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Legal View with Ashleigh Banfield

Baltimore Starts To Return To Normal; Baltimore Police Union Claims City's Top Prosecutor Has Conflict Of Interest; Dzhokhar Tsarnaev's Defense Team Claims He Was Second-In-Command To His Brother. Aired 12:30-1p ET.

Aired May 04, 2015 - 12:30   ET

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

[12:30:00] (COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN HOST: Baltimore is showing signs of returning to normal to that curfew you've been hearing about listed, National Guard also withdrawing down.

Here is some of the serviceman packing up just moments ago and preparing to leave that city but there is some new controversies swirling around the prosecution of these six Baltimore police officers who are connected to the death of Freddie Gray. And whether they should have been even charged in all of these and how about whether they can even be convicted.

So let's talk about against the officers of Forensic Science Larry Kobilinsky who also a member of the Casey Anthony defense team and also joining me CNN Legal Analyst Paul Callan.

Larry first to you, at the forensic scientist, the first person that I thought about when it came to the amnesty report and to see at which it was determined, you know, those things usually takes 60 to 90 days we're talking about a matter of, you know, fewer than two weeks. And it takes a lot to get an amnesty report.

Not just the science and doctors who were performing it all situational information that comes to them from the investigation. But it seems is so that amnesty may have only had a time to read the statement.

LARRY KOBILINSKY, FORENSIC SCIENTIST: Well that's absolutely write Ashleigh. You know, the autopsy itself takes only about four hours. It is a medical legal investigation of the body from head to toe, right to left, front to back, looking at organs and various systems and looking at the pathology. But that's only one part, there's the toxicology report in this case there's going to be a neurosurgeon or neuropathologist who's going to weigh in. And of course medical examiners need other kinds of information in order to decide on the --

BANFIELD: Like witnesses.

KOBILINSKY: -- witnesses, video to the police reports all that the side on the matter of death.

BANFIELD: Do you think they could have rushed this, this quickly. If they want to do a very thorough and accurate and all in confident thing investigation for their medical examiners report which would taking into count the police investigation, the states attorney investigation maybe even something the DOJ is working on. Could they have done it this quickly in your estimation?

KOBILINSKY: I think can do things quickly but you might miss things you might misread things I mean typically as you said autopsy reports take time. Sometimes a month, sometimes two months this was very, very unusual. And I don't know if the amnesty going to have a price to pay because maybe something was missed.

BANFIELD: I suspect that amnesty will be vigorously crossed examined if that amnesty walks into a courtroom at all if any disasters end up in a courtroom.

And to you Paul Callan take me there because know you're talking about a medical examiner's report that a defense attorney could look at ripe as a mine field for cherry picking what he or she want to use to defend his or her client.

And then you've got this long timeline of people, places, action, its very, very tricky this whole line of event. And the state attorney saying it just happened in the van. And the defense attorney wouldn't just say "Hold the phone," you have no idea what the police report got to say here. What if he resisted arrest, what if something else happened in that take down?

PAUL CALLAN, CNN LEGAL ANALYST: It's an extraordinarily complex fact pattern because you have 28 charges lines against separate police officers. And they come in to contact with him at different times and different ways.

Remember he is arrested then he's put in a van, that van stops four times several times during those stops officers look at him, they open the door, they move him around.

So how are you able going to able to establish each officers has a responsibility for his condition.

[12:35:00] BANFIELD: By the way I keep saying if, it ever gets to trial, if any of these guys or maybe two or three of them go to trial because isn't it possible Paul that any of these faces could turn. And they could be witnesses against the others and then ultimately get a deal and not go into --

CALLAN: Well and that's why I think it's dangerous for us to say this went too quickly and she hasn't put together a great case. Maybe she's already made a deal with one of the cops.

BANFIELD: We don't know.

CALLAN: And we don't know. And if she's made a deal, I think a lot of people will back off and say, "No she didn't move too quickly." But here is the thing on a deal. And here's the thing about making the case. The overarching theory is that this man shouldn't have been arrested in the first place and he was in the custody of the cops and he was constantly saying "I'm hurt, I can't breath," and they just went from stop to stop never got medical help in all of them participated in that.

So she's saying "You have a man in custody, you owe him the responsibility to make sure he doesn't deteriorate medical if you know he's hurt."

