>> since when? since when did the republican party become the party of the working man this is what drives me crazy. >> like apple knows how to make my eye twitch. this is the thing that makes me a good question, though. >> i mean, i'm asking you since when? >> no. look, i worked no tax on tips, no tax on overtime it drives me crazy because there's only so many rich white guys and republicans who could vote for them. >> so they got to go figure out how to get workers. and it's smart as a strategist. >> it's smart because we don't know how to. i've been banging this drum. you don't know how to communicate the democratic party has no idea how to communicate to normal people anymore. >> every community has got a master's degree, has a wrong. >> well, i have a i'm a consultant, i have a master's degree, and i don't do have it figured out. but i also know how to speak to people like they're normal and not like i'm sitting there. focus grouping, talking to you in one way because you're a latino guy from texas and talking to you in a different way. >> i mean, she raised one point up to the general public. >> it would be there. >> she raised 1.3 billion in 100 days. >> let me give you let you get in here. the hard truth is that democrats need to marginalize the people on their fringe. >> the people

center. >> all right guys, great show. thank you very much for being here. and thank you for watching newsnight. laura coates live starts right now a manhunt is underway for the assassin who took out one of the most powerful business leaders in this country. >> unitedhealthcare ceo brian thompson, shot in cold blood this morning in what police say was a targeted attack that happened in one of the busiest places on earth, midtown manhattan. this was more than 16 hours ago. the suspect caught on this very video could now be anywhere. police are scrambling to analyze everything from shell casings to a water bottle, trying to figure out who he is, where he is, and why he did it in a

moment, you'll hear from our team of experts and law enforcement analysts who are covering every angle of this story. but first, the brand new timeline we've put together this evening, starting with this within the last hour, we have learned the suspect appeared to leave the 57th street subway about a half hour before the attack. the washington post obtained this image from that station with a time stamp of 6:15 a.m., two minutes later, he was at a starbucks just two blocks away from the shooting. we know that because law enforcement released these images showing him at the counter of the coffee shop, his face was mostly covered and he was carrying a backpack. now fast forward to shortly before the shooting police say the gunman was lying in wait for several minutes outside the hilton hotel. the new york times obtained this footage showing the suspect arriving in the area at least ten minutes

beforehand. he appears to be making a phone call and then at 644, thompson left his own hotel across the street and walked toward the hilton. he was going there to prepare for the company's investor conference, set to begin at 8:00. seconds later, the gunman comes from behind and opens fire. you can see the moments before thompson got shot in this surveillance video he is in the blue jacket the gunman walks up. he's calm. he raises his gun and fires. now, if you look closely, you'll notice the gunman appears to be using some kind of a silencer. thompson was initially shot in the back and then this happened the shooter then walks toward the victim and continues to shoot. >> it appears that the gun malfunctions as he clears the jam and begins to fire again immediately after the suspect took off. >> you can see him running across the street we're

learning that he may have dropped some vital clues, including a cell phone and water bottle. now, police say he fled through an alleyway between 54th and 55th streets. and at some point, shortly after, he got on an electric bike. now, this was the image released by the police. sources tell us authorities have video of the suspect in upper manhattan before the shooting. that appears to show him carrying an e-bike battery. the gunman then rode up sixth avenue and was last seen riding into central park at 6:48 a.m.. we begin tonight with john miller, cnn's chief law enforcement and intelligence analyst. he was also formerly the deputy commissioner for the nypd. also here, ed davis, a former boston police commissioner known for overseeing that manhunt after the boston marathon bombing. glad to have both of your expertise. i'll begin with you, john, on this, because you have some new reporting tonight on this incredible investigation.

