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Supreme Court Ruling in Maryland vs. King; IRS Faces Grilling on the Hill; Sarah Murnaghan Needs Vital Lung Transplant, Has Waited 18 Months; Interview with Janet Murnaghan

Aired June 03, 2013 - 11:00   ET

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

JEANNE MOOS, CNN CORRESPONDENT: That's about the way she's celebrating her new movie deal.

Jeanne Moos, CNN --

UNIDENTIFIED MALE: Turn that frown upside-down.

MOOS: -- New York.

(END VIDEOTAPE)

CAROL COSTELLO, ANCHOR, CNN NEWSROOM: Good for them.

Thanks for joining me today. I'm Carol Costello. CNN NEWSROOM continues right now.

ASHLEIGH BANFIELD, ANCHOR, CNN NEWESROOM: Hello, everyone, I'm Ashleigh Banfield. We've got a very busy show ahead.

Today's main news and, as always, our take on daytime justice coming right at you right now.

And we just learned in this last hour that the Pentagon is sending weapons to Jordan and may leave them there because of the Syrian civil war.

Patriot missile battery as well as F-16 fighter jets will be taking part in some upcoming planned military exercises in Jordan, but the United Nations Central Command says that the military hardware could be left there to help protect Jordan if any of the violence spills over from Syria.

And new this morning, firefighters are coming in waves to fight a raging wildfire just north of Los Angeles. The aptly named Powerhouse Fire has burned nearly 30,000 acres and several homes. Several areas are still under evacuation orders.

Firefighters say they don't expect to have it contained until sometime next week. But they are hoping that the weather helps them keep it from spreading too far.

Also in Oklahoma at this hour, authorities are searching for six people still missing after Friday's tornadoes in Oklahoma City and that area. They are believed to have sought refuges in a storm drain or a series of storm drains when those tornadoes hit. And, of course, flooding hit. That is a major problem when those flash floods come along.

Thirteen deaths in Oklahoma are being blamed on that combination of high winds and flooding.

Some very sad news to report from Capitol Hill. In the last hour, we learned that New Jersey Senator Frank Lautenberg has died. His office says that it was from viral pneumonia.

The 89-year-old Democrat had already announced earlier this year that he was not going to seek re-election if 2014. Senator Lautenberg was the last remaining person in Congress who served in World War II.

The Supreme Court handed down a key ruling this morning, saying that police can take DNA samples from criminal suspects after arrests but before trial, before conviction and without any warrant. This is a big deal.

It's a case called Maryland vs. King and, during the oral arguments in February, Justice Samuel Alito said that this could be the most important criminal procedure case that the court has heard in decades.

Joe Johns is live at the Supreme Court right now. Joe, we have watched as people who've been arrested have been fingerprinted and photographed even before they're convicted or tried, but this was something extra. This was something considered invasive, having your DNA taken and filed.

And yet the justices have agreed, it's OK to do it?

JOE JOHNS, CNN CRIME AND JUSTICE CORRESPONDENT: Well, Ashleigh, actually, the court came to the conclusion that when you compare this to the other kinds of suspicion-less searches police might be able to do, this is not very intrusive at all.

What this DNA testing does is it just takes a swab inside your cheek and that's about it. They run it through tests, and they determine this person's DNA fingerprint.

As you said, this is a case involving a guy named King who was arrested in 2009 on assault charges. They took the swab and discovered that, all the way back in 2003, he was implicated in a rape case, got convicted on that. It came all the way here to the Supreme Court

A very close decision, five-to-four, the court ruling that these swabs are OK under the conditions this fellow was arrested on. However, there is a strong dissent led by the often firebrand justice, Antonin Scalia, who called it, among other things, a "terrifying principle," Ashleigh.

BANFIELD: So what if the person who gets swabbed ends up being completely innocent or even, better yet, doesn't end up getting charged or tried, what happens to that family?

JOHNS: Well, it's a function of state law and the state law in Maryland was very carefully crafted.

First of all, they say, you know, if you end up not convicted in the state of Maryland, they actually throw the sample out. Now it's a little bit unclear whether the DNA fingerprint that would go into the computer is thrown out as well. That's not made so clear in the decision at all.

But generally speaking, at least in the state of Maryland, that's the way the law is grafted.

But remember, a bunch of other states, in fact, a majority of states, have these laws, and it's all a function of the way they wrote their laws, Ashleigh.

BANFIELD: John, I lost track of the person in the case. I lost track of that rape case, which this all came down to.

I'm assuming, since the case is Maryland vs. King, it's Mr. King. Does that mean his rape case is going to go forward? Did it go forward? The results? What happens to the guy?

