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Legal View with Ashleigh Banfield

Wreckage of US Military Helicopter Found in Nepal; Jury Continues Tsarnaev Sentence Deliberations. Aired 12:30-1p ET

Aired May 15, 2015 - 12:30   ET

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

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[12:34:14] ASHLEIGH BANFIELD, CNN HOST: That U.S. military helicopter no longer missing in Nepal because they have found it. But sadly the news is not good.

Marine corps search crews were holding out hope that the helicopter had just malfunctioned and that the crew just couldn't communicate.

But the burned wreckage and three bodies were found in the Himalayas where the marines where suppose to be delivering emergency aid to people who survived that massive earthquake there.

The helicopter carrying six U.S. marines and two soldiers from Nepal went missing on Tuesday.

Let's get more details now from Will Ripley who is standing by live in Kathmandu.

I know there's a delay between the two of us. But can you just help me understand only three bodies found, do they have any idea where the other victims maybe Will?

[12:35:07] WILL RIPLEY, CNN CORRESPONDENT: They believe Ashleigh that they're in the area around the crash site. But the description that we're getting and we haven't seen any images yet of the crash site.

And there maybe a reason for that why they're not being released because apparently the condition of the helicopter is not good.

There was some sort of fire, these three bodies that they have located where burned. And they continue to scour the area to look for the other people onboard six U.S. marines, two Nepali soldiers.

And to give you a sense of the emotion that people are feeling here just listen to the sound from a U.S. lieutenant general you don't often hear somebody in that position choke up. But he did.

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LT. GEN. JOHN WISSLER, COMMANDER, III U.S. MARINE EXPEDITIONARY FORCE: It was a very severe crash and based on what we saw and the condition of the aircraft we believe there were no survivors.

They were courageous, they were selfless individuals dedicated to the international humanitarian aid mission here in Nepal.

We are deeply saddened by the discovery of this wreckage. And we will remain dedicated to the recovery effort until every last marine and Nepali soldier is brought home.

(END VIDEO CLIP)

RIPLEY: Lt. Gen. John Wissler also saying that the United States remains committed Ashleigh to the people of Nepal because there are so many thousands here who are in disparate need of help. And the Americans where here to provide that help.

Now eight names, six U.S. marines and two Nepali soldiers added to a very long list of people, casualties 8,460 confirmed dead here Ashleigh.

BANFIELD: Oh Will, and it's amazing that they committed 400 Nepali soldiers to help look for those marines and those Nepalis serviceman.

Thank you for the update. Will is going to continue on the story and keep us posted as to those other bodies as well. Thank you, Will.

It's a really tough question to ask. But what would it take to convince you to end the life of another human being legally.

Coming up we're going to look into the many factors that a jury is right now weighing inside a jury room and deciding whether or not to send the Boston Marathon Bomber to his death.

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[12:40:27] BANFIELD: Right now, a jury is deliberating for a third, but not full day, whether Dzhokhar Tsarnaev is going to spend the rest of his natural life in prison, go out in a box, or go to the death chamber for what he did at the Boston Marathon, killing those people, injuring so many.

This is going to be the toughest balancing act that these jurors have likely ever had to perform, because what they have to do, technically speaking, is weigh aggravating factors. Those are the reasons that the prosecution said, "That man die for what he did," versus the mitigating factors. And those are the reasons that the defense attorney says, "You should spare this man's life."

It is no simple feat, folks, because the verdict form is 24 pages. So this could actually take days before they're able to just sort of get through it all, make sense of it, and then start making some decisions.

For the Legal View, I want to bring in CNN Legal Analyst Paul Callan and Criminal Defense Attorney and former prosecutor and HLN Legal Analyst Defense Attorney Joey Jackson.

OK, guys. I think what we need to do here so that the viewers really know what the task is like for these people who are in the jury room, is actually show them what all of these factors are they need to think through because there's a lot of them

Let's start with the statutory aggravating factors. Death or injury resulting in death that occurred during the commission of a crime, that he knowingly created grave risk of death to one or more persons, that he committed the offense in a heinous cruel and depraved manner, that he committed the offense after substantial planning and premeditation, that he intentionally killed and attempted to kill more than one person, and then this is the little child, that he killed Martin Richard, who was particularly vulnerable to due to his youth.

Those are the statutory.

I want to go through the non-statutory aggravators. We're still on aggravators. We got a long list to consider, so permit me, if you will.

That he suggested others would be justified in committing acts of violence and terror against the United States, that he caused injury, harm, and loss to Krystle Campbell, Martin Richard, Lingzi Lu, and Officer Sean Collier, that he targeted the Boston Marathon, the iconic event with large crowds of men, women and children, and that he demonstrated a lack of remorse.

