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Legal View with Ashleigh Banfield

Republican Debate; William Porter Trial; FBI Director Shares Information on San Bernardino Shooters. Aired 12-12:30p ET

Aired December 16, 2015 - 12:00   ET

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


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[12:00:14] (BEGIN VIDEO CLIP)

JEB BUSH (R), PRESIDENTIAL CANDIDATE: Donald, you know, is great at - at the one-liners, but he's a chaos candidate.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Well, I think Jeb is a very nice person, but we need tough people.

GOV. CHRIS CHRISTIE (R), PRESIDENTIAL CANDIDATE: Yes, we would shoot down the planes of Russian pilots if, in fact, they were stupid enough to think that this president was the same feckless weakling that the president we have in the Oval Office is right now.

SEN. RAND PAUL (R), PRESIDENTIAL CANDIDATE: Well, I think if you're in favor of World War III, you have your candidate.

BEN CARSON (R), PRESIDENTIAL CANDIDATE: I don't do a lot of talking, I do a lot of doing.

SEN. TED CRUZ (R), PRESIDENTIAL CANDIDATE: ISIS face no more determined foe than I will be.

SEN. LINDSEY GRAHAM (R), PRESIDENTIAL CANDIDATE: I blame Obama for ISIL, not Bush. I miss George W. Bush.

SEN. MARCO RUBIO (R), PRESIDENTIAL CANDIDATE: And the president has left us unsafe. He spoke the other night to the American people. I wish he hadn't spoken at all.

CARLY FIORINA (R), PRESIDENTIAL CANDIDATE: The DHS says, no, we can't check their social media. For heavens sakes, every parent in America is checking social media.

HUGH HEWITT, CONSERVATIVE RADIO SHOW HOST: Are you ready to reassure Republicans tonight that you will run as a Republican?

TRUMP: I really am. I'll be honest, I really am.

(END VIDEO CLIP)

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. Great to have you with us today. Welcome to the show. I'm Ashleigh Banfield. This is LEGAL VIEW. From the Internet to immigration, the Constitution to carpet bombing, and metadata to military spending, if you didn't know before where the GOP candidates for president stand on all those issues and more, you more than certainly know now because the fifth and final Republican debate of 2015 was all about national security. And almost everyone came looking for a fight. Particularly, some might say, finally Jeb Bush.

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HEWITT: You've said that Mr. Trump is not qualified to be president because he's not qualified to deal with Vladimir Putin. Why are you better qualified to deal with Vladimir Putin than Mr. Trump?

BUSH: Because I - first of all, I - I know what I don't know. I know what I don't know. I would seek out, as I have, the best advice that exists. I won't get my information from the shows. I don't know if that's Saturday morning or Sunday morning. I don't know which one.

TRUMP: I think it's very sad that CNN leads Jeb Bush, Governor Bush, down a road by starting off virtually all of the questions, Mr. Trump this, Mr. - I think it's very sad.

BUSH: Look, the simple fact is, if you think this is tough and you're not being treated fairly -

TRUMP: This isn't tough. And these - I wish it - I wish it was always as easy as you, Jeb.

BUSH: Imagine what it's going to be like dealing with Putin or dealing with President Xi or dealing with the Islamic terrorism that exists.

TRUMP: Oh, yes.

BUSH: This is a tough business to run for president.

TRUMP: Oh, yes. Oh, no, you're a tough guy, Jeb. I -

BUSH: And it's - and we need to have a leader that is (INAUDIBLE).

TRUMP: Real tough.

BUSH: You're never going to be president of the United States by insulting your way to the presidency.

TRUMP: You're real tough, Jeb. Yes. Well, let's see, I'm at 42 and you're at three.

BUSH: Doesn't matter.

TRUMP: So, so far I'm doing better.

BUSH: Doesn't matter.

TRUMP: So far I'm doing better.

(END VIDEO CLIP)

BANFIELD: Ouch. Bush kept up the attacks, hours later, right here on CNN's "New Day."

(BEGIN VIDEO CLIP)

BUSH: Donald Trump's not going to be president of the United States by insulting every group on the planet. You know, insulting women POWs, war heroes, Hispanics, disabled, African-Americans. You can't insult your way to the presidency. And I think people have to stand up against that. Look, there - people are angry. They have lots of anxiety for good reason. But preying on that is not how you win. You have to give people a sense of, we can fix these big complex things, both in foreign policy and - and our domestic economy.

