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Jodi Arias Trial Resumes; O.J. Simpson Wants Retrial; IRS Accused of Targeting Tea Party Groups; Justice Department Allegedly Seized AP Phone Records

Aired May 15, 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: Hello, everyone, I'm Ashleigh Banfield reporting live in Phoenix.

It is a huge day in the legal arena in America. Here in Phoenix, Jodi Arias' life is on the line. Today a medical examiner is set to testify as to the pain and the suffering that man endured. He is the victim, Travis Alexander.

Also in Las Vegas, O.J. Simpson talking. He's expected to take the stand. He's trying to get a new trial, but to get one, he's going to have to trash his former lawyer.

And in Washington, D.C. this hour, President Obama is honoring police officers who have been lost in the line of duty.

And we begin with twin controversies in D.C. and they are rocking the Obama administration, the IRS targeting the Tea Party and other conservative groups who are seeking tax-exempt status, and of course, the Justice Department also being accused of secretly seizing the phone records of the Associated Press.

Having done so, answering to it, Attorney General Eric Holder expected to face tough, tough questions on both of those issues when he appears at a House hearing on Capitol Hill about two hours from now.

And here is just a small example of the combative tone that exists right now between Republicans and the White House.

(BEGIN VIDEO CLIP)

SENATOR ORRIN HATCH (R), UTAH: I've never seen anything quite like this except in the past during the Nixon years.

JAY CARNEY, WHITE HOUSE PRESS SECRETARY: I can tell you that people who make those kind of comparisons need to check their history.

(END VIDEO CLIP)

BANFIELD: On a different track, Eric Holder is defending the department's seizing of the Associated Press telephone records.

Closely following all of these developments as they trickle out, Dana Bash is live on Capitol Hill for us, and our Joe Johns is in our Washington studio. Dana, I want to begin with you, if I can. Just released, that unbelievable scathing IRS Inspector General report is really coming down hard on the IRS for singling out conservative groups.

So if you would for us, give us the headlines and also what the reaction to those headlines has been.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Well, the headlines in this report is that there were inappropriate criteria used to target tea party groups, that it went on way too long, 18 months, even though superiors knew about it.

So it really hits what it calls ineffective management at the IRS. But when you're talking about looking forward, what's very interesting, Ashleigh, is already, this morning, Republicans are saying never mind who did wrong when it comes to needing fired. They want to know about potential criminal violations.

And this came from the two top Republicans in Congress. Listen to them.

(BEGIN VIDEO CLIP)

REPRESENTATIVE JOHN BOEHNER (R), HOUSE SPEAKER: The IRS has admitted to targeting conservatives, even if the White House continues to be stuck on the word "if."

Now, my question isn't about who is going to resign. My question is, who is going to jail over this scandal?

SENATOR MITCH MCCONNELL (R), MINORITY LEADER: These allegations are very serious.

If there was an effort to power to bring the federal government to bear on those they disagreed with in the middle of a heated national election, it actually could be -- could be -- criminal.

(END VIDEO CLIP)

BASH: Now this is exactly the kind of thing that we expect members of the House who are going to be grilling Eric Holder to try to get more information from him on because, Ashleigh, it was Holder who revealed during a press conference just yesterday that there was already an investigation under way to see if any violations of the law happened at the IRS, whether -- and we're trying to find out, of course, whether he's talking about low-level employees, the agents, or even senior officials at the IRS. And we expect those questions to be put to Eric Holder today.

BANFIELD: Well, not to suggest we're going to get all the answers so soon. Just today, in fact, I'm waiting to find out if there will be a special prosecutor on this case.

Before just we do that, today is today, and how hot is it going to be for Eric Holder? He's sort of facing it on a couple of different fronts. BASH: No question about it. This is actually one of the areas where he might have some agreement with members of Congress.

The biggest issue, and Joe can talk more about this, there is no question is that members of Congress are furious about -- most of them -- about the fact that the Justice Department did such a sweeping search and seizure of the Associated Press' phone records.

