Return to Transcripts main page

Legal View with Ashleigh Banfield

Police Attend Special Classes to Make Split-Second Decisions; Gov. Perry Fighting Felony Indictment; Girl Shoots Instructor

Aired August 28, 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: A frightening confrontation in downtown Atlanta, a man carrying a 14-inch knife with an 8-inch blade stabbed a Georgia State University police officer who was in plainclothes.

But then an Atlanta police officer pulled out her gun, and she shot the suspect. The suspect survived the shooting, all of it caught on cell phone video.

But before we play it for you, a quick warning, it does happen quickly, and you may find it disturbing.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Oh, no! Oh, no!

UNIDENTIFIED MALE: Hey!

UNIDENTIFIED MALE: No!

(END VIDEO CLIP)

BANFIELD: Again, that suspect survived. Both of the officers involved were hospitalized as well. That suspect was shot in the lower torso. His condition has stabilized.

But yesterday's incident, if anything, it's a scene that police officers face every day across the country. They're forced to make life-or-death decisions and forced to do it in a split second, too.

So our Gary Tuchman took us to the police confrontation lab in Spokane, Washington, for an amazing look at the training.

(BEGIN VIDEOTAPE)

GARY TUCHMAN, CNN NATIONAL CORRESPONDENT: This Spokane, Washington, police officer is getting wired so his brain and body functions can be monitored as he gets ready to make life-or-death decisions.

UNIDENTIFIED MALE: Spokane police! Police department! Talk to me!

TUCHMAN: Decisions in a most unique laboratory.

UNIDENTIFIED MALE: What are you doing? Let me see! TUCHMAN: Corporal Jordan Ferguson is one of many police officers, military members, and civilians who have volunteered time in this violence confrontation lab, complete with frighteningly realistic actors and a huge virtual reality scene.

ANNOUNCER: You receive a call from a person who says a convenience store is being robbed. Do you understand?

UNIDENTIFIED MALE: Yes.

ANNOUNCER: Stand by.

UNIDENTIFIED MALE: Back up! Back up! Back up! Put your hands up! Put your hands up! Drop the knife! Right now, drop it!

TUCHMAN: While the volunteers make split-second decisions, brain waves and heart rates are checked. It's all part of an ambitious research project at Washington State University, partly funded by the Defense Department, with the goal of improving justice in America. Professor Brian Vila is the man in charge.

PROFESSOR BRYAN VILA, WASHINGTON STATE UNIVERSITY: We don't know yet, still, a hundred and some years since Teddy Roosevelt had the first police firearms training in New York.

We still don't know whether there's a connection between the training we give police officers and their performance in a combat situation.

TUCHMAN: Sergeant Terry Preuninger is told he has pulled over a stolen car.

UNIDENTIFIED MALE: Can I see your driver's license, vehicle registration, and proof of insurance?

UNIDENTIFIED MALE: You want my driver's license?

UNIDENTIFIED MALE: I do.

UNIDENTIFIED MALE: You guys! Dude!

TUCHMAN: The researchers say these volunteers' hearts are generally racing, because it's all so realistic. Many findings from the study will be released by the end of the year, but some have already been published.

The research is declaring that volunteers of all races all view African-American suspects as more threatening than white suspects, but they may have subconsciously overcompensated because of those biases.

VILA: The surprise is they were more restrained in shooting African- Americans than they were whites.

UNIDENTIFIED MALE: Police officer! Let me see your hands! You at the counter, let me see your hands. Don't move! Stop! Stop!

TUCHMAN: The officer never knew if the man had a gun, but did not shoot.

SGT. TERRY PREUNINGER, SPOKANE POLICE DEPARTMENT: Sometimes we don't know if we made the right decision or wrong decision. We make a decision and live with it for the rest of our lives.

TUCHMAN: Now they're also used as volunteers. So with the cops guiding me, I pull over a suspicious car with a broken taillight.

Hello, sir, your taillight's broken. Do you know that? Sir, take your hands out of your pockets. Sir, Sir! Sir, take your hands out of your pockets.

Sir! Sir! Put your hands on the steering wheel. Sir! Sir, you're not listening. Hands on the steering -- OK, thank you.

Yes, that guy looked like he was getting a gun out. So I took the gun out, didn't point it at him, proper way to deal with it.

UNIDENTIFIED MALE: Hey! Stop, stop! Police!

TUCHMAN: There is a lot more to learn, as these researchers try to make life safer for citizens and for the cops who serve them.

Gary Tuchman, CNN, Spokane, Washington.

(END VIDEOTAPE)

BANFIELD: Great report from Gary Tuchman. Gary, thank you for that.

