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Legal View with Ashleigh Banfield

Court Adjourns When Pistorius Breaks Down; Pistorius Trial; Ships Detect No New Pints

Aired April 08, 2014 - 12:30   ET

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

PAUL CALLAN, CNN LEGAL ANALYST: There's a charge here called culpable homicide, and that includes reckless conduct as a possibility. This behavior on the witness stand, one could say, indicates that here is somebody who is so passionate, who is so controlled by his emotions that he's blinded by it. He can't even tell his story in court.

Now, do you want to give him a gun? What do you think would happen if he had a gun? Would he use it recklessly? This is the kind of question the judge might be asking. Of course, and I'm sure sunny and I will be discussing this, this could indicate the judge is getting sympathetic, too.

ASHLEIGH BANFIELD, CNN ANCHOR: Talk me off a ledge, because I've often said in court proceedings either that guy deserves an Oscar or, and I hate to say it, as he is Oscar, or this is the truth, because it's hard to lie and be that convincing for many people.

SUNNY HOSTIN, CNN LEGAL ANALYST: You know, I don't know, I wasn't convinced by his crying.

BANFIELD: You're a prosecutor, Sunny Hostin.

HOSTIN: Yeah, I am. I wasn't convinced by his crying. In fact, I thought, much like Paul, that the fact that he is so emotional on the witness stand sort of cuts against him, because he's someone who can't control his emotion, and that made me think, well, he is someone who is capable of flying off the handle, getting into an argument and using a gun recklessly.

I will also say that, when you take away sort of the emotion and all the crying and sobbing, he's been vomiting in the courtroom, very, very dramatic, and you listen to what he said, for me, Ashleigh, it just doesn't make sense.

He says that, when he woke up, Reeva was awake and she said, Oh, you can't sleep? He gets up and then starts -- he hears something and starts shouting towards Reeva. He says, Get down. Then he goes into the bathroom. He shouts into the bathroom and shouts at the intruder. At no time, Reeva responds.

Don't you think, common sense, if someone is saying there's an intruder, you say, What do you see, baby? What do you hear? If he's yelling at the bathroom, she says, "It's me. I'm in the bathroom. Calm down."

BANFIELD: I agree with you up until the point where he just said it for the first time, and I'm going to wrap this segment only with this refuting. He's in that passageway. I don't know if we have that image, but he's in that passageway, screaming, there's someone in the house.

Put yourself in her shoes for a moment if he's telling the truth. She's in the bathroom now terrified, thinking he's going to handle it. Not, I need to scream to the intruder that I'm here.

That's only way I could argue that point. Just look, if you will, there's that passageway that leads from the bed, around the corner at the bottom of your screen and into the bathroom. It's the only thing that made me think twice about that.

HOSTIN: He goes to the bed, though, and gets his gun.

CALLAN: One quick, additional fact (inaudible), that he knows, by the way, she gave 252-year sentence to a convicted rapist. You know why? Because he didn't express remorse on the witness stand for his crime.

BANFIELD: Well, there you go, again.

CALLAN: That's her sentencing history.

HOSTIN: And he certainly has been coached well.

BANFIELD: If that's not remorse on that stand, like I said, the guy deserves an award. Sorry to bring up the Oscar factor.

All right, you two, stand by. I've got other questions for you. What was going through this Olympian's mind the night he shot and killed his girlfriend, what he said or something entirely different? Was he actually frightened for his life? Was he angry? Today, he tried to prove that he was just afraid.

That LEGAL VIEW, coming up next.

(COMMERCIAL BREAK)

BANFIELD: Oscar Pistorius' mental state the night he shot Reeva Steenkamp may determine the outcome of this trial. Remember, South Africa doesn't have jury trials, so it's entirely up to this woman, the judge. She's going to be the one to decide whether to believe that Pistorius mistook Ms. Steenkamp for an intruder and that he feared for his life when he fired off those four, deadly bullets.

