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Erin Burnett Outfront

Obama Spars With Protester; Funeral Held For Young Tornado Victim; Plaza Towers Students Reunite With Teachers; Mom Delivers Baby As Tornado Strikes; Jury Unable To Decide On Death Penalty In Arias Case

Aired May 23, 2013 - 19:00   ET


ERIN BURNETT, CNN HOST: OUTFRONT next, President Obama gives a major speech on terrorism, Gitmo, drones, al Qaeda, but do his claims add up?

Plus a day after a British soldier was hacked to death in broad daylight, authorities have arrested two more men. How did police track them down so quickly?

And an emotional reunion between students and teachers from Plaza Towers Elementary, they meet for the first time since the tornado. Let's go OUTFRONT.

Good evening, everyone. I'm Erin Burnett. OUTFRONT tonight, confronting President Obama, so today the president delivered what had been billed as his first major speech on counter-terrorism of the second term. And we were prepared to hear him layout policy on drone strikes. We were prepared to hear him discuss his long time promise to close the military detention facilities at Guantanamo Bay. Now he did do these things.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA: Given my administration's relentless pursuit of al Qaeda's leadership, there is no justification beyond politics for Congress to prevent us from closing a facility that should have never been opened.


BURNETT: Not everybody bought that and neither we nor he were prepared -- get ready, everybody -- for this --


PRESIDENT OBAMA: Today -- so today --

UNIDENTIFIED FEMALE: There are 102 people on hunger strike, these desperate people.

PRESIDENT OBAMA: You have to listen, ma'am. You have to let me speak. I'm about to address it.

UNIDENTIFIED FEMALE: You are our commander in chief. You can close Guantanamo today.

PRESIDENT OBAMA: Why don't you let me address it? Why don't you sit down and I'll tell you exactly what I'm going to do today.

UNIDENTIFIED FEMALE: That includes 57 Yemenis.



BURNETT: And she wasn't done yet.

PRESIDENT OBAMA: Ma'am, let me finish. We went --

UNIDENTIFIED FEMALE: Is that the way you treat a 16 beyond all doubt-year-old? That will make us safer here at home. I love my country.

PRESIDENT OBAMA: Part of free speech is you being able to speak, but you also listening and me being able to speak.


BURNETT: All right, there she is. As you might expect, that woman was finally escorted from the hall. I have to say I was kind of surprised because that went on for a while and then it happened again a few minutes later. And we were surprised it took them so long to remove her.

The president also at moments, I would have to say, it would be fair to describe the look on his face as a glare, appeared a little frustrated, too. But you know what, she did leave behind some pretty important questions as the president acknowledged.

One of the president's first acts after taking office on January 22nd, 2009, he signed an executive order to close Guantanamo Bay within a year. He has reiterated that promise throughout his time in office. So why is the facility still open?

Chris Lawrence as you know recently traveled for an exclusive look at the detention facility here for OUTFRONT. Chris, 160 detainees at Guantanamo as she was talking about 86 of them that have been approved for release and they have been, but yet they have not been released and there's a reason for that, right?

CHRIS LAWRENCE, CNN PENTAGON CORRESPONDENT: That's right. Because basically, Erin, the U.S. government doesn't feel that the security situation in their home countries like Yemen was sufficient enough to send them back there. They were scheduled for transfer, not necessarily just release, go out and have a great life.

They wanted to make sure that if they went back to the countries that there was a security system in place they could keep an eye on them. Now to date, the big announcement was President Obama saying he's going to lift that moratorium on Yemen. That's going to affect dozens of prisoners who now these officials can go back and take a look at their cases and see if perhaps they may be able to be transferred out back to their home country.

I spoke with one of the attorneys for one of the men on the hunger strike. She said nobody's going to stop hunger striking until they start seeing some of these prisoners actually leaving. And I've got to say the bottom line is this hunger strike appears to have worked.

Because as much as President Obama talked about Guantanamo Bay early on in the administration, there had been little to no movement at all until now this hunger strike seems to have caught the president's attention.

BURNETT: A fair point. Of course, the big question with those detainees that are eligible for transfer, as you say, they haven't transferred is what if just one of them did something against the United States? That would be something that would be absolutely horrible for this president.

Chris, I know you were just there. You saw some conditions that were horrific. For those you hadn't heard you report on it. I want to give you a chance to tell what it's like there.

LAWRENCE: It's tough on both sides I think, Erin, for both the captors and the captives. Because, you know, on the prisoner side, when you see this process of being fed by tube, you can see even with the lubricant, you know, even with being able to choose a smaller hose, the idea of a hose being snaked up your nose and down your throat and into your stomach and being shackled down for an hour or two to make sure you don't vomit it up, it's not an easy process.

And then on the other side, we spoke with some of the prison guards who talked about just the abuse that they suffer from some of the detainees there. Look at what one young guard described some of the names that she has been called during her time there.


PRISON GUARD, GUANTANAMO BAY DETENTION CAMP: The most common one is whore, slut, they say I'll piss all over your face. They'll say you've been disrespected. Nobody wants you. You're trash now.


LAWRENCE: Yes. I mean, it was tough to hear that and then when you also hear from the attorneys about what they say some of the pain that the detainees are in, it's just not a very good situation for those on either side of that -- of those gates.

BURNETT: No, it isn't. All right, thank you very much, Chris Lawrence. And what Chris saw there, as he said, on both sides pretty horrible to comprehend. OUTFRONT tonight, Peter Brookes, former deputy assistant secretary of defense in the administration of President George W. Bush, and Seth Jones, the associate director of the International Security and Defense Policy Center at the RAND Corporation. Obviously, this is a complicated situation with Gitmo. We all know it. But Peter, why hasn't the president been able to close it? And even on these detainees, right, that are eligible for transfer to Yemen that he now says he's going to send back. I mean, it is fair to say that he has had deep concerns. That if even one of these people is not secure and tries to strike the United States that is an unacceptable outcome for him?

PETER BROOKES, FORMER DEPUTY ASSISTANT SECRETARY OF DEFENSE: Yes. I mean I can't channel the president, obviously and he certainly wouldn't want me to. But, yes, I mean, he's worried about these people, the recidivism rate, the idea that these people will return to the battlefield and end up with American blood on their hands again.

