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Legal View with Ashleigh Banfield

State of the Presidential Race; Bill Cosby in Court; Chicago Homicides. Aired 12-12:30p ET

Aired September 06, 2016 - 12:00   ET

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

(COMMERCIAL BREAK)

[12:00:30] ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. Welcome to LEGAL VIEW.

With 63 campaigning days remaining, for the Democratic nominee for president, she's saying that she is not going to be silent, even she coughs now and again. And just minutes ago, for the second day in a row, Hillary Clinton chatted with reporters on her campaign plane. And the very first question was about the coughing fits that had plagued Hillary Clinton yesterday. Have a listen.

(BEGIN VIDEO CLIP)

HILLARY CLINTON (D), PRESIDENTIAL NOMINEE: Good morning, everybody.

UNIDENTIFIED MALE: Good morning.

UNIDENTIFIED FEMALE: Hi.

UNIDENTIFIED FEMALE: Good morning.

UNIDENTIFIED FEMALE: Hi.

CLINTON: I'll come back later. Jen has convinced me I need to.

UNIDENTIFIED FEMALE: Yesterday wasn't so bad, right?

UNIDENTIFIED FEMALE: (INAUDIBLE).

CLINTON: It was great. It was great. I love having the plane. The plane makes everything so much easier. And that's what we used to do in the State Department all the time. It was just so simple to keep everybody in one place. So I will come back in about an hour.

UNIDENTIFIED FEMALE: How are your coughs (ph)?

CLINTON: Better. Now the advice, of course, is, just don't talk for a day or two.

UNIDENTIFIED FEMALE: Yes, that's not going to work. How are you going to manage that?

CLINTON: Yes, not going -- it's not going to happen. I'm going to be talking. (INAUDIBLE) tomorrow, I'll be fine. UNIDENTIFIED MALE: (INAUDIBLE) or anything like that?

CLINTON: I just upped my antihistamine (INAUDIBLE). And I said, it's, you know, it happens like twice a year. It happens in the spring when the pollen comes. It happens in the fall when the pollen comes (ph). The next couple of days, it disappears. But there is a long, I'm sure, video record that someone is compiling right now going back decades.

UNIDENTIFIED FEMALE: The Trump campaign said you might be allergic --

CLINTON: What?

UNIDENTIFIED FEMALE: The Trump campaign manager said you might be allergic to the media.

CLINTON: Yes, I'm allergic to him. That's what I -- that's what I said.

UNIDENTIFIED MALE: How did you feel seeing his plane yesterday (INAUDIBLE)?

CLINTON: I didn't feel anything. Was I supposed to?

UNIDENTIFIED MALE: (INAUDIBLE) 200 yards away.

CLINTON: I've seen it before. He has flown it all over the United States. But it's usually parked where I'm about to take off from or land. I've never been on it.

UNIDENTIFIED FEMALE: What do you think about the CNN poll that shows --

UNIDENTIFIED FEMALE: OK, we'll come back.

CLINTON: We'll come back. We'll come back. I'll be back. I'm just saying good morning.

UNIDENTIFIED MALE: Thanks for coming back.

UNIDENTIFIED FEMALE: Good morning.

UNIDENTIFIED FEMALE: Good morning.

(END VIDEO CLIP)

BANFIELD: Ha. OK. So that's what you call a really informal gaggle. There was the whole, we'll come back, we'll come back. So we're looking forward to that. I hope it happens. In case you missed it, here is a super abbreviated version of what all that coughing business was about yesterday. Have a look.

(BEGIN VIDEO CLIP)

HILLARY CLINTON (D), PRESIDENTIAL NOMINEE: And -- (coughing) -- he has -- (coughing) -- do you have some water?

UNIDENTIFIED MALE: Yes.

CLINTON: (coughing). Thank you. I'll be right back.

(Coughing)

(END VIDEO CLIP)

BANFIELD: Can I just say, I feel her pain, because for 28 years, I've been on a live microphone on a set and many of the sets have not had what we call cough buttons, and that has happened to me. And it is what we call officially in the business a bummer.

Lots to talk about. I'm lucky to be joined by CNN's senior Washington correspondent Jeff Zeleny, CNN political commentator and political anchor of Time Warner Cable News, Errol Louis, and from Washington, D.C., CNN politics and executive editor Mark Preston.

