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LEGAL VIEW WITH ASHLEIGH BANFIELD

Obama Defends Sacred Rule; 12-Year Old Stabbed and Left to Die in Woods; Girls Arrested for Stabbing Friend 19 Times

Aired June 3, 2014 - 12:00   ET

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


JOHN BERMAN, CNN ANCHOR: Eastern and Pacific Thursday night.

MICHAELA PEREIRA, CNN ANCHOR: Thanks for joining us AT THIS HOUR. I'm Michaela Pereira.

BERMAN: And I'm John Berman. "Legal View" with Ashleigh Banfield starts now.

ASHLEIGH BANFIELD, CNN ANCHOR: Facing mounting criticism for the controversial release of Army Sergeant Bowe Bergdahl, President Obama hits back at the critics who say he broke the law.

And two 12-year-old girls apparently so fascinated by a website known for telling some creepy horror stories that they are now accused of carrying out a real-life nightmare against a friend of theirs to impress a fictional character.

Plus, he's considered one of the greatest quarterbacks of all time. And now Hall of Famer Dan Marino is filing his own lawsuit against his former employer, the NFL, over concussions.

Hello, everyone. I'm Ashleigh Banfield. It's Tuesday, June the 3rd and welcome to LEGAL VIEW.

The United States Army has waited almost five years to ask Bowe Bergdahl how and why he left his platoon in Afghanistan and then ended up a Taliban prisoner. And although he's now been back in American hands for three days, he has not yet been asked that question or any others, so says the man who engineered his release, the president of the United States, President Obama.

He says the only American service member held prisoner in the Afghan war is still in the middle of getting his medical treatment at the military hospital in Germany and hasn't even yet seen his own family. It is still not clear what Bowe Bergdahl's health issues are, nor when he is going to return to the United States.

But in another country, in Poland today, first stop on a three-nation, four-day trip to Europe, Mr. Obama gave a detailed defense of the prisoner swap that won Bowe Bergdahl his freedom. And I want you to hear some of it. (BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: The United States has always had a pretty sacred rule. And that is, we don't leave our men or women in uniform behind. And that dates back to the earliest days of our revolution. We have consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange in order to recover Sergeant Bergdahl. We saw an opportunity. We were concerned about Sergeant Bergdahl's health. We had the cooperation of the Qataris to execute an exchange and we seized that opportunity. And the process was truncated because we wanted to make sure we did not miss that window.

(END VIDEO CLIP)

BANFIELD: By law, Congress is supposed to get 30 days' notice before any prisoners are moved from Guantanamo Bay. But that's a technicality compared to the shock and the outrage felt by many over who those prisoners actually are and who Bowe Bergdahl is. In the minds of several who served with him, they say he is a deserter.

I want to welcome back to LEGAL VIEW retired Army lieutenant colonel, former military lawyer and professor at South Texas College of Law, Geoffrey Corn. We are also joined by Navy veteran military justice expert and Loyola law professor David Glazier. And joining me live here in New York, attorney and CNN commentator Mel Robbins and CNN legal analyst Danny Cevallos.

David Glazier, Professor Glacier, first to you.

A lot of people are talking about this one very specific issue and that's the notification of Congress before transferring Gitmo prisoners. It seems very simple, and yet it's becoming very complicated. Is this just a technicality or is it something far greater than that?

DAVID GLAZIER, MILITARY JUSTICE EXPERT: Well, the question, of course, becomes, has the president complied with the statute? And it appears facially (ph) that he hasn't complied with the direct language of the statute. But the larger question is, is this statute, in fact, the applicable law? Because under the Constitution, the Constitution itself is the supreme law of the land. And if the president has the constitutional authority to conduct an action, then Congress can't deny him that authority by simply passing a statute. So this is one of those situations in which we have a law in which the Constitution apparently is going to trump it, accord to many folks, and certainly that seems to be the administration's view.

BANFIELD: And, Colonel Corn, we -- this is really an extension of the conversation you and I were having yesterday -

PROF. GEOFFREY CORN, SOUTH TEXAS COLLEGE OF LAW: Right.

BANFIELD: And that is, it's a law, but it seems to be a law that not only has been broken but has been broken year after year, administration after administration. I can quote you chapter and verse of Lincoln doing it, of Madison doing it, of Bill Clinton doing it, just to name a couple.

CORN: Well, in many of those cases, Congress had not enacted a statute requiring prior notification. And I think if they hadn't done so in this case, it wouldn't be controversial at all. The real issue, as my friend Dave Glazier, noted, whether or not this law binds the president. Yesterday Jeff Toobin said the president clearly broke the law. I think what the president did was clearly inconsistent with the statute, but whether or not the statute is binding on the president is a very complicated constitutional question.

