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'The Last Word with Lawrence O'Donnell' for Tuesday, August 19th, 2014

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August 19, 2014

Guest: Claire McCaskill, Benjamin Crump, Lizz Brown; Marcia Clark

LAWRENCE O`DONNELL, MSNBC HOST: Rachel, the future of that prosecution has
become the big issue of the night.


O`DONNELL: Yes. Thanks, Rachel.


O`DONNELL: As Rachel just described, this is now the big issue of the
night in Ferguson. It has become the credibility of the district attorney
investigating the killing of Michael Brown. Some local politicians have
been demanding the appointment of a special prosecutor. You heard the
governor`s reaction to that, just issued a statement refusing to do that.

I will ask Benjamin Crump, attorney for Michael Brown`s family, if he
thinks this case needs a special prosecutor, and perhaps more importantly,
I will also ask Missouri Senator Claire McCaskill if she thinks this case
needs a special prosecutor in her state.


UNIDENTIFIED MALE: What do we want?

CROWD: Justice!

UNIDENTIFIED MALE: When do we want it?


UNIDENTIFIED MALE: They`re emboldened and they`re loud and they`re still

UNIDENTIFIED MALE: A tense night of protest.

UNIDENTIFIED FEMALE: Seems to just be getting worse.

UNIDENTIFIED FEMALE: Another police involved shooting.

UNIDENTIFIED FEMALE: In a community already on edge.

UNIDENTIFIED MALE: Just 2 1/2 miles from Ferguson.

UNIDENTIFIED MALE: A suspect acting erratically, armed with a knife.

UNIDENTIFIED MALE: Appeared to be unrelated to the Ferguson protest.

UNIDENTIFIED MALE: When he closed within three to four feet, officers
fired their weapon.

UNIDENTIFIED MALE: People were furious and angry.

UNIDENTIFIED MALE: The last thing we need is violence in our neighborhood.

UNIDENTIFIED FEMALE: What if anything can calm the tensions in Ferguson.

UNIDENTIFIED MALE: Everything seems locked in this kind of cycle.

UNIDENTIFIED FEMALE: Another night of tear gas and flash grenades.

UNIDENTIFIED FEMALE: What a scene. The anger just boiling over.

UNIDENTIFIED FEMALE: The National Guard has done nothing to calm the
nighttime violence.

UNIDENTIFIED FEMALE: Violent protesters are known in Ferguson as the

UNIDENTIFIED MALE: More interested in raising holy hell and stealing

UNIDENTIFIED MALE: Who they are, what their motives are, that remains

UNIDENTIFIED MALE: Protest during the daytime. Stay home at night.

UNIDENTIFIED FEMALE: There`s a lot of anger out there.

UNIDENTIFIED MALE: These people are crying out for justice.

UNIDENTIFIED FEMALE: Justice will bring peace, I believe.


O`DONNELL: There is no curfew in Ferguson again tonight. Police are
operating under the same rules they put in place last night. But
protesters must keep moving and not congregate.

Some community leaders encouraged protesters to leave the area after dark.

This is live imagery from the streets right now in Ferguson, Missouri.

Today, the Justice Department said that a team of federal medical examiners
completed their autopsy of Michael Brown`s body on Monday. Michael Brown
will be buried on Monday of next week.

This morning on the "Today Show", Matt Lauer asked Michael Brown`s parents
about the situation on the streets of Ferguson.


MATT LAUER, "TODAY"/NBC: What will bring peace to the streets of Ferguson?

UNIDENTIFIED FEMALE: Justice. Justice will bring peace, I believe.

LAUER: Only if that justice results in the arrest and charges being filed
against Officer Wilson? Is that what it`s going to take?

UNIDENTIFIED FEMALE: Yes. Him being arrested, charges being filed, and a
prosecution, him being held accountable for what he did.


O`DONNELL: Joining me now from Ferguson, Trymaine Lee, national reporter

Trymaine, the situation behind you there any way looks peaceful.

On one hand, it`s always the calm before the storm. I don`t want to jump
ahead of myself and say how calm it is, but it`s very much like it was last

One thing we have to remember, is we`re going into the second week of
protests. And while people are clearly tired, there`s been gassings every
night, there`s been constant growling, but they`re still at it. They`re
still emboldened.

And so, again, we have a couple more hours and we`ll see if that element
that people talk about, if they emerge and if we`ll see a repeat of last
night and the night before and the night before that with the militarized
police and the gas. But as of right now, they`re marching. It`s peaceful.

