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Legal View with Ashleigh Banfield

Latest from the Hernandez Trial; Denmark Shooter Has Ties to ISIS; Immigration Initiative on Hold

Aired February 17, 2015 - 12:00   ET

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


POPPY HARLOW, CNN ANCHOR: This is LEGAL VIEW. I'm Poppy Harlow. In today's for my friend Ashleigh Banfield and we begin with a pivotal moment to the Aaron Hernandez murder trial, the former NFL star is charged in the shooting death of Odin Lloyd in an industrial park on June 17th, 2013 just a half mile from Hernandez's home in North Attleboro, Massachusetts.

Just moments ago, the jury saw this video of Hernandez the day after the shooting. What you see is him taking his cellphone apart outside of a police station and using a different cellphone to call Ernest Wallace, that is another defendant in this murder trial, who also happens to be charged in this case.

I want to get straight to our Alexander Field. She's in Fall River, Massachusetts outside of the courtroom. She's been inside all day. Also with me here in New York, CNN Legal Analyst Danny Cevallos and Paul Callan. Alex to you first, how significant is this video?

ALEXANDER FIELD, CNN CORRESPONDENT: Poppy, the prosecution was really dead set on making sure that the jury saw this video. They had to fight for it for some months now.

Today is the first time that any of us in the public has seen this. It wasn't shown during the opening statements. It wasn't shown during any previous hearings. This is also of course the first time that the jury saw it.

Now, what you see is a video that was recorded from the surveillance camera that was placed on the North Attleboro Police Department on the exterior of that building.

The camera is being manned by a North Attleboro detective who testifies that he controlled the camera. He panned and then zoomed into Aaron Hernandez who was parked in the parking lot of the North Attleboro Police Department several hours after the body of Oden Lloyd has been found.

The detective says that he zooms in to Aaron Hernandez to see what Hernandez is doing in the car. And he testifies that he watches Hernandez break his cellphone into three parts. He then uses another cellphone for a little awhile. After that, the video shows us Aaron Hernandez putting his phone back together, perhaps to retrieve a number, that's what the prosecution is saying. And then uses that phone which he was given to make a phone call. The prosecution will argue that he was calling his co-venture, Ernest Wallace. Again, this is all video that was recorded in the parking lot of the North Attleboro Police Department. Earlier that evening, police had gone to Aaron Hernandez's house. He later goes to the department to answer question. Before he answers questions, the detective testifies that he waited for some 45 minutes for his attorney to show up.

And Poppy, what we know is the man was in the car with Hernandez was actually the attorney who is representing him at that time, but that is a fact that the jury is not aware. They do not know that it was the attorney who gave Aaron Hernandez that secondary phone, Poppy.

HARLOW: Alex, I know the defense fought hard to try to limit this video for being shown at all to the jury. The defense lost in this case, right. It has been shown a pretty big win for the prosecution. I'm wondering what argument what the judge said if anything in court about why they were allowing this in?

FIELD: Well, the only concession that was made to the defense, which again, as you point out did not want the video shown at all was they would edit out the portion where the attorney gives the phone to Hernandez. So the jury just knows that he received the phone. They don't know that it is from his former attorney who's no longer representing. That was the only concession. The only win for the defense here.

The prosecution really wanted to show this video. And the prosecution argued successfully according to the judge, that Aaron Hernandez had absolutely no expectation of privacy, sitting in a parking lot, a well lit parking lot in a police station where there are visible surveillance cameras around.

The defense have tried to make an argument that there is attorney- client privilege that was violated here. The judge didn't fight with that but again did make that concession in not showing the portion where the attorney hands the phone to Aaron Hernandez.

HARLOW: All right, Alexander Field on top of it for us. We'll let you get back in the court. Thank you for that.

Danny to you and to you Paul, let me just before we discuss it, review some of the things that were on the phone, right? What we know is that on this phone, on Aaron Hernandez's phone, there were text messages to Odin Lloyd, some of which -- some text messages have not been allowed to be shown to the jury.

We also know that there were recorded calls to Ernest Wallace, another person a defendant in this murder case. We also know that he use Wallace's phone. Aaron Hernandez use Wallace's phone to text Odin Lloyd the night that Odin Lloyd was murdered.

So the phone is crucial here. To you Paul Callan first, how big of a win is this for the prosecution?

