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Legal View with Ashleigh Banfield

Stop and Frisk Unconstitutional?; Florida Sinkhole Swallows Resort; Mudslides, Heavy Rain in Colorado; Joshua Young Not Guilty; Obama Administration Scaling Back Drug Charges; Is Castro Safe in Prison?;

Aired August 12, 2013 - 11:00   ET

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

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ASHLEIGH BANFIELD, CNN HOST: Good morning, everyone. I'm Ashleigh Banfield. It's Monday, August 12th. And welcome to our first edition of the "LEGAL VIEW". We're going to dig in to the day's top legal stories, crime and justice and of course, the top news of the day as well.

Here is where I want to begin with breaking news, legal news, out of New York City. A federal judge has just ruled that the NYPD, the police department here, and its controversial "stop and frisk" policy, well it is unconstitutional. That is a policy that allows New York City police officers to stop and frisk anyone they consider suspicious.

That did not sit well with a lot of minority men and minority men sued saying they were being unfairly targeted for no legitimate reason.

Joining me now is CNN legal correspondent Jean Casarez.

This is a big issue. This took nine weeks to litigate, and the judge came down and said, you're right. We have this little thing called the Fourth Amendment and you can't break it.

JEAN CASAREZ, CNN LEGAL CORRESPONDENT: That's right, constitutional rights.

This information is just coming in right now. It was a ruling this morning, and this judge is saying that the stop-and-frisk, the way it is done in New York City, is unconstitutional because it promotes racial profiling, and it violates someone's constitutional rights.

You know, Ashleigh, we want to show everybody exactly what the law is in New York City and how that stop, question and frisk is what it really is.

First of all, an officer can stop someone if they reasonably suspect that person is about to commit a crime, a felony or a penal misdemeanor.

BANFIELD: Is that probable cause?

CASAREZ: Yeah, exactly. And then they can ask the questions, your name, your address. Explain your conduct for us.

If they believe and reasonably suspect that they're in physical danger, they can then frisk the person, and they can get the weapon or anything that could harm them.

They hold it, they continue the questioning, then they either give it back to the person or they arrest them.

BANFIELD: So here is the problem. That all sounds like it's a great way to reduce crime until you start to break down the numbers and it turns out nine out of 10 people who were stopped and frisked under this policy were African-American or Hispanic, nine out of 10.

And isn't that where the judge said you can't isolate like this.

CASAREZ: Exactly. And this particular case was actually four minority individuals that believe they were stopped, questioned, and frisked because of racially who they were.

And so what the judge is saying, she's not abolishing this. She's saying it's unconstitutional, but she's saying, let's have a monitor here to really monitor internal policy changes.

So we're going to have to see how this evolves in real life, but it's quite a ruling.

BANFIELD: So I did not sit through all nine weeks, but I wish I had because the New York City police had a very good argument that they brought to the table and that was this.

Yeah, nine out of 10 is a high number. We get that. We're not ignoring that at all, but we are dispatched to high-crime areas, and in these high-crime areas black people are being inordinately targeted as victims, and it happens to be very heavily populated by black and Hispanic people, thus the count automatically would be higher for black and Hispanic members of the population.

How did the judge get around that part?

CASAREZ: I think the judge has yet to answer on that because she is saying that as a blanket rule there is racial profiling here and it leads to this.

But what you're talking about is officer safety. And that is something that I think I'm sure officers all around New York City are going to be concerned about and we'll have to see how these changes actually impact reality.

BANFIELD: So, again, look, the idea here -- and this is all just breaking right now, so we don't know how they're going to resolve it, but that they've said a monitor.

And this is what the group sued for. They didn't sue to stop stop- and-frisk. They sued to modify stop-and-frisk, saying that this is like burning down a house to get rid of a mice problem. But how do you modify it when the police have said this is the area, it is heavily black and Hispanic, thus anybody we stop under any policy would rise in those numbers.

CASAREZ: Will they not be allowed to frisk anymore? I think that is probably one of the issues --

BANFIELD: But the crime rates, Jean, have dropped. Like, this is the problem. They have actually shown successful numbers.

They've gotten handguns out of the community. The victims' numbers have dropped. The crime rate numbers have dropped where this policy has been in effect. How do they get around it?

