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Legal View with Ashleigh Banfield

Election Day Just 10 Weeks From Tomorrow; Both Campaigns Focused on First of Three Presidential Debates. Aired 12:30-1p ET

Aired August 29, 2016 - 12:30   ET

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


[12:30:12] RACHEL CRANE, CNN CORRESPONDENT: Ashleigh, truly heart wrenching, hearing and seeing the pain that mother is going through. Also, unfortunately, this is not the first time that Diane has had to go through this type of grieving. She lost her eldest daughter 10 years ago also to gun violence.

ASHLEIGH BANFIELD, CNN ANCHOR: Oh, dear God. Rachel, thank you. Unbelievable. Rachel Crane reporting for us live.

Come up just ahead, setting the debate stage, Hillary Clinton/Donald Trump preparing for their first face-to-face in September. And usually that involves people standing in and playing the other candidate. But the word has it that is not happening this time. But which camp is not employing that tactic? That's next.

(COMMERCIAL BREAK)

[12:35:24] BANFIELD: Election Day is just 10 weeks from tomorrow. but right now both campaigns are focused on a ritual that comes much, much sooner, just four weeks from today. That the first of three presidential debates. The first time the voters are going to see Donald Trump versus Hillary Clinton, mano a mano on the stage.

And maybe, just maybe they'll be a third person. That libertarian guy, you know, Gary Johnson. He's at 10 percent, if he gets up to 15 percent, he gets to stand at the podium.

So when they're not campaigning or are out fund-raising, the nominees are typically rehearsing in their own ways and prepping in their own ways. Now, I want to talk about that now with CNN Political Director David Chalian and our Senior Media Correspondent, Brian Stelter. Welcome, gentlemen.

And I want to start with this quote from The Washington Post this morning, it's ticklish but there's some interesting nugget in here. It says that, "Trump is not holding any mock debates, proudly boasting that a performer with his talents does not need that sort of prepping."

Brian Stelter, that is astounding because debates aren't just about how you perform and how you react, they're about how you handle all that different kind of information and how you do the mental gymnastics.

BRIAN STELTER, CNN SENIOR MEDIA CORRESPONDENT: Yes, even think back to 7th or 8th grade, a lot of us had mock debates in class, in middle or high school. And you would always practice beforehand. But Donald Trump feels very confident looking in all the primary season debates where he vanquished all of his opponents that he will be able to handle out there.

Now, I would say this is the end of August, by the middle of September it could change. Maybe then he will be behind the podium, practicing the old fashion way. According to The Washington Post, Conservative radio host, Laura Ingram is a contender to play Hillary Clinton if there are mock debates.

But for now Trump campaign tells me as well they're not actually practicing the old-fashioned way.

BANFIELD: Well, they weren't using teleprompters to either and that changed when, you know, it was needed.

STELTER: True.

BANFIELD: So David, let me ask you something. There was a Quinnipiac Poll. I guess it came out last week. And it said that 90 percent of likely voters' minds are made up which is pretty astounding when you think about a 9 percent might switch. Sort of wondering if that 9 or 10 percent that they're after or if there's something more to it because as I recall Michael Dukakis rode around in a tank in September, right before the election. And that was catastrophic to him. So big, huge things can happen, right?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Without a doubt, I think everybody makes a mistake if they think by looking at August snapshots that they understand where this race is going to be in November. We just don't know. There -- you know, 70 days, 10 weeks to go here, that's a lot of time.

And you have these three really high-profile presidential debates between now and then. And we've seen how they can have impact in really upending the trajectory of the race if not long lasting impact on the actual result. So are right to note that.

I do think that the universe of persuadable up for grabs, truly undecided voters who are not locked in is a shrinking universe that happens as time goes deeper into the election cycle. But other polls have shown a little bit larger than the one you just cited there, Ashleigh.

BANFIELD: I have 30 seconds left. And Brian, I'd love to you weigh in on the Hillary Clinton report on, you know, CNN digging deep and finding that the Hillary Clinton camp is worried about expectations. If you let voters think that she's going to mop the floor with him, it doesn't work out that way. Bush/Gore did not work out that way.

