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What Dzhokhar Tsarnaev Told His Mother; More Hot Water for IRS; Bode Miller Baby Drama; What Rights Do Expectant Mothers Have?

Aired June 04, 2013 - 11:00   ET

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

(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, ANCHOR, "CNN NEWSROOM": Good morning, I'm Ashleigh Banfield. We've got a very busy show ahead, the day's main news and, as always, our take on "Daytime Justice."

But we begin this hour with new and fascinating insight into the mind of the Boston marathon bombing suspect, Dzhokhar Tsarnaev. He is right now in a military hospital, recovering from wounds from a gun battle with police.

He's charged with using and conspiring to use a weapon of mass destruction in the attack that killed three and wounded more than 270 at the Boston marathon.

Once every month, he is allowed a phone call to his parents in Dagestan, and we are just now hearing about his latest call.

Phil Black joins me live now from Moscow. What did he say in the call?

PHIL BLACK, CNN CORRESPONDENT: Well, Ashleigh, this call was recorded by his family and broadcast in a British television interview, and in it, Dzhokhar Tsarnaev is heard speaking Russian and his mother, who is listening to this recording a week after the conversation took place, is clearly very upset.

Now we're told that at the time the conversation took place, they were not allowed to discuss the details of the Boston case or the attack, so the conversation is very much dominated by his parents asking him about his health and well-being, attempting to show their concern.

But for much of the conversation, it does sound like he's the one trying to soothe their concerns. At one point, his mother asks, are you in pain? And this is what he says in reply. He says, "No, of course not. I'm already eating and have been for a long time. They are giving me rice and chicken now. Everything's fine."

His mother says to him, "You have to be strong." And he goes on to reply, "Everything is good. Please don't say anything."

His mother says hat she was surprised by just how calm and in control he was. She expected him to be far more upset, to demand answers about his case and what is actually happening to him.

But she makes the point that quite often through the conversation it was him calming her, telling her that everything was going to be OK.

Ashleigh?

BANFIELD: Is it easier to characterize, having seen the entire interview, what that meant when he said, "Please don't say anything." To a layperson in a snippet, it sounds awfully curious.

BLACK: It does. It's not entirely clear just from listening to the section that we've been allowed to hear.

It could be a reference to the fact that their conversation was restricted in the sense that they were instructed not to talk about the case specifically. It could also be that he was trying to ask them not to express concern, not to show fear, not to worry about him, not to be concerned about his precise circumstances.

As I say, the little bit that we've heard certainly sounds like he's trying to say that he's OK, he's doing all right and he wants his parents to know that as well.

BANFIELD: Well, certainly, Phil, in almost every lockup, there is usually a big sign saying, "You're being recorded right now as you speak and your words can come back to haunt you," or something to that effect.

Phil Black, live for us in Moscow, thank you for that.

And, you know, just as an addendum to this story, back here in the United States, what timing, the last U.S. survivor of the Boston bombing has now left the hospital.

(BEGIN VIDEO CLIP)

ERIKA BRANNOCK, WOUNDED IN BOSTON BOMBING: Knowing that I'm still in their thoughts and that it they miss me has kind of given me the kind of push to get home.

(END VIDEO CLIP)

BANFIELD: Just ahead in the NEWSROOM, Erika is going to talk about her injury and her recovery and the preschool students that she can't wait to return to.

Checking some other top stories that we're following here at CNN, major flooding in and around St. Louis right now, amazing aerial pictures, and, no surprise, there's flash flood warnings that's still in effect, at least until 2:30 today around the time the Mississippi River is expected to actually crest, this after a levee actually broke in West Alton, Missouri.

About 300 people had to evacuate the area quickly. It seems odd only because five months ago the area was suffering from a severe drought. Since then, the river's water level has shot up 45 feet.

More rain is in the forecast, too, for Kansas, Missouri, Oklahoma, and Arkansas, all over the next couple of days. Tea party and other conservative groups are giving lawmakers their firsthand account of the kind of scrutiny that they received at the hands of the IRS. Founder of a group called Linchpins of Liberty says that he applied for nonprofit status more than two years ago.

(BEGIN VIDEO CLIP)

KEVIN KOOKOGEY, PRESIDENT, LINCHPINS OF LIBERTY: As of today, I've been waiting for 29 months without status.

In the interim, I lost a $30,000 launch grant from a reputable nonprofit whose executive director advised me that he had never seen such treatment of a 501(c)(3) applicant in his 25 years of making grants.

