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Texas Man Giving Away Free Guns; Republicans Supporting Gay Marriage; Cannibal Cop's Wife: He Planned to Cut My Throat; Can Police Take Your DNA?

Aired February 26, 2013 - 11:30   ET

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

(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN ANCHOR: As the gun control debate rages on in Washington, D.C., there is a young man in Texas who is working to increase the number of guns in his Houston neighborhood. He started a project to arm his neighbors for free with shotguns. And he thinks that just might be where you see crime rate drop.

Remember, last week, Joe Biden basically endorsed shotguns for home defense.

(BEGIN VIDEO CLIP)

JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: If you want to protect yourself, get a double-barrel shotgun. As I told my wife -- we live in an area that's wooded and somewhat secluded. I said, Jill, if there's ever a problem, walk out on the balcony here or walk out, put that double-barrel shotgun and fire two blasts outside the house.

(END VIDEO CLIP)

BANFIELD: That's not legal!

(LAUGHTER)

Our legal team today, CNN's legal analyst, Sunny Hostin, and trial attorney, Darren Kavinoky.

I'm reminded of Tina Fey on SNL.

(LAUGHTER)

Guys, this is a grad student. I don't think he's a law student, but he calls his project the Armed Citizen Project. He says he'll require background checks and training courses before he gives any shotguns away for free, but it seems a little off in this whole project.

Darren, let me start with you. What are your thoughts?

DARREN KAVINOKY, TRIAL LAWYER: My first reaction was this sounded an awful lot like trying to put out a fire with gasoline. But then after some reflection, I thought back to a planned community, a gated community where it was very publicly acknowledged that if you wanted to live in that neighborhood, you had to be a gun owner. And I believe it did have a fantastic impact on the crime that was in that neighborhood, because everybody knew you don't want to be burglarizing these homes. These are all gun owners. So I think the people in neighboring communities may be a little upset when they're driving all the criminals into those areas, but I think it's something that could actually work. It may be so clever --

(CROSSTALK)

BANFIELD: That's what I was going to say.

Sunny, how about this part? The first thing that came to mind was liability. And it's not something that has escaped this Texas man either. But he has a specific plan to deal with the liability. He said, "Even if, heaven forbid, one of our weapons is misused in a manner causing injury or death, one would have to accept the premise that guns, not people, cause crime in order to find us liable."

I don't think that's how the law actually places the burden. I really don't know that's how it would play out.

(CROSSTALK)

SUNNY HOSTIN, CNN LEGAL ANALYST: No, that analogy doesn't make legal sense at all in my view.

BANFIELD: Right.

HOSTIN: But I come at this from a law enforcement perspective because I was a person in law enforcement as a prosecutor. And if you look again at the stats -- and the FBI has done this and law enforcement certainly has as well -- studied the effect of people having guns and, by and large, those that have guns in their homes harm themselves or a family member rather than an intruder. And so I don't agree that guns necessarily make the situation safer. Because the stats are there to show that having more guns doesn't necessarily lead to less injury.

(CROSSTALK)

HOSTIN: So this is really of base. And you have to look at the hard facts and the stats. And just doesn't make a lot of sense 37.

BANFIELD: I hope he likes his neighbors.

(CROSSTALK)

BANFIELD: -- sure they're not lying on their background checks.

Guys, I want you to stick around. I have to wrap this up but I have a couple of other cases I want you to weigh in on. What could be a major turning point, in fact, for the Republican Party. Some key members of the Republican Party have spoken out in favor of same-sex marriage. And there are a couple of big cases coming down on that, too.

Back in a moment.

(COMMERCIAL BREAK)

ANNOUNCER: This is CNN.

BANFIELD: Next, a big turning point in the Republican Party. 70 high-profile Republicans just signed a brief supporting gay marriage. The Republicans signed a Friend of the Court, like an amicus brief, in support of striking down Proposition 8, California's ban on gay marriage. The U.S. Supreme Court will hear arguments on this next month, as well as another case that challenges the Defense of Marriage Act. Two separate cases, similar issues. And among those who have signed on to the brief, former presidential candidate, Jon Huntsman; Meg Whitman, who supported Prop 8 when she ran for governor of California in 2010; Congresswoman Ileana Ros-Lehtinen, of Florida; and New York Congressman Richard Hanna.

