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Legal View with Ashleigh Banfield

Subway Pitchman Pleads Guilty; Prep School Rape Scandal; New Poll Numbers. Aired 12-12:30p ET

Aired August 19, 2015 - 12:00   ET

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

[12:00:00] JOHN BERMAN, CNN ANCHOR: Cohen, thank you so much. Really appreciate it.

That is all for us "AT THIS HOUR." LEGAL VIEW with Ashleigh Banfield starts now.

ANNOUNCER: This is CNN breaking news.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone, I'm Ashleigh Banfield. Welcome to LEGAL VIEW.

And we're going to begin with the breaking news about Jared Fogle, once the face behind Subway, the sandwich chain campaign. He is probably going to be headed off to a federal prison for a long time. Still to be decided just how long, how many years after pleading guilty a short time ago in a federal courthouse to charges of receiving child pornography and also to charges of traveling for the purpose of paying for sex with minors.

Keep it right here on CNN. In just a few minutes, the federal prosecutors who agreed to the plea deal involving Jared are going to make an announcement and they're going to take reporters' questions presumably as well. We're going to take that news conference just as soon as it goes live. It is supposed to start at 12:30 Eastern Time, about 29 minutes from now.

And we just got this statement from Jared Fogle's wife. It comes to us via her attorney. Katie Fogle says this. "Obviously, I am extremely shocked and disappointed by the recent developments involving Jared. I am in the process of seeking a disillusion of the marriage. My focus is exclusively on the well-being of my children. Neither I nor my family will have any further comment on the matter. I appreciate respect for my family's privacy during this difficult time."

Our Jean Casarez is here. Also legal analyst Philip Holloway.

Jean, just if you could start with the very specifics about the charges that came just today, the deal information that came just today and what the reality is right now for Jared Fogle.

JEAN CASAREZ, CNN CORRESPONDENT: Well, the reality is, this is extremely serious. And America knows him as someone that lost so much weight eating Subway sandwiches. But this is a far different situation. Count number one, distributing and receiving visual depictions of minors, child pornography. Count two, traveling interstate to engage in commercial sexual activity with minors. I want to look at count two because, Ashleigh, that is the one that I think is extremely shocking. We knew possession of child porn was a possibility. But what the plea agreement says - and we do have a copy.

CNN obtained a signed copy of that plea agreement sign by Jared Fogle and it states that between the years of 2010 and 2013 that he traveled to New York City, first staying in 2012 at the Plaza Hotel in New York City, engaging in sexual relations with a minor, this would be victim 13. And for commercial gain, giving money to that victim, and then asking that victim if she knew anyone else that he could engage in sexual relations with. That he would like someone around the age of 14. That young minor told authorities when they found her that he actually had come to New York before that and three different times when she was 16 years old had engaged in sexual relations. It also states that another victim, victim number 14, at the Ritz-Carlton in New York City engaged in sexual contact when she was 16 years of age.

It goes on to stay that he made phone calls and conversations with others all around the country to see if there could be any minor victims that he could find where he could engage in sexual contact. By the way, the court, Ashleigh, will retain continuing jurisdiction in case there are other victims that come forward.

And there's much more to this, Ashleigh.

BANFIELD: Oh, it's so disturbing just to hear some of the details about hidden cameras in clock radios that apparently captured images of children who were changing and bathing and showering at the home of Russell Taylor, his executive director of the Jared Foundation, that he was aware of these, that he had seen some images as well.

I want to bring in Philip Holloway, Jean, if you'll permit me for a moment.

Phil, these are extraordinary charges. I think a lot of people thought originally when they heard about the potential involvement of Jared that it had something to do sort of tangentially with this other person, Russell Taylor, the head of the foundation, who had many more charges and was facing something very serious. And now it appears they don't get more serious than these charges. The prosecutors are recommending like upwards of 13 years. How much time is he likely to serve here?

PHILIP HOLLOWAY, CNN LEGAL ANALYST: Well, it's a range of five years to 13. Of course, the judge is not bound by that, Ashleigh, as you know. I would expect that the judge would probably find something in the middle. But I don't think he's going to be giving him five years. I think it's going to be more than that. But, of course, time will tell. There's going to be a pre-sentence investigation that will have to be done and that pre-sentence investigation will be provided to the court, for the court to make an educated decision on what to do. But you're right, these are absolutely the most serious charges that one could imagine, at least in terms of sexual misconduct. [12:05:18] BANFIELD: And just to be clear, when we're talking about a

federal sentence and a federal facility, your years are pretty much your years.

