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Legal View with Ashleigh Banfield

Man Declared Dead, Revives in Body Bag; Ninth Circuit Says Schools Allowed to Ban American Flag Shirts; "Blade Gunner" Murder Trial Starts Monday, Cameras Allowed; New Book on Injustice; Camera Smuggled into Supreme Court

Aired February 28, 2014 - 12:30   ET

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

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ASHLEIGH BANFIELD, CNN ANCHOR: Kentucky's attorney general wants more time to decide whether he's going to fight a court order that forces that state, Kentucky, to recognize same-sex marriages performed in other people's states.

Jack Conway is now requesting a 90-day delay before the order goes into effect so that he can weigh an appeal on the issue.

SeaWorld is accusing a government investigator of being in cahoots with the makers of the critical documentary, "Black Fish." The company has filed a complaint with the Department of Labor against OSHA investigator Lara Padgett, claiming that she leaked confidential company documents to the filmmakers. And you will probably know well that "Black Fish" has aired several times on this network, CNN.

A Missouri man was pronounced dead, put in a plastic body bag, zipped up, put in a hearse. All that sounds like it should be, except, yeah, the 78-year-old man, Walter (inaudible) Williams wasn't dead! Gave everyone a real surprise, too. When the funeral home workers were getting ready to embalm him, he started to kick, trying to get out of the bag.

Listen to his daughter tell the story. It is remarkable.

(BEGIN VIDEO CLIP)

MARTHA LEWIS, DAUGHTER: The mortician said something wasn't right. His leg started moving.

So it was not my daddy's time. I don't know how much longer he is going to grace us and bless us with his presence, but hallelujah, we thank him right now!

(END VIDEO CLIP)

BANFIELD: You're not kidding. My goodness. Even the Holmes County coroner cannot explain this medically. Really, the only thing the coroner is ready to say at this point is that this has been a miracle. A really big story here, especially in the California school system. It's about free speech, free expression and who can wear the American flag.

You would think anybody, any time in this country, no? No. Back in 2010, officials at a high school near San Jose told students to take off or cover up their American flag T-shirts.

They could turn them out while on school property, but could not display that flag.

Here's the reason why. It was on Cinco de Mayo, the Mexican pride holiday. A group of kids wore big American flag T-shirts that day, and the school said lose them.

Now, the undercurrent here, kids protesting Cinco de Mayo, it wasn't just that they were wearing the flag. They were trying to send a message.

Lisa Bloom and Danny Cevallos here to talk about this, first thing everybody said, in America, you don't have a First Amendment right to wear an American flag or say whatever you want to say.

Danny?

DANNY CEVALLOS, CNN LEGAL ANALYST: The answer to that question is when you're a student, the rules are different.

The Supreme Court has said, as a student, you don't check all your First Amendment rights at the door, but the Supreme Court and all the courts always go back to the same old case.

It's the easiest thing in the world to be a First Amendment lawyer with this, because you just go back to this case called Tinker. Students wore black armbands in school to protest the Vietnam war, and there the Supreme Court said if it creates a material, substantial disruption, the school can suppress that speech.

And just about every court since then has read those words and done whatever they wanted to do, and then cited Tinker, so that's exactly what we have here with the Ninth Circuit.

BANFIELD: But isn't this guessing? Isn't this a big guessing game that something might happen?

CEVALLOS: Exactly.

BANFIELD: Not that something did happen?

Lisa, this is where I don't understand. Are you allowed to guess something could happen and then put some sort of structure into place?

LISA BLOOM, LEGAL ANALYST, AVVO.COM: Schools are given tremendous deference by the courts.

Schools are allowed to come up with rules that will protect the safety of everybody on the campus.

I think this was a terrible decision by the school, by the way. I think the school should have used this as a teachable moment.

Say, yeah, you can wear an American flag shirt, and we're going to talk about how Mexican-Americans are Americans and how everybody in this classroom is Americans, and we're also going to celebrate Cinco de Mayo.

I think that could have been a wonderful lesson, rather than ruling out the flag. However, they had the right to make that decision and the court is going to continue to uphold it.

BANFIELD: So I think I understand what you're saying, and that the court said, look, we side with safety before we side with rights.

Maybe where I'm an idiot is that I don't understand why the school couldn't say no flags for anyone, not just no flags for the American, you know, flag-bearers, no flag for the Mexican-bearers either, because it's causing a problem. Wouldn't that have sort of stopped all of this from being an issue?

CEVALLOS: And they can. The school could have done that, it could have imposed a dress code, and in fact, they could have canceled the celebration that they knew from two years prior caused violence.

But in deference to the Ninth Circuit, that's not the issue that was before them, and they acknowledged that.