Joining us with their take, CNN legal analyst, Jeffrey Toobin; and CNN contributor, John Avlon.

Jeff, let me start with you with the amicus brief. Those that don't know what that means, it's essentially what it sounds like, a Friend of the Court, paper, saying what your opinion is, hoping to sway the justices.

How important are amicus briefs, how important might this one actually be?

JEFF TOOBIN, CNN SENIOR LEGAL ANALYST: They can be important. But, Ashleigh, I have to tell you, I really disagree with the premise that this is a lot of people. There are almost 300 members of the House and Senate who are Republicans. They got two people, two obscure members of the House to sign. They have a very distantly failed presidential candidate, a failed gubernatorial candidate. The Republican Party is united on this issue against same-sex marriage, and I don't think the brief makes a bit of difference to dissuade that idea.

(CROSSTALK)

BANFIELD: John, is it baby steps?

JOHN AVLON, CNN CONTRIBUTOR: This is a significant step and I don't think it should be diminished. 75 is 75 more than there was a little while ago. It's the beginning of the Republican Party reconciling its present with its history as the party of Lincoln.

And these folks deserve a lot of credit for having the courage to come forward and say, we need to be the party of individual freedom and that applies to social issues and same-sex marriage, as well. This is a great step forward for the Republican Party and the country in terms of depolarizing this issue.

TOOBIN: Maybe, but where are the people? There is no one on that list that anyone's ever heard of.

BANFIELD: Well, John Huntsman is not a nobody. And he's a more Mormon, as well. Let me suggest these people instead. These are the people whom the court serves, the American people. If I give you the statistics on the latest CBS poll, Jeff, 54 percent say gay marriage should be legal now. 39 percent say it shouldn't be and 8 percent aren't sure. Certainly, when you break that down into the parties, it's completely different, with Democrats representing 63 percent of a positive vote that it should be legal, Republicans suggesting only 29 percent of them. You get my point.

I suppose the question is, Jeff, does it matter what the people think when the justices are weighing in, or are they just absolutely myopic when it comes to statute and constructionism?

TOOBIN: The public matters a lot. The change on this issue, in everywhere except the Republican Party, has been so enormous, especially demographically in terms of age. The court cannot dismiss this issue anymore. I don't know how they will vote, but they are certainly going to take note of the fact that the country has changed dramatically. And the court always is affected by public opinion, by presidential elections, and that will happen here, too.

BANFIELD: And, John, do you think that -- Jeff makes a good point that they are 75 names, but they're former Republicans for the most part. Where are the current, where are the seated Republicans, and is that going to happen anytime soon?

AVLON: I think it will start to happen. We're in the middle of a gay civil rights movement in this country. And it has resulted in a sea change of public opinion about something as fundamental as the right to marry. And you're going to see this. Look, Ted Olson has enormous credibility. He's one of the lead lawyers on the case.

(CROSSTALK)

BANFIELD: He's former solicitor general, too.

AVLON: Exactly right. So you're seeing a principled argument rooted in legal theory that conservatives are making to fellow conservatives. And this just the beginning. And that's a hopeful sign for the country in terms of finally depolarizing this issue and moving forward as a country.

(CROSSTALK)

TOOBIN: John, I think you're -- I think you're --

BANFIELD: Go ahead. Go ahead. Last thought.

TOOBIN: John is wishful thinking on what's happening in the Republican Party.

AVLON: Hopeful, I prefer. I prefer hopeful.

TOOBIN: OK, hopeful thinking.

(LAUGHTER) BANFIELD: Jeffrey Toobin, John Avlon, good to hear from you.

And we still have another month before the arguments get under way. So maybe there will be further briefs from bigger names. I'm thinking Dick Cheney maybe. You never know.