Here's Pistorius testifying earlier today, and, again, it's off camera, about that very moment that he thought someone was breaking into his home.

(BEGIN VIDEO CLIP)

OSCAR PISTORIUS, OLYMPIAN ACCUSED OF MURDERING HIS GIRLFRIEND: It was at this point that I heard a window open in the bathroom. It sounded like the window sliding open And then I could hear the window hit the frame as if it had slipped to the point it can't slide anymore.

It was at that point that I was just overcome with fear and I started shouting for the burglar or the intruders to get out of my house. I shouted for Reeva to get on the floor.

(END VIDEO CLIP)

BANFIELD: Joining me to talk about Pistorius' mental state that night and his believability when he outlined that on the stand, CNN's legal analysts Paul Callan and Sunny Hostin.

Lots have been made of this issue in this courtroom and analysts who have looked at this trial since it began, that there is an extraordinary amount of crime in South Africa. This would not be too difficult for a lot of people there to believe.

Maybe in America we wouldn't think right away we'd have to have a gun under our pillow, in some neighborhoods maybe, not everywhere.

But, Paul, does this matter to a judge?

CALLAN: Oh, I think it will matter to a judge. As a matter of fact, I was looking at some pieces in some South African newspapers earlier today about panels that they're doing in South Africa. They constantly talk about the crime problem. A lawyer on one of the panels said a group of man used an ax to try to knock down the door to his condo, so he can relate to all this.

BANFIELD: The judge knows all this.

CALLAN: The judge knows another thing, also. One-in-three South African women have been abused by men in a variety of situations, according to some statistics. She is a former social worker and a crime reporter with a history on being tough on domestic violence, so how will the violence cut?

BANFIELD: Sunny, this is right up your alley.

CALLAN: It could cut both ways. Yeah.

BANFIELD: Yeah, this is right up your alley, because they've made a big deal about setting some foundation when the defense started its case, saying, you see our client up there? He's got a history of dealing with fear in his home, starting from the days where his mother was terrified and I think even had a gun in the house, right?

HOSTIN: Yeah, and I thought that that was very important testimony for his defense, actually, because I agree with Paul.

I have a friend who has lived in South Africa for a long time. She's from the United States, and she says crime is a real problem. Everyone has security. Everyone is armed. People take cars, armed cars, back and forth to work. Children are protected. And, so, this is a real problem that the judge is familiar with. And, so, the fact that he grew up in this environment I think does help his story when he's explaining that he may have been in that state of terror, especially when he wasn't on his prosthetic legs. I think that's helpful.

BANFIELD: But do South Africans get a break when they screw up? I mean, look, we can all be in a state of fear, and there's a Second Amendment that allows you to have a gun here if you qualify. but you can't just recklessly fire through a door without --

CALLAN: The issue is, is it -- are you acting reasonably under the circumstances? And the circumstances may differ. For instance, you could be in a high crime, American city in an area where there have been a lot of burglaries and you're judged by the local standards, so it does make a difference.

BANFIELD: And you see -- do you see something changing in terms of these standards, you know, on which this man will be judged by this woman on the bench?

HOSTIN: You know, I think the standard remains the same, Ashleigh, but I really do think that in terms of finding the determination as to whether or not his behavior was reasonable, remember, he's certified in gun ownership. He knows the law, and the law in South Africa requires that he has to assess the threat, that someone must be coming at him before he shoots. And, so, I think that is also going to be the bone of contention --

CALLAN: And where's the evidence that somebody -- you see, just because you're in fear of crime --

BANFIELD: That door was closed --

CALLAN: -- you can't fire through a door. That's -- right.

BANFIELD: Paul Callan and Sunny Hostin, you're doing a great job at sticking to the facts, despite the fact that it's hard to even remember them when you hear a man like that on the stand.

Thank you, both.

