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Oral Arguments End on Prop 8; Amanda Knox Facing Retrial?

Aired March 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: Breaking news for you. We're being told right now that the oral arguments have just wrapped up at the Supreme Court of the United States on the issue of Proposition 8. You can see some of the people streaming down the steps. And that very empty mega mic positioned at the front is where we expect to be hearing from some of the people who may be litigating and also those who can report on this.

Jeffrey Toobin, our senior legal analyst, and our Joe Johns, our justice correspondent, are ready and waiting to be able to analyze what they've heard and what they've seen.

Jeff Toobin, I just need to know, how did it sound? Give it all to me. Let me know how they sound, how they questioned and whether we can read any tea leaves.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Ashleigh, this is a deeply divided Supreme Court and a court that seemed almost to be groping for an answer here. I'm now not in the business of making pre- particulars, but I think it is even harder to predict the result of this case after hearing this argument.

Certainly, it was clear that Justice Scalia and almost certainly Chief Justice Roberts were very hostile to the idea of the court imposing same-sex marriage. It is quite clear the liberal Justices, the four Democrats, seemed favorably disposed.

Chief Justice Kennedy, as so often is the case, did seem like he was in the middle. And he said things that would give comfort to both sides. He did not seem anxious to even resolving this case. He suggested a couple of times that perhaps this whole issue was premature. So Kennedy did not seem to be seeking out the role that the court has presented to him, but he did seem to present the option to decide this case. And that's a brief summary.

(CROSSTALK)

BANFIELD: You mentioned conservative Justices, but can you quickly brush over the liberal Justices, Sotomayor and Kagan, did they also seem just as intransigent?

TOOBIN: There was a lot of -- There was a vivid series of exchanges between Justice Kagan and Charles Cooper, who was the lawyer supporting Proposition 8, opposing same-sex marriage. And Charles Cooper had made a number of arguments, saying this is all about children, that marriage and children are intimately connected. And Justice Kagan kept saying, what about older people, what about people who can't have children or don't want to have children. And Chuck Cooper didn't want to engage on that question very much. And finally, Justice Kagan said, could the state of California pass a law that says people over 55 can't get married because they can't have children. And he said, what about older people, a man could have children will. And Justice Kagan said -- amid laughter in the courtroom -- I assure you, if two 55-year-old people get married, they are not a lot of children coming from that marriage.

(CROSSTALK)

BANFIELD: Joe John, I want to get color as to whether it seemed as though they may be inclined towards not deciding, whether there is jurisdiction to start with the people who took up the banner to uphold Prop 8., because that's one of the building things here.

JOE JOHNS, CNN JUSTICE CORRESPONDENT: I think Jeff is absolutely right. It's as if the Justices were trying to find an argument that they really liked. And it didn't look like they found any arguments they liked that much.

The thing that struck me and I think struck both of us was Justice Kennedy, who a lot of people said could be the swing vote and actually wrote a previous decision on gay rights, he was questioning whether this issue was properly before the court. So, yes, there is a question about whether the court is ready to move on this.

They also questioned the position of the United States. The United States government has taken this position that, because California and a handful of other states all give most of the benefits of marriage to same-sex couples, then that's the same as going all the way. They didn't really buy that either.

(CROSSTALK)

TOOBIN: Sort of bipartisan hostility to the position of the Justice Department, which was that the eight states that have civil unions that are identical to marriage, that's impermissible.

JOHNS: Right.

TOOBIN: And the liberals were saying that, you mean, if you give all these rights, that's worse than giving no rights at all? And the solicitor general answered that question -- let me that had procedural question, which I know is boring to a lot of people -- it's boring to me.

(LAUGHTER)

But may well be the resolution of this case. The attorney general and the governor of California have refused to defend this law. They don't think it's constitutional. So the question is, who can defend the law. Does anyone have standing, that is the legal right to defend the law? And there is a substantial argument that the people who are defending it don't have that legal right.

(CROSSTALK)

BANFIELD: They are not injured enough. Isn't that the technical language?

(CROSSTALK)

BANFIELD: -- to those that are supporting it.

