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LEGAL VIEW WITH ASHLEIGH BANFIELD

Student Suspended for Hugging Teacher; Woman Fights DUI in Minnesota Supreme Court; Chris Brown's Probation Revoked.

Aired December 17, 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: Welcome back to LEGAL VIEW. I'm Ashleigh Banfield.

We told you about a 6 year old boy who was suspended from school for kissing a girl on the hand. That was a couple of days ago. Today, I want you to meet a high school student who was suspended for one year for hugging a teacher, and they called it sexual harassment.

CNN's digital correspondent, Kelly Wallace, shows us the surveillance so you can judge for yourself.

(BEGIN VIDEOTAPE)

KELLY WALLACE, CNN CORRESPONDENT (voice-over): Surveillance footage from the Duluth High School shows Sam McNair, a senior, placing his hands around the teacher. After that seemingly innocuous act he was suspended for one year, ruining his chance for a lacrosse scholarship.

SAM MCNAIR, STUDENT: It threw everything off. Without a high school diploma and graduating on time, I wouldn't be able to receive that scholarship.

WALLACE: Take a look. Sam approaches the teacher from behind but hugs her, but watch closely. She pushes him and he walks away.

MCNAIR: I was thinking that maybe she had a bad day or something, you know. But usually a hug would help a person in that case, but, I mean, she took it the other way.

WALLACE: According to the discipline report obtained by our affiliate WGCL, the teacher claims Sam's lips and cheeks touched her neck. She's always claimed she warned him before, both things the student denies. He does admit to hugging this teacher in the past but he says he's never received warnings.

A representative of the Duluth High School says, "This is a discipline issue and, if a parent has concerns about the outcome, he or she is entitled to appeal the decision."

APRIL MCNAIR, MOTHER OF SAM MCNAIR: Just, you know, blind-side us like this and say sexual harassment and the video doesn't show that, it's just a little bit unfair for the punishment that he's received.

(END VIDEOTAPE)

BANFIELD: And Kelly Wallace joins me now, along with our legal analysts, Danny Cevallos and Joey Jackson.

Kelly, let me begin with you. At its surface, this seems absolutely ridiculous. Usually, there's something more under the surface, but in his past is there anything to indicate something more?

WALLACE: When we ask the district, they say they can't talk about the specifics because it's a discipline issue and they can't talk about his past record. But they say the hearing officers will take the past discipline record into account, including any long-term suspensions when they're deciding consequences. Sam McNair says, yes, he has a discipline record and he has been suspended before, but never for sexual harassment. He also says, as we reported in there, that he's been hugging teacher, even this teacher, and no one has warned him before, although this teacher does say she did warn him to stop doing it.

BANFIELD: Danny, jump in here. I know you have very strong feelings about where we've come to when it comes to discipline, school policies, anti-bullying, and now you have this one on your plate.

DANNY CEVALLOS, CNN LEGAL ANALYST: I do. I'm up two minds about this. There is a part where if the kid's been warned to stop hugging, stop it off. Mine if we're having a discussion about whether his lips touched her neck, the tie has to go to the teacher. They have to maintain an educational environment.

On the other hand, we've gone suspension-happy. The neuroscience now backs up what parents have known for millennia, and that is children are different. They develop at a different rate. They're at a different developmental place than adults. So if we suspend them and give them this long-lasting punishment that affects them. If you take a kid off his sports team, that can affect their future. I've about seen that happen. I've seen people lose their scholarships because of this.

BANFIELD: That's where I'm going next. Not one suspension is like the next. For this kid it might affect his university as well.

JOEY JACKSON, HLN LEGAL ANALYST: Of course, it can. Ashleigh, where has the innocence gone? Are we a society of robots? What's the matter with a little affection, a little attention, a little concern? It didn't appear to me he had any type of gratification when he was hugging her. It seemed like a simple hug.

To get to the core issue, is the penalty this proportionate to the offense? You're going to suspend him for the whole year? I think you have to apply laws, policies, reasonably, rationally. I don't think that was the case here.

WALLACE: And also the mom said that if there was this problem about her son hugging teachers and teachers were upset, why didn't anyone tell her.

BANFIELD: Call me.

