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Alabama Death Row Inmate Asks Supreme Court to Halt Execution; Teacher Testifies in Jennifer Crumbley Trial; E. Jean Carroll Defamation Trial Resumes. Aired 11-11:30a ET

Aired January 25, 2024 - 11:00   ET

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

[11:03:00]

KATE BOLDUAN, CNN HOST: Right now, Donald Trump is sitting inside a federal courtroom as lawyers for E. Jean Carroll are now playing videos for the jury, videos of Donald Trump talking about his money, talking about his wealth.

Carroll's team overall is trying to convince a jury that Donald Trump should pay Carroll millions more in defamation damages as part of Trump's defense. The question remains if he will take the stand himself.

CNN is getting a -- CNN's Paula Reid is getting live updates from the courtroom. She is here with us. And also with us is CNN legal analyst former federal prosecutor Jennifer Rodgers and CNN senior legal analyst and former assistant U.S. attorney Elie Honig.

Paula, what's the latest from the courtroom?

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: So, things are moving a lot faster this morning than we anticipated.

The E. Jean Carroll team had one witness left. This was E. Jean Carroll's former editor at "Elle." Her testimony lasted an hour-and-a- half to two hours in the trial in the spring, but, today, it just lasted about 10, 15 minutes.

BOLDUAN: Do we read into that? Do you...

REID: So I think it's they don't need her full testimony, right, because, back in the spring, they were talking about several different issues, right?

There were the allegations of rape, defamation, and then damages, where, here, the jury has already decided that Trump's sexually abused E. Jean Carroll. They're just looking at damages from a defamatory statement that Trump made in 2019, much more narrow, right, focus for the jury.

But now E. Jean Carroll's lawyers, they are wrapping up their case. They are introducing a few additional exhibits, mostly things we have seen before, a deposition that Trump sat for where he famously confused E. Jean Carroll and his ex-wife, Marla Maples, as well as a sort of a press statement -- I won't call it a press conference, because I was there and he did not take questions -- last week, where he attacked the judge, he attacked E. Jean Carroll.

So, they're playing a few exhibits, and then it will be time for the Trump defense team to put on their case. And, of course, the question of the day is, will he or won't he testify?

BOLDUAN: Let's talk about these videos. They're things that we have seen before, maybe not -- this jury maybe hasn't seen before.

Why would they want to put this on as basically kind of like the final-final for her case?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, I think, first of all, it's on video, right? So there's nothing Donald Trump can say to deny what he said.

[11:05:01]

I think it'll go to two issues. One is the ongoing defamation of E. Jean Carroll, the fact that he's done this intentionally, repeatedly, and, second of all, to go to his wealth, to how much money he has.

I think the argument that you will hear from plaintiffs in closing and throughout this trial is, you have to make it hurt here a little bit. If you're trying to send a message, if you're trying to send punitive damages, you have to do enough so he can't just dash off a check and not think of it again.

BOLDUAN: Jennifer, you say that it's a terrible idea for Trump to testify.

(LAUGHTER)

BOLDUAN: Why?

JENNIFER RODGERS, CNN LEGAL ANALYST: I think Elie agrees with me by that little chuckle over there it's a terrible idea.

Because the issue is so narrow here. It's just about damages. Trump is such an undisciplined speaker. There's no way he's going to be able to stick to what the judge says he can talk about, which is just damages. He can't say, she's a liar. She lied about me. He can't say I didn't sexually assault her or rape her.

He can't say any of those things. He's limited to talking about how she was damaged from this, which really isn't something he can say that much about. So I think it's going to go badly. I think the judge is going to cut him off, and it's not going to look good in front of the jury.

HONIG: To that point, one thing that Judge Kaplan may do here is ask for what we call a proffer, meaning this, meaning send the jury back to their room, so they're not in the courtroom and say, OK, Mr. Trump, you're going to testify here.

I want to hear from you and your lawyers what you think you're going to testify about, so this is not a free-for-all. And so then Judge Kaplan can say, OK, that's in bounds. I will allow you to testify to that. Or he might say, no, I already set the boundaries here. And what you just told me does not fall in the narrow guidelines that Judge Kaplan set that Jen just laid out, and, therefore, I'm not letting you.

So he may do that as a way to really protect his courtroom.

REID: Yes, and I think, no matter what happens, if he does try to take the stand, if he doesn't, if there's a proffer, he is going to argue, as he has consistently, that he's the victim of an unfair system.

