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Legal View with Ashleigh Banfield

What's Next for Donald Sterling?; First Amendment and a Technological Surveillance Society; NBA Bans Sterling; Execution Fails

Aired April 30, 2014 - 12:30   ET

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

RACHEL NICHOLS CNN ANCHOR, CNN'S "UNGUARDED": And by the way, all the players who were playing in the games last night, yes, did talk amongst themselves and organize a boycott. And I just do want to make this clear. Even if the vote is in secret, I promise you that the people who want it to get out will make sure that it is leaked.

ASHLEIGH BANFIELD, CNN ANCHOR: Yeah. Yeah, OK, so let's bring in the legal aspect of this next step, because this is really where we're going, folks.

The commissioner made it pretty clear. Either he or someone has to initiate the action, and then they'll end up in that boardroom, the 30 of them, and the commissioner. So let me read the actual statute we're talking about. Call it Article 13. I don't know if they call it statute. It's not a court of law, by any means. It's a private club and their rules.

But it reads this, that, basically, if a member or owner does the following, fail or refuse to fulfill its contractual obligations to the organization, members, player, or any other third party, in such a way as to affect the association or its members adversely.

Here's the problem, Mel. Business is business, and when you're conducting business, I can see if you mess up in those respects, but talking to your mistress in the kitchen, how can that be considered business?

MEL ROBBINS, CNN COMMENTATOR: It's considered business because the net effect of him having that conversation was almost two dozen sponsors running for the hills, threats of boycotts, fans not knowing what to do.

So everyone wants to talk about the First Amendment and privacy, let's talk about personal responsibility. The only person that is 100 percent responsible for this entire situation is Donald Sterling. He's the one that uttered those words. He's the one that was stupid enough to say it to somebody who presumably is saying that she's got his permission to tape this stuff.

BANFIELD: Mel, no one disagrees with you. It's stupid, vile, ugly, all the other platitudes we've heard about this. They're all true.

ROBBINS: Yeah. But here's the difference. BANFIELD: But law and rules are law and rules --

ROBBINS: But here's the difference.

BANFIELD: The wording does not say you can't talk dirty with your mistress in your kitchen.

ROBBINS: But what it does say is you can't do something that has a negative impact on the NBA. And here's the other thing I want to point out. So this is the body of law. Here's the court system, right? And most of us, when we get in trouble, we get pulled into the courts.

When you decide that you're going to join a club, the NBA, and you're going to sign a contract that's almost 92-pages long and you're going to be governed by their rules, screw the court. You are governed by this and this alone.

And that's why the language in here about the power of the commissioner and the fact that these decisions are final is so resolute.

BANFIELD: So, Paul, you heard me outline the very simplistic court proceeding, and I'm only going to call it that because it's the private club's private courtroom.

Does it really matter if there's evidence and testimony in five days to contemplate, in 10 days before the vote? I mean, please, if they don't like the guy --

PAUL CALLAN, CNN LEGAL ANALYST: This constitution, this, you know, 80 pages of legalese, says one important thing. When they hear a case, the members, the owners, the rules of evidence don't apply. Anything can be introduced, and they can use any procedure that they want to determine what to allow an owner to keep his team or to terminate.

So all of them have agreed to this. And I agree with Mel. This is a private club of owners and the only thing they're worried about, frankly, is, hey, could this happen to me? If I said something inappropriate, am I going to lose my $1 billion NBA franchise because I was stupid a couple years ago in something that I said. Some of the members may be worried about that.

But on the other hand, this organization, the NBA, sells a product, and that product in the form of the L.A. Clippers has been tarnished terribly by this open, blatant racism of one of the most important owners.

BANFIELD: So, Rachel, last comment, real quick.

NICHOLS: Yeah, just one more legal issue with this, though. Even though he's agreed to those binding rules and if he decides to go sue in court, we all know that he wouldn't stand a chance. He could still threaten to sue in court.

BANFIELD: Sure.

NICHOLS: You've been in business with these guys for 30 years.

