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Tsarnaev Found Guilty; Conflicting Police Reports in South Carolina Police Shooting; Judge Bars TV Photographer from Aaron Hernandez Trial. Aired 3:30-4p ET

Aired April 9, 2015 - 15:30   ET

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


[15:30:06] ANDREW KNAPP, REPORTER, THE POST AND COURIER: But at the same time, there's still a perception at least in the community that they're being unfair in the way they police their communities. So this FBI investigation that's actually opening up in the Scott shooting I think might fared out some of the details as to whether any of this is still going on.

And we don't know if they're isolated incidences. There have been many complaints over the years of such aggressive force. But we have to find out I guess through this investigation. And if it does broaden and look at all the tactics that they're using in these communities, whether they are unfairly targeting minorities.

KEILAR: Yes. Is it a systemic problem, and what does the police department need to do to fix that?

All right. Andrew Knapp, thank you so much. You wrote a great piece. We appreciate you sharing it with us.

And ahead, what about the other officers? Were they complicit? Hear why their accounts don't match the video.

Plus Dzhokhar Tsarnaev guilty on all counts in the Boston marathon bombing. Now the question is, should he be put to death? It is up to the jury to decide but the "Boston Globe" editorial board says no. It's calling for his him to be spared.

We'll bring you that argument next.

(COMMERCIAL BREAK)

[15:35:53] KEILAR: For many it was no surprise that convicted Boston marathon bomber Dzhokhar Tsarnaev was found guilty on all 30 federal counts. His own attorney admitted he was guilty in her opening statement. Many also believe the proceedings were simply a dress rehearsal for the, quote, "real trial," the sentencing phase.

Will the same jury that convicted Tsarnaev let him live or die?

Today's "Boston Globe" published this editorial asking the jury to spare the 21-year-old's life arguing that he doesn't meet the exceptionally high standards for a federal execution.

Joining me from Boston is retired federal judge and Harvard Law professor, Nancy Gertner. She penned an op-ed about the jury verdict. And in it questioned the reason for this first harrowing phase of the trial.

Judge Gertner, thanks for being with us. And you say in this --

NANCY GERTNER, RETIRED FEDERAL JUDGE: Thank you.

KEILAR: You felt the trial was more of a penalty hearing. You suggest that prosecutors should never have introduced the option of capital punishment. Tell us -- tell us why you believe that.

GERTNER: Yes. What I said was that I thought whatever their reasons were at the beginning for moving to the penalty, it was clear before the trial began, it was clear during the trial, and it could not be clearer now that the defendant would plead guilty to life without parole and that all of the benefits of a trial and a penalty hearing would have been had. In other words, you could have told a story about the crime during the course of his plea.

There could have been a sentencing hearing which all victims would have testified and that that would have made more sense. Because it's clear that Tsarnaev is going to die in prison one way or the other. Even if he gets the death penalty, it will take years to impose it. There hasn't been an execution in the United States in perhaps a decade. The overwhelming number of people who get death don't ever get executed.

So if he's going to die in prison, and if this community, this community very much is opposed to the death penalty, why go through this? Why was it necessary to go through this?

KEILAR: We went yesterday through the mitigators and the aggravators, those reasons for why he would qualify for the death penalty yesterday and why he would not. You're very familiar with them. Does he, by the letter of law, qualify for being put to death?

GERTNER: That's a complicated question. There are the aggravating factors and essentially the ones that the government has shown over the past -- what is it? 20 days of trial. You know, the nature of the crime, the horrendous nature of crime, the number of victims, the extent to which the crime was, you know, reflected was heinous, the age of the victims, in particular the horrible death of Martin Richard. These are all aggravating factors. There's no question about it.

What we haven't heard, because the judge's rulings precluded them are the mitigating factors which have to do with who this man is, what his mental state is, what his family background is like and what his relationship was with his brother. We really haven't heard that story at all. And that's what we're hearing now.

And what I said in my piece is that, you know, now the next phase will be in part about those issues and quite about Tsarnaev. If there had been a plea to life without parole, it would have only been about the victims. The sentencing hearing would have only been about their pain and their situation. Now we will have a penalty phase in which mitigating factors about

Tsarnaev will come in. And this, as I said, is a jurisdiction which has not imposed the death penalty in literally decades and decades.

KEILAR: Before I let you go, Judge, in your gut, what do you think a jury from this community will decide?

[15:40:01] GERTNER: I've been -- I've been around long enough that I don't predict what juries do. But here's the context, here's the setting. First, as I said, 62 percent of Boston metropolitan area said that he should get life even while the trial was going on, even while these horrific images were all over the airways. The eastern Massachusetts, which is where the jury takes from, was about 52 percent.

So what you have -- the issue, though, is that the -- in order to get on this jury, you had to have said, you had to be death qualified which is that you have to say that you could impose the death penalty if the facts require it. So that to some degree, this jury has to be a very unique subset of our population.

It's very hard to predict. But if the past is prologue here, there have been some very, very few federal death penalty verdicts.

KEILAR: Yes. All right. And we'll be watching along with you as we see this next phase. Thank you for joining us. A very important point that you make, Judge Nancy Gertner.

