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Life or Death for Dzhokhar Tsarnaev?. Aired 3-3:30p ET

Aired May 15, 2015 - 15:00   ET

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

[15:00:05]

PAUL CALLAN, CNN LEGAL CONTRIBUTOR: The lawyers in federal cases traditionally are not permitted to talk to the jurors right after the case. In many state courts, they are allowed to talk to the jurors.

A lot of times in these cases, the jurors take an informal vote before they come back out into the courtroom about whether they're going to have a press conference and whether they're going to speak to the press immediately or whether they're going to resist speaking to the press, at least temporarily.

In almost every high-profile case I have ever seen or participated in as a lawyer, eventually, jurors do talk and reveal what happened in the jury room.

BROOKE BALDWIN, CNN ANCHOR: Paul, thank you. Stand by.

ANNOUNCER: This is CNN breaking news.

BALDWIN: Top of the hour. You're watching CNN. I'm Brooke Baldwin.

Breaking news today. The world is watching Boston, live pictures outside of the federal courthouse here in downtown Boston as we have now learned, in 10 minutes from now, the verdict will be read in the Dzhokhar Tsarnaev case there. He's the convicted terrorist.

He and his brother setting up the horrible death and injury scene two Aprils ago on Boylston Street at the Boston Marathon, claiming three lives and then the fourth later on, that MIT police officer, Sean Collier.

What you're looking at now is the anticipation here, members of the media, public now allowed inside this courthouse. The defense team is inside of the courthouse. Dzhokhar Tsarnaev himself will be inside this courthouse, as the verdict will be read as far as whether or not he will be put to death.

Keep in mind, capital punishment is illegal in the state of Massachusetts, but, of course, this is a federal case. The jury has been deliberating the last three days, in total, deliberations lasting 14-and-a-half-hours. Two notes have been sent from the jury, two notes, two questions.

We know already right now that the youngest victim, Martin Richard, his family, his parents are inside this courthouse. Also hearing from our correspondent that some supporters of Dzhokhar Tsarnaev also inside of the courthouse. So, closing arguments, a couple days ago, the jury was handed all of this. It's incredibly complicated for them to go through this 24-page point by point by point to try to determine.

Ultimately, it must be unanimous whether they decide that Dzhokhar Tsarnaev should be put to death or go away in a supermax prison for the rest of his life.

I have Deborah Feyerick. She has been covering this from the very beginning. She covered the aftermath of the Boston bombings with me in Boston two years ago. She's there inside the courthouse, as people are beginning to file in and anticipate this verdict being read. Paul Callan is with me, our attorney who's walking us through and reminding us the arguments on both sides. Jean Casarez is with me as well.

So, Paul, let me just go to you first here. As we are waiting to hear whether this young man, this terrorist, this convicted terrorist will be put to death, I think it's worth reminding everyone, if they're just tuning in, the arguments on both sides, right?

The prosecution, the survivors, the victims' families sitting there day after day, telling their stories of what happened, the sheer horror that they endured, incredibly compelling, the videos, the photos that were shown in court, but then also the defense saying this is the younger brother. Perhaps he was coerced by that older brother.

Remind us both sides.

CALLAN: Starting on the prosecution side, I think understanding a little bit of the backdrop is important also.

And you essentially have a Department of Justice and a president of the United States who, you know, he's not been a great proponent of the death penalty certainly. However, in this case, the Obama administration Justice Department said, you know something. This case warrants us asking for the death penalty.

And the reason for that decision was that the facts of this case were so absolutely horrific, the carnage and the loss of human life. And, also, when the trial proceeded, we saw things, bizarre things, like the fact that Tsarnaev actually scrawled in blood in the side of the boat in which he was hide when he was apprehended essentially a propaganda screed, which said that the killings were meant as revenge on the American public for the mistreatment of Muslims around the world.

So it was in blood, really a statement by the defendant in the case, that these killings were no accident, that these killings were part of an ideological campaign of terrorism against innocent American citizens.

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And so the prosecution had an exceptionally compelling case here that this was a deliberate, horrific crime. On the other hand, the defense forcefully moved, with their lead attorney, Clarke, who's one of the leading death penalty defense attorneys in the United States, one of the most talented, put up a compelling case.

Or I wouldn't say so much a compelling case, as the only case they could, which is that he's young, that he was influenced by his older brother, that he came from a troubled family. Those things were all put on the board to at least give opponents of the death penalty something to argue in the jury room.

BALDWIN: I can tell you -- Paul, thank you so much -- just a little more color, as we're getting little nuggets of people who have been entering the courtroom.

