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LEGAL VIEW WITH ASHLEIGH BANFIELD
Boston Marathon Trial; Kenyan Massacre; "Rolling Stone" Retraction. Aired 12-12:30p ET
Aired April 6, 2015 - 12:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[12:00:00] FAREED ZAKARIA, HOST, CNN'S "FAREED ZAKARIA GPS": Is, yes, you're looking at this factory, Factory A, but quite - secretly they're building -
KATE BOLDUAN, CNN ANCHOR: Yes.
ZAKARIA: A Factory B. The key now is you can look at all factories, all mines, all parts of the supply chain.
BOLDUAN: In the middle of all of this, there's really no deal until - they're still working towards the final deal. That's the June deadline that we're all looking at. And there's a lot to be worked out before then.
ZAKARIA: And there's politics in Iran as well. There are people who oppose the deal there too.
BOLDUAN: We've got 17 Fareed Zakaria shows that you've just lined up right there. Fareed, it's great to see you. Thanks so much.
ZAKARIA: A pleasure.
BOLDUAN: Thank you all for joining us AT THIS HOUR. We're going to pass it over to "Legal View" with Ashleigh Banfield. It starts right now.
ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.
A packed courthouse today in Boston as part one of the trial of the marathon bomber, Dzhokhar Tsarnaev, winds down with closing arguments. Right now he's just accused, but things can change rapidly. Tsarnaev's attorney admits the defendant pulled off the attack with his older brother, killing three people and wounding 264 others. So a guilty verdict shouldn't come as a surprise to anyone. Tsarnaev faces 30, 30 federal counts, more than half of them that carry the possibility of a death sentence. And that will be taken up in the next phase of the trial, if, in fact, there is one.
We're going to talk about this with our legal experts Joey Jackson and Danny Cevallos. But first, I want to get you live right out to the scene where Alexandra Field is standing by at the courthouse.
So, take me through today so far this morning, Alexandra. ALEXANDRA FIELD, CNN CORRESPONDENT: Ashleigh, powerful, powerful
opening minutes of the closing statements from the prosecution. You've got that packed courtroom. Bill Richard, the father of eight-year-old Martin Richard, who was killed in the bombing, is there. He has his wife by his side. And you can see him craning his neck, trying to get a good look at Dzhokhar Tsarnaev while the prosecution makes their closing argument here. You've got other survivors of these attacks who are in the courtroom trying to comfort one other, listening, hanging on every word intently as the prosecution recounts the details of the crimes that they have alleged, the story that they have built out over the last four or five weeks, the 92 different witnesses that they called to the stand. They're recounting all of that for the jury right now, Ashleigh, and they're doing it in a very passionate, very emotional way.
They started out by bringing up pictures of the note that Dzhokhar Tsarnaev had scrawled when he was hiding from police in the boat saying that that was his motive, that after he callously and coldly dropped this bomb, went shopping for milk, he then explained to people why he had done it, saying you hurt - we Muslims are one body. You hurt one, you hurt us all. The prosecution now telling the jury that Dzhokhar and his brother Tamerlan thought they were warriors, believed that they were mujahedeen here to unleash an attack on Boston, their target.
Ashleigh, they're also playing video from that horrific day. They're turning the sound up loud inside the courtroom, showing pictures of people maimed, injured, dying on the sidewalks outside the foreign restaurant and outside of Marathon Sports and they're letting the jury listen to the screams, listen to the chaos, listen to the descriptions of what is going on out there, the horror unfolding. The prosecution making every effort here to connect on a very emotional, very gut level with those jurors.
Ash.
BANFIELD: What's Dzhokhar Tsarnaev doing when these screams are echoing through the courtroom and that child's parents are just a few feet away?
FIELD: Ah, the same thing he's been doing for the course of this entire trial, which is basely to sit looking straight ahead. He faces the judge. The jury is on his left. The witnesses typically will sit to his right. He's got a screen in front of him, so he has to see all of this.
But we have not seen him make any sort of marked reaction throughout the course of this entire trail. He's impassive, making no show of any kind of emotion. Often times he slumps in his chair. He puts his head on his hand. He just does not give the jury any kind of reaction here. But, Ashleigh, again, the people who are in that courtroom, members of the public, survivors, family members of survivors, going to be hard to keep in those emotions as these closing statements and arguments proceed here.
BANFIELD: All right, Alexandra Field, stand by for a moment, if you will.
Joey Jackson and Danny Cevallos, I want to bring you in on this.
