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Legal View with Ashleigh Banfield

Cruz Citizenship Question Examined; Steven Avery Case and Documentary Explored; Latest in Sandra Bland Case; Gun Issues Discussed. Aired 12:30-1p ET

Aired January 07, 2016 - 12:30   ET

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

[12:30:00] DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Well, he started to try. Much to his dismay, he tried to make a joke about it, you know, with his tweet about jumping a shark and Fonzie way back in Happy Days. But that has not worked. It's not good enough because Donald Trump is not letting up on it. And by the way, it's not just Donald Trump now, it is his old friendly foe John McCain, his senate colleague who had the same questions raised about him when he was in this State of Iowa running for the Republican nomination and ultimately for president, because he was born in Panama although it was a military state.

So, the answer to your question is he is going to use what he actually has at his disposal which is a legal mind and his ability to explain the legal position that he has especially when it comes to this issue.

Listen to our conversation on his bus.

(BEGIN VIDEO CLIP)

BASH: Speaking of the constitution, you may have heard that Donald Trump is bringing up the fact that you were born in Canada and saying that if you're the Republican nominee, it could be held up in the court for two years.

You're a constitutional scholar. You've argued before the Supreme Court. Why do you think on a legal basis he's wrong?

SEN. TED CRUZ, (R) PRESIDENTIAL CANDIDATE: Oh look, the legal issue is straightforward. The son of a U.S. Citizen born abroad is a natural born citizen.

BASH: But it's never been tested. You know full well because you've done it on other issues.

CRUZ: Listen, the constitution and laws of the United States are straightforward. The very first Congress defined the child of a U.S. Citizen born abroad as a natural born citizen. And by the way, many of those members of the first Congress were framers at the constitutional convention.

At the end of the day, this is a nonissue but, you know, my response as you and I were talking about just a minute ago, I tweeted a link to a video of Fonzie jumping a shark. You know, I'm not going to engage in this. And the reason is simple, there are far too many serious issues facing this country. Last night, North Korea claims to have tested a hydrogen bomb. What the American people are looking for is who's prepared to be commander in chief, who has the seriousness, who has the judgment, who has the knowledge, who has the clarity of vision, the strength and resolve...

BASH: But button this up though just on the issue of the passport.

CRUZ: What passport?

BASH: Donald Trump is suggesting, saying, that you had a Canadian passport.

CRUZ: It's not true.

BASH: It's false? You never had a Canadian passport...

CRUZ: No, of course not.

BASH: ... in you're entire life?

CRUZ: Of course not.

BASH: And you're sure, you asked your mother, you asked your dad, you never had one?

CRUZ: Yes, I'm sure.

(END VIDEO CLIP)

BASH: Now, Ashleigh, he and I spoke before Donald Trump gave what he called a free legal advice to Ted Cruz when he was talking to Wolf Blitzer yesterday so, it'd be interesting to see how he responds to what you were talking about just a little while ago that Donald Trump says that he should give what is called a declaratory judgment or ask for one in federal courts.

I'm guessing since Ted Cruz went to Harvard Law, clerk to the Supreme Court, the Solicitor General of Texas, he might have a tongue in cheek answer to legal advice from Donald Trump.

ASHLEIGH BANFIELD, CNN HOST: It's like Donald Trump has a law degree and he's litigated. You just need to raise that little bit of doubt, you know, and then get people second guessing. But in this case, you're right, he's right, there's absolutely no question effectively about his citizenship.

Dana Bash, thank you, stay warm up there. You look -- hey stay warm, eh.

BASH: Thanks. It's eh, there you go, there's your Canada...

BANFIELD: It is for you. It's just for you. It's long gone now.

All right, so we have been talking a lot about this Netflix program. The viewers aren't the only ones who've been talking about the blockbuster series "Making a Murderer." Now, the sheriff at the department that's at the center of this controversy murder case is weighing in and he is no fan of this film. Find out what he's saying about it now.

(COMMERCIAL BREAK)

[12:37:13] BANFIELD: Just about everyone is talking about that Netflix documentary "Making a Murderer" including the sheriff's office that was involved in the cases of Steven Avery. I say cases because there are more than just one.

Avery was exonerated after being wrongfully imprisoned for 18 years. And he sued those who put him away in fact for tens of millions of dollars. Some time after that, he was accused of a murder, murdering someone in Teresa Halbach. He was brought right back into a courtroom, round two.

He maintains that he was framed by the sheriff's department that was associated with that first legal debacle, part of the department of course being sued.

This is something the sheriff's office says simply is not true. In fact, that office is claiming that the creator, the creators of the series left out a lot of information. And our CNN's Laurie Segall went after that and has this report.