So, first and foremost, Jeff Zeleny, we get these e-mails from the RNC every day doing a countdown of how many days it has been since Secretary Clinton has held a news conference. Big for everybody. Not just little gaggles and bits and pieces here. I think we're at 276 or so. So do these things count towards that or is she trying to offset the fact that she hasn't been doing big press conferences?

JEFF ZELENY, CNN SENIOR WASHINGTON CORRESPONDENT: In my view they count. Look, she's took questions for 25 minutes yesterday from reporters on the plane. Again, I think she should do it every day. And she says she will answer more questions today.

I think this running count, the RNC, obviously, is trying to -- they keep a tally here and be the referee of this race. You know, call it a press conference, a gaggle, whatever, we want her to take questions from voters, from reporters and others. It's what presidential candidates have done over the course of time. There's nothing unusual about it in this campaign at all. So I think the, you know, tally should probably go back to zero now because, in my view, taking 25 minutes of questions yesterday constitutes a press conference if it's on the air or if it's on the ground or whatnot.

BANFIELD: All right. The reality here is, why she's doing it is because, you know, we see poll numbers and other things. She wants to be a little bit more transparent. The question is, why didn't they do it before? Why it's taken them so long to do this?

BANFIELD: Before I let you go, because I know you've been watching the numbers, the big headline today is that big gap that Hillary Clinton was enjoying in the general numbers, the, you know, for those likely voters has closed and he has leap-frogged past her by two points. There's the -- there's the likely choice for president, Trump, 45, Clinton, 43.

[12:05:16] But maybe the bigger number, if you want to look within them, is the honest and trustworthy. This is getting a lot of jaws sort of flapping today because Trump now comes in at 50 percent, say that he's honest and trustworthy to Clinton's 35 percent. ZELENY: It certainly is not a number that the Clinton campaign would like to have. And, you know, honest and trustworthiness are weighing and hanging on this campaign more than any I can recall. And it is because, you know, both of them are disliked by high proportions here. But Hillary Clinton has been in public life so long, has a trust issue. Her aides acknowledge it. She acknowledges it. And Vice President Biden acknowledged it yesterday. I happened to be on the road with him in Pittsburgh. And he had an interesting piece of advice for what she should do about it. Let's take a listen to that.

BANFIELD: Ah, you know what, we're going to get it. There's a lot of pieces of tape that are flying around back there right now.

ZELENY: I'll say what he said. He said this.

BANFIELD: But it was a good interview. Wait. Hold on one second. I think we do have it now.

ZELENY: OK.

BANFIELD: Let's take a look. This is the vice president.

(BEGIN VIDEO CLIP)

JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: Hillary knows it's a problem. And she's trying to figure out how to remedy it. And my advice to her, the best way to remedy it is, talk about what you care about, and talk about it with some passion, and people will see through it.

(END VIDEO CLIP)

BANFIELD: (INAUDIBLE) --

ZELENY: So he said open your heart right there. Talk about what you care about. I'm not sure what Hillary Clinton thinks about getting advice from Joe Biden on this, frankly, but he may be right, open up a little bit more.

BANFIELD: Might be nice to have him on the campaign trail (INAUDIBLE) you can't -- you can't say having a VP doesn't help a lot. Not in every race, but -- real quickly, there's a new -- a new ad that Hillary Clinton has sent out and it goes after Donald Trump on veteran's issues and national security. Let's have a quick look at it.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL NOMINEE: I know more about ISIS than the generals do.

UNIDENTIFIED MALE: John McCain, a war hero --

TRUMP: He's not a war hero.

UNIDENTIFIED MALE: He's a war hero.

TRUMP: He's a war hero because he was captured. I like people that weren't captured, OK.

(END VIDEO CLIP)

BANFIELD: That's pretty powerful stuff, Errol. But, again, I always come back to the notion that Donald Trump's supporters, he may have hit the nail on the head when he said he could shoot a -- you know, he could shoot a gun on Fifth Avenue and they'd they still back him. Will this affect him?

ERROL LOUIS, CNN POLITICAL COMMENTATOR: Well, it's not aimed at those people. It's aimed at the Republicans who are very uncomfortable with Donald Trump and who are looking for permission, and an argument, and a reason to sort of either act on those feelings or decide whether or not they're going to vote at all. And so Hillary Clinton has made quite a lot of outreach. And she's actually starting to hear it, I think, from some elements of the Democratic base. Why are you spending so much time on these undecided Republicans? Why are you spending so much time on these swing voters? But that's who she has aimed a lot of her appeal at. I think, frankly, it reflects some of why her numbers look a little bit weak. She's been really trying to sort of go out and harvest new voters, rather than shoring up the base. And shoring up the base is really how you pump up your numbers.

