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Legal View with Ashleigh Banfield

Reviewing Testimony from Prep School Rape Trial; Latest on Jared Fogle Scandal; Ashley Madison Website Still Operating; Preview of Special on Morton Downey Jr. Aired 12:30-1p ET

Aired August 20, 2015 - 12:30   ET

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

(COMMERCIAL BREAK)

[12:31:28] ASHLEIGH BANFIELD, CNN ANCHOR: Some pretty emotional testimony that came out today from a 16-year-old girl who said she was raped as a 15-year-old by a very popular senior St. Paul's Boarding School, all part of what was a game so that he could score points in a so called senior salute, that was the name of the game.

Owen Labrie is the person on the left and right of your screen.

Very different story on the left to the right visually, in court this is what he looks like on the right. His mug shot is the picture on the left.

Very strange, almost like the surfer boy meets Harry Potter. The conservative look matches his conservative account, denying that the two never ever had sex. He said it just didn't happen.

Boris Sanchez, had been covering the case. He joins me now.

This was an emotional day. This was a -- look whenever you have an accuser on the stand, especially a child, I mean she's still a child, she's 16, she was 15, it's difficult to do cross-examination and under cross-examination it got very explosive, isn't it?

BORIS SANCHEZ, CNN CORRESPONDENT: It did. It was also very difficult to listen to, very graphic and detailed testimony, the defense kind of pushing her to answer questions that for anyone would be uncomfortable let alone for a minor.

They asked her about reportedly what was exchanged between them, the messages that went back and forth, what went on before the encounter, what went on after the encounter, and then there was a question that seemingly as you said was explosive. She was being asked why she told investigators that she was cloudy or confused as they were trying to plan this meeting before the incident, her and the accused.

She said, "I was raped, I was violated in so many ways, of course I was traumatized. I'm sorry." She then tries to compose herself and says, "I'm sorry. I was cloudy because I was traumatized in this retelling."

She's obviously very deeply affected by the questioning and she was crying throughout the cross-examination right up until the very end. It was very tough to watch.

BANFIELD: There's a piece of testimony that came out, the nurse that this accuser visited, the nurse said that when she asked, was the sex consensual, she said the accuser said, "Yes, it was." But the accuser had an explanation for that in court and it is significant to this.

SANCHEZ: It is. Essentially she said that she wanted to speed this thing through. It was, to give context, this was around the time of her older sister's graduation. They went to the same school.

The nurse said that she felt that the accuser was rushed and part of the reason she was rushed, the explanation she gave, was that she just kind of wanted to see this thing through and not dump her sister's graduation.

BANFIELD: And that she was meeting them, I mean she was literally in a hurry to meet up with them for graduation, right.

SANCHEZ: She also didn't tell the nurse about any trauma or physical lesions or marks on her and the nurse also said in court that she didn't see any on her. She also didn't tell the nurse when she asked who the person she had the sexual encounter with.

BANFIELD: Was this the same nurse that said these are the, you know, abrasions that could be consistent with sexual offense, effectively, that's my paraphrasing. Is this the same nurse?

SANCHEZ: We're still working to clarify that. This was the school nurse that she went to for plan B.

BANFIELD: Ah, OK.

SANCHEZ: As far as we understand she went to a nurse to gather a rape kit much later, several days later, this is only two days after the incident happen.

BANFIELD: I have a feeling it will be the second, and the nurse more than likely will take the stand as well on that.

Boris, it's really difficult. And I should tell our viewers as well, the reason Boris is telling you what the accuser said is because we can't show the accuser.

SANCHEZ: Right.

BANFIELD: She's still a child and she is an accuser in a rape case. So that's just the way it is.

Thank you, great work. Appreciate it.

Coming up next ex -- I should say ex-subway spokesman, because he sure need anymore.

[12:35:02] Jerrod Fogle, now promising to pay more than a million dollars to his victims after pleading, well after agreeing anyway to plea guilty to federal child porn charges.

What does that do to the judge who's going to decide how long he stays behind bars?

Coming up, you're going to be surprised to find out.

(COMMERCIAL BREAK)

BANFIELD: Jared Fogle is not only going to prison probably, he's also going to lose a lot of money, money that he made promoting subway sandwiches all over the world.

Part of his guilty plea arrangement if he goes through with it, admitting that he paid for sex with under aged girls and received and viewed child pornography.

