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'The Last Word with Lawrence O'Donnell' for Wednesday, December 3rd, 2014

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Show: THE LAST WORD WITH LAWRENCE O`DONNELL
Date: December 3, 2014

Guest: Zachary Carter, Eugene O`Donnell

LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel. You`ll be
interested to know that after your amplification the other night of the
reporting I did last week about the incorrect legal instructions given to
the grand jury in Missouri, that today, we actually got a response from the
Missouri attorney general.

RACHEL MADDOW, "TRMS" HOST: Oh, amazing. Amazing.

O`DONNELL: I think it was your bringing the attention is what we needed to
get that. Thank you, Rachel.

MADDOW: It was your reporting. Well done, Lawrence. I`m glad to hear it.
Good.

O`DONNELL: Thank you.

Well, we continue our breaking news coverage tonight with streets across
New York City lined with protesters, calling for change in justice after a
grand jury decides video evidence is not enough to bring charges against
the police officer who killed Eric Garner.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE: There will be no indictment in the apparent chokehold
death of Staten Island man Eric Garner.

UNIDENTIFIED FEMALE: What kind of nonsense is that?

UNIDENTIFIED FEMALE: Are they looking at the same video the rest of the
world is looking at?

MAYOR BILL DE BLASIO (D), NEW YORK: It`s a very painful day for so many
New Yorkers.

UNIDENTIFIED FEMALE: Garner can be heard repeatedly telling officers "I
can`t breathe, I can`t breathe."

UNIDENTIFIED FEMALE: Garner`s death was ruled a homicide by the medical
examiner

UNIDENTIFIED MALE: There`s a whole range of charges they could have
considered here.

UNIDENTIFIED MALE: The grand jury`s decision here is totally
incomprehensible.

UNIDENTIFIED MALE: There ought to have been an indictment

UNIDENTIFIED MALE: It`s very hard from a legal perspective to look at that
and say no probable cause.

UNIDENTIFIED FEMALE: Here we have video. What else does it take?

UNIDENTIFIED MALE: We`ve got a problem that America has to confront.

UNIDENTIFIED FEMALE: If Ferguson was not a wake-up call, this case better
be.

ERIC HOLDER, U.S. ATTORNEY GENERAL: The Justice Department will proceed
with a federal civil rights situation.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: This is an issue we`ve been
dealing with for too long and it`s time for us to make more progress than
we`ve made.

UNIDENTIFIED FEMALE: Tonight, protests against the decision.

UNIDENTIFIED MALE: At Times Square, already, crowds of protesters
gathering.

UNIDENTIFIED MALE: Some of them as you see within about a block of the
Rockefeller Center Christmas tree.

UNIDENTIFIED MALE: At grand central station, a so-called die-in.

UNIDENTIFIED FEMALE: New York police are braced for even more.

HOLDER: I urge all of those inclined to demonstrate tonight and the days
ahead to remain peaceful.

UNIDENTIFIED FEMALE: It`s a cry to recognize and understood that black
lives matter.

DE BLASIO: They`ve said black lives matter. It should be self-evident.

UNIDENTIFIED FEMALE: We still have hope, and we still have fight to fight
to get justice for my husband.

(END VIDEOTAPE)

O`DONNELL: Here`s what happened to Eric Garner on Thursday, July 17th.

(BEGIN VIDEO CLIP)

GARNER: Don`t touch me, please. Do not touch me.

(EXPLETIVE DELETED)

UNIDENTIFIED MALE: Damn, man.

(CROSSTALK)

UNIDENTIFIED MALE: Put your hand behind your head.

GARNER: I can`t breathe. I can`t breathe. I can`t breathe. I can`t
breathe. I can`t breathe. I can`t breathe.

(END VIDEO CLIP)

O`DONNELL: Today, four months later, a grand jury made up of 23 people
from Staten Island decided not to indict Officer Daniel Pantaleo, the
officer who used an outlawed chokehold resulting in the death of Eric
Garner.

After Tuesday`s decision, Daniel Pantaleo released this statement, "I
became a police officer to help people and to protect those who can`t
protect themselves. It is never my intention to harm anyone and I feel
very bad about the death of Mr. Garner. My family and I include him and
his family in our prayers and I hope that they will accept my personal
condolences for their loss."

Here is Eric Garner`s wife tonight responding to Officer Pantaleo`s
condolences.

(BEGIN VIDEO CLIP)

REPORTER: Officer Pantaleo, for you and also for family members, has
offered you his condolences. Will the family find it in their hearts to
accept it? Would you accept it?

ESAW GARNER, WIDOW OF ERIC GARNER: Hell no! The time for remorse would
have been when my husband was yelling to breathe. That would have been the
time for him to show some type of remorse or some type of care for another
human being`s life. When he was screaming 11 times that he can`t breathe.

