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ANDERSON COOPER 360 DEGREES

Alleged Rape Shocks Ohio Town; President Obama Nominates New Defense Secretary; Flu Widespread in 41 States; Gang Rape Suspects on Trial in India; Syrian Activist's Family Demands Release

Aired January 7, 2013 - 22:00   ET

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


ANDERSON COOPER, CNN ANCHOR: Good evening, everyone. It's 10:00 here on the East Coast.

Welcome to the program. We begin tonight "Keeping Them Honest" with some new information, information that goes straight to a key question in that rape case out of Steubenville, Ohio.

Was a young woman, the young woman in this picture, as drunk and seemingly incapacitated as that photo would seem to suggest. Was she too out of it or outright unconscious when the state of Ohio claims two stars of the local football team sexually assaulted her during a string of parties back in August?

Now, we covered this story late last week when some explosive video was posted online when a teen who may have witnessed the alleged rape was seen joking about the incident. Watch.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: What if that was your daughter? What if it was?

UNIDENTIFIED MALE: But it isn't. If that was my daughter, I wouldn't care. I would just let her be dead.

UNIDENTIFIED MALE: Listen to yourself.

UNIDENTIFIED MALE: I'm listening to myself fine.

UNIDENTIFIED MALE: In about 10 years, I'm going to come back to this video.

UNIDENTIFIED MALE: Ten years. My daughter's going to be getting raped and dead in 10 years.

(END VIDEO CLIP)

COOPER: So, back to the picture, was the alleged victim in control of her senses? Could she consent to any kind of sexual intercourse? Was the photo something other than it seems, as one of the defense lawyers is suggesting?

You will recall Susan Candiotti spoke with that defense lawyer on Friday.

(BEGIN VIDEO CLIP)

SUSAN CANDIOTTI, CNN NATIONAL CORRESPONDENT: That photograph, what do you make of it, that we have seen of some young people, appear to be two teenagers, carrying out this young lady, she appears to be limp, being carried out by her arms and legs?

ADAM NEMANN, ATTORNEY FOR TRENT MAYS: It does. The photograph, frankly, looks heinous when you look at it. I have been told from at least one witness that we are prepared to call that that scene was staged, that she was actually -- that she was actually conscious at the time. So we're going to have to wait for trial to see what happens.

CANDIOTTI: Is your client in that photograph?

NEMANN: I can't confirm or deny that.

(END VIDEO CLIP)

COOPER: He says she's got a witness and that the girl was conscious. Today, though, the Ohio attorney general's office put out a whole lot of testimony from three witnesses, one of whom disputes that she was conscious. We will have more on that in a moment.

That testimony was found within nearly 300 pages worth from a probable cause hearing that was held back in October. First, the 17-year-old who was in the car with the two defendants, Trent Mays and Malik Richmond, as well as the accuser, here is his description of her physical state before leaving the second of three parties for a third party.

Question: "And what, if anything, did you notice about her behavior?"

He answers, "She was very drunk."

"And how do you know that?"

"Just like the way she -- she wasn't like fully capable of walking on her own."

Another question, "And what is it that made you think she wasn't fully capable of walking?"

He says, "She was like stumbling as she was walking and we had to help her."

"Who is we?"

"Well, Trent and Malik helped her."

He said on the way to the car, the young woman actually vomited and then he testified she ended up in the car with Mays and Richmond, Richmond in the front, she and Mays in the backseat. At that point, according to this witness, Mays began performing a sexual act on her while he, the witness, says was -- while the witness says he was videotaping it on his cell phone. Now, the prosecutor then asked him what the accuser was doing. Answer, "She was just sitting there not really doing anything."

The prosecutor asked, "Was she making any noise?"

"She was. She was kind of talking but I couldn't make out the words she was saying."

Again, all of this allegedly took place on the ride from the second to the third party that night where Malik Richmond allegedly raped the young woman, and again, this witness, the driver, said she was already very drunk back at the second party, something another witness corroborates, calling her -- quote -- "out of it" -- end quote. He goes on to say, it looks like the accuser was trying to go to sleep. He then describes how the two defenders got her to the car.

He says: "Trent was holding her by the hands and Malik was holding her by the feet."

Then a question, "How did they get out of the basement that way?"

Answer: "They just -- they carried her out through the door out into the street."

The testimony that you just heard, it sounds like an exact description of that photo, the photo that has now become so notorious of a seemingly unconscious woman being carried by the two defendants. We do not know, however, if this was indeed what the witness was referring to. The same witness goes on to say that he later saw the second defendant, Malik Richmond, perform a sexual act on the defendant.

He told the prosecutor at no time did she speak, utter a sound, or move any part of her body. In all, three witnesses testified at the hearing and were cross-examined by attorneys for the two defendants. Significantly, during the hearing, neither attorney disputed that their clients had sex with the accuser, only that it was non- consensual.

Also significantly, both accusers were present at the hearing. We should mention the two defense attorneys were unable to come on the program tonight. They will be with us, though, tomorrow night.

More on the group though that posted the pictures and the video that have shocked people nationwide and is really tearing the small town of Steubenville apart.

Our Gary Tuchman got a rare interview with the one local member of the group Anonymous.

Here's his look at what makes this shadowy group tick.

(BEGIN VIDEOTAPE)

UNIDENTIFIED PROTESTERS: We want justice! We want justice!

GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): Hundreds of people over the weekend gathering in downtown Steubenville, Ohio.

UNIDENTIFIED PROTESTERS: The world is watching! The world is watching!

