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PRIMETIME JUSTICE WITH ASHLEIGH BANFIELD

Lawsuit Filed; Bizarre Murder Case: Disturbing Texts Revealed

Aired May 10, 2017 - 20:00:00   ET

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


(BEGIN VIDEO CLIP)

JOSEPH HAGERMAN, MURDER SUSPECT: I love my son and I took his life.

ASHLEIGH BANFIELD, HNL PRIME TIME JUSTICE HOST: A father who decapitated his own son and claimed he was insane will soon walk free.

HAGERMAN: The thoughts in my head were telling me that my son was an anti- Christ and I needed to kill him.

BANFIELD: Locked up but getting help for eight years, doctors say he should go home, but how do we know he`s really cured?

HAGERMAN: Satan has the power to put voices in your head.

BANFIELD: How do we know he won`t relapse?

A frequent headline, flipped on its head. A former police officer says he was fired for not shooting a black man who refused to drop a gun.

UNIDENTIFIED MALE: I would just make contact from outside.

BANFIELD: Speaking for the first time to news week, city leaders fighting back citing other reasons he was fired.

UNIDENTIFIED MALE: Illegal searches, the use of profanity with citizens, contaminating a crime scene.

BANFIELD: So, who`s telling the truth, the officer of his bosses?

Just when you thought you heard it all, a man says he`ll need to drop his pants in court for the jurors to believe his defense. He`s accused of

choking his girlfriend during oral sex without using his hands.

Did a father kill his own son because his girlfriend didn`t like kids?

UNIDENTIFIED MALE: What do you want me to do? Abandon him and ditch on his life?

BANFIELD: Damming texts show up in court.

UNIDENTIFIED MALE: It doesn`t matter what I want because we both know you won`t do it.

BANFIELD: Prosecutors say it proves their case that he killed the boy to keep the girlfriend.

UNIDENTIFIED FEMALE: You`re not willing to do anything for me so stop saying it.

BANFIELD: Note to future inmates, when in court, don`t act like this. Maybe hold back on the talking, too, and definitely refrain from laughing,

especially if you`re accused of murder.

Sucker punching a woman in her 70s, be on the lookout for the sick and twisted thief who stole a car this way. And from the worst of humanity to

the best. Rescuers save eight baby ducks when they tumbled down a drain. Wait until you see the reunion with their mom.

(END VIDEO CLIP)

BANFIELD: Hello, everyone, I`m Ashleigh Banfield, this is PRIME TIME JUSTICE. If you think it doesn`t gets much worse than killing your own

child, you may never have heard the story of Joseph Hagerman. Not to be too graphic here but the details matter because Joseph Hagerman`s crime was

the worst of the worst. He killed his own 5-year-old boy by cutting off his head with a kitchen knife. This as the boy was putting his toys away.

And my guess is that if you were the judge, the jury, even the executioner, you may have given him life behind bars, maybe you may have given him

death. But the people of Virginia got a whole other bargain with Joe. He only served eight years, and he could be walking out of his institution

tonight, right now, actually, even as I speak. He used one of those insanity defenses where you tell the judge you don`t know right from wrong.

Here he is back in 2009 telling our affiliate WTKR what made him do it.

(BEGIN VIDEO CLIP)

HAGERMAN: I love my son and I took his life. The voices were telling me - - the thing -- the thoughts in my head were telling me that my son was an anti-Christ and I needed to kill him. Satan has the power to put voices in

your head and put thoughts in your head that are not there. He has the power to do that.

(END VIDEO CLIP)

BANFIELD: That was shortly after his arrest. And shortly after the interview, he was carted off to a mental health facility for treatment.

Within three months of the killing, prosecutors agreed to a plea deal with Hagerman and his attorney, not guilty by reason of insanity. They all

agreed that he suffered from schizophrenia, and according to court documents, he just went ahead and waived his right to a prelim hearing, a

grand jury indictment and even a jury trial. And so off he went to the institution, just like John Hinckley and Andrea Yates and others who have

spent sometimes decades in their respective hospitals but not Joe Hagerman. Joe is out in eight years. This week mental health experts testified he

was ready to leave the facility. And though prosecutors were furious and opposed to this, the judge let him go.

He does have to follow certain conditions like he has to take his meds, he`s got to go to therapy, he has to live part time in an adult foster

center but on the weekends? Well, that`s a different bargain. He gets to go home. His parents` house, which happens to be right next door to the

house where he cut off his own son`s head eight years ago. Steve Helling is the Senior Writer at People Magazine, he joins me from Orlando. Steve,

a lot of people are against the insanity defense for this exact reason. That someone who did something this horrible just eight years later walks

among us. What is the response to this story?

STEVE HELLING, PEOPLE MAGAZINE SENIOR WRITER: Well, exactly what you just said. I mean, this is not just some run of the mill killing. This is

actually torturing your son by cutting off his head with a kitchen knife. And so when prosecutors agreed to this whole idea of, you know, not guilty

by reason of insanity, I don`t think any of them expected that eight years later while the boy would still be 13 if he were alive today, eight years

later that dad would be walking free. And so, the response to this is horrifying. You know, people are horrified about this. Not just the

average person, but the prosecutors, as well.

