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Boston Carjacking Victim Speaks Out; Philadelphia Abortion Doctor on Trial; Breaking News: Three in FBI Custody in Relation to Boston Bombing

Aired May 1, 2013 - 11:00   ET


CAROL COSTELLO, CNN ANCHOR: I'm Carol Costello. Thank you so much for joining me today. CNN NEWSROOM continues right now.

ASHLEIGH BANFIELD, CNN ANCHOR: Thanks very much, Carol.

Hello, everyone. I'm Ashleigh Banfield, reporting live in Boston, Massachusetts.

The last person to spend time with Tamerlan and Dzhokhar Tsarnaev before one of those brothers was killed and the other captured says that it was pretty clear who was calling the shots.

The carjacking victim who wants to be known only as "Danny" has recounted his ordeal with CNN and others. And my colleague, Susan Candiotti, joins me now with some really breathtaking details about what happened that night.

Take it from there and tell me what "Danny" is telling us that really sheds light on the investigation.

SUSAN CANDIOTTI, CNN NATIONAL CORRESPONDENT: That's right. Certainly a harrowing experience for him.

Picking up the ball from where you dropped off. This is -- he was being asked who -- to explain the family dynamic, who did he feel was the dominant brother? The older one Tamerlan or the younger one Dzhokhar?

And this is how he explained how he came to the conclusion he did. Let's listen.


MATT LAUER, NBC NEWS: Did you get a sense from the way they interacted with each other that they were equals?

"DANNY": I think Dzhokhar is like a follower.

LAUER: why do you say that?

"DANNY": Because Dzhokhar, he went out to the ATM. He went out to get the gas.

Tamerlan never got out of the car. LAUER: So he was the guy doing the errands?

"DANNY": Yeah, yeah.

LAUER: They loaded some things from that second car into your SUV, didn't they?

"DANNY": They did.

LAUER: What did they put in the car?

"DANNY": Actually, I had no idea at that time.

LAUER: You know now.

"DANNY": Basically, explosives.


CANDIOTTI: And you'll remember also he said that he was happy to be alive when he got out of that car, when he managed to escape, Ashleigh.

He had left behind his own cell phone, but authorities were also able to use the GPS tracking system on that SUV in order to find those suspects.

Now "Danny" is asking to be shot in silhouette because he is still concerned for his own safety, just in case there might still be someone else out there.

And, as well, he also anticipates being a witness in this trial as well ...

BANFIELD: Oh, I think that's ...

CANDIOTTI: ... of course.

BANFIELD: ... a good anticipation ...

CANDIOTTI: Yes, yes.

BANFIELD: ... given that he spent 90 minutes with these two and has some really telling information on the dynamics.

I guarantee that that's not an anonymity that will remain for long.

Let me also take you to the very wide net that has been cast by investigators, both on the state and the federal level here.

They're talking to friends of these two They're talking to Tamerlan's wife. But what else are they doing other than talking?

CANDIOTTI: Well, I mean, they're investigating, trying to take, of course, DNA samples. We know about that after finding female DNA on some of the bomb debris. We don't know whether they have made a match yet. And, of course, we're cautioned that even if they make a match it doesn't necessarily mean that that female actually constructed the bomb. They may have had nothing to do with it, or it might be a store clerk that touched it.

But these are all important clues they're trying to work on as well as we don't know whether they have yet identified a fingerprint that was also lifted from the bomb debris.

They're also talking -- have a high interest, according to our sources, in, for example, in students, the friends of the younger suspect, Dzhokhar, who went to school with him. In fact, they were so close they even bought an iPhone together because they didn't have enough to pay for one, so they shared it.

These are two young men who were -- spoke cooperatively with the FBI. However, they're being detained on student visa violations right now.

BANFIELD: So they're in custody?

CANDIOTTI: They are. As a matter of fact, we also just learned this morning from one of their lawyers that they had another hearing today and that will keep them in custody more.

Again, our sources tell us that the FBI still has a high interest in these two individuals.

BANFIELD: And must make clear as well, like you just said. They're in custody for something completely unrelated, but it does give them an ample opportunity to question them without having to do anything else.

