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Legal View with Ashleigh Banfield

Supreme Court Halts Gay Marriage in Utah; Record-Breaking Cold Across Nation; Two Children Brain Dead After Routine Medical Procedures in Separate Cases

Aired January 06, 2014 - 11:00   ET

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

CAROL COSTELLO, CNN ANCHOR: Can't wait. Thank you, Rachel.

And thank you for joining me today. I'm Carol Costello.

LEGAL VIEW with Ashleigh Banfield starts now.

ASHLEIGH BANFIELD, CNN ANCHOR: Breaking news this hour, the United States Supreme Court sidelines gay marriage in Utah, at least for now.

And also ahead, the arctic invasion of America, with temperatures headed below zero way down in Alabama, just how low can it go in places like Minnesota?

And a 3-year-old girl dead after a visit to the dentist. What are devastated parents to do when the unthinkable happens? We're going to get the LEGAL VIEW on that.

And later this hour, the "Tiger Mom" roaring back onto the scene with some provocative opinions on which cultures succeed in America and which cultures fail. Where exactly do you think you fit in?

Hello, everyone. I'm Ashleigh Banfield. It is Monday, January 6th, and welcome to LEGAL VIEW.

Breaking news from the highest court in the land, no more same-sex weddings in Utah for the foreseeable future.

The state prevailed for now and lost -- in a battle that it had lost two lower courts ago. Our senior legal analyst, Jeffrey Toobin, joins me now with the details.

Let's set the stage here, the Supreme Court weighing in this morning on something we had been waiting on, saying, Utah, put the brakes on.

A federal judge may not have done the right thing?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, the appeals process is going to go forward, but it will go forward with same-sex marriages banned in Utah.

Same-sex marriage has been legal in Utah since a federal district court judge, about two weeks ago, decided that the Constitution required Utah to allow gay people to get married. The court of appeals for the Tenth Circuit did not disturb that ruling, but just a few minutes ago, the United States Supreme Court, unanimously, all nine justices, said, there should be a stay. This ruling should be on hold while the United States Court of Appeals for the Tenth Circuit decides the case.

That could take weeks or probably even months.

BANFIELD: What's the issue? What is it that the Supreme Court wants the federal court to re-examine?

TOOBIN: The issue here is a really profound one. This is really the big case that a lot of us have been waiting for.

BANFIELD: Because it seemed kind of simple, Jeff. It seemed like the federal judge said, the law in Utah banning gays from marrying is unconstitutional.

What can be reexamined?

TOOBIN: The issue is whether he was right or wrong. It's very simple.

A lot of people believe that the federal constitution says nothing about same-sex marriage, does not give same-sex couples a right to marry.

This judge said, my reading of the Constitution is that it requires Utah to allow this case -- to allow gay people to get married.

What makes this case so important is that his reasoning would apply in all 50 states, so if his reasoning is adopted by the Tenth Circuit, by the United States Supreme Court, this wouldn't be about the 18 or 19 states that have same-sex marriage now. This would be a case that would give same-sex marriage throughout the United States.

So that's why this case is so big.

BANFIELD: Oftentimes, when people hear about court cases that don't go a certain way and could they appeal? It's not -- you can't appeal just because you don't like the way something comes down. Oftentimes, it has to be procedural.

This is what I don't understand about what the Supreme Court is asking of the lower court, of the federal court.

What exactly could be rethought through? If that's how he felt, the judge, that's how he felt. What changes?

TOOBIN: It's his legal judgment that can be appealed. It's not a factual issue like a jury finding guilty or not guilty.

The judge made a legal conclusion. The judge said, on my reading of the United States Constitution, Utah must allow gay people to get married.

That's a legal judgment. That can always be appealed. BANFIELD: Does the whole circuit now have to weigh in on this, or does that judge have to re-weigh in on this?

TOOBIN: No, it's the circuit court of appeals, the Tenth Circuit, which covers most of the Mountain West and Utah and the states around it.

That ruling will apply in all of those states once the court gets it.

BANFIELD: OK, so about 900 lesbian and gay couples have married. That seems very high to me. I'll have to recheck that.

TOOBIN: No, I think that's right.

BANFIELD: That seems like a lot since December 20th.

What happens to those marriage? Are they valid?

TOOBIN: Good question. I think the answer is probably yes, but no one knows for sure. And there may actually be proceedings in the district court to address that very question.