Joey, first to you. If you're Judy Clarke, his unbelievably good attorney -
JOEY JACKSON, HLN LEGAL ANALYST: Yes.
BANFIELD: One of the best in the nation, what are you going to close with, because you opened with he did it?
JACKSON: You're going to close with the fact that you have to consider the context. Remember what the defense did here in their case. They brought in an expert to talk about the fingerprints. And whose fingerprints were on the items that were the components of the bomb? It was Tamerlan, his older brother. Whose fingerprints were on that pressure cooker that happened at the shootout at Watertown? It was his brother. And if you look at the writings and the searches that were done, the searches and the search engine were of his brother's computer. And so look at the end game, Ashleigh, what are they attempting to do? The defense is attempting to spare his life. Not finding him innocent of any of the charges, but allowing the jury to evaluate this in the context of him being controlled.
[12:05:03] BANFIELD: She wants three - she wants three cracks at all that information, during the guilt/innocence phase, now at this wrap up, and then during the -
JACKSON: The next phase.
BANFIELD: At the death phase we call it.
JACKSON: Absolutely.
BANFIELD: OK. So what I want to do right now, and if you guys will just indulge me for a moment, is put up the charges. We're talking about 30 charges. Don't do it yet because I want to give you a preamble. You are about to see a lot of words flying by your screen. You're not going to be able to read them all. But I want you to look for a few words that are the common thread through every charge. Start with page one, if you will.
We basically have, you know, a conspiracy to use a weapon of mass destruction. You can see that conspiracy word there. In the second charge do you see the aiding and abetting? And in the third and fourth charge? Let's just fly through the screens now because you will see aiding and abetting or conspiracy in every single one of these charges. I'm at nine to 12 now, charges nine through 12, aid/abet, aid/abet, aid/abet, conspiracy. Ah, look at that, the common thread through every single one of them. We're halfway through now. Oh, and there they are again.
The reason I do this, Danny, is because who cares if Judy Clarke can convince these jurors that big brother Tamerlan was really the ring leader with aiding and abetting and conspiracy is a part of every charge? DANNY CEVALLOS, CNN LEGAL ANALYST: Well, the liability side that's
going to be hard to defeat that. But again, as Joey pointed out, this is a gamut. He's looking ahead to the penalty phase.
At least in terms of the guilt phase, you're right, the word aiding - maybe we don't use the word abetting very often, but jurors are going to bring their normal application of those words to their daily life. And as much as the defense has done a terrific job of both literally and figuratively saying, Tamerlan's fingerprints on all over this case, ultimately it's not that high of a threshold to find that he aided, abetted or conspired. So I think that's a very difficult hurdle for the defense to get over.
BANFIELD: And those charges don't change in the death phase. You still have conspiracy and aid and abet. Let me ask you, just technically speaking, since you guys have been in courtrooms so often, you hand over the jury forms to these 12 laypeople who aren't lawyers and they're not used to this language and they're not used to, you know, American jurist prudence and its technicalities and they've effectively got in front of them anywhere between - I think you mentioned earlier to me today 16 and 60 pages that they need to fill out in that deliberation room. What on earth are they supposed to do, check yes or no? Is that effectively for every one of these charges, yes, no, yes, no, yes, no?
JACKSON: Pretty much but -
CEVALLOS: Yes.
JACKSON: Pretty much they're doing that, Ashleigh. But what you're doing is you're applying the fact to the law. What are the facts?
BANFIELD: A lot of facts here, Joey.
JACKSON: A lot of facts here, but the facts boil down to as - and as you point out, you see consistent themes. And the prosecution, make no mistake about it, has made a compelling case, a compelling case relating to devastation, to carnage, to destruction, to dismemberment, to -
BANFIELD: Yes.
JACKSON: And when you look at all of that, you apply it in the context of the indictment, I don't think that they - the jury is going to have a very difficult job here.
BANFIELD: Judy Clarke got a stinker of a case -
JACKSON: Yes, she did.
BANFIELD: And she'd better be in an alchemist if she wants to make any hay of any of this. It is going to be remarkable. I don't like laying bets, but on this particular case, I doubt that the deliberations in this would go more than a few hours, honestly, even with 30 charges, aid/abet, aid/abet, conspiracy.
JACKSON: I can't disagree.
CEVALLOS: A lot of charges. A lot of reading. It might take a little longer than that.
BANFIELD: Aid/abet, aid/abet, conspiracy.
JACKSON: However long it takes, it won't take that long. I think the mystery is in the next phase of this, which is the penalty phase.
BANFIELD: Next week.
