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Suspect Responds to Questions; Discussing How the Case is Likely to Proceed

Aired April 22, 2013 - 13:00   ET


ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield, live in Boston. And next hour, this city is going to mark one week since the bombings in Copley Square, and still each hour is bringing new facts to light, and with them some brand new questions, as well.

This hour, we know investigators are questioning the lone surviving susppect, who, at this point, remains in serious condition, with a gunshot would to his neck and a breathing tube down his throat.

Sources tell CNN that 19-year-old Dzhokhar Tsarnaev is responding to those questions but doing so nonverbally. And I want to get right to Deb Feyerick in New York who's got new information on that in just a moment. But first, a few more details. Possibly, this suspect handcuffed to his hospital bed. Also, more than likely periodically being visited by investigators who are asking some very specific questions. This is a need-to-know basis. And they are the ones, the only ones at this point, who are on that need-to-know list.

And also this hour, CNN had learned that the federal investigators are trying to question the widow of Dzhokhar Tsarnaev, his older brother and the fellow terrorist suspect, Camerlin. I want to go back to Deb Feyerick for a moment who's standing by live. Deb, what's the latest you're hearing about what's happening in that hospital room at that hospital bed?

DEBORAH FEYERICK, CNN NATIONAL CORRESPONDENT: OK. So, Ashleigh, this is what we're being told by a source who is being briefed on the investigation. We know that the suspect, the 19-year-old Dzhokhar Tsarnaev, is -- he is on a ventilator, he is heavily sedated. His hands are restrained but one of the reasons that's true is because he's got a breathing tube down his throat and when he wakes, there's a fear that he's going to pull that breathing tube out of his -- out of his mouth, basically.

So, investigators are allowed into the room every few hours to speak to him, not for a long time. The doctors are really the ones who are in charge right now and calling the shots. They need to make sure that he remains stable. And when the investigators come in, they are allowed to ask -- or they're asking questions but Tsarnaev is only allowed to nod his head.

Again, they want to restrict all possible movement because they don't want the body to go into unnecessary shock. So, he's being asked questions, for example, are there any other bombs? Where is the bomb stashed? Are there any other weapons? And also, very importantly, did they get any help from anyone? And that's that's key because they want to know whether there are people in the United States or whether there are people abroad who may have been facilitating for these two individuals.

Now, he did sustain injuries. He has some sort of a wound to his leg. We believe it's a gunshot wound of some sort where he sustained significant blood loss while he was on the run. Remember, he and his brother had gotten out into that car shootout over in Watertown. He also has a wound to the back of his neck, but it's unclear specifically what caused that particular wound. He was in the boat and when he was being flushed out by the snipers and the tactical teams, they did use flash bang grenades. And so, there's a theory that he sustained some pretty serious damage to his hearing. So, that's another sort of hindrance for investigators to get the kind of questions they want answered.

But he's heavily sedated. The doctors are in charge. The investigators are right outside his door. They're on standby. Clearly when he does wake up they want to be the ones that he's looking at so that he can answer any kinds of questions. But very limited movement right now as doctors try to heal him but also get the information they need in the event there is somebody else out there -- Ashleigh.

BANFIELD: Deb, I just -- to be a fly on the wall to hear what some of those questions are and who some of those questioners are as well. We're going to get to that a little later in the program. But Deborah Feyerick live for us on that story. Thank you.

I want to also go to that second issue and that is of the widow left behind. That is Katherine Russell, known as Katie Russell. She is the widow of the alleged co-conspirator who was shot dead. And my CNN colleague, Chris Lawrence, has had a chance to speak with her attorney in Rhode Island. And, Chris, I understand this is not the easiest conversation to have given the circumstance this widow is in, but at least you were able to glean some information about her involvement right now in this investigation. What do you know?

CHRIS LAWRENCE, CNN CORRESPONDENT: That's right, Ashleigh. And basically, the federal investigators want to know what she knew, if anything, about what was happening before those attacks against the Boston marathon. I spoke with her attorney this morning, and he basically said she didn't know what was happening with her husband until she saw it on the news and she had no knowledge of any of this at any time.

