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Legal View with Ashleigh Banfield

Pentagon Sending Special Forces Into Syria; Pentagon Chief Pressed For ISIS Strategy; Accused Baltimore Cop Takes The Stand; Office Porter Says Freddie Gray Never Said He Couldn't Breathe or Why He Wanted A Medic; Couple Starts Health Group After Losing Child; Trump Renews Threat Of Independent Run. Aired 12:30-1p ET

Aired December 09, 2015 - 12:30   ET

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

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[12:32:01] ASHLEIGH BANFIELD, CNN ANCHOR: Welcome back. I am joined live now by CNN Military Analyst, Retired Army General Spider Marks.

You know, Spider I want to ask you about something that secretary of defense just brought up in the Senate Armed Services Committee Hearing, because it's just, it was the thing that really stood out. And it made me wonder if it made the hair on your arms stand up.

When you hear Defense Secretary Ash Carter, and let me just read for you what Barbara Starr is reporting. He raised the prospect that U.S. Military advisers could go on the ground with Iraqi forces to assist in the operation of taking back the Iraqi town of Ramadi from ISIS control. That is no longer an adviser in sort of a safe zone calling in the position, that's them doing "Hurt Locker" stuff, that's close quarter combat or maybe I'm wrong I hope that I am because I think that makes a lot of people very nervous about the safety and security of our guys.

JAMES "SPIDER" MARKS, (RET.) MAJ. GEN., CNN MILITARY ANALYST: Well, Ashleigh, it should. And what he is describing as a trained and assist and advisory type of a role that the United States knows how to do extremely well.

The key is who are they advising? And what is the level of readiness and preparedness for those forces. The United States would not embed themselves even with one soldier without the acknowledgment by that unit that he or she was with could be a she was with that, that unit would have the ability to achieve some level of success and understand that a single soldier or marine on the ground has the incredible power of the United States behind it.

One soldier, one marine on the ground is going to the have an incredible amount of support. So the comfort comes from an understanding of what we know about the unit that that individual is going to be embedded with. And the notion that the united states is not going to leave that individual soldier or marine on the ground unprotected without the support that we can bring to bear. So it increases, certainly, increase our commitment.

BANFIELD: Here is my concern about that. I don't question for a moment that the military isn't going to support its people on the ground. But when you start talking about this kind of mission creep and getting them into the close quarter combat, and then what if Raqqa is next. And now you have innumerable enemies and so as swarming around. I mean it gets a lot more hairy and a lot more difficult. And there are a lot more IED's from people who are harder to track. And it doesn't matter how many guys you got supporting the troops out there. An IED can do horrible damage in those tight streets and in those ghost-like town.

MARKS: Sure Ashleigh, absolutely, there's absolutely acknowledgment of the risk associated with a mission like this.

And it is the time to acknowledge what is necessary and sufficient in order to accomplish a task to go after ISIS in a way. And we needed to start with the definition of ISIS as to whether this is existential or not.

My view of this all along has been there is a necessary requirement for ground forces if you're going to try to defeat. And their strategy has not been sufficient. It has not followed with the president has indicated he wants to do. It's not being resourced. If you want the defeat something, you've got to be able to get on the ground and pull it apart.

[12:35:11] And guess what, there will be some ugly results as a result of that. But it starts with the desired and a very clear picture of what that desired end state needs to be. And if it's defeat, you have to have ground forces, now you get in better discussion of who takes the lead, what is that look like, can we get regional powers involved and how much time do we want to have to give to ISIS to continue to expand its caliphate to the point where now any ground forces that might be ready to go in are insufficient at that point.

BANFIELD: The fact that you just said the, you know, is ISIS existential or not? That brings to light what Senator John McCain was getting at. He said you're got to destroy the caliphate.

And a lot of people say "What the heck is a caliphate, I keep hearing it on the news, the religious country that knows no borders."

But honestly, a lot of people say you got to destroy Raqqa which is the capital so to speak of the caliphate, but if this is an existential reality, does it really matter how much rubble you make bounce because it really matter if you take back Raqqa. Does it really matter if you take the geography as some people say to an existential theory a way of thinking that's spreading all the way to San Bernardino?

MARKS: Absolutely, Ashleigh, absolutely wonderful discussion point.

The key is that right now, there's an amazing allure to what ISIS has been able to generate. They've been able to do that with a level of impunity because what the United States and the partners have been able to achieve up to date is a containment to the caliphate. These piece of geography that you describe that a strides in Iraq and Syria. And it's been contained. But within that, there has been an immense amount of allure that has been able to then -- that has been generated.

