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James Holmes In Court; Drilling Rig Refloated, Ready to Tow; McChrystal Breaks Silence; Visit To Pyongyang; Aurora Shooting In Court Today; Italian Fashion Mogul Missing; Joe Biden: Reality TV Star?; BCS Championship Game Tonight!; RGIII Suffers Knee Injury

Aired January 7, 2013 - 07:30   ET


SOLEDAD O'BRIEN, CNN ANCHOR: In just a few minutes, we're going to be talking with Defense Attorney Elise Wayne about that case. First though, John Berman has got a look at some of the other stories that are making news today. John, good morning.

JOHN BERMAN, CNN, ANCHOR, "EARLY START": Thanks, Soledad. No end in sight to the civil war in Syria. President Bashar Al-Assad making his first public speech in six months this-weekend dismissing any chance of peace talks with rebel forces. He called them murderous criminals and demanded the west to stop funding them.

A recovery team has refloated a Shell Oil drilling rig that run aground off the coast of Southern Alaska and it's now ready to tow it weather permitted. Weather has hampered recovery efforts. Company officials say there is no evidence of any oil leak and the rig's fuel tank does appear to be intact. The rig was being towed back home to Seattle when it ran aground in the severe storm just over one week ago.

Stanley McChrystal breaking his silence. The former general and commander of the Afghan War has written a new memoir called "My Share of the Task." It comes two and a half years after his career was cut short by an interview he did with "Rolling Stone" magazine.

That featured critical comments about the president from McChrystal's staff. In his new book, the former general is careful not to criticize the president and instead focuses his efforts on finding and capturing key al Qaeda operatives.

Former New Mexico Governor Bill Richardson and Google Chairman Eric Schmidt have arrived for a visit to the North Korean capital Pyongyang. This is a video of them arriving earlier in Beijing.

Richardson has described this trip as a private, humanitarian mission. They are expected to take up the case of a U.S. citizen jailed in that country. The State Department officials say they are not happy about the timing of this visit, which comes just weeks after that controversial North Korean rocket launch -- Soledad.

O'BRIEN: All right, John, thank you. Let's get right back to Lisa Wayne. She is a criminal defense attorney and also a former public defender. Today, she is here to talk about this preliminary hearing that Casey Wian was just filling us in on.

It's going to take place in Aurora, Colorado to determine if the shooting suspect in that movie theatre killing should stand trial at all. You have trained two of the lawyers who will be defending him.

So thank you and welcome. It's nice to have you with us.


O'BRIEN: Walk us through what a preliminary hearing is all about?

WAYNE: Well, the preliminary hearing is the government or prosecutor's opportunity to give us a preview of what their case is about. The strengths of the case, weaknesses of the case, finally we'll get to see what is the actual evidence is in this case.

O'BRIEN: Seventy witnesses, Casey reported. He said it could take the entire week. That's pretty unusual, isn't it?

WAYNE: Well, there's nothing usual about this case. So when you hear 70 witnesses, what I expect will happen is not only we'll see a lot of law enforcement people. But we will probably see people who are actually eyewitnesses, people in the theatre. This is their opportunity to tell someone finally what happened in that theatre.

O'BRIEN: Sounds like it will be very gory and graphic. I mean, the first time we're really getting that perspective of what happened.

WAYNE: Absolutely. I think emotions will run high in this. I think it will be horrific, a lot of emotion and crying. But it's time for this case to actually be heard in a public venue.

O'BRIEN: Do you think he should stand trial? Do you think he is mentally able to stand trial? I mean, that's is really at the end of the day what this is about, right?

WAYNE: Absolutely. I'm like everybody else. I mean, I don't have an inside scoop on this. But if you look at the presentation of him in the courtroom, which will be consistent throughout this week, if you look at the evidence of the case, I mean, here is a guy who didn't have any motive to go inside a theatre and to shoot people.

And so I think that you will finally see the defense scrutinizing the evidence in this case and showing another side of people who will support that he was deranged and out of his mind when this happened.

