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CNN NEWSROOM

Ferguson Grand Jury Decision Has Been Reached

Aired November 24, 2014 - 14:00   ET

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


ANNOUNCER: This is CNN breaking news.

DON LEMON, CNN ANCHOR: Indeed, it is breaking news. I'm Don Lemon, live in Clayton, Missouri, near Ferguson, Missouri.

This is CNN special coverage of breaking news in the death of Michael Brown. The grand jury has reached a decision in the most controversial case in this country right now. U.S. and local law enforcement officials say an announcement is expected later today.

As you know, that grand jury is made up of five women and seven men. They have been deliberating over whether white officer, Darren Wilson, should be charged for shooting and killing Michael Brown Jr, a black teenager who was unarmed.

The nine white and three black grand jurors have had the ability to see the coverage surrounding this case, all the media coverage, whether they are watching or not, that's up to them. Nine of the 12 must agree in order to indict Officer Wilson. We've got a panel of legal minds to talk about this, but first I want to get straight to CNN's justice reporter Evan Perez who broke this.

So, Evan, tell us what you know in this case.

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, Don, we know that the grand jury decision is expected to be announced by the state prosecutor later today. Now, this, obviously, they set (ph) has been in place a bunch of plans that are already in place warning to local officials to be ready for whatever the public reaction might be. We know that there's a procedure in place. They're going to notify the judge. We know that they have to notify the parties involved. Michael Brown's family is going to get some notification, probably not a lot. There's still some concern, obviously, this is a secret proceeding. Until the state prosecutor makes an official announcement, it is considered a secret proceeding and that the concern, obviously, is that it will leak prematurely.

LEMON: Evan, the charges that are under consideration if Officer Wilson is indicted. Take us through that.

PEREZ: Well, there's a variety of charges, including, obviously, murder and manslaughter. And that's been the big discussion is whether or not this grand jury, having heard all of the evidence that's been presented and obviously all the concern, whether or not they will choose to do something perhaps on the lesser charge. There's a very high bar, Don, as you know, for some of these cases given the facts that we know publicly, there is a very high bar typically in these cases with law enforcement and police shootings. So the concern was perhaps, you know, you'd have a grand jury pressured into one of the lesser charges in order to placate the public. They know, as you said, what the public - what the media's been saying and all the public reaction to it.

LEMON: All right. Stand by, Evan, I want to get you to weigh in on this. But first I want to bring in our legal analysts, Mark O'Mara, Danny Cevallos and also Lisa Monet Wayne. Put the charges back up, will you, and I want to go to Lisa with these as we look at the charges up on the screen.

Lisa, if there is an indictment, you look, there's first degree murder, there's second-degree murder, voluntary manslaughter, involuntary manslaughter. What do we think that will be the charge here?

LISA MONET WAYNE, CNN LEGAL ANALYST: Well, again, we're always -- we keep speculating here. We know that Darren Wilson got to testify. And we believe that he got to testify and he gave his version of a self- defense claim. If that in fact is true and this grand jury is maybe struggling with his culpability, responsibility, what the rest of the world is going to think, they may compromise and come back with that imperfect kind of self-defense. We kind of believe it was self- defense, but he should have known better and it ends up being the lesser charge there, which is involuntary manslaughter. We just don't know. We don't know how they're stacking up the forensic evidence against what Darren Wilson may have told this grand jury, or all the other witnesses that came in to testify. How do they sync together here?

LEMON: Right. Yes. And we don't know the evidence because, again, it has not been released and we don't know the decision yet. The prosecutor has said, Lisa, if there is not an indictment, that he was going to seek to release all the evidence that was given in the case. But what guidance? We've been saying that the grand jurors have been able to watch the media coverage, whether they are doing it or not it's up to them, but what is the guidance given to the grand jury in reading up about this case? Are they told to avoid all media?

WAYNE: Well, it's interesting because we know in a regular jury trial that there are specific jury instructions given to the jurors from the minute they hit that courtroom in terms of whether they can look at outside media accounts, outside evidence. You can't - you're not allowed to be an independent investigator. Grand juries vary. They're not sequestered the same as a jury is. And so that outside influence may permeate their decisions. I mean they've got to know what's going on in their community. They've got to hear what's going on in their church and with their neighbors. So it doesn't have - they're not restricted like we could do in a jury trial. So it's really hard to know. I mean these jurors are in a tough position in terms of martialing the evidence that they actually hear in that jury room and trying to keep it separate from what they're hearing in the public media.