CASAREZ: They're going to have to not target or racially profile as the judge in her ruling said.

And, remember, the city also said we already have internal policies. We have internal review committees. We focus on this.

So what will the changes be with a monitor versus the internal policies already set in place?

BANFIELD: I'm sorry, but I always wonder right off the bat how you get around that Fourth Amendment. I mean, I know probable cause. That gets you around Fourth Amendment, but a lot of cases, the probable cause was, hey, you, that was about it.

Jean --

CASAREZ: Case by case.

BANFIELD: Case by case. Yeah, well, we'll see how many monitors they're going to need on this one.

Jean Casarez, stand by if you will. I've got a lot of other questions for you throughout this legal program since you're a lawyer and a correspondent.

I want to take you to this astounding story out of Florida. You've probably heard a lot about sinkholes. They're fairly routine in that state, but this one defies the odds.

It did not just swallow a car or a house. It took out a three-story resort. The pictures are astounding.

Evan Lambert of CNN affiliate WKMG joins us live from the scene. The nighttime shots are nothing like the daytime shots.

So, Evan, set the scene for me. What happened overnight and how much actually disappeared?

EVAN LAMBERT, WKMG REPORTER: Yes, Ashleigh, you're right. As soon as you see the daytime shots, really, it sets in here.

But apparently a 60-foot sinkhole is responsible for a building collapse here just about 20 feet behind us here at the Summer Bay resort.

This is 10 miles from Walt Disney World and apparently this all started just before midnight when security guard said he heard some loud noises, some pops, some banging, and then people inside were reporting some shaking, they saw windows burst, and he ran door to door to get people out.

People were running for their lives, throwing things out the window, whatever they could to get out of here. But as we --

BANFIELD: Evan, are you there? Do we still have you?

LAMBERT: Yes, yes. I'm here.

So basically the security guard went around trying to get people out of this building and there were no injuries. Fortunately, everyone did get out. About 36 people were evacuated from the building that's half in the sinkhole.

Also some of those surrounding buildings that firefighters were worried about. There are crews here that are monitoring, trying to make sure that this sinkhole doesn't spread.

At this point they're not sure if it's going to grow. They're bringing in some sinkhole specialists to take a look at it and see if it will impact the buildings.

You might be able to see how close this is to the other two buildings. No one is near that area now. Everyone is safely out of the way and crews are making sure this thing doesn't spread.

BANFIELD: It's just remarkable seeing these helicopter shots above because I was watching the story last night, and it looked like a little bit of cracks in the foundation and some leaking water but overnight, kaboom. It looks like almost 50 percent of that building just disappeared.

Evan Lambert, let us know if something breaks on that case and what the geologists are able to determine. Thank you to our affiliate as will.

I want to take you from those incredible images of the sinkhole to this, a raging river of black, the most riveting image of the Colorado flooding and mudslides triggered by last week's heavy rain.

Imagine watching that go down alongside the highway because they're all stuck in traffic watching that come by them.

One person is still missing. Of course, this is just going to be a massive cleanup, a lot of damage that's been done by all of these raging waters.

Jake Walker of KKTV joins us from Colorado. It is not often you see that. Are you still in a critical situation, Jake, or are things getting back to normal now?

JAKE WALKER, KKTV REPORTER: Yes, you know what, Ashleigh? Things are just a mess out here.

As you know, one man has died and one woman is still missing after she was last seen hanging from a tree along that flooded creek.

Now, crews out here right now trying to clean up this mess. Not to downplay the flood that we had earlier this year, but this flood just multiplied everything. It's just that much bigger of a mess.

I'm going to step behind the camera and give you that better view of just exactly what I'm talking about here. As we pan off to my left, you can see these giant mounds of mud and debris.

You can see a mattress even in the debris, a desk, and a bicycle, even a basketball hoop, so, just things you do not expect to see, you know, out of someone's home in the middle of the park here.

Even as we pan over this way, a sink just sitting in the park here, again, just something you don't expect, and as we pan off to my left again, you can see the type of destruction we're talking about here.

Police officers have closed off Canyon Avenue here, one of the streets, main streets, in town for this cleanup process.

As you can see, crews working around here, and as we take a look, I believe we have some of the video to show you of the cleanup process.

