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Legal View with Ashleigh Banfield

Cosby Hearing on Criminal Sexual Assault Case; Trump Dredges up Clint Scandals. Aired 12:-12:30p ET.

Aired May 24, 2016 - 12:00   ET

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

(COMMERCIAL BREAK)

[12:00:09] ANNOUNCER: This is CNN breaking news.

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

We're going to begin with this breaking news. The once beloved TV patriarch, Bill Cosby, is in a courtroom right now where he's waiting to find out if his criminal sexual assault case will indeed go all the way to a trial. The comedian walked in this morning for this preliminary hearing today and he was surrounded by powerhouse attorneys. They are fighting tooth and nail against a series of felony, indecent assault charges stemming from a 2004 case involving a woman named Andrea Constand. Constand claims that Cosby drugged her and sexually assaulted her in his home in Pennsylvania after he invited her there to talk about a professional future.

Now it's his future that is in question. And our Sara Ganim and CNN legal analyst Danny Cevallos are live outside of that courtroom in Norristown, Pennsylvania. Also live with me here, legal analyst and defense attorney Joey Jackson and former prosecutor and defense attorney Julie Rendleman (ph).

Sara, first to you for the reporting. A lot has happened. Some of it behind those closed doors. Take me to Pennsylvania. Tell me what's been happening in this preliminary case.

SARA GANIM, CNN CORRESPONDENT: Good afternoon, Ashleigh.

First, you've got to set the scene here. You know, this is Cosby's hometown, Montgomery County, just outside of Philadelphia. He was never more loved anywhere else than he was here. In fact, as he approached the courthouse this morning, he was met by some fans, a small group of fans, and he waved to them. He gave a wave of acknowledgment as well to the media.

Inside this courthouse here in his hometown is where he faces the only criminal case, of all of the allegations that have been made against him in the past few years, this is the only one that made it to criminal court. This allegedly happened 12 years ago, in 2004. A woman was the director of women's - the women's basketball team here at Temple University says she was over at Bill Cosby's home. He gave her some blue pills and then sexually assaulted her. Now, later on, he - she sued him civilly. And it was in his civil

deposition that was released last year that shocked us all when he admitted that he did have a prescription for Quaaludes and gave them to women who he wanted to have sex with. Now, he has denied any wrongdoing, denied ever sexually assaulting anyone and says that the encounter with Constand was consensual. That's been a big thing in court today. That's been a big part of his defense. According to my colleague Jean Casarez, who is in the courtroom, the defense has really honed in on the fact that they say Andrea Constand continued to go over to Bill Cosby's house after this alleged encounter and they say a victim would not do that.

Now, as this court proceeds, I think it's important to note that if this case goes forward, if a judge finds that it can go to trial, this is the only case where Bill Cosby could face jail time, Ashleigh.

BANFIELD: Yes, but we may hear from other women who say they went through a similar ordeal as witnesses. That remains to be discussed. We're going to discuss that.

Danny, to you. This is a unique set of circumstances, to say the very least, in this courtroom. There are three different prosecutors that play into the fact that they're even there in the first place. Help me understand why Bill Cosby could say something like that in a deposition where he swears he was promised he had immunity and all of a sudden he does not. Tell me about the prosecutors involved and how we got here.

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, we got here - that issue was developed more at the habeas hearing, which was some time ago. And so far, that has not been an issue today. The question of that alleged agreement of non-prosecution. Today is a preliminary hearing. And all the prosecution needs show is a prima fascia case, more probable than not, that a crime was committed and that this defendant committed that crime. So the non-prosecution agreement, if there ever was one, will not be an issue today.

The prosecution, instead, has a very light burden to meet. An exceedingly light burden. I can't stress it enough as someone who has done many preliminary hearings myself, judges - the percentage are against the defendant. All the prosecution has to make out is a bare bones case and credibility is not supposed to be an issue. So the defense can't make much headway by calling a witness, you know, inaccurate or fabricating their testimony, but one thing the defense can do is induce their own evidence to rebut consent, and that will be a critical issue in the coming hours and minutes as we move through this preliminary hearing. Will the defense be able to negate consent? It's an uphill battle but the defense so far appears up to the task.

