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Legal View with Ashleigh Banfield

The Technology of Real-Time Tracking of Planes; Missing Malaysian Flight; Forensics in Pistorius Trial; The Safety Record of the 77

Aired March 13, 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: We are fast approaching one full week of dead-ends in the mystery of Flight 370, a full week and absolutely no closer to the day that plane disappeared.

But today, officials in Malaysia are denying one thing and that's that the missing plane's engines were transmitting data that could suggest that that airplane flew as long as four hours after its last confirmed contact.

Again, that's a report that first appeared in "The Wall Street Journal" and the Malaysians are saying, not true. Sources of the engine's manufacturer, Rolls-Royce, also denying that "Journal" report to our Richard Quest here at CNN.

On another front, the Malaysians say Chinese satellite images that were so promising, potentially, yesterday in fact yielded nothing of value in this search. These pictures were initially said to show the debris possibly from Flight 370.

They were leading the news all day yesterday. This was near this plane's scheduled flight path, so plausibility was there, but now the Malaysians say an up close search of that area turned up nothing.

And here's maybe the worst part, the Chinese are saying those photos were actually released by mistake. Not sure how that happens when there is so much heartbreak surrounding this, because heartbreaking is one thing to say, especially six full days since that giant plane and all of those people on board disappeared, but the simple truth is that really nobody knows anything about where they are, no one.

Lots of people, really, really smart people have guesses, they've got theories, they've got opinions, but so far no one has what we like to call in the business a clue. And that's why I want to bring in our aviation expert Mary Schiavo right now. Mary, I carry with me a BlackBerry, I sometimes have an iPhone, and I know most people watching have a reasonable facsimile of both.

We can watch streaming video from the space station with these devices, I can turn on a coffee-maker from here in my home, and we can also jail a killer based on his movements in the night because he or she is carrying a telephone. And we can't find a plane.

Can you explain to these viewers of ours how that's possible?

MARY SCHIAVO, FORMER INSPECTOR GENERAL, U.S. DEPARTMENT OF TRANSPORTATION: Yes. And you make an excellent point. It's possible because the technology in the black box -- black boxes, although very good at protecting the black box and the data they're on and over the years we've expanded the parameters, the things, the bits of data that we save into the thousands, but what we did not do and what we have not required because -- and I'll tell you the groups who objected -- because some groups have objected is because we don't require that data to be continuously downloaded or downloaded at certain times during a flight, for example, every 30 minutes, or before -- after a flight, before the next takeoff you start it and then it downloads. And you erase it if nothing happens.

The other thing is onboard streaming video. After September 11, in addition to the black-box issue of why don't we download this continuously in the flight, why don't we have onboard video that can take snapshots or can stream from both the cockpit or the cabin depending upon what's going on?

And those issues came up again in Air France 447 because it was missing for awhile. Why don't we do this? We get the engine data, but not anything from the black boxes. The reason was that several groups objected on privacy issues. Now, legally there's no way you have a privacy issue in an airplane --

BANFIELD: What is the privacy issue with -- when we have hundreds of people's lives at stake minute-to-minute, tell me what on Earth could constitute a privacy issue with just sending real-time data down from the sky as the flight's on its way?

SCHIAVO: Legally, not a thing. There's no way anyone could have a reasonable expectation of privacy in an airplane, except the bathroom. But they didn't want Big Brother watching them, et cetera.

Now is the time. Once again, we have another situation where we're scanning the ocean or in the case of World Trade Center hoping that the black boxes survived the fires, they did not, and, you know, hoping against hope we have these precious chips of data which we could download and save as the plane goes on, if it was required.

As long as it's not required, no one will do it and no one will put the technology in to do that. That would have gone so far in so many crashes, and here would have solved, literally would have solved, the mystery.

BANFIELD: So here's a really dumb question, and I'm just going to go ahead and I'm going to ask it anyway. If this plane crashed on land, and if some of those passengers just didn't turn their phones off -- because I know a lot of us actually don't. We might think we're turning it off when we lock it.

But if that's the case, could this plane be actually found using something as silly as FindMyPhone or something of that ilk? SCHIAVO: Yes. And we have now reached the point where there were two recent crashes where people survived where passengers filmed it. Yes, not only could we find it, but we would have actual real-time data.

And that's another issues with this plane, the theories about the hijacking and the long journeys, et cetera. On the four planes on September 11, 2001 -- now, this is 2001 technology -- passengers in each of the planes struggled and got phone calls out.

Some used the old air phone, the one in the back of the seat, but some used cell phones, and depending upon where you are and what towers you pass over, they got them out.

