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Legal View with Ashleigh Banfield

25 Children Among 224 Killed In Plane Crash; Victims' Remains Returning To Russia; El Faro: The Search & The Lawsuits; Trump Maintains Big Lead In New Hampshire; Rubio On The Rise In New Hampshire; Navy Positively Identifies El Faro; Supreme Court Hears Jury Racial-Bias Case; Obama Helps Newly Released Convicts. Aired 12:30-1p ET

Aired November 02, 2015 - 12:30   ET

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

[12:30:00] ASHLEIGH BANFIELD, CNN ANCHOR: Sarina was one of 20 old photographed by her mom as she looked out the window at the St. Petersburg Airport before starting her family vacation in Egypt on October 15th.

Sarina was one of 25 children who died on the return flight to Russia.

Russian media say that even more children were orphaned by the crash that their parents have left them with family while they had enjoyed a grown-up's getaway vacation.

CNN's Matthew Chance is live in St. Petersburg.

Tell me a little bit more about the people that were lost?

MATTHEW CHANCE, CNN SENIOR INTERNATIONAL CORRESPONDENT: So Ashleigh, well the passenger list has been made public of course. And one of the first things you'll notice when you look that the list is that there are so many people with the same family name, the same surname. And because this was essentially family tourist holiday flight after a week or so, the half turn here in Russia for the school holidays. Many families had packed their kids with them. And to take them for the holiday in the sun in the start of what is a, you know, a very long and cold winter here in St. Petersburg.

And is obviously wasn't the kind of homecoming that they were expecting.

25 children, I think that you mentioned this figure, children onboard the aircraft lost their lives and number of other children are a lot more in fact, have been made orphans by this crash, because as you mentioned, some of the couples that left their children with other family members here in St. Petersburg and elsewhere and starting to get away for a bit of a privacy and a bit of break for some sun on their own.

And so a whole kind of group, the generation almost of orphans has been created because of the catastrophe.

So, you know, a very sad loss for this city, most of the passengers onboard for St. Petersburg, but also sort of a national disaster for Russia as well which is trying to come to terms with this catastrophe.

BANFIELD: Oh, Matthew, just such a sad scene behind you. Thank you for bringing those stories.

In other news, the navy thinks that it's finally found the wreckage of the cargo ship that went down during a hurricane with everyone presumably onboard. But there's another big development today, a legal move by the company that the families of the missing crew are certainly devastated about.

(COMMERCIAL BREAK)

[12:36:47] BANFIELD: This just in, Monmouth University has new polling from New Hampshire on the GOP side. And it shows Donald Trump maintaining his big lead over Ben Carson and Marco Rubio rising up sharply.

Here are the numbers. Donald Trump supporters at 26 percent, Ben Carson trailing at 16 and Marco Rubio is at 13 percent.

We compared to September's Trumps numbers, who were up at 28 percent, Carson was at 17 and Rubio was way down at 4 percent.

In the meantime, on the Democratic side Bernie Sander is finding to file paper work in New Hampshire on Thursday for the primary ballot after he files, he'll hold a rally outside the New Hampshire with secretary of state office.

We've got breaking news in from the U.S. navy. It has positively I.D.'d the cargo ship "El Faro."

Saturday the Navy said that it found wreckage of a cargo ship in some 15,000 feet of water in the vicinity of "El Faro's" last known position during hurricane Joaquin.

Of course if you think about that depth that is some 2 to 3,000 feet deeper than the Titanic.

But for the families of the crew members this is the news that they were waiting for. But it is also something they were dreading. And they still have a lot more questions than answers.

(BEGIN VIDEOTAPE)

MARY SHEVORY, MOTHER OF CREW MEMBER MARIETTE WRIGHT: I wonder when she knew that the ship was sinking. If she had tried to figure out some way to escape or some way to save everybody on there because that is how she was.

(END VIDEOTAPE)

BANFIELD: In the meantime, the owners of the ship are filing a preemptive lawsuit against those families.

