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Legal View with Ashleigh Banfield

What Went Wrong in Botched Execution?; Torrential Rains, Flooding in Florida; Interview with Rick Scott; What's Next for Donald Sterling?

Aired April 30, 2014 - 12:00   ET


MICHAELA PEREIRA, CNN ANCHOR: So 2015, you're going alone or taking the family?

JOHN BERMAN, CNN ANCHOR: Line up now. That's all for us today. Thanks for joining us at this the hour.

PEREIRA: "LEGAL VIEW" with Ashleigh Banfield starts right now. Am I allowed to touch him?



ASHLEIGH BANFIELD, CNN ANCHOR: His death was supposed to be quick and painless, unlike the teenage girl he shot and buried alive. But the legal injection went terribly wrong, pitting the debate over cruel and unusual punishment against those who say this needs to be discussed further. It is all in the crosshairs this hour.

Also ahead, Florida neighbors under water. A foot of rain in a matter of hours turning streets into rivers, sending homeowners to their rooftops. Hundreds being rescued. We've got the story.

And, how can you fire the guy who owns the team? And then force him to sell it because of something he said in a secretly recorded conversation? As reprehensible as Donald Sterling's comments were, was revealing his private comments and then punishing him for them, was that the wrong call?

Hello, everyone. I'm Ashleigh Banfield. It is Wednesday, April the 30th. And welcome to LEGAL VIEW.

It was supposed to be Oklahoma's first double execution in 77 years, a final resolution to two horrible murders and a hugely complicated legal fight. Instead, the death row inmate on your right, Charles Warner, has a 14-day reprieve in which he now can contemplate the ghastly and altogether bungled demise of the death row inmate on your left, Clayton Lockett, who went to the gurney right before he did.

Almost an hour after prison doctors began giving Lockett the first of three drugs that were supposed to kill him humanely, Lockett instead felt tortured, writhed in pain and then ultimately died of a heart attack. Now to be sure, and let's be real clear about this, his death was a hell of a lot less cruel than his victim's death, a 19-year-old young woman whom he shot with a shotgun and then buried alive.

But this is all very graphic proof of the problems facing states that can no longer get their drugs of choice for executions. And I do mean graphic. You may be disturbed by some of the descriptions in this report from CNN's Pamela Brown.


COURTNEY FRANCISCO, KFOR REPORTER/EXECUTION WITNESS: He was struggling to talk, but those were the words he got out, "man, I'm not," and, "something's wrong."

PAMELA BROWN, CNN CORRESPONDENT (voice-over): They may be the last words spoken by Oklahoma inmate Clayton Lockett, uttered during his botched execution. Lockett's vein exploded during the lethal injection, prompting authorities to quickly halt the procedure.

ROBERT PATTON, DIR., OKLAHOMA DEPT. OF CORRECTIONS: It was my decision at that time to stop the execution.

BROWN: The first drug in the lethal injection cocktail is supposed to render a person unconscious, but witnesses say Lockett was still conscious seven minutes after that first injection. At 16 minutes, he seemingly tried to get up and talk. It was then that prison officials closed the blinds, shutting out the media gathered to witness.

FRANCISCO: We didn't know what was happening on the other side of the blinds. We didn't know if he was still dying or if they were still pumping drugs in him.

BROWN: Forty-three minutes after the first injection, Lockett died.

PATTON: The inmate suffered what appears to be a massive heart attack and passed away.

BROWN: Lockett and Charles Warner, the inmate set to be executed after Lockett Tuesday, both convicted of rape and murder, were at the center of the court fight over the drugs used in their execution. Oklahoma's high court initially stayed their executions, only to lift those stays last week saying the men had no right to know the source of the drugs intended to kill them.

DAVID AUTRY, ATTORNEY FOR CLAYTON LOCKETT: They wanted to hurry up and get it done with as little transparency as possible. There should not be another execution in this state until there's a full investigation into what went wrong.


BANFIELD: Now, as you probably know, there are usually many witnesses who watch these kinds of things actually play out. And reporter Chelsea Washington was one of them. She watched this. She's a CNN affiliate reporter from KOKH. She was there for the whole botched execution. She joins me now on the phone.

Chelsea, just walk me through exactly what you saw and what it sounded like before the curtains were drawn and you could see nothing.

CHELSEA WASHINGTON, KOKH REPORTER (via telephone): Hi, how are you? Yes, the execution started at 6:23. That is when we first saw Lockett. He was lying on a gurney, covered with a white sheet. You could already see that the medicine was being pumped into his body.