Is it possible, though, for some of those scenarios that 239 cell phones didn't -- you know, people didn't struggle and try to get phone calls out? I find that difficult to believe, so that technology would have been there, as well.

BANFIELD: Mary Schiavo, always good to talk to you, and thank you for that.

And distressing to say, though, that you and I are talking about iPhone and BlackBerry technology instead of something that's so much more sophisticated or what we would like to think is more sophisticated.

Mary Schiavo, joining us live this morning, thank you for that.

Just how safe is that Boeing 777? Many of us ride on them all the time.

A crash investigator who also was an airplane mechanic, the guy who's in the guts of the plane, is going to join me to talk about this plane and the possibilities of what may have gone wrong on a flight that up until now had a pretty good maintenance record.

(COMMERCIAL BREAK)

BANFIELD: A very bad thing that follows major events like this missing airliner is happening right now, time. Time is passing and there are no answers. And what that means is people are guessing, speculating, hypothesizing, whether they have good information or not.

And on the phone with me now is someone who has a lot of good information, John Goglia. For 30 years, he was with the NTSB and he writes extensively about aviation safety.

Mr. Goglia, thanks so much for being with me. Can you give me a bit of a layperson's guide as to the 777 and -- I'm not going to say the air worthiness of it because it wouldn't be in the air if it weren't airworthy, but of all the different planes that one can fly, where does that one rate?

JOHN GOGLIA, FORMER NTSB MEMBER (via telephone): Say that again?

BANFIELD: The safety of the 777 -- can you hear me OK, Mr. Goglia? GOGLIA (via telephone): Yes. Now I can.

BANFIELD: OK. Great. I just wanted you to rate the 777 in terms of safety with respect to all other kinds of aircraft that people fly.

GOGLIA (via telephone): It's one of the best in the world.

BANFIELD: It's that simple? It is really one of the best in the world.

So, this must come as even more of a surprise than say any other kind of crash that might involve aircraft that are more suspect in your view?

GOGLIA (via telephone): Yes. I mean, when this airplane was built in the middle '90s, it used the very latest technology, and they went to great lengths to ensure it would be very reliable.

They wanted to have two-engine operation right from day one, so they built in many redundancies in the system.

It was built with the latest material and latest design standards, and this really has proven to be the most reliable airplane that there is.

(Inaudible) to make that claim on some of their products, their more recent products, but really, the state of aviation-building today is really unlike anything that we've ever seen in the past.

BANFIELD: And can I just add to that question? With that as the backdrop, that this is an elite flying machine, this particular plane in question that's disappeared apparently had a stellar maintenance record. Nothing wrong with it.

Does that lend anything to your assessment of what we're looking at and how this possibly could have happened?

GOGLIA (via telephone): Of course, all the investigators will look at the record of the airplane, but they're also going to look at the actuality of the airplane, I mean, the very condition that it's in.

Now, it's going to take a little while to figure that out, but I think that it's safe to say that it's probably not going to be an airplane problem at this point. It's beginning to look more and more like maybe some other event that occurred.

BANFIELD: Are you suggesting that this is human cause, whether nefarious or not?

Mr. Goglia, can you still hear me? I think we might have lost -- I think we may have lost him. My apologies, I think we definitely lost the signal.

And that is a critical moment, too, because when someone of his ilk, with his expertise and background, feels this may be moving less towards the aircraft and perhaps more to the people on it, whether they were flying it or in the passenger seats, that's very troubling, to say the least. Let me be very clear. In all the reporting that's been done in the six days that this plane has been mysteriously missing, so far, no one -- no one -- has suggested that terror is a part of it.

But they also haven't ruled it out. Our CIA director was very clear about that. When others may have ruled it out, John Brennan was very clear, not so fast, the Americans are looking at every possible scenario.

So, what about the man who wrote the book on why planes crash? Could he possibly lend some information as to what happened and where we go from here?

He's going to join me, next.

(COMMERCIAL BREAK)

BANFIELD: What happened to Malaysia Air Flight 370? It's been missing for six days. We're not any closer to any definitive answers, but there are sure a lot of theories floating out there, like the plane crashed or it went on something called a ghost flight.

And some of the more bizarre theories, conspiracy theorists say aliens or perhaps the illuminati and maybe a Bermuda Triangle may be afoot, even clairvoyance have weighed in on the possible outcome. It hasn't yielded anything. One thing we do know for sure is that the plane is simply missing. Former FAA investigator David Soucie is here to dig a little deeper. He joins Richard Quest, our aviation expert here at CNN as well.

