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CNN NEWSROOM

O.J. Simpson Back In Court; Cell Phone Captures Rescue; Kidnap Suspect's Brothers Speak Out; Holmes Pleas Insanity; Dury Hung on Gosnell Case

Aired May 13, 2013 - 13:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


SUZANNE MALVEAUX, CNN ANCHOR: Some good news.

MICHAEL HOLMES, CNN ANCHOR: At last, yes.

MALVEAUX: I like that. That's it for us. Thanks for watching "AROUND THE WORLD." CNN NEWSROOM starts right now.

HOLMES: See you tomorrow.

ASHLEIGH BANFIELD, CNN ANCHOR: You're watching CNN NEWSROOM. I'm Ashleigh Banfield reporting live and we begin with one eye squarely on a Las Vegas courtroom. That's because O.J. Simpson has made an appearance back in court. I want to take you live to that courtroom right now.

The reason that Simpson is there is he is asking for a brand new trial. He's challenging that 2008 conviction that he got for robbery, assault and kidnapping in Vegas. And his grounds, the advice from his attorney he says was bad. You might remember it was his murder trial back in 1995 that kept millions of people riveted to their television screens.

And then after more than a decade of golfing and hanging out in Vegas and basically flaunting his refusal to acknowledge the judge in the civil trial from the Goldman family, he then ends up on surveillance tape at a Vegas hotel. This was the beginning of the end. He was back there to take what he says was his own memorabilia back. But that effort landed him in court again, which ended in a 33-year prison sentence.

And the two trials were so different. One of them, an acquittal, and the other a conviction and a brand new set of clothing for O.J. Simpson, one he would wear for the next four and a half years. A blue prison jumpsuit. We're going to get to the legal angle in just a moment but first joining me on the phone is Tom Riccio who wrote a book about the Simpson case. I have this here "Busted." This was in Vegas. He was also the man who set up that memorabilia meeting, he secretly recorded the whole thing. It was huge evidence in this trial. O.J. Simpson and his attorney, he -- O.J. Simpson says that his attorney said all of this was OK. To go back and take what he thought was his own stuff. That is O.J. Simpson's contention. Tom Riccio, can you hear me?

THOMAS RICCIO, AUTHOR, "BUSTED": Well, Ashleigh. How are you? BANFIELD: It's good to talk to you again. So, here we are again four and a half years later, you and I talking about this very case. You were in that room the day that all of this happened and now O.J. Simpson says his lawyer had told him beforehand that all of this was OK. Did he ever tell you that?

RICCIO: I heard about that. I wasn't there when his lawyer told him -- if he, in fact, his lawyer told him it was OK. But I never heard that as a defense that someone told me to do it. But, hey, you know, you can't blame him for trying, right?

BANFIELD: But what about Yale Galanter and you? I know you had a relationship with him. Did he ever suggest to you at any time that it was OK to go into that hotel room and get back what O.J. thought was his?

RICCIO: I didn't have that kind of relationship with him. You know, it's kind of convoluted but if there was somebody claiming to be his agent who was in that room, it was kind of a crazy guy. And Yale told me that he wasn't his agent. And that's about it. I really didn't know Yale that much before the incident. And I wasn't there, you know, when -- if, in fact, he did tell him it was OK. But I can't imagine him telling him it would be OK to go up in my room with guns and everything else and even if someone did say it was OK, I mean, I can't imagine that as his defense.

BANFIELD: And what about the second prong of what Mr. Simpson is now alleging in this courtroom? And we're looking at the pictures live as we're speaking to you, Tom. He says that he wasn't told about any kind of plea deal. There were a lot of you this that room. There were a lot of you who were involved in the original takedown shakedown. What about the notion that there could have been a plea deal like others got? Do you believe Mr. Simpson?

RICCIO: Again, I mean, I wasn't there when Yale told him if, in fact, he did tell him about that. I can't imagine, you know, a lawyer getting an offer from a D.A. and not bringing it to his attorney. If, in fact, that did happen, I would think he has a beef, he has a case.

BANFIELD: And Mr. Riccio, you got immunity, you didn't have to go through any kind of prosecution. The others who were in that room were prosecuted, but there were deals that were made. And for the other person who got the most serious sentence alongside of Mr. Simpson, his trial was thrown out because it was ultimately deemed unfair that he be tried beside such a famous man. Do you think that O.J. Simpson, in all the retrospect that you have in all of this, got a raw deal?

