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Supreme Court Considers DOMA; Petraeus Apologizes; Arias Trial Reaches Day 39; Trying A Jury's Tolerance; The Cost of Defending Arias

Aired March 27, 2013 - 11:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Hi, everybody. I'm Ashleigh Banfield.

And we are about midway through a second straight day of Supreme Court arguments over marriage. Who can enter into it? Which rights and benefits follow from it? And who can defend so-called traditional marriage when you walk into a courtroom?

Today, the federal Defense of Marriage Act of 1996 is being challenged by an elderly New York woman who was hit with a giant federal tax bill when her same-sex spouse passed away.

Had the feds recognized this woman, Edith Windsor's, marriage which was valid in New York state, she would not have owed that tax.

But it's not just about the money, it's about the principle, a lot of principles, actually.

There's perhaps nobody better to explain those principles than law professor and legal contributor Jonathan Turley. I hope you can hear me.

I can hear the argument going on behind you. I just can't hear the silent arguments going on with the justices right now.

When it comes to DOMA, the Defense of Marriage Act, again, like yesterday and Prop 8, this is not a simple decision for these justices, is it?

JONATHAN TURLEY, LAW PROFESSOR, GEORGE WASHINGTON UNIVERSITY: No, and I think people have to be very cautious in their optimism. I mean, for a couple weeks now, I've been trying to explain to folks this is a very incremental court. It's a cautious court in the best of times.

And you saw that yesterday. These were justices that were looking for an exit. They did not want -- many of them did not want to hand down a major decision at this time.

They referred to it as a new issue where they would be before the public has decided the question.

And so you're seeing a bit of a sticker-shock problem with the justices that they were worried about handing down a major ruling either recognizing same-sex marriage, or the right of equality, or rejecting it. Today's case is going to be another example of that. They have an out. They can reject this case on standing, which is basically saying that one of the parties doesn't have a right to be here in court.

And there are significant standing problems here, and it is right there for any justice to take as an exit.

What worried a lot of folks yesterday was that swing justice, Justice Kennedy, actually expressed personal doubt as to the fundamental right. He said it wasn't clear whether this was a movement that was going to lead to a magnificent end or to use his words, "go over a cliff," and that shocked many of us.

BANFIELD: Can I just stop you there and go back to that really simple first issue, and that is standing? Whether anybody really has the right to stand up for the government when the government is not going to stand up for this case.

Normally, we'd be used to seeing the solicitor general, in this case, Mr. Turley, going in and arguing for the government.

But President Obama said we're not going to defend DOMA. We're not agreeing with it. We're not going into court to do so.

In essence, and correct me if I'm wrong, it's the House Republicans who have taken up that banner, and they have brought in their own former solicitor general to argue this case.

Is that the issue, that House Republicans can't stand up for the rest of the country?

TURLEY: That's right. This is a very strange case because the Obama administration was defending DOMA for years, and then essentially switched sides.

And that left this gap, this vacuum, as to who would support this law. And the House Republicans stood up and said we want to do it.

Now I represented both Democratic and Republican members in challenging the Libyan war and we were dismissed on standing because this court is very hostile towards what's called members' standing.

And so they've got a really long road to hoe here.

And so for justices that are already a little bit squeamish about this issue, they can easily take this exit and say, you, members of Congress, cannot speak for the nation.

BANFIELD: OK. I want to ask you something. If we get beyond the standing issue, there is also another issue and that is, what kind of message this court could send?

Would it be a sweeping legal precedence, like Brown versus the Board of Education or Roe v. Wade.

And there was something that Justice Alito said yesterday, and I only bring yesterday's in because there are a lot of cross-platform issues here with regard to just how broad these justices might act.

Let's listen.

(BEGIN AUDIO CLIP)

SAMUEL ALITO, ASSOCIATE JUSTICE, SUPREME COURT: Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in the Netherlands in 2000, so there isn't a lot of data about its effect.

And it may turn out to be a good thing. It may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet.

I mean, we are not -- we do not have the ability to see the future.

