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Legal View with Ashleigh Banfield

Baltimore Settlement; Kentucky Clerk Freed. Aired 12-12:30p ET

Aired September 09, 2015 - 12:00   ET

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

[12:00:00] UNIDENTIFIED FEMALE: A little stiff, maybe not so great. So I think we're seeing just the beginning of, you know, what's to come and this was a fabulous first show.

KATE BOLDUAN, CNN ANCHOR: Just the beginning. Sophia, thanks so much. It's great to meet you.

One of our favorite moments from "The Colbert Report" - not "The Colbert Report" but "Stephen Colbert Last Night," we'll leave with you now. My favorite song. Thanks for joining us "AT THIS HOUR."

JOHN BERMAN, CNN ANCHOR: LEGAL VIEW, without the song, and Ashleigh Banfield, starts right now.

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STEPHEN COLBERT, LATE NIGHT TALK SHOW HOST: Whoo, now that sounds presidential. Thank you, governor. No, President Jeb Bush!

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ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone, I'm Ashleigh Banfield. Welcome to LEGAL VIEW.

I want to begin with breaking news right off the top. We're expecting to hear at this time from the attorney now for Freddie Gray because earlier today the city of Baltimore approved a $6.4 million settlement to the Gray family. This is Billy Murphy. Let's listen in.

BILLY MURPHY, GRAY FAMILY'S ATTORNEY: And has never said to any of you what result they are seeking in this case except that they want justice. They have told you what justice means to them, and that is a verdict in the criminal case that is based solely on the evidence presented in court and on the law as the jury is instructed. Whatever the outcome, they're going to live with that. And so they are not advocates for a particular position. Very unusual in my experience. One of the many reasons I'm really, really proud to represent that family.

Now, the settlement in this case represents civil justice for Freddie Gray's mother and his biological father. And because Mayor Rawlings- Blake had the foresight to take decisive action, we have accomplished it without litigation, which is an extraordinary result. Why? Lengthy litigation in trial puts grieving families through hell because it forces them to relive their tragedy over and over in ways large and small. If this civil case had been filed in federal court, which was our

plan, it could easily have taken three years to resolve. And no grieving family wants to go through that. And our city would not want to go through that. We just keep the controversy on that side alive for that length of time. Instead, the mayor reached out to the Gray family in compassion to seek healing, resolution, and closure, and we were happy to enter into those discussions, because justice delayed is justice denied.

And in addition to compensation, closure for Freddie's mother and father, the mayor has pledged to them that body cameras will begin deployment in the western district in the heart of where this incident took place. Next month is part of the 150 officer pilot program to determine which state of the art camera system and which best practices in terms of regulating the on and off switch should work the best. And by starting this video body camera pilot program in Freddie's neighborhood, she honors Freddie Gray's memory. Because we all agree he should not have died. And so that memory, we hope, and these cameras, we hope, will prevent future tragic interactions between the police and the citizens.

Now, as we've learned around the country, video body camera footage will document in great detail the interactions between our police and our citizens. And we also know that we're - video body cameras have been properly deployed, thoughtfully deployed, citizen complaints have fallen dramatically. Where there's been misconduct, it will usually be obvious. And where there has been no misconduct, that will also be the case.

In addition, knowing that police interactions with the public are recorded will exert what we believe to be a calming effect on the community because both sides are currently suspicious of the other. And it will prevent situations from escalating and prevent bad outcomes. Tragedies will be avoided. And this is a big deal for the Gray family and will be a healing force for them and the community.

[12:05:17] Now, let me - I watched the mayor's press conference with great interest and one of the questions I think Jane Miller asked is an interesting - is an excellent question, does this set some kind of precedent from the city? There are two reasons why that is not the case. The first reason is implementing body cameras will so dramatically, we believe, reduce this kind of stuff that the city's budget pressure will enable them, we hope, to continue to meaningfully resolve only the real cases and will prevent frivolous cases from being filed by either side. And when you factor in that plus the city's notorious ability to keep settlements low, with the exception of only a handful of cases, I have no doubt that this will not set a precedent for future cases. In other words, each case will be decided on the basis of the unique facts of that case and on nothing else. That's progress as well.

So I speak on behalf of all the members of Freddie Gray's family, including his stepfather, when I thank you and your colleagues, Ms. Mayor, for your leadership in making sure Freddie Gray did not die in vain and because you have taken the lead to implement body cameras as quickly and as thoughtfully as possible. Our information is that these cameras will be implemented as early as October, but it may slip or advance in accordance with the circumstances.

