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LEGAL VIEW WITH ASHLEIGH BANFIELD

Jury Selection Complete In First Trial of Freddie Gray Six; Judge "Rehabilitates" Jurors with Opinions; Calls for Chicago Mayor Rahm Emanuel to Resign. Aired 12-12:30p ET

Aired December 2, 2015 - 12:00   ET

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


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[12:00:15] ASHLEIGH BANFIELD, CNN HOST: Hello, everyone. I'm Ashleigh Banfield and welcome to LEGAL VIEW. Our top story takes us to Baltimore where just minutes ago lawyers and a judge settled on a jury in the first trial of the so-called Freddie Gray Six.

Baltimore police officer William Porter is charged with manslaughter, second degree assault, reckless endangerment, and misconduct in office for failing to secure Gray in the back of a police van that took him on a roundabout route to lockup. And for also failing to call paramedics when Gray asked for that. Porter could face many years in prison if convicted and opening statements could begin at any time.

CNN's Jean Casarez is outside of the courthouse right now, with CNN contributor and Baltimore attorney Andrew Aplerstein. And I'm also joined here live in studio by CNN analyst Paul Callan and jury consultant Josh Dubin.

First, Jean, take me to Baltimore. Take me inside that courtroom. We are only two and half days into this process and we have a jury? We thought it might take, I don't know, days or weeks.

JEAN CASAREZ, CNN CORRESPONDENT: We have a jury and we do believe that opening statements are going on right now. Now, that jury we can tell you is 2/3 African-American and 1/3 white. Actually 12 African- Americans, four white. There are four alternates on the jury, four are white, one is African-American.

And we just learned some more things about this jury. Four of those on the jury, four jurors that stood up when asked if questioned have you been a victim of a crime? Have you been investigated by law enforcement? Have you been charged with a crime? Have you been convicted of a crime? Have you been incarcerated or have you current charges? Four on the jury stood up for that question.

We also know that two of the jury stood up when they asked if they had immediate family in law enforcement, and one juror who's on the sitting jury stood up when the question was asked do you have very strong feelings about the charges in this case?

So obviously, those jurors said that anything they feel they could set aside. We also do know that the peremptory strikes, which as you know, Ashleigh, can be strikes for any reason at the very end, all of those made by the defense were African-American jurors, and three of the four strikes of prosecutors of white jurors.

BANFIELD: OK, and I mean, just some of the questions that were asked and answered, I found those really telling. 74 on the first day had heard -- or rather than 75 of 75 on the first day had heard about that civil settlement that the city gave to Freddie Gray's family. On the second day, 74 of 75 had heard about that settlement. That was a controversial move; oftentimes civil settlements come after criminal proceedings.

Andrew, you spent a lot of the day there in that courtroom this morning. I need to get your feedback of the reaction of the defense, that we have now settled on a jury in 2 1/2 days of jury selection, and whether they indeed brought forth that motion again, as I expect they will do over and over again, for a change of venue.

ANDREW ALPERSTEIN, CNN CONTRIBUTOR: I think that the change of venue issue is over, and I'll tell you why, Ashleigh. The idea was that, hey, the whole city knows about it, we talked about this on your show earlier in the week, everybody knows about the settlement, they know about the rioting, they know about the curfew -- how can you find people that don't know about it?

But what's happening is that the judge is rehabilitating the jurors. He's saying to them, look, can you put your personal feelings aside? Can you put aside what happened outside this courtroom and can you focus on the law as instructed by the court, and the evidence that happens in the courtroom? If those jurors are answering yes, which all these people would have had to have done that got selected, then they're qualified and life goes on, they continue on the jury, there's no more motion for recusal -- I mean, removal, rather, and I think it's dead for this trial. I think it's over as an appellant issue. I think it's over for the other five. I think it's here to stay.

BANFIELD: All right. Josh Dubin, weigh in on this issue if you would, this notion Andrew said that the judge is rehabilitating these prospective jurors. To me, that sounds odd in that you shouldn't be rehabilitating them, they should come in with those non-perceived biases. They should be able to answer honestly from their DNA that they can put these things aside that they know, and that they can be fair and impartial. Do you really have to rehabilitate jurors into being that way?

JOSH DUBIN, JURY/TRIAL CONSULTANT: No. And it's a fundamental problem across this country right now. It happens in criminal trial after criminal trial, and frankly this is what I have said over and over again, is just as alarmed as people are about what happened to Freddie Gray and what is happening to people all over to this country apparently by law enforcement, they should be just as much up in arms that judges do this.

