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O.J. Simpson in Court Again; Jodi Arias Trial Underway; Angelina Jolie Announces Double Mastectomy; AP Phone Records Seized

Aired May 14, 2013 - 11:00   ET


ASHLEIGH BANFIELD, CNN ANCHOR: Thank you very much, Carol.

Hello everyone, I'm Ashleigh Banfield reporting live to you.

He has nothing to lose and potentially everything to gain. So for four years, that's four years into a 33-year sentence for robbery, assault and kidnapping, O.J. Simpson is appearing again in a Vegas courtroom. He wants a brand new tile on the grounds that his lead lawyer, the last time around he was in that courtroom was lousy, in his estimation.

My colleague Paul Vercammen is watching this high-stakes hearing closely in Las Vegas.

Essentially, Paul, lay out the core issues of why O.J. thinks he got a raw deal.

PAUL VERCAMMEN, CNN SENIOR PRODUCER: Well, among other things, Ashleigh, O.J.'s new legal team is saying that, one, he was not informed of the possibility of a plea deal.

Two, they say that Yale Galanter who had a lot of business dealings with O.J. had a huge conflict of interest.

There's some other things they are delving into. Also talking about alcohol may have clouded O.J. Simpson's judgment.

Let's go ahead see what he looked like as he entered the courtroom yesterday.


VERCAMMEN: Heavier and grayer, disgraced football legend O.J. Simpson slowly stepped into a Las Vegas courtroom after four-and-a-half years in prison for kidnapping, assault and armed robbery.

The new Simpson legal team is presenting 19 claims it says show he was so poorly represented in the 2008 kidnap trial by Yale Galanter that he should get a new trial.

New lead attorney Patricia Palm argues Simpson was never told about an offered plea deal and should have taken the witness stand.

Gabe Grasso assisted Galanter in 2008 and emphatically told the court on Monday he wanted Simpson to testify then. GABE GRASSO, FORMER SIMPSON CO-COUNSEL: O.J. is a very eloquent person and he can explain himself very as well and so I thought he would be a great witness.

VERCAMMEN: Simpson's lawyers also tried to show the former Heisman Trophy winner had been drinking alcohol which impaired him from seeing his cohorts carry guns into the confrontation.

The new Simpson team argues that Galanter knew about Simpson's plans to get back some of those memorabilia.

Simpson's daughter, Arnelle, took the stand, saying she was with her father and Galanter at dinner, the night before the incident.

UNIDENTIFIED FEMALE: Was your dad drinking alcohol that evening?


UNIDENTIFIED FEMALE: Do you recall overhearing any conversation about your dad's plan to go look at his property the next day?


UNIDENTIFIED FEMALE: And who did you hear talking about that?

SIMPSON: My dad was talking to Yale.

VERCAMMEN: Simpson is waiting to testify in this hearing.

PATRICIA PALM, SIMPSON'S NEW ATTORNEY: This will be his first time to be able to tell what happened and, you know, instead of hearing it in bits and pieces.

And you have to remember, the evidence in this case was extremely conflicting from all of the witnesses.

VERCAMMEN: Simpson may take the stand as soon as Wednesday.


VERCAMMEN: And as Simpson was in court yesterday, he sometimes would nod slightly in agreement as his lawyers pounded away at the various witnesses, Ashleigh.

BANFIELD: Well, and I think a lot of people are quite interested if O.J. takes the stand, given the fact he did not do so in his criminal trial.

But do we expect it to be a lengthy process? One or two questions and out you go or do they really want him to have his moment?

VERCAMMEN: Well, it's a combination of all.

For one, and you heard Grasso, his former counsel, say that he thinks O.J. was eloquent and could have possibly sorted out all of the strange goings on in that room with the nine men on that botched raid. Also, they say that O.J. may testify as long as a day and a half to two days because, first, of course, his new legal team will put him up, and then you can expect an absolutely blistering cross-examination of O.J. Simpson after he takes the stand, Ashleigh.

BANFIELD: And then what about the attorney at the center of all of this, Gabriel Grasso. Full disclosure, I've interviewed him several times. I know him personally.

What's the story with him? Will he be taking the stand as well in his own defense?

VERCAMMEN: Well, it's interesting. First, I think you meant to say Yale Galanter because Grasso is the ...