Is that he agreed to pay 14 separate victims $100,000 each. His lawyers say this, "While Jared recognizes -- fully recognizes that such monetary contribution will not undo the harm he has caused, he is hopeful it will assist these individuals as they try to move forward with their lives."

It's not all he said. A whole lot more, too.

Jean Casarez is here, who's also a Legal Analyst, and a Legal Correspondent and a Lawyer. And Joey Jackson beside her definitely is a Lawyer and Professor as well of law.

[12:40:02] So I'm going to ask the two of you, when I listen to the statement made by Jared Fogle's attorney yesterday, it was almost as though in prose he was checking off critical boxes that judges want to hear.

Let me...play a portion of what Jeremy Margolis said and then we'll talk about it in a moment.

(BEGIN VIDEO CLIP)

JEREMY MARGOLIS, JARED FOGLE'S ATTORNEY: He's already volunteered to make restitution to those individuals who have been impacted by his behavior.

He knows restitution can't undo the damage that he's done, but he will do all in his power to try to make it right.

(END VIDEO CLIP)

BANFIELD: OK. So that was just a little short snippet, but he went on to say Jared accepts responsibility, he's volunteering for the restitution, he's going to charting a course to his own recovery, he's expressed remorse for what he's done.

JOEY JACKSON, HLN LEGAL ANALYST: The mental help that he's going to get and on and on.

BANFIELD: These are critical things. This is not just him chatting off the top of his head, isn't off the cop remarks are they?

JACKSON: No, not at all, I mean there's a method certainly to what the attorney is doing and the first part of the process is to accept responsibility and to work with the prosecutor as he had to develop a plea agreement and we can talk about whether that plea agreement is reasonable or not.

But I think the big thing here is whether they get the judge to sign off on that plea agreement.

BANFIELD: Bingo.

JACKSON: That's going to be critical.

BANFIELD: Jean, that's why I listed this out because there's even more here because federal judges, any judge to that matter who has discretion, sees one party asking no more than five years, OK.

And another party saying, no, no, no, more of like 13 years, and has to make this decision. And yet he has seen a defendant who is saving this court possibly millions in trying the case, who is saving and sparing these victims from having to come in and testify and who is saying I'm sorry and not just out of his mouth, out of his wallet. These things matter to judge.

JEAN CASAREZ, CNN CORRESPONDENT: First all, as the correspondent I am, let's look at the facts. Count one maximum is 20 years. Count two maximum is 30 years. And they're very different factual scenarios so it is plausible a judge would sentence someone to 20 years plus 30 years, 50 years, these are egregious acts truly by anyone's standards.

The plea deal, and all he's saying is mitigation, everything he's saying is mitigate all of this, right? The defense attorney. The prosecutor is saying they will ask for no more than 12.5, he'll agree to 5, and so the question is, as you said, will the judge believe that's fair here because he could spend the rest -- in 12.5 years he could be out.

BANFIELD: Right.

CESAREZ: Out walking around. And as far as a trial, I have covered many trials with minors. I have covered many trials where they'll take the minors into the judge's chambers and get testimony and no one ever knows or hears that testimony. It's a secluded area where the courtroom is closed.

So I've talked to a lot of people out there that wonder why the prosecutor isn't taking this to trial because they could.

BANFIELD: Well listen, I will say this and we'll have to revisit this when the judge makes his or her decision in the case. The judge isn't bound by these demands either. The judge wants to go 50, the judge goes 50, so that can happen, everybody so stay tuned.

JACKSON: That's why you saw his attorney saying what he was saying in front of the camera, contrition barricade. Jean Casarez, Joey Jackson, thank you both. Appreciate it.

BANFIELD: If you're one of the millions of people who used a popular website to cheat on your significant other, well, guess what, your dirty little secret is out and we have the dirty little details next.

(COMMERCIAL BREAK)

[12:47:05] BANFIELD: Ashley Madison, you may be surprised to learn, is still accepting new members today, still helping husbands and wives have extramarital affairs because, "Life is short" except for this.

The company may be open for new business but there are some pretty unsettling things going on out there, names, addresses, and sexual proclivities of millions of members now just out there on the internet for anybody to see including the person you're cheating on.

CNNMONEY Tech Correspondent Laurie Segall is here and also Legal Analyst Paul Callan. First to you Laurie, it used to be it was a dark site that nobody could get to it unless you're really astute. Now it's as simple as Google?

LAURIE SEGALL, CNN MONEY TECH CORRESPONDENT: Everywhere so it all started out on the dark web where hackers put the information so it won't be taken down.

