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Legal View with Ashleigh Banfield

Nidal Hasan Expected to Testify; Prosecutors Say Defendant Ordered to Stay Away Sent 20,000 Text Messages; Student Athlete Gunned Down; Ted Cruz Renounces Canadian Citizenship

Aired August 20, 2013 - 11:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Hi Everyone, I'm Ashleigh Banfield. It is Tuesday, August 20th. Welcome to THE LEGAL VIEW, where we dig into the top legal angles on our top stories of the day.

We start in Texas where the prosecution is almost ready to wrap up its case against the army major named Nidal Hasan who has topped the news for months because he admitted to killing 13 American soldiers at Ft. Hood in 2009.

CNN's Ed Lavandera has been on top of this story. He shows us some of the most important rulings regarding what prosecutors say about his motive.

(BEGIN VIDEO CLIP)

ED LAVANDERA, CNN CORRESPONDENT: Almost four years after the Ft. Hood massacre, Nidal Hasan will be center stage. He's expected to try to justify why he killed 13 unarmed fellow soldiers and wounded more than 30 others.

RICHARD ROSEN, MILITARY LAW EXPERT: There's no telling what he'll do when he gets on the stand if he testifies which I suspect he will to tell his story which essentially admits to the fundamental crimes and then gives an excuse for doing so.

LAVANDERA: For the victims' families, the testimony could prove to be a painful sideshow.

Hasan has been told he cannot argue he killed American soldiers because in his view they were preparing to fight Muslims in Afghanistan and Iraq.

Since Hasan is acting as his own attorney, he'll write out questions for his standby attorneys to ask him.

GEOFFREY CORN, MILITARY LAW EXPERT: A defendant has a right to represent himself and he has a right to do it poorly and I think he has the right to ask for capital punishment.

LAVANDERA: Prosecutors will not be allowed to show the jury e-mails exchanged before the massacre between Hasan and a cleric killed in a U.S. missile strike two years ago.

Prosecutors say it shows Hasan's motive. Hasan says he believes if he dies by lethal injection he would be considered a martyr which leaves shooting survivors anxious for Hasan to go away.

CHRISTOPHER ROYAL, FORT HOOD MASSACRE SURVIVOR: I won't allow him to consume any more energy from my life than he's already done. I've released him and forgiven him completely and it's not up to me to punish him.

(END VIDEO CLIP)

BANFIELD: Ed joins me live now from Ft. Hood where this trial is actually taking place.

Big question everyone wants to know. Do we expect Hasan to take the stand and testify. I guess question himself while testifying.

LAVANDERA: We don't fully know. I think -- every indication we've gotten from Ft. Hood officials and listening to what's been going on in the courtroom this morning. I think everyone is definitely expecting Nidal Hasan to take the stand.

The way this will work, he won't be allowed to get up there and give a speech as to why he committed this massacre. He has to leave a list of questions with his assisting attorneys and it has to be a question and answer format.

The attorneys will ask him a question that he has prepared and written for these attorneys to ask him and then Hasan will respond.

Where it goes from there is what a lot of people are highly anticipating and will be very interested to see.

BANFIELD: All right. Ed Lavandera live for us in Ft. Hood. Thank you for that.

The judge in this case has repeatedly told Hasan that acting as his own attorney is perhaps not the best course of action. I'm putting it mildly.

Jeffrey Toobin is here to talk about this whole notion of this case, but also Hasan and what he's doing in the courtroom. Don't know if I've seen a better example of ineffective assistance of counsel but to say I did it is an unusual circumstance but could someone step in and say it's a disaster in the making?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: He's been warned enough times. Hasan knows what he's doing. He wants to be a martyr. He wants to be executed. I have very little doubt that he will be executed.

The judicial system doesn't require you to act in your best interest. You have to make an informed choice. He's not insane. He's not legally insane by any stretch of the imagination. I think he's competent.

BANFIELD: As I understand it, and I'm not a lawyer, as I understand it in order to be deemed competent and that's the first stage to even going to trial, not insanity issue just to get to trial, you have to be able to assist in your defense.

I don't know that he is assisting in his defense. He clearly doesn't seem to understand a lot of the questions the judge has warned him about.

TOOBIN: He is doing what he wants with this trial. The judge has told him in no uncertain terms that this is a bad idea. That this is going to hurt his case. But the judge is not obliged to do anything more than that.

Remember the case of the tenth hijacker? Parallel situation, you had an eccentric, politically-orientated terrorism suspect who wanted to represent himself.

BANFIELD: Lots of hurdles.

TOOBIN: Right. He was frankly much crazier than Hasan and less in touch with reality. That was a much tougher call.

