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Legal View with Ashleigh Banfield

Bowe Bergdahl Speaks about His Experience; Latest from the William Porter Trial; Justice Scalia's Controversial Remarks. Aired 12:30-1p ET

Aired December 10, 2015 - 12:30   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: ... the whole thing you carried with them out in here and that is sweeten up the jury pool that's ultimately going to stand in judgment of him.

[12:30:06] And to that end, I want you to hear this piece that he talks about wanting to be a little like Jason Bourne. He lists off the whole thing he carried with him out into the Afghan desert, a wallet, camera, knives, notebook, newspaper clippings, water, compass, vacuum, packed chicken.

I'll let him take it from there, have a listen.

(BEGIN VIDEO CLIP)

BOWE BERGDAHL, SGT., FORMER PRISONER OF THE TALIBAN: I was trying to prove to myself. I was trying to prove to the world, to anybody who used to know me that I was capable of, you know, of being that person.

MARK BOHL, SCREENWRITER: Like a super soldier you mean?

BERGDAHL: Yeah, capable of being what I appeared to be. Like doing what I did was me saying I am, like, Jason Bourne.

BOHL: Right, a character in a book or whatever, a character.

BERGDAHL: Yeah, so I had this fantastic idea that I was going to prove to the world that, you know, I was the real thing, you know, I could be, you know, what -- I could be what it is that, you know, all those guys out there who go to the movies and watch those movies. They all want to be that. But I wanted to prove that I was that.

(END VIDEO CLIP)

BANFIELD: OK, Spider Marks, if he goes to the court-martial, that's yet to be determined, he will face a jury of soldier jurors, OK. Is this...

JAMES "SPIDER" MARKS, MAJ. GEN., U.S. ARMY (RET.): Yes, he will.

BANFIELD: ... accounting that you're hearing going to curry any favor or sympathy with soldier jurors because other soldiers were put in grave danger by his walking off that base.

MARKS: The short answer's no. If anything, it will exacerbate his -- what he thinks might be some favorable outcome, that he can tell this story that might get some degree of sympathy that is exactly not what's going to happen.

And I also can't believe that he even was granted permission to have this interview. I mean, at the end of the day, he's a soldier and the chain of command has to approve whether he can have a media interview. I find the whole thing kind of crazy town.

BANFIELD: I find it alarming and fascinating and just altogether completely remarkable.

MARKS: Truly fascinating, yes, ma'am.

BANFIELD: We are in a process right now. And this could be really dangerous for it.

Spider, I always love having you on. Thank you so much, General Marks, great to have you.

MARKS: Thanks Ashleigh.

BANFIELD: I also want to encourage our viewers after you've heard what Spider has to say, go and listen to the full podcast from serial online, serial. It is -- this is great work folks. They're award winning producers. And they've done some amazing work here.

I've got some new testimony for you in the trial of the Baltimore police officer who was charged in the death of Freddie Gray. Believe it or not, another police officer is in the courtroom. A Charlottesville chief is actually on the stand. What do you think the chief of another police department could lend to the defense of the man, the first of six charged in this man's death?

(COMMERCIAL BREAK)

[12:37:27] BANFIELD: It was a catastrophic injury. That's according to a neurosurgeon who is speaking on behalf of the first Baltimore police officer charged in the death of Freddie Gray.

Speaking on his behalf, speaking in his defense case, you'll know by now that William Porter testified in his own defense yesterday and explained why he didn't call a medic for Freddie Gray.

He is of course the first of six officers who are facing trial in that death. Gray died in April after breaking his neck while being transported in a police van. He was shackled, but he was not wearing a seatbelt.

CNN's Jean Casarez is outside the courthouse. And she's been covering this case.