So, there`s nothing that him or his prayers or anything else would make me
feel any different. No, I don`t accept his apology. No, I could care less
about his condolences. No, I could care less.

He`s still working. He`s still getting a paycheck. He`s still feeding his
kids. And my husband is six feet under and I`m looking far way to feed my
kids now.

(END VIDEO CLIP)

O`DONNELL: Today, after getting the news about the grand jury`s decision,
President Obama said this --

(BEGIN VIDEO CLIP)

OBAMA: I want everybody to know here, as well as everybody who may be
viewing my remarks here today, we are not going to let up until we see a
strengthening of the trust and a strengthening of the accountability that
exists between our communities and our law enforcement.

And I say that as somebody who believes that law enforcement has an
credibly difficult job, that every man or woman in uniform are putting
their lives at risk to protect us, that they have the right to come home
just like we do from our jobs, that there`s real crime out there that
they`ve got to tackle day in and day out. But that they`re only going to
be able to do their job effectively if everybody has confidence in the
system. And right now, unfortunately, we are seeing too many instances
where people just do not have evidence that folks are being treated fairly.

(END VIDEO CLIP)

O`DONNELL: We`re going live now to NBC`s Anne Thompson who`s in Midtown
Manhattan at Grand Central Station where some protesters have been
gathering since early this evening.

Anne, what`s the situation there?

There`s Anne Thompson in the shot, I don`t know if Anne has my audio.

ANNE THOMPSON, NBC NEWS CORRESPONDENT: Lawrence, hi. Lawrence, I am
sorry, hi. We are here in Grand Central station where the protesters have
come. They went up some escalators and all of a sudden, they came flying
down. It was almost a stampede.

The police chased them. They chased up here, up the staircase here in
Grand Central station, but things seem to have calmed down. Again, we have
heard, as we have all night, cries for justice for Eric Garner. People
chanting that they can`t breathe, "I can`t breathe", just like Eric Garner
said on that tape before he died.

People, tempers here, this is the most testy situation I`ve seen all night.
These protesters have gone all throughout midtown. And for the most part
they`ve been peaceful and very respectful. But here, the combination of
three or four hours of protesting, of commuters trying to get home, and
police, tempers have begun to run a little short here, Lawrence.

Back to you.

O`DONNELL: Anne Thompson, thank you very much for joining us.

We`re joined now for an exclusive interview by Zachary Carter. He is the
chief legal officer in New York City.

Zachary Carter, you were also once the United States attorney for the
Easton District of New York. That is the jurisdiction that has control now
of the federal investigation of this case.

I want to show what the attorney general said today about what is next for
the federal investigation.

We may not have it, I can --

(BEGIN VIDEO CLIP)

HOLDER: Now that the local investigation has concluded, I`m here to
announce that the Justice Department will proceed with a federal civil
rights investigation into Mr. Garner`s death. We`ve always seen the video
of Mr. Garner`s arrest. His death, of course, was a tragedy. All lives
must be valued. All lives.

Mr. Garner`s death is one of several recent incidents across our great
country that have tested the sense of trust that must exist between law
enforcement and the communities they are charged to serve and to protect.

This is not a New York issue, nor a Ferguson issue alone.

(END VIDEO CLIP)

O`DONNELL: Now as it happens, the U.S. attorney for the Easton District,
your old job, is Loretta Lynch, who the president has chosen to now follow
Eric Holder as attorney general. She`s very busy every day preparing for
the most difficult confirmation hearing she`s been through. And now she
has this.

Take us back to, if you were in that position at your desk back there in
the Easton District, and this happens today and the attorney general surely
would have called, you would have had a conversation about it. What --
internally, what is your next move?

ZACHARY CARTER, CORPORATION COUNSEL, CITY OF NY: Well, first of all, in a
situation like this, you would have already been monitoring the state --

O`DONNELL: Eric Holder said they were doing that. Correct.

CARTER: And so, now, it`s an issue of doing two things. One, reviewing
all the information that was developed by the state investigation and then
determining what additional investigative steps you would need to take
independently to complete the record and to help you make a decision
whether or not the federal criminal civil rights laws apply in this
particular case.

O`DONNELL: There`s also an internal affairs investigation going on within
the police department. I want to listen to something that Commissioner
Bratton, this officer`s boss, said just the day after the killing of Eric
Garner, what he promised about that investigation. Let`s listen to that.

(BEGIN VIDEO CLIP)

BILL BRATTON, NYPD COMMISSIONER: It is a tragedy that needs to be
addressed, needs to be thoroughly investigated and reviewed, and questions
answered, and that`s what we`re committed to doing.