LEMON: Lisa, I'm just going to step for a second, I want to grab the paper here because I want to ask you a question about this. Who really - and my question is, who really holds the key here when it comes to -- is it the judge who's overseeing this, or is it the prosecutor? Because the judge says -- the judge hasn't agreed to release the evidence and the prosecutor is saying, we're going ask that all of the evidence is going to be released. He's under the assumption that it is, but the judge is saying, you know what, I'm not sure I'm going to do that. This is the front of the paper that I'm talking about here and it says, "judge hasn't agreed to release evidence a court official says." And that's the "St. Louis Post-Dispatch."

WAYNE: Right. And, you know, that's interesting because it seems like there was a little bit of miscommunication or something happened here and we're not really sure. But the judge has the final say. The judge has the final say in every grand jury release of transcripts. So that's not unusual. So the prosecution seeks permission from the judge and can I give this to defense counsel and regular proceeding? I have to get permission to do that. And in this particular case, can I actually release it out into the public venue. And that's very unusual.

LEMON: OK. So, in your experience - well, so the judge has really the jurisdiction here to do whatever.

WAYNE: Absolutely.

LEMON: So it doesn't matter if the prosecutor wants it all released. At the end of the day, if the judge says, I'm not going to release any of it, doesn't matter what Bob McCulloch says, then it's not going to happen?

WAYNE: That's right. And, you know, Bob McCulloch can go, though, out to the public and say, I tried. I tried to give you everything, but the judge didn't allow me to do that. So, it's an interesting, strategic move.

LEMON: Why would he make - why would he say that then -- why would he make the comment that it will all -- basically giving the assurance that all of the information would be released, all of the evidence would be released if it - if the judge really makes a final decision.

WAYNE: Well, I think he's hopeful that he has some persuasive power with the judge and I'm sure that in the motion that he makes to the court he'll be explaining why that transparency is so crucial here. So I'm assuming that he thinks, you know, the judge is going to follow our direction on this and it makes sense that its public - good public policy and it makes sense in terms of transparency. And I don't know this judge and this judge may be totally in step with believing that that should be -- happen. But, again, the judge has the final say.

LEMON: OK. Stand by, Lisa. I want to bring in now Mark O'Mara and Danny Cevallos, CNN legal analyst here.

You guys have been listening to the conversation. We have been talking about the prosecutor in the case and the judge overseeing this case. About the discrepancy on whether or not the information will be released, according to the papers here this morning in St. Louis, the judge really hasn't agreed to release the evidence from the court, but Bob McCulloch, Mark O'Mara, as you know, has been saying all along, if this officer is not indicted, he wants to release everything, maybe with exception of redacting the names of the grand jurors for fear of safety.

MARK O'MARA, CNN LEGAL ANALYST: Yes.

LEMON: What's going on here?

O'MARA: Well, I think what happened was, we know McCulloch wants to do it and he wants to do so to protect himself, the process and the grand jury from their decision if it's a no true bill. Again, if it's an indictment, we're not going to see the discovery for a long, long time.

I think what happened over the weekend was that the clerk said something he shouldn't have said, which was, the judge has said she's OK with it. A judge can't be OK with anything. A motion was not presented to the judge yet. She hasn't heard the evidence. She hasn't seen the evidence. She hasn't made any decisions.

So I think what happened was, the judge sort of ratcheted things back and said, I will wait until I gate a motion from McCulloch, I'll look at the evidence and decide what to do. Having said that, I think it makes sense for all of us that there's transparency and that the judge will release the information once redacted.

LEMON: OK. So, Danny, as we are getting close to a decision here, should we read anything into the fact that, you know, as of late they've said that 48 hour notice may not come into play here, there could be an announcement -- there will be an announcement and the decision of what that announcement is could come soon after. Should we read anything into that?

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, they're dealing with two competing concerns, right? Well, there's always secrecy. They must preserve grand jury secrecy. And the other problem is that with each added hour - and I said this just before - with each added hour, you run the risk of leaks. Not intentional leaks, but simple courthouse gossip. And anybody who spends a lot of time in a courtroom knows that there may be no greater power than the power of courthouse scuttlebutt. It just gets around. You can't help it. So they have to realize that they are operating under a limited amount of time no matter how secret they try to keep these proceedings. But at the same time, they want to time it in a way that they can be best prepared to respond to any reaction.

LEMON: OK. Evan Perez, our justice reporter, is here as well.

Evan, as you know, there have been a number of leaks in this particular case. Many have been reported by newspapers and some reported here on CNN about what the grand jurors may have testified to, what Officer Wilson may have testified to.