So he's very concerned about that. Of course, he's had a bad track record recently with Benghazi and with Boston. I think the president had to talk about this. But, I mean, I think in terms of closing Gitmo, it goes in a sense against the public will. I mean, you can change the zip code of the facility and move it somewhere to the United States.

But there is a tremendous amount -- my sense is, anyway, Erin, against moving these people to the United States and then if you release them, I'm not even comfortable with them going to Yemen. You know, there have been jail breaks before for al Qaeda where these people have been able to return to the battlefield.

A lot of al Qaeda in the Arabian Peninsula came out of Saudi Arabia. So there are a lot of concerns here especially what we've seen in London, what we've seen in Boston and, of course, Benghazi is still around.

BURNETT: You know, this is very inextricably linked with the hunger strikes because while the president hasn't put more people in Guantanamo. He has had the advantage of drone technology to perhaps kill some militants that otherwise might have in the prior administration ended up in Guantanamo. And the president did talk about drone strikes. I want to play a little clip of what he said and then ask you about it. Here he is.


PRESIDENT OBAMA: For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen with a drone or with a shotgun without due process. Nor should any president deploy armed drones over U.S. soil.


BURNETT: Except that he also defended the decision to kill an American, Anwar Al-Awlaki, with a drone without due process. This all doesn't add up.

SETH JONES, RAND INTERNATIONAL SECURITY AND DEFENSE POLICY CENTER: Well, look, I mean, I can say from sort of firsthand experience in following Awlaki that he definitely was involved in plotting attacks against the United States. So I mean this in this case there was somebody involved in plotting that was directly involved in the plot to take down an airliner that is landing in Detroit in 2009.

Now, does that make him legally justifiable to kill him in Yemen? That's a very, very difficult question, but I will say this. He was definitely involved in targeting and involved in terrorist attacks in the U.S. so I think this did save lives in the end.

BURNETT: Right. That, of course, is -- that's the tough thing here. There is no easy answer. We know what the president knows. But the polling, I want to ask each of you this before we go. Peter, approving of drone strikes, 65 percent of Americans say, yes, go ahead and drone them overseas, suspected people by the way.

So in other words, no due process, 41 percent say go ahead and drone an American citizen abroad who is suspected of terrorism. Only 13 percent say drone a U.S. citizen suspected of terrorism in U.S. soil. See what I don't understand is that 41 and 13, those numbers should be the same. OK, all the difference is geography.

BROOKES: Right. Well, the citizenship, too. I mean, I think that's an important thing. The president didn't get into the moral side of this. I'm not a lawyer. I can't, you know, go on about those sorts of things. I think what American people are fundamentally concerned is the security of American people, the security of American interests overseas and our servicemen servicing overseas.

If this saves a lot of lives, they're OK with that, but of course, it does complicate the question when you talk about American citizens. But an American citizen who is a terrorist or part of al Qaeda is in a different category for me personally.

BURNETT: Yes, it's going to be interesting to see what people think. I think this is a line. You can drone somewhere but not here. That line is just one that it would seem over time is going to become incredibly difficult to keep.

Still to come, an emotional reunion in Oklahoma, students and teachers at Plaza Towers Elementary reunite for the first time since the tornado.

Plus a remarkable beginning to a new life, a woman gave birth during that tornado. We're going to meet that new family.

And yesterday a director from the IRS pleaded the fifth before Congress. Her job status changed, but her pay status has not. We'll tell you why.

And Brad Pitt's medical drama, we now know something about his very rare disorder.


BURNETT: In our second story, OUTFRONT, tearful reunions and remembrances because earlier today, the first funeral was held for one of the youngest victim of the tornado on Monday, 9-year-old Antonia Candelaria was one of seven kids who died at the Plaza Towers Elementary School. It is the school that is the emotional focal point of the tornado. Today that school came together for the first time. Students reunited with the teachers who saved their lives. Our Ed Lavandera is OUTFRONT.


ED LAVANDERA, CNN CORRESPONDENT (voice-over): The last day of school wasn't supposed to be like this.

(on camera): What it is like in there?

PAMELA RUPERT, STUDENT'S MOTHER: It's surreal. It's sad, happy, all kinds of different things.

LAVANDERA (voice-over): With no classrooms of their own left standing, Plaza Towers Elementary School students and parents gathered at another nearby school for an end of the year goodbye.

(on camera): Why do you want to see your teacher?

PEYTON SATTERLEE, PLAZA TOWERS STUDENT: Because I love her very much and she's my favorite teacher.

LAVANDERA: How scary was all this for you?

SATTERLEE: It was very terrifying.



LAVANDERA: I'm sorry you had to go through this.

(voice-over): Students brought letters and cards to the teachers who fought so hard to shield them from the tornado's ferocious destruction. For many of them, it was the first time they'd seen each other since the awful moments after the storm struck.

UNIDENTIFIED CHILD: This is Mickey Mouse.

LAVANDERA (on camera): This is Mickey Mouse? Did they give you Mickey Mouse?


LAVANDERA: Does Mickey Mouse make you feel better?


LAVANDERA (voice-over): First grader Elijah Garvin was pulled out of the rubble.

(on camera): Do you remember about what happened Monday? ELIJAH GARVIN, PLAZA TOWERS STUDENT: Well, there was a tornado. I was stuck and I went to the hallway then I went to the bathroom. And then all my other first graders cried.

LAVANDERA: They were crying?


LAVANDERA (voice-over): Elijah's mother says he's doing well, but can't fully express the horrific experience and had a few nightmares.

ANGELA GARVIN, ELIJAH'S MOTHER: He actually was making it not sound bad. I found out that his teacher was shielding him and on top of him and a block fell on him. The first thing she just said to me, I'm sorry about his head. He got small laceration to his scalp, but I'm like, it's OK.

LAVANDERA (on camera): So when you saw your teacher, what did you tell her?

ELIJAH GARVIN: I told her I loved her.

LAVANDERA: You told her you loved her? I bet that made her day.

ELIJAH GARVIN: Yes. Well, thank you for coming.