As we take a look at that, it's just a very long cleanup process here. During these floods last -- earlier this year, it took maybe a couple days before things started looking better here, but that's definitely not the case here this time around.

It's been a couple days already, and still it's just a mess out here, guys. But some kind of good news, if any, to come out of this is, officials were telling me they are just pleased to see how many people have really come out here and come together to help Manitou Springs clean out from all the mud, as we come back out here live.

We're going to stay out here and pass along any updates to you if we can about that missing woman, but a long cleanup process ahead.

Back to you, Ashleigh.

BANFIELD: Our thoughts go out to the family of that missing person.

Do update us, Jake, if there's any resolution there. Jake Walker from KKTV for us in Manitou Springs, Colorado.

An update on a case we've been covering for a long time, 17-year-old Josh Young acquitted in the murder of his stepbrother and walking free on Friday night.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Verdict form number one, murder, we, the jury, find the defendant Joshua Young, not guilty under instruction number one. Verdict form --

(END VIDEO CLIP)

BANFIELD: That is the face. That is the kind of emotion that is raw and real, unbelievable relief on the face of that very young looking 17-year-old, 15 years old at the time of the crime.

His father already pleaded guilty to the murder, but claimed he did it alone, that Josh wasn't a part of it.

But the prosecution as well as the victim's dad believed that father and son had worked together.

(BEGIN VIDEO CLIP)

TERRY ZWICKER, VICTIM'S FATHER: Pretty much he got away with murder. I have had two years to prepare myself for this kind of verdict, and as I said, I really wasn't planning for anything.

I lost two years ago, and, not guilty or guilty, I was still going to lose. The justice wasn't going to be fair to me. We all have to live with the choices we make in life. He'll have to live with his.

(END VIDEO CLIP)

BANFIELD: His son Trey Zwicker was beaten to death in 2011.

A bombshell for drug convictions in this country, today, the Obama administration is releasing a brand new plan to lighten up on the sentences for non-violent, non-gang-related drug convictions.

Also an outrageous story out of New Jersey, a disabled man, a man who fought for this country 19 years and yet kicked off a New Jersey boardwalk because of a dog, and not just any dog, a service dog.

Plus, a judge in Tennessee legally changes a child's name from Messiah to Martin, despite the fact the parents wanted him called Messiah. The judge said that's a name that is a title that's only been earned by one person and that person is Jesus Christ.

Hold on, how about church and state and all that separation stuff? More coming up on this hour of "Legal View."

I'm Ashleigh Banfield. Stay with us.

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BANFIELD: And welcome back to the LEGAL VIEW. I'm Ashleigh Banfield. It's nice to have you with us on our first version of this show.

United States prisons you probably well know are over capacity; you might even say overflowing. Justice Department says federal prisons are nearly 40 percent over capacity, jammed with more than 219,000 inmates -- nearly half of them serving time for drug crimes. And it is an even worse statistic at state level. But today, the attorney general, Eric Holder, is unveiling what he calls, quote, "smart on crime strategy" aimed at reducing that massive prison population, in part by scaling back the use of these mandatory harsh sentences for certain drug-related crimes. And I want to quote here, Holder says, quote, "We need to ensure incarceration is used to punish, deter, and rehabilitate, not merely to convict, warehouse, and forget."

CNN's Evan Perez is in Washington with the very latest on this story. Evan, how much of an overhaul is this really and are we talking about new laws or just different ways of using the existing laws?

EVAN PEREZ, CNN JUSTICE REPORTER: Well, this is actually a very big deal. This potentially marks the end to this era that began in the 1970s with the Rockefeller drug laws and with other laws that essentially mandated minimum sentence for certain crimes. And I think what is significant about this is that the Justice Department is saying that, after studying this issue, they've decided that this is a way to save the federal government billions of dollars and that there's alternative ways to do this.

There's some states -- Texas, for instance, Kentucky -- that have decided to move people to drug court or to use GPS ankle bracelets, for instance, for nonviolent offenders, and that's a way to save money and also to sort of get past this era where you have a one-fits-all answer to crime.

BANFIELD: So you might think that this would have Republicans up in arms. How can you go light on drug offenders? How can you let a bunch of dangerous people out on the street? But that's not - it's not that simple, is it? This is almost, you might say, a very bipartisan kind of behavior.

