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Legal View with Ashleigh Banfield

FAA Investigates Airplane Near Miss in Houston; Tennessee's Death Penalty; Climber Records Plunge

Aired May 23, 2014 - 12:30   ET

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

ASHLEIGH BANFIELD: Mel and Paul and Joey, thank you. Thank you all. Appreciate it.

We had a story that came across our radar, and I say that because it involves actual radar.

Flight 437, Flight 601, why on Earth are you that close? And guess what? Nearly one mile, apparently this happens a lot, and it might start happening a lot more. I'm going to tell you why, what happened and what might happen in the future, next.

(COMMERCIAL BREAK)

BANFIELD: The FAA is investigating another near miss -- and when I say near, I mean really near -- between two jetliners. This happened in Houston. It happened just weeks after another close call that happened in Newark.

And in spite of the training, the technology, it is enough to make the flying public a little uneasy, especially with so many of us about to embark on a big travel trip this holiday weekend.

Air traffic controllers are under a lot of stress, and according to CNN safety analyst David Soucie, the skies will only become more crowded, in fact, twice as crowded, in the next 20 years.

Want you to listen to the tension in the voice of the controller in Houston on May 9th during the incident that is right now under investigation.

(BEGIN VIDEO CLIP)

TOWER: United 601, just stop your heading. Stop the turn right there, sir. United 601, stop your turn. Stop your climbing. Stop your turn, United 601.

(END VIDEO CLIP)

BANFIELD: I'd say that's tension and some real grace under fire. Those planes were headed right towards each other. They were only about a mile apart, which in "airplane-speak" is about that much. They were at jet speeds that leave almost no time to maneuver.

Here's CNN's Rene Marsh. (BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: 601, thank you. Turn right, right turn.

RENE MARSH, CNN CORRESPONDENT: Two more passenger planes get too close in the skies

On May 9th, United Flight 601 and United 437 took off from Bush Intercontinental Airport in Houston at roughly the same time.

Shortly after takeoff Flight 601 is told to turn right, putting it in the path of the other plane. Moments later, the controller seems to realize the mistake.

UNIDENTIFIED MALE: 601, just stop your heading. Stop the turn right there, sir.

United 601, stop your turn. You have to stop your climbing, stop your turn, United 601.

MARSH: The two planes came within nearly a mile of each other

The roughly 300 passengers on both flights may not have been aware of the close call, but the pilots were left with questions as to what went wrong.

UNIDENTIFIED MALE: United 601, do you know what happened there?

UNIDENTIFIED MALE: You all basically crossed directly over the top of each other. That's what it looked like from my perspective.

I have no idea what was going on in the tower. But it was pretty gnarly looking.

UNIDENTIFIED MALE: I'm guessing he was supposed to give us a left turn?

MARSH: This is the third incident in recent weeks where passenger planes got too close for comfort, a similar incident over Newark airport and another over the Pacific Ocean near Hawaii, all involving passenger planes.

(END VIDEOTAPE)

BANFIELD: CNN's Rene Marsh reporting for us.

There were 4,400 close calls in the air in 2012. If you do the math, that's more than a dozen every day, according to the FAA's latest statistics. Forty-one of those were considered high-risk.

Near misses and improving airline safety in general is something the International Civil Aviation Organization is dealing with all the time.

The mystery surrounding the disappearance of Malaysia Air Flight 370 led to a very big meeting in Montreal of the ICAO and from the meeting came some significant developments that are related to searching for and finding lost airplanes, big surprise, right?

Perhaps most significant in the findings, though, according to CNN safety analyst David Soucie, is a problem that plagued air traffic controllers, a kind of three-strike system that punished those controllers for allowing planes to get too close.

Those strikes were called deals. If you get three deals, you're out. That system is no longer in place, and David Soucie says that's actually not a bad thing, because it frees up the air traffic controllers from the fear of not reporting those near misses. Sometimes those deals, people knew nothing about them.

