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Legal View with Ashleigh Banfield

Boston Marathon Testimony at Tsarnaev Trial; Who Helped the Tsarnaev Brothers?; LaGuardia Plane Accident

Aired March 06, 2015 - 12:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Maybe the only thing more upsetting than the video of the Boston bombing, the personal stories from the people whose bodies and lives were shattered by the blast. The testimony Dzhokhar Tsarnaev's lawyers tried but failed to stop.

Also ahead, Ferguson's police chief responding to CNN after that scathing report about rampant racism in his police department.

And the runway scare that was mere feet from becoming the next airline tragedy. Passengers tell us about the terrifying landing as investigators try to figure out what went wrong on runway 13.

Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

We all know what happened. We all know who did it. In fact, the suspect's own lawyer is admitting he did it. But what those of us outside Boston may not have fully understood until this week, week one of the long-awaited trial of Dzhokhar Tsarnaev, is how horribly so many people suffered when two bombs exploded near the finish line of the Boston Marathon two years ago next month.

Again and again, prosecutors who hope to send Tsarnaev to death row have taken jurors and the rest of us almost unbearably close to what one victim calls pure carnage.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: What the (EXPLETIVE DELETED)? A bomb? Is it safe to be here?

UNIDENTIFIED MALE: Probably not.

UNIDENTIFIED MALE: Oh, my God, somebody's (INAUDIBLE).

UNIDENTIFIED MALE: Get out! Get out! Get out!

(END VIDEO CLIP)

BANFIELD: It is simply raw video in so many ways. And please keep in mind that what you are seeing right now is not even a full and accurate picture of what happened that day because we at CNN have blurred out or edited out the scenes that we simply cannot air. They are just too gruesome and just too graphic. But the jury, they see it all without any of that editing. And then also there is this testimony. Bill Richard. He had to leave

the side of his dying eight-year-old boy to try to save his somewhat less-wounded daughter. He told the jurors, and I'm going to quote Mr. Richard here, "I knew in my head that I needed to act quickly or we might not only lose Martin, we might lose Jane, too. She tried to get up and she fell. That was when I noticed her leg. She didn't have it. It was blown off. When I saw Martin's condition, I knew he wasn't going to make it. It was the last time I saw my son alive."

I want to read you one more bit of testimony from the trial, from a man who lost both of his legs but was still able to help identify the defendant's older brother and co-conspirator, Tamerlan Tsarnaev. Tamerlan is seen here in this picture wearing the dark hat. He was killed just days after the bombings when his brother, Dzhokhar, accidentally ran over him during a shootout and escape from police.

Yesterday, Jeff Bauman testified, and I'll quote, "he didn't look like anybody that was there. He was alone. He wasn't watching the race. It didn't look like he was having fun like everybody else. Everybody else was clapping. I looked at him and he stared down at me. And I just thought it was odd. I looked back and I saw a bag there unattended."

My CNN colleague, Deb Feyerick, has been covering this trial. I'm also joined live by CNN legal analyst Danny Cevallos and HLN legal analyst Joey Jackson.

Deb, I want to begin with you. It is one thing to see some of these things on television. And as I just mentioned to our viewers, they're edited and they're blurred. And it is quite another to be an average member of the community who gets your jury summons and then has to sit through material like that. How are things in court? What are these jurors going through?

DEBORAH FEYERICK, CNN NATIONAL CORRESPONDENT: You know, it's incredible, they're going through what every single person in that court is going through. They are listening to graphic detail of the injuries that all these people suffered. And as horrifying as the images are, to listen to the people and what they went through after this bombing is even more painful. People are bowing their heads, they are weeping openly. I mean we're talking seasoned reporters. We're talking seasoned law enforcement. The jury, several of them, are sort of wiping tears from their face. It clearly resonates with them.

And it's not just the testimony, but it's also the physical appearance of some of these witnesses as well. You know, a number of them have lost one if not two legs. Jeff Bauman, both his legs were obliterated during that bombing. And he walked a little bit unsteady. He's still going through rehab. So this is very, very real to them.