There has been nothing that -- no legal judgment that says these marriages are not legal, so they are married as far as I can tell.

But I think the fact that this law -- that this ruling has been placed on hold certainly places a shadow over those marriages, and I think it's not entirely settled now what the status of those marriages is.

BANFIELD: Just to make it real clear and real simple, now this has been ping-ponged back to the Tenth Circuit, what happens when the Tenth Circuit ultimately comes out with another decision? Can it go right back up -- how often can this game go on?

TOOBIN: There is no ping-pong, at this point. It is just going straight through the process.

District court made its ruling. The Tenth Circuit will now decide whether the judge in Utah was correct or incorrect.

After that, the losing side can go to the Supreme Court.

But just in terms of the actual facts, in terms of what really matters today, if you are a same-sex couple, you cannot get married in Utah. You could get married last week. You can't get married this week.

And you can't get married, I think it is safe to say, for the foreseeable future, weeks, months, until the Tenth Circuit decides this case.

BANFIELD: Ultimately, I find it fascinating that this one is so potentially precedent-setting whereas maybe California wasn't.

TOOBIN: It wasn't. That case really had a lot of peculiarities to California. This case has the potential to be relevant for all 50 states, very important. BANFIELD: All right, we'll continue to watch this. Clearly, a very significant decision today.

TOOBIN: And, also, it is important to point out, no dissent in the Supreme Court.

BANFIELD: Right.

TOOBIN: Even the liberals were on that side.

BANFIELD: A little surprising, right?

TOOBIN: A little surprising. All nine justices said, let's wait. Let's put these marriages on hold.

BANFIELD: That's why I asked. What on earth could it possibly be that they were so certain?

TOOBIN: It's a difficult legal issue that has never been resolved by the Supreme Court. And maybe as a result of this, the Supreme Court will take it up.

BANFIELD: Will likely have to.

Jeff, thank you so much. Good that you were here for that breaking news, as well.

Another big story that we are following at this hour. If you are part of half the country, and there is a really good chance you are, bitter cold all the way from Maine to Montgomery, Alabama, below freezing temperatures in Detroit and Philadelphia.

We are live across the U.S. to find out how bad it is, how bad it might get and where you fall into this mess.

Back in a moment.

(COMMERCIAL BREAK)

BANFIELD: Bitter cold does not even begin to describe the story we are embarking on. We're talking some of the coldest temperatures in 20 years are blanketing this country.

Records will be broken. Half the United States will get temperatures below zero by Wednesday.

And between today and tomorrow, are you ready for this, every single state in this union is expected to have an area that gets below freezing. And I'm talking to you, too, Hawaii. Below freezing.

This is a double whammy for the Midwest that just got socked with a snowstorm. And it made the roads in Illinois an absolute nightmare. How'd you like to be out in that?

Indianapolis got almost a foot of snow yesterday. One guy brave to do this, biking it in. How do you like that? That is rough going. Most people had a hard time just getting started. Neighbors and friends, that's the way you do it. It's a community. It takes a village.

Schools are closed today in places like Chicago and Detroit, St. Louis and Milwaukee.

We've got crews in all of these places, right across the country, in fact. Our Stephanie Elam is live in Minneapolis where it is 18-below, but it feels like 44 below.

Alexandra Field is live at JFK in New York, and Alexandra Steele is tracking it all from the Weather Center.

The reason we're seeing the two of you, and we're not seeing Stephanie Elma on her live shot, is because her live shot froze, Alexandra and Alexandra. Sorry to say it. I am sure that Alexandra Field knows what I'm talking about, because she's actually in the field.

But, Stephanie, I know you are on the phone with us. First of all, how bad is it and how did the live shot all freeze up? What's the circumstance?

STEPHANIE ELAM, CNN CORRESPONDENT (via telephone): Ashleigh, I keep trying to find a better word to describe this than cold, because it doesn't do it justice.

I was standing in front of the camera trying to make it all work and the team was working on the truck, which froze, so we couldn't see it.

And I was trying to put the little earpiece in so I could hear you, and my fingers, I -- they have never been this cold. Right now, they are just starting to move again.

Within five minutes out there, you start to feel the effects. The river we are standing next to is frozen.