TOOBIN: Right. Just a small side note. Justice Scalia, when talking about the attorney general of California, kept referring to -- he doesn't want to defend the law, he doesn't want to defend the law. The attorney --

(CROSSTALK)

BANFIELD: It's a he.

BANFIELD: -- general of California --

(CROSSTALK)

BANFIELD: Yes. That's crazy. Are you kidding me?

TOOBIN: He kept referring to her repeatedly as a he.

BANFIELD: That's not the case.

Let me ask you, Jeff Toobin, the last time we met on these steps in a circumstance like this, it was about the Affordable Care Act. And don't worry, I'm not going there.

(CROSSTALK)

BANFIELD: No. No, I'm not at all.

(LAUGHTER)

BANFIELD: But I do want to get your feeling on the kinds of questions that we had from Chief Justice Roberts. Because at the time, I remember we didn't get the sense that he might end up being the swing vote. But in this courtroom today, his cousin was sitting there listening, and she is a gay woman who wants to be able to get married. And I didn't know if it had an influence or if you could feel that.

TOOBIN: I certainly -- she wasn't seated with the immediate family members. There is a family section the Justices have access to seats elsewhere in the courtroom. If he is sympathetic to his cu cousin's plight, I didn't sense that strongly. There was a lot of questions along these lines, which was we don't know what the affects of same- sex parenting is on children. It's too new. There has only been several years of same-sex parenting. It may be good, it may be bad. Justice Scalia mentioned this, Chief Justice Roberts mentioned this, why don't we wait and let the states experiment. Some states will have same-sex marriage, some will not. Why do we, the Supreme Court, have to get involved in that process? And certainly, Justice Scalia said that repeatedly. Justice Alito made that point. And Chief Justice Roberts was sympathetic to that as well.

(CROSSTALK)

TOOBIN: And, of course, I should add, Clarence Thomas didn't say anything, as unusual.

BANFIELD: Yes, that was my question.

(CROSSTALK)

BANFIELD: Joe Johns, we never ever --

(CROSSTALK)

JOHNS: Didn't hear a peep from him.

And by the way, one of the most fascinating exchanges -- and you'll hear when the tapes come out -- was Justice Scalia again and again and again pressing Ted Olson, for tell me when it was that gay marriage became a right -- same-sex marriage became a constitutional right. And again and again and again, Ted Olson wouldn't go there. It was just a fascinating exchange. What that has to do with the law, I couldn't tell you.

BANFIELD: Well, all I can tell you to that, and I don't know law from whatever, you do, but 14 times the Supreme Court justices have mentioned a fundamental right, marriage being a fundamental right, and their reasoning in the Supreme Court in their opinions.

OK. I know it's hard for you to hear with all that's going on there. Thank you both for rushing to this camera position to give us that analysis and let us know what happened. We'll all meet again in three months for the opinion when it comes down.

In the meantime, look, appellate law is so fascinating. It might bore you sometimes, but when you have a case like the one we just talked about and another case overseas, Amanda Knox, who spent four years in an Italian prison before she was acquitted and sent home to come to her family in America? Well, the appellate system strikes again. Now Italy's top court says come on back, we want to retry for you murder.

(COMMERCIAL BREAK)

BANFIELD: Want to take you live outside the Supreme Court. Those two powerhouse attorneys, on the right, Ted Olson, former solicitor general under George Bush. To his left, David Boyd (ph), a high- profile Democratic lawyer. They were adversaries in Bush v. Gore. They are partners in the case as plaintiffs in the Prop 8 case. And they're speaking live. Let's listen in.

(BEGIN LIVE FEED)

UNIDENTIFIED MALE: Do you feel confident though that the court is ready to make a sweeping ruling in this case? TED OLSON, ATTORNEY FOR PROP 8 PROPONENTS: Based upon the questions that the justices asked, I have no idea.

(LAUGHTER)

The court has several ways to decide this case from a very broad sweeping conclusion with respect to the rights of our citizens in this country to a narrower ruling limited basically to California. The court never gives you an idea how they will decide it. They didn't today. They have obviously read the briefs. They care about the issues. And then we'll see what the court decides.