LAVANDERA (voice-over): The students were given new backpacks, balloons, and stuffed animals. We noticed this third grader clutching a lion. She was in Jennifer Dome's class. Miss Domes suffered spinal injuries and is still in the hospital. Friends have started a praying for Jennifer Domes Facebook page. Several students from Holly's class died in that storm and now you'll understand why holly won't let go of that stuffed animal.

(on camera): What is the lion's name?

HOLLY HERBERT, PLAZA TOWERS STUDENT: Sydney, Tony, Kyle, Nicholas, Janae.

LAVANDERA: Those are all your friends that died?

HERBERT: That's all I know.

LAVANDERA: I bet you're going to hold on to that little guy forever.


LAVANDERA: There we go.

UNIDENTIFIED FEMALE: We keep that forever.

LAVANDERA (voice-over): These students head off into summer vacation and what's supposed to be a joyous day is scarred by the haunting memories of a violent storm. Ed Lavandera, CNN, Oklahoma City.


BURNETT: Those who lived through the tornado are still sharing their stories including this one. The young mother, you may have heard about her, she literally went into labor as the tornado touched down. She veered straight to the hospital where she was giving birth. Brian Todd had a chance to meet her and the baby and is OUTFRONT.


UNIDENTIFIED FEMALE: My God, look at how handsome your boy is.

BRIAN TODD, CNN CORRESPONDENT (voice-over): A reunion that came seconds and inches away from never happening. Four nurses from Moore Medical Center congratulate Shayla Taylor on her newborn son, Braden, six people with a bond that will last for the rest of their lives. As the tornado approached town, Shayla Taylor was in labor on the second floor of the medical center. She was dilated, going through contractions and --

ALYSON HEEKE, NURSE SUPERVISOR: She couldn't move. She had epidural anesthesia, which means it numbed her enough that she couldn't walk.

TODD: As the tornado bore down, the staff moved her to the hallway then to the more solid windowless operating room. The power was knocked out. It was too dangerous to move her anywhere else.

CINDY POPEJOY, CHARGE NURSE: Her baby was not doing the best. So I really needed a way to monitor her baby to see how the baby was tolerating the labor process especially since she was so far dilated. So the only place to do that would be the OR.

TODD: But within minutes, the hospital was hit with massive force.

(on camera): Now what do you think?

SHAYLA TAYLOR, RODE OUT STORM IN DAMAGED HOSPITAL: Once I felt the floor start shaking, it felt like an earthquake. I knew we were getting hit directly.

TODD: Did you think at that moment that you and Braden could survive this?

TAYLOR: I didn't know if we would. I was just praying that we would.

TODD (voice-over): The walls were ripped off the operating room. Shayla's husband and the nurses shared these pictures from where they were hunkered down a gaping hole to the outside, the tornado still raging.

TAYLOR: I opened my eyes, I could see I-35 and I could see the movie theatre. TODD: With Shayla still in labor, nurses, Cindy Popejoy, Barbara Brand, Bonnie Stevens and Alyson Heeke, draped blankets and their bodies over her and hung on.

HEEKE: We actually were on the floor. Bonnie the scrub tech was leaning over her. We had blankets and pillows all around her and we were holding on to each other in the bed.

TODD: It worked, the tornado passed without any of them being hurt. But Shayla's husband, Jerome, who'd taken cover with their 4- year-old son, Shaden, on a lower floor hadn't been allowed to go to his wife and says he didn't know how to get to her.

JEROME TAYLOR, SHAYLA'S HUSBAND: And they were like, no, you have to get out of the building. I was like, no, my wife is upstairs.

TODD: And there was still danger. Even though the tornado had passed, floors and ceilings were unstable and there were gas leaks. But Jerome Taylor and the nurses were able to get Shayla on to a flat board and down a stairwell and out. She was taken to a hospital in Norman. Within hours, Bradon Emmanuel Taylor was born at a healthy 8 pounds, 3 ounces.

(on camera): What do you think of the nurses and what they did?

SHAYLA TAYLOR: Those nurses are amazing. You know, they -- they're definitely doing the job that they were called to do. You know, to put my life before theirs. I know that's what you're supposed to do, you know, as a nurse. I went to nursing school. I know that's what you're supposed to do, but to actually see them do it and to be more concerned about me than them, I know that's -- they're definitely doing the job that they are called to do.

TODD (voice-over): As for this tiny trouble maker.

SHAYLA TAYLOR: He'll probably sleep through anything now.

TODD: One final piece of symmetry here, Shayla Taylor just finished nursing school. She says she always wanted to be a labor and delivery nurse and this experience only reinforces that. Brian Todd, CNN, Moore, Oklahoma.


BURNETT: And still to come, that soldier hit by the car and killed with a meat cleaver during a terror attack, there is a huge break in that absolutely disgusting and bizarre case.

The teenage girl faces felony charges for same sex relationship. We're going to investigate. And then ask is this a case of intolerance or abuse?

And one of the most recognizable men in the world can't recognize other people. What about the person next to him? The medical condition of Brad Pitt.


BURNETT: All right, we have a verdict in the Jodi Arias case. I want to listen.

UNIDENTIFIED FEMALE: We the jury in the entitled action upon our oath unanimously find having considered all of the facts and circumstances that the defendant should be sentenced to -- no unanimous agreement signed foreperson.

UNIDENTIFIED FEMALE: Is this your true verdict?

UNIDENTIFIED FEMALE: The bailiff will ask each -- I'm sorry, the clerk will ask each of you a question. Please answer yes or no.

UNIDENTIFIED FEMALE: Jury number one, is this your true verdict?


UNIDENTIFIED FEMALE: Jury number two, is this your true verdict?


BURNETT: All right, I want to bring in Ashleigh Banfield. As you just heard, it sounds, Ashleigh, I want to make sure I understood what I heard here that they do not have a unanimous verdict. That would mean a hung jury or what?

ASHLEIGH BANFIELD, CNN CORRESPONDENT: Yes. Unfortunately that is exactly what it is. The wording on the verdict form, which they had to fill out was couldn't agree on a unanimous verdict and this is a very unfortunate development. You can see the family. They're so devastated. This has been five months of hell for family and friends of the victim in this case only to come this far to have no decision on what to do.