And on our flight here to Minneapolis, last night, I was sitting next to a woman who's from here. She says she does not remember in her lifetime the schools closing because of cold, not because of snow, but because of cold.

We checked in with the city. They're saying the last time this happened was 1997. And they've even closed down the zoo, because they don't want people thinking that that's an OK place to go.

Crime is way down. The things that they are seeing are more domestic issues. But the streets? There is no one doing anything.

It is so brutally cold here and bitter. And it's not just air, I mean, just standing, it's the air. The wind comes through, and no matter how many layers on, it just cuts right through you.

I have never felt anything like this before, Ashleigh, in my life.

BANFIELD: I have. I grew up in it. And let me tell you, Stephanie, I know exactly what you are going through.

I had to report outside in 40-below and my mouth froze. And I could only talk through a very -- it's just an unusual feeling.

And unless you have been through it, you've got to walk a mile in those shoes, and it is very painful. So, hats off you.

Don't "hats off," you, but everyone else, hats off to you for doing this work, you and your crew.

And Alexandra Steele and Alexandra Field, I want to get you guys back up on the monitor if I can.

I'll start with you, Alexandra Field, because we've got a bit of a crisis with the airlines, a lot of cancellations and a lot of problems for people trying to get around.

Give me the lowdown if you would.

Is it just me who can't hear her? Oh, man. You know what, Alexandra, you know what? Well, Alexandra on the left. We have two of you. Your mike is frozen. Who'd have thunk?

All right, Alexandra Steele, take it away.

ALEXANDRA STEELE, AMS METEOROLOGIST: You are stuck with me.

BANFIELD: I guess you're not surprised, being the meteorologist in the house.

STEELE: No. And listening to Stephanie Elam out there say, I can't imagine what's happening. This feels like the worst thing that's ever happened.

Now, what we have is called actually a PDS, and I am going to get to that. It is called a Particularly Dangerous Situation, and it's very rare that it gets put out for the cold, usually for tornadoes.

So, let me show you. All right, a piece of this polar vortex, right? You are all learning so much about it. It is the coldest air in the northern hemisphere. And it is finding us, not only here in the upper Midwest, in the East, in the Southeast, as well, a modified version, but certainly colder air than anyone really has ever seen.

And for some, this is the delineation of a PDS, particularly dangerous situation, in Minneapolis, of course, and it's really a combination. It's the cold, colder than it's been. It's the wind, dropping wind chills to 50- and 60-below. And it's also the snow here.

And, also, they don't want people outside, places like Indianapolis. You are not supposed to drive. It is not about they don't want you to go anywhere. What it is, with all of that situation happening, God forbid something happens to your car, the antifreeze could freeze and you would be stuck outside in this life threatening temperature and condition. So, this is why. Look at this. International falls. Current wind shill in Duluth 51 below. Frostbite you get in five minutes in 50 degree below zero. Thirty-five below, you get frostbite in ten minutes. Your face just freezes. Also, the antifreeze freezes at 35 below. These brutally cold temperatures are dropping south, and I'm going to tell you how long it's been since we hit single digits in Atlanta and farther south coming up as well.

BANFIELD: Which is why, Alexandra Steele, in a lot of the northern climes, people have plugs coming out of the front grill of their cars, because when they park, they actually plug in the engine block so it doesn't freeze solid. That's how I grew up. I know it looks weird for people that haven't seen it, but that's just a reality for those places.

Miss Steels, stand by for a moment. I am told that we have at least warmed up that microphone enough to get Miss Field in the field back up and running. Alexandra, I don't know if it was the cold that had the bugaboos taking out your life shot. Give me the story if you can about flights because they seem to be dropping like flies.

STEELE: Sure thing. Well, Stephanie gave you the audio. We figured we will give you the video and now we will give you both, we hope. The situation with the flight is this: 3,100 flights nationwide canceled right now, 1,800 flights delayed. Yesterday, there were 3,800 flights that were canceled. You can see the build-up in the system.

The big problem, the culprit is the issue in the Midwest. Chicago International Airport, O'Hare International Airport, excuse me, in Chicago had half of its flights coming in and out canceled earlier because of the icy conditions, because of the blizzard conditions. When you have a big hub like that tied up because of weather concerns, it sends a ripple effect out across the country. That's why passengers have been camped out and trying to get out on any flights they can get out on. Some people say they have been waiting in the airports since Friday.