STELTER: That's right. Over the weekend Clinton's press secretary Brian Fallon tweeting this. Remember for all lack of substance Trump's showmanship as an ex-T.V. star makes him a formidable debate foe. He thrashed his rivals in the GOP debates. Now, they're trying to set the bar so low that you can't even see it on camera. They're trying to lower the bar for Clinton and raise the bar for Trump. That spin though, that spin does happen to be true. Trump is a television star. He knows how to use the television medium in an artificial setting like a debate. So we'll see if he decides to practice before four nights from tonight -- four weeks from tonight.

BANFIELD: Four weeks, four weeks, no, no.

STELTER: I wish it was four days from tonight.

BANFIELD: A girl can dream. Brian Stelter, thank you. David Chalian, nice to see you. Thank you both.

I got politics of a different kind right now. An NFL quarterback, you probably know what I'm about to say. He refused to stand up for the American National Anthem. Fans are now burning his jersey, but others are praising him.

[12:39:49] Why he says he has taken a seat and taken a stand all at the same time and what the NFL is prepared to do about this? Next.

(COMMERCIAL BREAK)

BANFIELD: His action ignited a national debate. But the San Francisco 49ers quarterback is doubling down now on a controversial decision that he made.

I'm talking about Colin Kaepernick. He refused to stand during national anthem. This was at a preseason game on Friday. These are the pictures people are seeing. He's in that highlighted circle, sitting there next to the Gatorade.

He says the reason he did this was in protest of racial injustice in America and the backlash has been furious. Some fans are even burning their Kaepernick jerseys.

Take a look at the three different examples on your screens, lots of them on the internet. He is getting support, though.

CNN Correspondent Sara Sidner has been watching both sides of this debate, she's live for us in Los Angeles and also live with us is a guy who knows a thing or two about football, CNN Sport Contributor Hines Ward.

Hines, I'm going to ask you a question about all of this, in the football world in a minute. But, Sara, first to you with the reporting on this, what is Colin saying about it?

SARA SIDNER, CNN CORRESPONDENT: He's talking about oppression. And he says he is tired of seeing what has been going on in this country. And I think he's alluding to or has been very clear about what he's alluding to. And that is the relationship between black Americans and the police, saying that as long as this goes on he will continue to do this. [12:45:11] He was asked, "Look, are you going to continue to protest like this," which he which he knew was going to cause some serious backlash. So here is what he said when he was asked that question about whether or not this will go on as he continues to play for the NFL.

(BEGIN VIDEO CLIP)

COLIN KAEPERNICK, SAN FRANCISCO 49ERS: I'll continue to sit, I'm going to continue to stand with the people that are being depressed. To me this is something that has to change and when there's significant change and I feel like the flag represents what it suppose to represent and this country is representing people the way they're supposed to, I'll stand.

(END VIDEO CLIP)

SIDNER: Now at least one God Star mom who lost a son in one of the wars that America has been fighting abroad talked about the fact that she was so emotionally hurt by all of this, because her son died protecting the rights of Americans, but there have been plenty of people who have come out in support of Colin Kaepernick saying that part of the American ideal is that you can protest and the NFL for it's part does not require players to stand during the national anthem. It is their choice and they cannot force a player.

And also, Ashleigh, some of the 49ers has come out in support of Kaepernick saying, look, he's our teammate, we support him. There was another player that said, he's not only our teammate and I support him, but I understand what he is standing up for and this is absolute right to do this, there are other fans, of course, that disagree with that and you've seen the pictures of people burning his jersey online.

BANFIELD: And it's not over as you said. Hold on for a second Sara, if you will. Hines, I want to ask you a little bit about the politics of all of this, because it didn't stop there. He actually decided to sort of go there with the presidential campaign and talk about what he thinks our two potential leaders have to do with all of this. I'm going to play what he said and then I want to ask you about it afterwards. Take a listen.