[12:0511] Because think about what's happening. Somebody is coming in and they're saying, I have an issue here. I've heard about this case; I read about the case and I have an opinion. And then a judge says, well, you think you can put that aside and be fair and impartial? A man who's an authority figure, an offier of the court, in a black robe, no one wants to view themselves as being unfair. No one wants to admit in a room full o strangers that they're unfair. And the real question is where are they going to put it? Put it where? You can't put it aside.

And the law recognizes, in fact, in Baltimore and in every state across this country, in state courts and in federal courts, that there are often cases where that question is entirely inappropriate because the juror is the worst judge of his or her own biases when there has been incendiary media coverage, when there's been an explosive action in the community. That was this case. The question is a ridiculous one. It's unfair one. And to say that this jury is a fair and impartial jury is fantasyland.

BANFIELD: Well, I mean, they had peremptory opportunities. Those are those strikes that you can do as an attorney, on both sides. You don't have to give anybody any reason for it. And in this particular process, Paul, the defense struck four black jurors and the prosecution struck three white jurors and one black juror.

I have seen this become an appellate issue before, but you have got dig deep and dark into handwritten notes and people usually are pretty careful about what they write and what they say, especially if they are doing that on the material that becomes record. But do you see any issues with those peremptory strikes?

PAUL CALLAN, CNN LEGAL ANALYST: No, I don't. And, you know, the law in the United States is that a peremptory, you can knock somebody off for any reason, except you can't knock them off based on the race, religion, and there are a number of other categories.

BANFIELD: And gender.

CALLAN: Gender, depending upon what state you're in. And then the attorney has to step forward and say, well, I didn't knock him off because he was African-American. I knocked him off because --

BANFIELD: If you're asked.

CALLAN: -- he expressed an opinion that sounded hostile to me or my client, and then the judge looks at it and says, all right, it's not racial strike.

I don't see a problem here. This is a diverse jury and I think in terms of that aspect of jury selection, there won't be any problem. I happen to agree with Josh though that this trend by judges just to force cases to go forward, and when a juror says, gee, really, I've been watching the press coverage and I have an opinion and the judge talks the juror out of that opinion, I wonder if we're getting fair and impartial jurors. Because after all, isn't that is what we want in the system? Fair and impartial?

BANFIELD: You want ultimate justice, of course.

Andrew and Jean, if you can both weigh in on this, because you're there, you're on the street, you're in the court, you're among the players. First of all, I was shocked, and maybe it's because I'm not there, that we got a jury so fast. I really expected weeks. I mean, Casey Anthony took months; O.J. took months. High profile cases are tricky, and 2 1/2 days to me is astounding. But you give me the lay of the land there and the reaction to it from both the prosecution and defense, if you're even seeing in their eyes?

CASAREZ: Andy lives here, but what I can tell you from being in the courtroom is the judge was very streamlined. I mean, there was not a huge jury question questionnaire that they often do that takes time to fill out and so many questions to answer. They have the individual questioning; it was in a conference room. We couldn't hear what was going on, but people were in there I would say, Ashleigh, maybe three, four minutes. That was it. And then they were out, and the next individual person went in for questioning.

So that's why I think it took such a short time, and as Andy said, the rehabilitation, I mean, you can take a juror that says that they just don't think that they can be a juror and you can rehabilitate them in a matter of minutes. The judge can and they're potentially on the jury.

BANFIELD: Andy, did you read any tea leaves there?

Yes, weigh in and just give me your gut feeling. You read guts like crazy as an attorney. You've been a prosecutor and you've been defense attorney. Did you see people satisfied in that courtroom on both sides of that aisle?

ALPERSTEIN: Here's the deal. These people in jury selection, everybody wants to be off a jury. When we pick the juries, people come up with the most outlandish reasons to get out of it, and when they hear it's a long-term jury, they're running for the hills. I mean, that happens for lawyers in courts all over the country. Nobody wants jury duty.

But in this case, in this town, I think people wanted to be on the jury. And as your other guest said, you know, the answers do relate to what people respond to. So if they say, hey, can you put your feelings aside, if the judge says that, and people say I can do it, the law in this state is that's the answer. And they give get rehabilitated not just on these issues. Well, they get rehabilitated no just on these issues, but they get rehabilitated on others.

Now the judge can make a judgment on whether or not he believes their answer about whether they can put their feelings aside.

[12:10:03] This judge, as Jean was just talking about, is moving at rocket speed. He moved the motions like this, he's made it very clear -- everything from where the media walks to where people can stand and talk is being controlled. And he's moving this case. And I'm not surprised he moved quickly at all.

And the other factor, just to point out, is some of those other trials probably had more strikes than can be stricken for any reason. In this case, because of this being two misdemeanor charges under Maryland law -- excuse me, one misdemeanor and one felony, but it relates to the maximum sentence, each side only gets four strikes for any reason. So that's also sped this up a lot.