You more than likely have seen a pretty famous, now-famous mug shot, the Texas governor, Rick Perry, fingerprinted, photographed, indicted? Really? Should he be for what he says was simply exercising his right as governor to veto?

Is this an abuse of power, or is this big and political? And what of the d.a. who was hauled in on a DUI at the center of it all?

We're going to sort out this whole mess, after the break.

(COMMERCIAL BREAK)

BANFIELD: Texas Governor Rick Perry has hired a longtime Democratic operative -- you heard me right -- all to defend him against abuses -- or charges of abuse of power.

Mark Fabiani has worked for Bill Clinton and Al gore, but now he's going to bat for a Republican. He says the charges against Rick Perry are a threat to the First Amendment.

This is a legal battle that started with a rival politician and a liberal watch group that has targeted Republicans before.

Here's Drew Griffin with the back story.

(BEGIN VIDEOTAPE) DREW GRIFFIN, CNN SENIOR INVESTIGATIVE CORRESPONDENT: The mug shot so far tell it all -- one, a drunken Texas prosecutor, the other a smiling Texas governor, two characters in a bitter political feud that reached a boiling point one April night last year.

The drunk woman was swerving in and out of bike lanes.

UNIDENTIFIED MALE: I'm with Travis County Sheriff's Department.

GRIFFIN: Police pulled her over --

UNIDENTIFIED MALE: Have you been drinking tonight?

ROSEMARY LEHMBERG (D), TRAVIS COUNTY, TEXAS, DISTRICT ATTORNEY: I had a couple drinks.

GRIFFIN: -- took one whiff and realized it was time to do a field sobriety test.

UNIDENTIFIED MALE: From this position.

LEHMBERG: I can't do it.

UNIDENTIFIED MALE: OK, I'm trying to demonstrate it.

GRIFFIN: What they also soon realized.

UNIDENTIFIED MALE: I'm not 90 percent sure that's her.

UNIDENTIFIED MALE: You're kidding me.

UNIDENTIFIED MALE: Our district attorney.

GRIFFIN: Was the suspected drunk was none other than the Travis County district attorney, a very belligerent Rosemary Lehmberg.

UNIDENTIFIED MALE: One thousand three. One thousand four.

UNIDENTIFIED MALE: Ma'am, he's just trying to keep her from tipping over. You don't need to be slapping his hands away.

GRIFFIN: The county's top prosecutor was really drunk, failed to walk the line.

LEHMBERG: But I have a bad back and it hurts. And I'm fine. Leave me alone.

UNIDENTIFIED MALE: You're falling backwards. We don't want you to fall over.

LEHMBERG: No, I'm not going to fall.

GRIFFIN: Had a blood alcohol level almost three times the legal limit and verbally assaulted, even threatened the arresting officers.

LEHMBERG: You stop. You think I'm going to hurt you? GRIFFIN: Jailers strapped her down in a chair and put a spit hood on

him.

LEHMBERG: Take this stupid thing off my head.

GRIFFIN: Former Travis County assistant district attorney Rick Reed, along with many others saw, this video --

LEHMBERG: Give me my phone.

GRIFFIN: -- and demanded his former boss step down.

LEHMBERG: No, I'm not drunk.

UNIDENTIFIED MALE: OK.

LEHMBERG: Y'all have just ruined my career.

RICK REED, FORMER TRAVIS COUNTY ASST. DISTRICT ATTORNEY: She attempted to bully these sheriffs deputies into either releasing her or calling the sheriff himself so that she could avoid these charges.

GRIFFIN: An abuse of power.

REED: Unquestionably.

GRIFFIN: Governor Rick Perry insisted Lehmberg step down too. It was so embarrassing.

But Rose Lehmberg, a powerful Texas Democrat, is still in office.

GOV. RICK PERRY (R), TEXAS: I'm going to enter this courthouse with my head held high.

GRIFFIN: And in odd twist of political fate, it is now Republican Governor Rick Perry who has just been indicted related to the Lehmberg case.

Mike McCrum was the special prosecutor.

MIKE MCCRUM, SPECIAL PROSECUTOR: Count one of the indictment charges him with abuse of official capacity, a first-degree felony, and count two of the indictment charges him with coercion of a public servant, a third-degree felony.

GRIFFIN: Here is how it happened. Lehmberg is perhaps the most powerful Democrat in the state of Texas and a long-time thorn in the side of Texas Republicans.

Her district attorney's office runs the state's office of public integrity, which ironically investigates wrongdoing by state officials.

When she got drunk, Perry saw his chance to get rid of her, threatening to veto funds for the Office of Public Integrity unless Lehmberg steps down. Texans for Public Justice, an uber-liberal group of watchdog Democrats, filed a complaint alleging that governor's threat is illegal.

Your complaint is basically based on the fact that he threatened to fire or get rid of or coerce her to leave.