GERTNER: Thank you.

KEILAR: Next, the other officers who arrived after Officer Michael Slager shot and killed Walter Scott. Could they face trouble if they back up Officer Slager's story? We'll have that next.

Plus a dramatic day in the Aaron Hernandez trial. A decision could come any moment but now jurors claiming they were followed and harassed by the media. What the judge did about that, straight ahead.

(COMMERCIAL BREAK)

[15:45:44] KEILAR: To some just as disturbing as Walter Scott's death is what happened after he was shot. During the critical moments after Scott collapses, the video shows no one making an effort to keep him alive. The bystander who shot this video says it was minutes before anyone tried to revive this father of four. That doesn't seem to match several of the police reports however.

CNN's Gary Tuchman examines these inconsistencies.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: The chief of police or the mayor. Which one?

GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): The questions about Officer Michael Slager came hard and fast. Eddie Driggers is the chief of the North Charleston Police. CHIEF EDDIE DRIGGERS, NORTH CHARLESTON POLICE: To my knowledge,

nobody was witness to anything but Slager.

TUCHMAN: Slager handcuffed Walter Scott after he shot him. But at least on video did not appear to aid him. Shortly after the shooting, another officer shows up, identified by the police department as Sergeant Habersham. In the incident report, Habersham declared, "I attempted to render aid to the victim by applying pressure to the gunshot wounds," but no mention of CPR, chest compressions.

Ultimately, several police officers are seen on video at the site. One of them says in his statement, Habersham did perform CPR, despite Habersham not mentioning it. Sergeant Gann says he helped Habersham, stating, "I exited my vehicle and assisted Officer Habersham with first aid and CPR. We continued to perform first aid and CPR until EMS arrived on the scene."

Still another officer identified as Sergeant Webb declared, "I observed Private 1st Class Habersham administering chest compressions to the defendant."

So after the handcuffs were put on, which the mayor says is standard policy across the country, the question remains.

(On camera): Was CPR ever performed on this man as far as you know?

DRIGGERS: I'm going to be -- I'm going to be totally honest with you.

UNIDENTIFIED MALE: Do that.

DRIGGERS: I am. And give me just a second. The honesty comes from my heart. I -- I have watched the video and I was sickened by what I saw.

TUCHMAN (voice-over): Part of what the chief saw was no CPR.

DRIGGERS: In the end of it, what I saw was a -- I believe to be a police officer removing the shirt of the individual and performing some type of life-saving, but I'm not -- I'm not sure what took place there.

TUCHMAN (on camera): But you don't -- you don't know if CPR was performed?

DRIGGERS: No, I do -- I do not know. I -- I was told that life- saving -- that they tried to save his life.

TUCHMAN (voice-over): The investigation has been handed off to the South Carolina Law Enforcement Division, known as SLED. But without elaborating, the North Charleston Police Department does say there may be more video to examine.

So did any of those other officers give inaccurate statements about the aftermath of the shooting?

(On camera): Amid the sadness and tragedy, that's a possibility that will most certainly be examined by the state agency now conducting the investigation.

(Voice-over): At the end of the news conference, the North Charleston mayor was asked one more question about CPR.

MAYOR KEITH SUMMEY, NORTH CHARLESTON, SOUTH CAROLINA: Not every officer is CPR certified.

UNIDENTIFIED FEMALE: Why?

UNIDENTIFIED FEMALE: Why not?

TUCHMAN: And with that, the mayor and police chief left the podium, so many questions still unanswered.

Gary Tuchman, CNN, North Charleston, South Carolina.

(END VIDEOTAPE)

KEILAR: So could other North Charleston officers be in legal trouble because of these police reports?

I want to bring in criminal defense attorney Brian Claypool.

So, Brian, you have two sergeants in their reports. These are sergeants. These are leaders in this police department and they say that CPR was given to Walter Scott. The video doesn't show all of the aftermath but it certainly shows minutes after he was shot. Did the officers in their reports break any laws here?

BRIAN CLAYPOOL, CRIMINAL DEFENSE ATTORNEY: Well, I don't think they broke any laws and realistically I don't think they're going to be charged criminally in this case at all. They might, though, face, civil liability under the Fourth Amendment for unlawful seizure and for the grief and the despair that Mr. Scott went through from the time he was shot until he died.

But the problem with prosecuting a police officer criminally for failing to render medical aid is an issue of causation because any time you charge an officer with a crime you've got to prove causation. For example here, that the failure to render the medical aid actually contributed substantially to Mr. Scott dying. And that would be a daunting task.

[15:50:06] KEILAR: I see, I see what you're saying. Because he had been shot five times.

CLAYPOOL: Correct.

KEILAR: And it was very possible that even if he had gotten aid immediately, he might have passed away.

CLAYPOOL: Right.

KEILAR: OK. So what about whether or not this is a slam dunk case? Even though there's this video, you say it's not.

CLAYPOOL: Right.

KEILAR: For murder or perhaps even for manslaughter.

