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Legal View with Ashleigh Banfield

Rampage in Kalamazoo; Syria Cease-fire; Apple Versus FBI. Aired 12-12:30p ET

Aired February 22, 2016 - 12:00   ET

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

[12:00:02] ANNOUNCER: This is CNN breaking news.

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

We're going to begin with breaking news this hour in Kalamazoo, Michigan. At about 1:30, an hour and a half from now Eastern Time, the man accused of driving around that county, randomly shooting at eight people, killing six of them, is going to appear in court. And for the first time, we could hear his voice.

Just minutes ago, we heard the president, President Obama, weighing in on these shootings for the very first time. And he did it while he was speaking with the National Governor's Association. Here's what he had to say.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: On Saturday, another one of our communities was terrorized by gun violence. As many of you read, six people were gunned down in a rampage in Kalamazoo, Michigan. Before I joined all of you, I called the mayor, the sheriff, and the police chief there and told them that they would have whatever federal support they needed in their investigation. Their local officials and first responders, by the way, did an outstanding job in apprehending the individual very quickly. But you got families who are shattered today.

(END VIDEO CLIP)

BANFIELD: Here is the suspect in the case. Take a good look. His name is Jason Dalton, 45 years old, an insurance salesman, but also a husband and a father of two children. He also happens to be an Uber driver with no criminal record and neighbors describe him as a family man. Yet the county prosecutor said this, quote, "family man," did the unthinkable, ripping apart families, as President Obama mentioned, killing a father and a son, killing two sisters-in-law, shooting a woman in front of her three children. And in between all of that, Dalton made sure the cash kept coming in as he picked up passengers for Uber.

Our affiliate, WISH, spoke to one of those passengers. His name is Derek. He says he is still shaken up and he doesn't want to show his face or reveal his last name. He's from Indianapolis and he was visiting Kalamazoo with his wife. He says they were Dalton's last Uber ride of Saturday night before he was taken in by the police. And this was the chilling conversation.

(BEGIN VIDEO CLIP)

DEREK, JASON DALTON'S LAST UBER RIDER: Our interaction with him was very basic. It was like a five-minute ride. And I said, you're not the shooter, are you? And he said, no. And I said, are you sure? And - and he kind of just said, no, I'm just tired. I've been driving for seven hours.

(END VIDEO CLIP)

BANFIELD: Words that surely will be used at some point in action against him.

Ryan Young is live for us right now in Kalamazoo.

Ryan, I know that this is a video conferencing that he's going to be making this appearance for today, but it's still the kind of appearance where everybody watching, you could virtually hear a pin drop. There's just so much shock in that community and beyond.

RYAN YOUNG, CNN NATIONAL CORRESPONDENT: Yes, we were at a vigil just last night and I can tell you just by standing near some of the people in this community, they are still shaking with fear in terms of this one. They were very upset. You have someone who was a father, someone who was in this community, who didn't have a criminal record, and then all of a sudden could go on this shooting spree that lasted several hours. If you think about it, that first shooting happened at 6:00. That second shooting didn't happen for almost four hours later. Then he pulled into that parking lot there, where the father and son were standing, and opened fire there. We do believe that's the area where police were able to grab some surveillance video that helped to give them the ID, that they were looking for that Chevy HHR and they were able to put that broadcast out to let people know what was going on.

But still, 15 minutes later, he was able to pull into that Cracker Barrel location and open fire on those two cars, hitting those women, four of them, killing them, all over the age of 60, before shooting that 14-year-old girl, who at first they thought was dead, and then apparently she has survived. She's in critical condition, obviously. All these families that have been ripped apart by this shooting.

And there were several hours where people were wondering what happened to his family. We do know his family's OK. But right now this community is still asking the basic question of why. Not sure if that will ever get answered. Of course, police have been keeping a lot of things tight-lipped to try to figure out exactly what was going on in this investigation. So you know going forward the prosecution will be looking to see exactly what this man was doing over several hours.

