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Legal View with Ashleigh Banfield

Alabama Same-Sex Marriage Showdown; Aaron Hernandez Murder Trial Latest; Death of CBS Correspondent Bob Simon Mourned

Aired February 12, 2015 - 12:30   ET



ASHLEIGH BANFIELD, CNN ANCHOR: In Alabama today, a county judge who's refusing to follow a federal court ruling on same-sex marriage is going to get into a courtroom and appear before the very judge that he's to find. Judge versus Judge.

I want to take you back to Monday, though, when this all began. When Alabama technically became the 37th State of the Union where same-sex marriage became legal. Hence, the pictures on your screen, now this picture.

And I said technically because most of Alabama's 67 counties are not going to do it. They are refusing to issue licenses.

Counties in yellow are still licensing straight couple who want to say "I do." But the ones in red have decided not to license anybody. And that's because this man, Roy Moore, Chief Justice of the Alabama Supreme Court, ordered state judges last Sunday to uphold the ban, the same-sex marriage ban that the Federal court had said no to.

Now, in case you're wondering why his name is familiar, it is not Judge Moore's first rodeo.

You may remember that he was ousted in 2003 for installing and then refusing to remove this, a gigantic 10 Commandments display that was comfortably sitting in the state court, in the building, in Montgomery. He want his job back though in 2013.

And this morning, he appeared on CNN's New Day with my colleague, Chris Cuomo, who's also a lawyer and knows a thing or two, and they butted heads over state rights and gay rights, and history, and slavery, and God for good measure.


CHRIS CUOMO, CNN ANCHOR: Your Honor -- look, Your Honor, what this comes down to is you didn't have to do this. You've created a basis to do it, but you didn't have to do it.


CUOMO: You had to do it because it matters to you personally. This is just like the Ten Commandment situation. You were told by the federal courts remove the Ten Commandments from the public square. You didn't want to and you wound up losing your job, because of it but on principle you felt you did the right thing. Isn't that true?

MOORE: On principle, I did the right thing. But it's not about the Ten Commandments and it's not about my feelings, it's about the law. And my law, the Alabama law...

CUOMO: You said that as well then, Your Honor.

MOORE: The state (inaudible) chief administrative officer -- I said the chief administrative officer of the judicial system, and I must act when the jurisdiction of the probate courts is interfered with by one lone judge who has no power or authority to tell them how to interpret the federal Constitution.

Under the supremacy clause, it's quite clear that the judges in every state shall be bound thereby, anything in the Constitution, the laws of any states to the contrary notwithstanding. Which states that basically state judges have the authority -- do have the authority to interpret the United States Constitution.

In Arizona case out of the United States Supreme Court, they said that very specifically. They said we not only are not free, we are bound to interpret the United States Constitution.

CUOMO: But this is exactly how the discrimination got removed in states like yours. District courts putting through rulings that the states then had to enact.

MOORE: Nobody's arguing about racial discrimination in this case . This is not about racial discrimination.

CUOMO: It's about discrimination.

MOORE: It's about sexual -- It's about sexual preference.

CUOMO: It's about discrimination.

MOORE: Being -- overcoming an institution which has existed in our state, in our United States, for centuries. And I think it's wrong.

CUOMO: But it's about discrimination. In 2006, you created a constitutional amendment that, by design, discriminated against gay people. And now you are being told by the federal law that is wrong.

MOORE: Again, that is a constitutional amendment to the Alabama constitution, and it's clearly within the bounds of state law and federal law. Again, there is nothing in the constitution about marriage. How can judges go in and define a word? They're doing exactly what they did in 1857 in Dred Scott.

CUOMO: They just did it in U.S. v. Windsor. They just looked at the Defense of Marriage Act and said you cannot define marriage as just between a man and woman.

MOORE: That was between Congress. It did not affect the state, according to the ruling in Windsor.

CUOMO: And now they're meeting again in June. And if June comes and they hold the same way, then what will you do?

MOORE: Then I will do what the Court should -- or what the Court should have done under Dred Scott. If it's an unlawful mandate, you don't have to recognize it. You can recuse from the case.

CUOMO: So you still...

MOORE: You can dissent. You can dissent to the United States Supreme Court, just like you can dissent to anything else.

CUOMO: If the Supreme Court causes it to be stare decisis, and we both know what that means, the case is decided, and the law is you cannot discriminate against people on the basis of their sexual orientation in marriage, you will be -- you will have to follow it, will you?

MOORE: Chris, let me ask you something -- Let me ask you this, Chris.

CUOMO: Yes, sir.