You've heard it from Democrats and you've heard it from Republicans, and they are not happy.

Now Holder says he recused himself, but I don't think that is going to get him off the hook when it comes to tough questions.

BANFIELD: Recusal, yes, but still a strong defense.

Dana, hold if you will. I want to jump over to Joe.

As you mentioned, Joe, you know a lot about this. You're the crime and justice correspondent. He may be defending the seizure of these records, but there is always that catch-phrase, "this is an ongoing investigation," so to speak, where you can really absolve yourself of having to answer the specific details.

When, if ever, are we going to start getting specific details as to why this seizure was so incredibly broad when it is not supposed to be broad?

JOE JOHNS, CNN CRIME AND JUSTICE CORRESPONDENT: That's true, Ashleigh, and there are actually two ways the attorney general can deflect this.

There is, as you said, that issue of calling it an ongoing investigation. There is also that issue that Dana just eluded to, Holder recusing himself because he was actually interviewed as a part of this investigation really just about a year ago.

But the bottom line is that Holder says this was a matter of national security. Now, he's not saying this, but it's our understanding that the leak in question related to a foiled bomb plot involving a plane a year ago, and Holder says -- he actually said it quite emphatically two times yesterday -- that the leak put American lives at risk.

The Associated Press, for its part, and this has been kind of underreported, Ashleigh, they say they actually waited to run this story until they were told that the threat to national security had passed.

So we're going to see just how much the attorney can answer today, but my guess is we're going to have to wait to get all the facts.

BANFIELD: Yeah, like a tennis match between these two different issues.

All right, Dana Bash and Joe Johns, thank you very much for that. For some legal perspective now on these two very hot-button issues, on just how hot they could come, potentially, from our Washington studio is George Washington law professor Jonathan Turley.

I'm so glad to have you on the hot seat today, Jonathan. And it is a hot seat because now you are hearing even further politicization of something that may not be so political. It all comes down to the details.

But when you start hearing the cry for potential jail terms, specifically when it comes to the IRS issue and targeting of conservative groups, do you see this as going that far, as this could potentially end up as a criminal matter?

JONATHAN TURLEY, LAW PROFESSOR, GEORGE WASHINGTON UNIVERSITY: Ashleigh, history would suggest no one is likely to go to jail.

This type of allegation comes up with almost like cicada regularity. You know, like every 10 years, the IRS is accused of this. Republicans have been accused of this in past administrations.

And it is misconduct. It is wrong. It's a violation of federal law. But rarely do people go to jail for it. An interesting analogy is remember that President Obama said his first term that CIA employees would not be investigated for following orders to waterboard people.

I assume that he doesn't take taxes more seriously than he does torture. They previously have followed this precedent that people follow these orders even if they might be wrong. I expect that's what they're going to say here.

Where you will trip the wire, and it often happens in Washington, is when officials lie to investigators. Then you have something called an 18 U.S.C. 1001 violation. It's simply lying to someone in a federal investigation.

That's where people trip wires. But there is no indication that is likely to happen here, so the most likely conclusion is no one will be charged if you look at history.

BANFIELD: Well, let me ask you about the other side of this, and that is what Eric Holder will have to answer to, if he can, now that he is absolving himself of this Associated Press issue as well.

When it comes to what the Justice Department is able to discuss at this point, the Associated Press is extremely worried about how vast -- and I mentioned this a moment ago with Joe Johns -- how vast this investigation was and the record-seizing was.

Isn't the law very specific that we are so cautious about the freedom of press and the First Amendment rights in this country and the Fourth Amendment search-and-seizure as well that you have to be almost meticulously precise about what you are seizing. It has to specifically direct itself to the investigation or you cannot seize it. TURLEY: Well, this is one of the most abusive subpoenas I have seen -- or one of the most abusive searches I should say -- in terms of all of this information. There is no information of restraint or effort to narrow this.