TUCHMAN: Emphasizing the world is watching, they want everyone to know they think the Steubenville High School football culture is not worthy of more protection than a teenage rape victim. In the crowd, people with masks, the masks of Anonymous, the increasingly well-known Internet subculture collective that is leading the attack on the Steubenville high school students who may have raped a 16-year-old girl and the handful of bystanders they believe who did nothing to stop it.

This is one of the people at the forefront of the attack campaign. He goes by the initials K.Y.

K.Y., ANONYMOUS: We're not really the judge, nor the jury, but it's fair to say that we are the executioner. Like I said, they incriminated themselves by posting that information online. They took part in criminal activities. And if you think that they're guilty, that's because your conscience is telling you that they're guilty.

TUCHMAN (on camera): You're saying you're the executioner. What I'm saying is, in this country, a jury of your peers or a judge needs to say you're guilty. And you're already kind of saying that, aren't you?

K.Y.: I already am kind of saying it. Like I said, they incriminated themselves. There's clear-cut evidence. And a jury of their peers is what they're entitled to. And are we not their peers?

TUCHMAN (voice-over): This is some of what K.Y. is referring to. A picture showing the two rape suspects carrying the alleged victim has spread all over the Internet after it was reposted by Anonymous, and so was this video of a former Steubenville High School baseball player and others making vile jokes about the girl.

UNIDENTIFIED MALE: What if that was your daughter? What if it was?

UNIDENTIFIED MALE: But it isn't. If that was my daughter, I wouldn't care. I would just let her be dead.

TUCHMAN: While two Steubenville high school players have been charged with rape, Anonymous has posted names on the Internet of many more members of the team, many of whom Anonymous says saw what happened to the alleged crime that night.

K.Y.: Everyone who witnessed that is just as guilty as the people who did it.

TUCHMAN: Eddie Wilson and Jeno Atkins (ph) play football for the Steubenville High Big Red. Wilson said he wasn't at any of the parties and witnessed nothing, but says those who follow Anonymous' information assumed he was involved.

EDDIE WILSON, STEUBENVILLE HIGH SCHOOL FOOTBALL PLAYER: They put my information out there and said I am involved in this rape case, I'm like I'm one of the ringleaders. I wasn't even at the party or involved in any of this.

TUCHMAN: Wilson said he's now getting death threats from unknown people on the Internet.

WILSON: They send me a picture on Twitter and it was a group of bullets and a piece of paper. And they singled one shot out and said this bullet is for Eddie.

TUCHMAN: Anonymous stands by its posting of names and doubles down by saying this.

K.Y.: We believe that multiple people have participated in the rape other than the two that were charged.

TUCHMAN: Both football players are outraged by Anonymous' posting of names, saying they feel attacked by outsiders because of the team they play for, but they have different opinions about the allegation of rape against their two teammates.

We asked Atkins if he felt they were guilty.

UNIDENTIFIED MALE: No, not at all.

TUCHMAN: But Wilson is more circumspect.

WILSON: If they're found guilty, they need to serve prison time. If they're found innocent, they need to be let go.

TUCHMAN: For its part, Anonymous is not going to let go.

K.Y.: All that's necessary for evil to prevail is for good men to do nothing.

TUCHMAN: Like it or not, Anonymous is staying on the case.

(END VIDEOTAPE)

COOPER: Gary joins us now.

We learned last week that lawyers of the defendant said the victim sent a text saying she wasn't raped or saying to one of the people, "I know you didn't rape me."

I understand you asked Anonymous about that.

TUCHMAN: That's right. The masked man, K.Y. Anonymous, tells us that he's uncovered tweets that indicate the alleged victim lost her phone right after that evening. So he is saying that it's very possible that if such a text does exist, someone else sent it using her telephone.

COOPER: Interesting. Gary, appreciate it. Thanks very much.

Joining us now is criminal defense attorney Mark Geragos, author of "Mistrial: An Inside Look at How the Criminal Justice System Works and Sometimes Doesn't," also our senior legal analyst, Jeffrey Toobin, who has written the definitive history of the modern Supreme Court, "The Oath," which is out now.

First of all, there are two things, one, the involvement of a group like Anonymous, and then the actual case. Let's talk about Anonymous first. Is that illegal, what they have done?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It's hard to know exactly what they have done. It is illegal to hack into other people's accounts. So potentially, what they did was illegal.

The interesting, then, law enforcement challenge is what do you do with this information that's come to light? Some of it clearly is inadmissible or irrelevant, like that idiot who is saying or talking about if his daughter...

(CROSSTALK)

TOOBIN: But he doesn't appear to have been involved in this. He was just someone from Steubenville talking about it. He has apparently dropped out of Ohio State and has expressed regret about what he said.

But the social media stuff involving the alleged defendants -- the actual defendants and other witnesses, that's potentially very relevant and it's important that prosecutors see all of it that's out there.

COOPER: But, Mark, could this in some way impact the case, the fact that you have, you know, outsiders on social media who say they're executioners, putting some of this stuff out. Could that impact the way the trial actually plays out?

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Absolutely. I think you will probably see the defense lawyers moving to change venue, saying that they can't get a fair trial there.

(CROSSTALK)

COOPER: One of them has already done that.

(CROSSTALK)

GERAGOS: Right. And there's an interesting tension because you have got -- on one hand, you have got Anonymous and these people trying to uncover what they think is corruption, which, you know, a lot of people would think is admirable.

