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LEGAL VIEW WITH ASHLEIGH BANFIELD

Tsarnaev Attorneys Try Again for Change of Venue; New York State Assemblyman Sheldon Silver Arrested by FBI for Corruption; Vanderbilt University Gang Rape Case Examined

Aired January 23, 2015 - 12:30   ET

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


(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN ANCHOR: Welcome back to Legal View and this just in the CNN Secretary of the State John Kerry announcing in Davos, Switzerland that he has a plan to visit Nigeria soon. That is of course with the militant group Boko Haram has massacred entire community most recently killing as many as 2,000 people.

Kerry announced the visit in Davos at the World Economic Forum while giving an address on countering violent extremism.

Boston bombing suspect Dzhokar Tsarnaev's attorneys are making a third push to move his trial outside of the State of Massachusetts. They say that finding an impartial jury there is really bordering on the impossible.

The defense has filed documents that say 68 percent of people who've been asked prospective jury pool think that he's guilty. And at 69 percent of those asked have a personal connection to that attack at the marathon. Some of the connections are simply stunning like the doctor who treated both Tsarnaev and his bother before he died. That doctor is apparently in the prospective jury pool.

Story of conspiracy, corruption, and politics and one of the most powerful man in all of the State of New York. That guy was arrested and charged because the allegation that he used his position to obtain and are you ready for this, average of $4 million in bribes and kickbacks, 4 million.

Plus talking about New York State lawmaker Sheldon Silver, now if you don't know that man he is a respected politician, assembly speaker for more than two decades in New York. But yesterday he looked like a common criminal after he was hauled away in the back of an FBI car. One of the biggest fish that central prosecutors in Manhattan have ever charged and in he goes to the court house.

United States Attorney raised and answered a lot of questions that people had asked for years.

(BEGIN VIDEO CLIP)

PREET BHARARA, U.S. ATTY. FOR SOUTHERN DISTRICT OF N.Y.: What exactly does Speaker Silver do to earn his substantial outside income? Well the head scratching can come to an end on that score too because we answer that question today as well. He does nothing. As alleged, Speaker Silver never did any actual legal work. He simply sat back and collected millions of dollars by cashing in on his public office and his political influence.

(END VIDEO CLIP)

BANFIELD: Mr. Silver is also accused of siphoning state funds and he's facing up to 100 years in prison. He's out on bond right now but $200,000 worth of bond said he has absolutely no plans to resign.

(BEGIN VIDEO CLIP)

SHELDON SILVER, NEW YORK STATE ASSEMBLY SPEAKER: I'm happy the issue is coming to be aired in the legal process. And I am confident when all issues are aired I will be vindicated.

(END VIDEO CLIP)

BANFIELD: I want to bring in CNN Legal Analyst Paul Callan and Criminal Defense Attorney and a former prosecutor here in New York and then also Judge Alex Ferrer former host of Judge Alex.

OK you two the charges are pretty incredible. I mean, just quickly two counts of honest services fraud, one count of conspiracy to do that, one count of extortion under the color of official right, and one count of conspiracy to do that.

When you're going after a guy this big you really need your ducks in the row don't you Paul?

PAUL CALLAN, CNN LEGAL ANALYST: Well, as an old saying if you're going to shoot at the king you better be ready to kill the king. And I got to tell you this guy in New York is the king of the lawyers. He is the most powerful probably lawyer in New York behind the scenes, public doesn't know his name because you're not trying cases. But he is controlling legislation about how cases get tried in every court in New York, and affecting businesses around the world. Extremely powerful man.

So yeah the ducks better be on the row.

BANFIELD: So you're a judge sitting on a bench and in front of you is the speaker, a very powerful man and extraordinary lawyer and you know that. Does that make a difference when you look an adjudicated case like his?

ALEX FERRER, JUDGE FORMER HOST, "JUDGE ALEX": To me absolutely not. In fact these kinds of cases I applaud the U.S. Attorney for pursuing this and the Department of Justice for pursuing this because I don't think that we have enough prosecutions of people in positions of power.

And if I were his judge and he is guilty he'd be in a lot of trouble because unlike some judges I view white-collar crime as some of the most serious crimes. And lawyers will tell you two different things one, judge his an elderly man, well too bad.

BANFIELD: He's 70.

FERRER: Yeah, he's 70. So, you know, please give him a light sentence. Too bad, I guess that just means he got to live most of his life without getting caught for however long he was doing this.

Second argument to make is, he's not a violent criminal, he didn't pull a gun on anybody or rape anybody that is true, but if you do not treat white-collar crimes seriously there is no deterring effect because somebody says, oh wait a minute if I get away with this I get well up to now...

