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Legal View with Ashleigh Banfield

Looking at Latest Election Polls; Supreme Court Rules Improper Prosecution Conduct in Georgia Case; Latest on EgyptAir Crash Investigation. Aired 12:30-1p ET

Aired May 23, 2016 - 12:30   ET

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

[12:30:00] TOM FOREMAN, CNN CORRESPONDENT: -- a very big lead and young lost because the other people who maybe or most on defense in this whole thing. Hillary Clinton, she is winning with African- Americans massive win there. Latinos massive win there. Women still a very big lead and young voters 55 percent to 32 percent this is a number that maybe very important for her down here because so many of the young voters have leading for Bernie Sanders. Let see if that changes as this moves on. Ashleigh.

ASHLEIGH BANFIELD, CNN HOST: And when you do those demos, you can see that there's sort of a real lopsidedness for Hillary Clinton and her demo comparisons. But for Trump, he may be edging her out but it's not lopsided. She's got some rooms to maybe catch him there. It looks like.

FOREMAN: She may have room to catch him but it also -- you have to question whether or not, who's going to move in any of these groups.

BANFIELD: Yeah.

FOREMAN: Because very often by this time in the election, people have made up their mind and the question is, can either of these candidates sway any big numbers out there or are we looking at what we're going to see come November? A very, very tight race.

BANFIELD: That's super depressing for a candidate to hear that they made up their mind and they got five more months on the trail.

FOREMAN: It's hard to move people.

BANFIELD: Happy Monday, Tom, thank you for that. Good to see you. Thank you. I want to talk about those -- the news behind those numbers and the facts behind those numbers. I have a blue ribbon panel to do it too. David Gergen is our senior political analyst and former advisor to four U.S. presidents. Scottie Nell Hughes, a radio commentator and Donald Trump supporter, and Peter Daou, is a blogger and Democratic strategist and supporter of Hillary Clinton.

Peter, I'm going to begin with you with the news. You know, at first lash, there's the real squeeze of that, you know, thought she had a heck of a lead a month ago and that has evaporated by all intent. I did say though that her demos, she trounces Trump for his demos where he wins, he doesn't trounce her. Are you hanging on that? Is there any good news to these polls you're seeing? PETER DAOU, DEMOCRATIC STRATEGIST: Yeah, I paid a little bit less attention to polls having been John Kerry's War Room in 2004, an election night and thinking he was an the next president. And then Ohio started coming in. So I really pay very little attention to polls at this point. But let's get behind what is going on with these poll numbers, especially on the unfavorable numbers.

What's happening here is the normalization, the equalization of Donald Trump throwing some sort of parity between these two candidates where there really is none. And let me give you an analogy. You take somebody like Hillary Clinton who has mud thrown at her day and night for 30 years literally. Then you have a candidate like Trump who's throwing mud at other people. Both these candidates end up with mud on them but for very different reasons. I don't see these unfavorable numbers as comparable in any way. Its apples to oranges.

Did Hillary has a very strong connection to her voters. She's ahead of every other candidate by millions of votes and she builds that relationship with loyalty with them and she trust them and they trust her and I think they will carry her to victory in November.

BANFIELD: Then, I think it's important to note as well she's still dealing with primary opponents where Donald Trump is not. So, David Gergen to you, with regard to that, her primary opponent was on ABC this week and had nothing too kind to say about Hillary Clinton. I think, evil was one of the words used.

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Lesser of two evils.

BANFIELD: Yeah. Let's me say what Bernie Sanders said this, I want to ask you about the significance of it.

GERGEN: Sure.

BANFIELD: Here it is.

(BEGIN VIDEOCLIP)

BERNIE SANDERS, (D), PRESIDENTIAL CANDIDATE: We need a campaign. An election coming up which does not have two candidates who are really very, very strongly disliked. I don't want to see the American voting for the lesser of two evils. I want the American people to be vote for a vision of economic justice, of social justice, of environmental justice, of racial justice.

(END VIDEOCLIP)

BANFIELD: So, he says the lesser of two evils. Everybody sees on it. It's been in headlines. I just played it. If you're just trying to woo superdelegates for the convention if that's what the mission is to go all the way to the convention and hopefully, you know, to bring some of her superdelegates his way, is that the way to do it?