what are you learning? >> they've really been focused on the video canvas. what? they're trying to do is figure out can they, through video pick up where the suspect went after, where the suspect came out of the park and maybe follow the suspect to home or somewhere. that could be the origin and then can they go further back in that timeline and and find his way back? they don't know who they're looking for. they don't know who. the man behind the mask is, but they're trying to reconstruct his movements while they wait for the kind of testing that they'll get from the water bottle and from the phone, which may take some time. >> in fact time is of the essence. right, ed? because the manhunt that you oversaw for the boston marathon bombers that took five days, we are really in the infancy hours from the shooting. what should the nypd be doing right now in this now, what 17th hour of this manhunt well, i've worked

closely with the nypd over the years including john miller and they know exactly what they should be doing, which is looking at all the video. >> unfortunately that's a labor intensive job and it takes days to put that timeline that john spoke about together. right now people are poring over thousands of video inputs from all over midtown, and then as they follow that suspect further away, that net gets wider and requires more personnel. um, it takes a few days because it's it's a very manual process i mean, you mentioned, john, that cell phone, that water bottle it's believed to be the suspect's, although we're not entirely sure. >> obviously, in this just 17th hour of the investigation, they were found in the alley where he fled from the scene. this is going to be labor intensive to try to identify and maybe

prints or any dna. it would have to be somebody who's already in a system of sorts. how intensive will it be even having those two objects to try to figure out the man behind the mask? >> well, this is a lot more evidence than they have in some cases. for every shot he fired at the victim there's a shell casing they can run that against other shell casings that were found at other crime scenes and see if they get a ballistic dna match. has this gun been used in another crime? that is in the annals of the nypd, where they can say, we have a suspect in that case, maybe it's the same guy at the same time. every time the gun jammed, he ejected a live round which has not been fired so he may have touched those. he may have left skin cell dna. he may have left a partial print. and those contain other kinds of evidence. the bottle may be dna in the phone. if it's a burner, maybe we'll find out in that video where he's walking with the phone to his ear. who was he talking to at that hour of the morning? was it about this?

and if it's not a burner, it may have his whole life story in it. so these are the things we're waiting for. but you know this, laura from your work in the justice department, you know, you try to break into a phone. if you do it the wrong way, you can have the phone wipe everything. so they're being very cautious about their approach. they have people who do this and they're pretty good. >> and of course this is something that they know that if they don't get it right in this instance in these early hours of an investigation, they could go down. rabbit holes that could lead them to dead ends. and the suspect fled from the scene on an electric bike. then the trail goes cold in central park with people who've been there know it's quite the maze in and of itself, and although it's early in the morning this is the city that never sleeps, so how far do you think he could have gotten? do you expect that he might still be in this city? >> i would say, you know, he appears to be very familiar

with these areas and how to move around them and how to exploit these things. it's entirely likely that wherever he's running, it's right here and when you look at that and think about how to oversee and work with it, i mean you've got the electric bike, you've got a battery, you've got them seen in other places, for example, coffee shop starbucks, and then you know that this is tourist season in new york. >> and of course somebody with a mask on post covid is not going to stick out like a sore thumb. and when you look at this, what are the pitfalls to avoid well when i think back to the marathon investigation, we thought those individuals had fled attempting to make a getaway there's an urgent parallel investigation going on right now on motive. >> and one of the things we can't forget is like the marathon bombers these guys were not finished. they continued on their rampage built more bombs, attempted to do more attacks and commit more

carnage. i think that creates urgency in this situation. you have to look at the means of egress and try to find out where they went. but you also have to look at what drove this attack and hopefully head off anything else that might happen. >> oh goodness, god forbid ed davis, john miller, thank you both. we'll be following just like you all this incredible story this morning as it continues to unfold. who is the man behind that mask? where is he? why did he do it? was anyone else involved? now, you might be asking of course. who is brian thompson? the victim in this case? he had been at unitedhealthcare, the nation's largest health insurer, since 2004. he actually rose through the ranks and was appointed ceo in 2021. and he helped boost his company profits and his total compensation package last year was just over $10 million. many people who work with him well, they are singing his

praises, one former unitedhealthcare executive says he was a whip smart and affable guy who didn't forget those he worked with in the trenches. and that's the same way another former colleague who worked with him during covid describes him he was everybody's huckleberry. >> he came through when we needed someone at at most. i mean, if nothing else, i don't know if his sons ever heard the story of what we did, but he he helped so many people. i mean, there's family that know him and talked about him just wonderfully now thompson and his company had run into some legal trouble recently apparently, he was sued back in may of this year for alleged fraud and insider trading the lawsuit claims that thompson and other unitedhealth group executives schemed to inflate the company's stock. >> how by failing to disclose a justice department antitrust investigation into the company, it alleges that thompson knew about the investigation and