The good news, if there is any good news, is that people are really starting to understand and hear about the issues, the delays and cancellations. More people have the opportunity to wait at home, sit it out, check in with their airline and see if there is a flight before they head to the airport. If you are already en route, you could be stuck sitting in an airport, just hoping to get on the next flight.

JFK here in New York City is operating well right now. Yesterday, it shut down for a couple of hours after a plane skidded off the runway into a snow bank. All the passengers onboard were safe. Airport functioning again now, but weather causing problems just about everywhere, Ashleigh.

BANFIELD: All right, Alexandra. Thank you. I am hearing that Stephanie Elam has been able to get a signal back up to us in Minneapolis where the wind chills are somewhere around minus 50. Oh my gosh! Look at you. Oh! What an assignment! Are you okay? STEPHANIE ELAM, CNN CORRESPONDENT: I'm okay right now. I'm worried more about Greg, our photo journalist who's been running around here running cables and coming out here. It is so cold. You probably won't be able to tell but the river behind is us completely frozen. Things are freezing on my body that I didn't know were possibly to freeze, Ashleigh.

BANFIELD: Oh, honey!

ELAM: It is so cold! Even taking the air in and breathing it. I know people from the northern climes are used to this. But as someone from California, who spent a long time in New York, this is new for me. Unbelievable. Even the streets are pretty clear. We've seen a few people out walking, but most of all, people are staying inside as they should. This is not the kind of cold you want to play around with at all.

BANFIELD: Oh, Stephanie, I feel so bad for you. I know what you're talking about. When you take that breath in, no matter where you're from, California or Winnipeg, it actually physically hurts to breathe. And you know - are you guys able to actually manage this today? I mean, I hope you have a spot to go. Your live truck is warm enough for your warm-up in between shots?

ELAM: We just keep running back. If you could see how close we have parked the truck, trying to hide it from the wind a little bit. That's the real issue here. It is snowing ever so lightly in little bits today. It is like you don't think about that. It's really about the wind. We are trying to hide ourselves a little bit from the wind when we come out to do these shots and then run back into the truck and hide out there for a little bit. It is not the kind of weather where you can stand out here for a little time.

The last time, I took my little gloves off so I could put my earpiece in. In a couple of minutes, it was so bad I had to run to the truck and warm my hands up. I am learning how to act in this kind of cold. I will be a pro by the end of today, I think.

BANFIELD: And it's an art. It's an absolute art. I don't know how the California girl got this assignment. They should've sent me out there, and even then I'm not - listen, no one, no one can withstand -- I did once a six-hour snowmobile trip on a snow machine (ph) in minus 40. I will tell you that, and there is an art to dressing, and there's an art to moving a lot, but right now you get yourself and your crew back into something warm, and be careful.

Stephanie, Elam, thank you. My heart goes out to everybody in that vicinity where it is just so the painfully cold. Please be careful of your pets and your children. If you let a pet out in the backyard, great advice, set your timer so you don't forget. Forgetting for a few minutes can be extraordinarily painful and deadly. Please, pleads, be careful.

We are watching this weather story all throughout the day. CNN is committed top making sure sthat you have the safe information you need, and then also we're going to let you know where your weather story is going and when you're going to get out of this mess and this flight crisis as well. We are on it with a big team right out across the country.

Just ahead, we have another story we are following. Two girls into two separate states left brain dead after routine medical procedures. What can parents do when the unthinkable happens? We are going to get THE LEGAL VIEW on it next.

(COMMERCIAL BREAK)

BANFIELD: In Oakland, California, 13-year-old Jahi McMath who was pronounced braindead last month after complications following tonsil surgery, has been taken from Children's Hospital to an undisclosed location. An attorney for the family said secrecy was necessary because of all the intense emotions surrounding the family's court battle to keep her on a ventilator.

(BEGIN VIDEO CLIP)

CHRISTOPHER DOLAN, MCMATH FAMILY ATTORNEY: We have had people make threats from around the country. It is sad that people act that way. For Jahi's safety, and those around her, we will not be saying where she went or where she is.

OMARI SEALEY, JAHI'S UNCLE: We are very are we grateful, very proud. We want to thank everyone that supported us, everyone that stood in our corner, everyone that prayed for us, everyone that helped donate to make this possible. Without you guys, none of this would be possible.

