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Legal View with Ashleigh Banfield

Possible Prisoner Swap between Jordan and ISIS; Flooding and Evacuations in Massachusetts; Aaron Hernandez Prepares for Trial

Aired January 28, 2015 - 12:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Making a deal with ISIS. A possible prisoner swap with Jordan to stop the next beheading. But what is the price for negotiating with the world's most brutal terrorists?

Also ahead, think the big storm didn't live up to all the hype? Think again. While some big cities definitely dodged a bullet, coastal towns in the cross-hairs got a double shot. Storm surge, flooding, on top of three feet of snow.

And also this hour --

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UNIDENTIFIED MALE: Count one, we find Mr. Vandenberg guilty of aggravated battery.

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BANFIELD: He may shake his head, but former Vanderbilt football players, two of them, found guilty in the watershed rape trial where a video that made the jurors gasp reveal the horrors that the unconscious victim may never have known about.

Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

Can a country that's at war with ISIS make a deal with ISIS to win a hostage's freedom? That is certainly the question of the hour as Jordan right now says it will release a convicted terrorist who is currently sitting on death row if -- and I repeat if -- the group that calls itself Islamic State frees a Jordanian fighter pilot who was shot down over Syria and who they are apparently holding. We have not heard boo from that group ISIS since yesterday when the group posted this image of Japanese hostage Kenji Goto holding a photo that seems indeed to be that Jordanian named Muath al-Kaseasbeh (ph). A voice that is purportedly Goto says he will go free if Jordan releases the condemned bomber, Sajida al-Rishawi, otherwise he and that pilot will die. The deadline for such a trade has now passed. And while we wait to hear more, I turn to CNN's Jomana Karadsheh in Amman and Barbara Starr at the Pentagon and our own national security analyst Peter Bergen, who is in our Washington bureau.

So, Jomana, I'll begin with you in Amman. What is the latest from the Jordanian government? Do they get any word, do they know anything about whether this transfer might happen? JOMANA KARADSHEH, CNN CORRESPONDENT: Not a word so far from the

Jordanian government, Ashleigh. What we heard a few hours ago was that offer being made by the Jordanians saying, for the first time, that they are willing to release Sajida al-Rishawi. This is the first time we hear the Jordanian government speaking about Sajida al-Rishawi since the demand was made by ISIS and also the first time that they are announcing a possibility here of an exchange to save the life of the pilot, Muath al-Kaseasbeh.

The issue here, Ashleigh, is, this does not match what ISIS has been asking for. Jordan is making an offer, but this is not the demand by ISIS. ISIS has offered to exchange Sajida al-Rishawi with the - with Kenji Goto, not the Jordanian pilot. They just raised the stakes saying, unless she is released, both will be killed. The last thing we heard from the Jordanian government is that she had not been released yet and they say that they have not even gotten proof of life recently for the captured pilot. The government here, Ashleigh, under a lot of pressure to secure the release of that pilot who has been in ISIS captivity for the past month now.

BANFIELD: But, Jomana, just make no mistake that the foreign minister of Jordan did not include the name of that Japanese hostage in terms of making the deal for a prisoner swap, did he?

KARADSHEH: No, he did not. And also the government itself, we heard a government spokesperson coming out through state media a few hours ago when they made that offer, there was no mention of Kenji Goto. The Jordanians here saying that their top priority is that captured pilot.

BANFIELD: That is such a difficult predicament. Barbara Starr, at the Pentagon, perhaps you can weigh in on this. The actual situation that the Jordanian government finds itself in and whether the United States is of any help in this matter.

BARBARA STARR, CNN PENTAGON CORRESPONDENT: I think the U.S. is pretty much going to sit this out on the sidelines, at least publically, Ashleigh. Let me go back quickly to clarify. The coalition says the pilot was not shot down by ISIS but rather he had mechanical problems. He ejected out of his aircraft and then was captured on the ground.

He has been, (INAUDIBLE), in ISIS captivity for the last month and has really been a top priority. Most of the chatter you hear is that there have been some backdoor discussions between the Jordanians and perhaps third parties trying to find a way to get him out.