BANFIELD: Oh, I beg your pardon. Absolutely, Paul. I apologize. Absolutely, it's Yale Galanter I'm ...

VERCAMMEN: Well, let's sort this out.

BANFIELD: Yeah, go ahead.

VERCAMMEN: You need a score card for all of this. I'm going to use a simple analogy. It's like tag team wrestling.

You had Yale Galanter, O.J.'s longtime ally and lawyer. He hired Gabe Grasso here in Las Vegas to be his man on the ground. And then, of course, there was Simpson.

Grasso testifying now. He is testifying for Simpson. Galanter will come up later. He will be a prosecution witness and, at the heart of all of this, these accusations that Galanter completely loused up O.J.'s defense.

Galanter expected to take the stand late, possibly Friday, and he could be also be an all-day witness, as he is also at the center of this. The two star witnesses, ironically, O.J. and Galanter, Ashleigh.

BANFIELD: I know. And I'm going to do another full disclosure. Total mommy brain, but I actually happen to know Gabe Grasso as well. And I know he took the stand yesterday. He is expected to continue today.

But this has got to be tough. Those two were friends as well. Have we seen them together anywhere around that courthouse? Have they spoken? Have they had eye contact?

VERCAMMEN: You are saying Grasso and Galanter? No, I'm going to think they've had a falling out for obvious reasons.

And, you know, Grasso, as you heard say emphatically, he thought that O.J. should testify, and then he brought up this bit about the plea deal.

And then also at play here is a suggestion that Grasso -- excuse me, Galanter may have known beforehand that O.J. was planning this confrontation to get the memorabilia back.

So that's what they're doing right now. A lot of lawyers going to take the stand today. They're laying the groundwork for this, Ashleigh.

BANFIELD: All right, Paul Vercammen, thank you very much. I know it's an early start out there for you in Vegas, and we'll continue to look for your reporting.

Today in the meantime, I want to bring in my legal team. Paul Callan is a defense attorney, former prosecutor, and a CNN legal analyst and Jean Casarez is legal correspondent for our sister network HLN. She joins me live now from Phoenix.

Paul, I want to start with you. The fact that Gabe Grasso got on the stand and talked about what he was displeased with in terms of his co- counsel, O.J. Simpson's attorney at the time of that trial, that has to be very, very powerful in all of this.

VERCAMMEN: It is very powerful. And, you know, in fairness, I want to start out by saying, also, I was one of the attorneys on the civil case against O.J. Simpson so that we understand that.

But in any event, it's very unusual. The only time a lawyer gets on the stand to testify in a case involving a client is when the client is attacking the lawyer and claiming, you know, that he wasn't told something that he should have been told.

So that's why Galanter and Grasso and all the attorneys are testifying in this case. Very unusual. Usually the attorney-client privilege prevents lawyers from ever getting involved in testifying in a proceeding involving their clients.

BANFIELD: All right, and we should also point out a couple of other things, that the jury ordered Simpson back then to pay $35 million. I think with interest that's a whole lot more. I'm not going to ask you to do the math but, Paul, a lot more now?

CALLAN: Well, yes. And the $35 million verdict that was awarded against him when the civil jury found him guilty essentially of the murders that he had been acquitted on in the criminal trial, most of it has never been collected because O.J. has said he's got no money and it's protected in bankruptcy and proceedings.

BANFIELD: OK, let me also just outline quickly here what O.J. Simpson is claiming his boss -- or his lawyer did not do for him.

He says he was never told of the plea offer from the prosecutors. He said that his lawyer wouldn't put him on the stand and let him testify.

He says his lawyer didn't hire the requisite experts to look over those critical audio tapes, secret recordings that were made in that hotel room during the crime.

And he also told them -- well, O.J. claims that his lawyer told him he could legally take back his own stuff. He could legally go into that hotel room to get his stuff as long as he didn't trespass or use force.

Those are some pretty bold claims. Jean Casarez, I said boss. Is the lawyer the boss? Is the client the boss when it comes down to who says what in an open court?

JEAN CASAREZ, HLN LEGAL CORRESPONDENT: You know, a judge is going to determine all of that, but here is what is amazing. This is a fascinating hearing, Ashleigh, and as you know, we don't have this every day.

I remember when this case broke and we heard together that O.J. Simpson had been arrested in Las Vegas. Who did I call? I immediately called Yale Galanter because you, as a journalist, you want a statement from the attorney.

