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LEGAL VIEW WITH ASHLEIGH BANFIELD

Latest Election Polls Examined; Candidate Statements Discussed; Colorado Rape Sentence Questioned. Aired 12:30-1p ET

Aired August 12, 2016 - 12:30   ET

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


[12:30:02] BORIS EPHSTEYN, TRUMP CAMPAIGN SENIOR ADVISER: But that specific poll had him lower. 87 days to go. Dukakis was down by 17 national coming out of the -- Dukakis was up by 17, I'm sorry, nationally coming out of Democratic National Convention. We all know that he got destroyed, walloped in your words by George H.W. Bush.

So, early days, there are polls that have Trump tied in the Florida and effectively tied in Ohio, the key state there. So, we're not worried at all. We'll continue on message of national security on that communities, where big national security ...

ASHLEIGH BANFIELD, CNN ANCHOR: OK. So that's the question.

(CROSSTALK)

BASIL SMIKLE, EXECUTIVE DIRECTOR, NEW YORK DEMOCRATIC PARTY: On Monday in Ohio on battling medical jihadist.

BANFIELD: Basil just made a great point.

SMIKLE: Which is what?

BANFIELD: The national security message.

SMIKLE: Your message on national security is that the president is the founder of ISIS. That's not a national security message.

EPHSTEYN: Well, listen, the national security message is that ISIS has sprung up under Barack Obama, under Hillary Clinton. Well, they also have -- no ISIS has 2,300 U.S. Humvees that were left -- somehow left by the U.S. government for them to use. That does not a play well, that's a little better.

(CROSSTALK)

BANFIELD: ... by the Iraqi army, not by the U.S. (Inaudible) them over, let's be really clear.

(CROSSTALK)

EPHSTEYN: We pulled out of Iraq. We signaled that we would and that was all done by Obama and Hillary. Libya's a failed state. Syria's a failed state. ISIS exists because of the failed policies.

SMIKLE: And you're probably going to Bush. But I will tell you directly.

EPHSTEYN: Yeah. You can go to Bush.

SMIKLE: Because of Obama and Clinton. Was that Obama has eight years.

EPHSTEYN: You are being the standard bearer of your party and to come out and say that the president of the United States, the sitting president of the United States is a founder of a terrorist organization. And that the nominee of the Democratic Party is a co- founder of the same terrorist organization is not only irresponsible, it is reckless and it's disgusting in my opinion.

EPHSTEYN: Well that's issue of national security.

SMIKLE: That is not foreign policy. If you go back to an earlier point. She is being transparent. There is a constant drip of these e- mails that have gone on over a year now and will continue to go on.

(CROSSTALK)

BANFIELD: Let me ask you a question about that because, you know, if you're talking about true transparency, Hillary Clinton promised when she went be to the state department, there would be a complete disconnect between the Clinton Foundation and the state department and we're seeing e-mails now that suggest Cheryl Mills, her chief aide, had absolutely no disconnect whatsoever, that she boarded a train on her own dime, give her that, and volunteered to go to New York to help job interview for some of the top positions at the foundation.

EPHSTEYN: Right.

BANFIELD: I hear the Democrats and Clinton's campaign saying, but she volunteered and she paid her own ticket. What about the whole appearance problem that Hillary Clinton's top person is actually working with the foundation? But not the way Hillary Clinton ...

SMIKLE: Well, it's not really working with the foundation. Look, if ...

BANFIELD: That's work.

EPHSTEYN: Come on. Let's just be honest.

SMIKLE: I'm absolutely being honest. Look, these are folks who has known each other 20, 20 some odd years plus. So if the foundation asks someone who is in their circle to say, hey, look, I need your advice on this person, I need your advice on a particular hire. Every, if you've worked for an elected official -- I've worked for a lot of elected officials ...

BANFIELD: You would say, I can't.

SMIKLE: No, no, you may not ...

(CROSSTALK) SMIKLE: She being loud is not is not a talking point. So, the point is, if you work for an elected official for a period of time, there are folks who were in your circle, big sort of kitchen cabinet, that people who were in your circle and will be for a long time and you seek those individual's advice over the course of time. But if she did it on her own dime, she did it at her own time and just basically gave advice on a job interview ...

EPHSTEYN: She also met with Walmart and Amazon executives.

BANFILED: It sure gives an appearance though, you got to admit. I got -- I have to switch over to this letter from, you know, prominent Republican to the RNC.