BERMAN: What can they do this week at the preliminary hearings to push the idea of insanity defense?

WAYNE: Well, you have really good lawyers, and they are going to be distinguishing with each witness being able to show what he was doing before, what he was doing inside the theatre and things he may have been doing after.

O'BRIEN: Like what? WAYNE: To show that he was in -- there was a witness that I heard actually on CNN talking about when he went in and saw this guy, he was just looking blank, he was spraying the gun everywhere, and he didn't appear to actually be aiming at anybody.

And he seem like he was out of his mind in a state of not really knowing what he was doing. That's the kind of thing the defense wants to cement now, early on. So the public can see this is not made up. This is really a guy who is out of it.

CHARLES BLOW, OP-ED COLUMNIST, "NEW YORK TIMES": What role does him seeking psychiatric help prior to -- actually while he was building his arsenal. There is a report that he threatened the life of his therapist.

WAYNE: Right. Right.

BLOW: Does that play a role in whether or not he is able to claim some sort of mental defense?

WAYNE: It makes it more credible. So it's always difficult for the defense to assert an insanity defense when you don't have someone who has a longstanding mental health history. It appears here -- this isn't what we made up. This was a guy who was sick before it happened, makes it more credible.

O'BRIEN: But insanity defined is this, the applicable test of insanity shall be a person who is so diseased or defective in mind at the time of the commission of the act as to be capable of distinguishing right from wrong with respect to the act is not accountable.

But care should be taken not confuse such mental disease or defect with moral obliquity, mental depravity or passion growing out of anger, revenge, hatred, or other motives, et cetera, et cetera, et cetera.

So doesn't the fact there was so much planning, doesn't the fact that he was even seeing a psychiatrist, all of those things make it seem that there was sort of a motive for something. It wasn't a -- he snapped, there was so kind of plan. It was all done in secrecy. He wasn't telling people.

WAYNE: What we don't know in the public arena is that someone who is mentally ill at this degree can be in a psychotic state for months. I have represented clients who are in a psychotic state, who appear to be very methodical. Planning things, but they are not in their right state and that's the test.

So it's an extreme mental illness that means you cannot distinguish between right and wrong. So every mentally ill person cannot mount a defense of insanity. We're talking about someone who has an extreme mental illness. You can be in a psychotic state for months, not just at the moment of the time.

UNIDENTIFIED MALE: Don't the people of America and in Colorado, don't they deserve to have a trial? Doesn't he still need to stand trial and account for his actions?

WAYNE: Well, you know, the beauty of the American system is that we distinguish between people who have intent and people who are mentally ill. So when you talk about don't they deserve to have a trial, what we deserve to know is the truth of this case.

And the beauty of the system is we don't punish people in the same way. What the American public needs to know is that if you are found not guilty by reason of insanity, it doesn't mean I don't take responsibility.

It means I can't take responsibility and they are going to throw away the key and lock him up either way, either in a mental institute or in a prison. So that's what the American public deserves to know, what really happens in these cases. Let me tell you, not guilty by reason of insanity cases for the defense is an uphill battle.

O'BRIEN: So this could be the first time that really all that evidence is laid out. This might be that only trial that people get to see all the evidence.

WAYNE: That's right.

O'BRIEN: If it turns out that he can't stand trial. Lisa Wayne, nice to have you with us.

WAYNE: Thank you very much.

O'BRIEN: Still ahead on STARTING POINT, a top college track coach has resigned after revealing an affair with a student. Was it the right decision or is it a double standard because she is a woman?

And then number one Notre Dame takes on number two Alabama tonight in the BCS Championship. Who's got the edge on the fields? ESPN's "Mike and Mike In The Morning" will talk with me and give us their picks. We know where Mike Golic is going, Mike Greenberg, that's ahead.


BERMAN: Welcome back to STARTING POINT, everyone. Some of the morning's top stories. Fears mounting this morning that Italian fashion mogul Victoro Missoni is dead. Rescue was still searching for his plane off the coast of Venezuela. The 58-year-old Missoni was traveling to Caracas with his wife, two friends and two pilots Friday when his twin engine aircraft disappeared 30 minutes after takeoff.