ROBBINS: And he's sued the NBA before.

BANFIELD: I've got one more thing to say. Arbitration, it's final. It's final.

NICHOLS: The point is, he's been in business with these guys for 30 years. He knows all the secrets. He knows where all the bodies are buried.

BANFIELD: He knows where all the bodies are buried. You're right.

NICHOLS: And he could say, I'm going to sue you, even though I know I can't win. But I'm going to enter into evidence, you guys just wait.

CALLAN: Exactly.

BANFIELD: Something tells me this girl right now is going to know the person who initiated the action by like 2:00.

ROBBINS: Exactly. Exactly.

BANFIELD: Rachel Nichols, great to have you, Mel and Paul, as always.

By the way, remember when Mel said something about First Amendment, and I said, baloney? Guess what. A lot of people are saying what about your First Amendment rights to say whatever you want?

Hey, folks, you still got 'em, and so does he, but everything else that comes along with them.

We're going to talk about why jail is one thing and people hating you and stopping buying your product is a whole other thing.

That's coming up.

(COMMERCIAL BREAK)

BANFIELD: Here's another side to the Donald Sterling controversy that may be getting lost in all the outrage over his, let's face it, really ugly racist remarks. It's the fact that his privacy just might have been invaded when he was recorded.

We don't know yet if it's with or without his consent, but it appears it might have been without. Now his private comments are being made very, very public. Dallas Mavericks owner Mark Cuban, by the way, he actually expressed some concern about the whole thing, the precedent it might set if the NBA terminated ownership of the clippers.

So joining me to discuss this whole dilemma is CNN commentator Mel Robbins and also First Amendment attorney Marc Randazza from Las Vegas who says what happened to Sterling is morally and legally wrong.

OK, Mark, those are fighting words for a lot of people watching this show. You know, legally, not so sure yet. Let's just be really clear. Nobody has been able to prove undoubtedly there wasn't some kind of consent made by Mr. Sterling to this recording. Let's say for sake of this argument perhaps he didn't know, certainly looks that way. Why is it morally wrong he got this comeuppance, morally wrong?

MARC RANDAZZA, FIRST AMENDMENT ATTORNEY: Look, she denies that he had no knowledge. You're right.

But let's say if he didn't, do we live in a surveillance society? You know, as a society, we all rose up in outrage when the NSA was spying on us. And we all looked with sympathy towards people who lived in eastern Europe under the Iron Curtain with the Stasi watching them all the time.

The stress of living under a regime where everywhere you go everything you do is recorded, viewed and out for public display or to be used against you, and do we really want to live in a society like that? There may not have been a law broken here, but if there wasn't two- party consent, a law was broken.

But even if it wasn't, you know, right now, we have -- we're living in a world where you can take intimate photos of yourself, and then the next day, somebody you give them to can publish them all over the Web.

You know, you have a private conversation in your kitchen with -- I don't care if it's your mistress or just your friend, but to think that at any moment that can be spread around worldwide and used against you --

BANFIELD: And end your livelihood.

RANDAZZA: The program here isn't against that. We don't have a technological fix for this. The genie's out of the bottle. Everybody has a recording device. Everyone has a camera.

BANFIELD: OK, let me -- let's talk about that.

RANDAZZA: Everyone can do this.

BANFIELD: There was something else that you wrote, and I want Mel to weight in on this, because let's face it; Mel has great opinions about this stuff. And it was this.

ROBBINS: I disagree with every one of the things that he was saying.

BANFIELD: Mark made a great point when he wrote in his opinion piece that we all say things in private. And he went on to say this. "Sometimes they're like incubating moments. These are things that --"

ROBBINS: Not when you're 82.

BANFIELD: When you're talking -- and I keep saying the kitchen, I'm making that part up. I don't know where these people were standing. But if you're talking to your mistress or your lover or your friend or your wife or your child, sometimes these are incubating moments for you. It's a test-marketing place, as Marc puts it.

It's your test-marketing place for thoughts, maybe not fully developed thoughts. Is it fair to interrupt that process and display it for the world as the final process, as the final result?