(END VIDEO CLIP)

BANFIELD: Now from the Las Vegas Strip, our CNN political commentator and former top aide and spokesman for Mitt Romney Kevin Madden, and Patti Solis Doyle, CNN political commentator and manager of Hillary Clinton's 2008 campaign for president.

Kevin, let me begin with you. Did Jeb do what he needed to do last night? Did he salvage his campaign?

KEVIN MADDEN, CNN POLITICAL COMMENTATOR: Well, look, I think that moment that he had with - he actually had several moments posting up against Donald Trump. His campaign feels very good about it. I think one of the big question is, is - was that a fight that he needed to have about three months ago and then needed to have every single day for the next three months in order to really do the best he could to consolidate that center right lane of this electorate right now that worries about a potential Trump candidacy. But it was - it was certainly, I think, the Jeb Bush people will tell you, it was certainly a moment of strength for Jeb Bush and it comes at the right time. Right when voters in places like Iowa and New Hampshire are beginning to formulate hard and fast opinions about these candidates as they go to the caucuses and as they go to the polls.

BANFIELD: Well, certainly he stood up to - to Donald Trump, which is unique because not that many people went on the attack against Donald Trump last night. And Trump, of course, Patti, has been big against immigration. That's been one of his main platforms. But yesterday and last night it was really Cruz and Rubio who were sparring over immigration. Let me play for you this key moment, and then I want to get your thoughts on the other side. Have a listen.

[12:05:05] (BEGIN VIDEO CLIP)

CRUZ: There was a time for choosing, as Reagan put it, where there was a battle over amnesty, and - and some chose, like Senator Rubio, to stand with Barack Obama and Chuck Schumer and support a massive amnesty plan.

RUBIO: As far as Ted's record, I'm always puzzled by his attack on this issue. Ted, you support legalizing people who are in this country illegally.

CRUZ: He was fighting to grant amnesty and not to secure the border. I was fighting to secure the border.

(END VIDEO CLIP)

BANFIELD: All right, Patti, Rubio eventually conceded that he does support the eventual legal status for undocumented immigrants. Cruz saying he does not. So who effectively won that moment because it got a little muddy?

PATTI SOLIS DOYLE, CNN POLITICAL COMMENTATOR: I think in a general election, they both lost that moment. You know, immigration is going to be a very, very top issue in the general election. Hispanic voters are going to be very, very important in a general election. And Marco Rubio's flip-flop on immigration is going to hurt him in a general election and Ted Cruz's stance on immigration is going to hurt him in a general election. So while they're fighting it out for the primary, they're sacrificing general election independent Hispanic voters.

BANFIELD: It's the battle versus the war, which so many people refer to.

Kevin, jump in on the notion, going into this debate, people had questioned Donald Trump's commitment to the conservative party, and they questioned it in a number of ways, but most specifically whether he would bolt the party and run as an independent. I want you to listen to this - this one particular question from Hugh Hewitt that put him on the spot. Listen to this.

(BEGIN VIDEO CLIP)

HEWITT: Mr. Trump, my listeners tell me again and again, they're worried that Hillary Clinton will win the White House because you run as an independent. Are you ready to reassure Republicans tonight that you will run as a Republican and abide by the decision of the Republicans?

TRUMP: I really am. I'll be honest, I really am. I mean people have been putting me to the test (ph). I really am.

I didn't know that question was going to be asked, but when they asked it, I did not hesitate. I decided to just say, yes, I'm a Republican and I'm going to - I'm going to be a Republican. I'm not going to be doing a third party.

(END VIDEO CLIP)

BANFIELD: All right, so I'm a little mixed up only in that I keep hearing mixed signals from Donald Trump on that very important pledge that everybody signed and then just last week Donald Trump called it conditional. Last night he said he's committed. It drew huge applause. But can he be believed?

MADDEN: Well that, you know, both of those comments came at the end and during the afterglow of what I think Donald Trump assumed was a very good performance on his part. And so it remains to be seen, though, whether or not he makes that - if he keeps to that pledge a week from now when he may be felling differently or he may be under attack from one of the other campaigns. But - but surely, given the - the anxiety that a lot of Republicans would have that there would be a potential third-party bid that could hurt an eventual Republican nominee, you know, I think the big winner in that answer was Reince Priebus. He has worked very hard and the RNC - RNC Chairman Reince Priebus and the rest of the committee have worked very hard to make sure there's some sort of order and discipline and commitment to support an eventual Republican nominee so that it - there will be a Republican going against a Democrat in November and that a Republican can win.