Now, let me make one final comment and then I'll take some questions.

In the wake of the disturbances which rocked this city after Freddie's death, the family has consistently opposed violence and always supported peace in the community. And even during their grief, they stopped to make the strong statement immediately after Freddie's funeral that violence was not acceptable, violence only makes things worse and violence dishonors the citizens of this great city of ours.

I love Baltimore. You know, we've got some problems, but the Gray family and the rest of us, our team, want to make the reforms that are going to make us an even greater city and prevent these instances of violence from happening in the future. That is a noble undertaking and I'm sure I share that with the overwhelming majority of citizens of Baltimore who want to put this behind us as quickly as possible.

So one last thing. There were questions asked about whether or not this settlement is related in such a way that announcing it now would somehow prejudice the criminal case. Absolutely not. All the parties involved understand that settlements are not relevant in any way to a criminal case. We have two different systems of law. We have, on the one hand, the criminal justice system, where the standard of proof is significantly higher than the civil justice system, where both sides bear equal responsibility for presenting a case, such that the standard in civil cases is very low and that is whoever puts on the best case, however slight, is entitled to prevail. And that lower standard is what put the city at risk.

[12:10:00] BANFIELD: So you're listening to Billy Murphy in Baltimore as he gives a news conference effectively confirming what we have been reporting, and that is that this is this $6.4 million settlement between the city of Baltimore and his clients, the family that is left behind in the death of Freddie Gray. Freddie Gray's family will be paid out that $6.4 million. In fact, a different board actually made that approval today. And CNN has learned that that family has also agreed to this settlement.

But make no mistake, this is the civil issue, it is not the criminal issue. The criminal issue has yet to be settled. Those six officers are still in the middle of hearings about how their case is even going to be heard. Six of them will get separate cases, all of them separate trials, but this week they have to hear as to whether it is even OK to hear the case in that city or whether that jury pool is too tainted by all the coverage.

And then there's this. The civil case being settled before the criminal case. This decision to settle comes months after Gray suffered that fatal spinal injury while he was in police custody. And under the settlement, the city is going to accept liability in Gray's arrest and his death, But Baltimore will not acknowledge any wrongdoing by those police.

(BEGIN VIDEO CLIP)

MAYOR STEPHANIE RAWLINGS-BLAKE (D), BALTIMORE: The civil claims is completely unrelated to the criminal case the six officers currently face. The city's decision to settle the civil case should not be interpreted as passing any judgment on guilt or innocence of the officers.

(END VIDEO CLIP)

BANFIELD: Well, it's been accepted by Freddie Gray's family. It is effectively a done deal by now. What is not a done deal, again, as I said, is where is this trial, criminal trial, all six of them criminal trials, where will they be held? That city has already said, sorry, here's some money for what happened.

So there's a change of venue hearing scheduled for tomorrow for those six officers charged in connection with Gray's death and they are very serious charges and those lawyers representing those six are furiously scratching away on what they're going to propose to the judge hearing this change of venue motion. And joining me now to discuss this, CNN legal analysts Paul Callan and Danny Cevallos.

You can say as many times as you want, this does not acknowledge any wrongdoing when you pay money to people, but what I don't understand is why the city would do this when the family never sued. The family hadn't even gone on record with the court saying, we think this was a wrongful death. What happened here, Paul?

PAUL CALLAN, CNN LEGAL ANALYST: Well, Ashleigh, it's a strategic blunder of monumental proportions by the city of Baltimore. They - yes, I don't think -

BANFIELD: It's like a preemptive strike.

CALLAN: It is a preemptive strike and it's political, not legal. I say it's political because you have a large African-American population in Baltimore that feels it's been treated unfairly by the police traditionally and now this is a - this is a symbolic gesture to them. But why is it such a catastrophic error for the city? Remember, Bill Murphy, who's a very persuasive guy, just says, "the grieving family." Were - they won't - we're going to end the grieving process now. That's completely untrue. There are going to be six trials. Who's the focus of all six trials in addition to the police officer?

BANFIELD: Freddie Gray.

CALLAN: Freddie Gray. The family's going to hear about Freddie Gray through all six trials. So it doesn't solve any grieving problem.

BANFIELD: OK.

CALLAN: And I think the second thing is that the change of venue motion, now the judge is going to be looking at a fact pattern where Baltimore has already sent a message to the entire jury pool that the police made a mistake and we're paying $6.4 million to make up for it.