(END AUDIO CLIP)

BANFIELD: So, Professor Turley, when I hear the words "an institution that's newer than the Internet," would those who argue against that say maybe the institution, legally, is newer than the Internet, but the love has been around forever, and freedom has been around forever, and equal protection has been around for almost 300 years.

TURLEY: Yeah. I was a little bit surprised by that. I thought it was an insulting statement.

Not only has the court long recognized the right to marriage, and obviously long recognized the rights to equality in treatment, but this is an issue that has been specifically around for a very long time.

This movement didn't just start this week. It seems like the justices sound a bit like troglodytes living in a cave if they think this is new.

But the problem I think people need to understand is that this is an institution that is timid about getting in front of the American people in terms of major constitutional right.

Brown v. Board of Education, Roe v. Wade, are some of their most famous decisions but they also tended to rock the institution because they were blamed for making a decision that that American people hadn't arrived at yet. And that's what some of these justices are referring to.

But I need to caution you, many of these justices making these comments also were against Lawrence v. Texas, the decriminalization of homosexuality, so a lot of this soul-searching that I heard doesn't really jibe well with their overall position.

These are -- many of these justices don't really accept the same type of fundamental protection that are being argued in the case. There is an intermediate possibility, by the way.

BANFIELD: OK.

TURLEY: The court could strike down DOMA without finding a fundamental right of equality.

What they could do is they could say that Congress was usurping the right of states to make this decision, and strike it down on that ground.

BANFIELD: And that was what I wanted to ask you about states' rights because I think a lot of people who are watching today's process who watched yesterday's, are suggesting that the attorneys who's representing Miss Windsor, the plaintiff in this case, is going to argue very much on behalf of states' rights, that states have the right to regulate marriage and that the federal law takes away from that. Is that correct?

TURLEY: That's right. And it's a very interesting problem of alliances on the court because many of these conservatives like Justice Scalia are big supporters of states' rights.

Well, you know, some of these states have said we want an inclusive definition of marriage, and Congress is stepping in and saying, we're not going to let you make that decision. We're not going to recognize -- at least, we're not going to recognize a marriage that you license for same-sex couples.

So the argument here is really a states' rights argument.

What may appeal to people like Roberts is it avoids having to make a decision now on equal protection.

Many of us would like to see that decision, quite frankly, but this is one of those outs. If they pass by that exit for standing, they've got one more exit.

And they could take this one and say we're not going to say anything about equal rights for homosexuals. What we're going to say is congress can't start to mess around with a states' right to define what a marriage is.

BANFIELD: I always love it when there are all sorts of competing areas of wisdom that each individual justice has to take into account when rendering a decision and then writing an opinion, which is even more fun.

Jonathan Turley, thank you so much for your time. And I look forward to having a lot of conversation with you once we find out the direction of these arguments.

And, of course, in what could be the biggest case of their lives, two formal rivals are teaming up to take the same-sex marriage fight to the Supreme Court. And this weekend, our Gloria Borger gets exclusive access to these high-powered lawyers, as they prepare for the case in what we're calling "The Marriage Warriors: Showdown at the Supreme Court." It's going to air Saturday night at 7:30 Eastern.

Top stories now. The Indiana supreme court has ruled to keep the state's school voucher program in place, and that is perhaps setting a precedent right across the country.

That program helps thousands of low- and middle-income families choose where to send their children to school.

By doing so, they give out vouchers for private-school tuition, and lawmakers are now working to expand that program.

Opponents say it violates the Constitution, and it diverts funds away from public schools.

Thousands of police documents in the investigation of the shooting that wounded Congressman Gabrielle Giffords are being released at this hour. A judge had prevented their release, citing Jared Lee Loughner's right to a fair trial, but cleared the way last week now that that case is resolved.

Loughner was sentenced to seven life sentences in the rampage that killed six people and wounded 12.

I want to take a quick look at the market. The Dow is down just a little over 60 on the Big Board today. We're going to continue to watch.

Market's been open now for about 90 minutes.

David Petraeus is facing, head-on, the scandal that led to his resignation as the director of the CIA.

Speaking in public for the first time since admitting to the extramarital affair last year that ripped so many headlines up to the top of the heap.

The retired four-star general apologized for the hurt that he caused to family, friends and supporters.