Hasan is clearly rationale and clearly an intelligent person. He's a doctor after all. He's made a decision about how he wants this trial to go and the legal system is not under an obligation to save him from himself.

BANFIELD: I like how you put it, slow motion suicide. It's remarkable that that's what it is. It is what it is.

TOOBIN: And he's allowed to do that basically.

BANFIELD: We all are. Jeff Toobin, nice to have you here.

TOOBIN: Nice fancy set.

BANFIELD: Fresh back from China. Get into that in a minute, too. Thank you for insight.

A couple other big stories I want to tell you about. The former president of Pakistan -- maybe this won't come as a surprise to you because we hear stories often, but he's been indicted for death, not just any death, the death of a former prime minister of Pakistan, the country's first female prime minister.

President Musharraf was president at the time of this, and he's already under house arrest. And his spokesman, by the way, is calling this indictment, and I'll quote the spokesman, "false fabricated and fictitious, Pakistani politics at play."

Sentencing right now under way for a soldier admitting to killing 16 Afghan villagers last year. Army Staff Sergeant Robert Bales could get life in prison for this.

The defense team says it was all about PTSD, post-traumatic stress disorder, but prosecutors plan to play a tape, a tape of Bales laughing about the charges, a tape that may show, if prosecutors are right, that he has no remorse over those attacks. The man accused of abducting 16-year-old Hannah Anderson named the California teenager's grandmother as his life insurance beneficiary. According to the "L.A. Times," the grandmother is going to get $112,000 from that policy.

Jim DiMaggio's sister told that newspaper that he made the distinction on his policy back in 2011. DiMaggio, you'll remember, was shot and killed by FBI agents who rescued Hannah from him earlier this month.

There are calls this morning for the resignation of Maryland state delegate Don Dwyer. He was formally charged earlier this morning with drunk driving, but you may remember that Dwyer pleaded guilty earlier this year for drunk boat driving. Several people were badly injured in that incident.

And coming up on the LEGAL VIEW, 20,000 text messages, including naked pictures, all keeping a teenage lesbian in jail over her relationship with a 14-year-old female classmate.

Also, an Australian baseball player allegedly killed by three teenagers in Oklahoma, those teenagers reportedly telling police they were just looking for something to do because they were bored.

And also, "Do the right thing. Move or euthanize your son." Actually part of a real letter, a real one, received by the mother of an autistic child, and it is likely some of the most disturbing you may hear today or all week or all year.

We've got the letter for you this hour a little later on the LEGAL VIEW.

Stay with us.

(COMMERCIAL BREAK)

BANFIELD: In "Crime & Punishment," a shocking update in a case out of Florida, an 18-year-old girl charged with having a relationship with a 14-year-old girl and she's back in court today.

Her name is Kaitlyn Hunt. She was told to stay away from that younger teenager, but apparently, if the prosecutors are right, she didn't, to the tune of about 20,000 text messages exchanged with that younger teenager since that order just in February.

John Zarrella takes us back to how this case all began.

(BEGIN VIDEOTAPE)

JOHN ZARRELLA, CNN CORRESPONDENT: Kaitlyn Hunt appeared to be a frightened 18-year-old, her freedom on the line.

KAITLYN HUNT, DEFENDANT: I'm scared of losing the rest of my life and not being able to go to college and be around kids and my sisters and my family.

ZARRELLA: That was February. She'd been accused of two counts of lewd and lascivious battery. The alleged victim, a minor, a 14-year- old female schoolmate.

Hunt and her family claim it was consensual.

KELLEY HUNT SMITH, DEFENDANT'S MOTHER: To hold someone accountable for a felony for having a relationship with a peer seems outrageous to me.

ZARRELLA: Under Florida law, a 14-year-old can't give consent, so if she wanted to stay out of jail pending the outcome of her trial, Hunt was ordered not to have any contact with the 14-year-old.

Prosecutors now say she did, and not just once or twice. They say they have 20,000 text messages between the two since the no-contact order.

In one, prosecutors say Hunt wrote, quote, "No matter what if they find out we talked, I'm going to jail until trial starts," end quote.

In another, prosecutors say there was this exchange. The 14-year-old texted, quote, "The assistant state attorney asked me today if anyone saw us in the bathroom when we would do stuff. Should I have said names?" Hunt responds, "No. Say nobody," end quote.

Prosecutors say the texts were sent on an iPod Hunt put in the 14- year-old's school locker after the court ordered no contact.

And there were videos sent, too, sexually explicit, prosecutors charge. If that's not enough, prosecutors are accusing Kaitlyn's mother of sending texts to the minor.

In one, quote, "Please delete everything and make sure no one finds out you've spoken to Kate at all," end quote.

Neither Kaitlyn or her mother would comment and their attorney has not returned CNN's calls.