First of all, David, thank you for coming. Why so much conflicting information?

DAVID SOUCIE, FORMER FAA INVESTIGATOR: Everybody wants to get a handle on something right now. No one has an answer, so they're going to try to put one on it. So that creates all kinds of assumptions. And when you look at this primary radar issues that are coming back and -- which doesn't provide us any information other than the fact there was something flying out there.

BANFIELD: Something you wrote that really sort of - I don't think I'd heard this before, granted I may not have caught all of the reporting, but you wrote about emergency locating transmitters, that they - they're built to signal on impact or salt water.

SOUCIE: There's two ELTs on that aircraft. The front one, which is in the front of the aircraft, is for impact only. The one in the back is for impact and when it contacts saltwater is supposed to start transmitting a 400 megahertz frequency.

BANFIELD: Regardless of say a complete shutdown of everything mid- flight?

SOUCIE: Absolutely. It's a self-contained unit. It has its own battery. It has everything. It's individual. It can be disarmed, however. BANFIELD: So how does -- is that the only explanation why? I mean it either hit land or it's hit -- one thing we know, that plane can't fly for six days. It's down somewhere, right?

SOUCIE: Right. That's correct.

BANFIELD: So if it's down somewhere, it went down and likely impacted or hit saltwater.

SOUCIE: Yes. Yes.

BANFIELD: And yet they didn't trigger.

SOUCIE: Right.

BANFIELD: So is the only explanation of that, they were -

SOUCIE: Well -

BANFIELD: But, Richard, does this - does this - weigh in on that.

RICHARD QUEST, CNN CORRESPONDENT: They could - they could be pinging away perfectly under water. I mean we're going to be distasteful about it. If the plane had broken up or was in - had gone down, you agree, they could be pinging away perfectly under water but as yet the correct equipment for picking that up - because you can't just pick it up automatically. You have to have proper sonar that will hear it.

BANFIELD: How close? How close does one need to be before you can pick up what is supposed to be the thing that leads us to a crash site?

SOUCIE: Well, I would disagree a little bit in that the satellite systems that they use for the EPIRBs, which is the same 400 megahertz frequency, is constantly monitoring for emergency signals from ship, water, any kind of water vehicle. The water would have to be extremely deep. However, the ELT history of reliability is very poor. When it was at 121 megahertz, when they first came out, they were only about 50 percent, 53 percent reliable. Only --

BANFIELD: So we haven't replaced them with something far better?

SOUCIE: We have. We went up to 243 megahertz and now we're at 400 megahertz and that makes a lot of sense. In fact -

BANFIELD: You know, I hear megahertz all the time.

SOUCIE: Oh.

BANFIELD: But as it pertains to this and where it's pinging away, how close must I be on my search vessel or search aircraft in order to pick this up?

SOUCIE: I'd say -- it depends because we've got the satellite system looking at it, all right. So the satellite can pick it up. So that's - that's, what, 25 miles.

BANFIELD: We've got 12 countries on this. I'm told dozens of vessels and aircraft.

SOUCIE: Yes. Yes.

BANFIELD: Have they all been outside of the range of wherever this is pinging?

QUEST: I think -

SOUCIE: It doesn't mean that it's not - that it's able to be picked up. It could have failed, which they do. About 83 percent is now is what they're talking about.

BANFIELD: So what you're saying is the two of them could have failed?

SOUCIE: Yes, both could have failed. Or it is possible that it's down inside the ocean deep enough where it's constricting the signal.

QUEST: (INAUDIBLE). But even with 447, they were able to find some -

SOUCIE: Yes.

BANFIELD: Even in deep water.

QUEST: You're trying to find answers, Ashleigh, where the facts are simply not known. And they've - and this is -- as David will note, this is perfectly normal in an investigation.

BANFIELD: And I don't even have a loved one on that aircraft -

SOUCIE: Can you imagine?

BANFIELD: And I can't stop thinking about this. Maybe it's because I fly a lot, but maybe it's more because I think there are so many hundreds of people who are still desperate for answers about where their loved ones are.

I wish I could talk more. I can't. But I think we'll be talking in the future.

SOUCIE: OK.

BANFIELD: David Soucie, thank you.

SOUCIE: Great. Thank you.

BANFIELD: Richard Quest, as always, your expertise is second to none.

We have another story that we're working on as well, as you've been following this week, the Olympic athlete Oscar Pistorius and the trial in the shooting death of his girlfriend. It was another wrenching day in that courtroom. That picture tells you pretty much everything. And, no, it's not a repeat of the day before where he was so sickened he threw up in court. It happened again. So what was it this time?

