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Legal View with Ashleigh Banfield

Oscar Pistorius Trial; Guns and Crime in South Africa; Pistorius' Body Language; Two Versions of Events on the Night of Steenkamp's Death; Freed Death-Row Inmate Saved by DNA Testing

Aired March 07, 2014 - 12:30   ET

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

(COMMERCIAL BREAK)

ASHLEIGH BANFIELD: Welcome back to LEGAL VIEW. I'm Ashleigh Banfield.

We're continuing our look at the Oscar Pistorius murder trial. The prosecutors in this case of this icon, this Olympian, Oscar Pistorius, they're trying to paint him as something much different than that man that everyone came to love.

They're trying to show him as a careless, gun-obsessed lunatic, maybe even capable of murdering his girlfriend of three months.

Besides a murder charge, they're trying to prove something else, that South Africa's golden boy is apparently trigger happy, for two separate incidents that they allege happened, shooting a gun in public.

(BEGIN VIDEO CLIP)

SAMANTHA TAYLOR, PISTORIUS' EX-GIRLFRIEND: So, I was sitting in the back, and after they said they wanted to shoot a robot (ph), and about two minutes after, I saw Oscar take his gun and shoot out of the car roof.

KEVIN LERENA, FRIEND OF PISTORIUS: Whilst the gun was passed to Oscar, yes, from what I remember correctly, Darren (ph) said, I'm one up. There was a bullet in the chamber -- I'm one up.

I then believe Oscar removed that bullet.

UNIDENTIFIED MALE: You believe or did you see it?

LERENA: I did not see that.

UNIDENTIFIED MALE: Have not seen it.

LERENA: A shot went off in the restaurant and then there was just complete silence.

(END VIDEO CLIP)

BANFIELD: Now the defense is arguing through cross-examination that the reason Pistorius shot his girlfriend is because he was terrified that she, in fact, was an intruder.

And this is going to get more attention when their case in chief will start. And maybe it's not such a far-fetched argument to make, either, because this is the reality for people who are living in South Africa.

According to the police statistics, roughly 45 people are murdered there every day, and the number of home burglaries is up 70 percent in just the last decade. Keeping that in mind, again, his story may make a little more sense.

Joining me now from South Africa is Kelly Phelps and also body language expert Susan Constantine.

Kelly, I want to start with you if I can. I don't know that so far even in the prosecutor's case we've really gotten a good feel for the gun culture and the crime culture in South Africa. But do you think this is going to be a headline when the defense starts its work?

KELLY PHELPS, SENIOR LECTURER, UNIVERSITY OF CAPE TOWN: It certainly will be. There is no doubt that both the gun culture and the fear of crime that's prevalent among South Africans will become a very prominent theme throughout this case.

And I have to say, if you look at the reality on the ground for most people living in this country and the real fear that they experience in conjunction with the vast number of firearms that are unfortunately held by citizens, the story in and of itself is not necessarily an implausible one.

BANFIELD: I mean, that's a bit pretty fascinating thing, because I think a lot of people knee-jerked right away and thought, Sure, who just keeps the loaded gun right next to them at all times, in the car, in the restaurant, under the bed? So that does sort of shed a little bit more context to all of this.

Susan, I'd like you to shed some context on what's going on inside the courtroom, because e see all of these images, albeit they're still images. They don't cover the kind of video courtroom work that we do in the United States.

We don't have the camera trained on Oscar at all times. We don't have the camera trained on the witnesses at all times.

But the still photos do tell something. He slumps. He holds his hand in his head. He was nearly sick to his stomach where some of the evidence of Reeva's condition were revealed to the court. But does it tell you much about someone when they go through these acts, or can you tell when it's a put-on?

SUSAN CONSTANTINE, BODY LANGUAGE EXPERT: Well, what I'm noticing here is there's these clusters of gestures. And they're all very similar.

He collapses almost into his hands. There is a lot of distress. And you could actually see the vein almost popping out in his forehead.