(END VIDEO CLIP)

O`DONNELL: So, that`s an investigation that could result in the
disciplining of the officer, the dismissal of the officer, separate and
apart from the federal investigation.

CARTER: That`s correct.

O`DONNELL: And how much cooperation is there in the federal investigation
with the internal investigation going on in the police department?

CARTER: Well, those things will probably be kept separate in order to make
sure that the federal investigation is not tainted by any statements that
the subject officer might be compelled to make as a part of the
disciplinary process, of the internal investigation process by the New York
City Police Department.

O`DONNELL: As a prosecutor looking at that video of what happened on
Staten Island, what do you see?

CARTER: Well, certainly, I see what everyone else obviously saw and has
reacted to. There`s what the commissioner at the very outset characterized
as a chokehold being applied during the course of this attempt to subdue
Mr. Garner and bring him under arrest.

O`DONNELL: The medical examiner said that`s the cause of death.

CARTER: That is characterized as the cause of death. Ultimately, it`s --
it is for the -- it would be for the grand jury to make a judgment about
whether or not given the length of the hold and given the other
circumstances that they would have an opportunity to consider including his
cries for distress, with respect to not being able to breathe. Whether or
not a person in the subject officer`s position should have known that in
continuing to apply that hold that he was likely to endanger the life --

(CROSSTALK)

O`DONNELL: With everything that we see there, including the length of it,
as you mentioned, which is very important, the length of the hold, it
continues after there are several other officers engaged in subduing Eric
Garner. There are several other hold points on him at other parts of his
body. And yet, that chokehold hangs on.

And what I don`t understand watching that is how a grand jury can watch
that chokehold, not be released when there`s all sorts of other constraints
by other officers on Eric Garner, and not say that`s it, that crosses the
line, that is too much force.

CARTER: Well, obviously, it`s very difficult for the grand jury to discern
what the grand jury based this decision on. What we know is that we --
they saw the same videotape we saw and they probably saw it repeatedly.
And they had it repeatedly shown and freeze framed and all the kinds of
things that jurors do when they`re considering a piece of video evidence.

We also know, according to the subject officer`s lawyer, at least as
reported in "The Times" that he testified before the grand jury for a
couple of hours, which probably included some narrative portion, but also
some questioning by the grand jurors themselves. What he could have said
that would have impacted so profoundly on their decision, we don`t know at
this stage.

O`DONNELL: And the officer just had to win a majority of the grand jury,
23 grand jurors. He just needs to have 12 on his side basically to not get
that indictment. As you -- what were you expecting out of the federal
investigation in the Easton district now with the FBI on it and the U.S.
attorney on it? What are the next things we should expect publicly?

CARTER: The next thing, there`s not going to be much happening publicly at
all. If they decide that the evidence is sufficient to present a case to
the grand jury, that will obviously be a secret proceeding, as this was.
And at the end of that proceeding, there will be an announcement as to
whether or not there are charges being --

O`DONNELL: And what are the elements -- what statutes would you be
investigating this under? And what are the elements of the crime described
in those statutes, federal statutes that would have to be met?

CARTER: Well, basically, what you would have to prove is that the officer
acted with intent to deprive Eric Garner of a protected civil right. In
this case, his right to be free from injury -- except with due process of
law, and because there`s that element of intent, it actually is a fairly
difficult barrier.

O`DONNELL: Zachery Carter, thank you very much for joining me tonight.
Appreciate it.

Coming up, city of New York is planning to put body cameras on officers in
three precincts starting Friday. But there was a camera recording the
death of Eric Garner at the hands of a police officer and still a grand
jury couldn`t see a crime there.

And later, Missouri`s attorney general responds to my reporting about the
mistakes the prosecutors made in the Ferguson grand jury.

(COMMERCIAL BREAK)

O`DONNELL: We continue to monitor protests happening right now in St.
Louis and New York City in the aftermath of the news, that there will be no
indictment in the death of Eric Garner.

Up next, policing the police. Why having video in the Eric Garner case did
not make the difference.

(COMMERCIAL BREAK)

O`DONNELL: When America saw its first video of police brutality in 1991,
it seemed as if video could finally change excessive use of force by
police. Until today when a New York City police officer clearly choked an
unarmed New Yorker to death on video and managed to escape any criminal
charges by a Staten Island grand jury.

Three hours before the results of the grand jury investigation were
revealed today, the mayor of New York said this --

(BEGIN VIDEO CLIP)

DE BLASIO: When something happens, to have a video record of it from the
police officer`s perspective is going to help in many, many ways. It`s
going to improve the work of law enforcement. And God forbid if something
goes wrong, we`re going to have a clear understanding of what happened.

