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Lynn: A California judge is expected to rule today on what evidence to make public in the Golden State Killer case. Joseph DeAngelo is accused of at least 12 murders and dozens and dozens of rapes. His attorney says releasing all the documents could taint the jury pool. So I want to bring in our legal analyst. Page Pate joins me now to discuss. Good to have you.

Page: Great to be here.

Lynn: Thanks so much. So why release this evidence before it starts going to trial? What’s the motivation there?

Page: There’s always this tension between the public’s right to know about a case, especially one like this with their many potential victims involved, and the defendant’s right to a fair trial. So his lawyers are basically saying, “Look, the evidence should be limited to what’s presented in the courtroom and we have not had a chance yet to challenge some of these other allegations that may never be presented in court. So if everybody in the world hears about this case before it even goes to trial, then potential jurors who show up to decide the case may be tainted by that information.”

Lynn: It’s going to be such a tough argument when you have national headlines going back decades. I mean this story was infamous. How do you overcome that?

Page: I don’t think they will. And basically, I think what the judge is doing now is he’s getting both sides together as well as lawyers for the media outlets and say, “Look, I’m going to release some of this information, but I’m willing to redact it. I’m willing to take out certain names, certain graphic details perhaps, to try to protect the defendant’s right to a fair trial.” But the public’s right to know does usually outweigh the defendant’s right to keep everything secret, so we’re gonna see something.

Lynn: And when you touch on a few of the things, names or details, gruesome details that may be redacted, what are some other things that a judge may have concerns about?

Page: It’s evidence of crimes that he’s not on trial for. So you know, there’s all these allegations and no one knows yet, are there going to be more? Because other people are being interviewed. They’re looking back through DNA evidence that they’ve gathered from other potential crimes, so if he’s not charged with a crime, but the public hears about a potential crime, will they have that in the back of their minds that they come to serve on the jury for the crime that he’s actually being charged with. It’s a very difficult balance.

Lynn: And we heard all of the district attorneys involved here so careful about answering reporters’ questions about evidence.

Page: Right.

Lynn: They’re really making sure that they rock solid in their case. I mean, why do you think that is? They seemed to have the link, that DNA link that they needed.

Page: Right. Well, that’s exactly why they’re doing that because they don’t want anything to come up to cause this case to be reversed on appeal. And so if you’ve got a very strong case, you’re going to be very careful about what you say in the media. You don’t want to give the defendant some way to appeal a guilty verdict. So I’m also certain the judge has probably put them under not quite a gag order but said, “Look, you need to restrict what you’re saying to the public, otherwise you could put this entire case in jeopardy.”

Lynn: They’re listening, that’s for sure. When it comes to this DNA technology, it’s fairly new. How has it stood up in court so far?

Page: So far, it has stood up. But I do expect Mr. DeAngelo’s lawyers will challenge it. There’s a process that you go through before trial, if you want to challenge particular scientific evidence to show that it’s reliable, that it has a bearing on this case, that’s it’s relevant to the charges, so we’ll see a lot of pre-trial motions and I anticipate that will be one of them, to challenge the use of the DNA evidence.

Lynn: It’s my understanding he hasn’t entered a plea yet.

Page: That’s right.

Lynn: Do you think there’s a plea deal on the table?

Page: That’s possible. Whenever you have a case like this, where there’s strong evidence, you want to avoid a potential life sentence or death penalty, then perhaps the state and the defense can work something out. But given the number of victims in this case, to get everybody on the same page and work this out, I think that may be difficult.

Lynn: Here’s the million-dollar question is really could there be other victims out there.

Page: Oh, absolutely.

Lynn: He’s accused of 12 murders, at least 50 rapes, what do you think the likelihood is, that as we go through this trial, as more evidence, as more people see this trial, since it’s been since the ’70s and the ’80s since it was really in the spotlight, that more people will come forward and say, “Hey, this is what was suspicious. It will link him to other things possibly?”

Page: I think there’s a good chance to that because in this case, we have so many different jurisdictions involved. It’s not like the crimes were focused on one particular city or one particular county. We’re going to many different jurisdictions, some large, some small, so many of these records are not computerizes, they’re still on paper form. You’ve got detectives going through cold case files, I could certainly see new charges being brought.

