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@THISHOUR WITH BERMAN AND MICHAELA

No Indictment in NYPD Chokehold Death; New Yorkers Protest Garner Grand Jury Decision; Rams' Jared Cook Explains "Hands Up" Gesture; Holder on Mission to Build Trust Between Police, Minority Communities; Will Grand Jury Indict Officer Who Killed Tamir Rice; Attorney Says Garner Only Questioning Arrest

Aired December 4, 2014 - 11:30   ET

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


MEL ROBBINS, CNN LEGAL ANALYST: Well, you know, I was a huge proponent when I first heard about the Michael Brown law, and now I'm not so sure it will help. Here is the thing, everyone keeps focusing on race, this is really, in my mind, the Eric Garner case, is about police and excessive force. If that was a big 6'6" white guy and the same thing went down, and he was basically choked to death on camera for all of us to watch, everybody in this nation would be horrified that the police were not indicted for killing somebody in that kind of just misdemeanor, ridiculous kind of crime that they were surrounding him on.

I think the major problem that I have is that Paul, as a prosecutor, was in the grand jury presenting cases, asking for indictments. In the case of the police, the prosecutor is doing the same thing.

Here is the problem. There is no attorney, no defense attorney, no attorney in there for the victim that's actually questioning the evidence, that's sanitizing the evidence, that's making the jury have to stop and consider, wait, was he even resisting? He's not pushing on the officers. He's not punching the officers. He's not spitting on the officers. He's not kicking the officers. He's not punching the officers. Is that even a resist? When he says, you know, asking the questions to make the jury stop and consider, and the problem that I have is it's the prosecutor's show. If the prosecutor wants an indictment, they'll get it. If they don't want an indictment, which I personally keep thinking is what's happening, they're not getting it. And that's my problem.

PAUL CALLAN, CNN LEGAL ANALYST: Spoken like a former legal aid attorney, Mel.

ROBBINS: That's right, Paul.

CALLAN: Complete distrust of prosecutors. But I have to say, if a prosecutor is ethical and doing his job, he's representing the interest of the victim. Brooklyn is a good example, where I came from. We have an African-American prosecutor now in Brooklyn who is reopening cases, making sure that African-Americans in that borough get a fair shake. Democratically elected. I have a feeling he's going to do a great job as the district attorney, Ken Thompson, in Brooklyn. ROBBINS: Paul --

CALLAN: And that's how democracy works.

ROBBINS: The prosecutors don't put forensics into a grand jury. They don't put 38 witnesses into a grand jury. If it's a dead body --

(CROSSTALK)

CALLAN: Who doesn't? Who doesn't?

(CROSSTALK)

CALLAN: In New York, they do, in police shootings.

ROBBINS: If it's a citizen that does the shot -- that's not true if a citizen pulls the trigger. Only if it's a cop.

CALLAN: You're right. They treat police cases differently.

JOHN BERMAN, CNN ANCHOR: Let's end on that area of agreement.

(LAUGHTER)

(CROSSTALK)

BERMAN: Paul Callan and Mel Robbins, thanks so much for being with us. Appreciate it.

Ahead for us @THISHOUR, you saw protests of the grand jury decisions in Eric Garner's death. They shut down traffic in many places, Brooklyn Bridge, Times Square. We'll discuss just ahead.

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BERMAN: You can see the protests right now going on all night in New York, other cities as well. Hundreds turning out to protest the grand jury decision not to indict a police officer in the death of Eric Garner.

MICHAELA PEREIRA, CNN ANCHOR: The picture was starkly different from the one in Ferguson, Missouri, what we saw there. There were dozens of arrests last night. But the protests were mostly peaceful. No looting or burning of cars and stores.

I want to turn to Michael Balboni, former New York State Homeland Security director. He's joined us before. Frank Donnelly, I want to welcome to our show, a reporter with the "Staten Island Advance."

Michael, I want to start with you. You know Staten Island -- Frank, I'll get to you in a second.

Michael, I'll start with you. I got my names mixed up, as happens.

I'm curious why you think the scene is different. I know we're talking about two different regions with their own histories. Why do you think the scene was different here? Was the New York reaction to the protests different because we saw what happened in Ferguson?

MICHAEL BALBONI, FORMER NEW YORK STATE HOMELAND SECURITY DIRECTOR: I think that plays into it certainly. Really, the story begins back with the attacks on 9/11. There has been a counterterrorism dividend that New York City has been under the gun, as it were, from a terrorism perspective. They've developed tremendous capabilities, 30,000 police officers. Probably one of the more sophisticated police departments --

(CROSSTALK)

PEREIRA: But protesters aren't terrorists.

BALBONI: No, they're not. But when you have better intelligence, police have better training. They have Occupy Wall Street. New York City has had experience with thousands and thousands of protesters.