(BEGIN VIDEOTAPE)

(BEGIN AUDIO CLIP)

UNIDENTIFIED FEMALE: Everybody's listening, what you're going to say today?

UNIDENTIFIED MALE: I'm innocent.

(END AUDIO CLIP)

LAURIE SEGALL, CNN CORRESPONDENT: "Making a Murderer" tells the story of Steven Avery, a man convicted of a gruesome murder. The Netflix documentary makes the case that in 2005, police in Manitowoc County, Wisconsin may have planted evidence to ensure a guilty verdict. The filmmakers say they were just documenting the case.

(BEGIN VIDEO CLIP)

LAURA RICCIARDI, CREATOR "MAKING A MURDERER": We did not have a horse in this race. It was of no consequence to us whether Steven Avery was going to be found guilty or not guilty.

(END VIDEO CLIP)

SEGALL: But the county's current sheriff, Robert Hermann tells us the series doesn't paint the full picture.

(BEGIN VIDEO CLIP)

ROBERT HERMANN, MANITOWOC COUNTY SHERIFF: I don't believe that this is a documentary because it leaves out a lot of information.

(END VIDEO CLIP)

SEGALL: He points us some key pieces of evidence not mentioned. For example, details about the victim's car.

(BEGIN VIDEO CLIP)

HERMANN: That vehicle had DNA on it from Steven Avery. And the DNA, a major piece that was found by Calumet County sheriff was located under the hood, on the hood latch. And it wasn't blood DNA. It wasn't blood. It was perspiration. The leg irons and shackles or handcuffs that were found at the residence, I think that's a key piece.

(END VIDEO CLIP)

SEGALL: Evidence the filmmakers say was not crucial.

(BEGIN VIDEO CLIP)

RICCIARDI: There was no direct evidence of Steven Avery's guilt in the Halbach case so this is circumstantial evidence. In our opinion, it was less significant evidence than the evidence we actually presented.

(END VIDEO CLIP)

SEGALL: So, what about all those smoking guns?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: You're aware now that the first time that Toyota was reported found was two days later on November 5.

(END VIDEO CLIP)

SEGALL: A key scene implies one of the officers may have seen the victim's car days before it was discovered on Avery's property, implying a setup.

(BEGIN VIDEO CLIP)

[12:40:02] HERMANN: He did not have the vehicle in front of him. He had a plate number that was given to him by the Calumet County Sheriff's Office. And at that point, he took the information and ran it in to make sure that it came back missing. That's a common practice...

SEGALL: Even though he said the name of the car but certainly appeared as though he had more knowledge of it.

HERMANN: From the information he received from Calumet County, that's the only knowledge he had.

(END VIDEO CLIP) SEGALL: And then, there was the victim's key that was found at Avery's trailer, but only after it was searched multiple times.

(BEGIN VIDEO CLIP)

HERMANN: He moved a bookcase and kind of handled it roughly and that's when I believe the key fell out. Can, you know, things get overlooked? Yes, they can. And in this case, they did. It's not because it was planted there.

(END VIDEO CLIP)

SEGALL: As far as the outrage around the country, the sheriff stands by the investigation.

(BEGIN VIDEO CLIP)

HERMANN: Quite frankly, I feel we did nothing wrong. We had a lot of people involved. And my deputies played some important roles and found some key evidence and I'm not ashamed of that.

SEGALL: Do you believe that Steven Avery is innocent?

HERMANN: I believe he -- that justice was served and I believe he is guilty.

(END VIDEO CLIP)

SEGALL: Laurie Segall, CNNMoney, New York.

(END VIDEOTAPE)

BANFIELD: I want to bring back CNN's legal analysts Danny Cevallos and Joey Jackson to discuss this case and this documentary.

I know neither of you has been getting a lot of sleep lately because it's 10 episodes and everybody who's watched it has reported bingeing this, they cannot look away. It is really remarkable stuff.

That said, I want to ask about the pragmatics of relief. So Danny, I'm going to start with you. If it's ever provable that either a prosecutor or a cop working in the field or working in the office did anything to manipulate or plant or arrange evidence, what happens to those people?

DANNY CEVALLOS, CNN LEGAL ANALYST: As a general rule, finding new evidence after the prosecution is over and after a person is convicted is not enough alone to warrant a new trial. Even prosecutorial misconduct, if it doesn't have any material effect on the outcome or a court determines that it doesn't affect the outcome, that alone may not be enough to order a new trial.