BANFIELD: All right. Talk to me about the prosecutors because I`ve always been of the understanding that they matter. They matter in this whole

calculations, the doctors matter, what they say about the treatment that their inmate has been actually receiving and the society to which he`s

going to be released, they matter in the voices of the prosecutors. And if the prosecutors were so mad, why did it not matter how they felt?

HELLING: Well, unfortunately, the prosecutors didn`t have any experts, any psychiatrist or anybody who had spoken with this man who thought that --

they didn`t have anybody who said he needs to stay in jail. The prosecutor said that they didn`t have any mental health experts that said he needed to

stay in jail. So therefore the judge didn`t have any expert medical, you know, opinions that said that Hagerman belonged behind bars.

BANFIELD: And it was the psychologist and psychiatrist, two people in those professions who made the determination that he`s safe and we`re all

safe with him among us, is that correct?

HELLING: That is correct. And you know, the thing about that is, you know, I can understand why they may say that, but for those of us, I

wouldn`t want him living next door to me and I can`t imagine that you would want him living next door to you.

BANFIELD: You got that right.

HELLING: So, you know, I don`t -- I don`t think anybody was really thinking about the society want him out after this horrible crime which he

admits to having done.

BANFIELD: Hold for a second, Steve, I want to bring in Forensic Psychiatrist Dr. Daniel to this story. OK, you better have something good

for me on this one because I always felt like it was a very large group of people who made the determination, people like Hinkley were stuck in an

institution for I think 35 years before they got out. And by the way, Reagan didn`t die, and certainly, it wasn`t his own child, and certainly,

it wasn`t that kind of a heinous, cruel, and unusual crime. Do you see this as making sense?

DANIEL BOBER, FORENSIC PSYCHIATRIST: I do and here`s why. Your response to this is purely emotional, and if you ask anyone what their gut response

is about this case, they would like to see this guy executed on the spot. People are very uncomfortable with the insanity defense. They don`t like

the fact that someone who commits a crime could walk free, especially after eight years. But the fact is in a society, we acknowledge the fact that

when people don`t have a rational understanding of the acts they commit, and they don`t know the difference between right and wrong, that they are

not criminally responsible.

BANFIELD: OK, you got me -- you had me at hello. You might not believe by the tone of my voice tonight that I`m actually in favor of the insanity

defense because I believe people like Andrea Yates really do need to be rehabilitated if they can be, but I also don`t believe that it happens in

eight years, not something this awful. And I don`t understand why Andrea Yates who`s now been I think a decade and a half in a facility and Hinkley

who just got out I think in September after the 1981 assassination attempt of Ronald Reagan, they stay there for decades trying to get better. Why is

he so speedy?

BOBER: So then, what amount of time is enough? This guy has a severe mental illness. He was judged to be insane. He has been a model patient.

He`s been out on 48-hour passes without any incident and problem. He`s going to be monitored when he leaves --

BANFIELD: He`s a model patient because he`s in an environment where he doesn`t have a choice. He has to do what they say, he has to take his

medicine, he has to go to treatment. He`s in a facility. Out here in the real world, you can skip your meds, you can go all Tad Cummins across the

country if you want and go under the radar if you want, and then what happens to the rest of us if he`s not regulated?

BOBER: As the old saying goes, trust but verify. When he is released, he will be monitored twice a day by psychiatrists, by social workers, and he

will have to prove that he remains stable enough to be in a free society.

BANFIELD: He`s moving back on the weekends into his parents` house right next door to the scene of this -- and I can`t call it a crime. How about

that? I can`t call it a crime because a crime wasn`t committed with this little boy having his head cut off with a serrated kitchen knife. Isn`t

there some possibility that that would be a constant reminder; this could trigger something in him that could set up a whole different set of mental

illnesses that could set off dangers to his parents, his neighbors and anybody else he comes in contact?

BOBER: And that is why he will be closely monitored to prevent that from happening.

BANFIELD: You`re going to tell me every second of the day you can closely monitor a guy out in society? I don`t buy this.

BOBER: Can he be locked up for 40 or 50 years? How much time will be enough to make you comfortable that he should be released?

BANFIELD: I just -- no, I don`t have the answer to that but I do feel like eight years doesn`t sound right, and I don`t know your profession, but

eight years, I matter here. I`m speaking for the people out there who are scared and who see this horrible act as needing some kind of retribution,

punishment, maybe rehabilitation but that eight years can`t fix a head that messed up.

BOBER: But I think what you`re responding to is your belief that fundamentally, he should be punished but the way the law looks at him as a

mentally ill person who is not responsible for his conduct because he did not know the difference between right and wrong.

BANFIELD: Got you. OK. So give me the rehabilitation. Eight years? Honestly?