CANDIOTTI: That's right.

BANFIELD; And the ball rolling.

CANDIOTTI: That's correct.

And ICE has also said that they have no direct role in the bombing itself.


CANDIOTTI: Our sources just tell us they still have a high interest in these men, nevertheless.

BANFIELD: Susan Candiotti, you've been doing some incredible reporting out here for us with your very highly placed sources. Thank you for that.

I also want to just touch on the issue that Susan alluded to and I just talked about it as well. The lawyers who are defending the Boston bombing suspect have a pretty incredible client list, effectively a rogue's gallery of high-profile bad guys. And one of the most notorious of Miriam Conrad's cases involves the "Shoe Bomber," Richard Reid. Some critics say that Conrad is like an enemy combatant herself, but truly is that fair?

This journalist-turned-lawyer says that she believes in the Sixth Amendment guaranteeing everyone a fair trial.

CNN's Jake Tapper has more on Dzhokhar Tsarnaev's defense team.


JAKE TAPPER, CNN CORRESPONDENT: When Dzhokhar Tsarnaev has his day in the court, he will be defended by some of the best lawyers in the business.

Only two weeks after he and his brother allegedly set off the bombs that took three lives and severely maimed so many others, the court has appointed a defense team with client rosters that read like a "worst-of-the-worst" list.

Meet Miriam Conrad, one of the country's best respected public defenders. A graduate of Harvard law school, Conrad has defended notorious clients for more than two decades.

This isn't even Conrad's first terrorism case. She assisted in the defense of Richard Reid, the so-called "Shoe Bomber" who tried to blow up a passenger plane in 2001 with explosives packed in his sneakers. Reid was sentenced to life in prison.

She also recently defended a Muslim American radicalized by online videos who plotted to fly remote-controlled model airplanes packed with explosives into the Pentagon and the U.S. Capitol. He pleaded guilty and was sentenced to 17 years in prison.

TAMAR BIRCKHEAD, UNIVERSITY OF NORTH CAROLINA LAW SCHOOL: Miriam is really committed to the cases that have no chance of winning, just as committed as she is to the cases that she could possibly win.

She's really hard working and cares a whole lot about her clients and really a determined, tenacious lawyer.

TAPPER: Tamar Birckhead, an attorney who also defended Richard Reid, worked with Conrad in Boston's federal public defenders office.

BIRCKHEAD: Miriam is extremely well regarded by the judges in Boston, as well as by the attorneys in the U.S. attorney's office, the prosecutors.

She has an excellent reputation and, combined with her own intellect and natural talents, she's a very effective attorney.

TAPPER: She will have her work cut out for her. Dzhokhar Tsarnaev is charged with detonating a weapon of mass destruction. If convicted, she could face the death penalty.

And, for that reason, prominent defense attorney Judy Clarke also has joined the team. Death penalty cases are her specialty.

Clarke has defended the Unabomber, Ted Kaczynski, Eric Rudolph, who was responsible for the Atlanta Olympics bombing, and most recently, Jared Loughner, who went on a shooting rampage in Tucson, Arizona, killing six people and severely wounding Congresswoman Gabby Giffords when he shot her in the head.

All of them escaped the death penalty, getting life sentences instead, an outcome Tsarnaev's attorneys likely will be pursuing if prosecutors decide to seek the death penalty.

BIRCKHEAD: The primary goal that Miriam is going to have is saving her client's life. And the first step towards doing that is making a connection with the client, establishing rapport so that he trusts her, so she can get the information that she needs from him, and so that ultimately he respects and listens to her legal advice.

TAPPER: Legal experts say a big strategy for the defense team right now is too delay until the American public is not paying as close attention.

Jake Tapper, CNN, Boston.


BANFIELD: And I now want to bring in my own high-powered legal team right here on location, Alan Dershowitz, no stranger to us and probably to you, world renowned litigator, author, Harvard law professor, and the Honorable Isaac Borenstein is also an attorney, a lecturer, a professor, a retired Massachusetts Superior Court judge. I'm thankful to both of you for coming out to speak with me on this.