PAUL CALLAN, FORMER PROSECUTOR: If he was destroying the phone or trying to eliminate evidence from the phone, it's a very, very big win. But frankly, you know, I can take my phone right here... HARLOW: Right.

CALLAN: ... and take it apart to change the battery, and then put it back together again. Now we know that he disassembled his phone. He took his lawyer's phone and the he reassembled the phone apparently look up a number because he was calling Wallace which means he didn't destroy the phone, it was still working. So I don't think...

HARLOW: So he also used -- did fair point...

CALLAN: There's no destruction of evidence that I see here.

HARLOW: And sometimes, if your phone isn't working, you pop the battery out, figuring out, trying to get this work. But to you Danny, he used a different phone to make a phone call, significant?

DANNY CEVALLOS, CNN LEGALLY ANALYST: It is significant. Now, you take a look at this. I think this motion actually was a close call in trying to trying to exclude this evidence because the guiding principle is did he have a reasonable expectation of privacy in the parking lot?

And it is possible to have an expectation of privacy in a public place for example a changing room at the department store is a public place but if you go peeking around in there, that's a private place for the time that you're in there.

The other part two is the potential attorney-client privilege. Certainly they couldn't have audio recorded a conversation with his attorney but is it proper for the prosecution to examine a video of what is probably some communication between attorney and client?

So it is a fascinating issue and, you know, probably a close call for the judge. And just because the judge decided to go to the way of admitting the evidence, it has a devastating impact because it's an open challenge to this defendant.

Well, if you want us to understand what you were actually doing with that phone, well, the witness stand is right there. Be our guest.

HARLOW: Right.

CEVALLOS: And the reality is that's probably not going to happen.

CALLAN: I just want to add one another thing. I think what he was really worried about and what his attorney was worried about was that this phone that -- his own phone might have been tapped. It might have been traceable by the prosecution. So the attorney was handing a second phone saying, "If you're going to call somebody, use my phone. That's not tapped."

HARLOW: Is that doing anything wrong?

CALLAN: No, it's perfectly legal to do that, however, to the jury, they'll be saying to themselves, "Well, why is he afraid of who he is calling?" And he did call Wallace, a co-defendant in the case. HARLOW: With him on that night.

CALLAN: Who was with him that night.

HARLOW: Let me ask you this. So this lawyer who no longer represents Aaron Hernandez, you've got the key thing which is, you know, confidentiality between the lawyer and their client or even their previous prior client. Danny, do you think this lawyer gets called?

CEVALLOS: First of all, this is the scariest thing to me as a criminal defense attorney because criminal defense attorneys will tell you there's nothing scary than the idea of your client doing shenanigans while in your presence because it creates a tremendous ethical problem.

HARLOW: Right.

CEVALLOS: I have nothing but sympathy for an attorney whose client just suddenly decide he's going to start trying to work the case and work his own angles and maybe do something in proper.

I don't know that that's what was going in this car. But it really does, I mean the fact that we're surveilling the communications between an attorney and his client, really does raise some fascinating issues. And a broader issue which is within a few years, we're all going to be on camera all the time.

HARLOW: I think we already are, but with that, Attorney (inaudible) before we go, have to testify about what happened there, would it be covered in attorney-client privilege?

CEVALLOS: My initial response and I think reasonable minds might differ based on the facts would be no. You don't have an obligation. In fact, you are forbidden to disclose your attorney-client confidences unless and until court or other tribunals says, "You do must do so."

CALLAN: But he could call the witness himself, you know, may be he wants the witness to get on now and say, "Hey, I gave that advice to use my phone."

HARLOW: We'll see Paul, Danny, thank you both. I appreciate it. Alexander Field as well for us outside the courthouse.

Coming up next, as the air strikes intensify and more nations join the war on ISIS, world's most ruthless band of terrorist seems to be growing incredibly, rapidly gaining fans and fighters across the globe. We'll discuss.

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HARLOW: The killings in Copenhagen were clearly acts of terror and terrorize, they did. But today, there is a link to the world's most ruthless terror organization and it comes in the killer's own word, the Facebook page, now deleted, of Omar Abdel Hamid El-Hussein swears allegiance to ISIS founder, Abu Bakr al-Baghdadi. Now, there are no signs if the gunman ever traveled to Syria or Iraq or physically trained with ISIS. Instead, it seems that he morphed from street thug to jihadi in prison apparently doing time for stabbing -- or stabbing on a commuter train.