(CROSSTALK)

WALLACE: Call me, let's talk about it. Hello.

CEVALLOS: Are you just not supposed to be hugging people at school? I mean we have to have a modicum of control. This kind of thing -- I think the problem is, this kind of thing, 20 years ago, would have been a trip to the principal's office. Maybe you would have gotten a hollering at, and then you move on with your life. It's these long- lasting punishments.

BANFIELD: I want to say, 20 years ago, I think that teacher would have been able to smack him.

(CROSSTALK)

(LAUGHTER)

JACKSON: He appears such a gentleman. It was a hug, he moves away. It doesn't seem to be the huge deal that would have equate to a suspension and everything else.

(CROSSTALK)

BANFIELD: It's not a smack on the buttocks.

(CROSSTALK)

BANFIELD: That I would say is a year's suspension. If a student thought he could get away with smacking a teacher's buttocks.

WALLACE: Exactly. And we're talking also what kind of lesson is the school teaching kids about what is appropriate and what isn't? And as you said, obviously, we shouldn't be hugging, but, you know, I'm a hugger. We were talking about it before. Other people are. We want to make sure we're sending the right messages to our kids and, at the same time, talking about what is appropriate and what isn't.

JACKSON: I don't know that this is the right message at all. But I'm on board with you.

CEVALLOS: Hugging is a consensual act. The other party has to be involved.

(CROSSTALK)

(LAUGHTER)

BANFIELD: Go for it. That's it.

JACKSON: There you have it.

(CROSSTALK)

BANFIELD: All right. That is a holiday moment right there.

(LAUGHTER)

Kelly Wallace, Danny and Joey, thank you for that.

I'm going to ask you two legal eagles to stay put.

I'm going to give you a break since you've had a very long day already, doing "New Day" this morning.

WALLACE: Thank you.

BANFIELD: When we get back, we're going to go trait to the White House. We got video with the president and that very interesting closed-door meeting with the tech titans. How about that? As we reported at the top of the hour, top executives from Apple, Google, Yahoo! and many other major money making firms hoping to get a little untangled from the World Wide Web surveillance. Last week, they sent the White House, you might say, a stern letter. They called it an open letter complaining that' America's freedoms have become eroded and they're part and parcel of it because it's on their gear. Just yesterday, a federal judge came to a very similar conclusion, in fact, in a case involving NSA collection of virtually every American's phone records. It's that magic stuff called metadata, and just how much of it applies to the Fourth Amendment and your protections and privacies.

Coming up next, being penalized for trying to save her own life. Listen closely. A Minnesota woman ticketed for drunken driver as she was trying to flee an abusive husband. Her case is now going before the state supreme court. I'm going to tear this one down, let you know exactly what happened in a moment.

(COMMERCIAL BREAK)

BANFIELD: At first glance, this seems to be a pretty cut-and-dry case. A Minnesota woman arrested on a drunk driving charge. She pleaded guilty for careless driving and her license was suspended for six months. That's one part of the story, a small part. Jennifer Axleburg admits that she had been drinking but she drove off in her car so that she could escape her drunk and abusive husband. And now Axleburg's case is before the Minnesota Supreme Court and she wants the DUI conviction removed from her record. The state argues that she put her life and others lives at risk.

But here with their take on this case, CNN legal analyst, Danny Cevallos; and HLN legal analyst, Joey Jackson. They're back and they're at it again.

Me thinks you're not going to hug over this one.

JACKSON: No.

BANFIELD: This is a case that's not cookie-cutter and the laws don't perfectly apply. When that happens, Danny, how is this that this can happen to her? CEVALLOS: Let's start with the broader public policy. We know we want to keep the necessity offense very narrow. That's what she's arguing. I had to commit this crime because a greater harm was going happen to me. And she has to show that. But we have to narrowly construe that. Otherwise, people will make the argument, I had to drive drunk because --

(CROSSTALK)

CEVALLOS: Yeah -- because I had to go to the store after I went to the bar and I absolutely had to go there. The point is we need to narrowly construe it. That's exactly what the court will do. They'll look at any reason why they'll see she could have done some alternate thing instead of getting in the car. But this case has that perfect set of facts that maybe she has shown it. In the middle of nowhere, no phone, man punching the windshield, splintering it. So this could be it.

