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Legal View with Ashleigh Banfield

Marquez to Be Charged; San Bernardino Terrorists Used Encrypted Apps; Security at Disney Parks; Porter Mistrial. Aired 12-12:30p ET

Aired December 17, 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] RENE MARSH, CNN AVIATION CORRESPONDENT: And they've been taking several steps to hold that up and this is just one example of that.

John and Kate.

KATE BOLDUAN, CNN ANCHOR: Rene, thank you so much. Great to hear from you.

And thank you all so much for joining us "AT THIS HOUR."

JOHN BERMAN, CNN ANCHOR: LEGAL VIEW with Ashleigh Banfield starts right now.

ANNOUNCER: This is CNN breaking news.

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

Right now, the president of the United States is at the National Center for Counterterrorism, and in just a few moments, we're expecting him to make a statement about efforts to prevent terror attacks here in the United States over this holiday season. We're going to bring you this just as soon as the president speaks. He gives this briefing every year, but it is not often that he will come to you live from this venue to try to calm your fears as we head into this most important week for so many people celebrating the holidays.

First, though, some breaking news from southern California. The man who admitted to buying those rifles that were used to shoot dead 14 people in San Bernardino this month, well, now he's facing a handful of federal charges and they are coming down soon. They can't charge the people who actually did the killings because those two murderers are already dead. Farook Syed and Tashfeen Malik, but the person who used to be their neighbor, this man, and was certainly fairly close and friendly with Farook, such good friends, in fact, that investigators say the two of them actually planned a jihadist-style attack just a few years ago, though did not follow through with it. Enrique Marquez is likely to be hit with federal gun charges. We're waiting to hear exactly what this young man will be facing. A live news conference coming.

In the meantime, Evan Perez on the left here, our justice reporter, and Joey Jackson, our legal analyst, here on the right. I want to ask you first, Evan, I was assuming that this might be

material support charges, but you're thinking perhaps gun charges for this man?

EVAN PEREZ, CNN JUSTICE REPORTER: Not just yet. I don't think we expect that any material support charges will be coming. Not - and certainly not at this initial stage. We expect that the charges that we'll hear about today are going to be based mostly on the gun purchase. He bought these two AR-15-style rifles, Ashleigh, back in 2011, 2012, and he's told the FBI that he bought these firearms because Farook was trying to avoid getting extra attention. Farook had already bought three firearms. He already owned three firearms and he simply did not want to go through another background check. Which is a technical violation under California law, under federal law. You can't buy a firearm for someone if the purpose of that is to evade background checks. And so that's going to be the centerpiece of what he's charged with.

He's been talking to the FBI now for over a week, initially waiving his Miranda rights. And then later on he had a lawyer who helped work with the FBI. And I'm sure that part of that is to get some mitigation, some mitigating circumstances for what he is facing. As you know, he checked himself into a mental health facility shortly after the attacks, the San Bernardino attack, because he said he was very upset. But he's also maintained that he had nothing to do with the attack itself, did not know about it ahead of time.

But he's also told investigators a lot of things, including the fact that he and Farook apparently built IEDs, pipe bombs, as a hobby, and he said he had nothing to do with the IEDs that were found inside the home or which Farook tried to detonate on the day of the attack.

BANFIELD: And that they had this earlier plan a few years ago that they didn't go through with.

PEREZ: Right.

BANFIELD: Now, Joey, in the business, they call that singing like a canary.

JOEY JACKSON, HLN LEGAL ANALYST: Yes, they do.

BANFIELD: And it helps you immensely when you're facing a world of hurt from the Feds. However -

JACKSON: Right.

BANFIELD: A big however, right? I mean these -

JACKSON: A major however.

BANFIELD: Are extraordinary charges. There are 14 dead people.

JACKSON: Yes. And that's what the federal government is concerned about. Do you get substantial assistance for cooperating? And is it reduction in your sentence? Absolutely. But at this point, the federal government's focusing in on two things. Number one, with regard to the firearm, he apparently was a - what we call a straw purchaser. That is, he purchased the weapons not with the intent of having them himself, but for the intent of ultimately transferring them over. That's a big no, no. Looking at the form right here, and it says, you have to indicate on that form, are you the buyer? And it says, Ashleigh, if you misrepresent that, you face up to 10 years. So that's a misrepresentation. That's the first layer.