Now you can Google anything. There are websites that say put in the cheater's name and we'll tell you if there's on this list. It's actually a geo located map that shows where most of the cheater as what they're saying.

They also have a divided by company. So, you know; this is only the beginning, Ashleigh. This is going to get very nasty.

BANFIELD: Wait, these other sites are dividing people by company...

SEGALL: Dividing by company ...

BANFIELD: And government.

SEGALL: I mean this is just to beginning, yeah.

BANFIELD: And military.

SEGALL: 15,000 government associated e-mails, we can't independently confirm but 15,000 on there.

BANFIELD: OK. So this is really critical what you just said we can't independently confirm. Our executive producer brought up such a great point this morning and that was this. If I have a beef with Lori, and colleague, and I decide I'm going to get her back, I'm going to go on Ashley Madison, I'm going to create a fake account under her name and then I'm call her husband and tell him, right? But isn't that legitimate.

PAUL CALLAN, CNN LEGAL ANALYST: Well that has to do with the reliability of the information and yeah that would be defamatory; you could be sued for that in fact that might be criminal because that's a fraudulent act.

BANFIED: Oh, wait a minute. So you're saying that libel it's for instance one of these media companies that publishing all these names right now for all to see and there is libel out there, they could be liable for the libel?

CALLAN: If that's gets tougher because the question is what is their responsibility to vet the information. I'll give you an example. I was telling Lori just before we went on the air I was looking at a legal blog well-known among lawyers called above the law. It followed the big law firms, the big money law firms.

BANFIELD: I've read it many times.

CALLAN: Today, they published a list of how many judges, how many big law partners are in the site and they have a mechanism for looking up individual e-mails.

Now all of that I believe would be legal under current U.S. law.

BANFIELD: You really do?

CALLAN: Yes.

BANFIELD: You don't think anybody who suffers damages from this, who is not cheating.

CALLAN: Well if above the law was notified by the person that this is fraud, I didn't list my name and they did reveal that information, yes, they could be sued to that ...

BANFIELD: And by the way Lori there's really, really small print if you're actually signing up for Ashley Madison that says, "Hey by the way, we can't guarantee any of these discretion that we and believe in all over our..."

SEGALL: ... and...

BANFIELD: So they're not libel?

SEGALL: Yeah, we'll look, you never know, in these kind of situations they can be held liable, people can make the case.

[12:50:01] Let met put like this. There are e-mail addresses and Saudi Arabia where adultery is punishable by death. I'm sure an attorney can make the case.

And I'll also say that Ashleigh, there are bogus names on there. But if you look on the dark web and you actually hear homework and the journals need cross references with data and addresses and everything is out that you can paint a really good picture of who is legitimate and who is not. Now the decision is up to us how to report that out.

BANFIELD: OK, one other question and that is this, it has to be quick and both of you can weigh in on it.

This is stolen information, this is like going into a bank and taking money, and then handing it out and everybody being gleefully accepting of it. Am I wrong, Paul?

PAUL CALLAN, CNN LEGAL ANALYST: Well, it sounds like it is. It sounds like, you know, if you possess stolen property, right? That's a crime in America. But, this property happens to be information and we handle information differently than we do property. So, I think possession of this information is probably not illegal under current law.

BANFIELD: I have to leave it there, but it's fascinating. We'll continue the conversation. Laurie, Paul, thank you very much.

Coming up next, he took televisions down to a whole new level in the airwaves, were never the same again. A revealing look at this -- then the King of Shock T.V., Morton Downey Jr.

(COMMERCIAL BREAK)

BANFIELD: Welcome back. In a surprising moment this morning on CNN's NEW DAY, politician-turned controversial talk show host Jerry Springer, defended Donald Trump, saying that he could indeed win the White House.

(BEGIN VIDOE CLIP)

[12:55:07] JERRY SPRINGER, FORMER TALK SHOW HOST: Look, I don't like his views. I'm opposed to him, but I'm not going to pretend that he's just, you know, a momentary blip. This guy could become a candidate. The trump stance on the issues is consistent with the stance that most Republicans take. They're with him on immigration. They're with him on the women's issue. They're with him on planned parenthood. They're with him on these issues.

(END VIDEO CLIP)

BANFIELD: All right, Jerry Springer is just a great guy. And, before Jerry Springer hit the airwave there was Morton Downey Jr. And, his show, a show that was known for its explosive atmosphere full of conflict and heated political rhetoric and debate, for better or for worse, Downey set the stage for American partisan talk television that you see every day. Here's a clip from the CNN film that documents the rise and fall of the King of Shock T.V.

