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Legal View with Ashleigh Banfield

Wrongful Death Lawsuit; Bombing Iraqi City; Child Custody Battle. Aired 12-12:30p ET

Aired November 12, 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] ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone, I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

I want to begin this hour with some disturbing new video that's just been released that shows the minutes that lead up to a man's death. A man who's in police custody. But before we walk you through the video, there's a few things that you should know.

This is 46-year-old Linwood Lambert. The way that his family would prefer that he's remembered. Three police officers Tased him multiple times and he died not long afterwards. The incident actually happened on May 13th, 2013. It happened in south Boston, Virginia. And more than two years later, the cause of his death is still in dispute. And the officers involved have not been charged with any crimes. But the family has filed a $25 million wrongful death civil lawsuit. And they've also filed a federal deprivation of civil rights lawsuit. And in about an hour, there's going to be a hearing in this case.

I want to take you back to the video now because it speaks volume. Deborah Feyerick takes us through the early morning hours of that day. And I want to warn you that the video is tough to watch. It is disturbing. It is graphic and it is without question not for children.

(BEGIN VIDEOTAPE)

DEBORAH FEYERICK: Forty-six-year-old Linwood Lambert was allegedly acting strange when south Boston, Virginia, police decided to get him checked out at a local emergency room.

OFFICER: We're not locking you up. What we're doing to you is we're going to take you to the emergency room and we'll get you looked at to make sure you're good to go.

FEYERICK: But during the ride, police video shows Lambert becomes increasingly agitated. And as the squad car pulls into the E.R.

OFFICER: Don't kick your window. Don't - don't kick your window. Quit kicking the window. Quit kicking the window. Calm down. Calm down.

FEYERICK: Lambert, his hands cuffed behind his back, kicks out the patrol car window and sprints towards the emergency room, ramming the sliding doors. Three officers draw their Tasers and appear to make contact. Lambert falls forward.

OFFICER: Get on your belly. UNIDENTIFIED MALE: I am.

OFFICER: I'm going to light you up again.

FEYERICK: Instead of having him evaluated by doctors, the police put him back in the squad car. And when he fails to sit up, he's allegedly Tased again in the neck. By the time officers arrive at the detention center several minutes away, Lambert is unresponsive. It's unclear how many times he was Tased. Police called paramedics who began CPR. As they get to the hospital, according to court records, Lambert is in, quote, "full cardiac respiratory arrest," intubated and connected to auto pulse. Paramedics and doctors are unable to resuscitate him and he is pronounced dead.

An autopsy report lists three punctures suggested of Taser barb sites on the right and left franks. The cause of death is listed as acute cocaine intoxication. And the manner of death is listed as accident. South Boston police say the use of Tasers is appropriate when someone becomes violent, threatens property or puts others at risk. Federal guidelines say police must be trained to understand that repeated use of Tasers may increase risk of death or serious injury and should be avoided.

The family has filed a $25 million lawsuit accusing police of using excessive, unreasonable and deadly force, saying they violated Lambert's civil rights. A statement from lawyers representing the officers says the police did nothing wrong in their interaction with the late Mr. Lambert and that their actions did not cause his death.

Deborah Feyerick, CNN, New York.

(END VIDEOTAPE)

BANFIELD: The attorneys for the south Boston police department went on to say that, quote, "we are vigorously defending the case. Our position is affirmed by the reports of two independent, well-qualified experts in the field." We tried to reach south Boston police, as well as Virginia State Police, who picked up the investigation of Lambert's death, but we have not yet heard back.

I'm joined now by CNN legal analyst and defense attorney Danny Cevallos, Jonathan Gilligan, who's a former FBI special agent and former police officer, and CNN contributor Dr. Larry Kobilinsky, who's a forensic scientist at John Jay College of Criminal Justice.

Jonathan, I want to begin with you, if I can. When you look at that video, albeit we are not showing the entire length the video, these are excerpts, is there anything in there that stands out to you when it companies to protocol and then these quotes that we did not do anything wrong?

[12:04:58] JONATHAN GILLIAM, FORMER FBI SPECIAL AGENT: Well, so, first off, since we're not looking at the entirety of the video, what you don't see there is an individual that continues to show violent behavior. Even to the point where it's three officers are trying to shackle his legs. So I have to commend the officers on one thing, they went to less than lethal force. This guy was cuffed. Even though he was violent, you didn't see them draw their weapons and shoot him. That was the right decision. However, once it got to a point where they saw that this less than lethal process was not working with the Tasing, I think they should have moved on to a different type of less than lethal force.

BANFIELD: Like what?

GILLIAM: Pepper spray, for instance. Calling in - if they have, it's a small town, so other officers to come in. Holding him until they pull a gurney out. But all this shows you two things. One, when that individual took cocaine, he set these gears in motions for himself. But when the department sends officers out without correct policy saying, five times is the limit. Once you Tase somebody five times, you have to move to another less than lethal force.