(BEGIN VIDEO CLIP)

JEFFREY GETTING, KALAMAZOO COUNTY PROSECUTOR: He was aware of what was going on. He was able to carry on his normal routine. These were very deliberate killings. This wasn't hurried in any way, shape, or form. They're on video. We've watched the video with law enforcement. They were intentional, deliberate, and I don't want to say casually done, coldly done is what I want to say.

(END VIDEO CLIP)

[12:05:11] YOUNG: Ashleigh, talking to people who were in this community, the real fear here, just about why. What would turn that gun towards these people? People who had nothing to do with this man. It's something that everyone in this community is waiting for answers for. And I'm not sure we'll ever get that answer. Of course, we'll be paying attention in that first court appearance.

BANFIELD: All right, Ryan Young, you're going to watch that for us and bring it to us just as soon as it begins. Thank you for that. Ryan's live in Kalamazoo, on the job for us.

I'd be remiss if I didn't share with you some of the stories that have come in from the victims of this. The youngest person killed was 17 years old. His name was Tyler Smith. He's there on the right. And he was killed alongside his father, 53-year-old Richard Smith. They, together, were just simply out shopping for a car. They were at a Kia dealership when both of them were gunned down in cold blood. Richard's wife and Tyler's mom has taken to FaceBook to share her grief. And I'm going to quote her, "Laying in bed, trying to comprehend what has happened in the past 24 hours. Wishing it were all a bad dream and they'll be here when I wake up." And in another post, "my precious baby boy taken away before he even graduated from high school. Sharing these photos of my beautiful family. I love them more than anything in the universe and I am lost without my boys."

That grief, that lump in your throat is shared by the family of Mary Lou Nye, 62 years old, and Mary Jo Nye, 60, sisters-in-law. The two of them shot while they were in their car in the parking lot of a Cracker Barrel restaurant. Mary Jo was a retired teacher at Calhoun Community High School. The assistant principal told CNN that Mary Jo was, quote, "a wonderful person and mentor and her former students are heartbroken."

Barbara Hawthorne was in another car, at that same Cracker Barrel parking lot. She was 68 years old. She worked for Kellogg's for 22 years. And she just retired in 2008.

Dorothy Brown was 74 years old, also killed outside that same Cracker Barrel. Her neighbor told affiliate WXYZ that she loved caring for her yard and that she was a sweet lady.

And then there's the 14-year-old girl, 14, also shot. At first believed to have died. And police say she was actually on life-support for an organ harvest when suddenly she squeezed her mother's hand. And now that 14-year-old girl is listed in critical condition.

You should also know that there is no death penalty in the state of Michigan. So even though Jason Dalton faces a litany of charges and the most serious that the United States can offer, he will never be put to death for any of those charges.

And with that in mind, it is imperative to bring in the legal view. This is CNN legal analyst team Danny Cevallos and Paul Callan. I think this is the kind of situation, guys, where, you know, people

who are watching right now think, this is what the death penalty is made for, but that is not an option here. I can't see any route to a federal prosecution. I don't know if the two of you can see that, because the death penalty could be an option through federal prosecutors. What do you see as happening here, Danny?

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, as you know, Michigan does not have the death penalty, but the mandatory imprisonment is life without the possibility of parole. That's the mandatory penalty for first-degree murder. But Paul and I were talking about this, if there is a federal nexus to some federal law, virtually - well, actually, every state is technically a death penalty state, if you're prosecuted in federal court. The problem is, you need a nexus to some federal law that allows for the death penalty.

BANFIELD: Like the, you know, the bombers and -

CEVALLOS: Espionage.

BANFIELD: Terror. Sure. Sure.

CEVALLOS: Terror. Well, something like that. So there are a limited number of federal statutes that allow for the death penalty. The question is, will a creative U.S. attorney try to fit these facts into one of those federal statutes.

BANFIELD: So, Paul, let's just say that that is just too creative. It is just too big a leap. He didn't cross state lines. He didn't kill a federal agent. He - there - there were - there's a lot to try to leap over there. If you're staying in the state, do you see the only option for this man as an insanity defense?