Thanks, guys. Appreciate it.

AVLON: Thanks.

BANFIELD: All right. Tears and fears of getting her throat slit. The estranged wife takes the witness stand in the so-called "cannibal cop" trial. You will not believe your ears.

(COMMERCIAL BREAK)

BANFIELD: What could be worse than a man who allegedly plans to kidnap, cook, rape and eat women? How about the man being a police officer? What could be worse than that? How about the man being your husband?

Here is the story. One of New York City's finest, 28-year-old Gilbert Valle, is now on trial in a federal case stemming from a bizarre online plan to allegedly kidnap and cannibalize women, including his own estranged wife, who took the stand after opening statements yesterday, crying while she described e-mails that she found, and what she thinks her husband was planning to do to her. Quote, "I was going to be tied up by my feet and my throat slit, and they would have fun watching the blood gush out of me because I was young," end quote.

My legal panel joins me again for more, Sunny Hostin and trial attorney Darren Kavinoky.

All right, so here is the thing. That's disgusting and it sounds really awful. And it sounds really criminal. But it also sounds like somebody's really sick, fantasy. And are we supposed to be the thought police, Sunny?

HOSTIN: We're not. And that's what's troubled me about this federal case for so long. I think the fact that he was a police officer and certainly accessed law enforcement databases to fulfill these fantasies, I think is important. And that smells criminal to me. But while these fantasies are sick and twisted and disgusting, I don't know that it is enough to convict him. And I think the nasty little places in many people's the minds that may be on this jury, they, too, will have these sick twist fantasies, and I think it will be difficult to make that extra step of conviction absent something else like an extra step.

BANFIELD: Good point.

Darren Kavinoky, extra step. Just how far do you have to go in your fantasy creep corner to make it criminal?

(LAUGHTER)

KAVINOKY: Sunny, thank you for saying that sick and twisted places in your mind apply to the jury and not to the other people on the panel.

(LAUGHTER)

Because I got a little defense there for a moment.

(LAUGHTER)

This is such a fascinating case because in the after math of every kind of horrific crime, we always say, why couldn't we have stopped this criminal sooner. And there are no thought police. We only punish people for actions that they take and not thoughts that they think.

This is such a fascinating case because it invites a whole discussion around circumstantial evidence. On the one hand -- and I agree with Sunny -- accessing the database and those things, that could be criminal in and of itself. But he's charged with crimes which require something beyond merely thinking about it. And, generally speaking, when we're talking about circumstantial evidence, it requires some analysis. You say if there are two reasonable interpretations, one that points to guilt and the other that points to innocence, we have to align ourselves with the one that points to innocence.

BANFIELD: All right, Sunny --

KAVINOKY: And that can be a tricky legal hurdle.

BANFIELD: Sunny and Darren, hold those thoughts. We'll talk more about the case tomorrow. It just keeps getting --

(CROSSTALK)

HOSTIN: We can talk about it forever.

BANFIELD: Yes.

(LAUGHTER)

BANFIELD: So bizarre. And you know what, this is not the only case out there. The Internet is rife with sites that have all sorts of dark corners of the world and loads of creepy chatter.

All right, you two, hold on for a moment because, up next, cough up your DNA or else. A Supreme Court case gets very, very, very personal.

(COMMERCIAL BREAK)

BANFIELD: When Alonzo King was convicted of rape in Maryland it was an air-tight case. DNA proved that he did. But the police took his DNA after he was arrested for a different violent crime. He wasn't convicted, just arrested for it. Can you do that? Today, the Supreme Court will hear arguments on whether police can collect DNA upon arrest without violating your constitutional rights. It's a huge crime-fighting tool that could be at risk of being axed.

Back with us, our senior legal analyst, Jeffrey Toobin, and trial attorney, Darren Kavinoky.

Jeff, most people think, heck, if your under arrest, you should be fingerprinted and photographed. What's the difference if you have your mouth swabbed? Is there a difference?

