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LEGAL VIEW WITH ASHLEIGH BANFIELD

Stowaway Reveals Security Weakness; Stupid but Possible; Divers Reach Cafeteria of Sunken Ferry

Aired April 22, 2014 - 12:00   ET

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


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PEREIRA: And I'm Michaela Pereira. "Legal View" with Ashleigh Banfield starts now.

ASHLEIGH BANFIELD, CNN ANCHOR: A 16-year-old somehow survives a five hour flight inside a plane's wheel well, but how on earth did he slip in without anyone noticing? And how did he get past all the airport security and on to the runway in the first place?

Also breaking news this hour, divers have just made it into the South Korean ferry's cafeteria area. And that's where they believe the bulk of the passengers were huddled when that ship went down. We are live at the search scene.

And, should race and gender make a difference on college applications? The Supreme Court steps in yet again to settle another fight over affirmative action on American campuses. And civil rights groups are not one bit happy about the outcome this time.

Hello, everyone. I'm Ashleigh Banfield. Nice to have you with us. It's Tuesday, April 22nd. Welcome to LEGAL VIEW.

Surviving a flight stowed away in the wheel well of a jumbo jet in subzero temperatures, pretty much no oxygen. Apparently this seems to be punishment enough because the feds are saying they have no plans at this point to charge the 16-year-old California teenager with a crime. The kid who allegedly did that. Neither will the airport in San Jose, where the surveillance video shows him clearly hopping a fence and climbing aboard that Hawaiian Airlines airplane.

The teenager, whose name we still do not know, is now in the custody of child welfare services in Hawaii. And he's going to be there until they send him home to California. He survived and that in itself is being called a miracle. But what he did points up a pretty serious airport security gap and that is a big problem. If he'd had a bomb with him in that wheel well, he could have easily taken down that plane.

Want to talk about the serious situation that we're finding ourselves in with CNN legal analyst Paul Callan and Danny Cevallos, and live in Washington, D.C., is Mark Dombroff, who is an attorney who has worked for the FAA and the Aviation Unit of the Department of Justice. He also advises on safety enforcement and regulatory matters for the FAA and the NTSB.

So, Mr. Dombroff, you're the perfect person to ask this question. Who's responsible for making sure that the airport and the perimeter of the airport is as safe as the inside of the airport? Because that seems pretty safe so far.

MARK DOMBROFF, AVIATION ATTORNEY: Well, I think that is the central question here, Ashleigh. Typically at airports throughout the United States, the principal responsibility for perimeter security belongs to the airport police or the local police department, depending upon the nature of the particular airport. They work certainly with the TSA, the Federal Transportation Safety Administration, the security administration, but the principal responsibly belongs to the airport police or if the country or city is providing police services to the airport, it would be them.

One thing to note is that certainly airport perimeters are inspected. Systems are inspected. And there are a number of questions that I'm certain are being investigated right now in terms of the measures that were there. Did a system fail or was a system not properly utilized or do we simply have a situation where the system itself was inadequate?

BANFIELD: And that's a big question. When you're talking about the San Jose Airport, it's apparently six miles of chain link fence, much of it just six feet high, some barbed wire on the top of it. But when I multiply that by the number of airports all around the United States, we have hundreds of thousands of miles of chain link fence that don't seem to be perhaps as secure as maybe we think they are. Is that accurate?

DOMBROFF: Well, I think the examination always proves the rule. I think, you're right, there's hundreds of thousands of miles of perimeter fencing. I think the fact that we don't hear about breaches every day or even on any regular basis, although there are breaches, indicates that for the most part the airports are secure. But I think clearly the thing that we don't know but we can certainly conclude is that right now San Jose and the FAA are looking at the reason that this would have occurred in terms of the airport (INAUDIBLE) perimeter. I think other airports are probably throughout the United States going back and checking their own perimeter fences, the cameras, whether or not they have other types of sensors. But I think what we're looking at is something that has occurred in the past, is not unlikely to occur at some point in the future. But I don't think that we're looking at a basic flaw in airport security or the perimeters around airports.

BANFIELD: I want to bring in our attorneys on this as well. Here in the studio with me, Paul Callan and Danny Cevallos.

There's a myriad of different things I could see going wrong. Infractions of all sorts of laws at different levels and yet this young man is not being charged. Any thoughts as to why not at this early stage?

PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, I was looking at adults who were in similar -- he's a juvenile. He's 16 years old. And as a result of that, in the federal system, he would be handled as a juvenile. There are only certain controlled substance and violent crimes where you get tried as an adult.

And I'm sure the feds are looking at this and they're saying, you know something, the near death experience that this 16-year-old undoubtedly must have experienced, as he was probably almost suffocating or freezing to death, maybe was punishment enough. And so he'll be, you know, handled outside of the criminal justice system.