The spokesman says 94-year-old former South African president, Nelson Mandela, is starting to get back to his normal routine as he recovers from a recent lung infection and gallstone surgery. Mandela spent two weeks in the hospital after being diagnosed with a lung infection that was back in early December.

Joe Biden, reality TV star? Sounds too good to be true, but it's not. Maybe a fan of the vice president created a petition on the White House web site for C-Span to create a show that follows him around. It would show the, quote, "lighthearted side of politics even in the midst of contentious and divisive national debate."

You know Biden in addition to swearing in the new Senate, running his own comedy routine also showed off his comedy chops on NBC's "Parks and Recreation" back in November.

You have to check this out. Prison guards in North Eastern Brazil spotted this cat as it was trying to enter the prison on New Year's Eve. They say an amazing amount of contraband was taped to it, saws, concrete drills, a headset, a memory card, a cell phone batteries and a mobile phone charger.

A prison spokeswoman told a newspaper on Sao Paulo, it's hard to know who is responsible for the action since the cat does not talk. All 250 inmates are considered suspects.

O'BREIN: Anybody would want all that.

BERMAN: I don't believe the cat is in any kind of legal jeopardy.

O'BRIEN: That's everything.

BLOW: By reason of insanity.

O'BRIEN: Everybody would want that, cell phone charger, drills. Every single person in that prison wants that cat. Come here, kitty, kitty, kitty.

UNIDENTIFIED MALE: That story, tailor made. We'll get that online.

BERMAN: So much in trouble for not breaking that.

UNIDENTIFIED MALE: I know. Why did we not break that story?

UNIDENTIFIED MALE: Can you imagine the person taping that to the cat?

UNIDENTIFIED MALE: Maybe the cat was really into it, going along with it.

BERMAN: The devious cat.

UNIDENTIFIED MALE: I also like the purr. Good job.

O'BRIEN: I want to raise this issue about this whole famed track coach. Her name Bev Kearney and she's now resigned from the University of Texas. She admitted to an affair with a student athlete began back in 2002, ended roughly in 2004. She was allowed two options, either to step down or get fired.

This is a woman who has won six national championships in the University of Texas. Her lawyer says she's the victim of a double standard and the punishment has been far harsher for her than some male counterparts who have, quote, "engaged in similar conduct." What do you think? We're going to be talking to her tomorrow. So I'm just curious to know ahead of time.

BLOW: I want to know the broad history of men doing the same and what their punishments were if it was found out. I do think, you know, the faculty/student thing is over a line and I think that each institution should be able to say what they feel like their policies are on that.

And if they feel like that's so far over the line, then they should be able to make that call. They made that clear ahead of time, that's OK. You know, if -- at the same school, men have done similar things with people in their charge and not been offered the same kind of heavy penalty, that's a problem. I just don't know if that's the case.

O'BRIEN: But is it a problem because that she too should keep her job or is it a problem that they too should be let go?

FMR. REP. CONNIE MACK (R), FLORIDA: The standard should be the standard. So you know, the institutions need to -- whether it's men or women, they need to follow the same standard. I don't think one gender should have an advantage, if could you say it that way.

This is a horrible thing. These are kids in school. And they should -- they should be going to an environment that will give them the best opportunity to learn and not to be engaged in this kind of activity with their teachers.

MCKAY COPPINS, POLITICAL EDITOR, BUZZFEED.COM: I think the question in cases like this is always to what extent the faculty member exerted kind of undo-influence or power over the student. Did the student feel pressured or manipulated into it?

I think that that's kind of something you have to regardless of gender, it's something you have to look at in cases like this especially at the college level. Definitely when they are younger than 18, there is no question.

BLOW: So what is the difference between coach to athlete and boss to employee? I think it's kind of the same thing? You always have the influence because you are, in fact, that person's coach and whether or not they like you or not, can they afford to not like you if you are coming onto them and they are the coach. Maybe are you on scholarship and how you're in school.

