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Legal View with Ashleigh Banfield

Cosby Civil Lawsuit to Continue in California; Colorado Theater Shooting Penalty Phase Examined. Aired 12:30-1p ET

Aired July 23, 2015 - 12:30   ET

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

[12:32:05] POPPY HARLOW, CNN HOST: All right, it looks like at least one of the women accusing Bill Cosby of sexual assault will likely get her day in court.

The California Supreme Court saying that a civil lawsuit accusing Cosby of sexual assault can indeed proceed.

Judith Huth, one of dozens of Cosby's accusers, says that Cosby molested her when she was just 15-years-old at a party at the Playboy Mansion that he invited her to. That was back in 1974.

Joining me now live from Culver City, California, is her attorney, Gloria Allred.

Thank you for being here Gloria. And I want you and all of our viewers to listen to what Bill Cosby's Attorney told our Alisyn Camerota this morning on NEW DAY.

(BEGIN VIDEO CLIP)

ALISYN CAMEROTA, HOST NEW DAY: Next month Mr. Cosby will have that opportunity because as we've just reported this morning this civil case of sexual assault, a judge is allowing this to move forward. This is the one that involves a 15-year-old who she claims was sexually assaulted at the Playboy Mansion.

And, in fact, Gloria Allred, her attorney, says that she will -- she expects to depose, to be able to depose Mr. Cosby in the next 30 days. Will he appear for that deposition?

MONIQUE PRESSLEY, COSBY'S ATTORNEY: Well, I read the press release by Ms. Allred. And I understand that that is her hope and her intention. But what does California Supreme Court did was really just put this case at the beginning posture that it was in. They were ruling on a technical issue about whether the case -- that filing could be amended or not. And they said...

CAMEROTA: But if called to appear...

PRESSLEY: That would not be heard.

CAMEROTA: Will he give a deposition?

PRESSLEY: And certainly I'm not going to reveal strategy, tactics or intentions of my client to testify or not or advice of the council about that matter.

We'll deal with that with the able council who are in California, who are handling this case.

CAMEROTA: I mean you've been saying that you need him to -- that this has to be aired in a court of law. This is the opportunity, this is the opportunity, next month for this to happen in a court of law. This is what you say Mr. Cosby's been waiting for. Will...

PRESSLEY: And what I said to you is that through the court system when court cases are brought appropriately then it's handled by the defense and by the plaintiffs in the manner that it's supposed to be.

And that means that they make all of the decisions that are available to them in a court of law. That doesn't mean that I'm going to sit here today and tell you what I would advise Mr. Cosby to do or what his Los Angeles Counsel would advise him to do or what his intentions are. It means that that's the forum, that the forum is not headlines from 70 years ago with one question and one answer from a deposition about the use of a party drug.

Instead we will see in the courtroom in this case and in others whether a defamation suit can hold up for a person who speaks up and says "I deny the claims that are being lodged against me."

We will see whether this claim that police refuse to prosecute will also become frivolous to the court in a civil case.

[12:35:01] All of those are things that we'll find out in time. And I know that that is the way that this system should work and I pray that it will work this way in this case.

(END VIDEO CLIP)

HARLOW: Gloria Allred, they were talking about you in this deposition invitation you put out there.

So what's your reaction to what she said?

GLORIA ALLRED, JUDITH HUTH'S ATTORNEY: Well, obviously she is misinformed and, also, evaded the answer which was put directly to her by Carol which is, is he going to appear for his deposition. And she danced around it, you know, kind of Bill Cosby style not answering the question.

HARLOW: But she said she's not going to reveal strategy, right, so.

ALLRED: Yeah, OK, well -- you weren't asking her -- she wasn't being asked to reveal strategy, just is he going to appear for his deposition.

Let me just tell you this. Today we are going to be noticing his deposition, for some time within the next 30 days and providing his counsel with specific dates and also with specific location.

Here is what happens. We are entitled to take his deposition, his testimony under oath, in this case of Huth's first as William H. Cosby. If he does not appear for this deposition which, by the way, we are going to notice we are going to want to video his deposition. If he does not appear for this deposition, he's going to need to go to court and seek permission to continue it to another date and he's going to have to show good cause like a health reason or whatever else he wants to try to show.

