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Tamerlan Tsarnaev's Radical Conversion; Judge Visits Suspect's Hospital Room; Potential Evidence Against Bomb Suspect; Suspect Charged with Using WMD; FBI Under the Microscope.

Aired April 22, 2013 - 13:30   ET


ASHLEIGH BANFIELD, CNN ANCHOR: But I'm curious to know if you would think right away that this now-dead, alleged co-conspirator, older brother might factor heavily into a defense of Dzhokhar Tsarnaev.

TAMAR BIRCKHEAD, ASSOCIATE PROFESSOR, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW & DEFENSE ATTORNEY: Yes, he very well could factor in terms of a defense of duress, in terms of a defense of knowledge. It's not clear at all at this point whether Dzhokhar knew the ramifications of what he was doing, or knew what, if anything, was in the backpack that he was carrying. We don't know what his brother told him. We don't know what he agreed to. We don't know if he felt under pressure or threat from his brother or from others. All of these are open questions that will need to be explored.

BANFIELD: And, Tamar, this is one of the issues I wondered right away. When the statements were made that there's evidence of video of Dzhokhar dropping a backpack and walking away callously, that is a very, very specific piece of evidence if, in fact, it's true. Would that be the argument that a defense attorney, perhaps someone like you, would think of right away? Does he even know what's in that backpack, given the kind of person we now know his alleged co- conspirator to have been?

BIRCKHEAD: Absolutely. You know, knowledge, as I said, will be a key element here. And it will be something that the U.S. Government is going to have to prove beyond a reasonable doubt that Dzhokhar knew what he was doing, that he understood what he was doing and that he had the intent to carry through very specifically with these acts. And just because there happens to be video of him putting down a backpack, at this point I don't think it's even clear that that specific backpack can be conclusively connected to the explosions.

BANFIELD: We don't know that. All we know is what the Governor Deval Patrick said. He indicated that there's a clear image of him dropping a backpack, casually walking away and though to his knowledge he hasn't seen the video but briefed on it, that backpack exploding. You are absolutely on the money when you talk about beyond a reasonable doubt. That's what juries want especially if there's a death penalty that comes attached to these sorts of things.

Tamar Birckhead, thank you for your expertise on this, as we look forward to what exactly this suspect's going to be charged with and how he will be defended. Someone is going to do that. Explosions and explosive materials, guns, all of these things possible evidence, not to mention potential hard drives, evidence in the Boston Marathon bombings. Our legal team is going to dig into it, what it means and what it could lead to, all coming up.


BANFIELD: I'm Ashleigh Banfield, live, reporting in Boston.

And some of this breaking news we want to get to about the Boston bombings, the suspect in the bombings is currently in a hospital room, has made an initial appearance actually from that hospital bed. It happened in front of a federal magistrate judge. We don't know exactly what was said. In fact, what's key about this is it's under seal. It's important to note it doesn't constitute an arraignment officially.

But we also have breaking news that the White House press secretary, Jay Carney, has released to the public now that this suspect is not, and I repeat, not going to be treated as an enemy combatant. So it is civilian justice all the way at this point. And certainly the machinations of it are underway.

Also what's critical, at first glance, the evidence against the suspect Boston Marathon bombers seems so widespread and so massive and the crime scene is still being examined. And the crime scene is still being examined.

Just a couple of examples, though, before we even have the official list. They allegedly told or at least one of them allegedly told an owner of an SUV that they, again allegedly, hijacked -- that they were the ones who allegedly carried out the Boston bombings. The Boston police commissioner says he believes the brothers were planning more attacks. He says that based on the evidence found at the scene, explosive ordinance and guns and explosive devices.

Also the older brother, Tamerlan Tsarnaev, was killed in a gun battle with police in which 200 shots were fired. Police say Tamerlan was also wearing an explosive device on his body. Tamerlan Tsarnaev, the dead older brother, also created a YouTube channel with links to videos under a category that was labeled "terrorists." All of this, official and technical evidence that can be used against them.

Joining us for more on the defense of this now-suspect who's in the hospital room is defense attorney, Danny Cevallos; and also Tom Fuentes, the former FBI assistant director and CNN analyst.

Before I begin, I want you to listen both on what Governor Deval Patrick said about -- on NBC's "Meet the Press" about the specific video I brought up last segment with the defense attorney about what the video shows the younger brother, who was seen carrying a backpack and putting it down. Again, this is the younger of the two brothers who is alive and in the hospital bed. And specifically what the governor said he has heard about with regard to video. Have a listen.

