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Legal View with Ashleigh Banfield

Indiana Religious Freedom Law; Latest on Germanwings Investigation. Aired 12:30-1p ET

Aired March 31, 2015 - 12:30   ET

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

(COMMERCIAL BREAK)

[12:30:04] ASHLEIGH BANFIELD, CNN ANCHOR: In our breaking news this hour, Indiana's answer to a three-word message from the state's largest newspaper, the question of Fix This Now, this being a national firestorm erupting in the five short days since governor Mike Pence signed Indiana's Religious Freedom Restoration Act.

The measures says and I quote, a governmental entity may substantially burden a person's exercise of religion only if that burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.

Now, defenders say that merely protects the leaders against undoing encroachments on their religious faith or practices. But the critics say that this legalizes determination against gays and lesbians who are not a protected class in that state.

Just last hour, Governor Pence said that he wants to "fix the law" so that it explicitly bars discrimination. I want to hear what my lawyers have to say about that because that is also a very big tricky piece of business.

HLN Legal Analyst Joey Jackson here, Former Prosecutor Dan Schorr as well. I kept listening and listening for about 30 minutes as the governor said that he want legislation on its best by this week to fix whatever ails this bill. But mostly he said what ails the bill is me, the media because apparently we grossly mischaracterize, we've been reckless in our reporting and we have smeared the bill.

So gentlemen, legally speaking, how do you unsmear gross mischaracterization if that's what the problem that might tense things here. I am a little confounded.

JOEY JACKSON, HLN LEGAL ANALYST: Yes. Well, there is a political answer but I'll stay away from the politics Ashleigh and let's just address the law. But the devil is in the details of the bill. The fact is, is that he keeps invoking that it's modelled after the federal bill but it's much broader than the federal bill.

So, you can't really say that. He also says, well, you know, Barack Obama when he was a senator in Illinois he voted for a measure that was just like this in Illinois. But actually, it was different and not only was it different but Illinois protects sexual orientation as a protected class. So, the bottom line is we could debate it all day all night but unless you amend the Civil Rights Code of Indiana to include sexual orientation of a protective class...

BANFIELD: So, there you go.

JACKSON: ... we're going to have a problem.

BANFIELD: OK. That's what I keep wondering. I want to give the benefit of a doubt to the lawmakers in Indiana who I know to be good people. They are Hoosiers and they are good people.

I can't imagine that in their hearts they would want to discriminate against gays and lesbians. Dan Schorr, what can they do to somehow insure as the governor says that it will not give anyone the right to discriminate quote and quote.

DAN SCHORR, FORMER PROSECUTOR: Well, I think Joey hit it right on the head, adding to the state law.

BANFIELD: He said he won't do that, what else?

SCHORR: Well, I don't think he said he would never do that. He said it's not on his agenda and if the legislature passed that, he hasn't specifically said he would veto that. So it is...

BANFIELD: He said a protected class for gays and lesbians is not on the fix list.

SCHORR: Right, but that doesn't mean he would veto it if it was passed and it came to his desk.

BANFIELD: Can you see anything that you could actually, you know, put into this code so that it can ensure that no one has the right to discriminate. And by the way, I can repeat that a hundred times because Mr. Pence, Governor Pence repeated it about a hundred times.

JACKSON: And then and I can repeat a hundred times that if you want to fix this, you add sexual orientation as a measure to this bill and no one then could say anything about you not doing the right thing.

BANFIELD: When he was asked if expected this blow back his answer was heavens, no. I want to put a photograph up on the screen of Governor Pence signing the bill. It was that -- this picture was twitted out by someone named Micah Clark and Micah Clark was standing behind. This is not the right photograph. We got to get the photograph that Micah Clark has twitted out because Micah Clark was standing alongside Eric Miller and Curt Smith. And if you read those, you know, those little sub lines below their names, I can give you the headlines on these guys.

Micah Clark actually provides resources to families who want to help therapeutic assistance for their family members and their unwanted homosexuality. People are very offended by that in the LGBT community. Eric Miller announced the formation of the Protect Marriage Indiana, a statewide grassroots effort to pass laws to protect marriage between one man and one woman in Indiana.

And Curt Smith has equated homosexuality with bestiality and adultery in a blog.