MOORE: Would you follow the -- Would you have followed the order in Dred Scott saying that black people were property? Or would you have followed the order in Plessy versus Ferguson that says separate but equal was the policy of the United States? Can you answer that please?

CUOMO: Your job as Chief Justice is to administer the law.

MOORE: You didn't answer the law. You didn't answer it, Chris.

CUOMO: I am not the Chief Justice of Alabama. It's not my place to answer.

MOORE: Well, I'm asking you if you were the Chief Justice of Alabama, would you follow Plessy versus Ferguson and Dred Scott when they were issued. Yes or no?

CUOMO: You follow the law of the land. That is what our nation is based on.

MOORE: You can't answer it, can you, Chris?

CUOMO: Here's why. You cannot duck your responsibilities by putting them on me, Your Honor. They didn't elect me to be Chief Justice.

MOORE: I'm not ducking my responsibilities. I will follow the law, sir.

CUOMO: So you'll allow gay marriage when it goes forward if it happens in June?

MOORE: I said I will follow the law as I interpret it.

CUOMO: That will be the law by any definition.

MOORE: If I can't follow what the Supreme Court says, I'll recuse from the case. But I'm telling you that you can't answer the question because you can't admit yourself that Plessy versus Ferguson, separate but equal, and Dred Scott were wrong decisions and should not have been followed by the lower courts under the United States Supreme Court because they were against the Constitution.

CUOMO: No, what you are trying to do is you re trying to impose a false standard for people and you know the law doesn't work that way. We don't always like it. But you have to follow it and you take the right routes to appeal. You did the same thing with the Ten Commandments. The law was clear: they weren't supposed to be in the public square and you went against it anyway. What did I just say that was untrue?

MOORE: United States Supreme Court is the final arbiter of this decision.


MOORE: They have not made their decision.

CUOMO: So you think gay marriage is wrong, right? Just say it.

MOORE: I think gay marriage is an alteration of the definition of marriage and the United States Supreme Court does not have the authority -- or the federal courts do not have the authority to interpret a word that disputes the Constitution. The Tenth Amendment is very clear.


BANFIELD: That Cuomo knows how to argue. Wonder where he leaned that? OK, if you think you heard a doll, you were not even close of hearing it all because Chief Justice Roy Moore is going to continue after the break.

And what about how this is all likely to play out when more courts and couples join the (inaudible).


BANFIELD: We're talking about the battle over same sex marriage in Alabama, a battle reminiscence of other times in our nation's history, when states courts and legislatures and governors clashed at federal courts and congresses and president.

I want you to hear that chief justice of Alabama -- the Supreme Court in Alabama explaining why most state judges are still upholding a same sex marriage ban that the federal judge struck down.


MOORE: I think the gay marriage is an alteration of the definition of marriage, and the United States Supreme Court does not have the authority or the federal courts do not have the authority to interpret a word that disputes the constitution.

(END OF VIDEO CLIP) BANFIELD: I am joined now by CNN Senior Legal Analyst Jeffrey Toobin, who's live with me, smiling, in Washington DC and now Robbie smiling too here in New York. Roberta Kaplan, famous name because she's the lawyer who persuaded the Supreme Court of the United States to throw out the defense of marriage act, we might call that Act One, we might call what's to come Act Two.

Jeffrey, I want to start with you in the reporting, if I can. You saw that interview, you read those transcripts, probably a couple of times, get your head around, what Judge Roy Moore was saying, your response to it.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Ashleigh, we'd known each other a long time, haven't we?

BANFIELD: We have.

TOOBIN: I mean, we've worked together a lot. And, you know, I don't do the cable news thing that was like calling people names, but I'm going to make an exceptions today.

BANFIELD: I know what's coming.

TOOBIN: Roy Moore is a crackpot.

BANFIELD: Oh, my god.

TOOBIN: He is not someone who understands the law as the rest of the world understands that he's got some bizarre fixation about how he alone can interpret state law that trumps federal law, he's wrong on this. And the only question is, is he going to be forced out of his job again for his own imagination of how the law should be instead of how it is.

BANFIELD: So someone with the imagination and he would say I think interpretation, and I'm going to come to his defense with this Jeff. I'm going to get Robbie to weigh in on it, as well.

The chief justice of the Alabama Supreme Court who butted heads with our extraordinarily Chris Cuomo this morning quoted, "The young doctrine, I did not know what the young doctrine was of 1908." But he said that effectively, it stated that the attorney general didn't oversee the probate courts in Alabama and that that province is under the administrative direction of the chief justice. Robbie the chief justice is Roy Moore. So where is he wrong?