ROBBINS: First of all, I love the -- it was a very poetic line, Marc, that you wrote, and I think that's true for a lot of people, where you feel safe. I mean, there's certainly things I've said to my girlfriends or my husband that I might not want aired on CNN. But the truth of the matter is --

BANFIELD: By the way, then they set you straight after the next glass of wine --

ROBBINS: Yes.

BANFIELD: And then you realize --

ROBBINS: And he does sound a little bit drunk or rambling or medicated on the tapes, themselves.

BANFIELD: Or 80.

ROBBINS: Or 82-years-old. So I don't think this is the testing-ground situation, but here's the problem I have. If he consented, it's not illegal. And even if it's illegal, there's a remedy in a different court.

When you want to talk about the laws of the morality, the truth of the matter is, I also think about karma, and karma's a lady and she can be a real bitch. And in this instance, I like to look at the person responsible for the mess, which is Donald Sterling.

BANFIELD: You know what? That part --

ROBBINS: He said what he believed.

BANFIELD: Marc -- and you know what? Here's a great point.

ROBBINS: Nobody's censoring Donald Sterling.

BANFIELD: His incubation process is likely done by now in his 80s.

And then there's this. How about the whole body of work? And when I say the work, the bad work, Marc. This guy -- it's not the first time. He's not being kicked out because of one thing he --

ROBBINS: I guess here's the other thing, Ashleigh, Marc, that I think about -- hold on one second --

RANDAZZA: I'm not sticking up for him --

ROBBINS: -- this issue, Marc, because the truth is, if he had said all this stuff to his girlfriend, she could have easily held a press conference. He's saying stuff that he's comfortable with. She has right to tell other people he feels this way, that he's been forbidding her from doing this, going to TMZ. There's nothing like a recording.

BANFIELD: Last word, Marc, real quick.

RANDAZZA: Correct, she has the right to do that, but what I'm talking about is a broader conversation. This should shake us all up, and maybe we don't have a technological way of dealing with this or even a legal way of putting this back in the bottle.

But we've got to realize we're now living under constant surveillance as if we were in East Germany under the Stasi. I'm not saying what's happening to him is necessarily something we should have sympathy for, but we need to look at how this is going to come back on us.

ROBBINS: Maybe we should just all live like we tell our kids to live, 15- and 13-year-old, and my 8-year-old. I'm sure you say this to your 8-year-old.

BANFIELD: My 8-year-old and 6-year-old, yes.

ROBBINS: Only say things you would want other people to plaster around the school.

BANFIELD: Even when they're talking to me?

ROBBINS: Yes.

BANFIELD: Come on!

RANDAZZA: You know, we can't do that anymore.

ROBBINS: Yes, you can.

BANFIELD: I think Marc's right, you can't.

RANDAZZA: Just expect the consequences if you're going to be honest about how you feel.

We're talking about a guy that had two lives, one that he was publicly manufacturing where he pretended to be some kind of philanthropist that should have been "Man of the Year," and another one in private where all the sudden, by the way, he hasn't apologized for.

So we're not censoring him. In fact it's just the NBA saying, hey, you can have your opinion. You're just not part of our club.

RANDAZZA: No one's talking about him being censored. There's no way. Anybody who thinks his First Amendment rights have been violated I think is dead wrong. No, the First Amendment does not protect you from criticism.

BANFIELD: Let's make things crystal clear for everybody. First Amendment stops the government from coming after you for what you said.

RANDAZZA: Correct.

BANFIELD: Not the consumers who buy your trinkets and your jerseys and your tickets, so let's be very clear.

RANDAZZA: Correct.

BANFIELD: First Amendment, yell it from the mountain top however you deal and then deal with the ramifications.

RANDAZZA: The First Amendment protects your right to boycott.

BANFIELD: Exactly. Just quickly, the two of you, this is -- again if this were an owner who had said or done this for the first time and was pretty squeaky clean otherwise, do you not think this is a tipping point for a lot of bad behavior?