BOBER: There -- it`s arbitrary. Every case we look at different risk factors. We look at what we call static factors and dynamic factors. You

know, for example, static factors would be things like what kind of childhood you had or, you know, were you exposed to violence? So we are

making risk predictions based on the act itself, based on his conduct since the act occurred and based on his likelihood of future day --

BANFIELD: If you live in Virginia Beach, Virginia, just know that he`s going to be there.

BOBER: Out on the loose.

BANFIELD: On the loose. I mean, because there is no other way of putting it. You said trust but verify but my God, he`s on the loose. Joey

Jackson, get me off the ledge in some way here because I`m actually angry at the prosecutors here. I know they cry crocodile tears, they`re not

happy with this decision to let him go. But they agreed to a plea bargain. They agreed eight years ago without a big trial where jurors could assess

experts, jurors could look over all the medical work that prosecutors experts and defense experts would put before them and they could be the

arbitrators of whether he should go away for life or maybe death - although, I don`t know about Virginia, or whether he needed this kind of

treatment facility. Do they have any right to come back now and say, judge, you can`t let him go.

JOEY JACKSON, CNN LEGAL ANALYST: No. Ashleigh, I see you outraged, well- stated as usual. Two things to say. First of all, Dr. Daniel. See, there are witnesses like Dr. Daniel who gave you testimony just now. And what he

said is that what time is enough? What we do in the society is we assess people, and if there`s the -- you know, the guilty plea or the not guilty

plea by reason of insanity, we look at the mental condition. And you can`t hate the player, you hate the game. The fact is the game says that if you

are mentally incapacitated or insane, that is you don`t know right from wrong, we send you to a mental institution and have fine doctors like you,

Dr. Daniel, who assess you, who treat you, who say are you OK today? Are you OK tomorrow? And in the event that they find that you`re

psychologically stable, you don`t pose a danger or threat to the community, it`s time to go. And when you have the community, medical community acting

in unison, Ashleigh, as the fine doctor here appears to be saying, they ultimately say, "You know what, you can leave, you`re OK, we`ll monitor

you," and that`s that.

BANFIELD: I say, this is the kind of story that does irreparable harm to the insanity defense because it is a good defense but when it`s eight

years, it is an uncomfortable reality for people who want to believe in the insanity defense, who wants to believe in people who could be rehabilitated

after horrors like this. But eight years?

JACKSON: You know --

BANFIELD: Andrea Yates drowned four kids and it`s coming up on two decades for her. It is just uncomfortable and I think it really does make it more

difficult to use this (INAUDIBLE)

JACKSON: And I think, most viewers would absolute agree with you. They`re compelled by your arguments. This is shocking, it`s horrifying. You cut

off your kid`s head and after eight years, you`re told, "Go ahead out into society"? You should be away forever. But the game, the system, Ashleigh,

says if you`re OK, you get released. That`s what happened.

BANFIELD: I have to cut it there. But you know what, Dr. Bober, I really appreciate you in such a sober way presenting that argument, I believe in

that argument just not for this case. I`m sorry to say. Thank you. Will you come back?

BOBER: My pleasure.

BANFIELD: It`s good to have you.

BOBER: Any time.

BANFIELD: Appreciate it.

JACKSON: Will you testify for me?

BOBER: Absolutely.

BANFIELD: You`re not going anywhere, Joey Jackson. Stick around.

This other story, a West Virginia Police Officer said he lost his job because he did not fire at an armed suspect. You heard me right, he didn`t

shoot. And is the reason he lost his job really that he didn`t shoot? Or is there more? Also, Houston Police are looking for this guy. He attacked

that woman. She`s 73. Did you see how it happened? Clocked her from behind. And then, for good measure, stole her car.

(COMMERCIAL BREAK)

BANFIELD: Depending on how you look at Officer Stephen Mader, you could come to three different conclusions about him. He is a white West Virginia

cop who refused to fire his gun at a black man who refused to drop his, and officer Mater was fired. Some say he was sandbagged by a bunch of bad cops

who think that Mader made him look bad. Some say that Mader was a cop fired after screwing up too many times. And some are wondering if it`s a

little bit of both. But no matter how you look at it, Officer Mader responded to a domestic call where a 21-year-old African-American male who

was suicidal and had a gun, but he didn`t shoot. His colleagues arrived right after him, and they did shoot, and that man died. After Mader was

fired, he sued the Department and the city. Officer Mader served in the Marines in Afghanistan, he said he didn`t feel that man was a threat, and

he also feel that man, Ronald Williams, was actually trying to commit something called suicide by cop, where you goad cops into shooting you to

death. He told News Week why he made his determination.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Disgruntled employee doing a one-sided story and that`s how that all got misplaced. So, that his both statement contradicts his

own tale to the Pittsburgh Post (INAUDIBLE)

UNIDENTIFIED MALE: I understand media wants to know now but that`s just not the real world. There`s investigations, there`s statement, there`s

people to track down, there`s videos, there`s lab testing and results that need to be done.