Lynn: All so interesting, Page Pate, thanks so much for being with us. We appreciate it.

Page: Thank you, [inaudible 00:04:18].

Lynn: You take care.

Transcript:

Brooke: With me now, Jeff Toobin, CNN Senior Legal Analyst and former federal prosecutor, and Page Pate is here, CNN Legal Analyst and Constitutional Attorney. Gentlemen, nice to have you on. And Jeffrey Toobin, I think the piece of the story that really jumped out at me was all of what this judge used. It was Trump’s own words, right? It was Sean…even some of Sean Spicer’s words from the briefing, and the Attorney General, Jeff Sessions, all used against them.

Jeff: That’s true, but the basis of this ruling is not really in the Constitution, it’s really in the laws, is that, you know, it is perfectly…the Federal Government is perfectly capable of removing money from States, but it has to be done by law. Congress has to pass a law that says, “This money is taken away.” What the judge’s ruling said, at its core, is that “This was not within the President’s power, under the laws, to take this money back.”

Now, can he get Congress to pass a law like this? Certainly, he hasn’t had much success getting Congress to do much of anything, so far. But this was really a statement that the President can’t do this alone, the Congress has to authorize it.

Brooke: Well, I mean, you have the President, now. He’s essentially 0 for 3, on these major legal defeats, right? You had the two travel ban issues and then now this one, Page. And my question is, I know he has lots and lots of lawyers, why doesn’t…how does this keep happening?

Page: Well, I think what we’ve seen, Brooke, is that the White House is not always listening to their lawyers and certainly not the Justice Department. Even with this particular case, I think we’re seeing some inconsistency between what the Justice Department says is federal policy and what the White House says. We’ve had at least one sanctuary city say, “Look, you’re telling us we have to follow federal immigration policy, does that mean we can no longer prohibit people from getting information about folks that may be here illegally? Or, do we have to honor detainers?” It sounds like the White House says, “If you don’t honor our detainer request, if you don’t keep these folks locked up, we’re taking away your money.” But that’s not what the Justice Department is saying. So I think one thing that needs to be done, first and foremost, is let’s get some clear, legal, constitutional policy on the books so that these cities know what they’re supposed to do and not do.

Brooke: Okay. Let’s move on to just the fact that the President did, again, rip this federal judge. Jeff Toobin, should he be criticizing judges from his perch as Commander-In-Chief?

Jeff: I think Donald Trump is well within his rights in criticizing federal judges. You know, federal judges, they serve for life, they’re unaccountable, they’re unelected, they are very powerful. And they’re big boys and girls, and they should be able to take criticism, just like anyone else. I think Trump has said some dumb things. I mean, he said that one of these judges a “so-called judge.” Another time he said the judge was unelected. Well, all federal judges are unelected, including Judge Gorsuch…Justice Gorsuch, who was just appointed. So, you know, some of the criticism I think has been off-base, but should he have the right to criticize judges? Absolutely.

Brooke: Page, you totally disagree, tell me why?

Page: I totally disagree. I think this statement and his tweets are incredibly dangerous because what he’s doing is chipping away at the credibility of the federal courts. Now, look, I don’t always agree with federal judges in my practice, but I criticize their ruling, I criticize their opinion, I don’t criticize them. I don’t think that helps anything. And when you say to a judge, “Your ruling is a gift to criminal gangs and cartels,” what are you telling the American people? That if we don’t like a federal judge’s ruling, let’s just ignore it because he doesn’t agree with us. I think that’s incredibly dangerous.

Jeff: He never said that. He never said ignore it. I mean I think it’s important to point out that for all that Donald Trump has said terrible things about judges, he has always, at least so far, abided by their rulings. He has not tried to be like President Andrew Jackson, and said, “We’ll let the courts try to enforce it because I’m not gonna do it.” So, I think, you know, he has abided by these injunctions and these prohibitions by these judges, but he’s…

Page: So far.

Jeff: Well, so far, but, you know, I’m not prepared to criticize him for something he hasn’t done yet.