COPPINS: That's the side I would air on. I think you're right.

O'BRIEN: At the end of the day, what are the rules? Apply them equally. It will be interesting to talk to her. She is a hall of famer, and she was injured very bad until an accident, and they thought she would never walk again. She will be our guest, tomorrow, Bev Kearney.

Coming up next on STARTING POINT, the fighting Irish take on the Crimson Tide with the BCS title. Who is going to take the crown? ESPN's "Mike and Mike In the Morning" talk about that. Mike Golic, of course, played for Notre Dame, so you imagine what side he's on, on this. Mike Greenberg weighs in as well. Back in a moment.

(COMMERCIAL BREAK) O'BRIEN: Tonight is the night the Notre Dame fighting Irish take on the Alabama Crimson Tide in tonight's BCS game, a battle of number one versus number two. Sports Gurus Mike Golic and Mike Greenberg join us from Miami. That, of course, is where the game is being played. Tonight, they, of course, host "Mike and Mike In the Morning" on ESPN and on ESPN Radio.

It's nice to see you both. Thanks for being with us. Mike Golic, you have a dog in the fight. The Golic family tree is an interesting tree. You, of course, played in 1985, and then your brother, Bob, was a nose tackle, and your brother Greg offensive lineman. And then you have kids as well.

I mean, that's quite a family tree there. I'm not going to throw the first question to you, sir. I'm talking about Notre Dame for you. Mike Greenberg, let's start with you because I don't think he cannot be biased in this. Mike Greenberg, walk me through the pros and cons of tonight's game and then ultimately who you think are going to win.

MIKE GREENBERG, HOST, ESPN2'S "MIKE AND MIKE IN THE MORNING": Yes, we will save the mayor of Notre Dame for a little bit later on his opinion. To me, having -- I think the key is here, I think all things considered, Alabama gets a slight edge. I think they're a slightly better team.

But I've seen Notre Dame go up and do a lot of things this year I didn't expect because they're great defensively and they don't make mistakes. To me, their key is their young quarterback Everett Gholson cannot make mistakes. They have a very big chance to win this game.

They are a sizable underdog. If he does not play well, if he makes some mistakes, if they fall behind and he's forced to throw the football, that's where the Irish should get in serious trouble.

The key is for that offensive line for Notre Dame, which is led in part by Mike's son, Mike Jr., to open up holes, to run that ball effectively, and keep the game a low scoring game. While I know that generally is Alabama's strength, it is even more to the point Notre Dame's strength.

O'BRIEN: You started by saying Alabama has the edge. Mike Golic, that has to hurt a little bit. They have great personal stories on the Notre Dame side. Walk me through a couple of those.

MIKE GOLIC, HOST, ESPN2'S "MIKE AND MIKE IN THE MORNING": Well, I mean, as you mentioned, our family tree, my brother Bob winning the national championship in 1977. My years didn't go so well there. Now I have two sons playing on the team, it's incredible, as a father, watching their kids and the way they can end their career with a national championship.

It's just been a story this year for Notre Dame, where this wasn't expected. Nobody saw undefeated coming. But as they played, and as Greeny mentioned, the defense playing so well, and Everett Gholson, the young quarterback coming along the way he did. We just got win after win and kept getting doubted more and more. We'd beat a good team, and they'd say that team wasn't good anyway, and Notre Dame is not that good. Here they are at 12-0 facing a fantastic Alabama team. Take nothing away from Alabama. They're favored. They should be favored, but I think I know where my heart is leaning.

O'BRIEN: Yes, I knew there was a but in there somewhere, Mr. Mayor. I want to ask you a question about a game that was really hard to watch, the Redskins and Seahawks. I mean, RGIII, I don't watch a lot of football, as you guys know, but I like him personally. It was brutal to watch him limping through the game. It was terrible. Many people mad at the coach for having him in at all. What do you think?

GOLIC: There's a lot of difference of opinion on that. Both Mike and I think the right thing was done there. RGIII is a football player. What he did is he went out and played football. That's what happens. It's a brutal at times and violent, difficult to watch game.