BANFIELD: Patti and Kevin, I want you both to answer this question, but, Patti, I'll get you to start, if you will. I heard some rumblings in amongst the candidates and their staffers and their supporters while I was out in Vegas that there were meetings going on, backroom meetings. I mean, look, you rarely get an opportunity with that many power brokers in one place as you get at a debate. And I wondered, how much conversing was going on behind the scenes about rhetoric and behavior and what they were going to do on the stage. And there were - there were rumors that there were meetings between Cruz and Trump, whether it was the candidates themselves or their supporters or workers, that was unclear. But it sounded pretty amazing to me. And given the fact that we didn't see either of them go after each other last night, it gave a little more credence to those rumors. Is that really what happens to these debates? Do they really get together and discuss in advance of going out fighting?

DOYLE: Look, the two big winners of last night's debate in my opinion was Donald Trump - were Donald Trump and Ted Cruz, basically because the dynamic of this race was not changed after this debate. Ted Cruz has the momentum, and he wasn't going to sacrifice that momentum by going after Trump and alienating those voters. Donald Trump is in the lead by a large margin and he wasn't going to sacrifice that lead by alienating Ted Cruz voters. He tried doing that just prior to the debate and Rush Limbaugh, you know, gave him a severe warning to stop, and Donald Trump did. So I think both of them wanted to keep their momentum going into the sprint in January.

BANFIELD: OK, that's the baked cake, but I'm looking for the recipe. Kevin, did you hear any of those rumblings? Do you know if that kind of thing happened? And would that surprise you if there were meetings between the Cruz and Trump camps out there at the Venetian or any of the surrounding hotels?

[12:10:14] MADDEN: There are too many black jack tables and too many slot machines out here for any of those type of meetings to, I think, offer distractions. I do think, look, the campaigns do talk to each other. That's not uncommon, particularly when you have a concentration of so many of the - of the key leaders within the Republican Party all in one spot for a debate like this, but, you know, I think these campaigns are all very focused on what they can do for their own campaign rather than doing any sort of maneuvering or deal brokering with any of the other campaigns right now. We may start to see more of those conversations, Ashleigh, as we come out of Iowa and New Hampshire and people start to trade endorsements like that, but right now the - all of these campaigns are focused on, what's the best way they can get their guy out front, or in the case -

BANFIELD: Yes.

MADDEN: Of the Republican Party, because we have Carly Fiorina, their guys and their - and their gals.

BANFIELD: Yes. And, I mean, this is one of the more fascinating aspects of actually walking amongst those folks when you put a baseball hat on and you just sort of put your ear out, you hear some pretty amazing things in between those slot machines.

Kevin Madden, Patti Solis Doyle, thank you so much and thank you for braving the cold day after day to work with us on this. By the way, folks, in case you missed it, you can watch the whole Republican debate in full CNN replay. It's going to happen on Friday night, 10:00 p.m., because that's where I know you want to be. You want to be watching that debate, Friday night, 10:00 p.m. It's great stuff. It's very entertaining and very informative, too.

Coming up next, if ISIS is trying to infiltrate the United States and kill us, what is the government doing to stop them? We just got some brand-new info straight from the head of the FBI, who also broke some news on an attack in San Bernardino and an attack in Chattanooga. You're going to find out what that is, next.

(COMMERCIAL BREAK)

[12:15:11] BANFIELD: Got some breaking news I want to bring to you out of Baltimore on the Freddie Gray trial. I'm sure if you've been following, there was a big surprise when the jury announced that they were deadlocked. That's frightening to hear, but a judge always has an option of an Allen Charge, it's called a Dynamite Charge as well, because the judge can say to the jury, go back to give it another go.

Well, shockingly today, that jury came out with another note right before lunchtime and we have since learned the contents of the note. Fear not, it was not a reiteration of the issue being deadlocked. Instead, this jury wants more information. And they asked the judge if they could have actual transcripts of what those witnesses said when they were on the stand. You would think that would be something a jury could get. And they cannot. The judge said no. The problem is, is that is not actual evidence. A jury can get evidence. A jury can't get descriptions of evidence. So the judge has told them no. That's difficult for a jury that's been told by a judge, go try again, but that's exactly what is happening in that jury room.

Whether they are still deadlocked or whether they are going around that table to do secondary and third and fourth and fifth rounds of voting to see where they stand, you and I don't know. Even the judge won't know that. It is entirely secretive, that process.