(BEGIN VIDEO CLIP)

DAVID PETRAEUS, FORMER CIA DIRECTOR: I know that I can never fully assuage the pain that I inflicted on those closest to me and on a number of others.

I can, however, try to move forward, and as best possible, to make amends to those I have hurt.

(END VIDEO CLIP)

BANFIELD: General Petraeus resigned from the CIA after having admitted to an affair with his biographer, Paula Broadwell. It is the 39th day of Jodi Arias' murder trial. I said 39, yes. Long, folks. Her defense is hoping that its final witness, final witness, a domestic violence expert, will perhaps help jurors understand the relationship that Jodi Arias had with her ex-boyfriend Travis Alexander.

Arias has testified that he beat her and choked her, and that she gave in to certain sex acts that were demeaning fantasies only to make him happy.

The psychotherapist in this case, Alyse Laviolette, is taking the stand again at 1:45 Eastern time. And as each day goes on, the fascination over this case just keeps building.

This is the victim's family in the courtroom, listening to all of the testimony, oftentimes, very graphic testimony.

It is certainly compelling people right across the nation, as well, to line up. Twenty, 30 people at a time are waiting to get into this courtroom.

One person even flew in from the state of New Jersey, and got there at 4:00 in the morning, just to make sure he could get a seat.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Jodi is looking at the jury, looking for sympathy, and the only way she can get off, in my opinion, is they feel -- one, feel sorry for her.

They all know she's guilty, but all she has to have is one person to feel sorry for her. That's the way she's going to get off.

UNIDENTIFIED FEMALE: I'm just fascinated. I just want to see her. I want to be in the courtroom. I just want to get that feel. I watch it every night. I work during the day, tape it every single day, watch it every single night.

(END VIDEO CLIP)

BANFIELD: CNN's Miguel Marquez is also watching this because he was assigned to do so, and he joins me now from outside of the courthouse in Phoenix.

I have to say, it is odd, isn't it? I remember covering the Anthony case and watching people lining up throughout the night by the hundreds to get a seat.

What sense are you getting from those people who are out there as to why this one has caught their attention?

MIGUEL MARQUEZ, CNN CORRESPONDENT: Yeah, as I think as we get closer to closing arguments and certainly, verdict day, we're going to see some of that.

But what it is, it is Jodi Arias. People have very strong opinions about they are. They've come in from -- Canada today, there are people lined up. They come in specifically for this. They line up at, you know, zero-dark-thirty here in Phoenix to be in that courtroom.

It is a little bizarre to see the level of interest, but people have been watching it religiously since day one.

Thirty-nine days, but it's been over three months that this trial has been going, so people have become gripped by it.

They come here to Phoenix just to see it in person. It's pretty amazing.

BANFIELD: And do you think the fact that this say death penalty case is playing into that?

I bring that up because, look, there is nothing more serious in American jurisprudence than the state deciding we're going to kill someone.

So this is one of the highest stakes kinds of processes you can see. Or is it all the other stuff? And you know what I mean by the other stuff, the sexy talk.

MARQUEZ: Well, my sense is, it really has to do with Jodi. Most people don't -- believe that she is guilty, Most people think -- or believe they're here to support Travis.

But they believe that -- they feel that Jodi is somehow driving them here, that here explanations just aren't right, that she's lying on that stand, that she's fooling everyone, that she can't believe what she said on the stand and what people are saying about her. And they feel that they want to see her in person.

They get great satisfaction out of Juan Martinez for the same reason because he really hammers away at her defense, and they seem to really appreciate that. That's why that guy, the prosecutor here, has become sort of a celebrity in Phoenix.

And the defense attorneys have to be marched to their cars under armed guards because they have some many death threats against them.

BANFIELD: Wow. You know, I really hate hearing that because there is nothing more important than a good, fair honest defense in our system of justice.

All right, Miguel Marquez, thank you for bringing us sort of the color and the interest and the intrigue, especially on the outside of the courtroom.

Listen, there are 12 people at the very least who don't have the choice of lining up to go in and listen through all that every day. They're the jurors. They have to be there. They have to listen to this woman. So as the trial wears on, what about their tolerance? The jurors, are they worn out? What does wear out a jury?

