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Congress Holds Eric Holder in Contempt; Defense Rests in Jerry Sandusky Trial; Interview With South Carolina Congressman Trey Gowdy; Sandusky Friend Speaks Out; Kidney Donor Deaths Tied to Device

Aired June 20, 2012 - 22:00   ET


ANDERSON COOPER, CNN ANCHOR: Good evening, everyone. It's 10:00 here on the East Coast.

And we begin tonight "Keeping Them Honest" with big developments in a story that we've been following almost from day one, the bungled ATF operation called Fast and Furious. Now, developments could land the nation's top law enforcement official in contempt of Congress and perhaps set off a constitutional battle between Congress and the White House.

Let me give you some background first.

Fast and Furious, you may remember, let buyers purchase guns in the United States and smuggle them into New Mexico. The idea was to track the guns as they made their way inside Mexican drug cartels.

Instead the ATF lost track of those guns in part because U.S. authorities never bothered to tell the Mexican authorities about the scheme. They never had a way to actually track the guns, that is, not until people started dying.


DREW GRIFFIN, CNN SPECIAL INVESTIGATIONS UNIT CORRESPONDENT: The only way you're going to find those guns in Mexico is where?

RENE JAQUEZ, ATF SUPERVISORY AGENT: At crime scenes. At the death -- at the site of somebody who's dead. At a gun battle between the police and the bad guys in which either the bad guy was killed and his gun was left at the scene or used during the commission of a crime in which the gun was left behind.

GRIFFIN: That makes no sense to me.

JAQUEZ: Between reasonable men within the law enforcement community, no, there is no reasonable explanation to let these guns walk.


COOPER: Well, two of those guns made their way back north to the scene where border agent Brian Terry was shot dead a year-and-a-half ago. He just finished buying Christmas presents for his family. Two months later, ATF agent Jaime Zapata was killed in Mexico by one of a batch of 10 firearms bought in Houston as part of Fast and Furious.

Now lawyers for the family confirmed today that they'll be suing the Justice Department, but the big headlines today were in Washington, D.C. After initially cooperating with the House Oversight Committee, which is investigating Fast and Furious, Attorney General Eric Holder refused to turn over more internal Justice Department documents. In a letter today, the deputy attorney general, James Cole, notified the committee chairman, Darrell Issa, that President Obama was withholding them on the basis of executive privilege.

Now, the move came after threats from the committee to cite Holder for contempt and negotiations yesterday between the attorney general and committee members. Today's decision to invoke executive privilege led Republicans on the committee to say their search for accountability is being stymied.


REP. TREY GOWDY (R), SOUTH CAROLINA: If Congress has time to look into Major League Baseball, the BCS and invite Stephen Colbert to come to a committee hearing, surely to goodness, we have time to get answers on a fundamentally flawed lethal investigation like Fast and Furious.


COOPER: Well, late today, Gowdy's committee voted along party lines to recommend the House issue a contempt citation against Holder. And Democrats accused Chairman Issa and his Republican committee colleagues of conducting a political witch hunt.

Republicans suggest the administration is impeding the search for accountability and using executive privilege to do that.

Keeping both sides honest, though, tonight, it's worth pointing out a few facts here. This is the first time that President Obama has invoked executive privilege. Back when Democrats controlled the House, and a Republican administration was claiming executive privilege for the sixth time, by the way, the sound bites were 180 degrees opposite.

Back then, as House members debated contempt citations against two George W. Bush advisers, Republican members, including Darrell Issa, simply got up and walked out.


REP. JOHN BOEHNER (R), MINORITY LEADER: We will not stand here and watch this floor be abused for pure political grandstanding at the expense of our national security. We will -- we will -- we will not stand for this and we will not stay for this. And I would ask my House Republican colleagues and those who believe that we should be here protecting the American people not vote on this bill. Let's just get up and leave.

(END VIDEO CLIP) COOPER: That's the complete opposite of their position today. Also now keeping the White House honest, President Obama's views on executive privilege do seem to have changed an awful lot now that he's chief executive.

Here's Senator Obama back in 2007 during that Bush showdown.


THEN-SEN. BARACK OBAMA (D), ILLINOIS: You know, there's been a tendency on the part of this administration to try to hide behind executive privilege every time there's something a little shaky that's taking place. And I think, you know, the administration would be best served by coming clean on this. I think the American people deserve to know what was going on there.


COOPER: Here to talk about where all this might lead, Republican Congressman Trey Gowdy, whom you heard from just a moment ago.

Congressman, thanks for being with us. You said today President Obama that he is -- quote -- "either part of it or he's not." If he's part of it, then we've had a series of witnesses that have misled the committee. And if he's not part of it, then he has no business asserting executive privilege.

What do you exactly mean by that statement? Are you implying that the president is involved in covering something up?