Page: Well, I think he’s headed in that direction. Clearly, he’s taking steps in that direction. First, he wants to undermine their credibility in the public sphere, so that people out there will support Trump when he says, “I’m not gonna follow them anymore. So, let’s wait until it works its way to the Ninth Circuit. If I like that ruling, I’ll applaud it, if I don’t, I’ll criticize it.” That’s not the way we need to deal with judicial orders in this country.

Brooke: I just wonder what the President’s judge sister thinks, when he does this. Jeff Toobin and Page Pate, thank you all very much.

Page: Thank you, Brooke.

Our firm has represented clients in serious criminal cases for over 20 years. When these cases appear in the news, Attorney Page Pate is often contacted by media outlets for his thoughts on the case.

In this case, Robert Durst was charged with the murder of his friend, Susan Berman, who was allegedly a witness to the prior disappearance of Mr. Durst’s wife. The prosecution in this case has filed a request to record the testimony of witnesses against Mr. Durst in case they die or are unable to testify, because they believe Mr. Durst is a threat to a key witness against him. Mr. Durst’s attorneys are disputing this request because they do not believe Mr. Durst is a threat to anyone because he is old and in jail.

CNN interviewed Page Pate, who is recognized as constitutional attorney and legal analyst, and was asked about the prosecution’s attempt at preserving the witnesses’ testimony. He says “Well, I don’t think there is any reasonable probability that Durst can personally cause any harm to these potential witnesses, but he has a lot of money, a lot of resources. And if he wanted to reach out and actually have these witnesses, if not killed, at least intimidated, it’s certainly a possibility, so I don’t see any harm in recording this testimony as long as the defense gets an ample opportunity to cross-examine these witnesses. And that’s what concerns me. I don’t think they have sufficient evidence about what these witnesses may say. The prosecution needs to give that to them well in advance of this hearing.”

Page is asked what the harm would be in recording the witnesses’ testimony if it is only used in the event of a witness’ death before trial, and he explains how that is a good point and “in a civil case, this happens all the time. Depositions are taken, videotape is taken of a witness being cross-examined, being questioned, well in advance of trial, and then that tape can be used to trial. Different in a criminal case though, because of these confrontation rights that we’ve discussed. I don’t see any harm in them preserving that testimony in case one of these witnesses is truly unavailable for trial by death or otherwise. But they cannot use that tape unless the defense has that right to cross-examine the witnesses that we’ve talked about. And that’s the reason they’re setting this down for a hearing.”

When asked for his speculation as to the outcome of the hearing in this matter, Page responds that he thinks “the judge will ultimately allow the prosecution to record the testimony, but the judge will be very reluctant to have that testimony used at trial unless there is a clear showing that the witness is truly not available, and that would be necessitated by death. You also have to think about the jury’s standpoint in a situation like this. If the prosecution wants their witnesses to come off as best as they possibly can, they want them there in person, they want them there to testify to the jury. So, I think if you’re a jury, or you’re on the jury, and you’re hearing the evidence, you want to see live witnesses. And so, the court’s going to do everything that it can to make sure that happens.”

The key witnesses in this case ultimately did provide recorded testimony against Robert Durst implicating him in the murder of Susan Berman, in case they are unable to attend the trial currently scheduled for January 13, 2020. We will continue to follow this case.

Transcript:

Martha: New court action set for next month in the bizarre legal saga involving real estate heir, Robert Durst, who appeared to confess to multiple murders during a TV documentary. Well. now, the prosecution says, “He’s a threat to a key witness in the new murder trial against him.” His defense team is reacting to the charges saying, “He’s frail, in a wheelchair, and in jail,” asking, “How big a threat could he really be?” Still, the prosecution is pushing to record witnesses on video, so their testimony could be preserved in the event they die or are killed. A judge set a hearing on the matter for January 6. So, joining us now, criminal defense attorneys, Page Pate and Monique Pressley. Thank you both for being with us.

Monique: Thank you for having me.

Martha: So, the premise here is…

Page: Thank you.

Martha: …that Durst is suspected of killing his friend, Susan Berman, allegedly because she was a witness in the disappearance of Durst’s wife. The implication being, he’s already killed one witness, he could kill another. He was also charged in the death of a neighbor, but he was never convicted in either death, and defense attorneys say that this suggestion is just meant to taint the jury pool. Page, what do you say?

