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Legal View with Ashleigh Banfield

"Boys Will Be Boys" in Montana Rapes?; Snake-Handling Tennessee Churches: They Shall Take Up Serpents; Supreme Court May Hear Poker Case

Aired February 18, 2014 - 12:30   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: Ever heard the expression, "Boys will be boys?" I say it about my two kids all the time. But this is something an actual prosecutor in Missoula, Montana, allegedly told a mom whose 5-year-old daughter had been sexually assaulted by an adolescent boy, "Boys will be boys."

The mother says that was the response that she got when she asked why the young attacker had only been sentenced to two years of community service. "Boys will be boys, ma'am," that's the allegation.

That shocking story comes from a Department of Justice report that accuses the Missoula County attorney's office of having something they call an institutionalized bias against women in sexual-assault cases.

Got a couple hard-to believe stories from this DOJ report, too. In one case, police obtained a confession from a man who had actually admitted to raping a woman. He admitted it, he confesses and yet no charges are filed. They said insufficient evidence.

In another case, a woman said she had been drugged and raped by someone she knew. Police actually found the video of the man apparently slipping a drug into the woman's drink. They also found some prescriptions for things commonly used as date-rape drugs. But no charges resulted. Again, prosecutor says insufficient evidence.

CNN has reached out to this prosecutor, the Missoula County attorney. His name is Fred Van Valkenburg. We wanted a comment on the DOJ report. So far, we've not had a response from him.

But Mr. Valkenburg did tell CNN's affiliate, KPAX, that the allegations in the report are, and I'll quote him, "ridiculous." He called the DOJ's report "retaliation," retaliation, because he had filed a lawsuit last week claiming the DOJ did not have the authority to investigate his office.

He did not file a report against the actual claims, so the "Dream Team" is back again, Danny Cevallos and Joey Jackson.

When we did the excerpting on this, I got your response email, and it was, "Wow." It was, "Wow." I'm a little speechless. I don't know even know where -- I don't know what question to start with, other than this one.

So the DOJ -- Department of Justice, the Feds, say they get a bunch of complaints from interested parties who have been allegedly wronged by this prosecutor's office, and they came in to investigate.

And the only complaint at this point from the prosecutor is you don't have the right to be here. Not these are all lies, and here's my reasons why.

JOEY JACKSON, HLN LEGAL ANALYST: It's, "Get out of my office."

BANFIELD: Get out of my office.

JACKSON: "You lack jurisdiction. I don't want to talk to you about this."

And you're right, Ashleigh. That was the response in the email, "Wow!" Who could believe this in this day and age that this is happening, OK? Now, this is a compliance review, and this is the evidence that was uncovered.

But even more compelling, before we get into this, when you look and you see that from January 2008 to May of 2012 of 85 reports by the police that were referred to the district attorney, you have 14 that were ultimately prosecuted, 17 percent.

And then you have a district attorney that says, "We investigate, but on our spare time." That becomes problematic.

And so what you have to do now is you have to look, if you're the Department of Justice and say, "Are you complying?" And if they're not, certainly the Department of Justice will take steps to ensure they do.

BANFIELD: Here's what I don't understand. I figured that there's this thing called the equal protection clause in the Constitution.

JACKSON: Oh, that. Fourteenth Amendment, yeah.

BANFIELD: That little amendment, right, that gives us all equal protection under the law, no matter what your sex, no matter what your complaint.

Is that why the DOJ went? And if that's the case, Danny, how can that county prosecutor say, "Get out of my office. You have no right to be here."

DANNY CEVALLOS, CNN LEGAL ANALYST: Here's why. This case walks the line between a fundamental issue in constitutional law, a fundamental issue in federalism, and it's this.

The federal government should not be intruding upon a local government's discretion to prosecutor or not prosecute. Instead, the federal government says they are investigating discriminatory practices under the 14th Amendment. And that's an important distinction, because states traditionally have the police power, which means they have the right to prosecute local crime.

So, looking at it from that perspective, it is understandable that the local government initially reacted with a little bit of, hey, what are you doing in my backyard when the federal government came knocking.

