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Legal View with Ashleigh Banfield

FDA Considers Regulating Transfats; NJ Mall Shooting 911 Tapes Released; Boston Cop Who Leaked Tsarnaev Photos Retires; Paralyzed Hunter Makes Own End-of-Life Decision; New Developments in NFL Bullying Case; Employment Nondiscrimination Act Comes to Senate Floor

Aired November 07, 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 HOST: The Miami Dolphins hazing scandal getting fishier by the minute. New questions now swirling around what the coaches knew and when the coaches knew it.

And teammates telling us the suspended lineman was like a big brother to the rookie he is accused now of bullying.

Also this hour, would you rather die than live the rest of your life in a wheelchair? The heartbreaking decision of a deer hunter to take himself off life support after a tragic fall.

And say whatever you want about Tom Cruise. Just don't go calling him a bad dad. He is fed up with salacious headlines and is fighting back to the tune of $50 million.

Hello, everyone and welcome. I'm Ashleigh Banfield. It is Thursday, November 7th. Good to have you with us on LEGAL VIEW.

I want to begin this hour with a story that is real close to many Americans' hearts. See that? This is precisely the problem.

Transfats are getting a very hard look from the FDA, and that could mean say goodbye to some of those things you really, really like. Or does it?

Elizabeth Cohen joining us now to talk about what this actually means. Does it mean that some of our favorite foods that are killing us are going to go away?

ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: Yes, Ashleigh, likely it does mean that.

So this is the first step to getting these artificial transfats out of the food supply. So, you know when you eat a biscuit or a cookie or fried chicken and it tastes so good?

Sometimes the reason for that is that they have fried those foods or made those food with his artificial transfats.

Now about 10 years ago, 10 years ago, experts said get this stuff out of the food supply, and they petitioned the FDA and the FDA didn't. And now they're saying they're going to finally take those first steps. And if they do go through with this, and it looks like they will, then they say that they will be able to prevent 20,000 heart attacks among Americans each year and 7,000 deaths.

Now, when you see all those lives that could have been saved, some people are asking, why didn't they do this 10 years ago when they were asked to?

Ashleigh?

BANFIELD: So what is the deal? If the FDA decides to classify transfats as something they call additives, does that mean they can still be put in the food, but that you and I have some way to know about it?

COEHN: Almost. Here is what it means. It means that if a food company wanted to add transfats, the company would have to apply to the FDA. They would have to do testing in the lab. They would have to do animal testing.

I mean, it is a rigmarole to get something like that approved.

Now, theoretically, yes, they could do it. It's hard to imagine that a company would want to spend that much time doing it, and it would have to say on the nutrition label that it has transfats.

So it's hard to imagine some company would want to do that.

BANFIELD: And, honestly, just quickly, Elizabeth, doesn't this also mean that companies that want to prove that their transfat is safe literally have to do scientific studies that show that?

And right now there ain't nothing out there that's really going to show that.

COHEN: Right. Exactly. They would have to do the animal studies that I mentioned, the lab studies. It would be a really tough thing to do.

BANFIELD: Herculean.

All right, Elizabeth Cohen, thank you for that.

COHEN: Thanks.

BANFIELD: This is all breaking right now, so obviously, what are the legal ramifications here?

This is LEGAL VIEW, and look who's here, CNN's legal analyst Danny Cevallos, who happens to teach these kinds of ethics when it comes to this kind of thing.

So here is my question. Does this mean that all of a sudden anybody who actually provides food all across the nation is going to have to be policed if they sneak this stuff in? And if they do, what happens?

DANNY CEVALLOS, CNN LEGAL ANALYST: What it really means is that, because these additives -- if these additives are -- they're going to be subject to premarket approval by the FDA, and the FDA will have that discretion.

If it doesn't approve, then they become adulterated and that means that they're effectively outlawed.

So the question really becomes, do companies really want to invest all this time, all this money, to now get approved something that was always already approved?

So it really -- it won't necessarily be outlawed right away, but the financial burden on getting these additives approved would be so great that they may effectively be outlawed.

BANFIELD: This is the kind of thing that it's not like this is coming out of the blue.

A lot of -- like McDonald's and a number of other major companies started hauling back on their transfats, knowing full well that this might be coming and if not, other things that were just as ugly might be coming.

CEVALLOS: Right. But I mean, to the extent that these transfats are still part of their menu -- I mean, imagine the financial cost in dragging these out of their product.

While these stores, these companies, have offered healthy alternatives, transfats are still a major part of many restaurants' menus.

This could be just a huge blow to the industry of fast food.

BANFIELD: You know, it's hard to imagine just all of the different things out there that we eat every day.

If you go by your vending machine, if you go to a fast food outlet, if you just go to the processed aisle and pick up the things you're so used to eating, even margarines and that kind of thing, it's literally everywhere.