Page: Well, I don’t think there is any reasonable probability that Durst can personally cause any harm to these potential witnesses, but he has a lot of money, a lot of resources. And if he wanted to reach out and actually have these witnesses, if not killed, at least intimidated, it’s certainly a possibility, so I don’t see any harm in recording this testimony as long as the defense gets an ample opportunity to cross-examine these witnesses. And that’s what concerns me. I don’t think they have sufficient evidence about what these witnesses may say. The prosecution needs to give that to them well in advance of this hearing.

Martha: Yeah. A lawyer, on earlier, said that this would violate Durst’s right to confrontation at trial and it would also, as Page just mentioned, limit the ability for cross-examination. They would be able to cross-examine on the videotape, but the question is, are things going to come up later during the trial that they won’t be privy to at the time that they do the videotapes in advance.
Monique, what about that?

Monique: I agree 100% with Page and with the lawyer who appeared earlier. There is definitely a violation of the defendant’s right to confrontation against witnesses that are being called to testify, and it’s important that they give over all the evidence that they have, not just evidence that relates to the specific witness testifying. Otherwise, it’s not a fair process. Certainly, any witness can end up dying, or incapacitated, or lose memory, or be under some oath or threat during the time between testifying and the trial, but that’s one of the risks that’s always inherent in the process. I don’t think just because this person is a wealthy defendant that the prosecution can play by new rules.

Martha: Well, the prosecutors are emphasizing that the video would only be used if a witness died before their in-person testimony. So, what is the harm, Page, in taping the testimony just as a back-up in case something happens before the in-court testimony which is scheduled for mid-February?

Page: Well, that’s a good point. I mean, in a civil case, this happens all the time. Depositions are taken, videotape is taken of a witness being cross-examined, being questioned, well in advance of trial, and then that tape can be used to trial. Different in a criminal case though, because of these confrontation rights that we’ve discussed. I don’t see any harm in them preserving that testimony in case one of these witnesses is truly unavailable for trial by death or otherwise. But they cannot use that tape unless the defense has that right to cross-examine the witnesses that we’ve talked about. And that’s the reason they’re setting this down for a hearing.

Martha: All right. So Monique, is there a concern also about just a precedent being set if this is allowed in this case, that it’s going to be an extra step that is now going to be carrying in just about every trial because there is a potential for every witness to be intimidated or killed, I guess.

Monique: Well, absolutely. And this isn’t the first time that this has come up and courts have been clear, whether you’re dealing with a crime that’s involving drugs, or whether you’re dealing… and there’s a lot of witness intimidation there, or whether you’re dealing with a crime like this, where the alleged defendant is very wealthy. You’ve got the circumstance. So, courts are allowed to stretch what can and cannot be introduced here. They can preserve the testimony. They can use it for other things. They can use it to rebut, they can use it to confront other witnesses. But in order for it to be introduced on its own, it has to be the case that the defense has access to all of the evidence that they expect to come forward in order to properly confront and cross-examine this witness.

Martha: All right. So what do you suppose, Page, quick less word, what do you think the decision is going to be after hearing on this?

Page: Well, I think the judge will ultimately allow the prosecution to record the testimony, but the judge will be very reluctant to have that testimony used at trial unless there is a clear showing that the witness is truly not available, and that would be necessitated by death. You also have to think about the jury’s standpoint in a situation like this. If the prosecution wants their witnesses to come off as best as they possibly can, they want them there in person, they want them there to testify to the jury. So, I think if you’re a jury, or you’re on the jury, and you’re hearing the evidence, you want to see live witnesses. And so, the court’s going to do everything that it can to make sure that happens.

Martha: All right. Page Pate, Monique Pressley, thank you both so much.

Monique: Thank you.

Page: Thank you.

Transcript:

Don: I appreciate that. I want to bring in now my experts, my legal analysts, Laura Coates, constitutional attorney, Page Pate and senior political analyst, David Gergen. Good evening to all of you for this special edition of CNN tonight. Page, I want to get your take first. Who had the stronger argument?