And Dzhokhar Tsarnaev sits six feet away from those witnesses. He barely looks at them. He barely even looks in their direction. He slouches in his chair. Every now and again he'll sort of sit up a little. But for the most parts, at least from behind, he does appear to be somewhat disengaged. He's not taking any notes. And the witnesses are just really emotional. And listening to it, you cannot help but be moved by it. It is traumatic. And those witnesses reliving every single moment of that day, Ashleigh.

BANFIELD: Deb, stand by for a moment, if you will. I want to bring the attorneys in on this.

Danny and Joey, the level of awfulness that is on display in that courtroom right now for those jurors, can it even be measured against any notion that these defense attorneys are going to bring forth about coercion? I mean I heard growing up, if your friend told you to jump off a bridge, would you do it?

JOEY JACKSON, HLN LEGAL ANALYST: Would you do it? Exactly.

BANFIELD: And that's pretty small potatoes compared to what these people are seeing. How on earth can they bring that forth?

DANNY CEVALLOS, CNN LEGAL ANALYST: It gets worse for the defense because the judge has severely limited how much they can even mention Tamerlan, the older brother. So the defense has its work cut out for them. And the prosecution is doing a good job of introducing this really damaging testimony. It's almost impossible to hear it and not want to blame someone. And that someone is sitting at the defendant's table.

You know, the defense strategy here may ultimately be not to shoot for a not guilty. In fact, in opening statements, the defense actually admitted, this guy was involved, this defendant was involved in this incident. So many are thinking, they're leaning more towards saving his life in the penalty phase because a not guilty is not realism.

BANFIELD: Who can save -- look, who can save this man? Because after living through what these jurors are living through just in these first few days, it would take an act of God. And even then I'm not sure it could work. Can he save his own life? Can he get up there and do anything at this point?

JACKSON: I think it's going to be very problematic, Ashleigh. Just looking back just one moment, this is something that affected the nation, of course, in a very meaningful and emotional way. But when you look at Boston itself, this has riveted -- and think about the carnage that he exacted by the act -- his act and the act of his brother. And so, yes, it is a defendant strategy to say, you know what, he was under the spell of his brother. If not for his brother, this wouldn't have happened because he doesn't have a mind of his own.

Will it work? I think it's very troubling and I don't think that it will. But the defense, in this particular point, you see they're not even cross-examining witnesses, Ashleigh. And they even stopped -- that is the defense -- they even attempted to stop this testimony saying, we don't need this testimony, save it for the penalty phase. How is this relevant? The judge agreed with prosecutors and said, no, no, no, it's very relevant because it explains exactly what happened here.

CEVALLOS: It's (INAUDIBLE).

BANFIELD: So I want to get you both to weigh in on something, the fact that that little boy died in front of his parents.

JACKSON: Yes.

BANFIELD: There are plenty of photos that show Jane and Martin, the eight-year-old victim and his sister, and their parents right there with the accused killer standing within feet. So ultimately, if you're going to make the argument, I was under the influence of my brother, the brother's nowhere to be seen in those pictures. And little kids are within arm's length of that young man. How can you make the argument that you are so under the influence of your brother little kids didn't matter?

CEVALLOS: You don't focus on the liability phase, which is what we're in now. I mean you -- you proceed with the idea that this is going to be a guilty verdict. But then use that influence prong for the penalty phase and argue to the jury, save this man's life, do not put him to death because he was under the influence of his brother. Sure, he's nowhere to be seen in this picture, but that influence of an older sibling happened -- it was a pervasive thing that happened over many, many years.

BANFIELD: Get me off the ledge, Joey. Get me off the ledge, Joey.

CEVALLOS: Well, you -- like I said, you wouldn't make it onto the jury.

JACKSON: The react --

BANFIELD: I sure wouldn't I don't think in this case.

JACKSON: No. And if you're feeling that, I think you have to think that the entire jury is feeling that. There's a major sense of loss here. And to make the argument that you're not culpable, you did nothing here, you're not a monster, the prosecution is laying down the case and they're saying, no, you were an equal partner. You were radicalized.

BANFIELD: OK.

JACKSON: It wasn't your brother. You have your own mind. Accept responsibility. And at the end of the day, if the jury believes that he's a monster, guess what, not only is he guilty but he gets the death penalty.