This is a situation where perhaps the pressure on the Jordanian government to get their pilot back, their military member, is well- understood by the Pentagon. You'll remember it was last year the U.S. traded several Taliban prisoners to get Bowe Bergdahl back, U.S. Army soldier, get him back from the Taliban. The Israelis often trade.

Getting your military personnel back is very sensitive, very difficult, but it is something that countries do. And this woman that the ISIS group wants to trade for, she's a real propaganda prize for them. If they can get her back, they can get a lot of propaganda value out of it through videos, through social media, claiming that they have achieved a victory here.

BANFIELD: Peter Bergen, if you could weigh in. You know, so much is murky when reporting on what ISIS does and doesn't do in any kind of negotiation. But the first request for two Japanese hostages was $200 million. By all accounts, that did not happen. That ransom was not paid and the first hostage, Haruna Yukawa, was executed, beheaded. Now the deal is different. It's a prisoner swap. I hate to even say, does that mean that not paying the ransom worked, we still have one hostage, and maybe a prisoner swap might?

PETER BERGEN, CNN NATIONAL SECURITY ANALYST: Well, the $200 million demand was never a serious demand, Ashleigh. I mean the kinds of money that we see typically exchanged in these hostage negotiations is in the, you know, several million dollars.

And I'll give you an example of a negotiation that did succeed and that involved an American. We don't exactly know the circumstances, but an American journalist, Theo Curtis, who was held by the al Qaeda affiliate in Syria. He was - he was freed because of the intervention of the Katari (ph) government. And I can't imagine that suddenly al Qaeda just did that because they were just being nice guys that day. Something must have been exchanged. We don't know what.

So, you know, the fact that ISIS is negotiating in some manner for the life of this other Japanese hostage, I think is still not out of the question that he could be released if an exchange is made, whether it's prisoner or money and/or both.

BANFIELD: You know, Peter, I think of Haruna Yukawa's parents and family and they certainly wouldn't consider this to have been a good development. They lost their son because a ransom perhaps wasn't paid. Even if it wasn't a serious one, one wonders if any of these ransoms being paid might save their kin.

And then I go back to what David Cohen, the undersecretary for terrorism and financial intelligence says. And it says, ransom payments lead to future kidnappings. And future kidnappings lead to additional ransom payments. And it all builds the capacity of terrorist organizations to conduct attacks. We must find a way to break the cycle and refusing to pay breaks the cycle. Can you argue with that, can you?

BERGEN: I think you can, actually, Ashleigh. Look, I mean, we work in an organization where our journalists routinely go into zones where we may be kidnapped by militants. Also, think about every - you know, the International Red Cross, or all sorts of aid organizations. You can't say that, you know, no American should ever go anywhere where they might have some possibility of being kidnapped. And I think if you look at the history of hostage negotiations, often there is some kind of exchange is made despite, you know, publicly you don't want to say that we're willing to negotiate.

But, you know, I mean we've seen -- I go back to this example very recently of Theo Curtis, who was held by al Qaeda in Syria. He's now a free man. He's living in the United States. Something must have been exchanged. It wasn't necessarily the U.S. government, but the U.S. government certainly looked the other way while a negotiation went on, which resulted in his release. So the point is, is that, yes, you want to say this publicly that you don't do these kinds of ransom payments. But the point is that there's always an exception. And, of course, for the families involved, they want the exception because they want their son or daughter back.

BANFIELD: Of course. But God forbid that the -- if there was money that changed hands for Theo Curtis, it didn't fuel the machine that stole those other people and may have led to their deaths, if that is at all a possibility at this point.

I have to leave it there. Barbara Starr, thank you. Peter Bergen, thank you. And our thanks to Jamana Karadsheh, who was reporting for us live in Amman.