They are trying to first clear themselves of any blame or if that doesn't work at least limit their liability when it comes to the compensating the crews' family members.

And critics say this lawsuit is like pouring salt on their wounds.

Martin Savidge joins me now along with CNN Legal Analyst and Defense Attorney Danny Cevallos.

Martin, I'm going to get to the legal argument in the moment. We'll going to start with you. This is just unbelievable to these families who were actually served with a lawsuit.

MARTIN SAVIDGE, CNN CORRESPONDENT: Right, it does come into time that many would consider insensitive, you know, not even a full month after the lawsuit. This vessel and now the family members are being filled with legal action.

If it's not for restore (ph) completely it's going to have to be put on hold.

To thought it's also a probably coming from the advice of a legal team that the TOTE marine has and they probably showing look, if you want to try to limit your liabilities, if you want to try to limit how much money you may lose for a potential lawsuits, this is the action you're going to take, is however a good time to take this kind of action that's going to perceive -- be perceived so negatively by the families, probably not.

But let me read you the statement that we got from TOTE marine when we reach out of them said, "Why did you take this action and why did you took it now?" They say "The company will not discuss individual legal action, out of respect for the legal process. Our focus remains on the support and care for the families and their loved ones."

So essentially, Ashleigh, what they said was "No comment."

[12:40:02] BANFIELD: Support and care for the loved ones. And here you've been served.

Martin Savidge, thank you for that. I want to bring in Danny Cevallos.

Before we go any further, let's be really clear about this. This is maritime law, and it is very different than what happens on land.

DANNY CEVALLOS, CNN LEGAL ANALYST: Admiralty law is an arcane area of the law. And this is one of the number one examples. When these tragedies happen, the rules and procedure actually require the ship owner to file a complaint like this one.

So this is not only standard operating procedure, it's what this company must do to seek, to limit their liability which is something every single company back here on land does whenever they're sued as well. It's just the procedure in the cases is unusual. But this is very typical for a case like this.

BANFIELD: So, I guess I look at the company, and what its options are. And is it possible that they might try to shift all of this blame on to their captain, because they kind of own that. They own that captain and they own that guys expertise and the decision making.

CEVALLOS: In admiralty the ship industry is unlike other industries and that the ship owner is not automatically as we say vicariously liable for the negligence of its captain.

Instead if the captain is negligent, let's say in navigating the company can be held liable. But only if that negligence was in, what is called the privity and knowledge of the ship owner.

So what is that mean. That usually means in -- and the way we understand that in the law, did the ship owner have some prior notice of this captain's negligence, was he aware that this was, if he selected an incompetent captain, then you may hold the ship owner liable.

But if they selected a competent captain and had no idea that he would do anything negligent, then yes they maybe able to limit their liability to just the value of the ship. And that value be warned is not computed when you bought the ship, it's after it's sitting at the bottom of the sea.

So can imagine without being an expert in admiralty, what the value of a ship is at the bottom of the ocean.

BANFIELD: At 15,000 feet with all that pressure. I just -- so everyone knows, that this is what that company has said about the captain in the past. The captain laid out his plan and given his plan, and given what he had on the way of information about the weather system. His plan was sound. And that would've enable them to clearly pass around the storm with a margin of comfort that was adequate in his professional opinion.

CEVALLOS: You can already see how they're circling the wagons.

BANFIELD: Yeah, well, we'll see what happens next for those poor families getting a lawsuit at this point.

Danny Cevallos, thank you and also Martin Savidge, thank you.

Coming up next, the 30-year-old death penalty case front and center at the Supreme Court today, and the issue wasn't guilt or innocence. It's whether race played a part in how they chose the jury.

It could forever change the way lawyers deal with race when choosing people who ultimately choose your fate.