EPHSTEYN: Having a fun morning, Ashleigh.

BANFIELD: Aren't we? I would not want to be you guys. I have to say, I don't want to be me either.

EPHSTEYN: You know, we're having a good morning so welcome back.

BANFIELD: But -- oh, Boris, you're so adorable for continuing to come back. This letter is super troubling. These are prominent Republicans, former elected officials, former gubernatorial -- some governors, former delegates. These are people who have written to the Republican National Committee saying, enough just since the convention.

I'm not talking about the last year, I'm talking about the last three and a half weeks. Just since the convention they put together a list of what they see as infractions by Donald Trump. That he's attacked Gold Star families, that he's urged Russia to intervene in U.S. elections. That he's urged gun owners to take action against Clinton. That he is repudiated our NATO obligations, that he has shown interest in preemptive use of nuclear weapons.

That he said a total ignorance of basic foreign policy. You're telling me, I need water. He has admiration for violent foreign autocrats. He has refused to disclose any of his past taxes. He's repeatedly lied about course of issues and is vicious and vengeful with his attacks on Republicans.

It sounds like it's Hillary Clinton's list. Again, these are Republicans saying to Priebus and the rest of the RNC, stop spending money on him. Save the rest of us. Save the down ballot. Spend all the money over there. Is that going to happen?

EPHSTEYN: Absolutely not.

BANFIELD: Why not.

[12:35:03] EPHSTEYN: And Priebus and Trump's advisers specifically said that's not going to happen. These folks are entitled to their opinion. We just need to look in some of their relations with the Clinton camp. A lot of folks who have been Republicans have relations with the Clinton camp.

It's a vengeful attack. That sounds like a pretty vengeful attack and start going after. The standard bearer report -- let me finish now.

SMIKLE: Go ahead.

EPHSTEYN: We have 14 million people voted in the primary for Donald Trump. The voters have spoken. More voters than ever in the history of the GOP primary. Republican Party is absolutely coalesced behind Donald Trump. These folks, you know, they're an outliner and they have the right to do so.

Now, I would like to point something out though.

BANFIELD: Real quick.

EPHSTEYN: Well, so that was -- rather was say, these were not just job interviews. Cherry Mills also met with executives from Walmart and Amazon. Amazon by the way pays about zero taxes under the Obama- Clinton ...

(CROSSTALK)

SMIKLE: It is apparently Donald Trump which is why propriety.

EPHSTEYN: ... and this pattern of pay the price is why the clear reason not be allowed to go back to White House.

(CROSSTALK)

EPHSTEYN: She should (inaudible) she goes to White House.

SMIKLE: See, this is my problem with the Trump talking points.

BANFIELD: And this is the last points.

SMIKLE: This is my problem with the Trump out points. This notion of "lock her up", the calling the president the founder of ISIS, that's just completely irresponsible. And there's no gloat to Congress about ...

EPHSTEYN: She lied to Congress about releasing her e-mails.

BANFIELD: Just let him finish Boris.

SMIKLE: There's no growth from the Republican primary. He's not growing his base of support. It's shrinking and that is -- that is what I think that Republican ...

EPHSTEYN: And Hillary Clinton continues to lie. She lied to Congress by releasing her e-mails.

BANFIELD: Do you know what I need?

EPHSTEYN: She hurt (ph) herself repeatedly.

BANFIELD: I need a 24 hour network just for me and us to have a conversation.

EPHSTEYN: We'll have a lot of fun.

BANFILED: Just me so I can finish this. I love you both. Thank you so much. Have a great week. Appreciate it.

SMIKLE: Thanks Ashleigh.

BANFIELD: We're going to get back into politics in just a moment. But first, we got this other story. And I'm sorry, but there has been yet another campus rape and it's a big, big headline like the one from Stanford where the sentence that's causing some serious outrage.

A Colorado judge now sending a rapist to jail for just two years but not even really two years in jail. He gets to go to school during the day if he wants to. He gets to leave jail every day to go to work if he wants to. It's kind of like what you might call sleep over jail. And I'll tell you what happened in this case, next.

(COMMERCIAL BREAK)

[12:41:31] BANFIELD: We brought you the story back in June of Stanford student Brock Turner who got six months in jail for raping a woman behind a dumpster, a woman who was completely unconscious. And today we have a similar story sadly to tell you about. And this one comes from Colorado but it has the same sickening formula, male student, college student, drunk female college student raped after a party.