(BEGIN VIDEO CLIP) DEVAL PATRICK, (D), GOVERNOR OF MASSACHUSETTS: It does seem to be pretty clear that this suspect took the backpack off, put it down, did not react when the first explosion went off, and then moved away from the backpack in time for the second explosion. So pretty clear about his involvement and pretty chilling frankly.


BANFIELD: So I want to be very clear again that the governor has not seen -- he says he hasn't seen the video himself but that he was briefed about the contents of the video. Obviously, this will become critical evidence.

Danny, I want you to weigh in on this also as a defense attorney. You heard what Richard Reed's attorney said about that video. While it may seem very damning, it could also be proven to be rather innocuous if he didn't know what was in the backpack. Your thoughts?

DANNY CEVALLOS, DEFENSE ATTORNEY: Yes, that's exactly right. I've been saying from the beginning, when you have two defendants, you better believe, if both were still alive, the defense would be, he did it. They're both going to point at each other. In this case, he has a better defense, better being a relative term, by saying, hey, the dead guy, he did everything. I was an unwitting victim and there's nobody around to say otherwise. That, I predict, will be one of their main avenues in this defense of an otherwise very difficult case for the defense.

BANFIELD: And, Tom Fuentes, the crime scene and then subsequent crime scenes -- because there was this extraordinary exchange of ordinances and gunshots the night before this suspect was taken into custody and the apartment where it's been reported a number of explosive devices were found. I would like to ask you, as a former FBI officer, would know about the kind of interrogation going on right now at the bedside of this suspect, specifically this high value detainee interrogation group comprised of CIA, FBI and others.

TOM FUENTES, FORMER FBI ASSISTANT DIRECTOR & CNN ANALYST: Well, they're trying to determine if there are any other explosives out there or any other conspirators.

To the extent he's able to communicate, we just don't know. Again, we also don't know positively that he was or was not given Miranda. If he was given Miranda, the defense attorney is going to say later he was under sedation taking narcotic drugs, so he's unable to make a knowing waiver of Miranda rights.

Secondly, he's got tubes and wires and beepers and monitors all over his body. He could say that constitutes duress, and I knew that if I didn't cooperate they would disconnect that and let me die. Whether he gets Miranda or doesn't, that's kind of a ridiculous point at this point.

Going back to the backpack and linking that --

(CROSSTALK) BANFIELD: Breaking -- Tom, Tom, let me just break in for a moment. I've got some breaking news.

The attorney general, Eric Holder, has now announced at least what one of the charges against Dzhokhar Tsarnaev, 19 years old and U.S. citizen of Cambridge, is going to be charged with at this point. He's been charged with using a weapon of mass destruction against persons and property at the Boston Marathon resulting in the death of three people and injuries to more than 200 people.

Let me just continue to read as I'm getting this breaking news. In a criminal complaint resealed today at the U.S. district Court in the district of Massachusetts, "Tsarnaev is specifically charged with one count of using and conspiring to use a weapon of mass destruction, namely an improvised explosive device, or IED, against persons or property within the United States resulting in death. And one count of malicious destruction of property by means of an explosive device resulting in death. The statutory charges authorize a penalty upon conviction of death or imprisonment for life or any term of years. Tsarnaev has had his initial court appearance today from his hospital room."

Critical that we just heard the attorney general, who was the person who was going to have to make the call as to whether the feds were going to seek the death penalty, it appears rather clearly -- Danny Cevallos, weigh-in on this -- that's the call. He will face the death penalty for at least those explosives and weapons of mass destruction charges, correct?

CEVALLOS: Yes. And that was the predicted charge. That weapons of mass destruction, that will qualify him for the needle, the death penalty. And that is an expected charge. And there will be a number of charges underneath that, lesser included or lesser charges. But that charge will qualify for the death penalty. And a lot of people are saying, well, Massachusetts, they don't have the death penalty. That doesn't really matter. That's the state legislature. But the federal death penalty could potentially apply anywhere and everywhere.

And in this case -- believe me, a big issue in this case is, every moment that we're in right now, the language, the words that he's saying or not saying may end up saving his life or not, because that could later on be a bartering chip for the death penalty coming off the table. If he has more information that the feds are interested in, if he gives everything up at this stage, he is now -- has a very weak negotiating hand. So these days and hours here, whether he's speaking or not, will ultimately be critical, not in the case against him because that's probably a win for the government, but in his ability to negotiate whether he lives or gets the needle.

BANFIELD: I want to bring in Professor Dershowitz, Alan Dershowitz, and also our senior legal analyst, Jeffrey Toobin, as well.