And in most jurisdictions, Erin, this automatically means a life sentence but not here. Not in Arizona. There is another option now and that is to bring in a whole new jury. It does not mean a whole new trial. It does not mean five more months of hell for everyone involved on the victim side of the case and all of the money that this state has had to spend to actually not only prosecute but defend because she's on public defense, to defend this case.

What it does mean is that the new phase will solely be on the question of life or death, which is very difficult. A whole new jury panel effectively shouldn't know everything that this jury knows, the evidence in the case. So it would mean a very, very lengthy penalty phase in order to come up with some kind of verdict.

Erin, if they can't come up with a verdict a second time with a brand new jury, do you not get another crack. That means an automatic life sentence and it's the judge who decides if it's natural life or if it's natural life with some sort of release after 25 years.

And there is a whole other kettle of fish with that. This state has laws that don't necessarily allow release at this point, but the laws could change down the road. So it's a formula that has yet to be worked out.

BURNETT: Wow, all right, but the bottom line is to this point, a new jury coming in, all right? That's what happens here. To your point, these jurors have been sitting here for five months. The new jury isn't allowed to reconsider guilt or innocence, but yet they're supposed to decide the death penalty. So I mean it would seem as a lay person that it's a lot less likely that they would come up with the death penalty. They don't know everything.

BANFIELD: Yes, just getting a note here. Don't make any plans for July 18th. That's when they're going to empanel a new jury and there will be a new death penalty phase beginning on this. Yes, you're absolutely right. There is a double edge sword here. This is how it works.

The new jury, in any other case other than Jodi Arias would know nothing about the evidence in the case. And so they're not going to re-litigate guilt or innocence, which is usually where you get trial evidence. They would only be re-litigating life or death. So in that new phase, both of these attorneys, the prosecutor and defense attorneys, they would have to bring in an enormous amount of evidence, which would make it a very lengthy phase.

And here's the double edge sword. In this case, the media consumption has been off the rails and so a lot of those new jurors empanelled would have been privy to television coverage that this jury has been admonished. They are not allowed to consume. They are not allowed to read or listen, follow or discuss. So, you know, there are a lot of appellate issues born of that. It is a very troublesome result I have to say.

BURNETT: Ashleigh, just to make sure I understand, they must bring in a new jury, right? They don't have the option of the judge deciding well I'm going to decide life or natural life or not?

BANFIELD: No. No. The judge can't do that at this point, but what could happen, I don't see this happening. They could come to a bargain. The prosecutors and the defense attorney can come to a bargain whereby that prosecutor who has worked his tail off for the last five years would have to agree, fine. I'll throw in the towel.

Let's agree to probably not a life with release option, but a life no option for release and we'll throw in the towel and not spend another dime on all of this. But, look this is real hard fought. And for a lot of those who believe that this woman is guilty and deserves death penalty, it was a bit of an open and shut case in their opinion.

So the death penalty to them would have been open and shut as well. But as you can see, never, ever read tea leaves or guess what a jury is going to do because time and time again we're proven that we can't. We absolutely cannot.

BURNETT: Ashleigh, to your point, how are they going to find -- usually when you find a jury, you know, all the questions are about whether the people are biased or as you point out, know anything about the case. Well in this case, in the area there, that may be virtually impossible. So you're going to have people coming in with predisposed opinions and that is almost impossible to prevent.

BANFIELD: Sure. You're right. And I'm going to take you back to O.J. There was not one juror who was voirdired in that case who didn't know who O.J. Simpson was and who did not watch that white bronco chase. That is not the issue when it comes to finding a fair panel. The issue is can you be unbiased? Can you take the set of facts and make a decision in an unbiased way?

Not how much do you know about the case? I have heard a lot of questions about what television shows do you watch? What cable television news shows do you watch? But that doesn't immediately strike someone from a panel if they happen to be, you know, viewers of certain programs that cover legal news.

In fact, I once saw "Dateline" producer impanels on a jury. It doesn't mean how much do you know. It always means how much do you know and how much can you be unbiased about what you know and you can always find a jury. Believe it or not, it can be tough and you may have to move it to another jurisdiction. I dare say there is not another jurisdiction that's going to be any different.

BURNETT: And what about the reaction here? Just watching the family, obviously seems sort of stone faced and heartbroken at this moment. They were expecting, hoping for a death penalty verdict. Jodi Arias herself didn't exactly seem relieved. You might have thought she was. Obviously maybe she thought it was very clearly going to go the other way, just watching her body reaction here.

BANFIELD: I don't know what she knew before that information was announced in open court. Let me just give you a little inside look at what happened before the cameras widened out. She was crying and her defense attorney who sits directly to her right and mitigation specialist, the woman meeting with her in jail time in, time out for years who had been trying to figure out all the good things that would save her life from a death penalty, they were having to console her. It was described as a bit of a pep talk.

And then it was described as absolutely consolation. Tissues were brought out. So she was pretty devastated before she even heard an open court that this was a hung jury.

But you know what? Her devastation is nothing compared to that group of family and friends, many of them who travel from other states to be here. They've given up their jobs. Their lives, they left their children and families to be here in support of their now dead friend, brother or son -- actually, both of Travis' parents have passed now as has his grandmother.

But, you know, this has been really awful for them. And so, to just sort of have it culminate in a non -- I'm not going to say non- decision because it is a decision. They made a decision. They agreed they couldn't agree.

And listen, for anyone who takes it out on a jury, do not. This is a very tough job. And these people have given the last five months of their life. They didn't ask for this. They did their duty, their civic duty. And it is never easy for anyone who ever sat on a death penalty case, way different than watching it on TV than sitting in a room and getting to know a woman whether you like her or not who is a human being.

BURNETT: Right. Having to make that life or death decision.

Ashleigh is going to stay with us.

I want to bring in Sunny Hostin and Paul Callan into this conversation.

Does this surprise you?

SUNNY HOSTIN, CNN LEGAL ANALYST: It doesn't surprise me. Paul and I were talking g about this. You know, it was going on and on and on. They were deliberating for, what, 13 hours, 14 hours. And so it didn't surprise me, because I think it's one thing to be death panel qualified when you're questioned and say I could impose the death penalty.

Five months later, down the line, after you heard all of this evidence, after you got to know all the players, it's a bit difficult.

BURNETT: Like her or not, you see her as a human being.