[12:05:12] BANFIELD: OK, you said it, exceedingly light burden. I just want to read something to you, Joey Jackson, which I can only imagine is one of the first things out of the prosecutor's mouths in this preliminary, hoping to get this judge to convince - to convince the judge to go straight to trial. And that is Cosby's consent. And that is this. In the deposition, Bill Cosby was asked, when you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with. And the answer was, yes. Does that meet an extremely light burden to go forward to trial?

JOEY JACKSON, CNN LEGAL ANALYST: Well, let's talk about the issue of consent. And that issue was very tricky here and we need to point out to viewers the following. There are three counts here. One count is predicated upon her lack of consent. There are two other counts, one relating to her being unconscious at the time because of pills and because of Quaaludes or some other types substance and therefore not having the ability to consent. The other relates to specifically drugging her, thereby knowing she was in a position where she couldn't consent. So those are three theories.

So even if - the problem for the defense here - this is the larger picture - and I should point out that after these preliminary hearings, as Danny Cevallos points out quite rightly, since it's such a low standard, I very much expect that this case will move forward to trial. This case is not being dismissed today, Ashleigh.

BANFIELD: Yes. I'm with you.

JACKSON: I think the defense team is really they're locking in the witnesses at this point.

BANFIELD: Yes.

JACKSON: But since on the issue of consent, you have this issue with the pills and was it Benadryl, was it a herbal supplement? I don't know how the defense, at this stage, really bypasses that (INAUDIBLE).

BANFIELD: Well, I still go back to the, when you got the Quaaludes -

JACKSON: Right.

BANFIELD: Was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with. It's very, very powerful, Bill Cosby's own answer, yes.

Julie, there are also 40 to 50 other women who say the same thing happened to them. And I understand that this case is on its own merits. You don't get to bring in prior bad acts. You don't get to do that unless there's a pattern of conduct. So with your basic knowledge of what these other women have all said, do you expect to see a parade of women who haven't been investigated, who haven't been litigated, walk into that courtroom ala Phil Specter, whose parade of women may have sent him to the hoosegow?

JULIE RENDLEMAN, FORMER PROSECUTOR AND DEFENSE ATTORNEY: I don't know if I expect to see a parade of women, but I certainly expect the prosecution to try to introduce every single witness and every single complaint.

BANFIELD: Look at all of them. Look at these people.

RENDLEMAN: Remember, none of them have been vetted, but they'd be vetted at cross-examination. There's one thing I just want to add, though, because you talked about

statements he made in his deposition. There's one thing that I keep turning to, and I wrote it down because I couldn't believe what he said. When he's asked about whether or not, when he's talking about consent with this complaint, what he says is, his understand, it was somewhere between permission and rejection. And I keep repeating that to myself because somewhere between permission and rejection indicates that he himself doesn't even believe that she's necessarily consenting.

BANFIELD: So can I read you exactly what was in - I'm not sure it's exact quotes, but it speaks to your quote, and that is this. It's - it's a quote again from this deposition where Andrea Constand's case was settled and the deposition Cosby has argued, I spoke because I was guaranteed immunity. It was questionable how he was guaranteed. That's why we're here. But he said this. The question was, she said that she believes she was not in the position to consent to intercourse after you gave her the drug. Do you believe that is correct? And Cosby's answer is, I don't know. I mean that's - Joey, that's tricky.

JACKSON: I think it's very damning. Now, the deposition does a number of things here, just to be clear about that. And usually, Ashleigh, in most cases, what happens is, is there's, you know, the criminal case and then there's civil litigation and they're totally separate. Remember in this case it was really exhumed because of this whole civil case and the judge releasing this deposition.