There are more police officers out in the streets tonight. And also, there
are two checkpoints, one further down the road near the command post, where
the National Guard is guarding, and another right when you enter Florissant
Avenue. And so, police are essentially locking folks in. And it seems to
be having an impact on the crowd. It`s thick out here but not as many as
have been out here in days past.

O`DONNELL: Craig Melvin -- MSNBC`s Craig Melvin got to ride along with
Captain Ron Johnson today, talking about those tactics they`ve been using
there, Trymaine. Let`s listen to this.


CRAIG MELVIN, MSNBC: One of the major complaints has been the department`s
use of tear gas. It`s indiscriminate. There have been women, there have
been children, there have been journalists who suffered the effects of it.
What`s your response to that?

CAPT. RON JOHNSON, MISSOURI HIGHWAY PATROL: Like last night and the night
before, when subjects are shooting guns and so forth, and as you know, you
can`t -- none of us can walk up to a gun. None of us can walk up to a gun.

We come out with a loud speaker and ask everybody to disperse. Nobody
disperses and then this element gets behind the crowd and throws Molotov
cocktails, and things like that. We`ve got to move the crowd back, and
have a lead. But we can`t walk up to a gentleman with a gun.

MELVIN: You guys didn`t have a choice?

JOHNSON: We don`t have -- the way that we have addressed this, when we
needed to in a serious situation, we haven`t had a choice.


O`DONNELL: Trymaine Lee, last night they did find one Molotov cocktail and
they exhibited it at the end of the night. Is that the first time they`ve
shown something like that of what they`ve collected?

LEE: From what I understand, it`s the first time. And you hear a lot
about these Molotov cocktails, but there`s not a lot of Molotov cocktails

So, we also had police officers saying that journalists are being robbed.
There`s a lot of things people are saying that we`re still trying to piece
out, whether they`re real, or some sort of hyperbole.

But again, the use of the tear gas is a main factor that creates this
resentment even more, because there is clearly a small element of people
who are waiting and inviting for a confrontation with police. But again,
like they said, there are women and children and babies and fathers and
families out there who`ve all suffered the effects. And so, the use of
that tear gas is a critical sticking point in this community because it`s
so bad.

O`DONNELL:`s Trymaine Lee, thanks for joining us. We`ll get
back to you as the situation on the street develops. Thanks, Trymaine.

LEE: Thank you.

O`DONNELL: Joining me now, Democratic Senator Claire McCaskill of

Senator McCaskill, the issue of the night it seems now in Missouri
politically and both in terms of what`s going on in the street there,
protesters, demanding a special prosecutor in this case. We just got a
statement from Governor Nixon, his reaction to that, where he says, "I am
not asking St. Louis County Prosecutor Bob McCulloch to recuse himself from
this case." He then goes on to say there`s a well-established process for
that. He`s leaving it to the prosecutor himself to decide whether to do
that, and he justifies that by saying departing from this established
process could unnecessarily inject legal uncertainty into this matter and
potentially jeopardize the prosecution.

Senator McCaskill, do you believe there should be a special prosecutor in
this case?

SEN. CLAIRE MCCASKILL (D), MISSOURI: Well, first, let`s look at what the
prosecutor said today. The prosecutor said today, I will not walk away
from my responsibilities. I was just re-elected.

He has been the prosecutor in this county for almost 25 years. Has one of
the most professional and respectable prosecution officers in the state and
in fact, in the country. And so, he`s said I`m not walking away.

But he also said, I understand the government has the power to remove me
under his state of the emergency powers.

So, what you have here, Lawrence, is you have a governor who could look at
this situation and decide if the perceptions of some in the community,
which I`m not sure are grounded or fair, if they present such an emergency,
then he is the only person, the governor, who can remove the prosecutor.

And tonight, he`s given that prosecutor a vote of confidence, because what
he`s said is he will remain in the job, the job that the people of this
county elected him to do.

I believe that Bob McCulloch will be fair. But if the governor thinks that
he can`t be fair or if the governor believes this community is so riled up
about him as prosecutor, then he`s the only person who has the authority to
do it. And Bob has said he respects that authority, he will walk away from
the job, but he won`t walk away from the job unless the governor tells him

O`DONNELL: So, just to be clear, Senator, if you were in the governor`s
position, would you leave this prosecutor in place, given that it`s one of
the principal demands of the prosecutor -- of the crowd there, the
protesters, that this prosecutor be replaced?