They didn't go into the issue of whether or not the school should have said, hey, you know what, Cinco de Mayo just ain't working for us. Why don't we just not have this celebration? Now, that wasn't for the court to decide.

But you're absolutely right. Schools can create dress codes. The question here is, can they pick and choose so narrowly what somebody wears? A flag -- because some students with flags were allowed to return to class and others were singled out.

I think here the Ninth Circuit took a very, very narrow approach, a very broad, expansive reading of Tinker, and I think ultimately they just -- frankly, Lisa will tell you, as a California lawyer, it's the Ninth Circuit. They're likely to get overturned anyway.

BLOOM: Hey!

BANFIELD: I've got to let you know, if you're freaking out, out there in America over this, it's not the end of this story, because one of the lawyers -- and this is a conservative legal aid foundation that raised and mounted this case.

They do plan to ask for the entire panel of the judges to go over this again and have a second look at it, because it was only a three-judge panel.

They want all 11 judges to go over this ask see if it was the right idea. And if they don't prevail there, they want to take it to the Supreme Court.

BLOOM: And it's just in schools. You still have the right to wear this walking down the street.

BANFIELD: Let's be clear. It's schools. It's different. It's a safety issue for schools and they do have that right.

All right, stick around. More to come in a second for you guys, as well.

He was the international sports star known as the "Blade Runner," and on Monday, Oscar Pistorius goes on trial for murder in the shooting death of his beautiful model girlfriend, Reeva Steenkamp.

This trial is going to feature a legal first. What is it? Got the details ahead.

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BANFIELD: A major murder trial starting Monday that is sure to get the world's attention, and in "Crime and Punishment," we're talking about Oscar Pistorius, an Olympic hero, a double amputee.

Here he is. We've got some pictures of him standing in front of a slew of photographers in a courtroom.

He's accused of murdering his model girlfriend, Reeva Steenkamp, in South Africa on Valentine's Day last year.

And although you're seeing cameras snapping pictures there in the courtroom, it doesn't happen. You can get a picture, but then out you go, no cameras in the courtroom there.

But for the first time in this country's history, and in this case, cameras will be allowed to stay.

After all those initial photographs, they can stay and watch the trial, big change there.

Mike Galanos from our sister network, HLN, gets us up to speed on the case against this once-celebrated athlete.

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MIKE GALANOS, HLN: In the early morning hours of Valentine's Day, four shots rang out in the home of Olympic hero, Oscar Pistorius. Pistorius' girlfriend, 29-year-old model, Reeva Steenkamp, is struck by three bullets, her wounds, fatal.

The Olympic sprinter known as the "Blade Runner" shot her through a bathroom door with his nine-millimeter pistol.

Clinging to life, he carries her downstairs, hoping paramedics can save her. But it was already too late.

Just the day before, she tweeted her excitement for the upcoming holiday, saying "What do you have up your sleeve for your love tomorrow?" Only hours later, she would be dead.

When police arrived on the scene, Oscar Pistorius was arrested. He is charged with murder. In the blink of an eye, Pistorius would go from international hero to murder suspect.

February 15th, his first court appearance in front of a packed courtroom, Pistorius breaks down in tears as the charges against him are read aloud. He maintains his innocence, but prosecutors move forward with premeditated murder charges.

February 16th, two days after her death, Steenkamp appears on a pre- recorded reality show. The show's producer defended the decision to air the program after consulting with her family.

February 17th, a bloody cricket bat was found at the crime scene. Detectives try to determine if Steenkamp used it in self defense or Pistorius used it to break down the bathroom door.

February 19th, Steenkamp is laid to rest in her hometown. The same day Pistorius returns to court for the first of his bail hearings. Prosecutors allege Pistorius murdered Reeva Steenkamp after a heated argument.

But in his sworn affidavit, Pistorius says he mistook his girlfriend for an intruder, mentioning that he's been the victim of burglaries and even death threats in the past. He also described the last moments of Reeva's life, saying, "She died in my arms."

February 22nd, Pistorius is released on a $112,000 bail after a lengthy and emotional hearing, but he's not allowed to return to his home, and he must report to police, twice a week.

February 26th, Pistorius holds a private memorial service to honor Steenkamp at his uncle's home. That's where he's been staying since he posted bail. He pledges to remain in the country, committed to seeking justice in the case.

(END VIDEOTAPE)

BANFIELD: And our thanks to Mike Galanos from our sister network, HLN, for that report.

Cameras, again, will be in court for the opening statements. Don't miss our coverage when the trial gets under way on Monday, right here on CNN.

Can you believe it's been two years since George Zimmerman shot and killed Trayvon Martin? Two years.