And then at 6:30, he was still conscious. Again, a state official went over and checked his body and at 6:33, he was rendered unconscious. But he was still visibly moving. His eyes were open. He was licking his lips. His legs were moving. It was very obvious that, you know, something was not going quite right.

At 6:39, that is when they closed the curtain because it was obvious that things were just kind of falling apart. And at this point, he was moving his head from the gurney. He was moving his shoulders from the gurney. His legs were moving. And they were just having a very hard time gaining control.

This is when they shut the curtain to the media because obviously whatever was happening was just too traumatic for us to see. And in the room, you had about 12 members of the media, 12 reporters. You also had Lockett's lawyers and you also had a number of public officials there.

Now, behind us, there was a tinted window and from the tinted window you could kind of see maybe they were the victim's families. Susie and Steve Neiman, the mother and father of Stephanie Neiman, who Lockett killed in '99. And --

BANFIELD: Tell me about those families and the reaction from them. I'm hearing all sorts of reaction from Lockett himself, gasping and saying, "oh, man," and trying to rise from the gurney.


BANFIELD: But what about the people watching, the family members?

WASHINGTON: They were behind us. It's a tinted windows so it's meant so that you can't really see them. But you could - but there was one woman that I could see behind me and she just looked horrified. And the sounds coming from Lockett, I heard gasping, I heard an "oh, man," and I heard him just trying to hang on for dear life. It was hard getting (ph) out the words that he was saying. It was very, very hard because, again, there's a glass window that separates us from him, you know, and -

BANFIELD: And they typically keep families apart, families or supporters of Clayton Lockett, perhaps his attorney, if this weren't (ph) any family members there, and then the family members of the victim of the crime. Were you able to assess reactions from either of those camps?

WASHINGTON: Yes, I was able to talk to Lockett's lawyers. They were seated right in front of me. His name is David Autry and Dean Sanderford. Now, when I spoke to David, he just said that this - you know, the state was bound and determined to do this. This is what happens. That this was botched. That he was totally horrify and that he was going to consider filing a lawsuit. And the other attorney that was with him also echoed the same sentiment.

BANFIELD: OK. Chelsea Washington from CNN affiliate KOKH reporting for us. Thank you for that.

My experts have a lot of opinions on what went wrong here and maybe what went right because there are many who feel that's exactly what that man observed. Mark O'Mara and Paul Callan are defense attorneys and CNN legal analyst and Mel Robbins is a defense attorney and CNN commentator.

Mark O'Mara, I'm going to begin with you. I just want to read before I ask you about that last nugget that I just threw out there, some people thought this was entirely what he deserved. There was a handwritten statement that was handed out from the family members of the -- a young woman who was murdered by this man, Lockett.

Now, this was handed out and obviously written before the botched execution. But in part it says, "Stephanie was the joy of our life. We are thankful this day has finally arrived and justice will finally be served." Mark, look, you've been in a lot of courtrooms, you've seen a lot of people who feel that this wasn't even half of what the man deserved. Is that wrong?

MARK O'MARA, CNN LEGAL ANALYST: Well, for those people who went through the pain that they went through, having their family member brutally murdered, I understand the retributions aspect of it. If you do a follow-up, as some studies have shown, most victims' families, several years after the execution of the murderer of their family member, don't feel the same closure or anything. They don't really get it. What they find out is all they've really accomplished was two deaths.

Look, if this was a system where it was perfect and this was just a mistake or an accident, so be it. But this is just another example of how it is so difficult for us, as a society, to attempt to kill other people in our society voluntarily. Dying in prison, the rest of his life, I'm OK with that. But this is just another example of how we have to revisit not just how to kill somebody, but whether or not we really need to be a society that kills people as distance in time and connection as our appellate system requires it to be.

BANFIELD: Well, and let's just remind everybody, we do have an Eighth Amendment, cruel and unusual punishment is not something we're allowed to meet out on people, even the worst of the worst. That's just simple, simple fact.

Mel Robbins, we've got 32 states right now that still have capital punishment on the books and are all too happy usually to use it.


BANFIELD: There are battles right now. Two of them, right now Texas and Florida are struggling with the kinds of drugs that you can get to do this because there's such a shortage. A lot of drug companies not wanting to supply the lethal injection drugs.


BANFIELD: Two others have been told by the Supreme Court, we're just not going to look at your issues, we don't want to deal with this. Is this going to be something that adds to these arguments in courts of law?

ROBBINS: Absolutely. Absolutely.