GOWDY: No, quite the opposite. We've had no one that has testified before either judiciary or oversight if the president had any role in Fast and Furious at all. He said he didn't know about it. And I take him at his word.

My point was to more illustrate the absurdity of asserting executive privilege for something you had no role in. Executive privileges for conversations that are -- had with the chief executive so he can rely on people's counsel, and he doesn't have to worry about them being subpoenaed before a committee of Congress. He had no conversation --


COOPER: But that's not -- that's not actually true, though. I mean, Vice President Cheney talked -- used the executive privilege for discussions about energy policy. It was even used with Hillary Clinton in her role in the health care debate under the Clinton administration. So it doesn't necessarily mean the president was sitting in meetings.

GOWDY: Well, what does it mean then? I mean, it's executive privilege. It's not -- it has to mean something. It can't cover your entire administration or no one would have to turn over documents.

COOPER: One of your Democratic colleagues, Congressman Elijah Cummings, said today that Attorney General Holder is simply protecting documents that he's prohibited by law from producing and is in compliance with federal statute passed by both Houses of Congress, signed by the president of the United States. Clearly you voted to hold him in contempt of Congress. You disagree with that?

GOWDY: No, he's partially correct.

I think the initial request was for wiretap applications, which rule 6-C of the Federal Rules of Criminal Procedure does not allow anyone to give to anyone who's not part of the investigation or the trial. So to the extent that the original request for documents was overly broad and included protected material, then Mr. Cummings is correct.

Where he's not correct is after Chairman Issa narrowed the scope of documents to not include anything that was legally prohibited from being discovered, he's still not complied. What could possibly be protected about the drafting of a false letter to a committee of Congress?

COOPER: But back in the Bush administration when Cheney was talking about executive privilege because of discussions on energy policy and discussions with people from outside the White House even, Republicans rallied around him and said it's legitimate. Democrats -- I mean, it was very much a partisan issue, just as this is now.

If it was OK, though, under the Bush administration, why isn't it OK now? What's the difference?

GOWDY: I -- I have never -- Anderson, I have never subscribed to that theory in life, which is why I may not be long for this town. I was a prosecutor back when that was going on. The notion that -- that it's OK for me to do it only because you did it has never been appealing to me. If it's wrong to do it now, it was wrong to do it then, and I would hope that a court or someone else would have intervened and said that you're wrong to assert executive privilege.

The fact that a Republican does something doesn't mean I automatically agree with it. And in fact, I would be happy to have everyone who's had their fingerprints on wide receiver, Fast and Furious, any gun walking investigation comment. I don't think you would be able to tell much of a difference in the tone of my questions irrespective of their political persuasion.

COOPER: What happens next? I mean, this is going to go to a vote in the full House. How do you see this being brought to a resolution? Do you think it's going to wind up in the courts?

GOWDY: I hope not. I hope he gives us the documents. It's not a political exercise to me. I want to know how Fast and Furious happened. I want to know how a false letter was delivered to a committee of Congress. So I hope we don't get to that point because I hope the attorney general gives us the documents.

If he doesn't, then yes, we'll vote on it on the floor of the House. And there are three different forms of contempt. There's the plenary powers of Congress, there's criminal contempt, there's civil contempt. If it's criminal, then it will be referred to the U.S. attorney for the District of Columbia, Ray (sic) Machen. If it's civil, it will go to a -- to a federal judge here in the District of Columbia.

COOPER: Congressman Gowdy, appreciate your time today. Thank you very much, sir.

GOWDY: Thank you.

COOPER: Senior legal analyst Jeffrey Toobin joins me now to take us through the legal ins and outs of executive privilege and this contempt vote.

So, Jeff, you just heard the congressman saying, I take him at his word. He wasn't here under the Bush administration. He says he would have ruled the same way under the Bush administration as he -- as he believes now. But does executive privilege only apply to national security issues or issues that the president was directly having a conversation about?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: No. The courts have said it's about the internal deliberations of the executive branch. And as you pointed out, there are Supreme Court cases involving the vice president. There are many cases involving the president's advisers. You know, sometimes executive privilege is upheld, sometimes it's not. But the president himself doesn't have to be involved and national security doesn't have to be involved.

COOPER: Well, certainly some people are going to look at this and say, look, the president obviously has something to hide by invoking this executive privilege. You say not necessarily?

TOOBIN: Not necessarily because, you know, every president in the modern era since Richard Nixon, including Richard Nixon, have cited executive privilege. Sometimes --

COOPER: So explain the idea behind it.

TOOBIN: Right.

COOPER: The rationale behind it.

TOOBIN: The idea behind it is pretty simple. It's that the executive branch, the White House and the president and his or her advisers, need space to be able to consider all sorts of policy options without the worry that they will be subpoenaed to disclose exactly everything that they consider.

