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Update in Rape Case; Man Argues for Right to Die; Girl, 4, Attack by Dog. Mike Galanos Puts Arias Story to the Test.

Aired March 15, 2013 - 11:30   ET


ASHLEIGH BANFIELD, CNN ANCHOR: "She could barely move. She was like a dead body." These are text messages sent by one of two high school football players who are accused of raping a 16-year-old girl who was so drunk she could barely move, allegedly assaulting her several times at several different end of summer parties. These boys are on trial now. 17-year-old Trent Mays and 16-year-old Ma'lik Richmond.

CNN's Poppy Harlow just came out of the courtroom.

Poppy, update us on how it's going today?

POPPY HARLOW, CNN CORRESPONDENT: Actually, this is day three of this rape case in Steubenville that has caught national attention, as you know. Two very key witnesses for the prosecution. First for hours and hours yesterday, Joanne Gibbs, a computer forensic analyst for the state, testified, read hundreds of text messages from she says Trent Mays to his friend and the prosecution trying to piece together what happened to this 16-year-old girl that nice in august at these parties.

I'm going to show you two of them, some are so graphic, we can't even read them to our viewers. One of the text, when a friend asked Trent Mays, the accused if he did anything with the girl that night. He wrote back, "Yes, dude, she was like a dead body. I just needs some sexual attention." Another text from the alleged victim to a friend of hers saying, "I think I was drugged. I have no memory after I left." She means after she left one of the parties. Multiple witnesses have said that this girl was highly intoxicated. The defense arguing against that.

But here is the clutch. And this just happened really within the last hour. A 17-year-old witness to the alleged rape, and in Ohio, rape is not just sex. It's also any sort of digital penetration. He took the stand and testified for hours.

What I am about to say is not suitable for children. So parents, listen, take them out of the room if they're watching. This is very disturbing.

But that 17-year-old witness was in the car with Trent Mays and the alleged victim driving from one party to the next. And he said, quote, that he saw Trent Mays, quote, "Insert his fingers into the victim's vagina." He also testified that he videotaped that for a few minutes on his cell phone, and then deleted that the next morning. Ashleigh, you know this, you know the law, this witness tried to plead the Fifth when he took the stand. He did not want to incriminate himself, possibly tampering with evidence, not reporting a crime. The judge in this case gave him immunity so that he would testify. Because that's how key what he said to this case to the prosecution, Ashleigh.

BANFIELD: Poppy, like you said, it's traffic, but it's critical. Those are the critical details that pertain to statute. They must be read, they must be publicized. At the same time, I can see defense attorneys say you don't know who was typing on that phone at that moment.

HARLOW: That's happened.

BANFIELD: We'll have to wait what the defense says. Thank you for getting out to report those details.

HARLOW: You're welcome.

BANFIELD: She's just in a quick break from the proceedings.

Death row, an inmate versus the governor. The state's highest court hears life and death appeals. Now, you've heard that before, right? This one is one you have never hard. It is an inmate who is not fighting to survive. An inmate who is fighting to die. And, again, a twist you will not have heard before, trust me.


BANFIELD: Sometime today, Maryland will very likely become the sixth state in the union in six years to do away with the death penalty. The Maryland House of Delegates is expected to echo a State Senate vote last week, adding Maryland to the 17 states overall that do not have capital punishment. Look closely at the map, look closely at Oregon. It's not yellow. It's not one of them. It does have capital punishment. But the governor does not like it. And he declared a moratorium, at least unless he's gone, or the legislature wipes it off the books. And that essentially pits him against this man, an Oregonian who not only supports executions, he wants to be the next one to die. You heard it right. Gary Haugen has been on death row in Oregon since 2007. He killed a fellow inmate a few years earlier while serving a life term for killing an ex-girlfriend's mom. The governor of Oregon, John Kitzhaber gave Gary Haugen a prepass to walk off of death row. But Haugen insists he got the sentence for the lethal injection, and it is his right to get it. Yesterday, this unprecedented legal battle went before the Supreme Court.

And while we wait for a ruling on it which will likely take months, we can certainly hash out these issues because they're strange if not completely unheard of.

My colleague, Ryan Smith, who say lawyer and anchor of HLNs "Express," and David Young, HLN judge and mediator.

Judge, let's go with you, all constitutional down, if I may. Oregon's constitution said an inmate has to agree for clemency. What inmate wouldn't? That's usually what they fight for? But the constitution says this guy doesn't agree. This guy doesn't agree. Can he compel the good people of Oregon to kill him even if the good people of Oregon don't want to?