So Jean, when you say that you've got an expert up on the stand saying this was a catastrophic injury and you're in the defense's case, there's got to be a really important reason why he would Say this was a catastrophic injury and you're trying to defend the officer. What is it? JEAN CASAREZ, CNN CORRESPONDENT: Because that the six stops of this van where Freddie Gray was inside, that's pivotal of this case. And the case is getting more and more focus as we keep hearing the testimony on where the injury took place. Was it between with stops two and four? That's what the prosecutor is saying. Why is that important? Because at stop four, when Freddie Gray came face-to-face with the defendant in this case, William Porter, and said, "Help, do you need a medic," Porter asked him, "Yes," that it should have been very aware to William Porter, the defendant, that medical attention was needed because he'd just broken his neck.

Well the defense is saying that injury didn't happen until five and six, between those stops right there. And their medical expert today said the reason why, once you break your neck, you can't move your head. You can't move anything with your lower extremities.

And when the defendant helped Freddie Gray up to the bench at stop number four, that shows that he had not had the injury yet because Freddie Gray used a bit of his strength, his own strength, to get up to the bench. Furthermore, he couldn't have held his head up and he couldn't have verbally responded to any question.

Now on cross examination right now, Timothy Longo, the chief of police of Charlottesville because that issue, once again, stop number four, on direct, he said that once Porter lifted him up into the seat, that it put another danger there, the gun was exposed. He didn't have time. He had to make an objective decision to not seatbelt him in.

On cross examination, saying, how much longer would it take to seatbelt somebody in because you've just put him on the bench?

BANFIELD: Well, it's fascinating stuff. It always comes down to those very important details.

[12:40:03] Jean Casarez, I'll let you get back into the courthouse, you're doing a great job covering every detail of the case and the details matter, thank you Jean.

After the death of Freddie Gray, the city of Baltimore saw its homicide rate, double over the next six months, it doubled.

You're going to hear from the standard family of Kendal Fenwick, a single father of three little babies. That man was shot dead outside of his own home. They're not just statistics folks.

(COMMERCIAL BREAK)

BANFIELD: I want to take you back to Baltimore because some statistics came into our office that really had us shaking our head.

Violent crime has surged since the protests following Freddie Gray's death. If you want the numbers, I'm going to give them to you. I want you to think about them for a second. 324 people have been killed this year so far. Per capita, that is the highest in the history of Baltimore.

[12:45:07] Behind each of these statistics is the story of one life taken away. And a family that's devastated.

Our Miguel Marquez talked to one Baltimore family that is just struggling to cope with this.

(BEGIN VIDEO CLIP)

MIGUEL MARQUEZ, CNN CORRESPONDENT: Kendal Fenwick, number 295. To his family, he was everything. What is it like for a father to have to bury your son?

KEVIN FENWICK, KENDAL FENWICK'S FATHER: It's very hard. It's a feeling where I would tell someone that didn't have children don't. Because I wouldn't want them to go through the pain that I'm going through.

MARQUEZ: Kendall Fenwick, an inspiring example of determination. A 24- year-old single father of three. A 5-year-old son, a 3-year-old daughter, and a 7-month-old boy. The 5-year-old drew a picture and wrote a note that brings some comfort to his grandfather.

FENWICK: I love you, Kendal daddy. Kendal Fenwick, wish you were here.

MARQUEZ: Kendal Fenwick had two jobs he loved, driving dump trucks. A few years ago, he brought a rundown home for $8,000 and was slowly fixing it up on his own. He loved to tinker, fixing anything broken. Kendal Fenwick was a force of life.

TAWANA FENWICK-BESSY, KENDAL FENWICK'S AUNT: He was a goofy silly kid who was at my house every day. I work a late shift so when I get off work, he'll be out there waiting for me sometime and say, Aunt all right? I say yeah. And I'm gone. I always felt safe when he did it.

MARQUEZ: Monday, November 9th, Fenwick was making dinner for his kids. He stepped outside. Moments later, gunshots. Fenwick ran from his house into the street, possibly trying to lure the gunmen away from his children. News of Fenwick's death, a breaking point.

KEVIN DAVIS, BALTIMORE POLICE COMMISSIONER: To flat-out execute a 24- year-old young man who is raising, by himself, three children, in this home, it's disgusting.

MARQUEZ: Baltimore Shock Trauma Center is the premier traumatic care facility here. Much of Baltimore's violence ends up at its doorstep.