This draws attention throughout the world of those that are primarily already radicalized. Already radicalized are out there. And they come the Syria to increase and to live out their rather idealistic and pure vision of Jihad and Islam. That really doesn't approximate anything that most Muslims would acknowledge as a reality.

In fact, many would say ISIS is un-Islamic. It is as far from Islam as the Quran would try to describe.

BANFIELD: I think the only people who say they're Islamic.

MARKS: ... we've got to be able to make this allure. We've got to make sure this geography doesn't have any allure.

BANFIELD: Yeah, I think most people out of the 1.6 billion Muslims around the world ISIS is the only one who suggests that it's actually Islamic.

Spider Marks, always great to have you.

MARKS: You're correct.

BANFIELD: Thank you, sir, nice to see you.

MARKS: Thanks, Ashleigh.

BANFIELD: I always say this. And here we are on the program called Legal View. You rarely get the chance to see a defendant take the stand. It's a big thing in a trial. It's a really big thing. But sometimes they do it. And this man he has just done it. He is officer number one out of six in Baltimore in the Freddie Gray death. Officer Porter took the stand and told his story. They have all been silent until now. And you're about to find out what he said happened in that van.

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[12:42:32] BANFIELD: There's a huge day. I can't stress this enough in the first trial of the Baltimore police officer who has been charged in the death of Freddie Gray.

I say huge, because this man, William Porter, who's charged with involuntary manslaughter and second degree assault and reckless endangerment and misconduct in office has decided to do what a lot of defendants don't do, take the stand in your own defense. Freddie Gray as you know, suffered a catastrophic set of injuries in

the back of a police van that took him on a round about route to lockout on the morning of April 12th.

He had been arrested on suspicion of carrying a knife that turned out not to be an illegal knife.

CNN's Jean Casarez has been in the courtroom and following this from day one. I was very surprised, Jean, to hear that Officer Porter decided to take the stand, but he did. So fill me in on everything he said and why it mattered?

JEAN CASAREZ, CNN CORRESPONDENT: So much to tell you, Ashleigh. And we want to tell everybody, this is direct examination of William Porter. The prosecution is going to cross-examine him. They're going to try to rip this apart to destroy his credibility and truthfulness. But this is his testimony under oath.

He said first of all that the reason he didn't call for a medic is because he couldn't find anything wrong with Freddie Gray. He kept asking him what's wrong, and he wouldn't respond, he wouldn't describe any particular injuries, he couldn't see anything outwardly that was wrong with him.

He said the reason he didn't seatbelt him in, was because it's very, very tight in that van, and when you go in there that your gun is exposed to the prisoner that you're transporting. And so under the circumstances, he didn't do it.

He said that he had never done it in 150 arrests in two years he had never done it. Was he taught it at the police academy? Yes. They said that you're supposed to seatbelt in a detainee. He did it in patrol cars, but during his field experience, the field training of the police academy they never seatbelted anybody in as he was learning how to arrest and put in a police van a prisoner.

He also says that on the morning of April 12th, but he got a radio dispatch that they needed backup. And so he went to the scene. He was in charge of crowd control but also trying to find another person they believed was a suspect couldn't find him, so he was there.

He asked another officer, so who are they putting in the van right now? He said it's Freddie Gray.

[12:44:58] Well, Porter testified that he knew Freddie Gray that he'd seen him almost everyday walking around the western district, because that's where he patrolled. And he related to the officer on the morning of April 12th, you know, a couple of weeks ago Freddie Gray was arrested, he was put in the SUV and he started trying to kick out the windows.

And so an officer had to open up the door to try to calm him down.

He testified that he saw on the first stop Freddie Gray inside of the wagon and he was back and forth, most the wagon was going back and forth. At the second stop, he went there, too, and he said for about five to eight minutes that Freddie Gray was pushing the wagon back and forth. He said there were also some screams and yells and nothing discernible of what they heard.

Stop number four, this is the critical stop. He said that the Freddie Gray never said I can't breathe. Not at that point, he said. He said that he asked him what's up? And Freddie Gray was on the floor of the wagon, one of the cheeks was on the ground, and he said, help me, help me up. And that is when Porter did help him on to the bench, Ashleigh.

BANFIELD: It's fascinating stuff. And I know it's not over yet, there a lot to cover. So Jean, I'll let you get back into the courtroom.

I'm joined now by Defense Attorney and CNN Legal Analyst Danny Cevallos, and also by New Yorker writer and best selling author and CNN Senior Legal Analyst Jeffrey Toobin.