sold 31% of his company's shares for a $15 million profit. now, 11 days later, the investigation was made public and unitedhealth's stock sank 5%. now, even today, that lawsuit remains active thompson leaves behind two sons, his wife telling nbc news today that her husband had been receiving some threats but didn't actually know the details around them. but it all raises the question who would be motivated to carry a crime like this out? and in this way? joining me now is candice delong. she's a former fbi profiler who is the host of the podcast killer psych. psych. i'm glad that you're here, candice. thank you so much for joining this story is captivated the nation and with good reason. i mean how, who, when where, why? the big question of course. what kind of person would you think as a

profiler and investigating this might want to kill a ceo brazenly in really broad daylight in the middle of new york city well clearly. >> and this is obvious, who someone wanted him dead without question dead. so for me, as a profiler, motivation helps point the investigation. if we know motivation, then that will help weed out certain people and for me, what i'm seeing here is anger possibly as much as hatred and revenge as probable motivators. the three most common motivators of murder are jealousy revenge and personal gain. money i think we can on the surface, rule out personal gain, jealousy. well, we don't know about this

guy's personal life, but it seems to me because of his position as the head of a health care agency and a lot of people in this country are suffering health issues and medical bills and, and, uh ridiculously high premiums. they might be angry at someone running a health care insurance agency. and yet a lot of it, a lot of potential, uh right. >> i think absolutely. and just as you point that out, i was thinking to myself, you know, there are a lot of ceos in this country who are very well known. their faces perhaps covering the news for a variety of reasons. he might be known as compared to some relatively obscure the idea that officers believe that this was targeted really has people wondering if, in fact, what you're saying is absolutely the the way and the

reason for doing so. but it's also what happened, the manner in which this was done. candice, it doesn't seem like we don't have audio of that but it doesn't seem like the gunman even said anything. maybe even came face to face before he shot him in the back. does the manner in which this was carried out and the positioning of the shots, does that tell you anything about the shooter or their relationship well what it tells me, uh not necessarily about the relationship i frankly would be surprised if it turned out that they had a previous, uh relationship where they actually knew each other face to face or spoke with each other. >> that would kind of surprise me why it. well, he snuck up behind him. he wanted him dead. he accomplished his mission, and then he fades into the early morning hours

it just it's hard to explain, but it doesn't seem that way to me. what it seems that way. you know he. you're right the average american probably would not recognize this name but unitedhealth employees, it is my understanding 100,000 people and insurers 100 million americans. that's one third of the people in america are insured by unitedhealth. the potential there for lots of people that would be very unhappy. clients if you want to call them that, subscribers customers, uh very unhappy with unitedhealth. probably tens of thousands of people so the pool is big that makes it very hard as an investigation, right. >> if that pool can be that big, trying to narrow down all of that information and also we're noticing about the potential of a silencer on this weapon as well and the proximity

lying in wait. there are a lot of unanswered questions, but the biggest one, perhaps tonight where is this person? and who is it? maybe even the motive. parallel to all those conversations, candice delong will continue to lean on you for your expertise. thank you you're welcome. still ahead, a closer look at that murder weapon and the silencer that was used a firearms expert will join me and has a very interesting frame by frame analysis for us all and later pete hegseth on the hill on megyn kelly his mom on fox all to try and save his nomination. did it get him anywhere you only come across an artist like luther vandross once in a lifetime. >> he was a boss from the beginning. luther said, i have a sound in my head. i got to get it out you are my shining star. >> my it was the most exciting

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just a few taps download the app today. >> cnn heroes, an all star tribute sunday at eight on cnn so what about the gun and that silencer that seems to have been used by the shooter, who took out the ceo for specifics on that, i want to bring in stephen kotowski he's a cnn contributor and gun safety instructor and firearms reporter for the reload dot com. >> stephen, i have been looking into this story all day and you see almost clearly that he's using some kind of a silencer. what else can you tell by examining the video? >> yeah, there's a few big takeaways you can get from looking at this video. it's obviously a bit blurry and granulated, but there are a couple of key things. and one of them is the type of gun that he's using, which you can see from the immediate after the shot is taken. one one key piece of information that we get is that this is a semiautomatic pistol. and you can tell that because and i