At the same time, they have kind of jumped, as Gary says, they fast- forwarded past a judge and a jury to execution or punishment, which is disturbing. It really is kind of a microcosm of the problems that you have in this Internet age when it comes to criminal trials. I mean, it's astonishing for a number of reasons.

TOOBIN: What makes this even more complicated is at the moment, anyway, it's a juvenile trial. There's no jury. It's just a judge. I think a change of venue is unlikely, because when you talk about changes of venue, you're really talking about the jury pool, and there is no jury pool in this case.

The other issue is will the trial even be public? If this were an adult trial, it couldn't be closed to the public. The Supreme Court has said you cannot have criminal trials in secret. That's not true in juvenile cases. The judge could seal the courtroom in this case.

COOPER: Jeff, the issue of consent seems like it's going to be critical, whether this woman, girl could have given consent, whether she was in a place to, or as the defense attorney claiming she could -- does the law define consent very specifically?

TOOBIN: It really is generally a jury issue. Juries are expected to understand what the word consent means and make a judgment. Here, you won't have a jury, you will have a judge, but it's a factual question.

And the judge will hear all of the evidence, and obviously, the most important thing to do here is get all the evidence, people who were really there, get their testimony, obviously get the alleged victim's testimony. But it's just a question -- it's a question of fact. And the judge will decide it.

COOPER: Now, Mark, there's this sworn testimony that was just basically released today, one person saying he witnessed a sexual assault in the backseat of the car, that it was possibly videotaped, that she was saying something, he couldn't hear what she was saying, sort of under her breath or mumbling, and another alleged assault witness in which she wasn't moving, wasn't saying anything at all. What do you make of that in terms of consent?

GERAGOS: That's an interesting kind of fact that they're going to have to deal with. The mumbling and I can't hear what they said or what she said is going to be important because the defendant at that point might be able to supply exactly what was happening and what was being said.

Part of the other problem with this is, is, sometimes, if you are so loaded, if you're so under the influence that you can't give consent, that can also be an issue as well.

COOPER: So, is it known -- her alcohol, the level of her alcohol content then becomes critical.

TOOBIN: If it was even taken. In fact, my understanding is that the reporting was not so quick that they could take an alcohol test that would be meaningful, because you need to do that pretty much right away.

COOPER: Right. There is none, so it could just boil down -- could it boil down to a he said/she said?

TOOBIN: Absolutely. The cases where consent the defense almost always come down to he said/she said.

(CROSSTALK) COOPER: And in this case, he said and she said and he said, I mean, multiple.

(CROSSTALK)

TOOBIN: And you have other people talking about it on social media, which the people, the witnesses may have said things later on social media which they can be impeached with or can be corroborated with. That's where social media becomes very important.

GERAGOS: Right, and the social media here, that tweet, if it in fact exists where she is saying stuff right after the fact, if that was her and it was her phone and she was the one who was tweeting it, is going to become essential to this.

TOOBIN: Absolutely.

(CROSSTALK)

GERAGOS: An incredible kind of...

(CROSSTALK)

COOPER: And the circumstances under which that photograph was taken, whether or not it was staged, as one defense attorney claims, what that actually means, or whether this was what a lot of people might see it as is them carrying somebody who is passed out.

TOOBIN: That's obviously a critical issue, and again you have to just get the testimony of the people who there. Who took the photo? Obviously, there are three people in the photo, but there appear to be people perhaps in the background. Get their testimony. That is just old-fashioned detective work and it has got to be done for a fair trial.

COOPER: Mark Geragos, Jeff Toobin, appreciate your expertise. Thanks a lot.

Let us know what you think. Let's talk about it on Twitter right now @AndersonCooper. That's my Twitter address. I will be tweeting as well.

A lot more happening tonight, including the first shots fired in the war over Chuck Hagel, President Obama's pick for defense secretary, a controversial choice among some groups, for some in the Jewish community, others in the gay community, plenty of Republicans.

We are going to lay out the case against him, but also the strong case for him -- a great debate ahead.

We will be right back.

(COMMERCIAL BREAK)

COOPER: "Raw Politics" now and a war of words breaking out over President Obama's pick for secretary of defense. He's retired Republican Senator and decorated Vietnam combat vet Chuck Hagel.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Chuck knows that war is not an abstraction. He understands that sending young Americans to fight and bleed in the dirt and mud, that's something we only do when it's absolutely necessary. "My frame of reference," he has said, "is geared towards the guy at the bottom who's doing the fighting and the dying."

(END VIDEO CLIP)

COOPER: Senator Hagel, though, may not have an easy confirmation. Here is the reaction today from Senator John McCain, a fellow vet, former colleague, and one-time political ally who once considered Hagel as a running mate -- quote -- "I have serious concerns about positions Senator Hagel has taken on a range of critical national security issues in recent years which we will fully consider in the course of the confirmation process."

He's talking, among other things, about Senator Hagel's skepticism about military action against Iran, his willingness to consider serious cuts to the defense budget and most explosive perhaps past statements on the pro-Israel lobby.

(BEGIN AUDIO CLIP)

CHUCK HAGEL, DEFENSE SECRETARY NOMINEE: I'm a United States senator, not an Israeli senator. I'm an Israeli senator. I support Israel, but my first interest, because I take an oath of office to the Constitution of the United States, not to a president, not to a party, not to Israel.

(END AUDIO CLIP)

COOPER: Another Republican senator, Lindsey Graham, said his former colleague would -- quote -- "be the most antagonistic secretary of defense towards the state of Israel in our nation's history."