Page: Oh, I think the states had the stronger argument. I think it was clear that this particular lawyer from the Department of Justice was either not prepared for the questions that he got or had not really thought through what the key issues were going to be. He was not prepared to deal, I don’t think with the arguments relating to the constitutional challenge. I think he was really caught flat-footed on the issue of whether or not there was even a need for the travel ban, while the administration went back to reconsider the way that they were dealing with these immigration issues.

Don: Oh wow, okay. So, let’s listen to a little bit of it because August Flentje, the government lawyer was peppered with questions, tough questions by the three judges. Here’s one exchange.

August: And these proceedings have been moving quite fast and we’re doing the best we can. I can site…

Michelle: You’re saying that the proceedings are moving fast, but you appealed to us before you continued in the district court to develop the record. So, why should we be hearing this now if it sounds like you’re trying to say you’re going to present other evidence later?

August: Well, I was just about to at least mention a few examples.

Don: Interesting. So, he had to defend an executive order that was written when the Attorney General wasn’t even confirmed, written with no input from the Justice Department. Did the White House hurt themselves by moving too fast to get this order signed? That’s for you, Laura.

Laura: Well, I think they did because, of course, you had Sally Yates who was just fired a few weeks ago for having the same argument of, “I don’t know how we’re going to be able to defend this case,” not that there was an ultimate conclusion, but the same argument that she had back then was, “This is difficult to actually be able to defend,” and you saw that today in the court. But most importantly here, what you had is lack of preparedness with respect to one, really, primary issue. What was the substantive, factual basis for having these seven countries named? The government assumed they were going to be able to say, “Our biggest gun is a national security issue here. The president has a priority to do what he wants with national security. And you have to take our word for it.” And the court said to him today, “Is it hypothetical or is this a real live national security concern?” And they did not have the evidence there to support it yet.

Don: It’s very interesting. I also want to bring in Mark Preston, our executive editor of politics here, as well. Mark, before I get to you, I just want to bring David Gergen in. David, as you were listening to this, as a lay person, who do you think made a better case?

David: Well, I must tell you, Don, I was at a dinner and had to rely on various excerpts and accounts since. But my impression from all of this is the judges asked both sides very tough questions and the Washington State provided better answers. And there’s a general sense I think, out there in the press right now that the judges showed, two of the judges at least, out of the three, showed a lot of skepticism toward the government’s case. What that means, if in fact, that’s the way it comes out, and this is the two democratically appointed, if it comes out that they…that this court upholds what the district court did and then the government appeals to the Supreme Court, in order to get it turned around so that the original, the district court temporary restraining order, is dismissed. In order to get that, they’ve got to get… The government has to get five out of the eight votes at the Supreme Court. That may be an uphill battle in a court that’s closely divided. And if the government then loses, the ban is ended while the courts then wrestle over the substance. So, this could be a long process, but it also means that the government, and especially the man sitting in the Oval Office, is going to be pretty darn angry.

Don: Interesting. I think that the first night that this happened, that Laura, I think you said that this was going to take a while. This was not going to end overnight or any time soon. But let’s, I want to listen a little bit more. Mark Preston, this is Noah Purcell, the Washington State lawyer, he opens his presentation. Watch this.

Noah: It has always been the judicial branches role to say what the law is and to serve as a check on abuses by the executive branch. That judicial role has never been more important in recent memory than it is today. But the President is asking this court to abdicate that role here, to reinstate the executive order without meaningful judicial review, and to throw this country back into chaos.

Don: So, President Trump, Mark, has been very critical of the courts calling Judge Robart, a “so-called judge,” essentially, holding the court responsible if there is a terror attack. Is Purcell asking the courts to push back?

Mark: You know, I believe so and, in many ways, we have seen Donald Trump, Don, do this on multiple occasions with this one judge, over a period of two days because he didn’t like the district court’s ruling. We also know that he has a history of attacking judges when he believes the judges are not going to rule in his favor. And I thought it was an interesting tactic by Washington State to come out and really try to lay the groundwork that there are three equal…co-equal branches of government. And it’s the judiciary’s role to look at these laws and interpret, whether they are sustainable or not, and whether they are legal or not, and that they, in many ways have to be there in order to try to keep some kind of oversight, so to speak, of not only of the executive branch, but also the legislative branch as well, Don.