BANFIELD: Is there an equation between the pain and suffering that we've witnessed and these arguments?

ROBBINS: Like - you know, there's actually a supply chain issue that's going on. So, since 1976, 87 percent of all of the capital murders, you know, that we've done here in the United States has been by lethal injection. Now, starting in 2010, one of the three drugs that are used in the cocktail, it's the drug that actually turns off the breathing, has become next to impossible to find because the U.S. manufacturer stopped making it in the U.S. They went to a factory in Italy and Italy said, hey, you're not making it here if you're exporting it for executions. The EU has shut down exports of this drug. India has shut down exports of this drug.

So we're facing a situation where we cannot get one of the ingredients to the cocktail that we know that works. And what's terrifying about what's going on is that there have been eight lethal injections in the United States this year. They have used four different untested cocktails in those eight -- in those eight different executions. And so we're now in an era where because they can't get the drugs that they know that work, they're conducting experiments on people.

BANFIELD: Yes, and -

ROBBINS: And we just saw one go horribly wrong.

BANFIELD: Before the show Paul and I had this heated debate in the hallway. I wish we could have taped it and aired it right now.


BANFIELD: But effectively you said the irony of all of this is that death penalty opponents have put the kind of pressure on these drug companies, et cetera, that ultimately result in pain and suffering.

CALLAN: Absolutely. I -

BANFIELD: So, but do you think the point here is not so much, oops, boy, was that a mistake or, you know what, sometime a few people have to suffer for the greater good?

CALLAN: No. What I think is, if we're going to have a death penalty in this country and the Supreme Court so far says it's legal, then let's administer it in a humane way. We should have a federal panel that comes up with a three-drug cocktail that can be used so that no pain is involved in the administration of death and make it available to the states. Instead of allowing Italy and the European Union to determine punishment policy in the United States.

BANFIELD: You can't force other countries to do what you want. You can't even force companies in the United States to do what you want.

CALLAN: And this is the argument basically -

BANFIELD: Where you getting off with this?

CALLAN: Basically, I think there's a hypocrisy to those who oppose the death penalty in that they in their opposition to these drugs and the use of these drugs are increasing the suffering of defendants who are put to death. Why don't we have a responsible panel to come up with a good way to administer this?

O'MARA: That's an absurd premise.

BANFIELD: Oh, Mark says that's absurd.


BANFIELD: Just quickly, Mark, I've got to wrap it, but last thought.

O'MARA: One hundred and forty-seven people have been exonerated after they were given a death penalty. If we had a quicker death penalty, we would have killed at least 147 innocent people. $12 million to take somebody from arrest to execution. Less than $1 million from arrest to them dying in prison as a life sentence. Why don't we just become a society that says, nobody's going to kill, including us? It really doesn't work. There's no deterrent effect to it. We just need to become a society that says, we are better than our worst people. We are judged on how we treat our worst people. Let's try and change it.

CALLAN: Mark, it's a great argument, but that has nothing to do with what I'm saying, which is, if you're going to have the death penalty, administer it humanely. That's all I'm saying.

BANFIELD: Yes, but, you know what -

O'MARA: No - well, I agree, if you're going to kill them, kill them right. I agree with that.


O'MARA: But maybe we just shouldn't kill them at all.

BANFIELD: Yes, I mean, as it turns out, guys --

CALLAN: Well, that's a different debate though. Today we're debating how we do it.

BANFIELD: Well, and it's an important debate because just this week -

O'MARA: I agree.

BANFIELD: Guys, just this week, we are learning from the proceedings of the National Academy of Sciences, there's a study that shows 4 percent of death row inmates are innocent. So if you're OK with killing the innocent for the greater good, then you can go ahead with those polls that show a lot of people really appreciate the death penalty in this country. I myself find it really difficult. I find that a very difficult argument to stomach.

Mark O'Mara, Mel Robbins and Paul Callan, sit tight. Thank you for that.

In fact, Sanjay Gupta's going to join us in a little while to talk about those cocktails. What do those drugs do exactly. There are three different drugs doing three different things and it is hard to get them, so we're going to all these places to mix them up and get a bunch of different cocktails and exactly what that does and how it can go wrong. Sanjay's going to line that up for us.

And also, from deadly tornadoes to deadly flooding. Next, the Gulf Coast is inundated by rain overnight, leaving people trapped in their cars and their homes. We're going to take you live to the scene.


BANFIELD: After several days of tornadoes, now a nightmare along the Gulf Coast, torrential rain sending chest-high water into people's homes and forcing them to take shelter in their attics while rescuers use chainsaws to cut holes in the roof to get people out.