So, I'm not so sure if those are the right people to put behind you while you sign the bill if you're not expecting something you call a gross mischaracterization, reckless reporting and a smear against the bill for those who say it's an anti-gay marriage bill. Am I wrong?

JACKSON: I can't say that you are wrong Ashleigh and then in addition to that...

BANFIELD: Am I crazy?

JACKSON: I think not, not at all.

SCHORR: Yeah, yeah.

JACKSON: There's a timing issue too because remember this comes on the backdrop of what Indiana attempted to do with just to ban same sex marriage. They were unsuccessful in doing it. It went into effect that a same sex marriage is just in October of last year, so the timing seems to be somewhat suspicious and that's why people in the gay community are very concerned.

[12:35:17] BANFIELD: All right. Hold that up for a minute because there's been more backlash from a critical money making sector for Indiana, the sports world.

First, the team is playing in the final four in Indianapolis this weekend. Here is some of what they are saying. Duke says it will "stand alongside the LGBT community in seeking a more equal and inclusive world and we deplore any effort to legislate bias and discrimination."

And Michigan State saying, "We hope the citizens and lawmakers of that state can reach a consensus on how to best welcome all people regardless of background."

And this from NASCAR, NASCAR, "NASCAR is disappointed by the recent legislation passed in Indiana. We will not embrace nor participate in exclusion or intolerance."

And may I also say to Mike Pence, it's not just the media that's criticized you. All those business owners are not grossly mischaracterizing and reckless in their regard for your bill. Other governors who are just as smart as you and understand legislation had said the same thing. So please, stop blaming us.

Coming up next, the crash in the Alps its raising lots of questions. Why isn't there more psychological screening for pilots, or for that matter anyone who had hundreds of lives in their hands at any given time, bus drivers, subway and train conductors, ferry captain. What can we do about this?

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[12:40:00] BANFIELD: We now have a possible motive for why Andreas Lubitz crashed flight 9525 into the Alps. The German newspaper build quoting an investigator says Lubitz was worried his medical issues would force him out of a job which may have lead him to crash the plane.

Investigators are now confirming that. But Lubitz did suffer from depression and had suicidal tendencies in years past. The aviation authority that certified his license had no idea that he suffered from many mental illness.

A German aviation source tells CNN that Lubitz past his annual recertification test in the summer. I want to talk about how this tragedy in the Alps could've been prevented with CNN Aviation Analyst Les Abend.

Les, I was looking at some of the timeline on this man's life. And look he had a psychotic depression treatment back in his 20s, well before he ever became a member of Lufthansa and what it has to take some kind of psychological screening in order to become a pilot with them.

Then 09 he was prescribed an antidepressant medication, in 2010 he received antipsychotic injections of medication. And yet in 2013 he became a pilot for Lufthansa. Is there any of that sort of passed this mental test for you in terms of the kind of screening to go on.

LES ABEND, CNN AVIATION ANALYST: No, and you and I have talked about this a lot before. I mean it's a red flag to me. I mean this man went through a process that we don't even do here in the states.

He started from ground zero in his flight training. Somewhere in that process, all the screening should've been taken place. So, we should've discovered that. I mean there was a plenty of time you're talking 2008 to 2013.

Lufthansa, you know, was a top notch airline and they must have some decent screening aspect to them, you know, for him to get that kind of medical treatment during training and remember we're talking about that break, there was a break that he had...

BANFIELD: Right in his training.

ABEND: ... that in himself should've been red flag.

BANFIELD: You reminded me about the program that's available to some pilots on a voluntary basis. If they want to armed in the cockpit they got to through the training, they got to be certified for it. But you can have pilots with guns in cockpit.

God forbid there might be, I mean it's for our safety but God forbid one of those people with a gun could be this man. ABEND: Well let me tell you there's an interesting - I mean the process to become and to volunteer to become a federal flight deck officer is pretty intense.

You have to go through a screening process. It was a congressman in Arizona that even said to the folks that volunteered even in the screening process your (inaudible) pilots. Guess who said that we do need a screening process pilots, said no let's do an additional screening process and they did, I believe it's a program called MMPI which is a Minnesota training, it's an evaluation.

So, we went through an additional screen - those of us that participated went through a screening process additionally. And then program itself was very intense. Almost as an example to vary in the program, we use or what was used was a fuselage of an aircraft and scenarios went through three separate times to with defensive tactics somebody coming and trying to intrude the cockpit.