BANFIELD: But say this were an adult, there are plenty of things that that adult could face for this kind of infraction or these series of infractions.

DANNY CEVALLOS, CNN LEGAL ANALYST: Sure. Being a stowaway is a federal crime. And, in fact, the federal government has recently charged adults with being stowaways. You can be in prison up to five years.

Now, you mentioned earlier, if somebody intends to do harm, that same statute allows for 20 years, possibly life, if you intend to cause death. But we treat juveniles differently in our system. And this is a classic example. If law enforcement comes on the scene, they can make a distinction that we simply can't make in adult court, which is, is this a juvenile that's in need of treatment and services, does he come from a bad family, I mean, is he -- does he have mental issues that we need to address on the front end? And that makes juvenile justice very interesting because they assess that at the beginning rather than as a defense for adults.

BANFIELD: Yes. And we don't know, you know, how injured this young man may be and all sorts of neurological issues could have resulted from deprivation of oxygen.

CALLAN: And there could be a back - there could be a back story as to what caused him to do this. I'm sure they're looking at all of those things.

BANFIELD: I have a feeling we're going to find out a lot more, because just the miracle of survival of what he went through, that five hour flight, is beyond comprehension.

Standby if, you will. Mark Dombroff in Washington, D.C., thank you. Paul Callan, Danny Cevallos, staying with me.

By the way, those layers that we were talking about of amazing aspects of this story, how about just getting in the wheel well to start with? Crossing the runway, climbing up inside a wheel well and then surviving takeoff? Gary Tuchman actually is going to show you the places that that young boy had to be in order to just survive the landing gear coming up. That's next.

(COMMERCIAL BREAK)

BANFIELD: Welcome back to LEGAL VIEW. I'm Ashleigh Banfield.

And welcome back to a story that pretty surely is headed to a theater near you. A California teenager sneaking into the wheel well of a jumbo jet and surviving to tell about it, even though it was a five- hour flight all the way to Hawaii from California. The whole country is asking how such a thing is possible. And so is Gary Tuchman, too, because he actually went to the wheel well to take a look and find out.

(BEGIN VIDEOTAPE)

GARY TUCHMAN, CNN CORRESPONDENT: This is Southern California Aviation Airport in Victorville, California, in the desert, where airlines all over the world bring their planes they're not using anymore. We're going to demonstrate to you how someone would get in a wheel well of an aircraft. This is a Boeing 767 that used to be used. This is the door that is closed, but there is a way to sneak in a hole to get into the wheel well and we'll show you how the process would start according to experts here.

Someone who wanted to get in the wheel well would get on the tire, one of the two tires. You step on the bars right here, climb all the way to the top right here. And this right here is where an opening would be to climb into the landing gear wheel well.

Once someone would climb through that hole, they would end up here. And I'm going to show you what happens after they climb through the hole. They get in this area. This is the wheel well area. And we're told there's really only one place to sit where you could possibly survive, because when the wheels move in, the two huge wheels, they come right here. There's no room, except for right here in this spot. And this is where (INAUDIBLE). You've have to sit with your knee close to you. The wheel well would close. The two tires right here. And this is the only place where you could possibly survive. There's nothing stupider in the world to do, but this is where you can do it.

(END VIDEOTAPE)

BANFIELD: It's amazing to think that he knew to be there or maybe it's just dumb luck. I'm joined now by CNN's aviation analyst and retired lieutenant colonel in the Royal Air Force, Michael Kay. All right, Colonel Kay, so perhaps he got lucky and ended up in that spot. But first and foremost, is there any way for a pilot to know that someone or something is in a wheel well?

MICHAEL KAY, CNN AVIATION ANALYST: Well, I think that's a great question, Ashleigh. And there are designated airfields around the world that various airlines have put a designation on for stowaway risk. What that means is, is that when the aircraft lands, Akra (ph) in Ghana, for example, in West Africa, this is one airfield, what the engineers will do is they will drop those doors.

Now you saw from that previous piece where Gary was climbing into the 767 on the second piece (ph). Just below Gary there are two large doors. Now, the normal mechanism, the way that the undercarriage or the wheels deploy, the wheels will come down and then those two big doors you can see, just in the bottom of the picture, they then come up to get rid of the drag as the aircraft is on final approach.

Now, in these areas of specific designations of stowaway risk, the engineers at the airfield will drop those doors so when the pilot or the first officer does their walk around, they can actually look up and see the enormity of the undercarriage bay.

BANFIELD: Wow. Visual only. Visual only.

KAY: Absolutely. Now, for the areas that don't have that risk -

BANFIELD: Yes.