(COMMERCIAL BREAK)

[12:47:18] BANFIELD: Should lawyers be able to block you from serving on the jury because of your race. The Supreme Court said, absolutely not. But do lawyers get around it anyway with that thing called the peremptory strike? That is when a lawyer can boot you from jury pool without having a state to anybody. The reason, today the Supreme Court is actually taking that issue up in a death penalty case from Georgia. Timothy Foster was nearly 19 when he was convicted by an all-white jury and sentenced to death for murdering a 79-year-old woman in one of the most violent ways.

Prosecutors have denied that race was a factor, but the jury selection notes are a bit strange. They show that they singled out all of the potential black jurors, they highlighted them in green marker, and then they actually put a "B", a little "B" and even circled their ethnicity on the jury questionnaires, and then they ranked them. There's one note that says that upon picking of the jury, after listening to the all of the jurors, we had, if we had to pick a black juror, I would recommend Ms. Garrett be one of the jurors. With a big doubt still remaining. Those are the notes. But do they say anything else?

CNN Senior Legal Analyst Jeffrey Toobin is here. So this is the question. If you're getting notes like that in a challenge like this, is it possible that the Supreme Court justices could say that's an abuse, we need to do away with peremptory challenges where you don't have to say what it is, as reason for why struck the juror.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Right. A lot of people believe we would have a better system, if the only reason you could throw people out was if they were biased in some way, peremptory challenges as you point out, you don't have to give a reason at all you can just get rid people and some people think it would be better just to get rid of all of them.

I don't think the Supreme Court is interested in going that far peremptory challenges have been a part of the legal system for decades and decades. And defense lawyers as well as prosecutors by and large want to keep them.

BANFIELD: And you can challenge this in court, it is not you -- it's a total secrecy, if you feel like you have enough evidence to go after those attorneys, you can actually mount something called the Batson challenge and you can say, give me your reason for why you did that.

TOOBIN: Exactly. And that's why when it was a prosecutor, we were instructed when we were using the peremptory challenges to write on the post-it note exactly why we were throwing the person off of the jury, and we were told it couldn't be a racial reason. Now some prosecutors have been accused of basically lying in their notes.

BANFIELD: Yeah.

TOOBIN: Just come up with other justifications...

BANFIELD: Yeah.

TOOBIN: ... when they really were trying to get rid of, you know, just trying to get rid of jurors of the race they didn't want. But, I think the Supreme Court, they are not going to tamper with the whole system, they want to rid of egregious abuses.

BANFIELD: Yeah.

TOOBIN: And this case may be that, but they're going to throw the whole system out. [12:50:04] BANFIELD: And these prosecutors, their defenses that we wrote those notes because we though you would comeback question. And that's we need to identify who it was you were talking about. But we'll see what the Supreme Court does about this.

TOOBIN: Arguments was today a decision and month issue.

BANFIELD: Comeback. Thank you Jeffery. Thank you.

Coming up next, is releasing thousands of inmates all at once is the best solution to the prison overcrowding? Like it or not, it's happening a later we're going to hear President Obama's plan to help reintegrate those ex-cons back into a lawful society.

(COMMERCIAL BREAK)

BANFIELD: President Obama is announcing his plan today to rehabilitate and reintegrate thousands of federal inmates following their earlier release from prison. Here's a look the plan, 6,000 plus federal inmates are being released starting immediately, more than 16,000 inmates could be released in 2016, and then possibly 40,000 over the next several years.

[12:55:12] New York City Police Commissioner Bill Bratton had this to say on the show Cats Roundtable it's a radio program. Have and listen.

(BEGIN VIDEO CLIP)

COMMISSIONER WILLIAM BRATTON, NEW YORK POLICE: There is a major effort underway to let a lot of people out of jail ostensibly less violent offenders. But one of the issues and concern is when people go to jail, oftentimes they go to jail with the negotiated charges if you will. So that's somebody that is in jail that seems that they are nonviolent drug offender may in fact have crimes of violence in their record. So we have to be concerned about who we are letting out.