BANFIELD: And this may have been anywhere between 15 and 20 times.

GILLIAM: Right.

BANFIELD: I want to be real clear what the reports do show. That those Tasers were deployed. They may or may not have made contact. Some were deployed at the same time. Again, don't know if he was multiply Tased at the same time. But this is certainly a remarkable series of events.

Danny, if I could bring you into this with regard to the series of events. Some of those who watch the process have said, the officers did everything right once he kicked out the window and charged at the hospital. They needed to make sure that everybody was safe inside the hospital. But when he's in the back of the vehicle and he's been Tased several times already and he's being told to sit up but he's not responding to that request to sit up, is there anything that speaks to the appropriateness of Tasing a man who's already been Tased who's simply not sitting up? Can he even be cognizant of what he's being asked to do by this point?

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, the problem is the lack of enough guidelines. And the reality is, every fact situation is different that law enforcement officers confront. So even if you have guidelines for how to use less than lethal force, and that's what we're talking about here, they won't apply to every single fact situation. So the things that these police officers are going to have to contend with is that at some point the command decision was made to take this man to the emergency room. Then once they are at the emergency room, he - they - he kicks out the window, they Tase him, and then they change their mind.

And, arguably, I guarantee you, the plaintiff's counsel is going to make this argument. You made the decision that he needed immediate medical attention. Then you Tase him and then you decide, well, maybe he doesn't - it's more important that we arrest him and less important that he gets that medical attention. And that is going to be a real problem legally for them to be able to justify not only the use of force but the decision not to take him to an emergency room. That's not a helicopter ride away, not 50 blocks away, but eight inches away though - BANFIELD: Through the glass as well.

CEVALLOS: Pane glass.

BANFIELD: Yes.

Larry Kobilinsky, with your medical expertise, I want to ask you two questions, and they're not the same, but I want you to weigh in if you can. Number one, the M.E. in this case, medical examiner, that's the kind of work you're very familiar with, was not given this video nor the reports of the numbers of times that this person was Tased or how many times the contact was made. Is that - is there any reason that that's OK?

LARRY KOBILINSKY, JOHN JAY COLLEGE OF CRIMINAL JUSTICE: No.

BANFIELD: That an M.E. doesn't get all of the facts in trying to determine cause of death?

KOBILINSKY: No, it's not.

BANFIELD: And manner.

KOBILINSKY: The M.E. forms an opinion about cause and manner of death from other issues, including police reports and videos like this. Clearly, Tasers are dangerous weapons. They're not always less than lethal, especially when they kill. Tasers can cause fibrillations of the heart. The ventricles, the most powerful part of the heart, can fibrillate. It can lead to sudden death.

BANFIELD: But he knew that - he knew that this victim was Tased.

KOBILINSKY: Yes.

BANFIELD: The M.E., and I'm not sure if it was a he, I beg your pardon, the M.E. just didn't know the extent and the patterns of the Tasing because the M.E. clearly saw Tase marks, but that would make a difference, wouldn't it?

KOBILINSKY: I think that is very important, very significant from a medical perspective. I'm not talking from police procedure. But the impact on the heart could be very, very important, especially when there's a question of cocaine in the body, which is a stimulant, which we know speeds up the rate of the heart, raises blood pressure, and we don't know the underlying health problems that this fellow may have had.

BANFIELD: OK. To that point, being that you are a doctor, do - can you weigh in on the cognition capacity of this person in the cruiser, once he's been put back in the cruiser and he looks despondent.

KOBILINSKY: It's very hard.

BANFIELD: He'd been Tased. Can he follow directions? What - there's so many studies that say our cognition goes down after being Tased. KOBILINSKY: It's very difficult because everybody responds to drugs differently, they will respond to Tasers differently. And it's very hard to say. But it seems to me, because he's not responsive, not - it may not be deliberate. It may be physiological that he just cannot respond.

[12:10:12] BANFIELD: So to that end, I'm going to get you both to weigh in on this quickly. The likelihood that they could prevail, this family, in those two areas, wrongful death and then also the civil rights deprivation, which is the federal case. Danny, quickly.

CEVALLOS: Federal courts have, even where a suspect is restrained, in handcuffs, they have largely absolved police officers of liability where the suspect not only fights back but even where that suspect tries to flee. And, remember, Tasers are viewed a little differently than deadly force, even though death can potentially result, as we've seen. But there are less than lethal alternatives. So courts have traditionally upheld it, but at the same time, this is a unique case.

BANFIELD: Yes.

CEVALLOS: These officers are going to have to contend with a lot of very bad facts.

BANFIELD: And just quickly, Jonathan Gilliam, do you expect to see any criminal charges potentially against these officers?