Do you think these one - and just a quick comment from both of you, Mel, from you, do you think he would have been taken to task the way he was, as quickly as he was, having not done all the other bad stuff as a foundation?

ROBBINS: I think there's that. And I also think that he was unremorseful to begin with.

BANFIELD: Marc.

RANDAZZA: Yes, I don't think so.

BANFIELD: Interesting. All right.

RANDAZZA: I think he's got such a history of this that, yes, this might have been the tipping point.

BANFIELD: Yes. Well, great conversation and thank you to both you. Great piece, Marc. I enjoyed reading it.

RANDAZZA: Thank you.

BANFIELD: And I've got to say, that whole bit about, you know, what we say in private is sort of the incubation place. It's our test marketplace for what we think and how we change how we think sometimes. Our friends and our families and our close confidants are the people who oftentimes mold how we end up thinking. I'd like to think by the time I'm 80, 82, I'll have been there by then.

Mark and Mel, thank you both.

ROBBINS: (INAUDIBLE).

BANFIELD: Oh, sure. No, we're actually -

ROBBINS: (INAUDIBLE).

BANFIELD: Yes, yes, well, never before the show anyway.

OK, so we've got a couple of other really awesome, incredible stories. The execution that happened last night that was botched, but that led to the death of that man anyway by heart attack. He was given a lethal injection. It didn't go the way it was supposed to. And, as you might expect, there was a doctor involved. Don't they take a Hippocratic oath? Dr. Sanjay Gupta is going to join us about that issue and just what those drugs do in sequence to ultimately kill you in the first place.

(COMMERCIAL BREAK)

BANFIELD: Want to get back to our top story. A grizzly indictment of the so-called execution cocktail. Though many states have now taken capital punishment off the books, 32 of them still impose death sentences. And, lately, they've all had to scramble in order to find alternative means to conduct their lethal injections. That's because the European makers of the execution drugs of choice are no longer interested in selling their drugs to us for use to kill people. And here's where I bring in our Dr. Sanjay Gupta in Atlanta.

You know, Sanjay, maybe a lot of people don't know but there is a doctor who is present during lethal executions. Usually administering at least that first -- that first drug that renders the condemned unconscious. I'm not sure I understand how it works with the Hippocratic Oath. I thought that's not allowed.

DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: Well, this is sticky. I mean there's no two ways about it, Ashleigh. And, you're right, it doesn't fit neatly into any kind of, you know, sort of adhering by that oath. The doctors don't always actually administer the drugs. In fact, I think there's certain laws in certain states that say they can't put in the needle or administer the drugs, but they are present, sometimes to declare someone dead. That's what the doctor's role is. Many times there's, you know, doctors or nurses who are also prison employees who are part of this.

But I can tell you that we oftentimes don't know who these people are. They don't self-identify as you might guess for obvious reasons. So you're right, it is a sticky situation. But you do have medically trained professionals who train to help people and prolong life who are now in this really uncomfortable role.

BANFIELD: So, Sanjay, the first drug that we were just talking about, and you'll have to correct me because you're much better at this than I, is Midazolam -

GUPTA: Midazolam.

BANFIELD: Thank you, Midazolam. And that causes the unconsciousness. But next up is the Vecuronium Bromide, is that correct?

GUPTA: Yes. Yes, Vecuronium Bromide.

BANFIELD: What happens?

GUPTA: You know, that's a paralytic. It - essentially it paralyzes the muscles and that's important, Ashleigh, because in this case it paralyzes the diaphragm, which is a large muscle as well. When the diaphragm is paralyzed, one can no longer breathe.

BANFIELD: Then there's the final drug, the potassium chloride. And it effectively finishes the job?

GUPTA: Yes, it stops the heart. It causes a chemical imbalance in the body and specifically in the blood that's around the heart that essentially causes the heart to go into cardiac arrest.

BANFIELD: None of that -- look, I don't know a whole lot about taking those drugs and having those effects, but not one of them seems to be terribly painful to the point that has been described in the execution last night. They called it looking like torture. What part of that or what combination or problem with those drugs and the cocktail of those causes the intense pain?