BERMAN: Hundreds of thousands. You had those huge Iraq marches, 400,000 people.

BALBONI: And Commissioner Bratton is a pro. He worked in L.A., worked in Boston. He understands the basic snapshot, that is "teargas, bad, mounted police, good," in terms of calming down folks, making sure you keep people -- understanding what could happen and not, and try to take down the tone.

BERMAN: I had a cop said to me one time in a protest, you can't argue with a horse.

BALBONI: You cannot argue with a horse.

BERMAN: When they bring the horses in, things tend to calm down in a hurry.

Frank, I want to talk to you, on the ground in Staten Island. I don't think people outside the tri-state area know the difference between Staten Island and the rest of the city. How is this decision by the grand jury being received there? Around the country, there's a lot of shock. Is there as much shock where you are?

FRANK DONNELLY, REPORTER, STATEN ISLAND ADVANCE: I think a lot of people are -- I don't know if shocked is the word. I think there are a lot of people who are disappointed in the decision. I think there's also a lot of people here who I guess understand it. We have a lot of public servants, police officers, sanitation, fire people who live on Staten Island. I think they maybe more understanding or more -- you know, to the officer's actions. There's still a lot of people who are very, very upset by the decision. PEREIRA: A lot of people have been upset by the decision. But what's

interesting -- and Michael, I think you can tell I'm not from here. You say there's a storied history to grand juries not choosing to indict on Staten Island. It goes back 20 years.

BALBONI: It's been one of the nuances of the city. You look over time at the different grand juries and how they behave, and you can make a case that there hasn't been as much indictment activity.

When I was back in the state legislature, we had big concern about grand juries being too ready to indict. Obviously, what we have here, particularly when it comes to law enforcement in certain boroughs, that you don't see that same kind of trend.

The big question is -- we're watching this. This is so jarring to watch this violence again and again and again. The grand jury saw this, too. The question really becomes, what else did they focus on? What were they looking at that caused them not to indict when the general public sees this video and really is -- any time you see violence like this, it is shocking.

BERMAN: We just got word a short while ago that the judge in Staten Island will rule today on whether to release some of the evidence and perhaps some of the testimony that was presented to the grand jury, so we might get a clearer look at how the grand jury made that decision.

Frank, again, on Staten Island, do you have a sense of what the next few days, next few weeks will be like? How is closure going to be reached there?

DONNELLY: I don't know. It's hard to say. I don't think you'll see the magnitude of the protests that you'll see in Manhattan on Staten Island. But I think there's still going to be a lot of people who are not going to be happy with the decision. I think a lot of people will be looking to what the Reverend Al Sharpton does and kind of follow his lead.

PEREIRA: There have been a lot of voices that have been a part of this. It was interesting to see Spike Lee, hopped on the bike with his son and they headed down to the protest in Times Square yesterday. He said -- and I'll quote it -- "This has nothing to do with black and white. This is New Yorkers together."

What do you think, Michael? Is that true?

BALBONI: I think there's a case to be made that when you have these types of instances, they may represent a very, very small percentage of the interactions between police and citizens. Nonetheless, from a policy perspective, you have to listen to the voices out there, which we're doing in New York City.

One quick shout-out. Dan Donovan is the district attorney in Staten Island. I've known Dan personally. He is a man of tremendous integrity. I think there's a lot of other stories here. We'll have to see as they unfold and wait and see what kind of information that the grand jury got. There's a lot of questions. BERMAN: You know, if a prosecutor wants to get an indictment in a

grand jury, he or she can get an indictment.

BALBONI: Again, the grand jury is made up of citizens who are like us. They get a lot of information. They're going to make their decisions. Yes, it's a one-sided presentation, but normally that one- sided presentation tends to favor towards the indictment. Again, we have to see what information they received and what they focused on.

PEREIRA: Frank Donnelly, Michael Balboni, pleasure to have you both with us. Thank you so much.

We saw one of the images coming out of the protests. The five St. Louis Rams players took part in their own version of a silent protest in honor of Michael Brown before Sunday's game. But one of those players is now explaining what that move was and what it was not intended to convey. Tight end, Jared Cook, said the "hands up" gesture was the epitome of non-violence, that it was not about disrespect of law enforcement, that, in fact, he and his teammates have tremendous respect for the police. Take a listen to what he had to say.

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JARED COOK, ST. LOUIS RAMS TIGHT END: It was a perfect example of a peaceful protest. If anything should have been said about it, by anybody, it should have been an example of a way to peacefully protest and peacefully get your point across without tearing up the neighborhood.