What I'm experiencing is that he's overwhelmed. He's in a surrender position. He is dealing with a lot of pain and suffering. It's hard to tell whether it's authentic sadness. It really is really more about the fact that he's truly suffering.

That's a face shield right there, not wanting to actually come in contact with the true emotion, the tension, the pinching of the nose, the hands cupping the back of the head. He's showing a lot of suffering and pain.

You know, when he's collapsed forward, that's actually in a surrendering position. And the reason why he is feeling sick to his stomach, you know, he's in a kinesthetic moment, so he's feeling a lot of tremendous amount of emotion.

But, all in all, what I see here is pain and suffering and tension, not sadness.

BANFIELD: I know, and this is my argument, and I will make it over and over again, all the way up to the U.S. Supreme Court, that cameras in the courtroom do not create a mockery. They open the process and they help get to the truth, because that's how we talk. We look in each other's eyes, and we want to know if we get a feeling, a gut feeling, for how someone is behaving, how someone's acting.

And I will go to my grave making sure that I've done everything I can to insist that the Supreme Court gets cameras at some point in the U.S.

Kelly Phelps and Susan Constantine, thank you both. Do appreciate your insights.

UNIDENTIFIED FEMALE: Thank you.

BANFIELD: At the moment that Oscar shot Reeva, was he wearing his prosthetic legs or not? Is that a critical question?

Because as it turns out, the forensics, the CSI, really makes a difference, and the prosecutors aren't even there yet.

We're going to lay it out for you, just ahead.

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BANFIELD: Olympic "Blade Runner," Oscar Pistorius' guilt or innocence may actually hinge on whether he put on his prosthetic legs before or after he shot his girlfriend, Reeva Steenkamp.

CNN's Tom Foreman will take us through the track hero's story of what exactly happened that night, moment for moment, and the prosecution's version of what they say really happened.

(BEGIN VIDEOTAPE)

TOM FOREMAN, CNN CORRESPONDENT: Throughout these proceedings, both sides have been insisting their version of events is the correct one. So let's sort them out. Oscar Pistorius says it all began in the bedroom where in the early hours of Valentine's Day, in the darkness he and his girlfriend were asleep there. He got up to go out to the balcony to bring in a fan and to close a window. Unbeknownst to him, he says, his girlfriend got up at the same time and went to the bathroom.

So when he came back in from the balcony, he insists he was under the impression that she was still in the bed. So let's fly inside and show you his point of view. He says he goes into this darkened room, he doesn't have his prosthetic legs and he's low to the ground. The room is very dark. He can't see much but he thinks she's must be there, and then he hears a noise down the hallway.

There have been threats against his life. There have been break-ins in the neighborhood before. He gets his pistol from under the bed and goes down the hall to confront the intruder, sees a open window. That door to the toilet room is closed and he hears a noise behind it. He thinks that must be the intruder. He starts yelling for the intruder to get out, yelling for his girlfriend to protect herself. In a panic, fires through the door.

Only when he goes back into the bedroom to put on his prosthetic legs and he turns the lights on he says does he realize that his girlfriend's not there. Then it occurs to him that that might have been her inside the toilet room. He goes back and bashes the door down and starts calling for help. That is his version of what happened.

But the prosecutors tell a very different story. They say, look, there was no darkness. The lights were on the whole time. There was no confusion. There was a huge fight going on

They say this couple had been arguing for quite some time, so loud that neighbors hundreds of yards away could hear it. Yes, she went into the bathroom, but she went there and locked the door to get away from him

And they say that Oscar Pistorius then, indeed, got his pistol and, yes, he went down that hallway in the full light with full knowledge of what he was doing, that he was pursuing her to that door. And when he found it locked, in a rage he tried to bash it down and shot through it with the intent of killing her.

Two very different stories, and the details will determine whether or not he spends a lot of time in jail.

(END VIDEOTAPE)

BANFIELD: Tom Foreman, doing an excellent job setting up both versions, very plausible.

And joining me now from South Africa is forensic analyst, Laurie Peters.

And why forensic analysis is so critical is because, Laurie, whether he put his legs on prior to or after the shooting, won't that be so obvious once the forensics come in, the trajectory of the bullets, whether the shooting was up, up towards the down position, or down towards the up position?