(CROSSTALK)

BOLDUAN: ... outside.

(CROSSTALK)

REID: Yes, he will step outside. Yes, in the court of public opinion, really, is where he's making this argument.

BOLDUAN: Yes.

REID: Physically, he can do it from anywhere, right? And the witness stand is another opportunity for him to again be a loud martyr.

But I think what differentiates this case, as opposed to, for example, the January 6 federal election subversion case, is there, they are litigating serious constitutional questions of his rights, potential immunity. Most legal experts say he doesn't have it, but he certainly has the right to raise that question, where, here in this damages trial, they have really had to work to manufacture controversies, right?

And largely what he's complaining about are instances where he or his attorneys refused to follow the rules that would apply to any other lawyer, any other person in a courtroom. And then they run out of court and say, they have been so unfair.

BOLDUAN: Can -- at this point, can Trump's attorney, can Alina Habba, can she push back on the parameters that the judge has set? Is there an appeal, a fight to be had still around that?

HONIG: So I'm chuckling because I have been in that situation of trying to push back once Judge Lewis Kaplan has made a determination. It doesn't go well.

She can try. He's going to shut it down immediately. And, by the way, I think the parameters that Judge Kaplan has set are perfectly appropriate.

BOLDUAN: How do you describe them? Like, how narrow is it?

HONIG: OK. Yes.

Cannot testify about whether he sexually assaulted E. Jean Carroll. BOLDUAN: Yes, that has been established. That has been litigated.

(CROSSTALK)

REID: At a trial he did not attend.

HONIG: Exactly.

BOLDUAN: Thank you, Paula.

HONIG: Cannot testify about whether it was defamation, whether it's a lie, his statements were lies or not. All that is in play here is damages.

And so all he can testify about is anything relating to damages. I -- yes.

BOLDUAN: I have this much money, and I think she should not have this much money.

RODGERS: Yes.

And, listen, he still has an appeal, of course, but this is a civil matter, not a criminal matter. So there are fewer protections for a defendant in this situation. It's not like his freedom and liberty are on the line. So the two parties are essentially equal.

BOLDUAN: OK, one final question comparing civil -- comparing two civil cases.

You have the civil fraud case. You have the civil -- this defamation case, two -- the big difference is no jury, jury. Picking a fight with a judge when there's no jury may be one thing. What does it do if you pick a fight with a judge in front of a jury?

RODGERS: It's a terrible idea, because juries love the judge.

HONIG: Yes.

RODGERS: That's the person that they look up to, the authority figure, the neutral person who sends them their lunch and takes care of them. It is a terrible idea to fight with the judge in front of the jury.

They will not like it one bit.

HONIG: Not to get overly psychological about it, but the judge almost becomes like a parent figure to the jury. The judge provides the food and the guidance.

So..

BOLDUAN: When you get to use the bathroom, all sorts of things.

HONIG: This is my psychology degree coming in to play. I have seen it.

(CROSSTALK)

BOLDUAN: Thank you very much.

Paula, you said you could give one update?

REID: Yes, we do have an update.

So it's federal court. No cameras in the courtroom. We are relying on our colleagues who are inside, giving us minute-by-minute updates. We're told that right now the jury is on a break. So, after that, we will see if they have any more exhibits to introduce. And then, of course, it'll go to the defense, which is when we will see, perhaps, if Trump will or will not testify.

BOLDUAN: So more updates coming. Paula Reid, stay close.

Thanks, guys -- Sara.

SARA SIDNER, CNN HOST: That's quite a power panel you have got assembled there, Kate.

(CROSSTALK)

BOLDUAN: ... the power emanating it. I'm the one detracting from the power, but everyone else.

SIDNER: Not true at all.

(LAUGHTER)

SIDNER: Just hours from now, a controversial new execution method that has never been used in the United States some say could lead to excessive pain or even torture is set to be used on an Alabama inmate, that inmate again asking the Supreme Court to intervene to stop it.

[11:10:06]

Emotional testimony also this morning from a teacher wounded in that Michigan school shooting, the historic trial that could see the shooter's mother punished for what her son did, if she is convicted.

And the popular over-the-counter cough syrup Robitussin issuing a nationwide recall -- the reason and the products you need to check coming up.

(COMMERCIAL BREAK)

[11:15:08]

JOHN BERMAN, CNN HOST: All right, happening now, you're looking at live pictures from a Michigan courtroom.