There are so many questions I have for you. And let me just start with this one. We just heard from Jake Tapper, mentioning that Judy Clarke, renowned in legal circles for her incredible work, her incredible defense work. She's been brought on to this team.

We don't even have the death penalty on the table yet, but it is not the cart before the horse, is it?

ALAN DERSHOWITZ, CRIMINAL DEFENSE ATTORNEY: No, I think it tells us a great deal about what the likely strategy of the defense is going to be.

If this young man were going to put on a jihad defense -- I did it, I'm proud, I want to die, I want to join my brother -- Clarke would not be willing to take this case.


DERSHOWITZ: Yeah, she wouldn't take a case in which a political defense of that suicidal nature were being espoused.

She's in the case because she knows or expects that the defendant will say, I was young. I was influenced by my brother. I did it. I'm sorry. Please don't give me the death penalty. BANFIELD: But not I didn't do it. You've got the wrong guy.

DERSHOWITZ: You know, I don't think so. He could not take the stand and let the government put its case on, but I don't think we're going to see him get up there and say, I didn't do it.

He might say, I didn't know exactly what was going on. My brother ran the whole thing.

And then the hard question is, do you bring "Danny" in as a witness at the trial?

BANFIELD: Thank you for bringing that up.

DERSHOWITZ: Because remember this guy is not charged in the federal crime with anything involving the hijacking, the carjacking, or even the murder of the policeman, that way the jury gets to know about that in the guilt phase.

What might happen is they might not bring the "Danny" thing in during the guilt phase. Wait until there's a conviction and then bring "Danny" in only during the death penalty face to show that there were mitigating factors. Tough tactical judgments.

BANFIELD: Aggravating factors.


BANFIELD: Aren't those aggravating factors, what happened to ...

DERSHOWITZ: The state is going to say aggravating. The state's going to say, we now have the right to present the murder itself and the defense is going to say, but he had nothing to do with the murder. He was under the spell of his brother.

BANFIELD: So, Judge Borenstein, I want you to jump in on that because this is very telling information that "Danny" brings up today in his interviews.

Ninety minutes "Danny" spent with these two brothers and was very clear and very astute in his description that it seemed Dzhokhar Tsarnaev was in the control of Tamerlan Tsarnaev.

JUDGE ISAAC BORENSTEIN, MASSACHUSETTS SUPERIOR COURT (RETIRED): And that's powerful evidence both on whether or not he played a role in the commission of a crime and also it's helpful on the mitigation.

Even if he did commit a crime, his role is minimized by the testimony of this witness.

BANFIELD: Can I just play the devil's advocate with two far finer advocates than I am and that is this, if he can establish in other evidence that he was under the control of his brother, what's to say these fine defense attorneys that Jake Tapper just outlined for us aren't to say he didn't even know what was in this backpack. It was heavy and he was just told to drop it. It could have been a drug deal. It could have been (inaudible). It could have been anything.

BORENSTEIN: One of the important things going on right now is that we all need to avoid jumping to conclusions. We don't know what all the evidence is.

It may be that what happened with that carjacking is actually relevant to a number of other offenses that he will ultimately be indicted for.

I'm sure the two that he's charged with now are not going to be the only indictments.

So it may be that his role in the carjacking helps on whether or not he's guilty.

By the way, there's also another issue here, which is, even if he is guilty of something, he may not be guilty of what he's charged with. It might be a lesser included offense.


BORENSTEIN: So his role in that carjacking is very powerful evidence.

BANFIELD: And perhaps a lesser included offense doesn't carry with it that ultimate penalty of the death, death penalty.

BORENSTEIN: Exactly. Absolutely. They may not even carry life without parole.

DERSHOWITZ: But you asked about why not put forward a defense, I didn't know what was in -- but he did. And he's probably told his lawyers that he did know that there were explosives and a lawyer ethically cannot put on a defense that he knows is false.

So I don't believe we're going to see a defense of I didn't know what was in the box. I think we're going to see a defense of, I did it. I was influenced. I'm sorry.