LAURIE PETERS, CNN FORENSIC ANALYST: Yes, it should be. If one assumes that he held the gun logically, straight out, then -- and fired, then you should be able to see very easily whether he was on his stumps or on his prosthetics. However, if he fired from a position like this, that could, then again, confuse the issue.

BANFIELD: Is there anything other than that? I mean, it just seems so simplistic, almost like that would be the only evidence you would need in this case. Is there anything else to the CSI and to the forensics that might make or break this case for either side?

PETERS: Of course there is. The ballistic evidence will have to be backed up by the blood spatter evidence. That will then be backed up by the evidence from the coroner. And that will also then be backed up by the person that analyzed the door. In other words, did they beat the door with the cricket bat first? what were the sequence of the shots?

All of this is going to be important. Because right now, we don't know where the state is in saying, was the cricket bat first, was the gunshot first? Of course, this is all going to link in. And it's like building a puzzle. And once all the pieces are in place, we'll have the puzzle.

BANFIELD: It will be fascinating to see that play out. Laurie Peters, live for us in South Africa. Thank you for that.

And also want to remind our audience that you can tune in tonight to CNN. Robin Curnow is going to have more in this week's CNN spotlight, the Oscar Pistorius trial. It begins at 10:00 p.m. Eastern team.

(COMMERCIAL BREAK)

BANFIELD: I want to tell you about CNN's latest project, the most thorough and revealing examination of the death penalty this network has ever done. It's an original series, co-produced by Robert Redford, and it's aptly called "DEATH ROW STORIES".

Each show examines a different capital murder case, looking at the evidence and getting very close to the people who are involved: the attorneys, the victim's families, and, of course, the men and women waiting for execution.

(BEGIN VIDEOCLIP)

UNIDENTIFIED FEMALE (voice-over): An execution date was set for Elmore (ph). He was placed in a high-security, lockdown cell, while awaiting his date with the electric chair, now a mere three weeks away.

DIANE HOLT, FORMER LEGAL INTERN: I tried my hardest to get him ready for it. And he called me one day and he said, "Are they going to kill me?"

I think I told him in the most simple terms I could tell him, that they were going to have to take me out first.

(END VIDEOCLIP)

BANFEILD: That woman in that clip, that's from one of the episodes, in fact, the premier episode this Sunday night. Her name is Diane Holt, and she was a legal intern. I said intern. She found some little holes in a murder case that became massive holes in a murder case. And she started a valiant fight to get that accused man off of death row. And you're going to have to watch the program this weekend to find out if she succeeded and what exactly she found.

But let me just say this, jaw-dropping. Sitting with me now, something else jaw-dropping, a man who was on death row. He's got his own death row story, in fact, to tell. Kirk Bloodsworth here in the blue jacket, convicted of murder, sentenced to death, spent nearly nine years in prison, two on death row, in fact. Those are the hardest, I'm sure, mentally.

I mean, and after all of that, it was DNA evidence that proved that Kirk did not commit the crime that he was accused of and convicted of. He was set free, in fact, the first American ever exonerated because of DNA testing.

Also sitting with him is Richard Dieter from the Death Penalty Information Center. And to his left, of course, our own Jeffrey Toobin, our senior legal analyst.

First and foremost, post-conviction DNA testing. You think it's a no- brainer when you hear about your story, the other stories, every one of the stories in this episode. And it's not. It is not a given that someone can get post-conviction DNA Testing. It just defies logic.

KIRK BLOODSWORTH, FALSELY CONVICTED: It's not. In fact, out of the 143 that have been exonerated in the United States, only 18 have been DNA exonerations. So it really shows that we have a lot of systemic problems outside of DNA testing.

BANFIELD: By the way, there was no direct evidence tying you -- there was eyewitness testimony that proved all to be mistaken.

BLOODSWORTH: Right.

BANFIELD: It was someone who just called anonymously to the police to suggest, "I think I know the guy you're looking for."