JOHNS: My recollection is he was actually convicted here, but he moved to suppress the DNA match and set aside the conviction, but the court in Maryland agreed with that. The Supreme Court is overturning the Maryland court's decision.

BANFIELD: I think Mr. King is going to be a busy guy then in the next little while. It certainly makes a big difference for the rest of us when it comes to your Fourth amendment protection.

But I think, as Justice Alito said, this is a very big deal in criminal procedure. Police departments across the country have got to be rejoicing.

JOHNS: absolutely. I think that's true. I mean, there are a lot of police departments who really see this as an invaluable tool in trying to determine which crimes may have been committed by whom and this is probably only going to expand rather than contract the use of DNA fingerprinting.

BANFIELD: All right. Joe Johns, I think you've a next couple of very busy Mondays as we get some of the more significant cases that will be handed down by the court this June.

Thank you, Joe Johns, reporting for us, our justice correspondent.

The acting IRS commissioner is just hours away from a summer grilling on Capitol Hill. Just how deep the alleged targeting of the tea party and other conservative groups went is the question.

And today's hearing comes after Republican Congressman Darrell Issa claimed that the scandal can be traced back to the IRS' Washington headquarters, not someone rogue somewhere else in the country, right there in the nation's capital.

He says he's got the actual evidence to prove it. He hasn't shown it yet.

But listen to what he said about the White House press secretary, Jay Carney, and he said it to Candy Crowley's "State of the Union" yesterday.

(BEGIN VIDEO CLIP)

REPRESENTATIVE DARRELL ISSA (R), CHAIRMAN, OVERSIGHT AND GOVERNMENT REFORM COMMITTEE: Their paid liar, their spokesperson, picture behind, he's still making up things about what happens and calling this "local rogue."

There's no indication -- the reason that Lois Lerner tried to take the Fifth is not because there's a rogue in Cincinnati. It's because this is a problem that was coordinated in all likelihood right out of Washington headquarters and we're getting to proving it.

(END VIDEO CLIP)

BANFIELD: Ah, we're getting to proving it, a big question.

Dana Bash is joining me live from Capitol Hill. What exactly does that mean, we are getting to proving it? When I hear evidence, I assume that they've got some evidence that we're going to see soon. Are we?

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Well, the answer is, they don't yet know. And this is something is that I'm hearing from both sides of the aisle, Ashleigh.

You just heard Darrell Issa admit they still don't know the answers to really the key question. Who was the person or people who devised this targeting of tea party groups and other conservative groups? And how did that actually happen?

They are going to do other interviews with Cincinnati IRS employees. Cincinnati, of course, is where the tax-exempt division's headquarters really is. Those are going to happen this week.

But to answer the question about the point he was trying to make is, yes, he is trying to say that it is -- it came from Washington and that they know that based on a couple of interviews that they did last week with Cincinnati employees.

Talking to Democrats who were also in the room with these interviews, they had a different take. The impression that they got was that, yes, Washington was involved, but when you talk about Washington, they thought it was more of the experts' tax attorneys who were being called and asked questions about how you really determine what kind of group should get tax-exempt status.

And this actually spurred, I'm told by one tea party group in particular who in its application wrote that it was involved in political activities, so this IRS agent said, OK, I need to know how much is too much? How much political activity is allowed for these groups to still get tax-exempt status? And that spurred this conversation. Now that's something that we want to have. We want our bureaucrats to have conversations about how to apply the law.

The answer to the question of how that turned into targeting, which everybody agrees is inappropriate, we still don't know yet.

BANFIELD: Kind of feels like the IRS is getting an audit. And if you've ever had one, it's a very unpleasant experience, worse than a colonoscopy.

All right, Dana Bash on Capitol Hill, thank you for that.

Starting today, Yahoo! Mail is getting an upgrade. The classic version is no longer available, and that means you must use the new version, which serves ads based on the content of your e-mail. Eek!

This is a lot like what Google's Gmail has always been doing in case you think you're the only one. But you can opt out of the ads. You still have to accept the terms, though, which allow Yahoo! to scan your mail.

Angelina Jolie has made her first public appearance since her double mastectomy. Last night she was at the London premiere of "World War Z," the new moving starring her husband Brad Pitt.

Wait a minute. Did they get married yet or are they just common law? That's a tough one.

Angelina finished three months of medical procedures in late April after she found out she carries the mutation of the BCRA1 gene which sharply increased her risk of getting breast and ovarian cancer.

She says she feels great and that she's very thankful to all there who have supported her. She looks terrific.

Just ahead on "Daytime Justice" on "The Rundown, case number one, saving Sarah, struggling to breathe, stuck in legal limbo, the question, can't something be done before this little girl dies?

Case number two, clearing the backlog on death row.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Maybe there is somebody else on death row that is innocent and by us speeding up the process now, it could eventually kill somebody.