(COMMERCIAL BREAK) BANFIELD: Another graphic and gruesome day in the murder trial of Olympic star Oscar Pistorius as prosecutors displayed images yet again of Reeva Steenkamp's body, which made the South African athlete violently ill, throwing up in court once again. Robyn Curnow has more on today's testimony and how the defense is trying to cast doubt on the forensic evidence.

(BEGIN VIDEOTAPE)

ROBYN CURNOW, CNN INTERNATIONAL CORRESPONDENT (voice-over): This morning, the Oscar Pistorius murder trial began with his defense team grilling the state's forensic expert, Colonel Johannes Vermeulen.

BARRY ROUX, DEFENSE LAWYER: All I really want to know is, can you remember who you spoke to in there?

CURNOW: Pistorius expressionless as his defense challenged the expert on the whereabouts of missing pieces from the bullet-ridden bathroom door. The door Pistorius broke down with a cricket bat to reach his girlfriend, Reeva Steenkamp, after he shot her multiple times.

ROUX: For you to have stated under oath that nowhere that any of those exhibits appeared in the SAB 30, it can only mean one thing, that it was checked and it could not be found.

J. G. VERMEULEN, POLICE FORENSIC ANALYST: During the conversations I had, I could not determine where it was.

CURNOW: Pistorius had told investigators he put on his prosthetic legs before taking down the door.

UNIDENTIFIED EXPERT: I'm in an unnatural position at the moment my lady.

CURNOW: And on Wednesday, the forensic expert tried to undercut his story, testifying that based on the height of the cracks in the door, Pistorius was not wearing his prosthetic legs.

VERMEULEN: The marks on the door is actually consistent with him not having his legs on.

CURNOW: Showing photo after photo of the crime scene, the defense revealing that a mark on the Olympian's prosthesis could match a mark on the door, supporting Pistorius' version of events that he kicked the door and then bashed it in with a bat with his legs on.

VERMEULEN: If that was the mark of a prosthetic foot on the door, it would be consistent with him wearing his prosthesis.

UNIDENTIFIED MALE: Yes.

VERMEULEN: That is correct, my lady, if that is the mark of a prosthetic foot.

(END VIDEOTAPE)

BANFIELD: Our thanks to Robyn Curnow for that report.

Criminal defense attorney and former prosecutor Paul Callan joins me now.

I'm a little taken aback, I have to admit. I was about to launch into a question with you right off the bat and I - I feel as though that might be the first time I've seen that picture of Oscar Pistorius' prosthetic leg covered in Reeva's blood. It affects me. It would affect a jury, without question. I'm not sure it affects a seasoned judge in this case. This has been a story all along since it's a bench trial. His defense has done what every defense does, it picks apart everything it can bit by bit. That the police don't do their work perfectly. They never do. None of us does. Does that have the same effect on a judge that it does on a jury?

PAUL CALLAN, CNN LEGAL ANALYST: I don't think that it does. You know, juries in the United States in particular are so influenced by television programs like "Law & Order" and "CSI," they kind of expect that if the forensics aren't perfect, if the police investigation isn't perfect, that's automatic reasonable doubt. Judges, though, who witness a lot of trials understand that the police make errors, that theories change.

And in this case, the thing that I think that I took away from today that I found very interesting is, the prosecutor's shifting the theory now. Now they're saying basically he didn't have his prosthetic legs on when he fired the shots. He was on his stumps when he fired the shots. Now, that's totally at odds --

BANFIELD: And with a cricket bat.

CALLAN: That's right. The cricket bat thing is another change. Two major changes in the theory of the case.

BANFIELD: OK, big problem for me, that it seems like there has been some establishment forensically that there was a kick mark from the prosthetic leg in the door. That would suggest his legs were on. That his story's accurate.

CALLAN: Well -

BANFIELD: Ten seconds, I've got to wrap it up, but yes or no.

CALLAN: I would. But, you know, in the end, what difference does it make whether he had his legs on or his legs off?

BANFIELD: Well, credibility.

CALLAN: The real question is, did they have a fight and was he shooting at her in anger through that door? So we'll see how the attorneys sum that up in the end.

BANFIELD: Lots more still to go on this case. Paul Callan, thank you. As always, we appreciate it.

CALLAN: OK. BANFIELD: I'm flat out of time. Thanks so much for watching, everyone. My colleague, Wolf Blitzer, takes over now.