JACKSON: This is not "he said, she said."

CEVALLOS: At all. And there's the window.

BANFIELD: There's the windshield, right there.

Joey, tell me how is this any different from Stand your Ground?

JACKSON: Listen --

BANFIELD: Because if I'm in eminent danger, I'm allowed to injure or kill someone so my life can be spared.

JACKSON: Ashleigh, as usual, it's a wonderful point. Here's the thing, if I'm on that bench, in that court, I'm going to rule in her favor. Here's why. You look at three specific elements. You pointed to one of them. Eminence. Are you an imminent threat? Is there an eminent threat there? When you look at the windshield and to the extent that her husband was coming after her, you see there's eminence. Number two, are there reasonable alternatives? What else could she have done? If you read the brief, as we have, right, if you look at that her options were limited because she could have been beaten or worse by her husband or -- sure.

BANFIELD: Let me outline those. They're at a rural cabin. She can't run to another cabin --

JACKSON: Exactly.

BANFIELD: -- because he says he'll outrun her. She can't get back in the cabin because he's blocking the door. And she can't call for help because he's taken her phone. She takes off in the car as he's slamming on her windshield. They arrive at the resort about a mile away and there's a witness to see all of this and call for help.

JACKSON: You're so good, Ashleigh. And that's the argument to be made.

BANFIELD: I learn from you.

(LAUGHTER)

JACKSON: No, not at all. We learn from you. If you listen to this, the reality is it smacks of an exception to be made. What is necessity? Necessity is having no other option. Necessity is imminent. Necessity means you broke the law because you wanted to prevent yourself from being in danger. I think those elements are met here, and I think the court should carve out the exception.

BANFIELD: Two seconds left. Why is it at the supreme court? Why did it go this high?

CEVALLOS: Because statutorily, this is a case of first impression. All other necessity cases involve some guy driving eight miles and doing stuff that he could have had an alternative thing instead of driving. This may be a case of first impression.

JACKSON: It is. The easiest thing to do may be for the legislature to carve out a specific exception as it relates to this because it's not enumerated in the statutes. If they did that though, we wouldn't be talking about this.

BANFIELD: Do you want to talk a little Chris Brown after the break?

JACKSON: Absolutely.

CEVALLOS: Absolutely.

BANFIELD: There's more Chris Brown in the news, as if we haven't had enough.

JACKSON: Surprise, surprise.

BANFIELD: Surprise, surprise. He's apparently doing OK in rehab but apparently that's not enough to keep him out of jail. That's a real potential for this entertainer. Why is he sitting once again next that famous lawyer yet again in a courtroom? We'll explain.

(COMMERCIAL BREAK)

BANFIELD: Singer Chris Brown's probation has been revoked. But before you think he's going to be led in handcuffs to a jail cell, that's not going to happen, at least not right now anyway. The judge made the ruling yesterday, more than a month after Chris Brown was arrested for a fight in Washington, D.C., and that arrest spelled trouble because he was still on probation for beating up Rihanna in 2009. He's avoiding jail right now because he is in a court-ordered rehab program. But he has another hearing in February, which means the man, who just stood up, Mark Geragos, his very proficient attorney, is going to be very busy between now and then.

As is our legal panel. Back with us, CNN legal analyst, Danny Cevallos; and HLN legal analyst, Joey Jackson, are here with us.

This is one of those stories -- Danny, I'll start with you -- where a viewer sort of has to keep track how many times they see they guy appears in the news for doing naughty things and wondering why wasn't he put in the slammer three or four times while he was on probation.

CEVALLOS: Now he has to deal with what he calls his back judge, the original judge. How many times do we tell clients you don't want to go back in front of your back judge because you don't want the judge to regret putting you on probation in the first place?

JACKSON: We warned you about it.

CEVALLOS: We warned you about it. But a judge has a lot of different remedies he can choose from. He can sort of wait and see how he does in this rehab. But he does have the power to revoke and send him back to jail on the original case. Remember, that probation is an agreement. And an arrest -- believe me, an arrest can violate that probation without a conviction because you've essentially agreed --

(CROSSTALK)

CEVALLOS: Absolutely. It's what we call a technical violation. You're not a regular citizen. You're special. You've agreed with a judge that I will stay out of trouble and, by staying out of trouble, we're going to define that as an arrest alone. You have an obligation to run from trouble when on probation. That's what I tell clients.

