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LEGAL VIEW WITH ASHLEIGH BANFIELD

Boston Marathon Bombing Trial Begins; 7-Year-Old Survives Plane Crash in Kentucky; AirAsia Search Continues

Aired January 5, 2015 - 12:00   ET

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


(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN ANCHOR: The bombings, it is as much a part of Boston's history as the Tea Party or Paul Revere's ride. The marathon trial of Dzhokhar Tsarnaev underway this hour after federal prosecutors apparently balk at a plea deal.

Also, coffins from the AirAsia crash arriving at Surabaya. Thirty- seven bodies now recovered from the sea, but still no clear sign of the plane. So what is making this search so difficult? We're going to show you just ahead this hour.

And another much smaller but no less tragic plane crash in Kentucky. The lone survivor, that's her, a child. Maybe the most amazing seven- year-old girl you will ever meet.

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

Four dead, hundreds injured and a city in absolute shock. Twenty-one months later, the man the feds say is responsible for the Boston marathon bombing is getting his day in court and so is everyone else. Dzhokhar Tsarnaev facing 30, 30 federal counts for his alleged role in detonating two bombs at the finish line of the marathon back in 2013. In all, three people were killed from the blast, 264 were injured. But that wasn't it. Tsarnaev is also charged with the murder of an M.I.T. police officer. CNN's Deborah Feyerick reminds us how we got to where we are today.

(BEGIN VIDEOTAPE)

DEBORAH FEYERICK, CNN CORRESPONDENT (voice-over): Right near the marathon finish line, on a holiday Monday in Boston, two explosions, 12 seconds apart.

RICK DESLAURIERS, FBI BOSTON OFFICE: It was a scene of utter devastation and carnage down there.

FEYERICK: The homemade bombs kill three people. Shrapnel tears through more than 200 spectators. Rick DesLauriers ran the FBI's Boston office.

DESLAURIERS: We were collecting pieces of shrapnel that had been contained inside the bombs, pieces of the pressure cooker bombs, pieces of the backpacks. FEYERICK: Day three, a break in the case. Of the more than 12,000

images and surveillance videos from businesses and spectators, a man in a white ball cap at the second blast site.

DESLAURIERS: He places that backpack down on the ground, sliding it off his shoulder, and stands and mills around. A short time later, maybe 15 minutes later, he makes a cell phone call. Very shortly thereafter, you hear the first bomb go off.

FEYERICK: Day four, the FBI asks the public for help finding two men, later identified as Tamerlan and Dzhokhar Tsarnaev, now on the run. Officials say the brothers execute M.I.T. Police Officer Sean Collier, car jack an SUV, and get into a shootout with police. Watertown Police Chief Ed Deveau says 26-year-old Tamerlan Tsarnaev is shot but manages to reload about four times.

ED DEVEAU, WATERTOWN POLICE CHIEF: He runs out of ammunition and throws his gun at my sergeant and he starts to run.

FEYERICK: Officers tackle Tamerlan. His brother tries to scatter police to free him.

DEVEAU: He drags his brother down. He's lodged underneath the SUV -- the stolen SUV and he smashes into one of our cruisers.

FEYERICK: By sunrise Friday, millions in the Boston area are in lockdown. When it is lifted that night, a resident calls 911. The suspect is hiding in his boat.

FEYERICK (on camera): He's got a sniper's rifle pointed right at his head.

DESLAURIERS: Yes. Yes.

FEYERICK: Because he was still a threat. You didn't know.

DESLAURIERS: He was still a threat. We didn't know if he had bombs on him.

FEYERICK: After a tense standoff, Tsarnaev surrenders. At the hospital, he is questioned by FBI interrogators, then read his rights.

(END VIDEOTAPE)

BANFIELD: And Deb Feyerick is live with us now from the courthouse in Boston. This is going to be one incredible jury selection process. My understanding is they've got 1,200 or so that have been summoned and they'll have to weed through them? What are they looking at in terms of length of time to seat a panel?

FEYERICK: They do, 1,200 - Yes, 1,200 out of 3,000 initially that received those jury notices. We're told that it could take as long as three weeks. Opening is not scheduled to begin until January 26th. The people have to fill out 100 questions. All of those will then be vetted by the prosecutors, by the defense lawyers and that could take at least 10 days. So it is going to be -- even the jury selection is going to be long. The trial itself expected to take between three and four months, Ashleigh.

BANFIELD: So when you're there, do you have a chance to just talk to the public and find out if there's anybody who really feels as though he or she could be impartial or hasn't been affected by this in any way? I mean this city was shut down.