If, in fact, he doesn't do that, he doesn't appear, we're going to seek sanctions. What are sanctions?

We are going to seek a court order that he -- to seek to hold him in contempt. We're taking this seriously. We want him to sit down. We want his answers under oath.

If he doesn't want to do that and then he answers this lawsuit, then we're going to strike the answer. What's that is going to mean?

That's going to mean he doesn't get to present his defense. He doesn't get to testify when we get to trial. He doesn't get to present witnesses. We will take his default.

We want justice for our client and we intend to get it.

HARLOW: If you do get this face-to-face with Cosby in this deposition, which you've said for 30 days from now, what's the first thing you're going to ask him?

ALLRED: Well, we have a lot of questions to ask him so I can't tell you what the first question will be.

HARLOW: So why don't you tell me, so let's go through some of them.

ALLRED: Yeah. Now I'm not going to comment on the specific questions that we will ask because we'd like that to be a surprise for Mr. Cosby. But I think he understands that we will be asking him anything and everything that may bear on his credibility in reference to our client Judith Huth allegations about what happened at the Playboy Mansion.

In addition, of course, the deposition that was just released over the weekend, we have a lot of questions that will be generated by some of these admissions in that particular deposition.

So he needs to get ready...

HARLOW: Regarding Quaaludes, for example?

ALLRED: He may try to escape but he's going to evade, but we're going to have a lot of questions. And I think its counsel can anticipate what some of the questions will be. Others he will not be able to anticipate.

And let me just say, I read a lot of the deposition from the 2005 lawsuit. I saw his counsel trying to, you know, to lead him not

to answer certain questions, to instruct him not to answer those questions. I do expect a battle royal with his counsel. But that's fine. We are going to be persistent. We want the answers. We're entitled to get them.

HARLOW: Let me ask you this. You represent not only Huth, you represent 17 women accusing Bill Cosby. At the same time the LAPD is in the middle of their criminal investigation into the 2008 case of Chloe Goins, right the only one that is not outside of the statute of limitations at this point, it appears.

Could it hurt your chances of having or being able to depose Bill Cosby if that investigation is still ongoing because he could say "I'm in the midst of an ongoing investigation, I can't comment?"

ALLRED: Look, if he wants to take a fifth amendment and invoke his privilege against self-incrimination, you know, he can go do whatever he's going to do. We intend to proceed with this lawsuit.

And I'm glad you raised that issue because I also want to comment on what his counsel or -- I've never even seen her before because usually I'm dealing with L.A. counsel for Mr. Cosby. But maybe she's there, you know, for some other purpose for television. I don't know. But in any event, she was really misleading, I feel, about when she mentioned, well, the police decided not to prosecute.

First of all, police don't decide not to prosecute. That's the district attorney's decision. She's referring to the Judy Huth case and the district attorney indicated she couldn't proceed because of the statute of limitations. Nothing to do with the merits of what Ms. Huth told the detectives from the special victims unit when I took her to the police for an investigation of her claim and for an interview about it because Charlie Beck of Los Angeles Police Department invited any alleged victim of Mr. Cosby to come in even if it's too late to prosecute.

[12:40:14] In any event, that's a whole different thing. That's a different statute of limitations. We are within the time period in California to file this case, to proceed with this case, and that is because we are alleging child sexual abuse.

And that has an extended statute of limitations in California. So we are full steam ahead. And Mr. Cosby, I'm really looking forward to seeing you in person at this deposition.

HARLOW: Gloria Allred, if you do get that deposition, I hope you'll be first to come on our show to talk to us. We'll be first to have you on, come talk to us and I'll be watching.

ALLRED: I'll look forward to that.

HARLOW: Very closely.

ALLRED: Thank you.

HARLOW: Thank you very much, appreciate it. As I said before, we have heard from Bill Cosby's attorney. We have heard from the accuser's attorney. You just heard from, Gloria Allred.

Up next, we're going to weigh both legal sides and took about the strategy here, what it means specifically for this case. Next.

