do about bringing Americans who are still being held hostage home?


BOLDUAN: Welcome back.


BOLDUAN (voice-over): We've been talking about that failed attempt to rescue American hostages held captive by ISIS. When a special ops team showed up at the target location in Syria earlier this summer, the hostages were gone we're now told. Among them, James Foley, whose gruesome beheading was videotaped and posted online this week. Now there are reports that ISIS had demanded a ransom for Foley of more than $130 million. So what is to become of the other Americans in ISIS hands? How should the United States respond?


BOLDUAN (on camera): Let's bring in Congressman Adam Schiff, a Democrat from California, a member of the House Intelligence Committee. Congressman, its great to see you. Thanks so much for your time.

REP. ADAM SCHIFF (D), CALIFORNIA: Thanks, Kate. You bet.

BOLDUAN: So were you made aware as a member of the Intelligence Committee, were you made aware of this mission beforehand?

SCHIFF: I was not, but our committee leadership, our chairmen ranking member, were made aware and I think it certainly was important and appropriate that our leadership be notified of this. Particularly because Americans were put at risk in the rescue effort, but I'm glad that the president had undertaken it, even if unsuccessful. We have to use every means at our disposal to try to rescue Americans who are held hostage. I'm glad that we made the effort and want to congratulate certainly the courage of those that participated.

BOLDUAN: How should -- there are more Americans that are being held hostage, that was made very clear even on that gruesome video. How should the president respond now? What do you want to see the president respond to such a brutal act in such a direct threat of more violence?

SCHIFF: I think the president needs to continue what he is doing, which is providing targeted air strikes that support the Kurds working with the Iraqi special forces to help them with both material and intelligence to take the fight to ISIS. At the same time, I think we have to be very careful, Kate, not to allow ourselves to be sucked in to another military occupation in Iraq, and it's a very difficult and slippery slope. We've already seen the mission expand, but I think that keeping our focus on those limited objectives at this point is very important, as well as building an international coalition to dry up the funding for ISIS, to work with our international partners to contain and ultimately defeat this scourge, because it's going to have to be an international effort.

I do think one other point, Kate, that the actions the administration undertook to pressure Maliki to step down, to be replaced by someone who can appeal to the Sunni tribes and peel them away from ISIS is also of vital importance. I think we need to continue with this, intensify our military and material support, but also make sure that we are constantly vigilant for mission creep.

BOLDUAN: I have heard your concern of mission creep before. I wonder, though, if this brutal execution, what has come to light, this attempt to rescue them, this failed attempt to rescue James Foley and others, and this threat coming from ISIS, that has now been made painfully clear if people were not aware of the threat before, if this has changed your opinion, though, of U.S. policy over there toward how to deal with ISIS.

SCHIFF: It hasn't changed my view on it.

BOLDUAN: Why not?

SCHIFF: Well, I think we had to know that when we get involved with air strikes, that ISIS is going to strike back at us in any way they can. Certainly with anybody they hold, but also they're going to try to attack us on the homeland. But the fact is, they're going to try to do that anyway and we have to confront that reality, but we shouldn't allow this horrible act to provoke us into doing things that are counterproductive.

There's nothing that ISIS would like more than having us reintroduce ground troops in Iraq, for example. So we have to be careful not to let this, the horror of this act provoke us to doing things that don't make sense for us to do and that's very difficult, but I think it's extraordinarily important we keep our focus on what we can achieve. If you look at Afghanistan where we have thousands and thousands of troops, that massive military presence has not been sufficient to resolve the conflict there. The political dimension is incredibly important, and that's why I think the most significant event over the last few weeks has been the change in government in Baghdad, and we need to make sure that that continues, and that those other, the Kurds and the Sunnis are brought into that governing coalition.

BOLDUAN: We heard from the president yesterday. He called it a cancer, he called ISIS a cancer. He said that we need to confront when hateful acts happen we will confront them and they will be brought to judgment, but he didn't say how the United States is prepared to make that happen. I mean, I want to get your response, though, to that, because I wonder, what more could the president do that you would support? Because you have other, some of your colleagues like Senator John McCain and Senator Lindsey Graham, they supported the rescue mission attempt for James Foley but then said this, we must go beyond half measures, tactical responses and defensive actions. We need to develop a comprehensive strategy, political, economic and military, to go on the offensive against ISIS, both in Iraq and Syria. Why not, Congressman?

SCHIFF: Well, I agree with that, that we need a comprehensive strategy, but too often the comprehensive strategy for senators Graham and McCain has been either sending in boots on the ground or striking first and thinking thereafter. If we had gone in and become the Iraqi Air Force I think they were advocating, Maliki may still very much be in charge in Iraq. The fact that - -

BOLDUAN: On some level, have we not become that? I mean, the air strikes have been hugely successful. There were 14 of them yesterday.

SCHIFF: Oh, they have been very successful, but no, we have not become their Air Force. If it we had, we'd be doing a lot more that the Iraqis have been begging us to do. Frankly, our air strikes are not ultimately going to be a substitute for peeling away these Sunni tribes and we can't do that through the air. There are some very effective things we can do through the air, although I have to say we need to be mindful of the fact that they're going to become less effective over time as ISIS responds to our air campaign and we are not going to win through the air and we have to recognize that and we have to make sure the Iraqis recognize that.

BOLDUAN: Let me then ask you about this. The Pentagon we now hear from our Pentagon correspondent Barbara Starr the Pentagon is considering sending up to 300 more U.S. troops to Baghdad. They say for security purposes of U.S. personnel. You say you've got many concerns about mission creep. Is this mission creep? Should the president come to Congress first before approving 300 additional troops to Iraq?

SCHIFF: If the State Department says they need it to protect our personnel in Baghdad that's a very difficult request to refuse, particularly after Benghazi. I think those troop numbers are going to happen and I think if that's what's necessary to protect our people it should happen. But there is that risk, Kate, because the more personnel you have there, the more personnel you need to guard the personnel that are there, the more logistics you need. And so there is always that challenge in terms of congressional role and congressional approval.

I think that we need to sit down with the administration, and reexamine the authorization to use force that's currently in effect. It doesn't apply to this conflict. We need to have a heart-to-heart so that we are on the same page with the executive. It is important that the president, the Congress, and the American people all be in this together, and I think we are not at the point yet where Congress is ready to act, but we need to. We need to not advocate our responsibility here.

BOLDUAN: And that coordination between Congress and the executive branch has been one big criticism that that has not been happening enough. Congressman --

SCHIFF: Well, that's certainly justified.

BOLDUAN: Congressman Adam Schiff. Thank you very much for your time, Congressman. Always great to have you on.

SCHIFF: Thanks, Kate.

BOLDUAN: Of course.

Coming up next on the show, more from Ferguson, Missouri. How will Attorney General Eric Holder's visit affect the Michael Brown shooting death investigation, and the community going forward?