We'll answer -- David and I will answer more questions, but I want everyone to hear from the individuals for whom this case is about, the real people, Sandy and Chris and Jeff and Paul, who have been just everyone's hero right from the beginning of this case. And we're just in love with them and we're so humbled by the fact that we get to speak for them in the United States Supreme Court.

Did you want to go first?

State your name.

KRIS PERRY, PLAINTIFF: I'm Kris Perry, plaintiff in the case just heard at the Supreme Court. In this country, as children, we learn that there is a founding principle that all men and women are created equal. And we want this equality because this is a founding principle. Unfortunately, with the passage of Proposition 8, we learned that there are a group of people in California who are not being treated equally. And that was recognized by a federal court and the Ninth Circuit Court.

We look forward to a day when Proposition 8 is finally and officially eliminated and equality is restored to the state of California.

SANDY STIER, PLAINTIFF: I'm Sandy Stier and I, like all Americans, live in equality. I also believe in our judicial system and I have great faith in it. But more than anything, I believe in love. And Proposition 8 is a discriminatory law that hurts people. It hurts gays and lesbians in California and it hurts the children we're raising. And it does so for no good reason.

It is our hope that we can move forward and remove this harm from society so that gays and lesbians in California can go back to their lives living equally alongside their neighbors with the same rights and protections as everyone else. Thank you all very much.

(END LIVE FEED)

BANFIELD: Sandy Stier and Kris Perry, two of the plaintiffs in this case. They have been married, by the way, since 2004, but their marriage was invalidated six months after their ceremony. They've been raising four sons. And they are two of the four plaintiffs in this case. We've heard from them that this is about marriage equality for them.

Though, for those who stand up for Proposition 8, it's about the courts.

Richard Socaridies joins me now live.

I just wanted to ask you, I know this is difficult because as an attorney, as a former Clinton adviser, as jack of all trades, you are also a proponent for marriage equality, as a gay attorney, as well. The argument on the other side is for voters rights. This must be very difficult for you, for someone who supports democracy also, to equate, and yet not.

RICHARD SOCARIDIES, ATTORNEY & DEMOCRATIC STRATEGIST: It's not really that difficult because voters -- I don't really see it as an issue of voter's rights. The voters cannot vote to --

(CROSSTALK)

SOCARIDIES: amend the Constitution or vote in something that's unconstitutional. Our principles of the Constitution are more important than what voters decide. Voters couldn't decide that women shouldn't have the right to vote, say, for instance, or that we could have segregated schools.

BANFIELD: Or slaves.

SOCARIDIES: Or slaves.

(CROSSTALK)

SOCARIDIES: Exactly. But the interesting thing about this is that our Constitution is a living, breathing document. That's the way the founding fathers set it out. So it is interesting how, as we progress as a country and as how our culture changes, that we should see the Constitution changing to fit different opportunities.

But that was a very important moment. Ted Olson and David Boyd (ph), there with the four plaintiffs, this is their day. It sounds like, from Jeff Toobin and Joe Johns, that the --

(CROSSTALK)

SOCARIDIES: -- justices were all over the place.

BANFIELD: Yes.

SOCARIDIES: So we'll have to wait and see. I'm sure it was a very interesting argument. It'll be interesting to hear the tapes that will be released in about an hour.

BANFIELD: You and I have three more months to talk about this.

SOCARIDIES: I know we do.

BANFIELD: So we'll get a decision or a non decision. I hope we don't go with a non decision.

Richard Socaridies, thanks very much. I want to go right back live to that counter position. Again to Ted Olson, former solicitor general, and the plaintiff attorney in this case are speaking again.

(BEGIN LIVE FEED)

OLSON: -- Chad Griffin and everything he's done for the rights of gay and lesbian citizens in this country and what the American Foundation for Equal Rights, a foundation which has supported this campaign and the human rights campaign have done for equal rights and gay and lesbian citizens.

Chad?

CHAD GRIFFIN, HUMAN RIGHTS CAMPAIGN PRESIDENT: Thank you so much, Ted.

All I can do is once again thank Ted and David, who enabled us to lift the partisan veil from which this issue has so often times been discussed and, for the first time, shine the spotlight on the human faces, the human faces of suffering.