MCCASKILL: I would, but I have a unique look at this prosecutor, because I
have prosecuted alongside him. I have known him for 30 years. I know he`s

You have to understand, the only allegation against this prosecutor is he
can`t be fair. Well, what does that say to the people of this county? We
have a process in this count try where people are elected. You don`t come
along and just remove someone from that job unless it is under the powers
of an emergency.

O`DONNELL: Well, Ed Magee, who is the spokesman for the prosecutor, told
NBC News today the following things about how they intend to proceed. And
it`s hard to believe that anyone is going to find this adequate.

He says that they`re using the regular grand jury, which meets once a week.
They will continue doing that until at least early September, when that
grand jury`s term expires. So that grand jury, although they may be
starting tomorrow on this case, they`re just going to be presented with
evidence once a week.

Secondly, in September, they expect to empanel a special grand jury, which
will basically be the same grand jurors as now, but now called a special
grand jury, to hear only the Brown case, and the district attorney
spokesman says that they believe it will take weeks and possibly months.

How is that kind of delay on what looks like a very simple case with two
participants in it, a shooter and the person he`s shooting -- how does that
kind of delay become acceptable in this case?

MCCASKILL: Well, first of all, you couldn`t be more wrong about it being
simple. You have a lot of forensic evidence that has to be processed. You
have trajectory, you have casings, you have blood work, you have DNA work.

And not only does that have to be done by the prosecutor`s office, it has
to be replicated by the Justice Department.

This is going to be -- this is not common, but the Justice Department is
redoing every forensic test that must be performed. So, not only do we
have a local and state prosecutors, we`ve got the federal prosecutors that
are looking over their shoulder, checking their work and independently
doing that work.

It is not unusual for a grand jury to meet once a week. It`s good they`re
continuing this grand jury, because seating a new grand jury would be even
more delayed.

I know this grand jury is diverse. That`s very important. I know that the
two assistant prosecutors in charge of presenting this evidence are
seasoned veteran prosecutors, and one of them is a highly respected
African-American prosecutor. They will be making the evidence
presentation, not Bob McCulloch, and all of the evidence will come in. So,
it will take a long time.

Now, it may be they ask the judge, grand jurors agree to do this and they
understand when they begin to do it, it will be once a week. Maybe they
have to meet more often than once a week. But part of this also, Lawrence,
is making sure these investigations get done at approximately the same
time, because we don`t want there to be a lag where one system has made
their decision and the other system hasn`t.

We want these decisions to be made at the same time so that there`s not
this in between time which obviously could invite more a lot of violence.

O`DONNELL: Senator, w hat is your basic message to the people of Ferguson
and Missouri about this prosecution -- about this investigation, which may
or may not become prosecution, by this district attorney, given all the
information that`s been released about it tonight, including the once a
week, which I know is standard for standard grand juries, once a week is

And, by the way, he says during the once a week meetings, this grand jury
will still be considering routinely other cases that come up. How will you
present that to the people of Ferguson as being a satisfactory process at
this stage?

MCCASKILL: Well, the prosecutor has already said, Lawrence, every bit of
evidence that`s come in front of the grand jury will be public, every
shred. He will present it all, either way. No matter how this case goes
in front of the grand jury.

This is not -- he`s tried, I think, very hard in this community, to say, we
can`t make it transparent now, because here`s the problem: you release the
physical evidence now, then you don`t have a way to check the credibility
of witnesses, because witnesses start conforming their testimony to what
they know the physical evidence is.

So, as the FBI -- and, by the way, FBI is canvassing for witnesses, 40 FBI
agents. They`re taking a lot of these statements. The FBI is going to
look at these statements, check them against the physical evidence, and
that will give us a lot more information about who is credible and who is

O`DONNELL: Senator McCaskill, as we`ve watched this unfold, the big
question in the last few days is how can the cycle be broken where some
provocateurs, and it seems like a small number each night that this has
happened, when it has happened, provoke the police into a response that
then outrages many people in the community who were not part of that
provocation group?

MCCASKILL: Well, if the people in the community -- and, by the way, I
think most of them are. There are only four people arrested in the last
few days from Ferguson. If the people in the community would go home when
it gets dark so the provocateurs can be isolated.

The problem is, the police are very worried about this. We`ve had seven
shootings. We had a man shot dead by somebody in the crowd on Friday night
and it`s not even been covered.

We`ve had seven shootings, one of them dead. And they want to keep the
people who are wonderful, God-loving -- I love these people. I`ve been out
there with them, protesting, talking to them about their rights to protest.
They are masking the bad guys here. If they would go home and allow the
exposure of this element that has really embedded themselves in this
community, it would make it a lot easier for us to provide public safety.