He also went on to say that it's been incredibly hard on the family, that she's distraught and crying. Let me read you part of a statement that basically from what he told us he said she understands the need for doing it, talking about federal agents looking to speak with her. This is the way the government looks at it and she understands this. It's a threat to national security. And she gets that. And she's a really good person, very sympathetic to that. Katie's just trying to bring up her daughter. She's obviously referring to the young toddler that she -- that she had with Tamerlan Tsarnaev. Again, he said, basically, she feels very strongly for the victims of that Boston marathon bombing and she's also dealing with the fact that she lost her husband and the father of her child as well -- Ashleigh.

BANFIELD: But, Chris, it's so critical at this point. Do we know if she's actually helping them one on one? Or did she circle the wagons, quickly get an attorney and it's the attorney now who's running the show?

LAWRENCE: Basically here's what we know. We know that federal agents have been to the apartment that she shared with her husband and daughter. And federal agents have also been here to her parents' home in Rhode Island where she has been staying with her parents. We know that federal agents have contacted her, trying to find out what she knew. She has been speaking with them but through her attorney. Basically, her mom and dad hired an attorney to work with the family to sort of facilitate their contact with the federal agents. And that's what they're doing at this point.

BANFIELD: All right. Chris Lawrence, excellent reporting. Stay on it and let us know if you find out anything more about her and what she may or may not say to investigators.

I just want to get to some breaking news right now and this is coming from the White House press briefing. Apparently, press secretary Jay Carney has now let us know that this bombing suspect, Dzhokhar Tsarnaev is not -- I repeat, is not going to be treated as an enemy combatant. There have been a lot of questions about just what kind of prosecution this young man is going to be facing whether it would be in civilian justice or perhaps would he be one of those considered for prosecution in a military tribunal, perhaps even at Guantanamo Bay.

But there you have it straight from the White House, he will not be treated as an enemy combatant (INAUDIBLE.) Because (INAUDIBLE) is going to be prosecuted and the course (ph) of justice itself for Boston and for the nation may well depend on exactly what those interactions are right now going on between Dzhokhar Tsarnaev and the High Value Detainee Interrogation Group. Again, that's a very frightening sounding group, but the High Value Detainee Interrogation Group is comprised of a number of officials of the CIA, the FBI and others. Those very well may be the people who are at that hospital bedside periodically asking whatever questions they can get out of this suspect.

And I want to get into some of that right now with three of the smartest in the business. The incredibly smart attorney, CNN Senior Legal Analyst Jeffrey Toobin as well as litigator and author and Harvard law professor Alan Dershowitz. Let me start right there with the very latest, the questioning of a wounded and sedated and restrained and un-mirandized terror suspect. Professor Dershowitz, that has to raise just inordinate number of questions. What are your thoughts?

ALAN DERSHOWITZ, PROFESSOR, HARVARD LAW SCHOOL: Well, I think, as soon as a lawyer is appointed, the lawyer is going to begin to challenge that. Now, you may say, what's the harm? They already have all the evidence they need. They have a videotape of him putting the bomb down. They have a statement he made or his co-defendant, his brother, made to the people who hijacked. But it may make a lot of difference because in order to get the death penalty, they have to prove that he comes within the federal terrorism statute and that requires very specific kinds of intentions behind the bombing.

And if they get the evidence of those intentions during this interrogation even if it's by a nod or something handwritten, the federal court in Boston which comprised of a lot of very good judges who really operate by the letter of the law may well exclude those statements made without a Miranda warning or made while he's not really competent between times when he's sedated and not sedated. So, they may be risking their death penalty, but they may be doing it for a good reason. They may need real time intelligence but I don't think that the public safety exception will stand up for allowing them not to have given the Miranda warnings.