Again, as I said before, the youngest victim, Martin Richard, his family is inside. Also, I can tell you the police chief of Watertown, that was where the manhunt ensued, as Paul is alluding to, Dzhokhar Tsarnaev was found bloodied in that boat in that backyard, that police chief, Ed Deveau, he was the first to arrive at that courthouse as soon as he learned that that verdict would be read today.

Also, a little bit on Dzhokhar Tsarnaev. I can tell you he is inside that federal courthouse. He's wearing a dark blazer, a light shirt. He's seated at the defense table, apparently chatting with his attorneys. But I think we cannot just -- we cannot forget the emotional toll of this story.

As I have said over and over, Boston is a phenomenally strong city, but the way in which that city felt -- I was there. I felt it with them -- the paralysis in the days after those pressure cooker bombs went off was -- it was numbing.

Sunny Hostin, I want to bring you in here just in terms of the emotional stories, the testimony that played out in that Boston courthouse from survivor after survivor, the photos, they were incredibly difficult to look at and to retell, but so integral in this case for the prosecution.

SUNNY HOSTIN, CNN LEGAL ANALYST: I think that's right. And I don't think any of us have seen a case like this before, Brooke, victim after victim in painstaking details outlining what happened to them, what happened to their family members.

I think what I recall the most is the father of the 8-year-old little boy on the stand describing what happened not only to his son, but also to his little girl, his daughter who was also maimed. I just can't imagine when the jury goes back -- went back into that jury room, that those aggravating factors, the death of a child, the maiming of a child weren't in the forefront of the deliberations.

And so I suspect that while this was certainly a difficult decision for them to come to, there certainly, at least from the prosecutors' standpoint, was significant evidence presented that Tsarnaev was and is the worst of the worst.

And let's remember, that is what the death penalty is reserved for. It's supposed to be reserved for the worst of the worst. And that is what we heard in the prosecution's closing argument for this phase of the trial, this death penalty phase, that he is the worst of the worst.

BALDWIN: Sunny Hostin, stay with me. I have also just been told that U.S. Marshals have now entered the courtroom and are standing along the perimeter and that the judge and jury are inside of this courtroom.

Again, and if you are just joining us, we have learned that the verdict in the Dzhokhar Tsarnaev, convicted on all 30 counts -- convicted terrorist Dzhokhar Tsarnaev will learn in a matter of minutes whether he will be put to death or live the rest of his life behind bars.

Susan Candiotti, I know I have you, and just to weigh in on these federal court cases, these capital punishment federal court cases. You covered that Timothy McVeigh trial. And, again, this has to be unanimous among these jurors. Take me back to when you were covering that and what you recall from what you heard from jurors and what -- the questions they were mulling through in those -- I believe it was something like 11 hours for the McVeigh trial. Walk me through all of that.

SUSAN CANDIOTTI, CNN NATIONAL CORRESPONDENT: Thanks, Brooke.

It was similar in many ways. And, in fact, in the McVeigh case, I had the opportunity to talk with him before the trial began in prison. So I covered both his case, as well as the Terry Nichols case. So, I will compare the two.

In terms of Timothy McVeigh, where, again, a federal case, where the death penalty was in play, the same kind of gut-wrenching testimony from witnesses when it came to the penalty phase, where he was found guilty of using a weapon of mass destruction, that fertilizer truck bomb, to blow up the Oklahoma City Federal Building. This was back in 1997, when the trial took place, in Denver, Colorado.

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They had to move the trial out of Oklahoma City. And it was just terribly emotional to listen to the testimony from all the people who were either injured, who had lost relatives, including babies at that the day care center at the Murrah Federal Building.

However, when it came to the penalty phase, we interviewed the jurors afterwards. They were convinced that, as Paul Callan had said as well, if there were ever a case for the death penalty, that was the one, the worst case at that time of domestic terrorism on U.S. soil.

And the jurors agreed that Timothy McVeigh deserved to be put to death. Contrast that to the same trial for -- a very similar trial for his co-conspirator, Terry Nichols, who was found guilty of not use of a weapons of mass destruction, the truck bomb, but of the conspiracy, working with Timothy McVeigh, the jury found, right up to the end, when he then wasn't there that day. And in that case, the jury -- there was a single holdout. Everyone else wanted to put Terry Nichols to death, but one woman believed that, since he wasn't there that day, ultimately, his life should be spared. So the jury was deadlocked in that particular case. And, ultimately, that automatically meant that Terry Nichols would be sentenced to life in prison, and he remains in the supermax prison in Florence, Colorado, to this day, Brooke.

BALDWIN: OK. Susan Candiotti, thank you so much.