BANFIELD: So, Mark Preston, I want to get you in on this sort of conversation about the immigration plan. I took a day off yesterday and now I'm behind. I don't actually know what's going on with Donald Trump's immigration plan because yesterday, yet again, he suggested that maybe there's some room, you know, nothing is finalized. And now I'm a little confused. So just for those who are like me, who maybe needed some down time, I want to play what Donald Trump said last week in the big speech, the hard line he took. Have a listen.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL NOMINEE: For those here illegally today, who are seeking legal status, they will have one route and one route only, to return home and apply for reentry like everybody else. There will be no amnesty.

(END VIDEO CLIP)

BANFIELD: And that's that. And that cost him some support among some key, you know, Hispanic backers. And then all of the sudden yesterday came along and there was an interview that he did on his plane. And here's how that went. Have a listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Can you rule out that one possibility in that determination is (INAUDIBLE) --

TRUMP: I'm not ruling out anything. No, no. We're going to make that decision into the future. OK. Good question. I'm glad you asked it.

(END VIDEO CLIP) BANFIELD: OK. What am I to make of this?

MARK PRESTON, CNN POLITICS EXECUTIVE EDITOR: Well, I mean, look, if he keeps on going back and forth and back and forth and back and forth, and I suppose that we could think that there's probably some kind of internal struggle right now in the Trump campaign about how best to handle this immigration question. It helped fuel his primary and it allowed him to win over enough support, record-setting support, in order to defeat, you know, the 15 other Republicans that were running against him. And that's not going to get you to the general election.

And Donald Trump seems to be going back and forth and back and forth about whether or not he would provide amnesty to those here illegally in the United States who haven't committed crimes. So it looks like, from that interview yesterday, perhaps he is swinging back the other way. And I have to note, as Jeff -- as Jeff and Errol have both noted, you're talking about Republicans now who are a bit concerned about Donald Trump by him going back and saying that he would reconsider it. I think that is a strong sign to them, a strong signal to them -- for them to come on board. So we'll see what happens.

[12:10:23] BANFIELD: Got to use the dry erase board for this one and employ it often. All right, guys, thank you. Errol Louis, Jeff Zeleny and Mark Preston, do appreciate it.

Coming up next, Bill Cosby, he's going in front of a judge. It's happening, folks. In the next hour or so, there is a critical pre- trial hearing. And what is at stake is some evidence that is very damming to Bill Cosby and his lawyers want desperately for it never to see the light of a courtroom. What is that judge going to say? And, by the way, what's the evidence? Tell you in a moment.

(COMMERCIAL BREAK)

BANFIELD: Just over half an hour from now, Bill Cosby is going to appear at a courtroom for a very important pre-trial hearing. It really could make or break the case against him. So just to remind you, because there's so much news and so many faces of women who've made accusations. Bill Cosby is actually charged with three counts of felony aggravated indecent assault. Three of them.

[12:15:04] It's all from a 2004 case. A young woman named Andrea Constand. At the time she was actually working at Temple University, his alma matter. Andrea Constand went to his home outside of Philadelphia for a career consultation. And she claims that Bill Cosby gave her a mix of pills and wine. It's a story you have heard from many women, same kind of M.O. And then she says he sexually assaulted her when she was incapacitated and thus could not legally consent. So today Cosby's team is hoping they're going to be able to achieve one big thing, that the judge will throw out two big pieces of evidence. And they are doozies. Jean Casarez joins me now from live outside of the courthouse in Morristown, Pennsylvania. And here with me live in New York is CNN legal analyst and defense attorney Danny Cevallos.

So first take me through today, Jean, what we expect to happen and what we expect to come out of the hearing today. JEAN CASAREZ, CNN CORRESPONDENT: Well, first of all, let me tell you what we're expecting is Bill Cosby. All the satellite trucks are here. The cameras are set. He could arrive at any time. He's going to be in that courtroom today for this hearing.

And we also possibly are going to get a trial date today. That's one thing -- big thing we're waiting to hear because there's not a trial date at this point. So this would be when a jury of his peers determines if he's acquitted or convicted and then could go to prison. But this is the first time that there has ever been a pre-trial conference where we believe they will argue on what comes in or does not come in to the trail.