PEREZ: (INAUDIBLE).

LEMON: So, you know, Danny is right, the possibility of this staying secret for 48 hours is really pretty slim, between slim and none.

PEREZ: Right, exactly. And I think the 48 hour notice was really to give law enforcement some advance notice just so that they can get people in place, they can bring, for example, the governor had declared that he -- a state of emergency and wanted to have National Guard ready. We know the feds or the FBI brought extra resources into town to be able to help the local authorities handle the situation, Don. And, you know, I think what it is, is that, you know, given the fact that the plan was for the grand jury to make a fairly quick decision on Friday and then announce it on Sunday, I think the conversations that they've been having behind the scenes has been that for all intents and purposes everybody already has had the 48 hour notice.

LEMON: Right.

PEREZ: And so they were ready, you know, once the grand jury made their final decision, you know, we were told by sources that, you know, when they came in on Friday, the reason why they wasn't - the reason why they wanted to come back today was not because they wanted to hear more evidence, but because they just felt that they needed a little more time to finish their discussion.

LEMON: Just to sort of ruminate a little bit and make sure that they were making the right decision.

PEREZ: Right. Right.

LEMON: Jeffrey Toobin, our legal - CNN's legal analyst, joining us now as well.

Jeffrey, we have been talking about this just about every single day, you and I, on "The Situation Room." We're going over every single facet of this case. The latest discussion here is about the 48 hour notice. And then, as we have been reporting again on "The Situation Room" with Wolf, that 48 hour notice my not necessarily stand because maybe for fear of leaks, as I had been talking with Danny and Evan about.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: That's right. We've heard 48 hours. Then it shrunk to six hours. It may wind up being later. But just to the larger points you raised, Don, you know, we've been talking about what we know about the case, and I suggest to you, we don't know a lot. You know, this grand jury has been investigating, hearing witnesses, giving sworn testimony for months. Yes, some of those witnesses have also given interviews to the news media, but we don't know all the evidence. We don't know all the witnesses.

LEMON: Yes.

TOOBIN: We have not seen all the scientific tapes, tests. So I expect to learn a lot if and when this material is made public and I think that makes it even more difficult to predict what the grand jury is going to do because we don't have that evidence in front of us.

LEMON: That was my next question to you. I'm going to get to - we're going to go to the police department in a second, but, Jeffrey, just quickly, should we -- we thought that the decision, you know, and many people thought the decision would happen fairly quickly because it had taken such a long time to hear the evidence and then to for the, you know, the grand jury went into deliberations, that they appear to be taking their time. Is there anything to be read into that to the possibility of an indictment or a no true bill, non-indictment?

TOOBIN: No, I wouldn't read anything into it. And, in fact, I think this has been a pretty quick deliberation when you consider how many months they've been sitting. They started deliberating Friday, as we under it. And we have a decision here on Monday. That is not a long deliberation.

Keep in mind also that grand jurors, yes, as we've said many times, it only takes three quarters of the 12 members to return an indictment or make a decision. Grand jurors like to be unanimous. They like to feel like they are operating as a group. So I wouldn't be at all surprised if some part of the deliberations was trying to get from nine to 12, even though legally it wasn't necessary, grand jurors like to speak with one voice and I wouldn't be at all surprised if some portion of Friday's deliberations and today is to make the dissenting grand jurors, as it were, comfortable with the decision.

LEMON: All right, Jeffrey Toobin, stand by. All of my guests stand by. If you're watching at home, we should know soon. We could know soon Officer Darren Wilson's fate. Will he be indicted for the shooting death of Michael Brown? We're going to take you live to the Ferguson Police Department when we come right back. Our breaking news here on CNN.

(COMMERCIAL BREAK)

LEMON: I'm Don Lemon, live near Ferguson, Missouri. This is CNN's special coverage of the Ferguson grand jury decision. That decision can come at any moment. We have been told they are going announce a decision sometime this evening. Specifically where, we don't know. We also hear that the prosecutor here, the St. Louis county prosecutor Bob McCulloch, will make the announcement on whether not to indict Officer Darren Wilson in the shooting death of teenager Michael Brown, unarmed teenager Michael Brown. It happened, of course, back on August 9th of this year.

I want to get now to the Ferguson Police Department. CNN's Sara Sidner is there. She has been covering this story really since the very beginning.

Sara, what's going on at the police department?