HOLLOWAY: Right.

BANFIELD: You don't get out a whole lot earlier for good behavior.

HOLLOWAY: That's correct. There's the - last I heard, it was somewhere in the ballpark of about 90 percent of the sentence actually has to be served. And going back to Mr. Taylor that you mentioned, I think that's probably, we're going to find out, where this all started. People who trade in child pornography, they do so using special software on their computers that is flagged when these files go over the Internet, they're flagged by authorities and then they can identify the IP address and the physical location and then the search warrants start coming from there. And once they seized Mr. Taylor's computers, that's probably what led them to Mr. Fogle and got him involved.

BANFIELD: All right, Phil Holloway, Jean Casarez, thank you both.

And again, I just want to remind our viewers that we expect the U.S. attorney involved in this case and in this plea deal to be holding a news conference scheduled for 12:30, that's coming up real shortly. And as soon as it happens, we're going to bring it to you live as well. This isn't just crime and punishment, there's a lot of money involved also because Subway is the biggest fast food chain in the world. Let that sink in. With a lot more locations than even McDonald's. Let that sink in. And you'd better believe that if there's a convicted child sex criminal involved in a campaign with that restaurant, that is extraordinarily problematic to say the least for that brand.

I want to bring in Cristina Alesci from CNN Money.

We are talking millions upon millions that that - that store has made with him as a pitchman and that he has made as the pitchman.

CRISTINA ALESCI, CNN MONEY CORRESPONDENT: Yes, it's an incredible story. And the brand has done quite a bit to distance themselves - to distance itself from Jared at this point. But you're right, the growth story is incredible.

In 1995, this company had about 10,000 locations. Two years after Jared starts doing commercials for them in 2000, they grew to 16,000. At that point they surpassed McDonald's. And then his story about weight has helped them open more stores than any other well-known fast food chain out there. There are about 44,000 worldwide at this point. That compares to 36,000 for McDonald's and 22,000 for Starbucks.

But here's the thing, Ashleigh -

BANFIELD: Holy cow, double Starbucks.

ALESCI: Yes, but these - I mean these numbers are impressive, but you've got to keep this in mind. Today, actually, an industry publication called "QSR" magazine put out a study that showed that on a per store basis, Subway is in trouble because it's not really generating as much revenue as its competitors on a per store basis.

BANFIELD: How much money did he make in his years as the pitchman?

ALESCI: Well, he - his net worth -

BANFIELD: A couple decades, right?

ALESCI: Yes, 15 years. I mean his net worth is estimated at about $15 million. Now, the company is being very tight-lipped about how much it has paid Jared and they kind of have - they moved away from him a little bit even before this happened. They branched into, you know, movie stars and athletes, more well-known personalities. But what was so compelling about his story is that he was an average person. And when you're working with an average person, you don't think of them as a brand, as a risk, right? When you enter into a contract with an athlete or an actor, you're like, these guys may behave badly, we'd better get some insurance, right, because there's some insurance that helps protect you against liability should your spokesperson go out and do something -

BANFIELD: Unravel.

ALESCI: Exactly.

BANFIELD: Wow.

ALESCI: But it's unclear whether or not Subway has that kind of insurance. So there's a lot of money at stake here.

BANFIELD: You know, for the sake of his children, I hope he saved a lot of that money because that brand is completely unworkable at this point. One hundred percent. You cannot recover from this kind of a crime in the mind of the public.

ALESCI: Well, he won't have - he will not have a speaking circuit fee, that's for sure.

BANFIELD: Heck no and he's going to spend a lot of times behind bars. Cristina Alesci, thank you for that.

Again, I just want to remind you that at 12:30 Eastern Time we're - we're awaiting the U.S. - the U.S. prosecutor on this story. They're going to be holding a live news conference in the jurisdiction where this has all gone down, where the appearance was actually made and where those charges were filed just today. All of this happening so sequentially and quickly. So there's a big part of the picture we're still waiting on. It's going to come to you live in about 21 minutes. So make sure you stay tuned right here.