Mr. Hagel hotly disputes that. He has got plenty of defenders including many in the American Jewish community, the defense establishment and foreign policy circles. Hagel has apologized for the tone of his opposition in 1998 to an openly gay ambassadorial candidate. He called him -- quote -- "openly, aggressively gay," but now calls that characterization -- quote -- "insensitive."

Joining me now is CNN political contributor Republican consultant Margaret Hoover and Peter Beinart, editor The Daily Beast's OpenZion.com blog.

Margaret, full disclosure, you helped start a group which is now opposed to Senator Hagel's nomination. What are your problems with him?

MARGARET HOOVER, CNN POLITICAL CONTRIBUTOR: Well, which I'm actually not involved with that anymore, but I certainly understand the perspective of them.

There are a lot of folks who have concerns about some of the things that Hagel has said in the past and that's why we will have a full...

COOPER: Specifically about Israel?

HOOVER: Specifically about Israel, specifically about Iran. Look, it's his vote -- it's not just what he said also. He has a very long voting record of not taking voting positions or even signing letters that suggest a stalwart supporter of Israel.

(CROSSTALK)

COOPER: But he has voted for tens of millions of dollars in foreign aid to Israel.

HOOVER: Certainly. He's not a neo-isolationist, by any means. He is in favor of foreign aid.

(CROSSTALK)

COOPER: The two things on Israel that I have seen that he said, one, he talked about Israel lobby, that a lot of people are scared of it on Capitol Hill, and then also that quote that we just heard where he basically said, I'm a U.S. senator, I'm not an Israeli senator.

HOOVER: Right.

I think it goes far beyond sort of those two comments. I think there's a history of voting against sanctions, against some of our greatest enemies, and Israel's greatest enemies , including Iran, Syria, some of those folks in the Middle East who are tough players. I think there's a question about whether Chuck Hagel's approach to the Middle East is one that folks more on the right side of the aisle will agree with.

COOPER: He turned against the war in Iraq, basically, although his criticism of it was pretty -- actually pretty good.

HOOVER: And he wasn't even for the war in Iraq, but then he voted for it.

COOPER: Peter, what do you make of this?

PETER BEINART, THE DAILY BEAST: The irony is that Chuck Hagel's skepticism about the military efficacy of military action against Iran is very, very similar to what we're hearing from the national security establishment in Israel.

Chuck Hagel's view, which is that war, once launched with Iran, could have unpredictable consequences and would not necessarily be effective, is the same thing we're hearing from a drumbeat of Israeli generals.

(CROSSTALK)

COOPER: Also what he said about the war in Iraq, about what would happen afterwards.

(CROSSTALK)

BEINART: This is Chuck Hagel's real sin, I think, from the perspective of people like Lindsey Graham and John McCain. He has learned lessons from Iraq and Afghanistan, these two disastrous wars that have cost us so much, that he's putting into action in his thinking about Iran.

That is exactly what the contemporary leadership of the Republican Party refuses to do.

COOPER: He was attacked by Bill Kristol when he basically was saying we should be skeptical about what might happen in Iraq after the war, there could be civil war, there -- have we really thought about this? And Kristol was saying, there is not going to be civil war. That will never happen in Iraq.

HOOVER: But he ended up voting to go to war in Iraq. Those concerns didn't sort of manifest itself in terms of consistency in his voting record.

COOPER: Right. But I think it was more over time he sort of could his viewpoint.

HOOVER: And at a point where Iraq really was going quite badly, he had an opportunity to support the surge and chose not to. That, I think, shows a real question in judgment. The surge...

(CROSSTALK)

BEINART: I'm sorry. Go ahead.

(CROSSTALK)

BEINART: You're saying that his supposed -- being wrong on the surge raises questions or judgment.

But for Lindsey Graham and John McCain and Bill Kristol and all of these people who were supportive of the Iraq war and have basically not changed their view of the world and of the efficacy of military force one iota since then, that we should take their judgment about Chuck Hagel?

(CROSSTALK)

COOPER: How much of this is about Republican politics, about he didn't support John McCain, even though they were former friends. A lot of Republicans kind of question whether he's really a Republican.

HOOVER: I think on foreign policy, he clearly differs from Republicans on foreign policy.

He may be a strong fiscal conservative in those ways.

(CROSSTALK) HOOVER: But if President Obama thinks that because he is a Republican, he will get an easy nomination, I think clearly that's not going to be the case. Clearly, President Obama is choosing to spend political capital on this nomination.

There are other things, though, Anderson, refusing to designate Hezbollah as a terrorist organization, something that 88 senators signed a letter on to. He was one of 12 who refused to designate Hezbollah as a terrorist organization. There are multiple positions like this in Chuck Hagel's record which the American public will get a chance to see, the Senate will get a chance to ask him questions about.

And beyond that, there are left-wing interest groups who are against him, even though he has apologized about his comments about gays. This is a time where the military is reintegrating, they're getting rid of don't ask, don't tell. There are hundreds, maybe thousands of military men and women who have been dishonorably discharged over time.

(CROSSTALK)

COOPER: Groups like the HRC have said that his apology is enough.

Are there really going to be a bunch of Republican senators attacking him for his position on gays?

(CROSSTALK)

BEINART: They're so much better on gay rights than Chuck Hagel is, right?

COOPER: Right.

BEINART: Does anyone seriously think that the Obama administration because it has Chuck Hagel there is not committed...

(CROSSTALK)

HOOVER: It is not just Republicans, is what I am saying.

Chuck Schumer has been very, very tepid in his support for him.