Let me just repeat for those who may be tuning in, the U.S. Attorney general Eric Holder has now announced that Dzhokhar Tsarnaev, 19 years old, a U.S. citizen from Cambridge, is charged with using a weapon of mass destruction against persons and property at the Boston Marathon. And he is also being charged with one count of using and conspiring to use a weapon of mass destruction, namely an improvised explosive device, or IED, against persons and property within the United States resulting in death. Also one count of malicious destruction of property by means of an explosive device resulting in death. Those statutory charges authorize death or possible imprisonment for life or term of years.

Professor Dershowitz, to you, those sound terribly similar to the charges Timothy McVeigh was charged with. I recall in the 11 charges he was tried for, use of mass destruction, conspiracy to use mass destruction, destruction with the use of explosives and eight first- degree murder charges for those federal officers. I am assuming you are not surprised by what Eric Holder has decided to do.

ALAN DERSHOWITZ, PROFESSOR, HARVARD LAW SCHOOL: No. I'm actually reading the affidavit right now. I have it here in front of me. And it's a very specific affidavit by the FBI lead agent that specifies all the evidence against this defendant, that he placed the knapsack down, that it blew up. And in terms of the elements of the crime, the specific factual elements of the crime, they seem to have an overwhelmingly compelling case.

Where I think the problem may come up is in how you infer intent to violate the terms of the statute from this. And I think they probably won't have a difficult time. Based on what I've just read in the affidavit, they seem to have a pretty, pretty ironclad case.

So my prediction is this case is not going to go down like an ordinary criminal trial, where the defendant says I didn't do it, and the prosecution has to prove it beyond a reasonable doubt. There will either be a plea bargain in which he will exchange information about possible terrorist cells or training to save his life, or he'll want to be a martyr and he'll admit and indeed boast the fact he did it and try to justify his actions under kind of extremist jihadist principles. I don't think we'll know the answer to that question until a lawyer meets with him in private and he tells the lawyer what his intention is and the lawyer warns him of the consequences and advises him perhaps to make a plea bargain. That's the way this case is going to go down. It's not going to be a conventional whodunit trial.

BANFIELD: And they have very different philosophies. But effectively, what you just said is what Timothy McVeigh decided to do. He waived his rights. He chose not to continue his appeals and be executed earlier than he would have been otherwise. I think, by my count 17, 18 years ago.

Now, Jeffrey Toobin, I want to bring you in on that issue of a potential plea deal, but not before I just read a little bit more of Eric Holder's statement. And that is --


BANFIELD: Yes, go ahead.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Ashleigh, I just want to make clear something. I think we could have left a misleading impression what we've been saying for the last half hour. The government has not decided to seek the death penalty here. The crime here is potentially one where the government could seek the death penalty, but there is a formal review process that goes on in the Department of Justice where Eric Holder ultimately makes the judgment about whether they are going to seek to execute this guy. This is not the decision that's been made yet. This is still a very early part of the process. The case hasn't even been presented to a grand jury yet. So the government has not decided to seek the death penalty. It may well. That may happen. But this complaint does not represent that decision.

BANFIELD: The wording --


BANFIELD: Go ahead.


TOOBIN: I just want to make clear this complaint does not mean the government has made up its mind on the death penalty.

DERSHOWITZ: You're absolutely right.

BANFIELD: OK. And then, I wanted to just continue with some of Eric Holder's statement. "Thanks to the valor of state and local police and dedication of federal law enforcement and intelligence officials and the vigilance of members of the public we've once again shown though who target innocent Americans and those attempts at terrorizing our cities will not escape from justice. We will hold those responsible for this heinous act accountable to the fullest extent of the law."

So to the same question about death penalty -- and, Alan Dershowitz, I would like you to weigh-in. Is it not an extraordinarily valuable bargaining chip whether you have the -- whether you want to actually carry it out or not. Just to attach the death penalty to charges in a prosecution, doesn't it carry an enormous amount of weight if you do want to seek any kind of plea deal or get further information about co-conspirators?

DERSHOWITZ: Well, it depends on the defendant's views. If he sees himself as a martyr, if he sees himself as someone who wants to die -- there were some reporting earlier on that he wrote a note in the boat saying that his brother is with Allah and he should be with Allah -- if that's his interpretation, if that's his desire, then the death penalty may prove the opposite. It may serve as a disincentive to cooperating. He may say, I want to get the death penalty, I want to be a martyr, I want to be somebody who others can look up to and emulate, and the death penalty may backfire in a case like this.

BANFIELD: And, Jeffrey Toobin, regardless of what anyone's morale -- you know, morality is regarding the death penalty, is this not, if the United States, the various different states that do actually use the death penalty, is this not the kind of crime that the death penalty exists for?