All right, you guys. This is always exciting. I know I'm a bit of a geek when it comes to this, but when a defendant takes the stand, it means a lot, and it means a lot to the juris, because they want to see you testify, they want to see what your eyes look like. They want to see what your voice is like. They want to get a sense of who you are.

So Danny, I'm going to begin with you. How critical is it that he did that, that he made this move and take this stand.

DANNY CEVALLOS, CNN LEGAL ANALYST: It's critical. If you're going to call a defendant to the stand which is a rare occurrence, this is the defendant that you are going to want to call. Why is that? Well, police officers are professional witnesses. Arguably, this witness is more comfortable on the witness stand than he is sitting at the defense table, because believe me, he has testified in many, many trials. He' comfortable, he knows what he has to do to come across as a credible witness.

So if you are going to calling a defendant to the stand which is a generally a risky proposition, this is the one to do it with.

BANFIELD: So Jeff Toobin, a couple of things have happened along the way. You heard from his own mouth as Jean just reported he said absolutely not when asked, you know, did Freddie Gray say that "I can't breathe" absolutely not.

He also said, you know, I didn't call for medics, Freddie did not give me a reason to, he didn't tell me why he need one.

But before we've got a forensic pathologist who's directly challenging when Freddie's injury happened and the devil in the details when it comes to these things.

When did the injury happen? Because we've got a whole few (ph) of officer, we got six different officers in a chain of event that may or may not be extremely adversely affected by this. But does that just, I mean, look, if you raise the question was it the second stop, the fourth stop, the fifth stop. Does that just raise a kernel of doubt for the jury?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Sure thing.

BANFIELD: If you do not know the stop you can tell this guy is guilty.

TOOBIN: Big picture, I think this is a very tough case for the prosecution.

BANFIELD: You do? TOOBIN: Yeah. Because you have to prove not that the Baltimore police

department did a bad job. You have to prove that Officer Porter committed those acts that caused those injuries, and I think given the inherent difficulty of pinpointing when an injury like that takes place. Yes, one pathologist has an opinion about when the accident, when the injury took place.

But that's not necessarily the last word on it. And there is only one witness who can speak to what went on in that van, in the back of that van, and that is Porter. And the jury is only going to have his version, and he is not someone with a criminal record which is often why criminal defendants don't testify. I just think it's a tough case.

BANFIELD: He's got a clean record, and just wrapped it up, Danny, and that is this, you have to just get a jury thinking about other possibilities. You don't have to prove the other possibilities happened if you're a defense attorney, you just have get them thinking, are you certain? Are you certain that those injuries at that time point to my guy? Are you really reasonably certain.

CEVALLOS: Not only that, Ashleigh, yes, and but you also have to prove in many cases your own defense theory of the case, and Porter is already doing that in his testimony. He's putting the Baltimore P.D.s training, their policies. Those are the ones that are at fault. He's participating in 150 arrests. He's never belted anyone and his never seen it done. He's creating an atmosphere, while he was just somebody who was part of the system who in his opinion did the most he could do to protect Freddie Gray.

BANFIELD: And I just want to remind everybody that everything that happens is on the record, and we still have five more people to go. So we've got all of this testimony.

In five seconds, all of that testimony fair game for the next five trials?

TOOBIN: Sure.

BANFIELD: There you go.

[12:50:04] TOOBIN: If the witnesses testify again, they can be impeached with it.

BANFIELD: Sure.

TOOBIN: Same witnesses can testify and probably will.

BANFIELD: Yeah.

TOOBIN: In subsequent trial.

BANFIELD: I wouldn't want to be the sixth guy. I mean, that for sure.

(CROSSTALK)

TOOBIN: And although, if you are number six and five have been acquitted, you may not feel so bad.

BANFIELD: Right, right. All right it is really fascinating series of events. We're going to continue watch it. Thank you guys. I appreciate it. We'll tap into Jean Casarez as she get new information out of court room all day long as well.

While the Senate committee is discussing the United States plan to fight terror. Lot of people are still pretty fired out about Donald Trump's ideas to fight terrorist, for instance banning Muslims from ever entering the United States if they're not citizen.

But not everybody upset about it. And Donald Trump is threatening the GOP that he's going to take his supports with him and ditch the party, go independent. Talk about dynamics. That's next.

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(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Phyllis and Darren Sudman lost their son Simon at just three months old to sudden infant death syndrome.

DARREN SUDMAN, FOUNDER, SIMON'S FUND: Our pediatrician and corner said go get your hearts checked because babies just don't die. Phyllis was Diagnost with Long QT syndrome which an arrhythmia, it causes the heart to beat irregularly.