Number one, that deposition. It's from a civil case in 2005 when Andrea Constand, the accuser, did not get criminal charges. The D.A. decided not to criminally prosecute in 2005. So she went the civil route. Thousands of pages of a deposition. She does talk about in that -- he does -- exactly what happened between she and Andrea. He really admits everything, but says it's consensual. But here prosecutors have their way. We want to show everybody. It's an excerpt about drugs from that deposition. Bill Cosby was asked, "when you got the Quaaludes, was it in your mind that you were going to use them, these Quaaludes, for young women that you wanted to have sex with?" The answer, only one word, "yes." He then went on to clarify that it was not in general, but it was only a particular woman, a particular point, saying that women like to use them during that time for partying.

The other aspect, Ashleigh, is a phone call. A phone call that was made by Andrea Constand's mother. She called Bill Cosby when finally after a year Andrea told her what allegedly had happened to her. Calls went back and forth. Bill Cosby called Andrea Constand's mother back the final time and it was recorded by Andrea Constand's mother. The defense says it violates the Pennsylvania wiretap law.

BANFIELD: Ah, I'm going to get into that in a moment.

So, Jean, as I hear you, two issues. It's that deposition that's so damming about the Quaaludes, and that phone call where he had that conversation with the alleged victim's mom.

So let me just turn to Danny Cevallos, if I can for a second, to find out what -- what are the odds, what are the chances? So let's talk first real quickly about the deposition. It's a deposition. So what -- why wouldn't it be admissible in this case?

DANNY CEVALLOS, CNN LEGAL ANALYST: The defense has a good point here. Now, the argument is this. Back when the prosecutor, Bruce Cassster (ph), said, look, I'm not going to prosecute you, that wasn't a non- prosecution agreement in the traditional sense. But, instead, when it comes to plea agreements in criminal cases, we use the rules of contract law. So under the laws of -- I'm going to bring you back to law school, everybody. When you talk about contract law, even if there is no valid contract, if I make you a promise and you reasonably rely on it to your detriment, that can be an enforceable promise. And that's the defense's argument here. He never would have given up his Fifth Amendment rights -- BANFIELD: Cosby never would have talked if he didn't think he had immunity.

CEVALLOS: He never would have done that.

BANFIELD: OK. But it wasn't in writing. And, you know, a good lawyer who's worth his salt gets the darn thing in writing.

CEVALLOS: We can debate that.

BANFIELD: OK.

CEVALLOS: But that's a separate issue.

BANFIELD: Second issue is this phone call.

CEVALLOS: Ah.

BANFIELD: So, what's super fascinating is you hear it all the time between the different states, everybody has a different law. One party has to consent within the phone call or two parties have to consent. In Pennsylvania, it's two-party consent. But Mrs. Constand was calling from Toronto, Canada.

CEVALLOS: It's even more complex than that. And it gets more complex every day because of technology. It's changing. We're able to record in ways we never could when these laws were written. This phone call actually began when Cosby called from his home in California to Canada. In fact, no part of it took place in the state of Pennsylvania. So the issue is really two fold. First, was it illegal under Pennsylvania law? And, second, is it admissible? Because if it is an illegal recording, a Pennsylvania court has to decide if it's admissible under Pennsylvania law.

BANFIELD: Can he win this case or -- I mean can she win this case without these pieces of evidence?

CEVALLOS: Yes. I mean --

[12:20:00] BANFIELD: That's a big leap I'm asking you to make.

CEVALLOS: Ultimately it comes down to, as it's said, oath against oath. You know, complainant versus defendant.

BANFIELD: That she said. Yes. He said/she said. (INAUDIBLE).

CEVALLOS: It really does. So without those -- that -- those pieces of evidence, they could move forward, but it weakens the case.

BANFIELD: So picture on the right-hand side in Norristown, Pennsylvania, waiting for Bill Cosby to arrive. We're going to continue to cover it. Danny Cevallos, thank you. Jean Casarez is doing the job for us live outside the courthouse. She'll continue to report for CNN as well. Thanks to both of you.

Coming up next, what a tragic milestone. Chicago, yes, you have heard about the violence there, and now that city has recorded its 500th homicide for the year. We're only at Labor Day weekend. Who's to blame for this being the deadliest year in the past two decades? And maybe more importantly, can this shift? Can the trend change? We're on it, next.

(COMMERCIAL BREAK)

[12:25:15] BANFIELD: Five hundred homicides have happened in nine months and all of it in one city. Chicago reached that tragic number over this last holiday weekend, making this the deadliest year in that city in two decades. And the scariest part about the story of Chicago's bloodshed is that this trend is surging. CNN's Ryan Young spoke with Chicago's top cop about the violence that is plaguing his city. Take a look.