(END VIDEO CLIP)

LAWRENCE O`DONNELL: Joining me now is MSNBC law enforcement analyst Jim
Cavanaugh, and former New York City police officer and professor at John
Jay College of Criminal Justice, Eugene O`Donnell.

Eugene, this is one of those interesting examples of the miracle that the
body camera will not be. Sure, it could be useful. It could be helpful in
some cases, and a lot of cases it won`t.

And if you look at the video of Eric Garner, and let`s just for a moment
take out the private, I guess, iPhone video someone made, assume there were
body cameras there. We wouldn`t have seen much. Those cameras would have
been right up close to Eric Garner`s bodies and the other officer`s bodies
and they wouldn`t have picked up very much.

EUGENE O`DONNELL, FORMER NEW YORK CITY POLICE OFFICER: Right. And as we
saw. I mean, it`s really -- a lot of this goes to the mindset of the
officer. And the officer has broad leeway. Apparently in this case, the
officer went into the grand jury, said there was no malice, said it was a
mistake, it was a bungled situation, he didn`t mean this ending to take
place.

And whatever you think about that, that hasn`t -- in my experience, I
presented these cases in grand juries. That`s very powerful and hard to
counteract.

LAWRENCE O`DONNELL: Jim Cavanaugh, when you look at that video, what do
you see? And what do you see from a prosecutorial standpoint?

JIM CAVANAUGH, MSNBC LAW ENFORCEMENT ANALYST: Well, you know, I see a
prohibited chokehold the NYPD has prohibited, going back from all these
cases in the `90s. And clearly, the officer has that arm set deep in Mr.
Garner`s neck and he can`t breathe. Of course, the medical examiner ruled
that.

So, you know, I don`t see this being a great bar to probable cause. Now,
that`s not to say that the conviction would result. I think the officer
has many defenses, as Eugene pointed. He has great lawyers. He`d be
presented by the PBA. And the police officers deserve aggressive defenses
as well.

But probable cause is a low bar. And Mr. Garner`s death is just sort of
left, unless the justice department will pick it up. And of course,
administrative duties as you pointed out, Lawrence, so well, the
commissioner could fire the officer, too. So, the commissioner could fire
him, the city could be sued civilly. And the Department of Justice could
see it as excessive force.

And they can do that quickly. You know, complete and thorough doesn`t have
to be slow and prodding.

So, they have the resources, FBI and U.S. attorneys and civil rights
division attorneys to look at it and make an evaluation fairly quickly,
whether they should proceed with a case on the officer.

LAWRENCE O`DONNELL: Eugene, you`re an NYPD veteran yourself. This officer
on the job eight years and has to settle at least one civil case against
him, $30,000 cost to the taxpayer so far, with one of -- similar case to
this, that did not result in the death. He has another civil case pending
against him.

And we say this over and over again, must police officers never find
themselves in this kind of trouble. And the number one reason they don`t
is not because they don`t encounter situations like this, it`s because they
bring better and cooler Jerusalem to them.

EUGENE O`DONNELL: That`s right. The police profession has to heal itself.
That`s absolutely truth. And whether they have to push to do it or they
voluntarily do it. The legal conversation is a necessary conversation.
But it`s a minimal standard.

LAWRENCE O`DONNELL: Right.

EUGENE O`DONNELL: We need the police on their own volition, a nudge or a
push, whatever it takes, to decide that human life, preserving people`s
lives and respecting people has to be foremost.

And this can be done. It`s been done with deadly force, as you well know,
through policies that are enforced. And that`s the challenge here, both in
Ferguson and in New York, creating a culture where you do not over-rely on
this very broad power that you have that becomes exceptionally rare for you
to have to point to this and say I need to use force and I need this
protection. That should not happen except in the most unusual
circumstances.

LAWRENCE O`DONNELL: Jim Cavanaugh, I want to hear from you and Eugene
tonight as cops, as people who have been there been out on the street, and
this sensation that some try to suggest, police are under siege and it`s
this horribly dangerous job and they`re just on edge all the time. Talk
about what it`s like in these kinds of situations, someone -- you have to
approach someone who maybe is selling cigarettes without the proper
taxation.

What is the kind of attitude you bring to an encounter like that, because
that`s what Eric Garner was suspected of doing, evading the sales tax in
New York City and New York state?

CAVANAUGH: Right. Well, that should be something that`s very easily and
conversational, really. I mean, we need to look at some of these -- to
answer your question, Lawrence, and you framed it right, you know, in
policing years ago, when we would get in a car chase, I mean, we were in
the car chase no matter what. I mean, no matter what the violation was, we
would chase that guy over seven states because we believed we`d have to
catch him. And we`d have a string of police cars going back 100 deep
because nobody we would let get away.