Don: All right, panel. Thank you very much.

Man 1: I’d like to challenge the Attorney General, who I admire enormously, and I think did a great job here, make the case for how you think this is unconstitutional as it applies to a family in Yemen that has never been in the United States, that is simply seeking a visa, that has no constitutional right to be in the United States. How is this regulation unconstitutional as it applies to that family?

Anderson: Attorney General Ferguson?

Ferguson: Yeah, as we discussed on Friday night, professor, our claim is brought on behalf of Washingtonians and businesses and the impact on Washingtonians here. So, I understand the overall impact and reach of Judge Robart’s decisions. But if one looks at our complaint, and looks our motions, and our briefing carefully, what we’re talking about, what we’re asserting, why we’re bringing this claim is on behalf of Washingtonians who are adversely impacted. Yes, of course, Judge Robart’s decision has a broad impact on people all around the world. I met with some of those folks today at CTAC airport, but our claim is grounded in the adverse impacts on Washingtonians.

Anderson: I do want to quickly bring in our panels. Page, I saw you shaking your head. About what?

Page. I think there’s more to it than that. I think the family in Yemen still does have an argument because there are two constitutional arguments that the Attorney General in Washington has raised that I think, really, limits government action more than it protects people. So, while the family in Yemen may have a really hard time making a due process argument, we can still make an establishment clause argument, we can still make an equal protection argument because those parts of the constitution apply to everyone and they limit government action.

Man 2: No, they don’t. They do not apply to foreign nationals who have never been in this country and have no rights under American Law.

Page: You cannot pass an unconstitutional law, you cannot sign an unconstitutional executive order if it simply incidentally affects someone who is outside of the United States. That still doesn’t allow you to do something unconstitutional.

Man 2: What I think was passed here. A law was relied on, passed by Congress, that says…uses words like, “any,” “any classification,” and it speaks in terms of classifications to protect America in the sole discretion of the President. And in these national security arenas, and that’s what this is, this is not just immigration, it’s also national security, the courts, not counting Judge Robart, give massive deference to the President. I know that because I have been on the losing side suing the NSA over their violations of the fourth amendment here in this country. It is a massive level of deference. This judge did not accord the executive branch that deference. The violation of separation of powers here is by Judge Robart’s, tweets aside from the President. You may not like the President lashing his tongue out at judges, but I’m hearing a lot more people upset about that when the President of the United States did it in the State of the Union to the Supreme Court sitting in front of him. I’m, of course, referring to President Obama, and then doing it again the month before the ruling on ObamaCare.

Page: It’s not the tweets. Regardless of how much discretion the President has, and he does have a lot of discretion, both Congress has given him that discretion, the Constitution has, but he cannot violate some other provision of the Constitution. He does not have that much discretion.

Anderson: We got to take, we got to take a quick break. We’re going to hear more from our panel. Attorney General Ferguson, I know you got to go. I really appreciate your time. You got a hearing tomorrow.

Ferguson: Absolutely.

Anderson: I’m going to let you go prepare.

Ferguson: It’s a deal. Thank you very much.

Anderson: Everyone else, if you can stay with us, we’re going to continue this conversation after a quick break. We’ll be right back. Page, do you agree with that, that the State of Washington doesn’t have real standing?

Page: No, but I do think that’s going to be the big issue, in fact, I expect almost the entire hour of oral argument to be focused on the standing issue. There are two ways a state can have standing. And one is you can show a direct harm to the state, an economic interest, and that’s what happened in the DAPA case. Texas was able to show that, “We’re going to have to spend money for driver’s licenses, allowing these folks to stay in the country is going to cost us money so we’re harmed by it. So, we get to sue.” And fifth circuit court of appeals accepted that and that’s why they were able to deal with that case. But there’s another argument that was made in that case, but never ruled on, and it was what Mr. Ferguson was alluding to earlier. We’re representing people in our states. We’re representing institutions in our states. And who else is going to argue for them? Because, the only other alternative is you’re going to have a bunch of individual lawsuits in district courts across the country and absolutely no uniformity on this very important issue.

Anderson: We’re going to have to end with there. I appreciate all our panelists. Thank you very much