believe we're going to have a yeah, here we go. a side by side here on the left is before the shots taken on the right is immediately after. and you can see on the right where i suppose it's on the left of your screen. my apologies, but you can see that the slide has moved back a little bit it's obscuring his, the white of his hand a little bit. so you can tell that the that there is a slide, it's a semiautomatic firearm. he takes a shot it's. and the next interesting bit of information we get from the video about the firearm he's using, that may give us some insight into the kind of person behind the trigger here. is that this gun is not set up properly. oh, yeah. >> he's tapping something. is it appearing to malfunction here? >> yes. it's malfunctioning. and the interesting bit is that he seems to know that it's going to malfunction, meaning that he must have shot this gun beforehand. and this setup that he's using and understood that it isn't cycling the gun properly because what does that mean on a semiautomatic pistol like this? every time you take a shot, as long as you have ammunition in the magazine, it should eject the spent round

and load a new round in on on its own, without your assistance. and in this case, it's not doing that. and he knows it because he immediately goes to manually load a new round in. and he's not surprised by the fact that it's not functioning properly which. so that tells me that he understands that this gun is not set up to work the way it's supposed to work the way that he tapped it. >> does that tell you something about his proficiency level? yeah. >> you know, he clearly has maybe an intermediate level of proficiency with firearms he understands how to clear a malfunction to some degree. the reason he's tapping the slide at one point that you see is it's after a couple of times where the gun doesn't fire when he pulls the trigger because he tries to take about five shots, he only gets off three shots. and the reason you would tap the back of the slide on a semiautomatic is because you want it to go fully into what's called battery, meaning a semiautomatic firearm. any modern one won't fire unless the slide is all the way forward. it's a safety mechanism. and so if you're

having trouble, that's one thing that you could do. although most people are trained to do what's called tap and rack, which is where you tap the magazine to make sure it's fully seated. and then you rack the slide to get a new round in to clear whatever malfunction you have. and then you continue shooting. he doesn't. he's not quite doing that, but he has some level of proficiency. clearly, he's not a beginner, but also i'd say he's not an expert. he doesn't even seem to know how to set up this gun to operate the way that he wanted to. and he just kind of went with it anyway. it was very strange to me. >> and yet he knew the process and the mechanics. >> he knew what it would take to clear. he knew what it would take to correct a malfunction. but he also used it in spite of it and knew what to do. but what about the silencer aspect of it? i mean, somebody was, according to the video, we have, was near the victim. he wasn't from far away. when do you use a silencer and what does it tell you that he used one here. >> that's another oddity to this. to me, it kind of gives off the vibe of somebody who's maybe watched a lot of movies about how an assassination is

supposed to play out, and because you use a silencer, really, the industry likes to call them suppressors, because silencer is kind of a misnomer or a marketing term, really. it doesn't actually make the gun silent. it's not like in a movie or a video game when you shoot in this case, a nine millimeter through a silenced silencer, you're still going to hear a pretty loud sound. it's still going to be a decibel level of something like a jackhammer or a plane taking off so it's certainly less loud than unsuppressed but it's, i think, for people at home. a good analogy is a muffler on a car. it's literally the exact same technology invented by the same person, and it performs the same function, which is that if you if you ever heard a car without a muffler on it, it's much louder. but if you put a muffler on it, it doesn't mean that it's the car is silent. then it's similar with firearms they're illegal in new york state. >> they are obviously right. and so the idea that it's being used is it does it look like a silencer that you have seen before or one that's constructed it's hard to tell. >> the video is very blurry but

it could be a homemade silencer, you know, a cobbled together suppressor, maybe from an oil an oil filter is one way of doing that it's not as good as a as a commercial one, but it could work in a pinch and it's and that could be why it didn't function properly. why the gun wouldn't operate the way it's supposed to. it could also just be that he has a commercial suppressor silencer that he bought, and didn't know how to set up on the gun properly. it's hard to say. i mean, he's he's also using from the pictures that we have full metal jacket rounds, the bullets he's using are bullets that you would use for target practice on the range. not, you know in a counter where you're shooting at somebody. generally you're using hollow points in that situation. so these details kind of tell you why is that. because hollow points will expand on impact. and they're they're more likely to to stop someone in full metal jacket go straight through. so it's a lot of signs that point to maybe this guy wasn't an expert, but he knew he knew something about guns. maybe not