But as a general proposition, if you find some intentional misconduct on behalf of the police and that leads to some evidence that could have and probably did affect the outcome, the jury's deliberations, then that's the kind of after discovered evidence that may warrant a new trial. So long as it is evidence that was truly discovered after the fact and was not -- the reason it wasn't discovered isn't attributable to some negligence by the defendant or his attorney. So, it's a very difficult standard to meet. Even in the case of possible potential prosecutorial or police misconduct.

BANFIELD: OK. So, those last two things you just said, prosecutorial or police misconduct, you just explained to me what could happen in the case of Steven Avery.

Joey, I want you to explain to me what could happen to those operators, it's a big if, don't forget. This has not proven that anything happened, this is a theory, but if something was planted or manipulated by cops or prosecutors, what happens to them?

JOEY JACKSON, CNN LEGAL ANALYST: Well, here's the story. The reality is, Ashleigh, is that we have to have confidence in our law enforcement and in the event that we don't, you know what, it leads to bigger and greater consequences.

The direct answer to your question is what you're talking about is criminal and therefore, anyone who manipulates evidence, anyone who plants evidence and we're just, you know, we don't know that that occurred, but in the event, you're saying, that it's found to have occurred, it's a crime. And as a result of that crime, there are prosecutions.

Now, let's get to the practical point of a potential prosecution. You remember what happened with Steven Avery when he was accused of the sexual assault and the attempted murder initially. There was an investigation that was brought about by the state attorney general and it cleared everybody of any wrongdoing.

And so the issue is going to be if you're going to get at the root of what happened here, were there people involved in law enforcement who did things that were untoward, inappropriate, unlawful, illegal, whatever they did, who is going to be the entity who's going to uncover that?

And if you can get some outside independent source to go in and really evaluate what occurred and you could find that there're problems then I think the dominos and the chips need to fall. And those chips need to fall. Look, in order for the law to work, Ashleigh, it needs to be equally applied to everyone whether you're a civilian, whether you're a law enforcement officer or whether you're anyone else.

And so we'll see moving forward whether or not that happens.

BANFIELD: Joey, five-second answer on this one. But if it could ever be proven that a cop or a prosecutor did that, are we talking about prison for days, weeks, months, years, decades?

JACKSON: Years, years because as what I was talking about, we have to rely upon law enforcement. And when we don't, the system collapses.

BANFIELD: OK.

JACKSON: And so it needs to be treated with great deterrent so that it doesn't happen moving forward.

BANFIELD: There are millions of eyeballs, guys, that have been watching this documentary. And if their only hope for any kind of action in either of the cases of those who are imprisoned is new evidence, there are millions of investigators who are out there looking for it right now. Danny and Joey, thank you.

[12:45:13] CEVALLOS: Thank you, Ashleigh.

BANFIELD: Appreciate it.

Coming up next, still in the courtroom folks, can a judge force someone, an American, to be both a defendant and a witness in a high- profile homicide case all at the same time? Because it sure looks like that might be what's happening here for the Baltimore police officer, the first one to be tried in the death of Freddie Gray. William Porter is fighting back against this. Find out what's happening in this very complicated story.

(COMMERCIAL BREAK)

BANFIELD: The family of Sandra Bland is not fully satisfied with the grand jury's decision to indict the Texas state trooper who arrested Bland last July. She died in police custody. Police said it was suicide three days after she was arrested following just a traffic stop.

Prosecutors announced yesterday that an indictment on a perjury charge for the trooper would actually result and said that he would be fired. But Bland's family today in Chicago says not tough enough.

(BEGIN VIDEO CLIP)

GENEVA REED-VEAL, SANDRA BLAND'S MOTHER: Where is the true indictment? Where is the indictment for the assault, the battery, the false arrest? Where is that? Okay.

So while on the one hand I got the news, got the message about the initial perjury indictment, it appears that there should have been much more than what he was indicted for, okay.

So, a Class A misdemeanor for me, I can't be expected to be excited about that, because I feel that there's so much more that he should have been indicted on, that's number one.

[12:50:06] And then going to the next point, who in the heck is going to do the prosecuting? Who's going to prosecute this guy? Is it the same group of folks who selective the grand jury, okay? Is it the same group of folks who is telling me now you can give me a piece of the info and in some sessions, you can't give me the other piece of it?

I don't trust the process, okay? So, you've got one person who is the same person that said that my daughter was a not model citizen. And I'm supposed to trust that he can't be the one prosecuting the case.

(END VIDEO CLIP)

BANFIELD: Sandra Bland's family is insisting that she never should have been arrested in the first place and that she would never have killed herself.

Baltimore police officer William Porter is going to have to testify against two of his fellow officers who are facing charges in Freddie Gray's death. The prosecutors are giving him limited immunity. And basically that means that they cannot use his testimony against him when his own case goes back to trial for the second time in June.