JUDGE DAVID YOUNG, HLN JUDGE & MEDIATOR & FORMER FLORIDA CIRCUIT JUDGE: You know, Ashleigh, in most states they don't have that provision where an inmate has to agree. Oregon is different. He has to agree, and if he doesn't agree, I think the court is going to rule that the governor had no right in this case to grant clemency. Had that not been in the constitution, however, the governor does have the right. He can or she can impose clemency on whoever. But this is different. There's a constitutional amendment that states that the inmate has to agree. That's what makes this a little different and a fascinating thing to watch.

BANFIELD: It's completely fascinating. On one hand, we like to respect the constitution. On the other hand, we like to respect our laws.

In this respect, Ryan, weigh in on this, the governor having the right to grant clemency harkens back to the king where he has the power and can spare lives. We do that in this country. We respect it with the president. We respect it with the Supreme Court. Which one is better?

RYAN SMITH, HLN EVENING EXPRESS: I think it's the governor's right is better. You look at this, clemency is all about an act of mercy. The other side has to accept it. The Supreme Court has gone through it as well. In Oregon, without this amendment, let's say, Oregon would be able to pursue this on the idea that a governor could also grant clemency or take the powers to affect justice. This is where it gets murky. Got to think the governor is the leader of the state. So if there is a problem with the justice system, he is allowed to act on that basis. Now, this case might be interesting talk back tour maybe 2000 in Illinois, the governor there didn't take the death penalty, didn't think it was effective. And basically commuted the sense of over 100 inmates because they didn't like that. We're looking at his morals. We're hearing what he said about this. I'm thinking if he didn't say anything about why he didn't like the death penalty, maybe we wouldn't be having this discussion. He could simply say I don't think it's right for our state.

BANFIELD: Good point. Here's 84 points.

Judge, taking the constitution and what the constitution to the inmate means to him. He suggests all of this uncertainty over whether or whether when he will be executed equals cruel and unusual punishment, and that say federal constitutional issue. So if he in fact is the one causing the length and the delay, how on earth could he argue that it's cruel and unusual, if he's the perp, the perpetrator of the cruel and unusual punishment?

YOUNG: I don't think that really applies in this case. I think that the guy's just fishing for any excuse for him to be executed. It seems to me, after -- the defendant in this case wants to die. He does not like being in jail. And quite frankly, Ashleigh, he probably should die. But we have to answer to a higher authority in our country. A country of laws and not men. That there's a constitution involved. And if the constitution states that the prisoner has to agree to clemency, well, there it is. What really should be done, they should redact that part of the constitution in Oregon and say, no, the clemency rests in the hands of our elected leader of our state.

BANFIELD: They may not have to. This one is one of the more fascinating stories I've ever seen with the paradox of it all.

Thank you, David. Thank you, Ryan.

A 4-year-old girl and a dog. This is not a feel-good story. It is frightening. We've got details for you coming up next. And the pictures as well.


BANFIELD: When it comes to sharks, we often tell you about attacks. That is not the story when it comes to this shark. That you're looking at. A white-tip shark died after being placed in an outdoor pool for the purposes of shooting a Kmart commercial in Los Angeles. And that has animal rights activists pretty darn mad. The shark in this video is actually not the one that died. I apologize. I think this is a shark that's made perhaps -- someone has to clarify that for me, actually because this does look like a shark in a pool. Kmart says its safety at commercial shoots is always of paramount concern. I want to get clarification if this in fact is the shark -- it is not the shark if question. I apologize. I believe this may be a white- tipped shark, though. I want to talk about another story that came across our radar today. It happened in the Bronx. A little girl attacked by a dog. That is something that happens. Look on a screen as a grandmother walks with her little grandchild. That dog came flying across the street and latched on to that little girl and did not let go. One bystanders getting out of his car to help. Other bystanders coming to help, trying to pry that dog off that girl. It took quite a long time until finally its owner came in with a leach. Look at this remarkable attack caught on video. The little girl was taken to the hospital with puncture marks in her arm and in her legs. She's going to be OK. Fortunately, she wasn't severely, severely injured. She is going to be OK. It was just incredible to see this. And the owner of the dog was given a summons for not having the dog on a leach. Look at that. Right across the street, right after the little girl with her grandmother.

Our legal team is back to talk about this. Entertainment attorney, Ryan Smith is the anchor of HLN "Evening Express, and circuit court judge is here from Florida.

Judge, weigh in on this, I could not believe it when I heard this was just a summons for not having a dog on a leash, when a dog is capable of doing that. Am I missing something in the plot here?

What you're missing, Ashleigh, people don't take seriously dog attacks because of the different ramifications, I guess, concerning animals. But in some states there are really strict laws that would have, you know, caused the victim in this case to pursue victim charges against the owner of the dog. But not in this jurisdiction. However, saying that, the victim can go after the dog's owner for all dogs owner, because he is the owner has very few rights, it's what they call strict liability. When you have strict liability, your dog gets off a leash, you're going to come socked with that.