I want to expand on this discussion CNN aviation analyst and former inspector general of the Department of Transportation Mary Schiavo. She joins us from South Carolina.

A lot to talk to you about today, it turns out, Mary. First of all, the deals, like we just saw in Houston, I'm sure this is no surprise to you because you have seen so much of this in your history, in your profession. But for the rest of us, we really can't believe it. And I guess, is it such a good thing the deals, the three-strike issue, is gone? Shouldn't I feel like we need more punitive measures in some respects?

MARY SCHIAVO, CNN AVIATION ANALYST: We do in some respects, because what studies have found in my old office, and the office of inspector general has been good about investigating this, is, for example, air traffic controllers increase as much as 50 percent in one year. I think that was 2010.

And not all of it was due to increased reporting, but what the FAA did is there's a caveat to this reporting. What the FAA did is say is, please report these incidents so we know how many are happening and the incidents of course were just flooding in.

But then they said, if you report them, nothing will happen to you. You won't be subject to disciplinary proceeding. You might be sent for retraining.

The problem is, air traffic control and the FAA, the same people cause the same problems, over and over again. What you find is somebody, if you're in trouble this year, you tend to be the person who's in trouble in future years.

And so the amnesty wasn't needed for good air traffic controllers. The amnesty at the FAA protects the bad air traffic controllers.

For example, the controller on the Hudson River midair, I think last week, it was announced in the news, got his job back, back flying, and that was the one talking about the dead cat instead of directing traffic. So I think amnesty for all people would don't control traffic is wrong.

BANFIELD: That makes me more concerned based on what David Soucie learned from his interview with the head of the International Civil Aviation Organization in the last couple of days, and he was able to glean it.

The ICAO president says air traffic is going to double in the next 20 years.

SCHIAVO: Yes, oh, yes.

BANFIELD: Could you please help me get off the ledge on this one? If we're having fewer deals that get the bad controllers out and double the traffic, how are we supposed to feel safe in the air?

SCHIAVO: Well, what's occurring, there's just so many things occurring at once. That's another problem for the air traffic control mistakes, and a 50 percent increase, increasing every year is very bad.

But what we're doing is we're phasing in a new system called NextGen. It's heavily computer reliant. The computers should make, if everybody's in the system and has all the equipment, air collisions, midair collisions, a thing of the past, also runway incursions.

But most of the doubling of traffic is going to occur in other countries. The United States' growth is going to be much slower than that. We won't double, because we're already saturated with air traffic. Most everyone who wants air traffic has (inaudible).

But we're going to see a massive explosion around the world of air travel, China, India, other places, and of course they're going to want to come here.

So we're going to have to be careful to work with IADA (ph) and ICAO, the international groups, to police other country's planes who want to land here and make sure it all fits with our laws as well, because every airline follows their own country's laws. ICAO can only suggest.

BANFIELD: I hear you. It's good to talk to you, Mary. Thank you so much.

SCHIAVO: Thank you.

BANFIELD: Mary Schiavo joining us live.

You know, it's been a while since the electric chair has been in the news or been in use, but it's back. It's back legally, because it's Tennessee's solution to all those lethal injections that aren't going so well.

So, are prisoners to be marched to that chair now instead in that state? And, by the way, is it painful to be electrocuted? I ask because you're going to find out about the Eighth Amendment and how all this seems a little strange.

(COMMERCIAL BREAK)

BANFIELD: Welcome back to LEGAL VIEW. As executions go, Tennessee isn't really a major player. So far this century, more death row inmates have died of natural causes on death row in Tennessee than being executed by someone's hand. But the next time that state does put a condemned person to death, and it's scheduled for October, if the drugs for the lethal injection just so happen to not be available, this will be the mode that the prisoner will face, the electric chair. Thirty-two states still have capital punishment in this union and eight of them allow inmates to choose electrocution over the needle. But only Tennessee gives that decision to the state rather than to the prisoner. All of this because of a brand-new law that was signed by the governor of that state just yesterday. And my lawyers are so smart on this topic. I'd need an hour at least just to start on this.