Now, obviously, as Evan mentioned, with the debriefing of him, they'll get other information. So, you mentioned, started out with the material support. Could it lead to that? Of course, in the event that -

BANFIELD: He knew.

JACKSON: In the event that he knew beforehand.

BANFIELD: And if he didn't know, does it matter?

JACKSON: Well, it could matter because, you know, look, he knew, when he was purchasing those guns, they weren't for him. In addition to that, we know of the plot, right, that happened around the same time to -

PEREZ: Around that same time.

BANFIELD: He knew he was supplying guns to someone who wanted to do bad at one time.

JACKSON: Exactly. And they apparently had a plot, which they aborted, based upon a separate arrest that the government made unrelated to this involving terrorism.

BANFIELD: They were scared.

JACKSON: So it comes down to your intentions. It comes down to state of mind. It comes down to what he knew and when he knew it. And make no mistake about it, in the event that he aided, he abetted, he insisted, he importuned, he will face the full weight of the federal government and they won't just be related to purchasing these weapons.

[12:05:12] BANFIELD: And all eyes are on this case. Let me remind you, 14 dead people. So many others injured.

JACKSON: Exactly.

BANFIELD: A terror attack of mass magnitude. And this seems to be the only person so far that can be held somewhat accountable.

Evan, Joey, thank you for that.

JACKSON: You're welcome.

BANFIELD: I also have other breaking news right now, and that comes from another terror investigation. This one from overseas. Officials in France are now convinced that this man, the Paris attack ringleader, got into Europe through Greece. And that he used a fake Syrian passport, possibly posing as an asylum seeker, a refugee. His name, Abdelhamid Abaaoud. He is now dead. He was killed by the French police in that raid just a few days after the bombings and shootings in Paris that killed 129 people. It was that dramatic raid where a suicide bomber blew himself up.

And also today, we're learning more about how those Paris terrorists managed to plan those attacks and communicate with each other and keep it all so incredibly quiet. Despite some of them being amongst the most wanted people in Europe, in fact. CNN Money tech correspondent Laurie Segall is watching that end of it. It's all about the encryption. They are now calling this at the center of this war against terror.

Laurie, tell me what they did.

LAURIE SEGALL, CNN MONEY TECH CORRESPONDENT: Yes, we're hearing for the first time that these apps were used. We heard before that they may have been used. Now officials are coming out and saying they really believe that they were used in planning this attack.

Two encryption apps we're hearing about. Telegram, which we've talked about before on your show, which offers end to end protection for customers. Also, WhatsApp, which is owned by FaceBook. You're looking at some information there on Telegram. You have public channels where you can live broadcast. There's group chats, Ashleigh, where folks can talk up to 200 people. And they also have self-destructing messages.

I had an terrorism analyst tell me this is the hot new app amongst ISIS. And we're hearing more and more about this. But we're also hearing more about encryption technology because this is a dual technology. It protects us, protects our bank accounts. It makes the Internet a safer place. But it also, of course, protects the bad guys. And it's becoming harder and harder for law enforcement to pay attention.

I actually had the opportunity to speak with the guy who's building all of the encryption technology for WhatsApp. His name is Moxie Marlinspike. And I asked him about how he's building this technology, is it making it more - is it making it difficult for law enforcement and more accessible for terrorists? Listen to what he said.

(BEGIN VIDEO CLIP)

MOXIE MARLINSPIKE, OPEN WHISPER SYSTEMS: What we're trying to do is make mass surveillance impossible. And, you know, terrorists or pedophiles or, you know, whoever the bad people are, they already have access to encryption. Right now, we're the only people that aren't using inception technology. You know, people who are already engaged in high-risk criminal behavior are already using it. And so what we're trying to do is to develop technology that is really simple to use and accessible to just everyday normal people.

(END VIDEO CLIP)

SEGALL: And so what we have now is the government saying, you know, maybe encryption's not 100 percent bad, but we need backdoor access. We need the ability to access these communications. Go to some of the best and brightest in Silicon Valley, talk to Moxie, who's known for his encryption technology. And he says - I believe he said to me, Ashleigh, if they can't protect their data, they're getting hacked all the time, how do we expect them to protect ours? If we build a back door access for the good guys, the bad guys are going to access it too. So we're going to hear more and more on that debate, especially in light of today's news, Ashleigh.