BANFIELD: Well, I've got something else for you. And, Joey and Danny, stick around because there may be something else at play here. Did those brothers, in fact, have any help in actually putting together this plot? The marathon bombing. Could there be co-conspirators still out there walking among us and plotting to strike again? We're going to look into that and what it just might mean for the young man in the white hat in the center of your screen.

(COMMERCIAL BREAK)

BANFIELD: This is a terrifying thought. The Tsarnaev brothers may have had help in carrying out the bombing at the Boston Marathon. And those co-conspirators just might be out there somewhere plotting their next attack. CNN's Alexandra Field reports on how this looming mystery might just end up helping Dzhokhar Tsarnaev's defense at trial.

(BEGIN VIDEOTAPE)

ALEXANDRA FIELD, CNN CORRESPONDENT (voice-over): We knew them first as suspect one and suspect two. But almost immediately after the manhunt that left one dead and the other captured, investigators privately questioned if there were more involved. The reason for the doubts? The bombs.

Court documents reveal questions from the beginning about whether Tamerlan and Dzhokhar Tsarnaev were capable of making them. "These relatively sophisticated devices would have been difficult for the Tsarnaevs to fabricate. Searches of the Tsarnaevs' residences, three vehicles and other locations associated with them yielded virtually no traces of black powder. Of the two remote control detonators used during the marathon bombings, only one was recovered." And nearly two years later, the doubts still linger.

MICHAEL MARKS, FORMER NCIS SPECIAL AGENT: These were two relatively sophisticated devices that went off almost simultaneously. They had a very, very short delay. It would be my opinion that they had somebody who was more of a skilled bombmaker, an engineer, if you will, assist them in saying, these are the steps you need to go through.

FIELD: Dzhokhar Tsarnaev told police he and his brother acted alone and built the bombs following instructions from al Qaeda's "Inspire" magazine. Investigators say the explosives were made with improvised fuses from Christmas lights and remote control detonators made from model car parts. Not impossible, but hard to get right without testing. And the government has never said where the bombs were made or if there's evidence the Tsarnaevs tested others.

JULIETTE KAYYEM, CNN NATIONAL SECURITY ANALYST: And that is a big gap in the evidentiary case.

FIELD (on camera): Is it possible that police still believe to this day that somebody helped these brothers build a bomb?

KAYYEM: In the absence of any proof that they had the capability to do it, there will continue to be investigations about whether there could have been three, four or five others.

FIELD (voice-over): But who? No one has been publically named as a possible co-conspirators. Investigators have focused on Tamerlan's suspected ties to militants. In 2012, the older Tsarnaev spent six months in Russia. Authorities have questioned how much exposure he may have had to radicals and whether he could have received training there. It's not clear if either side will suggest that there may have been a third party involved in the attack, but the defense will try to pin the blame on others.

KAYYEM: The defense strategy is -- is going to be to create enough doubt within the juror's mind of Dzhokhar's sort of mental state leading into this. So this idea that there might be some evil hand out there telling Dzhokhar what to do, whether it's his brother or someone who's a bombmaker, fits nicely into that narrative.

FIELD: The trial centers on how the jury will see suspect number two. The prosecution painting a portrait of a cruel co-conspirator and equal partner in hideous crimes, radicalized through Internet research spewing the rhetoric of al Qaeda. A man who planned to kill and did. But the defense will draw Dzhokhar in the shadow of a mastermind older brother, younger, struggling in school, abandoned by his parents, an easy victim of deep manipulation from suspect number one.

FIELD: The defense strategy of portraying Tamerlan as the mastermind is meant to build some kind of sympathy for Dzhokhar Tsarnaev with the jury. He faces 30 federal charges, 17 of those charges come with a possible death sentence. Defense attorneys are hoping that any measure of sympathy that they can garner for the younger Tsarnaev could save his life.

Alexandra Field, CNN, Boston, Massachusetts.

(END VIDEOTAPE)

BANFIELD: We'll see about how these possible co-conspirators could impact the trial with CNN legal analyst Danny Cevallos and HLN legal analyst Joey Jackson, back with me. So, OK, so maybe there's someone else in the conspiracy. But isn't a conspiracy still just as bad if you're in it than if you're not in it, meaning, if they believe Dzhokhar is in it, what does it matter there might be someone else out there?