SARA SIDNER, CNN CORRESPONDENT: You know, it's interesting, just a few moments ago there were five people out here protesting. It really gives you a sense of exactly what's been going on every single day since about August, the first week of August, people have been here protesting. Now, it's not always big crowds usually in the daytime it's smaller crowds. The crowds show up here at the Andy Whorm (ph) Tire and Wheel, outside, in their parking lot. And then just across the street is the police department. We've noticed some things are a little bit different about the

department. For example, you see that boarded up area there. It used to be where people would stand on top of this basically elevated platform to get video or look over police. They have made it not possible now with that new boarded building there. We've also noticed some activity of police coming and going as they come into the back there and fill up the parking lot.

The protesters who are here on a daily basis have been waiting for this, of course, as has Michael Brown's family, as has, you know, the Wilsons. They've been waiting for this decision now for more than three months. And they have not missed a day out here of protesting.

I want to give you a little bit of an idea of what things look like. Sir, would you mind talking to me a little bit about what you're doing out here and what' i your name?

BYRON CONLEY: My name's Byron.

SIDNER: Byron what?

CONLEY: Conley, c-o-n-l-e-y.

SIDNER: Tell me what your concerns are and why are you out here?

CONLEY: Well, I'm just more or less, you know, as a resident of Ferguson, I think the residents now, I think we ready for this to be over with. It's been way too long. You know, the people here are really tense. They agitated. I've not seen a big change in the town of Ferguson.

SIDNER: Would you say that people are afraid of what may come as a response to this, or is it just the tension of waiting for a decision?

CONLEY: Well, of course people -- yes, of course, people are afraid. But I - the more or less thing is, you know, people, they just want it over with. They want it over with, OK? There's two sides to every story. Whatever happened, it happened between Officer Darren Wilson and Mike Brown, OK. We just ready for it to be over with. Let's get on with our lives. I'm glad that we are able in this town here to focus -- the world is watching, that we're focus on that. Now we're communicating. And now people's voices are being heard. It took something like this to, you know, to happen -- took something tragic to happen for people to talk and communicate. But, once again, as a resident of Ferguson, we want -- let's get it out there, let's get it over with, let's continue on with our lives, let's keep the communication, line of communication open and stuff and with the police department and with the residents of Ferguson, you know, let's all just bridge this gap, let's come together and live as a peaceful community like we always have been and then let life go on. Let life go on.

SIDNER: Thank you so much for talking to me and being open and honest with me.

And you're hearing from a resident here, and there have been a lot of people talking about outside force coming in, a lot of protesters from outside coming in. But you hear there, there are residents who are out here as well. We've talked to the mayor. We've talked to a lot of the business owners here who are having the same sentiment. The folks that live here want to see a resolution to this. They feel like this town is sort of on tender hooks, on pins and needles waiting for the decision. Now that the decision has been made, they want to know what it is and they want to see what happens after that so that this town can try and heal and move on.

And there have been meetings with the police, with the residents on how to kind of bridge that gap, as you will, so that people can try and move forward and this town can try to thrive once again, Don.

LEMON: Yes, you're hearing the same sentiments from that gentleman as we have been hearing, as we've been on the ground here. A woman last night saying, we just want peace regardless of what the decision is. We're praying for the safety of the officer. We're praying for the Brown family and also for the protesters as well, that there's not any violence. So, great interview. Thank you very much for that, Sara Sidner.

Also want to tell you that CNN has reached out to the family of Michael Brown, to the attorneys, and we've heard from them. We've also reached out to the attorneys for the officer, Darren Wilson. They are aware that a decision is imminent and, according to the attorney for the Brown family, they have not officially heard anything from officials yet about an announcement, but we're going to check in on the other side of this break with Ben Crump, the attorney for Michael Brown's family, and he'll give us some insight on that.

Again, this is CNN's special live coverage of the grand jury decision in the Officer Darren Wilson case. What will be his fate? Will he be indicted or not? We're going to continue our breaking news on the other side of this break.

(COMMERCIAL BREAK)

ANNOUNCER: This is CNN breaking news.

LEMON: Back now live near Ferguson, Missouri, with our breaking news coverage on the decision on whether there will be an indictment of Officer Darren Wilson in the Michael Brown shooting.

I want to get to my legal panel now. Jeffrey Toobin joins me. Also, Mark O'Mara is here as well. Lisa Monet Wayne joins me and Danny Cevallos. Also with me now is Evan Perez, our justice reporter, who broke this news for us.

I want to ask you about this, about the timing, Evan. Do we know anything about the timing, when the announcement will be made? And the interesting point here I'm sure that you can speak to is, the difference will be finding out if the officer has been told to surrender. That will give us an indication of what the decision might be.