FEYERICK: The city was shut down, but what you have to keep in mind also is that, you know, the judge made a very good point. He said there are 5 million people in the city of Boston. The thought of not being able to seat 12 people plus six alternates, he found that impossible. So what they're going to do is they're going to go through the process. If for some reason, as they go through the selection, as they go through the voir dire (ph), questioning the jurors and realize that it is simply impossible, then they will go to the next plan and see whether, in fact, they should be moving this trial out. But they do believe that they can seat an impartial jury.

And so that's what the judge is really focused on. And a lot of people, you know, they don't really remember all the specifics, all the details, like we in the media do, who tend to obsess over every little sort of movement. There will be a lot of video that's going to be introduced with Dzhokhar Tsarnaev, showing what he was doing during that Boston Marathon. So there will be a lot of evidence. But the judge really does believe that those men and women, they are here and they can be seated.

BANFIELD: I always say, if you can get a jury in O.J., you can get a jury anywhere. Deb Feyerick live for us, thank you for that. And we're going to be tapping in with Deb throughout this trial.

I want to dig deeper into what exactly lies ahead for this young man because with me our justice reporter, Evan Perez, also CNN commentator and legal analyst Mel Robbins and CNN legal analyst Danny Cevallos.

Evan, first to you. It's my understanding that Eric Holder is no fan of the death penalty.

EVAN PEREZ, CNN JUSTICE REPORTER: Right.

BANFIELD: So when you have a lawyer, a big hitter lawyer who comes in to try to make a deal and has been so successful with high-profile cases in the past at getting deals -

PEREZ: Right.

BANFIELD: Why would the Justice Department say no deal?

PEREZ: Well, it's not entirely clear why they decided that they wouldn't take the death penalty off the table. As you mentioned, Judy Clarke is well known for frankly saving the life of some of the most notorious criminals in America.

BANFIELD: Kaczynski, Moussaoui, Eric Rudolph.

PEREZ: Right. Right.

BANFIELD: I mean these were all notorious killers.

PEREZ: Right. And in this case, they decided that there is no more information, frankly, that's going to come out of Tsarnaev. There's no new information that is coming forwards since the attorney general made the decision last year to pursue the death penalty. And, you know, one of the things that he decided when he -- one of the things he decided when he decided to seek the death penalty in this case was that he didn't -- there was no remorse shown by this - by Tsarnaev.

BANFIELD: Yes. He's also got a legacy to protect, I'm assuming as well, as he goes out. Probably the last thing he wants to be known as is the guy who let that guy off the hook.

PEREZ: Right. And he just - he just authorized the death penalty in another case, by the way, in the L.A.X. shooting of a TSA officer last year.

BANFIELD: So I think there's a lot of people watching who would say, why would you give a man like this a deal? We've got mountains of evidence against him. Why put the people of Boston, one of whom is sitting beside me on the set right here.

MEL ROBBINS, CNN COMMENTATOR: Yes.

BANFIELD: Live and breathe and work in Boston. How do the people of Boston feel about this? Can they survive this trail? Do they want to go through with this trail?

ROBBINS: Of course we can survive. You know what, in fact, what's so interesting is it's not the bombs and the blast and the carnage that define Boston, it was our reaction and the Boston strong and the One Fund and all of the foundations and the stories of the victims and the fact that when the bombs went off, Ashleigh, what did people in Boston do? We ran toward the injured. What did runners do? They kept running to Mass General, many of whom were doctors, so they could then step in and perform surgeries after running 26 miles. So we will not be defined by this blast, nor will we be intimidated or offended by this trial.

BANFIELD: So nobody needs to be saved from going through this and, you know, no one is suggesting, you know, Eric Holder, how could you put us through this?

ROBBINS: I personally think there should be a plea. There should be a plea.

BANFIELD: Why?

ROBBINS: I'm offended that our leadership, that Elizabeth Warren, that the new mayor, Marty Walsh, who both are anti-death penalty, will not come out and say, give the guy a plea. We don't want the taxpayers to pay for this trial. He could easily plead for this. We don't need 142 civilian witnesses to have to reopen the old wounds. He's going to die in prison anyway. Why do we need to stoop to a revenge killing in order to make this be complete? BANFIELD: So -- well, here's one reason why some people feel that they

need - they need their justice, revenge, whatever you call it. I want to throw up this graphic if I can. I was going to ask the control room, there were some things that were written in blood in the inside of the boat where Dzhokhar Tsarnaev was ultimately found.