Happening right now, evacuations underway in an Israeli region of the Golan Heights. This after the Lebanese militant group Hezbollah claimed responsibility for firing a missile on an Israeli military vehicle. Officials say two Israeli soldiers and a U.N. peacekeeper were killed. Several other people were hurt in the attack as well. Overnight, Israel had struck targets in Syria in response to Hezbollah rocket fire from Syrian bases.

A few feet of snow is the least of their worries along parts of the American coastline hit by storm surges, seawall breaches, high waves and wind. Flooded streets, battered homes, evacuations, yes, this was a monster storm despite the headline that may say otherwise. We've got the report from the front lines, next.

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ALEXANDRA FIELD, CNN CORRESPONDENT: Here it is, this water coming up right over the seawall right now. We're still about a half an hour away from high tide, but this is the kind of floodwater, these are the wind forces that we've been talking about. This is the storm surge that has created tremendous problems for people out here in Scituate. This water, it is flooding down into these neighborhoods behind me. It's coming up over this seawall and this is why so many people woke up this morning with feet of water flooding their basements and pouring --

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BANFIELD: And that's what you call live reporting as a flood rolls into the community of Scituate, Massachusetts. Our Alexandra Field doing that duty live as that wall of water just came rushing right up the street behind her.

The blizzard that we've all been talking about, still breaking records in New England. Now, you may have heard New York City was certainly spared for the most part. Not the case for parts of suburban Long Island, though. They were absolutely buried. The town of Orient in New York, on Long Island, is reporting 30 inches of snow fell. In Connecticut, Hartford to be exact, a relatively modest 13 inches. In Boston, just over 24 inches. And if you live in Lunenburg, I didn't forget about you, you hit the record for this storm for all of us. You got 36 inches.

By the way, Boston is suffering the sixth biggest snowstorm since 1935. That is the most ever in January. Coastal areas of Massachusetts feeling the brunt of the blizzard as well. There are swelling seas that prompted severe floods and destroyed houses, certainly had to force people to evacuate. The National Guard having to go in. Some using front-end loaders to get people out of those homes. The images are just horrifying.

CNN's Brian Todd joins me live now from Marshfield, Massachusetts, for the latest on the dire situation along the coast.

That was the first report we got yesterday, Brian, of the seawall breaching in Marshfield. And I can only assume that it did a heck of a lot of damage throughout the course of the storm.

BRIAN TODD, CNN CORRESPONDENT: It really did, Ashleigh. Residents here are just kind of coming out now, assessing the damage, trying to get their heads around what happened yesterday. They're doing that while utility crews are here trying to restore power. You've got one over there that's working on some of the power lines there. We're told by a local official that the power, the electricity here, will be restored by tonight.

But as for the damage to these houses, we just got some fresh footage this morning of the seawall damage and the flood damage to some of these houses. It is devastating. And one official just told me, it's going to be months before that part of this is recovered. Severe flooding was caused when the tidal surge slammed into the seawall in at least two places. It was a 50-foot breach of it at least in both of those places. And the flooding was just devastating to those houses.

You mentioned that one rescue operation. Yes, a front-end loader was needed to get rescue crews into one house to the second floor to recover a man who had been injured when the glass broke in his house and he was injured by flying glass. He had 70 stitches in his face. We're told that he is OK.

But, yes, that was the kind of dramatic scene that was unfolding yesterday. Front-end loaders being needed to pull people out of their houses. Several people evacuated. At least two houses have been condemned. Eleven houses suffered severe damage. So they are just assessing that today, Ashleigh, and it's going to be months before this place recovers.

BANFIELD: And now I'm looking at your live picture and it couldn't be a more beautiful day out there. Just a beautiful blue sky. And it's very, obviously, bright because I can see you squinting as well.

TODD: Right. Sure is.

BANFIELD: Well, Brian, keep us posted on how they're managing as that snow begins to melt. Thank you for that. Brian Todd reporting live from Marshfield, Massachusetts. Just days before the Super Bowl, former Patriots tight end Aaron

Hernandez will probably not be watching it because he's going to be going on trial for murder. Wait until you hear who's on the witness list and what evidence the jury will not be allowed to hear about. We're going to get the legal view on that, next.