BANFIELD: Two to four years.

FERRER: ... $5 million how much would you've gotten if he didn't get caught?

BANFIELD: Might be worth the time. So...

FERRER: And if I get caught...

CALLAN: Hey, but let's remind everybody he's presumed innocent at this point

FERRER: Of course.

CALLAN: And they've been investigating him for years. And you know something, this is the first time he's been charged. So...

BANFIELD: Can I ask you something?

CALLAN: ... his is going to be a hard case for the prosecutor to win.

FERRER: Well, that's why I said he's guilty. He wouldn't want me as a judge.

BANFIELD: This New York, OK. And if I'm sitting in Nebraska right now, if I'm in California, if I'm in Oregon or any other state in the union. Should I care as much about this because I looked to Congress and they're not allowed to have other jobs. Our congressmen and our senators are full-time in their jobs, there's no opportunity for that tunnel of graft.

CALLAN: I think they should -- yes.

BANFIELD: The state is safe. That's not the case.

CALLAN: They should -- people should care about this because state legislatures across the nation are considered to be part-time jobs. And these lawyers who most people who's serving these legislatures are lawyers, they're running law firms on the side and they're taking fees on the side and if they're using their influence in the legislature to get higher fees, then that can be criminal.

FERRER: Absolutely. In fact... CALLAN: And so this is an important case on that issue.

FERRER: I would say that the part of government that is most understaffed is the part that reviews and prosecutes public corruption. That's where you really need to beef up. We're getting the robbers, we're getting the people who commit the daily crimes, but the ones who are pocketing the millions and millions of dollars those are the ones that are not getting caught.

BANFIELD: That needs to be - But then again these are all allegation side until they're proven in a court of law.

Paul thank you, Judge Alex also thank you. Thanks so much for coming in.

FERRER: Thank you.

BANFIELD: In other news and this is tough.

One of the most prestigious universities in the country is absolutely rocked by some of the most disgusting gang rape allegations you may ever have heard. And if you think you've heard them all, the football player stories and the like this one just might take the cake. Yes it's football players, yes it's a young woman, this time though photos and videos that just may tell the story that the victim herself cannot.

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BANFIELD: Especially if you're the parent of a young daughter, this next story I'm about to tell you is extremely disturbing on a number of levels and it's a warning as well that some of the content we're about to provide here at CNN is very graphic. It is a trial involving four former Vanderbilt University football players. They're accused of aggravated rape and sexual battery from two summers ago. The alleged victim is taking the stand -- she actually took the stand on Thursday and began telling her story. She and her friends arrived at a bar in Nashville that night. One of the suspects named Brandon Vandenburg, a man she had been dating was there. She testified that he gave her a blue drink that she only sipped -- that was after three other drinks. But after that blue drink, she said that was the last thing she remembered until waking up in a strange room several hours later.

As a CNN policy we're going to keep her unidentified but we have this sound from the alleged victim's testimony that came yesterday saying that Vandenburg filled her in on memory laps this way.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: He told me that I had gotten sick in his room and he had to clean it up and that it was horrible and that he had to spend the whole night taking care of me, and that it was horrible. I apologized, I was embarrassed.

(END VIDEO CLIP) BANFIELD: But what really happens to that young woman is beyond a nightmare. Instead she was carried unconscious into a university dorm room and she was abused in unspeakable ways. The reason we know this is because many of the revolting acts were actually captured on three of the suspects' cellphones.

I want to go HLN Legal Analyst Joey Jackson and I want to bring back Judge Alex Ferrer, former host of Judge Alex.

This story is so -- I can't even tell you the details, I can't go into detail on television. It would be even difficult to write this in a newspaper or magazine piece because it's so graphic.

JOEY JACKSON, LEGAL ANALYST: Yes, it is.

BANFIELD: What is alleged to have happened to this young woman? Joey Jackson, so often we have this stories and they're he said, she said because there is no cellphone video or pictures. In this particular case, she has no memory. She does not even know the next day that she was raped. She did not go to get medical help or get a rape kit and yet, there could very well be a conviction in this case.

JACKSON: I think a conviction is very likely, Ashleigh for a number of reasons. First of all, even in cases where it's he say, she say, you have something very compelling and it's called reason outcry evidence. So, in other words you may not have a memory then but when you start conferring with other people and recognizing what happened to you, you certainly -- they come in and they can testify. But here you have something very compelling and that's what Judge Alex will address momentarily and that's the video in this case.