I have problems, period, with conducting these types of spying operations on journalists, but to seize something of this breadth is really shocking and Holder's comments left a lot of people sort of scratching their head.

He made it sound like this was bigger than the Pentagon Papers. He said people's lives were at risk. You often hear that when the government is trying to justify abuses in surveillance, but there is no evidence to support that. I think he sort of looks foolish in making those arguments.

Ashleigh, a little while ago, I gave a speech at the National Press Club on the anniversary of Watergate, and I said it's astonishingly how many acts we're looking at today were involved in the articles of impeachment against Nixon.

And, ironically, the one thing I noted was Obama does not had the same allegations involving the IRS. We can now check off that box.

This doesn't mean that he is Nixon, but I have to say that he is using powers here, and he is being accused of the abuse of powers in terms of his administration that raises legitimate questions that need to be raised.

BANFIELD: Well, Watergate has certainly been raised a number of times in the last several months, specifically referring to Benghazi by critics of this administration, and now we are seeing this also being applied to these two issues as well.

I think we have a lot still to sort out, but, Jonathan Turley, thank you for your wise counsel. We do appreciate your time today.

TURLEY: Thank you, Ashleigh.

BANFIELD: Also want to remind our viewers -- thank you -- that you can tune in tonight to Piers Morgan because he's got a fantastic guest, particularly at this time.

The former defense secretary, Don Rumsfeld, is going to be in the chair with Piers tonight, and he's going to talk not only about the IRS and the Justice Department, but probably about a couple of other things as well. And methinks that Piers will likely discuss Benghazi.

This is coming up live tonight at 9:00, former defense -- Don Rumsfeld, secretary of defense. It will be terrific.

And when we come back, we have a lot of breaking news. We've got essentially dueling courtroom dramas today where O.J. Simpson, after silence for years, is about to take the stand and break that silence.

He says he shouldn't be in prison at all. A lot of people in America who don't agree with that, but says he shouldn't be there for why he's there. He says he deserves a new trial, says his lawyer fouled up, could say a few other things as well.

And on the right-hand side of your screen, Jodi Arias back in court as the medical examiner is set to testify very graphically about just how awful the death of Travis Alexander was, how much pain he suffered, and why that means Jodi should potentially die.

We are back live from Phoenix after this.

(COMMERCIAL BREAK)

BANFIELD: Welcome book to Phoenix, I'm Ashleigh Banfield reporting live. It is a big day here today. In just under two hours, the next phase of Jodi Arias' murder trial is set to get under way behind me. It's the aggravation phase, it's the first part of a two-parter so to speak in this process in deciding whether Arias should be put to death for murdering Travis Alexander.

The jurors are going to have to unanimously decide if the killing he perpetrated was something quote "especially cruel." It would have to be beyond the norm of first degree murders.

It's not an easy thing to do. They are really in for an emotional ride here because one thing is to be sure to be today is very graphic and very emptional testimony. Family members down the line also set to talk in that courtroom.

CNN's Casy Wian and HLN's legal correspondent Jean Casarez are here with me live in Phoenix. We have been looking at this case since the beginning, but you two have done an especially detailed and stellar job in covering the essential questions of this death penalty. Most serious death penalty case.

Casey, let me start with you. It has been an unusual last five days, typically, we could go from the guilt and innocence phase into the sentencing phase in the next day. But we've had a five-daybreak. A lot has been going on with Jodi, strange things in that five days. Can you get us up to speed?

CASEY WIAN, CNN CORRESPONDENT: That's right, Ashleigh. While there have not been public hearings in this case, it would seem from a public perspective it is at a stand still. There has been a lot of action behind the scenes. You remember after Jodi Arias was convicted of first degree murder, she gave that interview to the local television station and said she preferred to have the death penalty rather than life in prison. That led her to be put on suicide watch in a local jail here. Her mother was not allowed to visit her in jail because of what was going on there.