And it appears that the administration has two views. The first is that they interpreted the statute to allow them to act in this exigent circumstance, which is facially inconsistent with the statute and hard to defend. I think the backup argument is that even if the statute was violated, it was not binding on the president because it interfered with his vested function as commander in chief.

BANFIELD: Again, it's the wiggle room that seems so difficult for many of us to understand who, say, don't have JDs. So I'm going to turn to those with JDs as well.

Danny Cevallos, the president said, this is what happens at the end of war. But that to me doesn't sound like a good legal argument. That sounds like a very good public relations campaign which the president is greatly in need of right now. A lot of camps are very upset with what's happened. But effectively, I've seen this happen before, maybe not with this particular congressional rule, but with those other presidents I mentioned before and prisoner exchanges at the end of war.

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, it is sort of an end around the legal argument because the president can say, this is part of my powers as commander in chief. He used a signing statement back when this law was signed, essentially saying, I'm going to sign it, but I think it's unconstitutional.

And that's why constitutional law is so exciting because you have equal powers of government. You have the legislative saying the president did something wrong and president saying, hey, legislative branch, you didn't have the power to issue this law in the first place. I objected to it at the time. And my actions, even if they broke the text of the law, you didn't have the power to issue that law in the first place. Of course, the legislature, Congress, going to say, we absolutely did have that power. It falls within the specific powers that are granted to us. But this is a showdown of constitutional proportions.

BANFIELD: It sounds like constitutional jurisdiction almost.

MEL ROBBINS, CNN COMMENTATOR: You know, I honestly think that the reason why anybody's talking about the problem here, Ashleigh, is because Bergdahl is so controversial. Had he been snatched for sure, because we don't know the circumstances under which -- there's a full investigation being launched -- because so many people are coming out now and saying, hey, wait a minute, he's not a hero. He walked off the post. I think that combined with the fact that we're talking about five mid to high-level ranking Taliban soldiers, including a deputy minister of the Taliban, being swapped in exchange, I think that's why this is controversial. You've got a hero that's yanked from the battlefield for sure, people would have been applauding this.

BANFIELD: Well, and, you know what, let's remember, right now, that there is a very big piece that's missing in this, and that is Bowe Bergdahl's account of what happened the night that he went missing.

ROBBINS: Yes.

BANFIELD: Because right now that's how it's being classified, that he was missing, not that he was a deserter. There are very strident claims being made by fellow platoon members that he did desert and there are those as well who were within the investigation who say, we don't know that for certain just yet. And as the president mentioned, he hasn't even been asked yet because he's in the midst of the medical recuperation at this point.

I also want to remind everybody as well that the president is also a constitutional lawyer. So you would think that he not only was surrounded by very smart minds, but also has one of his own, in which to assess all of these questions.

Professor Glazier and Professor Corn and - Colonel Corn, as well, I want to say thank you to you for your insight on this. Danny and Mel, thank you as well. Sit tight. Other questions for you.

Particularly another big story today, and this one is one of those unbelievable stories. It just seems like it's out of Hollywood. A 12- year-old girl and her 12-year-old friend, they've been arrested because their 12-year-old pal was stabbed 19 times. It's horrific enough. But if you look at the faces of those two who are accused with this, they are just children and yet they are charged as adults in a very serious case. And it's raising questions about the legal system, but also questions about the website which was allegedly the source that inspired this whole incident if you believe these girls. The legal view on that straight ahead.

(COMMERCIAL BREAK)

BANFIELD: They had sleepovers. They went roller skating. They whispered on the school bus. They talked in secret code. Two 12-year- old girls leading a seemingly normal preteen life. But now they are in court charged as adults and accused of trying to stab their 12-year- old friend to death. They told the police the plan was in place since February and ultimately that little girlfriend of theirs was stabbed 19 times, she was left in a wooded area in Wisconsin, left to die. She didn't. Rosa Flores walks us through the attack and the inspiration that lead to it.

(BEGIN VIDEOTAPE)

ROSA FLORES, CNN CORRESPONDENT (voice-over): The details play out like the plot of a horror film.

CHIEF RUSSELL JACK, WAUKESHA POLICE: In the morning, the suspects went to Davis (ph) Park and lured the victim into the woods near Big Ben Road, south of Rivera Drive, to play a game.