an expert. >> stephen kotowski, there's a lot of questions. thank you for your expertise tonight still ahead the high stakes daniel penny trial. did the jury just give us clues about what they're stuck on? heading now into day three. plus, a full court press by pete hegseth on capitol hill even his mother is calling senators to try and keep his bid for defense secretary alive. and there was one senator he really needed to impress. diddy the eight word response from senator joni ernst and what it might mean for his chances next cnn heroes on all star tribute meet and celebrate the honorees, then find out who will be hero of the year. >> plus a special tribute to michael j. fox cnn heroes, an all star tribute sunday at eight on cnn nobody's born with grit. >> rose is really struggling. >> it's something you build over time. it's 21 missed cuts

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and get $50 instantly. prize picks run your game. >> listen to chasing life with me doctor sanjay gupta. wherever you get your podcasts i can't wait for fbi

investigation. >> i can't wait how soon can they start? really? yes because that gives me an opportunity for them to do a real investigation. so what the media is doing right now is a is a witch hunt it's trial by false accusation and lies. the fbi is going to look through what and if they do their job properly, which i fully expect, they will, they'll talk to everybody and get the full story and a full understanding. that's a report i welcome a defiant pete hegseth vowing to fight like hell for the defense secretary nomination. >> this as trump is reportedly considering a plan b floating governor ron desantis, senator joni ernst as potential replacements. i want to bring in politics reporter for semafor shelby talcott republican strategist lance trover and democratic strategist amisha cross glad to have you all here. let me just begin with you, lance, on this because hegseth is saying that trump is still very much behind him and hegseth is promising to stop drinking if he's

confirmed. is that enough for the skeptical senators? >> we were talking about this backstage. >> it is interesting. i mean, the trump people are going all in for him. they're very committed to him. it would seem at this point. i know there's other names that are leaked out there. i think what bothers me most about this are the anonymous sources that keep popping up. and i just think from a journalistic standpoint, i saw that nbc story today that was just littered with a bunch of anonymous sources. and i would think you're talking about a decorated veteran who's up for one of the biggest jobs in this country. if you are that concerned about this guy and the job that he's going to do, put your name on it, put it out there. and i'm actually kind of surprised it passed muster at nbc that it would be all just anonymous sources. that's what really bothers me. and i think that's a lot of what he's referring to right. here are a lot of these people aren't putting their names in terms of if these concerns that they have about him. >> well, okay take away the anonymity factor. is it still relevant to have the claims investigated? if there was no nda, would you welcome that person to come forward and say their piece? >> well, these are very serious allegations. of course they're relevant. but that's why we

have a process in place. i say this all the time. we have a process. that's why he says himself. he wants an fbi investigation. he wants to go through the process. i think we should let that play out. i'm just saying i don't think it's helpful to have a bunch of anonymous sources and stories out there i don't think it serves the voters very well i don't think it serves him very well. i don't think it serves the senate very well, and it just creates a lot of confusion, especially when the following day, as in this morning, you have many of his coworkers coming out saying none of this is true, but trump doesn't seem to be bothered so much by the anonymity factor that you're describing. >> i mean there's a reporting from new york times, maggie haberman, reporting that trump is telling people close to him that he might like the idea of governor ron desantis replacing him. and resurrect him from the job is it a matter of time, then, if trump has not been very vocal yet in defense of him? >> i think it is definitely a matter of time. um trump does not like to have his picks over be overshadowing themselves, and i think that this has carried in much longer in the

news cycle than he would have hoped. he just got out of seeing this happen with another one of his picks that had to step aside. i don't think he wants to see it happen this time none of this would have happened, to be honest, if he had had the fbi background checks in the beginning, because there are things that have come out about hegseth that probably would have been known before announcing, before announcing it. and i think that that would have been a very important step for him. but i also think the media is latching on to the wrong things here, because the anonymous sources don't i don't think really matter as much as the fact that this is someone who is not qualified for the position he has been appointed to, and moreover, the one source that is not anonymous is the woman who went through the process of actually going to get a rape kit. and there's information about the allegations that she has against him that i think are very severe things at which not only question his character, who i could care less whether this man cheated on his wife, that's his that's his wife's issue. that's a family issue when it comes to actually attacking a woman. that's something we should care about when it comes to managing one of the largest forces this nation has ever seen. we're talking millions of people, millions of people. he has