ROBERTA KAPLAN, ADVOCATE FOR SAME-SEX MARRIAGE RIGHTS: I think -- He's talking about a very particular issue now in Alabama law. But I think the one thing that we all know is clear. And the district court judge in Alabama said this clear "That all state officials in the State of Alabama have to comply with the federal constitution." And she has now interpreted the federal constitution and the Supreme Court has now denied the stay of her ruling.

BANFIELD: It's all very complicated if you're not a lawyer.

TOOBIN: No, it's not, Ashleigh. Actually...


BANFIELD: All Right, OK.


TOOBIN: It's not complicated. You know, some things in law are complicated. But this one had -- doesn't happen to be one of those that's complicated.

We have a system where the federal government is in charge when there is a conflict, period.


TOOBIN: It comes from a part of the constitution called the supremacy clause because the federal court -- the federal law, the United States constitution is supreme.

Here, we have a federal judge backed up by the United States Supreme Court saying, "Federal law says let these people get married." A state judge cannot stop that. That's not complicated. That's pretty simple, as far as I know.

BANFIELD: So -- And here's where I'm going to tell you, it is complicated because everything in a court of law gets argued by interpretation. And I'll only say this, I'm not a lawyer but I heard what that justice was saying. He said that the federal judge gave the ruling to the attorney general in Alabama, but that the AG isn't responsible for the probate...


BANFIELD: He is...

TOOBIN: The AG was representing...

BANFIELD: ...he thinks that then.

TOOBIN: The AG was representing the State of Alabama, that's why the AG was sued. The probate judges worked for the State of Alabama. There is no meaningful distinction between the attorney general and the probate judges, that's where more -- among other places is wrong.

BANFIELD: So ultimately, Robbie, what's going to happen here? Because today, we have judge meeting judge in court. Effectively, is this going to be open and shut and simple? And then, just go a little further and tell me. What will happen to Chief Justice Roy Moore?

KAPLAN: Yeah, I think it's going to open and shut and simple. There's a hearing in the federal district court today in Alabama. It turns out -- and the Mississippi Court, where we won the case on Mississippi, the judge in our case quoted William Faulkner who said that, "The past is never dead, it's not even past." And we're going to see an example of that today because the judge in Alabama, her grandfather was one of the -- called the Fifth Circuit Four, one of the four judges who enforce civil rights throughout the south. So she knows what she's dealing with. She's going to enforce the federal constitution...


BANFIELD: I'm sorry, that (inaudible) repeating that the federal judge who passed this directive down to Alabama is the granddaughter of this man, who was one of the four federal court judges who enforced civil rights.

KAPLAN: That's correct.

BANFIELD: I just want that to hang in the air for a little while. This is -- I'm not sure the pronunciation of her name, but I think its Kelly Brunad (ph) or Brunade (ph). But this is a pretty awesome story in itself beyond the litigations and the issues that we're facing, just that story.

Robbie Kaplan, thank you. Jeffrey Toobin, thank you. I know we're going to talk more about this. And I just want to do one thing if I can, if you'll all just permit me for a moment. Ruth Bader Ginsburg known as the notorious RBG, I'm not kidding, she has a blog. She said this just today to Bloomberg about the same sex ruling that maybe coming down the road in June-ish.

"The change in people's attitude on that issue has been enormous. In recent years, people have said, this is the way I am. And others looked around and we discovered it's our next-door neighbor, we're very fond of them. Or it's our child's best friend, or even our child. And I think that as more and more people came out and said that this is who I am, the rest of us recognize that they are one of us."

Maybe no big surprise how she may vote on this, but it is always intriguing to hear anything from the mouth of the Supreme Court Justices, I have to leave it there.

But Aaron Hernandez has another development in his case. The football star on trial for murder and now the jury has laid eyes on some cryptographic images, the crime scene itself, the body of the victim, the shoe prints, the tire tracks, all extraordinarily important as to whether that man on your screen ends up behind bars for the rest of his life, or back in his very expensive mansion, next.


BANFIELD: Yesterday, 16 people were forced to do something they probably would never want to do. They were forced to look at a dead body. Yes, they are jury but they're normal people and they were forced to look at a video on a computer monitor of Odin Lloyd as he was found in a dirty industrial park in 2013.

And I just want to warn you here that if you are sensitive to these kinds of images, the pictures will be in this report on the trial from Susan Candiotti. (BEGIN OF VIDEO CLIP)

SUSAN CANDIOTTI, CNN CORRESPONDENT: The jurors for the first time seeing dramatic crime scene video of the bullet riddled body of Odin Lloyd lying face up among huge piles of dirt and gravel. It is riveting.

PAUL CALLAN, CNN LEGAL ANALYST: The jurors leaning forward so intently as an indication they want to see the human being who was murdered here and it's a very, very important case, very important moment for the jury.