Now remember the other day they show that video in court. Now video is undeniable. And when you have video where you're showing the private parts of a person, where objects -- again, we won't discuss the specifics -- are being inserted into her where -- various things are being done to her and that's depicted on the video, that's compelling and make no mistake about it. We're talking aggravated rape, minimum 15 and you can get up to 60. In addition to that what's aggravated raped? It's not only rape wherein, you know -- I don't need to say not only because there's penetration, but there's more than that, you're taking an advantage of helpless victim.

BANFIELD: Face down.

JACKSON: And you're doing it -- face down...

BANFIELD: Face down and....

JACKSON: And you're doing it while aided and abetted by another. And in addition to that, last point, and that's this. When you four defendants, right? And Judge Alex, I'm sure this happened in your court on many times. What happen is you have a sequence (ph) of the trial like in this case. You try two and you try the other two, but why is that? Because you have finger pointing where once are going to say it wasn't me...

JUDGE ALEX FERRER, FORMER HOST "JUDGE ALEX": It was you.

BANFIELD: It was him.

JACKON: So you have compelling evidence in this case and, you know, what I don't what will happen but a conviction is likely.

BANFIELD: I've been walking on eggshell all morning long with CNN executives, with our legal team. What can I say about this because I hate to say it in this cases, fact matter, they make a huge difference between charge of rape or a charge or sexual sort of something else in some state.

FERRER: Absolutely.

BANFIELD: (Inaudible) cross perfect example. But I will say this. I can now tell you and it's hard even suggest that she did suffer a penetration, a rape involving a bottle. The suspects were laughing on tape while doing this. They were flapping her allegedly which left bruises. There was some allegation that she was about to wake perhaps and that's why the slapping happens that left bruises on her body. When she woke up the next morning, her knee was gashed open, her shoes where at different parts of the block that she lived on, and she had no memory, and she had vomit in her hair and knew nothing.

JACKSON: And, Ashleigh, I know you're going to Judge Alex but think about how a jury digest this. Think about how they respond when they see information like this that's being depicted on the screen in front of them, it's certainly not good.

BANFIELD: Can I tell you this? The video was played -- I'm going to tell you this. This is from Nashville, Tennessee from the reporting there. One of the jurors gasped and another put both of her hands to her mouth, so we know now what the jury -- what affects the video in this photograph we've had. 30 photographs and videos, some of them have been deleted as well.

Judge Alex I want a bigger picture her for parents who're watching this for young girls who maybe headed to colleges or might be in college now. So often these cases have been he said, she said because she didn't have a lot of memory, there were no pictures, and it becomes just a battle of the wits or the lawyers.

FERRER: Right.

BANFIELD: When you have this kind of evidence more and more going forward. Does it change the nature of gang rapes, campus rapes and who's more believable when it is just he said, she said, and there are no photographs. Will this change the playing field now that we know good God this really happens, it's awful as some of the victims say it does.

FERRER: I think it will have an effect, absolutely. And you have to imagine, Ashleigh that this is coming to the head because these guys were dumb enough to video tape it. If they hadn't video taped or taking pictures, it would have been another he said, she said except that she probably wouldn't have even said anything because she wake up with no memory at all.

BANFIELD: She began to hear the rumors the next day.

FERRER: But the rumors were because the videos were being passed around. So if they hadn't done this, so you have to ask yourself how many times does this happened across the country at universities where the guys aren't so drunk as to video or take pictures or they tell everybody to put their phone away. It's -- being a father of a girl about that age, I don't know what I would do these guys if they did...

BANFIELD: (inaudible) this girl to do, she was with friends at a bar, she was of legal age and it was something left in her drink.

FERRER: Not take drinks.

BANFIELD: This has nothing to do with her.

JACKSON: Not take drinks from people.

FERRER: Not take drinks people and it will effect how people look at these types of cases. But that can be bad too because remember the Rolling Stones' case out of Virginia Tech...

BANFIELD: Yeah.

FERRER: ... which was fake accusation of rape.

BANFIELD: Rolling Stone Magazine case, yeah.

FERRER: And the dupe won...

JACKSON: This doesn't appear to fake though.

FERRER: The Rolling Stone, yeah...

(CROSSTALK)

BANFIELD: Oh that was University of Virginia.

FERRER: In this case, I think would be a conviction.

JACKSON: I agree.

BANFIELD: It is so difficult -- and if there's one thing we can say if you're parents out there, please talk to your children. Please let them know. Case after case after case that happens and yet we have another case that's developing. Tell your children that this kind of behavior isn't funny, this is not acceptable. This is life altering for everyone, including those who go to prison for years for it.