Why would we come at the police in a disrespectful way when we work with the police and the community all the time? The police are up there every day. There were four police cars here this morning when I pulled in to work. The police have picnics in the summer in the parking lot where they bring their kids and their children to meet and greet and have fun with us. Why would I disrespect a group of men that we have complete respect for in the community that help us every day?

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PEREIRA: Really interesting to hear him explain what was behind that.

Meanwhile, the St. Louis Police Officers Association demanding an apology. The Rams organization declined to issue one, nor will they discipline the players.

BERMAN: Ahead for us @THISHOUR, Attorney General Eric Holder on a mission to build trust in a city reeling from the police shooting of a 12-year-old who had a pellet gun. We'll talk about that.

We'll also talk about the federal investigation now into the death of Eric Garner. Stay with us.

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ERIC HOLDER, U.S. ATTORNEY GENERAL: Mr. Garner's death is one of several recent incidents that have tested the sense of trust that must exist between law enforcement and the communities they are charged to serve and protect. This is not a New York issue, nor a Ferguson issue alone.

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BERMAN: Attorney General Eric Holder, he's really on a new nationwide effort to try to build trust between law enforcement and minority communities. Today, he's going to Cleveland.

PEREIRA: Go ahead.

(LAUGHTER)

BERMAN: That city could become the next flash point. Many people are watching the see if a grand jury there will indict a white police officer who shot and killed a 12-year-old boy who was holding an air gun.

PEREIRA: The shooting of Tamir Rice, that 12 year old, was captured on surveillance video. Police later said that the officer believed the gun to be real.

Our justice reporter, Evan Perez, has traveled to Cleveland.

Evan, I hope you can bring us up to speed in terms of the investigation of Tamir Rice. At this point, the Justice Department is not investigating. Is there a plan to?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Michaela and John, they haven't said whether they're going to investigate. Typically, what they do is they wait for the local investigation to be completed and they decide whether there's a need to do a follow-up federal investigation.

You mentioned the attorney general is here today. Front and center is the conduct of police and the relationship with communities they're supposed to be protecting. He's doing one of those meetings with community leaders and young people and law enforcement to try to figure out how to better have relationships between those groups.

And then he's also -- we just got word from the Justice Department, he's also announcing the results of an investigation into the Cleveland Police Department. They've had a series of problems here, including one incident in 2012 where there was a police chase and they fired 137 bullets, ended up killing two unarmed citizens in the process. So that investigation is getting wrapped up. And we're going to hear from the attorney general in a couple hours here today.

BERMAN: The Justice Department has a lot of investigations on its plate right now, Evan. We know federal officials are investigating what happened in Ferguson. We now know there's a lot of weight being put into the federal investigation into what happened on Staten Island. What is the burden there, and do you have any sense of what investigators think may be a more successful prosecution?

PEREZ: You know, the issue with the federal cases is often it's a higher bar. The best chance of bringing any kind of -- getting any kind of justice or any kind of charges in these cases is often from the local investigation. You have a wider series of laws that you can use. In the federal cases, you have to do civil rights, which is a very much higher bar.

What you'll hear from the attorney general and what you're hearing from President Obama is what they want to do is perhaps do more reforms of police departments around the country because, if you can't, perhaps, improve the training so you don't have the shootings in the first place, or these types of incidents happen in Ferguson and Eric Garner's case and Tamir Rice case.

Which, by the way, there's new information from the local media here. The "Cleveland Plain Dealer" reported that the officer in that case who worked for suburban police department was on his way out, simply because he had been judged to be basically, you know, really terrible at shooting his gun, and so they were looking to get him -- get rid of him. And the Cleveland police ending up hiring him to their police department. He's a rookie officer with that department and that incident occurred last month.

PEREIRA: Yeah. That other police department saying that he was unfit to be a police officer. That is going to raise all sorts of questions about what was going on in the Cleveland Police Department.

PEREZ: Exactly.

PEREIRA: Absolutely.

Evan Perez, thanks to you for joining us from Cleveland. We appreciate it.

BERMAN: Ahead for us @THISHOUR, the Garner family attorney explains why he thinks the grand jury in Staten Island got it wrong.

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PEREIRA: An attorney for Eric Garner's family says he was a family man whose only crime was selling tax-free cigarettes to support his family. That lawyer goes on to say the 43-year-old had his hands up and was only questioning his arrest when he was put in that fatal chokehold on a Staten Island street.