ROBBINS: Yes.

BANFIELD: And it's his decree. It's his reason for doing what he said he was doing. And this is just evidence, folks. This isn't opinion. This is what that young man, shortly before this scene unraveled, where he was pulled out of the boat, bloodied and battered and shot. "We Muslims are one body. You hurt one, you hurt us all. Now, I don't like killing innocent people. It is forbidden in Islam. But due to said," and there's an unintelligible word, "it is allowed. Stop killing innocent people and we will stop. The U.S. government is killing our innocent civilians. I can't stand to see such evil go unpunished."

So, Danny Cevallos, that's what you call really bad facts, really bad evidence, the kind of evidence that's almost insurmountable in a death penalty case, isn't it?

DANNY CEVALLOS, CNN LEGAL ANALYST: It is. And that's exactly the way we should analyze this case. Start with the assumption, which you can't make in most cases, that this will be a guilty verdict. If you start with that assumption, then we can talk about - and this is the way the federal government, the DOJ should analyze it, that really this case is about whether or not he lives the rest of his life in prison, because those are only one of two options, or the death penalty is administered. So, when analyzing whether or not to offer a guilty plea, consider whether you're going to expend the massive resources on a roll of the dice where you might actually lose on - I guess lose in the death penalty phase of the trial and he gets life without parole, or go for a sure thing and save not only the resources, because it's not about resources, save the agony of people coming in and testifying, save the entire process of a trial.

You know, you mentioned something like vengeance. Vengeance specifically is not one of the reasons we punish. We punish for retribution, which is a slightly different concept.

BANFIELD: Slightly.

CEVALLOS: But there are many other reasons we punish, to isolate someone from the public. That will be achieved by life without parole. Many of the other end goals of punishment are achieved by a life without parole penalty.

ROBBINS: I think Ashleigh nailed it in the beginning when you said that the prosecutor has a legacy and he doesn't want to be the one that says, hey, in an instance where there is a terrorist attack that killed four people, blew the limbs off 16 people and injured more than 260 people, it's not going to be --

BANFIELD: And when after part of America. It's not just Massachusetts. It's not just Boston.

ROBBINS: Of course.

BANFIELD: This was an American attack on all of us.

ROBBINS: Of course.

PEREZ: We're going to have a decade of appeals over this process. So this - none of this -

ROBBINS: No, it's about -- ten times (INAUDIBLE) to actually try to kill him that it will -

PEREZ: Right.

BANFIELD: Yes, (INAUDIBLE). And I think I heard you say this morning on the morning show, on "New Day," that typically in a federal trail, this death penalty, you'll get one third of them that actually go for a death penalty conviction. Two thirds just don't.

ROBBINS: Just a third.

BANFIELD: So, it's not very often.

ROBBINS: And, Massachusetts, unlikely. I'm surprised he wants to change venue because he's more likely to have a couple jurors on there that are secretly against the death penalty and might just save his life if he stays right in Massachusetts.

BANFIELD: I've got to leave it there, but, Evan Perez, Mel Robbins, Danny Cevallos, thank you all. We'll continue to cover this because, you know what, we're in it for at least somewhat around four months or so on this particular case.

So ahead, it is a long and arduous and grim task. The authorities searching for victims and debris from the downed AirAsia flight. The latest details on what they have found, where they have found it and why this is just so excruciatingly difficult.

(COMMERCIAL BREAK)

BANFIELD: We're approaching the nine day mark since AirAsia Flight 8501 crashed into the Java Sea. And for the search teams, the sea is still just half the battle. High winds, low clouds, rain, all now again cutting short the aerial search for the victims' remains and, of course, the remains of the Airbus itself. The teams did manage to recover three more bodies today and that brings the total number of bodies that they've been able to find to 37. Thirty-seven out of 162 who were passengers and crew on board that plane. Thirteen of those victims have now been identified.

The sonar has picked up several large pieces of what may -- may be wings or fuselage on the ocean floor. But one piece discovered over the weekend turned out to be nothing at all except from a piece from a ship wreck. The teams are most eager to find the AirAsia's plane's tail section because, of course, that contains the so-called black boxes. They're located very close to the tail.

CNN's David Molko is in Surabaya where Flight 8501 originated, without government permission to fly on that day. And that is significant. We're going to get to that in just a moment.

But first, talk to me a little bit about the search, David, because we're just getting these reports in that there is a naval captain in Indonesia who is suggesting that they actually may now have found the plane's tail? That's coming to us courtesy of Reuters. Can you expand on that and let us know just how much we know about that possibility?