PAUL CALLAN, CNN LEGAL ANALYST: Well, yes, I think insanity is probably going to be his best bet. And, frankly, he's not going to get into federal court unless they link this to terrorism. And we really haven't seen that link. What's surprising about this case is, as we sit here, we don't know what the motive is. His background doesn't seem to suggest it. And as you and I were discussing before we went on the air, the insanity defense is very, very hard to win with, but this might be the kind of case where you could because we're not seeing a history of planning, we're not seeing a detailed cover-up by the killer.

BANFIELD: He didn't try to hide. He didn't try to get away.

CALLAN: No.

BANFIELD: He just kept doing his business. He went for a drink. They caught him outside of a bar.

CALLAN: Here's -

BANFIELD: I mean that's kind of the thing where you realize, he might have actually thought what he was doing was right. [12:10:00] CALLAN: And - and here's what Michigan's insanity law

requires. It requires that you have some kind of a mental disease or defect.

BANFIELD: Yes.

CALLAN: And that that gives you an inability to recognize the difference between right and wrong.

BANFIELD: Between right and wrong.

CALLAN: Yes.

BANFIELD: Well, we are jumping way ahead of the game. We've got our first appearance coming up in an hour and 20 minutes. So we'll all sort of just try to wrap our heads around what happened until we know, you know, a few more of the facts.

Danny and Paul, thank you. Appreciate it, from both of you.

CALLAN: Thank you.

BANFIELD: We've got some breaking news that's coming out of Syria as well. It appears that, if you can believe it, a deal has actually been reached for a cease-fire. What that means, that's critical. The devil can always be in the details, and we've got some of those details coming up.

(COMMERCIAL BREAK)

ANNOUNCER: This is CNN breaking news.

BANFIELD: We've got breaking news out of Syria to tell you about. A western diplomat tells CNN that a U.S./Russian plan for a cease-fire in Syria could begin as early as this Friday. I want to bring in CNN's Nick Paton Walsh, who joins me live now from Beirut, Lebanon. He's been following this whole process very, very closely.

This has not been easy, Nick. There are many of these groups who are not at the table, have not been at the table, are not party to this. I guess the big question is, how do you have a cease-fire when all the guns that are blazing aren't agreeing to it?

[12:15:10] NICK PATON WALSH, CNN SENIOR INTERNATIONAL CORRESPONDENT: Quite right. But let's deal, first of all, with what I'm hearing from western diplomats may happen at midnight between Friday and Saturday. And that is the hope that the parties agreeing to this will stop fighting initially in a period stipulated for three weeks, but there's no time limit on this. It's not supposed to - it's not supposed to suggest fighting begins again at a certain point in the future.

Who is agreeing? Well, this diplomat who's close to the Syrian opposition, says that it's political leadership think they can get the armed groups they represent on the ground to go along with it. The motivation being that really if this is about the Russian guns and the regime's guns falling silent, along with the Syrian option, stopping their fighting, too, that if either side dare breaks their part of the deal, they can expose the other as not really being into political negotiation.

Now, a huge flaw in all of this is that it's accepted by all sides, that it doesn't involve ISIS or al Qaeda in Syria, known as the Nusra Front. They're doing a lot of the fighting right now, behind the staggering death tolls of the bombings of this weekend, ISIS were. And the fear, I think, is that Russia has been accused by America and the west of using its supposed campaign against ISIS to attack Syrian moderate rebels. Is Moscow really trying to sign up for this idea? Remember, I'm hearing from a western diplomat about this, not from Moscow at this stage. Is Russia really going to sign up to it or simply use it as cover to continue attacking the groups that oppose the Syrian regime that it's backing. A huge jump to make, Ashleigh, from this moment now, where we have potentially the highest single death toll in one instance of the entire Syrian war, that was at the bombing that happened in Damascus over the weekend caused by ISIS, that the hope that at midnight between Friday and Saturday we see a meaningful pause in the violence.

Ashleigh.