(BEGIN VIDEO CLIP)

SUPERINTENDENT EDDIE JOHNSON, CHICAGO POLICE: Everything is on the table right now in Chicago.

RYAN YOUNG, CNN CORRESPONDENT (voice-over): On this night we joined Chicago's top cop patrolling the streets of Chicago, Superintendent Eddie Johnson, in his new role for less than six months was born and raised in the city and has patrolled the streets for more than 20 years.

JOHNSON: Well, we're at the spot where Nykea Aldridge was murdered.

YOUNG: Nykea Aldridge was a mother of four and the cousin of NBA superstar Dwyane Wade. She was an innocent bystander caught in the crossfire allegedly between two convicted felons, one wearing an ankle monitoring device.

JOHNSON: They looked at each other and the shooter didn't like the way he looked at them. So they took matters into their own hands, you know, grabbed a couple of pistols and started firing. Unfortunately, she got hit.

YOUNG (on camera): So there was no prior altercation, no prior beef, no fight?

JOHNSON: Nope.

YOUNG: It was literally because of a look.

JOHNSON: Yes. And that just shows you how quickly things can jump off into violence.

Here in Chicago, most of the city is fairly safe from these types of incidents. This year, we have a list. Fourteen hundred individuals are on that list. And they are the drivers of our gun violence. They are repeat gun offenders.

YOUNG: How can you police that? How can you police the idea that a look or a FaceBook or Twitter message can turn into a gun battle? JOHNSON: The simple, honest truth of that is, you can't police

something like that. You can't. There's just no way we can predict those types of incidents. People are mistakenly thinking this is a police issue. It's not. You know, these are the socioeconomic ills of the country.

YOUNG (voice-over): The violence in Chicago was peaking at levels not seen since the '90s. More than 90 people were murdered just in August, the highest total in 20 years. The windy city is on pace for more than 600 murders this year.

JOHNSON: It's ridiculous that CPD recovers more illegal handguns than New York City PD and LAPD combined. This year, in 2016, CPD has recovered one illegal handgun for every hour of the year.

YOUNG: All this during a time when trust between the neighborhoods and police continues to be described as extremely tense.

JOHNSON: It's a strained relationship. And it's a lot of work. But I believe, you know, people around here have heard me say, the police department is only as strong as the belief that the community has in it. That's not lip service. I really believe that. We're arresting the right people. Holding them accountable is the issue.

(END VIDEOTAPE)

BANFIELD: I want to bring in the author of that report, Ryan Young, is live in Chicago with us right now. And we're also joined by CNN law enforcement analyst Cedric Alexander.

First, to you, Ryan. Who is this on? Is it on Mayor Rahm Emanuel? Is it on the police? I heard what the superintendent said. Is it on the gangs? Who is responsible for what Chicago is going through and what do the folks there want someone to do about this?

YOUNG: I think if we're being honest, we're going to have to say that everyone's responsible at this point. Everyone who's a stakeholder has their hands on this. And that is the idea that everyone in the neighborhood is talking about. There is massive amounts of poverty in the areas where some of these highest crimes are happening, where the largest numbers are, where people make less than $10,000 a year. But then you add in the gangs and the fact that illegal guns -- more than 6,000 guns have been confiscated -- illegal guns have been confiscated in this city alone. And, of course, like you said, we're not even through the year just yet. And then you add in the idea that the murders are higher than L.A. and New York combined. You look at it and say, something needs to happen. Investment in the poorest communities needs to take place. But all this is a recipe that's going to take some time to bake in because you can't snap your fingers and all this change.

BANFIELD: No. And, Cedric Alexander, a lot of people say, look, if you take a look at the gun control laws in Chicago, they have some of the most strict gun control laws across the country in that city and yet you heard Ryan just say, it blows away New York per capita murders. It blows away L.A.'s per capita murders. There are other cities like New Orleans, St. Louis, Detroit, Baltimore, Newark who have, you know, commensurate murder rates per capita. But when you see these numbers, and Labor Day, we blow past 500. What is the solution if the gun laws are already strict and yet they're confiscating one per minute of the year?

[12:30:02] CEDRIC ALEXANDER, CNN LAW ENFORCEMENT ANALYST: Well, I certainly do agree with Ryan that it's -- the responsibility lies in a whole lot of places across the government, across their community, across their elected officials there in Chicago.