(BEGIN VIDEOTAPE)

JONATHAN MOORE, ATTORNEY FOR GARNER FAMILY: He clearly was using excessive force. You have to understand, the -- this whole thing was about a suspected, essentially administrative code violation of selling untaxed cigarettes. Not even seeing it, just suspecting it. That's normally just a summonsable offense. You give someone a ticket and they show up in court. I don't understand why they wanted to be so aggressive. That aggressive policing, which he clearly was involved in that, is what led to the actions here. CHRIS CUOMO, CNN ANCHOR, NEW DAY: It's a possible explanation for

that, whatever the underlying offense, no matter how minor, trivial, usually police, once they say we're going to arrest you, and Mr. Garner says, no, essentially, I'm not going to let you arrest me, you have a different dynamic with police, no matter what the underlying offense is, isn't that true?

MOORE: It's true and not true. I don't think there was ever a clear direction in that video that we're going to arrest you, you're under arrest. In fact, if you watch it closely, what you see is Mr. Garner being frustrated because there had been a pattern of him being --

CUOMO: He been arrested, what, 31 times?

MOORE: Some large amount of times, for a guy just trying to make a living. You can criticize the way he was making a living, that's fine. But he was a family man, married for 27 years, raising kids, had grand kids. This was how he made a living.

CUOMO: The pushback is, don't fail to comply with police instructions and you don't get excessive force used on you. Is that a fair analysis?

MOORE: No, that's not a fair analysis. The push back is, if you raise an objection to what you believe to be unnecessary, unlawful police conduct, you get a very aggressive response.

CUOMO: Right.

MOORE: He's saying, this is not right. In fact, his hands are saying up and he's saying, really, you got to not do this. That's when Pantaleo --

(CROSSTALK)

CUOMO: Pantaleo grabs him from behind.

MOORE: Grabs him from behind and takes him down with a chokehold.

CUOMO: The officer testified and he said he was trying to protect him, he thought he was going to bang into the window, he wanted to make sure he didn't hurt the other officers and that he wasn't going to hurt himself. Do you buy that?

MOORE: No, I don't. I don't see in that video an officer being concerned about the safety of Eric Garner. What I see is a very aggressive takedown of somebody unnecessarily and with the maximum use of force. You see it in the way he was pressing his head against the ground. That was just unnecessary. And it fails to respond to the fact that he's saying, "I can't breathe, I can't breathe."

(END VIDEOTAPE)

BERMAN: As we all now know, the grand jury decided not to indict Officer Daniel Pantaleo. We do know that later today a judge will decide whether to release the evidence or some of the evidence in some of the testimony from the grand jury proceedings. That will be very interesting. There is now a federal investigation into Eric Garner's death.

Some other news now. NASA will have to wait at least one more day to launch its new Orion spacecraft. The launch was scrubbed because of technical problems, from wind delays to valves that failed to open during the countdown. Scientists hope the mission will eventually lead to putting humans maybe on an asteroid, maybe on Mars, maybe as soon as 15 years from now, although that seems optimistic. Orion, they want it to take its first manned flights by 2021.

PEREIRA: You want to travel on an asteroid?

BERMAN: Sure. Why not?

PEREIRA: All right.

(LAUGHTER)

Speaking of extraterrestrial things, the stars will be -- see how I did that? The stars will be out on Sunday night here on CNN honoring 10 amazing individuals who have made a difference. They've inspired and they have changed their world.

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CNN ANNOUNCER: You have the power to do anything, to make a difference. Inspire and change the world.

(SINGING)

UNIDENTIFIED MALE: I want to do something for Afghanistan. I want to help the people and the dogs.

(SINGING)

UNIDENTIFIED MALE: We're giving them the best present in order to make a better future.

(SINGING)

UNIDENTIFIED MALE: I'm here to honor real heroes.

KATHY GRIFFIN, COMEDIAN: It's going to be a great evening.

ANDERSON COOPER, HOST, CNN HEROES, AN ALL-STAR TRIBUTE: Welcome to "CNN Heroes, An All-Star Tribute."

(SINGING)

UNIDENTIFIED MALE: It is my honor to hug the weight lifter with the biggest heart ever.

UNIDENTIFIED MALE: Never worry about what you can't do. Never, ever quit.

UNIDENTIFIED MALE: It's incredibly humbling to be recognized as a "CNN Hero."

UNIDENTIFIED FEMALE: This has been an amazing time.

UNIDENTIFIED MALE: You're killing me, CNN. Got me sobbing all up in my chardonnay.

CNN ANNOUNCER: See the stars come out to honor the top-10 heroes of 2014, "CNN Heroes, An All-Star Tribute," Sunday on CNN.

(END VIDEO CLIP)

PEREIRA: Be sure to tune in for that. It's going to be amazing.

As the year comes to a close we want you to vote on your favorite stories of the year. Visit CNN.com to vote. We'll bring you the results at the end of December.

That wraps it up for us @THISHOUR. I'm Michaela Pereira.

BERMAN: And I'm John Berman.

You can watch "LEGAL VIEW" with Ashleigh Banfield starting, oh, right now.