(END VIDEO CLIP)

BANFIELD: OK. So obviously, I said that that was Stephen Mader who was telling News Week why he made the decision not to shoot, and instead, you

saw his bosses talking about their reasons for firing him. A whole bunch of other reasons they said, nothing to do with the shooting necessarily.

Well, maybe a little but here is Stephen Mader, and what he said to News Week about his decision.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Disgruntled employee doing a one-sided story and that`s how that all got misplaced. So, that his both statement contradicts his

own tale to the Pittsburgh Post (INAUDIBLE)

UNIDENTIFIED MALE: I understand media wants to know now but that`s just not the real world. There`s investigations, there`s statement, there`s

people to track down, there`s videos, there`s --

(END VIDEO CLIP)

BANFIELD: OK. Sometimes there`s bug-a-boos that play behind the scenes in the control room and you just saw the same sound byte twice, and I am sorry

about that, but believe me when I say it, Stephen Mader has a story to tell. He says he made the decision because of his background. He says he

made the decision because of what he saw in front of him. Stephen Mader, an officer who responded to an African-American male in front of him,

waiving a gun and saying go ahead and shoot me, go ahead and shoot me now. He decided not to do it, and he says that`s the reason he got fired. You

know that whole zeitgeist thing right now, Black Lives Matter, police shootings, all controversial. Maybe he didn`t want to be the next guy on

TV. Or maybe he did do a bunch of really crappy things and this was just sort of the tip of the iceberg or at least the last -- the last straw.

Sean Hamill is a reporter with the Post-Gazette.com. He joins me from Pittsburgh. I don`t know if I have that story right. I feel like I have

the story right but also, Sean, I think there`s still a lot of questions that are unanswered. Do you get the impression covering this story that

he`s a good cop or do you get an impression he`s a bad cop who needed firing?

SEAN HAMILL, POST-GAZETTE.COM REPORTER: Well, he has told consistently since day one, including to the police, his statement, the exact same

story. And it`s the exact same story he told me when he finally agreed to talk to me about four months after the shooting. And, you know, he really

was a reluctant public face for this issue. He contacted me about a month after this occurred and the only reason he contacted me was because he was

upset by a story that we did about a press conference where the Chief of Police in Weirton told me and other reporters that all three officers

involved in the shooting were back at work and doing well.

It was only hours before that press conference that Stephen Mader have been told that he was fired. And so, he was (INAUDIBLE) but he wanted to wait

until he got an attorney before he`s cleared to see it was OK to talk to me. He didn`t come running to me in any way, and I asked him to give him

the best thought. And immediately when he finally agreed to, he told me the exact same story, and here is why I think your question is important

whether he`s good cop or bad cop. But I think -- I think it`s such more nuance because he defends his own actions but he also simultaneously

defends the action of the officer who did shoot Ronald Williams. He since day one, never thought that the other officer did anything wrong, and he

said the difference is--

BANFIELD: Well, that`s interesting.

HAMILL: Yes. I think the difference is the other officer didn`t have the same information as him.

BANFIELD: That is really interesting. I think that really brings to light -- I think that brings to light a very interesting point. Wasn`t as though

Ronald Williams, 21 years old, suicidal, waving a gun around, shouldn`t have been shot. He is saying, maybe just not at the moment that I was

facing him down. But I do have this fascination with how the police department didn`t have his back on this one. I think I actually do have

his words now when Stephen Mader spoke with News Week. Let me play that.

(BEGIN VIDEO CLIP)

STEPHEN MADER, WEIRTON POLICE OFFICER: You know, I would just make contact from outside and go through the incident like any other domestic. You

know, where the party separated already. So, I mean, that was my initial thought was just to talk him and see what was going on.

(END VIDEO CLIP)

BANFIELD: Talk to him and see what was going on. Sounds like policy I have heard before. Timothy O`Brien is the attorney for Stephen Mader, and

he joins me live from Pittsburgh. Thank you so much, Timothy, for being with me this evening. So --

TIMOTHY O`BRIEN, STEPHEN MADER`S ATTORNEY: Thank you for having me.

BANFIELD: So, I can see -- I can see where your client is coming from, but I can also see a guy who has lots of accusations against him. I think one

of them was made that he didn`t report the death of an elderly woman as suspicious. That`s one of the things his bosses say. They say a couple

other things, as well, like he used a lot profanity in public and that he was doing illegal searches of cars etcetera. Is your client, Officer Mader

milking the moment? Milking the media coverage, milking the zeitgeist right now about black lives matter and police shootings and how wow, I

didn`t shoot and they fired me for this. Is he taking advantage of this circumstance, the headlines these days?

O`BRIEN: Not in the least. This is one of the best persons that could be a police officer. Mr. Mader is the type of person that we want as a police

officer. This is a young man, he`s 26 years old and in his short life, he`s served this country in Afghanistan, his mission there, as Marine was

to -- was to diffuse IEDs. He came back after that service and began serving as a police officer to protect and serve like he did in

Afghanistan. It is shameful for the Police Department to drag this man`s reputation through the mud, and it`s outrageous.