RICCIO: Well, you know, I mean the deal I made with O.J. was he was crying to me on the phone telling me this is not memorabilia, these are personal mementos. He came up with the plan, it wasn't me, to say, hey, we got a buyer, let's go up in the room, make sure the stuff is mine. We'll tell them it's mine. And, you know, if they don't give it back to me, let's let them know, either give it back or we're calling the police. He made it clear there wasn't going to be any violence, no, you know, rough housing, anything. They were either going to, you know, turn it over to him, or they were going to call the -- and actually his plan worked. For the first minute, the people were like apologizing to O.J. and pushing the stuff back and saying his agent gave it to them. And then -- and then, all of a sudden, O.J.'s goons pulled out the guns and turned it into an armed robbery. And that's why, you know, he's in the situation that he's in now. Whether he knew about these guys having guns or not, again, that's a whole other can of worms there.

BANFIELD: All right. Tom Riccio, thanks so much for taking the time to speak with us. It's hard to believe we're back together again on the air discussing O.J. Simpson five years after the fact. But Tom Riccio joining us live as we watch live what's going on in Vegas. And I also want to bring in our CNN Senior Legal Analyst Jeffrey Toobin, who also I can't believe you and I are --

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Five years, how about almost 20?

BANFIELD: Yes, well there's that as well and then there's the other on between, right? The civil -- so, let's talk about what this means, what we're seeing in this courtroom today. O.J. Simpson, since the get-go, since being sentenced to this, I believe, nine to 33-year sentence has been challenging all along with Yale Galanter, the attorney he's now accusing of being, you know, -- you know, the problem. He's suggesting it's ineffective assistance as his council. Yale Galanter has fought for him, has fought (INAUDIBLE), has fought many parts of this process. Is this what we call the typical Hail Mary, your last-ditch attempt?

TOOBIN: This is usually a last-ditch attempt of a client who is run out of all legal options, is basically to turn on the lawyer and say that the lawyer did a bad job. Yale Galanter, as you pointed out, represented him at trial, represented him on appeal, the Nevada Supreme Court affirmed his conviction in 2010. This is really all he has left, turning on Galanter. But courts are very, very reluctant to overturn convictions on the basis of ineffective assistance. And everything I know about this case so far, and, again, there's -- we will learn more in the course of this hearing, but everything I know so far suggests that he will not get this conviction overturned.

BANFIELD: And let's talk about what it requires. It's that man's word, it's O.J. Simpson's word right now on two prongs. Number one, he claims that his attorney told him it was OK to go up and raid that hotel room before the crime was actually committed. And then number two, he says his attorney never informed him of any plea offers that came from the prosecution. You have to provide some kind of evidence other than just your word, don't you?

TOOBIN: Correct. And both of those claims seem so self-evidently preposterous, one, that Yale Galanter, a respected Florida attorney would say, oh, go ahead, with guns, and try to take this property back. It just seems absurd on its face. Second, the idea that Yale Galanter would not mention plea negotiations to his client, just why would he do such a thing? What -- why was that in his interest? Again, it seems like it doesn't make any sense. But as the evidence comes out in this hearing, let's say -- let's see if O.J. Simpson can make that case. Even if he can make those cases, it's not entirely clear he'd get his conviction overturned either. The standard is very difficult. The Supreme Court says it's not that an attorney could have done a better job. That's not ineffective assistance of counsel.

BANFIELD: Right.

TOOBIN: What ineffective assistance of counsel is basically like you had no lawyer.

BANFIELD: The technical important part.

TOOBIN: That there was no assistance of counsel at all. And that's going to be --

BANFIELD: For a great --

TOOBIN: -- a very difficult standard to make.

BANFIELD: -- failing as I've seen in other cases. A terrible failing or miscalculation of that law.

TOOBIN: Right. But that is equivalent to having no lawyer at all. That's basically -- Sandra Day O'Connor wrote a famous opinion saying that's what ineffective assistance of counsel means. It's as if you had no lawyer at all.

BANFIELD: Which is a pretty high standard.

TOOBIN: Yes.

BANFIELD: Don't go too far because in 2017, he's up for parole, so we may be having a conversation in just a couple of years.

TOOBIN: I suspect we will.

BANFIELD: And we're certainly going to be talking about it more about it this week. Jeff Toobin, thank you for that.

This hearing will go on throughout the week. There's going to be testimony possibly from one or two of his attorneys. But we're waiting to see whether that's going to happen. And the other possibility, testimony from O.J. Simpson himself, might he actually take the stand? He didn't in the criminal trial. Might he take the stand now? We're going to keep following that in a moment.

Also coming up, we want to show you some cell phone video, really quite dramatic from the day three women were rescued from a house of horrors in Cleveland. The House where Ariel Castro allegedly held these three young women, Amanda Berry, Gina DeJesus and Michelle Knight, for approximately a decade.