BANFIELD: So the police union is really upset about this, Danny, and they put out a super strong statement, that's an official term, super strong. "It is with tremendous amount of concern and alarm that we react to the news of the proposed wrongful death settlement." It goes on to say, "to suggest that there's any reason to settle prior to the adjudication of the ending of the criminal cases is obscene and without regard to the fiduciary responsibility owed to the tax paying citizens of the city. There has been no civil litigation filed, nor has there been any guilt determined that would require such a ridiculous reaction on the part of Mayor Stephanie Rawlings-Blake and her administration."

The judge in this case just last week said the words that he was concerned about the state attorney, Marilyn Mosby's, comments that she made when she announced the indictments on the steps of the -

DANNY CEVALLOS, CNN LEGAL ANALYST: Oh, yes.

BANFIELD: Of - of the courthouse and - and she said - and the judge said it's troubling but those comments didn't rise to the level where a fair trial could not happen. But now we have this on top of that. So those two things together, those troubling comments and this settlement, is this going to mean a change of venue?

CEVALLOS: The rule about changing venue goes all the way back to the Shepherd (ph) case, which you may remember was based - "The Fugitive" TV show was based on that. And what it says is this, the mere fact of pre-trial publicity itself is not enough to rise to the level warranting a change of venue. In Maryland, a defendant bears a heavy burden when they seek to change the venue and they have to show not only the existence of pre-trial publicity, but some actual, measurable prejudice that they suffered.

[12:15:11] And what does that actually mean? In every case really it comes down to a case by case analysis, whether or not, looking at these facts, the pre-trial publicity was so pervasive that it is impossible to have a fair trial. And every case is unique, every case is different. But don't forget, the defendant bears the burden here. It's not an easy motion to win.

BANFIELD: It's not an easy motion, but it happens.

Guys, I have to leave it there but you're going to come back, not only in this show but for those hearings actually to see what happens in the change of venue motion. Thank you, Danny. Thank you, Paul.

Coming up next, county clerk Kim Davis walks out of jail, wants to go back to work, but could her unwillingness to back down on the marriage license fight actually put her right back behind bars? And, by the way, the remedy she wants? Has she actually had it all along? We'll answer that in a moment.

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BANFIELD: And on the seventh day, Kim Davis rested. The Rowan County clerk is taking a day off, maybe even two off actually, after spending six days in jail for refusing to issue marriage licenses in her little corner of central Kentucky. In her absence, her deputy clerks have so far done the job. They've issued 10 marriage licenses and seven of them went to same-sex couples. None of those licenses actually had the name "Kim Davis" on them.

The question now, though, is whether Kim Davis is going to comply with a federal court order to do her job or whether she's just going to stay in contempt and go back to jail. I want to ask one of her lawyers, Horatio Mihet, who is live with us. He's senior litigation council with the group Liberty Counsel.

[12:20:10] Harry, thank you so much for being with us. I guess the question I have for you, which is just so confounding to me, is that the accommodation that your client wanted was that her name not be on the certificate. But I actually just got the certificate, and while you can't see it on TV right now, trust me when I say her name is not on it. It is a blank form that you can actually write a name in. Her clerks have been doing that. And everybody's suggesting that this actually is fine. Isn't that a fair accommodation for your client?

HORATIO MIHET, LIBERTY COUNSEL: Thank you, Ashleigh, for having me with you. Good afternoon.

Under Kentucky law, the deputy clerks are powerless to alter the form as issued by Governor Beshear and his executive offices. To the extent the form was altered last week, that would serve to invalidate those marriage licenses. The accommodation that Kim Davis has asked for was directed to Governor Beshear, the legislature, and most importantly Judge Bunning. They are the ones with authority to provide that accommodation, and yet Judge Bunning decided instead of providing it to put her in jail for her faith. That (INAUDIBLE) -

BANFIELD: So, sir, I'm sorry, I have to interrupt you there. The plaintiffs in the actual case that we're talking about, they have not alleged that the alterations that you speak of were a problem. They didn't say that it invalidated their licenses. They're not making a stink about it. Who's making a stink that filling in a name - because Kim Davis always had to type or write her name in, it's not punched out on the form automatically, what's the problem?

MIHET: Well, you know, there's a lot of discussion about us being a nation ruled by laws. When the law says that the form cannot be altered by the deputy clerks, that's the law and it's unfortunately not up to the plaintiffs or anyone else to decide whether or not those certificates are valid. Moreover, even as altered, the licenses still purport to be issued under the authority of the Rowan County clerk.