never managed over 15 people. and a budget that is the size of of the one that he would have there like these are things that come to question in terms of him being able to even achieve the the basic tenets of this job. he's just not qualified for. >> and that's why i think, i think part of that, though, is wrapped into these allegations for at least some senators to wonder the veracity of them and how it might impact morale and leading the defense department. one person in particular, senator joni ernst who has led the charge on sexual assault allegations and rooting it out in the military in particular, there's a huge meeting today. they had it was 45 minutes long in response, here is what she had to say it was a frank and thorough conversation engaging, constructive conversation i would want more. i want to know what else happened. this is a very important meeting. obviously, it's close to the vest, but what do you make of that statement? >> yeah, i mean, it seems clear that joni ernst has not been convinced to back pete hegseth. and i'm not surprised, quite

frankly, because again, she does have these personal experiences with allegations that are similar to what pete hegseth has faced. i also think it's interesting, you know, she is not the only one who is skeptical of pete hegseth right now, and i think it's notable that pete has gone and done this media tour because no other cabinet nominee of donald trump's has been on the media. that's notable, right? because a lot of them are good in front of the camera and they picked him in many ways for that reason. exactly. and so i think it's sort of indicates that this is a last ditch effort for pete. and these next few days have to go really well. when i talk to people inside trump's orbit, they're hoping that he can sort of last through the week and then hopefully you'll get through the weekend and the senate will be out and it'll sort of calm down at the same time. you know, i think that there's skepticism that he is is going to make it all the way through. but again, you hear pete saying he's in it. he's going to stay. he's going to fight. that's always what we

hear. we hear that up until the moment that they drop out. >> well, megyn kelly asked hegseth flat out about the allegations. and by the way, some senators had their day. they didn't talk to him about these allegations. and why he actually paid the woman who accused him. listen did you rape a woman in a hotel in monterey absolutely not absolutely not. >> i paid her because i had to uh, or at least i thought i did at the time i was newly married. i was up, up for potential jobs in the administration. so my profile was higher. we were in the middle of a metoo movement. i had a great job at fox and a wonderful marriage and i did it out of i mean, it's not what i should have done but i did it to protect that is that going to be enough to cure some skepticism or the interest in this for the senators who are key to deciding if he'll be confirmed i mean, i think that's a question for the senators. >> i you know, he has denied it time and again, there were no

charges brought. i think it's always important that that we get that out there every time. and he has vehemently denied these charges. and so i think look, he's got to go out and make his case like he's doing now. i mean, i think he has no other choice but to go out and step out in front of the media and do some of these and, and continue talking to senators. i know he has more meetings lined up next week that's what he has to do to continue to try to win. well the the nda impact, the ability it's one side of the story is there's an nda in that particular case. >> oh, absolutely i think that it does harm. it does more harm. on the other side because she cannot speak out as a as a victim. but i also think that there's enough there there in terms of we've seen some of the some of the allegations from the report itself. we have seen some things that were said by the by by the visiting nurse who actually went through the process when she was going through the rape kit. i think that at this point there are people who are saying, hey, this is a legitimate thing. whether you believe in his guilt or not, we have somebody in donald trump who was also accused multiple times of

sexual abuse and sexual assault at the end of the day, how many people do you want in his administration to have these same types of charges? >> i will say to reiterate there has not been any charges filed against him these remain allegations and his mother has come out to talk about her email and saying that dear female senators, listen to him. so we'll see how all of this plays out. thank you everyone. thank you america. bracing for a verdict in the daniel penny trial as jurors get set to enter day three of deliberations so what is the jury weighing exactly? well, we've got some clues tonight from the three requests they made today. that's next plus, the veteran who once stopped a terror attack on a paris bound train. he joins me live with his unique perspective on the case against his fellow veteran daniel penny this holiday season, find the perfect gift at cnn. >> underscored from the latest fashion to expert approved tech