(CROSSTALK)

BEINART: Yes, because Chuck Schumer, when it comes -- on these types of Middle East questions, is closer to Lindsey Graham and John McCain than he is to -- in many ways to Barack Obama.

HOOVER: Many senators, Democrats and Republicans, are further away than Chuck Hagel than most senators are.

(CROSSTALK)

BEINART: Listen, how many people agree with your point of view is not the test of that point of view's validity. Right? Most people it turns out in this case were actually wrong in very, very big ways about critical decisions that have cost the U.S. massively. This is what frustrates me when people say Chuck Hagel is out of the mainstream. The people in Congress who had the good sense to oppose the Iraq war and raise questions about it were out of the mainstream and darn right. I actually want that in a secretary of defense.

(CROSSTALK)

COOPER: It's interesting to have a guy who doesn't seem beholden to a particular party. He more seems to be kind of open to ideas as opposed to kind of party loyalty, which I think is probably more like most Americans are.

HOOVER: I think that's certainly what President Obama is going for. Look, he's a Republican. I will have a diverse Cabinet in terms of party affiliation. The question is his world view.

(CROSSTALK)

COOPER: Do you think he will get the nomination?

(CROSSTALK)

HOOVER: He was in favor of Bashar al-Assad.

(CROSSTALK)

BEINART: He was not in favor of Bashar al-Assad. Be fair. That's not fair to say.

(CROSSTALK)

BEINART: Because he was willing to support negotiation, just we negotiated with Stalin and with Mao and Gorbachev, doesn't mean he was for him.

COOPER: By the way, "Vogue" magazine was for him and his wife.

HOOVER: Well, "Vogue" magazine is not making foreign policy decisions in the U.S. Senate.

COOPER: Right. Well, thank goodness.

(LAUGHTER)

COOPER: Do you think he will pass?

HOOVER: I think it's premature to decide. I think we have to have the confirmation hearings.

(CROSSTALK)

COOPER: Do you think he will pass? BEINART: I think it's going to be easier than people expect. We're already finding a lot of the large right-wing pro-Israel organizations like AIPAC I think is not going to fight this that aggressively.

(CROSSTALK)

COOPER: All right, interesting.

Peter Beinart, Margaret Hoover, thanks very much. Good discussion.

Tonight, we have got a clearer picture of just how bad the flu season is turning out to be and it could get much worse. If you haven't had your flu shot, like I haven't, you might want to listen to this. Chief medical correspondent Dr. Sanjay Gupta joins me ahead.

(COMMERCIAL BREAK)

COOPER: Flu season is hitting early and hitting hard. Government health officials say the number of people seeking treatment for the flu has spiked over the month; 41 states are now reporting widespread cases; 18 kids have died so far. Keep in mind, the flu typically kills as many as 50,000 people every year in the United States.

Our chief medical correspondent, Dr. Sanjay Gupta, joins me now.

I didn't realize it kills that many people. It certainly seems worse than last year's. I know a lot of people have gotten sick. Is it in fact worse than it has been in recent years?

DR. SANJAY GUPTA, CNN SENIOR MEDICAL CORRESPONDENT: Looking at this point in time and how the season has transpired so far, it is worse than last year. Last year was considered a relatively mild season.

But this is probably as bad as we have seen in 10 years. The question that a lot of people are asking is, is it going to stay bad throughout the entire flu season or is this just sort of an earlier peak? We're seeing a lot more cases than normal this time of year. Is it going to peak earlier and then go down and just be a normal-length flu season? We don't know the answer to that yet.

COOPER: How does someone know if they have the flu vs. a regular cold?

GUPTA: It's funny because you and I have both experienced this, I know. But the thing with the flu is the symptoms are going to be more severe, but I think it's more than that. When you think about the sore throat, the headache, the chest tightness, the muscle aches, usually, with the flu, it comes on all at once.

So, it's like you may be feeling fine on Tuesday. And by Wednesday, everything has just sort of hits you. That's much more likely to be the flu, whereas, with a cold, you can get any of those symptoms that I just described, but they usually come and they go. Some may overlap a little bit, but not that sort of a big push.

And with the flu, it is usually longer, about seven days on average. COOPER: Yes, I'm just remembering what you're referring to. I got really sick with the flu in Afghanistan. You -- I think I caught it from you, and you claimed I wasn't sick or something.

(LAUGHTER)

GUPTA: Yes. It...

COOPER: I'm just pointing that out. What was that? It was like...

GUPTA: That was swine flu.

COOPER: Swine flu, that's right. I had swine flu. And you're like, "No, no, I think you're fine."

GUPTA: Yes. It did seem a little out of context. We were in Afghanistan covering the conflict over there, and you came to me looking pretty terrible. I didn't think at that point swine flu had made its way all the way over to that part of the world.

COOPER: Yes, it sure had. It had.

GUPTA: I know, look, if it makes you feel any better -- I'm not sure that it will -- I was right there with you.

COOPER: You were worse off than I was. You were worse off than I was. But you were smart enough to get an IV drip, as I recall.

GUPTA: That's right. As you recall.

COOPER: But I mean, what about the flu shot? I only got a flu shot last year for the first time in my life. Do they work? Because I've heard you can still get the flu even if you have a flu shot.

GUPTA: They do work. And I do encourage people to get a flu shot. I know there's a lot of people watching out there right now that may say, look, it doesn't work. It even made me sick.

It doesn't work every time. About -- this year, they're saying about 60 percent effectiveness. It's not 100 percent.

COOPER: Better than nothing.