And that was the business of the police for years. And Eugene was around
then and I was as well. But cooler heads have prevailed because we`ve
understood the disasters that come when chasing some guy for a traffic
violation results in a wreck that kills a family.

So, police departments have reined that back in, sergeants will call it
into the chase unless we`re after some violent felon. Well, we need to
think like that, too, on the street.

If you would just imagine, if Officer Wilson in Ferguson had just taken a
step back after the confrontation at the vehicle. As you and I have talked
about. And Michael brown ran away. Just after that, he had already called
for backup, which is 90 seconds away.

Where is Michael Brown going to go? He`s going to the hospital. He`s been
shot. He`s not going to Katmandu on an airline. You`re going to catch
him. Just take a step back.

In Mr. Garner`s case as well, I mean, when he puts his hands like this, OK,
OK, when they get on his back. Take a step back. Take a step back.

In the Cleveland case with the child, if you drive your car in like that,
if you have an escaped felon with a gun who wants to kill the cops, you`re
dead, he`s going to shoot you as soon as you drive up. What kind of tactic
is that?

So, take a step back and be smart we can police better than we`re doing.

LAWRENCE O`DONNELL: And, Eugene, what Jim is talking about is something
that the public has no idea it`s part of police train, which is retreat.
Reasonable retreat in situations where there`s nothing at stake in closing
in on this person. Eric Garner is a good example of that, Michael Brown is
a good example of that.

What`s the worst that can happen? Well, Eric Garner will continue to stand
here a little bit longer. That`s the worst that can happen as more an more
cops surround him. Give him breathing room -- a horrible expression to use
in this situation. But there`s a mythology from TV and movies that it is
like Jim says, it`s chase down, get them at all costs, get them at all
costs.

Talk about the reasonable methods of stepping back and the word "retreat"
and how it is used in police training?

EUGENE O`DONNELL: Well, it should be noted, there are tons of police
officers horrified by this, tons of them.

LAWRENCE O`DONNELL: Yes.

EUGENE O`DONNELL: My heroes in the New York police department some of them
are still there, some still retired, are the people that invariably were
able to solve things peacefully. They were heroic figures. And I saw it
done many, many times.

And the question is, how do we replicate that? How do we make that the
model? Forget the law. The law is a conversation that`s a whole other
comment. But we need to figure out how to replicate that.

There are some people at different fields that aren`t armed that man to
deal with violent confrontations nonviolently.

How do we get that kind of skill set? It`s the police.

LAWRENCE O`DONNELL: And I know when you say forget the law, you mean let`s
have the right laws governing this, but the real change must come in police
culture.

EUGENE O`DONNELL: Go way beyond the law, as they do on firearms in New
York City. They managed to rein into a policy.

LAWRENCE O`DONNELL: A policy stricter than the law, that`s right.

Eugene O`Donnell and Jim Cavanaugh, I could go on and on with you guys,
thank you very much for joining with me tonight. Really appreciate it.

CAVANAUGH: Thank you, Lawrence.

LAWRENCE O`DONNELL: Coming up, an exclusive, what the Missouri attorney
general told me today about what should be done in the aftermath of
mistakes made by prosecutors in the grand jury room investigating the
killing of Michael Brown.

(COMMERCIAL BREAK)

O`DONNELL: We have breaking news from Missouri tonight where the state
attorney general, Chris Costar, has responded to my questions about the
mistakes made by the assistant district attorneys who presented evidence to
the grand jury that investigated the killing of Michael Brown.

The Missouri attorney general says the police Use of Deadly Force law in
Missouri must be changed. In response to my question, to the attorney
general, he said, "Among the problems that Ferguson has brought to light is
the need to update Missouri`s Use of Deadly Force statute. This statute is
inconsistent with the United States Supreme Court`s holding in `Tennessee
versus Garner.` Consequently, it is important this statute is amended by
the Missouri legislature to incorporate the Garner decision and to avoid
confusion within the criminal justice system."

As I have reported on this program, there should be no confusion in the
criminal justice system because the United States Supreme Court clarified
the proper and legal and constitutional use of deadly force by police in
"Tennessee v. Garner" 29 years ago.

I reported last week that the assistant district attorney, Kathy Alizadeh,
provided the grand jury with the wrong law on Police Use of Deadly Force.
The Missouri law that was rendered unconstitutional by the Supreme Court
decision in 1985. The grand jury transcript shows that Kathy Alizadeh
handed all of the grand jurors a copy of the old unconstitutional Missouri
law and said, "It is the law on what force is permissible and when in
making an arrest by a police officer."