And this process, we haven't decide, you know, whether to shoot not shoot. But the individuals that are involved with this program now are high - intensely trained and intensely screened.

BANFIELD: Can I ask you that you mentioned something else that I found particularly intriguing. And that was that, there's a physical lock on the cockpit door as well. This might have been something, we don't know if he (inaudible) if you were able to get your train, aviators ears on the cockpit voice recorder you would be able to determine if Lubitz actually used the electronic lock sitting in his co-pilot seat or if he got up and physically locked that door.

ABEND: It's possible. We don't know what the investigation team is doing itself, we're talking prosecutor office versus the investigation team could we hear that sound, yes. If that mechanical lock was locked there's no way that he was getting into that cockpit.

On the ground there's...

BANFIELD: There is no digital override to that locked door, you can do it manually at the door.

ABEND: Right. And if somebody attempted to get in with the manual method, OK from the opposite side, the electronic would override it. So, there's a good chance.

BANFIELD: Exactly two ways

ABEND: There's two ways to get in to that. And a lot of maintenance uses that method on the ground.

BANFIELD: Every time there's a development it just gets more distressing.

ABEND: It really.

BANFIELD: More questions and answers Les Abend thank you. Appreciate that, thank you so much. So, here's an interesting question, are American's lives worth more than Europeans lives when it comes to compensation. You might be very surprised to find out that yes, and there's a very good explanation for it. That's next.

[12:44:55] (COMMERCIAL BREAK)

BANFIELD: I want to turn now to the families of the passengers who were onboard flight 9525. Each of their death is an incalculable and irreplaceable loss.

But when it comes to earthly compensation the sad fact is that some victims will be valued higher than others. It's hard to believe but it's true. And the families of American victims may receive much, much higher compensation than those of European or South American or Asian victims.

Joining me now to talk about how the process actually works and why that is so, is Aviation Attorney Justin Green. I think at a surface you see something like that and it just feels awful and ugly. But the sad truth is that's the way it works and why is that?

JUSTIN GREEN, AVIATION ATTORNEY: Well the law actually tries to bring the people back to the way they were before. So, they can't bring the person back and every family I've ever represented the one thing that they want is something that we can't provide which is to turn back the time before the accident.

But what they can do is make sure that their children are going to be able to go college that the mortgage is going to be paid and people.

BANFIELD: Then why is it so none commentary. But I don't understand how a European banker is worth less than a New York banker.

GREEN: Well that's actually up to two things. One is the laws that are passed in the country and also society how society deals with these types of lawsuits.

Here in the U.S. we actually compensate fully for the lawsuits. In other nations they really limit what people can recover. And it's a tradeoff between the family, you know, whether the families are going to have the same standard living going forward or whether an insurance care is going to have to pay a little bit more.

BANFIELD: So, effectively is it what you're saying is that if you can get jurisdiction in the United States and you can launch (inaudible) if they're even going to need to at this point, because quite frankly Lufthansa is probably going to compensate very, very handsomely a lot of these passengers. Is it because we just tend to give higher awards in United States? And if this is the jurisdiction, then this is where the award is granted?

GREEN: It's a couple of things. If you look generally everywhere in the world, they will compensate families for their financial losses. Non -- there's a call, economic damages. It's also a concept of non- economic damages. It's like the pain and suffering, the grief of the survivors...

BANFIELD: Yeah.

GREEN: ... often those are very, very limited overseas. And even in some states, one of the things you have to understand is each state and the United States has different laws, New York's laws different in Connecticut. Connecticut does give some non-economic damages and New York doesn't.

BANFIELD: Can I ask you about the difference between a mechanic who might be sitting in Route 21C and the Wall Street banker who is sitting in one fee?

GREEN: That's right. Well...

BANFIELD: They'd be compensated differently as well.

GREEN: Right, because it deals with the economic damages. The law is designed to bring them -- bring their financial position back to what it was before.

BANFIELD: So the banker's wife and children would have expected say, 20 or 30 more years of income earnings at this level?

GREEN: Right. They have established a lifestyle. They bought a house. They put their kids in private school perhaps. And the law says, "Look, you took that person. You took this earning stream. This is support stream away. You have to replace." And then unfortunately, the way -- in a way, you know, each law, each life is valued the same. The law really doesn't value lines. It compensates families.