BANFIELD: Fascinating. In fact, I have a lot of questions about that I'm going to get to. And actually, I want to bring in another colleague as well right now. Steve Razor is a former military judge advocate general and he knows a thing or two about this very issue. Typically, Steve, we hear about a 48-hour window, and this is a very new area of justice, this has only been in sort of parlay for the last couple of years. We are far outside of that 48 hours by today but can it be extended in the case of public safety? And exactly when can you establish that a public safety exemption has expired or is no longer of concern? How long can you keep him from getting Miranda?

STEVE RAZOR, CRIMINAL DEFENSE ATTORNEY: Well, there's no hard and fast rule on that. And that's exactly the issue as you had outlined it is that they're going to have to prove that this exception has to extend as far as it has extended. Now, I think part of the way that they could look at this and part of the argument that they can make is the enormity of the situation, the enormity of the risk. I think the gravity of the risk is going to help them to extend that exception because here we're dealing with deaths of four people and dozens of people injured. So, based upon that, I think they may have a good argument.

BANFIELD: And I wonder just, you know, really I don't want to put the cart before the horse, but the number of appellate issues that could be, you know, germinating right now even as we speak and as they speak.

Jeff Toobin, I want to bring you in just quickly on something that professor Dershowitz just brought up and foregoing possibly the security of a death penalty prosecution by continuing the interrogation now while there is no Miranda. I mean, isn't it just a simple -- if he does not invoke on his own a desire for an attorney and offers up information, effectively even offers up some kind of a confession, can't that be used?

JEFFREY TOOBIN, CNN LEGAL CORRESPONDENT: Well, not if he has -- well, again, this depends on the scope of this public safety exception and whether the courts agree to it. There have been -- the Supreme Court has a case from 1984 which says that under certain narrow circumstances where there is, in effect, a ticking time bomb, it's OK to ask -- to ask questions without Miranda. But the limits of that are -- have never been precisely defined. The Obama administration said 48 hours, but that's simply their interpretation.

Now, this whole Miranda issue though, I think we can overstate its importance. All Miranda does is restrict whether those statements can be used against Tsarnaev himself in a court case. They can still use all this other evidence that they have against him. So, they may simply decide we're not going to use these statements at all. We're going to prove our case with other --

BANFIELD: True, Jeff. True.

TOOBIN: -- with other evidence.


TOOBIN: And then the issue doesn't matter.

BANFIELD: I'm curious about the voluntary statements. If he offers something up, can't that also be used? As opposed to bringing it out in interrogation.

TOOBIN: Yes. Yes, although it would be difficult to say that an intubated sedated person suddenly decided to write out answers to questions. I think it's quite clear he's being questioned here. But the real issue is does the government want to use those answers in court or do they simply want to use it to continue their investigation, which they certainly have every right to do.

DERSHOWITZ: But there's one other issue that relates to that.

BANFIELD: Right. And certainly this --

DERSHOWITZ: In addition --

BANFIELD: Go ahead, professor.

DERSHOWITZ: In addition to Miranda, remember Miranda only excludes the actual statement itself. But if the statements were obtained involuntarily as the result of the sedation, not only can't they use the statements in court, but they can't use any of the fruits of those poison trees. So, if they get any leads, --


DERSHOWITZ: -- they can't use those against this defendant. Now, they can use it against others. They can use it for general intelligence gathering. So, I agree with Jeffrey that they may be making a calculated decision to risk any statements of confessions or intention in order to preserve the greater good of getting real time intelligence information.

BANFIELD: And public safety which cannot be discounted at this time, that fruit of the poisonous tree is so critical in this investigation. Alan and Jeffrey and Steve, standby if you will. Thank you for all those thoughts. We're going to delve a lot deeper into a lot of these angles in the hour ahead. And also within the past hour, a funeral mass concluded for one of the three people who was killed in last week's explosions. There were a lot of mourners packing into St. Joseph's church. It's in the Boston suburb of Medford. They were there to remember Krystle Campbell. She was a restaurant manager. She was just 29 years old. The Boston cardinal, Sean O'Malley, presided over the services.