And, speaking of that, emotion does not trump facts, especially when it is a judge who is the person who's most important in this courtroom. It's not a jury. You're not trying to sway a whole people who don't know about criminal procedure. It's a judge.

So, coming up, what kind of holes in the case are going to be glaring to her? That's next.

(COMMERCIAL BREAK)

BANFIELD: On the surface, track star Oscar Pistorius' explanation for what happened the night that he shot his girlfriend, Reeva Steenkamp, seems pretty simple and it seems pretty forward, too, says he mistook her for an intruder and then shot her while trying to defend himself and defend her.

But there seems to be a few glaring holes in the story that could be a big problem for Pistorius, for his defense.

For example if he called out to her to call for the police, why didn't he wait to hear her response? Here's Pistorius describing those frantic moments before he shot Steenkamp.

(BEGIN VIDEO CLIP)

OSCAR PISTORIUS, DEFENDANT: It was at that point that I was just overcome with fear and I started screaming and shouting for the burglar or the intruders to get out of my house. I shouted for Reeva to get on the floor. I shouted for her to phone the police. I screamed at the people (INAUDIBLE) to get out. So I made my way down the passage, constantly aware that this threat, these people or persons could come at me at any time. I didn't have my legs on.

(END VIDEO CLIP)

BANFIELD: Joining me now to discuss the potential pitfalls, the problems with Oscar Pistorius' explanation of how this all happened and how it was just a terrible accident is CNN commentator and defense attorney Mel Robbins.

Mel, I am coming over to your side on this one today, I have to be honest with you, especially when he describes he was screaming.

MEL ROBBINS, CNN COMMENTATOR: Thank you.

BANFIELD: Well, it's been hard. I'm going to be honest with you, because there's an enormous amount of recklessness. When you shoot through a door, knowing full well there is someone else in your living space, that's just for starters. But when --

ROBBINS: Well, except, Ashleigh, I got to tell you, honey -

BANFIELD: Yes.

ROBBINS: You were a genius today. You made a point that I haven't heard anybody make.

BANFIELD: The passageway, right?

ROBBINS: Everybody's talking about common -- yes, everyone's talking about common sense. Imagine it's Oscar Pistorius' story that actually happened. He wakes up, his girlfriend is awake, saying oh you're having trouble sleeping, baby. He then sees the fan. He's on his stumps. He goes to get up and he hears something. He thinks Reeva's in bed. He grabs his gun. He then starts going down the hallway. We've been talking about what a passionate guy he is. He's overcome with fear. He's emotional. He's going down the hallway and he thinks Reeva's back in the bed, so he starts screaming. And then you made the point that I actually think seals the deal in this case, which is, if you're Reeva and your boyfriend is screaming to get on the floor and you just saw him, he doesn't -- you know, you don't realize that he is moving towards the bathroom.

BANFIELD: Yes.

ROBBINS: You're actually in the bathroom and you might think, holy cow, he -- there's somebody here. I'd better get in. I'd better lock the door. I'd better get on the floor. I'd better hide. I don't want to scream out and let the intruder know that I'm in the bathroom.

BANFIELD: That's it. That's it, Mel.

ROBBINS: God knows where this guy is.

BANFIELD: That's it.

ROBBINS: Yes, that is it.

BANFIELD: And you know what, you're not the only person to say that, because Oscar Pistorius actually said in testimony today, if I shouted, the person would know where I was. And I'm paraphrasing slightly.

I want to bring in Danny Cevallos on this, CNN's legal analyst, as well.

Danny, this is almost the first time I think, at least outlined -- and certainly from Oscar Pistorius' own mouth, that he was in that hallway. And it will be really helpful, again, to pop up that picture of the difference between the bedroom, the hallway that leads into the bathroom and then the bathroom toilet room where she died.

He says he was walking from the bedroom and in that long hallway at the bottom of your screen he started to call out to her, Reeva, call the police, there's someone in the house. If you're Reeva, locked in that toilet room, wouldn't you be silent, fearing that the intruder would also hear you if you screamed out or said anything, right, Danny?