We've got another sex scandal as well to report on. An elite prep school that has graduated CEOs, members of Congress, cabinet secretaries, dignitaries, and the list goes on, and then there's this young man, Owen Labrie, he's accused of raping a younger student at the school and it's their e-mails that could really shed a lot of light on what happened that fateful night.

(COMMERCIAL BREAK)

[12:13:15] BANFIELD: An elite prep school where students seemed destined for the ivy league and all of the greatness that lies beyond is instead facing a sex scandal that threatens to smear its good name. A name that ambassadors and dignitaries even a U.S. cabinet secretary have all claimed as their legacy. Right now, an alleged victim is testifying in a rape trial that's bringing up a lot of unwanted attention to this prestigious St. Paul's School in Concord, New Hampshire. Nineteen-year-old Owen Labrie is charged with sexually assaulting a 15-year-old on campus last year just two days before graduation. The prosecutors say it was all part of a campus tradition, decades-long tradition, known as the "senior salute," where upperclassmen allegedly try to have sexual encounters with as many younger female students as possible. No joke. CNN's Boris Sanchez reports on this disturbing case.

(BEGIN VIDEOTAPE)

BORIS SANCHEZ, CNN CORRESPONDENT (voice-over): Just a few miles from the elite St. Paul's High School, 19-year-old Owen Labrie sat in court listening as his former schoolmate gave her tearful testimony, accusing him of rape, saying in court, quote, "I thought his intentions were really wrong," end quote. The prosecutor arguing Tuesday that when Labrie contacted a then 15-year-old schoolmate last year, he did so with one intention.

CATHERINE RUFFLE, DEPUTY MERRIMACK COUNTY ATTORNEY: To solicit, lure, or entice her to meet with him with a plan that he was going to have sex with.

SANCHEZ: Labrie is pleading not guilty to allegations that he raped her at the elite prep school where they were both students and further denying that they had sex days before his graduation last year.

RUFFLE: But this was not a consensual act.

[12:15:00] SANCHEZ: The prosecutor revealing that a nurse observed an abrasion on the accuser's genital area, which she says are, quote, "consistent with a sexual assault." The encounter occurred, both sides agree, as part of a decades-old tradition at St. Paul's known as the "senior salute," a competition described as male seniors trying to rack up sexual encounters with younger female students.

Labrie's attorney arguing Tuesday that not all "senior salutes" were sexual, even reading messages in court to illustrate that the accuser willingly participated. "Only if it's our little secret," she wrote. Labrie replied, "not a soul needs to know."

On Tuesday, St. Paul's published a statement on the school's website saying, quote, "allegations about our culture are not emblematic of our school or our values, our rules, or the people that represent our student body, alumni, faculty and staff."

(END VIDEOTAPE) BANFIELD: Joining me now, Boris Sanchez, along with CNN legal analyst and defense attorney Danny Cevallos.

I've got a lot of questions. First to you, Boris, though. The details that are coming from the stand, and I want to be really clear, this is a young - there's a child who's on the stand. We are not identifying her. We're not putting her image even digitized up on the screen, so I'm just going to have to paraphrase and quote from transcript if I can. What I thought was so significant in the testimony that's been coming out to date is that there were these messages, electronic messages, that went between the accused and the alleged victim in which he asks her, "are you on the pill?" And when she says, "no," he says, "praise Jesus, because I put it on halfway through." I think the prosecutor alluded to something else like, I think we're OK. How do we get from that to there was no sex, because there's a reference here that this is a condom?

SANCHEZ: Well, the defense is going to have to work that out. Right now they're going through with the 15-year-old female - she was 15 at the time of the incident. We believe she's 16 now. They're going through those messages to try to figure out intent because obviously she acknowledges that something happened between them and it's unclear whether or not it was consensual. She has said in court just moments ago that she wasn't strong enough to tell him no. Rather, she wasn't strong enough to tell him how she felt other than to make certain motions with her arms. She says he was clueless as to what was going on. But obviously from some of those messages, she implies and he implies that something actually happened between them on campus.