DAVID MOLKO, CNN INTERNATIONAL: Hi, Ashleigh.

Yes, a lot going on in the search zone and a lot of reports coming out. This from, as you mentioned, the captain of an Indonesian naval vessel saying there is a possibility, emphasis on the word possibility, that they may have found the tail of the aircraft. Ashleigh, I think we have to take this with a grain of salt. Over the last week, we've had lots of reports like this coming in, first that they had seen the shadow underwater of what looked like the fuselage of the plane, turned out not to be the case. Last week, as well, the fact that they had found the main wreckage of Flight 8501.

Ashleigh, the thing that is really causing so much difficulty here, that is slowing things down for search teams is the weather. We've been talking about it all week. I think we're going to be continuing to talk about it. It is monsoon season. That means choppy seas. Even if the day starts out calm, things can change in a heartbeat. Divers were in the water on Monday, Ashleigh, trying to get a closer look at those five large objects you mentioned. The problem, again, for the second day in a row, zero visibility. Completely black. So they had to pull them out. Underwater cameras as well being sent down. Again, no luck there. We'll see what happens on Tuesday morning.

Ashleigh.

BANFIELD: So, David, tell me a little bit about this issue of the Sunday permitting, that this airline wasn't actually licensed to fly on Sundays. When that news broke, I think some people might have thought, look, that's not going to cause a crash. But what kind of reverberations is that issue causing where you are?

MOLKO: Yes, Ashleigh, that's a good point. The director of civil aviation here is saying the investigations are separate. You have the investigation in the crash and then they -- they're looking at the AirAsia practices about flying when they didn't have a license. Look, they had a license to fly four days a week. This was the agreement, just not on Sunday. The ministry of transport saying they rearranged their schedule. If they had come and made the request to fly on Sunday, it would have been easy paperwork issue to sort out.

It's one piece of information for investigators, Ashleigh, at this point. The investigation on that should take a week or two. AirAsia says it's cooperating. Certainly doesn't bode well for them, though, to, you know, be called out having a - as having a serious violation of an agreement, Ashleigh. BANFIELD: I think you're dead on there. David Molko, thank you for that.

Also want to call in my experts now. Tim Taylor is the president of Tiburon Subsea Research and sea operations specialist, and Miles O'Brien is a former CNN anchor and correspondent and now a CNN aviation analyst.

All right, so, Miles, if I could begin with you. There was some talk about icing being an issue over the weekend. I think some people might ask about icing in a place like Indonesia. Sort of the last things you might think of. What do you think of the possibility that that played into this issue?

MILES O'BRIEN, CNN AVIATION ANALYST: Well, when you're at that altitude, in those conditions, icing can happen any time of the year, no matter what the temperature may be on the ground. That's first and foremost. So, I have no doubt that icing in some way or fashion might have a big impact on this scenario.

However, the scenario that people are talking about, that icing caused the engines to stop, I think is a little more simplistic and frankly not as catastrophic as probably what happened. If, in fact, the engines did flame out, and there are safeguards against this, whenever a pilot flies into this kind of weather, you put on the ignition system, you keep the igniter going. It's sort of like turning the car key on your car constantly to make sure the engine doesn't go out. It would potentially, if that wasn't working or the pilot forgot to do it, you could get a dual flame out of both engines. If that happened, though, the plane can still fly. You turn toward land. You'd glide for about 100 miles. You get on the radio. You tell them you've got a big problem. And it's also very likely that as you get lower, you'll probably be able to restart those engines. But in any case, that's not what happened in this case. We didn't hear from them at all.

BANFIELD: Right. Yes. You don't disappear off radar if you have a dual engine failure.

I want to just widen out our shot from our three shot, if I can, to show what's on our set right now because, Tim, you brought with you this AUV, this extraordinarily unique and I was thinking, you know, why didn't I see this during MH 370 when we did so much coverage with the underwater vehicles that were patrolling the sea in that case. And there's a good reason.

TIM TAYLOR, SEA OPERATIONS SPECIALIST: New technology. The larger ones are the precursor to this. Everything's shrinking down. And these are really shallow water systems. These are 200 meters, so 650 feet deep. So they're perfect for this type of search they're doing now.

BANFIELD: Is this - because, look, there was a lot of -- there's a lot at stake here. They're looking for debris and there's looking for sound.

TAYLOR: Yes.

BANFIELD: What is this device doing?