GUPTA: You know, if things went the way they're supposed to go, you're right, there shouldn't be pain because the first drug is supposed to render someone essentially unaware. That didn't seem to happen in this case. If you give someone a paralytic, their diaphragm is no longer able to move, but they're still awake, Ashleigh.

That can be very, very - that could be - that could be painful. It could be very disconcerting or essentially suffocating, unable to take in breaths anymore despite the fact that you're awake. The third drug can cause a cardiac arrest and someone might have the sort of pain associated with a heart attack, for example. So, again, if the process worked the way that it's supposed to work, and all three drugs did what they were supposed to do in order, that shouldn't happen, but that doesn't look like the case here.

BANFIELD: So -- I understand when companies or -- for moral reasons or for the Europeans who won't even extradite because of the death penalty when it comes to murder cases.

GUPTA: Right.

BANFIELD: But why isn't it -- why are they not able to mimic the drugs that used to be easily readily available? Why can't they mimic them with others? And why are we having these problems all of a sudden when they go to the cocktails?

GUPTA: Yes. No, it's a great question. Look, since my first year of medical school, Ashleigh, there's a philosophical tension around that very issue. People create these medications. They want them to be used for life sustaining, life preserving sort of measures. To create another set of drugs, mic drugs, perhaps a company could do that for the sole purpose of these executions. It's not a role anyone's comfortable with, frankly. And so I think that's part of the challenge. And medical establishments, the AMA's not - you know, they prefer their doctors don't be involved in these sorts of processes, manufacturers don't. So there's - it's just -- it's a sticky ethical situation.

I will say, though, in this particular case, the vein that -- where the medications were going through, it burst open. So instead of the medications going into the blood, they were going into the soft tissue of the arm. And you could still absorb some, but you just don't know how much. And that just threw the whole thing awry. BANFIELD: Good point. I think that's a huge point you just made, Sanjay, that the authorities, anyway, of course they pulled the curtain so we couldn't witness this -

GUPTA: Right.

BANFIELD: But the authorities say this was a vein issue, not a drug issue. But until we have a very thorough investigation into this, you know, how can anyone be sure. I mean there's so many -

GUPTA: Right.

BANFIELD: Litigation issues that could come up as well.

Dr. Gupta, I could talk to you forever.

GUPTA: Me too, Ashleigh. It's always fun.

BANFIELD: Thank you so much. You're just great. Thank you so much. Dr. Sanjay Gupta with all the answers all the time.

Another breaking story. It's the only reason I would ever end an interview with Sanjay Gupta. But you probably remember the reigning Heisman trophy win, he's Jameis Winston, Florida State. He was cleared of rape allegations, but this is breaking just now. Apparently he is in trouble again. And you might be really surprised at what is alleged to have happened.

(COMMERCIAL BREAK)

BANFIELD: A couple of other top news stories that we're tracking today.

More than two dozen children died today, victims of the civil war broiling in Syria. This happened in Syria's largest city, Aleppo. Witnesses say the Syrian military dropped barrel bombs on an elementary school filled with children at the time. Parts of Aleppo are under control of the rebels who are rising up against Syria's government.

That former teacher who served a month behind bars for raping a 14- year-old student is going to be resentenced. The Montana Supreme Court has overturned Stacey Rambold's sentence saying a whole new judge needs to do the resentencing. The original judge, Todd Baugh, had suggested that the teenage victim shared responsibility for her rape because he believed she somehow had some control over the situation. Can't ask the teenage girl, though, because she committed suicide before the case went to trial.

And the top college football player in the nation right now is in big trouble again. Jameis Winston was cited last night in Tallahassee, Florida, for shoplifting. A source tells CNN the Heisman trophy winner allegedly walked out of a grocery store near the Florida State campus with an order of crab legs that he didn't pay for. Jameis Winston was not booked in the incident.

Thanks for watching, everybody. Stay tuned now because my colleague Wolf takes over.