TOOBIN: Well, that is certainly an argument that prosecutors always make to the jury in a case like this. If not for this, when do we have the death penalty? Indiscriminate murder, murder of a child, murder of, you know, in a completely random and completely random way, solely for the desire to -- you know, there was no financial motive here, this was simply a desire to kill, you can sort of start -- do the summation in your head for how it might work before a jury.

But, again, I think it is really worth remembering, it is still very early in the process. There is a lot we don't know about the relationship between the two brothers, about how this crime was planned, how it went down, what the -- what the varying culpability of the dead brother and live brother are. Just a lot we don't know at this point.

BANFIELD: And, Alan Dershowitz, I think I recall reading something you said, I believe, in "The New York Times" this weekend, about any jury who would look at a video of a suspect putting an explosive device in front of an 8-year-old boy, a bomb loaded with shrapnel and nails, and allowing it to explode, that that is an extraordinarily powerful piece of evidence. And, again, it goes to the same question, isn't this the kind of crime that the death penalty was actually offered for? But at the same time, would you expect Eric Holder to do anything less than actually seek the death penalty, given the outrage in the state, the town and the country?

DERSHOWITZ: I would not. What he has going for him, though, is he's young, he's 19, he has a kind of angelic face, and Americans love people with angelic faces, whether it is Amanda Knox or this young man. I don't want to make a comparison between them. But we somehow have this approach that if you're pretty and angelic, you probably didn't do it, or you didn't do it with an intention, or maybe your brother made you do it, or maybe you deserve some mercy. I think people should put that aside. How people look has no relationship to their culpability, and they will focus on the videotape of him putting that bag down near an 8-year-old child, knowing full well what was in that bag.

One of your previous commentators said the defense might argue he didn't know what was in that bag. Total nonsense. He went back to his school the day later, he partied. At that point, he knew what was in the bag. There will be no difficulty proving that he intended to kill as many people as possible. He knew what was in the bag. And the jury will take that into account. So I think if you had to predict the outcome, I would predict the death penalty, unless he has a lot of good information about his brother's contacts and other people, and that can be traded for his life.

BANFIELD: All right.

And I just want to draw attention to the pictures on the right-hand side of your screen. This is a live picture. I believe this of the Copley Square where the investigators are continuing to process the crime scene, where those explosions went off. We have been told that there is a plan for reopening this area downtown Boston as quickly as possible, hopefully, within just a couple of days. But it is a massive, massive crime scene. And this is a specific, very specific kind of case. They do not want to leave any kind of stone unturned. They're sorting through some of the garbage bags. If I can look closer at the monitor, sorting through the garbage bags and public garbage cans in that area. Those explosions blew some of the debris up into second and third-story windows as well. And they have been picking pieces of evidence out of every nook and cranny they can. So it is a painstaking process. You can see some of it live playing out on your screen. But they did say that they would like to try to wrap this up, you know, in just a couple of days and try to reopen Copley Square and the surrounding area.

Coming up next, the FBI also now under the microscope. What did the FBI know about Tamerlan Tsarnaev? And should they have known that he was capable of an attack like this, given the warning they got and the questions they asked? We'll take a closer look at that.


BANFIELD: Welcome back. I'm Ashleigh Banfield, reporting live in Boston.

Breaking news. Again, more information coming to us regarding the charges that the suspect in the Boston bombings is now facing and his reaction to hearing those charges from his hospital bed.

Joining me now is CNN crime and justice correspondent, Joe Johns.

What have you learned about how Dzhokhar Tsarnaev has responded to hearing these charges?

JOE JOHNS, CNN CRIME & JUSTICE CORRESPONDENT: This is pretty interesting stuff, Ashleigh. These are the clerk's notes from the proceeding held before the magistrate. We now know her name is Maryann Bowler (ph). An initial appearance in federal court.

According to this, when the defendant was advised of his charges, the defendant declined to answer bail questions. He assented to a probable cause hearing, which is supposed to occur on may 30th of this year. And it also says, interestingly, "The court is satisfied that the defendant is alert and able to respond to the charges." So that would suggest to us that this defendant actually understands what's going on here. And we do know that he has been communicating with authorities who have been asking simple questions. So that adds to the knowledge a little bit, Ashleigh, of what is going on in that hospital room.

BANFIELD: But, Joe, still that critical question, has he assented to the Miranda rights? Has he asked for the attorney? Has he retained counsel at this point? Do we know any of that?

JOHNS: We don't know any of that. But when you appear before the magistrate, usually you are advised of your rights. That's part of any criminal proceeding. So it's highly likely that he was at that point.

BANFIELD: All right. OK.

Joe Johns, thank you very much.

We're out of time. Thanks for joining us here. Brooke Baldwin and Jake Tapper coming up next.