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you can keep doing. you stop luther. >> never too much new year's day at eight on cnn for a second day of deliberations done and still no verdict. >> i'm talking about the jury who is right now deciding the fate of daniel penny. that's the former marine on trial for the subway chokehold death of jordan neely. it's a case that, frankly, has divided new york city. it has sparked nationwide debates about public safety and mental illness and homelessness, and how race and self-defense plays into all of that. penny is charged with second degree manslaughter and criminally negligent homicide. jurors today seeking a second look at evidence and testimony given during the trial. i want to bring in former manhattan prosecutor jeremy zealand. jeremy, good to see you here look, any time a jury asks for information prosecutors and

defense want to know why they've asked now to review bystander and police video. at the heart of this case including penny's interview with detectives and the video that mostly shows most of the nearly six minute restraint. what does this tell you about their deliberations? >> the jury at first wanted to know the charges, and they were going to say, well, you know, let's bypass that and get to see whether or not these crimes were committed. but now, hearing these questions, we know they're looking at two other relevant and important elements, which is the causation factor and the justification factor. because causation, you have to get that to get to the next stage of justification. but if you think there is that i did it, i did something wrong you can skip to the part where you go right to the charges. so they're getting into the meat of it which sends something to both prosecution and defense. i don't know what they're thinking. it could be one juror, or it could be all of them and of course, unanimity is required here. >> and the jury also asked for part of a city medical examiner's testimony that was

the final witness for the prosecution, by the way who concluded that the chokehold that was used by penny was what killed nealy. now, keep in mind, both sides called up different forensic experts during the trial, and they disagreed whether the chokehold was the cause of death or something else. why do you think the jury wanted a refresher of that specific testimony? >> you know, that's an interesting question. and again, that's a causation issue. was that death cause as the m.e. or the medical examiner said, i don't need to know whether or not there was a drug test for fentanyl or whatever. it may be in his system. i know that that compression ultimately is what killed mr. nealy whereas on the other side, the defense said, well, it could have been something else. it could have been that there was k2 in his system. it could have been the mental health issues. there are many factors. so they're now going straight to the semi. and does that mean, again, does it one person who thinks that there's an issue or there are multiple people say, was it a direct causation because of the choking that is alleged to have occurred? >> and of course what did he know at the time? not the sort of hindsight being 2020, what

did this defendant know and what did he actually do at the time? look, if he is convicted, he could face up to, i think 15 years in prison on that top charge or face no jail time at all. that's up to the judge. of course, the prosecution actually specifically brought that up in court yesterday, making note to the jurors and the defense was all over it how detrimental. i mean i can't imagine as a prosecutor having raised something like that, but could the mention of a sentence during closing arguments, how could that impact the outcome of this case? if convicted or not? >> i would blow a gasket if i were the defense in this case. that is that is really wholly inappropriate it's a no fly zone. it's verboten. you can think of a lot of words, but one of the words i'm not going to use is a sentencing in anywhere at this stage in the process, that's if and only if there's a conviction. is that something grounds to challenge it later on? i don't know but it's certainly grounds to make a stink as a defense and say that is not up for the jury to decide. that's not at all. is

that because that we want to try to infiltrate or penetrate that maybe we'll call it that ethical barrier and try to get them to think, you know what, you can still convict if you're worried about him going to prison or jail, don't worry about that. you can still convict. and if that is why it was done, that's wholly inappropriate. >> yeah, i mean, look at that. and you could look at that and say, i wanted the jurors to look as only fact finders. your job is not to think about sentencing at all, but the wording of it and how you conveyed that is what is going to be looked at by the judge who ultimately will decide any sentence if there's a conviction. so they're going to parse through how that was stated, whether it was inappropriate, unethical or otherwise. but if he is convicted and there's still an if right. do you think that penny will get jail time? >> you know, if he's convicted of manslaughter in the second degree and this recklessness i don't see how he doesn't get jail time. and by jail, meaning prison, you know, whether that's 1 to 3 years, whether that's something more than that, up to 15 years, as you noted there's a dead man.