I want to take you out to Jean Casarez, who's standing by outside the courtroom in Baltimore. So, Jean, walk me through a little bit about the - look, we can't read tea leaves because you and I have absolutely no access, nor does anyone else, to that jury room or their deliberations, but we can certainly look at the things they've been asking for, the problems that they've connoted in notes to the judge, and then we can try and assess where they may be. I know it's a hard science to do, but if you could do your best to take me through the process since they went in to discuss over 14 hours ago.

JEAN CASAREZ, CNN CORRESPONDENT: Right. Well, this morning, they've, obviously, continued to try to reach that verdict. No question. And so, as you said, they just released a note saying they wanted transcripts of witness testimony. And many times, in many jurisdictions, you come into the courtroom, the jury does, and they are read witness testimony so they can hear it again. But this all started yesterday morning basically and they asked for a poster board, and notebooks and marker pens. So it just seemed like everything was going along very smoothly. And then, at one point, they wanted transcripts of the police dispatch calls and a transcript of William Porter, the defendant's videotaped statement. Well, they were denied that because transcripts are not evidence.

So then they asked for speakers. And so they hooked up the speakers, we believe, to be able to listen to some of those audio components. So, of course, the defendant in this case, his credibility is on the line because he gave that videotaped statement. He also testified in court. And then yesterday, midafternoon, the note came, we're deadlocked. We can't do this.

The judge then gave them that charge to go back in and keep trying. Well, when they came, Ashleigh, into the courtroom yesterday to say they were deadlocked, they were stone-faced, serious, William Porter was nervous, his mother was in the courtroom, the attorneys were visibly upset. But they listened to the judge deliberate it for two more hours yesterday, and this morning they've just been at it until this note right now. That's almost 14 hours of deliberation.

BANFIELD: Yes. Listen, I think if William Porter was nervous, I think it's fair to say that the mayor and other civic leaders are nervous as well. There's a lot on the line, Jean, with this - with this outcome.

Jean, stand by for a moment, if you will, because I want to bring in Joey Jackson and Paul Callan on this.

It is so deflating, guys, when you get a note saying we're deadlocked. It is not the end of the process. We have all been in many courtrooms where that Dynamite Charge, the Allen Charge, actually works. And maybe we're seeing some evidence of that right now, Paul, in that they didn't come back again and say, I'm sorry, judge, we tried, we slept on it, and we're still not meeting, you know, eye to eye. They're asking for more information. (INAUDIBLE).

PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, it's very interesting, they're right on schedule according to an ABA study of hung juries that I was looking at this morning.

BANFIELD: Really?

CALLAN: Believe it or not, the first note usually comes saying we're hung after approximately 13 to 14 hours of deliberation. Thirteen hours here. Juries tend to reach a verdict one way or the other three and a half to four hours after the Allen Charge is given. Now, of course, this is a high profile case. Those rules may not apply. But it kind of looks like we're right on schedule here.

BANFIELD: So I've seen it fail in an hour, and I've seen what Paul has said as well. I think it's really good, though. I mean, look, I am not a lawyer, but the number of times I've seen an Allen Charge where nothing follows, no other notes for additional information or clarification actually follows. So I think this is a good thing.

[12:19:58] JOEY JACKSON, HLN LEGAL ANALYST: You know, there's no science to juries and what they do, regardless of studies, we can conduct them, but there are vast differences amongst them between juries. But here's the bottom line. Look at the process and look at what you're asking people to do. You're asking people - and we could group jurors, as we always do, this many African-American, and this many white, and this many male and this many female. You have people from different walks of life who have to come into that courtroom and ultimately they have to be unanimous. That means that all have to conclude the same thing. And all have to be on the same page. And, Ashleigh, you see the composition there. So -

BANFIELD: It's pretty diverse.

JACKSON: It's a very diverse jury. And so when you're asking people from different walks of life, with their own individual complexities, their own perspectives, their own schools of thought, to come to grips -

BANFIELD: Yes.

JACKSON: With the same conclusion, I think that, you know what, it takes time, it takes effort, it takes energy and it takes trust (ph).

CALLAN: I just want to - I want to jump in on one thing too because I think a lot of our viewers may be say, well, why wouldn't the judge let them see a transcript of the evidence. I mean it seems logical that that would be done.

BANFIELD: On evidence.

CALLAN: Well, and there's good reason for it. For instance, with a transcript of something that you're listening to, a tape, a 911 tape, well, what if the transcription person got it wrong and there's a word that they're arguing about. The judge will allow them to come back into court and have that transcript - have that item played in court.

BANFIELD: Right.

CALLAN: And he will allow a testimony to be read back to them. But somebody's transcription, no, that would make it evidence.