All right, gentlemen, thank you for that. And our thanks to Alexandra Field, who's reporting outside following this trial live as well in Boston. Alexandra, thank you.
By the way, at this moment, the deans from Columbia's most revered school of journalism are doing some pretty heavy hitting. They are calling out "Rolling Stone" magazine for major failures in an article that it published about the alleged rape at a University of Virginia party. Coming up, we're going to talk about the legal fallout that the magazine could face and what this review means for not only the fraternity but the university and all the kids who feel they've been maligned by that report.
Also, a manhunt for this man, the accused mastermind behind a massacre that killed 147 students on a college campus in Kenya. Will a bounty on his head do anything to bring him in? And Kenya was warned about an imminent attack, so why did something call a rapid response team take hours to get there?
(COMMERCIAL BREAK)
[12:13:00] BANFIELD: New developments in the massacre at that Kenyan university where Al-Shabaab terrorists murdered at least 147 people. We are now learning that the lives of some students just might have been spared had security forces reached the scene faster. Now I know you hear that a lot, but a police source says that Kenya's so called rapid response was stuck in Nairobi for hours because they were trying to arrange transportation. Again, they're called rapid response.
Officials are offering a $215,000 reward now for information leading to the capture of the attack's suspected mastermind. And that's the man on your screen. His name is Mohamed Mohamud. Earlier today, Kenyan war planes went to work. They launched an air strike on several Al- Shabaab camps. And, get this, in Somalia, part of a four-year-old campaign to take out the terrorists on their home territory.
CNN's David McKenzie joins us now from Nairobi, Kenya.
David, there were talk that the Kenya officials actually had some advanced warning that there might be an attack. How on earth can a rapid response team take hours to get transportation while people are dying?
DAVID MCKENZIE, CNN CORRESPONDENT: Well, Ashleigh, that's the question we are asking ourselves here on the ground. That police source said, yes, they had prior actionable intelligence that a university in Garissa might be attacked over those days. And yet the elite squad, which is tasked to take out terror operations like this, was sitting in Nairobi, frustrated. They're well train, they have the right weapons, the right tactics and they just couldn't get to the scene for many hours.
In fact, a politician who went to tour the scene got there before them. Journalists driving from Nairobi got to the scene before them. And in those hours, those gunmen were able to work with impunity. A security analyst I spoke to said, you know, you've never going to save everyone in an instance like this, but you definitely don't want all this time elapsing to give the gunmen the time to do their terrible work.
[12:15:20] Ashleigh.
BANFIELD: David, this suspected mastermind, Mohamed Mohamud, it is reported that he is the son of a government official.
MCKENZIE: Well, that's not quite right. Mohamed Mahmoud is a mastermind terrorist, they say, who is in charge of this operation in Kenya. There was - there is talk, and we've been also reporting, that this son of a government official was one of the leading gunmen in this attack. Now that's particularly disturbing because that person graduated from Nairobi law school, had a bright future ahead of them, was really integrated in Kenyan society and then it seems he disappeared to Somalia and then came back to lead this excursion.
The mastermind, according to officials, of this attack is in charge of cross border action into Kenya. And it seems like this is not just the first attack that he's been involved in. But certainly Kenyans have a big task on their hand, particularly since the lack of coordination of the security forces seem still to be there, even though many of them, the elite squads are trained by the U.S. forces and they tend to know what they're doing.
Ashleigh.
BANFIELD: Well, thank you for clearing that up. I had conflated the two. But clearly two separate people, one the son of the official, the other that alleged mastermind, both of them being highly sought after. And the bounty is out.
David McKenzie, thank you for that.
Coming up next, "Rolling Stone" magazine start to finish failure, massive failure, in its expose of a campus rape. Who can and won't and can't sue them? Our legal team's going to weigh in next.
(COMMERCIAL BREAK)
[12:20:46] BANFIELD: It is now abundantly clear, "Rolling Stone" magazine committed a cardinal sin of journalism when it published a roundly discredited article about a terrible rape at the University of Virginia. Columbia University was asked to investigate the piece and now Columbia is releasing its report. And let me tell you, it is nothing short of scathing. It says the magazine failed to engage in, quote, "basic, even routine journalistic practice," end quote. "Rolling Stone" has now retracted that story and it says that it will adopt Columbia's recommendations to vet controversial materials more thoroughly. The magazine says it will not fire anyone believing that the mistakes were not intentional. Columbia School of Journalism held a press conference moments ago and the school's dean says it wasn't necessary for the report to name the alleged victim.