But I think the deposition does three things. Number one, what the deposition does, Cosby was interviewed by the police around the time that this happened in 2005. You can look at what he said to the police versus what he said in the deposition, and he mentioned the drug use in both instances but there were inconsistencies. Was it a herbal supplement? Was it Benadryl? Was it something else?

The second thing now that you can look really for the deposition to do is introduce what you talked about was the Quaaludes thing. What is he doing introducing Quaaludes to young women not consenting? And then the third issue was this parade of other women that the deposition explored in terms of his relationship and what he knew he was doing.

BANFIELD: Yes.

JACKSON: So if the deposition stuff comes in, it's (INAUDIBLE).

BANFIELD: Pattern and practice.

Real quickly out to Sara and Danny. If you're still with me on location live outside of the courthouse, where this has been going on, I hope between the two of you, you can answer this question. Three counts and they are hefty in terms of the potential prison time. I think, and correct me if I'm wrong, they're ten years each. But between the two of you, work out for me what Cosby could face if he's convicted - if it goes to trial and he's convicted, what could happen and would they be concurred or consecutive?

[12:10:29] CEVALLOS: Yes, you want to talk about Bill Cosby's potential exposure.

BANFIELD: Yes.

CEVALLOS: I mean the statutory maximum I believe is 10 years for a felony two aggravated indecent assault. But the reality is, statutory maximums are not always likely for a defendant like Cosby, who we expect has no prior criminal history and all sentencing is a function of your prior history and the gravity of what you have done. So under the sentencing guidelines, Cosby's sentence, if he were convicted, which is obviously a huge if, would be much, much lower than that. It would not be the stat max case. Instead, you'd be looking at somewhere between, and I'm ball parking, 22 to 36 months under the applicable sentencing guidelines, which are still very significant periods of time, but nowhere near approaching the statutory maximum.

BANFIELD: Well -

GANIM: You have to remember, too, Ashleigh, he's 68 years old.

BANFIELD: Yes. That's exactly it.

GANIM: So (INAUDIBLE) Very important. Seventy. He's 70 now.

BANFIELD: He's 70 now. He's 70 now, yes.

GANIM: So you're talking about - and you consistently do see defense attorneys use that in sentencing as something that, you know, to say - for the judge to take - to take into consideration whether or not a sentence, even if it were, say, ten years, would be a life sentence for him, or five years could be a life sentence. You've seen that in many high profile cases, especially in Pennsylvania.

And I - that brings me to another point that I'd like to make today, which is, as he walked in here today, Bill Cosby had assistance. It's not that he appears to look, you know, old and frail -

BANFIELD: Frail, right.

GANIM: But he did have assistance and his representatives said that he was having some eyesight issues, some long standing eyesight issues. Jean Casarez, who's in the courtroom, who's been listening to the testimony all day, said earlier that he stumbled into her pew in the courtroom and appeared not to quite know where he - you know, where he was. Didn't quite have his bearings. So he does, you know, that does seem to be something that his defense is talking about.

BANFIELD: I saw him in one of the shots as well, Sara, stumbling into, I think, one of the magnetometers. This time he didn't walk in with a cane, but he did walk in with that assistance. But I will say this, and I think I'm not wrong, judges do not care about your physical ability when you're coming here. Watch this picture. I think he has a problem there as well in terms of stumbling. But judges don't care if they're determining whether you're going to be standing trial, whether your physical fitness is up for the task. There's been many a client -

JACKSON: But this is for the jury. That's for the jury. BANFIELD: This would be for the jury.

JACKSON: And that's the whole setup, because that's where it's going.

BANFIELD: This - well put (INAUDIBLE).

All right, I'm going to have to leave it there, guys, but, Sara, great job reporting. Keep us posted on the developments today. Danny, as well, thank you to you. And, of course, Julie and Joey, great work as we continue to watch this breaking story.

JACKSON: Thank you, Ashleigh.