GERGEN: I'm not sure it's working for him. So far, she can't shake him. I don't think his mission is to win the nomination. I think his mission is to get as much leverage as he can and get her to commit to a platform which is quite sympathetic to him.

BANFIELD: Isn't that a little scorched earth? I mean ...

GERGEN: Well, it is but I -- it is scorched earth. But he's leading a revolution. I think this is partly gone to his head. You know, he's had these overflowing crowds. No wonder it would go to his head. But I think what he's trying to do is change the direction of the country and he want to get her either join that or he's not get on the bandwagon. And I think that's a real problem for her going forward.

You know, I think it's a big surprise here, Ashleigh. We thought Trump would be the person who would have a very divided party and even have the fighting of all sorts of people to convention she'd have a coronation. And it's turning out just the reverse of that.

BANFIELD: Yeah.

GERGEN: And we don't know how this race is going to settle down until we see how she settles down with Bernie because, you know, right now, the numbers, I think, are much more fluid than people think. Trump has closed in like this and many that he shows that a lot of people came to his or in his direction here in the last two or three weeks who are the people are mostly Republicans or uniting behind him.

[12:35:08] BANFIELD: John King's magic, well (inaudible) two 70s will going to be fascinating.

GERGEN: Yeah. Absolutely.

BANFIELD: I want ask you, Scottie, Lindsey Graham, apparently now quietly according to the New York Times trying to get other Republicans in line. I didn't think I never say that. I didn't think I never have that information to say that live on television, but that's what the New York Times is saying is happening. And at the same time, Donald Trump goes on Fox News Sunday and talks about the NRA meeting he had and gun control, et cetera, and seemingly, twice in the same comment, flip-flops on his position. So, let's listen to it and i want to ask you about it afterwards.

(BEGIN VIDEOCLIP)

DONALD TRUMP, (R), PRESIDENTIAL CANDIDATE: Because I don't want to have guns in classrooms, although in some cases, teachers should have guns in classrooms, frankly, because teachers are have been on things that are going on in their schools are unbelievable. You look at some schools, unbelievable what's going on. But I'm not advocating guns in classroom, but remember in some cases and a lot of people have made this case, teachers should be able to have guns, trained teachers should be able to have guns in classrooms.

(END VIDEO CLIP)

BANFIELD: OK. Scottie, he contradicted himself not once, but twice in the same paragraph. Either it's "I don't want guns in classrooms or teachers should have guns in classrooms but I'm not advocating guns in classrooms, but remember, in some cases, teachers should be able to have guns" I'm not going to ask you about the effect of that, but I am going to ask you about how other Republicans who say a Lindsey Graham is trying to get on board to fall in line behind the nominee are going to react to this kind of flip-flopping.

SCOTTIE NELL HUGHES, DONALD TRUMP SUPPORTER: Well, I think it's because people see it as an option. I think what Mr. Trump is saying is. He doesn't want to sit there and have mandatory guns in every single classroom to be expected. I think he's saying the teachers should have the option if they feel comfortable with it, if they've had the proper training for, they should have the options so that when the criminal comes in, and if he wants to do harm, he has the fear that he's not going to the only person that will have a weapon there. And I think that's why some is like contradiction, it's more of a clarification. Where unfortunately, we find so many times in laws today, it's mandatory, it's either 100 percent or nothing.

And so I don't think it's necessarily contradicting himself. I think he's just more clarifying his statement.

BANFIELD: But Scottie, do you ever worry -- I have to be honest. Do you ever worry that the work that needs to be done now is getting republicans in line, getting, say, a Paul Ryan, not to say things like kind of more into the old fashioned politics, my words, I'm paraphrasing, but every time Trump speaks, it does that effort harm. Do you worry he's his own worst enemy in trying to get the troops together?

HUGHES: Well I think it's what we've been dealing with the person today he announced. He's not politician, he's not been classically trained on how to sit there and put things into right words where at there's no sort of disembowelment.