(BEGIN VIDEO CLIP)
STEVE COLL, DEAN, COLUMBIA SCHOOL OF JOURNALISM: There was not the subject or the source's fault as a matter of journalism. It was a - it was the product of failed methodology. And we didn't feel that her role in the story should be a subject of a report that was seeking accountability for a failure of journalism.
(END VIDEO CLIP)
BANFIELD: Joining me now to talk about what went wrong with this story and the possible legal repercussions is CNN's senior media correspondent Brian Stelter, along with HLN legal analyst Joey Jackson and CNN's legal analyst, Danny Cevallos.
To the legal team, I want you to stand by for a moment while I get the journalistic team to weigh in on this. You and I know, as journalists, that one of our roles is to try to get your spidey senses tingling right away when we talk to someone. And if those spidey senses don't tingle -
BRIAN STELTER, CNN SENIOR MEDIA CORRESPONDENT: Yes.
BANFIELD: We've got a good story and we should go with our gut. This reporter said that was the story here. She was unbelievably Oscar worthy in how convincing she was. She even convinced her friends. So then what went wrong?
STELTER: What went wrong then, even though Jackie, the victim, was confident and consistent in her account, was that there wasn't enough vetting from other directions, from other sources. This reporter did not go to all of the friends who talked to Jackie when this alleged rape occurred, did not go to all of the alleged accusers. In fact, gave up and agreed with Jackie that she would not go ahead and contact the alleged ring leader of this rape.
BANFIELD: Is that - is that because some sources are different than other sources? Government sources -
STELTER: Well, for sure.
BANFIELD: You hammer a government source.
STELTER: This is the most complicated kind of story, an alleged rape victim.
BANFIELD: An accused - an alleged rape victim, you really can't hammer away at them because they are allegedly victims, right? STELTER: And yet now journalists are asking, should we be granting anonymity to rape victims or do journalists have to do a better job in educating these sources of story? Listen, this is how it works. We have to vet your story because we're going to help protect you by doing so.
BANFIELD: By the way -
STELTER: In the end, "Rolling Stone" failed this alleged victim by not vetting this story sufficiently.
BANFIELD: OK, that's what I - I keep hearing this over and over, we failed Jackie. Why are they saying that?
STELTER: Well -
BANFIELD: If she lied, who's failing her?
STELTER: If she lied who's failing her? Still, some people want to believe something did happen to her.
BANFIELD: Something happened. OK.
STELTER: You know, that something traumatic did occur. And that's what the police said last month, they said, there's no evidence that a rape occurred, however, we can't say -
BANFIELD: There's no evidence it didn't.
STELTER: We can't say for sure that something traumatic didn't occur to her.
BANFIELD: That it didn't. OK.
STELTER: And, of course, this is exactly why this is one of the murkiest areas we find (ph).
BANFIELD: One thing we do know from this investigation is that it sure as heck did not happen the way this young woman laid it out. And the aggrieved parties now are the University of Virginia - and this is where the lawyers come in - and that fraternity and how about every student there who feels personally maligned that they've been dragged through the mud for the last several months.
So, Danny, I'm going to get you to start this because you wrote a phenomenal piece for cnn.com on who gets to sue and get their good name back.
CEVALLOS: So, in cases like this, there's an easy answer right away. You take the University of Virginia and they're out. The university is a government entity because it's a state university and therefore state or government entities cannot sue for defamation unless you identify a particular person within that agency. Now we move on to the fraternity. And as a general rule, groups cannot sue for defamation unless an individual has been identified. And in this case the argument would be that well really just the fraternity was maligned. However -
[12:25:05] BANFIELD: Well, hold on a minute. Wait a minute. Groups, maybe not. Maybe but groups not, but little groups sure can.
JACKSON: Sure, smaller groups. I think in this situation everyone understands and knows and would agree that that fraternity took it on the chin. Now, as a result of this story, and its largely believed now to be discredited and untrue because of the non-fact checking that "Rolling Stone" did, and I get and understand, Ashleigh, it's important to protect your source and when you're dealing with something as sensitive as this, you want to have the ultimate respect for a rape victim or alleged rape victim. At the same time, there are certain protocols that you need to follow that require and cry out for corroboration so you know that it's true. And when you have a fraternity - listen, you know, we've all gone to college. Whether we've been in fraternities or not is a different story. But people know what frats and what frat you belong to and you have to know that if the person's in that fraternity, certainly their image has been affected, their reputations have been tarnished because of these false statements. I think it's certainly actionable.
