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LEGAL VIEW WITH ASHLEIGH BANFIELD

Steven Avery Case Examined; Avery's Former Attorney Interviewed. Aired 12:30-1p ET

Aired January 6, 2016 - 12:30   ET

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


ASHLEIGH BANFIELD, CNN ANCHOR: One former student who sued the St. Georges school once before says that she was raped repeatedly, but the original suit was dropped, however, and then a gag order kept her from being able to say anything about it.

(BEGIN VIDEO CLIP)

[12:30:13] ANNE SCOTT, FORMER STUDENT AT ST GEORGE'S: I have been gagged for the last 25 years, and I wanted to say how damaging those gag orders are. They seal in the trauma. When you're raped, you're voice is stolen. Your soul is taken away, and all that a gag order does is to preserve the institution's reputation and seal the trauma inside the victim making at that much harder to reach out and get help.

(END VIDEO CLIP)

BANFIELD: Lawyers who represent these other victims say that they're calling for an independent investigation into the alleged abuse, and the cover-up as well.

Coming up next, even if you have not seen it, your friends are probably talking about it. It's the Netflix's series "Making a Murderer" and when we come back, a fantastic opportunity to talk to someone at the center of it all, the lawyer who defended the accused killer Steven Avery, a lot of questions for him. Where does this story go next?

(COMMERCIAL BREAK)

BANFIELD: It is the true crime saga of a man who some suggest was wrongfully convicted not once but twice, and now people just cannot stop talking about the Netflix's series, "Making a Murderer." The show follows Steven Avery who spent 18 years in prison for rape before being exonerated completely by DNA. And then after his release, Avery faces trouble with the law again. Take a look.

(BEGIN VIDEO CLIP)

[12:35:02] UNIDENTIFIED SPEAKER: Steven did, do a lot of stupid things, but he always owned up to everything he did wrong.

UNIDENTIFIED SPEAKER: I had a good life until all of the trouble started.

UNIDENTIFIED FEMALE: Penny Bernstein was everything that Steven wasn't, and so I just think of the two of them side by side.

UNIDENTIFIED MALE: There was no real investigation done by the Sheriff's department.

UNIDENTIFIED FEMALE: The Sheriff told the D.A. not to screw this case off. He wanted Avery convicted of his crime.

UNIDENTIFIED FEMALE: There isn't one iota of physical evidence in this case that connects Steven Avery to it. In fact the Sheriff was told by the police, you have the wrong guy.

UNIDENTIFIED MALE: Steven Avery spent 18 years in prison for something he didn't do.

UNIDENTIFIED FEMALE: 18 years.

UNIDENTIFIED MALE: 18 years.

UNIDENTIFIED MALE: DNA had come through indicating that he had not committed the crime.

UNIDENTIFIED MALE: Law enforcement officers realized that they had screwed up big time.

UNIDENTIFIED MALE: We were getting ready to bring the lawsuit for $36 million Manitowoc County at South and the Sheriff and the D.A. would be on the hook for those damages.

UNIDENTIFIED FEMALE: They're not handing that kind of money over to Steve Avery. I did tell them to be careful, because they are not even close to being finished with you.

UNIDENTIFIED MALE: Do we have a body or anything yet?

UNIDENTIFIED FEMALE: I don't believe so.

UNIDENTIFIED MALE: We have Steven Avery in custody though?

UNIDENTIFIED FEMALE: The disappearance of Teresa Halbach's remains a mystery. Mr. Avery's blood is found in the inside of Teresa Halbach's vehicle.

UNIDENTIFIED FEMALE: Steve everybody's listening. What are you going to say today?

STEVE AVERY: I'm innocent.

UNIDENTIFIED FEMALE: A convicted, Steven Avery will spend the rest of his life in prison.

UNIDENTIFIED FEMALE: And we found a key, and that key was scrubbed and his DNA was placed on it.

UNIDENTIFIED FEMALE: That's really strange.

UNIDENTIFIED MALE: What's going on here? (END VIDEO CLIP)

BANFIELD: The truth will haunt you, and this story will haunt you as well. A series of a 10-year odyssey for two young filmmakers as they followed Avery's story and the show has sparked massive viewer interest in this case leading to petitions by more than 300,000 people both for presidential pardon and for gubernatorial pardon Wisconsin. The filmmakers are on CNN's New Day earlier to talk about the response.