BANFIELD: There's so much more I want to ask about as we move through this case. And we have, you know, quite sometime now as the process starts turning ahead towards any trial if there is. No that we're going to have six but Larry Kobilinsky thank you and Paul Callan thank you as well.

Paul just mentioned that to talk about the complex nature of these actions. And what so fastening is that you have a whole lot of different kinds of charges and people who may have already topped. So the question becomes how much is out there for whatever defense attorneys are about to be announced as the person who's at the weight of the world now in their corner.

(COMMERCIAL BREAK)

BANFIELD: A Baltimore Police Union is now claiming on official is claiming that the city's top prosecutor Marilyn Mosby has a conflict of interest in this case and shouldn't be allowed to lead the case against those six police officers who now been charged in the death of Freddie Gray.

[12:40:09] Now the union is saying that she took campaign money from a Gray family attorney. Mosby insisting a lot of people donated even the police union in fact making that claim as well.

I want to talk about possible conflict of interest but also how much stuff is out there for defense attorney's to look at it, if they start thinking about this case. Many about to be hired, many already hired.

Joining me now Midwin Charles and CNN's Legal Analyst Mark Geragos.

Mark first to you and I just want to talk about change of venue because that place was enfuego for the last week. And the states attorney herself made some comments that I think the defense attorney could say this was starting to sound political, no justice, no peace. I don't think its fair from my client or clients to be tried in this community and it worked. You could say in 1992 with the four officers in the Rodney King beating.

MARK GERAGOS, CNN LEGAL ANALYST: Right they went as you remember they went from downtown L.A. which would have been a very bad venue for them to see any value in that case.

BANFIELD: That because of the African-American population and the demographic.

GERAGOS: Correct and look, like any case its over after jury selection. So, the last place of these officers want to be tried is in the Baltimore. And I think that there's a lot of issues with the way it was announced in what she suggested when she made the announcement.

The idea that somehow this was because the city needed a celebration or the quill and things of that nature that's going to be father for a change of venue.

BANFIELD: So Midwin the evidence that Marilyn Mosby cited at that podium. And there was a fair bit but of course there's a lot we don't know yet.

MIDWIN CHARLES, DEFENSE ATTORNEY: That's right.

BANFIELD: Was that, you know, there's a witness in that van that may have been part of the information gathering right. He is a criminal and didn't get a good view because it is separated. So I can see that being something that a defense attorney would love to use. And there's video inside that van, there's a video outside the van, but there's no video inside that van.

So that not make this an up-still (ph) case.

CHARLES: No. I mean as you said we don't know enough and also one of the things that I came away from when I watched her press conference was wow we really have a better idea of what happens to this man. And what makes clear of what's abundantly clear is that he requested aid several times along the way even before he got in to the van and never got it.

And I think that that's --

BANFIELD: But who gave the information? Because he got a driver who's facing second degree murder, he got a premier (ph) who was picked up late in the process who may or may not have been offered some kind of deal to talk, you never, ever know how that works, because it works in private in secret.

It might be one of these people whose were going to deal and it's prepared to say anything to beat this wrap because this is about the worst place you want to be right now Mark.

GERAGOS: Well and that's the charges were pretty much designed to get these guys to roll on each other. I mean they are the kind of difference in the severity of the charges and everything else in.

And frankly the driver facing the murder charge, he's got a great incentive to say "Wow I didn't know what was going on this is what happened and come back and cut me a deal on this thing."

BANFIELD: Right, right how about -- we also I want to ask you about the illegal arrest because the states attorney made a big, big point of saying Freddie Gray shouldn't have never been arrested its an illegal arrest and I think that's why you see the fall out of all those different charges, you know, false imprisonment and --

GERAGOS: Yeah, but if that was an illegal arrest, then it was a kidnapping, it wasn't a false imprisonment. They move -- they took somebody that had no probable cause they put him into the van and they moved him.

BANFIELD: And O.J. went down on the moving a person across the hotel room --

GERAGOS: Right if that what's --

BANFIELD: But here's the thing --

CHARLES: And that's a very good point and I think it's a telltale sign that, you know, this is something that happens a lot with police officers when they arrest. And I think her pointing out that fact that there was no reason to arrest him.

BANFIELD: Fact I want to ask you about whether it is fact or whether it is what the states attorney came up within their investigation again who knows if its from these guys who knows if that's fact or get me the hell out of here. Or --

CHARLES: Well he didn't do anything criminal.