BANFIELD: Well, and what's odd is that there is this series of messages after the alleged incident which seem quite amicable between them.

SANCHEZ: Right.

BANFIELD: And then comes this, "are you on the pill? Praise Jesus, I put it on halfway through." I mean that is a really significant piece of information, as is this attitude. But, maybe, Danny, you can weigh in on this because I know there have been so many different cases in which so much can be interpreted two ways in sexual assaults, whether there is actual abrasions, some of those can be deemed as consensual abrasions as well as sexual assault abrasion, which is part of this case, and then there is this behavior of an alleged victim after the fact. Can you sort of give me some insight into how you can read that behavior two ways?

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, it's interesting because rape is one of our - and in New Hampshire it's statutory sexual assault. But it's one of our most serious crimes and it's a crime that, unlike murder, which has other evidence, often turns on the credibility of one victim witness. And so the same evidence - and we're seeing in the this exact case. That same evidence of their communications afterwards, the defense is using for one purpose to say that, oh, there was - there was all kinds of consent in this case. And the prosecution uses it to prove that there was sexual contact because in any forcible rape or sexual assault case, two of the main defense cases either that it was, a, consensual, or, b, that it didn't happen at all.

And we should be aware, that in New Hampshire, there are two varieties of felonious sexual assault. We are focusing on the age of the alleged victim here, but the law says that where someone - where the victim is between 13 and 16 and the perpetrator is four years of age or older, that may not have been the case here. But there's an alternate, and that is where the defendant is in a position of authority. So if this case is being charged because he was the prefect as a senior at this school -

BANFIELD: Oh, yes.

CEVALLOS: Then that - then consent becomes very important because states - most states, if not all states, have this - what has been called Romeo and Juliet laws. I didn't name them that, but that's what they're called. And they're designed -

BANFIELD: They're for teen lovers as opposed to teen rape.

CEVALLOS: For teen lovers, exactly, and this -

BANFIELD: Right. Yes.

CEVALLOS: This defendant came - if this was a consensual encounter, may have fallen within New Hampshire's law that gives that exemption.

BANFIELD: OK, I've got to wrap it here, but, Boris, I'm just going to give you a quick heads up to watch for what happens when her testimony wraps in terms of cross-examination, because that's one of the things I can never get my head around. How do you cross-examine a child?

CEVALLOS: Oh, it's tough. It's tough.

BANFIELD: How do you cross-examine an alleged rape victim? Those are such tender lines.

[12:20:02] CEVALLOS: Especially when together. It's so difficult.

BANFIELD: Oh, it is just - I mean the drama in that courtroom, I cannot imagine. And as I said before, we can't do this live. We can't show you this live because this is an underage victim. There's some very sensitive testimony. But I know you're doing your best to sort of siphon through it.

SANCHEZ: Absolutely.

BANFIELD: And come back with more for us if you will. Thank you, Boris Sanchez, Danny Cevallos. Appreciate it.

Coming up this morning - by the way, on the "Today" show, a representative for the alleged victim's family told NBC's Savannah Guthrie that it has been difficult for the teenager to come forward with these allegations.

(BEGIN VIDEO CLIP) LAURA DUNN, REPRESENTATIVE FOR ACCUSER'S FAMILY: Unfortunately, that is the case in a small town, in a small community often when these cases arise, people do choose sides and there has been a lot of effort from the defendant and his side to garner support financially or otherwise for his cause. And so it really has pushed the family out of that community. They're no longer at that school or living in the area. But they have some strong supporters. They are supporting each other at this time and they're doing what they believe is right, which is speaking out against sexual violence.

(END VIDEO CLIP)

BANFIELD: And as promised, we're going to keep you updated. We'll keep following this story. Boris is on the case, so we'll continue at CNN to give you the details as we get them.

If I told you this a while ago, you might not have believed me. Hillary Clinton and Donald Trump just six points apart in the race for the White House. Are Trump's predictions right? And that e-mail scandal, will that potentially cost her a presidency?

(COMMERCIAL BREAK)

BANFIELD: Well, the race for the White House just got a whole lot more interesting. And by "interesting" I mean tighter. I want you to check out the new numbers, the brand new CNN/ORC poll that shows that Hillary Clinton has just a six-point lead over Donald Trump in a hypothetical general election matchup.

