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Nine Dead, 25 Unaccounted After Fire At A Warehouse Party; China Files Formal Complaint Over Trump-Taiwan Call; Trump Taps Controversial Figure As Education Secretary; Former Defense Secretary Gates Endorses Mattis; Trump Picks Gen. James Mattis As Defense Secretary; Lone Juror: I Can't Convict Ex-Cop in Scott Killing; Suspect Released in Fatal Shooting of Former NFL Player. Aired Noon-1p ET

Aired December 3, 2016 - 12:00   ET


[12:00:05] DAN SIMON, CORRESPONDENT:. They actually can't really do a thorough search inside because the building is said to be structurally unsound. The flames just ravaged a good portion of it and you can see that fire crews here are assessing and they are trying to figure out the plan of attack in terms of how they're going to go inside and determine if in fact there are more bodies inside. This is what the Oakland fire chief had to say just a short time ago.


CHIEF TERESA DELOACH REED, OAKLAND, CALIFORNIA FIRE DEPARTMENT: There was some type of party that was going on here when the fire broke out. It's been a report that there's been between 50 to 100 people possibly that was in attendance at the fire. A group of individuals who were able to escape. Some of them have not -- were not able to escape.

Right now we can confirm that there are nine fatalities, but there's still a large portion of the building that needs to be searched. The building was a warehouse that was kind of like an artist's studio that had several different partitions where they had various artists in there.


SIMON: Right. So this was an art studio, and there was a party going on, but apparently some people lived inside the building, too. And authorities right now just trying to figure out how they're going to get inside, how they're going to determine how many people died.

And just such an enormous tragedy here in Oakland. The fire chief saying that she's never experienced such a breathtaking or breathtaking scope of life, loss of life here in Oakland. So again, crews trying to figure out what to do because getting inside is proving to be problematic -- Fred.

FREDRICKA WHITFIELD, CNN ANCHOR: And so Dan, can you tell us any more based on neighbors in the area? Eyewitnesses in terms of the living conditions if this was a place where artists worked but at the same time also lived. SIMON: We actually have not had the opportunity to talk to residents. We actually haven't seen any of the people who were at the party. This is not really a residential part of town. This is an industrial part of town in the heart of Oakland.

And we heard reports that it was difficult for people to escape, most of the deceased apparently are on the second floor of the building where there was a concert or some live music taking place.

And so if it was on the second floor that may suggest that folks had a difficult time exiting the building. We're actually hearing reports that some people actually jumped out of a second floor window.

If you have a lot of people on the second floor and you have a fire that's spreading quickly, you can imagine how difficult and how scary that must have been for the people inside -- Fred.

WHITFIELD: Absolutely. All right. Dan Simon, thank you very much from Oakland, California.

All right, turning to politics now and the 10-minute phone call that will is defying decades of U.S. diplomacy norms. China is now filing a formal complaint with the U.S. after President-elect Donald Trump accepted a call from Taiwanese President Tsai Ing-wen.

This marks the first publicly reported call with a leader of Taiwan since 1979. The U.S. does not formally recognize Taiwan as an independent state. The Chinese officials fear this phone call may have signaled otherwise.

Trump is downplaying that the call had any further implications tweeting this, quote, "The president of Taiwan called me today to wish me congratulations on winning the presidency. Thank you," end quote.

Meanwhile, Trump's senior adviser, Kellyanne Conway, says this was no different from other previous phone calls between presidents and world leaders.


KELLYANNE CONWAY, TRUMP SENIOR ADVISER: As president-elect I'm pretty certain that President-elect Obama spoke to world leaders in preparation for taking over as president of the United States and commander-in-chief. And I can't imagine that he was asked here or elsewhere if he had been properly and fully briefed considering that he had very, very little experience himself.

ANDERSON COOPER, CNN HOST, "AC 360": This is break with U.S. policy. I mean, this is uncharted waters not since, you know, for decades.

CONWAY: Anderson, President-elect Trump is fully briefed and fully knowledgeable about these issues on an ongoing basis regardless of who's on the other end of the phone.