GUPTA: Yes. Better than nothing.

And there's something else that I want to point out, as well. A lot of people say they get the flu shot, and that makes them get the flu. A couple things to keep in mind. It takes about two weeks after you get the flu shot to have immunity.

COOPER: Oh, really?

GUPTA: So it's not going to protect you right away. And the other thing -- and this is really interesting, Anderson -- is that when you get a flu shot, you're getting a dead virus, so it can't give you the flu, but what it's doing is activating your immune system. That's what it's supposed to do. It's teaching your immune system to recognize that virus as a problem so when it sees it again, it attacks it.

But when your immune system is ramped up like that, you feel kind of cruddy. So it's not that you've got the flu. It's that the flu shot is doing its job. Making your immune system activate.

COOPER: All right. I haven't gotten mine yet, but I will now. Sanjay, appreciate it. Thank you. Good advice.

GUPTA: Thank you. Take care.

COOPER: Let's check on some of the other stories we're following right now. Isha is here with a "360 Bulletin" -- Isha.

ISHA SESAY, HLN ANCHOR: Anderson, Secretary of State Hillary Clinton went back to work today, her first day after being sidelined for weeks by an illness -- by a series of health issues including a concussion that led to a blood clot.

She met with some of her senior staff and reportedly got a warm welcome back. She also got some gifts, including a football helmet to protect her from another head injury.

James Holmes, the Colorado movie theater shooting suspect, was relaxed and seemed detached from it all. He also didn't struggle when he was dragged away by police. Those details revealed today at a preliminary hearing by the first police officer who encountered Holmes.

Twenty people were killed in the July 20 shooting rampage at an Aurora movie theater.

And in Jersey City, New Jersey, five people were injured when a crowded escalator malfunctioned and started going backwards at a PATH train station. The chaos was caught on video during the morning commute by an eyewitness -- Anderson.

COOPER: Isha, thanks very much.

Still ahead, outrage over a horrific crime, a sexual attack on a bus by multiple men who attacked a woman and her boyfriend. Now, the woman has died. Five of the men accused in the brutal attack are now facing justice behind closed doors. We'll have the latest from the trial ahead.

(COMMERCIAL BREAK)

COOPER: In "Crime & Punishment," the horrific gang-rape case that has sparked protests across India and outrage around the world moved one step closer to trial today.

Five of the six suspects arrived at a preliminary hearing in that van. It's the only video of them from today. That's because there was so much chaos actually inside the courtroom, that a magistrate sealed the proceedings off. She also slapped a broad gag order on reporters. We're going to have more on that in a moment. Bur first, the rage that this attack has unleashed. It's important to talk about, and it's really extraordinary, the reaction. You have to keep in mind rape is very common in India.

In 2011, there were more than 24,000 reported rapes. That's according to the national crime records bureau. One rape every 22 minutes. But those are only reported cases. Experts say many more cases go unreported. The typical response, though, by authorities is to actually turn a blind eye or even blame the victim. Not this time, apparently.

Here's Randi Kaye.

(BEGIN VIDEOTAPE)

RANDI KAYE, CNN CORRESPONDENT (voice-over): We don't know her name, but we know her story inspired this: outrage.

On December 16, that 23-year-old student returning home from a movie with a friend was savagely attacked on a moving bus.

(on camera) She was raped so violently with an iron rod, her intestines were destroyed. Six men, including the bus driver, are charged with murder, rape, armed robbery, and kidnapping. The rape lasted more than an hour before the woman and her friend were thrown from the bus. Her attackers reportedly tried to run her over before leaving her in the street to die.

(voice-over) But the young woman was a fighter. Her will to live elevated her to martyrdom, and thousands took to the streets. For weeks now, they've demanded justice in her honor. She survived the attack long enough to give police a statement, but her brain injury and organ failure proved too much. She died 13 days later.

When the victim died, there were vigils. Those mourning her know all too well it just as easily could have been them on that bus.

RANJANA KUMARI, WOMEN'S RIGHTS ACTIVIST: There are children in the city that go by bus. Somebody is pinching you; somebody is touching you; somebody is coming close to you. I mean, this is absolutely, you know, the mentality there. You just look at a woman's body as an object of sex and you want to just use, abuse.

UNIDENTIFIED FEMALE: They literally rape you with their eyes.

KAYE: That sentiment, that women simply don't have a voice here, then turned to anger. Police turned water cannons and tear gas on a crowd of protesters that got out of control.

There were peaceful protests, too, though. Hundreds of women marched silently through the streets of New Delhi, calling for greater protection.

Sonia Faleiro, the author of "Beautiful Thing: Inside the Secret World of Bombay's Dance Bars," lived in India for more than two decades. She says the protests are telling. SONIA FALEIRO, AUTHOR, "BEAUTIFUL THING": It means that, you know, contrary to what we may have thought and what people certainly think, we are not a society that has become numb to this kind of behavior.

We are a society that has allowed it to go on for too long. We are a society that has certainly -- clearly tolerated it for too long, but we are not a society that is willing to allow it to continue.

KAYE: A sentiment echoed by India's prime minister.

MANMOHAN SINGH, INDIA'S PRIME MINISTER: I assure you that we will make all possible efforts to insure security and safety of women in this country.

KAYE (on camera): Officials are hoping to assuage the anger with a series of changes. More police night patrols, the banning of buses with tinted windows and curtains, and changes to current weak anti- rape laws.

But Sonia Faleiro says it will take more than that. She says people don't trust police, who often blame the rape victim and their behavior for the attack.