Since then, she has been taken off of suicide watch, but she still remains a maximum security prisoner because of the charges against her. What that means is she is checked every 15 minutes by jail personnel. She is also only allowed out of her cell for an hour a day. If she wants to take phone calls or take a shower, that's when that has to happen. When she is transported from jail to court, she is shackled because of the maximum security restrictions.

There was a hearing yesterday here in court behind closed doors. It was a brief hearing yesterday morning. We don't know exactly what went on during those proceedings. We do know the judge has said she is not going to allow Jodi Arias to give any more news media interviews.

BANFIELD: Well, that's a good idea because none of us in this business has ever heard of an interview given in between phases like this. It could be so critical to the process. God forbid it causes any kind of a mistrial potential or appeal in this case. As she sits in that cell 23 hours a day, that's possibly how her life could end up being depending on what the jury decides to do. What exactly is that jury, when they file into that courtroom today, what exactly are they set to hear?

WIAN: Well, they're going to hear some very, very graphic testimony. There has been a lot of uncomfortable disturbing graphic testimony throughout this trial, but since the prosecution now needs to prove that this was an especially cruel murder compared to all other murders, they're going to show autopsy photos of Travis Alexander's body that some of them they've displayed in court already that are just so disturbing and graphic, it's hard to even describe them.

The first witness on the stand is going to be the medical examiner who conducted the autopsy of Travis Alexander. He's going to talk about those dozens of stab wounds, how his neck was slit from ear to ear. He is going to talk about the gunshot wound to his forehead. What will be key in this jury determining whether this was an especially cruel killing was how long Alexander was alive and conscious during all of those violent acts. That is going to be key to this aggravation phase of the case, Ashleigh.

BANFIELD: The blood spatter alone shows that he --

(AUDIO BREAK EMERGENCY SYSTEM ALERT)

JEAN CASAREZ, HLN LEGAL ANALYST: -- there's no criminal record. I think that's (AUDIO BREAK). Number two, she's been a good prisoner. There have been a couple of things where she's hidden some pens and she's had violations for that in jail, but she has been out and out a model prisoner, I believe.

Also, there is the aspect of good character. Now, when we listen and look at the testimony, we know that she went and she sang the "Star Spangled Banner" at an event. We know that she was interested in photography and was starting her business of wedding photography. We know she also brought food to an ex-boyfriend who didn't have the money to get it. I think the defense will bring this in.

What about Travis Alexander's behavior? Could that be a minigating factor. We'll see if the defense goes there, the victim's behavior, how he was towards Jodi, impacted her, was something that psychologically affected her. Post-traumatic distress disorder. You know they will go there. There will be a lot of things that I think at least will be argued for the defense.

BANFIELD: Jean, quickly number on the statutory mitigators, does she appreciate the wrongfulness of her action, number 11 on my list of other mitigators, remorse and grief. So far, especially with that extraordinarily unorthodox jailhouse interview, there is nothing to suggest that she believes at all that she'd remorseful or that she did this or that she's at least going to let on in this courtroom.

CASAREZ: Maybe that's why Jodi said in the interview, that my attorneys say I have no mitigating factors. The statutory mitigating factors that you're talking about right there. I would think the defense would bring in the tears you saw on the stand when Travis' name was mentioned. When the injuries to Travis were documented in court. She was crying during that time. One statutory mitigating factor is her age. Apparently, that is not going to be available to the defense, but they have to argue I think an argument that she is 32-years-old. She's not 72-years-old. She's 32-years-old. I think they'll bring that in.

BANFIELD: Wow, you know, I'll tell you what, I could name a whole bunch of people who would say the tears on the stand were not for Travis Alexander but were for Jodi Arias. I suspect that's exactly what the prosecutor would come back with if that's one of the mitigators of the defense.