(END VIDEO CLIP) WHITFIELD: All right, let's go to CNN's Ryan Nobles who is live outside Trump Tower. So Ryan, what more do we know about how this call was orchestrated, if the U.S. State Department was in any way notified beforehand?

RYAN NOBLES, CNN NATIONAL CORRESPONDENT: Yes, Fredricka, and we know that the State Department knew nothing of this call before it took place. In fact, they didn't find out about it until after the fact. And you know, a State Department spokesman telling CNN that they are always available to the transition.

If they have any questions or need to avoid any potential land mines in phone calls like this. And this is, of course, raising eyebrows across Washington, making many of Trump's critics wonder if this is an example of his lack of experience, especially when it comes to foreign policy.

[12:05:11]Well, Kellyanne Conway said last night on Anderson Cooper's show that the president-elect knows exactly what he's doing.


CONWAY: It's a matter of the executive committees, a matter of the president-elect, the vice president-elect, other advisers to the transition, making suggestions. We're happy to schedule the calls. There's an orderly process to make sure that there's plenty of time for these phone calls, that there's proper briefing.

So far they've gone really well. He at least is having these private conversations, giving a readout here and there about them. But not trying to make policy and not trying to make waves until he's actually the president in six and a half weeks.


NOBLES: And Trump's advisers say that this is not an indication that the president-elect has any intention of moving away from the one China policy, which has been policy here that the United States has observed for several decades.

But there is some question as to how this phone call was set up. As you said, Donald Trump tweeting last night that the president of Taiwan called him, but we know that a Trump senior adviser was in Taiwan at the time of the call, and Reuters is reporting that a spokesman for the president of Taiwan said that the call was scheduled ahead of time.

Now it's also important to point out that while there have been many critics of the conversation with Donald Trump and the president of Taiwan, there are some that believe that Trump made the right choice including Arkansas Senator Tom Cotton, who is a tough critic of China's and believes that the United States needs to do more to foster that relationship with Taiwan -- Fredricka.

WHITFIELD: All right, Ryan Nobles outside Trump Tower, thanks so much in New York. Coming up, we'll talk more about this. China's foreign minister is labeling the call between Donald Trump and Taiwan a, quote, "shenanigan." The possible long-term effect this could have on U.S./China relations going forward, next.



WHITFIELD: All right, welcome back. There are less than seven weeks until Donald Trump becomes president at inauguration. He's already overturning international policy protocols. Yesterday Trump spoke on the phone with the president of Taiwan, breaking with nearly 40 years of U.S. diplomatic relations with China.

China has lodged an official complaint with the U.S. and this morning, China's foreign minister is calling this, quote, "A shenanigan" staged by Taiwan.

Let's talk more about this with Larry Sabato, director of the Center for Politics at the University of Virginia. Good to see you. Also, joining me, CNN political commentator, Errol Louis. Good to see you, as well.

All right, bear with me. I've got this cough drop in my mouth. Hopefully it doesn't come flying your way as we talk. OK, so Larry, you first. You know, we know from a White House official that there has been no contact with either the White House or the State Department about this call beforehand in terms of directly with Donald Trump. Does that at all concern you? Is that unusual?

LARRY SABATO, DIRECTOR, UNIVERSITY OF VIRGINIA CENTER FOR POLITICS: Well, it can concern me, it can concern you, it can concern everybody, but look, the big picture -- Donald Trump broke all the rules and won the Republican nomination. He broke all the rules and won the presidency.

And there's no reason to think that he isn't going to keep breaking the rules as president-elect or as president. Now maybe eventually we'll get him in enough trouble so that he'll reform in some fashion. But for the time being, I think we better get used to this -- Fred.

WHITFIELD: So Errol, but he's president-elect, he hasn't been sworn in yet and so is it typical that president-elect before being part of any calls with other foreign leaders that there would be some advisory coming from the U.S. State Department or White House?

ERROL LOUIS, CNN POLITICAL COMMENTATOR: Well, that's what every other president-elect has done and would do, that's not what Donald Trump intends to do. Let's keep in mind, this isn't just a matter of diplomatic niceties by which fork to use at the state dinner.