(CROSSTALK)

CEVALLOS: If you see trouble, head for the hills. That's it.

(LAUGHTER)

BANFIELD: Head for the hills.

JACKSON: No question.

BANFIELD: So what are the odds that even the famed Mark Geragos can keep him out of the slammer?

JACKSON: Ashleigh, I think the odds are very good. I think what happens to Chris Brown is largely dependent upon Chris Brown. Why do I say that? Look, he's wonderful, he's talented. But apparently, he has some anger management issues and other issues that need to be dealt with. So --

(CROSSTALK)

BANFIELD: I've experienced it firsthand. I was in the "Good Morning, America" dressing rooms when he went ballistic and broke the window.

JACKSON: Ouch.

BANFIELD: There were a lot of scared colleagues of mine over there. I myself was scared.

JACKSON: Ouch.

BANFIELD: I have witnessed it firsthand. You're absolutely right. It's not a joke. It's very serious.

JACKSON: It is. What ends up happening is, if he's in this rehabilitation facility and they've given him favorable reports. Yes, he threw a rock through his mother's car window and things didn't go too well, but now they've given him a favorable report. They say he's progressing nicely, doing what he's supposed to do, doing community service. I would suspect, Ashleigh, if that keeps up and he continues along the path of rehabilitation, which we like in our system --

(CROSSTALK)

(LAUGHTER)

JACKSON: -- Mark Geragos will do just fine and he won't go to jail and continue to sing and entertain us and live happily ever, or so we hope.

BANFIELD: He is really, really, really good at that. And he's really, really bad with the other stuff.

Danny, Joey, good to have you as always.

JACKSON: Pleasure and privilege. Thank you.

BANFIELD: We don't have time to talk Khloe Kardashian.

JACKSON: Oh, boy.

BANFIELD: Another day.

CEVALLOS: Next time.

BANFIELD: Thanks, guys.

The Mega Million jackpot just got a little bigger. You're not going to believe this. Just over the course of us being on air, that jackpot has jumped. You will, too, when you find out how high. Back in a moment.

(COMMERCIAL BREAK)

BANFIELD: OK. This just in. Tonight's Mega Millions jackpot has just risen to $636 million. Yes. And if you're buying one of those tickets, you might want to live in one of the lucky states. Move quickly. Because here's the history for Mega Millions jackpots worth more than $100 million. California, you come in number one. The luckiest, with 10 winning tickets since '02. New York, number two. Nine winning tickets since then. And Ohio -- go figure -- eight.

So if you can't win it, steal it, is what this next guy thinks. You've got to believe this to see it. A full body scan from a Florida jail. Look closely in the tummy area because the suspect was allegedly driving a stolen car and driving around something else, something in his tummy, something he swallowed -- two necklaces, which appeared when they x-rayed him. That suspect had to have surgery to get the evidence out. Only on the "Legal View."

Thanks for watching everybody. AROUND THE WORLD starts right now.

SUZANNE MALVEAUX, CNN ANCHOR: Cut back on the spying, that is what the leaders of Twitter, Facebook, and more than a dozen other tech companies are talking to President Obama about at the White House today.

MICHAEL HOLMES, CNN ANCHOR: Bootleg recordings of never-before- released Beatles tunes hit iTunes. Then they're taken away less than an hour later, then they came back and then they went away again. We'll explain.

(LAUGHTER)

MALVEAUX: And happy birthday, Pope Francis. How does the pope choose to spend his 77th birthday? Having lunch with the homeless at the Vatican. Good for him.

Welcome to AROUND THE WORLD. I'm Suzanne Malveaux.

HOLMES: And I'm Michael Holmes. Thanks for your company today.

All right now, respecting your privacy while protecting national security. That hot-button issue is front and center at the White House right now.

MALVEAUX: President Obama is meeting with top executives of Apple, Google, Twitter, Yahoo! Microsoft, Facebook, just to name a few. 15 tech chiefs in all.