TOOBIN: The short answer the court will say there's not a difference. DNA is a valuable tool. It's not an invasive test, not like a blood test. It's not painful. It's not difficult. It's faster than fingerprints. And that --

BANFIELD: It's invasive. They're putting a cotton swab inside your mouth. That's invasive.

TOOBIN: Not really.

BANFIELD: No?

TOOBIN: They ink up fingers and they put your hands on a piece of paper. I don't think there's any difference.

The argument is based on the idea that DNA tells you so much about someone that that's the invasion, that it tells you about disease and all sorts of things that the police are not entitled to know. But I think the Supreme Court is going to say, look, the technology has changed. This is a useful test. It's not that invasive, and it's just like a fingerprint. Let the cops do it.

BANFIELD: Darren, is the issue here -- this guy, who I outlined, was a bad guy, and he doesn't garner a lot of sympathy. The fact that he was convicted because they got his DNA in a questionable way certainly doesn't help the matter. But all in all, I mean you are talking about people who are under arrest. And there are hundreds of thousands of people who are under arrest who aren't guilty of anything.

KAVINOKY: That's right. And arrest or an allegation, a charge, doesn't mean somebody did it. Obviously, we've got a presumption of innocence that applies.

And obviously, Jeffrey Toobin's never done time in jail.

Jeff, there's a lot more invasive that happens in custody beyond the fingerprinting.

But I would argue that the swabbing is significantly more invasive. With the fingerprint, that's something that, just like the color of your car or your hairstyle, or lack thereof, it's something anybody in the public can readily get. You don't have the same expectation of privacy in that material that you do with your bodily fluids. And, yes --

(CROSSTALK)

BANFIELD: Although, Darren, I will tell you, this, Darren, every single cop out there knows the oldest trick in the book is, when you bring somebody in for questioning, you give them a glass of water and take his cup -- KAVINOKY: Sure.

BANFIELD: -- because you can test his saliva. I hate to say it, we readily give up our fluids all the time when we spit out our gum and lick envelopes and do all of those things.

KAVINOKY: We do. Ultimately, I agree with Jeffrey that I think there's a result-oriented opinion here. I mean, look, if we really are serious about crime fighting, everybody will give a DNA sample upon birth, and we'll have this massive catalog, and that would be the best thing.

(CROSSTALK)

TOOBIN: But, Darren, that's a little different. You know, when you are arrested, even when you haven't been convicted, you do lose certain rights. You do have to give a fingerprint. You do have to submit to a photograph, a mug shot. And I think DNA belongs in that category.

That's a very different proposition from saying that everyone goes into a massive database. When people are arrested, that is a key turning point in the law enforcement process. It's not conviction. But it is a time when you do have to surrender certain identifiable facts about yourself.

BANFIELD: All right, Jeff Toobin, Darren Kavinoky, I have to leave it there, but I love this conversation. I just hope I'm not cut on "The Daily Show" for talking about bodily fluids.

(LAUGHTER)

Thanks to the two of you.

We'll be back right after this.

(COMMERCIAL BREAK)

BANFIELD: This just in. The Ohio teenager that opened fire a year ago at a high school, killing three, has pleaded guilty to aggravated murder. T.J. Lane also pleaded guilty to attempted aggravated murder and some lesser crimes, as well. And he's due to be sentenced for those crimes now on March 19th.

To South Africa. Oscar Pistorius' family will hold a private memorial service today for his girlfriend, Reeva Steenkamp. Pistorius is free on bail on charges that he murdered her at his home. He says he thought she was an intruder.

And I guess that you can now add diplomat to Dennis Rodman's resume. The former controversial NBA star arrived in North Korea with a few members of the Harlem Globetrotters. North Korean leader, Kim Jong- Un, is quite a basketball fan. Rodman and the others will reportedly hold a basketball camp for kids in North Korea. It's all being filmed for an upcoming HBO documentary.

Thanks for joining us today, everybody. I am fresh out of time. But "Around the World" is coming up next.