Now the countervailing argument or issue is the Constitution says the legislative branch, the Congress, has the right to investigate, to engage in oversight for the executive branch. So those two ideas are in tension. And there are legitimate good faith fights over what's covered by executive privilege. And those have come up in every recent administration.

COOPER: There are those who would say, look, if there's nothing to hide, why invoke this, though? It's basically just on principle?

TOOBIN: It is on principle. I mean, at least that's what the Obama administration is asserting. And that's what the Bush administration asserted the last time we had this kind of conflict.

COOPER: Because the flip side of this is if you want to hide something, this is a good way to hide stuff?

TOOBIN: It is. And certainly the most famous case of all involving executive privilege was United States versus Nixon where the Supreme Court 9-0 in -- held that Nixon had to disclose the White House tapes. And those turned out to be extremely incriminating and led directly to his resignation. So ever since Nixon, the innovation of executive privilege has had kind of a nasty taint. And it's sort of -- it's guilt by association with the most corrupt modern president.

COOPER: So basically you think this kind of goes away in the courts?

TOOBIN: I think --

COOPER: And kind of gets lost in the election hoopla?

TOOBIN: I absolutely do. I think this will not have a neat resolution. It's embarrassing for Eric Holder. But I don't think he's going to be found in contempt, that he's going to be led away in handcuffs. This is just going to be another political dispute. And if people remember at all at -- they'll remember, 23 Republicans were for it, 17 Democrats were against it.

COOPER: Jeff Toobin, thanks.

Well, let us know what you think. We're on Facebook. Follow me on Twitter. We're talking about it right now on Twitter @AndersonCooper.

The jury in the Sandusky child sex abuse trial is expected to get the case tomorrow. The defense rested their case earlier today. Sandusky did not take the stand after all. Clearly his lawyers seem to have made the right call, at least according to a lot of experts who are following this.

Jason Carroll was in the courtroom throughout the trial. He'll recap the key testimony. And our legal panel, Mark Geragos and Marcia Clark, weigh in next.


COOPER: "Crime and Punishment" now.

Jerry Sandusky's lawyers rested their case today without calling their client to the stand. they have left open the possibility telling reporters to -- quote -- "stay tuned." In the end they shut that door which many legal experts considered really risky, obviously. Sandusky, a former Penn State assistant football coach, charged now with 51 counts in the child sex abuse trial. Eight of his accusers described in graphic detail the alleged assaults they endured in Sandusky's homes, during trips, on the Penn state campus and showers. The trial has really torn a hole in the state college community where football is a big part of the fabric of life there.

And Sandusky is a longtime defensive coach. He's a piece of a legend. His revered boss, former head coach, Joe Paterno, was ousted as a result of the scandal, died from cancer in January. His storied career scarred by accusations that he didn't do as much as he could to try to stop the alleged abuse.

Now, if Sandusky, who's 68 years old, is convicted, he could spend the rest of his life in prison. The trial has gone very quickly.

Jason Carroll has been covering it from the start. Here's his recap of what we learned.


JASON CARROLL, CNN NATIONAL CORRESPONDENT (voice-over): The prosecution launched right in on day one, calling the first of eight Sandusky accusers to the stand. Alleged victim number one says he was assaulted in the basement of Sandusky's home. The 18-year-old brought to tears -- quote -- "After rubbing and cracking my back and the blowing of the stomach, he put his mouth on my privates."

Another alleged victim, number 5, says Sandusky assaulted him in a Penn State shower."I kept lurching forward but I didn't have anywhere to go. I felt his arm move forward and he touched my genitalia."

TOM KLINE, ATTORNEY FOR ALLEGED VICTIM: Here he was with this relationship with these boy after boy after boy which by any conventional evaluation of any normal adult would say, this is just so terribly odd and wrong.

CARROLL: On the second day in court, the prosecution turned to another of its key witnesses, former grad assistant Mike McQueary, who says in 2001, he saw Sandusky sexually assault a young boy in a Penn State show -- quote -- "Coach Sandusky's arms wrapped around the boy's midsection, just as close as I think you could be."

The prosecution went on, showing several letters Sandusky had written to young boys, including one reading, "Love never ends, it bears all things."

The defense counter, questioning why so many accusers hired civil attorneys, suggesting financial motives. Then calling 18 character witnesses on Sandusky's behalf, many former members of Second Mile, a charity founded by Sandusky.

Chad Rexrode told jurors, "I have never had a father in my life and he was a father figure." The most anticipated character witness, Sandusky's wife, Dottie, testified she never saw inappropriate contact with her husband and young boys. She told the court, three of the accusers had actually visited the Sandusky home as adults.

One of the oddest moments came from defense attorney Joe Amendola, comparing the trial to a soap opera.