(END VIDEOTAPE)

BANFIELD: John Zarrella joins me live now from Florida.

John, up until this point, it seemed as though there was some sort of a plea deal that was in the works that would not necessarily let Miss Hunt off, but it would certainly reduce what she could have faced.

What's the situation now?

ZARRELLA: Oh, Ashleigh, it would have greatly reduced what she would have faced. She faces 15 years if she's convicted.

What the prosecutors had offered her was plead guilty to one felony that could be expunged from a record, cleared from her record later on, plead guilty to two misdemeanors and, in return, no jail time, no ankle bracelet, community service, and she did not have to worry about being labeled a sexual predator for the rest of her life.

At this point, prosecutors say the deal is off the table. BANFIELD: It sounds like it. Twenty thousand, I mean, that is a remarkable number just since February.

John Zarrella, live for us, thank you for that.

I want to bring in our legal panel on this because there are a lot of chewy issues when it comes to what's going on in this case and other states as well.

Former criminal prosecutor Faith Jenkins is here as well as CNN legal analyst Mark Nejame. They both join me live.

Mark, I want to start with you since you're from Florida and this is going on in your state. There are a lot of states that accommodate for peer-to-peer sexual relationships as long as there's a fairly proximate number of years between the teenagers. A lot of these laws were actually originally constructed to protect young female victims. But we've got two females here. But Florida is different, isn't it?

MARK NEJAME, CNN LEGAL ANALYST: Florida often is different, it seems like. What we have in Florida is similar to Romeo and Juliet laws that you see in other states but it's not an actual defense. You can still not give consent at 14 years old.

So what Florida allows to happen is that, in fact, if you are convicted and you have a four-year -- 1,460 days you're not allowed to go a day over that -- difference between two people under 18 years old, then in fact you can go and petition the court to have the sex offender status removed from your record. But you still are punished. It's not a defense.

BANFIELD: How many days was that?

NEJAME: 1,460. Four years.

BANFIELD: Magically, I'm not good at math but how many years is that?

NEJAME: Four years.

BANFIELD: So they would apply?

NEJAME: It doesn't seem like it. Faith and I were talking off the set because they were 14 and 18 but now we're understanding that the defendant is 19, and if victim is still 14, then the state came up --

BANFIELD: But it's still the same amount of days no matter what.

NEJAME: Yes but if in fact they were more than four years apart, birthday to birthday.

BANFIELD: What I don't understand is in so many cases, and you're a former prosecutor so get me off the ledge here, Faith, there's something called prosecutorial discretion. Some people in this case are saying the only reason thing is in court at all is because there's a bias against homosexuality, that there was a mission on the part of perhaps the victim's parents in this case, and the prosecutors, to go ahead and prosecute because of the kind of sex it is, not necessarily because of the kind of case it is.

Am I wrong with prosecutorial discretion? Could they have ignored this one?

FAITH JENKINS, FORMER CRIMINAL PROSECUTOR: Well, they could have. But you look at these cases on a case by case basis, especially when you have two teenagers in high school. They go to school together. And they're peers, so to speak. So the prosecutors look at that, they look at the nature of their relationship and decide what they want to do.

And in this case, Ashleigh, they offered Ms. Hunt a sweetheart of a deal.

BANFIELD: It was pretty good.

JENKINS: It was very good. Not going to be a convicted felon for the rest of her life. She probably wold not required to register as a sex offender for the rest of her life.

BANFIELD: A lot of community service as I recall.

JENKINS: It was community service and she would have two misdemeanors.

BANFIELD: Let me ask you this, and maybe Mark because it's your state. There's an allegation here that she sent nudes, that Ms. Hunt sent nude photographs of herself, that there were 25 or so of these photographs. And there was a sexual encounter between the two as recent as a couple weeks ago, and that immediately got my spidey senses tingling that (A) sex trafficking of pornography of underage kids and number two, additional rape charges for whatever incident occurred recently.

NEJAME: There could be more charges if in fact the prosecutors wanted to go in that direction. I mean, sending videos from an adult to a child is absolutely a federal offense. So that could happen.

Faith is exactly right. There should be prosecutorial discretion. The challenge is, is that every case really does need to be on a case by case basis. You can have, under the law, a senior in high school going out with a junior or sophomore, peers, part of a social group, and be committing a felony.

BANFIELD: It's happened many times before. I wish we could go into a couple of the other cases. Maybe on another day, but thank you very much. Faith Jenkins, Mark Nejame, I'm going to keep you guys very busy. So stick around, don't go anywhere. We're going to talk a little bit more later on in this hour.