CLAYPOOL: Right. I'm telling you, I know everybody is feeling some degree of relief because Slager has been charged with murder, but I will tell you, look at the track record of police officers nationwide prosecuted for murder. It's not a good one. Getting a conviction against a police officer even in the face of a videotape like this is very, very difficult, because at the starting point, the police officer gets a 10-yard head start in a 100 yard dash because their job is to protect the public and the community.

KEILAR: OK. So let's talk about what might come out in a court of law in this case. You've heard from now Mario Givens, this other resident there who was tased when he wasn't even the suspect that Slager was looking for. It seemed that Slager may have, and he was exonerated, it seems that Slager may have sort of tased him and then asked questions later.

Could that be introduced in a court of law? Might that sway the jury as to what the impulses of Officer Slager, what the pattern of his impulses are?

CLAYPOOL: I think that's a good point. If Slager is tasing somebody who is not even a suspect in a crime, then that likely shows that he has a propensity for doing this, and maybe he's not mentally stable to be on the police force. You also have to look at prior complaints that have been filed by citizens against Slager. Any prior civil lawsuits.

KEILAR: That will come in?

CLAYPOOL: Oh, yes. That will be -- that will absolutely be investigated to show that he has a pattern and practice of engaging in a maniacal behavior like this. That will be an important set of facts to look at.

KEILAR: All right. Brian Claypool, thanks so much for your insight.

CLAYPOOL: Sure. Thanks.

KEILAR: And next, a jury is deciding the fate of ex-NFL star Aaron Hernandez. It's a decision that may come very soon. Trouble is brewing in the courthouse, though. Two jurors say they were harassed by a member of the media. The judge took that issue up today. We are live in Massachusetts next.

(COMMERCIAL BREAK)

[15:56:20] KEILAR: We are right now following some severe weather in the Midwest.

Chad Myers, you're looking at a storm system here. You have your eye on Chicago, right?

CHAD MYERS, AMS METEOROLOGIST: Yes. This is going to be a fairly big evening into the afternoon here, when the sun heats up the atmosphere. Had a couple of storms that put down a small rope tornado just northeast of Peoria about an hour and a half ago. That storm has weakened, moved towards Chicago, but Chicago still in a tornado watch.

A watch means it could happen. A warning means it is happening. So it isn't happening yet but it could. Now this weather is all the way back into Des Moines, all the way back down even into parts of Arkansas and Missouri. And we do have a few storms that are rotating at this hour.

This is going to be a bigger event than yesterday. Yesterday we had 10 tornadoes on the ground, many of them were small ropey tornadoes that kind of skipped along. Today may be a much bigger day. Need to keep your NOAA weather radio on, keep watching here. We'll have it for you all day long.

KEILAR: All right. Chad Myers, we'll be watching along with you, thank you so much.

And right now -- right now the Aaron Hernandez case.

Jurors are behind closed doors now, they're weighing the fate of Aaron Hernandez, the former Patriots tight end who stands accused of shooting and killing his friend Odin Lloyd. As the jurors pore over the evidence, more drama in the courtroom as the judge actually bans a journalist after two jurors say they were followed.

CNN national correspondent Susan Candiotti is in Fall River.

What happened here, Susan?

SUSAN CANDIOTTI, CNN NATIONAL CORRESPONDENT: Hi, Brianna. Well, it's not how we expected to start this trial day. The jury was not in the room when this happened, but then there was a sidebar called, and you can't hear what's going on but we see two jurors coming in. And it winds up being this. The jurors said that yesterday when they left court and got into their cars, they felt as though they were being followed by a car.

So one of the jurors took a snapshot with their cell phone of the license plate. The court ran the tag and it came back to this unmarked car, to a news television station in Boston, WHDH which is a CNN affiliate. And so the judge wound up bringing the photojournalist before her and said what were you doing, you're not supposed to be following jurors. And he said that he was told by the station that he should try to find out where the jurors are, in essence, where they park their car.

And that -- but he decided on his own to follow the bus that they're escorted to their cars at the end of each day. And from there it gets a little murky but suffice it to say that's when the jurors felt as though they were being followed. The photographer said that he did not approach them. He said he did not try to talk to them and the television station said that they were looking into the matter.

But in the end, the judge barred that photographer from covering the trial or coming to the courthouse during the duration of this trial -- Brianna.

KEILAR: But there's also this issue of the station asking them to do this. Do we know the reason why they were trying to see where the jurors were parked?

CANDIOTTI: No reason was given. Presumably, when the trial is over with, there would be an interest in speaking with the jurors, but there was no specific information given about that. But it certainly took a lot of the court's time today as they worked things out. They're very concerned about it because if these jurors said they felt harassed by this or fearful about it, then the judge might have to dismiss them and if they dismiss them, they would be down to only two alternates or only one alternate remaining. So that's getting really too close for comfort.

KEILAR: Yes.

CANDIOTTI: Ultimately if they run out of alternate jurors and something went wrong, obviously there could be a mistrial. That's why there is so much concern about maintaining the safety of the jury.

KEILAR: Certainly. All right. Susan Candiotti, thank you so much. In Fall River.

That does it for me. "THE LEAD" with Jake Tapper starts right now.