JOE AMENDOLA, JERRY SANDUSKY'S DEFENSE ATTORNEY: It could "All My Children." All our children?

CARROLL: That comment went viral. Critics calling him insensitive. Amendola challenged that notion, saying, he has shown sensitivity throughout the trial but not revealing the accusers' identities.

As for those letters, a defense psychologist testified Sandusky has histrionic personality disorder, which causes people to act inappropriately when not the center of attention. Then the defense lays out what one source says is their strongest move, presenting jurors with a recording which they say shows investigators leading an accuser. The final witness testifying, "I felt like they kept asking me to say something that wasn't true."


COOPER: Well, Jason Carroll joins me now.

Do we know why Sandusky didn't testify today?

CARROLL: Well, it's a good question, Anderson.

I can tell you this. A source close to the case that I spoke to late yesterday afternoon and a gain late last night tells me the idea of testifying or not testifying was still very much in play, still under discussion up until late last night.

I'm also told that the final decision came down to two people -- Joe Amendola and Jerry Sandusky. And you have to wonder, if this whole idea of risk came into the equation. Remember, Sandusky gave two interviews to the media in the past. Those interviews did not go well. And you have to wonder if attorneys were telling him or wondering, you know, what kind of risk would present itself if he were to take the stand under cross-examination -- Anderson.

COOPER: Given that interview with Costas, I mean, who knows what he would have said on the stand. It would have been incredible to listen to. What's next in terms of closing arguments tomorrow?

CARROLL: I think what we can expect is look for each side to revisit some of the points that they have been bringing up during the trial. For the prosecution, that means presenting Jerry Sandusky as a serial predator. Asking jurors to remind them to listen to the testimony that the accusers gave. To look at the pictures that they put up on the stand there of these accusers when they were -- when they were youngsters. And from the defense's point of view, to point out that these accusers are in it for the money and that many of these accusers, they say were coaxed into making these allegations by investigators.

COOPER: All right. Jason, thank you very much. You're doing a great job covering this from the beginning. Let's talk now to criminal defense attorney Mark Geragos, also Marcia Clark, former Los Angeles deputy district attorney and obviously author of "Guilt by Degrees."

So, Mark, 29 witnesses, the defense rested today. Were they able to cast reasonable doubt, do you think?

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: I think that if the -- with the right jurors, and I think they have got the right jurors, that this could very well end up in a hung jury. I think the --

COOPER: Really?

GERAGOS: -- character witnesses got on and off that stand. Yes, I think that they got on and off unscathed in terms of the character evidence. And I think that that -- I think Dottie was exactly what they needed. I think Dottie is the reason he didn't take the stand because she was able to kind of fill in some of the blanks that they thought maybe he would have to put up there.

But that was a high-risk proposition. And then I think ending with that idea that the investigators wanted to coach the witnesses, I think it was helpful to them. I think you'll end up seeing a hung jury.

COOPER: Marcia, do you think reasonable doubt is possible?

MARCIA CLARK, FORMER PROSECUTOR: Of course it's always possible, Anderson. These things -- you know, I think the defense hit every spot that they had to hit. Mark's right, they ended strong by putting on the witness who said I think the investigators were trying to tell me what to say, trying to get me to make a false accusation.

That's a strong point for the defense when you have investigators admitting that they talked to the accusers about one another. They talked to one victim and said, you know, you're not the only one. But they denied having imparted any details of what one victim said to another. And that ultimately is extremely important.

At the end of the day, Anderson, the jury was the one who saw all of these witnesses testify, heard the heart wrenching testimony of these victims. I think it's very difficult to believe after all that we've seen and heard that they're going to find reasonable doubt given what we have seen in the entirety of the trial. I think the defense did what it could. I do not think it would be enough.

COOPER: Mark, how important are closing arguments, both for the defense and for prosecution? I mean, can that really sway things one way or the other? GERAGOS: You know what I often say, and I bet you Marcia would agree with this. I think these cases are won or lost in jury selection. I think that what ends up happening in closing argument is that if you have a juror who is with you, what you're doing is you're arming that juror with an argument so when they go back into that deliberation room, they can articulate to the other jurors their position.

You're never going to have on any case, your best jury. You're never going to have 12 jurors who are with you. What you're going to have is you're going to have jurors that drive the discussion and what you want to do as a -- as an advocate is you want to arm those jurors who are going to drive the discussion with the arguments that are going to be able to others who maybe have not staked out a position.

COOPER: That's interesting. Marcia, do you agree with that? That's it all about jury selection?

CLARK: Yes, that's right on the money, Anderson. It is -- yes. I think it's true in all cases but especially one like this.