Now, everyone knows who the Rowan County clerk is and everyone knows that the Rowan County clerk has not, in fact, authorized those licenses to be issued. For example, if we refer to "President Obama" or "the president of the United States," those are interchangeable and everyone knows that it's one in the same person. It is the same exact situation in Rowan County. That is why the accommodation here has to come from someone with the authority to provide it and it has to remove both -

BANFIELD: OK.

MIHET: It has to remove both Kim Davis' name and office from the form. BANFIELD: So a simple question - I hear you. I hear you. It's

technical, but it makes sense what you say. The so the question is, when your client goes back to work, whether it's Friday or Monday, is she going to sign those forms or is she going to stop those deputies from signing their names to those forms?

MIHET: Well, look, only Kim Davis is in a position to decide what Kim Davis will do. What I can tell you is -

BANFIELD: She hasn't told you one way or the other? Because there is a contempt issue and you are in court with her over a contempt issue, so it is a big deal. It's not a secret. It's not sort of a, "I wonder what she'll do that day." What does she plan to do, sir? This is serious.

MIHET: What I can tell you, Ashleigh, is that this is, in fact, very serious and Kim Davis has already made it clear to Judge Bunning and the entire world that she is not going to compromise her conscience. She is not going to violet the core of who she is as a person. That has not changed inside those prison walls. In fact, if anything, Kim Davis' resolve has become stronger.

BANFIELD: OK.

MIHET: So we'll have to wait and see what Kim Davis does when she returns to work, but one thing she will not do is compromise her conscience.

BANFIELD: I know you have spoken at length with your client. I know you have spoken at length with your client and the other attorneys as well from Liberty who have represented her and you have all said the same thing over and over in the last 24 hours, and that is she will not violence her conscience. Does that mean she will quit before she will sign an order with her name - or a license with her name on it, or does it mean she will go back to work and wait to be called back into that judge's courtroom and go back to jail? Which one is it?

MIHET: That is another thing that Kim Davis has made absolutely clear, and that is that she will not, under any circumstances, relinquish her post, the position to which her county elected her to serve. She loves people, she loves the Rowan County and she wants to be able to serve them while remaining true to her conscience. Kim Davis will not resign her post.

[12:25:02] BANFIELD: So here are the - OK, so the only way I see this playing out is that she goes back into the office on Friday or Monday or whatever day it is and she either personally decides not to fill her name in on those blank forms and then sign her name or she tells those other deputies they can't do it either. Is she going to interfere with the business of that office even if she doesn't have to sign her name or fill her name in? Is she going to tell those deputies not do it, either?

MIHET: Kim Davis' conscience prohibits her from allowing marriage licenses to be issued in her name, under her authority, and that's what I can tell you. She will not violate her conscience. BANFIELD: Wow.

MIHET: It is -

BANFIELD: That - that - I mean that sounds to me like we're going to be talking to you again next week when she's hauled back in for contempt. I mean, this is - it's going to be a really round about story and it may not come out well for her if she ends up back in jail.

MIHET: You know, you know, yes, I hope it doesn't come to that because what we have to remember is that there are very simple, common sense, easy win-win solutions, accommodations that could give Kim Davis what she needs, protection for her conscience, while at the same -

BANFIELD: Well, Mr. Mihet, you know, I'm sorry, I'm going to have to disagree with you. It's not that simple and you know it.

MIHET: While at the -

BANFIELD: I'm out of time but -

MIHET: It's very simple and that's why this is such a tragedy. Very simple.

BANFIELD: I'd like you to come back tomorrow. Can you -

MIHET: I'll be here.

BANFIELD: Well, you say it's simple and the governor says it is not that simple, that he can't make accommodations for every single person down the line. He made an accommodation for the Supreme Court, that's a big deal for the entire state, when he put the executive order into place with the gender-neutral form because I know what you're talking about. It's not that he's going to do it for every single person who raises an issue that he or she doesn't like for his or her religion. But will you come back tomorrow on this?

MIHET: I'll be here, Ashleigh. He changed it once, he can change it again.

BANFIELD: OK. Well, it might not be tomorrow. It might be Friday. It depends on when your client goes back to work. Thank you so much, sir, it's nice to talk to you.

MIHET: Thank you, Ashleigh. Have a great day.

BANFIELD: You too. Thank you.

Coming up next, a teenage guy and a girl, they had sex and she lied about her age and he ended up on the dreaded sex offender list because of it. And he was even forced to move out of his own house because he has a younger brother. Can't live with the younger brother. So can he get his life back? That's next.

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