BANFIELD: Well, and also, Laurie, in light of what Carly Fiorina said on a stage in front of millions and millions of Americans who were watching the debate on Tuesday night, that all we need to do is ask those in Silicon Valley to work with us on these encryption issues, the end to end encryption issues and the manufacturing of devices with the encryption issues. It's not about asking. I mean, the federal government's been asking. There have been D.A.s across the country who have been asking, to help them help us to stay safe. So if it's not about asking, is it only going to come through legislation and is that even possible by now?

SEGALL: That could be the case because you talk to a lot of these companies, they say, look, if we allow access, who's going to be the authority on this, right? It's the privacy versus protection. Are we going to see what happened with - what happened with Snowden years ago where he came out and - and people didn't realize how much oversight the NSA had. There's a - you know, a lot of these encryption apps, I'll tell you this, Ashleigh, they were built and they were made more accessible to the masses after the Snowden leaks because what happened in Silicon Valley was people said, you know what, we want this type of privacy accessible to the masses. We want everyone to be able to protect themselves because maybe we don't 100 percent trust the government to do so. So there's that feeling in Silicon Valley and you've got to bridge the gap a little bit. But it is very difficult to get the government and Silicon Valley on the same page because they, obviously, you know, they're looking at this from very, very different angles, Ashleigh.

[12:10:05] BANFIELD: They have similar interests and they have competing interests without question.

SEGALL: Absolutely.

BANFIELD: Laurie Segall, thank you for keeping an eye on that for us.

Coming up, President Obama, live and talking counterterrorism strategy and your safety over the holidays. His remarks are going to come at you straight ahead. We're watching for him to take the mic. We'll take you there just as soon as he does.

And also ahead, changes in security at Disney and other theme parks. Are you headed there any time soon? You're going to see some really big changes at the gate and inside and there will be things you do not see there as well. Details, next.

(COMMERCIAL BREAK) BANFIELD: Got some live pictures for you now from the National Counterterrorism Center in McLean, Virginia. In just a couple of minutes, we are expecting the president to come to those microphones live to make a statement to the nation about the government efforts to prevent terror attacks in the United States. Every year the president gets a holiday briefing on the terrorist situation, on the security situation in the country, and this is the direct result of what that meeting yields. It is intended, by all accounts, to calm the nation's fears going into the holiday season.

We saw something similar to this right before the Thanksgiving holiday. The president also addressed the nation about security across the nation for Thanksgiving, effectively asking citizens of the United States and those here to just go about your business and enjoy the holiday. Be interesting to see what the high-level people who are expected to attend this meeting, if that's exactly what is yielded from this meeting as well. We'll go live to that just as soon as it begins.

In the meantime, and maybe this is time, maybe it's not, but it was certainly interesting when it crossed our desk, security at all Disney-owned theme parks goes noticeably up from today on forward. If you are headed there, you are now going to see something that Disney has not done before, metal detectors at the entrances. And there are some new rules if you're visiting. No costumes if you are over the age of 14. And there are rules for people over and under the age of 14, no toy guns for sale in the Disney gift shops and you cannot bring one with you. All of this starting today.

[12:15:32] Alina Machado is live for us in Miami.

Did we expect something of this magnitude to be announced because these are some pretty significant changes in their security policy?

ALINA MACHADO, CNN CORRESPONDENT: Yes, Ashleigh, they're definitely significant. And we really don't know of anything specific being behind these changes. Though it's worth noting that we did learn that just last week, according to authorities in Orange County, Florida, a man was arrested for carrying a gun in his waistband. The gun was covered by his shirt. And he did not have the proper permits to carry this concealed weapon. Again, there is no indication at this point if that arrest played a role in these new security measures.

A spokesperson for Disney released a statement saying, quote, "we continually review our comprehensive approach to security and are implementing additional security measures as appropriate." Now, most notably, as you mentioned, Disney parks, not only here in Florida but also in California, have added metal detectors. We're told some people will be randomly selected for secondary screening using these metal detectors. They've also added what they're calling, quote, "visible and nonvisible" security measures at the parks. This includes the use of specially trained dogs to patrol key areas.