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BALDWIN: As the New England Patriots get ready for Sunday's Super Bowl, one of its former stars, Aaron Hernandez, is preparing for a very high-stakes event of his own. It would be a murder trial. Opening statements are scheduled to begin tomorrow. This trial involves the shooting death of semi-pro football player Oden Lloyd. Now, if Hernandez is convicted, he faces life in prison for this. Susan Candiotti looks at the case and the damning evidence that the jury will not be allowed to hear.

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SUSAN CANDIOTTI, CNN CORRESPONDENT (voice-over): The last time the New England Patriots played in the Super Bowl in 2012, Aaron Hernandez was on the field. This time, he's sidelined, on trial for murder, pleading not guilty. No longer getting plays from his old bosses, Coach Bill Belichick and team owner Bob Craft, they're on the prosecution's witness list. The Patriots fired their star tight end the day he was led out of his home in handcuffs, arrested for the murder of semi-pro football player Oden Lloyd, shot seven times. At first, it seems there's a mountain of circumstantial evidence against the star tight end who's pleaded not guilty. Eighteen months later, the case isn't the same.

MICHAEL MCCANN, LEGAL ANALYST AND WRITER, SPORTS ILLUSTRATED: The universe of damning evidence has shrunk.

CANDIOTTI: Shrunk, thanks to a defense team scoring some victories. Arguably the biggest, a text message from Lloyd to his sister, sent minutes before Lloyd was killed. Lloyd writes, "NFL, just so you know." A judge ruling it's inadmissible, not enough proof Lloyd thought he was going to die.

MCCANN: If the jury believes that Aaron Hernandez was with Oden Lloyd right before Oden Lloyd was killed, it's not a big leap to conclude Aaron Hernandez was involved in the murder of Oden Lloyd.

CANDIOTTI: Yet prosecutors say they have surveillance videos of the victim getting into a car with Hernandez and co-defendants Earnest Wallace and Carlos Ortiz, who've also pleaded not guilty to murder. Video of that same car driving into an industrial park and later Hernandez back home less than a mile away holding what prosecutors say is the alleged murder weapon. But it was never found.

MCCANN: There is no murder weapon or a witness that's credible would testify that Aaron Hernandez did it. There is no such witness.

CANDIOTTI: The judge also blocking any mention Hernandez is indicted for two more murders in Boston. Prosecution witness Alexander Bradley can't say he's suing Hernandez for allegedly shooting him in the face a few months before Lloyd's murder. Will the state overcome any weaknesses?

MCCANN: So there still is a good amount of circumstantial evidence against Aaron Hernandez. It just isn't the slam dunk case that it seemed to be.

CANDIOTTI: Susan Candiotti, CNN, Fall River, Massachusetts.

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BANFIELD: So, what do you suppose the odds are on this one? I want to bring in our CNN legal analyst, Paul Callan, a criminal defense attorney and former prosecutor, as well as CNN legal analyst Mel Robbins.

All right, you guys, first and foremost, I'm going to start with you, Paul, on this one. I'm pretty sure that our audience remember that Aaron Hernandez is not just charged with one murder. He's being tried for the murder of Oden Lloyd. But there are two other murders he's charged with that are going to follow this entire case. Will the jury know about that?

PAUL CALLAN, CNN LEGAL ANALYST: Well, in theory, no, they won't know about that. It's certainly not admissible in evidence. It would be considered totally prejudicial, obviously. If he was charged with so many murders, well you would think, wow, he's got to be guilty. So, in theory, the jury does not know about that and they cannot consider that, but that's what's made it so hard to pick a jury and so - why it's taken so long in this case.

BANFIELD: All right, so, Mel, up on the screen, sort of the idea as to why this isn't a slam dunk case perhaps. There's a lot of stuff that's suppressed, the jury will not get a chance to see or hear about it.

MEL ROBBINS, CNN LEGAL ANALYST: Right.