I had a case a few years ago just like this where the main killer, the person who was in charge got killed, just like here, and the two people who were left over were two young kids. And they got the death penalty.

And I argued the case in the United States Supreme Court and eventually got the death penalty rescinded, but the dynamic was very, very similar to this one.

BANFIELD: It's a mitigation factor after the fact.

I have to wrap it here, but not before I ask, if you can do this in 15 seconds or less, the cost that we are about to look at in the next five, 10, or 20 years, if this is a death penalty case, the costs that we may face to defend this man. DERSHOWITZ: Well, there are two costs, financial costs, but also, if this man is sentenced to death, he becomes a martyr. His picture appears on every jihad recruiting poster.

What he deserves is -- if he is guilty -- is to be sent to an obscure prison somewhere in southern Indiana and spend the rest of his life in obscurity, not become a martyr.

BANFIELD: Fair to say, multi-millions to do both.


BORENSTEIN: The costs are enormous and they're worth it.

BANFIELD: Well, you know, you bring up a good point. There are so many arguments to be made. It's a whole other interview and I'll have to get you both back for that.

Thank you so much. Guys, thank you. It's always good to see you.

And then, coming up next, another case that is really quite remarkable for it's fact pattern, a doctor accused of horrible acts while performing abortions. And now the jury is the body that will decide his fate.

We're going to take you live to Philly next.


BANFIELD: Today in Philadelphia a jury is deciding the fate of an abortion doctor who is accused of the unthinkable. He is charged in the deaths of four babies and a 41-year-old patient. The trial was filled with gruesome testimony of babies allegedly killed with scissors. Deliberations are now in their second day. And joining me now is CNN legal analyst Sunny Hostin, who has also been covering this case.

This is a very emotional case. I can only imagine what the ordeal (ph) was for the jurors who are impaneled. Can you tell me what stage they're at, and what they are effectively to accomplish in their deliberations, what questions they need to answer?

SUNNY HOSTIN, CNN LEGAL ANALYST: Sure. They are on their second day of deliberations. They only deliberated yesterday about four hours. They started today a little bit after 9:30. They have a lot on their plate, Ashleigh. I did see this jury. They seem to be very cohesive. They are joking with the judge. There's a wonderful rapport between this judge and jury. One juror said yesterday before being dismissed for the day, she said we follow instructions. And so, they certainly are hard-working following instructions, but as I have mentioned, they have so much on their plate.

In front of me I have a list of charges because there are so very many. There are 19 charges just against Dr. Gosnell. Some of them containing about 200 counts. I think the most difficult question in front of this jury is whether or not Dr. Gosnell is guilty of first- degree murder in the death of four babies. Four babies. The prosecution is saying these are murdered children. The defense in this case is saying, no, these are aborted fetuses. They'll have to decide these four counts, because those are the death penalty counts in this case.

BANFIELD: But, Sunny, with all of the charges, and clearly there are so many facts to asses in this case, those critical charges that carry with them the death penalty, are the jurors trying to decide at this point if those babies were not delivered alive, or are they trying to decide there is something else afoot with disgruntled employees who may have testified falsely?

HOSTIN: Well, they haven't asked any questions. We're not sure where they're at in their deliberations, what they're struggling with. I've been speaking to a lot of people outside the courtroom, even people on the street. Everyone knows about this case. What most people are commenting on is the fact a lot of his coworkers pled guilty to third degree murder. Four of them testified against Dr. Gosnell --


BANFIELD: Sunny, I'm sorry. I have breaking news. I apologize for interrupting you. I've got breaking news from the Boston police department. They've just sent out this tweet that we have confirmed to be from them, and not a hacking. Three additional suspects have now been taken into custody, relative to the marathon bombings. Additional details to follow. Again let me repeat, this comes directly from the Boston police department that three additional suspects have been taken into custody in the marathon bombing case.

The details to follow. Alan Dershowitz, who is a world-renown litigator, author and Harvard professor, as well as the Honorable Isaac Borenstein who is a lawyer, lecturer, retired Massachusetts superior court judge remain with me. This is just breaking and I am very glad you are already here. I want to get your initial reactions to this. We just spoke before I interviewed you about others who were under investigation.