TAYLOR: Well, this device is loaded with side scan sonar on the front of it. So it carries different payloads, from magnetometers, to side scan, to cameras. We could probably build a - easily build a pinger detector so it would run out and detect pingers. You'd have to download the data and see what - where you found it, but it would be also georeferenced and you'd know exactly where that ping came from. So these tools you can launch in multiple tools out of one boat stead of just one pinger towed array and then go off in different directions -

BANFIELD: They can work in teams.

TAYLOR: Yes, make a report. They've got radium (ph) systems on. They can report back through (INAUDIBLE).

BANFIELD: But David Molko just reported that the conditions are murky. That the sea is churning and roiling and that it's a mess under there. Does that matter?

TAYLOR: It does for visual, but for sound or for pinger, pinger and sound, as well as sonar, side scan sonar, it does not matter. You can use these tools in murky water.

BANFIELD: So, Miles, the notion that we are still in this boat, I hate to say it, that we're actually using the same kinds of underwater vehicles to try to - to locate this wreckage, now over a week since the crash. I guess I don't understand how you can find bodies and find debris and still not be a lot closer to wherever the main wreckage is.

O'BRIEN: I -- well, it's difficult conditions, but we've set our self up for this. Time and again we have technology which is of another century and we're trying to find something in a way that we can do so much better. There's no reason that we should have to be hunting for -- with a microphone for something that's pinging when, in fact, we could have the data which comes into these black boxes streaming out to the cloud when there's trouble on an aircraft and none of this would be required. We'd know a lot better where the aircraft is and we'd already have a very good sense of what happened on board.

Why are we leaving these families hanging? Why are we leaving the whole world hanging? Why are we leaving the industry hanging, wondering what might have gone wrong? Is there a defect in this plane? Is there something that is a safety issue that should concern all of us? The airlines have got to step up to the plate, the regulators, and we -- all of us as passengers and insist on better technology for recovering this data from airplanes.

BANFIELD: And until then we are left searching an area relatively the size of Delaware.

Miles O'Brien, Tim Taylor, thank you both for your insight and your expertise on this. I appreciate it.

So this was certainly the very last thing on a Friday night that a man felt he was going to discover. That little girl on your screen who had just trekked three quarters of a mile, in the dark, barefoot, in shorts, in 38 degrees weather, cut, injured, and alone. Just ahead, Larry Wilkins recounts what happens when he met Piper (ph).

(BEGIN VIDEO CLIP)

LARRY WILKINS, HELPED 7-YEAR-OLD PLANE CRASH SURVIVOR: She said, my mom and dad are dead. We just had a - we had a plane crash. And the plane was upside down.

(END VIDEO CLIP)

BANFIELD: Sailor Gutzler's story is remarkable for anyone, let alone someone who is just seven years old. This little girl on your screen survived a plane crash that killed everyone else on board. She climbed out of that wreckage and then she hiked out of the woods looking for help. She knocked on the door of a house that she stumbled upon. Inside that house was Larry Wilkins. He did not hear that very faint knock, but his dogs did and they started barking. And that's what took him to the door where he found her. This morning on CNN's "New Day," Wilkins told John Berman that what that little girl said when he found her all alone, freezing cold, lips quivering and bleeding.

(BEGIN VIDEO CLIP)

WILKINS: She just said that -- she said, my mom and dad are dead. We just had -- we had a plane crash and the plane was upside down. Like I say, it's kind of unbelievable, you know, that the little girl would come out and - you have to bear in mind how rough the terrain is through that woods. A lot of brier bushes and her little legs were just cut up from the bottom of her shorts to the tip of her toe. And it was about 35, 36 degrees and barefooted. And we had - it wasn't a rain, it was just drizzling, you know? So she was a little bit wet, but not soaking wet, but a little bit wet. But I imagine them little feet were pretty dagg gone cold.

JOHN BERMAN, ANCHOR, CNN'S "NEW DAY": Just seven years old.

WILKINS: Yes, she -

BERMAN: Talk to me about the area around your house. You said, you know, there was a creek bed, briars, a difficult walk for anybody, let alone a seven-year-old girl at night.

WILKINS: Well, yes, sir. We had an - we had an ice storm here in 2008. And this woods is - (INAUDIBLE) last night that it was about 1400 acres total. But now here I'm probably two blocks from a minor highway to know that the good Lord was with her. If she'd have walked the other direction, you probably wouldn't have found her for a week. So she'd be walking into just more - more woods. But the ice storm knocked a lot of these trees down. Say probably 20 to 30 percent of those trees are knocked down. So everywhere she walked, she had to detour.