And I happened to ask him, where are you? He said, I'm in Las Vegas. And I was very surprised because that's where this all just happened and I think there is two layers to all of this.

There is the ineffective assistance of counsel, which does include the conflict of interest, and if Yale Galanter gets on the stand, I mean, we've all wondered, how much did he know?

We know from trial testimony -- I covered the entire trial. We know that it came out in trial testimony that O.J. talked to Yale back in August of that year about doing this and Yale said, you know what?

And it may have been referred to as "attorneys" in the trial testimony. You don't want to do it in California because there's a judgment by the Goldman family and you don't want to do it there. You'd want to do it someplace el else.

And we know through testimony of Arnelle Simpson yesterday in the courtroom that at dinner the night before it all happened O.J. and Yale Galanter were part of that dinner party along with Arnelle, his daughter, and it was discussed, at least there was knowledge, that something was going to happen the next day.

BANFIELD: Jean, how -- this is critical. If there is like -- if there's actually evidence of these kinds of conversations, this is critical, the detail.

How specific was the conversation? Can I go and get my stuff, or can I go to XYZ hotel room and actually push these guys into giving it back to me? Does it matter how specific?

CASAREZ: Yes. Yes, it does. Because it could have been good legal counsel.

You do not want to trespass. You do not want to cause any type of violence whatsoever. You want to talk about this ahead of time.

If you believe it's your items, you go in and you get permission to come in and look at them. See what the conversation entailed and could there be discrepancies in the conversation?

CALLAN: And, you know, Galanter has publicly said he didn't have this conversation with Simpson before the robbery. He said the conversation took place after the robbery.

And, you know, what is really interesting about this whole thing is Simpson had an appeal all the way to the Nevada supreme court and they upheld his conviction.

Now why, all of these years later, do they let him reopen it? There's only one time when they let that happen -- when there is a claim the lawyer lied and the lawyer gave bad advice and the client didn't know about it.

And Galanter was in the appeal. He didn't raise any of these issues in the appeal. So that's why they're having this hearing to look at it. Very special habeas corpus proceeding.

BANFIELD: I think that is extraordinarily fascinating information.

And, Jean, I think you bring up a critical, critical point and I'm glad you reminded many of us there was so much material, and I'm glad you reminded us of that particular conversation that you did.

Guys, we're not done with this one, so stick around. I think we've got more reporting throughout the day.

Paul Callan and Jean Casarez, thank you for that.

And Jean is in Phoenix for the Jodi Arias trial which is set to get back under way. It is the sentencing face. That is supposed to start again tomorrow.

Today we know that Jodi Arias is no longer under the official suicide protocol. That was where she was placed after saying that she'd rather die than spend the rest of her life in prison.

She may, in fact, be sent to death row by the same jury that convicted her of first-degree murder last week.

I'm going to head back to Phoenix as well to report on this aggravation and penalty phase of the sentencing hearings and all of that until we actually have a sentence from this jury.

That is if we do get one. There is always the possibility of a hung jury, believe it or not, and more juries and brand-new juries in Phoenix. I digress.

The story behind another amazing revelation, Angelina Jolie and a stunning announcement that she has had a preventative double mastectomy.

And the legal questions that have made their way all the way to the United States Supreme Court, it's coming up, straight ahead. (COMMERCIAL BREAK)

BANFIELD: Actress Angelina Jolie announced today that she had a double mastectomy as a preventive measure. In a candid article for "The New York Times", an op-ed actually, the actress says she carries the gene mutation that is linked to a higher risk for breast and ovarian cancer. Her mother actually died of ovarian cancer just back in 2007 and Jolie said that she didn't want her kids to worry about losing her.

Senior medical correspondent Elizabeth Cohen joins me live now. I think this is both a very sad story but also a great story for other women out there, because a lot of people, while this is a preventive surgery, would says it seems extremely drastic. Is this the kind of surgery for everyone who may be in that same category?

ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: You know what, Ashleigh? It's not really all that drastic. She had a gene that meant that she would have an 87 percent chance of getting breast cancer at some point in her life. That's a really, really high risk. And so many women choose to remove both of their breasts. As a matter of fact, a study was done where doctors were asked if you had this gene mutation, what would you do? And more than half of them said that they would have their breasts removed.