(BEGIN VIDEO CLIP)

MOIRA DEMOS, CO-DIRECTOR, "MAKING A MURDERER": WE made the series to try to start a dialogue about the doubt in the system.

UNIDENTIFIED FEMALE: Well you certainly did, didn't you?

DEMOS: But, you know, we had no idea that so many people would watch and be engaged and want to get involved.

LAURA RICCIARDI, CO-WRITER AND CO-DIRECTOR, "MAKING A MURDERER": As Moira said, you know, we just hoped that this would start a dialogue and people would feel drawn into the series and want to engage with it. So I mean certainly, there, you know, we're surprised by the action people have taken and how quick this responses come.

(END VIDEO CLIP)

BANFIELD: I was one of those people drawn into the story, and all I wanted to do throughout the entire piece was talk to his attorneys who are remarkable. And I am so fortunate to be joined right now by one of them, Dean Strang. Dean, thank you so much for joining me. Oh, boy, I have 17 hours of questions for you, but I'm going to start with some of the most significant developments since the series really started getting attraction, and that is that a juror has come out on the "Today" show via the filmmakers saying that this person, this juror was not comfortable. He did not think that Steven Avery was guilty. He felt coerced into it that they were trading votes in the jury room, and that they feared for their safety if they exonerated him saying that they were worried about what the police might do. Does any of that have any bearing under Wisconsin code in terms of reopening this case?

DEAN STRANG, FORMER ATTORNEY FOR STEVEN AVERY: Well, I'm aware of the information. I don't think I want to comment on it now in the context of this case. I can say generally, Ashleigh that courts are very reluctant to get involved in what happens inside of a jury room. Anything inside, you know, behind that door is almost off limits for later inquiry by courts. Now, if something external makes its way into the jury room, that's a different -- that's a different matter altogether with courts, but it's very difficult to set aside a verdict later on the basis of something that was internal to the jury deliberations, even if those are very heated, and even if they involve compromises that we might like to think are not made.

BANFIELD: Yeah I hear you, and it happens a lot. In fact, there have been cases where chairs have been thrown, and yet those verdicts, they stand.

Let's move on to the pardon possibilities, because I think there's a lot of information out there that people need to understand. It may not work in the favor that they hope, and that is that the president of the United States cannot pardon a State convict.

[12:39:58] So this as I understand it, and you're the lawyer, and not me, would fall directly to the governor of Wisconsin, and his ability to pardon in that State, Scott Walker. He has indicated he will not do so, but he has the ability to do so, doesn't he? And if the State will, turns that way, do you see it in Wisconsin as a possibility that Scott Walker might change his mind?

STRANG: I don't know. I certainly wouldn't speak for the governor or anyone but myself. I will say that Governor Walker has been very clear since the very earliest days of his first term that he did not intend to use his executive clemency powers at all. He commented again last night specifically about this case. But that fits into the broader pattern of a stated unwillingness to exercise the powers that historically have belonged to the executive to correct mistakes in the courts, or simply to exercise a degree of sovereign mercy. And that power is the executive's. It's also the executive's not to use.

BANFIELD: I want to ask you about Brendan Dassey, not your client, but clearly integral to your case. It is very disturbing for those of us who worked within the contours of American jurisprudence for a living everyday to see an attorney make a statement like we saw in this documentary about a client, heretofore, he had not met, spoken to or assessed, yet made this following statement live on television. I'm going to read it for the audience. "We have a 16-year-old while morally and legally responsible was heavily influenced by someone who can only be described as something close to evil incarnate." That is Len Kachinsky, the attorney who was appointed to Brendan Dassey.

Help me out here, Dean. But I see that as a potential opening for ineffective assistance of counsel. I know that the appellant attorneys and those who were working to try to reopen his case are going to the Feds to try to launch a federal habeas corpus, saying that its constitutional rights to an attorney were violated. Help me understand if we have a constitutional right to an attorney or to a good and loyal attorney? There's the difference.

STRAND: Well, we have the right to the latter. I don't know if I can help you to understand that. Mister Kachinsky's statement stands and falls of its own weight. But the right to a lawyer is something more than just the right to the companion on a way to the prison gate. It's the right to somebody who will be loyal to you, who will work on your behalf, and who will do so effectively.