BANFIELD: I have to leave it there, guys. Yes, real quickly, go ahead, Jean. Real quickly.

CASAREZ: We want to tell everybody, Ashleigh, that Freddie Gray's family is in the courtroom. They are there today, and also the defendant William Porter has family members in the courtroom, and he is facing decades in prison.

BANFIELD: Yes, it doesn't get more serious other than the death penalty cases, and life in prison, this is extraordinarily serious work and it's the first of six. So there will be some kind of palpable effect on the community.

Thank you to everyone, Jean Casarez, Andrew Alperstein, Josh Dubin, and Paul Callan. Excellent work, especially with this breaking news. And we do appreciate your insight.

We're also going to follow this case, because I popped my popcorn for opening statements for Monday and I did not bring it. But we are likely to have it today. In fact, it could come in next couple of hours. So we're on breaking news duty here and we're going to bring that you information to you from that courtroom as soon as it happens.

But coming up next, a 17-year-old is dead. A police officer is charged with murder. The police chief is now gone, fired. And now there are calls for even a higher position to be e eliminated and that is the mayor, Rahm Emanuel, mayor of Chicago. Should he go? There'salso a call for the feds to move in with a Justice Department investigation. We're going to update you on all of this.

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[12:15:55] BANFIELD: In Chicago, a city reeling from the police shooting of a 17-year-old, the Illinois attorney general is now calling on the federal government and asking the U.S. Department of Justice, and the Civil Rights Division, for an investigation of Chicago's entire police department. This comes after the mayor of Chicago, Rahm Emanuel, announced live on our program yesterday that he asked for the Chicago police superintendent Garry McCarthy's resignation. But there are also calls for the mayor, himself, to step down. So far he is not budging.

Ryan Young is in Chicago and CNN justice report Evan Perez is live in Washington. And Ryan, I'd like to with you, if I can. The mayor spoke with Politico earlier today, and obviously he's been taking a lot of heat. There's a lot of pressure on him from the press, from outside group. What was his response today?

RYAN YOUNG, CNN CORRESPONDENT: Well, you know, he's still very defiant and a lot of people are watching his actions and looking at it under a microscope at this point, because everyone wants to know how much did people know about this video? Of course, the family was paid $5 million after the shooting. We asked the mayor just last week when did he see the video? He told us in that news conference he was going to see the video just last week, but so many people have questions. Well, if you knew this was such a big case, why didn't you watch the before? He was very defiant during the interview. In fact, we're going to play you a sound bite from today.

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MAYOR RAHM EMANUEL (D), CHICAGO: We have gotten a point that to build on his progress, but also to deal with the relationship between the police department and the communities in the city of Chicago, he has become the issue rather than dealing with the issue. And let me just -- one other thing. While I am very loyal, my primary loyalty is to the future of the city of Chicago. No one individual trumps that loyalty.

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YOUNG: There's a lot of people in this city talking about the fact the superintendent did everything the mayor wanted him to do, so if he's a distraction, how is the mayor not a distraction? That's the question that's being asked. The superintendent also cannot fire police officers, so after that shooting, Jason Van Dyke was put on desk duty after those 16 shots were fired. He sat on that desk for 13 months until this video was released. And obviously he's now been charged with first-degree murder. But a lot of questions about this system that's in place here in Chicago. Ashleigh?

BANFIELD: Well, there a lot of systems that are in place and there's a lot of requests to check those systems. To that end, Ryan, stand by if you will. I want to switch over to Evan Perez who's live in Washington.

You know, the A.G. has asked a pretty big request of the federal government. It's one that we have been hearing a lot about lately. The A.G. wants the Department of Justice to do a civil rights investigation of the entire Chicago police department. That's not a little Ferguson department; that is a very, very big job, and that is a very, very busy division. What's the response?

EVAN PEREZ, CNN JUSTICE REPORTER: That's right, Ashleigh. We don't know yet what the department will do. I'd be, frankly, I'd be very surprised if they don't launch an investigation into the Chicago Police Department. If you read Lisa Madigen's letter, it lays out frankly a lot of the work that that the Justice Department would do at the beginning of this process before they even launch a pattern and practice investigation there. But there are probably a couple dozen of these that the Obama administration Justice Department has launched just in the time that the Obama administration has been in power.

And so it's frankly just shocking if the department doesn't launch this investigation. If you look at some of the statistics Lisa Madigen cites, including the fact that 97 percent of police complaints are -- essentially go without officers being punished. The letter also lists five different shooting incidents that call into question whether or not use of force process at the Chicago police department is being properly adhered to.

So this is -- we expect to see the Justice Department answer this. Right now they're saying they're just reviewing this request. We expect to hear more soon though.