We're going to have a look at the effect that a long very and tedious trial can have on those who are the arbiters of life and death.

(COMMERCIAL BREAK)

So, we are now about three months into Jodi Arias' death penalty trial. Three months. Look, you just saw some people can't get enough of it. They're either riveted by the television coverage or they're lining up in the dark outside of the courthouse to get a firsthand look and get a seat in the courtroom.

But then there's that jury, those people day in and day out have to be there. And they're forced to pay attention. And as it drags on, day after day, witness after witness, tawdry piece after tawdry piece of video tape, what is it that might frustrate the jurors? Or bore the jurors? And at what point do you risk testing their tolerance?

Joining us with that because it is critical, they are deciding life and death is CNN legal analyst, Sunny Hostin, and defense attorney and law professor, Joey Jackson.

Joey, let me begin with you. Some people think that the longer the trial, the fairer the trial. The more evidence that's presented, the more arguments that's in front of the jurors. Can it have the opposite effect, can it just get under their skin?

JOEY JACKSON, CORRESPONDENT, "IN SESSION" ON TRUTV: You know, it certainly could. You have to be careful. I once had a judge tell me, Ashleigh, I want to be entertained. You're here to entertain me. Make this my Broadway. And it's a matter of having jurors that are perceptive, that are there and you know insightful.

And one of the good things about this trial however and I think what gauges their interest is that they're allowed to ask questions and that's important because it keeps them focused. But it becomes to point when is enough, enough. And in this particular case you have a prosecutor who is very good at cross-examination. So if you are sleeping during (ph) the direct examination, certainly you get up when he peppers (ph) those witnesses with questions but you do have to be careful on the issue of jury fatigue because it prevents them from focusing as they should.

BANFIELD: And you would hope the judge's gavel would also wake up anybody in court who needs to be listening.

Sunny Hostin, Joey just mentioned the jury questions which again is so unique and really fascinating in the case. This jury has had literally hundreds of questions. I think it's about 112 question for the psychologist on the stand and over 200 questions for Jodi Arias. But perhaps something they don't know when they forward those questions, is that (ph) their questions lead to additional questioning from both the defense and the prosecutors, direct and redirect. And it just draws out the length of the days they sit in that courtroom. So good thing or ultimately a bad thing for them to be getting involved to the extent they are?

SUNNY HOSTIN, CNN LEGAL ANALYST: Oh, I think it's a good thing. And I got to tell you I think they know the deal at this point. Because they may not have known it would drag it out initially, but they asked Jodi Arias over 200 questions. And then the psychologist gets on the witness stand and they asked over 100 questions. So this is a very engaged jury.

But I've got to tell you, I wonder when the jury's fatigue does sort of settle in at this point. Because this has been a very long trial. They have clearly been engaged. But you don't want them to hit the fatigue when they go into the jury room. To deliberate. And that's my fear here. Because they've gotten so much information at this point, from so many different sides, what if they get into the jury room, and they're exhausted. They don't want to hear about it anymore. They don't want that talk about it anymore. And they just go for it.

BANFIELD: Information overload?

HOSTIN: I think jury fatigue is a real possibility here at the end of the day.

BANFIELD: I want to just close off this segment by giving you an anecdote from the O.J. Simpson case in which jurors were sequestered for about nine months. And they came to jury deliberations with their bags packed.

(BEGIN VIDEO CLIP)

And they delivered nine months worth of testimony and evidence. Nine months worth of Judge Ito's information in that courtroom. Deliberations did not last 2 1/2 hours. So there is a huge risk of overload.

(END VIDEO CLIP)

All right, Sunny Hostin and Joey Jackson, standby. We're going to see you a little bit later on in the hour.

BANFIELD: Just ahead, though, I want to take you back to Phoenix because there's a very big issue of money. What does it cost to defend someone when you are going to hold them to the potential of the ultimate punishment of death? It costs a lot. And Jodi Arias' attorney does not want you or anyone else to know just how much. I'll tell you why in a moment.