That case has fueled a huge debate about "stand your ground," self defense, not to mention race. It's also got the attention of the president. Mr. Obama has been talking about it.

In fact, he just announced a brand-new initiative called "My Brother's Keeper" and we've had extensive coverage. It is a program to help young men and boys of color succeed, boys like Trayvon, who didn't get the chance to fulfill his dreams.

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BARACK OBAMA, PRESIDENT OF THE UNITED STATES: In the aftermath of the Trayvon Martin verdict with all the emotions and controversy that it sparked, I spoke about the need to bolster and reinforce our young men, and give them the sense that their country cares about them and values them and is willing to invest in them.

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BANFIELD: Trayvon Martin's and Jordan Davis' parents were in the audience as the president spoke, and this issue is without question a critical one. The president says this goes to the heart of why he ran for president.

I want to bring back in Lisa Bloom, who's a legal analyst for avvo.com. For the purposes of this conversation, she's a best-selling author and this is her latest work. It's called "Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It."

Lisa, I've been reading through the book, and it's always remarkable when you get some time to digest and two years since all of this began has been I think helpful. But at the same time, we still have cases being repeated that are somewhat similar.

BLOOM: Yes.

BANFIELD: There is profiling. Without re-litigating the case, because you do an excellent job of going into why the prosecutors just botched this completely. But without re-litigating it, I wanted to ask you something bigger. This has been your life. You've been in the law for a long time. You've been in and out of hundreds of courtrooms. So much has come down to profiling and that it's wrong.

At the same time, we are brought up to say, keep your wits about you. If you see something, say something. And I don't know what Americans are supposed to think anymore. Are they supposed to just act as though nothing is going on around them? Are they supposed to feel bad if they sense there's something going wrong? Because for a lot of people they don't quite know what to do with the results that they're seeing in courtrooms.

BLOOM: So I think you're hitting on what really is the essence of my book. And I called it "Suspicion Nation" because so many of us feel this awkwardness in talking about race or the suspicions about our neighbors, as George Zimmerman was so suspicious of Trayvon Martin, calling him a real suspicious guy. And that's how the whole incident began.

And ultimately, I think, we have to talk about race. For example, in the Zimmerman case, the defense said that Trayvon Martin was a match. That was their word, a match, to two unrelated burglars who had been in that community. Well, on what basis was he a match? It was on the basis of skin color. And yet nobody in the courtroom -- BANFIELD: Well, they were teenagers - they were teenagers, as well.

BLOOM: Well, no, actually, they were in their late 20s, according to some reports. The actual burglars. And Trayvon Martin, we know, was 17 years old. So it was skin color and gender, I would say, because they were both male. But Trayvon Martin had nothing to do with those burglaries.

BANFIELD: Well, let me go back for a second, because I just am trying to recall so many details from that case. I think George Zimmerman thought that he was in his 20s when he said that to the 911 caller.

BLOOM: Well, he - no, he called him a kid.

BANFIELD: But he thought he was in his -- in subsequent interviews, he said he could have been a teenager, could have been in his 20s.

BLOOM: But on that call he said he was a kid, right?

BANFIELD: Yes. Ultimately, I think that the greater issue does come down to this. If people are being deluged with news about gang violence and shooting violence, doesn't that shape their information when they -- when they form fears?

BLOOM: So let me - let me (INAUDIBLE) -

BANFIELD: And they don't have to be white people. I'm saying black people can be as afraid -

BLOOM: Let me answer that question.

BANFIELD: Of others and white people can be as afraid of others. I gave an example, I'd be scared if I saw four teenagers - I don't care what their color was -- four kids, young boys, coming down the street in a street where I'm alone and they're rowdy and they're being -

BLOOM: Right.

BANFIELD: I would cross the street.

BLOOM: So let me answer that question because I think -

BANFIELD: Am I sexist?

BLOOM: Let me answer the question, OK. Many people in America are suspicious and afraid of our neighbors. And I think unfairly so. Crime, actually, is way down. Down to 1960s levels. And at the heart of the Trayvon Martin case and The Jordan Davis case and many others, is, let's be honest, a fear of African-American males. Not necessarily on your part or my part, but on the part of many people. When you add to that our lax gun laws and stand your ground laws, it's a terrible cocktail that leads to tragedies like this.

So in my book, I go through the top six mistakes made by the prosecutors, but I also pull back and ask us all to look at ourselves. There's a wonderful test online that's available from Harvard University of Research, it's called the Implicit Bias Test, and it turns out about 80 percent of white Americans test for implicit racial bias against African-Americans.