(END VIDEO CLIP)

BANFIELD: It is now up to Florida's Governor Rick Scott, a bill on his desk would speed up execution. But should death penalty cases be fast tracked?

And case number three, he proudly wore the uniform as he allegedly gunned down his fellow soldiers on base, and now he wants to plead guilty. And we won't let him? The trial of major Nidal Hassan, just ahead on "Daytime Justice."

(COMMERCIAL BREAK)

BANFIELD: This morning, a heart-wrenching appeal, 10-year-old Sarah Murnaghan is suffering from cystic fibrosis and she is just a phone call away from getting a life-saving organ donation.

The trouble is, her family has been waiting for that call for 18 months and time has just about run out for this little girl.

At issue are the transplant rules. They say Sarah and any other child under the age of 12 has to wait in line behind all of the other grown- ups on the list before getting an organ.

And here's the hard part to swallow. If there were no age restrictions, Sarah would be at the top of the list.

And joining me now is Sarah's mother, Janet Murnaghan. Janet, thanks for being with us. Just tell us how Sarah is doing, first off, this morning.

JANET MURNAGHAN, DAUGHTER NEEDS LUNG TRANSPLANT: You know, we're going up and down a little bit here. They're watching her carbon dioxide real closely. That's the position we are in right now.

She's stable, but I would say stable on sort of the edge of a knife.

BANFIELD: Your appeal has gone to some of the highest in the order of rank when it comes to this fight against red tape. The Housing and Human Services Secretary responded to your appeal, but not with an answer that you wanted. Kathleen Sebelius said that she is not capable of changing the rules. Where have you gone sense getting that response from her just in the last few days?

MURNAGHAN: We've hired counsel, they have sent a letter to Kathleen Sebelius explaining why exactly she does have the authority to step in here and save Sarah and save kids like her.

BANFIELD: Is there -- has anyone ever explained why -- has anyone ever explained why this protocol exists within it comes to children under 12 being behind adults over 12 who may not be as sick as those children under 12?

MURNAGHAN: I have to assume that it was put in place with good intentions some time ago when children would have not been in the same position to receive adult organs. That's not the case. And the data tells you there are 2,000 adult organs a year offered up and there are 20 pediatric organs offered. So your opportunity as a pediatric patient is far fewer for transplant and that, at this point, everybody should recognize that children are dying at more than twice the rate of a adults.

This is not us asking for preferential treatment for Sarah. This is asking for equality for Sarah to have the same rights as anyone else to compete based on the severity of her illness. BANFIELD: And Janet, the Organ Procurement and Transplantation Network has given a response saying they cannot create a policy exemption on behalf of an individual patient since giving an advantage to one patient may unduly disadvantage other patients.

But as I understand it, Sarah is in the most need of all who are on the list. So does that argument wash with you when it appears -- and I haven't seen the list of those who are in need -- but it appears that there wouldn't be someone who would be in more grave danger of losing their life than your daughter?

MURNAGHAN: It's interesting, that statement, because they are already putting someone at an undue disadvantage and that is my child. So, you know, this notion that by letting Sarah compete on the severity of her illness, which is the spirit of UNOS law, that by treating the most severe patient, fewer people die. That's all we're asking for them, is for them to follow the spirit of their own law. They are putting someone at a disadvantage right now, and it is my child. They are letting my child die.

BANFIELD: We all know the law does not work at the pace that reality sometimes does. In that respect, what are you doing outside of counsel to try a appeal to anyone, someone, anyone to help your daughter?

MURNAGHAN: Absolutely. What we're doing is we're appealing to all the amazing Americans out there who do every year offer the gift of life to other people in middle of their tragedy. We're appealing to them, if you are if that horrific situation, that you look at Sarah and you make a direct donation to Sarah. That can supersede any law in terms of the order of her age. If you make a direct donation to Sarah Murnaghan, she can receive those lungs if they're a match and the doctors can determine that.

BANFIELD: Janet, this is a very hard question to ask, but I think it underscores how critical the situation is right now, and that is how long do the doctors at this point think that Sarah has?

MURNAGHAN: They can't offer us any, you know, certainties, but when we moved to the pediatric ICU last week, they were told they were thinking in terms of weeks, not months.

BANFIELD: Well, Janet, we just wish you the best. We wish you every success. We hope you come out of this quagmire in the most successful way.

MURNAGHAN: Thank you so much. I just want to thank the media and to thank -- I wanted to thank the media for their outpouring of support and the Pennsylvania representatives like Senator Toomey and Senator Casey and Congressman Meehan who have stepped out and supported us, and all the American people who have stood behind us and said, you know, this just isn't right. Politics shouldn't stand in the way of whether a child lives or dies.