If the ever get to that phase. I They may not even get there. Let's remember, we're at phase one of this second phase. It's a two-part phase of part two. I know it's confusing. But you guys are great. Thank you Casey Wian. Thank you Jean Casarez.

We have other big legal news. It's just one of those days. Wow. O.J. Simpson out of the public eye, locked away in prison for years. Maybe no more. He's had no mic. No camera, no posters, no fans outside the courtroom, but there he is back in the spotlight. What will Simpson say when he finally gets his moment in the sun? Back in a moment.

(COMMERCIAL BREAK)

BANFIELD: O.J. Simpson under oath. Need I say more? You are going to see this live in a little more than a half hour from now. O.J. Simpson serving as his own star witness. It is a hearing that he wants to actually create a new trial. He wants to dispense with everything that's happened until now. Get a new trial and potentially get out of prison for good. He's only been in there four and a half years of a 33 year sentence.

You'll remember his conviction was for robbery, assault, and kidnapping all in Las Vegas in what prosecutors called a good old fashioned shakedown of some sports memorabilia dealers.

Simpson had said he was trying to get his own stuff back. That those dealers had stolen his stuff. At issue today, however; not that. It's whether he was done in by his own lead attorney, Yale Galanter. Simpson claims that Galanter bungled his defense. My colleague Paul Vercammen is going to pick up the story from there because a lot of people are saying a lot of different things about what O.J. Simpson has to say and O.J. Simpson will be saying it, isn't he, momentarily, Paul?

PAUL VERCAMMEN, CNN CORRESPONDENT: He is going to be saying it, Ashleigh, and he's going to be saying it for a long time. We expect that at 9:00 here on the west coast, O.J. will take the stand promptly. By the way, it is expected he will be on the stand most of the day under direct examination from his new lawyers. Then, of course, can you expect an absolutely furious and blistering cross examination. You know, prosecutors not choosing to say anything to us when I called over and tried to get some comments from them, the just say the record speaks for itself, meaning they think that O.J. was rightfully convicted.

But today as he goes through those 19 claims for relief leading to a new trial, we are going to hear everything from Yale Galanter did not fully advise him about a plea deal, Yale Galanter knew he had planned to recover that memorabilia an also some personal pictures in there, and all sorts of other things. They will say that Yale Galanter refused to admit or didn't admit that O.J. had been drinking, and drinking could have clouded his judgment and O.J. could not possibly not seen that there were weapons in that room when he and others packed into the Palace Station hotel trying to get that memorabilia back.

You may recall there were nine people in there, many with criminal records, many with conflicting stories, all of them arguing. His lawyer thinks O.J. can sort out the mess better to what went on in there and should have testified in that first trial, Ashleigh.

BANFIELD: Paul, it will be fascinating. We all wonder. I know I was one of those reporters who regularly ask for that jailhouse interview, and I was always rebuffed because there were so many appeals that Yale Galanter was actually filing. So, he has been silent. Not any more. Like I said, Paul you will continue to watch from the courthouse there about half an hour away from O.J. Simpson talking publically on the stant. Thank you, Paul Vercammen.

In Miami, I am joined now by criminal defense attorney Jose Baez. Jose, thanks for being with us. I wanted to ask you, when I covered that case of O.J. in Vegas, I watched very carefully as Yale Galanter was in lead chair and Gabriel Grasso was his Vegas local council, and we've now seen Gabe Grasso get on the stand and effectively support some of the things in a certain way that O.J. Simpson is claiming in this courtroom. How common is it for this to happen between a legal team where one actually testifies against the other?

JOSE BAEZ, CNN CORRESPONDENT: You know, unfortunately, I think it happens quite often. You have big egos in the room whenever you have a defense team. Sometimes you have to realize you have to check it at the door. You have to put the client's best interest first. So really here is going to be the inner (ph) determination by the court who had this client's best interest, whas is Mr. Grasso or was it Mr. Galanter? But it happens very often, especially when you have these large egos in play, and you have cameras watching.