RENDLEMAN: Thank you.

BANFIELD: Bill Cosby, it's been a long story and evolution to evolution and also details that are hard to keep track of, but that one, you can keep track of it. He may be going to trial on a felony sexual assault. Three counts.

Coming up next, why Bernie Sanders says things could get messy at the Democratic Convention. Messy. What does that mean? And Donald Trump and Clinton's newest tactic, digging up old dirt from each other's very old past. You can watch LEGAL VIEW any time, cnn.com/go.

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[12:17:28] BANFIELD: The word of the day in politics is messy. That may be the best way to describe the new attacks between Hillary Clinton and Donald Trump. Both campaigns getting their hands dirty by digging up the past with the Clinton camp zeroing in on Trump's comments involving the housing crash back in 2006. Have a listen to what he said.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE (voice over): I sort of hope that happens because then people like me would go in and buy. If there is a bubble burst, as they call it, you know, you could make a lot of money.

(END VIDEO CLIP)

BANFIELD: So, Trump is also turning back the calendar himself and he's digging all the way back to the '90s in order to escalate his personal attacks against Bill Clinton, again, Bill, not Hillary, but Bill and his behavior with women. All of this as Donald Trump and Bill Clinton get set to hold dueling rallies in the desert. Trump is heading to New Mexico. And what's cool about this, it's not just any other rally. This is his first official fundraiser in conjunction with his brand new friend, the RNC. Remember that? Remember when they weren't? Now they are.

Meantime, Senator Bernie Sanders is getting into that messy mix as well, saying that anybody expecting a nice and tidy convention in Philadelphia should guess again. (BVVC)

SEN. BERNIE SANDERS (D), PRESIDENTIAL CANDIDATE: It's going to be messy, you know. Democracy is not always nice and quiet and gentle. But that is where the Democratic Party should go.

UNIDENTIFIED MALE: So you think the - you think the convention could be messy?

SANDERS: So what. A democracy is messy. I have - every day my life is messy. But if you want everything to be quiet and orderly and allow, you know, just things to proceed without vigorous debate, that is not what democracy is about.

(END VIDEO CLIP)

BANFIELD: The Sanders campaign has been very quick to clarify just exactly what he meant by messy. His campaign manager speaking with CNN, saying that that word, messy, does not mean advocating violence.

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JEFF WEAVER, BERNIE SANDERS' CAMPLAIGN MANAGER: Well, I just think there's votes. I mean we're just going to have votes on the floor of the convention, that's all.

ALISYN CAMEROTA, CNN ANCHOR, "NEW DAY": OK.

WEAVER: You know, there will be debate and there will be votes, which is not - you know, you don't often see that anymore in modern conventions but, in fact, that's really what conventions are about, is for parties to do the business of the party.

(END VIDEO CLIP)

BANFIELD: OK. So now you have it all. What about the voices? I'm joined by author and Democratic strategist and Bernie Sanders supporter, Jonathan Tasini. Also joining me now, the national co-chair of the Trump campaign and Trump advisor, Sam Clovis. Nice to have you with us. And then also joining me, Democratic U.S. congressman and Hillary Clinton supporter Xavier Becerra.

[12:20:05] Welcome to all three of you.

Before we go any further, I need to play you even more tape because this story just keeps getting momentum. That whole attack on Hillary Clinton via attacking Bill Clinton and his behavior in the '90s, it made it on to "The View" today. Bernie Sanders, a guest on "The View," asking what he thinks. And he's asked about what he thinks about this line of attack from Donald Trump. And here's how he responded. Take a look.

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MICHAEL COHEN, EXEC. V.P., TRUMP ORGANIZATION: What he's doing is he's exposing, not just Bill Clinton for what he was and what he had done, but it's the same as it relates to Hillary. She attacked Mr. Trump as being a sexist, misogynist, and that's inaccurate. Donald Trump's not any of those things. And, again, what they're trying to do is to portray him as such so that they can end up turning the women against Mr. Trump when, in fact, women seem to be turning against Hillary Clinton for being the enabler in chief.