BANFIELD: OK. So actionable. Let's just say for discussion purposes, Danny, this fraternity says, I'm not letting this go. I'm going to court. I'm suing "Rolling Stone" I'm suing Jackie, if we can find her. I am suing perhaps even all the broadcasters who repeated this story because that publication continued and ultimately they're going to open themselves up to intense scrutiny. We're talking about, you know, young men and what young men do at university and all of the skeletons they might have in their closet, it all becomes fair game. Is that fair to these kids to do that?
CEVALLOS: Well, that's the essence of a defamation action. And that's why lawyers will tell you, defamation is so often threatened and so rarely actually carried out because they're very difficult cases to prove. Both in the liability side, but also the damages. You usually have to show that it caused you some actual, tangible, financial harm. So these individual plaintiffs, even if they are able to sue under Virginia's small group theory -
BANFIELD: Breaking news. Breaking news. On exactly the topic we're discussing.
STELTER: Yes, I feel a little bit rude, guys, because I'm looking at my laptop here.
BANFIELD: Yes.
STELTER: But that's because the fraternity, you know, in Richmond, they are in Charlottesville, they're watching this press conference at Columbia. They're about to issue a statement. They are going to say they are going to sue.
BANFIELD: Wow.
STELTER: The fraternity is. And this is the specific fraternity, not the university, of course, just that specific fraternity. You know, they have retained legal counsel a long time ago.
JACKSON: Sure.
STELTER: They had said they were considering suing. I'm been told now by a source with direct knowledge of this, very close to it, obviously, they're about to come out in a few minutes and actually say they're going to sue.
BANFIELD: Do we know, "Rolling Stone," just "Rolling Stone," or does it get broader than that?
STELTER: Yes, they're not indicating -
BANFIELD: They're not saying.
STELTER: If it's going to be about the writer in particular or about the magazine.
BANFIELD: If you were counsel -
STELTER: But you know what's interesting -
BANFIELD: Hold on.
STELTER: Yes.
BANFIELD: If you were counseling them, would you throw that stroke very, very broad? I mean you know how suits go, you cast it wide (ph).
CEVALLOS: So here's - here's the rule of thumb. If you're a plaintiff, you name as many people as you can because you'll figure out the liability going forward.
BANFIELD: Later.
CEVALLOS: But you also have to consider what we call deep pockets. Does the individual author or writer or reporter have the assets that "Rolling Stone," the company, does? Absolutely not. So there's always a more palatable defendant and that palatable defendant is usually a corporate one.
JACKSON: And if you look at the report that was done by Columbia, there's your liability because it goes to the issue of negligence. What were the breakdown in protocol? What should "Rolling Stone" have done that it did not do? And I think that serves, Ashleigh, as you blueprint when you're laying out that lawsuit to get them embroiled (ph).
BANFIELD: I - there's a lot of -
STELTER: We've got a release, by the way, that says it's going to -
BANFIELD: A lot of young men right now who are very, very concerned they'd be deposed in this.
JACKSON: Right. BANFIELD: And - go ahead.
STELTER: They say they'll pursue all available legal action against the magazine. So that's exactly what you all are saying, the corporate pockets here, not the writer.
BANFIELD: The magazine.
STELTER: The magazine.
BANFIELD: That's as far as they went? Well, so far.
STELTER: Yes. So they wanted to read the report and they wanted to hear the press conference and they've concluded they at least think they have a chance here.
BANFIELD: Wow.
JACKSON: And briefly, Ashleigh, to Danny's point -
BANFIELD: Yes.
JACKSON: You know, he's right, a lot of people threaten defamation and don't follow through with a lawsuit.
BANFIELD: Right.
JACKSON: In this case, it's hard to argue that there were not tangible recognizable reputational injuries. This story went viral. Everyone was talking about it.
BANFIELD: It's - it's going to be a settlement isn't it?
JACKSON: It needs to be.
BANFIELD: You can't - you can't - you can't go out in the open and say, I'm sorry we did everything wrong and then actually fight them, can you?
JACKSON: Well, it needs to be because I think you -
BANFIELD: OK.
JACKSON: Expose yourself to tremendous liability.
BANFIELD: So there's another whole element to this story as well. Guys, thank you. Because not only did this report open up all those gaps in the magazine's reporting, but it also opened up a huge issue, and that is sexual assault on campus. What happens to that now? Does it get knocked on the chin? Does it suffer a huge setback? We're going to see how "Rolling Stone's" errors just might affect a real problem, after the break.
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