doesn't mean that it was an intentional, malicious act, but there's a dead man and there's consequences for that it doesn't mean that you can't stand up for people all around you and protect others when you're justified to do so, but there's a limit, and there's consequences when you breach that limit. so yes, i would expect it would not be shocked that they would ask for some sort of incarceration. i mean, a judge and sentence. >> it's also about deterrence for others, but also the penalty for the person who has committed it. and i think it's a the balance that has to be struck. we'll see what happens in this case after day three coming soon. jeremy, thank you so much. my pleasure. my next guest, he had his own harrowing experience on public transportation. he was one of three good samaritans you might remember, who helped to avert a massacre aboard a high speed train that was en route to paris from amsterdam back in 2015. at the sight of danger, they bravely charged, they tackled and they subdued an armed terrorist. oregon state

representative elect alex skarlatos joins me now. alec. thank you. i remember what happened so well, as i'm sure you certainly do. and when you look at the facts as they have been presented in this case, how do you see his actions well, i'm a little biased, having kind of survived something vaguely similar um, but no, i think he's absolutely justified in what he did i mean, he handled the situation that was presented to him. >> he wasn't going out looking to choke someone to death. he just reacted to a situation that jordan neely caused in that subway car and he reacted in a way that he thought was appropriate. and frankly if he had waited until police arrived, police probably would have reacted the same way. >> you think so? i mean that's that's really, i think really the heart of the matter and deliberations behind closed doors if i had to speculate as to what jurors are thinking about, how about that part of deterrence? there are a lot of

people debating this very issue about what a potential guilty verdict might signal to good samaritans, or somebody who sought to intervene in something. what signal would that send to you and to other americans if he were found guilty? >> well, it makes me think that if we stopped our terrorist attack in new york, we probably would have been charged. i mean, i tried to use the terrorist handgun against him to try to shoot him in the back of the head when we nearly had him restrained um, that doesn't comfort me to want to go to new york and risk running into the same situation that daniel penny is running into i think good samaritans across this country are going to be thinking twice especially if they live in a blue state. as to whether they want to intervene and try to help someone when there's a pretty significant chance that a da decides to charge them with some sort of a crime. um due to some extenuating circumstance, you know, some

would look and think about the two circumstances. >> what you grappled with and what this particular defendant grappled with quite distinct albeit there are the obvious parallels drawn. but what you went through and what happened on the train in new york, i mean jordan neely wasn't armed. um, was not a terrorist as the one that you confronted does that change the calculus for you at all no absolutely. >> i mean, and daniel penny didn't pull out a gun and try to shoot jordan neely in the head either. i mean his response was exactly proportionate to the threat. um that's something that they discuss on law enforcement quite frequently. and i think that, um, again, if law enforcement had arrived on scene, they would have used the same kind of restraint method um, or tased him, which might have ended up worse. um, but i just don't think that anyone could have realistically put themselves in that position and expected them or anyone else to act any different than daniel penny did and i think that's

why he's going to be acquitted. or at least should the prosecution agrees in part with what you've said, that that they believed he was a kind of good samaritan, but that he went too far. >> he was perhaps justified, perhaps in applying the chokehold. but it continued to the point of death. is there a line blurry at best, where it goes from somebody justified in what they're doing to going too far? where accountability should be expected no absolutely. >> i mean, i don't disagree with you there. um, the question is, if that happened in this case and frankly, i don't think it did. i mean, this was far from malicious. um, i don't think again, daniel penny went out looking for something like this. um, this was just a good samaritan trying to do something good and it unfortunately played out the way it did. i mean, it's it is a sad situation. um but again,

i don't know how daniel penny could have handled it any other way while still trying to keep himself and those around him safe to be a fly on the wall in that jury room. >> i wonder if they're making the same analogies about what would it look like if it was law enforcement involved instead of him? alex skarlatos, thank you for joining. >> thank you. >> and hey everyone. thank you for watching. before we go, there may be a manhunt underway, but new york isn't shutting down the tree lighting at rockefeller center going off without a hitch tonight clearly, it pretends to be a happy holidays to all. anderson cooper 360 is next cnn heroes, an all star tribute meet and celebrate the honorees then find out who will be hero of the year, plus a special tribute to michael j. >> fox, cnn heroes, an all star tribute sunday at eight on cnn.

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