I'm being told that the verdict is being read right now inside of the federal courthouse. And, again, no cameras are allowed inside the federal courthouse. We're waiting for it to get relayed to us.

You want me to read a question. And what question -- the question is, Tsarnaev was 18 years of age or old at the time of the offense charged under the particular capital count. This is one of the questions that they are all having to work through before they get quite a ways into the questioning before we discover whether or not he will be put to death or life in prison.

This is a process. It takes a while. I know Mel Robbins, Jean Casarez, they're both with me as well.

So, let's talk through -- I think we talk through what's happening right now inside of this federal courthouse.

Mel Robbins, if I have got you, can you explain to us all the different steps here that are being taken before they hit, I believe it's question number 38 as it pertains to death?

MEL ROBBINS, CNN CONTRIBUTOR: Yes, Brooke. Well, good afternoon.

And let me just kind of set the table for you. You have got Justice O'Toole on the bench. And as I know you have been talking about, this is not just a raise your hand and come to a decision. There's 24 pages that the jurors have to wade through. And the best way to think about it is there are basically four different stages, OK?

The first one that you just mentioned, Brooke, is they have to find that he was 18 years or older. That's because of the law from the Supreme Court. You cannot sentence somebody to the death penalty if they're 18 and under in this country.

So, second, once they establish that, and you're going to see -- what's happening in the courtroom is the judge -- Judge O'Toole has that form in front of him, the 24 pages that the jurors have had to go through and check-mark question by question, and that they move from one section. It refers them to another. And he's got to establish each of the four sections, so, the first being that he was 18 years of age.

The second section is the gateway factors. What do the gateway factors mean, Brooke? What the gateway factors are is, they dive a little bit deeper into the level of intent that Tsarnaev had in committing these crimes. And all they have to do is find one gateway factor. There are four that are listed, and all they have to do is find one.

And I want to point out for everybody that's listening that, during the closing arguments, the prosecution was masterful. They spent a ton of time talking about the fact that Tsarnaev chose a spot right behind Martin Richard's family. Martin Richard of course is the 8- year-old that was killed during that attack, and his sister had both of her legs blown off.

They -- he stood there, he stood there and he -- during the closing argument, Brooke, the prosecution was silent for 20 seconds. And after 20 seconds went by, he said Tsarnaev stood just feet away from this family for 12 times the amount of time I was just silent.

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It was a riveting moment in that courtroom. And the reason why the prosecution did it is because one of the gateway factors that shows the level of intent that you have to prove beyond a reasonable doubt was that he killed somebody that was vulnerable. And that person was the 8-year-old, Martin Richard.

So I would not be surprised if they find that gateway factor for sure, if not all four of them. So you have got the age. You have the gateway factors on intent. Then you move to the aggravating factors. There are six under the statute. And they have to do with the cruel and unusual nature. They have to do with the fact that this was a weapon of mass destruction. They have to do with the carnage that was inflicted.

And so they will look at all six of those aggravating factors that the prosecution has to prove beyond a reasonable doubt. Once they have done that, they move to mitigating, Brooke.

BALDWIN: OK. So you walked through the age, the gateway, the aggravating, and then they get to mitigating. And so if they so choose with one of those, again, I think we have to be precise, that it's -- it has to be unanimity among the jurors.

Let me actually pause on that point, because I just want to tell our viewers, as you're watching our coverage here, at different points, we're going to flash some quotes up on the screen. I'm not going to continue reading any them, but these are the questions, these are the points that are being read aloud inside the courtroom.

And so far, I'm being told that the jury has answered yes to these different questions. On the point, Mel -- and you live in Boston. You felt what this felt like for this entire city. And everyone knows who Martin Richard was, the youngest victim there at the marathon bombing. I think it's also worth mentioning, as I did last hour, that it was Martin Richard's parents, despite this young life that was lost, his parents wrote in "The Boston Globe" during this trial that they do not want Dzhokhar Tsarnaev to be put to death.

And the reason is you have to assume that there will be appeal upon appeal upon appeal, and they do not want to be dragged along and reinjuring those emotional wounds for the rest of their lives. ROBBINS: Yes, and who could blame them?

BALDWIN: Right.

ROBBINS: And there's a fascinating article on CNN.com right now, Brooke, that describes in excruciating detail what Tsarnaev's life would be like in a supermax prison.

If he gets the death penalty, he may be around for another 20 years before he has actually exhausted all of his appeals and he's executed. If he's sentenced to life without the possibility of parole, he will disappear.

And when you read on CNN.com what it's like to be in the supermax prison, confined to this concrete space where you can't even see outside 23 hours a day, cut off from the world, forgotten, it is an absolutely horrible way to live the rest of your life.