It's the dog days of summer and for many kids who are out of school, they're just looking for something to do. Seems to be all of us, as parents, our frustration. But here's where things get really sinister. A sheriff in Oklahoma says that three teenagers were bored and so they decided to shoot someone dead, an Australian college student, and might have been planning on shooting someone else dead as well. The story next.

(COMMERCIAL BREAK)

BANFIELD: "We were bored and didn't have anything to do, so we decided to kill somebody." A remarkable comment reportedly from a boy to the police. And that someone who was killed was 22-year-old Christopher Lane, and today three teenagers accused of killing him have a court date and they're expected to be charged with first-degree murder.

CNN's Zoraida Sambolin takes a closer look.

(BEGIN VIDEOTAPE)

ZORAIDA SAMBOLIN, CNN CORRESPONDENT (voice-over): Shock and grief spread across two continents over the death of Christopher Lane. The 22-year-old from Melbourne, Australia, was in the U.S. attending Oklahoma's East Central University on a baseball scholarship. In the typically quiet town of Duncan, Oklahoma, three teenagers allegedly shot Lane in the back for fun and sped away in their car.

CHIEF DANIEL FORD, DUNCAN, OKLAHOMA POLICE: There was some people that saw him stagger across the road, go to a kneeling position and collapse on the side of the road.

SAMBOLIN: Nearly 10,000 miles away where the shooting is making front page news, Lane's family is struggling to cope with what happened.

PETER LANE, VICTIM'S FATHER: There's not going to be any good coming out of this because it was just so senseless. It has happened. It's wrong. And we try to deal with it best we can.

SAMBOLIN: Three teenagers just 15, 16 and 17 years old arrested and expected to be charged with first-degree murder. In an interview with an Australia radio station, the chief revealed the teen's shocking motive.

FORD: They decided that all three of them were going to kill somebody.

RADIO HOST: Somebody. Anybody.

RADIO HOST: Wow.

SAMBOLIN: Lane's girlfriend, Sarah Harper (ph), posted an emotional tribute on Facebook today saying, in part, "You will always be mine and in a very special and protected place in my heart."

Zoraida Sambolin, CNN, New York.

(END VIDEOTAPE)

BANFIELD: A U.S. senator born in Canada says, "I don't need dual citizenship." Ted Cruz says he's always been an American and he's getting his paperwork in order just in case he runs for president.

We're going to weigh the legal ins and outs and those who said not so fast coming up next.

(COMMERCIAL BREAK)

BANFIELD: A U.S. senator who might make a run at the White House in 2016 wants to make it perfectly clear he's a natural-born United States citizen in compliance with the United States Constitution. He's a Texas Republican.

His name is Ted Cruz. He was born in Canada to an American mother, which may technically make him a dual citizen. And if that's the case, Cruz says he plans to renounce his Canadian citizenship. He issued a statement saying, "Nothing against Canada but I'm an American by birth and as a U.S. senator, I believe I should be only an American."

Senator Cruz moved to the United States when he was age four across the border. It has people questioning here whether he's actually eligible to be president. We certainly have history with the birther movement here in the U.S. and a man, a senator running for president, one President Barack Obama.

Joining me now is CNN's senior legal analyst Jeffrey Toobin. Is this the same story all over again?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It is potentially a controversy. And one of the curiosities about this issue is the Supreme Court never said what "natural-born citizen" means. The consensus seems to be that if you are a naturalized citizen, you are not a natural-born citizen. If you became a citizen by birth, as Cruz did to an American mother in Canada, you are a natural-born citizen. So I think it is likely that Cruz is eligible to be president.

BANFIELD: So politically speaking, there was a birther movement went after president Barack Obama suggesting he wasn't even born in this country. But if that's the case, it would be identical to the Ted Cruz circumstance with an American mother born on foreign soil, which ultimately would make the president, who by the way has proven through birth certificate releases umpteen times and has been accepted, you know, it's a done issue that he was actually born in this country.

But wouldn't it be exactly same? Nobody every brought up the natural- born citizen debate before.

TOOBIN: If he was born in Kenya, which he wasn't, to an American mother, he probably would be a natural born citizen. Actually John McCain has an interesting story here because John McCain was born in the Panama Canal zone.

BANFIELD: Wasn't he born on a base?

TOOBIN: He was born on a base.

BANFIELD: Isn't that sovereign territory?

TOOBIN: Again, there are varying interpretations of that. The leading interpretation was that he was a natural-born citizen and it never emerged as controversy. The subtext of the whole Obama thing, as far as I was concerned, was just racism and bigotry of Donald Trump and others.

BANFIELD: Could that be at play with Ted Cruz? His father was Cuban.

TOOBIN: We'll see. I mean, this is all just getting started now. Most Americans don't even know who Ted Cruz is.