CANDIOTTI: As jurors watch intently Lloyd's mother in the court room looks away staring down at her hands. Lloyd accused murderer, former patriot (inaudible) Aaron Hernandez appears only to glance at the grim images compared to his focus on other evidence. His attorneys argue Hernandez would not murder a friend.

CALLAN: His position is of course that he's not the murderer and that he had nothing to do with this, so having an inability to even look at the body is consistent with what you would expect from an innocent person.

CANDIOTTI: Yet prosecutor says these tire tracks are consistent with a car driven by Hernandez when he picked up the victim before the murder. And shoe prints at the scene made by sneakers bought by the football player. The defense charging sloppy handling of crime scene evidence including shell casings removed from the area just before a driving brainstorm.

JAMIE SULTAN, DEFENSE ATTORNEY: You also described ceratin evidence that was removed from the scene, right?


SULTAN: And you due describe only some of the evidence that was removed from the scene or did you describe all of the evidence that was removed from the scene in your (inaudible)?

UNIDENTIFIED MALE: I described two piece of evidence.

SULTAN: And what about any other piece of evidence removed from the scene? Did you include those in your log.


SULTAN: Why not?

UNIDENTIFIED MALE: I recorded what's reported to me.

CANDIOTTI: Also in court Hernandez fiancee Shayanna Jenkins mother of their two year old daughter. On Tuesday a judge compelling her to testify for the prosecution that the grant of immunity. They suspect her of ditching the murder weapon inside this black trash bag after getting a coded message from Hernandez, telling investigators now she cannot remember where she dumped the bag. Will she turn on the father of their child, in court (inaudible) obvious of signs of trouble. Off camera Hernandez whispers he likes her hair. She smiles back, giggling.

CALLAN: What it says to me is they've granted her immunity but don't expect that she's going to come in and say you know something I disposed of the murder weapon on instructions of my fiance.

CANDIOTTI: Susan Candiotti, CNN Fall River Massachusetts.


BANFIELD: Well, that testimony will be traumatic, won't it? Trial scheduled to resume tomorrow. And usually Friday is half day for the court but this judge has had a whole lot of snow. He said they're going to stay a whole day to make up for some of the lost time because of all this awful New England weather.

OK, this one of is tough. Our correspondent on one of the last helicopters leaving Saigon, he spent 40 days in an Iraqi prison in the first Gulf War. He took home 27 Emmy Awards covering stories from all around the world, and now surprisingly he is dead. This was very unexpected, remembering 60 minutes report of Bob Simon. Next.


BANFIELD: This is the top stories for us to report. This business that I'm in, television news, lost a great one last night. And it's someone you know, Bob Simon. You know him because he joined CBS nearly 50 years ago.

He covered every corner of the world, every major conflict. He racked up every award in the business multiple times. He risks his life over and over for his craft of journalism.

And here's what happened last night. It just seems so unfair, a car crash in New York City. Bob was a passenger. He did not make it. And I just want to show you a tiny slice of what made Bob Simon such an extraordinary story teller and in my line of work, irreplaceable.


UNIDENTIFIED MALE: And (inaudible) steps are being wheeled up to a plane bearing the word of the Arab Republic of Egypt, will miracles never (inaudible).

UNIDENTIFIED MALE: Which was one of the two or three biggest stories I've ever (inaudible).

UNIDENTIFIED MALE: It was just about the right amount of breeze this morning to bring the flags alive, the flags of Egypt and Israel.

UNIDENTIFIED MALE: This dance how do you want to hear it.

UNIDENTIFIED MALE: I want to hear with you after singing.


UNIDENTIFIED MALE: I knew the names of almost all these men, their names and their deeds. I never thought I'd be standing a few inches from them having a chat.

UNIDENTIFIED FEMALE: How long were you a captive for?

UNIDENTIFIED FEMALE: Forty days. We were very restricted. We couldn't go anywhere without a U.S military escort.

This (inaudible) road is destined to become the main battle ground.

And we saw a jeep in existence. And it was an Iraqi army jeep and they took us away. And we eventually wound up in the secret police headquarters called the mohabarat (ph) and treated very badly.

They ask whenever went to a new place and they asked us "Where are you from?" And one said Nicaragua and that was good. And the (inaudible) Cuban and that was great, and Peter said Britain and that was bad and I said American, that was horrible.


BANFIELD: Bob Simon was married to his lovely wife Francoise. They had a daughter together. Bob was 73 years old and is universally missed not just by you the audience but all of his colleagues throughout this business. Thanks for watching so much everybody. Wolf is next.