This is in keeping with our relations the Taiwan are governed by something called Taiwan Relations Act, which was painstakingly hammered out, passed by the Congress, affirmed by multiple Congresses and presidencies. So Donald Trump is really just freestyling it. A lot of his supporters are coming from behind trying to imply that this is some sort of strategic move that he's making, that it was very deliberate and so forth.

It looks to me more like blundering by an amateur and that is, in fact, what the voters voted for. They voted for somebody with no military experience, no diplomatic experience, and no government experience of any kind and this is what you get.

WHITFIELD: What do you see, Errol, as the potential ramifications as a result?

LOUIS: Well, we've already had a formal protest from the People's Republic of China which we have multiple levels of defense conversations, diplomatic conversations, trade conversations, and so that's kind of score one for them going into this new administration.

And although, you know, in the remaining weeks of the Obama administration we can expect the professional diplomats to try to clean up some of this. But you know, they walk into the new relationship with the new president saying you know what, you already breached protocol. Now let's talk.

WHITFIELD: And so Larry, what about that cleanup duty now from the Obama administration? Existing State Department through its leadership, Secretary Kerry, how much cleaning up will it feel it has to do over the next seven weeks?

SABATO: It will do what it has to do, Fred. If I were in the State Department, I would recommend an extra appropriations for brooms. I think there will be a lot of cleanup not just in the next seven weeks, but over the next four years.

But look, just to put it into context, fortunately, nations do what is in their own interests. China is going to maintain its relationship with the United States because it is in the People's Republic of China's interest to do so.

And the same with us. So there are breaches of protocol, and there will be complaints and protests lodged, but in general, I don't think it will have much of an impact.

Now if it goes on for a considerable period once Trump actually takes office, then it really will begin to cause problems because everything that the president does has ramifications. It's important and one hopes when it's a tweet or phone call with a foreign leader, President Trump adapts to that.

WHITFIELD: And Errol, still a mystery who Donald Trump will select as his U.S. secretary of state. But if you're a candidate, you know, in the running, any number of the four that we've known about, you know, publicly, this might be telling that candidate just what is ahead if they were to accept that responsibility.

LOUIS: Well, that's right, Fred. I think the most disturbing part in some ways is this notion that Donald Trump says, well, the phone rang, and I answered it. She called me, which is not how the leader of the free world is supposed to behave. One has to wonder --

[12:15:09]WHITFIELD: Except reportedly there is a close Trump adviser who lives in Taiwan who may have facilitated that call. We still don't know if that means he made the phone call, encouraged the phone call, what facilitate means but --

LOUIS: But here again, you know, it's very important that the leader of the free world speak accuracy with his facts in line and facts in order. So regardless, and now we don't know. Regardless of how it happened, though, I think the point is that the leader of the free world is not supposed to be a passive person sitting by the phone and able to get whipped around by somebody who might, in fact, have been making a diplomatic prank call.

You just can't allow for that. So we'll see if the new secretary of state is going to able to sort of cope with a president who could undermine them at every turn, every time the phone rings or they get an itchy Twitter finger.

WHITFIELD: All right, Errol Louis, Larry Sabato, thanks so much, gentlemen. Appreciate it.

Up next, how Donald Trump's pick for education secretary could rewrite the script on the U.S. school system. An inside look at Betsy Davos' track record after the break.


WHITFIELD: All right, welcome back. We could get more cabinet appointments from Donald Trump as soon as Monday. Meanwhile, the president-elect's pick for education secretary is raising eyebrows.

[12:20:06]Betsy Davos has long been involved in pushing for big changes to Michigan schools. What kind of legacy has she left? Here's CNN's Sara Ganim.


SARA GANIM, CNN CORRESPONDENT (voice-over): President-elect Donald Trump has said he might want to get rid of the Department of Education altogether.

DONALD TRUMP, U.S. PRESIDENT-ELECT: I may cut the Department of Education.

GANIM: And if he does, Betsy Davos would be the right person to help make that happen. According to the head of her nonprofit education advocacy group.