PAUL CALLAN, CNN LEGAL CONTRIBUTOR: What was somewhat surprising, though, was this: 12 of them said this is a premeditated murder. They found that in the verdict portion of the case. And they came to a decision relatively quickly, three days which is not a long time for a lengthy trial.

Then, in the second part of the trial, when it began, they took less than two hours to say, you know something? We want to deliberate about the death penalty. One of them could have held out and said no to that. And that would have been the end of it. A life sentence would be imposed.

So a lot of the hints were that this is a jury that might impose the death penalty --

BURNETT: It would have gone to the direction of death penalty.

CALLAN: Yes, exactly.

So, now, for them to come back and say no verdict. And I think the biggest surprise to me is the judge not forcing them to go on. They've only been out for three days. That's not a long time in a death penalty case.

BURNETT: The judge could have said that, look, I know you think you have a decision. Go back and talk more. They could have done that? She could have that?

CALLAN: Absolutely. The judge could have forced them to go back and she could have given another Allen charge, they called the dynamite charge and forced continued deliberation. At least through Friday.


HOSTIN: That's true.

CALLAN: But there must be such a split here that judge must have said there is no process.

HOSTIN: Yes, because there were questions that jury posed. We don't know those questions. But there were questions.

You know, I have to disagree with Ashleigh, though, about one thing. You and I have talked about this, Paul. I wonder if the parties are not going to get together now and say, OK, enough is enough. If Jodi Arias pleads guilty to life without the possibility of parole or accepts that sentence waives all her rights to appeal -- I wonder whether or not the government would take that.

CALLAN: I'll tell you why I don't think that's going to happen. I don't think it will happen because Martinez, the prosecutor, has been relentless and aggressive and has really been pushing for the death penalty. And he is going to go for it.

And, really, what does he got to lose? You have a second trial. She's already been --

HOSTIN: But what about the family, though?

CALLAN: Well, that's different. If Travis' family come and if they say, we want life, then I think yes.

BURNETT: Well, I want to talk about the next story. But, first, I want to bring in Casey Wian, because he was actually in that room and you have seen the reaction on Jodi Arias' face from the viewers. You could see that as this verdict came down. You could see the reaction on Travis Alexander's family's faces, just completely devastated there.

Casey, what happened in that room?

CASEY WIAN, CNN CORRESPONDENT: Well, Erin, there are also a couple of the jurors also had tears in their eyes. Very difficult moment for everyone involved in this case.

Even the judge when she was preparing to dismiss that jury seemed to hesitate and halt a little bit in her speech, talking about what an extraordinary case this has been for them and thanking them for their service.

I want to talk a little bit more if I can about what your previous guest was talking about in terms of a potential negotiated settlement. I will tell that you people familiar with death penalty prosecutions and familiar with the prosecution's thinking in this case say that is definitely something that is on the table. It's not a certainty. But it is something that prosecution is likely to consider having Jodi Arias waive her right to appeals and accept a sentence of life without the possibility of release is something that could be on the table.

There are now tools in the prosecution's favor that they can use in a new trial which could compel the defense to agree to something like this. All of those news media interviews that Jodi Arias granted, now they say can be used in the prosecution's new penalty phase. They could show how she asked for the death penalty two weeks ago, and then just a few days ago said, spare my life.

So there is a lot going in the prosecution's favor. And we could see negotiations happen, Erin.


Ashleigh, I guess weigh in on that. I mean, does that, from the point of view of you covering this, does that make sense when you think about the other option, of course, which is taxpayers are paying for this, you got another jury, you're talking about mid-July, then you have a whole other level of decisions?

BANFIELD: Yes, and you know something? I'm going to repeat this because it is troublesome, the amount of media attention that this case has generated, it is difficult to not be worried and, Paul, I'm sure, Sunny, you'll weigh in on this. It is not out of the realm that there would be stealth jurors. And those are people who get up under voir dire and say I can be fair and unbiased and say all the right things and do the right things and ultimately, they're angry or they are sympathetic and they have an agenda.

And it is very difficult to assess who a stealth juror is. But -- you know, the money can't be ignored either. I know jurisdictions always say it's not about the money. Her defense has been, you know, in excess of $1.8 million already.

There are difficult questions all around. Maybe Paul can answer whether it's an appellate issue, this extraordinary media coverage and the potential for stealth in any kind of double impaneled jury.

BURNETT: Go ahead, Paul.

CALLAN: It's definitely an issue on appeal. First of all, this procedure of a hung jury in the penalty phase is virtually unheard of. I don't know, Sunny. I can't remember ever having seen it before.

BURNETT: There's so much about this case. I guess I shouldn't be shocked.

CALLAN: Because a second jury is going to have to come in. And for them to understand the case completely, you've got to represent the whole case. I mean, Jodi Arias wants to get up and explain why she did what she did.

BURNETT: How do you sentence a human being to death when you're not allowed to question whether you actually think they deserve it or not? I don't understand.

(CROSSTALK) CALLAN: I don't know.

BURNETT: If this jury couldn't come to that conclusion, why would another one?

CALLAN: It makes me wonder how the Supreme Court would look at this ultimately if death is imposed by a jury that didn't hear the guilt or innocence.


BURNETT: That's right.

CALLAN: This may be an unconstitutional statute.

HOSTIN: I agree. I think that's the challenge and that's really why I think when you -- when you look at this case, it's been five months, all the media attention, what makes sense to me from the prosecution's point of view is make sure that she's in prison for the rest of her life. And call it a day.

CALLAN: I want to -- I wanted to add one other thing, too.

In the television interviews, these bizarre interviews that she was giving while the jury was deliberating on death, one of those interviews she said she wanted to fire her attorneys because there was evidence of bruising on her throat. She had witnesses and the attorneys refused to call them.

Now, I'm betting that the attorneys didn't call these witnesses because they didn't think they backed up her story. There was a strategic difference.

But she has the right to fire her attorneys. If she does so, we're going to have a new set of attorneys coming in. And I don't think there is any way a new set of attorneys can start this case in July. This case is not going to be tried until much later in the fall.