BANFIELD: But that fit. I mean, he -- you really think that they might have a case here? Do you think they might have a federal case to suggest that this kid didn't have what the constitution guarantees him to have in Len Kachinsky, and that his trial verdict might be thrown out? And while you're at it, answers that makes any difference to your client, Steven Avery. STRANG: Brendan Dassey is in federal court. He's in federal district court in Milwaukee. That case is briefed and pending. I don't know what the outcome will be. I know that the point you're making is one of a number of issues that his, now lawyers, have raised and briefed. Whatever the outcome for Brendan in federal district court or on appeal, if the losing side does appeal, it won't have a direct impact on Steven Avery's case. He has been through the ordinary challenges that one can bring to a conviction. So he has realistic hopes, I think lie in the category of newly discovered evidence.

BANFIELD: All right. Well, while we're talking about evidence, I did not have the luxury of sitting through all of the litigation over the course for the decade. But I've seen most of the documentary. I have read everything I can about it. And there are those who complained that the documentary did omit several evidentiary issues. I want to throw a graphic up on the screen if I can just to point out some of the information that did not make the documentary that your client's DNA was found on the latch under the hood of the victim's car. That the bullet with her DNA found on it was in the garage. I believe that was in the documentary. I'm not sure why that's a complaint. Then Mister Avery called the victim's cell phone three times using that blocking feature.

[12:44:58] These are issues that are important, because if you're looking for justice, the picture has to be complete. Do you think that those issues, absence in this documentary have made a planted documentary, as the current Sheriff clearly says, it's true that it is a planted documentary.

STRANG: I don't think that's a fair charge against the filmmakers who in Steven Avery's trial alone had something like, something, you know, between 200 and 250 hours of evidence to sift through. They gave that trial a relatively lavish three or four hours or whatever it was for a film, and then another hour to the Dassey trial. No one would watch 240-hour film of a trial. So necessarily, the most significant points, evidence, and argument that the state had should have been included and where the most significant points, evidence, and argument from the defense should have been included, and where less significant points, I think necessarily had to be omitted.

The point you raise, there was DNA from Steven Avery on the hood of Teresa's car. That could have been transferred from his skin. It also could have been transferred from any other surface that had his DNA, a toothbrush just for example. Or as, and there was testimony on this from the glove of the division of Criminal Investigation investigator who didn't change gloves after handling the inside of the car which included Steven Avery's blood, and then touched the hood to pop the hood of the car.

So, any surface with his DNA could have transferred it to the hood. It takes explaining and certainly less significant in the end than blood.

BANFIELD: I have seen many cases where transfer evidence is a big issue, shoddy lab work. Transfers within DNA labs have definitely happened accidentally. It's part of the documentary as well. I want to ask you about the very last line of the documentary. And it's Steven Avery's own words, very simple. He says, "The truth will come out sooner or later." I don't know, Dean, if you've had a chance to keep in contact with him on a semi-regular basis. But do you have any idea if Steven Avery still has hope?

STRANG: Jerry Butting and I both have been in contact with him since he was sentenced. On and off, we've seen him as recently as last month in prison. He's stoic. The Steven Avery you see in this film is the Steven Avery that I've come to know, and then Jerry Butting has come to know. He's stoic, but he's got hope. And that hope waxes and wanes depending on the day in which you catch Steven Avery.

BANFIELD: May I be so bold as to say you are one of the finest attorneys I've seen litigate in a courtroom. I -- From Episode 1, I could not believe the work that you and Jerry did. And you should be commended for that. It's excellent work. What America is based on, and I thank you for that, and I thank you for your time today, Dean. Thank you.

STRANG: Thank you for the compliment.

BANFIELD: Steven Avery by the way was wrongly imprisoned for 18 years, and sent back to prison even after he was let out for this murder. Did the courts get it right the second time around? Or was there planting of evidence? We're going to dig a lot deeper into that right after this.

(BEGIN VIDEO CLIP)

SANJAY GUPTA, CNN ANCHOR: Jake Olson doesn't look at football like his teammates. In fact, he can't see the game at all. The long snapper for the University of Southern California is blind.

JAKE OLSON, USC FOOTBALL PLAYER: When I was eight months old, I was diagnosed with a rare form of eye cancer called retinoblastoma. When the doctors found my cancer, it was completely taken over the left eye. Their greatest fear is the cancer is spreading through the optic nerve to the brain.

GUPTA: To save his life, doctors removed that eye. Jake endured chemotherapy and laser treatment to save the right one, but the cancer kept coming back.

OLSON: The doctors -- about eight times of that happened to me and, you know, the doctors finally said, "Listen, there's -- we pretty much exhausted all treatment options."