It's come out that prison officials warned Danish intelligence that El-Hussein was being radicalized, but he still wasn't frankly really seen as a major threat. Now the bomb squad came out today that the Copenhagen cafe where El-Hussein opened fire on Saturday, they checked out a letter that for whatever reason seemed suspicious. Then they did eventually call the all clear. But as you see they're in bomb suits. They were taking this incredibly serious thing.

My colleague, Nic Robertson, CNN Senior International Correspondent joins me now from Copenhagen. Nic, when you just look at the reaction to a letter there that seems suspicious, what it shows us is that this is a city still very much on edge.

NIC ROBERTSON, CNN SENIOR INTERNATIONAL CORRESPONDENT: It is. I mean, on any of the day, this letter might have been thrown in a nearby bin. But today, because of where it was positioned, the clear indication that -- for authorities here that this was supposed to be taken seriously, this was something that they wanted to get on top of.

By the way, they called in the bomb squad, they had a -- that officer in a protective uniform, helmet on, life (ph) jacket and tight clothing. So, yeah, they would take any chances and got to deal with right away. Poppy?

HARLOW: This is a major development also, Nic, what we've learned from El-Hussein's Facebook page, the fact that his pledged allegiance used almost the exact wording that we've seen in another ISIS-related post saying, you know, that "this is what I stand for, this is who I am." What else do we know about him? Because then we've learned that he was just released from prison two weeks ago.

ROBERTSON: Sure, we're learning a lot. We've certainly heard from the Danish Ambassador to United States saying that they -- he believes that he may will have become radicalized in jail. We've heard the Danish intelligence services, the PET, today to say "Look, yes, we've heard from the prison services, we've heard that he's just changing his character but we didn't believe he was about to -- about to act and join in the shooting." Two weeks later, just a few hours before that attack, has his posting on Facebook.

But, you know, a lot of this, we're learning, comes from his roots and his time as a gang member. He didn't ever go to join the ISIS in Iraq and Syria. Officials are saying that. But what we're finding out is he got these skills on the ground here in Copenhagen.

(BEGIN VIDEO CLIP)

AYDIN SOEI, SOCIOLOGIST: He got his education in using weapons, in dehumanizing other people and able to kill them, here in Denmark and in inner city areas in the Danish welfare state.

ROBERTSON: He's part of the gangs?

SOEI: He's part of the gangs. I mean, he lived a life where if you look at his generation in that area where he lived, they -- everyone has experience of friends, of someone they know who has been killed by other gangs. And that wasn't normal in Denmark 10 years ago. It's quite a new phenomenon. And the people like Omar and others from these kinds of gangs, they are more influenced by inner city areas in the United States and the idea of the American gangs than by the Middle East.

(END VIDEO CLIP)

ROBERTSON: Now, this is the impression being created here that he was somebody who's gravitating (inaudible) in society. He got thrown out of that gang because he was too volatile when the gangs called a truce in that violent war here. Kicked out of that gang and then it seems gravitated to radical Islam, part of that gravitational pull happened in jail, Poppy.

HARLOW: Something we saw -- similar to something we saw play out in Paris in those attacks. Nic Robertson, thank you very much, live for us in Copenhagen.

Let's widen up this discussion now with CNN Producer, Tim Lister. CNN has had Tim Lister on the ground there in Erbil in Northern Iraq. He has spent the past 10 days on the front line of the Kurdish fight against ISIS. Also joining me now here in New York, Michael Weiss, a fellow at the Institute of Modern Russia and co-author of the new book, ISIS, Inside the Army of Terror.

Tim, let me begin with you, because it is incredibly frightening what we are seeing. I believe the parallels, some sort of a petty criminal, someone who has lost their way to the nexus between a gang member and a member of -- really falling into Jihad, someone looking for a path, looking for meaning, not necessarily a true believer, someone who has been on this path for many years. They go from petty criminal to this. Does that strike you?

TIM LISTER, CNN PRODUCER: It does strike me. But, you know, Poppy, it's a very familiar pattern what we've seen in so many cases over the last decade or more.