GARY NAEYAERT, EXECUTIVE DIRECTOR, GREAT LAKES EDUCATION PROJECT: She's not in this because she's looking for a condo for eight years in Washington. Mrs. Davos and the president-elect both agree that we should be reducing the footprint of the federal government. GANIM: Betsy Davos is a controversial figure here in Michigan, an advocate of school choice, she's often called an architect of Michigan's school system and she has many critics.

TONYA ALLEN, PRESIDENT AND CEO, THE SKILLMAN FOUNDATION: When I hear her name and I think about education, I think about choice without quality.

GANIM: Davos' husband is the heir to the Amway fortune. Her family has donated millions to political causes and even started its own lobbying group mostly to promote her educational ideas -- more school choice, less regulation, and an unlimited number of for-profit charter schools.

ALLEN: I would be really concerned if Michigan was the role model mat for the country. I actually think that we should be looking at Michigan and saying this is what we should not do.

GANIM: Nearly half of charter schools here are ranked in the bottom quarter of schools statewide. According to the Education Trust Midwest, 20 percent were given a D or F grade. There's no rule about where charter schools should be placed so kids like 11-year-old Judith Shelton often end up going to school far from home.

ARLYSSA HEARD, CHARTER SCHOOL PARENT: It's somebody else's neighborhood that I'm traveling to while passing three or four other schools and about six or seven closed schools to get to his school in the neighborhood that I don't live in.

GANIM (on camera): So in your opinion, has choice worked in Michigan?

HEARD: Choice has not worked. It's a joke especially here in Detroit. What we don't have is quality choice in our neighborhoods.

GANIM (voice-over): Even the popular charter school founded by the Davos family and touted as a proud example of their contribution to education ranked in the bottom third for performance in the state, according to the State Department of Education. But Davos supporters say many places in Michigan have long struggled with education and the charter schools have helped.

NAEYAERT: I think there's been an actual drummed up, multi-year effort by the critics of charters and choice, mainly the Democratic Party and teachers unions, to discredit charters.

GANIM: He says decades of Betsy Davos advocating for students will help her make changes at the national level.

NAEYAERT: We are going to be doing things differently in the future than we've been doing in the past and that I would say to people hold on to your seats.


WHITFIELD: All right, that was Sara Ganim reporting. Betsy Davos did not respond to CNN's request for an interview. All right, straight ahead, they call him "Mad Dog." We're talking about Donald Trump's pick for defense secretary. Why retired Marine General James Mattis' nomination has become so controversial, next.



WHITFIELD: Thanks so much for joining me. I'm Fredricka Whitfield. All right, President-elect Donald Trump has garnered praise for picking Retired General James Mattis for defense secretary. The man currently holding that job, Ash Carter, says, he holds General Mattis in the, quote, "highest regard," end quote. He's also been endorsed by former secretary of defense, Robert Gates.

And CNN's Jim Sciutto has details on Mattis including some key policy differences that he might have with Trump.

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: Fred, we're hearing a lot of positive reaction to Mattis' nomination, this from both Republicans and Democrats, but also from people in uniform, some of whom were skeptical of Donald Trump.


TRUMP: We are going to appoint "Mad Dog" Mattis as our secretary of defense.

SCIUTTO (voice-over): "Mad Dog," the nickname General James Mattis earned leading U.S. Marines in the bloodiest battle of the Iraq war is Donald Trump's pick for defense secretary.

TRUMP: And he's our best. They say he's the closest thing to General George Patton that we have and it's about time!

SCIUTTO: Mattis is a seasoned combat commander with 44 years of service in the Marine Corps and key commands in both Afghanistan and Iraq. He led troops in the 2003 invasion and later in the battle for Fallujah.

GENERAL JAMES MATTIS (RETIRED), U.S. MARINE CORPS: The U.S. military is quite capable of giving our enemies their longest day and their worst day if ordered to do so.

SCIUTTO: Since retiring as CENTCOM commander after disputes with the White House, Mattis has been critical of the Obama administration.

MATTIS: The next president is going to inherit a mess.

SCIUTTO: Like Trump, Mattis is hawkish on Iran.

MATTIS: The Iranian regime in my mind is the single most enduring threat to stability and peace in the Middle East.