(BEGIN VIDEO CLIP)

KAEPERNICK: I think the two presidential candidates that we currently have also represent the issue that we have in this country right now. You have Hillary who is called black teens or black kids super predators, you have Donald Trump who is openly racist. I mean, we have a presidential candidate who's deleted e-mails and done things illegally and as a presidential candidate. That doesn't make sense to me because if that was any other person you would be in prison. So what is this country really standing for?

(END VIDEO CLIP)

BANFIELD: Hines Ward, I didn't expect to hear that in a locker room and you have been in many locker rooms in your many days playing professional ball. Is this what the fans want to hear though or are they looking to your sport to escape?

HINES WARD, CNN SPORTS CONTRIBUTOR: No, this is not what that fans want top hear, I mean from the football players or any athletes, I mean from the fans' point of view, they want us to just go out there and play football or, you know, we're not asked to sit there and debate about politics or what's going on, or what's not going on, I mean for the fans' point of view they say "Hey, just can you throw the football? Can you go out there and make plays? Can you help us win a super bowl champion?" And that's what the fans' point of view comes from.

BANFIELD: Although I do, you know, think back to Muhammad Ali, taking his stand in the Vietnam war changing his name, he was vilified back then and ultimately he's been into hero and he had a lot to do with the social change of conscience and opinion so you could say that, sure, we want to see you throw the football but at the same time you are leaders, you know, you're societal leaders and you can have an impact. What about the rest of the team, how do they factor into that?

WARD: Well, sometimes it can be a distraction, you take Muhammad Ali. The thing about boxing is just an individual sport whereas football is a team sport. When someone is making a statement or protesting, do it on your own time don't do it on the team and the organization time because now you're asking the organization, you're pulling in teammates and now we're being teammates, we're asked to having to respond or ask question and answer the questions to Colin Kaepernick's action.

And sometimes that can be a distraction and no NFL team wants a distraction going into a season, especially with two weeks around the corner for the NFL to start.

BANFIELD: Full disclosure, Hines Ward, I have a total sports crush on you. You're great at what you do and I'm so glad you're with the CNN family. Thanks so much for your reporting today. I appreciate it. And Sara Sidner, girl crush on you, too. So thank you very much. Good to have both of you. Thanks, guys. Appreciate it.

Coming up next, I want to take you to a story that made big headlines actually starting with this program. It was about a young man who raped a woman behind a dumpster at a frat party. Four days from now this young man Brock Turner, will get out of jail for the first time and it has only been two months since he went in. And it's just now we're seeing some of the transcripts from his testimony in court and allegations that he was giggling and smiling the moment he was caught.

[12:50:05] We're going to learn more about it in a moment.

(COMMERCIAL BREAK)

BANFIELD: In just four days the former Stanford student Brock Turner, who raped a woman behind a dumpster while she was unconscious, passed out drunk, well, he is set to be released from the jail where he's been staying the last two months.

In the meantime more than 1,000 pages of brand-new court documents are now public for us to read and some of it is the testimony from the survivor. Brock Turner also has testimony on those pages and those two cyclists, who caught him, chased him down, pinned him down, and actually were part of the trial.

So one of those cyclists describes what Turner's facial expression was like when he was pinning Brock Turner down after all of this and he told the court "I noticed that he was smiling. So I said, why are you smiling? Stop smiling."

[12:55:09] Turner later took the stand and he claimed he was nervous. And he said this quote to the prosecution when asked about his facial expression. "I was laughing at the situation of how ridiculous it was."

CNN Legal Analyst Joey Jackson, Danny Cevallos join me now live. So here is the thing. He said he thought the situation was ridiculous and that's what led to him smiling, but he also just prior to that said he was so scared that this guy was chasing him and that's the reason he was running, he was afraid. Do you go from being afraid to thinking something is so ridiculous that you giggle and smile? It just seems to me, so incongruous.

JOEY JACKSON, CNN LEGAL ANALYST: What you're trying to do is you're trying to get out of the situation, so what happens, Ashleigh, is this is how it works in law. Admit what you have to admit. Deny what you have to deny. But explain yourself and make sure that you do it to the benefit of a jury believing you. Apparently, they didn't. He's convicted and the result is that we're talking about this case.