JACKSON: Absolutely. Look, the reality -- in terms of legal significance, examining his actions here doesn't matter if there are four other people, five other people. The fact that he acted makes him criminally responsible and subjects him to the death penalty.

Now why else would it matter? Obviously, the government has an interest in insuring that anybody who exacted this carnage upon a community is brought to justice and also monitoring and ensuring the safety of all America so that these people, if there are any who helped with these bombs, are, you know, ultimately brought (INAUDIBLE).

BANFIELD: OK. I always get it when an attorney brings in reasonable doubt. Any kind of reasonable doubt. (INAUDIBLE) anything you want to try to get the jurors to wonder about something. But the wondering that a conspirator brings in, Danny, it has nothing to do with guilt or innocence here. He's saying he did it. Mitigating his life is what it's all about. And if there's some other dude, because that's what they call it, the some other dude did it defense, there's some other dude out there, it doesn't make him less awful.

CEVALLOS: Take a step back. This is not a typical defense. It really isn't even a whodunit anymore. In a death penalty case like this, it appears the defense has taken the strategy of essentially conceding liability. Throughout the liability phase of this trial they will introduce the jury to the defendant so that when it comes to the penalty phase, they know who he is and he becomes more difficult to put to death. That appears to be their strategy. Remember, also by going through a trial, there may ultimately be

appealable issues during that trial that they can use later on. The strategy here is very different.

BANFIELD: Hasn't he become less likeable with ever terror attack that's out there? America hates this. They're getting sick and tired of terror attacks, whether they're here at home or elsewhere. And every single time there's something else that goes on, they want people to pay, period.

JACKSON: Well, of course. And he's going to become even less likable as the trial goes through the second anniversary of the bombing on April 15th.

CEVALLOS: Oh, yes.

JACKSON: Danny, you spoke about appealable issues. They have them. They have attempted to move this trial four different times. The judge has said, no. They've attempted to delay it. The judge said, no. At the end of the day, you know, again, I don't see that he's found innocent for sure.

BANFIELD: I don't know where you move a trial like this.

JACKSON: The question is whether or not he's sentenced to death.

BANFIELD: You can move it to Mars and you're still going to have Americans who are livid. An attack on Boston was an attack on everybody.

JACKSON: I cannot disagree.

BANFIELD: An attack down at the trade center was an attack on all of us.

All right, Joey, Danny, thank you. Appreciate it.

JACKSON: Thank you, Ashleigh.

BANFIELD: Up next, what exactly goes through your mind in the moment that a plane you're on starts skidding off a runway headed for frigid, icy waters mere feet away? Well, fortunately, every single passenger who was on that plane on your screen yesterday at LaGuardia is alive and well enough to talk about it today. Here's a hint coming up, they did a lot of praying.

(COMMERCIAL BREAK)

BANFIELD: A runway accident involving a commercial airliner scared the hell out of a lot of people yesterday and it shut down a major American airport for hours, too. That big Delta jet with 130-plus people on board, well, it landed well enough at ice-covered LaGuardia Airport, it was just the stopping part that proved to be real tough. Off it went into a berm, through a fence and almost into the icy water before, thank God, it did actually skid to a final stop. And one guy who was on board spoke with CNN this morning on "New Day." (BEGIN VIDEO CLIP)

JARED FAALIACI, PASSENGER ON DELTA FLIGHT 1086: Literally as soon as the wheels touched down, within two seconds I knew there was an issue.

MICHAELA PEREIRA, ANCHOR, CNN'S "NEW DAY": You felt something?

FAALIACI: We didn't feel the wheels stay.

PEREIRA: They usually feel that significantly.

FAALIACI: Exactly. They grab and you feel that --

PEREIRA: These are the pictures that you took, right?

FAALIACI: Exactly. I gave them to Joy Hurst (ph) and they set them off to you guys when I landed. So literally within two seconds, the wheels didn't take. We started to skid. We veered to the left-hand side of the runway. And then you're just feeling nothing but rough ground.

PEREIRA: And what are you thinking?

FAALIACI: Well, an array of emotions. First of all, my buddy, Dave Sanderson (ph), was on the Hudson River crash a couple of years ago and he went through that tragedy on the water. So I'm immediately thinking, I'm going to end up in the water just like Dave.