BANFIELD: That this alleged murder weapon was never found. So my assumption is they're maybe not going to hear about it, but they're certainly not going to see it. The text message from the victim in this case before he died, he sent off a text message to his sister saying, you know who I'm with, NFL, just so you know. And we already talked about that indictment for double murder. Are those critical elements of the case or is there enough that you know of that's going to be introduced at trial to get a conviction?

ROBBINS: Well, hi, Ashleigh. Hey, Paul.

It's an excellent question. And, you know, I think the text messages are the ones that are particularly critical and I found it surprising that the judge threw them out. You know, the judge was focusing on the fact that he thought that it didn't necessarily prove that Oden Lloyd was fearing for his life, but it does prove something else, that he was with Hernandez.

Now, this is a circumstantial case, Ashleigh. They do have video of the four men getting into a car a couple of hours earlier. They have video of that same car entering the industrial park where Oden Lloyd was killed execution style. But what they don't have is what's important. They don't have a gun. They don't have a witness. Even though there are three defendants, nobody's turned on the others yet. And in the state of Massachusetts, even though this is a circumstantial case, Ashleigh, we have what's called joint venture. The prosecutors don't need to prove beyond a reasonable doubt who pulled the trigger. They just need to prove beyond a reasonable doubt that Aaron Hernandez was substantially involved in Oden Lloyd's death. And so the fact that they have all this -

CALLAN: Yes, that's a big - and, of course, that's a big -

ROBBINS: It's a big thing.

CALLAN: Yes.

BANFIELD: By the way, you guys, did you see what we were just showing on the monitor?

CALLAN: Yes.

BANFIELD: It was a picture of Aaron Hernandez's front foyer and he's holding a gun. So, sure, there may not be a murder weapon that's neatly packaged by the forensics team and presented in court with a tag on it, but there's a video right after this murder showing him with a gun.

ROBBINS: Right. You know, and there's an -

CALLAN: You know, in a rare - in a rare moment I agree with -

ROBBINS: There's an interesting -

CALLAN: I pretty much agree with everything Mel has said so far, although I'm sure you'll let me say something else, Mel, so -

BANFIELD: Quickly, we want to get you both in on this.

CALLAN: It's a circumstantial case. But you see that gun? You can't prove that that was the actual murder weapon because the gun was disposed of, probably, by his fiance, who may turn out to be a really important witness in the case.

BANFIELD: OK, since you talked about important witness, Mel, weigh up on the fact here that Bill Belichick is on the witness list. He may actually have to walk into that courtroom and testify.

ROBBINS: Right.

BANFIELD: There's a lot to be said about star power walking into courtrooms. People may sort of shake that off and suggest it doesn't make a difference. It does make a difference to jurors from that community.

ROBBINS: Well, especially - I mean this is not just any coach. They're going to the Super Bowl, for crying out loud. So star power is huge. And what would he be testifying to? He'd probably be testifying to the fact that the second that they caught wind of what was going on, he was kicked off the team. And so even if he's testifying to the fact that the Patriots felt that it was serious enough to take action, that would impress a jury. But the angle that's interesting, Ashleigh, is the fiance. She can be compelled to testify because they're not technically married and therefore spousal immunity doesn't apply, Ash.

BANFIELD: Right. Yes. And apparently Bill Belichick may have had conversations with Aaron Hernandez just after the murder of Oden Lloyd. He's alleged to have committed it, but he's not proven to have committed it until we get through this trial and it is on, folks.

Mel, Paul, thank you both. Stick around, though.

This next story, it really struck a chord with a lot of you when we brought it to you on Friday. And now we have some results. Without the video and the photographs, the unconscious female victim lying face down on the ground may never have known that she was raped by that man, her boyfriend, and possibly three of his friends. One has been convicted as well. Two more still up for trial. But so far, two guilty verdicts in the Vanderbilt rape case sending former football players to prison more than likely for several years, forcing colleges across the country to rethink just what they do about the problem of sexual assault on campuses. You're going to find out a whole lot more about this case in a moment.

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