And I think Mark is also 100 percent right, that you want to arm the jurors that you know are going to be in your camp. There may be only two or three, but if they're strong and they're very vocal and they're leaders in the pack, then what you've armed them with is enough to at the very least hang the jury and possibly rise up in an acquittal.

Do I think it will happen in this case? I do not think it'll happen in this case, but is -- that is the mentality, that's the strategy that you would follow.

COOPER: Are you surprised at all, Mark, at how fast this trial went? I mean, I don't know why I kind of expected it to go on longer. Is that really based on just what kind of evidence they had both the defense and the prosecution? Or is that, say, more about the judge?

GERAGOS: Well, at the risk of -- you know, I want to hide my face when I say this. It wasn't in California. This is a judge who decided he was going to keep a tight leash on this thing. And he --


COOPER: Mark, are you giving up practicing law now in California?

GERAGOS: Yes. I'm moving to New York very soon, Anderson.


COOPER: OK. But that's interesting.

So Marcia, did you want to -- dig a grave along with Mark on this? I mean, do you think it really is a sign of where this was?

CLARK: Yes, I do. I think he's right. You know, it seems that outside of California, judges know how to tamp it down and get it done. I think the prosecution was inclined probably to do a little rebuttal. It seems to me from reading the tea leaves that the judge might have talked them out of it. Probably wisely so.

I'm surprised and a little bit surprised that the prosecution did not call an expert on child abuse accommodation syndrome. One of the experts that could explain the failure to report, the delay in reporting, inconsistent statements and so forth. I'm surprised they didn't call a witness like that. But you know they're inside the courtroom and they know what they're feeling in terms of how the cases coming out. And they may have felt they didn't need to.

COOPER: Right.

CLARK: That said, I think that outside of California, yes, judges do not how to clamp it down and get it done.

COOPER: Well, we welcome both of you practicing law in New York.

GERAGOS: And I will tell you, Marcia is so right.


COOPER: Marcia, I appreciate it, Mark Geragos as well.

Disturbing accounts of alleged abuse from Sandusky's accusers and the eyewitness testimony of Mike McQueary did not sway everyone in the courtroom. One of Jerry and Dottie Sandusky's longtime friends was a character witness testified on his behalf. Her loyalty is unshakable. You're going to hear from her just ahead.


COOPER: Is there any evidence that could be presented that would make you believe what these accusers are saying about Jerry Sandusky?

JOYCE PORTER, SANDUSKY DEFENSE WITNESS: I would have to see him do it myself with my own eyes. I think he's a wonderful person. I just can't believe these things.



COOPER: Two pat-downs and one trip through security -- the passenger gets one; then she gives one. We'll tell you why she says she did it and what authorities thought of her explanation -- details ahead.


COOPER: Welcome back.

A quick clarification on something Marcia Clark said a moment ago. She wondered why the prosecution didn't bring in an expert witness on child abuse victims. The reason is pretty fascinating. Pennsylvania is the only state in the country that bars such experts unless they've been directly involved in the case.

Over the last few days, a string of character witnesses did take the stand to testify on behalf of Jerry Sandusky: friends, former colleagues of the assistant football coach. They've described him as a generous, caring guy, devoted to his own family, to the family that he founded to help disadvantaged kids.

The picture they painted didn't look anything like the sexual predator, obviously, described in court by eight of Sandusky's alleged victims the week prior.

A woman named Joyce Porter testified. She says she's known the Sanduskys for four decades. She was one of the character witnesses. And last night, I interviewed her. We played part of the interview I did with her. But tonight I want to show you the rest of the interview.

Porter is 100 percent convinced that Sandusky is innocent, despite the evidence that came out. I asked her to watch part of an interview Sandusky did with NBC sportscaster Bob Costas that never aired and to tell me what she heard him saying. Watch.


BOB COSTAS, NBC SPORTS: So it's entirely possible that you could have helped young boy A in some way that was not objectionable while horribly taking advantage of young boy B, C, D and E. Is that possible?

JERRY SANDUSKY, ON TRIAL FOR CHILD SEX ABUSE (via phone): Well, you might think that. I don't know. In terms of my relationship with so many, many young people, I would -- I would guess that there are many young people who would come forward, many more young people who would come forward and say that my methods and what I had done for them made a very positive impact on their life.

And I didn't go around seeking out every young person for sexual needs that I've helped. There are many that I didn't have -- I hardly had any contact with who I have helped in many, many ways.

COOPER: And Joyce, some people hearing that find that kind of startling, particularly the last line that Sandusky said, where he said, "I didn't go around seeking out every young person for sexual needs that I helped. There are many I didn't have" -- and then he pauses, and he says, "I hardly had any contact with who I've helped in many, many ways."

Some see that almost as an admission of sexual contact with children. How did you interpret that? How did you hear that?

JOYCE PORTER, FRIEND OF SANDUSKYS: I heard him say he didn't have sexual contact with kids that he helped.

