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Legal View with Ashleigh Banfield

Ferguson Braces for Decision from Grand Jury; New Allegations in GM Scandal; Lawsuit Over Fake Classes at UNC

Aired November 10, 2014 - 12:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Businesses boarding up as the grand jury winds down. Ferguson, Missouri, bracing for the decision on whether to indict or clear the officer who killed Michael Brown.

Also this hour, stunning new allegations in the GM ignition switch scandal igniting a whole new level of anger over deadly delays in the automaker's actions and inactions months before the massive recall went public.

And promises of a massive overhaul and more than 1,000 firings on the way at the V.A., but does it go far enough? The reporter who first exposed the deliberate and deadly hospital delays will join me live this hour.

Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

Everybody knows this is coming, but no one knows exactly when. And in Ferguson, Missouri, the weight is only adding to the tension over a grand jury's verdict in the killing of Michael Brown. Three months after the unarmed African-American 18-year-old was shot dead by a white Ferguson police officer, we expect to find out soon whether Darren Wilson will be cleared or whether Darren Wilson will be indicted. And if he's indicted, on what charge? CNN's Sara Sidner joins me from a community that is scared from its recent past and scared for its future.

So give me an update on what's happening there today, Sara.

SARA SIDNER, CNN CORRESPONDENT: You know, Ashleigh, today marks the 90th day of daily protests here in Ferguson because of what happened on August 9th. And it has been mostly peaceful protests that have taken place since the very beginning when things went south. However, a lot of folks here are concerned about what's going to happen when that grand jury decision comes down, which is expected perhaps as early as this weekend.

(BEGIN VIDEOTAPE)

SIDNER (voice-over): Ferguson is on edge. Some business owners are busy fortifying their shops.

CONSTANCE GARNETT, BUSINESS OWNER: It's hurtful. It is really, really hurtful.

SIDNER: Salon owner Constance Garnett says she can't afford to take a chance that unrest will crash head-on into the business she built here for the past 11 years.

GARNETT: If they should come and loot our area, then it's going to cost us.

SIDNER: Protests haven't stopped for three months on her street. So we asked one of the police's most confrontational protestors about those concerns.

BASAM MASRI (ph), ST. LOUIS RESIDENT: Now as far as what's happened with the last 90 days, people will know that if you have been paying attention, there hasn't been any looting, no violence, whatnot. We've been keeping it completely peaceful.

SIDNER: Nevertheless, plenty of folks worry that may change if the grand jury announcement goes against what protestors want, the indictment of Officer Darren Wilson for the killing of unarmed teenager Michael Brown. At a gun shop near Ferguson, the manager says sales of firearms for personal protection are up about 50 percent.

JOHN STEPHENSON, GUN STORE OWNER: Every time that door opens, we're seeing new faces every day, dozens of new faces, coming in.

SIDNER (on camera): Do you think that's because of what's happened in Ferguson?

STEPHENSON: I think it is. I think - I think people in general, because it's spread beyond Ferguson now.

SIDNER (voice-over): The mayor of Ferguson says he's heard all about it too.

MAYOR JAMES KNOWLES, FERGUSON, MISSOURI: The plus side of that is that, you know, every one of them that I've spoke to have went out and taken a training class, have went out and tried to learn the law.

SIDNER: But not everyone is convinced there's going to be chaos. At the Ferguson Burger Bar and More, which opened just a day before Brown was killed, no boards, unlike most of his neighbors.

CHARLES DAVID, BUSINESS OWNER: I'm here. I'm open. I'm not going anywhere.

(END VIDEOTAPE)

BANFIELD: So, Sara, can I ask you, there's been so much discussion about the protesters and the police trying to work together towards what could end up being something peaceful as opposed to something violent. But in the meantime, there's a lot of requests coming from different parts of the community to get some advanced notice on this decision. Do we know where that stands at this point?

SIDNER: You know, at this point there has been some give and take with many different groups, including superintendents of schools that are saying, you know, if you're going to do this and release this information soon, please give us some sense of when it might be and they've even requesting a specific day and a specific time. They're saying, can you do it at least on a Sunday, perhaps around 2:00, there will be no children in school, there won't have to be any worry about roads, for example, being blocked off and causing consternation among those who are trying to get their kids from school.