And when you read this letter, I believe it's very apparent that the reason the federal government wrote them up so poorly, made them look so bad, is that the local government resisted their investigation. And when you do that, the federal government will make sure in its memos, its 302s, that you do not look so good.

JACKSON: I would agree unless and until I saw -- prosecutorial discretion is one thing, OK? As a prosecutor, you have vast discretion to do what you think is appropriate.

BANFIELD: If you can't win the case, you don't waste the resources of the community.

JACKSON: But this was not predicated upon any discretionary actions of the local prosecutor. It was predicated upon their failure to act in the face of weighty evidence.

CEVALLOS: That's discretion.

JACKSON: It's predicated upon -- but it's not discretion if you have the evidence there -

BANFIELD: Right.

JACKSON: -- and you tell a victim -- you don't communicate with your victims. They're calling you. You don't respond to their phone calls. You're not responding with law enforcement officers or detectives or anybody else. And you're otherwise not bringing cases to court that you have the evidentiary goods to substantiate.

And that's a problem.

BANFIELD: The video and the confession.

JACKSON: That's a problem.

CEVALLOS: The problem, I agree with Joey -

BANFIELD: I've got to wrap it.

CEVALLOS: The problem is -

BANFIELD: Quickly.

CEVALLOS: They may not have the constitutional authority to be doing it. That may be a power left exclusively to the state.

So while I agree with Joey, it just may not --

BANFIELD: And maybe that's why the DOJ sent this to the press, right away, instead of sending it quietly.

He did say that they had worked long and hard with this prosecutor's office to come to some kind of a remedy, and they were getting nowhere and ultimately just said, all right, press, have at it.

JACKSON: Dragging feet is not something that gives you the basis to get relief.

BANFIELD: You know what they're saying in that very special place that makes this show run? You have to wrap. All right, stay with me. I have another case for you, as well.

A Kentucky pastor who starred in a reality show about snake-handling in church dies from the snakebite after refusing to be treated. We're going to take you inside a similar church, because a lot of people are asking a lot of questions.

How does this go on? Wait, isn't it illegal? And yet it still goes on? You're going to hear it right from the pastor's mouths who handle those snakes.

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BANFIELD: So the death of the Kentucky pastor who handles snakes this week and does so on a reality show called "Snake Salvation" has a lot of people talking.

How is this legal? How could you go into church with a whole bunch of parishioners and have deadly snakes? And there's children in those churches, too.

My colleague, Gary Tuchman, investigated this in 2012. He went to a church in Appalachia and spoke directly to the pastors who do this. Have a listen.

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GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): This church, in the heart of Appalachia, is completely quiet just before the service begins, except for the creature inside this locked box. It's a rattlesnake, and it's rattling. It's one of seven deadly snakes about to be used in a wild ceremony in God's name.

This is Pastor Andrew Hamblin. He's a 21-year-old serpent-handling pastor at the Tabernacle Church of God in La Follette, Tennessee.

He, his wife and the rest of his congregation practice Christianity much differently than almost all other Christians, using venomous snakes as part of their service. Why? They point to the New Testament, The Gospel of Mark, Chapter 16, Verse 18. It's stated in part, "They shall take up serpents."

Believers like Pastor Hamblin say, when God anoints them, they have an obligation to do this and that God will protect them. And even if they are bitten, their belief is God will heal them, no doctors necessary.

If it looks dangerous, that's because it is. It's also illegal in the state of Tennessee. But that only strengthens the pastor's conviction.

Snake-handling in churches is a tradition in decline. But Hamblin wants that to change.

(on-camera): It's against the law to have snakes in a church in Tennessee.

ANDREW HAMBLIN, SNAKE-HANDLING PASTOR: Right.

TUCHMAN: Does that concern you?

HAMBLIN: No, sir, it don't. No.

Now, if someone was to get bit and die, I know the authorities would come in on us and probably shut us down. So, that's why I stress so much to my people to make sure.

But now, if it's their appointed time to die, there's nothing I can do to prevent it.

TUCHMAN: This is not a con game. These snakes are poisonous. They can kill and they do kill.