PEREZ: Well, yes, exactly. I think you're right. For at least a generation, Democratic Party politicians have been taught that they shouldn't do things like this because they'll tarred as being light on crime or soft on crime. And now what you've seen is a lot of conservatives in Texas, in Georgia, in other states, that are putting forward this very same idea, and the idea being that you're going to save money, you're going to shrink the size of government, you're going to stop spending all this money on people who are being warehoused, not being rehabilitated.

And so what you're seeing in Capitol Hill now, for instance, Mike Lee, Senator Mike Lee, Rand Paul, for instance, are co-sponsoring bills that are doing some - that are trying to do some of the same things that Eric Holder's trying to announce today.

BANFIELD: All right, Evan Perez, thank you. Thank you for that. I think we're only just beginning to see some of the fallout and the noise from Capitol Hill on that.

I want to bring in our expert legal team as well for their take on what Eric Holder's plans are in calling for some major changes in criminal justice policy. Defense attorney Tom Mesereau, best known for successfully defending Michael Jackson in his molestation trial, and also still with us, CNN's legal correspondent and lawyer herself, Jean Casarez.

First, Tom Mesereau, I want you to weigh in on this and tell me your thoughts when it comes the notion that people might fear thousands and thousands of drug offenders flooding out into the streets to reoffend again and sell drugs to their kids. Is it that simple?

TOM MESEREAU, DEFENSE ATTORNEY: No, it's not. I do commend the Attorney General, this is a common sense, practical approach to a very serious problem. You know, there are two aspects to the law - there's how the law is written and how the law is applied. What I think the Attorney General is saying is we've got to apply more common sense and more reality to what we do with drug offenders.

Many drug offenders are very pathetic people. They're low level, they're caught in a cycle of addiction, unemployment. They're desperate to survive. They're not violent; they're not part of large criminal organizations; they have no leadership role in the drug business; and they need a different type of treatment than simply warehousing them in prison.

You know, we have 5 percent of the world's population and we have one- quarter of the world's prison population. That makes no sense.

BANFIELD: And Jean Casarez, weigh in on just exactly what the technicalities of this are. It doesn't mean everybody gets to benefit; there are exceptions.

CASAREZ: Sure, let's break it down. First of all, what this would be I when the prosecutor is drafting the indictment, normally they talk about the conspiracy to distribute or possession or whatever the crime is, and they'll list the amounts of the drugs that were involved in the alleged criminal activity. And that then can trigger those mandatory minimums so the judge has no discretions.

BANFIELD: By the way, how long are those minimums? On a - roughly speaking.

CASAREZ: They can be 10 years per count or per amount. And as the amounts go up, the mandatory minimums can increase.

BANFIELD: So people who don't have violent pasts -

CASAREZ: If they don't have a violent past, if they don't use a weapon, if they're not selling to a minor, or if they're not a leader of a drug cartel or a drug gang, they can be applicable for this. But any of those that do partake in violent activity, they could not.

BANFIELD: And Tom Mesereau, is this something that you see will have an effect right away or do you see this as being politicized in any way?

MESEREAU: Well, obviously it's going to be politicized because it's a hot topic. But my understanding is you've got some bipartisan support for this and it makes sense. I mean, people - if you don't want people to return to the street and commit crimes, you've got to treat them fairly. We're breeding disrespect for our criminal justice system by taking people with no criminal history, no violent background, low level amounts of drugs, and locking them up for 10 years or more. It makes no sense.

I've known cases where women were asked by their boyfriends to mail a package. They mailed a package; they claim they don't even know there are drugs in the package and they get at least 10 years. It makes no sense.

BANFIELD: All right, well, something's got to give. Like you said, those statistics are remarakble and we're $80 billion in 2012 just to incarcerate around this country.

Tom Mesereau, stand by if you will. Jean Casarez, also stand by. The Attorney General is expected to address the American Bar Association at 1:00 p.m. Eastern Time. CNN is going to carry that for you live so you'll hear those comments unadulterated and as they are made.

And coming up on the LEGAL VIEW, Ariel Castro starting a brand new life in prison. Boy, is this is going to be tough, because after holding three girls hostage in his home for 10 years, this guy goes down as one of the most notorious cases in recent years. So how do you defend a monster? One man who knows all about it is Gerald Boyle - Gerry. He defended Jeffery Dahmer, the man of convicted raping and murdering and dismembering the bodies of 17 men and boys. He defended him in court, he dealt with him as he was incarcerated, and that monster as killed in prison. So what about Ariel Castro's chances?