But that wasn`t true. That old unconstitutional version of the law said
that it was legal for Darren Wilson to shoot and kill Michael Brown simply
because Michael Brown at some point ran away from him. At the very end of
the grand jury proceedings, Kathy Alizadeh corrected the record by heading
the grand jurors a current copy of the law that included changes made to
that law by the United States Supreme Court in 1985 when the court made it
illegal and unconstitutional to shoot fleeing suspects simply because they
were fleeing.

When she handed them that law, Kathy Alizadeh did not explain to them what
the difference was between the two versions of the law that she gave the
grand jury weeks apart.

For more detail on this, including all the relevant quotes from the grand
jury transcript, you can go to our Web site, lastword.MSNBC.com, to see all
the reports I`ve done on this matter that provoked today`s response from
the Missouri attorney general.

We also got a response today from the district attorney`s office that
presented the evidence to that grand jury. We asked the district attorney
the following questions, how many times has Kathy Alizadeh submitted the
wrong law to a grand jury as its legal framework for investigation? How
many times at the district attorney`s office in general, all of them,
submitted the wrong law to a grand jury as its legal framework for its
investigation?

And is the Michael Brown case the first time, the very first time the
district attorney`s office submitted the wrong law to a grand jury as the
legal framework for its investigation?

As first we got no response from the district attorney`s office. We asked
for a response again yesterday and today the district attorney said, quote,
"not at this time."

Joining me now is Susan McGraw, a law professor at St. Louis University.

And so, Professor McGraw, there`s the district attorney saying at this time
they cannot answer how many times they`ve given the wrong instructions, the
wrong legal instructions to a grand jury. We have no idea how many times
they`ve done that.

SUSAN MCGRAW, LAW PROFESSOR, ST. LOUIS UNIVERSITY: It`s troubling. You
know, this is the only time that that process has been recorded also. So
this is the only time we would have any indication what goes on in these
secret grand jury hearings.

O`DONNELL: Yes, exactly. And I`ve been talking to lawyers in many states
about this. They`re all shocked to a person that this could possibly
happen because it`s such a simple law and they all say that in their states
they can`t conceive of it happening because case law, which is what the
United States Supreme Court element of it is, case law is always included
with the statutes.

Legislatures don`t go back and rewrite their laws every time the Supreme
Court rules something unconstitutional, but what does happen is that case
law gets physically attached in many cases to the statute when it`s used in
courtrooms in any legal proceeding.

MCGRAW: Yes, there`s no way, if there was a jury trial that a judge who
would monitor the proceedings and ensure that the law given to the jurors
is correct would have allowed this mistake to happen. And it`s really just
a reminder that we`re dependent upon the good judgment and goodwill of a
prosecutor in a grand jury because there`s no judge there to ensure that
the correct law is given or the correct procedure is followed.

O`DONNELL: And what`s your reaction to the part in the grand jury
transcript, both times, when she hands the law in the first place right
before Darren Wilson`s testimony, which is a very favorable law to frame
his testimony, and that at the very end she hands them the correction and
she never explains to them what the difference is between those two
documents.

MCGRAW: That`s very problematic. You know, I teach law school and we
spend a whole year teaching law students who have college education how to
correctly read the laws contained in the statutes or jury instructions.
These jurors clearly as reflected in their questions were very confused
about what the law was, what the law was that they should follow, what law
takes precedence.

If one of them asked questions about United States Supreme law over
Missouri law, so clearly, they were very confused. And we`re really trying
to get more information, but it was not forthcoming.

O`DONNELL: What`s your reaction to the attorney general`s response today
saying that it`s time to actually change the statute, incorporate the case
law right into the statute?

MCGRAW: I think that`s absolutely correct. It should have been done
before this happened.

O`DONNELL: Susan McGraw, thank you very much for joining us tonight.

MCGRAW: Thank you.

O`DONNELL: Coming .up, the state of justice in America.

(COMMERCIAL BREAK)

O`DONNELL: Protests are continuing across New York City tonight after
Staten Island grand declined to indict a police officer in the death of
Eric Garner.

Coming up, what New York City`s mayor said about this case and about the
state of justice in America.

(COMMERCIAL BREAK)

O`DONNELL: In Staten Island today after a grand jury decided not to bring
charges against the NYPD officer who is shown on video choking Eric Garner
to death.

New York City Mayor Bill de Blasio said this.

(BEGIN VIDEO CLIP)

MAYOR BILL DE BLASIO (D), NEW YORK CITY: We`ve heard in so many places
people of all backgrounds utter the same basic phrase. They`ve said black
lives matter. And they said it because it had to be said. It`s a phrase
that should never have to be said. It should be self-evident. But our
history, sadly, requires us to say that black lives matter. Because as I
said the other day, we`re not just dealing with a problem in 2014, we`re
not dealing with years of racism leading up to it or decades of racism. We
are -- we are dealing with centuries of racism that have brought us to this
day. That is how profound the crisis is.