I personally think it sounds worse than killing him. So the Martin family wrote a very gut-wrenching appeal, if you will, an opinion piece that was published here in Boston and went viral, saying what you just did. They don't want to have to keep reopening these wounds. And every time there's an appeal, he will be in the papers. Every time that there's another court proceeding, he will be in the papers and they will know about it.

And so in order for them to be able to heal, to move on, they are hoping and they would want a sentence of life without the possibility of parole, because he would disappear from the public perception and the media. And -- but, look, the only people that matter are people that are on that jury. And while the majority of people in Boston and the majority of Massachusetts residents do not believe in the death penalty and they also don't believe in the death penalty for this case, there are a lot of us, myself included, I think it's a worse punishment to send him away for life without the possibility of parole, but it only matters what those jurors are going say.

Right now, they're going question by question through a 24-page verdict sheet, where they're answering yes. And you have said they answered yes to all of them so far. They have done the age. They're going to get to the gateway. Once they have established intent, we're going to look at mitigating factors, Brooke.

BALDWIN: OK. So, let's come back to that. Mel Robbins, stand by.

My Bostonian attorney here, who is invaluable in weighing in, Mel was talking about the supermax in Florence, Colorado. And I just want to read a little bit if you're not as familiar. If, in fact, he's not put to death and he goes away for the rest of his life, this is a facility houses 418 total inmates, a couple familiar names.

Let me run through some. Ted Kaczynski, the Unabomber, Eric Rudolph, the Olympic Park bombings in Atlanta in 1995, Zacarias Moussaoui, convicted 9/11 conspirator, Richard Reid, the shoe bomber, they're all there in this supermax, as Mel alluded to, essentially below ground, no light for the rest of their lives, their cells 12-feet-by-seven. [15:20:23]

They spend at least 23 hours a day locked behind steel doors in soundproof cells, the cell windows four-inches wide. That will be his reality for the rest of his life if he's not put to death.

Paul Callan, I believe I still have you. Let me bring just you in here and talk about Dzhokhar Tsarnaev. Sitting in this courtroom, I can only imagine the picture as it's been described over the last couple weeks, as the layout will be similar. And once they hit that final question as they're reading all these points on this -- for the verdict, do you think his attorneys ahead of time told him how to react?

What kinds of conversations did his defense attorneys have with him ahead of this major moment?

CALLAN: Well, during the course of the trial, they undoubtedly had many conversations with him about how to react in court. And lawyers always tell the client, listen, the jury's going to be watching you at all times. So, you know, I don't want any frivolity and laughing and smirking or inappropriate behavior.

But I have to say that when the case reaches this point, the point of the verdict, I doubt that they have given him any instructions about how to react. This is a moment of his humanity and frankly his reaction I think will be his own. I don't think it will be aided by instructions from a lawyer at all, because frankly it wouldn't be relevant. The jury has reached its verdict already. And how he reacts will be up to him.

Now, we know that he's been silent throughout this case. And he's been very, very hard for anybody to get a read on. As a matter of fact, the nun that we were talking about earlier today pretty much is the only one who gave testimony about how he's acting, at least in the recent past, except, of course, for one piece of video that you will recall the prosecution introduced, with him holding his middle finger up to the camera.

BALDWIN: That's right.

CALLAN: And the prosecutors were saying, this is who he really is. This shows his contempt for the American system of justice. Now, this was hotly contested by the defense, of course. But we really do know little about him outside of the context of this case.

BALDWIN: That's right, middle finger behind bars. And you were alluding to Sister Helen Prejean, the nun who testified for the defense. She had met with him multiple times. And she's the only person to have said she believes he showed remorse.

Again, just reminding you, you're seeing these words, these screens popping up. We're just going through them one by one. I'm not going to read them for you. But this is what's being read in the courtroom. And thus far, the jury has been answering yes to every single one of them. Little bit of color here as I'm looking down at my notes. We have a

couple of CNNers obviously inside the courtroom taking this all in as the verdict is currently being read. And from one of our producers, Tsarnaev is standing with his hands folded in front of him and head bowed. He has cracked his knuckles twice.

This is what we have from our people inside the courtroom.

Jean Casarez, let me bring you back in. And, again, just as we're all waiting to hear whether this convicted terrorist Dzhokhar Tsarnaev goes away for the rest of his life or is put to death, tell me what you know. Who's in this courtroom right now? What's happening?

JEAN CASAREZ, CNN CORRESPONDENT: Well, families of the victims, because in this case, many victims were survivors. Many families of victim members who perished are in that courtroom.