There's still more to go here.

That he murdered Officer Sean Collier, who was a law enforcement officer performing his official duties, that he participated in additional uncharged violent crime.

I'm going to stop right there, because I just come through the aggravators, but when you do that and if you look at them at the checklist, Paul, slam dunk, there's a yes to everyone of them. It's impossible to say no to any of those aggravators.

PAUL CALLAN, CNN LEGAL ANALYST: Good way to think about this is that the aggravators are the prosecutor's case. Later on, we'll be talking about mitigators, which are the defense case. But I agree with you, completely. They have to check off Yes, they've convicted him already on most of these. So, I think you'll see yes is checked off.

BANFIELD: I mean, there's just so little, I mean, the defense even said so much is "Yes, Okay, he did this."

So let me go to the mitigators, and Joey I want you to listen really carefully because there's some targeted questions about what they have to do with this stuff.

So let's start with this.

That he was just 19-years old at the time of the offense, that he had no prior history of violent behavior, that he acted under the influence of his older brother, that Dzhokhar particularly was susceptible to his older brother's influence, that Tamerlan, that older brother, planned and led and directed the marathon bombing, and that Tamerlan was the one who shot and killed Officer Collier, that he would not have committed these crimes but for his older brother, Tamerlan, and that teachers knew him as hardworking and respectful and kind and considerate, and that high school and college friends knew him as thoughtful, caring and respectful.

So I said slam dunk before. And if they have to decide on this, they even get an easier standards to decide this, don't they?

JOEY JACKSON, HLN LEGAL ANALYST: They really do. And let's talk about a couple of things. First of all, I'm so glad you're doing this, Ashleigh, because it really brings us into that jury room, in a manner of speaking, to know exactly what they're doing.

Now, I wish it was as easy as them checking boxes on both side and saying, "Aha, you're now going to do right." It's not a mathematical art at all. It's not a science at all. Ultimately, it comes down to what they think is just and appropriate, but you mentioned a standard.

And interestingly enough, when you mentioned the aggravators with Paul, the aggravating circumstances in terms of what the prosecution have to prove has to be proved beyond the unreasonable doubt. When it comes to mitigators, that is, each juror can consider why he would have engaged in this type of figure.

BANFIELD: It's not reasonable doubt.

JACKSON: It's not reasonable doubt. It's by a preponderance of the evidence, which means is it more likely than not 51 to 49 percent.

[12:45:04] And in addition to that, Ashleigh, I should point out that it does not even have to be unanimous in terms of all the jurors. If a juror may find the mitigator where another juror doesn't find the mitigator and they can factor that in...

BANFIELD: Simple majority.

JACKSON: ... to their conclusion.

BANFIELD: Well, it makes a heck of lot easier to get some checklist off here.

JACKSON: ... the mitigators.

BANFIELD: Let me - yeah, on the mitigators. There is -- by the way, a lot more mitigators and aggravators. Let me go through few more.

That Tsarnaev's teachers and friends still care for him, that his aunts and his cousins love and care for him, that mental illness and brain damage disabled his father. I'm scratching my head here. That Dzhokhar was deprived of needed stability and guidance during adolescence by his father's illness, that his father's illness and disability made Tamerlan, his older brother, the dominant male figure in Dzhokhar's life, that he was deprive stability, guidance in adolescence due to his mother's volatility and religious extremism, that Dzhokhar's mother facilitated his brother Tamerlan's radicalization. This kind of sounds like we're going out in a really long limb.

Paul Callan, can you explain to me just briefly because I've got more to go? How do you get stuff on the jury form?

CALLAN: Well, you know what it really is. It's an outline of what the defense case.

BANFIELD: Claiming (ph) his mom and dad.

CALLAN: Well, it's their case. The defense case against imposition of the death penalty, and that's really all it is. It's kind of a summary of all the arguments that have been made, and the jury can look at them and when they sit down, they say, "Do these mitigators outweigh the aggravating factors?" And they kind of look at both sets before they...

BANFIELD: And we're not even finish, guys. Tamerlan became radicalize first and then encouraged his younger brother, Dzhokhar, to follow him. This is another factor that they have to decide on. That his parents returned to Russia in 2012, made Tamerlan the dominant adult in Dzhokhar's life. It's starting to sound like a broken record. That he's highly unlikely to commit, incite, or facilitate acts of violence if he were to serve a life sentence instead of going of the death chamber, that the government has the power to severely restrict his communications to the outside world, that he's expressed sorrow and remorse for what he did for the suffering he caused, that the jury does not have to be unanimous on each question in this section.