O'BRIEN: He's a rookie. He's young. He could have ruined -- and I'm not exaggerating. I followed a lot of people who are tweeting this. It could have ruined his career in that game by being too aggressive and it's his first year.

GOLIC: You play ball. You know what, you're a ballplayer, you play ball. If you're in the league, it doesn't matter if you're a rookie or a 12-year guy. You're in the sport. You play to win. I think he handled it perfectly.

I want to be out there and help the team. It's not on the player. It's got to go on the coach or medical staff to say, we appreciate you wanting to be out there. We're not going to have you out there.

I thought they did the right thing. He couldn't run the way he wanted to, but he could still be effective. We need to give Seattle's defense props because they're an effective defense.

GREENBERG: And what you're saying is certainly an opinion a lot of people hold. Mike and I, our perspective is we think it was handled, all things considered, the right way.

O'BRIEN: I hear you. It was hard to watch, though. Mike and Mike, nice to have you with us this morning.

GOLIC: You don't sound convinced.

O'BRIEN: I'm not convinced. It's really nice to talk to you anyway, even if we disagree. I love talking to you guys because, as you know, I don't watch a ton of football. They always make me feel I'm very much in the conversation.

Rather than others are, you're completely wrong, Soledad. You're welcome to your opinion because this is America. I thought the coach was wrong. I thought it was painful to watch him limp.

BERMAN: I think the issue is was he effective at the quarterback position after the first quarter? I think that's the mistake. He wasn't playing well enough to merit risking the future of his career.

O'BRIEN: But look at Kerry Strug, right, Olympics.

BLOW: Risking his career is one thing. This is a sport that trains kids from the time they're basically able to walk. What signal does it send to a young person, when we're as parents, I've had two football player kids, both of them broke bones, when you know that you're hurt and both you and --

O'BRIEN: Kerry Strug in the Olympics did her vault with a broken ankle or a broken foot. Kerry Strug is now with us, and we cheered her for winning for USA.

MACK: When you're an athlete, you want to play. You want to be on that field. You want to compete.

O'BRIEN: So your coach should say --

MACK: And it's competition because you know, if you come out, someone else is coming in. I'm agreeing that the coach --

O'BRIEN: You're agreeing? OK.

MACK: That the coach has a responsibility here, but, look, this was a decision between the coach and the player on the field. It's really hard for us to second guess those decisions.

COPPINS: I don't think you can count on the athlete to be the one to say, I can't play anymore.

O'BRIEN: I agree. Still ahead this morning on STARTING POINT, we learned that the president's choice for CIA director this morning. We're going to talk about the road ahead for John Brennan, who's going to be the nominee.

And the president's pick to be the next Defense Secretary, some conservatives are very mad even though Chuck Hagel is a Republican. We'll talk about that with freshman Democratic Senator Chris Murphy of Connecticut.

Oscar season, but chain saws trump the hobbit at the Box Office. How did a movie that had 21 percent of good reviews, as you look at "Rotten Tomato," how did it win this weekend? That's ahead. We're back in a moment.


O'BRIEN: Welcome back, everybody. Our STARTING POINT this morning, new faces in the cabinet. The president nominates his top counter terrorism adviser John Brennan to head up the CIA. Is he up for the job?

And growing tension over his choice for Defense Secretary, the former GOP Senator Chuck Hagel. We'll tell you why some conservatives are unhappy with his choice and some liberals too.

Plus Notre Dame versus Alabama, who's going to take home the trophy glory in tonight's BCS game? We'll look at that.

CHRISTINE ROMANS, CNN BUSINESS CORRESPONDENT: From auto sales to housing to job growth, what are going to be the bright spots and weak points in our economy this year? I've got the new forecast for you just ahead.

BERMAN: The public will get its first look at the evidence against the accused shooter in the Aurora movie theatre massacre. What we can expect straight ahead.

O'BRIEN: It is Monday, January 7th. STARTING POINT begins right now.