And for those who did venture out, it did not go well. We've got video from Mobile, Alabama, where you can see a man hanging from a tree for dear life. Fortunately, we can report rescuers were able to get him a life jacket and then pull him to safety.

CNN meteorologist Chad Myers is in Pensacola, which has been getting inundated by an enormous amount of rain over 24 hours. Give us the full report, Chad.

CHAD MYERS, AMS METEOROLOGIST: From Little Rock to Tupelo to Tuscaloosa and now Pensacola, 24 inches of rain in 24 hours, I can't even imagine, five inches in one hour, Ashleigh.

In fact, Governor Rick Scott is with me. Governor, a tough day for your state, we've had a lot of tough days across the Southeast, but this is one for you.

GOVERNOR RICK SCOTT (R), FLORIDA: We've got all this rain that's come, this flash flooding, what you worry about is all the citizens.

We've had over 300 individuals evacuated from their homes. We've been able to get a little over 200 of them evacuated. We still have more. It still looks like we're going to have more rain. You can see the flooding behind us, areas that never flooded before.

We've brought high-water vehicles from the National Guard that are on their way here. Florida Fish and Wildlife (inaudible) and vehicles. We've got roads just devastated.

But what you really worry about is the individuals. We have the animal shelters flooded, so you think about the animals. I mean, this is devastating to this part of the state. We're going to stay here and make sure that every citizen gets taken care of. We've got the National Guard. We've got Fish and Wildlife.

We've got great local efforts. The sheriff's here. The mayors are here. We've got great emergency management teams all across the state. They're showing up. We have about 28,000 homes without power now, but what you think about is those families still getting evacuate and, if we have more water, what's going to happen.

MYERS: Well, you know, water does run downhill, too. There are other places that haven't flooded yet. This water will go up in other spots.

SCOTT: What's going to happen is we're not -- not just the flooding we have now, we're get more rain, but now some more rivers are going to flood more, and it's going further east. So there's other parts of our state that's going to be impacted.

But right now the real devastation is in Pensacola. What you really think about is all those families being evacuated, and then how do they get their life back to order? I mean, how do they -- their homes, people are being evacuated from attics in areas never flooded before.

MYERS: This sounds like what we saw in New Orleans where people climbed into their attics to be safe and then they had to go through the roof to get out because the water didn't come down. Water's receding a little bit, but you've seen a little bit of this area. Motorcade's going to continue. What else do you want to see?

SCOTT: We'll be going over here to see some of the individual houses that have been flooded. We just walked up to a house now, and there was just like -- it just -- the sheriff just sank four feet in the water, just sank all the sudden.

So we've got to be very careful. Every citizen's got to be careful. Don't drive into water. Be careful of downed power lines. Stay -- watch the weather. Be careful of tornadoes. We've got to be careful.

MYERS: That's right.

SCOTT: We're not past this yet. We're going to have more rain. We're going to have more flooding, but we're going to do all the right things. The state of Florida, all the local elected officials, everybody's showing up and doing the right thing.

MYERS: Hey, Ashleigh, I know you're there. Do you have a question for Governor Scott?

BANFIELD: Was he expecting this? And does he feel as though they can do what they need now that the damage is done for so many people?

MYERS: We know that there were flood warnings, flash flood warnings, flood emergencies, but this really came on us, even to me, as a surprise.

Ashleigh, we thought all of the moisture that fell here in north Florida and the Panhandle was going into Alabama and Mississippi and making tornadoes. It got cut off here. It never went any farther. So that Gulf of Mexico moisture came up here and then stopped and rained and rained and rained. It just never stopped for almost 24 hours.

Was there any way to predict anything you see back here?

SCOTT: No, no one anticipated it would just keep raining and raining and raining. We never would have thought this would happen. We thought it was going to move out. We never thought we'd get, you know, 22-, 24-plus inches of rain.

I'm worried about those families. Get them out of those homes. Make them safe. I want to thank all the volunteers that have shown up, everybody that worked all night to make sure these families are safe.

MYERS: Is there anything else you need?

SCOTT: Right now, we don't. We have a very good working relationship with FEMA. Right now, the National Guard, all the local efforts are working. But we're going to keep making sure. We've got devastation in some of our roads, so that's going to take a lot of transportation dollars to get that fixed.

MYERS: Bridges, roads, gone this morning, Ashleigh, here in Pensacola. It really is a situation that you can't put in your head, to think that two feet of rain can fall in one day in one place. That's more rain than they had Katrina and Ivan any other tropical system that's come through here. This has been a worst flooding situation than any of that.