BANFIELD: Well hold on, but what if the police investigation has something else. How do we know there wasn't maybe some resistance during that stop? It was not illegal to stop him it was illegal to arrest him.

But we don't know that the state attorney took so much of that into account because when I ask Ms. Mosby how much of that police report that you've got yesterday that this thick factored into your decision she said it wasn't something we -- well this was stuff we already knew.

GERAGOS: Right and I will tell you something. The -- if they were -- everybody says this was so quick that argument does not really hold up because anybody who's been in the system will tell you normally if you're a civilian they get the report say file the charges that's it, it's within 24 hours, so this was a little longer.

BANFIELD: Yeah but you don't have civilians to take guns around town and they get into dangerous situation last word.

CHARLES: Yeah but still this is an a very complex case, you know, Mark and I were talking before --

BANFIELD: Its not?

CHARLES: It's not.

BANFIELD: Midwin Charles six people, six different stops location over an hour.

CHARLES: -- every single day, you know --

BANFIELD: I do, too. This is complicated.

[12:45:02] CHARLES: You know, six people involved in a criminal case, it is not a sort of like large federal case with 50 witnesses. You have to go through wiretapping, transcripts, and the like. This isn't that complex. So, for them to come back with this charges in this amount of time, when you had two investigations going on simultaneously which is something that I think she made clear during her press conference, I don't think it was that quick or as quick as people are claiming it to be.

BANFIELD: Got to leave it there, but this case isn't going away just yet. I want to have you both back, talk this through even further, Midwin.

CHARLES: You're welcome.

BANFIELD: Thank you, Mark. Nice to see you again. Thank you. Coming up next, Dzhokhar Tsarnaev, his lawyers are working so hard and they might have some help from the family. Talk about a family that is not particularly welcome, but you know what? The cousins and the aunts are showing up in the courtroom. What are they going to say about this boy turned killer?

(COMMERCIAL BREAK)

BANFIELD: The defense team for the convicted Boston Marathon bomber, Dzhokhar Tsarnaev, is pulling out all the stuff you might say to try to save his life, like showing the jury some pictures of young Dzhokhar with big brother Tamerlan.

Well, the defense attorneys try to paint Tamerlan as the leader of the wicked attack, and Dzhokhar is just a pawn who followed his big brother, they're actually bringing the family members in to try to make sure that that what's sticks in the minds of the jury. And what we've learned is that when he was a boy, he cried when the dad died in the "Lion King", like everybody. But he hasn't shared one tear in that courtroom, not one, even when the family members of that 8-year old boy describe seeing their child blown to bits.

[12:50:10] Alexandra Field is live outside the court house now Boston. Seriously, this is something they're bringing up that he cried during the "Lion King"?

ALEXANDRA FIELD, CNN CORRESPONDENT: Yeah. And this is one of those moments that people in the courtroom sort of hang on and we heard the defense talking up this "Lion King" moment. We heard the prosecution circle back to it during the cross-examinations. So, Ashleigh, you have to ask why are we in there talking about the "Lion King" when we're doing this death penalty trial, the sentence to be based in this trial, well the defense want to try and humanize Dzhokhar Tsarnaev. They have to make him relatable if they want the jury to spare his life.

Obviously, the "Lion King" is the kind of reference that the jury here will understand. We heard from one of Dzhokhar's cousins who was flown in from Russia to testify, and he talked about what he was like as a little boy, describing him as this warm, sunny, likable, kind kid who really charmed the entire family. And she was remarking on his ability to empathize and sympathize at such a young age which she felt was evidenced by the fact that he would cry when the lion dies at the end of the "Lion King".

The prosecution returned to that point, making a key point for the jury perhaps and saying, "Hey, this is the guy who cried over the death of a cartoon character but who has shown no remorse for the sorrow and the suffering that was caused for hundreds of people." The jury obviously heard that the defense shut down that line of questioning with an objection there.

But these are family members, Ashleigh, who have been coming in and testifying all morning. They were all flown into the United States for this. They're hear to testify on his behalf but, Ashleigh, these people haven't actually seen Dzhokhar Tsarnaev since he was 8-years old when he traveled to the United States.

BANFIELD: Yeah.

FIELD: When his family moved here. So, a lot of the testimony has sort of less to do with him and more to do with his brother, Tamerlan, who returned in 2012. And we heard family members talking about the fact that Tamerlan returned to Russia, he was talking a lot about religion and they saw signs that he had become radicalized.