KAY: Those doors are closed. And on the beginning of that segment, where you saw Gary climbing up the wheel, that is the only way in through a little door --

BANFIELD: And you can still get through a closed door --

KAY: Through a little - through a little door, along and then into that area where you saw Gary sat down at the very end.

BANFIELD: So, OK, another big question people have is, if that child - and if - we are told that because of the hypoxia, he had passed out and maybe only came to upon having been on that runway for quite some time. How is it he didn't fall out? If he was unconscious when those doors opened up and that plane landed and there's a lot of jostling, how did the child not fall out?

KAY: Well, luck, basically. I mean, as you rightly pointed out, the two h's, hypoxia and hypothermia. Hypoxia, he will slowly become unconscious because of a lack of oxygen as the aircraft climbs through 10,000 to 12,000 feet. But then you've got hypothermia. The body core temperature drops (ph) at around 36.5 to 37.5 degrees C. When it drops below 35 degree C, it will -- a body then goes into a state of hypothermia. At these altitudes, at 38,000 feet, you're in the region around minus 45 to minus 55 degrees C.

Now, what I would say is that there was an instance a couple of years ago, the Swedish girl who fell into a lake. Her body core temperature reduced to 13 degrees Centigrade and she was revived. So, it is a miracle. Highly unlikely. But evidence shows us that it could be plausible.

BANFIELD: And there's all sorts of medical issues this young man could be experiencing right now, which we're not being told about at this time. Again, it's a juvenile. We may not find out. But it's just an unbelievable story.

Colonel Kay, thank you.

KAY: A pleasure.

BANFIELD: Remarkable.

We also have some breaking news that we want to bring you in the terrible ferry disaster that we've been covering now for almost an entire week. The divers have now finally reached the ferry's cafeteria and that's where they expect to find many of the missing passengers. We're going to take you live to South Korea after this quick break.

(COMMERCIAL BREAK)

BANFIELD: Our breaking news, the divers off the coast of South Korea have made it to the cafeteria of the sunken ferry where they believe that most of the passengers were when that ferry started to sink. They're mostly teenagers, 15-, 16-, 17-years-old.

We've got a graphic that will show you where that cafeteria was located in the ferry, and, of course, don't forget, the ferry upside down. It's mid-ship. It's extremely dark, extremely difficult for divers to navigate. We're told they can't even see their hands in front of their face.

I want to show you some of the video so that you can see the effort of the divers. They're nothing short of valiant. They are certainly still clinging for hope as they look for survivors. But let's not forget, this has now been six days.

Right now, though, they're only finding bodies. They're not finding survivors. Most of those bodies are still in life jackets. And today, the death toll has risen, 121 confirmed dead. That still leaves 181 people, again, many of them teenagers, still missing.

Our Will Ripley is live in Jindo, South Korea. So, Will, I know you have some breaking news to tell us about some of the final calls that came in. Update me and tell me what you found out.

WILL RIPLEY, CNN CORRESPONDENT: Yeah, this is pretty significant, Ashleigh.

We're learning now that the first emergency call from the sinking ferry came from what is described as a young boy with a very shaky voice.

He said, "We're on the ship. We think it's in trouble. We think it's sinking." And followed by that, there were 20 other calls from young people, students, who were on board that ship.

But this first call came in at 8:52 a.m. That is three minutes before the official call came from the ship that there was any problem. So essentially what we're seeing here Ashleigh, is these passengers, these students, were on their cell phones reporting trouble before the ship officially reported trouble.

BANFIELD: And then what else are you hearing about this ability to get to the cafeteria? I know it's slow-going, but is there any report coming in about the initial findings at the cafeteria?

RIPLEY: Yeah, the confirmation that they made it to the cafeteria was essentially one line in the middle of a press release that we received and then confirmed within the hour-and-a-half or so. And all it said is that the divers have successfully entered the cafeteria.

We know they've been trying to reach it for more than a day, very difficult to get there, as you were saying, Ashleigh. They're using these ropes to basically guide their way through this pitch-black ship.

There was a large wall that was making it difficult to enter this room, but it was very important for the divers to reach this room because of the fact that a large number of students were believed to be there when this disaster happened.

Still no word yet about what they're finding in the cafeteria, but with so many students trapped inside, a lot of people here are very fearful of what the news will be as we learn in the coming hours what they find in the cafeteria.

BANFIELD: All right, Will Ripley, thanks for the update, great reporting from Will.

I also want to bring in cargo ship Captain Jim Staples and marine safety consultant, and also Cade Courtley, who's a former Navy SEAL and founder of SEAL Survival.

Welcome to you both. Captain, I'd like to begin with you if I can. When you hear that kind of news, that the divers have been able to get mid-ship and to that essential cafeteria area, does that bring anything to light for you in terms of the area that they are, the danger for those who are doing the diving?