And tonight, a memorial service is going to be held for Lingzi Lu, a graduate student in math and statistics at Boston University, had just written her final exams and they have her degree ready for her. If you'd like to help the surviving bomb victims, 50 of whom are still in the hospital, you can go to, slash, impact. And we certainly urge that you do take a look at that Web site.

Charging the Boston marathon bombing suspect, the officials could file charges at any moment. In fact, that is what we're waiting on, but exactly what charges is this young man going to be facing? He is certainly in a great deal of trouble. Murder, terrorism, conspiracy, all in play. We're going to break down the possible list and how it may compare to another very infamous man, Timothy McVeigh, it's all coming up.


BANFIELD: I'm Ashleigh Banfield reporting live in Boston. I've got some breaking news to tell you. We've been waiting to find out just what exactly this suspect who is currently in serious condition in a Boston hospital is going to be facing, when he's going to be actually charged, when he's going to make an appearance and how technically they're going to do that considering he's sedated and intubated.

I've got some news here courtesy of our CNN Jason Kessler (ph) who says the suspect has made an initial appearance now in the hospital room. He did this in front of a federal magistrate judge. This comes courtesy of the circuit executive Gary Wente (ph) who told CNN that this complaint is right now is under seal probably no surprise given the magnitude of what this case is going to be.

Also want to let you know that with regard to the system, the actual -- this is not considered a formal arraignment. My very uneducated guess maybe this is considered a first appearance, but I want to bring in some of our guests on that because federal prosecutors could also be filing the charges any time later today against this bombing suspect, Dzhokhar Tsarnaev.

Officials haven't publicly said what those charges are going to be. But since his capture Friday Tsarnaev has been on a ventilator, heavily sedated and restrained in a hospital bed. And we do know investigators have been questioning him from time to time at that hospital bed every several hours in fact. He's not able to speak, but he is responding by moving his head we're told. A source with firsthand knowledge of the investigation says that the questions have focused on whether there are any other bombs, any other danger, whether anyone is helping him, other co-conspirators and of course how his brother was killed and who his brother may have been involved with as well.

Joining me now, senior legal analyst Jeffrey Toobin as well as Harvard Law School Professor Alan Dershowitz. Professor, can you let me know what you make of the initial appearance in the hospital room?

ALAN DERSHOWITZ, ATTORNEY/AUTHOR: If it's true it poses a very serious problem. If you have a judge appearing in the hospital room, he must advise the defendant that he has the right to have a lawyer. And a lawyer should be there at that initial appearance. Certainly this is the commencement of a criminal charge whether they call it an arraignment or initial appearance, that's just extreme formalism. The case has now begun, he's entitled to have a lawyer, the judge must advise him that he has the right to a lawyer even if the FBI didn't do so. So if you're beginning to bring judicial officials into this and they're circumventing the constitution, we're now creating a real problem that goes well beyond any Miranda issue.

BANFIELD: And, professor, the issue of competency, you cannot have a defendant anywhere who is not competent, can't understand the charges against him, can't assist in his own defense, if you are sedated even on a sedation holiday, can you see any circumstance where that could be considered competency?

DERSHOWITZ: Absolutely not. And that's why he needs to have a lawyer present. The idea that a lawyer is not there when a judge is talking to him and that the judge is -- if it's happening, is playing this game with the prosecutors of appearing, not warning him of his right to have council, this raises serious problems. This escalates the issue beyond government officials, beyond police officials or FBI officials trying to deny him his rights, to the judiciary denying him his rights if in fact the magistrate didn't warn him of his right to council and didn't really wait until a lawyer was there. The public defender's ready to come into this case. They're 15 minutes away from the hospital. There's no reason why if it's true, now we don't know the facts, a lawyer was not present with him when that magistrate appeared in his hospital room.