(END VIDEO CLIP)

BANFIELD: Yesterday the acting IRS commissioner says that he does want to restore the public's trust, but that could get a little bit tougher today because we're expecting the inspector general to release a report in about an hour, in fact, that says that the IRS spent as much as $50 million on conferences.

In other news, a Mississippi man has been indicted for sending a ricin-laced letter to President Obama. This is not the most recent case. This is a case from over a month ago.

James Everett Dutschke has also been accused of sending toxic notes to a Republican senator and a judge in Mississippi. This indictment says that he tried to make it look like someone else did it by putting another man's initials on the letters.

Officials initially arrested that other man. He was an Elvis impersonator, pretty surprised by all those charges, but those charges were ultimately dropped against him.

The court of public opinion may be revving up in a case of the Olympic running star who's charged with murder, but the judge in the case seems to want to put the brakes on the trial at least for now.

Oscar Pistorius showed up for another hearing this morning in South Africa in the tragic shooting death of his model girlfriend, Reeva Steenkamp. The judge has ruled the trial won't get under way for almost three more months.

That judge is also sending out a pretty stern warning to the media, beware the rules of the court when it comes to evidence. All of this after some pretty grisly pictures of the murder scene were leaked to reporters.

Robyn Curnow is covering the case, she joins us live from South Africa. There is some analysis where you are in South Africa that it is going to be very difficult for Oscar Pistorius to get a fair trial.

Is this why the judge did what he did and push the deadline farther down the road? ROBYN CURNOW, CNN CORRESPONDENT: No. I think this issue of whether or not he gets a fair trial is a very poignant one.

Just remember also, South Africa doesn't have a jury, so there's no chance of a jury being influenced by all of this media. There's just going to be a judge.

This postponement that took place today was agreed to by both parties because the state, crucially, says they're not ready. They still are investigating, which many legal experts tell me points to the fact that they're losing confidence in their case and that they still need time to try and figure out how strong their case is.

So that's why it's being delayed.

BANFIELD: And there's some issue when it comes to what a fair trial means. If the prosecutors are, in fact, having trouble getting evidence, is it at all possible they're having trouble getting evidence because this guy is a beloved, heroic figure in that community?

CURNOW: I think there is this sort of sensitivity, particularly among the court officials, among the police, the prosecuting authority. That they don't want to be seen to be giving Oscar Pistorius preferential treatment.

But I think based on my observation of what's been going on and also speaking to some legal experts that they are actually erring on being quite cautious and conservative, that they're being actually quite tough on him.

So they're very, very aware of the kind of impact this is going to have in the court of public opinion, so they're trying to play by the book here. And they are trying to say, listen, just because you're famous doesn't mean you're going to get special treatment.

On the other hand, they're trying so hard not to give him special treatment that perhaps, according to some people, here, they really are treating him unfairly.

BANFIELD: All right, well, we'll keep watching the case. Robyn Curnow, live for us in South Africa, thank you for that.

Coming you next, our take on "Daytime Justice," case number one, it's he said/she said, really, and, more importantly, what the judge said, the Olympic skier versus a former Marine and firefighter and the battle royale for the child they had together. So what were her rights as a mom-to-be?

Case number two, fighting back, Tampa socialite Jill Kelley, remember her? She was once pegged to the Petraeus scandal. And now she's on the legal war path, suing the federal officials. Does Jill Kelley have a case?

Case number three, he's a ex-con who actually did time in Alcatraz, but can he escape the rap he's facing now? The notorious Whitey Bulger about to meet his jury. Will they give him a fair shake?

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BANFIELD: Bode Miller is a man used to winning, won five medals for downhill skiing at the Olympic games. But now he is competing somewhere entirely different, in a court.

He's fighting for custody of a 14-week-old boy, his son, a boy he has never seen and has only just recently even asked to see. He split with the mother in California and then she split California to attend college in New York.

At that point, she was about seven months pregnant. But Bode Miller stayed in California and now he wants her and the baby to return to California to fight the custody case.

Joining me now is Sara McKenna, a former Marine who served four years in the corps. She's a decorated firefighter and a new student at Columbia University in New York where she is studying on the G.I. Bill.

And also with us is her attorney, Kenneth Eiges. Thank you both for joining me.

I just want to ask you, Sara, right off the bat, you moved to New York while you were still pregnant, about seven months, with your baby boy.

SARA MCKENNA, FIGHTING TO KEEP CUSTODY OF 14-WEEK-OLD SON: Yes.

BANFIELD: But Bode Miller launched custody action against you, as I understand it, before you left the state. So why did you leave?

MCKENNA: He never told me about any proceedings that he was filing. As a matter of fact, he requested that I cease communication with him.