BANFIELD: That get restores the family to where...

GREEN: That's right.

BANFIELD: ... to where they were, whether they were kindergarten teachers, or mechanics, or bankers in the future.

GREEN: That's right.

BANFIELD: It's hard to sort of process that but I suppose it makes sense in that very sad way. Justin Green, thank you.

GREEN: Thank you very much.

BANFIELD: This should be insight.

Coming up, we're just getting a word that there are no more witnesses coming in the Boston Marathon bombing trial, which means the defense is wrapping up its case. You heard that right. A matter of minutes, that's all it really was. So, what's the strategy here for Dzhokhar Tsarnaev?

(COMMERCIAL BREAK) [12:56 01] BANFIELD: Our breaking news, a short time ago in Boston, Dzhokhar Tsarnaev defense announced that it has no more witnesses to call on his behalf. And after just four witnesses in two days, the defense effectively is almost wrapping up its case. Merely they want to show a couple of photographs before they do that, but compare the defense's four witnesses to the prosecution's 92 witnesses over 15 court days.

The government case culminated yesterday with perhaps one of the ugliest facts about Tsarnaev. The medical examiner described unspeakable injuries to the youngest victim who died on the sidewalk that day. The last words in the state's case, "Martin Richard was eight years old."

Alexandra Field is live outside the courthouse in Boston. Here's my guest, short case because it's really all about the death phase now and making this a life or death case in trying to save his life.

ALEXANDRA FIELD, CNN CORRESPONDENT: Right. We don't want to give people the impression that this is now wraps up, because we know that once you have closing arguments, once there'd be reading of the instructions of the jury, once there'd be the deliberations, then you move into basically a reset here of the start of a new trial which could last several more weeks in which the jury would then consider whether or not this death penalty would be on the table. But right now, it looks like we are at the beginning to come to the end of this first phase of a trial. The defense stood up after calling these four witnesses (inaudible) that they didn't intent to call anyone else. Then they went to side fall with the judge to see whether or not to give or show the jury additional pictures without calling in additional witness. No public were get on what has been decided upstairs in that courtroom.

But Ashleigh, what we saw over the last day, (inaudible) yesterday afternoon, this morning, with a very short case put up by the defense. And he didn't focus on Dzhokhar. He focused on Tamerlan. Tamerlan who was killed nearly two years ago. That was the intention of the defense from the very beginning Ashleigh. They said that they were going to show the jury that Tamerlan's prints were really all over. They say, he was the mastermind that Dzhokhar was the pawn. So they set out to literally really view that this morning. They called me up (inaudible)...

BANFIELD: Alexandra?

FIELD: ... fingerprint technician. Yeah?

BANFIELD: I so apologize, I have to interrupt only because I got to get to the White House right away. We have some breaking news. Josh Earnest is the communication specialist there. He is giving his live briefing. Let's listen.

(BEGIN VIDE CLIP)

JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: ... signing of the law, I think is, indicative of how this piece of legislation flies in the face of the kinds of values that people all across the country strongly support. And -- yeah, we've seen the Governor and other Indiana officials in damage control mode here because this is -- this law has provoked outcry from business leaders across the state of Indiana, that we've seen criticism from even our religious groups inside the state of Indiana. We've seen a concerns raised by the Republican mayor of Indianapolis about the impact that this law would have on the economy of the state.

And understandably, we see business leaders saying that they are reluctant to do business in a state (ph) where their customers or even their employees could be subjected to greater discrimination just because of who they was. That's not fair. It's not consistent with our values as a country that we hold dear. And I think that's what has provoked to the strong outcry and I think it's what has provoked the previously defined governor to consider a position of changing the law.

UNIDENTIFIED FEMALE: There are some legal (inaudible) and supporters of the law that they've actually (inaudible) for the federal law that's been (inaudible) by the courts. Does the President feel like there if they need to amend that law?

EARNEST: Well, I don't think Governor Pence is try to falsely suggest that the law that was signed in Indiana is the same as the law that was passed in the federal level in 1993. That is not true. And the reason that's not true is that the 1993 law was an effort to try to protect the religious liberty of religious minorities based on actions that could be taken by the federal government.