FLORES: Two 12 year girls are accused of inviting their friend to play hide in seek after a sleepover. But police say they had much darker intentions.

JACK: Once there, one suspect held the victim down while the other suspect stabbed her 19 times in the arms, legs and torso.

FLORES: Suspects Morgan Geyser and Anissa Weier, middle school students who appeared in court Monday, allegedly spent months planning the attack on their friend. The suspect's fascination with Slender Man, a fictional Internet character that often appeared in horror stories and videos, led to the attempted murder plot, accord to police.

The website, known as Creepypasta Wiki, that posts horror stories, portrays Slender Man as its leader. In order to gain respect and climb up to his realm, a user must commit murder one of the young suspects told authorities. Severely wounded, the victim managed to crawl out of the woods where she was found by a bicyclist. According to court documents, she was one millimeter away from certain death.

JACK: Many of the stab wounds struck major organs, but incredibly and thankfully the victim survived this brutal assault.

FLORES: The suspects are facing attempted first degree murder charges and will be treated as adults.

THOMAS PIEPER, COURT COMMISSIONER: I recognize the young age, but it's still unbelievable.

FLORES: The parents of the young suspects in shock about the brutal attack.

DONNA KUCHLER, MORGAN GEYSER'S ATTORNEY: Morgan's parents are very sad about what has happened. They're horrified. And our condolences to everyone.

(END VIDEOTAPE)

BANFIELD: And Rosa Flores joins me now, live, along with CNN.com tech writer Doug Gross who's been working on this story.

Rosa, first to you, we're getting some details from the actual criminal complaint in which the officers pulled both girls, separately, and interviewed them to get their account out what happened. It's chilling to read this from the mouth of 12-year-old girls, but what were the details?

FLORES: Let me share some of those details with you, because these go back to February. So, again, this is all according to the criminal complaint.

So, back in February, these two girls start talking, and they say, OK, so we need to kill somebody so that we can join this fictitious character online, and we can be one of their proxies. So what do they do? They start talking on the bus, using code, and one of them says, my birthday is on May 30th, and I always have two friends come along to my house. Why don't we do the killing then?

Well, then, hear this. They have two separate, different plots. They go out. They go roller skating. They come back. And the girl, the victim, is sleeping. So they start thinking, OK, what do we do? They think about shutting her mouth with duct tape. Then they say, maybe we need to kill her in the bathroom so that the blood can drain because there's a drain.

What do they end up doing? They go on a hide-and-seek play at the park and that's where one of them grabs a kitchen knife and, of course, the stabbing happens, this alleged stabbing. Again, all of this, according to the criminal complaint.

Now here's one of the chilling details, is that these girls packed granola bars, bottled water, pictures of their parents, because they were going to walk to this mountain where this fictitious character lives, this national park, and they were going to go find this fictitious character, and they were going to be one of their proxies.

Of course, we all know that this is a character from the Internet who's associated with horror stories and videos and images, and this person does not exist.

BANFIELD: They even said to the police in this criminal complaint, allegedly, that when they stabbed their friend over and over, and she was screaming, they told her they were going to go for help and that she should calm down and bleed slower so that she wouldn't die.

Ultimately they, according to police, admitting they never intended to get help. They intended to go find this "Slender Man," this fictitious Slender Man, which leads me to Doug Gross.

He's been following this story and this sort of fictional world on a Web site called CreepyPasta.com.

Can you just sort of get me up to speed on what CreepyPasta.com is, what kind of stories they tell, and who this Slender Man character is?

DOUG GROSS, CNN TECH WRITER: CreepyPasta is one of those great Internet terms that makes no sense when you first hear it.

CreepyPasta comes from "copy pasta," which itself comes from "copy paste." It's a form of very short, usually Web-only fiction. CreepyPasta is horror fiction.

And the CreepyPasta Wiki is literally just a site that compiles different stories about this, some Slender Man stories, lots other stories, so very clearly, from the sounds of things, you have some very confused girls because there's nothing to the site having to do with Slender Man runs this site or anything like that.

It's a form of fiction that gets shared a lot on the Internet. It's also worth noting Slender Man stories are on probably thousands and thousands of different Web sites. I do have the statement from CreepyPasta Wiki that I wanted to mention because I think it is important. They responded, obviously, by saying that their heart goes out to the victim, and then made just the very obvious point.

They say there's a line between fiction and reality, and it's up to you to realize where that line is. We're a literature site, not some sort of satanic site.

They go on to say that this is probably obvious to the vast majority of people who visit the site, but obviously you had some very confused girls here.