I want to show you a picture of Austin Wilkerson. He's 22 years old. He's a former University Of Colorado student and now he is a convicted rapist as well. He could have been sentenced for his crime between 4 and 12 years and all the way to life, in fact, in prison. But instead, he is going to be spending the next two years in something that you could kind of call sleep over jail.

In legalese it's called work release, meaning he gets to leave jail during the day if he wants to go to school and if he wants to go to work, but he has to come back and spend the night behind bars. Two years of that.

The judge's name is Patrick Butler and Judge Butler also sentenced him to 20 years of sex offender specific intensive probation, and that includes treatment and therapy and a lifetime registration as a sex offender with the chance of getting off the registry after 20 years. Judge Butler was pretty transparent with his thought process. According to Boulder newspaper, the "Daily Camera", the judge said this and I am going to quote him. "I've struggled to be quite frank with the idea of, do I put him in prison? Mr. Wilkerson deserves to be punished, but I think we all need to find out whether he truly can or cannot be rehabilitated."

Sentences, you can imagine, is not sitting well with the people who prosecuted him and wanted him behind bars. And it is sure as hell not sitting well with the victim or her advocates and her family members and friends.

Dan Simon joins me now along with CNN Legal Analyst and Defense Attorney Joey Jackson. Dan, first to you for the reporting. Austin Wilkerson's stories were everywhere except one place. They changed all the time. So what ultimately did he finally admit to doing?

DAN SIMON, CNN CORRESPONDENT: Well, you're right, Ashleigh. He said a lot of things. He first told a university investigator that he made repeatedly advances on the victim and that she rebuffed him and then he proceed to call her an expletive expletive.

In talking with his friends, he said that the victim was passed out and then he let his hands wander. And then as soon as he gets to trial then he says that she's not drunk and this was totally consensual and then finally when you get to sentence time he says, yes, I did it and I'm sorry. So obviously he's been all over the map. This is what prosecutors what to say about the sentence. Take a look.

(BEGIN VIDEO CLIP)

CARYN DATZ, DEPUTY DISTRICT ATTORNEY: This is a victim that was targeted because of the state that she was in. She was heavily intoxicated.

LISA SACCOMANO, DEPUTY DISTRICT ATTORNEY: He definitely in our opinion. And as we argued to the court throughout the process has given whatever version of the story of that moment is best going to serve him.

(END VIDEO CLIP)

SIMON: And during the trial, the defense actually suggested that the victim lodged this rape claim so her parents would not be angry about her grades, Ashleigh.

[12:45:00] BANFIELD: Dan, stick around for a moment, if you will.

Joey Jackson, I want to bring you in on this. There's a detail that I think is really important and I think it's not something that anyone should take lightly in this case, especially the judge.

This young man, Austin Wilkerson, promised this survivor's friend that he would get her home safely. They trusted him because he promised them that she was so inebriated, and he's an acquaintance of hers. She's he not a stranger. He's an acquaintance. I will get her home safely.

JOEY JACKSON, CNN LEGAL ANALYST: And that didn't happen though.

BANFIELD: No. And he texted them to say, every thing's good. I've got things, we're all good.

JACKSON: Meanwhile, he sexually assaulted her.

BANFIELD: So there's that extra piece of dirt involved in this case. And yet the pre-sentencing report from the probation department recommends no punitive sanction whatsoever citing in impressive acceptance of responsibility for his conduct and he's being characterized as a striking degree of accountability. And yet on the stand he says, yeah, she's kind of into it.

JACKSON: So you can wiggle out of it and than when there's no way out, you accept responsibility, say sorry and we can all go home. That's unacceptable. First, to the pre-sentence report.

Now, pre-sentence report is something that's put together which includes the offense, includes the background, includes the circumstances, who the defendant is. And judges are not bound by any pre-sentence report. In fact, many times they reject the pre-sentence report and do what they think is appropriate.

If the system's going to work, Ashleigh, and I've said this before, it needs to treat everybody in a way that's respectful of the process. Now, in terms of how it treats the victim, it's deplorable. If anybody -- I would ask anybody to read that victim impact statement and see what it does to you, see the feeling you get. If we're going to have a system that sticks to punishment, rehabilitation and deterrent, we can't have sentences that disregard the victim and that flatly disregard the essence of what the criminal justice system is all about.

BANFIELD: It's distressing we're having this conversation again.