But we want to just give an update. Just as you were saying, it's on the screen. But they're moving right along here. Very quickly, they're getting to -- they're in the mitigating factors now. And that section is very, very close to the end. But, as far as the statutory aggravating factors, there were a lot of unanimous finds on some of the death occurred during the commission or flight from a crime with explosives, yes.

Now, remember, there are 17 counts that are capital counts here. He was convicted in April of 30 counts; 17 of those are capital counts. And so far, we can see a state of mind of the jury that they are unanimous on a lot of the statutory aggravating factors for all of the counts and for some of the counts.

Nonstatutory aggravating factors, such as causing injury and harm to Campbell, Richard, Lu, Collier, yes, unanimous on that. In the mitigating factors, 12 jurors have now found that Tsarnaev was 19 years old at the time this happened; 11 jurors found no prior history of violence, so not all 12 found that mitigating factor.

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So they're moving right along. We're getting close to finding out if the jury is sentencing him to life or death.

BALDWIN: Jean Casarez, thank you. Let me ask you to stand by.

Jeff Toobin, our senior legal analyst, joining me now.

And, Jeff Toobin, I want to get -- I want to talk through some of these attorneys, especially very high-profile defense attorney Judy Clarke. But, quickly, since I haven't heard your voice yet, knowing that these jurors deliberated for 14-and-a-half-hours, today was day three, what is your gut reaction to that?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: That shows that this jury has taken its job seriously.

This is not a long deliberation. It has not been a long deliberation in the guilt phase. And it's not been a long deliberation in the penalty phase. As you have been hearing, as Jean has read through all of these questions that they have to answer, it's a lot of questions. It's a lot of individual decisions they have to make.

So 14 hours is not a very long time. Now, the facts of this case are not really seriously in dispute. I think that's one reason why the jury deliberations moved along so quickly, because there really is no question. The defense conceded that Dzhokhar Tsarnaev committed this crime, effectively.

The only issue they have had to consider since day one is the ultimate issue, which is life or death. And certainly they are setting the stage with all of these preliminary questions for a sentence of death, but, remember, they don't have to find death. Even if they find aggravating factors unanimously, they are never required to answer the ultimate question in favor of death.

So, just because we have heard all these unanimous verdicts in favor of aggravating factors, that in no way requires the defense to find -- the jury to find him guilty. It allows the jury to find him guilty, but it doesn't require them. So the ultimate question, we still have to hear the answer for.

BALDWIN: Let me jump in, Jeff Toobin. I want you to react to something that was just passed along to me. Of these seven female and seven male jurors, three of them, only three of them believe that Dzhokhar Tsarnaev acted under the influence of his older brother.

How do you read that?

TOOBIN: Well, that was the lynchpin of the defense, to the extent there was a defense in this case, which was his brother led him, his brother was the brains of this operation, his brother manipulated the younger, more vulnerable Dzhokhar Tsarnaev.

But, remember, you say it's only three. It only takes one of them to stop a death sentence in this case. So, yes, that, in one way, looks like an 11-3 verdict in favor of the prosecution, but if one of them says, I do not support a verdict of death, that's enough to sentence him to life in prison.

BALDWIN: Here's what I'm wondering, given the point you just made. I have never been inside of a jury deliberation room, especially when death is potentially on the table, but if you -- if you do have on one particular point one holdout, do the other jurors try to convince, actively convince that one holdout to change his or her mind? How does that happen?

TOOBIN: Almost always, that is the case. We just had a very high- profile case here in New York, the murder of young Etan Patz many, many years ago, who was a child who was abducted and disappeared over 30 years ago.

Someone came forward. He offered a confession. He was just tried. And the verdict in that case was 11-1 in favor of conviction. And the one remained a holdout. Now, the difference, of course, is that when there's 11-1 in the guilt phase, that leads to a retrial of the whole case; 11-1 in favor of a death sentence ends the trial.

It says that is -- it's only a life in prison sentence. So, yes, there is always discussion among jurors. There's always an attempt to persuade their colleagues. That's how the jury system is designed. But if someone believes, especially in the death sentence context, in their conscience, in their heart of hearts, that they cannot sentence that person to death, that will end the process, that will end this trial, and there will be a life in prison sentence.

BALDWIN: OK. Let me -- let me -- is someone trying to -- I'm hearing someone else's voice.

Let me -- let me stay with you, Jeff Toobin.

So, if what we're talking about, the older brother Tamerlan's influence, we just got this other note. Apparently, 10 jurors believe the mother here, it was the mother who facilitated the older brother's radicalization, Tamerlan Tsarnaev's radicalization.