UNIDENTIFIED MALE: Nonfatal shootings are up 80 percent this year.

MARQUEZ: 80 percent.

DR. THOMAS SCALEA, CHIEF PHYSICIAN ADAMS COWLEY SHOCK TRAUMA CTR: And the homicide rate is over the sort of last six months has doubled.

MARQUEZ: Thomas Scalea has treated traumatic injuries here for nearly 40 years. He's never seen a year like this.

SCALEA: And we see, again, these kids come in, 14, 15, 16-year-old kids, they're dead. Then I get to go tell their mama they're not coming home and then they, you know, and I go down and I see somebody and she says, you don't remember me but last year -- it's her second kid that's died. It's unfathomable.

MARQUEZ: Kendal Fenwick, born November 1st, 1991, died too soon, November 9th, 2015. One victim of violence in this city's horrible year.

(END VIDEO CLIP)

MARQUEZ: Now, as we mentioned, that was 295. As you said, we're up to 324 murders for this year. There's been an arrest in Mr. Fenwick's murder Devante Brim his 21-year-old. He was arrested. They believe the reason that Mr. Fenwick was targeted and shot is because he was building a fence across his property to keep the drug dealers from going through that area. And that's why he was shot and killed. This is a hard, hard city, Ashleigh.

BANFIELD: Trying to protect those three little babies who will now have Christmas without their father. Miguel, thank you for putting a face on the numbers. Because it can, you know, it can be so lost in the statistics. Appreciate it. Miguel Marquez, reporting live for us from Baltimore.

[12:49:02] Got news out of the Supreme Court for you. Justice Antonin Scalia, he often raises eyebrows, but he's really doing so after making some comments in the affirmative action case that was fought yesterday. What he said about African-American college students and who is calling him out for it is coming next.

(COMMERCIAL BREAK)

ANDERSON COOPER, CNN ANCHOR: The Wright Flyer aircraft appears on two commemorative state quarters. Which states? Time to meet the team.

DON LEMON, CNN ANCHOR: We're the crowd favorite.

KATE BOLDUAN, CNN ANCHOR: I was thinking of a motto for us. It's my life motto. Second place is first loser.

ROBIN MEADE: CNN ANCHOR: I'm a little bit country.

JOHN BERMAN: I'm a little bit rock and roll.

MEADE: I think we need a theme song.

BERMAN: I'm kind of partial to fun.

MEADE: I'm a brick house. I bet the others don't have a song.

BERMAN: No, they've known music in their life. They need Maria Von Trapp to bring music to their life.

UNIDENTIFIED MALE: Team personalities.

MORGAN SPURLOCK, CNN HOST: This is the dream team.

UNIDENTIFIED MALE: Hercules, Hercules.

SPURLOCK: Take that.

UNIDENTIFIED MALE: Harvard grads.

SPURLOCK: Yeah, you're ready for this.

UNIDENTIFIED MALE: If we win, I get to be K.B. at CNN.

UNIDENTIFIED MALE: There's a new K.B. in town.

UNIDENTIFIED FEMALE: Back out that's mine.

UNIDENTIFIED MALE: I get to be CNN's new number one black guy.

LEMON: Oh, my God.

UNIDENTIFIED MALE: You're hired for the looks and then we brought the brains with us.

SPURLOCK: Not as dumb as we look.

(END VIDEO CLIP)

[12:55:02] BANFIELD: The Senate Minority Leader is suggesting that a Supreme Court justice is racist. That's not something you often hear. Senator Harry Reid reacting to oral arguments made this week by Justice Antonin Scalia. Scalia is appearing to take the position that African-American college students don't fit well in the nation's top universities.

Again, appearing, or does he feel this way? Here's what he actually said. "There are those who content that it does not benefit African- Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a slower track school, where they do well."

One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel they're being pushed ahead in classes that are too fast for them. While that sinks in, let's get some analysis, shall we?

Joey Jackson is here. Paul Callan is here. Joey Jackson on its surface, I cannot believe I'm hearing those words from a Supreme Court justice. There are only nine of them, they are the top of the food chain in the country.