DANNY CEVALLOS, CNN LEGAL ANALYST: I think it's a brilliant observation. I mean as long as they bring that home, what would you do, what would Reeva be expected to do if she hears this commotion. For all she knows, Oscar's confronting the guy right outside the bathroom. So I think that's important.

I still think this is a strong prosecution case because even if you believe every word of Oscar's story, that he was actually in fear, the question arises, was it reasonable, under the circumstances? I still think those facts are compelling. You have a long hallway that separates both bed and bathroom and you also have what would a reasonable person do in the bathroom if you started hearing screaming and terrified cries. You might stay put and hope that Oscar and his gun can take care of the job for you. It's a fascinating theory.

BANFIELD: OK. Mel and Danny, you have time for one line each on this point I'm going to make. And, to me, it's the biggest hole in all of this. And, Mel, you begin. Who fires through a door without being certain who's behind it? ROBBINS: Somebody who is overcome with fear. The kind of person that retches in a courtroom and sobs uncontrollably, so much so that a judge of this stature has to adjourn.

BANFIELD: OK, Danny.

CEVALLOS: Who fires through a door? Well, the question really is whether or not someone in South Africa would fire through a tour. Whether an American would is immaterial. The context of this case is that it's in South Africa. And if there's that amount of fear of crime in South Africa, just maybe it might be reasonable.

BANFIELD: That's a good point. Both of you make great points. Thank you. And it's certainly not over. We've got a lot more testimony to go when they're able to reconvene. Things stopped because he was just too overcome with emotion.

Mel Robbins, Danny Cevallos, thank you.

And for live coverage of the testimony in the Oscar Pistorius trial, you can tune in to "New Day" tomorrow morning starting at 6:00 a.m. Eastern Time. It was riveting this morning. They were live in that courtroom when all of that happened. So make sure you tune in to "New Day."

The other top story today, the search for the missing plane. The search crews were elated when they heard pings for over two hours. But then, nothing. Scratch. Silence since Sunday. So what does that mean for the search? What does it mean for the searchers? We're going to go live to Perth, Australia, right after the break.

(COMMERCIAL BREAK)

BANFIELD: No more pings. Still no debris. And while search teams are still determined to solve the mystery of Malaysia Airlines Flight 370, their optimism, says one U.S. commander, well, it's, quote, "fading away." Today's search zone in the southern Indian Ocean is only about a third as big as it has been, but that's good news because it means that authorities believe that they are looking and listening in the right place.

In fact, the fact that nothing is consistent with the missing plane's flight data or cockpit voice recorders has been picked up since Sunday. It could mean that the batteries on those pingers have simply died. For the pinger locators, could be ever so slightly out of range of the search crews.

The next step is underwater robots. The retired Australian air marshal who is in charge of the entire search effort says that those devices are not going to be deployed until the pingers are located or until they're certain that those pingers are no longer pinging.

As ever, CNN's Will Ripley is keeping watch in Perth, Australia, live. And also joining me from Boston is Tom Altshuler, who's the VP and general manager of Teledyne Marine Systems. That's a firm that makes and designs undersea communications gear, including the pingers and pinger detectors as well.

First to you, Will Ripley. Get me up to date on the latest reporting. Without anything in the last day and a half, is this discouraging? Are the search crews letting on their feeling about this and their will to continue this effort?

WILL RIPLEY, CNN CORRESPONDENT: If they're discouraged, they're certainly not telling us, Ashleigh. Yes, we're now entering day 33 here in Perth of this search. It's been more than two days since we've heard any noises coming from this area. And the TPL has been continuously going around the clock, listening.

But as you said, Ashleigh, they feel that they're in the right place. And not just because they went there and they heard these possible pings over the weekend, one for two hours, one for 15 minutes. They feel they're in the right place because of all the data, all of the experts in Kuala Lumpur who told them, this is the place that you need to look. They went there with the Ocean Shield. They dropped in this pinger locator. And after a short while, they heard pings. They don't think that's a coincidence.