But I'm going to start with you, Paul, because you and I are very spirited when it comes to this.

PAUL CALLAN, CNN LEGAL ANALYST: Yes, we are.

BANFIELD: There is an Eighth Amendment against cruel and unusual punishment. And the electric chair - and I will just read from the associate justice, William Brennan, of the United States Supreme Court about what the electric chair does. Read along with me if you dare. "The prisoner's eyeballs sometimes pop out and rest on his cheeks. The prisoner often dedicates, urinates and vomits blood and drool. The body turns bright red as its temperature rises and the prisoner's flesh swells and his skin stretches to the point of breaking."

I must stop there, but the justice went further. Medical examiners have gone much, much further. Of course, he was writing in a dissenting opinion. He's a death penalty opponent. How is that not cruel and unusual?

CALLAN: William Brennan appointed by John F. Kennedy to the Supreme Court. A very principled opponent of the death penalty in all cases.

But here's what the majority of the court has said through the years. They've approve hanging. They've approved firing squads. And then it was eventually thought, you know something, electric chair is a better way to do it. And then finally we came up with lethal injection, which is the least painful method of all.

But here's the misconception. Yes, death is going to be painful. It really doesn't matter what kind of death we're talking about. I mean even lethal injection that goes well, you're still putting it into someone's arm.

BANFIELD: And there's mental pain.

CALLAN: The Supreme Court said, though, that it can't be willful or wanton pain or unnecessary pain. In other words, we can't torture people to death, but we can kill them under the U.S. Constitution. It's -- that's what the - that's what it says in the Supreme Court's view under the Eighth Amendment, which brings up --

BANFIELD: I got you. So we're talking about necessary or unnecessary.

Joey Jackson, aren't we smarter as a human race? Aren't we smarter to be able to come up with something that doesn't actually inflict this kind of pain, thus making it unnecessary?

JOEY JACKSON, HLN LEGAL ANALYST: Yes. Well, here's the issue, Ashleigh, and I know that you want to do an hour-long special on this very issue so we could really delve into the death penalty. However, what is the humane way to kill someone? Is it - and do we feel better as a society if we inject them with a needle? Do we feel better if we hang them? Do we feel better if we electrocute them and allow, you know, fire to shoot and spark out of their - of their head, as we saw in Florida with old sparky?

And so the issue becomes, should there be a death penalty to begin with. And if there is a death penalty, and you mentioned, Ashleigh, 32 states have it, what is the proper and appropriate way and method that it should be applied? And I think the argument could be made that no method is humane because someone's dying. And we saw in Oklahoma recently, right, where, of course, the person was rising up because the --

BANFIELD: The patient was rising and (INAUDIBLE) patient (INAUDIBLE) condemned, he's a prisoner.

JACKSON: The condemned, absolutely. In fact, it's a problem.

BANFIELD: And I will remind everyone - I will remind everyone, early and often that these men or women are not there because they were singing too loudly in church. But then again, some of them happen to be innocent. We'll end on that.

CALLAN: Well, now, that guy - that guy confessed to burying somebody alive after raping them, OK?

JACKSON: Very (INAUDIBLE).

BANFIELD: Like I said, it's not about that. It's not about --

CALLAN: And he breathed a little hard as he was dying, OK?

BANFIELD: It's not about that.

CALLAN: Yes.

BANFIELD: That part, I said often, I could maybe even pull the lever myself. But there are many cases that have gone to that chamber of innocent people and there is no mulligan, folks, there's no mulligan on this one.

JACKSON: It's final.

BANFIELD: It's final.

JACKSON: Absolutely.

BANFIELD: It's always a good segment. But, you know what, we're not finished talking about it because this is a strange and moving piece --

JACKSON: It is.