CRAIG MCDONALD, DIRECTOR, TEXANS FOR PUBLIC JUSTICE: That's exactly right. Our complaint was about the threat. It wasn't about the veto.

UNIDENTIFIED MALE: The honorable Rick Perry, governor of the state of Texas.

GRIFFIN: That's because under the law, the governor of Texas has the right to veto anything he wants. But, McDonald says, the governor does not have the right to use the threat of a veto to get anything he wants.

Let me understand this from a layman's point of view. We've got this drunk lady who is the head of a public integrity prosecution unit who is doing her own threats. And the governor wants to get rid of her and she won't leave.

He says I'm going to exercise my constitutional authority to veto this legislation unless you step down or resign. What's wrong with?

MCDONALD: He has constitutional authority to veto anything, but he doesn't have the authority to threaten a person who doesn't work under his control.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: In most criminal cases, you say, well, let's see how the jury decides. In this case everyone's first question is, forget the jury. Is this a crime at all?

GRIFFIN: CNN's legal analyst and former federal prosecutor, Jeff Toobin, and many others, question the indictment.

TOOBIN: The governor has the power to veto this money. So, the question is, how can it be a crime to threaten to use a power that is entirely within the powers of your office?

PERRY: I refer to Travis County as the blueberry in the tomato soup -- if you know what I mean.

GRIFFIN: Perry's colorful explanation of what happened is all about politics.

Travis County and its county seat, the self-proclaimed weird city of Austin, is all blue in the middle of a very red state. And the grand jury pool here reflects a Democratic slant.

A CNN analysis found some grand jury members openly Democratic and openly liberal. Others are cautious about political affiliation. None of them, we found, you would consider to be strongly Republican.

Grand jurors we talked to say the indictment was not political, and the special prosecutor laid out a convincing case. One did admit the vote was not unanimous. Perry's defense lawyer says the indictment is nothing more than banana republic politics and has asked the judge to dismiss the case. Legal experts say unless there's evidence of an actual crime, that indictment will likely be thrown out into the hot Texas wind.

Drew Griffin, CNN, Austin.

(END VIDEOTAPE)

BANFIELD: What a great piece from Drew Griffin. And this is why I love my job so much. It's days like this and stories like this and guests like this. My legal panel, CNN legal analyst and criminal defense attorney Danny Cevallos and HLN legal analyst and criminal defense attorney Joey Jackson.

I just want to open the floor and let you two go because this is awesome. But first before I get to Rick Perry, how is this woman still actually practicing and sitting in office?

DANNY CEVALLOS, CNN LEGAL ANALYST: Joey Jackson, how many times have you stopped by DUI court and you see a lawyer buddy who practices civil and you say, hey, what are you doing here? And they're all sheepish.

JOEY JACKSON, HLN LEGAL ANALYST: And they're reluctant to tell you, Danny.

CEVALLOS: They don't want to tell you. And then their lawyer comes in and you realize, ah-hah -

JACKSON: Oh, right.

CEVALLOS: That's what's going on.

BANFIELD: You're in trouble. You're being - you're defending yourself which -

CEVALLOS: Look, here's the deal. Yes, more people have DUIs than you could ever imagine.

BANFIELD: OK.

CEVALLOS: They just keep it quiet. And lawyers are not immune to this. However, prosecutors do have a heightened duty in that they have - they take an office, whether they're elected or an assistant district attorney, to take that office that prosecute -- there's clearly a conflict of interest issue here. So, in different jurisdictions, I've seen different things. Some stay on the job. Others resign. Others have an attorney general take over the prosecution.

JACKSON: Right.

CEVALLOS: But, you know, it's all over the board.

BANFIELD: So this D.A. actually was caught on tape saying to those officers who were processing here, you're ruing my career. And effectively she could walk out of that jail. And then because of her public integrity role, she's sitting in judgment of their careers. Doesn't the governor have a point when he says, this is bad and I will not fund it and I will use my right to veto it because that's a conflict of interest to the nth degree?

JACKSON: The governor has a major point, but here's the issue. The issue will come down to, usually when you veto things, Ashleigh, they're based upon public policy considerations. I'm vetoing this because it's not proper. I'm vetoing this because I don't think the public, you know, by virtue of this office, has benefited in any way, and therefore I'm exercising my right as the governor to do so.

This case is predicated upon a veto because he wants you removed from office. And so the prosecution's position, I don't think it's a great position that they're in, is to say, listen, you overstepped. You were coercive in your attempts to get her to resign. You were coercive and abusive of your power to say I'm going to veto $7.5 million. And, in the event that you leave, you have the money, but if you stay, it's off the table.

BANFIELD: Ultimately he could have --

JACKSON: That's the problem.