This is a trial that really could set precedent there. At issue, can parents be criminally convicted if their child commits a mass shooting? Jennifer Crumbley and her husband are the first parents ever to be

prosecuted for their child's actions in that type of a shooting. This is the assistant principal from the school in question. The parents are charged with involuntary manslaughter after their son shot and killed four students at Oxford High School in 2021.

CNN's Jean Casarez has been following this case from the very beginning.

There have already been emotional and dramatic moments on the stand this morning, Jean.

JEAN CASAREZ, CNN CORRESPONDENT: Well, we're in the prosecution's case, and they are starting out with the emotional, most definitely.

On the stand right now is Kathy (sic) Gibson-Marshall, assistant principal of Oxford High School, and she was walking down the hall. They believed they had an active shooter, but here's what makes her, I say, special.

She taught Ethan Crumbley -- and I'm saying his name, but she taught him in elementary school. She knew him, and she's walking. And all of a sudden, she sees him and she says: "It can't be Ethan. I know Ethan. It's not him."

And then she sees one of the shooting victims, someone, a student that she had taught, cared about so much. And her testimony is just so emotional, but also very important, because the defense can work with that because she never dreamed Ethan could do anything like that.

Now I want to tell you about the first witness on the stand. It was a living survivor, an educator who had been shot, but survived. Her name was Molly -- is Molly Darnell. She showed the jury her bullet wounds on her arm, the entrance and exit wounds. Here is some of her testimony.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: You just described you saw something in your peripheral vision. You looked up. You locked eyes.

MOLLY DARNELL, SHOOTING SURVIVOR: I locked eyes. He didn't hesitate.

UNIDENTIFIED FEMALE: OK.

About how long was that from the time you saw the peripheral vision and then the gun was raised?

DARNELL: A second.

UNIDENTIFIED FEMALE: OK.

DARNELL: If that. I kind of jump and turn my body this way at the same time.

UNIDENTIFIED FEMALE: OK, you're -- for the record, you're motioning, turning your shoulders to the right.

DARNELL: Yes, to the right.

And I feel like my left shoulder moves back a bit, and I feel a burn like hot water had stung me. I had texted my husband, "I love you, active shooter." And then I started feeling blood dripping down my arm.

(END VIDEO CLIP)

CASAREZ: And just moments after that is when she did show the jury her wound. She actually took off her jacket.

And this is rare in a courtroom. She's showing where the entrance and exit wounds were on her arm. She is lucky to be alive. Four students died. And that is why we are in this courtroom today. And you might feel that it's unusual, because Jennifer Crumbley was at her work. She was like an hour away from the high school. She worked for a property management firm.

But the prosecution is saying, you are responsible for the death of those four students because of your gross negligence. So, we're hearing from living victims. We will hear about autopsy reports. We will hear about those victims who died, because the prosecution is saying, you, Jennifer Crumbley, are responsible.

The defense is saying independent act, Ethan Crumbley pulled the trigger. He's responsible, not Jennifer.

BERMAN: Again, and this would really be the first-of-its-case verdict if it did go against the parents for what they really did not do in this case.

CASAREZ: Yes.

BERMAN: Jean Casarez, thank you for being with us. Keep on monitoring this for us. Let us know when the news happens -- Sara.

SIDNER: What dramatic testimony.

And here's another first of its kind. The clock is now ticking on Alabama. It's about to do something that we have never seen in the United States. Kenneth Eugene Smith is set to be put to death by nitrogen gas, pending his second last-minute appeal.

This is a new and untested method of execution that his attorneys claim could cause excessive pain or even a torturous death. Smith is on death row for his part in a 1988 murder for hire of a minister's wife. This morning, his attorneys asked the Supreme Court again to pause this execution.

I want to bring in Bryan Stevenson for more perspective on this. He is the founder and executive director of the Equal Justice Initiative.

First of all, we talked a little bit before the break. Are you involved in this case in any way? And if so, what sorts of things have you been saying?

BRYAN STEVENSON, FOUNDER, EQUAL JUSTICE INITIATIVE: Well, we have been working with the attorneys representing Mr. Smith for quite a while. They were recruited by our office to take on his case.

[11:20:03]

And we have been arguing for a long time that Alabama should suspend executions in light of the multiple failed executions that have taken place over the last two years.Mr. Smith was taken to the chamber in 2022, strapped to a gurney for four hours, and the state could not complete the execution because they could not access his veins.