Now, as you mentioned, it's not the only option. Some women who carry this faulty gene say I want to keep my breasts. I don't want to get rid of them because maybe I won't get breast cancer. So those women might have MRIs mammograms on a particularly frequent basis and start very young. They might also take drugs like tamoxifen that can decrease their chances of getting breast cancer.

So what she isn't the only option. I will say it is the surest option of not getting breast cancer. She's not 100 percent guaranteed, but her chances are really very low.

BANFIELD: So the actual gene that we're talking about is a very specific gene. I'm told that the description is like finding a grain of sand in a building the size of Empire State Building. BRAC - excuse me, BRCA1 and BRAC2. Can you in laypeoeple's terms explain exactly what those are?

COHEN: Sure. Let's imagine -- we all have BRCA genes. You have them. I have them. Men have them. Everyone has them. The problem is when you have a faulty version. So let's say the gene is a word. The faulty version is the word with a misspelling. So instead of DOG, it's DOP, or whatever, and that misspelling will cause the gene to go awry, will cause a process where breast is going to be more common. Different people have different misspellings. You don't want a misspelling.

So basically looks for the misspelling and which misspelling it is.

BANFIELD: So when she tested positive for the breast cancer gene mutation, she actually had this test done by a company more than likely called Myriad Genetics. And the reason we say that, Elizabeth, it's the only company that actually runs the tests.

COHEN: The only game in town, right?

BANFIELD: Yes, it's the only game in town, and that's because they hold the patent on the breast cancer gene. So whether it's legal to have that kind of patent is currently debated by the U.S. Supreme Court and they're going to hand down that decision more than likely this summer.

But the question I think a lot of people would have is you can't patent my finger; it's a body part. Aren't those two genes just microscopic body parts? And how could Myriad patent them?

COHEN: Right, and that's what is the ACLU and many others have argued. How could you patent something that occurs in nature? And Myriad said, well, we extracted it and we made it something different than what it is in nature. And the other side says that's crazy. It's just a gene. It's in nature. You might have found it or other people might have found it but the reality is that it's something natural.

You can't patent wood, for example. You can patent a baseball bat because you've taken wood and you formed it into a particular shape. But many people are really -- over the years I've interviewed so many doctors, genetic counselors, patients, are outraged that they own this patent. Because not only are the only game in town, which makes this test expensive because they have no competition, but no one else can even do research on it because they own it.

So these folks say they really held up development of a cure or better treatments for breast cancer because no one else can do research on this gene.

BANFIELD: Right. Well, stand by for a second, if you would, Elizabeth. Lisa Bloom joins me now, who is with, a legal analyst.

Lisa, there's so -- usually I ask you to come down one way and give me your analysis of a case. I'm going to ask you to come down with two hats here because this company spent a lot of money to do that -- effectively find a grain of sand in the Empire State Building. There is a pro and con to getting that patent. Can you explain what those two are?

LISA BLOOM, LEGAL ANALYST, AVVO.COM: Well, sure. Let's start with pro. The whole idea of patents is that if companies spend a lot of money, as you say, and develop something new that's beneficial, they should be rewarded for that by being given a patent so that they don't spend all that time and effort doing something that then is just readily distributed to everybody else who can just copy it.

And that's the argument on behalf of the company. And as we get further and further along with genetic testing, with tinkering with nature, we're going to see more and more of these cases.

The argument on the other side is that we don't want one company to have a monopoly over something that occurs in nature and that is gene testing. Now, you talk about Angelina Jolie. Thank goodness for her, she had the means to pay thousands of dollars to have this gene testing done. Most people can't do that. Angelina Jolie said she did this because she's a mother and she wants her children to have her around for a long time. Well, every mother feels that way. Shouldn't this test be available to every mother at a price that people can afford, that insurance will pay for?

So the argument on the other side is it reduces access to medical care. It makes it more difficult for consumers to have access to information. It reduces research available because only one company has a monopoly over it.

BANFIELD: Yes. But, you know, you don't want to scare off the financial incentive for innovation. You don't want to scare off the inventors, either, for getting into their labs.

Lisa Bloom, thank you very much for that. And also our senior medical correspondent Elizabeth Cohen. Thank you to the both of you for making a very complex argument rather clear.