Those stories coming up next.

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BANFIELD: Welcome back to the LEGAL VIEW. I'm Ashleigh Banfield.

Two of America's most notorious criminals, Ariel Castro, the creator of the house of horrors in Cleveland where he held three women hostage for a decade, he is beginning his second full week in prison. He was moved to another prison last week where he'll be isolated from other inmates for his own safety.

And then remember the man to his right, Jeffrey Dahmer? His gruesome murders shocked the world, too. He was attacked and killed by an inmate in 1994. That is possibly why protective custody is so critical. How safe will Castro be?

Joining us to talk a little bit about this is Gerry Boyle, the defense attorney who represented Jeffrey Dahmer. It's good to see you, Gerry. It's nice to talk to you again. I just needed to ask you your thoughts as you watched this man, Ariel Castro, being sentenced to 1,000 plus years in prison and knowing that he was heading into an isolation for 23 hours a day. Will he ever get into general population?

GERALD BOYLE, REPRESENTED JEFFREY DAHMER: Hi, Ashleigh. It's so good to see you again. I wish you well on your show.

BANFIELD: Thank you. BOYLE: My guess is that they're going to be very, very, very careful with this guy, because he's a walking target in a prison. And just as Dahmer was, so will Castro be. Dahmer was not in a 23-hour-a-day custody situation. He didn't get into the general population, but he was in a population of hardened criminals that were being watched more carefully than others. And even that didn't work. Somebody was able to get in there and do him in, which I predicted.

Whether Mr. Castro will ever be close enough to anyone -- to be close enough to anyone to get harmed is anybody's guess, but they're going to work very hard to make sure he doesn't.

BANFIELD: And that is such a great question, whether he will ever get close to anyone. Because, currently, he's 23 hours a day on locked down iso. He gets one hour a day out to do the requisite exercise or phone call to a family member, if anyone will take it. But that can be a personal prison and hell in its own right; certainly if it's a life sentence that way, without question.

I want to play something for you, Gerry. I thought of you the minute I saw this. It played out just after Ariel Castro's arrest. His two representatives, his two attorneys, Craig Weintraub and Jaye Schlachet, and I'm not sure if I'm pronouncing the name right -- they did an interview in which they characterized the Ariel Castro that they had come to know in this brief amount of time. Listen with me and I want to get your reaction afterwards. Have a look.

(BEGIN VIDEO CLIP)

CRAIG WEINTRAUB, ARIEL CASTRO'S ATTORNEY: I think that the initial portrayal by the media has been one of a, quote, "monster". And that's not the impression that I got when I talked to him for three hours.

(END VIDEO CLIP)

BANFIELD: Not a monster, Gerry Boyle. And he stood up at his sentencing and said the sex was consensual; the women wanted it; there was harmony in this house.

You do not have a duty to defend the moral character of your client. You have a duty to defend him legally. What were your thoughts when you heard about those comments from the attorney?

BOYLE: Well, I certainly don't think that a lawyer should be out promulgating that his client is not a monster when he is clearly a monster. And Mr. Castro is a monster and Dahmer was a monster. Dahmer was sick; he was mentally ill. No question about that. Not legally mentally ill, but certainly mentally ill medically. And he was a monster. And Mr. Castro is at least as bad as Dahmer, keeping three young, beautiful women in that kind of a harrowing situation for ten years. So, to say anything positive about him is poppycock.

BANFIELD: I'll bet. Hey, I hope you can stick around. I've got a whole bunch of other legal stories that I think you're just perfect to weigh in on. Can you? BOYLE: Are you asking me, Ashleigh?

BANFIELD: Yes. I'm not sure if you could hear me or not but we're going to move on to some other legal stories. Gerry, thank you so much for your insight on that. I do appreciate it.

We have another story that's coming up that's probably going to make our viewers pretty darn angry. A disabled man, a man who was wounded while defending this country for 19 years, he was kicked off the boardwalk in New Jersey -- and the reason is astounding. They said no dogs, even service dogs. Story coming up next.

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