BANFIELD: There is something else that goes with that. And that is that those jurors who are just being dismissed as we speak did not see any of those interviews. They did not see the initial interview after she was declared guilty where she said, I want to die. And she didn't see the round of interviews that was just conducted over the last few days where she had to answer to her allocution which is I want to live and I want to live a life in prison and please spare my life.

In any new round, Paul, you'll have to correct me if I'm wrong, but the capital experts I -- attorneys who specialize in capital crimes here in Arizona have said to me they believe those television interviews are all fair game. They can all be brought in at this penalty phase.

CALLAN: They absolutely are fair game. And, you know, I it this interesting thing about it is that it could hurt her or it could help her. It almost makes her look mentally unbalanced that one day she said she wants death.

BURNETT: Along with everything else.

CALLAN: The next day, she wants life.

BURNETT: I didn't do it. I did it.

CALLAN: That's one of the factors they can consider to give life.

BURNETT: But how can she say -- so it's paid for by taxpayers. She doesn't like the defense. She can just fire the person and have someone else come in when she's not paying the bills?

HOSTIN: Well, she can do that. I have to tell you, this defense team tried to withdraw several times during this representation and those motions have been denied. So, I suspect that even if she wants to try to fire them or they try to withdraw, I don't know that this judge will allow that at this point in the game. It's going to take too long for a new defense team to get up to speed on this.

CALLAN: Yes, but it's over. I mean, he couldn't dismiss them while the jury was deliberating. I understand the judge -- I keep saying him, it's a her -- I apologize for that.

But, you know, I can understand why the judge said, no, we're in the middle of a trial. You can't get off the case now. But it's over. We're going to be starting a new impaneling process. It's a mistrial.

HOSTIN: But just for the penalty phase. I can't see a judge doing that.

CALLAN: If she says, I don't want these --I don't want these attorneys representing me. I don't know if that would be reversible error.


BURNETT: Yes, go ahead, Ashleigh.

BANFIELD: Question for both of you. And, Erin, I'm not sure that this -- sort of jumping ahead of the horse here. But given the fact that there has been this intransigence on the part of their client and the difficult management situation, I don't -- I wouldn't put it past her for an appellate issue down the road for insufficient counsel which we have seen now play out in O.J. Simpson. We have seen play out in numerous other kinds of courtrooms.

But in this case, it's almost ineffective assistance of defendant, and I'm not sure what they are basis for arguing for arguing about her counsel would be, because it feels to me that they did -- they put everything on the record. They objected every time they needed to.

And even when they didn't, I think there were 13 objections during those closings which is unusual, but do you see any basis for this?

CALLAN: She had a very effective group of attorneys representing her. There is no way there will be a reversal based on the attorney errors. They have a very difficult client. They did the best they could under the circumstances.

HOSTIN: Although the claims can always be made, right?

CALLAN: It can always be made. I think you're right. Ineffective assistance of client is what -- yes, what the charge would be, and that's reversible.

BURNETT: I want to go to Casey really quickly here. Casey, Mike Galanos, of course, our colleague over at Headline News is saying, a jury looked at Travis' family and mouthed the words "I'm sorry."

When you were looking at those juries, could you get any sense -- I mean, you know this is a difficult question, but how split it was? Was there a hold out? Were there several holdouts that made this impossible to make the unanimous decision?

WIAN: No way I could tell what -- how the split broke down. But what I can tell you is observing these jurors over the past several weeks, we would see them come and go. Sometimes you run into them out on the street on your way to court. You would see them gather in the hallways, going to lunch together. And they seemed like a happy, friendly bunch that was getting along well. There will maybe one or two that were sort of loners, didn't really associate with the group that much.

But over the last couple of days, we have noticed a lot more tension on those jurors' faces. That's all I can tell you. I can't tell you what the numeric split was.


WIAN: I can only speculate. But it's clear the tension level in that jury room has been rising over the last couple of days.

BURNETT: Now that they're going to be leaving, everyone is going to want to know exactly what happened and who thought what. Want to play right now for those of you just joining us, obviously a hung jury in the Jodi Arias verdict. Unable to decide on the death penalty with unanimity which means a new jury is going to be impaneled.

I want to play for you the entire verdict so can you hear and watch yourself the reaction -- Travis Alexander's family, the jurors, and, of course, Jodi Arias.


CLERK: State of Arizona versus Jodi Ann Arias, sentencing verdict. We the jury duly impaneled and sworn in the above entitled action upon our oath unanimously find, having considered all of the facts and circumstances, that the defendant should be sentenced to -- no unanimous agreement, signed foreperson. UNIDENTIFIED FEMALE: This is your true verdict so say you one and all?


JUDGE: The bailiff will ask -- I'm sorry, the clerk will ask each of you a question. Please answer yes or no.

CLERK: Juror number one. Is this your true verdict?


CLERK: Jury number two, is this your true verdict?


CLERK: Jury number three, is this your true verdict?


CLERK: Juror number four, is this your true verdict?


CLERK: Juror number six, is this your true verdict?


CLERK: Juror number seven, is this your true verdict?


CLERK: Juror number nine, is this your true verdict?


CLERK: Juror number 12, is this your true verdict?


CLERK: Juror number 13, is this your true verdict?


CLERK: Juror number 14, is this your true verdict?


CLERK: Juror number 16, is this your true verdict?


CLERK: Juror number 18, is this your true verdict?

UNIDENTIFIED MALE: Yes. JUDGE: We are going to declare a mistrial as to the penalty phase. We order a setting a retrial on the penalty phase for July 18th in this division. This order setting a status conference in this division on penalty phase matters for June 20th at 8:30 a.m.

Ladies and gentlemen, on behalf of the participants in this trial, I wish to thank you for extraordinary service to this community. This was not your typical trial. You were asked to perform very difficult responsibilities.

The admonition is now lifted. You are free to talk about the case or not talk about it as you wish.

I will be back shortly to personally thank each of you for your service. You are excused.


BURNETT: And some emotion from the judge there as well.

We are joined here by former prosecutors, former defense attorneys and, of course, Casey Wian, who was in the courtroom for that verdict, as well as Ashleigh Banfield, who has been covering this wall to wall since the beginning.

I just want to go to you, Ashleigh. For those just joining us and hearing the verdict, mistrial, a hung jury and the strangeness of this situation which means that a new jury will be impaneled. And that new jury will not be allowed to reconsider guilt or innocence, but only decide life or death.