(END VIDEO CLIP)

BANFIELD: Even though a death certificate was filled out for Jahi on December 12, her family believes that she might be revived if given enough time and care.

And in Hawaii, the parents of 3-year-old Finley Boyle are now suing a dentist for allegedly overmedicating their daughter during a dental procedure, and not monitoring the child closely enough in their opinion. Finley died on Friday after a month on life support. Nana Akua of affiliate KITV explains what allegedly led to Finley's cardiac arrest and brain damage while she was at the dentist.

(BEGIN VIDEOTAPE)

NANA AKUA, KITV REPORTER: One month after Finley Boyle visited the dentist, she died at Hawaii Hospice.

ASHLEY BOYLE, MOTHER: To see her go from a happy, healthy 3-year-old to going through puberty and a diaper 15 years later is not the choice I was going to make.

RICHARD FRIED JR., ATTORNEY: She was in a persistent vegetative state. They felt this is what she would want. As difficult as it was, they felt that was the right choice. AKUA: The family's lower, Richard Fried, said Dr. Lily Geier with Island Dentistry for Children, made many wrong choices. When Finley went in for a dentist appointment, she left with permanent brain damage.

FRIED: It was very sad, their only child, it's totally unnecessary. This was a perfectly normal, healthy, maybe unusually bright, full of life child.

AKUA: He says Finley was getting ten different procedures, four which were a type of root canal, and says she was given five drugs in very excessive doses. And adding to the problem, she wasn't monitored throughout the procedure.

BOYLE: Clearly, once we got the second MRI back, it was devastating. Everything except the brain stem, which the brain stem tells you to breath and gives you blood pressure and tells you to breath, that's why she is alive. It was the only last bit that didn't get ischemia, a lack of oxygen.

AKUA: Lawyers say someone from the office had to run down the hall to get a pediatrician to revive her. By then, it was too late.

(END VIDEOTAPE)

BANFIELD: Our thanks to Nana Akua for that report. I want to bring in our legal analysts, Mark O'Mara and Paul Callan. Mark, let my begin with you. So often when a lay person hears about a child going to a medical professional, a dentist in this particular case, and the child ends up dead after what seems like fairly routine surgery, they automatically think it is a slam-dunk for malpractice. Is it?

MARK O'MARA, CNN LEGAL ANALYST: Well, it's horrific that the family had to go through this, but it's really a slam-dunk. Malpractice only exists if you so violate the standard of care that should be held liable. That's why we all sign these release forms whenever we go to a doctor for this type of medical care. There is always a concern that there may be some problems.

In this case, the problems may have come if the child was not under constant monitoring. That is something that should have happened. Also, the child should have been on an oxygen censor and a pulsometer to check the pulse, and they would've given out alarms had there been problems. So, there's going to be some questions over whether or not this dentist did what she should have done, but it is a very high standard to find a doctor guilty of malpractice.

BANFIELD: So, Paul Callan, if you have to know all of those specific details, how is a parent supposed to know those details? We are not in there when these procedures are going on.

PAUL CALLAN, CNN LEGAL ANALYST: Well, I think you just have to be very careful about consenting to having anesthesia of this kind used in a dental procedure. First of all, I think we have gotten lured into the idea that medicine is so safe now, that you can go under a general anesthetic or what's called conscious sedation, which is less than a general, and it is perfectly safe. Well you know, there is a risk of death in every procedure. If you've got a child who is going in for dental work --

BANFIELD: I don't know Paul. You know what, though? She was going to get six fillings and four root canals. I don't think you can do that under local.

CALLAN: Well, you know, the other issue that's been raised by the lawyers in this case is did she need all of that dental work? We're getting back to the question you have just raised. Don't we have to depend on our medical professionals? And we do, so you can't blame the parents in any way for this, and if there is negligence, the dentist will be held liable under law.

BANFIELD: Paul Callan and Mark O'Mara, stay with me if you will. I have a couple more things I want to talk with you about.

In the meantime, during the next 48 hours, all 50 of our United States will be affected by extraordinarily record-breaking cold weather. We are going to check in in Atlanta where normally, a pretty good place to go, but today it's going to be colder than Anchorage, Alaska. That's right. Book your flight north for a little warm mid-winter vacation. Forecast coming up.

(COMMERCIAL BREAK)