GUPTA: Jake was 12 when he found out that he would lose his other eye.

But former USC head coach, Pete Carroll, heard Jake's story. He knew the boy was a huge lifelong fan, and invited him to meet the team.

OLSON: That team was there for me in my darkest hours. It's something that I will always be grateful for.

GUPTA: Despite losing his eyesight, Jake played football in high school. OLSON: A lot of it is just field.

GUPTA: Last year, he brought that talent to USC as a walk-on player for his beloved team.

OLSON: I went in to play football with the mentality that I have nothing to lose. Life is unfair, but it's taught me to keep fighting.

[12:49:53] GUPTA: Doctor Sanjay Gupta, CNN, reporting.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN ANCHOR: We are continuing our discussion on the case of Steven Avery, the subject of the Netflix series, "Making a Murderer." Avery was exonerated after being wrongfully imprisoned for 18 years.

Some time after his release, he was then accused of murdering a young photographer. Avery maintains that he was framed by the sheriff's department associated with his first arrest, and he was suing them, and he made that claim to HLN's Nancy Grace back in 2005.

(BEGIN VIDEO CLIP)

NANCY GRACE, HLN: Mr. Avery, do you feel like you are being framed in any way?

STEVEN AVERY: Yes.

GRACE: Why?

AVERY: Because every time I turn around, the county is always doing something to me.

GRACE: In this case, do you think that you are being framed?

AVERY: Yeah, I am being setup because of my lawsuit, and everything else.

GRACE: Because of your previous incarceration you're suing?

AVERY: Yes. They set me up then, and then...

GRACE: Well, do you think it has anything to do with her car being found at your auto shop?

AVERY: No. I tell you, it's because of my name and what they -- what I went through from them.

(END VIDEO CLIP)

BANFIELD: What he went through from them landed them a big suit, and these two know a lot about the case. CNN Legal Analyst Paul Callan along with Laura Coates, former Assistant U.S. Attorney for the District of Columbia.

Laura, let me start with you, real quickly, we just talked with their -- with Steven Avery's one of his attorneys, and about the possibility of the new case being launched, a federal case in the case of Brendan, the nephew.

Brendan's case is integral to Steven's case, they were co- conspirators, they, you know, allegedly and now convicted of carrying this murder out together. But, a federal habeas corpus case based on the statements made by his attorney, very leading statements suggesting this kid was guilty before it a reason, met (ph) with him, what are the chances that will actually get attraction?

[12:55:12] LAURA COATES, FORMER ASSISTANT U.S. ATTORNEY, WASHINGTON D.C: Well, you know, the statements that he made, I mean, they're very, very incriminating and they're very bad for Brendan.

However, the court's going to look at the overall trial, they're not going to look at an isolated statement. They're looking to see if the breadth of the trial reflected whether or not this person had good counsel. Was this counsel fair? Were they loyal to this person? Is it somebody that was trying to actually advocate on behalf of Brendan?

Looking at the whole case, I think there might maybe evidence that he actually was will and trying to be an effective counsel for this young man, but you have to get over the hurdle of that confession. That confession is very, very damning and you have to address that point in whether the lawyer did a good enough job of trying to slice and dice why that was a bad and forced coercion.

BANFIELD: But he never even spoken to his client before he said...

COATES: Right, he never did.

BANFIELD: Yeah, clearly the -- he is responsible for this crime(ph).

Paul, what about this, if either these cases ends up back in the courtroom, if either of these cases are successful in a motion for tossing out the verdict and retrial, ostensibly there would be a brand new prosecutor because the old one had to step down after some really dirty "texting" and "sexting", well I mean it's just really filthy stuff, disgraced, new prosecutor, new mindset among the electorate that elects prosecutors, would it make a difference?

PAUL CALLAN, CNN LEGAL ANALYST: I don't know, because bear in mind that Avery had a very favorable sort of mindset from his jurors going in because they had reversed the other conviction, the previous one and he -- that everybody knew the sheriff's office framed him in that.

So, now, he's going to say, I got framed twice, in a lot of respects that's a harder defense to sell.

And, so this case is so interesting, I fully understand why people are obsessed with it.

BANFIELD: An obsession is absolutely the right word. Laura, thank you. Paul, thank you. And call me when you get to that last episode.

CALLAN: All right, I will.

[12:57:00] BANFIELD: Thanks everyone for watching. My colleague, Wolf Blitzer, starts right now.

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