DERSHOWITZ: This could be a game changer. Obviously if there are other people involved and if the defendants in this case can provide information about the other people, we may learn far more about how extensive the scope of this alleged conspiracy may have been, but you know, we have to take it with an element of caution. We don't know if we were arrested for something they did after the offense or something they may have done prior to the offense, or during the offense. It can change the dynamic of any plea bargain that occur, any cooperation that occurs, or the dynamic of the any trial.

BANFIELD: And clearly we don't know who those are, those three. Judge Borenstein, we don't know --

BORENSTEIN: Ashleigh, we don't know the circumstances under which they are in custody. They may have consented to be interviewed. They may be under arrest. They may be under reasonable suspicion and brought in for brief questioning. We don't know the details. It is important they provide it, if they know something. BANFIELD: I mean when the police say three additional suspects, they call them suspects, taken into custody. Does that sound like someone going in voluntarily for an interview? Now, I've never heard that --

BORENSTEIN: No. But it sounds like they have something on three other individuals. They've obviously been working very hard. We don't know if they have given statements, we don't know if they've implicated the young man that was charged. It is a little early. Obviously it's an important development like Professor Dershowitz says.

BANFIELD: Let me just interrupt for a moment, I'm getting the breaking news as I'm speaking to you is these suspects who were taken in are now in the custody of the FBI. Game change again.

DERSHOWITZ: It is very important. There are three or four ways this could be relevant. It could be these are people who know about whether or not the older brother was trained in Russia, know about any connections between foreign sources, it could be people who helped them escape after the fact. It could be people who were actually at the scene. They actually did show the other day a picture of somebody at the marathon scene who some people thought might have been involved as well. Until we know more about when and to what extent, and in what way these people are involved, after all they are presumed innocent still, we won't be able to fill in the puzzle.

BANFIELD: I want to interrupt for one moment if I can because so much news is breaking as we're speaking. If you're just joining us, I want to welcome our viewers from around the world. This is CNN BREAKING NEWS. The Boston police department tweeting out three additional suspects are in custody in relation to the Boston marathon bombing.

Again three additional suspects are now in custody, and the Boston police department going one step further in telling us they are in the custody of the FBI. I am joined by Judge Isaac Borenstein here in Boston at Copley Square and Professor Alan Dershowitz, who are helping to shed light on just what if anything this might mean.

It's not as though it means nothing. It's massive. But clear to us, we don't know who these suspects are.

BORENSTEIN: The one thing we need to understand is that there is now pressure because of a federal criminal procedure to bring them quickly in front of a magistrate if they've been charged with anything, if they're in detention because of a felony. You'll know a lot more quicker than you would like you did with the young man who was arrested on a Friday night and they had him till Monday. To really tell you more in front of a judge.

BANFIELD: Get the ball rolling right away. Just one moment if you will, Susan Candiotti who has been breaking a lot of this news is available to shed some light on this. I know we have crews headed to the court house as well. Susan, what do you know?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, we're in the process of gathering more information right now to find out more about this. But, yes I have been the one that's been confirming that in fact the Boston police department put out information that the three additional suspects are in custody. But they are in the custody of the FBI, not the Boston police department.

So, naturally the next step is to confirm who these people are, being very careful about that. Everyone has been working sources and we are following certain people that we think may be involved. But the important thing is to make sure we find out who those people are. We are now in the process of working our contacts with the FBI. If these people are charged and since they are in custody, and that appears to be the case, the next step would be for them as you know as a lawyer to make their first appearance in federal court.

BANFIELD: Did you say they were charged? I didn't hear.


CANDIOTTI: No, I said we don't know yet. In custody.

BANFIELD: Okay. All right. If you could hold that thought for a moment, as we continue to send our troops to the courthouse to find out what they can as well. Obviously with all of this breaking, one of the conversations we were having before this news broke, again this is a tweet that came out and is confirmed from the Boston police that three additional suspects have been taken into custody relative to the the marathon bombings. More details to follow.