But what we have not heard is an agreement from the prosecuting attorney's office if they are actually going to do that. And, of course, there is some worry that if there is too much notice given out there, that it will be leaked and give people time who do plan to do harm, time to prepare things for the worse.

But a lot of the protesters, as you mention, Ashleigh, are trying to work out and police themselves and we have heard them actually saying to one another over these many, many weeks, if you're going to do violence, if you are planning to take something that you didn't pay for, you are not with us and you do not represent us. We have heard that time and again from the protesters who live here, who work here. They are just hoping things are peaceful. But they certainly want their message out and nothing is going to stop them.

Ashleigh.

BANFIELD: All right, Sara Sidner live for us today. Thank you for that. I'm also joined by two people who know their way around the grand jury process, author and CNN senior legal analyst Jeffrey Toobin is a former prosecutor in Brooklyn, and Dan Schorr is a lawyer, a professor, a radio host and a former state prosecutor in New York as well.

Jeff, if I can start with you. This notion of advanced notice on a grand jury process, this notion that the information, the evidence will be released after the grand jury process, all of this is really cutting age stuff.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It's unusual. The whole idea behind grand juries is that they operate in secrecy, including when they finish their deliberations. However, I do think it would be legal and frankly a good idea for the prosecutor to give the community some sort of notice about when the decision is coming out, not what the decision is. That would be a violation of grand jury secrecy. But to tell the community when the decision is coming, I think, would be very good for everyone concerned and just do whatever we can to lower tensions here.

BANFIELD: But do you not see the counterpoint to that? And, Dan, I'll let you jump in on this as well.

DAN SCHORR, TRIAL ATTORNEY: Sure.

BANFIELD: The counterpoint to that is to allow a very large group of people to amass and get organized, perhaps to a point where police can't respond or don't have the kind of, you know, the kind of manpower to respond.

SCHORR: Right. And you have to weigh those two factors. Even putting aside the press attention, this is a very unusual grand jury presentation because usually you have a prosecutor who's looking for an indictment, presenting evidence to get that indictment and that evidence is later challenged at trial or discovery phases. Here you have an investigation and if you don't get the indictment, there will be even more scrutiny. So people are going to be demanding the evidence, the details, and that's going to start as soon as the announcement's made. There's not going to be a waiting period. So letting people know is going to certainly galvanize people to organize. The question is, will the people who don't want to just peacefully demonstrate, if they're more violent, will they be causing trouble earlier? It's a tough balance.

BANFIELD: And we know they're there. We know there are plenty of people who are interlopers coming in from other communities, people with other agendas as opposed to the agenda with many of the Ferguson people who are represented there. Will it make a difference what the indictment says if there is one? I mean, look, you - there's a choice, first degree, second degree, voluntary manslaughter, involuntary manslaughter.

TOOBIN: I don't - I don't think it matters. I -

BANFIELD: You really don't think so?

TOOBIN: No, I think the issue here is, indictment or no indictment. You know, the subtleties of what crimes will be of interest to us who follow these matters closely, but the fundamental question in this case is, did Officer Wilson shoot in self-defense, which is justifiable, or did he commit a crime in killing Michael Brown. That's the only issue that I think the broader public cares about and the subtleties of the charges don't matter.

SCHORR: And there's also a federal investigation that's really important here because if there's no indictment on the state level, the first questions people are going to ask is, OK, is the federal government going to release their investigation result? When is that going to happen? There's been talk about coordination, which shouldn't happen and probably won't happen, but that's going to be the next big issue.

BANFIELD: And remind me again, I mean we're talking about the weight of the world right now effectively with regard to this issue is on 12 laypeople who, up until this point, were going about their business as a barber and a mechanic and, you know , maybe a school teacher. How much guidance are they really given as to the intricacies of what this means?

TOOBIN: Actually, a lot more guidance on a grand jury than in a regular - in a trial jury. In a trial jury, it's a very formal process. The instructions are read. The jurors have -- it's really a complicated process to ask questions. A grand jury is more like a classroom where there tends to be a good deal of give and take between grand jurors and prosecutors. They can ask questions about the evidence. They can ask questions about the law. So they're only getting one side of the story. They're only hearing from prosecutors. But grand jurors actually have the ability to participate in the process much more than trial jurors do. BANFIELD: But that also lends itself to a bit more politicking, it

could be possible as well, except for the fact that they've said everything is going to be made public afterwards.