SCIUTTO: Still Trump and Mattis disagree on several key foreign policy challenges. Trump has praised Russia. TRUMP: Wouldn't it be nice if we actually did get along with Russia?

SCIUTTO: Mattis sees Russia and Putin as a threat.

MATTIN: Putin goes to bed at night knowing he can break all the rules, and the west will try to follow the rules. That is a very dangerous dichotomy.

SCIUTTO: Trump is in favor of bringing back the illegal practice of water boarding terrorists.

TRUMP: I think water boarding is fine.

SCIUTTO: Mattis opposes water boarding. Trump telling "The New York Times" that during a meeting Mattis told him it is ineffective.

TRUMP: I said, what do you think of water boarding? He said, I've never found it to be useful. He said, I've always found give me a pack of cigarettes and a couple of beers, and I do better with that than I do with torture.

SCIUTTO: Mattis is highly respected up and down the military ranks. A Marine's Marine and also a voracious reader and deep military thinker.

MAJ. GENERAL JAMES "SPIDER" MARKS (RETIRED), U.S. ARMY: Very dedicated, focused, and the smartest man in the room.

COL. PETER MANSOOR (RETIRED), U.S. ARMY: Carried around with him throughout his career, a library of around 10,000 books and he's read most of them.

SCIUTTO: His career has not been without controversy. In 2005, he came under fire for remarks in a panel discussion which seemed to make light of killing in combat.


SCIUTTO: Mattis' nomination would, however, face an immediate and significant legislative hurdle, federal law requires the Pentagon be led by either civilian or a military veteran who's been out of uniform for at least seven years. Mattis has only been retired for three years. So Congress would have to vote to give him, Fred, a waiver.

WHITFIELD: All right, thanks so much, Jim Sciutto.

[12:30:00] Let's talk about Trump's decision to nominate General Mattis as his secretary of defense. Joining me right now is CNN Global Affairs Analyst Aaron David Miller, who in the past has served at the U.S. state department as an adviser to Republican and Democratic secretaries of state. Good to see you.


WHITFIELD: OK, typically the defense secretary is a civilian position. You know, is there any concern in your view appointing a general such as Mattis who, you know, was just out of the uniform within the last three years to take over that role?

MILLER: I mean it's unprecedented since George Marshall. But in this case, I think the issue is not whether or not he's a general. The question is does he have the temperament, the experience, the judgment to create a role for himself as a key adviser to the president-elect. Will he push back when necessary? Will he advocate truth to power?

I don't know the man. But everybody who I do know that knows him and who I respect says he has those qualities. He's analytical, the guy reads, he's a strategic thinker. I would think he's just the kind of person when it comes to national security that ought to be able to give sound and prudent advice to the president-elect.

WHITFIELD: Just as Jim, laid out, there are differences on record in terms of water boarding, General Mattis says, it cigarettes and beers would be better. He sees that Putin could potentially be a real threat. You know, opposing views based on what we have heard Donald Trump say publicly. Is that kind of yin yang good?

MILLER: I would argue, you know, having provided advice to half a dozen secretaries of state I think and to a president or two, I think the tick-tock, so to speak, really is important. I mean, what you want to do is penetrate the hermetically sealed environment in which one point of view. One set of facts or not, seems to influence the commander in chief. And I would argue that on certain issues like water boarding, for example, Mattis' instincts are absolutely right.

WHITFIELD: So Trump and Mattis apparently do agree on Iran. And we've heard Donald Trump, you know, threaten to, you know, undo the Iran policy that the U.S. has been a part of. Because these two are on record as having the same point of view, do you see that this helps, you know, lay the ground work for the U.S. potentially pulling out of that deal?

MILLER: You know, campaigning is one thing and governing is quite another. Once Mattis and the president-elect confront the cruel and unforgiving realities of what it takes to govern, I suspect on Iran, if renegotiation and abrogation of the agreement aren't choices they make and I don't think they will be. Then I suspect they'll go into a lengthy period of review, and in the beginning, maybe impose additional sanctions, but I suspect nobody wants a crisis in the first three months of the administration. So I suspect that they'll give -- they'll give the Iran agreement some time and space. May in the end I hope create a near-death spiral that could cancel it. But in the beginning, I suspect they'll be prudent and cautious.