BANFIELD: All right, and I'm just getting news as you're speaking, Evan, so pardon me for looking away, that Rahm Emanuel has just canceled an upcoming trip to Paris. I know that in the press conference yesterday, he was being asked about that. I believe, if I'm not mistaken, this could be the trip with regard to the climate change summit.

[12:20:03] I'm not entirely certain about that, but that seems to be what the trip was linked to. And he has decided to cancel that upcoming trip. He was asked about it yesterday, said he wasn't sure. Now he definitely is. Evan Perez, thank you for that. And Ryan Young, thank you as well.

It took 13 months for police and the Cook County, Illinois, prosecutor to release the video of the shooting death of Laquan McDonald, but that was only after a reporter doggedly requested, under the Freedom of Information Act, to get a look at that video. This video of Laquan, who was running in front of a Burger King, was also a video that was released.

The are reporter who made those request is Brandon Smith, a freelance journalist who appeared on CNN's "NEW DAY" this morning. And he spoke about his request and how he balanced the family's desire for the video not to be released, the family's desire for it not to be released, versus the public's right to know what happened.

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BRANDON SMITH, FREELANCE JOURNALIST: The family has the right to say that the video is very disturbing to them and that they don't want their son remembered in that way. The problem comes when there are 300 police shootings in Chicago in five years and no signs of change. You know, that's one of the largest numbers for police shootings in the nation. And so, as a person as well as a journalist, I kind of have to -- have to speak out against that, right? And so, nothing was happening with the reform, no one was really talking about these police shootings, until the video came out. And so it's kind of having the result that I had hoped.

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BANFIELD: But is the release of the video getting the results that the protesters had hoped for, including the Black Lives Matter movement? Let's go right to the source.

Speaking now with Aislinn Sol. She's the chapter coordinator of Black Lives Matter in Chicago. Aislinn, thanks so much for taking the time to be on the show today. That's the question -- yesterday, a big and surprising announcement that the superintendent of the Chicago police, the request was made for him to resign. Is it enough?

AISLINN SOL, CHAPTER COORDINATOR, BLACK LIVES MATTER CHICAGO: No. It's not enough. But it's a good step in the right direction. What's been clear over the past year and a half, and over the past 30 years if you've been following the reparations fight to get justice for survivors of police torture that occurred under the former Police Commander Jon Burge -- what's evident is that this is a systemic problem. And it's rooted deeply not only within the Chicago Police Department, but within every aspect of city government. And so an entire overhaul of the system needs to be done.

So McCarthy's resignation is a good step in the right direction. It is by all means not the answer, not the final answer. But it is the beginning of where we need to go.

BANFIELD: And is the next step in what the protesters see as justice in this story, Rahm Emanuel the mayor and maybe the Cook County prosecutor, does it end there? Is there something I'm missing?

SOL: Well, I would say it further begins there. It begins there. Mayor Rahm Emanuel is certainly complicit in the cover-up to hide the video of Laquan McDonald, but we're still fighting to get another video released of Ronald Johnson who was killed eight days before Laquan McDonald was killed. And that video still is being held secret under court order despite the mother Dorothy Holmes' lawsuit against the city to release it.

So this reveals not just one incidence of a bad cop making a bad decision, but an entire system that is complicit in hiding crimes that have taken place against the citizens of Chicago. And we as the people of Chicago are demanding justice, and that includes that every person who's responsible be held responsible, and held accountable for what has occurred.

BANFIELD: And notwithstanding that -- and that is a very broad and sweeping goal without question, and a tough road ahead -- Aislinn, for so many people, this has become a black and white issue. And the dividing line very often has gone down that line as well. My question is would a Black Lives Matter movement, and otther movements that support the overhaul of what you're speaking of, would they support a white a police chief? Or would the symbolism be too much?

SOL: I really -- I really, I really don't take issue with the ethnicity or the racial makeup of whoever is in charge. That really has little matter in what's done. What we need is a complete, comprehensive policy overhaul.

[12:25:03] And so I'm not looking for, you know, just a figurehead to come in to appease the optics of what's occurring, but a genuine, complete overhaul of the system so that we have real accountability and that the people of Chicago are truly protected and represented by our elected officials.

BANFIELD: I have to thank you for braving the cold. I know it is just brutal out on the streets of Chicago, the temperature today.

SOL: It is.

BANFIELD: So thank you for doing this today, but you look beautiful and the coat is fantastic and I hope it kept you warm, and thank you for doing this with us, Aislinn.

SOL: Thank you. Thank you so much.

BANFIELD: Hope to talk to you again soon.

Coming up next. Who's up? Who's down? And with just two months to go before the first votes of 2016, there are some really big shifts in both parties in the brand-new national poll just released.

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