JOEY JACKSON, HLN LEGAL ANALYST: Yeah.

BANFIELD: Is there more to it that what we're seeing on the surface?

JACKSON: Well, there could be. And here what it is. I mean, certainly in the event that they come from him, it's disturbing. Obviously it's offensive.

BANFIELD: You mean the comments straight from his own... JACKSON: Precisely, in other word from his own thought process as opposed to him quoting what a school of thought is that is out there. There is a school of thought out there that would suggest exactly what the justice suggested, and that school thought certainly seems to be rebuked in all respects.

But the fact is, was this something that was emanating from what he believes or was he referencing a theory? And that theory is certainly counterbalanced by another theory that says that's hogwash.

BANFIELD: The opposite. And when you say that theory that he was actually quoting some briefs in his conversation and so it is possible that he was referring to other people's theories as suppose to his own...

JACKSON: In addition to an article by a Professor Sander who is noted for this mismatched theory that he was referencing. Yes.

BANFIELD: And we need to give him the benefit the doubt on this. Although Scalia sometimes doesn't offer a lot of that opportunity because he does say some pretty acerbic things.

Let me go on to what the Senate Minority Leader said. Harry Reid, well, you know, let me just -- you need to hear it from his own voice because it was pretty alarming. Have a listen.

(BEGIN VIDEO CLIP)

SEN. HARRY REID, (D) NEVADA: It's stunning, a man of this -- of his intellect. I've always acknowledged his intellect, but these ideas he pronounced yesterday are racist in application if not intent. I don't know about his intent. But it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench, the nation's highest court.

(END VIDEO CLIP)

BANFIELD: The Majority Leader saying some pretty tough stuff on the floor the senate.

Paul Callan, it's important to remember there's a big argument that's at stake right now, not just what Antonin Scalia said, but the case itself that has been hard fought over the better part of a decade, it's gone back and forth to the Supreme Court at least twice. The issue at hand, help me understand, what did the conservative justices have to say yesterday in the oral arguments as opposed to the liberal justices?

PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, Scalia, whose most famous quote may be is that, I'm an originalist but not a nut, sounded a little nutty yesterday in the way he expressed I think a doctrine that the court has been struggling with.

And this is the doctrine. It's that we want diversity in all parts of American society particularly college campuses but a lot of kids who come from minority communities where the schools aren't very good don't get the test scores that white students in rich suburbs get.

So we've got to find a way to get those kids into good colleges so we have a diverse college. But what's being discovered is according to Scalia and conservative vein of thought is that a lot of these kids who do get into these good schools don't have the skills to function there and they feel isolated and they don't do well.

Whereas if they were on a different track and went to schools that allowed them to develop their skill set before they get into Harvard, then you would have a better system. And that's what the debate is about. In the Fisher case, if like just, you know, he got in to school on a scholarship, Mr. Jackson, so -- but I wanted to just explain on the Fisher case.

The central thing is there's a white student in the Fisher case who says, you know, my grades should have qualified me to get into the University of Texas.

BANFIELD: Yeah.

CALLAN: But because they're now using two standards, one top 10 percent of your graduating class, which has gotten over 20 percent of the kids into Texas.

JACKSON: Right.

CALLAN: And now they're applying a different standard...

JACKSON: Just briefly, I know we're out of time.

BANFIELD: 10 seconds left, bang-up, yeah.

JACKSON: The fact is that the theory that Paul's saying has been rebuked. And it certainly there's another theory when, you know, you put students in a school, you challenge them, they become better, you know, they service their communities and everything else.

BANFIELD: Right.

[13:00:00] JACKSON: So it's important to note we're talking about theories and the theory that Scalia was referencing certainly is one that has been told to be not true.

BANFIELD: And it looks like those arguments are pointing towards affirmative action being wiped out but, you know what? We've been wrong before by listening to just the arguments.

Gentlemen, thank you so much. Appreciate it.

JACKSON: Thank you, Ashleigh.

BANFIELD: Paul and Joey. Thanks for watching for everyone.