SCHORR: Right. And also, unlike a trial jury, you don't need a unanimous jury to indict here. So you could have some people who are decenters, but there would still be an indictment -

BANFIELD: Simple majority?

SCHORR: Usually a simple majority, but also there might be evidence for a defense quote (ph) "witnesses" that will testify at this grand jury, which you might normally not see in a grand jury proceeding. But that might be the case here.

BANFIELD: Well, obviously, this is a decision that a lot of people are going to be waiting on. And I'm interested that you said it won't matter what of those four might be chosen, if any at all. That's fascinating.

TOOBIN: But, you know what? I could be wrong.

BANFIELD: You could be wrong.

TOOBIN: There's a first time.

BANFIELD: Yes, there's a -

TOOBIN: There's a fine time for everything.

BANFIELD: This is unchartered territory for a lot of us as well.

Dan Schorr and Jeffrey Toobin, thank you for that.

I want to move on to another story that we've been following. General Motors sure is in hot water over some faulty ignition switches linked to at least 30 different deaths. But now it looks like things might be getting even worse for that company. Did GM know about the problem before issuing the recall, like a lot before issuing the recall? We've got some pretty amazing new evidence, coming up.

(COMMERCIAL BREAK)

BANFIELD: General Motors allegedly made a, quote, "urgent order" for 500,000 replacement ignition switches months before ordering a recall. E-mails "The Wall Street Journal" uncovered also show that GM made the order almost two months before alerting federal safety regulators. So far at least 30 deaths have been linked to GM's faulty ignitions. GM released the following statement to CNN this morning and it reads in part, "these e-mails are further confirmation that our system needed reform and we have done so. We have reorganized our entire safety investigation and decision process and have more investigators - or rather let me just slow that one down - and we've also - we have more investigators, move issues more quickly and make decisions with better data." Now, that's the extent of the statement from the company, but still not a big explanation. CNN's Rene Marsh joins me live now in Washington with more of the details.

So have you seen the e-mails, Rene? Do you know why these are coming out now?

RENE MARSH, CNN CORRESPONDENT: Yes. CNN has obtained pages of these e- mails. We do know that at one point they were considered classified. That has been lifted.

Within these e-mails, what you see is urgent messages sent to an ignition switch supplier asking for a half a million replacement parts as soon as possible. Now, the e-mails appear to have been sent, as you mentioned, in December, but the massive car recall wasn't announced until February.

Now, an attorney suing the automaker on behalf of the victims says the recently unclassified e-mails reveal that GM executives knew about the problem long before the recall. And if that is the case, Ashleigh, it's a serious blow to their credibility. The company has said that top executives did not know of the problem until just before the recall and they say they acted immediately. The problem was, as we all know at this point, is that the weight on the ignition key was able to move, hitting it out of the run position and that would cut power to the air bags and the breaking system.

BANFIELD: Yes. And there's some allegations here that at least one person died and dozens of others were hurt in that time period after the e-mail to the actual recall. So people were out there driving with those faulty ignitions and it kind looks bad - I mean PR-wise, it looks pretty bad.

What is the National Highway Traffic Safety Administration saying about it?

MARSH: So we do know that NHTSA, their part is all done. All that they've been able to do or all that they can do has been done already. They hit the automaker with a $35 million fine back in May and they did that for its lack of timeliness essentially in reporting the flaw. And that $35 million is the maximum penalty. So this new information about these e-mails, it won't change anything as far as NHTSA goes. But as to whether they were aware of the actual e-mails, I asked that today and have not received an answer as yet, Ashleigh.

BANFIELD: All right, Rene Marsh reporting live for us from Washington, D.C., thank you.

I want to bring in our CNN senior legal analyst again, Jeffrey Toobin, to talk about how this could impact GM's liability. And the first thing I thought of was, does it change the dynamic at all, because we don't know what that order's for, we don't know necessarily that 500,000 ignition switches weren't for, say, a brand-new line and let's sweep the rest of it under the carpet, or let's get ready for a potential recall if so needed. We don't know that yet. PR not good. Liability, though, affected?