GILLIAM: I'm not sure in this day and age in the court system. It could go either way. But I think that the department - these departments need to start being held accountable because just as the doctor was saying, you know, it's unpredictable, here or there. What is predictable is good policy. And if somebody's done drugs or somebody is acting in a way that they look like they may be sick in some way, you restrain them, put them on a gurney and take them in. You do not take them to jail. So you make it the policy. That's the way the bureau is, the FBI.

BANFIELD: Jonathan, thank you. Danny, thank you. Larry, thank you as well. I appreciate all of your insight.

GILLIAM: You got it.

BANFIELD: Coming up next, taking back a town from terrorists. We're going to take you literally to the front lines. A very dangerous place where our Nick Paton Walsh has gone to bring you the story firsthand in a major battle against ISIS. You do not want to miss this.

(COMMERCIAL BREAK)

[12:15:50] BANFIELD: Right now, in Iraq, thousands of Kurdish forces are surrounding a small northern town that up until today was 100 percent under ISIS control.

(VIDEO CLIP)

BANFIELD: Here's where it gets interesting. The Kurdish troops who were on the ground are getting help from coalition air strikes. And that means American military planes and pilots are involved. CNN reporters in this town, called Sinjar, say that bombs have been exploding there for days, softening up those ISIS positions on the ground, getting ready for a big ground assault. Their mission, cut off ISIS, cut off their supplies in Syria, and eventually take that town back. And our Nick Paton Walsh is right in the middle of it all.

(BEGIN VIDEOTAPE)

NICK PATON WALSH, CNN SENIOR INTERNATIONAL CORRESPONDENT: (INAUDIBLE) since 9:00 yesterday evening local time. They have been moving towards the town of Sinjar. And we heard ourselves through the night from the top of Mt. Sinjar the constant coalition air strikes. And there evident still now today around us as they claim substantial process. The Kurds say that to the west of Sinjar, they have taken a village called Carbara (ph), which was vitally a part of the route down, to what many say is a strategic objective here. While Sinjar is itself symbolically vitally important because many want to see it back in the hands of those Yazidis who once lived there, the Sunni Arabs who once lived there, pushed out brutally last year by ISIS, many forced into captivity, slavery. It is sat (ph), that town, Sinjar, on a vital artery, a vital road between the self-declared caliphate capital, Raqqa, in Syria, and Mosul, far in that direction in Iraq, which they also took last year.

Many, including the coalition, central command actually, the Pentagon officials, believe if they sever that artery, they can severely hamper ISIS' ability to make money out of the black market oil trade. Now, that may be why we're hearing so much coalition air power in the skies here. We've seen a succession of heavy blasts around. That road itself is in the distance here. I can't tell you precisely where we are under the rules that the Kurds have asked us to adhere to as part of being with their Peshmerga forces. But those Peshmerga forces have been moving in great number down further towards the direction of that road and we've seen, they say their numbers, 7,500, quite easy to believe given the strength of the forces we have observed here.

Hopes high in Kurdish official's hearts that perhaps this could be over in a matter of days, if not hours. But they are already admitted that booby traps, the mines laid pretty much everywhere is substantially slowing them down. We hear blasts pretty much regularly here. Hard to see how there won't be casualties and hard to see how this will be an easy operation.

Nick Paton Walsh, CNN, outside Sinjar.

(END VIDEOTAPE)

BANFIELD: Nick, you know, to you and your crew, be careful over those next couple of hours and days.

Coming up next, a Utah judge known for controversial rulings has ordered that a baby girl be removed from the home of two women, even though they're married and even though the law allows them to care for that child. We're going to talk to one of the women about her fight to keep that baby home with them, right after this. (COMMERCIAL BREAK)

[12:23:24] BANFIELD: My friend and colleague Jeffrey Toobin likes to quote the legal saying that goes, "if you have the law on your side, pound the law. If you have the facts on your side, pound the facts. And if you have neither, pound the table." And he's joined by a lot of other lawyers who do that too, but I don't know whether a judge in Utah pounded the bench this week.

I can say this, the judge in question, Scott Johansen, does not seem to have the law, nor the facts to support his heartbreaking decision to remove a one-year-old girl from the home of her foster parents. Those parents have been caring for her for three months now, since August, and they want to adopt her. Beckie Peirce and April Hoagland were legally married 13 months ago. They were licensed by the state to take in foster children just a few months later. They've gone through all the checks. They have two biological children too. And their foster daughter's birth mother is supporting their plan to adopt her child. Get that? The mom wants this couple to adopt her baby. The Utah Division of Children and Family Services is also supporting this couple.