And then we also, Lawrence, have to talk about some of the things that we
can work on to make other things better, like for example, the mayor ran
unopposed in Ferguson. Most of the councilmen ran unopposed. We had a 5
percent turnout from the African-American community to the municipal
elections in April.

We have to get more involvement of young people in our political system,
especially in Ferguson.

O`DONNELL: Senator Claire McCaskill of Missouri, thank you very much for
joining us tonight on this difficult night. And also thank you very much
for bringing your unique perspective as a former prosecutor in Missouri to
this discussion. Thank you very much, Senator.

MCCASKILL: Thank you.

O`DONNELL: Coming up, the attorney for Michael Brown`s family, Benjamin
Crump, will join me.

And later, the story behind why so many people think the St. Louis County
prosecutor should recuse himself from the Michael Brown case.


O`DONNELL: That`s the scene right now live on the streets of Ferguson,
Missouri, protesters out, ordered to continue to move. They`re not allowed
to stop and congregate in one place, and so, you see that movement, all
entirely peaceful, so far.

Up next, the attorney for Michael Brown`s family, Benjamin Crump, will join



GOV. JAY NIXON (D), MISSOURI: A vigorous prosecution must now be pursued.
The democratically elected St. Louis County prosecutor and the attorney
general of the United States each have a job to do. Their obligation to
achieve justice in the shooting death of Michael Brown must be carried out
thoroughly, promptly, and correctly. And I call upon them to meet those


O`DONNELL: You see live images right there on the streets of Ferguson at
this very hour. So far, the protests are peaceful there. Michael Brown`s
parents discussed the situation in Ferguson this morning on the "Today


LAUER: Do you think this continuing violence in the streets of Ferguson
night after night runs the risk of overshadowing that search for justice?
In some ways, does it detract from justice for your son?


LESLEY MCSPADDEN, MOTHER OF MICHAEL BROWN: I think that it does somewhat.
Because it is a distraction, but we won`t let it distract us to the point
where we lose focus. We have to remain focused and we have to remain
strong and the violence needs to stop.

When justice is prevailed, maybe they`ll regain their trust in the locals.
But right now, it`s out of control.

UNIDENTIFIED MALE: We need to keep the focus on Michael Brown, Jr. That`s
who we need to keep the focus on, Michael Brown, Jr.


O`DONNELL: Joining me now is the attorney for Michael Brown`s family,
Benjamin Crump.

Benjamin Crump, we know that Attorney General Eric Holder is coming to
Ferguson tomorrow. Are you scheduled to meet with him tomorrow or anyone
from Michael Brown`s family?

making sure we don`t do that, because the family has always requested that
the federal government and the federal authorities take over the entire
investigation. So, we don`t want to have a meeting to -- where people say
he`s biased. Because the family truly desires not to have the local
authorities prosecute this case.

O`DONNELL: I want to get your reaction to what has become the issue of the
night, which is the prosecutor in this case and the local prosecutor and
should there be a special prosecutor?

CRUMP: Well, I know the family is concerned about the grand jury process.
They, as I talked with them, and we tried to make sure they understand all
these technical legal matters, Lawrence, they don`t understand why the
prosecutor won`t just charge the police officer, why does it have to go to
a grand jury. Because they see people in their community that don`t get
the benefit of going to a grand jury proceeding. They just get charged

And the whole grand jury proceeding is troubling to them, because it`s a
secret proceeding that is not transparent. And as you know, they have a
great distrust in the Ferguson community with the local law enforcement
agencies in the prosecution office.

So, one of the things the family has really pushed for in the whole
community, and that`s why you see all the protests, they`re saying we don`t
trust that Michael Brown is going to get justice. It`s not going to be
fair. And so, we need really to have it fair and transparent for people to
accept whatever decision is rendered by a jury, if he is first arrested.

O`DONNELL: Well, the district attorney`s spokesman Ed Magee tonight has
revealed that he says that Officer Darren Wilson has been interviewed by
investigators. We don`t know who those investigators are. We don`t know
whether that includes the FBI.

And it says he will be offered the opportunity to testify to the county
grand jury. It is unusual for the person being investigated to be invited
to testify to grand juries.

What do you make of that?

CRUMP: That certainly is interesting, because most criminal defendants are
given the right to their Fifth Amendment privileges. And if he waived
those rights, then I guess he has the right to waive those rights.