BANFIELD: OK.

O`BRIEN: Particularly --

BANFIELD: But let me push back --

O`BRIEN: Go ahead.

BANFIELD: Let me push back a bit because what they say and I want to specifically ask our control room to que up the sound bite of Travis

Blogger, the city manager where he talks about where the gunfire went into the temporal lobe. The temporal lobe sound bit. Because the police say

that what your client, Officer Mader reported happened at that scene actually wasn`t what happened at that scene and caused a lot of mess when

the media reported, you know, this guy was shot in the back of the head, doesn`t that sound suspicious. It turns out he was not shot at the back of

the head.

O`BRIEN: He never -- Officer Mader never said that.

BANFIELD: OK. Well, let me play what Travis Blogger the City Manager asserts. Here he is.

(BEGIN VIDEO CLIP)

TRAVIS BLOGGER, WEIRTON, WV CITY MANAGER: He was shot in the right temporal lobe. When you start running news stories saying he was shot in

the back of the head, you perpetrate an argument amongst people that isn`t factionally accurate. And to share the facts is he was shot in the right

temporal lobe. That was based on the medical examiner`s report and at press conference that the county prosecutor had as well.

(END VIDEO CLIP)

BANFIELD: So Timothy O`Brien, you`re saying he never said that? Because they`re saying he had (INAUDIBLE) story

O`BRIEN: No, no. Officer Mader never asserted, never stated that Mr. Williams was shot in the back of the head. Officer Mader has never made a

single statement that`s critical of the conduct of the other police officers. The only thing that Officer Mader said is this, I made a

decision that was consistent with the requirements of the fourth amendment to the United States constitution not to use deadly force unless it was

required. He made that decision, he made that judgment. He showed some restraint and instead of being praised for that, he was punished.

BANFIELD: All right. I want to look a little deeper.

O`BRIEN: And the conduct -- the conduct of the Police Department is inexplicable.

BANFIELD: OK, so I want to bring in Darrin Porcher who is a retirement NYPD Lieutenant and a Criminal Justice Expert. Knows a thing or two about

being a cop. What are your views on this? You`ve seen as much as we have with the media.

DARRIN PORCHER, CRIMINAL JUSTICE EXPERT: Actually, I`ve investigated a lot of incidents when I was a Lieutenant in the Internal Affairs Bureau. One

thing that`s consistent among most departments is when you have conflicting statements in an official department interview. It`s grounds for

termination. I hear a lot of conflicting statements coming from the officer that was responsible for this. I`m a strong proponent for firearms

control however when we have conflicting statements that resulted in -- one of a statement for example is this officer made statements that exasperated

the situation as opposed to --

BANFIELD: OK. Can I tell you who else made statements? The shooter. The actual officer that did end up shooting and killing Ronald Williams.

PORCHER: Right.

BANFIELD: Not the partner but another responding officer. His name is -- his name is Officer Ryan Kuzma. And the lawsuit that Mader has filed

quotes some texts that he got from that friend on the force. Maybe not so much of a friend, though, it seems because this is what the lawsuit says.

Officer Ryan Kuzma, the man who did the shooting, the officer who shot, sent Officer Mader a text message saying Mr. Mader was a coward and then

Mr. Mader quote, "didn`t have the balls to save his own life." He also said Mr. Mader and his mother were loud mouth -- loud mouth pieces of shit

who would get someone in law enforcement killed.

PORCHER: Highly inappropriate statements and that officer should be punished as well. But indicting statements?

JACKSON: Listen, this whole instance is outrageous. This officer should not have been fired at all. We`re in an instance now where we talk

constantly about police being about the deescalation. This was an officer who was there and made the assessment that he was not going to fire. It was

the other officers who came on the scene who did fire.

So what the Police Department is doing in order to justify the death, they are firing the officer who decided to preserve his life. We can talk about

inconsistent statements. We have his attorney. His attorney said the statements were not inconsistent. We can talk about his past background and

past experience. That`s a roose.

And what the roose is for is because he made a calculated judgment and that judgment was to save that life and to use all the techniques he knew about

interpersonal communication to make life taking a last resort, not a first resort, as his brother officers did. Outrageous. He should be reinstated

immediately.

ASHLEIGH BANFIELD, HOST OF PRIMETIME JUSTICE: Darrin, real quickly.

DARRIN PORCHER, RETIRED NYP LIEUTENANT: You`re basing this so much with what the officer said.

JACKSON: I`m basing it upon the reports.

PORCHER: You weren`t there.

JACKSON: None of us are there ever. Look, as a former prosecutor, I`m not there. I defend murderers. I`m not there. I base it upon the record. And

the record as we know suggests that the officer who is being fired got onto that scene and he made the assessment that he was not going to shoot. And

his brother officers came and started firing right away. Because he didn`t fire, he gets fired. That`s just not in keeping with good practice.

(CROSSTALK)

JACKSON: That`s what police.