BANFIELD: He could have done it if he just didn't say why he was doing it. But, you know what, you've got to come back because he's, you know, he's obviously filed for a dismissal, so we'll see how it goes. Danny Cevallos, Joey Jackson -

JACKSON: He -- does he get it dismissed?

CEVALLOS: We'll see.

BANFIELD: Whoa.

JACKSON: I say dismissal.

CEVALLOS: I say it too.

BANFIELD: I say dismissal, too.

CEVALLOS: I say it too.

BANFIELD: I say it too.

Thank you, guys. Do appreciate it.

JACKSON: Thank you, Ashleigh.

BANFIELD: Going to turn now to a story that is inspiring some heated discussions. An instructor at a gun range is accidentally shot and killed by the nine-year-old girl he was teaching to fire an Uzi. It raises a huge question. Should a child that young be allowed to even touch a difficult and strategically tough-to-fire automatic rifle? We're going to talk about that ahead. (COMMERCIAL BREAK)

BANFIELD: A tragedy at an Arizona shooting range involving a child shooting a machine gun. This video captures the final moments of shooting instructor Charles Vacca's life. He was teaching a nine-year- old girl how to use an Uzi, an Israeli submachine gun. When that gun recoiled, causing her to lose control and accidentally kill Vacca in a spray of bullets.

Joining me now to talk about this controversy and this tragedy is HLN law enforcement analyst Mike Brooks and CNN law and justice correspondent and attorney herself Jean Casarez.

Mike, first to you. Explain to me how the Uzi recoiled. It's not like shooting any other gun. And God forbid any nine-year-old would even know that when she'd pick it up. Explain to me what it's like.

MIKE BROOKS, HLN LAW ENFORCEMENT ANALYST: Ashleigh, I fired thousands of rounds from an Uzi. It used to be the submachine gun that we used with the metropolitan police department's emergency response team at one time, which I was a member. And it fires from an open bolt.

What does that mean? Well, most submachine guns that you see, you know, H&K's, those kind of things, they fire from when you charge the weapon and a bullet goes into the chamber, then it's closed. But with that, it's open. So when you shoot an Uzi, you're taught to fire in fully automatic in three-round bursts. Like, you know, so buh, buh, buh. Because if you put in a magazine with 25 bullets in it, which probably had in this weapon, it's going to go and it's going to rise because the recoil is fairly -- is fairly hard with an Uzi. It's more like a - like -- almost like a pounding than more of a recoil in a regular submachine gun, and it's going to rise rapidly if you're not trained to use it. There's no way, no how that this nine-year-old girl should have had, number one, an Uzi in her hand. And if she did have one, have it on fully automatic. No way.

BANFIELD: So, Jean Casarez, I still can't wrap my head around the fact that we don't let kids under 16 touch the wheel of a car and yet it's OK for her in this state and other states to practice with an Uzi. But in other states, incidents like this have produced charges. This one didn't.

JEAN CASAREZ, CNN CORRESPONDENT: That's right. Massachusetts, gun show, same weapon. The operator of the gun show was charged with involuntary manslaughter when the little boy fired the Uzi and killed himself. New Jersey, father charged when his four-year-old son got his rifle that was just in the house and killed his little friend. But instantaneously, they said this was an accident. OSHA is coming in.

But listen to this. The Bullets and Burgers advertisers to come to our outdoor shooting range because we specialize in military style machine guns and other specialty weapons. So the parents knew, their state of mind was that they were taking this little girl to a place that had machine guns.

BANFIELD: Sorry, are we just about out of time? I think someone said we're just about out of time. Mike, can I just ask you one quick question?

BROOKS: Absolutely.

BANFIELD: Because we're right up against the end of the show.

BROOKS: Sure.

BANFIELD: And that is this. I get it. I know the gun lobby is strong in this country and I know people feel very strongly one way or the other about it, but do you think an incident like this might actually give rise to some kind of legislation that does prohibit young children from even being around or touching these kinds of weapons that are clearly too dangerous for them?

BROOKS: You know it's a shame that we had to legislate common sense, and especially common sense of parents, to allow their children to do this because you couldn't do this without parental consent. Look, I'm 6'7", 255. And when I fire an Uzi, if it's on fully automatic, it's even tough to control the rise of that recoil. So there's no way that this little girl should have had that weapon in her hands, Ashleigh.

BANFIELD: Yes, but whether that changes anything, who knows?

BROOKS: I doubt if it will.

BANFIELD: Mike Brooks, Jean Casarez, nice to have you both with me. Thanks so much.

BROOKS: Thanks.

BANFIELD: And thank you, everyone, for watching. My colleague, Wolf, starts after this quick break.

(COMMERCIAL BREAK)