(COMMERCIAL BREAK)

BANFIELD: We are getting a brand new look at the chaos that ensued in the moments around the rescue of those three women in Cleveland one week ago today. Take a look at your screen. Two young women who they -- who thought that they were being pulled over by the police wound up witnessing this. In fact, they just happened to be driving on Seymour Avenue in Cleveland last week when officers started to storm the house that the suspected kidnapper Ariel Castro. This is their cell phone video taken as the first police arrived at the house where Amanda Berry, her daughter, as well as Gina DeJesus and Michelle Knight were all kept for the last decade. Just remarkable that they caught that very moment.

I want to bring in my legal team, joining me in New York is CNN's Legal Analyst Jeffrey Toobin. And in Philadelphia, we have Defense Attorney Danny Cevallos. We are going to have this exclusive remarkable interview of the two brothers of Arial Castro, Pedro and Onil Castro, coming up in the program. But police made a statement about their innocence before they even arraigned Ariel Castro. Jeff Toobin, something just seemed so very wrong about presenting these three people all together, photographing them and releasing their mug shots to the public and arresting them all at the same time and then all of a sudden realizing perhaps they've made a mistake. Did they make a bigger mistake than they think?

TOOBIN: Well, I just don't understand why the Cleveland police felt obligated to issue a definitive statement so soon in the process. Perhaps it is true that these two brothers were innocent in this whole thing and victims in a different way, but there is no reason for the Cleveland police to make such a categorical statement so early in the investigation before any physical evidence had been analyzed before the three victims had been fully debriefed. It just seemed to me absurdly premature for the police to do that. And it is just one of many questions about the performance of the Cleveland police --

BANFIELD: Well, can I play the devil's advocate?

TOOBIN: -- over the past 10 years.

BANFIELD: Let me play devil's advocate. You bring in these three guys. And then, ultimately, as you just mentioned, there was a debrief, there was an instantaneous debrief of one or more of these victims. If they said they knew nothing about these two men, wouldn't it be in the interest of everyone, including those Castro brothers to clear them as soon as possible?

TOOBIN: No. This is too big a crime and too complicated a crime to make that sort of categorical statement at this point. I'm not saying they should be arrested. I'm not saying they should ever be arrested. But there is never a problem with being somewhat cautious and saying the investigation is continuing and we have not resolved this question yet. They don't know what further evidence is going to come out at this point. They don't know what the three victims are going to say. There is no reason to issue such a categorical exoneration.

BANFIELD: So, Danny, these men have said that their lives have been completely upended by their brother whom they say they truly didn't even know at all. They say they have had their lives threatened, their homes have been robbed and they haven't been able to return to those homes because of the backlash they have suffered as just being related to him and then having people connecting them to the crime because of the photographs. Do they have any recourse if in fact they have nothing to do with this?

DANNY CEVALLOS, DEFENSE ATTORNEY: You know, it's a good thing that you raise this issue because this case opens a dialogue about a big problem in America. And that's arrest first, ask questions later. And in this case this is a perfect example. These men not only were arrested, but they made it to a first court appearance where they were photographed. And that went out to the world. And people need to be aware of the collateral consequences of merely an arrest.

The reality is in most cases -- well, in all cases constitutionally the police need probable cause to arrest. Practically, anyone in a high crime urban area will tell you that a car stop where one is arrested just out of safety they're going to arrest everybody else in the car. And that one arrest gets transferred to many databases.

So for even a regular civilian whether the case is big or whether the case is small, a single arrest has a butterfly effect beyond the simple criminal process. Now, both state law and federal law provides remedies to those wrongfully arrested, but as long as the police articulate some kind of probable cause, even if it's later to be proven wrong, as long as they supposedly acted in good faith, then those cases are very difficult to win. It's very important this case highlights a not only some of the main issues, but some of these side issues relating to people who are arrested without probable cause. The worst case is that his brother was in the car with him. There was no evidence other than him being his brother and being with him. But that's the reality in America is that if you're in the same car, you're getting locked up.

BANFIELD: I'm going to play devil's advocate again only on the side of police at this point, we don't know that yet, we don't know what it was that gave them any kind of cause to bring the other two men in. And I suppose in the coming days and months we will probably learn more about that. Both of you, thank you for your insight. I don't think it's the last we're going to have this conversation.

I want to just turn for a moment if I can to another very prominent case, the trial of a controversial abortion doctor in Philadelphia. He is charged with killing a patient and then killing four babies allegedly born alive. He is charged with hundreds more things as well. And today a jury who has been working so hard has found themselves at a dead end over two issues. We're going to tell you what's happening there in a moment.