(COMMERCIAL BREAK)

HARLOW: A lawsuit accusing Bill Cosby of molesting a teenage girl, a 15-year-old girl back in 1974, is now moving forward in the State of California.

The Supreme Court there in California ruling against Cosby allowing the case filed by Judith Huth to proceed.

She is one of at least 48 women accusing the comedian of sexual assault. And this morning on NEW DAY, Cosby's Attorney Monique Pressley said this.

(BEGIN VIDEO CLIP)

PRESSLEY: Even though we hear excerpts from accusers and we see headlines that discuss things like calling him a rapist or saying that he's committed sexual assault. The case actually is in a civil court and there are no criminal charges filed.

[12:45:02] And I think it's important no matter what manner the attorneys are speaking for or the media is covering it that that's a point that stays clear.

CAMEROTA: Will he give a deposition?

PRESSLEY: And certainly I'm not going to reveal strategy, tactics or intentions of my client to testify or not or advice of counsel about that matter. We'll deal with that with the able counsel who are in California who are handling this case.

(END VIDEO CLIP)

HARLOW: Certain to talk about the case against Cosby's CNN Legal Analyst Paul Callan and CNN Correspondent Jean Casarez with also and Attorney alone with Paul. Guys thank you very much.

Jean to you first let's just talk about the Monique Pressley, the attorney for Cosby said, "A number of times this morning strategy. I'm not going to reveal strategy, I'm I'm not going to reveal strategy." It's an interesting shift in the legal team strategy to come out now and talk to the media. What do you make of this?

JEAN CASAREZ, CNN CORRESPONDENT: Well if you look at the facts, this last weekend, the thousand page deposition was released by the court reporting agency so that timing is interesting. But, if you notice she cannot touch the confidential settlement agreement back in 2005 which obviously was part of the deposition that was inadvertently released. We could say over the weekend. So the timing is interesting but her mention of Quaaludes is nothing more than what was already released in the preliminary documents. So she was able to address that, that it was consensual, that he got the pills and the women took them. They took them on their own. But she couldn't address many things that were at the heart of the matter. But I think it was important for them to get the presence out.

HARLOW: So Paul we just had Gloria Allred on, his representing Judith Huth so the woman he said at 15-years-old that she was molested by Cosby. Gloria Allred says we are going to full steam ahead. What are the chances that she gets to depose Cosby?

PAUL CALLAN, CNN LEGAL ANALYST: I think she may get to depose him, but I don't think she's going to get any useful information. And the reason that I say that is because with criminal respect of criminal investigations floating around, he may opt to take the fifth amendment at the deposition rather than answer embarrassing questions in fair or not there are 48 claimants against him that we could fill a small bus with the women who say that they were abused by him.

This case I think is one of the weakest cases that goes back 50 years -- 45 to 50 years. And under California law, you can only bring such an old case if you just remembered that bad things happened to you three years ago. All right, so she's got to prove to the court that she only realized she sustained psychological injuries as a 15-year- old girl three years ago. And that's the exception that gets her into court.

CASAREZ: And here's the defense counter which goes along with that, the defense is saying that several years ago she tried to extort money from Bill Cosby selling her story to a media outlet tabloid, and so, in other words, she remembered it then but not now -- now suddenly she fully understands.

CALLAN: But you cannot underestimate Gloria Allred.

CASAREZ: So true.

CALLAN: She is the Donald -- she is to sexual abuse cases where Donald Trump is to politics.

CASAREZ: I mean you saw the fight in her.

CALLAN: She will generate headlines even when a court denies hearing a case, you know?

CASAREZ: Tenacious.

HARLOW: So we're talking about the depositions but what are the chances Jean that this case in particular goes to trial?

CASAREZ: Civil cases by statistics do not go to trial. Most of them settled. Very rarely do they go to trial.

HARLOW: But when you talk about such a public figure and this is clearly about a lot more than a settlement. CASAREZ: Right.

HARLOW: And is it different this time?

CASAREZ: Well and saying that Gloria Allred and her client if this case proceeds because the defense is going to try to get it thrown out very soon based on what Paul and I are saying but if it would proceed they could say, "We don't want a settlement. We want to go trial."

HARLOW: And then it's in the hands of the court.