BANFIELD: The death penalty in the United States.

Paul and Joey, thank you.

JACKSON: Thank you, Ashleigh.

Coming up next, an American climber plunging 70 feet on a Himalayan mountain and, guess what, his video was rolling the whole time and rolled as he got out. You're going to see it all in a moment.

(COMMERCIAL BREAK)

BANFIELD: By all accounts, an American mountain climber should be dead right now because that is the rule. When you fall 70 feet down a crevasse or a hole or any kind of chasm near Mt. Everest, it's what you do. You typically die. But not this guy. Tough as nails and keeping the camera rolling the entire time. And my friend Jason Carroll here at CNN has his story.

(BEGIN VIDEOTAPE)

DR. JOHN ALL, FELL 70 FEET INTO CREVASSE: I fell through that hole. Thankfully I didn't keep falling that way.

JASON CARROLL, CNN NATIONAL CORRESPONDENT (voice-over): Trapped alone 70 feet below the ice, Professor John All was broken, bruised and fighting for his life.

JOHN ALL: My right arm is seizing up. I can't use it anymore.

CARROLL: While conducting climate research, All was hiking alone on a Himalayan mountain when he plunged into a hidden icy crevasse and probably landing on a ledge just three feet wide. His face, bloody. All suffered several broken ribs and a fractured arm from the terrifying fall.

But like the survival drama "127 Hours," the professor made a lifesaving decision to climb out, his camera in tow.

JOHN ALL: That hurt bad, but I got to get out.

It's funny the amount of damage the body can take and still function pretty well. The pain was wonderful, let's put it that that way, because I was at least alive to feel the pain.

CARROLL: It took around five agonizing hours, all making his way to the top with an ice ax, eventually reaching his research team's camp where the professor was later rescued.

JOHN ALL: It happened so quickly and I was thinking, oh, God, thank God I stopped and that I was still alive because I didn't - I expected just to keep going until it was over. And to hit the ledge and catch that little piece of ice, it save my life.

CARROLL: All's family still can't believe he made it out alive. JOSEPH ALL, CLIMBER'S BROTHER: He could have been a goner for sure. If you look at it from the video, he could have just kept on going down. And I don't see how you get out of that. If you look up, you see the sky. I don't know how you get up there if you don't got - if you don't have one of your arms functioning.

CARROLL: Jason Carroll, CNN, New York.

(END VIDEOTAPE)

BANFIELD: Seventy feet climbing with a broken arm. Remarkable.

Another NBA owner is in hot water over race-related remarks. But wait, what was it that Mark Cuban said that caused him to issue an apology to the family of Trayvon Martin? That's coming up.

(COMMERCIAL BREAK)

BANFIELD: Taking a quick look at some other headlines right now.

Dallas Mavericks owner Mark Cuban is apologizing after admitting what he says were some of his prejudices in a very public way. In an interview with "Inc." magazine, he said if he sees a black kid in a hoodie late at night or a bald white guy with tattoos, he would cross to the other side of the street. Now, Cuban says while he doesn't regret the context of what he said, he does regret the reference to the hoodie because of Trayvon Martin's family and he has apologized to them.

If you're barbecuing this holiday weekend, you might want to take a moment and look closely at the burgers and the kabobs that you're slapping on the grill. Federal food officials say stores in 12 states may have sold beef contaminated with E. Coli. You can go to cnn.com for a full list of the brands that are being recalled and where those brands were sold.

I am fresh out of time, but have yourself a very relaxing family weekend. Hopefully you'll have some family time planned. And, everybody, stop to remember on Memorial Day, it's what we're supposed to do. Thanks for watching. "Wolf" starts right now.

WOLF BLITZER, CNN ANCHOR: Right now, a possible conclusion to the Donald Sterling controversy. CNN has confirmed Sterling is letting his wife, Shelly, negotiate the sale of the L.A. Clippers.