None of us wants to be called a racist. None of us wants to think we're a racist. I reveal in the book how I did on that test. Guess what, as a lifetime civil rights attorney, as a mother of biracial children, I didn't do so well on that. And I think if we all can acknowledge that because of our culture, because of the media, we all walk around with these unacknowledged biases.

But the good news, and this is at the end of the book, spoiler alert, the good news is, there's something we can do about it. Doctors, for example, who are educated to stop spending twice as much time with white patients as black patients change their behavior. Police, judges, juries, can change their behavior. That's the lesson.

BANFIELD: It's a wholesale (ph) -- I mean we're talking, a, you know, a wholesale, overall, no tangible results right away kind of change that we're looking at in this (ph).

BLOOM: But there were a lot of mistakes in the courtroom. For everyone who thinks something went wrong in the Trayvon Martin case, this is what happened.

BANFIELD: So, here you go. I'm going to hold it up once again. You're great. You're exhaustive in your research. You've done this with all your books, you always cite facts and there are plenty of footnotes in the back of the book as well for anybody who wants to re-litigate the case as well if they want to argue with her, not me.

Lisa, always good to have you. Thanks for coming on.

BLOOM: Thank you so much.

BANFIELD: Appreciate it.

So no video cameras have ever, ever recorded what goes on in the Supreme Court. Oh! What? Whoa! What's on your television, folks? Those are the nine justices actually in arguments. How did this happen? You're going to find out who was behind this sneaky filming in the Supreme Court, coming up next.

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BANFIELD: The rule just is, no cameras at the Supreme Court of the United States. So look at this video. Somebody cheated. An activist group smuggled a camera in and just started rolling. Even caught a protester as the protester was standing up and got hauled out. I want to turn it up loud. You can hear and see it for yourself.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I rise on behalf of the vast majority of the American people who believe that money is not speech, corporations are not people and our democracy should not be for sale to the highest bidder. Overturn Citizens United. Keep the cap in McCutcheon. The people demand democracy.

(END VIDEO CLIP)

BANFIELD: OK. Well, the topic he's talking about is definitely interesting. What's really huge here is that a camera got into the Supreme Court. And why aren't there any cameras officially in the Supreme Court anyway? It's our court. George Washington University Law Professor Jonathan Turley I think shares that feeling, joins me now live.

Why again? Remind me that we keep getting shot down every time we bring up the idea that we should be able to see our process at work.

JONATHAN TURLEY, PROFESSOR OF LAW, GEORGE WASHINGTON UNIV.: Ashleigh, I really don't know because it's perfectly illogical. Now the argument of the justices is something only a true Luddite would appreciate. You know, they allow audio tapes, they allow sketch artists, but they don't allow cameras. And there really is no good argument against it.

To the contrary, you know, the framers were great fans of science and new technology. I think they would have been thrilled by the idea that you have this technology where not just people wait in line for six hours can see an argument, but any American citizen can. And it's really time for Congress to put an end to this nonsense and to simply pass a law.

BANFIELD: I'm going to ask you about Congress in a minute. But first, I want to just throw this out there. I have heard that the biggest argument the justices make is that they think, you know, cameras could end up being a bit circus-like -- we saw what happened in OJ -- and that they don't want to upset the personal dynamic that they have, that it actually would fundamentally change how they argue. And isn't that the most important thing when we're talking about the most important justice in the land, the top justices in the land.

TURLEY: You know, I've been in court. I've argued in courtrooms with cameras and without cameras. I've never seen a difference. Judges are very quick. If you end up playing to a camera, a judge will be on you like ugly on moose. You'll be done. And no one's going to do that in front of the Supreme Court. No one's going to showboat in front of the Supreme Court.

I have to tell you, I --

BANFIELD: And Congress can just pass a law, Jonathan? Congress can just change all of this and say, too bad, we don't care what the justices say?

TURLEY: They can. Justices have said, you know, I'll resign if you do that. And I think the respectful answer is, thank you for your service, and you passed the law, because they're treating themselves like they're a meeting of the illuminati, that saw somehow, you know, this is required for good justice. I'm telling you, probably something of a suspicion that I think the real reason is that justices want the insulation. You know, sometimes justices come off quite arrogant in these arguments. BANFIELD: Good point.

TURLEY: Other justices, when they finally went in front of cameras, they were found to be incompetent. You know, we've had justices who gave a single televised interview and they were gone because it was so embarrassing.

BANFIELD: Well, no matter what, it is our system, and we'd love it to be an open one. Of course I'm biased, I'm on TV.

Jonathan Turley, thanks so much for being with us. Always good to talk to you.

TURLEY: Thank you, Ashleigh.

BANFIELD: Hey, everybody. Thanks for watching. Have a great weekend. "Wolf" starts right after this break.

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