So this is an extraordinarily pervasive story with huge ramifications and not going away any time soon.

Danny Cevallos, thank you for touching on it just as this is breaking, as well. We're going to continue to follow that story.

Also want to check some other big, top stories that we're following here at CNN.

For the first time, Twitter shares are trading under the ticker symbol TWTR. But don't go race to your trading account. It's not for you yet.

They have, by the way, already just about doubled their initial public offering price. That is not bad for a company that's never posted a profit.

Again, you Average Joe out there, you and me, we're going to have to wait a couple of days until we're eligible to get in on that goody.

The 911 tapes of this week's New Jersey mall shooting, the 911 tapes have been released and they are revealing absolute panic that was experienced by the shoppers inside.

(BEGIN AUDIO CLIP)

DISPATCHER: 911. Where is your emergency?

CALLER: The Garden State Plaza.

DISPATCHER: Yes?

CALLER: Yes, I'm at the Garden State Plaza Mall, where there's been a shooting.

DISPATCHER: Yes?

CALLER: And I'm in -- I work here. I'm inside the store, in the office with the door locked by myself, but I'm scared, and I want to get out the mall.

(END AUDIO CLIP)

BANFIELD: The gunman, Richard Shoop, took his own life, and there were no other casualties, luckily, in that incident.

The Massachusetts state trooper who leaked grisly pictures of Boston marathon bombing suspect Dzhokhar Tsarnaev has retired.

Sean Murphy was suspended, and then later transferred to the graveyard shift in a different town when his role in the leak came to light.

He spoke this morning with my CNN colleague, Chris Cuomo.

(BEGIN VIDEO CLIP)

CHRIS CUOMO, CNN HOST, "NEW DAY": Would you do it again?

SERGEANT SEAN MURPHY (RETIRED), MASSACHUSETTS STATE POLICE: Absolutely.

CUOMO: Because?

MURPHY: The way that I see it, Chris, there's no way that I couldn't do it.

CUOMO: Why?

MURPHY: Well, because what "Rolling Stone" was wrong. That image hurt a lot of people who are still hurting.

And I knew that the image that I had was the true face of terror. It was the true image of that day.

(END VIDEO CLIP) BANFIELD: And this is what Murphy and so many others were offended by. Take a close look at your screen. That "Rolling Stone" cover shot that they felt depicted Tsarnaev in a glamorous light.

No soldier will ever again enter the site of the worst mass shooting on a military installation. Military officials say the building where Nidal Hasan killed 13 soldiers four years ago is going to be torn down.

You'll remember that Hasan was sentenced to death in August.

A young father who could not face living the rest of his life in a wheelchair, the story behind a painful decision he made to take himself off of life support, coming up next.

(COMMERCIAL BREAK)

BANFIELD: This is a decision that no family ever wants to make, whether or not to end life support for a loved one.

But in the story you're about to hear, a family in Indiana was not given that choice and it is not for the reason you might think.

Thirty-two-year-old Tim Bowers was paralyzed from the neck down after falling from a tree during a hunting accident, and the minute he came to and found out what he was in store for, for the rest of his life, he astoundingly asked his family to just let him die.

Our Martin Savidge is following the story, joins us live now from Atlanta.

It's almost hard to read those words, to know that it really happened, but it did and it's perplexing to how it happened.

MARTIN SAVIDGE, CNN CORRESPONDENT: Right. Hello, Ashleigh.

Yeah, this is a story that is tragic, of course, on so many different levels. Tim Bowers, as you point out, had everything in his life going in the right direction, recently got married a couple of months ago.

Thirty-two, he's young, baby on the way, runs a successful business, has a very deep faith, loved in his community.

But then Saturday falls out of a tree stand while hunting and is paralyzed from the shoulders down.

He had a discussion with his wife just a month before about being in a wheelchair the rest of his life. It was something he didn't want.

They asked him when they brought him out of the recovery. They actually woke him up and he said, no. He shook his head. He couldn't speak with the tube.

And as a result of that, they took off life support, removed the breathing tube and he passed away five hours later, Sunday, with 75 members of his family and friends all around him. It was his decision and many people are talking about this. Here is what one of his friends had to say.

(BEGIN VIDEO CLIP)

BILL WHITRIGHT, FRIEND OF VICTIM: It was his decision and I'm glad I got to be there. It didn't surprise me because he was ready to go to heaven. He was ready for God. He was a good man.

(END VIDEO CLIP)

SAVIDGE: And as we point out, this story just trending huge on the Internet, a lot of comments from social media, and I'll just read you two of them real quick here.