(voice-over): Just a few weeks ago, the pastor of this church in the remote West Virginia town of Matoaka was bitten by one of his rattlesnakes during a service. Pastor Matt Wolfed initially refused medical care, but as he got seriously ill, he gave his permission to go to a hospital. But it was too late. He died the same day. The pastor's father died the same way three decades earlier.

TUCHMAN (on camera): Pastor Wolfed died two days after his 44th birthday. Outsiders were not invited to the funeral. But perhaps it's not surprising that the funeral home tells us snakes were part of the graveside ceremony.

ROY LEE CHRISTIAN JR: Any given time and could turn around and bite me. But like I said, the Lord -- either he'll let it bite or he won't let it bite, he'll let it hurt or he won't let it hurt. You know, it's all up to God.

TUCHMAN (voice-over): Roy Lee Christian Jr. is the assistant pastor at another church in West Virginia, the Church of the Lord Jesus in the town of Jolo. He was at the service where his friend, Pastor Wolfed, was fatally bitten. He's shocked and saddened, but his faith remains the same.

TUCHMAN (on camera): It says, "they shall take up serpents." That doesn't mean you have to, does it? Is that your interpretation that you must take up serpents?

CHRISTIAN: Well, if you believe the word of God strong enough and you really believe it and the Lord lives in you, you'll do it. TUCHMAN (voice-over): Back in Tennessee, the 21-year-old pastor says he's been bitten four times in two years. He says he almost died after the first bite and says he's prepared to lose his life from a snake bite if God determines that's how he should go.

HAMBLIN: I realize that, and I've thought about it. I have. I've really thought about it. But that's why it pays to be ready spiritually.

TUCHMAN: Another first from the new testament states that faith quenched the violence of fire. So that's why this test of faith happens at many of these services. This is called handling fire. People burning their hands, arms and other body parts with flames shooting out of bottles.

TUCHMAN (on camera): Are you ever worried that seeing people burn themselves and with snakes will frighten your children?

UNIDENTIFIED FEMALE: No, not really.

TUCHMAN: How come?

UNIDENTIFIED FEMALE: With God in it, they ain't no harm in it.

TUCHMAN (voice-over): This woman had been crying during much of the service. The pastor saying she had been going through some emotional difficulties. She then took to the altar, grabbing a rattlesnake and shaking it with abandon, almost daring the serpent to sink its teeth into her skin. To us, it looked like she had no idea about the personal risk. Pastor Hamblin, though, claims God had anointed her to handle this deadly serpent.

HAMBLIN: I'll sing before Christ Jesus, and I'll be judged according to my work on this earth.

TUCHMAN: The people we talked to at this church know what happened to Pastor Wolfed in West Virginia, but that risk won't stop them from coming back to this church, looking for salvation in ways both unusual and (INAUDIBLE).

Gary Tuchman, CNN, La Follette, Tennessee.

(END VIDEOTAPE)

ASHLEIGH BANFIELD, CNN ANCHOR: I'm sorry. I'm stuck on the idea that there are children just a couple of feet away from these deadly snakes. OK, so listen, do you ever play that game of poker with your friends on a Friday night, make in your garage or your living room or your basement? The Supreme Court might be about to tell you that's a federal crime. Or they might not. You'll find out why, next.

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BANFIELD: You're probably not going to want to hear this, but your poker night at home soon could be a federal crime. The Supreme Court's going to decide this week if it's even going to take up a case that would end up causing your living room to be a crime scene. This may sound very surprising since poker is really everywhere, especially Texas Hold 'Em, which has seen a real boom thanks to movies like "Rounders."

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Each player is dealt two cards face-down. Five cards are then dealt face-up across the middle. These are communities cards everyone can use to make the best five-card hand. The key to the game is playing the man, not the cards.

(END VIDEO CLIP)

BANFIELD: Ah, playing the man, not the cards. This may seem harmless, but some states call illegal gambling just that, illegal. The case that the Supreme Court is thinking of considering centers around a New York man. He ran a Texas Hold 'Em game at his bike shop in the back room. And the Justice Department busted him for operating an illegal gambling business and then it kind of went up the chain of appeals, et cetera. So now it's at the top court. And our legal panel is back, Danny Cevallos and Joey Jackson.