(COMMERCIAL BREAK)

Jodi Arias' lawyers are not too keen on you knowing how much it's costing to defend her. And they're also not keen on the other side, across the courtroom, the prosecutors knowing either. Defending someone for the death penalty is very, very expensive. As it should be. You need the best defense possible, right? A life is at stake. You can't go back and get a do-over.

At noon, Eastern, the judge in her case is going to hear some motions to keep those details of the costs from reaching public eye.

(BEGIN VIDEO CLIP) Maricopa County has already however forked over roughly $838,000 just for what's been billed so far. We're not even done yet. And, hey, if she's found guilty, that final amount could be so incredibly high. So much higher than just the 800,000.

The defense says any more information getting out like that could hurt Jodi Arias' ability to get a fair trial. Not just the numbers but the stuff that goes with the numbers. Like where's the money going, what witnesses might end up in the defense case. It's (ph) tipping your hand to the other side, right? Fair or not the $838,000 could be just a drop in the bucket. If she's convicted and gets the death penalty, that number soars into the millions.

(END VIDEO CLIP)

CNN's Christine Romans joins me now with the straight dope (ph) on the numbers folks. And also with us, Jean Casarez, correspondence for "In Session" on truTV.

Jean, first to you, for someone who has spent almost your lifetime, your professional lifetime in courtroom, is it fair to make a statement that putting someone to death costs a lot more than putting someone in prison for life, correct?

JEAN CASAREZ, CORRESPONDENT, "IN SESSION" ON TRUTV: It costs much, much more. No question about it. And, you know, this case right here is one that is mounting. We now know that it's over $800,000 that has spent so far. And the hearing that's going to take place in less than an hour, I'm going to courtroom after we finish this right here.

The defense is saying in essence, look, this is our work product. We are private attorneys. We've been appointed by the county and the state to perform these services. So we have to bill our hours, and we have to write down what we've done to get our fees paid. Along with our experts and those that are consultants. That's our work product. And if that becomes public and the prosecutor finds out then he can use that in trial against us. And furthermore, if we go into the penalty phase, that can be used against us, too.

So they are asking for a protective order, even though this is all paid for bit taxpayers, Ashleigh, it comes out of their pockets. But I think they have a very valid point, this is a death case.

BANFIELD: And they may just want to keep it quiet while they're still litigating the case and then let it open up afterwards.

In the meantime, while it's not a perfect science, Christine Romans I put you to the test, man, if you didn't think there was going to be math in your job. Every case is different, I understand. Every case is different. Some are very forensic in their murder cases and some people aren't. But generally speaking what do the numbers tell us about how much it costs to kill someone?

CHRISTINE ROMANS, CNN BUSINESS CORRESPONDENT: It tells us that the appeals process is very, very expensive across the country. You're right, every single state is different. And when you look at the numbers, different states, this is what we found. We found in Kansas, for example, the public advocate in Kansas found that a death penalty case was 70 percent more expensive from sentencing all the way through to the actual death.

(BEGIN VIDEO CLIP)

BANFIELD: Seventy percent more expensive --

ROMANS: More expensive.

BANFIELD: -- to kill someone than to keep them alive forever?

ROMANS: That's right. In Tennessee, it was 48 percent more than equivalent of life imprisonment. And in Maryland, a separate study from the Urban Institute in another death penalty group, found that Maryland is three times more expensive than other cases.

It's interesting that the death penalty case in Kentucky, our death penalty study in Kentucky they found that cases last longer.

(END VIDEO CLIP)

There are more experts. Twice as many attorneys involved. There can be three to five times longer for the trial. There could be a change of venue, that can cost an awful lot of money. High security and appeal is awarded to people. That costs more money. You have two trials in Kentucky, one for the crime to find guilty. One for the punishment phase. There's lab work, there's forensic. And again, the appeal process can go on and on it can take 15 (ph) and so it's very expensive.

BANFIELD: So Jean Casarez, that's an issue. I think a lot of death penalty advocates say, for heaven's sake, you know, we keep these people alive forever. We've got to give them medical care. We've got to look after them. We've got to put them in protective custody at times. It's infinitely more expensive to care for them until they die naturally in death than if we just gave them the needle.

The truth of the fact is that they have a constitutional right.