(END LIVE FEED)

BANFIELD: And as these conversations at microphones continue, I have to squeeze if a break. But CNN.com/live is continuing to cover this live. If you want to listen to those at the podium outside the Supreme Court you can do so.

In the meantime, when we come back, a critical decision overseas for one of our own, and American named Amanda Knox. Is she not guilty and not subject to being tried again or might she once again have to go overseas and be tried for murder?

(COMMERCIAL BREAK)

BANFIELD: Want to get back to the Amanda Knox ruling. This morning, Italy's Supreme Court made a ruling that she is to stand trial again for the murder of her roommate, Meredith Kercher. Knox was acquitted on appeal 18 months ago. That's what the language seems to be, acquitted. After the decision, Knox released this statement, "No matter what happens, my family and I will face this continuing legal battle as we always have, confident with the truth and heads held high."

Here's what her long-time American attorney told our Soledad O'Brien a short time ago.

(BEGIN VIDEO CLIP)

THEODORE SIMON, KNOX'S ATTORNEY: It was painfully for her to receive the news. She continues to feel, as we do, the charges are wholly unfounded and unfair.

The Supreme Court of Italy didn't do that much. They determined on procedural grounds and we still await their ruling to send it back for revision. The appellate court again may simply continue to affirm her acquittal. Her appearance is not required. In many ways, not much has changed.

(END VIDEO CLIP)

BANFIELD: Richard Socaridies rejoins me as does Lisa Bloom, a legal analyst with avo.com.

Lisa, let me begin with you. This is not as simple as it sounds. Two very different systems of justice. One says she's acquitted and ours says if she's acquitted, you can't be retried. Why is it not simple?

LISA BLOOM, LEGAL ANALYST, AVO.COM & CNN CONTRIBUTOR: Right, because the U.S. Constitution provides double jeopardy applies throughout the United States. If acquitted of a crime in the U. S., the case is over, prosecution cannot appeal. Look at O.J. Simpson. Once you're acquitted here, it's -- you're done. Italy has a different system. It's a sovereign nation. They have their own system of laws and, there, an acquittal can be overturned. It's going to take a long time if ever for Amanda Knox to be returned to Italy because she will fight extradition and bring up all of the procedural irregularities in that Italian court.

BANFIELD: If we even get to extradition, because this could go back to that higher-level court and they could, once again, find her not guilty.

Richard, let me ask you about the definition because in our system, if you are tried and convicted and then that conviction is thrown out on appeal, you can still be tried again because you were not acquitted. It so happens, their second-level, their appeal, said acquitted. Is it just a matter of semantics?

SOCARIDIES: I'm not sure -- I mean it's -- it gets lost in the translation. Their system of justice is not like ours and it's shocking to us because, as Lisa said, once acquitted in the United States you're set free.

BANFIELD: Yes, but when your guilty verdict is overturned because some policeman lied, let's say, you can still be tried again. You're not acquitted just because your verdict was tossed out. Isn't that what the Italians have done, essential tossed that verdict out and used the word acquittal?

SOCARIDIES: I don't know. It seems to me it's shocking to us after what she's been through. And it seems that the appellate court in Italy found, based upon the evidence, they made evidentiary ruling that there was not enough evidence to convict her. If they made a ruling there's not enough evidence to convict her, it's hard to understand, as Americans, why she would be retried. I'm not sure if Italians sought extradition that the U.S. government would send her back to Italy because our double-jeopardy standard is so different from theirs.

Now it may be some semantics, but there is a perception about this case that she has really been through enough. She's -- she was imprisoned for four years. There's a public perception she was innocent of the charges. And it's shocking to a lot of people.

BANFIELD: I don't think this conversation's over yet either because there may be a massive debate as to what those semantics mean, certainly if there's any kind of extradition proceedings.

Lisa Bloom, Richard Socaridies, it's been a very busy day. I thank both of you for standing by and rolling with it. Thanks to both of you again.

Thank you, all, as well. We've had a lot of legal news. Been a very exciting day.

AROUND THE WORLD is coming up next after this break.

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