We were talking about these -- there were people who knew Dzhokhar Tsarnaev prior to these crimes. They had been brought in on immigration issues and were being held and had a court appearance this morning. I would only assume since they were in custody on something else, there's no need to bring them in related to these if it happens to be those people.

DERSHOWITZ: I think that's right, and I think the issue that's going to come up again is this old Miranda issue. Are they going to charge them right away? Are they going to put them into the criminal justice process? Are they going to bring them in front of a judge? Remember the last time a judge became involved, the judge gave the Miranda warnings and the interrogation stopped when a lawyer was appointed. These people may be seen more as potential witnesses than defendants and if so, we may not see the criminal process commence so quickly.

BANFIELD: But, Alan, witnesses you don't usually hear suspects brought in and arrested. You don't usually hear that in regards to witnesses (ph).

DERSHOWITZ: They may be suspects, but they still may be sources of information, and the FBI may decide -- this will create tension between the FBI and prosecutes as to how quickly to Mirandize them and lawyered up, how quickly to stop whatever interrogation is going on. That's going to be a very hard question, and it will create convict, as it often days, between lawyers and the FBI agents, the investigators.

BANFIELD: And - go ahead. BORENSTEIN: Can I just on the public safety to go back to that? About the only thing remaining that could possibly be argued about that is are there other coconspirators running out out there making threats? So we know where they are? Not are there bombs because it's now been quite a while for somebody to argue well there's still a hidden bomb. It's possible. We don't know about other explosives.

BANFIELD: If these suspects are considered to be those of the coconspirator nature, rather than say the harbored after the fact nature, there would be no public safety issue. There would be no additional 48 hours.

DERSHOWITZ: 48 hours is a myth.

BANFIELD: It's never been tested by the Supreme Court.

DERSHOWITZ: Never been articulated by the any court as far as I know. The public safety exception only operates when there is an actual public safety need, number one. Number two, the other thing is even if they never Mirandize them, even if they keep them without Miranda for three days, four days, five days, all it means is the evidence can't be used against them in a criminal case. There's no further sanction.

BANFIELD: Let me ask you this -- again I have to repeat this is a tweet that's come out. We are so low on details that we don't want to assume for a moment that we know A, who those suspects are, and B, what the charges may or may not be. If there is a lengthy period of time between the bombings and the shootout with the police, and the apprehension and the death of both of these brothers. If there's someone in that interim who helped these two, what kind of charges might he or she face?

BORENSTEIN: Accessory after the fact would be one.

BANFIELD: Is this a federal charge?

BORENSTEIN: You can charge someone with accessory after the fact to a homicide, to a bombing, to a use of a weapon of mass destruction, they assisted after the fact. You can also charge someone in federal court in assisting in the escape of a felon, someone who's committed a felony.

BANFIELD: Is that more serious?

BORENSTEIN: They're both very serious charges. Assisting a felon to escape is less serious than accessory after the fact of a murder. That's a much more serious charge, even in federal court and in state court, but we don't know. We're speculating at this point. They may be part of a conspiracy to having committed the bombings. We don't know.

BANFIELD: If there is any kind of harboring that went on, again, there's so much that's unknown about those four days other than one of these brothers was partying at his campus after the bombings were perpetrated. DERSHOWITZ: Well, and it's the one who we're supposed to be sympathetic to, the younger brother, who didn't seem to show any remorse or concern after it happened, but, you know, that's not a crime. That's just evidence of insensitivity. Accessory after the fact is not responsible for the bombing itself. It's a separate crime. If you're an accessory before the fact, or during the fact, then you are responsible for the deaths themselves. That's the big difference. And you can -- you can't get the death penalty for just being an accessory, but you can get life imprisonment for that.

BANFIELD: Is there also a strategy that's employed by authorities who might arrest a broad net of people in order to try to squeeze to the center of whatever alleged conspiracy might happen?

BORENSETIN: As long as they have probable cause to arrest them, sure. That is a strategy.

BANFIELD: And with the probable cause, I suggest this only because look there's very little information and any information can lead to larger leads whether they're overseas or here.