PORCHER: I`m a strong proponent of firearms control, but this is a clear delineation of statements that weren`t accurate.

BANFIELD: I got a bigger question. The termination letter he got didn`t just say you didn`t shoot so you`re fired. It actually said things like you

did illegal searches in a vehicle, you used profanity with citizens.

PORCHER: (inaudible) historical timeline.

BANFIELD: . you have contaminated.

PORCHER: Of disciplinary record.

BANFIELD: . hold on. You contaminated a crime scene of a potential homicide investigation and you failed to eliminate.

JACKSON: Excuses, excuses, excuses.

PORCHER: One thing.

JACKSON: Those are things that they say in order to justify the essential nature of the termination, which is for him not firing. Of course, it`s

analogous to the issues and I won`t get into it, involving the Comey termination, right?

(CROSSTALK)

PORCHER: It was clear to me that the officer who was on a disciplinary probationary track. And that`s what happened. It happens in departments

nationally, not just here.

BANFIELD: Hey, guys, last word to Timothy O`Brien, attorney for Stephen Mader, you`ve been listening to this argument, you`ve been listening to

this debate, what do you say?

TIMOTHY O`BRIEN, ATTORNEY FOR STEPHEN MADER: What I say is this. On the night that this happened, Officer Mader was an officer in good standing. He

was not on suspension. He had not been disciplined. It was only after this event occurred within two weeks that he was fired.

It`s very clear and there are other documents that exist that show that the reason the primary and (inaudible) reason was that he did not shoot this

individual. And he had every reason not to. And he made the right decision according to what he saw at the time. When the other police arrived, the

circumstances had changed. They fired. That shooting may be justified.

BANFIELD: All right.

O`BRIEN: But what my client did was the correct thing to do and there is no basis, and it shouldn`t happen that somebody should be fired under the

circumstance.

BANFIELD: It certainly is a different story. Normally, the headline is the opposite, someone is getting fired because they shot an African-American

male who maybe did or didn`t have a gun and tonight, it is the opposite. So I am fascinated by all of your points of view. I do have to cut it off

there.

O`BRIEN: Thank you.

BANFIELD: Thank you so much, Timothy O`Brien. I appreciate you coming on.

O`BRIEN: Appreciate you having me.

BANFIELD: I really want to see how this lawsuit prevails, so you have to keep us updated, okay?

O`BRIEN: Sure, I will. Thank you.

BANFIELD: Darrin Porcher, thanks for your insight. Joey Jackson, you`re not going anywhere.

(LAUGHTER)

PORCHER: Thank you. I appreciate it.

BANFIELD: We have a story tonight. We absolutely could not make this up. We couldn`t write it this good or this weird. A man in Florida accused of

choking his girlfriend to death, but he says he did not use his hands. You`re going to to have to go a little further south on this one. Yes, he

now wants the judge in his case to let him show his business to the jury. He wants to show his anatomy in court to prove he didn`t do it, his anatomy

did. I`m not kidding.

[20:35:00] (COMMERCIAL BREAK)

BANFIELD: Attorneys often come up with very creative ways to defend their clients but I`m (inaudible) tonight that you have not heard of this one. I

want you to meet Richard Patterson. He is charged with murder in the death of his girlfriend. Investigators say the Florida man strangled Francisca

Marquinez to death.

But then only alerted his attorney hours and hours and hours and hours and hours later. It was the attorney who made the call to the police to let

them know Francisca was dead. However, Patterson says what happened was an accident and that the woman accidentally choked while they were engaged in

oral sex. Let that sink in for a minute.

It`s true, his attorney has actually filed a motion asking the judge to allow his client, Mr. Patterson, to pull his pants down in court and show

his self-described large penis to the jury and some other folks in the court so that they can truly understand that he does have a defense here.

He also says if the request is turned down, Mr. Patterson has volunteered to have a mold made of his anatomy so that he can actually show the jurors

what he means.

Remember when I told you attorneys can get creative? Wow. Ray Caputo is a reporter for News Radio 96.5 WDBO. He joins we from Orlando. I would be

rolling on the floor laughing, Ray Caputo, if it weren`t for a woman who was dead at this point and a grieving family who is having to listen to all

of this. Do I have the story right or am I missing a really essential piece here that doesn`t make it so awful?

RAY CAPUTO, REPORTER FOR NEWS 96.5 WDBO: Well, Ashleigh, you do have the story right. It`s one of those crazy Florida stories.

[20:40:00] You know, here`s the thing, the medical examiner doesn`t know the cause of death of Francisca right now. So as crazy as this story sounds

and as crazy all these things that Richard Patterson`s lawyer is saying, it really kind of lines up with the evidence that we have at hand, that this

woman had died and we don`t know how she died, and he admitted that he choked her, but he`s also admitting now that it was his abnormally large

member that did it.