So call this the clash of the titans -- it's over freedom of the press. I have here a little tiny copy of the Constitution and it turns out there might be an infraction here. The feds secretly seized phone records of reporters of the Associated Press. There is heated reaction from the A.P., and what the Justice Department is saying as well is all coming up next.


BANFIELD: Critics say it is apparently the latest aggressive attempt by the Obama administration to crack down on leaks of classified information. Associated Press is reporting that the Justice Department secretly seized two months worth of phone records of its reporters and its editors. And in response, the A.P. president and the CEO, Gary Pruitt, sent a blistering letter to the Attorney General Eric Holder saying that the news organization regards this as, quote, "This action is a serious interference with A.P.'s constitutional rights to gather and report the news."

Disclosure of the move is coming right on the heels of another controversy, one involving allegations that the IRS targeted conservative groups that were seeking tax-exempt status. The Associated Press is saying that the feds seized records for more than 20 separate phone lines assigned to the Associated Press and its journalists. It happened apparently in May and April of last year.

Joining me now is crime and justice correspondent Joe Johns and CNN legal analyst Paul Callan with me. Joe, just for starters, what is the Justice Department saying about this revelation? And while you're at it, how does the A.P. know that this happened?

JOE JOHNS, CNN CRIME AND JUSTICE CORRESPONDENT: The A.P. apparently knows how it happened because Ronald Macham, who is the United States attorney for Washington, D.C., wrote them a letter essentially telling them, "Look, we have subpoenaed this information and now you know." And his office is not -- right, his office is not saying a lot other than this statement they put out yesterday through his spokesman Bill Miller. "We take seriously our obligations to follow all laws, federal regulations, Department of Justice policies when issuing subpoenas for phone records of media organizations."

Those regulations require them, they say, to make every reasonable effort to obtain information through alternative means even before considering a subpoena for the phone records from members of the media.

So that's it. And you ask other questions and they say no comment. It's clearly something that is under investigation. And talking to one United States attorney on the phone, a former United States attorney, on the phone a few minutes ago, he said, "I have never, ever, ever heard of such a subpoena being issued to a news media organization without advanced notice." In other words, giving them an opportunity to go and try to quash it. So it's an interesting situation here in Washington, D.C.

BANFIELD: Highly unusual. And I just decided I would bring with me my trusty and nerd-like copy of the U.S. Constitution. I want to read Amendment number one, and it says quite clearly, "Congress shall make no law," and I'm going to skip over a few words, "abridging the freedom of speech or of the press."

And isn't the A.P., Paul Callan, saying that this is a constitutional infraction? And if it's not, why not?

CALLAN: Well, if that's what they're saying, they're wrong. Because believe it or not -- and as a matter of fact, as you read that, it says "Congress shall make law abridging freedom of speech or the exercise of a free press."

So essentially the Justice Department is saying, hey, we're not saying you can't publish your newspaper. You can't say whatever you want. We're issuing a subpoena for your telephone records.

And, by the way, through the history of the United States, the courts have been totally unsympathetic to the press. The press is treated just like everybody else in America, subject to subpoena and subject to search warrants.

BANFIELD: So you're saying people listening in and taking your records is free?

CALLAN: Well, no. It's not -- well, no, it comes at a price.


CALLAN: It comes at a price, but it's not speech. And I think that is what the argument would be. But the other thing is what's really unusual here is that normally when a subpoena is issued, the person being subpoenaed knows about it, goes out and hires a lawyer, and they go into court and they say, "We want to quash this subpoena. There are other ways to get the information." And that's how the press usually fights the government in criminal cases when they get subpoenaed. This is a secret subpoena issued in a secret proceeding pursuant to various provisions of the Patriot Act and other acts post 9/11. Now, we're seeing how the press is going to be effected and a lot of American citizens with secret courts issuing and upholding secret subpoenas. That's the real constitutional issue here.

BANFIELD: All right, we have a whole hour that we could do this and just scratch the surface. So more to come on this. Joe Johns, thank you for your reporting. Paul Callan, thank you for your excellent insight, as usual.

I want to go now to a murder trial just around the bend. It is the Trayvon Martin case. It is crunch time and the prosecution now is doing everything in its power to stop some pretty bad stuff about that 17-year-old victim from making it into a public proceeding. What they think the jury should, and maybe more importantly should not, be privy to hearing. Coming up next.