COOPER: Well, he said, "I didn't go out seeking every young person for sexual needs that I've helped. There are many that I didn't have" -- and then he stopped and he said, "I hardly had any contact with who I've helped in many, many ways." Certainly open to interpretation.

But is there any evidence that could be presented that would make you believe what these accusers are saying about Jerry Sandusky?

PORTER: I would have to see him do it myself with my own eyes. I think he's a wonderful person. I just can't believe these things. Sorry.

COOPER: There's nothing to be sorry about. I mean, I think you're a good friend, and you're standing by your friend.

His wife Dottie, who's your good friend, testified. How do you think she did on the stand?

PORTER: I think she did an excellent job, and I think she validated that she was a light sleeper and she would have heard something going on if it was going on in her home.

I mean, she was there all the time. And she's a wonderful, moral person. She would cracked the whip if anything were going on.

COOPER: Sandusky was overheard by a police officer years ago, telling the mother of one of the accuser, quote, "I wish I could ask for forgiveness, but I know I won't get it from you. I wish I were dead" after she confronted him about taking a shower with her son. Does that raise any eyebrows for you?

PORTER: No. It may me think that he felt bad enough just taking a shower with a kid.

COOPER: And yet he continued to take showers with kids.

PORTER: I don't know if that was one of the first ones or one of the last ones.

COOPER: But if he did continue to take showers with kids, do you think he really felt bad about it?

PORTER: I don't know. I would say he felt bad in that one case.

COOPER: Well, Joyce, I appreciate you coming on and talking to us. Thank you very much, Joyce.

PORTER: Thank you, Anderson. See you later. Bye.


COOPER: One of Jerry Sandusky's strong defenders.

A lot more happening around the country and the world. Isha's here with a "360 News & Business Bulletin" -- Isha.

ISHA SESAY, CNN ANCHOR: Anderson, no sign of progress in Syria where Syrian troops kept up the shelling today, and dissidents say at least 42 civilians were killed. New reporting, as well, about just how many people have fled Syria. "The New York Times" citing Jordanian authorities who estimate there are now more than 100,000 Syrians living in Jordan.

Egypt next. Former dictator Hosni Mubarak tonight is off life support. That's according to his lawyer. A state news agency saying Mubarak is not clinically dead but is in critical condition and in failing health.

Greece has a new prime minister, Antonis Samaras, sworn in today, after successfully forming a new government, something the economically-devastated country has done without for the last 223 days.

The U.S. economy, not getting much of a boost from the Federal Reserve today. Chairman Ben Bernanke announcing the extension of Operation Twist, which aims to keep borrowing costs low, but has only had a modest effect so far.

And have you just had it up to here at the airport? Tired of long lines and intrusive pat-downs? Well, this woman was. And not only did the camera catch the pat-down, well, it also caught the passenger, shall we say, patting back?

Carol Price, that's her name, is a retired TSA agent. She says she was only demonstrating what happened to her. The law, though, says otherwise. Anderson, Price is being charged with misdemeanor battery. And Anderson, she's heading to court next month.

COOPER: Wow. She's been charged with misdemeanor battery for that?

SESAY: Yes. Apparently, they're saying she did not ask before she put her hands on the supervisor, and that's what she's facing.

COOPER: Wow. And she's a former TSA person? That's really interesting.

SESAY: She is. And she's claiming that actually -- she says, you know, it's a vendetta. But yes, I think you can say it's a bad day at the airport.

COOPER: Well, I guess we've all had those. Isha, thanks.

Two healthy people who donated their kidneys have died from the surgery after the surgeons used a device warned to be unsafe since 2006. So how did that device end up inside them? The question is, is the Food and Drug Administration doing enough to stop more deaths? We're "Keeping Them Honest" next.


COOPER: Flash flooding turned streets into surging rivers in Duluth, Minnesota. We have details on the damage and evacuations ahead in the program.


COOPER: Welcome back to the program.

A medical "Keeping Them Honest" report right now. Every year about 6,000 healthy Americans choose to donate one of their kidneys to help save a life. It's a remarkable thing to do. And typically, everything goes fine. The operation is considered safe. Very few donors actually die.

But in just over a decade, since 2001, five donors have died. Their deaths have been tied to a device that was warned to be unsafe back in 2006. So "Keeping Them Honest," did the Food and Drug Administration, the agency that approves and monitors medical devices, did they do enough to sound the warnings and to protect these patients? And is it doing enough right now to stop more deaths in the future?

Here's CNN senior medical correspondent Elizabeth Cohen.


ELIZABETH COHEN, CNN MEDICAL CORRESPONDENT (voice-over): When Manuel Reyna developed a deadly kidney disease, his sister, Florinda Gotcher, didn't hesitate to give him one of her kidneys. In January of 2011, she went in for what's considered to be a very low-risk surgery.