BANFIELD: Okay. So am I right with this timeline? It`s somewhere between eight and 24 hours after she died that ultimately somebody came to find her

body in her apartment face down on a bed and because of that eight to 24 hours, too much decomposition had actually set in for them to be able to

determine cause of death and manner of death. They don`t have an answer to what killed her and how she died, whether it was a homicide, they can`t

determine that?

CAPUTO: Well, they said that because of the body was in a state of decomposition, that some of the things like bruising would, you know,

perhaps go away. But in addition to that, you know, flat out the medical examiner says that the lack of trauma doesn`t indicate that she was

strangled.

BANFIELD: Okay. I want to bring in Ken Padowitz. He is the attorney for Richard Patterson. He joins me live from Davie, Florida. Ken, I`m going to

hand it to you. I have not seen anything this creative, I think in my multi-decade career in covering courts, but I actually see that you might

have a case, especially since they don`t have a cause or a manner of death.

KEN PADOWITZ, ATTORNEY FOR RICHARD PATTERSON: Well, I`ve been doing this for 30 years and my client is innocent. And when he came in and told me the

story, he is fighting for his life, he is fighting for his liberty, and it`s not being creative, what it is is the truth.

And when the jury in this case next week hears the evidence in the case, and that`s what this is going to be about, evidence, and the lack of

evidence by the state and the fact that the medical examiner for the Broward County can`t even determine the manner or cause of death, I believe

that the jury is going to come back with the right verdict and that`s gonna be not guilty.

BANFIELD: You know, I have seen cases fall apart. Stuff that looks open and shut. Throw the book. I`ve seen these things fall apart because they don`t

have that exact cause or manner of death. But I do want to bring up the evidence because you just said when the jury ultimately when fully seated

and the trial began, the evidence is not great either and there are some text messages and some sworn statements that don`t look good for your

client.

Let me read the text that he sent his daughter. He sent this text saying, your dad did something really bad last night and I`m so sorry. And then

there was this sworn statement from a friend of his named Holly Graft, six days after the death of Ms. Marquinez that said, I did something terrible.

I can`t go to jail. I choked her. I choked Francisca. You know, to the average guy like me, juror, potentially, that sounds like your guy was

admitting to doing this and not accidentally it happening.

PADOWITZ: I can`t preach on this case in the media. We`re going to be having a trial next week and a jury of his peers from Fort Lauderdale are

going to hear evidence. They are going to hear a lot of evidence in this case. And the burden of proof is on the state to prove this case beyond

reasonable doubt. I have an innocent client. I am going to fight like mad in court to make sure that that jury hears all the evidence and when they

go back in the jury room, they are able to properly deliberate based on that evidence.

BANFIELD: Okay. I appreciate what you`re saying, Ken. I appreciate what you`re saying, but I`m going to tell you this. You are going to have to get

clinical and you are going to have to get gross. I don`t know if you`re going to get the opportunity to show your client`s member to the judge and

to the seated attorneys and to the jury, but you are going to have to explain how a woman who is engaged in oral sex, who is choking and cannot

breathe just simply doesn`t push away. Now, how does that happen?

PADOWITZ: The jury in this case is going to hear from a prominent medical expert, the former chief medical examiner for Broward County, Dr. Ron

Wright. And he is going to come in and testify. And again, I can`t go into exactly what that testimony is going to be, but I can tell you I filed

motions in this case. And we`re going to be before that jury and we`re going to be asking them to listen intently to all the evidence in this

case.

BANFIELD: Why didn`t he call 911 immediately? Why was it eight to 24 hours before he called his attorney?

PADOWITZ: There is an absolutely truthful answer to that and the jury in the trial is going to hear exactly what the reasons were as to how the

facts in this case happened. It`s a horrible tragedy that happened to this woman that he loved. He`s a grandfather and a father, and he is an innocent

man. When the jury hears the evidence in this case, I believe they are going to come back with the right verdict which is going to be not guilty.

BANFIELD: We are going to watch this, Ken, thank you for being here. I really appreciate you taking the time.

[20:45:00] We will look forward to see what happens in this case, sir.

PADOWITZ: Thank you for having me.

BANFIELD: A young father is on trial for murdering his young son but it is his ex-girlfriend`s text messages about that boy, about what that boy was

doing to their relationship that have really come front and center. And whether you believe him, you are not going to believe her.

(COMMERCIAL BREAK)

BANFIELD: In a New Jersey courtroom, prosecutors have been painting a pretty interesting picture of one heck of a rocky relationship between a

New Jersey dad who was charged with killing his own little boy and his 17- year-old girlfriend who was not a fan of that little boy.

[20:50:00] Their case against David Creato is laser focused on that very point. They think he murdered that 3-year-old boy and left him partially

submerged in a creek in a nearby park all to save his relationship with his teenage girlfriend. Creato even admitted to the cops that she was

definitely no fan of that boy.

But even more troubling in this case for David Creato, what the girlfriend wrote to him, a text messages exchanged between them in the weeks leading

up to little Brendan`s death. There seemed to be a constant struggle going on between these two about that little boy. Even threats she was going to

break up with him if he didn`t choose her over his own child. The text messages were actually read out loud and were they unbelievable. Have a

listen.