BANFIELD: So we're -- but we're reading this now ...

JACKSON: Yes, we are.

BANFIELD: Now, we're getting the public ...

JACKSON: The whole transcript.

BANFIELD: ... had you sat in that courtroom like the judge did, Aaron Persky, you knew all of this, like doesn't this speak to lack of remorse? That's why I'm getting to this six months sentence which ultimately gets reduced to two months and out on Friday in time for school start.

DANNY CEVALLOS, CNN LEGAL ANALYST: Yes, but Ashleigh, when it comes to sentencing, to play devil's advocate, it's a whole picture approach. And what we're looking at is just a few lines from two separate transcripts. I mean one of the things that you put up there was that, yes, the Good Samaritan said, "Why are you smiling? Stop smiling." But conceivably even that witness says that Brock Turner said, "I'm not smiling." So, yes, those are very damaging lines, they're about six or seven total lines from a lot of testimony. That in sentencing you look at the whole picture. And one of the single biggest driving factors, whether you like it or not and if you don't like it call your legislators, is of defendant's prior record. And if you don't have a significant prior record then you're in line for among the lowest of sentences. JACKSON: However ...

CEVALLOS: However here we go.

JACKSON: However, what you also look at is the significance and gravity of the case. How significant is the case? How did it impact the victim? How will her life be as a result of your conduct? So, yes, you look at prior history but you leave it in a judge's discretion to make a decision appropriate to the law. And we're talking about this because the widespread feeling is this is not.

BANFIELD: It was crystal clear how the victim was impacted by all of this. She said it in court more eloquently than I could have put ...

JACKSON: Than any of us.

BANFIELD: ... voice to her words when I read it here on television. Real quickly, guys, I want to read you another piece of Brock Turner's testimony, his lawyer asked him, "The last time that you saw Jane Doe," we're not using her name. "That evening, was she awake in your opinion?" And he answered, "Yes." So the question was, "Was she conscious?" He answered, "Yes." The question was, "Was there anything about your conversation with her that caused you to believe that she didn't understand what you were saying?" And the answer he is, "No."

So my question id to the both of you, as briefly as you can, how is it that Brock Turner thinks that she's completely capable of consent in the condition that she's in and he's right next to her, but two passing cyclists from many, many yards away are crystal clear that she is passed out drunk and unconscious and barely able to move? How is that something the judge gets his head around?

CEVALLOS: Number one, this could be exhibit "A" to the reason why rare is the defendant's case improves when the defendant actually takes the stand. This isn't necessarily bad lawyering by any stretch, this may have been their only shot as putting him on the stand and he did not acquit himself very well.

So in this case, Brock Turner is trying to make the case that, yes, the last -- up until the very last moment she was conscious, she was speaking to me, I said, "I'm going to vomit," she said, "OK." Something to that effect, but the bottom line is you can say it but is it credible? And in this case, it was not credible when weighed against the two Good Samaritans who came to her rescue.

JACKSON: In addition to that is the following question, whatever you say has to be matched against the physical evidence. When you have police that arrive and they apparently determine that this person's unconscious, there's pine needles there, she's unclothed, her dress is up, she's snoring, I'm saying, "Are you OK, you OK?" She's not responding. How is that in any way consistent with someone, oh, they're up, they're alert, they're all right. And at the end of the day if your story doesn't make sense, no matter what you say, a jury sees through it, you get convicted. But, unfortunately in this case, you get sentence like this.

BANFIELD: Yeah, pretty hard to go from zero to 60 that fast and be completely ...

JACKSON: She was fine. But now she's unconscious.

BANFIELD: Yeah, legally capable of consent to completely incapable of waking up and hearing a police officer and only knowing that she's in the hospital at her next step. Danny, Joey, thank you.

JACKSON: Thank you, Ashleigh.

BANFIELD: We are staying on this. He's getting out Friday. So it's going to be a big day on Friday. Thank you both. Appreciate it. Thank you as well. Really appreciate you watching "Legal View."

[13:00:06] Stay tune, Wolf Starts right now.