(END VIDEO CLIP)

BANFIELD: So two very interesting things that just happened right there. Chris Cuomo is not the newest cast member of "The View." I guarantee you that. And Michael Cohen looks nothing like Bernie Sanders. OK. If everybody thought that was weird, I'm with you. Here is the actual moment on "The View" when Bernie was asked whether these attacks via Donald Trump of Bill Clinton's behavior in the '90s were fair game. Here's what he said.

(BEGIN VIDEO CLIP)

SEN. BERNIE SANDERS (D), PRESIDENTIAL CANDIDATE: No, I don't think it is and I have never gone anywhere near that. Look, Donald Trump is a demagogue.

He is a bigot. And he has nothing to say about the important issues facing our country.

This is what Trump has done throughout his entire campaign. He is very good at insulting people and attacking people, but he has nothing to say about the future of this country.

(END VIDEO CLIP)

BANFIELD: OK, so that's interesting, Bernie Sanders coming to Hillary Clinton's defense. Sam Clovis, this question to you. This is going to be a tough one. Much of the attacks against Hillary Clinton saying that Bill Clinton has his behaves in the '90s against women, which Donald Trump alluded to as being shameful, he has also twisted into Hillary's reaction to those women, but it is really hard to find Hillary Clinton anywhere attacking any woman who was alleged to have had affairs. I did find one instance, though, of an attack on the women and I'm going to read it for you. "Paula Jones is a loser and people would have been more forgiving if Bill had had affairs with more glamorous women." And that came from, you ready, Sam, Donald Trump. What are you doing in this campaign when it's Donald Trump who attacked the women and you're going after Hillary's husband, who's not running for president?

SAM CLOVIS, NATIONAL CO-CHAIR, TRUMP CAMPAIGN: Well, I do think it's important that you brought this up because how'd you open your show? You talked about sexual perdition (ph) of an individual, a high - high visibility individual there, of sexual perdition (ph). You opened your show with that. Special -

BANFIELD: Yes, Bill Cosby. Yes, bad stuff happening there. That's a Bill Cosby story. I asked you a specific question.

CLOVIS: Are you going to let me talk or not? Are you going to interrupt me or are you going to let me talk? BANFIELD: Would you answer the question. Yes.

CLOVIS: All right. Really, I mean, you know, this is, you know, I'm really sorry that this is how this has turned out because this is more like TMZ than it is talking about campaigns and the substance and why these particular tactics might be in play or not. Now, if we want to go down that road, I'm happy to do that, but I thought we were going to be talking about -

BANFIELD: I just want you to answer the question, Sam Clovis. You haven't answered it and you've been on for 45 seconds already.

CLOVIS: I did - I was trying to answer - (INAUDIBLE) and you won't let me, Ashleigh.

BANFIELD: Answer it.

CLOVIS: Are you going to let me answer the question or not?

BANFIELD: I've had to prod you three times to answer it.

CLOVIS: Well, you keep interrupting. So are you going to allow me to answer or do you want to let somebody else talk for a while?

BANFIELD: If you don't answer with Bill Cosby and answer the question, why is Bill - why is Donald Trump attacking Hillary Clinton's husband and suggesting that Hillary Clinton attacked the women that he is alleged to have affairs with, when it, in fact, was Donald Trump who attacked, saying Paula Jones is a loser?

CLOVIS: Well, he wasn't running for president in 2006 either, and so the issue comes down to the overall character of the candidates and I think we're going to see how this plays out. And right now I think if you have a look at what we're doing, it's just - the lead agent of the - advancing the notion of the war on women is Hillary Clinton, and she is - she can't have it both ways. Either she is or she is not part of this deal. And if her husband has been out and has - has been a sexual predator, has been documented over and over again, then perhaps she has a role in some of this and perhaps there is some of this that she has to be able to say can't have it go both ways. There's a blind spot or a bit of hypocrisy here and I think we have to acknowledge that.