(END VIDEO CLIP)

BANFIELD: You just don't hear that very often, I'm going to end up in the water like Dave.

MILES O'BRIEN, CNN AVIATION ANALYST: Yes.

BANFIELD: It's unreal.

Miles O'Brien is with me.

O'BRIEN: What are the odds, right, that he's got a friend who was on the Sully flight too? Yes.

BANFIELD: What are the odds? Well, and what are the odds he's ever going to be on a crash again.

O'BRIEN: Right.

BANFIELD: He's probably thanking his stars.

Miles O'Brien is not only a pilot and our aviation analyst, but probably one of the smartest people I know about flying and airports and runways and all things.

O'BRIEN: Thank you.

BANFIELD: So the old cliche is that any landing you walk away from is a good one. O'BRIEN: Yes.

BANFIELD: Yes. But this one looks weird just because -- look, I grew up in Winnipeg and I took off from a lot of icy, snowy runways. But I still panic every time. And why aren't airports in more of a panic? Why are they letting them always land like this?

O'BRIEN: Yes. And why aren't more pilots trained in Winnipeg where they learn how to do this, right?

BANFIELD: Amen.

O'BRIEN: I want a Canadian pilot when I'm landing at LaGuardia in the middle of a snowstorm.

BANFIELD: Yes.

O'BRIEN: It's -- as we discussed yesterday, this is a tough airport to get in and out of, 7,000 feet.

BANFIELD: Yes.

O'BRIEN: There's no overrun capability. It has a berm on the side, which is a dike to keep Flushing Bay from -- you know, it's reclaimed land.

BANFIELD: Yes.

O'BRIEN: And that was what kept this airplane from going into Flushing Bay. So --

BANFIELD: Here's what I don't understand. They towed that aircraft off and out of the way, you know, making way to clear the runway for use back again. Most of the people have said, it is a write-off. They will never use that aircraft again or they more than likely won't. But what forensically will the aircraft tell us in terms of who's at fault for this?

O'BRIEN: Well, we have two little boxes that will tell all. And as a matter of fact, we're going to know very soon on this because playing that cockpit voice recorder and the flight data recorder will tell everything. How -- what kind of speed did it carry as it came across the threshold? What was the descent rate? What actions were taken? Did the spoilers come out? Did the thrust reversers come out? Did they come out asymmetrically? Did the brakes -- did one brake grab one way or another? Was one side of the runway more slick? And -- or were the pilots completely behind the airplane and neither of them were from Winnipeg?

BANFIELD: Whenever I hear about getting those, you know, data recorders and cockpit voice recorders, it's usually because we don't have a pilot to speak.

O'BRIEN: Right.

BANFIELD: It's usually because we don't have any passengers to speak with either. And here we have everyone. So what is going on with the pilots as of like 20 minutes past getting off that plane yesterday in terms of debrief, NTSB interviews, crash investigators? What kind of interviews are they getting?

O'BRIEN: Well, usually the union tells them to be quiet.

BANFIELD: Is that right?

O'BRIEN: And -- yes, that's the -- that's the first step in the process. It's a very orderly thing. They will eventually be interviewed, of course, as part of the NTSB process. But the first thing to do is be quiet.

What is going on at the NTSB and what will go on is they do a -- what they do is like a quick listen of the cockpit voice recorder just to see the basic outlines of things. It's sometimes something very obvious comes up right in the middle of that cockpit voice recording and it could take them to the cause of it very quickly. Maybe there was a failure of something. And -- or maybe this was a case where it was down to minimums at the margins and maybe the technique wasn't right.

BANFIELD: Yes. Well, I hope we do get some answers. And every time I land at LaGuardia, I hang on tight, I put my shoes on and I cinch that belt because there's water everywhere.

O'BRIEN: Yes.

BANFIELD: Miles, always great to see you.

O'BRIEN: A pleasure, Ashleigh.

BANFIELD: Better in person. Thanks for coming in.

O'BRIEN: Thank you. Thank you.

BANFIELD: You know, a lot of people thought that he should have been fired a long time ago. So, what does the Ferguson, Missouri, police chief have to say about a brand-new federal report that outlines rampant racism throughout his department? CNN exclusive interview right there and you're going to hear it, next.

(COMMERCIAL BREAK)