So by all means it was like giving me permission to leave after I told him three months prior to the move I was moving to attend Columbia.

BANFIELD: I'm glad you mentioned --

KENNETH EIGES, SARA MCKENNA'S ATTORNEY: Actually, let me point out that he brought a paternity proceeding before she left California, not a custody proceeding.

And whether a custody proceeding was brought or not, the law is subject to the UCCJEA, which defines a home state as where the child is born.

So whether or not the proceeding was started in California or not, it makes no difference. New York is clearly the home state, and this state is where the case should be heard.

BANFIELD: and I'm going to get to that in just a moment, Mr. Eiges. I know the judge had some very choice words about that very issue, which I find somewhat perplexing. But first to the communication that you had with Bode, Sara, the text messages that went back and forth between you and Bode Miller. You've released some of them, and I want to read a couple of them for our audience.

This is Bode texting you. "I'm not sure. I'm not going to do this with you Sara. You made this choice against my wish, and gave me no say. You are going to do this on your own."

Just quickly to make sure, is that referring to having the baby or leaving the state?

MCKENNA: Yes. No, that was our invitation to my first ultrasound. He declined to go when I asked and said that I would move the dates back for his schedule so he could attend. That's the message I received. That's along the lines of everything I had received.

BANFIELD: Then there's this other exchange that we have as well that I just want to read. It said, "you were right the first time. It's better if he has a full time father that I can give him. Having a once a month dad is not something he deserves. And you should take the chance to walk away while I am still agreeing to it." "Okay, I want what's going to be best for the baby."

And then there's this one as well from Bode Miller to you. It says, "if I'm found to be the father of your kid, I'll deal with it. Until then, don't communicate with me." And then from you, "please take the paternity test I set up in a couple of weeks. The faster we get that dealt with the faster we can sign your rights away."

Did you discuss a lot of this with Bode Miller in terms of being a father or giving up parental rights or just the option to actually leave the state of California, or does it really just come down to these texts?

MCKENNA: He never actually wanted very much to do with my son, and he initially asked if he could sign over his rights and he would pay off his child support in a lump sum and sign over his rights to California. I said that California would never agree to it, and they don't. The issue came down to him just not wanting to be there. After all the attempts I had given him, my only option was to quit working 72 hours a week at a very dangerous job where I had almost lost my life a few months prior to make the best life for my child whether he wanted to be there or not. I set up a private paternity test and said, I'll agree to let you do what you wanted to do, and sign over your rights if you'll take this private paternity test to show you're the father. After he took it, he ceased communication.

BANFIELD: Kenneth, if you could just answer this for me. It seemed like the judge in New York awarded round one in this case to Bode Miller, especially when it cam to just this jurisdiction. I want to read a quote as to what this judge said. "While McKenna," meaning your client Sara McKenna, "while McKenna did not abduct the child, her appropriation of the child while in utero was irresponsible, reprehensible." But what you just said was that the law does not account for an unborn baby and only calls I think it's home rights or home state rights --

EIGES: Home state.

BANFIELD: They only ascribe those rights to children who are born. So why did this happen in New York? Why did you lose?

EIGES: That's a good question. The state has no right in an unborn child. It's not unjustifiable for a woman to cross state lines to come to New York and attend an ivy league school under the GI bill. Unjustifiable contact usually relates to where a parent abducts a child and you cannot abduct a fetus. Obviously I disagree with the decision and an appeal will be taken. But I can't read what was in the judge's mind.

BANFIELD: So, Sara, I just want to ask you this, you named your little boy -- by the way, he's very cute, I've seen pictures of him, just a sweet little guy.

MCKENNA: Thank you.

BANFIELD: You named him Samuel Bode Miller-McKenna. If you're in such a pitched battle with his father, I found it curious that you named the boy after his father. Can you explain why you did that?

MCKENNA: He was originally named Max, and all the guys on my crew in my fire station started calling him the Little Bodester, the Little Bodeski, and it stuck, then it came into my family, saying Little Bode and things like that. We just decided that maybe it would get him more involved if we named the child after him. I think it turned out really cute. I don't dislike my decision, but he does. He'd like to change the name of my son now so I'm going to fight that as well.

BANFIELD: Well, we'll be following the case. Again, I don't know that I've heard of a case like this where a pregnant woman who leaves a state is ordered back to a state for those custody hearings. But it does break a lot of legal ground. Sara McKenna and Kenneth Eiges, thanks so much for being with us.

EIGES: Thank you, Ashleigh.

MCKENNA: Thank you.