BANFIELD: Thank god the girl is fine. Ryan, you remember back in San Francisco, there was a woman killed by two dogs in her apartment building. And the owner of those dogs wept to prison for 15 to 20 years for that manslaughter.

SMITH: Uh-huh.

BANFIELD: That's my question here. Is there some kind of negligence? Or is there some kind of recklessness, or any other kind of charge that you can think of that a dog owner who has a dog with his propensity can face in this incident? Knowing all the facts that we don't have but knowing what we see?

SMITH: Right. I would hope they try to change the law that's on the books. At least on the assault charge. Because if you know the dog is dangerous and you fail to take precaution, you should be responsible for that. The judge is right. That's the problem with laws in this country with animals. They don't address the fact that the animal can be a dangerous weapon. I'm not saying that dogs are necessarily inherently bad. But there are circumstances and dogs. And owners need to be held responsible for that. So in a case like this, if he knew the dog was dangerous and he failed to take precautions by having him on a leash, a summons is not enough and certainly not a deterrent for other owners or other people who may let their dogs off a leash. And a dog can respond to anything out there you don't even plan for. I think there's got to be something a lot tougher.

BANFIELD: I think the summons being probably not more than $50 or $60, but that's not what a civil suit might amount to.

So thank you to the both of you for your insight on that.

Now, how much benefit of the doubt can a jury possibly muster in any case let alone the Jodi Arias case? Because the jurors in her case have been tested and tested again hearing admitted lies in an ever changing story from the admitted killer and then some. We're going to take a look at the toll it may have taken in a moment.


BANFIELD: Well, this certainly could be the lynch pin in the Jodi Arias case. Two photographs time stamped 62 seconds apart. Arias claims that in that 62 seconds she was attacked by her boyfriend, she ran for a gun, she got the gun and ran back and shot him then somehow found a knife -- I don't know where, but somewhere, stabbed him 27 times, slashed his throat ear to ear and dragged his very heavy body with her very light body. The prosecution simply says, I'm sorry, that's impossible.

And HLN's Mike Galanos thought it would be a good idea to put the whole scenario to the test, act it out, see if it can be done in the time Jodi says she did it. Have a look at how he did.


MIKE GALANOS, HLN: All right. Pick it up. Taking pictures of Travis in the shower, drops the camera, comes out, never see him this angry and we get the body slam, down she goes, halfway up, gets herself together enough to get out of there, where do I go, do I leave? Where do I go? Oh, in the closet. I've created some space. I remember the gun up here. She gets the gun, heading back to the bathroom, point it at him, here we go, the confrontation, Travis comes at her, like a linebacker as she said, boom, the gun goes off, he's shot in the head, but they're down in a heat now. She somehow gets off, gets up and it's time to get out of there. But now she finds something, in fact she does, its knife, time, one, two, three, four, five, six, seven, eight, nine, ten, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29. He's down. Now we've got to slit the throat and now begins the drag back of the body. Dragging back the body. The picture's taken 62 seconds. Can all that be done in 62 seconds? We shall see.


BANFIELD: Well, that was one minute, 7 seconds, and that was really, really fast especially all those 27 stab wounds with a sensibly very big man who's fighting you. Remember?

Back with us is Ryan Smith and Judge David Young.

Gentlemen, was this possibly the final moment where Jodi Arias could not give one of her perfectly crafted trademark answers to a scenario that really to almost everybody who has a pulse thinks is impossible.

Ryan, I'll start with you.

SMITH: Oh, this is the moment. Because you look at this, think about this, you saw Mike grab that supposed gun. She had to go in the top of the closet to get a gun all the way towards the back, also she said she didn't know where the knife came from, so she would have to get the knife as well but then she added a detail that Travis may have had that knife with him, why, we don't know. All of these things you put them together, she couldn't have gotten it done within the time frame. If the prosecutors tied it together, I think that right there is the equivalent of your smoking gun. How would she have the time to do all the things she said they did?

Judge David, they often call it a very simple thing, a smoking gun or a slam dunk, but I've been in courtrooms where the slam dunk turned into an acquittal. What do you think?

YOUNG: I think anyone with an I.Q. bigger than their shoe size, Ashleigh, is clearly going to find this woman guilty. But remember the jurors see things and hear things that we outside the courtroom do not. And I think the defense is betting on just one juror, one juror in their minds. That's all that it's going to take. And they probably know who that one potential juror is. And that's what they're playing to. But what the prosecution did in this case was masterful. And I think the final chapter has been written on Jodi Arias as far as the trial is concerned.


YOUNG: I'm hoping that the jury does really what it should do and find her guilty of first-degree murder.

BANFIELD: For every slam dunk, I have a Phil Specter and Casey Anthony.

YOUNG: That's right.

BANFIELD: Thank you everyone for watching us. Have a wonderful weekend. AROUND THE WORLD is after this quick break.