So why does Judge Johansen object? He is not commenting publicly, but the parties in the courtroom say that he claimed to have research showing, quote, "kids in homosexual homes don't do as well as in heterosexual homes." He would not provide that research that he said he had, nor would he say where he got that research. And state law does not bar same-sex foster couples. Let me repeat, state law, the stuff he actually works within, does not support this decision.

[12:25:14] Beckie Peirce, one of the moms, is live on the telephone with me now from Utah.

Becky, has there been any movement at all in this case since the media has highlighted what's going on with your family?

BECKIE PEIRCE, FOSTER PARENT (via telephone): Well, we've retained an attorney and they're looking at the case to see what we can do with it, along with UCFS' (ph) attorney and the attorney general's office.

BANFIELD: And - and so in the meantime, as I understand it, you and your wife April are sort of under the gun here. You've got one week in which Child and Family Services has to find another home for your baby. Is that still - that train is still going?

PEIRCE: That is correct. That's what we're trying to stop right now. We want to do what's best for the child and make sure that she -- she's taken care of the way she should be. We don't want her bounced back and forth.

BANFIELD: Speaking of the care, did the judge in this case ask any questions about the kind of care that you and April provided, not only the two children we're seeing, you know, on camera right now in these lovely pictures, but also to your one-year-old baby? You know, the doctor's appointments, the inoculations, all those kinds of standard operation procedures that new parents all have to go through. Did you - were you asked about the kind of care you're providing?

PEIRCE: We were not. And this judge doesn't know us from anybody else. The people who recommended us to keep the child and adapt her when the time comes has been in our home to see the dynamic of our family. They've seen how well the child's doing. And - the judge doesn't know anything about us other than we're a same-sex couple.

BANFIELD: So the judge is saying that he has research, he has seen studies that show that children don't do as well in a same-sex household as a heterosexual household. He won't share the research. I'm assuming that your attorneys are pushing for this kind of revelation. It's not necessarily a discovery issue since he's a judge. He's not opposing council. It's a little odd. But what are your lawyers and the Department of Child and Family Services, that supports you, what are you doing right now to sort of get through this week and stop, you know, your child from being moved into an unfamiliar household?

PEIRCE: We have so many attorneys working on this case. The firm that we're working with is looking at it. I know the attorney general's office is looking at it, as well as the attorneys for DCFS. So they're all working together to see what can be do in the best interest of the child.

BANFIELD: Have they given you any hope? I mean, you know, a lot of times lawyers will try to make your feel better about, look, this is a slam dunk, don't worry, we've got your back here. We've got an injunction ready to go. It's just a matter of procedure. Or are you not feeling very secure in this process?

PEIRCE: I'm actually feeling very positive. Everybody's been positive. There's been a lot of support for us. And, once again, everybody just wants what's best for the child. So we're feeling pretty good about it.

BANFIELD: What do you want to see happen to this judge?

PEIRCE: You know, I don't want anything bad to happen to anybody. That's not what our intent is. We simply want to do what's best for our child and be able to continue to love her as her mother wants us to and as we have been for the last three months.

BANFIELD: Beckie, thank you for taking the time to speak with us. I hope you will join us again and update us as this story moves, hopefully forward. Thanks so much for your time.

PEIRCE: Yes, ma'am. Thank you very much.

BANFIELD: Want to go to my lawyers on this one because, oh, boy, I think they'll have something to say. Defense attorney Midwin Charles on the right, legal analyst, defense attorney, former prosecutor Paul Callan on the left. And I don't mean philosophically to either of you.

OK. I am at a loss. Normally I have some sort of sense of where someone is coming from or benefit of the doubt. I cannot find it in this case, Midwin. MIDWIN CHARLES, DEFENSE ATTORNEY: Yes. This is very unusual. And what

I find most interesting is that in this case, you have the guardian ad litem, you have the biological mother and you have the Division of Child and Family services all advocating that this lesbian couple is the right - are the right people to care for this girl. And I haven't heard anything about whether or not there was a problem with the sort of care that the child was receiving, whether or not she was being well fed or anything like that.

BANFIELD: Beckie says they weren't asked. Beckie says they weren't asked.

CHARLES: Right, and that's surprising because usually these kinds of cases, the analysis focuses on what is in the best interest of the child. And surely I think we can all say that ripping her away from these two women is not in her best interest.

BANFIELD: Yes, and, Paul Callan, the last I checked, we're a nation of laws. We follow laws. We don't follow personal convictions. And this judge has been cited before, you know, in a judicial performance evaluation, which is government administrated. You know, he's been - he's had a lower than average survey when it comes to separation of his personal beliefs from his legal rulings. But does that make any difference in this case? Is something going to get overturned on procedure or that this guy is bringing his own thoughts into a courtroom where they don't belong? The law belongs there.

[12:30:11] PAUL CALLAN, CNN LEGAL ANALYST: I'm confident that this judge is way off the reservation and he's going