FALEIRO: I think it's a, you know, a classic response of a misogynistic culture in which you blame the victim for the crime that's been inflicted on her.

KAYE (voice-over): In fact, last week, another rape victim, just 17, swallowed poison to commit suicide after her family says police suggested she recant her story, even marry her attacker. Sonia says that's not uncommon.

In the bus attack, the men who were caught face the death penalty. Authorities are still testing the bone marrow of one suspect believed to be a minor to determine if he should be charged as a juvenile or adult. The victim's father is demanding justice.

UNIDENTIFIED MALE (through translator): The death penalty is compulsory for a crime so grave. The assailants must be hanged. The courts must give these men the death penalty.

KAYE: Randi Kaye, CNN, Atlanta.

(END VIDEOTAPE)

COOPER: CNN's Sumnima Udas joins me now. You were at the courthouse when the suspects were brought in. What happened?

SUMNIMA UDAS, CNN CORRESPONDENT: Anderson, the five suspects charged with the murder and rape of that medical student were brought into court today. Basically, so that the charges against them could be read out to them.

Now, the court did announce that this would be an in-camera proceeding from now on. What that means is that the public and the media will have no access to that court proceeding from now onward. And even if the media were to get information from elsewhere on those court proceedings, they would not be able to report on that.

I should point out that this is actually standard practice in rape cases in India, and that's presumably because rape victims do not want the public and the media around.

But also there was a bit of a ruckus right before the suspects were brought in. Some of those lawyers there yelling at other lawyers, at their colleagues saying, quote, "You cannot defend those barbarians."

COOPER: It's also going to be what's called a fast-track court. What does that mean exactly? Is it just that it's going to happen quicker than otherwise would be the case?

UDAS: What that means is that the court will be hearing this case -- on this case every single working day from now onward until some sort of verdict has been reached. And this was exclusively set up because of that brutal gang rape and the massive public outrage that followed, Anderson.

COOPER: Also, the victim's friend, who was with her at the time of the attack, was attacked, as well. He made statements for the first time over the weekend, and blamed everyone, not just law enforcement but also medical responders. I mean, it sounds like a nightmare that he and she went through, even after they were -- got out of that -- out of that vehicle.

UDAS: That's right. He says he still shivers in pain when he thinks about that incident.

And he really was quite critical, not just of the authorities and the doctors, but also of the people in general. He said for about 20, 25 minutes, once they were chucked out of that bus, they were just lying there. People would walk by. There were these three-wheeler auto rickshaws who would just drive by, and no one stopped to help them for about 25 minutes.

Finally, someone did call the police. The police showed up, and the police started discussing amongst themselves over what jurisdiction this would be under.

And then he was also very critical of the doctors, as well, of not giving adequate treatment at the right time, Anderson.

COOPER: Sumnima, I appreciate your reporting. Thank you very much.

Such a disturbing case. We're going to continue to follow it.

Up next, a defiant and still loved -- at least by the crowd in that room. Massive crowd on hand. The Syrian president calls the opposition terrorists. His first speech in months. More on his message ahead.

And the plea from the family of Zaidoun Zawabi, a voice of the Syrian revolution, who was last seen nearly a month ago, taken by secret police. We'll be right back.

(COMMERCIAL BREAK)

COOPER: We've been reporting on someone who, for more than a year has repeatedly risked his life by talking to us on this broadcast from inside Syria. Someone whose voice we're determined is still heard, Zaidoun al-Zawabi, a voice of the Syrian revolution. He hasn't been seen since December 15. His family says he was taken by secret police. We'll have more on that in a moment.

First, though, the dictator, Bashar al-Assad's, first public speech since June occurred. It was almost surreal, a cheering crowd -- you see them there -- as Assad continued to characterize the opposition as terrorists, saying they're the enemies of the people, the enemies of God.

He was swarmed by supporters even as shelling continued during the speech. The Syrian leader saying he is not going to step down. Look at all those people cheering for him.

Now, the U.N. says more than 60,000 Syrians have been killed in the past 22 months. The actual numbers are impossible to know.

And Zaidoun told us time and time again, at great risk to his own life, that he wanted the world to know what was happening inside his country. Zaidoun's family says in mid-December secret police came to his home and arrested him. And they believe Zaidoun and his brother, Zohay (ph), are being held in a facility in Damascus notorious for torture and abuse.

Zaidoun's cousin, who lives in the United States, has created a Facebook page to demand his release and to demand his brother Zohay (ph) be released, as well, in the hopes that someone inside the Syrian regime will listen.

I spoke to Zaidoun's cousin about the ordeal her family is going through. Take a look.

(BEGIN VIDEOTAPE)

COOPER: When was the last time that you or somebody from the family spoke to Zaidoun?

REEM AL-HARIRI CONNOR, ZAIDOUN'S COUSIN: I spoke to Zaidoun four days before he was detained. We always worked together. He was into helping others, and there was one field hospital that he was pretty much responsible for. So anytime he needed help, medical supplies, or even in terms of financial help, he would ask me, and then we would communicate on how to get that to him. So I spoke to him four days before he was detained.

COOPER: The thing -- I mean, I've never met him, but I feel like I've spent a lot of time with him, just talking to him on the phone and -- or talking to him on the air. And I've just been struck by his extraordinary courage. I mean, this is a man who could have stayed silent. He could have not spoken up. He could have not used his name. He wanted his name to be used. He wanted to put a name to his voice. Has he always been this man of courage? CONNOR: He has been that kind of person from the beginning. He's very outspoken. He's very vocal, and like you mentioned, I -- when I talked to him about, you know, going on CNN the first time, like, "Please don't use your name."