I think he actually sit there and says speaks from the heart. He's honest in what he says. Now, I think if you want to speak to the politicians then yes, I am worried that, you know, he might not be as clear for them to understand, but I think for the American people, obviously, the voice and the tone that he's been using has resonated and we talk about, you know, talk Ashleigh, you start off talking about all of these numbers and you're right both of them have very much unfavorables, and Hillary Clinton is winning with the demographics but when it comes to topical issues of the economy, who can handle terrorism who can actually knew they believe over sort of trust, Mr. Trump is trouncing Hillary Clinton most to those by at least 10 points it's because of his tone and his voice and his strong suits.

BANFIELD: All right. I got to leave it there, guys. But I wish I could, but I've got about four other segments that still have to wage into a three segment show. So, Scottie Knell Hughes, Peter Daou, and David Gergen. This is my life. I'm not kidding, every day. Thank you to the three of you. We'll talk again, Peter, I promise of that. How's that?

DAOU: Thank you.

BANFIELD: OK. Thank you. Coming up next, what happens when prosecutors purposely, purposely keep black people off of a jury in a death row murder case? Believe it or not, that was not fiction. That's something that the Supreme Court had to decide and guess what? They just did. I'll tell you what happened

(COMMERCIAL BREAK)

[12:43:25] BANFIELD: The Supreme Court is giving brand new life to a black inmate who is currently on death row. That's because the justices found that the prosecutors in his original trial unconstitutionally barred potential black jurors from serving on the jury in the trial of Timothy Foster.

Joining us now is CNN Supreme Court reporter Ariane de Vogue and also with us professor of law at George Washington University, Jonathan Turley.

Ariane, first to you, absolutely fascinating that the notes that the prosecutors took during (inaudible) that had little bees next to black potential jurors surfaced 20 years later and ended up being the lynch pin in this case, but what made the justices decide that it was because of a racial bias as opposed to preparing for a challenge on racial bias which is what George has said in this case?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Keep in mind, George said, look we were -- we knew a challenge to this all-white jury was coming so we were preparing for that. But that Chief Justice John Roberts writing for 7-1 on the court said -- he said "It was no question. The Georgia prosecution was motivated in a substantial part by race." This was Timothy Tyrone Foster, African-American man.

In 1987, he was convicted at killing a white woman by an all white jury and it's very unusual, right? 20 years later, his lawyers came up with these notes and they said the prosecution illegally took race into consideration and the Supreme Court sided with him. It's not very often right that you get these smoking gun documents. The smoking gun evidence. So, this might not have broad implications but it's going to come as a welcome relief to those people who believe racial discrimination in jury selection persists all too often today.

[12:45:19] BANFIELD: Yeah. I was going to say, it never happens but I'm sure that somewhere, somehow, there could be some kind of smoking gun in a case like this but this was remarkable. Jonathan Turley, let's broaden out from the broad effect to the single dissenter, Justice Clarence Thoma, the only African-American justice on that panel. Does it speak any volumes? Would we have expected any different? We didn't have Justice Scalia, so we don't know what he might have done but does it stand out as unusual or unique?

JONATHAN TURLEY, PROFESSOR OF LAW, GEORGE WASHINGTON UNIVERSITY: Well, you know, Justice Thomas is very comfortable being alone as dissenter and I say that because he does have very deep principles but those principles in this case are not shared by any of these colleagues. In fact, he's fighting a fight that the court rejected long ago on that question and on the more important issue of how this affects the current law, you have to keep in mind it was in 1880 the court said you cannot use race to strike jurors but then in 1986, in the (inaudible) case, they created a process to evaluate these claims.

Now 30 years later, the court, I think, is in an important decision because the court here is speaking with a very loud voice but they're not going to tolerate this and these prosecutors really went over the line in a number of respects and in the closing argument, one of the prosecutors said to the jury, you need to deter the people, quote, in the projects and that was viewed as a coded message about race.

BANFIELD: I find it interesting that Justice Thomas wouldn't have seized on that piece of evidence but to the bigger story here and that is, people going forward as they're picking juries. Won't they be more couched in their coating? Maybe they won't write a "B" next to -- and clearly that's an established you can't do this, but you do do this. That's what lawyers -- do they pick juries that would be sympathetic and I don't think anybody would argue race tends to be an issue that prosecutors and defense attorneys face. Jonathan, will they just pick different race neutral reasons? Can you look me in the eye.