(COMMERCIAL BREAK)

BANFIELD: Couple more high profile cases that we're following. And we want to update you on. The first one I want to take you out west to Colorado. It is the movie theater massacre case. The judge in that case says he is going to allow that man, the suspect in the case, James Holmes, to change his plea from not guilty to not guilty by reason of insanity. The judge does say that he's got to do a few other things, rule on a number of other legal issues in the case before officially accepting that plea that could come possibly later this month. You may remember that Holmes is accused of killing 12 people and then injuring 58 others after allegedly opening fire at the premiere of the Batman movie "The Dark Knight Rises." That was last July. Stay with us for more on that case.

And now, seems to be whiplash today, a major case under deliberation right now. The abortion doctor and the trial in Philadelphia, talking about Dr. Kermit Gosnell. The jurors have told the judge in that case just this morning that they are hung. Before you get upset about this, they are only hung on two counts on this case and they are considering hundreds. So the judge told them to go back, work harder, try harder, get a verdict. This is not unusual. This happens all the time.

There are a total of 19 charges at this point in this case that they're looking at, 263 counts in total that this doctor is facing. Gosnell's accused of killing four babies who were allegedly born in botched late-term abortions. And then he's also charged in the death of a woman who authorities say died during a second trimester abortion and some of the aftercare.

Sunny Hostin is covering the case for us and she's live with us now from Philadelphia. I don't even know where to begin. Is it possible, Sunny, to even know which of the hundreds of questions that these jurors have to deal with that they may be hung up on?

SUNNY HOSTIN, CNN LEGAL ANALYST: We don't know. We have no idea which two counts they're hung on. We don't even know which defendant they're hung on, Ashleigh, because Dr. Gosnell also has a codefendant, Dr. O'Neil, that he has been tried with. We're not sure.

But I can tell you that the courtroom is a very different courtroom today. You know, I've been here about two weeks. This is my third week. It's the jury's tenth day of deliberation. It's a very, very tense courtroom today. The defense attorney who's normally very, very jovial is very serious today. The prosecutors are very serious today. And the courtroom is very crowded. We are getting the sense that the jury is very close because as you mentioned they're only hung on two counts, there are 263 counts in this case. So they've been working very, very hard on this case. But we do think that perhaps that they're pretty close.

BANFIELD: I think this is over a week now at the last time we began our conversations daily on this, Sunny. If you could clear this up for our viewers because when anybody hears hung jury, it just sends a chill given that the issues that that causes for possible retrial or not for those who believe he may be guilty or not. So if they have found that he is -- or at least they can't agree on say two of these charges or counts, can he still move ahead with say some of the more serious if those aren't the ones they're hung on? Can the trial still continue?

HOSTIN: Sure, it can still continue. It could reach a verdict that is sort of a partial verdict. So perhaps they have a verdict on 261 counts and they don't have the verdict on the two counts.

I think what everyone is really concerned about here is which counts will he -- if he's convicted, which counts will those be? Because we know he's facing four first-degree murder counts. And those are the capital offenses in this case. But for those very same charges, Ashleigh, for the four murder counts, the jury can go two ways. They can go first-degree murder or they can go third-degree murder, which would take this out of death penalty land and into perhaps life in prison.

But I believe that is what everyone here at the courthouse is sort of talking about, where is this jury on the capital offenses? And I've got to tell you, this is the only day that we haven't seen as much activity on the streets. A lot of people are inside. Everyone is talking about this case here in Philadelphia. Pro-life people have been protesting for days and days and days. So this city is certainly ready for a verdict.

BANFIELD: I remember a case with Jason Williams where there was some hung issues within the case and it proceeded, very different from that particular case, but Sunny please keep an eye on this for us. Let us know if that dynamite works, that's usually what they call it, the dynamite charge of going back in and working harder at finding resolution.

HOSTIN: It's a Spencer charge here.

BANFIELD: Spencer. Okay. They do give it official names in some other jurisdictions, but everybody kind of always knows it's that dynamite, go. Thank you, Sunny Hostin reporting for us live.

As we continue in this program, he is charged with four counts of kidnapping and three counts of rape. And this is unlike any other kind of case because we're now talking about Ariel Castro, the man accused of holding three women hostage in his house, torturing them, raping them for over a decade. When he was arrested a week ago, those two other men, his brothers, were also treated like suspects right alongside him. The only thing is, investigators now say they were not involved. You're going to hear their side of the story in our CNN EXCLUSIVE REPORT. They sit down with our Martin Savidge and tell us what they now feel about their brother.

(COMMERCIAL BREAK)

BANFIELD: We are getting a brand new look today at how those brave young women and one little girl escaped from captivity after 10 years of alleged abuse and torture in a Cleveland house.