(END VIDEO CLIP)

O`DONNELL: Joining me now is MSNBC legal analyst Faith Jenkins, Mark
Thompson, host of SiriusXM Radio`s "Make It Plain," and Khary Lazarre-
White, co-founder of the Brotherhood/Sister Sol.

Faith, you know, I`ve never -- Bill de Blasio has never been a stirring
speaker to me. I`ve never been able to really follow more than a couple of
sentences because he`s never said anything that sounded terribly important
to me. Today, I think, was his finest hour, most important hour as a
public speaker in this city at the moment when -- right after this decision
was announced.

And that line, black lives matter, and the need to say it, I thought was
very powerful and important.

FAITH JENKINS, MSNBC LEGAL ANALYST: Right. And as the leader of this
city, I think he set the right tone. It was a very different tone from
what we saw in Ferguson in the aftermath of the Mike Brown shooting. He
came out and he set the right tone. And he gave examples of how he could
relate to the pain and the struggle that continues in black America when it
comes to law enforcement and black victims not being treated as victims.

And the shooters and the killers of black people not being held accountable
to the same level in other cases. So he came out and he spoke about that.
And I think that in this case today, you know, we realize how far we have
not come since Rodney King, since Abner Louima, and the work that still
needs to be done.

I mean, when you have a like this, when this case first happened, this tape
first came out, I thought thank goodness someone recorded this. Because
had it not been recorded, no one would believe that this actually happened
the way the witnesses, the eyewitnesses said it happened. But then, and so
-- then you have the grand jury, they see the tape, and it comes back no
indictment, even with the recording. We`ve had all these conversations
about body cameras.

MARK THOMPSON, HOST, "MAKE IT PLAIN": Right.

JENKINS: And how they are needed for transparency and accountability. And
here, you have a tape, and it`s all on tape. I don`t see how a person can
look at that tape and not say that man did not deserve to die at the hands
of those police officers.

O`DONNELL: You know, What Faith just said about no one would believe it
without the tape. People would believe it. People who live in communities
where this kind of thing has happened and has happened for decades, but no
one outside of those communities. And tonight on FOX News, there are
commentators saying yes, there should have been an indictment. You know.

THOMPSON: Correct.

O`DONNELL: And the only reason they are getting to that spot is because of
that tape.

KHARY LAZARRE-WHITE, THE BROTHERHOOD/SISTER SOL: That`s right.

THOMPSON: Yes. And it`s incredible for FOX to be saying that. And you`re
right, for those of us who had this experience, that`s why we believe the
story of Michael Brown. Because even without the video, we know what
happens in these situations.

This is a very painful part of our history being relived again. This as if
law enforcement has once again developed an historical appetite for strange
fruit. Our young men are being killed and really essentially lynched. And
these laws being broken. There`s no prosecution for it.

Faith mentioned the body cams. I mean, that lets us know right today, this
was a video, so that proves that body cams alone will not be a panacea.
There`s much more that needs to be done. And not only on FOX News, when we
look at tonight, so many people came out and demonstrated, even during the
Christmas tree lighting downstairs, there were those two competing events,
people chanting whites, I saw, chanting black lives matter. I can`t
breathe, standing up for Eric Garner.

And of course, the mayor`s son is an African-American. This can happen to
any one of us. My son is 12, and I`m mourning the death of Tamir Rice in
Cleveland. This can happen to any one of us. And so this is so, so
important that so many people get behind this and understand that this is a
national problem and something has to be done.

You know, I`ve thought about it, while people were demonstrating tonight in
front of the Christmas tree, Eric Garner`s story is really the Christmas
story itself. An innocent man from a poor and oppressed community,
questioning authority and wrongfully executed.

O`DONNELL: And, Khary, to this line, black lives matter, what that line is
saying is it`s to people who strongly believe and have very strong
historical reason to believe, and actual fact-based to believe, this is not
the way white people die on Staten Island.

LAZARRE-WHITE: That`s right.

O`DONNELL: And Staten Island over the years -- there`s no secret about it,
has been the home of some of the most dangerous criminals of history of New
York, big time Mafioso guys living out there. They never found themselves
in this kind of trouble with police. And so -- and getting across that
racial divide where there`s a part of this country that doesn`t understand
what it feels like to see this happen to a black man, knowing it has never
happened to a white man in that same place.

LAZARRE-WHITE: Yes. I think there are two central issues here. One is
historical, one is extremely current. You know, it reminds me of the signs
people wore in the civil rights movement that said, I am a man, that you
had to establish your humanity.