BLOODSWORTH: My next door neighbor called the police and said, "It looks like my neighbor, Kirk." And then he's talking about the composite.

BANFIELD: Looks like a composite.

BLOODSWORTH: Looks like my neighbor, Kirk. And he said -- the witnesses said that this guy I saw was 6'5, curly blonde hair bushy mustache, tan skin and skinny. My hair was as red as a fire plug back in those days. I had side burn down to here, missing tooth in the front. And there is a picture of me back in that time. BANFIELD: Did you -- back then, that picture of you, does that resemble anything at all like the man they eventually caught for the crime you were serving time for?

BLOODSWORTH: I don't think so. In fact, after we found him out 10 years after I was released by the same DNA that freed me caught him, he was only 5'6 and 160 pounds.

BANFIELD: So Richard, let me ask you this. You're steeped in this. It just seems to me that since we're making so many errors and they're compounding it -- and it seems exponential these days. I think we have had 130 exonerations from death row.

Why do we still have capital punishment and why is it so popular? If we're making mistakes and we're putting innocent people behind bars, and potentially killing them, and in some circumstances killing them, why are we still doing this?

RICHARD DIETER, DEATH PENTALTY INFORMATION CENTER: I think it's largely part of the political process, not part of the criminal justice system.

In other words, we executed 39 people last year, but that doesn't have any effect on the murders in this country. But for the district attorneys or the governors or other representatives, the death penalty is a symbol. It's like a cure for the crime that everybody hates, and they don't know what to do about it. And so the death penalty is sort of the -- quick answer.

BANFIELD: For the worst of the worst, until you meet Kirk.

DEITER: Right.

BANFIELD: And Jeffrey, that's where you come in. This is the kind of thing where I wonder, are we just getting smarter and realizing the folly of our ways, and it just takes a while for the wheels of justice to catch up with the notion that we know we're not perfect and we're killing innocent people?

JEFFREY TOOBIN, CNN LEGAL ANYALST: Well, but we do know that the death penalty is in decline in the United States. That's a story that I don't think a lot of people know. The number of people sentenced to die, the number of executions, the number of people on death row, everything is going down.

One big reason for that is there's less crime. Crime is just down since the early 90s. But also, I think, exonerations like Kirk have an effect well beyond -- I mean Kirk is actually the key figure in Maryland getting rid of the death penalty. I mean, he almost single- handedly was responsible for Maryland getting rid of it.

But if you look at juries, even individual jurors in Texas, anywhere else, they know stories about people who have been wrongly convicted. And they are more hesitant to impose the death penalty.

BANFIELD: Kirk, can you just wrap this up for me? Because, look, I am not weighing in on the morality of the death penalty in itself. I have often said on this show if it were a family member of mine, I might be able to pull that lever myself. That's not my argument. It's the system and how we're seeing that our extraordinary crime- fighting techniques maybe aren't so extraordinary after all.

BLOODSWORTH: That's absolutely right. I mean, what we knew 20 years ago about hair comparison testing, ballistic evidence, even fingerprinting today is all -- a lot of it is a junk science. And we have to rely on what is the truth in the criminal justice system.

I have 143 reasons why we shouldn't have the death penalty. And I think innocence goes right to it. We have put people in jail and more than likely executed innocent men and women.

BANFIELD: And there are those who say that's the price you pay for a retribute of a system. And that's a hard argument to make. But it is out there. I gotta wrap it there, but I could talk to you forever. And welcome back.

BLOODSWORTH: Thank you, thank you so much.

BANFIELD: Honestly. And -- and profuse apologies, whatever that's worth from --

BLOODSWORTH: Thanks. Thanks, so much.

BANFIELD: -- anyone watching this program. Thank you to all three of you. Kirk Bloodsworth, Richard Dieter, Jeffrey Toobin.

I also want to remind you about CNN's original series, "DEATH ROW STORIES" which gets underway this Sunday night at 9:00 p.m. Eastern. It is awesome. Just going to leave it at that. Thanks for watching, everyone. Have a lovely weekend.

"WOLF" starts after a quick break.

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