(BEGIN VIDEO CLIP)

(CROSSTALK)

MORTON DOWNEY JR. TELEVISION TALK SHOW HOST: ... you that it is never been proven that AIDS can be sexually transmitted. It has never been proven in a laboratory.

UNIDENTIFIED MALE: No, I don't know that.

(CROSSTALK) UNIDENTIFIED MALE: ... I'm in the middle of this. You ought to know about more under the middle of research have been for a number of years.

DOWNEY: Are you a research expert? Are you a research expert?

UNIDENTIFIED MALE: Hey shut up and answer...

(CROSSTALK)

DOWNEY: Are you a research expert? You shut up. All you're doing is spewing garbage.

CHRIS ELIE, COMEDIAN, MART PLAZA: I was attracted to that kind of awkward, dangerous atmosphere. When he first came on the scene, I was immediately sort of mesmerized by the show.

DOWNEY: A vegan?

ANGI METLER, ANIMAL RIGHTS ACTIVIST: I am a vegan. I abstain...

DOWNEY: Let me hear what she has to say here. You abstain from what?

METLER: Yes, I abstain from all animal products including dairy and clothing.

DOWNEY: And clothing? I eat raw hamburger.

METLER: And, what is your...

(CROSSTALK)

DOWNEY: I eat raw fish. I smoke four packs of cigarettes a day.

METLER: Well can I say something?

DOWNEY: I drink. I have about four drinks a day. I'm 55-years-old and I look as good as you do bitch.

GLORIA ALLRED, FEMINIST LAWYER: He was in your face. He was, take no prisoners.

DOWNEY: What the hell is a feminist? I thought anyone who had breasts was a feminist.

ALLRED: There are almost no feminist who would ever burned a bra. So, let me get that straight...

(CROSSTALK)

DOWNEY: There's almost no feminist whoever had anything that they need to wear bra for.

ALLRED: Between us, there was a certain amount of sexual tension.

Likewise on your jock strap but in any case...

(END VIDEO CLIP)

BANFIELD: Yeah, you recognize her? Here she is now and in decidedly different hair style.

ALLRED: Oh thank god for that.

BANFIELD: Gloria Allred...

ALLRED: Oh my god.

BANFIELD: ... you were one of the most frequent guest on that program.

ALLRED: I was, Ashleigh and that was an amazing program, very explosive, volatile, you didn't know what was going to happen next, but as a guest you had to be ready for it. You had to give it, take it, and then give it back again.

BANFIELD: When you started as a guest, did you know what was coming? Did you know this was the brand of television that he was sort of minting?

ALLRED: Yes, I did. But I felt that I had to do it, because in those days, not unlike these days, there was not much coverage of women's rights and civil rights for gays and lesbians. And so, when he asked me to be on, I decided to have a go at it, do the debate, get into the ring and go at it with Morton Downey Jr. because that was one of the places could you do that.

BANFIELD: But, he beat everybody up, and he made fun of them. And, he belittled their causes. And, I can't imagine anyone doing that to you. I've never that seen happen, but did you feel at any point, maybe this was a mistake?

ALLRED: No. It was not a mistake. You have to get in there in the marketplace of ideas, and advocate for your position. That's what I did. After the show he was always very cordial to me. We understood that's what it had to be heated and a big contest like a wrestling match.

BANFIELD: So, ultimately people said how could this man get a microphone, this is the end of television as we know it, and he did flame out. He did. Some people say he's responsible for, you know, paving the way to what we see today. Others say, no, that was just a blip and it showed because he was gone in 60 seconds.

ALLRED: Well, I don't know why his show ended but it did. And, unfortunately, he did pass away from cancer, lung cancer, by the way. So I know that he was sorry about smoking so much. But, in any event, yes, Donald Trump has a lot of the same style as Morton Downey Jr. And, look where it's getting Donald trump. Definitely was good television. We'll have to see whether that's for the presidency of the United States.

BANFIELD: I can't wait to see this. And, that Gloria Allred, thank you for coming in frequently.

ALLRED: Thank you, Ashleigh.

BANFIELD: And, you can find out more about the King of Shock T.V., Morton Downey Jr. in a CNN film called the "Evocateur" tonight, 9 P.M. Eastern Time.

[13:00:04] Thanks everybody for watching, nice to have you with us. My colleague Wolf starts right now.