BALDWIN: OK. OK. That's the answer.

[12:25:00] All right, so, Jonathan Tasini, Bernie Sanders wants to debate Hillary Clinton in California and Hillary Clinton says no to a debate in California. Why would she need to debate him in California when there's no path at this point for Bernie Sanders to win the nomination and, effectively, wouldn't change the outcome at this point. What would be the benefit to either of them at this point?

JONATHAN TASINI, AUTHOR, "THE ESSENTIAL BERNIE SANDERS": Well, the first thing, Ashleigh, I do want to underscore one thing, that whether Bernie Sanders is the nominee or Hillary Clinton is the nominee, we will get the overwhelming number of women because Donald Trump is a misogynist. He has a long history of being a misogynist and saying despicable things about women. So Sam did not answer your question because it's not answerable. Donald Trump will not get the votes of women because women will not vote for a misogynist.

On your question about California, I do think that, let's face it, it's a big state. People want to hear from both candidates. The nomination has not been decided. We all acknowledge in the Sanders campaign that it's a very tough path, but there will not - we will not know the nominee of the party until the actual convention when the super delegates vote. And I think all California voters, it's the largest state in the union with hundreds of delegates, deserve to hear from the two candidates. And I do think it's very important to remember, when we have a debate, it's not just Democrats listening, it's independents listening, it's even Republicans listening. And to put forth the vision of either candidate, either of whom will be far superior to Donald Trump, is a good thing when we're looking towards the general election.

BANFIELD: OK, Congressman Becerra, you heard Jonathan just say that he doesn't think Sam Clovis answered the question. Do you think that the question was answered, and if you do think the question wasn't answered, shouldn't Hillary Clinton be a little tougher on pointing out the stuff that, I mean, I found it. I found that Donald Trump called Paula Jones a loser, not Hillary Clinton.

REP. XAVIER BECERRA (D), CALIFORNIA: I - you know, I think most Americans would like to know how we're going to stop nuclear proliferation, how we're going to make sure our troops don't die in Iraq, how we make sure that the Zika virus doesn't affect pregnant women. The American people, I think, want us to answer really important questions, not whether Donald Trump is a misogynist or whether Donald Trump thinks he's the greatest of all. The reality is here that we have an election to determine who will be the next leader of this country in the free world. I believe Secretary Clinton has done a marvelous job of going everywhere in the country. What I really like about her campaign, she made - has made an effort to sit down with people, rather than just be on TV. And I - there's a lot of demands on the secretary over the next two weeks before we get to the June 7th primary in California and New Jersey, New Mexico and so forth. I hope that she has the time to sit down with as many people as possible. I've got some requests in -

BANFIELD: But, congressman, that question - I mean, look, she has made it part of her campaign to go after Donald Trump's behavior with women and Donald Trump's answer to that is that her husband has problems with women. Why doesn't she answer to that?

BECERRA: Well, I think the secretary's making it clear what Donald Trump stands for when it comes to women. She's not going after him. She's using his own words. She's talking about what other women have said about Donald Trump. That's not going after anybody. That's just using the facts. Donald Trump has a history. He's the last guy who should be trying to use dirt. He needs to come clean on why he's not willing to reveal his taxes. He needs to explain why he's willing to let guns be in the classroom but he won't let them be in the Republican Convention coming up in July. He needs to explain a lot of different things. The least worry I think most women should have is trying to figure out why Donald Trump has been so wrong when it comes to women.

BANFIELD: All right, thanks to all three of you. I appreciate it. Congressman Xavier Becerra, Jonathan Tasini, Sam Clovis, thank you.

Coming up next, Donald Trump's newest tactic turning up the heat on Hillary by dredging up that past. Bill Clinton's past. But is Trump out of line. And even so, is that working?

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