And he's like, "No, we're not going to be afraid anymore. I want to use my name, and I want to be out there. I want the whole world to know what's going on."

COOPER: He said to me at one point that, for the first time in his life, he feels like he has a voice. And that, I mean, to me, that was an extraordinary thing that I've thought about a lot since he said it.

CONNOR: It was very powerful. I actually heard that on the air, and I was in tears, because it's very true. And, you know, being a Syrian, although I'm living the virtual revolution here, but I can connect to that. And whenever I talk about Syria, I just -- I feel like my heart is jumping, and it's so empowering what's happening. And for him to be part of it, and to be able to -- to speak his mind on TV or on media for the first time, it's very powerful.

COOPER: How fearful are you about -- about Zaidoun right now?

CONNOR: I'm very, very fearful because I know, because he's been so peaceful and pro-peaceful revolution and the regime fears the intellectual people who are that way.

COOPER: And Zaidoun's daughter, I know, posted a Christmas message to her dad. I just wanted to play it.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: December 24th, 2012. Dear Papa, I miss you so much. Tomorrow, it's the Christmas, but we will not celebrate. I want a Christmas tree.

Daddy, where are you now? Mama told us that you are traveling from one place to another. I will tell you three important things. I am the second in my class now. Julia and I miss you. Dana is better than Julia, but she will be (UNINTELLIGIBLE).

P.S., we miss you so much and merry Christmas.

(END VIDEO CLIP)

COOPER: Does she know what happened?

CONNOR: She does not. As she mentioned in the letter, her mom told her he was traveling to look for a better place for them, a safer place. And it's heartbreaking, it's very emotional to see that video and think about them. And you know, I played with her three years ago when I was in Syria.

COOPER: How are they?

CONNOR: They're OK. For kids, they miss their dad. They don't know the full picture. They don't understand what's happening. They just know that they need their dad.

COOPER: Thank you very much. We hope this helps, and we'll continue to focus on Zaidoun.

CONNOR: Thank you very much. Thank you.

(END VIDEOTAPE)

COOPER: According to opposition activists, 71 people were killed today in Syria. We'll be right back.

(COMMERCIAL BREAK)

COOPER: Oh, yes, it is time for "The RidicuList." This time, we have yet another modern-day fable that proves that there's no, perhaps, deeper relationship on earth than the one that's forged between a man and his sandwich.

At a Subway in Florida a customer ordered a cheese steak. Doesn't that look delicious? Of course it does. But it ran into a bit of a problem when it came to the condiments, and thus played out an epic battle between customer and Subway sandwich artist.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I told him American cheese, onions, ketchup.

UNIDENTIFIED MALE: He wants ketchup on the Philly cheese steak, and I've never put -- we don't even have ketchup in Subway. I've never put ketchup on anybody's sandwich.

(END VIDEO CLIP)

COOPER: It is a conundrum, no?

At this point they should have taken a deep breath, asked themselves, "What would Jared do?" Instead, the customer said he didn't want the cheesesteak without ketchup. Some sort of verbal confrontation started between the ketchup guy and the Subway employee, and that's when things went all $5 foot-wrong.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: That's when I flew off the handle.

UNIDENTIFIED MALE: He shoved a chair to the side, like knocked it down to come at me. And I said, "This is going to be serious."

UNIDENTIFIED MALE: And I said, "Fight me like a man."

UNIDENTIFIED MALE: I was scared.

(END VIDEO CLIP)

COOPER: Yes, so the Subway employee has since been relieved of his job, proving once again that the customer is always right, even if said customer wants ketchup on his cheesesteak.

Come to think of it, why doesn't Subway have ketchup? They've got a lot of fancier stuff there: red wine vinegar, honey mustard, sweet onion sauce, for goodness sakes. What happened to good old-fashioned ketchup?

Although, as our Subway sandwich artist points -- or I should say, former Subway sandwich artist, one could always BYOK, especially all that particular -- at that particular Subway, which just so happens to be in a Wal-Mart.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: There's ketchup three aisles down. You can go buy your own ketchup, and I'll promise to God you can put as much as you want on it and nobody is going to say nothing.

(END VIDEO CLIP)

COOPER: This is why I always have a minimum of 25 ketchup packets on my person at any time, not because I particularly like ketchup -- it's full of sugar -- but because I like to be ready to keep the peace, should a condiment emergency present itself, as it often does.

So the ketchup guy called 911 during this brouhaha, but by the time the police arrived, the sandwich artist had already left the building.

Nonetheless, I would like to point out that this makes the second time we've heard about someone actually calling the police due to a sandwich-based situation. Roll the call.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I'm like at Greatful Deli, and I specifically asked for a little turkey and a little ham and a lot of cheese and a lot of mayonnaise, and they're giving me a hard time. I was wondering if you could just stop by and just -- I was just wondering if you could just -- just...

UNIDENTIFIED FEMALE: You're calling 911, because you don't like the way that they're making your sandwich?

UNIDENTIFIED MALE: Exactly.

UNIDENTIFIED FEMALE: So then don't buy it.

(END VIDEO CLIP)

COOPER: Great advice, 911 operator. If you don't like the way someone is making your sandwich, don't call 911. Just don't buy it.

When all else fails, speak softly and carry a ketchup bottle.

That's it for us. Thanks for watching. "ERIN BURNETT OUTFRONT" starts now.