WHITFIELD: And of course also under consideration there are other nations that were part of that deal with the U.S. pulling out their ramifications that would come with that. Having your experience in the state department, what is your view on these phone calls that Donald Trump has had with Pakistan, giving compliments to the prime minister, Philippines, saying good luck on their cracking down of drug lords, as well as this recent conversation with Taiwan? MILLER: I mean the foreign policy learning curve for this president- elect is clearly going to be a lot steeper. And clearly preparation is critically important. Knowing what you don't know and being in a hurry to find out is a critically important quality for secretary of state and for a president. So I'm hoping that when the key transition occurs January 19 to January 20, that some of the realities and consequences of being president of the most consequential country on earth when everything that you say and do has consequences will hopefully sink in, some of the structure and process will take over. I mean, whether or not that proves to be the case and I've been wrong about every aspect of the primaries, the general, and the transition so far, still very much an open question.

WHITFIELD: And do you see that some of the phone calls during this transition period could be helpful after, you know, being sworn in, or do you see that it causes more work?

MILLER: Well, you've seen in certain cases, President Nazarbayev of Kazakhstan, Rodrigo Duterte of the Philippines, the Pakistan call, that without a coherent message, it's very easy to wander off the highway. And in a sense say things by commission and commission that can get you into a lot of trouble.

[12:35:05] This is a transition period. These are congratulatory, mostly glad-handing calls to establish some measure of report, but again, the critical test, the critical road test is going to come in the early afternoon January 20th when the power, the responsibility, the fate and the interests of this Republic will be in the hands of no longer President-elect Trump but President Trump. And therein will lie the ultimate road test. I'm just hoping for the good, well being, and the security of the nation that most of the choices, no president gets every one right will be made with prudence and a fair measure of wisdom and perspective. Let's hope so.

WHITFIELD: All right, Aaron David Miller. Always good to see you, thank you very much.

MILLER: Thank you.

WHITFIELD: A South Carolina jury will resume deliberations over the fate of a former police officer who shot and killed an unarmed black man running from him. Next, we'll hear from the lone juror who says he can't convict the officer.


WHITFIELD: A South Carolina jury is deadlocked over the fate of Michael Slager, the former police officer accused of murdering Walter Scott back in April of last year. You may I recall the cell phone video that sparked out range in this case.

[12:40:03] WHITFIELD: The video showing Slager shooting Walter Scott multiple times as he ran away from the officer. Slager maintain he shot in self defense and opted to put his life in the hands of a jury instead of the bench. It has been a five-week trial now, and the jury will continue deliberations on Monday. Let's bring in our legal guys. Both are law professors, Avery Friedman, a Civil Rights Attorney, and Richard Herman, a New York Criminal Defense Attorney. All right, good to see both of you.



WHITFIELD: So Avery, let me begin, with you and let's listen to some of Slager's testimony when he was asked about whether or not Walter Scott posed a threat.


UNIDENTIFIED MALE: You've seen the video.


UNIDENTIFIED MALE: And you heard that he was 18 feet away. Would you agree he was not a threat to you with that taser without a cartridge from that distance?


UNIDENTIFIED MALE: OK, so you're going to stick to that?

SLAGER: Yes. And the reason is from 18 feet he could have turned and attacked me again.


WHITFIELD: So Avery, is that a convincing argument?

FRIEDMAN: In this case for drinking, I don't thin k it's convincing at all. The issue I think that the jury is probably focusing on, At least 11 of the 12, is you've got a guy fleeing, he's 17 to 18 feet away. Police officer fires not one, not two, eight times, hitting him five times. That's what this case is about, that's where the focus should be. Frankly, what's going on with this lone juror is not only obliterating the legal process, it's obliterating common sense. The only hope is that the judge will reinstruct on Monday. And perhaps this holdout will do the right thing.