BANFIELD: And just quickly, Nick, if you would, I mean there's just so many questions, the motives of Russia, whether they are trying to do a backdoor help to Assad. But I think for Americans, they want to know, is this an opportunity for ISIS to capitalize and exploit all those who put their guns down, because they are not?

WALSH: Well, I think everyone accepts that if ISIS do make a move during this, they'll meet opposition. That that fight isn't going to stop. The issue is about the credibility of those signing up to it. I think the fear may be Russia will use this to say, look, this group is still fighting, they're still breaking the ceasefire. They're not ISIS. They're another group that is supposed to be part of it and continue attacking against them. There will be massive confusion, I imagine, as the clock strikes midnight between Friday and Saturday. The question is, does this diplomacy finally yield some change in violence, or does negotiation increasingly look meaningless in this awfully brutal conflict, Ashleigh.

BANFIELD: I think massive confusion is a good way to put it, when there are hundreds of groups that are operating autonomously in that region.

Nick, keep us posted on the details and what transpires the next few hour. Thank you for that. Nick's reporting to us live from Beirut, Lebanon.

Coming up next, how one little iPhone, just one, has become such a massive battle between the United States Justice Department and one of the world's most powerful companies. The war of words between the head of the FBI and the CEO of Apple over your personal privacy and your security.

(COMMERCIAL BREAK) [12:22:51] BANFIELD: A brand-new round today in a pitched battle that's brewing between Apple and the FBI. And it's all over that dead terrorist's cell phone from San Bernardino. The one that killed 14 people, injured many more. The CEO of Apple, Tim Cook, this morning sent an e-mail to all Apple employees. And I just want to read a quick excerpt of what he sent them. "This case is about much more than a single phone or a single investigation. At stake is the data security of hundreds of millions of law-abiding people and setting a dangerous precedent that threatens everyone's civil liberties." Some pretty strong words, but they're also being met by strong words on the other side, too. And CNN's Money tech correspondent, Laurie Segall, is here to talk about the other side of this war of words.

LAURIE SEGALL, CNN MONEY TECH CORRESPONDENT: Right.

BANFIELD: The FBI has some pretty strong language, too.

SEGALL: Yes, we heard last night from the FBI director, James Comey, for the first time speaking out. He wrote a blog post. I want to read you a little bit from that too. He said, "the San Bernardino litigation isn't about trying to set a precedent or send any kind of message. It's about the victims and the justice." So then, of course, you have an e-mail sent out to Apple employees this morning from Tim Cook that we've obtained and also a public Q&A where they really talk about some of these details. And what Tim Cook has said, and this is, he actually confirms that technically it is possible to get into this phone, if they build a new operating system. One thing that really stuck out to me, though, that he put in this note was, he said, "the only way to guarantee such a powerful tool isn't abused and doesn't fall into the wrong hands is to never create it in the first place." And I think so now you're really hearing the two sides go back and forth here, Ashleigh.

BANFIELD: I just want to be really clear on what's at stake because James Comey is trying to get a lot of clarity of what they're asking of Apple. And as I understand it, and you'll have to help me through the narrative here -

SEGALL: Sure.

BANFIELD: They're - Apple is suggesting that James Comey wouldn't have to make these requests of the company, to create some kind of software to get beyond the ten tries and your phone gets wiped out, because they're trying to get that password and they can't do more than ten tries. What they're saying is, you had an option from the get-go that you messed up -

SEGALL: Right.

BANFIELD: Meaning, the FBI messed up. So what exactly happened?

[12:25:04] SEGALL: This is really interesting because every word and how you phrase it counts in this one. So what essentially happened was, after - hours after the shooting, the FBI had the phone. San Bernardino County had access to the phone, because the phone was owned by the county. So according to San Bernardino County, the DOJ will back this up, they said, you know, help us get into this guy's iCloud, help us find more information. So they changed the iCloud password.

Now, what that did, and according to Apple, is prevent the ability to try to get an auto backup, an iCloud backup. And what they would have done was they would have taken that phone to somewhere where the - where the suspect had connected to wi-fi and they would have tried to see if it would auto backup with any new information. And had - and because they changed that password, they couldn't do that.