TURLEY: Well that is the fear that the first thing they don't do is write "B" next to any names. And this was a combination. You know, they struck 100 percent of African-Americans and 16 percent of white jurors.

So, yes, there is a way that they could continue to game the system by coming up with neutral reasons but it's important to note here that it is indeed seven out of eight justices saying we don't buy it. We look at ...

BANFIELD: Yeah.

TURLEY: ... this case and it just doesn't work for us that you had other reasons to do this. I think that's going to have a big effect is going to tell lower court judges you need to look more closely. It's not just coming up with the most creative neutral argument. You've got to be reasonable. You've got to be objective and you got to use common sense and it didn't wash this time.

BANFIELD: Yeah. I think that project's comment was probably pretty heavy on their minds as well. Jonathan Turley and Ariane de Vogue always thank you to the both of you. Appreciate it.

TURLEY: Thank you.

BANFIELD: Coming up next, how close are we to finding out what happened to that Egyptian airline, EgyptAir 804, what made it fall from the sky about 8,900 feet. That's how deep the see is where the black box is to believed to be and the submarines have already arrived to try to find those clues.

(COMMERCIAL BREAK)

[12:52:33] BANFIELD: Breaking news. We have just received a statement from the attorney who represented Officer Edward Nero. Of course, you'll know by now Edward Nero was acquitted today in connection with the Freddie Gray case in Baltimore. His attorney said this about Officer Nero. "Officer Edward Nero, wife and family, are relieved that this nightmare is finally over. The state attorney for Baltimore City rushed to charge him as well as the other five officers, completely disregarding the facts of the case and applicable law. Officer Nero is appreciative of the reasoned judgment that Judge Barry Williams applied in this ruling. His hope is that the State's Attorney will reevaluate the remaining five officers' cases and dismiss their charges. Like Officer Nero, these officers have done nothing wrong. Officer Nero remains a proud member of the Baltimore Police Department and looking forward to serving the city and the people of Baltimore."

Again, the attorney for Officer Nero releasing that statement after his acquittal on several charges that could have netted him up to 15 years in prison.

Other news now. The search intensifying for the black boxes from EgyptAir Flight 804. France has sent a remote controlled submarine to help the Egyptians in their search efforts. Both sides are scanning the bottom of the Mediterranean for the flight data and the cockpit voice recorders. They, of course, could hold the answer as to why this plane simply fell out of the sky, crashing into the sea, 66 people on board.

In the meantime, there are some new questions involving smoke alarms that went off near the cockpit minutes before the crash. I want to get more insight from CNN aviation analyst, Mary Schiavo. The smoke alarms are fascinating. And a lot of people are tamping it down and there could be other reasons for it. What could that be?

MARY SCHIAVO, CNN AVIATION ANALYST: Well, it's very interesting because the smoke alarms actually pick up their visual, they actually pick particular in the air, smoke, mist, things like that, but the first warning that went off was in the cockpit at the window heater.

Now, at 37,000 feet, obviously you have to heat the windows to keep them clear for the pilots to see out. So the first thing that happened was a warning from the cockpit that you had a problem with the window heater and the Australian version of NTSD, the Australian Transport Safety Bureau actually issued a warning back in 2009 that the window's A320s and the A330s could have a problem with shorting in the system and that could lead to fire and electrical problems.

[12:55:13] So, we have that happen first and then the smoke detecters are going off in the bathroom. So, it looks like whatever happened, if this information is correct, now, a lot of this come out ...

BANFIELD: Yeah.

SCHIAVO: ... through leaks here and there, but if it's correct, it looks like whatever happened started in the cockpit and it started with this warning on the window.

BANFIELD: Mary, fascinating. Thank you for that. It's probably why the Egyptians and the French are both saying we're not ruling out anything yet. We're certainly not saying its terrorism right now which could have implications here in the elections. May Schiavo thank you for that information and thank you for continuing to follow this story for us.

Coming up next, dozens of new bombings in Syria with ISIS saying it was us, taking responsibility, meanwhile, right next door in Iraq, a new operation, brand new, under way to take back a major city from that terror group.

The role of the United States is playing in all of that coming up.

(COMMERCIAL BREAK)