BANFIELD: Right. Yes, and only pull back a little on the mistrial. Usually, it's a mistrial. In this, it's not. This is a very unusual state.

California also does this in a secondary penalty phase. They can impanel the new jury to deal with just that aspect.

So, for anyone joining us, while it sounds very unorthodox. It is the law in Arizona.

Arizona also makes it a little easier, it would seem, to actually effectively get a death penalty. And this normally results in a life in prison. Some jurisdiction no parole for 25 years, some, no parole ever, usually refer to LWOP, life without a possibility of parole.

But that is also a whole other issue in this state, Erin. They are not in agreement. The courts and legislature over released after 25 years, either, and that also factored into this decision, that these two attorneys had to argue before this jury during a question before we reached this impasse. I don't know if this was part of their impasse problem.

But they had to come to a determination of would she in fact get out after 25 years if we voted life? That's not what they asked. But that was the assumption base on the answer from the judge. So, that's interesting development in how they ended up where they are now.

BURNETT: An important one. I want to bring in Wendy Murphy, a former prosecutor.

And, Wendy, what do you think is going to happen here? From your point of view as a former prosecutor, do they push ahead? Or do they decide to go for a deal and settle? If she will relinquish all rights to anything that it is life in prison with no possibility of parole?

WENDY MURPHY, FORMER PROSECUTOR (via telephone): I think that is the question, Erin. You know, the family has expressed through a spokesperson that if that were the jury's verdict, they would accept it but they clearly were holding for the death penalty. If there is a deal made, it will be that the judge will not have discretion to grant the possibility of parole.

That's the thing that up is in the air right now. The judge does have that discretion. If they make a deal at all, it will be exactly as you described it. Life without parole means no judge ever, now or in the future will ever be allowed to let her walk free.

BURNETT: No matter what the changes in laws.

Now, Paul, you've been on this show before. You said one of the difficulties in this case and them doing the death penalty, choosing the death penalty for Jodi Arias is the fact that she's a woman.

CALLAN: Yes. It's -- you know, I was looking at the stats on this. They go back as far as 1632. Less than 3 percent of the people have been executed in this country are female. In the recent past, by the way, in Arizona, nobody since 1976, no female has been executed in the state of Arizona.

It goes against the grain. We don't just think of women committing these kinds of crimes because women generally are not violent. And I think it makes it very difficult in any fact pattern to get the death penalty.

One thought: flip the gender here. If Travis Alexander had killed her, he plotted the killing, he lured her into a shower after sex --

BURNETT: Premeditated, all the things that they determined that she did.

CALLAN: Just say that was the casement, do you think there would than much of a delay in going after Travis Alexander? I don't think there would be. It's a gender thing. We're kind of hard wired not to want to do this to women. I hope I'm not offending anyone.

HOSTIN: I'm not sure. There are women on death row.

CALLAN: Not too many.

HOSTIN: Women have been convicted. And so, I'm not comfortable saying that that played a role here. I really think that this jury worked very hard. I think that there were a lot of issues that came up.

We have a situation in Arizona where the jurors are allowed to ask questions. They asked I believe over 200 questions. And this is a jury that worked very hard.

So I don't know that gender was present in the courtroom when they were discussing the death penalty.

CALLAN: Can we jump to the plea thing for a second? Because I think, what I'm thinking about on this is, you know, what does she have to gain by accepting a plea? If she goes to trial again and she gets -- even if she gets the death penalty, the likelihood is the Supreme Court is going to change in 12 years. It takes 12 years for one of these cases to actually go to the point where you get the death penalty. I'm betting it will be unconstitutional, the death panel.

BURNETT: Right, for a jury that did not determine guilt or innocence to determine death or life.

CALLAN: It would --


HOSTIN: Pretty sophisticated thinking for Jodi Arias.

CALLAN: If President Obama gets one more appointment to the Supreme Court, they're going to shift on whether the death penalty could be imposed at all. So she's taking something she's going to get anyway.


BURNETT: I want to bring in Casey Wian, though, quickly, Casey, on this point, because you were in the room.

You know, this jury as everyone here, so many questions asked, 200 questions and you know, I know we were tracking, some of them, who's taking notes and they were so assiduous in their dedication to getting it right, to being analytical. And you heard the judge with the verdict. I mean, at least, it felt to me that there was emotion in her voice. And ultimately, when you're deciding death or life, emotions sometimes might take over.

Did you see that or feel that in the room?

WIAN: You absolutely saw that and you absolutely felt that tension. When we were all called, we started gathering, the reporters outside the courtroom, they were saying it was just another jury question which we had this morning.

But even from that point in time, it felt differently. There was extra security in the courtroom, family members were there, family members were emotional. It was clearly once we got in that courtroom, a very emotional scene and something much more than a typical jury question. The other thing I want to add is on this issue of a deal, a deal would have to be agreed to by Jodi Arias and her defense team. It is no understatement to say that they have been at odds throughout this process.

Her defense team has tried to remove itself from the case at least three times. Her defense attorney told the jury that nine days out of 10, he does not like Jodi Arias personally himself. And then we had these television interviews which were granted apparently without the knowledge of her defense team.

So that's something that's going to play into any negotiations of a plea deal here, Erin.

BURNETT: And, Ashleigh, I heard you just a moment ago trying to get in.

BANFIELD: Yes. There are so many people who have been watching this entire five-month ordeal through the television screen and for those who absolutely cannot believe that a jury couldn't come to a death penalty for the likes of Jodi Arias, a liar and murderess and a cruel murderess, it's important to bring back a couple --

BURNETT: It looks like we just lost Ashleigh's shot briefly. We're obviously going to get her back. Don't have any fear about that.

I want to bring in Mark Geragos now, criminal defense attorney.

Mark, from your perspective, Wendy Murphy was weighing in as a former prosecutor, what she would do here. What would you be pushing for as the defense right now for Jodi Arias?

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Obviously, the defense wants to cut a deal to save her life. That's pretty much was the whole reason or strategy behind the defense in this case in the first place. I don't think it's a surprise, although I don't know and I don't know if it's been reported what the split was. Does anybody know what the split was?