MELINDA WILLIAMS, VICTIM'S DAUGHTER: She was overwhelmed that she was able to save her brother's life.

COHEN: The surgery was a success. Florinda was wheeled out to the recovery room, where her daughter, Melinda Williams, was waiting. But then, not even 30 minutes later, Florinda took a mysterious turn for the worse.

WILLIAMS: She raised up. She went and took a deep breath and her eyes got real huge. And then she fell back down and then just, like, started breathing really, really bad.

COHEN: Surgeons at University Medical Center in Lubbock, Texas, rushed Florinda back into the operating room. Once inside, they realized something horrible had happened.

In order to remove her kidney, doctors had to cut an artery. They put clips on it to make sure it didn't open back up. But the clips slipped off, and blood gushed out.

(on camera): And what was the next thing you heard?

WILLIAMS: "We couldn't save her. We did everything we possibly could, but there's nothing we could do."

COHEN (voice-over): Florinda Gotcher, mother of four, bled to death at age 41.

WILLIAMS: It just literally -- I couldn't hold it in no more. It just felt like my world fell apart. My heart was torn in pieces.

COHEN: What Melinda Williams didn't know: her mother's death wasn't just some freak accident. It was 100 percent preventable.

DR. AMY FRIEDMAN, TRANSPLANT SURGEON: To learn that yet another donor has died has been simply devastating.

COHEN: Dr. Amy Friedman, a transplant surgeon in Syracuse, New York, has spent the last eight years trying to persuade the Food and Drug Administration to do more to warn that clips can kill kidney donors.

And yes, Dr. Friedman said another donor, Florinda Gotcher, was the fifth kidney donor to die because of these clips. And at least 12 others suffered injuries.

The clips are safe to use in many types of surgery, but not in laparoscopic kidney donor surgeries. Beginning in 2006, the FDA worked with the manufacturer of these clips to send up to six warning letters, alerting hospitals that the clips were contraindicated, unsafe for use in that procedure.

But Dr. Friedman says the letters were hardly persuasive and easily forgotten.

The letter Florinda's hospital received came five years before her surgery, at a time when the hospital wasn't even using the clip. It was one of dozens of letters about various devices and other safety issues the hospital gets every year. And the letter about the surgical clips never once mentioned patients had died.

(on camera) Would this letter have had more impact if they had mentioned that people actually died?

FRIEDMAN: Absolutely. It's shocking that it doesn't say that even a single donor died. It's meaningless without saying that.

COHEN (voice-over): By 2007, documents obtained by Dr. Friedman through the Freedom of Information Act showed the FDA called these letters effective and adequate to prevent a reoccurrence of the problem. Effective and adequate, even though only about half the hospitals acknowledged getting the notification, according to a 2007 audit by the FDA.

(on camera) Half the hospitals.


COHEN: Is that enough?

FRIEDMAN: Clearly, it was not enough, and clearly it still left gaps.

COHEN (voice-over): Florinda Gotcher and at least one kidney donor died after the letters were issued.

Dr. Friedman says she wants the FDA to require a warning right on the package and that doing so earlier could have saved lives.

(on camera) There's no warning on these clips. There's no warning on the package the clips come in. There's no warning on the box. Believe it or not, the only warning about how not to use these clips doesn't come with the clips at all. It actually comes separately, with an entirely different medical device, an applicator that's used to put the clips on. And the warning is far from obvious. It's one line in pages of instructions.

If you were designing this, what would you put?

FRIEDMAN: I think it would be great to say, "Don't use on a kidney donor." That would be terrific.

COHEN (voice-over): Teleflex, the manufacturer of the clips, points out that, although no specific warning is on the clip packaging, it does feature a warning symbol and a referral to the applicator's instructions for use.

(on camera) "Keeping Them Honest," we wanted to ask the FDA to justify why they said the letter-writing campaign was effective, but only about half the hospitals said they got the warning. We also wanted to ask why they never required a warning label right on the packaging of the clip. But the FDA wouldn't talk to us on camera.

(voice-over) In a statement to CNN, the FDA said, "Most transplant surgeons heed the FDA's warning; however, despite repeated efforts to communicate this important safety information, some transplant surgeons continue to improperly use these clips.

"While the FDA can warn against the unsafe use of a medical device, doctors are not prohibited from using cleared or approved devices for an unapproved use within their practice of medicine. When used as indicated, the clips can be used effectively."

Teleflex said surgeons have safely and successfully used their clips in millions of surgical procedures and that "a contraindication is a clear, well-understood and accepted concept in the medical community that says, 'Do not use this device for this purpose.'"

Teleflex said it believes the transplant community is well aware of the contraindication.