CASAREZ: We're not interested in the money. We're interested in the principle.

HARLOW: All right Jean. Thank you very much Paul, thank you.

CALLAN: Thank you.

HARLOW: As well, coming up next, the trial of James Holmes in the Aurora movie theater massacre in the sentencing phase, we're going to talk for what the jury is looking at in terms of whether or not he might get the death penalty, next.

(COMMERCIAL BREAK)

[12:52:33] HARLOW: Right now the jury in the Colorado movie theater massacre trial is in phase one considering either life without parole or death for James Holmes. And the decision is up to nine women and three men. They are currently deliberating on five aggravating factors, reasons the prosecutions says, that Holmes should die.

If they all agree on at least one of those factors, then it moves to phase two where the defense will present witnesses largely character witnesses, to try to save his life.

To "The Legal View", I want to bring in CNN Legal Analyst and Defense Attorney Joey Jackson.

Joey, I want to read through these aggravating factors because it's very important, they have to agree on, on one of them.

First, let's speak through this "Unlawfully and intentionally, knowingly or with universal malice, manifesting extreme indifference to the value of human life, killing two or more persons."

Secondly, "Intentionally killing a child who has not yet attained 12 years of age."

The third one, "Knowingly created a grave risk of death to another person in addition to the victim of the offense."

Four, "Committed first-degree murder in an especially heinous, cruel or depraved manner."

And finally, "committed first-degree murder while lying in wait or ambush." The defense had no argument on these points.

JOEY JACKSON, CNN LEGAL ANALYST AND DEFENSE ATTORNEY: You know, what is there to argue, right?

HARLOW: So what's there to consider?

JACKSON: Here's what happens. The aggravating factors, as to all of those aggravators, and you mentioned very rightfully Poppy, you have to consider all of them, but as long as they prove that it's the prosecution, one of them, it makes you eligible for death. And so there's no question as to all of them, was he lying in wait of course, he's in a movie theater.

You know, in terms of the killing a child, there was a 6-year-old that was shot four different times, the heinous, the cruel nature of it. And so therefore, what I think the defense will do is wait until phase two which speaks to the issue of mitigating factors to preserve his life and what will we see there? We will see more of his mental illness, his schizophrenia, and how he didn't know what he was doing, something the jury, by the way, already rejected.

HARLOW: The jury also asked to watch a police interview of Holmes, asking if any children were in the theater. What does it take to prove he intentionally killed a 6-year-old, right? Veronica Moser- Sullivan. We know he did, but is there that key issue of intentionally going in there and seeking out a young 6-year-old child?

JACKSON: Yes, but there's a couple of elements to it. The first of which is that he was just opening fire which exposes him to something else which is creating a grave risk of death to everyone else who was there. But that he ultimately saw that there was a child, continued shooting but didn't care.

[12:55:04] And so it's not only that you intended to do it Poppy that you act with depravity, such I just don't care who I shoot, I'm going to do it anyway, that it gets there.

And remember this, even if they didn't conclude that he knew that she was 6-years-old, you got him on the other aggravating factors as well. And so ...

HARLOW: And they only have to agree on one.

JACKSON: That's right. Just one.

HARLOW: Here is the other thing. The Governor John Hickenlooper, Governor of the State of Colorado has said that even if the jury does decide on the death penalty sentence he has made it clear he says, "No one will be executed in my state on my watch."

Where does he legally fit in here?

JACKSON: Sure. Well, you know, in looking at Colorado, it's sort of what they say a de facto non-death penalty state. Why? Because you have it as a matter of law, but since the death penalty came back in '78 in Colorado, there's been one person, one, and that was in 1997, who actually was executed.

And so, as a law enforcement official, the governor obviously is not above the law. But I think the governor can go a long way in terms of attempting to block whether something actually occurs.

HARLOW: What could you do?

JACKSON: Well in the event, you know, if you're the governor you have a lot of political sway over the Department of Corrections in terms of even allowing them to move forward. But I think there will be a lot of legal wrangling with that.

HARLOW: All right. Joey Jackson, thank you very much.

Thank you all for being with me.

Stay with us. Wolf is next.

(COMMERCIAL BREAK)