BANFIELD: Well, let's hope there was one. And for anybody who thinks he doesn't need a lawyer and why should we protect this man's rights? We want to protect a successful prosecution. You don't want anyone getting off on technicalities. Jeffrey Toobin, if you could just sort of think ahead for a moment of all of the different potential charges on a federal level, notwithstanding the murder charges on a state level, but a federal level because there is no federal murder statute for run-of-the-mill civilians like me, what is the likelihood of the list of charges this suspect could face?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, the likely charge is terrorism. There is a federal terrorism law. And the use of explosive devices in the course of terrorism is not only a federal crime, it is a federal crime that potentially carries the death penalty.

BANFIELD: When you say that, is there not also -- forgive me for not knowing the wording of the federal statute, but exploding a device in a public place causing death is also something that carries the death penalty.

TOOBIN: That's right.

BANFIELD: So video perhaps --

TOOBIN: That's right.


TOOBIN: Remember, we are such an early stage of this process. You know, we are all taking it as a given that the FBI and other law enforcement have identified the two brothers as the people who set off the bomb. We don't know what the evidence is of that. We haven't seen evidence -- we haven't seen them setting off the bomb. We haven't seen them admitting it. Now, supposedly one or both of them admitted it to the carjacking victim, but I think we just need to slow down a little bit and say, you know, what is the proof here.


TOOBIN: I assume the government wouldn't bring this case if they didn't have proof, but we haven't seen it.

BANFIELD: I'm glad you brought that up, Jeff. A little later in the program we're actually going to talk about the evidence currently as we know it and what other potential evidence they would need to make that link because you have to be very specific. Again, these are not simple murder charges. And just quickly, Alan, if you could briefly the issue of Timothy McVeigh, he faced weapons of mass destruction causing death, exploding weapons in a public place but also eight first-degree murder charges for the federal officers. We don't have federal officers killed here, so that's a bit of a difference.

DERSHOWITZ: And there was no federal building targeted. And in order to bring it within the federal terrorism statute, you have to show an intent under the statute, an intent to intimidate and intent to coerce. It seems likely that they'll be able to show that, but there probably would be help by an interrogation. That's the problem. If they get that evidence through an interrogation that was either involuntary or not mirandized, they may not be able to use that information at the trial. So they'll have to infer intent from the act itself, which you can do but places a somewhat heavier burden on the prosecution.

BANFIELD: We'll talk about some of this evidence in a moment. Again, Jeffrey Toobin, Alan Dershowitz, invaluable information. As the story continues to break, unfold, and we look forward to what we're going to do about this in seeking justice for this town and America. We talked about the possible charges, what about the defense? If you were one of the public defenders likely to get this case slamming on your desk, what are the kinds of things you could bring up? What about his brother, Tamerlan, and the radicalization? Is it possible this could be a major defense for the younger brother? Will there be finger pointing towards the dead brother? And will it be effective? Could it be effective? We'll take a look at that in just a moment.


BANFIELD: There are still so many unanswered questions in the Boston bombing. And among them the exact relationship between the Tsarnaev brothers. They certainly seemed very different. In recent years we're told that the older brother, Tamerlan, had become increasingly radicalized after a trip to Russia. We're also learning that he had become combative in his own mosque during prayers, even got shouted down after an outburst during a sermon in the mosque. He was upset apparently over the speaker's comparison of the prophet Mohammed to Martin Luther King Jr. But friends say the younger brother, Dzhokhar, wasn't anything like that. In fact, he did go to prayers not as often but only with his brother. Here's how their uncle describes them.


RUSLAN TSARNI, SUSPECT'S UNCLE: Dzhokhar has been used by his older brother. He used him as his -- not even accomplice, some kind of instrument. And I say even if I were among spectators, he would not stop doing that.


BANFIELD: Joining me now is Tamar Birkhead, who is an associate professor at the university of North Carolina school of law. And also and perhaps more pointedly for the purposes of this conversation, she defended the shoe bomber, the so-called shoe bomber Richard Reed. I'm so glad to be able to speak with you today about this because obviously this had to be first and foremost on your mind what would the defense of this suspect be keeping in mind, Tamara, we don't have any of the evidence listed, we don't even have charges at this point.