The French attack is -- of Charlie Hebdo, they (inaudible) in jail. The radicalization within French jails is a frightening phenomenon in itself. But many other cases from England, from Demark, from all over Europe, the people who are essentially searching for some sort of identity, some sort of purpose in their life and they very often fall from petty crime into running in Jihadist abode, attending mosques where a radical militant presence can further radicalize them and push them from words to action.

So it's a very worrying phenomenon and an extremely difficult thing for security services across Europe and (inaudible) to deal with.

HARLOW: You just sort of (inaudible) on this and I wonder what it looked. Tim talked about and it's been covered now more importantly the fact that this -- you're seeing this happen in these French jails for example, another jails where people go in from petty crimes and then they fall into this, you know, with someone who's in there for something much more serious and then they begin sort of this cycle that results in lives taken both in Paris and in Copenhagen. How can this be stopped?

MICHAEL WEISS, CO-AUTHOR, "ISIS, INSIDE THE ARMY OF TERROR": Prisons are the universities for Jihadis. It doesn't matter that prison you're talking about. It could be in Syria, it could be in Iran, it could be in Iraq, including Camp Bucca, the U.S.-run theater-wide detention facility. Abu Bakr al-Baghdadi spent a year there in 2004.

Abu Musab al-Zarqawi, the Jordanian who founded what we now call ISIS...

HARLOW: Right.

WEISS: -- this comes back to the earlier point. He started out as a gang member in Zarqa, Jordan.

HARLOW: So he's not new?

WEISS: No. He was a pimp, actually, or allegedly, he was charged with sexual assault, he was an alcoholic. So, the lump in -- or criminal elements in the Middle East and -- not even, I mean in the west as well, drawn to the ultraviolence, drawn to the organized criminal syndicate orientation of ISIS. I mean, this is not just about Islamic fundamentalist. They also have the style of the mafia or just a gang, you know.

HARLOW: So, I'm wondering to that point, Tim Lister, as we and our partners, the coalition works to fight ISIS with air crusades and bombardment, clearly they were the much different fight to be had here. And it seems as though increasingly that it's a fight for opportunity, a fight for economic opportunity for these young people who are looking for something to hold on to. And I just wonder, can we really be successful in the fight against ISIS without addressing what is clearly this issue of disenfranchisement?

LISTER: It's a huge issue, Poppy, a huge issue. A lot of these people feel alienated from the countries in which they were born. These are not people who were born in Iraq or Tunisia, Libya. They were people born in Europe that have become marginalized. They felt persecuted, unwanted and then they drifted. They drifted into crime. They found it easy to get hold of guns. One of the things we've found out in France while I was covering the Paris attacks is that there's a whole...

HARLOW: I think we lost him there. Maybe you could finish up that thought. You're saying that this disenfranchisement is a huge issue.

WEISS: Oh sure. I mean look, there are different tiers or typologies to people who go off and join ISIS. You have the adrenaline junky who thinks that this is sort of going to be the high of his life. And then you have essentially losers and people who have fallen a or fell of the law, for whatever reason they started out a secular or atheist and they become increasingly radicalized, either in prison or in whatever kind of criminal element that they associate with.

So, absolutely, I mean, you're going to see more of this. This is the going concern right now. You look at all the ideological movements on the planet, ISIS is selling itself as sort of...

HARLOW: In telling you (inaudible).

WEISS: The most prominent.

HARLOW: ... incredibly successful through viral videos and through all this online propaganda...

WEISS: Completely.

HARLOW: ... that as we see here this young man in Copenhagen didn't have to go to Syria, didn't have to go to Iraq.

WEISS: Totally. And you know what, they actually prefer it. If you have no immersion in Islam, they want to train you, they want to teach you.

HARLOW: Because you don't really know then what the Kuran says.

WEISS: They break you down psychologically and they...

HARLOW: .... (inaudible) breaking day after day, after day. Thanks very much Michael Weiss. Tim Lester, thank you as well, joining us from Erbil in Iraq.

Coming up, a big blow in a Texas Federal Court to President Obama's controversial immigration order putting the faith of millions of immigrants in this country on the line. Legal View on the bitter back and forth, next.

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HARLOW: The 26th state that have lined up against the Obama administration's executive order on immigration, have persuaded a judge to at least put the order on hold. It was shortly after last year's elections that the president issued this executive order to grant work permit and shield (ph) from deportation, millions of undocumented parents and children who are born in the U.S. and us, U.S. citizens.