BURNETT: We do not know yet but obviously we know the jury's allowed to talk about it, but we can't confirm yet, Mark.

GERAGOS: It's very unusual because in California, one of the things they would have done, we have a very similar system although there's some differences, they would have polled the jury after they had declared the mistrial, and told you what the split was, then you would have asked afterwards the jurors themselves.

I think that that is going to be the single most important factor in the prosecutor's decision. If it's 11-1 for death, the prosecution will probably, it's a no-brainer, they will seek it again. That's generally what happens. If it tilts the other way towards life, I think somebody will give serious consideration as to whether to go through this dog and pony show again.

BURNETT: Sunny had a question for you, I mean, just in terms of how unprecedented this is.

HOSTIN: Exactly. Hey, Mark, it's Sunny. My question is because we know that California has this similar system where there's a hung verdict on the penalty phase, you can impanel another jury. Have you seen that happen in California, because Paul and I were talking about it, we have never seen anything like that?

GERAGOS: Yes. We've had that a number of times in California. In fact, frequently, what you will see, and I've had two cases like this where they've gone to the federal system, they've declared the penalty phase, they've reversed the penalty phase and then years later, you can even come back and retry the penalty phase or cut a deal.

Last time I had that happen back in the year 2001, they had reversed the penalty phase, came back down and we ended up cutting a deal with the prosecutor in that case that avoided a special circumstance retrial.

CALLAN: Mark, have you ever seen an actual retrial in front of a second jury?

GERAGOS: Absolutely. Absolutely. It happens. It happens with -- it's not real frequent but it's not rare.


BURNETT: Mark, what's your view in terms of the role that emotion played? The people --

GERAGOS: The penalty phase --


BURNETT: -- they say are you OK with the death penalty, and maybe you say you are, then maybe when you actually have to make the decision you realize you aren't.

GERAGOS: One of the reasons that I didn't think she would get death and I said this early on when the jurors started asking questions, the fact that she was being first named in the jury questions, Jodi this, Jodi that, even though they were sharp, pro- prosecutorial questions, when you're first naming a defendant, it's much tougher, at least, it indicates to me it's much tougher to put that person to death.

I think she didn't help herself with the interview where she said she wanted death, because I think then you've got a problem where jurors are saying why am I going to fight for her, she doesn't -- she doesn't want to live, but then she got on the stand and I think she connected and that's all she's got to do. I mean, this highlights to me why the death penalty machinery is broken in this country.

BURNETT: There's a lot of reasons, the time it takes and everything it takes. Ashleigh, what about the point Mark just made about how the jurors were using her first name? You know, as you were there covering this, reporting on this, do you think just the proximity between those jurors and Jodi Arias created a link and the time. I mean, this trial was an unprecedented length, that the time made it more unlikely that this would result in a death penalty?

BANFIELD: I have never seen a defendant testify on the stand for that many days and I believe that the statistic we have been using is that it is a record so they got to know her real good. Again, I don't think it's about whether they like her or dislike her. I think it's about she became very human.

And even a dislikable human, it is difficult, you know, it is difficult to render a death verdict no matter how death qualified and that's the word, death qualified you become.

I just want to give you a bit of news, Erin. All of the jurors in this case have declined to be interviewed and their names have been sealed as well. This is something we saw in the Casey Anthony case. Thank you.

It's something we saw in the Casey Anthony case where the judge even asked for a cooling-off period for the media who wanted to interview jurors and sealed the names and ultimately opened up the names.

I was making a point before, it's 99 degrees here and that might have been why we went to grace snow live on the air. I was making the point that lest those who think how could those jurors not render a death verdict, 15 years ago, Terry Nichols, a co-conspirator in the Oklahoma City bombings went on trial twice, two times, not only for the deaths of the federal agents in the Oklahoma City bombing, a murder trial, a death penalty case at a federal level, in which jurors were hung on the death penalty and then on the state level, the state took another crack at that apple and took him to a death penalty trial for the 160 dead civilians and the jury hung on the death question.

So, it happens for the worst of the worst and it happened for Jodi Arias.

BURNETT: Well, Paul, let me ask you about this, because Ashleigh just had significant news here. Mark Geragos was saying do we know the breakdown. We do not yet know how many jurors were pushing for death and how many were not.

As Mark Geragos said, it was 11-1, you know you might end up in a situation that could dramatically change whether or not there's a deal here. But Ashleigh reported that all jurors declined to be interviewed and their names were sealed.

You heard the judge say you are free to talk if you want to talk and they don't want to talk.

HOSTIN: And they don't want to and, I think a lot of it has to do with what happened to the Casey Anthony jury. There was such outrage after that and people actually got death threats, some of these jurors, their lives were changed forever, and I think that had a real chilling effect on jurors after a verdict that may or may not be popular, coming and speaking and explaining what happened inside of the jury room.

CALLAN: I agree with Sunny completely. This is -- with the public interest in this trial, there will be threats against these jurors and it's a disgusting thing.

But, you know, what we're going to look at is the split, eight men and four women. I want to know was it a gender split. I think not, probably.

HOSTIN: You are gender tonight.

CALLAN: We were discussing it today. A lot of women are very tough on Jodi Arias. I don't think you will see a gender split. I don't know.

BURNETT: Ashleigh, go ahead.

BANFIELD: Erin, yes, you just brought up a really good point, the three of you, on the possible threats to this jury. We already know that two witnesses have been threatened. Alyce LaViolette was a domestic violence expert in this case and we watched as her testimony unfolded, so did the threats online. She was followed personally to a restaurant by a stalker. She also had her Web site deluged with people who demanded that she no longer be hired by anyone as a public speaker, and she was threatened.

And there was a grave concern that she couldn't be brought back into this trial. Not only that, but in the mitigation phase, there were only two people who were lined up to mitigate for Jodi and one of them was her best friend, who pulled out citing threats.

So threats have been a big part of this already and perhaps that's not lost on this jury, although they're not supposed to know about this because it came out in the media.

BURNETT: That's for sure. All right. Thank you all very much. Our breaking news coverage of the Jodi Arias trial is going to continue but again, the jury unable to reach a verdict on death. That means a whole new jury is going to be impaneled and unbelievable an unprecedented situation.

Our coverage continues on "A.C. 360."