We thought it was barbaric and torturous. And based on that, he should not be subjected to a second execution, period. The state changed the method to nitrogen, this untested, experimental method. And now we're in this posture where they're going to experiment on him tonight, someone who's already quite traumatized by the torturous execution attempt in 2022.

SIDNER: We heard some information and sound from those who are standing by him, a minister, who he has said that he is extremely concerned that he will die from choking on his own spit or his own vomit in this particular case, and that his wife will be there to see that.

Are those some of the arguments that are being made when you talk about the potential of this being torture, which is not supposed to be part of the process, obviously?

STEVENSON: Well, it's more -- I think it's even more precise than that.

Mr. Smith, we contend, was subjected to something that was cruel and unusual in 2022. And I just want to stress that he was told for weeks he was going to die on a date certain. He was strapped to a gurney for four hours.

For two of those hours, they were jabbing him, trying to access a vein. He believed that any minute he was going to die. At one point, they put him in a stress position, where they raised the gurney, so he was vertical with his arm spread, so they could jab the needle into his neck. And they did not succeed in killing him, but he was traumatized.

Since that time, we have been arguing that the state doesn't have the competency to carry out these executions. They switched the method. And now they're saying they have the skill to carry out a method that's untested and never been used before. That's the essential argument.

Yes, he has also been vomiting persistently for the last several days. It is a symptom of the trauma. If you vomit with a sealed mask on, the experts have testified you will asphyxiate. You will basically suffocate. You will drown in your own vomit.

And that obviously, we contend, would violate basic human rights and basic norms of appropriate punishment.

SIDNER: Yes, the Eighth Amendment does guard against cruel and unusual punishment.

I do want to ask you whether you think the Supreme Court will weigh in or what you think about the fact that so far they have not.

STEVENSON: Well, last night, the 11th Circuit denied a stay, but it was over a very vigorous dissent by one of the judges, Judge Jill Pryor. And even one of the judges who concurred raised a lot of questions about this.

We will have to see what the Supreme Court does, but I certainly think the Supreme Court would have ample justification for stopping this execution. They allowed Alabama to proceed in Mr. Smith's case before, and Alabama could not complete the execution constitutionally. They allowed this to happen in Alan Miller's case, and it didn't work.

At some point, the court has to stop trusting a state that has repeatedly failed to carry out these executions. And I think the court has something added in this case, which we need to keep in mind, which is that the jury in the case that heard the evidence believed that Mr. Smith should not be subject to the death penalty.

They returned a verdict of life, and it's only because Alabama allows its elected judges to override verdicts of life that Mr. Smith is even facing execution. He couldn't be executed in any other state in this country. And that's a point that the attorneys have been emphasizing as well.

SIDNER: We will be watching this case. I know that the time is about 6:00 p.m. when they expect the execution to happen if there is no stay.

Bryan Stevenson, thank you so much for running all that down for us on this complicated case and a potential first of its kind in the country, using a drug that has not been used before in an execution. We appreciate your time.

STEVENSON: Thank you.

SIDNER: Kate.

BOLDUAN: A manhunt is happening right now in Philadelphia for a 17- year-old. He's a murder suspect who fled custody while being taken to the hospital. One source tells CNN he likely had help after he escaped.

And South Carolina is feeling different on the campaign trail, Donald Trump going scorched earth, full scorched earth, against Nikki Haley, and Nikki Haley literally saying, bring it, Donald.

(COMMERCIAL BREAK)

[11:29:28]

(BEGIN VIDEO CLIP)

NIKKI HALEY (R), PRESIDENTIAL CANDIDATE: Even on that day where he was going on and on about January 6, we talked about, OK, he was having a moment. He was confused.

But it also goes back to why I have continued to push for mental competency tests for anyone over the age of 75.

(CHEERING AND APPLAUSE)

(END VIDEO CLIP)

BERMAN: That's Nikki Haley last night in South Carolina raising these new and direct questions about Donald Trump's age and mental acuity. So, is it working?

With me now, the very young and very sharp...

HARRY ENTEN, CNN SENIOR DATA REPORTER: Yes.

BERMAN: ... senior data reporter Harry Enten is here.

Harry, what do voters say about the idea of mental sharpness?

ENTEN: Yes, I -- I hope my mental sharpness is -- is with me, although, with this long week, who knows anymore.

[11:30:00]