TOOBIN: Well, it certainly seems to be bad for GM. I mean I was struck by GM's statement, which was not even really a defense of its own conduct, basically saying we've learned from our mistakes and move on.

BANFIELD: That's what they've been saying all along. It's at Mary Barra I start here and everything from my tenure on I take responsibility for. Everything before my tenure, that's the old GM.

TOOBIN: But, remember, I mean, the - this isn't a company that has supposedly already come clean. They hired Anton Valukas, a very distinguished former U.S. attorney, who filed a report and this didn't come out. And these e-mails were not disclosed in the Valukas report, presumably because Valukas didn't see them. If -

BANFIELD: Because he's an outsider. Let's be clear. He was brought in from the outside.

TOOBIN: He is an outsider, right. And did a very scathing report. But if he was kept from all the information, it raises the question of, what other bad news is out there? And particularly this, of course, raises the question of when did they know -- when could they have stopped these defective ignitions from being used and how many injuries and even one death could have been avoided?

BANFIELD: And I keep going back to that. You know, the exact number of injuries is 85. This is the allegation from Bob Hilliard, who's a lawyer for the dozens of people who are suing GM over this.

TOOBIN: Right.

BANFIELD: So let's take that for its face value. One person dead but 85 injured after - after that order was placed for 500,000 new switches. Does that bring this to a criminal element? Is there something criminal?

TOOBIN: Yes -

BANFIELD: We're talking about the civil actions here.

TOOBIN: Yes. I mean the civil actions will be stratospheric and in enormous amount of damages. Criminal --

BANFIELD: Sure. But could - someone's dead, Jeffrey.

TOOBIN: Yes. You know, but I don't necessarily see that as -- I mean I suppose you could manufacture some sort of manslaughter case, unintentional killing. But, you know, I just don't see this as a criminal matter. I don't. This was not apparently a matter of submitting false documentation to the government. That's an area where corporations are frequently found criminally liable. That doesn't appear to have happened here. Here you just appear to have had a very slow reaction to the disclosure of dangerous equipment.

BANFIELD: Some might say slow. Some might say nefarious. I mean you could see it either way, possibly.

TOOBIN: It is not good, in any case.

BANFIELD: It's not good. Jeffrey, good to see you. Thank you. Appreciate it.

TOOBIN: All right.

BANFIELD: Got a new twist in the fallout from those face classes, the scandal at the University of North Carolina. Now a former student athlete is suing, saying that he did not get the education that he was promised. That legal view, next.

(COMMERCIAL BREAK)

BANFIELD: A former University of North Carolina football player is suing that school over an 18-year long academic scandal that kept athletes eligible to play sports by enrolling them in classes that effectively didn't even exist. This is Mike McAdoo. He is suing that university for breaking its promise to give him a top-notch education in return for playing a great game of football for them.

And joining me to talk about the merits of McAdoo's class-action lawsuit, representing hundreds of other student athletes who attended UNC, Sara Ganim's here with CNN and also our senior legal analyst Jeffrey Toobin.

And before we dig into these issues, Sara, you've just been doing such great work on this. You actually scored the interview with McAdoo and he talked to you a little bit about what he says he felt that university promised him. Let's have a listen to that before we get into it.

(BEGIN VIDEO CLIP)

MICHAEL MCADOO, FORMER UNC FOOTBALL PLAYER: The coaches and academics staff, you know, came to my house all the way in Tennessee. You know they - they wasn't even talking football. They was talking academics. So they were saying, you know, what -- we can't promise your son that he's going to go to the NFL, but one thing we can promise him is he will get a, you know, college degree.

(END VIDEO CLIP)

BANFIELD: So the truth is, Mike McAdoo didn't go to the NFL. He did not get the college degree either. Does he bear any responsibility in any of this?

SARA GANIM, CNN CORRESPONDENT: Here's the thing, Ashleigh, you know, he was caught getting too much assistance on a paper. But this is a kid from a low-income family, wants an education. He's not going to get into UNC unless he's playing football. And when he gets there, he says that the advisors and the athletics told him, hey, you take these classes or you can't play football.

BANFIELD: But they dictated what classes he could take?

GANIM: They told him, according - you know, he told me when we interviewed him over the summer that they handed him his schedule on his very first day and he was in paper classes. And then when he's caught, he feels like he was scapegoated because the school didn't take any responsibility for that.