BANFIELD: All right, Chad Myers, thank you for that terrific reporting. And our thoughts and prayers go out to the people who have been affected by that.

MYERS: Thank you so very much.

BANFIELD: And we also have the other big story that we're following, the owners of the L.A. Clippers, now banned by the NBA.

And next, league owners could be voting on whether to force a sale of that team. But he could fight back. So what exactly is his arsenal? You might be surprised to find out, Don Sterling, he's got some. Will he use it?

We'll talk about it next.


BANFIELD: Welcome back to LEGAL VIEW.

Clippers owner Donald Sterling has a very difficult decision to make. Does he fight his lifetime ban from the NBA and the potential loss of his very lucrative franchise? Or does he sell and avoid a massive legal fight and all the ugly fallout that would undoubtedly come with it?

The league's commissioner, Adam Silver, says he plans to begin the process, the termination process, the procedure, basically, where Sterling's ownership could end as soon as possible.

Here's how that will work, according to the actual NBA constitution and the bylaws. Commissioner Silver will send Sterling a written notification of the Sterling procedure. Sterling will have five days to offer a written response to that notification.

After the NBA receives Sterling's response, the rest of the NBA owners will then be convened and they will all meet within ten days to hold what could be -- what you could consider like a mini-trial, complete with witnesses and evidence, testimony.

The owners will act as the jury, and if three-quarters of them favor a vote in favor of termination, then Sterling is out. He'll be forced to sell his franchise.

Wow. That sounds kind of quick.

Joining me to talk about the potential legal battle between Sterling and the NBA, Rachel Nichols is the host of CNN's "UNGUARDED" and a very good sports reporter, let me just say that.

Also CNN commentator and defense attorney Mel Robbins and CNN legal analyst and former prosecutor Paul Callan.

To you, first, because you happened to speak to the commissioner right after that incredible comment was made, his statement yesterday. And, surprisingly, we all thought he'd have been in conference with all the owners prior to doing this very public statement, not so much.

RACHEL NICHOLS, CNN ANCHOR, CNN'S "UNGUARDED": No. No. In fact, I asked him. I said, have you polled the owners, basically? Do you have the votes? And he said, no.

He said he talked to a few different owners, that he has some support, but he very specifically didn't go build consensus first, because behind closed doors, privately, there are owners who have already expressed some concerns about all this.

Not about the specifics about Donald Sterling's case, there's general consensus these are racist comments, they're unacceptable, they don't want him to continue.

But the slippery slope, as Dallas Mavericks owner Mark Cuban put it, of, wow, if we give him power to point his finger and push out an ownership change, we could be next. And there are people who are concerned about that.

BANFIELD: Not just an owner change. Look, he can do that, no matter what. It's right here in this big, red constitution. For your private comments --

NICHOLS: Right, and for your opinions, and that sort of thing. BANFIELD: That's a slippery slope.

NICHOLS: And the issue with that, of course, is they're all concerned, and they all have some secrets and they all have some comments.

Rich DeVos, who's the owner of the Orlando Magic, has made comments that a lot people consider homophobic. He's campaigned against rights for gays. He said that gay marriage is gay people asking for special privileges.

There's a lot of people who made a lot of comments in those positions that could be construed as problematic, so behind closed doors, you have to figure there's concerns.

But Adam Silver didn't do that. He issued the challenge publicly. And by doing that --

BANFIELD: Risky move.

NICHOLS: -- riding the wave of anger -- well, I think it was his best and certainly boldest move.

Behind closed doors, he might not have had a chance, but publicly, he can ride that wave of anger.

An now that he's laid it out the way he did, how are fans and all these individual markets going to feel if their owner, quote, stands with Donald Sterling or stands with a racist?

Now, it may be for different reasons.

BANFIELD: By the way, they can take that vote in secret, and they never have to tell us. And if they can't get that three-quarters, we'll never know which of those --

NICHOLS: They can take the vote in secret but, Ashleigh, I promise you you'll know, even if it's in secret --

BANFIELD: Can't boycott the whole NBA because you don't like the way the vote came out, can you?

NICHOLS: Sure. You could certainly have players on those teams -- and by the way, all the players who were playing in the games last night did talk amongst themselves and organize a boycott. I just want to make this clear. Even if the vote is in secret, I promise you that the people who want it to get out will make sure that it is leaked.

BANFIELD: Yeah. Yeah, OK, so let's bring in the legal aspect of this next step.