But Porter didn't want that. He didn't want to testify, period. His attorneys have just filed a motion in the Maryland Court of Special Appeals to stop that judge's decision. And they don't have long to get that settled because jury selection in the next officer's case, officer Caesar Goodson, well that trial gets underway on Monday.

Now, Caesar Goodson is the one who was the driver of the van that was carrying Freddie Gray and he is also the one who's facing the most serious of the charges. But stay tuned because the action is still flying about in the court system there.

So, in a little more than seven hours, President Obama is going to hold town hall meeting on guns in America and it's going to be hosted by our own, Anderson Cooper, and here's what's interesting, it's going to be live very significant.

So what was it that brought him to tears this week? The Sandy Hook shooting and young victims like Dylan Hockley just six years old.

Just ahead Dylan's mother is going to join us with her reaction to the president's executive action on gun control.

(COMMERCIAL BREAK)

[12:55:28] BANFIELD: Tonight at 8:00 Eastern time, President Obama is going to join Anderson Cooper for a live exclusive town hall event on guns in America. This is an issue that everyone has an opinion about but it's particularly hard and hits home for Nicole Hockley. That's because her 6-year-old son Dylan was murdered in the mass shooting at Sandy Hook Elementary in Newtown Connecticut.

This happened more than three years ago on December 14th of 2012. He was one of 20 first graders and six educators who were murdered that day. And so just days before Christmas, she had to do what no parent should ever have to do and that is bury her own child.

Everyone including big brother Jake wore something purple which was Dylan's favorite color and they released purple balloons for the children and white balloons for the adults including his teacher, Anne Marie Murphy. Because in the aftermath of the attack, the first responders found those two together, they were dead and wrapped in each other's arms.

So now, Nicole is making it her mission to stop gun violence in America, because if not for a murderous senseless act, Dylan would have turned 10 this year. And Nicole is kind enough to join me live from Washington.

Nicole, you were there with the president, you were in the room with him on Tuesday when he made the announcement of the executive action. I just want you to take me there and tell me what you were thinking as you watched this happened before you.

NICOLE HOCKLEY, LOST SON DYLAN AT SANDY HOOK: You know, I was just so proud of our president and how much progress is finally starting to be made. It was such an emotional room to be there with him, to be with so many other families from across the country who have lost someone. But to be part of this positive change, something that is really going to start making a difference to saving lives, it was an important day.

BANFIELD: An important day and yet by other people's accounts, not far enough, these are background checks. There's not going to be a lot of limitation to bad people who get these guns, did you feel as though these are baby steps or did you feel like these were steps that you never believed could actually even happen in the face of a very strong second amendment in this country?

HOCKLEY: I think the important thing to note is they are steps. They are pushing the needle forward, they're making a change.

Some people are going to say that he overreached. Some people are going to say he didn't go far enough. The point is he took action. He's making something happen. And so far, that's more than a lot of other people have done. So I applaud him for that.

There's not one solution to solving the issue of gun violence in America. It's a very complex situation. And there's a lot that Congress need to do. There's a lot that the White House needs to do. There's a lot that states need to do and communities. It's a multifaceted problem that's going to require a lot of different solutions.

BANFIELD: Those solutions, Nicole, so many people said if they were ever going to come, they were going to come after what happened at your son's school, at Sandy Hook. There has never been an incident like that in America and yet that didn't happen. So do you feel hopeful that there will be significant change, change that you want in this time, given the fact it didn't happen three years ago?

HOCKLEY: It started three years ago. And what we're seeing now is the tipping point. Sandy Hook and what happened to my son and others was a catalyst for change. The change is happening now. But change is slow and this is going to continue to take much more time unfortunately.

It's sad because the longer it takes, it means more people will continue to die every day. But I absolutely have hope and faith and firmly believe that this change will come and ultimately, we will be a safer country.

BANFIELD: Did the president tell you anything personally, Nicole? HOCKLEY: You know, he has -- in the dealings that I've had with him, I've had these honors meeting him a couple of times now, he has always been passionate about this issue, passionate about making a difference, and talking as both president and as a father and parent. He wants to do the right thing and protect kids and make communities safer. And I believe in him for that.

BANFIELD: Nicole Hockley, I can't thank you enough for taking the time to speak with us.

HOCKLEY: Thank you.

[13:00:00] BANFIELD: And for our viewers who are watching right now, be sure to tune in at 8:00 tonight for this town hall with President Obama on guns in America.

And just next hour as well on the other side of the gun debate, we're going to be joined by Republican Congressman Trey Gowdy.

Thanks so much for watching, everyone.