Calvin Peterson says, "Life is precious. Just talked to some people about that who are confined to wheelchairs, a friend of mine who has m.s. and is in a wheelchair has the most amazing spirit and joy like I've never seen."

From the other perspective, "Very sad, but I feel he did a noble thing for his family."

You know, this is one of those classic, "what-would-you" scenarios -- what would you do?

And it should be pointed out you are never too young to start having these end-of-life discussions of what you wish you should do.

And one final thing I would point out. If you are a hunter, please, wear a harness in a tree stand, because all of this could have been prevented.

So many different levels here, Ashleigh.

BANFIELD: It's just so upsetting in every way you look at it. And you understand the way people are responding in those tweets. And you don't know until it's you.

Martin Savidge, thank you for that.

So how rare is this for a patient to make a call like that? We want to get the LEGAL VIEW with CNN legal analyst Danny Cevallos, joins me again, just happens to teach health care ethics at Drexel University.

First and foremost, how can someone make that decision legitimately, being in a state of emotional trauma, learning that awful fact?

CEVALLOS: You bring up a really interesting topic. The Supreme Court has recognized that competent people can make decisions to refuse treatment.

But that raises the question, what is competent? And can you conclude that simply because you want to withdraw treatment, does that, alone, make you incompetent?

In other words if you choose to die, are you necessarily an incompetent person? Are you not right in the mind?

And the court cases that have addressed it have said no. The problem is that, just like we talked about, people don't make an advance directive. They don't set down in writing what they want done, to put down with clarity what they want.

Unfortunately, it's only at times of crisis that we are left trying to ascertain what somebody truly wants, whether they want to withdraw treatment, or whether they would really want to live with life- sustaining treatment.

So that becomes a problematic issue. But, ultimately, the Supreme Court has pretty squarely held if you are a competent person of sound mind and clarity --

BANFIELD: And judgment.

CEVALLOS: -- and judgment, you can refuse treatment.

BANFIELD: How do you determine when someone is of sound mind? I'm just thinking, common wisdom would say you're not in your right mind, even after a breakup, for heavens sake, at least for 48 hours, at least for five days or 30 days.

How can you make that decision legally?

CEVALLOS: It is a case-by-case analysis, but what you're saying, it's important to note that, simply because you are under the stress of a situation, as long as you are deemed competent, even though you are choosing to die, which most of us would not choose to do, that, alone, will not render you an incompetent person, unable to make decisions about your own end-of-life care.

BANFIELD: It's -- I mean, there are so many other questions about do not resuscitate and is this any different than any of us has in our wills.

CEVALLOS: It's important to get that advance directive so people know.

BANFIELD: Thank you, Danny, nice to see you.

The scandal that's surrounding the Miami Dolphins has the NFL assigning a special investigator now, and other players are speaking out. Hear what they have to say. It might not be what you think. That's coming next.

(COMMERCIAL BREAK)

BANFIELD: Some dramatic developments in the Miami Dolphins bullying scandal. There's a report that says at least one coach told suspended player Richie Incognito to toughen up rookie Jonathan Martin, all before Martin walked off that team.

ESPN is reporting that Martin recently checked into a Florida hospital for treatment of emotional distress. That said, several current and former Dolphins players are now coming to Incognito's defense, saying he did not bully Martin that, in fact, he treated him like a little brother.

Also now, the National Football League looking into all of this. They named Ted Wells to lead an ongoing investigation into the allegations. Wells, you might remember, was involved in the probe of sexual harassment allegations at Syracuse last year. Stay tuned to this space for those developments.

And as our Brian Todd reports, a lot of NFL players say that hazing, if not outright bullying, is just part of the locker room culture.

(BEGIN VIDEOTAPE)

BRIAN TODD, CNN CORRESPONDENT: Richie Incognito unplugged. This TMZ video shows the Dolphins guard jumping around shirtless in a bar, dropping F-bombs liberally. No comment from Incognito or the Dolphins on the video.

Incognito was more measured when approached by CNN affiliate WSBN about allegations that he bullied teammate Jonathan Martin.

RICHIE INCOGNITO, MIAMO DOLPHINS: No comment right now. We're going to kind of weather the storm and that's it.

TODD: He may not weather the storm. Team sources told "The Miami Herald" the Dolphins will release Incognito, and there may be other casualties. The "Ft. Lauderdale Sun Sentinel" reports Dolphins coaches asked Incognito to toughen up Martin after he missed a voluntary workout last year. Dolphins coach Joe Philbin wouldn't comment on that, only saying he will fix any problems uncovered in an NFL investigation.

JOE PHILBIN, HEAD COACH, MIAMI DOLPHINS: The type of culture I have championed since the day that I walked through these doors has been one of honesty, respect, and accountability to one another.

TODD: Incognito has seemingly been involved in hazing rookies as shown in this clip from the HBO program "Hard Knocks."