DR. SANJAY GUTPA, CNN CHIEF MEDICAL CORRESPONDENT: Although genetic Long QT was never confirmed in Simon. The mail clinic attributes about 10 to 15 percent of unexplained infant death to the syndrome. And also heart defect like it, like this causing death in later childhood as well.

PHYLLIS SUDMAN, FOUNDER, SIMON'S FUND: At that time, there were really no organization out there that were checking kids hearts. We don't want another family to go through what we've been through.

GUTPA: The Sudman's started Simon's Fund, which provides free heart screenings for kids.

D. SUDMAN: Over the past 10 years we've screened about 12,000 students. Approximately 1 percent discovered some kind of heart condition.

GUTPA: Kid like Drew Harrington (ph).

UNIDENTIFIED MALE: I went to Sudman's Fund screening and I found that I have structural issue with m heart.

UNIDENTIFIED FEMALE: The opportunity of Drew having a heart screening allowed us to prevent an incident that could have might change you.

GUTPA: Story like the Harrington's and over hundred orders are Simon's legacy.

UNIDENTIFIED FEMALE: If we save one life it's amazing. But to impact so many other life because of Simon who is three months old when he past away, it's pretty amazing.

GUPTA: Dr. Sanjay Gupta CNN reporting.

(END VIDEO CLIP)

BANFIELD: Donald Trump may not care about a tax from other politicians, but he doesn't let them go unanswered either. And here's come answer to Republican critics of his proposed ban on Muslims entering the U.S. comes in the form of a tweet/threat pointing out that most of his supporters almost 7/10 say they would still vote for him if he ditch the GOP and ran as an independent.

In a T.V. interview this morning, Trump said in fact that he consider an independent run, meaning that pledge that he signed back in September to run only as a Republican, that think may have been just a photo-op.

CNN Political Correspondent Sarah Murray joins me live now from Washington. Look on the trail, I don't know how much he focuses on this stuff, but is there a change in the dynamic lately. Have you seen something happen where it's all of the sudden, it is no longer talk, it could happen that he would walk out of the GOP?

SARAH MURRAY, CNN POLITICAL CORRESPONDENT: Well, I think, the interesting thing is this really put the Republican Party in a bind, and I think even though he signed that pledge. Even though there was that photo-op. The party officials know that Donald Trump can change his mind at any moment, and his supporters like you showed in that poll there, there sticky, the majority of his supporters in the "USA Today"/Suffolk University poll said they would stick with him if he was an independent.

That's a big problem for Republican Party officials. The last thing they want to see is a Republican running against Donald Trump, running against Hillary Clinton in a general election. And I think, you know, Donald Trump can be very thin-skinned, and so when you see what you have seen in the last couple of days, everyone from the House Speaker Paul Ryan to Chairman Reince Priebus to the heads of the Republican parties in Iowa, New Hampshire, South Carolina criticizing that proposal. I think that's really why you see him, you know, bringing this threat back to light again.

BANFIELD: Yeah, they criticizing, but not going so far to say they would not support him if he were the nominee. I wonder if this whole dance on the egg shell things is changing. Are they still walking on egg shell in the GOP or how are they handling -- what can they do better anyway?

MURRAY: Well, I think they are still walking on egg shells, because exactly like you said in the same press conference yesterday where Paul Ryan disavowed Donald Trump's proposal to ban Muslims from the U.S. said this is not what the party is about, or what our country is about.

He said he would still back Donald Trump, if Trump becomes the Republican nominee, and that's what we are hearing from across the board, as these people saying, look, I will back whoever the Republican nominee is. And I think that is the way Republicans right now are trying to walk this fine line between criticizing Donald Trump, but keeping him from going for the nuclear option.

BANFIELD: I just keep wondering about the Santa Elf Workshop that has all of the opposition research. I keep thinking that the GOP is cook it up, and cooking it up and getting it ready for the week before primaries that just my crazy theory.

Sarah Murray, you've been doing such a great job and you definitely are made teflon, my friend? Thank you, so much.

MURRAY: Thank you, Ashleigh.

BANFIELD: She has had to take it on the chin like everyone who covers Trump, myself including.

Thank you, Sarah. And by the way everybody coming up tonight Donald Trump in fact is going to be on CNN with Don Lemon. 10:00 Eastern, do not missed it. Because you just never know what can happened, like this crazy circus that this doesn't end.

Next Republican presidential debate right here on CNN, folks Tuesday 6:00 p.m. and 8:30 p.m. Eastern Time. Thanks so much for watching, everyone.

Jim Sciutto is going to sit in for Wolf who's on assignment. We'll see tomorrow.