Joey Jackson thank you, Judge Alex...

JACKSON: Of course.

BANFIELD: ... thank you for that. We'll continue to follow the outcome of this case. And up next you may have seen it by now. It is incredible at the box office. American Sniper and it's gaining attention all around the world. That's great for the film. But what about the case that still ongoing, the one that's being built around the man who's alleged to have murdered Chris Kyle, the legendary American sniper.

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BANFIELD: The new Clint Eastwood movie "American Sniper" simply exploded at the box office unlike every previous film about the Iraq war, but since this is Legal View, we're not going to talk about ticket sales. There's something else afoot that's pretty big too.

The movie tells the story, you'll know right now I'm sure, of the real like Navy SEAL named Chris Kyle who was able to kill more than 160 people as a sniper during his four tours of duty in Iraq.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: ... on a cell phone watching convoy, over.

UNIDENTIFIED MALE: I think he's reporting troop movement. You have a green light, your call, over.

UNIDENTIFIED MALE: Maybe he's just calling his old lady.

(END VIDEO CLIP)

BANFIELD: So in real life, Chris Kyle himself was killed but it was an odd circumstance. It happened four years later and it happened at home at gun range in Texas. Allegedly, a fellow vet with PTSD murdered him. The man who's facing the allegations is Eddie Ray Routh and he's due to go on trial for this next month, February 11th, by which time, undoubtedly millions upon millions of Americans will have seen Chris Kyle immortalized as not just a hero, but as a legend.

In fact, he is called the legend over and over again. So can this man, on your screen, get a fair trial in this case? I'm gonna ask my lawyer on this one, CNN's legal analyst Paul Callan. It's a great pleasure whenever you have a high profile trial, but when you have a high profile trial, a Hollywood movie and a hero like Chris Kyle, is that a trifecta (ph) of injustice for this guy?

PAUL CALLAN, CNN LEGAL ANALYST: We'll, you know, this is sort of the perfect storm of pre-trial publicity or trial publicity we should say here with the Academy Award nominations and the popularity of this film. I think frankly that most judges will look at this carefully and as the trial day gets closer and closer, there's still the possibility that it could get put over to a later date when publicity subsides.

BANFIELD: Does that matter? I mean the story is out. The toothpaste is out of the tube. Do we really forget about these things or is a change of venue -- I mean it's a kind of a two-part question that has no answer, I hate to say. Change of venue is going to take you somewhere else in Texas. It's not going to take it to Poland, would any of that make a difference?

CALLAN: No. I don't think change of venue would make the slightest bit of difference. I do think that putting it farther away from sort of the popularity of the movie and the hype around the movie might help a little bit but everybody in Texas is going to know who American Sniper was about -- that it's about Kyle and -- frankly I'm not so sure it is the publicity hurts the Routh defense, because remember this is not a defense of I didn't do it.

The defense here is that he was -- it was caused by post traumatic stress disorder, and in a way, the theme of the movie sort of emphasizes that a lot of our veterans have been hurt very, very seriously, psychologically by being at war.

BANFIELD: That's a great point...

CALLAN: So, I don't know. If I'm a defense attorney, I'm thinking maybe I'd want to try the case while the movie is out there.

BANFIELD: Or maybe even show some clips that Chris Kyle himself suffered immensely from that and sought treatment.

CALLAN: And maybe would have understood, you know, the severity of the disease.

BANFIELD: So look, we've been talking about PTSD for a long time now. We've been at war for the better part of the decade and a half now. And there are still so many people who maybe don't have a full understanding of it and surely plenty of jurors who come in from all facets of life who may think it's kind of hokey (ph) science, who may not know the extent of it. And you're gonna try to build a case on insanity based on PTSD, I mean it's hard enough to build a case of insanity.

Now you're going to use some science that some people say is junky?

CALLAN: We'll, you know, I think the attitude is changed about this, particularly with war veterans. And by the way, this is not new. You know, back in the World War I, you know, what they used to call it, being shell shocked.

BANFIELD: Shell shock.

CALLAN: We always had names for this when people came out of war having been harmed by the experience and I think now we've got a scientific way to evaluate that...

BANFIELD: Without question. It's just a matter of how many people actually known that all the way down into that jury pool.

CALLAN: We'll I...

BANFIELD: I mean it is real and it is awful. It's just how many people understand.

CALLAN: Let's see if they can learn about it at the trial. BANFIELD: Paul Callan, thank you for that. I appreciate it. And thank you everyone for watching.

My colleague, Wolf Blitzer starts after this quick break.

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