INCOGNITO: Have you checked your Facebook lately? Maybe you shouldn't use your number for your iPad password, bud - 8484? I was going to put up something rude and then I saw the picture of your girlfriend and I felt bad.

UNIDENTIFIED MALE: That's my fiancee.

INCOGNITO: Fiancee, yes.

TODD: Players are now revealing more about NFL locker room culture. New York Giants safety, Antrel Rolle, spoke to WFAN radio.

ANTREL ROLLE, NEW YORK GIANTS: I think the other guy is just as more to blame as Richie because he has allowed it to happen. At this level, you're a man. You're not a little boy.

TODD: Former Redskins running back Brian Mitchell says the Incognito case extreme. Is that part of the NFL locker room culture? You have to stand up for yourself?

BRIAN MITCHELL, FORMER REDSKINS RUNNING BACK: It is part of the culture. Not everybody is that way. There are people that are that type of person. I'm that type of person but you don't knock a guy who does it.

(END VIDEOTAPE)

BANFIELD: Brian joins me live now from Washington. I think a lot of people still have a lot of questions about missing puzzle pieces in all of this. It's perplexing to think of a grown man calling someone in their locker room a bully. Is there something more that we don't know about his childhood and maybe a pattern of this at all?

TODD: Well ,we got an indication of that recently, Ashleigh. Linda Robertson, a columnist for "The Miami Herald" did some digging into Incognito's background. She interviewed some people who he knew back in New Jersey, where he grew up apparently. And Robertson reported that he, himself - Incognito himself was bullied as a kid when playing baseball and little league in New Jersey.

One kid who was small for his age bullied him and teased him about his weight and that his father, who was kind of a tough guy, encouraged Incognito to fight back and did that and then ran home crying because he was so upset over the episode. That was detailed in a Linda Robertson column in "The Miami Herald" recently, Ashleigh.

BANFIELD: That's funny you just brought to light that it was actually Incognito that was the subject of that story and not Martin. I was thinking it was Martin. It's all very confusing. Thank you for that. Appreciate it. Nice to see you.

TODD: Sure.

BANFIELD: When you hear the words "nuclear power," perhaps you think about disasters like Chernobyl or Fukushima. CNN's newest film may change your thinking altogether. It's called "PANDORA'S PROMISE" and it certainly does challenge the existing stereotypes about nuclear energy.

In fact, some thought (ph) leaders, including Pulitzer Prize-winner Richard Rose, actually think that nuclear power is doing a hack of a lot of good and has some evidence on it. You can see "PANDORA'S PROMISE," it airs tonight right here on CNN at 9:00 pm. Highly encourage you to check out that film.

CNN is digging a lot deeper into the death of Georgia teenager Kendrick Johnson. Yet again a new series of videos coming out of the police investigation. Do they give us answers or do they give us more questions? You're going to see those videos next.

(COMMERCIAL BREAK)

BANFIELD: Fourteen states, soon to be 15, allow same-sex couples to marry. Gay troops can be out and still stay in the armed forces and the Defense of Marriage Act has been found indefensible by the highest court in the land. So there's your landscape, right? Gay rights in America. Not quite. In 29 of these United States, being gay is still a fireable offense. Let that sink in. Being gay can get you fired. The states you see in yellow have no legal workplace protections for lesbian, gay, bisexual, or transgender employees.

(BEGIN VIDEO CLIP)

ANDRE COOLEY, FIRED FOR BEING GAY: The fact that there isn't a law that protects LGBT people is scary, because from one minute to the next you can have the best life and at any point, it can be taken away just, you know, on the fact that you're gay.

(END VIDEO CLIP)

BANFIELD: That's Andre Cooley, a corrections officer in Mississippi who was fired out of the blue when his bosses learned he had a boyfriend. The United States Senate tried to pass federal protections as far back as 1996, but it fell one vote short.

Today, however, in fact this afternoon, the Employment Nondiscrimination Act is almost certain to pass the Senate. Test vote on Monday got the support of every Democratic senator plus seven Republicans. Do the math, that's 61 votes in all. That does not mean clear the House, though, because that could be a really big hurdle considering the House speaker is not so fond of this bill.

Want to get the LEGAL VIEW with civil rights attorney and blogger, and legal analyst, and friend, Lisa Bloom. I have to be honest with you. As I mentioned this story to a number of people, they said "what?"

LISA BLOOM, CIVIL RIGHTS ATTORNEY: Yes. People are shocked.

BANFIELD: You can't do that if you're black. You can't do that if you're Jewish. How can you do this if you're gay? But you can.

BLOOM: Yes.

BANFIELD: The argument against this bill is that it will cost jobs and create frivolous lawsuits.