Now, many Republicans consider this unconstitutional power grab. Late yesterday, a federal court in Texas granted a temporary injunction. HLN legal analyst, Joey Jackson, has some insight on this.

I think I said it wrong before. This is applying to the children, children who were born here to parents who came here, so (inaudible) no fault of their own if you will, but were in line for deportations.

So, coming up tomorrow, actually the government was going to start accepting these applications to prevent deportation of the people that were supposed to be deported. Is this going to hold this judges' ruling? JOEY JACKSON, LEGAL ANALIST: That's the open question. And it's actually the parents that apply to the children (inaudible). But -- So let's talk about this. It's all good, Poppy, all good. But here are these three principles (inaudible).

The first one is this, politics, remember that? And people are saying, listen, the judge who actually did this, it's a Bush appointee as a result of that he's -- you know, not as a result of that but he's known to be not too friendly towards the administrations' immigration posture, he was appointed by Bush in 2002. So that's the first issue.

So, the likelihood based upon this judge making the ruling that it would stand, when it goes to the higher court is suspect. The second issue then, that you have to examine is as you mentioned, people are saying, "Well, you know what, if you want as a president of United States to have immigration policy, guess what Poppy, we have a Congress, right, which consists of the House of Representatives and the Senate and you could do it there.

Then the third issue relates to the actual policy itself. And what is exactly at play here? Now simply because this judge, again, made a ruling and it's a federal judge, and so certainly we should (inaudible) it, but the reality is that it has much broader, you know, much broader implications. It's a federal judge who rules, who knows at the end of the day, whether the actual appellate court agrees with this.

HARLOW: What I thought was interesting is, so, what this federal judge in Texas has ruled. Is it basically the Obama administration, this ruling says, violated the administrative procedure act, what is that? That's means that they say, look, the White House did not give us, the public, enough time to comment on this before enacting it.

So my question is -- all right, so we know that Department of Justice is pushing back. They're going to obviously take counter legal action here. Could they just say, all right, here, here is more time, make your comments and we're going to do it anyway.

JACKSON: I think they could because if you look at the administrative procedure act, 1946, we've had this act. Right back in the days of the new deal, and why we have it is because you have these federal agencies. And of course, the executive branch of government, their job ultimately is to execute and administer the law. And they do so, Poppy, by having these policies, and this is one of them.

So they say if you have these policies, what we want to do is we want to encourage broad public participation. We want the public to comment. We want you not to extend your writ and your power too far. So certainly, the administration could circumvent and I'll say, OK, we'll follow what you're suggesting we do by allowing people...

HARLOW: So would that be the best legal strategy then instead of taking these up...

JACKSON: No. The best legal strategy would be, I think, what the administration is pursuing, and who knows whether or not it'd be successful. But to say this, Congress hasn't acted, recent administration have a responsibility to act. We certainly think it's within the presidential authority to act will save the administration. And as a result of our authority, as a result of the president given a wide latitude and discretion on matters of immigration would -- well, within our rights to do it. And then of course the appellate court will make a decision as whether it was right or wrong.

HARLOW: The first part of this executive order in immigration was suppose to kick in tomorrow. I think it's pretty evident this isn't going to be the first legal hurdle that we're going to see here.

JACKSON: I don't think so. Obviously, when it comes to immigration and immigration issues, we have a Congress that believed it should be consulted. That Congress now is Republican. They have their own agenda in terms of what they think is appropriate for immigration. The President has his agenda. And somewhere in the middle of the two shall meet, and of course in this case, it means that in appellate court, the circuit, will evaluate to see if the president is in his authority or he's not.

HARLOW: And you've also got the issue of funding the DHS and something Congress trying to hold that up by tying it to funding for the executive order.

JACKSON: That's interesting Poppy, because the power of the (inaudible) lies with Congress. And so if you don't do what Congress wants you to do, they hold a little thing like money back and it kind a (inaudible) you from...

HARLOW: Just a little thing.

JACKSON: Yeah. So, executing policy is another thing.

HARLOW: Thank you. Stick around. We've got a lot more to talk about here in Legal View. Up next, the American Sniper murder trial, will the defendant's video tapes confession and bizarre comment help or hurt his insanity defense. The Legal View on that next.

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