Slender Man got his start on a different Web site back in 2009 on the "Something Awful" forums. It actually started as sort of a joke. People were creating these fictional paranormal-type photographs. They were photoshopping and seeing who could make the best image.

This one guy, Eric Knudsen created an image of some children with what's become now this sort of iconic Slender Man figure in the background, very slim, no face, black suit, black hat. So he just kind of created this, and it took off. It went viral, as these things tend to do, and now he's all over the Web.

BANFIELD: And now he's all over the news --

GROSS: Right.

BANFIELD: -- because of what these two girls have said to the police.

Doug Gross, thank you for that. And, also, Rosa Flores, thank you.

So distressing, to say the very least, is this story, but then there are also all the legal questions that surround two little girls at the age of 12 in a very grown-up system, in a very grown-up courtroom, and, prior to that, in a very grown-up interrogation.

Can we use that interrogation against them? Were their parents called? Were their lawyers present? Do those girls understand what Miranda warnings are? Are they old enough to understand any of this?

That LEGAL VIEW's coming up next.

(COMMERCIAL BREAK)

BANFIELD: Police say two 12-year-old girls believed a fictional, demon-like character named Slender Man, online, was real and that they were going to prove it. How? By stabbing their 12-year-old friend to death, then walking to his mansion in a national park in Wisconsin and becoming one of Slender Man's proxies.

This is the account from these girls, according to the police, and now these girls are charged as adults with attempted first-degree intentional homicide, and, if they are convicted of that crime, they could spend up to 65 years behind bars. You can see one of the suspect's fathers, the look on his face as he leaves court, overcome with emotion, weeping, and his little girl could be locked up until she's 77-years-old. Again, she's 12. They're all 12.

Want to bring in CNN commentator Mel Robbins and CNN legal analyst and criminal defense attorney Danny Cevallos.

Both of you, attorneys, both of you, I think fair to say, have never been faced with a client like this or with a crime like this. I don't know that I've ever reported on anything this bizarre.

Effectively, you're looking at 12-year-old kids being elevated into an adult system. There's so many questions to start with. But how about just this, Miranda warnings? If those parents weren't anywhere around when those kids started telling those stories, do any of those stories come into court?

DANNY CEVALLOS, CNN LEGAL ANALYST: Good question. I've had this happen to me so many times, and people would be surprised to learn that juveniles can give a knowing and intelligent waiver of their Miranda rights.

The court will look at factors like, did they have the opportunity to consult with any adult, any adult that's disinterested, not the detective? But as long as they make a finding that the juvenile made a knowing and intelligent waiver of those rights, that statement, and many statements by juveniles, come into juvenile court every single day.

BANFIELD: The fact that they said all of these things, allegedly, if you believe the police complaint, and, again, it is a complaint. This is written by officers, so these are all allegations.

They have no clue about how to defend themselves. Do we even have a competence issue here with these 12-year-old girls in an adult system? Can they help in their own defense now?

MEL ROBBINS, CNN COMMENTATOR: It's a great question, because as a mother of a 13-year-old, and for everybody watching that has a 12- year-old in their life, you know one thing; they're not adults. And their brains aren't fully formed. And these kids are already expressing regret. Now, that doesn't take away from the fact that this crime is horrific. It was planned. They passed a knife back and forth, Ashleigh, as they --

BANFIELD: Allegedly.

ROBBINS: Allegedly, as they were coming to grips with, are we going to do this, are we not going to do this.

So I think this is one of those cases where I highly doubt there's is going to be a trial. This is going to move to, what do you do with these kids? Because it's terrifying to me to think about taking a 12- year-old and throwing them into an adult facility.

BANFIELD: Until they're almost 80.

ROBBINS: When clearly they've got mental health issues. Clearly. You don't do something like this unless there is a competency issue. BANFIELD: And let me remind our viewers we are not talking about the severity of the crime. That is a given. It's awful.

We're talking about the kind of person you're dealing with at 12, and whether they're even capable of forming, you know, mens rea or some kind of malicious intent or criminal intent like a grownup can, because we darn well grownups know right from wrong.

ROBBINS: I think they can. I think the question is, what do you do in this case?

BANFIELD: What do you do with them? I don't think the story's over. We're going to be dealing with this one for a while.

Mel and Danny, stick around, if you will, because there's another big, top legal story that's hit the news, another concussion lawsuit filed against the NFL with a bombshell, because this suit is joined by that man, former star quarterback Dan Marino.

Will one of football's most famous players help or hurt the cause? We're going to talk about that, next.

(COMMERCIAL BREAK)