BANFIELD: I think I - in your reporting I think I saw somewhere he wanted to study criminology in college?

GANIM: And they told him, no, sorry, that doesn't fit in with your football practice.

BANFIELD: You can't do it.

GANIM: So he couldn't take - you can major in communications, Afro- American studies, which is where the paper classes were. So he chooses that. He's got this in his schedule. And then it turns out four years after he loses his eligibility that he was right, that there were 30 administrators who knew about these paper classes. And not just knew about the paper classes, Ashleigh, but they knew that there was rampant cheating. That there were - there was too much plagiarism.

BANFIELD: And one of those - one of those was his advisor, right? (INAUDIBLE) -

GANIM: Right, and one was his advisor.

BANFIELD: Right. (INAUDIBLE).

GANIM: This was not one or two or even 1,000 athletes who figured out where the easy classes were. This was systematic and that's what his lawsuit's about.

BANFIELD: So, Jeff, you know, they said that he was caught in a cheating scandal and that's why he was blitzed. But when you have so many other cases starting to line up that look so similar including - like matching the whistleblower identically and, in fact, the guy who was brought in, former federal prosecutor, to do the analysis and the study on this, Ken Wainstein.

GANIM: Ken Wainstein, yes.

BANFIELD: He even said that McAdoo's story lines up to be true. This has got to be a good case for this kid.

TOOBIN: Well, I'm not sure, to tell you the truth.

BANFIELD: Really?

TOOBIN: It's - I mean, look, this is a terrible scandal. I mean what UNC did to keep these kids eligible is awful and UNC has been penalized and they certainly should be penalized by the NCAA.

I do think if this actually goes to a courtroom, a jury or a judge is also going to say, you know, these are college students and they have some obligations, some responsibility to participate in their own education. And if they are given classes that literally do not exist, they have an obligation to step forward. I know it's a lot to ask of kids who probably were not ready for college in the first place but, you know, this is a lawsuit. They're asking for money.

BANFIELD: Yes.

TOOBIN: And I think a judge might -

BANFIELD: But also -

TOOBIN: You know, or a jury might be tough on him.

BANFIELD: In McAdoo's case, he's not just asking for money, he's asking for this practice to stop, isn't he?

GANIM: Right. He's asking for a third party, someone not affiliated with the university, to, in the future, be the one that helps students pick their majors so that the college can't say, well, if you want to play sports, your classes have to fit in the schedule that you only - you know, you only go to class before noon because we need you in the afternoon to play football. He wants that practice to end.

TOOBIN: Well, and if we could just step back a little bit on this, you know, this is just one part of the scandal of college athletics in the United States. I mean we have coaches in this - in big schools who are making $3 million, $4 million, $5 million a year. They're students - alleged students, the athletes who they effectively hire aren't making any money. They aren't getting an education. I don't know if this kid can sue. But the idea that these are amateur athletes is increasingly preposterous. And when - and we need to start talking about when people like this can be paid like the professional athletes they really are.

BANFIELD: Well, there's one person who is doggedly pursing it, and it's that lady on your right-hand side. Sara has won a Pulitzer Prize for her reporting and it just keeps getting better and better. So I'm sure that this power of subpoena is going to be really interesting to you.

GANIM: That, to me, is the most interesting thing here, right?

BANFIELD: Yes.

GANIM: Because all of the investigations so far, no power of subpoena and now you've got lawsuits, not just this one, but the whistleblower also has a whistleblower lawsuit. And it's going to be very interesting to see what they can get in the interviews -

BANFIELD: (INAUDIBLE) front row of the courtroom.

TOOBIN: And -

GANIM: When they - when they have the power of a deposition.

TOOBIN: And you think these paper classes were only at UNC? I don't think so.

BANFIELD: I don't think they were. I don't think they were.

TOOBIN: I don't think so.

BANFIELD: Jeff Toobin, Sara Ganim, thank you both. Appreciate it.

There are about to be some big changes at the Department of Veterans Affairs. CNN broke the story that thousands of veterans were waiting for health care, sometimes waiting so long they died. Now the V.A. is restructuring, big time, and you will not believe what it takes to fire someone at the V.A. You're about to find out.

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