But that`s troubling because, again, it`s a secret proceeding, and nobody
knows what`s presented to the grand jury. And so, you have to come back to
that crowd out in Ferguson, and say, you just got to take our word that we
did everything we could to present a case to the grand jury, and they just
decided that he shouldn`t be indicted.

I don`t think the community of Ferguson is ready to accept that. With so
many of them being out there that afternoon, Lawrence, where they saw that
boy`s body laying on that concrete for almost five hours. It was very,
very troubling for not only his mother and daddy, who was out there for
almost five hours crying, wanting to get answers from the police, and being
treated very coldly. But a lot of the members of that community, and
that`s why they`re so passionate about this.

And this was in broad daylight. It`s not like the normal police shootings
that happen in the dark of night. This is in broad daylight. And a lot of
people were affected by this, and they`re emotionally charged, and they`re
saying, we have to get justice this time.

O`DONNELL: This is an unusual case because there is -- there is no police
story out there. There is no account by the police that says anything
about what happened after the police officer got out of the car. They take
their account right up to the point where he got out of car and then they
say he just fired a bunch of shots.

But we do have Tiffany Mitchell`s testimony, eyewitness who spoke about it
on this program. There are no eyewitnesses who have come forward yet to
say anything that contradicts basically what we heard from Tiffany
Mitchell. I played what she had to say last night for Shawn Parcells, who
worked on the autopsy. And he said there was nothing in their autopsy
findings that contradicts a single word that she said.

And isn`t that one of the tensions that is actually growing in the
community, is that Tiffany Mitchell`s story is out there, un-contradicted,
and so far the police, the investigators, the prosecutors, they have
offered absolutely no story from their side of this situation.

CRUMP: And you`re right, Lawrence. The autopsy, unfortunately, confirmed
what those witnesses said, that this young man was executed in broad
daylight by a police officer. And as Michael`s brother Leslie asked me,
what else do we have to do to get him arrested?

Because in their mind, it`s not complicated as the scene of the trial to
make it, because they see stuff in the community all the time where people
are arrested with far less evidence. And to say it`s excessive, how he
shot him multiple times, especially the last two shots, Lawrence. Those --
the head shots were fatal shots.

The evidence is clear from the trajectory of the bullet, that either he was
falling down or you try to accept this notion that nobody has documented it
in the police report, but to say that Michael was charging him. He would
have to be running at a perfect L, 90-degree angle for that bullet to hit
his head backward to forward.

The science isn`t there. It doesn`t add up. It`s far more logical to
conclude what the witnesses said, that he was executed.

O`DONNELL: And it`s worth noting that absolutely no witness has come
forward and ever said that Michael was bent down and charging anyone.
There`s absolutely no witness who has said that. That is not part of the
collected evidence of this case. And there`s no police officer who has
claimed that.

That is just a theory that`s being thrown out there.


O`DONNELL: Benjamin crump, thank you very much for joining me on what I
know is a very busy time for you. Appreciate your time tonight.

CRUMP: You`re very welcome, Lawrence. Thank you.

O`DONNELL: Coming up, why so many people, including politicians, have been
calling for a special prosecutor in this case.



this county for 24 years. I`ve been elected by the entire county, by a
pretty significant number seven different times, including, you know, about
11 days ago. And so, it`s not uncommon for -- in just about any high
profile case anywhere for somebody to say the prosecutor isn`t going to be
fair, can`t be fair. And it just sort of goes with the territory.


O`DONNELL: In a letter to the prosecutor today, a Missouri state senator
Jamilah Nasheed said this about the district attorney`s recent political

For the past few months, you have been involved in perhaps the most
racially polarized election in the history of St. Louis County. Senator
Nasheed closed the letter by saying, you`re demonstrating magnanimity and
turning this matter over to a special prosecutor will greatly defuse the
situation and will be a major step on the healing process our community so
desperately needs.

Joining me now is Lizz Brown, a criminal defense attorney and a columnist
for the St. Louis American newspaper.

Lizz Brown, this issue has heated up just within the last hour. We have
the governor coming up saying he will not appoint a special prosecutor.
Earlier in the day, the district attorney`s office was letting people know
that the governor under the emergency, he has the power to remove this
attorney and appoint a special prosecutor. It seems like McCulloch`s team
wanted the world to know that the governor has this power to put the heat
on him, and the governor threw it right back to the district attorney
saying the district attorney alone has the power to recuse himself.