So I never really thought I would think of a Texas Hold 'Em game going all the way to the justices. They may not take this case up. But if they do, could you please explain to me, Danny, how it is that we have Vegas and we have an entire industry based on gambling that the Feds don't go and shut down, and yet they'll go to a bike shop in New York and do that.

DANNY CEVALLOS, CNN LEGAL ANALYST: OK. So under the law, it outlaws a gambling business that's in violation of state law. That's what the federal law says. So casinos are not in violation of state law. The sticking point with this case is different. It's whether or not playing poker in your home is a gambling business. And they have called experts to say that poker in that game, skill predominates over chance, and therefore it's not going to be listed --

BANFIELD: So gambling - just make it - make it clear. Gambling is game of chance, not a skill.

JOEY JACKSON, HLN LEGAL ANALYST: Absolutely.

CEVALLOS: Gambling is flipping a coin and let's bet on the outcome.

BANFIELD: OK.

CEVALLOS: But the issue with this case is, and it's always been my issue, is that it is the greatest hypocrisy that the government outlaws gambling because it's ostensibly immoral, unless they are running a commercial asking you to shuffle down to the local quickie mart in your bath robe and your slippers and buy a lottery scratcher. And your odds are a cabillion to one.

JACKSON: Danny, listen -

CEVALLOS: But that's morally acceptable. JACKSON: Cut it out.

BANFIELD: Wait. Whoa. Whoa.

JACKSON: Cut it out. There's nothing hypocritical about what the government does about gambling, no.

BANFIELD: There's a skill. Guys, there's a skill to that scratch-off.

CEVALLOS: There sure is.

JACKSON: Oh, absolutely.

BANFIELD: There's a skill. Come on. Answer that. That makes absolute sense what he says, Joey. Scratch-offs are skill-less and yet that's in New York and no one's taking them to the Supreme Court.

JACKSON: Well, I was going bring the scratch-offs, I was going to bring the cards, I was afraid we'd get arrested on set here, so we'll leave that out of it.

BANFIELD: I know.

JACKSON: Listen, the bottom line, it comes down to this, you have this law. And the law that's being evaluated now, it's really three things. So, people, if you're playing poker at home, you can (ph) play unless there's five or more, you're playing for 30 continuous days or there's $2,000 or more in profit and the state in which you operate, as Danny was talking about, it has to be outlawed by that particular state. Now, so if it's in violation of any of those, you may be in trouble.

BANFIELD: Just a little.

JACKSON: In terms of the Supreme Court taking this case, I highly doubt it. They reject 90 percent of the cases. And the laws are such in a state of flex throughout the country as to what constitutes gambling.

BANFIELD: If they say no, that means the bike guy -

JACKSON: Exactly.

BANFIELD: His case, he's done for. He's been convicted and they won't be changing that any time soon.

Danny Cevallos, Joey Jackson, good to see you. Thank you. Always love your opinions on this stuff.

JACKSON: A pleasure and a privilege, Ashleigh.

CEVALLOS: Thank you.

BANFIELD: Dangers of drowsy driving and they're caught on tape. Have a look at this bus as it just plows through tree after tree after light pole. Imagine. The video rolls before that bus comes to a crashing stop. What happened? You'll find out, next. (COMMERCIAL BREAK)

BANFIELD: A 15-year-old girl was shot and killed in Arkansas after a prank that went horribly wrong. Police say Adrian Broadway and her friends covered another teenager's car in toilet paper and mayonnaise and eggs in retaliation for a previous prank. But as they were about to drive away, a man came out of the house and started shooting. Police say Willie Noble has been charged with murder.

Check out this newly released terrifying video from inside a bus that drove off the road in Idaho, right through trees, a parking lot, hitting light poles all the way along. It keeps going until it eventually hits a building. The bus eventually ended up like this, poking through a building. One person actually was hurt in that crash. It happened last month. But the video is just being released. Investigators say it appears the driver had dozed off.

Thank you for watching, everyone. Stay tuned for my colleague Wolf. His program starts right now.