BANFIELD: I just want to make sure our audience knows that we did reach out to Bode Miller several times over a couple of days to get comment. We did get a comment from Bode Miller through his attorney. He says this - "my only concerns are my son's well-being and protecting his right to have both parents in his life. My wife Morgan and I look forward to resolving all parents issues as quickly and privately as possible"

And he do invite Bode Miller to come on this program at any time to share more of his story and discuss this case if he wishes. Invitation wide open.

Also, some people are still pretty much scratching their heads over that judge's decision to send that case back to California, especially after you just heard what Sara's attorney said. So coming up, the definition of home state, and our big question -- what rights do expectant mothers have?

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BANFIELD: Want to get back to that saga involving Bode Miller, the famous downhill ski racer and Sara McKenna, a marine, firefighter and mother of his child and her child and the fight between them. That skier wants sole custody of the 14-week-old boy. He's never met the baby, and I just spoke with Sara McKenna, the mother of the baby, a moment ago. Now I want to talk to CNN legal analyst Paul Callan about some of those very sticky legal issues.

You heard Sara's attorney say this home state issue, the law clearly outlines that you have to be born in order to be ascribed a home state. Is that how you interpret the law?

PAUL CALLAN, CNN LEGAL ANALYST: Well, I think yes. This is such a shocking and bizarre decision by this referee Rodriguez.

(CROSSTALK)

BANFIELD: You say referee not as a -- to malign her. This is what she is, a Manhattan court referee.

CALLAN: The references I've seen is she's a special referee. What normally happens in family court is when a hearing and something more serious has to be explored, the judge appoints a referee who has essentially the powers of a judge to hear the arguments and make a recommendation. And the recommendation -- I mean, the wording that was used by -- we'll refer to her as Judge Rodriguez -- is shocking.

BANFIELD: I'll read it. "While McKenna did not abduct the child, her appropriation of the child while in utero was irresponsible, reprehensible."

Does this mean -- does this have any kind of precedent where if you're pregnant you can't get on a bus, sister, until you check with everybody who has an interest in that baby?

CALLAN: I think it's utterly outrageous. Bode miller apparently impregnates her in California and then doesn't want the kid to be born, tries to get McKenna to get an abortion.

BANFIELD: These are all her claims.

CALLAN: These are in the text messages we've seen.

BANFIELD: Right these are her claims.

CALLAN: These are her claims. But, we've seen text messages that she says she received from him. She, while still pregnant, moves to New York because she's got a great scholarship at Columbia University and she thinks, good place to start her new life. So the baby is born in New York, and now some judge, a referee, is saying she is appropriating a child in utero? It's insane, I think. BANFIELD: The text messages I'm going to only presume the judge knew about them, I don't know if they were entered into evidence in this particular case. But let me ask you this. Can a man change his mind? And does it make a difference whether those text messages might have been sent at one point when he didn't have interest in a baby and all of a sudden he sees the light and now has interest in a baby? What difference does it make?

CALLAN: Yes. Well, a man change his mind and a lot of women are shocked about this. There are a lot of men out there who walk away from their responsibilities, and then years later -- four, five years later, the woman needs money and she sues for child support. All of a sudden the father who walked away, now he wants joint custody, wants to visit a child that he's abandoned. The courts generally will give him visitation rights because the courts have a presumption that it's better to have both --

(CROSSTALK)

BANFIELD: Sole custody? That's a biggie.

CALLAN: Not sole custody unless something bad has happened with respect to the mother. Even a father who's walked away from a child can later come into the child's life. That's what the law says. But this is a differently thing. This is a woman who's pregnant. We don't even have a child born. To say that she has done something improper, essentially that she's kidnapped her own fetus and moved to New York is I think a rather stunning finding.

BANFIELD: I've got five seconds. Do you think the appeal has some legs?

CALLAN: I'd say it has legs and some merit and I'd be very surprised if New York goes along with that decision.

BANFIELD: By the way, I just cleared up that in fact, yes, the text messages were read this court, the judge saw, heard the text messages. That was definitely made clear. I'm at a loss. I couldn't understand it when I saw it, but I think there's more to it and we'll probably see more of it. Thank you, Paul Callan.

I also want to remind Bode Miller, if you're out there, you're still invited to come on this program and share your side of the story and your side of the case. It does make for some fascinating legal ground.

Switching gears, an alleged mobster, and not just any alleged mobster, this guy is a reputed FBI informant and he knows the inside of Alcatraz from having been a guest there, Whitey Bulger. What a history. What a legend. And not much of it good. So what about the jury about to decide his newest round of legal woes? Can this man get a fair trifle anywhere? Stay with us for daytime justice.

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