LIZZ BROWN, CRIMINAL DEFENSE ATTORNEY: And isn`t that interesting? Isn`t
that protective for both individuals? I think this is such a serious
issue, Lawrence. We are asking -- we are raising the question up, does
this prosecutor have the stomach, have the desire, have the energy, have
the interest in prosecuting the man who shot and killed Michael Brown with
the same type of energy that he would have in prosecutor Michael Brown if
he were charged with shoplifting? And how do we get to a place where we
believe that this prosecutor will pursue this case with the same type of

Well, there`s trust involved. There`s history involved. And we have to
ask those types of questions. Has he, in the past, demonstrated that he is
interested in prosecuting African-Americans or white citizens the same way
that he`s interested in prosecuting African-Americans?

And if I might just for one second, Lawrence, Because I think this is so
important that there was a case a number of years back, the jack in the box
shooting. Two African-American men were pursued by a DEA agent and a law
enforcement person from the city of Dellwood. Twenty one shots were fired.
They were there on a drug investigation.

Assuming that everything was correct about one of the people in the car, he
had low-level drugs on him. The other person in the car was simply an
innocent passenger. People in the community was concerned about this. Bob
McCulloch`s office refused to meet with them. People in the community
asked for questions to be answered. Bob McCulloch sent a press release
saying we don`t have anything else to say on this. And more importantly,
most importantly when we look to whether or not how Bob McCulloch used the
community of African descent, he stated that both of these guys were bums.

We have one person, OK, involved with drugs. But on the other hand, we had
an innocent person. So how are both individuals considered viewed as
"bums" in the eyes of this prosecutor? So it appears from that that Bob
McCulloch is a hammer. And African-American people are black males.

O`DONNELL: And Lizz Brown, the 21 shots fired at those two people in that
car, they were unarmed as it turns out.

BROWN: Correct.

O`DONNELL: Which was part of the community`s concern about this, to put it
mildly. And here we have an unarmed shooting again. And the district
attorney has said today that they intend to begin tomorrow and to put the
grand jury through that customary grueling schedule that they have of
meeting one day a week to work on this until later in September when he can
empanel a special grand jury. What is your reaction to that, one day is
good enough for now?

BROWN: Well again, it goes to the point I was making before about the
desire of this prosecutor to prosecute this case with vim and with vigor.
And I was listening to your comments with your last guest, and I was
stunned to hear you say that that Bob McCulloch`s office is considering
allowing the officer to testify.

Prosecutors can, in a grand jury, they can indict -- you`ve heard it
before, Lawrence, a ham sandwich if they want to. No prosecutor, who is
intending to obtain a conviction, allows the defendant to speak to the
grand jury. If you`re really trying to get an indictment, you put forth
the evidence to get an indictment. If you are trying to have the defendant
be heard, and which is unusual in -- during a grand jury hearing, you never
let the defendant talk, because you want an indictment. And then you move
forward from it. This police officer is being offered to do something that
rarely, rarely, rarely happens and also it doesn`t happen unless you want a
different result.

O`DONNELL: The spokesman for the D.A. said clearly, he will be offered the
opportunity to testimony to the grand jury.

BROWN: Stunning.

O`DONNELL: It is. It is very unusual. Liz, one more thing. The D.A.
says that these grand juries are specifically composed by judges to be, as
he puts it, a very diverse body. They include every demographic category
in the county. Is that your experience with grand juries there?

BROWN: That`s my experience, but to a certain extent, it matters not. It
doesn`t matter if -- the grand jury can only act on the information and the
evidence that the prosecutor chooses to put before them. So they could be
100 percent black. But the prosecutor only puts out a certain amount of
evidence, then they`re going to have to decide not to convict.

O`DONNELL: Lizz Brown, thank you very much for joining me tonight. Really
appreciate it.

BROWN: Thank you for having me, Lawrence.

O`DONNELL: Coming up, what happens tomorrow when that grand jury begins to
go to work?


O`DONNELL: Today, the Staten Island district attorney said he will open a
grand jury investigation into the choke hold death of Eric Garner. The
D.A. made that decision to take the case to the grand jury after the
medical examiner ruled the death a homicide by chokehold and chest
compression tree weeks ago.

Up next, a look inside the grand jury room with former prosecutor Marcia


O`DONNELL: That is live courage of the scene on the streets of Ferguson,
Missouri tonight. Things remain peaceful there. We will go back to the
streets as soon as anything changes. And there`s anything to report from
there beyond what you`re seeing right now.

Tomorrow, attorney general Eric Holder will travel to Ferguson where he
will meet with FBI investigators, as well as federal prosecutors and
several local leaders. According to the St. Louis county prosecutor`s
evidence, a grand jury will begin hearing evidence in the shooting death of
Michael Brown tomorrow.