Ultimately, when they have to go through all of these, and I'll ask you to wrap it up quickly, Joey, for me, there's one question at the end of that 24 page jury form, and it is yes or no.

JACKSON: That's right.

BANFIELD: Death or life. It's kind of a gut thing. It's the cocktail effect that you put into your tummy and then you come up with your choice, it's not math.

JACKSON: 100 percent. Very well stated, Ashleigh, because at the end of the day, you can evaluate the aggravators versus the mitigators and, you know, what are you going to do, say, "Well, there's 10 aggravators but there are 15 mitigators." So as a result of that, I think, I'll spare his life. I think, ultimately, it comes down to what you as a juror believe is the proper, just and appropriate decision.

One last point to be made, if you notice when you're weighing these things, the statute, the law, that you impose, depending upon, you know, these mitigator, is very heavily skewed towards to life. You ask, "How you get all of those things on as mitigators?" because the statutes says, the jury could consider any relevant factor and they could do it by preponderance of the evidence and they could do it without being unanimous.

CALLAN: But there's one other thing, they only have to decide on one death penalty count and he gets the death penalty.

BANFIELD: Yeah. CALLAN: So, you know, weighs on the other side.

BANFIELD: Yeah.

CALLAN: There were 17 of them if they...

JACKSON: Not only the side, Paul, but...

CALLAN: Yup.

BANFIELD: Can you hand me that?

JACKSON: ... agree after they do decide...

CALLAN: Unanimous...

BANFIELD: ... if you would hand me that form, if you would, Paul. Thank you.

CALLAN: Unanimous. Here we go.

BANFIELD: This is it, guys. It's 24 pages. And if you read through them, I'm sure you can find it online, folks, it is not easy stuff. So we need to give these guys a big break in that room. And let him have as much time as they need. This is the life and death decision, the real life and death decision.

Happy birthday to you, Paul Callan.

CALLAN: Thank you, Ashleigh.

JACKSON: Happy birthday, Paul.

BANFIELD: And Joey Jackson, thanks for coming.

JACKSON: Thank you.

BANFIELD: All right. Have a good weekend to the two of you.

Coming up next, Bill Cosby, responding to a question about the sexual assault allegations and his answer is coming next.

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[12:53:42] DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT (voice- over): Robust would be one way to describe Dr. Ellsworth Wareham. The 100- year-old retired heart surgeon occasionally does his own yard work. He walks regularly, still drives.

(on camera): You drove here today?

DR. ELLSWORTH WAREHAM, CENTURION: Driving is nothing. I worked until I'm 95, assisting, mind you.

GUPTA: Yes.

WAREHAM: I could have done heart surgery, but it wouldn't have been fair to the patient because sometimes you need reserved strength. And if you gave me something to memorize, I would memorize it just as quickly now as I would when I was 20.

GUPTA: How is your health?

WAREHAM: Oh, superb. I haven't got an ache or a pain.

GUPTA (voice-over): The great-grandfather believes his plant-based diet plays a big part in all this.

WAREHAM: If your blood cholesterol is under 150, your chances of having a heart attack are pretty small. Now my blood cholesterol is 117. There's no chance of me having a heart attack.

GUPTA (on camera): So, you're heart attack-proof?

WAREHAM: Let us say I'm dealing in an area which I understand.

GUPTA (voice-over): Perhaps another key to Wareham's longevity, not letting problems weigh him down.

GUPTA (on camera): How big a role does stress play in your life and --

WAREHAM: You asked the wrong person. I have a philosophy, you do the best you can and the things you can't do anything about, don't give any thought to them.

GUPTA: What motivates you nowadays?

WAREHAM: I feel that if I have to make a contribution. When I was doing surgery, I made it by operating. Now I try to make it by speaking about preventive medicine.

GUPTA (voice-over): And showing people just what 100 years old can look like.

Dr. Sanjay Gupta, CNN, reporting.

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[12:55:09] BANFIELD: Wow. Dr. Wareham, you are my hero. That's incredible. Thank you, Sanjay.

Bill Cosby is breaking his silence today about that series of sex allegations that have been made against him by dozens of women. The legendary comedian appeared on Good Morning America and he seems surprised by the avalanche of claims.

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BILL COSBY, COMEDIAN: I have been in this business for 52 years, and I will -- I've never seen anything like this. And reality is the situation, and I can't speak.

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BANFIELD: This is a non-answer. Cosby is accused of drugging and sexually assaulting more than 30 women, 30. And yet no criminal charges have resulted, many of them are past the statute of limitations. Stay tuned to this phase because often accusers come forward by the month.

Thank you for watching everyone. Wolf Blitzer starts after a quick break. Have a great weekend.

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