University Medical Center, where Florinda died, admits its system to track warnings was insufficient to alert the hospital of the 2006 notice when new clips were later ordered and has since put corrective actions in place.

No one warned Florinda's family. Now all they can hope for is that, by talking about Florinda, they can prevent another senseless death.

VIRGINIA REYNA, VICTIM'S SISTER: I told them I wanted my sister back. I want my sister. They should have known better.

(END VIDEOTAPE) COOPER: So sad. Elizabeth, do we know if these clips might still be used in kidney transplants that hospitals and patients don't know, despite what the manufacturer and FDA say?

COHEN: Right. Anderson, doctors tell us that it is possible.

Right after Florinda died, the FDA issued a safety notification. But those notifications aren't ongoing. As we say, there's nothing specific on the label. Doctors could miss that one sentence in the instructions.

So doctors hope the transplant surgeons have gotten the message, but it's possible that they haven't.

COOPER: Wow. Elizabeth, thanks very much. We'll keep on it.

Coming up next, wild weather across the country, from extreme heat in the east to flash floods in Minnesota. Remarkable pictures there. The latest on all of it when we continue.


SESAY: Anderson will be back in a moment. First, a "360 Bulletin."

And new developments in the Trayvon Martin saga. Word tonight that Sanford, Florida, Police Chief Bill Lee has been fired. City manager Norton Bonaparte made the call.

Chief Lee offered his resignation back in April, but city managers voted not to accept it.

In Duluth, Minnesota, flash flooding has destroyed roads, forced evacuations and left homes under water. The National Weather Service says up to nine inches of rain fell between last night and this morning.

A fire has damaged a warehouse at a pier in San Francisco that's supposed to host an event for the America's Cup yacht race. The cause of the fire isn't known.

And Big Bird may soon be back on the big screen. "The Hollywood Reporter" says 20th Century FOX has picked up the rights to make a "Sesame Street" movie. Two other "Sesame Street" movies have already hit the screen: "The Adventures of Elmo in Grouchland" in 1999 and "Follow That Bird" in 1995.

Of course, my own personal favorite episode of "Sesame Street" aired in 2007, when we all got to see our own Anderson Cooper in a trash can.

Now back to Anderson.

COOPER: Isha, thanks.

Coming up, should dogs be allowed to vote in an election? "The RidicuList" is next.


COOPER: Time now for "The RidicuList." And tonight we're adding an election-year dog tale.

A guy in Virginia recently received a voter registration packet in the mail addressed to his dog. Here is his dog. Cute little guy. His name is Mozart, Mo for short. Mozart's owner says he was surprised to see his dog was being asked to take such an active role in democracy.


TIM MORRIS, MOZART'S OWNER: I opened it up and looked at it. And I just -- I just laughed. I thought it was a joke at first. And turns out it's real.


COOPER: So apparently, it came from a private nonprofit group that's trying to register more voters. But Mozart really slipped through the cracks here, because not only is he a dog, he has unfortunately been dead for quite a while. That's right: it's a dead dog.


UNIDENTIFIED MALE: What amazed Morris is that, if Mozart was human, he would have been eligible to vote this year.

MORRIS: He would have been 18, 19 years old this year. And he passed away two years ago, and I still have no earthly idea how they got his information.


COOPER: All right. Not to get too Gary Larson on you now, but why shouldn't dogs be allowed to vote? For one thing, they tend to be excellent judges of character. I say let's get a canine suffrage movement started. Frankly, a solid dog constituency could be just what the state of Virginia needs to knock out a certain Senate candidate.


UNIDENTIFIED FEMALE: Vote Hank for U.S. Senate.

UNIDENTIFIED MALE: Like any savvy campaigner, he's got an ad, stickers, signs, even a Facebook page.

UNIDENTIFIED MALE: He's running as an independent, so he had to have a red and a blue tie.

(END VIDEO CLIP) COOPER: See, here's the thing. If you give dogs the vote and let cats run for office, they're going to have to be active citizens in other ways, as well.

It's already happening in Massachusetts, as a matter of fact. A few years back, a cat named Sal Esposito got a summons for jury duty. He did not get picked for the actual jury. Must have been some kind of conflict of interest. Maybe it was a petty larceny trial. Who knows?

But when it comes to how cats and dogs figure into the justice system, I think the most cogent commentary came from the guy in Montana who filed a notarized affidavit, asking to be let out of jury duty. Quote, "Apparently, you morons didn't understand me the first time. I would rather count the wrinkles on my dog's (EXPLETIVE DELETED) than sit on a jury."

I know. It really is rather poetic.

In conclusion, let's all gather our leashes and walk the vote so sometime soon every dog has its election day.

That's it for us. Thanks for watching. "ERIN BURNETT OUTFRONT" starts now.