WHITFIELD: And so Richard, in a case like this where the juror says I will not change my mind, this in a written note, and apparently that juror is the only holdout, what kind of recourse does a judge have? I mean is this when alternate jurors can potentially step in, or is this just the way it goes?

HERMAN: Well, two quick things, Fred. First, I hope you feel better. I know you are hurting today a little. So feel better. Number two, what did we do when there were no videos? Can you imagine this case if there was no cell phone video? How would've been presented? In any event to answer your question, it's really organic, Fred. The situation is this. This juror is going to hang, there's no way the judge is going to convince him otherwise. The judge cannot replace them and this is what this jury's stuck with.

Now 11-1 for conviction, you know they're going to retry him. There will be a retrial. But there is no rational basis to find for that the police officer in this case. This is a brutal slaying where the defendant, again, it's a situation we talked about all the time, Fred, where I say, if you don't take it -- the orders for a police officer, nothing good's going to happen. So there was the chase. But this guy was definitely 18 feet away. The officer shot him in the back while his back was turned to him. The taser was on the ground at the time. There was no reasonable fear in the officer's mind at that moment, fear for imminent harm or death to him or people around him. That's why he has to be convicted and he ultimately will be.

WHITFIELD: So Avery, you mean if there's another trial, if this is indeed a hung jury. So Avery, the judge has received the note. Monday they are to resume deliberations. At what point would the judge say they are hopelessly deadlocked? I mean, would it be an entire, you know, a full day that he would have to -- that the judge would have to give the jury, or how do you make the determination?

FRIEDMAN: Well, here's what's bizarre, the note from the holdout doesn't say I can't convict because there's not evidence beyond a reasonable doubt ...

WHITFIELD: Here are the words, "Because I still cannot without a reasonable doubt convict the defendant. I cannot and will not change my mind."

FRIEDMAN: As a matter of conscience. And again what the question is and the reason there's going to be a reinstruct by the judge just look at -- it's not any doubt, it's reasonable doubt. And I think the judge is going to give it one last time. To answer your question, it may very well be more than one day, but something tells me by the end of Monday we'll have a pretty good idea of what happens. And I think unfortunately it's going to be hung. And I agree with my colleague, we're looking for another trial.

WHITFIELD: Richard, final word?

HERMAN: He brings the jury in and he points his finger at him and says now you've got to deliberate harder and come up with a resolution here. This juror is holding out. He's not going to change his mind. The judge can point his finger until the cows come home. This is going to be a hung jury. Probably late Monday, Tuesday. And then, you know, they'll retry the case probably in a month.

[12:45:05] WHITFIELD: All right, we've got another case Avery and Richard, for you to come back. Kind of like the old days. We're going to see you twice now. We'll be right back with another -- a very important and sobering case.


WHITFIELD: All right. Voting is underway right now for the CNN hero of the year. And one of the nominees grew up with cerebral palsy and is using his none profit to help others with the disability. (BEGIN VIDEO CLIP)

[Foreign Language]


WHITFIELD: An apparent road rage incident in New Orleans ended with the shooting death of former New York Jets running back Joe McKnight. Witnesses say McKnight and the shooter, Ronald Gasser, were in a heated argument on a local highway before the shooting. Gasser admits that he fired three shots from inside his vehicle. McKnight was outside of the car when he was killed guy the gunshots. The gunman has been released with no charges while the investigation goes forward. Kimberly CURTH from our Affiliate WVUE spoke with members of McKnight's grieving family.


KIMBERLY CURTH, AFFILIATE WVUE: Those who knew Joe McKnight best tell us he was a good man and father to his son.

UNIDENTIFIED MALE: Joe is my little cousin off his dad's side. This is a tragic moment right, tragic moment. John Curtis family are -- like Romano family, we played up and grew up at.

CURTH: His cousin says he used to coach him on the playground.

UNIDENTIFIED MALE: He is tremendous kid. Tremendous kid and nobody caused nobody any trouble. Him and godson, they played football together, (inaudible).

CURTH: At the Terrytown scene where the former NFL player and John Curtis standout was shot and killed, his stepfather fought back tears.