CAPTAIN JIM STAPLES, CARGO SHIP CAPTAIN: Absolutely, it's very dangerous down there, but it's unreasonable to have anybody go to a main place like that in a ship when the ship is in trouble.

And now we hear that, you know, the people were making phone calls quite earlier than the ship even made a distress call, which is even more disheartening, when a young boy, a child, has to make some type of distress call to say that the vessel's in trouble.

BANFIELD: But do you think that the young people were corralled into the cafeteria? Or was everyone essentially told to stay in place wherever they were at the moment? STAPLES: It was probably after the meal hour, They were probably in there, probably -- maybe having breakfast, so that may have been why there were a lot of people in that area at the time.

But, obviously, there was something drastically wrong that happened fast, that all these children would be making phone calls to the emergency services.

BANFIELD: What's the first thing you do as a captain? If there is even an inkling that there might be something wrong, that effectively you may have to take a second step, later on, and evacuate the ship, what's the first step? What do you tell people to do? Get out your cabins, get to the decks?

STAPLES: Exactly. Exactly. If you're in a situation like this one here where you don't know what's going on and the vessel is rolling quite rapidly and people are distressed, you need to get them out to the open, to an open area where they can get off the ship.

It's better to get them outside in the cold and have them wait than not take any action at all. So the inaction on this captain is probably going to cause and lead to a lot of deaths.

BANFIELD: And, by the way, the inaction, I want to ask you about that, because the captain himself has said he was concerned about the passengers in cold water with the strong current, which is why he went back and forth with his crew and with the land authorities as to whether they could rescue fast enough.

He didn't want to evacuate the ship unless he knew they could be rescued fast enough because of the cold water and the current. And yet there's a picture of him getting off the ship that shows all sorts of lifeboats that haven't even been opened or sent into the water.

STAPLES: The current and the cold water is absolutely a concern, but it should have been at the bottom of his decision making.

The first decision he should have done was to get people outside to those life rafts and given them a fighting chance, at least, if they even had to go into the water. The life rafts could have been there, they could have made their way to the life rafts, and there could have been a greater survival amount than what we're going to see.

BANFIELD: Cade Courtley, I want to bring you in with what's going on right now. As those divers, and we've heard these reports that the divers can't even see their hands in front of their faces the water's so murky, as they head into the inner reaches of this sunken vessel, it's got to be very dangerous for them now.

CADE COURTLEY, FORMER NAVY SEAL: Absolutely. I mean, anybody who's done a salvage dive will tell you what these guys are dealing with right now is as dangerous as it gets.

And, unfortunately, the only thing that would make this tragedy even worse is if we lost or one of the divers were injured. A decision needs to be made. We're dealing with hypothermia. We're dealing with suffocation. And let's not forget, we're dealing with severe dehydration, six days of not getting any fresh water. A decision needs to be made how much longer do we put these divers at tremendous risk --

BANFIELD: And, Cade, I'm looking at these pictures of them. They're following lines, and I just wondered, with all of your Navy SEAL training and search and rescue, what other kinds of things can be done to try to at least ensure their safety as they do this critical work?

COURTLEY: Well, I'll tell you what, my million dollar question right now is we had these crane ships, these crane vessels, three of them on station for about four to five days now.

I don't understand why they were not utilized earlier to at least secure the vessel when it was still on the surface, making the diving operations far less dangerous.

BANFIELD: That's a good point. Actually, you know what? The captain's here.

And there was some discussion that using the cranes to stabilize the ship so that it wouldn't sink further might have actually dislodged any potential air pockets if there were survivors using those air pockets. Any truth to that?

STAPLES: It's possible. I agree putting the cranes on scene early would have been of great benefit for this recovery, absolutely.

BANFIELD: But do you see the point in that argument, that perhaps the cranes might have done more harm than good?

It does -- it sort of defies logic, but could it have destabilized any air pockets that did exist?

STAPLES: Well, not being an oceanographer, I would say that possibly leaving the cranes and holding that vessel in position just to stabilize it would have been the thing to do, and then do the recovery, and then possibly lift it further to the surface.

BANFIELD: Cade, just one quick answer, do you think they're going to find anybody alive?

COURTLEY: No, I don't. I'm afraid I don't.

BANFIELD: It's so -- it's such a sorry situation, and you know, tomorrow marks the one week.

Cade Courtley, thank you very much. Captain Jim Staples, stick around for us if you will, please.

As difficult as the search is, and it continues, criminal charges are already being filed, more crew members today facing arrest and charges, but who ultimately will hold the final responsibility for this disaster? Who's responsible? Back after this.

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