The inhumanity of how this man was treated, on the ground, saying he could
not breathe over and over again, and no one coming to his aid. This man
thing, this stops now. When you think about historical reality of race in
America, the legacy of how black men have been treated in this country and
black women have been treated for centuries, he says this stops now. And
so the historical narrative is one that many struggle to come to terms
with, but the current reality is that this is also an indictment of broken
windows policing.

A policy of this current administration and of the police commissioner
Bratton that you will attack what are seen as quality of life offenses
because they lead to substantial crime. This man was approached because
they thought he was selling untaxed cigarettes. He`s dead because they
thought he was selling untaxed cigarettes. That is an approach of policing
that is being indicted today.

If we did not get an indictment in the killing of Eric Garner, the
indictment should be on a broken policy called broken windows policing. It
needs to stop.

O`DONNELL: Let`s take a break right there. We`re going to be right back.
Stay with us.

(COMMERCIAL BREAK)

O`DONNELL: We are looking at live images of protests happening right now
in New York City in the aftermath of the news that there will be no
indictment in the choking death of Eric Garner by a New York City police
officer.

Up next, President Obama pushes for progress on this issue, saying it
affects us all.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: As I said when I met with
folks both from Ferguson and law enforcement and clergy and civil rights
activists, I said this is an issue that we`ve been dealing with for too
long and it`s time for us to make more progress than we`ve made.

When anybody in this country is not being treated equally under the law,
that`s a problem. And it`s my job as president to help solve it.

(END VIDEO CLIP)

O`DONNELL: We`re back with Faith Jenkins, Mark Thompson and Khary Lazarre-
White.

I want to go to a moment that -- it`s all -- some of this is all up to the
New York City police commissioner now because they`re doing their own
internal affairs investigation. That could result in dismissal, that could
result in some kind of discipline. And I want to listen to what the mayor
said today about Bill Bratton, the New York City police commissioner.

(BEGIN VIDEO CLIP)

DE BLASIO: My faith in Commissioner Bratton is based on the actions he has
taken over decades. It`s also based on the clarity of his message to all
of us. He gathered his top commanders a few weeks ago. It was well
reported. He said very publicly the department will act aggressively to
ensure that any officer who is not meant to be in this work no longer is.

He talked about those who don`t live up to the values of the uniform, who
are, quote-unquote, "brutal, who are corrupt, who are racist, who are
incompetent." This was our police commissioner making clear his standard,
that people who sadly fit those descriptions would not be members of the
NYPD.

(END VIDEO CLIP)

O`DONNELL: Faith, Bill Bratton grew up in my Dorchester neighborhood in
Boston. He was a Boston cop when I wrote a book that basically brought
down the command staff including the commissioner lost his job over it,
exposing bad police use of deadly force by that department. He`s not
someone who defends every one of these things reflexively. There`s a lot
up to him right now.

JENKINS: Right. There`s a lot of power in his hands. And he understands
hopefully that he has to address the issue of the power that law
enforcement has to use deadly force and how to use that power, how they
engage the African-American community. Because we are seeing repeated
abuses of that power. And where are the checks? Where is the
accountability?

Are we consistently now asking the police to investigate themselves and
have the prosecutors that they work with investigate them and then try to
prosecute those cases?

These cases show us that we need special prosecutors to come in whenever
there is a police shooting, whenever there is a police involved in a
killing in a community? We need those special prosecutors to come in
because we need another system of checks and balances in place.

O`DONNELL: Mark, what would you say to Bill Bratton tonight? You know,
the police unions defend every one of these cases. The most egregious
conduct by police officers, police unions always surround the officer and
protect them in whatever way they can. But here`s a moment for a police
commissioner.

THOMPSON: It is a moment. And I think he really has no choice but to live
up to his word. He said he was -- the mayor said he would act
aggressively.

If I`m not mistaken, when this first happened, Bill Bratton came out
immediately and said that that chokehold was out of order, that`s --

LAZARRE-WHITE: That`s right.

THOMPSON: It`s illegal, you`re not supposed to do that.

O`DONNELL: Said this was a tragedy.

THOMPSON: Right. So, I mean, I think he really has no choice but to
remain consistent to that.

O`DONNELL: Go ahead, Khary, quick last word.

LAZARRE-WHITE: Yes, I think that this issue rests with the mayor at the
end of the day. Many of us are very, very angry tonight, and we have no
reason to have faith in the NYPD`s response to this issue. The mayor
controls the NYPD. The mayor at the end of the day needs to take control
of this issue and respond in a way that is human and just and make those of
us who are so upset this night of all different backgrounds feel faith in
this city again.

O`DONNELL: Faith Jenkins, Mark Thompson, and Khary Lazarre-White, thank
you both very much for joining me tonight.

JENKINS: Thank you.

THOMPSON: Thank you.

O`DONNELL: Our live coverage continues now with Chris Hayes.

END

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