Joining me now is MSNBC law enforcement analyst Jim Cavanaugh. Also
joining me here in Los Angeles is former prosecutor Marcia Clark.

Marcia, perhaps alone among us, well, maybe Jim has been danger (ph) room.
I never have. The only way to get in there is you have to be a prosecutor
or a witness. There is no other way to get in.


O`DONNELL: Or grand juror, yes. I don`t have the pleasure to being anyone
with those things. Take us inside that room. Everyone says it`s a room
controlled by the prosecutor.

CLARK: Pretty much. That`s true. I mean, you do have the grand jury
foreman who is there. But that`s another layperson. So really, the lawyer
in charge, and the only lawyer, is the prosecutor. So just the prosecutor.
I personally never liked going to grand juries. Because when I go in to
the grand jury, I have to wear both hats. I have to be the defense
attorney, the defense attorney, as well as the prosecutor. So I have to
stop the witnesses from making comments that are hearsay, and I have to cut
them off. It`s really annoying.

O`DONNELL: You`re also being the judge, you are ruling -- because there is
no judge.

CLARK: Right. There is no judge.

O`DONNELL: You are ruling on what they are allowed to say in that room.

CLARK: Right. And I find that actually I cut myself off a lot more than a
judge does. But it is the prosecutor alone, so you have to trust that the
prosecutor is going to do the job fairly and do the right thing.

O`DONNELL: Based on what we know about this case, which I insist is a
simple case. People are going to be able to talk as long as they want
about how complicated it. But simple shooting, two people in the street,
one gun, you know, one direction of fire. Given what we know about the
evidence right now, what`s your first day in the grand jury tomorrow?

CLARK: The first day I set the scene. The first day, I have the -- as
many witnesses as I can possibly can describe where they were --

O`DONNELL: We can bring three witnesses in there right away.


O`DONNELL: it is not just you making a presentation, this is what we
believe happen.

CLARK: You can make an opening statement. I would make it very brief,
because I don`t want to taint the jury. I don`t want to get the jury
thinking my way.

O`DONNELL: -- eyewitnesses tomorrow morning.

CLARK: Yes. I would say, we`re going to present testimony regarding the
following. And of course, everybody is going to know what you`re talking
about now, so you don`t need to give a big opening statement. And it is
going to be up to you to decide what happened here and whether it was
justified shooting or not.

And I`d start right away, bang, put all the witnesses on that you can. And
I would try and get as many of them as possible to give the jury as
complete a picture as possible. Ultimately, you want to be able to assure
everybody that you have given a total picture so that a fair decision can
be made.

O`DONNELL: Jim Cavanaugh, we hear everyone we can interview on the streets
of Ferguson saying, and Michael Brown`s parents saying the thing that will
calm things down more than anything else is justice, I have certainly the
sense that there`s movement toward justice. You have the district attorney
currently in charge of this case releasing word today that they expect it
to take weeks, and possibly months, which is them saying months. There`s
no reason to put months in there if they didn`t mean it.

You heard Marcia talk about day one tomorrow, just bring the eye witnesses
in. We already know who some of them are. How complicated should this be?

it`s a simple case. And you know, watching your segment about the
prosecutor recuse himself, and the governor having the ability -- I mean, I
think in the home state of Harry Truman, there was bug fest (ph) and it`s
delay is unbelievable and just awful.

And unlike Marcia, look, I`ve testified as a witness in many federal and
state grand juries. I testified as a witness in many preliminary hearings
in federal and state court as a police officer, and as a federal agent.
And Marcia exactly right. It can be a very streamlined process to indict
someone on a case as simple as this. You`re going to have the key
witnesses you`ve seen on TV, maybe a few more. You have a medical examiner
going to come in. You have detectives who are going to come in and talk
about whether shots were fired, what the officer was on call for. What he
was doing there. It can be summed up pretty quick and presented for a true

But the case can also proceed with the complaint and a warrant based on
probable cause, after a prosecutor, like Marcia. I know she`s done it many
times. I have written many, many, many complaints and got many, many, many
warrants. And you go to a federal or state magistrate, and he decide it is
there`s probable cause. So it can have a couple of ways.

O`DONNELL: Marcia, how would you, if you were there, how would you hand
this will case as a district attorney?