Some of the other changes people will see, you will no longer be allowed to carry any toy guns into the parks and you won't be able to buy any toy guns at the parks. Also, anyone 14 and older will not be allowed to wear costumes. The thinking there is they want to make sure they can properly screen people while they're in the parks, Ashleigh.

BANFIELD: I was just reading a little bit on the toy guns because they're talking about squirt guns, you know, toy blasters, et cetera. And the mention that they had about the reason for it was to ensure that one of these toy guns doesn't cause a distraction or confusion for the cast members we all see in those parades and walking about the park - they take pictures with all the park goers - and then also for the security personnel in the parks. Obviously, they are very nervous about what's happened recently and the fact that this could spark - the fear and the nervousness could spark someone in security, or among the cast, to do something that might cause mayhem. I mean, honestly, if someone in the cast or if one of the uniformed agents thinks that that gun might be real, you can imagine what that would do in a park full of people over Christmas.

MACHADO: Yes, they want to make sure that they keep everyone safe, not just the people who are going to the parks, but also the people who work there. And it's worth mentioning, Ashleigh, that it's not just Disney. We know that Universal Studios has started to test the use of metal detectors at their theme parks and Sea World is enhancing security measures for the busy holiday season. A spokesperson for Sea World says there will be an increased security presence both inside and outside those parks and people can also expect thorough bag checks and also the use of wand metal detectors as part of the security process.

Ashleigh.

BANFIELD: Interesting, they also make note that there's a lot of stuff we still don't see there, the nonvisible security measures, including uniformed law enforcement that may be somewhere behind something. Also the specially trained dogs that are patrolling the key areas. So hopefully that will give some measure of, you know, safeness to those who are planning a visit with their children or their families.

Alina Machado, thank you for that. Appreciate it.

Any moment now, the president will be addressing the nation on this very topic, your safety, your security. Should you be nervous? Where do we stand? What does the intel tell us? How much can they really share with us anyway? We're going to bring that to you live. We're going to take a quick break, fit that in, and come back to McLean, Virginia, in a moment.

(COMMERCIAL BREAK)

[12:22:22] BANFIELD: Got live pictures up and we are waiting for that microphone to go live at the National Counterterrorism Center in McLean, Virginia. The president is probably still in a briefing room. And if you want to talk about a VIP room full of power brokers, the list of names I have in front of me are the top of the top. Everyone involved in national security at the highest levels is involved in this meeting right now with the president. This is a - sort of a holiday briefing on terror threats to this country and the president has decided to go live just after the meeting wraps up to brief us, the nation, on what we can expect, what the country is doing for you and your safety and whether there should be any concerns.

We saw the president do this going into the Thanksgiving holiday weekend, calming the nation about fears going into the holiday weekend post-terror attacks. We've had San Bernardino and clearly terror has been on the minds of many as we go into this very important holiday. So we - we don't want to miss a moment of the president. As soon as he begins speaking, we're going to get you in there live as well.

There's also a lot of other news that's breaking too, because at any moment we're going to find out if or when a Baltimore police officer named William Porter is going to go back into a courtroom and stand trial for a second time in the death of Freddie Gray, because yesterday a jury announced it was absolutely deadlocked. It could not come up with a verdict, guilty or not guilty, on any of the four charges that he was facing. They were involuntary manslaughter, reckless endangerment, second degree assault and misconduct in office. And they were split on all of those charges. So Officer Porter could be charged again on one of them, on two, three or all of them. But at this point, it's really up to the meetings. And we're waiting to find out if he indeed will be charged, what those meetings are yielding when the prosecutors gather, when they can actually fit all of this in given the fact there are five other trials that are still on tap and scheduled.

It is not an easy feat, folks. Jean Casarez knows better than any as an attorney and as our correspondent outside the courthouse in Baltimore.

So, Jean, a very important meeting, as I understand it, with the judge. Prosecutors and defense council meeting in chambers to try to figure out probably the timing of all of this. I'm not sure, chicken or the egg issue, what comes first, whether they decide to retry him or whether they find out if they even have time to retry him. But basically update me on how those meetings are going or whether they've said anything.

JEAN CASAREZ, CNN CORRESPONDENT: It's quite a puzzle. There are so many moving parts here. Here's what we just learned, Ashleigh. There have not been a new trial date set for William Porter at this time, not. The public information officer tells us as soon as there is anything, she will let us know, let everyone know through public record. She also says there may be more scheduling conferences later in the week. Not explaining what that means. Remember, as you said, there are five other defendants here. Their trial dates are already set.