(END VIDEO CLIP)

BANFIELD: HNL Legal Analyst Joey Jackson is here, along with CNN Senior Legal Analyst Jeffrey Toobin. So lets be really clear about this big release because it sound sort terrifying to think the gates are just sort of opening up and they'll just flagged right out. Lot of them were already out, many of them where in halfway houses, many of them has served a majority of the sentence already, so what's wrong with the picture?

Well, it depends upon what's wrong with the picture because what you have to look to it's fine to let out people who were inmates who were there. The question then becomes what you do letting them out too. Odd is there adequate housing for them such that they could find the place to live and live decently.

Do they have any mental health issue and it's going to be treated to the extent that they are drug offend is nonviolent or not. Is there substance abuse problem? And so the issue then becomes its very good to look a program where you're going to be releasing nonviolent people into society, but realizing them what and to what extent could they get a viable jobs so that they could reintegrate and they could, you know, having paid that debt to society, be able to contribute valuably to society now.

BANFIELD: Because one of the thing Jeffery obviously is that you don't want recidivism, and you let some guy out into a place for he's broke, he has nowhere to live. And the nearest thing to him is a drug deal that could get him right back in the slammer from went he was release. So, don't we already do this?

TOOBIN: Well, we do. But, you know, over 90 percent of the people in prison get released eventually, so the question is not do you release people, because virtually everyone gets released. The question is how many people do we want in prison in this country? We already incarcerate more than just about any country in the world, we have something like 2 million people in custody in the United States.

Six thousand people sounds like a lot, it's not a lot when you compare to 2 million. So, you know, this is a very gradual process involving people who have largely served their sentence, who will all be under supervised release which is a system like parole, it essentially federal parole, so it is an attempt to address the problem of mass incarceration, which is a big problem.

BANFIELD: So that the stats are, you know, the numbers are important to put into context and you were just heading there. If we're talking about 6,000 inmates sort of this weekend, 16,500 in a year, and up to 40,000 over the next several years, we need to remember that there are 600,000 individuals released from state in federal prisons every year. I mean, that's an enormous number of releases.

My question, Joey, is this. When you say nonviolent drug offenders, these are dealers or people who possess.

JACKSON: Yeah.

BANFIELD: Dealers deal in things that kill kids.

JACKSON: It is.

BANFIELD: I mean, its one thing to say their nonviolent maybe there's no hand to hand combat. But if you're the mother of a child who died from a heroin overdose, I don't think you want that guy getting out (ph).

JACKSON: It's a fabulous point to be made. But then question then becomes eventually as Jeffrey said, they are going to be getting out, so what extent can we reintegrate them into society, in a constructive way. And I think that comes with prison reform, itself.

There's an expression Ashleigh and it says, if you're not a criminal when you go into jail, you will be when you come out. So are you addressing that, what need are you providing to them when they're in so that they don't become recidivists, to get back, answer that community feel safe and so ultimately from a policy perspective, when people are out, we could as society be sure that they are making valuable contributions.

TOOBIN: And the question you have to ask is -- Is society endangered by the fact that somebody is serving six years as opposed to eight years or 12 opposed to 15. That's really what's going on here you're lessening sentences that are substantial to start with, so it's not like people are not being prosecuted in the first place. These people have all been in federal prison.

JACKSON: But then the question becomes are they ready? Perhaps potentially they should have served the full sentence, and that's why program in prison are very, very important to the reintegration when they come out of prison.

BANFIELD: I'm all for all those education programs in prison. Give them some to look forward to, give some skills, give them some, you know, opportunity something to help pay back society in a different way not just being block the way out.

TOOBIN: Absolutely.

BANFIELD: Guys, thanks you so much good to have you.

JACKSON: Thank you Ashleigh.

BANFIELD: Thank you Jeffrey, thank you Joey. And thank you everyone for watching. It's nice to have you with us this new our. Stay tuned my friend and colleague Pam Brown is sitting in for Wolf Blitzer, and she's start right now.

[13:00:15] Hello, I'm Pamela Brown in for Wolf Blitzer.