CLARK: If it were up to me, I would put it on through a preliminary
hearing like what Jim is saying. And in that case, you have a public
hearing. Everybody sees it. It`s an open courtroom. It`s a probable
cause hearing. So you don`t -- it is not a whole trial. But you put on
all of the evidence so that everyone can see it. And especially in a case
like this, where the tensions are so high and there`s so much mistrust.
The process is critical. It is critical that everyone trust the process so
that you have an outcome everyone can get behind. And it`s necessary. And
whether it is legally required, whether he should be recuse legally or not,
I`m talking about doing what`s necessary to mend the community and give
them a sense of confidence.

O`DONNELL: Yes. You`re the district attorney with jurisdiction over this
community that we`re looking at on television right now that has been
drenched in teargas for several days. You have a different evaluation to
make about your standing in this case, when you see that this is what`s
going on under your jurisdiction.

CLARK: Yes, I agree. Here`s the thing. I understand that the prosecutor,
the D.A., let`s be careful how we use these terms. The assistant
prosecutor is going to present this case, not him. And so, it is not going
to be -- but he may have say over what they present and what they do. He`s
the boss, the ultimate boss.

But the bottom line is, if you`re the D.A. of the county, you want to make
sure that you`re going to do everything you can to heal your community.
And whatever is the best thing to accomplish that, do it. I mean, you of
course, have to go through the process. You have to process this case. Do
it in a way that inspires the most confidence. And I think that you don`t
want to stand on ceremony and start getting ego driven about who`s going to
be the boss and who`s going to do this. Do it in a best way possible for
everyone`s benefit.

O`DONNELL: And no one is suggesting that the district attorney then hand
it over to a process he doesn`t trust. We`re saying hand it over -- OK,
Marcia Clark, we have to break it right here. Sorry Marcia Clark. Thank
you very much for joining us tonight.

CLARK: Thank you.

O`DONNELL: Jim Cavanaugh, we are going to be back with you with more of
this. We are going to be back with more analysis and more coverage with
what`s going on in the streets of Ferguson.


O`DONNELL: That`s live pictures of what`s going on in Ferguson, Missouri.
I`m joined by Lisa Bloom. She`s the author of "suspicion nation, the
inside story of Trayvon Martin injustice and why we continue to repeat."

Lisa, I want to get your reaction to the specific point that the district
attorney revealed today when his spokesman said that Darren Wilson, the
police officer who shot and killed Michael Brown, will be offered the
opportunity to testify to the county grand jury.

LISA BLOOM, LEGAL ANALYST, TODAY SHOW: That`s big. And the question is,
when was the first time that he gave a statement? He should have received
a statement or should have given a statement immediately after the
shooting. By now, a week and a half later, he`s had a chance to review the
autopsy results from the multiple autopsy results, the statements of all of
the witnesses and to conform his story to what they have said.

Listen, if I`m representing a defendant, that`s exactly what I want. But
if he wants justice, he should have given a statement early on.

O`DONNELL: Jim Cavanaugh, the district attorney`s spokesman said that
officer Wilson has been interviewed by investigators. Here`s what we don`t
know. Who were those investigators? Did the FBI interview him? As we
know, it`s a crime to lie to the FBI. It`s a crime to lie to local law
enforcement too under certain circumstances. When, as Lisa said, was he
investigated? Did he write an incident report? There is no evidence that
we are aware of now that he even wrote a report or responded in any way to
his commanders the day he did this.

CAVANAUGH: Right. Normal procedure would be for the officer involved in
the shooting, we had a federal service law departments. You know, within
24 hours, usually you have given the person some time, you know, because
they`re just been involved in the bottom of the bed and distressed. And
you know, it is usually it`s 24 hours and they are interviewed by the
detectives of internal affairs. But in this case, it was the county police
homicide bureau, the county police that would have interviewed him. And
they would have taken his statement down, what happened, the facts, you
know, and like you say an incident report. So he would have given an early
on statement to county homicide detectives.

BLOOM: But Lawrence, consider --

O`DONNELL: We`re guessing that, Jim. Because there is a bunch of
investigators here. They don`t specify. Normally yes, homicide
investigators -- I know what the normal is, but they don`t specify and we
don`t know. And there is a lot of other investigators there. Go ahead,

BLOOM: Consider this prosecutor`s choice to go to a grand jury, what a
gift that is to this police officer, because now he will be testifying in
secret, behind closed doors. If the prosecutor had chosen to go by way of
a preliminary hearing, which is the norm for a felony case, that would have
been open to the public and so the community would have heard what the
officer`s testimony was.

O`DONNELL: Jim Cavanaugh and Lisa Bloom, thank you very much for joining
me tonight. Our coverage continues now with Chris Hayes, who remains live
in Ferguson.


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