BANFIELD: Eight-years old, and that's what their testimonies about. I know most 8-year olds are pretty cute, in fact lots of killers were cute babies at one point as well. I hope they have something else if that's their mission to try to save his life, but keep digging in there, Alexandra Field. Dog and pony show, that's what I have to say.

Alexandra Field reporting live for us outside of a death penalty phase, and by the way are CNN Special, Murder at the Marathon airs Tuesday night at 9:00 p.m. You can watch it right here on CNN.

Coming up next, testimony in the Colorado shooting trial that brought police officers to tears.

(COMMERCIAL BREAK)

[12:56:22] BANFIELD: It's the second week of what has been a very emotional trial in Colorado. James Holmes is accused of storming into a movie theater in Aurora nearly three years ago. You'll probably remember it was that midnight showing of the new Batman movie, "The Dark Knight Rises". And when the gunfire ended, 12 people were dead,70 were hurt.

This is not necessarily a "who done it", folks. It's a "why done it" because James Holmes has pleaded not guilty by reason of insanity. And what a case it has been so far, Ana Cabrera looks at last week's heartbreaking testimony.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: It was horrendous. It was a nightmare. It looked like a war scene.

CHRISTINA ANGELIQUE BLACHE, VICTIM/SURVIVOR: I heard people, "I'm getting shot." "I've been hit." ANA CABRERA, CNN CORRESPONDENT: Story after story of horror and pain.

JOSHUA NOLAN, VICTIM/SURVIVOR: It felts like as if somebody was taking a rusted railroad nail and jamming it into my leg.

CABRERA: Dozens of victims and first responders testifying about the mass shooting inside a Colorado movie theater, July 20th, 2012.

UNIDENTIFIED MALE: Who do you know that's been shot?

KAYLAN BAILEY, VICTIM/SURVIVOR: My, my two cousins.

CABRERA: Prosecutors played this 911 call made by then 13-year old Kaylan Bailey, a baby-sitter desperate to save six-year old Veronica Moser-Sullivan.

BAILEY: I had my hand on her stomach to see id she was breathing and she was, and I took my hand away for just a moment and then when I put it -- when I put my hand back on her stomach, it wasn't moving. She wasn't breathing anymore.

CABRERA: The little girl shown walking on this theater surveillance footage earlier that evening was one of the 12 who didn't survive. The heartbreak of that night overwhelming for even veteran first responders.

SGT. GERALD JONSGAARD, SPECIALIST, AURORA POLICE, FIRST RESPONDER: I bent down and felt for a pulse, there was no pulse. They only wound I could was a wound in the abdomen on the right hand side. And I went on and said I want her triaged, I want her out of here.

CABRERA: Caleb Medley survived after being shot in the head, but he still can't walk and can barely talk. He testified using an interpreter and a letter board to spell out his answers.

The defendant, James Holmes, appear to be watching and listening during all the testimony, but showed no emotion.

UNIDENTIFIED FEMALE: Does he look different?

OFFICIAL JASON OVIATT, AURORA, COLORADO POLICE: Yes. And really unkempt orange hair. Since then, he's also grown a little bit of a beard and he's put on some weight.

CABRERA: Officer Jason Oviatt helped take Holmes into custody after the shooting.

OVIATT: He was very calm and sort of disconnected.

UNIDENTIFIED FEMALE: Did he cooperate with you?

OVIATT: Yes.

UNIDENTIFIED FEMALE: Did he seem confused about anything?

OVIATT: Not at all. CABRERA: Holmes admits he was the shooter, but has pleaded not guilty by reason of insanity. He could face the death penalty if convicted.

Ana Cabrera, CNN, Centennial, Colorado.

(END VIDEO CLIP)

BANFIELD: And we have this breaking news out of New York. An NYPD officer named Brian Moore has just died, that coming from law enforcement officials. He was shot this weekend allegedly by a man named Demetrius Blackwell, age 35, who's been taken into custody.

The family is now with the New York City Police Commissioner, Bill Bratton, and they'll have a press conference later this afternoon. But imagine, that is going to be another big story developing and my colleague Wolf Blizter is going to take the helm now, continue the coverage that, and the rest of the day is breaking news.

[13:00:13] WOLF BLITZER, CNN HOST: Hello, I'm Wolf Blitzer.