BANFIELD: You are absolutely right. And to that end, I thank you for saying that. Thank you for your hard work in this area. We're going to continue it.

In fact, Janet, right after the break, we're going to continue this by helping anybody who's watching right now to know what it requires of you, what legally you need to do if you want to answer this appeal. And everyone should answer this appeal. And everyone should know what you need to do if you want to be an organ donor. There are things that are required. Those answers are coming next.

(COMMERCIAL BREAK)

BANFIELD: As we just told you, Sarah Murnaghan's mother is hoping for a miracle and very soon. And she really thinks there is someone out there watching who could help to provide it. She's asking that people designate their donated organs to her daughter. In that way, they jump that line that she can't seem to break into and those organs go right to her daughter.

But there is a catch. It's not as easy as just doing it. You got to make sure that your wish is carried out and there's a couple legal things you need to know. Big question is what are the legal limitations to organ donations? I've got the two guys who can answer that. Defense attorney Danny Cevallos specializes in criminal cases, and Randy Zelin is a defense attorney as well as a former prosecutor who specializes in white collar crime and also government investigations.

Danny, first to you. Directed donation. It's not just enough to check your box on the license, right? You have to actually tell someone, you have to do something in order for this to happen, correct?

DANNY CEVALLOS, DEFENSE ATTORNEY: Yes. Most people have absolutely nothing, not an advanced directive, a living will, nothing, not even a power of attorney. These are all essential items and virtually none of the population has them. Under federal law, you're -- the person you designate to make health care decisions for you may not even be able to do so unless you have affirmatively stated that you wish to be a donor.

It's difficult. It can be a little complicated, but there are a few documents like an advance directive,which is commonly known as a living will, and the appointment of a health care representative in the event you are unable make those decisions and making your paperwork in order that clearly identifies you as an organ transplant, just like on the back of that driver's license.

BANFIELD: So that's tricky. And for anybody who's watching out there who's thinking, you know, right away, I'm stepping up to the plate. I'm going to do this. Can it be made easier? Randy, maybe -- is it, can you write something down and have it signed by someone in your family as a witness? Would that suffice?

RANDY ZELIN, DEFENSE ATTORNEY: It's very, very difficult to say. I think you raise an absolutely brilliant point, which is you want to step up to the plate, but then when you start going to the Web sites, do you know there is a 360-page evaluation just to go through the steps to see who can donate, who's eligible?

So we really need to start from the perspective of making it easier. Whether you can just take a napkin, write out your directives and have somebody witness it? I mean, technically, if you meet the elements and you have it notarized it, perhaps. But the more legal it looks -- if someone else has to make a decision to whether or not it's going to happen, I think you do need to take it to the next step. And perhaps you do need to speak with counsel, because you want it done right, because you don't want -- what we are experiencing right now, watching a little girl die is beyond the ability to even describe.

BANFIELD: It is. It's so tough. I just want to let you know what -- a congressman from Pennsylvania, Pat Meehan, is calling on Secretary Sebelius to step in, even though she's written to Mrs. Murnaghan saying it's out of my control. But this is what he had to say earlier. Have a listen to his reasoning as to why this whole thing is discriminatory. Take a look.

(BEGIN VIDEO CLIP)

REP. PATRICK MEEHAN (R), PENNSYLVANIA: If she was 12, it wouldn't be an issue. But she's almost 11 and doesn't qualify. So, therefore, the standard is arbitrary, and because it's arbitrary, it's my opinion, as an attorney, that it is discriminatory and it should give the secretary an ability to address the discriminatory nature in the way this policy has been put together.

(END VIDEO CLIP)

BANFIELD: And again, I mentioned this to Janet, before we went to break -- whatever happens as the law shakes out, we don't have time on our side when it comes to little Sarah. She may have weeks to live and that's it.

So I just want to reiterate again, for anybody watching, one more step. And I'm going to ask you, Danny, if this might work. If you don't have the money for a lawyer, if you don't have the time to go to a lawyer, could you at least write something down and say it in front of a few witnesses? Might that be enough to a directed donation to go to Sarah Murnaghan?

CEVALLOS: You know, the Internet, fortunately, is full of a lot of free resources, and every state is different. Some states require notarized documents; others require witnesses; others require both. But it's easy to take a look and find even sample documents, and you could potentially fill these out yourself. You could educate yourself just using the power of the Internet.

BANFIELD: I sure hope that something comes of this, for this little girl and her parents. It's just been heartbreaking to watch this process.

Danny and Randy, stay with me, because I have another case coming up about timely justice. We're going to examine the bill that could put death penalty cases in Florida on a much faster track. That's coming up next. (COMMERCIAL BREAK)