[12:25:13] But we do know, it was about 9:30 this morning that in the courthouse right behind me, both sides, prosecutors and the defense lawyers for William Porter, got together outside of the judge's chamber and Gary Proctor, the defense attorney for William Porter, said, just a (INAUDIBLE) to the clerk, well, we all came to have a group picture this morning. Then they went in. And for about 30 minutes, they were with the judge. They came out, they didn't say anything, and they walked down the hallway and they all left.

So we don't have any information at this point, but I'm sure, as you said, so many moving parts. And, of course, the defense cannot decide whether this case will be retried or not. That is the choice of the prosecutor. But they can certainly make some objections to change of venue, having it be right here with a jury in Baltimore, or even a continuance so that it's not trialed so close to when it publicly was shown that many people wanted to convict this man.

BANFIELD: The hundreds of trials that you've covered and the hundreds of courtrooms you've been in, there's never a perfect science to whether jurors who are deadlocked ultimately end up talking to counsel after the process is over. Sometimes they'll talk to prosecutors and defense attorneys about what happened and the dynamic of the jury room, who was laid up, who wasn't, what they thought about the trial process. And it is extraordinarily helpful to those lawyers and those prosecutors as to whether they go ahead and choose another trial or whether they go ahead and ask for a venue change. Do we know anything about these jurors and what they agreed to do or disagreed to do after the process wrapped up?

CASAREZ: First of all, we know that they are anonymous. We know that their names are not being released. And the judge did not say to them anything in open court about do not speak to the media. But they are anonymous because that was the decision right there, which breeds into possibly not talking. But as far as Baltimore, attorneys can talk with the jurors. We do know that. And they can also find out how many were for and how many were against conviction. But, once again, there's a gag order, so that doesn't mean that we'll know any of that information.

BANFIELD: And in the meantime, the other trials are scheduled. I actually can't remember if they're all - all scheduled or just a few of them at this point. I know at least two or three of them are scheduled.

CASAREZ: They're all scheduled, Ashleigh.

BANFIELD: They're all got a date on the calendar.

CASAREZ: Every single one of them.

BANFIELD: So, obviously, Jean, as a lawyer yourself -

CASAREZ: Every single one of them.

BANFIELD: You know that those other attorneys involved in every one of these trials are watching every single detail about what's happening with Porter's case because it affects theirs and it affects the jury pool, presumably who will be, you know, responsible for judging their clients.

CASAREZ: Exactly. And they sat in the courtroom, Ashleigh. They were sitting in the front row through much of the testimony, the attorneys for the other defendants. But now Oscar Goodson (ph), he was the wagon driver, the transport van driver who had the custody and control over the transportee Freddie Gray. The prosecutor may have to change the entire theory on this case because that theory was based on William Porter talking to Freddie Gray and Freddie Gray saying, "yes," when Porter asked him, do you need a medic, and William Porter helping him up to the bench because he said "help." And at this point, William Porter still has his Fifth Amendment right against not incriminating himself. So -

BANFIELD: Sure.

CASAREZ: There is no way that he would be a witness in the trial of Caesar Goodson (ph), the driver of the van. And that, we believe, was the prosecutor's plan.

BANFIELD: Yes. Well, we do - we do know his transcripts are certainly fair game and they can impeach any witness who says anything with transcripts from prior testimony.

CASAREZ: That's right.

BANFIELD: Wow, Jean, I do and I don't envy you. This is very, very complicated and you have a lot on your plate to try to sort through today.

CASAREZ: Yes.

BANFIELD: Jump back in live any moment when you hear or if you hear what they talked about in that meeting. Oh, to be a fly on the wall. Jean Casarez, thank you.

CASAREZ: We will. Thanks.

BANFIELD: And at any moment I'm still watching that live camera for you. You are not missing anything because, look, President Obama and his team have not come out to address the nation yet, but they have planned to do so in this hour. It's a moving target, folks, but basically this is your security update for the holiday season. As I mentioned, CNN is on it. We're going to fit in a quick break and come right back into this room to see if they've gone live. You'll not miss a moment of it.

(COMMERCIAL BREAK)