JACKSON: Again and again.

BANFIELD: And here we go again and again and again and again and again. And maybe the more conversations we have, the fewer we'll have to say again.

JACKSON: I hope so.

BANFIELD: Joey, thank you. Dan Simon, thank you as well. There was this recent campus survey by the way that found that 28 percent of the students said that they were sexually assaulted. That is a really high number, and It's higher than most of the statistics that float around, like one out of five.

The University of Colorado Boulder has provided a statement and they've said this. "We provide mandatory sex assault prevention training to all students and have a fair and impartial investigative process that respects the rights of the complainants and respondents. We have robust resources working to prevent and respond to sexual assault. We need everyone on our campus and in our community to be educated and engaged."

Coming up, the rape survivor. Her own powerful words. She made a plea to the judge. Boy, you've heard this before, right? And then there was the prosecutor who worked so hard to get justice. Does that prosecutor feel like there was any in this case? I'm going to ask her next.

(COMMERCIAL BREAK)

[12:51:53] BANFIELD: You heard the story of the Colorado rape case and now I want you to hear from the survivor who stood up in that court room and actually addressed in her words what she wanted to see come out of this process. I'm going to get you to listen to her words because obviously she wants to be anonymous and there's no cameras on. So I'm going to read her statement for you. This came to the judge. In her impact statement she said.

"His life is ruined. Oh yeah, and it's not like my life isn't ruined or anything. It's always been about the rapist since the assault. As the victim of this sexual assault, my life has been ruined socially, psychologically, academically and financially." She went on to say that, "I feel like those dogs who become afraid or don't like being around certain people. In my case, I'm afraid of a acquaintances since this sexual assault was an acquaintance rape".

There was a big voice in that court room for her. And one Lisa Saccomano, she was one of the prosecutors who fought for justice in this case. Didn't quite worked out the way that she had hoped, I'm assuming. Lisa is my guess now, live.

Thanks Lisa for talking to me today. What did you want to see happen in the case?

SACCOMANO: We were hoping to see a prison sentence in the case. Obviously we feel that prison is appropriate for someone who commits a rape of this nature and then particularly given the aggravated facts here.

BANFIELD: And he got night time prison -- I mean, he got night time jail. But what would you have preferred? Like what length of time and what other kinds of punishment?

SACCOMANO: You know, we didn't argue for a specific length of prison. It was to the judge's discretion if he chose to impose prison, to do a minimum of four to 12 years up to life. But prison is a lot harsher environment than the county jail. And it certainly wouldn't be providing for him to be released during day to attend school or to go to a job. So really We believe on a fundamental level that prison is an appropriate sentence for someone who is a convicted rapist.

BANFIELD: Lisa, what's the disconnect here? The probation department, they do their pre-sentencing report, they interviewed him after the fact, they get sort of into his head and figure out what kind of guy he is and what can we do for him or against him. And they said that he had a striking degree of accountability and yet, you know, your side, prosecution side said are you kidding me, this guy just kept on lying all the way through. How does it come to this when a judge finally says, you know what? Maybe some night time jail and that's it?

SACCAMANO: We respected the probation recommendation, the issue with that is, that they are relying on interviews with the defendant. And on what he is telling them. And this individual like many sex offenders is a highly manipulative deceptive individual who had a history of giving whatever account of the night of the rape was best going to suit him in that conversation.

[12:55:02] So, you get to sentencing when you have already been convicted and you're going to get the most leniency if you accept responsibility for what you did. They weren't aware of his trial testimony, and that's where the judge and that's where the prosecutors come in. And it is our job to argue to the court that this person is not contrite and that this person is not genuinely accepting responsibility for his crime.

BANFIELD: That's what so frustrating to read the trial testimony and then see the pre-sentencing report and the ultimate result.

Lisa, thanks for your work in the courtroom, thanks for coming on today to talk about it. I hope we don't have to have this conversation again and again and again, but maybe since we had it, it will chasten some folks out there, it's back to school time after all. Thank you Lisa.

SACCAMANO: Thank you.

[12:56:04] BANFIELD: I'm just going to end this by saying, you're not believe the statistic but a national organization that uses the justice department own statistics had said that only three out of a 100, three out of a 100 rapists will ever spend a single day in prison. The other 97 will walk free.

Thank you for watching "Legal View" everyone. My colleague Wolf starts after this quick break.

(COMMERCIAL BREAK)