[12:25:18] But it's really even closer than that. Our poll of registered voters has a 3.5 point margin of error, which means these two candidates are virtually statistically neck in neck. That's a huge change from July and an even bigger change from June.

And, by the way, the gap between Secretary Clinton and Wisconsin Governor Scott Walker also stands at six insignificant points. If it's any consolation for the secretary, she continues to dominate her fellow Democrats with Bernie Sanders running 18 points behind in our latest poll. Still, this is the first time that she has dipped below 50 percent in a CNN national poll of the Democratic field.

Enter my experts, CNN political director David Chalian and senior political reporter Nia-Malika Henderson.

So I'm going to start with you, Nia-Malika, if I can. The issue of the e-mail. And so much of it depends on how the headline is broadcast or read or printed and how much eye rolling goes on because if you ask some people, there is no scandal, and this is much ado about nothing. If you ask others, it goes all the way back to the notion of having a personal server in the first place, even for private e-mail. But look what people say. The registered voters came in and said, no matter what, 56 percent of them said that was wrong. Is this what's costing her this big slide in favorability?

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: Well, it's certainly not doing her any good. And if you look into the numbers, there is, of course, a partisan divide, Republicans much more likely to think she did something wrong, something like 80 percent, and Democrats, something like 65 percent saying she didn't do anything wrong. But the interesting poll there is independents, 63 percent say that she did so do something wrong.

And there's another split here that I think in some ways speaks to what she's banking on, sort of her underlying strength. There's actually a 15-point gender gap. Men much more likely to think she did something wrong than women in this poll. Something like 51 percent of women versus 66 percent of men. Of course, that still is a majority of women doesn't do her any good there in some ways. They've got to figure this out.

And you see them trying to talk about it. She talked about it yesterday. There was a moment when she sort of joked about it as if to say, listen, every Democrat who is freaking out about this, hold on to your horses. She's not worried about it. She seems to want to project that image. So Democrats shouldn't worry about it either. But, listen, these polls aren't good for her and we'll see how this plays out in the next couple of weeks.

BANFIELD: Well, let's talk about the favorability numbers because, David, she's underwater in favorability now as well. I think she's coming in, what, 44 percent find her favorable to 53 finding her unfavorable. That, you know, on its surface looks awful, but at the same time Donald Trump's not doing great there either. Thirty-eight percent of people find him unfavorable to 58 percent saying favorable.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Right.

BANFIELD: But does this just reflect the headlines of the day or of the - of the news cycle? Are these the kinds of things that if you're a candidate you blow it off because you've got another story coming up next month?

CHALIAN: Well, let's start with the fact that like if you are a politician, Ashleigh, you're probably not going to be viewed all that wonderfully by the public right now.

BANFIELD: Right.

CHALIAN: So we can just start there. Secondly, Hillary Clinton, the reason we take such note of her unfavorables on the rise I think is the highest we've had them since 2001 in our polling, is because she had such lofty numbers when she was secretary of state or the afterglow after she was secretary of state. Now she's back down into the sort of political day to day combat, which never reflects well on her either.

Add the e-mail controversy that you were just talking about with Nia to that and it only compounds that. But I don't think that that is what has the Clinton campaign overly concerned. I think that they are probably a little more concerned right now about how the weight of the campaign is affecting her standing against Bernie Sanders right now and just with Democrats in general. In that part of our poll, we show her, you know, nine points lower on the Democratic ballot since last month. I mean she's now under 50 percent support among Democrats on the ballot test for the first time in our polling, while Bernie Sanders is up ten points.

BANFIELD: All right, David Chalian, Nia-Malika Henderson, I'm going to have to leave it there. Thanks to both of you.

I just want to remind our viewers that my colleague, CNN anchor Chris Cuomo, is hosting a special tonight at 9:00 p.m. featuring his interview with the candidate, Donald Trump. I want to make sure that you tune in for that. That's coming up.

[12:29:55] We're just moments away from a scheduled live news conference from the U.S. attorney in a guilty plea of former Subway pitchman Jared Fogle. And these are live pictures in Indiana of Jared Fogle leaving the federal courthouse where presumably he has just been processed in the probationary process. You're going to have to work with me