ELMO LEE, JOE MCKNIGHTS STEPFATHER: I raised him from 6. I've been in his life from that point on. And I've just talked to him. I just talked to him. Just talked to him. He was looking forward to his pro day in April. And I just had a conversation with him.

CURTH: Now, his family will have to say good-bye.

LEE: I just want everyone to know that this was not a trouble kid, young man. The boy was just trying to make it back in the NFL. That's all he wanted to do. That was his whole dream from 6-years-old. I've been knowing him from 6. And for this to happen is just senseless, and it has to stop somewhere. It has to stop.

UNIDENTIFIED MALE: This is just sad.


WHITFIELD: Again, that was Kimberly Curth from our New Orleans affiliate WVUE. So let's bring back our legal guys, Avery Friedman and Richard Herman. So Richard, what is the explanation as to when someone dies in a case like this and the suspect is able to go on and not even be apprehended? HERMAN: Well, shades of Trayvon Martin and Zimmerman. Remember Fred?


HERMAN: Here, look, Gasser admits shooting him, three shots he called he was there when the police came with his gun. McKnight did not have a weapon on him. And, you know, should he have been arrested on the spot, I think so. But, you know, I think it's a matter of days before he gets arrested and charged here, Fred. It's absolutely going to happen. The stand your ground defense is not going to be something to prevent a prosecution here. And I don't know that there is a viable stand your ground defense. This is just an outrageous, horrifying situation where a driver can just pull out a gun and blow someone away. It's just beyond belief. McKnight did not have a weapon. He's only about 5'11", it's not like he's 6'5" and 350 pounds. So, you know, was there reasonable fear for his life by Gasser? I don't know. Gasser also seems to have a history of road rage in the past. No convictions, but a history. So I think Gasser is in some big trouble coming up here, Fred.

WHITFIELD: And so Avery, police say they want to investigate more, and that's why he was not arrested on the spot. Is that explanation enough?

FRIEDMAN: No. Look at it, perhaps I'm saying the obvious, but if you have a black guy firing, filling somebody else that close with a weapon with a history, you really think he wouldn't be in jail right now? I mean I think there is a serious problem in not putting this guy, holding the guy until the investigation goes forward. There is something seriously wrong with the way this case has been handled at the beginning. Now maybe we'll see an arrest coming up shortly. I would hope so, but based on what we know now, McKnight's had no problem at all he's a legend in the community. Gasser's had problems: a 51-year-old guy with a gun firing three shots that close, what we're seeing is something that I think has a certain disparity. But if you take a look at the records, I think would be more than obvious right now.

WHITFIELD: All right.

HERMAN: And Fred?


[12:49:56] HERMAN: And Fred, the sheriff -- the sheriff said it has nothing to do with race even though Gasser's white and McKnight is black. Well, then a recent shooting in New Orleans, similar circumstances, Will Smith, the Will Smith shooting, Cordal Hayes, two black men, road rage shooting, both had guns, and the shooter she was arrested on the spot. He's been in jail since.

FRIEDMAN: You can't compare the two. This was just wrong. Just wrong.

HERMAN: I'm not defending. I'm saying at a similar set of facts, the shooter was arrested on the spot. This guy's white. He was not arrested on the spot. He's going to be arrested this week. FRIEDMAN: But it kind of missed my point.

WHITFIELD: Right. I understand the parallels. All right thank you very much. Avery, Richard, always good to see you. Thank you very much.

HERMAN: Get better.

WHITFIELD: Thank you, I will.

All right, coming up next, Donald Trump says he's going to separate himself from his businesses. We'll talk to a member of congress who says he may need to do more than that. The next hour of the "CNN Newsroom" continues after this.


WHITFIELD: Hello, everyone, and I'm Fredricka Whitfield. Thanks so much for being with me today. At least 9 people are dead and another 25 are unaccounted for after a massive fire broke out at a warehouse party in Oakland California, it happened in a building used by local artists. One witness describes what he saw.


UNIDENTIFIED MALE: We were downstairs, about to start painting. And we tried to like figure out where the smoke was coming from and then we saw where the fire was, it was on the back left corner of the space and I started yelling and trying to get everyone out --