BANFIELD: Well, by the way, I think the other issue is -

JACKSON: Yes.

BANFIELD: It's like the old "My Cousin Vinny" line, I shot the sheriff question. I shot the sheriff. I shot the sheriff? There's a whole lot of reasons why transcripts - I have to wrap it there only because Jean is going back in to check what's happening and we're going to try and check back in with Jean just as soon as we find out more.

I - I - and I know this is going to sound weird, Jean, but please check their lunch schedule, if they have lunch in the court - in the courtroom, in the jury room, and if they decide to leave and get out of there. I think it - it often makes a difference if they can just get a break from it all and get, you know, that refreshed mind. Again, it does sound weird, but the number of trials we have all covered together, strangely enough it can make the difference.

JACKSON: Absolutely.

CASAREZ: Yes.

BANFIELD: Jean, thank you. Joey, thank you. Paul, thank you.

Coming up next, breaking news in the San Bernardino terror attacks. We just go some brand-new information about how those terrorists were communicating together. Straight from the head of the FBI, you're going to hear the details on that right after this quick break.

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[12:26:11] BANFIELD: Breaking news to CNN. The man and woman who shot 14 people dead in San Bernardino, California, earlier this month, e- mailed each other, in fact, direct messaged one another on an Internet service. And before their deadly shooting spree, they pledged their commitment to jihad. That's right, they did it in advance. That straight from the director of the FBI, James Comey, who was speaking at a police headquarters meeting in New York City, just a short time ago. He says so far it does not look like Syed Farook and his wife, Tashfeen Malik, were part of any organized cell of terrorists, but they are still investigating. That could be a possibility.

And also Director Comey told reporters about long coming conclusions that he has made about another deadly shooting. That was when five U.S. servicemen were killed in Chattanooga, Tennessee, back in July.

Evan Perez, our justice correspondent, is with us on this breaking story. Also Jonathan Gilliam, former FBI agent, is on this story for us.

First to you, Evan, the details that are new out of San Bernardino. Can you just update me as to what the director is telling us?

EVAN PEREZ, CNN JUSTICE REPORTER: Well, Ashleigh, one of the things he was trying to do was to push back on this idea that there were signs that Tashfeen Malik in particular was radicalized before, publicly visible signs that she was radicalized before she came to the United States. What he's saying is that the communications that they have now found were actually private communications or communications with her then future husband Syed Farook. This is even before they met. This is back in late 2013 that they were communicating and talking about martyrdom and about jihad. And so one of the things that he wanted to clarify was that there was really no way for them to know about this because it's only now, after the attack, that the FBI has been able to get a warrant to be able to get access to that communication. And really that was the theme of what - what he was here to talk about here at the New York Police Department, because he talks a lot about the difficulty in knowing when these people go from just being radicalized to actually wanting to carry something out.

We have a little bit of sound from him describing the difficulty for the FBI investigators. Take a listen.

(BEGIN VIDEO CLIP)

JAMES COMEY, FBI DIRECTOR: If ISIL finds somebody online who is a live one, someone who might be willing to travel or kill in place, they will begin a Twitter direct messaging contact. If they really think this is someone who will kill on their behalf, they make another move. They move them from Twitter direct messaging, which we can get access to with lawful process, to a mobile messaging app that is end to end encrypted. And if that moment, the needle that we have been searching a nationwide haystack to find goes invisible to us.

(END VIDEO CLIP)

PEREZ: And, as you might imagine, Ashleigh, this is exactly the problem that the FBI is confronting, he says, in a number of cases, including the Garland, Texas, attack in which a couple of gunmen tried to attack a Prophet Muhammad drawing contest. He wouldn't get into it in regards to the - the attack in San Bernardino, but he also made some additional news here today, mentioning, if you recall, that July attack in Chattanooga, Tennessee. He said that the FBI has now concluded that Mohammad Abdulaziz (ph) was carrying out that attack, a terrorist attack. That's the first time he's able - he's been able to say that publicly, and that he was - that he was acting on behalf of a foreign terrorist organization. We're told by sources, Ashleigh, that that terrorist organization, that propaganda that he was acting on, was messages and inspiration really from Anwar al Awlaki, the former - the Yemeni cleric who was killed in a drone attack by the U.S. forces. This is really one reason why you saw in the debate last night so much focus on national security, on surveillance and the ability of the FBI to be able to get to communications, Ashleigh.

[12:30:12] BANFIELD: I'm glad you mentioned that, because specifically there is a fact check