(START VIDEO CLIP)

UNIDENTIFIED FEMALE: Here is what you need to understand. I don`t want to spend my precious time near your kid or near any kid for that matter. You

choose to see him every other weekend and two days of every week knowing I don`t like him and don`t want to be around him, you still choose to do

that. You will not change this. I know you won`t so don`t bother telling me you will do anything for me or whatever because you won`t, so don`t say

anything that isn`t true.

UNIDENTIFIED MALE: I don`t have a choice.

(END VIDEO CLIP)

BANFIELD: Jesse Weber is the host of lawnews.com and he is having to sit through all of this. Before I even go into the murders, there is charge for

moral corruptness, moral bankruptcy on this woman`s part?

JESSE WEBER, HOST OF LAWNEWZ.COM: It is so troubling to hear this case in general every day. But here is the expression, I`ve heard this before.

Never put anything in writing that you wouldn`t want to see on the cover of "The New York Times" let alone seen in a courtroom. This just shows what

kind of person she is. We`re not just talking about someone that didn`t like children.

She hated the idea of Brendan being in Creato`s life. I don`t want to spend my precious time with your kid. I don`t want you to have a kid in your

life. Is there something you can do about that? When is he going to be out your life? The jurors are hearing these.

BANFIELD: Unless you think it was just one little oops text.

WEBER: No.

BANFIELD: It kept going. Have a listen to this next one when he was actually trying to say -- David Creato was trying to say God, give me break

on this. Have a listen.

(START VIDEO CLIP)

UNIDENTIFIED FEMALE: So because of the situation you got yourself into and now can`t change, I must somehow be okay with the fact that I can`t spend

every weekend with my boyfriend. I must somehow be okay with the fact that every other weekend he`s off doing (beep) that I really don`t like and and

don`t want to be part of in any way?

UNIDENTIFIED MALE: Why do you hate him so much? Why don`t you want to be a family with me? Can we please stop this and just talk nicely? Please, we`ll

talk later about this.

UNIDENTIFIED FEMALE: You know what? I would rather not have a boyfriend than to be in a situation I just mentioned above. Don`t you think I deserve

better? Don`t you want to see me happy and excited and everything and full of energy and carefree?

(END VIDEO CLIP)

BANFIELD: No, Julie, you don`t deserve better. You actually don`t deserve anything. You are a horrible person morally anyway as those texts show.

This is what the conversation was between the two of them about a camping trip. Julie had a camping trip planned and I guess, David couldn`t go

because he had his son, unless he could bring the son and this is how Julie felt about that. Have a look.

(START VIDEO CLIP)

UNIDENTIFIED FEMALE: I don`t give a (beep) about whatever situation you are in, in a legit relationship that shouldn`t be happening.

UNIDENTIFIED MALE: Yes, it should that`s normal if you have a kid with another person, it`s a very common thing nowadays. It`s not like we talk or

hang out or anything like that.

UNIDENTIFIED FEMALE: Oh my (beep) God do you not read my text or something. I am going there to get away from him. Why the (beep) would I be okay if

you took him with you? I`m going camping alone because my (beep) boyfriend can`t go. Don`t you dare tell me you can go because we both know that`s not

an option unless you change the situation and I have to be okay with that.

UNIDENTIFIED MALE: What do you want me to do? Abandon him and ditch on his life? Is that what you want from me?

UNIDENTIFIED FEMALE: Just (beep) off. Put this to rest and move on seriously.

(END VIDEO CLIP)

BANFIELD: Okay. So, Jesse, I actually look at that and I think she`s awful, but I also it`s really good for him because never did he say okay, I`ll do

what you want. In fact, he argued the opposite, why can`t we be a family? Why can`t you just accept him?

WEBER: He always has said, he has been consistent, what do you want me to do? He`s a part of my life. If you don`t accept him, then you don`t accept

me. At one point he said, what do you want me to do? Shove him back up there? There is nothing I can do. He`s a part of my life. The other hand is

the prosecution is trying to show motive. You`re looking at a relationship that is unstable.

And he said, I love you, I`m willing to do anything to make this work. And a week before Brendan died, he said in a text message, Creato said that I

got violently sick because I thought you were going to break up with me. So when the jurors are hearing this and trying to figure out what is the

length this guy would do to try to preserve this relationship.

BANFIELD: Yeah.

WEBER: But at the same time.

BANFIELD: Motive is one thing.

WEBER: Yeah.

BANFIELD: Motive is one thing. You better prove to me that he did that because those text messages, they might show a motive, but they sure show

he had a motive not to as well. I have to wrap it there. But keep us posted on this.

WEBER: You got it.

BANFIELD: I want to see what`s come next.

[20:55:00] We`ll be back right after this.

[21:00:00] (COMMERCIAL BREAK)

BANFIELD: My thanks to great Joey Jackson for tonight. And thank you.

JACKSON: Thank you.

END