BANFIELD: So I want to go to Tom Altshuler quickly. The latest news as well is that the Australian defense minister, Mr. Altshuler, has said about dropping a whole load of sonar buoys to try to map out the currents. And at this point it makes me wonder if we're going back to just trying to find the debris at this point if they're using the sonar buoys.

THOMAS ALTSHULER, TELEDYNE MARINE SYSTEMS: Well, that's one of the reasons you use the sonar buoys. You know, they also have a detector so they can detect at 33.3 kilohertz, which is the frequency that's being reported right now. So it's a double sword. You could think about the fact that you're going to understand the debris field or the potential movement of the debris field and maybe locate an acoustic event.

BANFIELD: Can the pingers have broken off? It just made me wonder with the -- if the plane hit the water with significant force and there was a lot of trauma, could the pingers have been separated from the boxes themselves? How robust are they?

ALTSHULER: Well, there's a requirement for the kind shock that a pinger can see. So the requirement is, 1,000 times the force of gravity, which is significant. I mean that's coming down pretty hard on the water. The box gets significantly damaged. I've seen pictures of black boxes and pingers that have been through, you know, impacts. And all of those that I've seen have the pingers still intact. It's mounted very rigidly on the side of the black box. Is there a chance that a pinger could break free? That is always a chance. But it's designed for impact.

BANFIELD: There was something else that was mentioned today that, you know, a light went off, I have to be honest, because I've been wondering all along, why not just put those AUVs (ph) in the water. And even though they're blindly search, at least they're searching. And there seems to be very good reason. They're a little bit noisy. Is that primarily the problem?

ALTSHULER: Well, it's really not that. So the AUVs would go in the water, not to necessarily find the pinger, but to stop mapping the bottom. So they use a side-scan sonar system. They sit (INAUDIBLE) and they build a map. They're very efficient at that. The problem is, the search time, the search methodology is going to basically take everything out by 10 times as long. So if you're not in the right spot, you're going to be doing the search for a long time.

BANFIELD: But they don't -- they don't interfere, do they? I mean when I heard one expert suggesting that they're noisy, they could actually thwart the efforts of the TPL, the pinger locator, is that true?

ALTSHULER: Well, they are noisy. So everything you put in the ocean produces noise. And there's things that have very noise right at a frequency that we're talking about and there are things that don't. You know, for instance, one of the things about a 33 kilohertz system is that there are other marine instruments that are at 33 kilohertz.

BANFIELD: Tom, what else could be making the noise that was detected for two-plus hours two days ago? What else could it have been, if not the black boxes?

ALTSHULER: Well, there's -- as I said, there's a lot of things that are in the marine space that emit, that put acoustic energy into the water at 33 kilohertz. Probably the most common is a thing called a single beam echo sound. And it's used on ships to find the bottom.

And it is able to detect the bottom of the ocean very deep in the ocean. And what that mean is, to do that, it's putting as much as 1,000 times more energy or it's 1,000 times louder than the pinger is. And so even a ship very far away using an echo sounder could contaminate the acoustic environment.

BANFIELD: Well, you've been just invaluable with your knowledge on all of this and we sure appreciate it. Thomas Altshuler, thanks for being with us. Look forward to our next get-together.

ALTSHULER: Thank you.

BANFIELD: Thomas joining us live. And my thanks also to Will Ripley, who's been doing some great reporting as well, live from Perth, Australia. We're continuing this story. We're going to make sure that we know what the latest is out of Australia.

In the meantime, my colleague, Wolf Blitzer, is going to take over from here. Thanks for watching.

WOLF BLITZER, CNN ANCHOR: Right now, the war of words over Ukraine is heating up dramatically. Secretary of State John Kerry lashing out against Russia's, quote, "illegal, illegitimate actions".