Now, what law enforcement will tell you is even if we had been able to get that backup, that iCloud backup -

BANFIELD: Yes.

SEGALL: Which is very important, that wouldn't have been enough. We want access to what's inside the phone. What if they were using apps, encrypted apps? So they're saying -

BANFIELD: Which wouldn't be in the iCloud backup. I get it.

SEGALL: Yes. So they're saying is that you both - you know, maybe Apple's leading us one way in order to not talk about this, but, you know, every detail after the investigation counts and you have both sides, again, sparring.

BANFIELD: And, I mean, the bigger issue is, is it our security either way, security from terrorists or securities from, say, hackers who could terrorize us later and get our information. So it's a great - it's a great discussion. Keep us posted on the war of words. Thank you, Laurie Segall. Appreciate it.

Apple may have more than just the FBI to fight in all of this. Some of the victims, the victims of the San Bernardino terror attack are throwing their support behind the government. Perhaps it's not surprising, but they are calling on Apple to break into that iPhone that was used by one of the killers. Whatever it takes to do it, they're asking Apple to do it.

Stephen Larson is representing the San Bernardino families and he joins me live now from Los Angeles.

Judge, thank you so much. I should note to our audience that you're a former federal judge. You know the work that you're up against at this point. I guess that you just heard Laurie and me discussing the two competing wisdoms here. What avenue out of this is there for either side?

STEPHEN LARSON, ATTORNEY FOR SAN BERNARDINO VICTIMS AND FAMILY MEMBERS: Well, there's a couple of avenues. Of course, one avenue would be the parties sitting down and resolving this thing. This is about one phone and one case at this point. It's about coming up with a way to get the information that there is no question that law enforcement needs in this compelling case. This was the biggest terrorist - act of terrorism since 9/11 here in the United States. We need this information. Law enforcement needs the information. The victims need this information from this one phone. This one phone belonged to a dead, murderous terrorist, owned by the county of San Bernardino. There are no privacy interests to mention involved in this case.

Now, is there a bigger question about other phones and what kind of precedent? That's something that Congress needs to grapple with. That's something which needs to be addressed going on a going-forward basis. But in this case, with this phone, I don't think anyone can seriously question the interest of both the victims and law enforcement in obtaining the information.

BANFIELD: So I understand -- Judge Larson, I hear you 100 percent, the privacy interests of the San Bernardino killers are pretty minuscule I think for a lot of people in this argument, but is this greater issue that Tim Cook is pointing out, that it's not about this one phone, it's about the larger issue of backdoor security. And then I'll go one further. The whole constitutional argument against involuntary servitude. I mean effectively what this looks like from the layperson is that the government is asking Apple to create a product, a software, to help them in their investigation. They're asking them to work for the government and not giving them the option. And then I'll go one further than that, as well, diminish their brand, potentially, by what they say is making our brand less secure. Can you see the argument against this?

LARSON: Let me try to put this in perspective, because I think these fears are greatly exaggerated by Apple and I'm afraid they may be used for commercial advantage. It is no secret that the government needs the cooperation of banks, financial institutions, telecommunications facilities, all kinds of different entities, when they're conducting law enforcement investigations. This goes back many, many years. This is nothing new under the sun. Before the government can do that, however, they need to go to a federal judge and they need to get an order. They need to establish probable cause that a crime has been committed and that there is evidence of that crime on whatever it is they're trying to seek, whether it's having a bank obtain financial records or obtain money or cash, whether it's going to a telecommunications entity and obtaining backload or saved data. This happens every day. But there's a process and there's a process to secure the privacy rights, to make sure that nothing improper is going on. And that process is being scrupulously followed in this case. There's been an order by a federal judge.

BANFIELD: Yes.

LARSON: There's going to be further briefing before that judge. It will be appealed through the system. This is not a system of the government running rogue.

[12:30:02] BANFIELD: Judge Larson, forgive me because I'm definitely up against a mind greater than I am in the law, but it still comes back to the idea that warrants have been issues time and time again for existing evidence. This is evidence that doesn't