PEREZ: Right. Exactly. And that's the big question. I mean we -- I think we were reaching out to his representatives to find out because obviously if there's been an indictment, he would have to be notified, he would have to be told to surrender and that would have to happen in the next few hours. We're told that an announcement is coming later this evening. We know that officials are preparing to, obviously, deal with whatever the public reaction will be, Don, and, obviously, this is something that they've prepared a lot for and they were ready to do this on Sunday, but we know that they're all - everybody's getting ready to make those announcements later today.

And, obviously, the other thing that is in the plan, as part of the plan, is to release some of the documents, some of the information that the grand jury has been considering. The prosecutor has said he wanted to release everything. Well, the problem is, there's still an ongoing federal investigation into this case and usually, you know, you don't see the evidence before everything is finished, everything is wrapped up. And so it will be interesting to see whether the federal government has a view of whether the evidence in this case should be released immediately, which is what the prosecutor would like.

You know, his reaction, the reason why he wants that to be done is because he feels it will give the public some reassurance, some confidence that he did everything. That they did a proper investigation and that this case was properly investigated before this grand jury made this call.

LEMON: But as we've been hearing from our legal analysts that the judge really overseeing this has the discretion of whether that will happen or not.

PEREZ: Right, the judge.

LEMON: All right, thank you very much, Evan Perez.

Before I get back to my panel, I want to go to CNN's Sunny Hostin, also our legal analyst here on CNN.

So, Sunny, I understand that you have been speaking to the attorney for Michael Brown's family and just recently reached out to his office and they said they had not been officially notified. I don't know if that's changed within -- just within the next couple -- last couple of minutes.

SUNNY HOSTIN, CNN LEGAL ANALYST (via telephone): That's right, Don. I'm actually in Ferguson. I am with Ben Crump. I just met with him for about 30 minutes and interviewed him. He says that no one has notified him, no one has notified the family, no one has notified his co- counsel Anthony Gray about a decision. The first they learned about the possibility of a decision was from CNN and was from me.

He says that the family is very upset. They are distraught that no one from the prosecutor's office has reached out to them. They are offended and they had an agreement in place whereby the prosecutor's office was going to give them some notice. Ben tells me, Benjamin Crump tells me at one point it was about six hours' notice and that then changed to some notice, but to this - at this time, no one from the prosecutor's office has reached out to the family.

LEMON: Yes. And so, Sunny, again, remember, we were talking about that 48 hour notice. That's not going to happen. And you're saying there was supposedly, as a courtesy, a six hour notice, but nothing yet. And has the family really been in contact or the attorneys with law enforcement or with the prosecutor, with officials in this case?

HOSTIN: Yes, I did ask him that question. He told me that the prosecutor's office was in contact with someone from their team last week. That is the last that they had heard from the prosecutor's office.

LEMON: OK. All right, CNN legal analyst Sunny Hostin speaking with Benjamin Crump the attorney for Michael Brown's family.

Sunny, thank you very much. If you get any more information, please get back to us.

I want to get to my legal panel now and first I want to get to you, Lisa.

So in this case we have heard from Benjamin Crump, the Brown family attorney, he's saying they haven't heard any notice. There was supposed to be a six hour courtesy, at least according to Benjamin Crump. What's going on here? Is that just a courtesy, they are -- it's not mandatory that they reach out to the family of a victim?

WAYNE: Well, you know, if there are promises made, you'd hope that those promises would stay in place. I think that this is such an unusual situation, Don, that, you know, there are going to be missteps here. I think that's a huge misstep. This doesn't come from being a legal analyst. I just feel badly for the family if they're sitting there and they don't have notice and everybody else does. So it doesn't seem to be, you know, one of those things that has a lot of integrity in term of the communications here.

But, you know, we don't know. Maybe it was leaked and they weren't aware that the leak was out there and now they need to rectify that quickly. So it's hard to explain what's going on here.

LEMON: Yes.

Mark O'Mara, the officer and his representatives will know pretty much what the decision is if he is asked to surrender, then we can garner from that that there is an indictment. If he is not, then it's probably a no true bill, correct?

O'MARA: Well, if there is an indictment, then they will either tell him he needs to surrender. He does have some time after the indictment is announced to surrender. It's not mandatory that he come in pre- notice. But it would makes sense, as a courtesy to the family - I'm sorry, to the -- Darren Wilson group to tell him to come on in, to be safe, to get in ahead of the response and then deal with it that way. On the other hand, if they tell him we don't need to see you or nothing's going to happen or don't get a call to bring him in, then certainly from that we can garner that there was a no true bill.