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Legal View with Ashleigh Banfield

Germanwings Crash; Lufthansa Liability; Arkansas Bill Change; Indiana Bill Fix. Aired 12-12:30p ET

Aired April 01, 2015 - 12:00   ET

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

[12:00:00] JOHN BERMAN, CNN ANCHOR: Thank you so much for being with us. Appreciate it.

KATE BOLDUAN, CNN ANCHOR: Thanks, Bob (ph). Thank you so much.

UNIDENTIFIED MALE: My pleasure.

BOLDUAN: And thank you all for joining us AT THIS HOUR.

BERMAN: "Legal view" with Ashleigh Banfield starts now.

ANNOUNCER: This is CNN breaking news.

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

A week and a day since that horrible plane crash in the French Alps. And now some evidence, some video evidence of just how remote and removed this crash site is. Only now, eight days later, are we getting a very close-up view via some video of the Germanwings wreckage from the actual ground. Take a look at this.

You had heard days ago there was nothing left of this plane that was at least the size of a car or larger. And that is the pure evidence there. It is all located in the series of narrow ravines deep in the Alps where you just can't get to except for a brand-new road they've been able to carve out. And the challenge goes two ways. It's hard to get people in and that means extra hard to bring out the pieces of the plane and also the remains of the 150 people who were on board.

Notice how these recovery workers are handing pieces of the plane, almost down a human chain, and this is how the entire recovery process is happening, by hand, one piece at a time. You pan over, all of a sudden you see, they're just tossing these pieces onto a pile. Eventually that pile will be relocated.

And now despite two newspapers insisting that they have seen actual video of the crash taken from a telephone inside the airplane, French officials are really debunking it saying, quote, "absolutely not. The footage does not exist," end quote. Well, the cell phone video found by someone at the scene leaked apparently to reporters. At this point, it's really a question of when the investigators are going to be able to get to the bottom of it if perhaps the video exists and the investigators don't all have it or if in fact none of it exists. But it is two different media websites. And this today from the CEO of German airlines Lufthansa, the parent

company of Germanwings. He visited the memorial to the people who died, when his employee, that co-pilot, intentionally crashed that plane last Tuesday.

Our Karl Penhaul is near the crash site right now in the French Alps. And also with me is aviation analyst Mary Schiavo.

So, Karl, I want to talk about some of the video that we were just seeing. It's some of the first video to come out of the search efforts on the ground, up close and personal, where we're seeing some of the wreckage. They are literally raking through the dirt at this point. And it just reminds me so much of the recovery efforts of 9/11. Could you take me through the process of what they're doing to get the remains of the plane and the remains of the people to where the places they have to be?

KARL PENHAUL, CNN CORRESPONDENT: Yes, absolutely, Ashleigh. And I think it's interesting to see that video because I actually hiked up to that crash zone a few days ago. It is a very rugged mountain. It is very difficult to get there. But getting there, and as you can see in that video, just gives us an impression of how tough it is. The recovery workers, at some point, almost seemed to be clinging on with their fingernails because the side of that valley is so steep. You also may see that expert mountaineers are working in pairs with the investigator just to keep them safe and stop them from falling down.

Now, there is a little bit of good news because last night, talking to commanders of these recovery units, they say that all the visible human remains have probably now been collected. They're moving into a phase where from between now and Sunday they hope to recover all the personal possessions that have been lying around. Things like ID cards, luggage, perhaps even some jewelry that has been lying around as well.

And as you rightly mentioned, you also see some of these recovery crews in the new video starting to rake, starting to probe. That is for a very good reason because now investigators have a hunch that one of the black boxes may have been buried because of the speed of the impact. Let's listen to what they say.

(BEGIN VIDEO CLIP)

YVES NAFFRECHOUX, RESCUE CHIEF (through translator): We may still have two days' work to recover body parts still at the site. Then we'll begin recovering personal belongings. By Sunday and Monday, we should have gathered up the bodies and possessions. Once all the body parts are removed, we'll begin to rake to remove gravel and pieces of soil. Everything will be raked to see if the black box has been buried.

(END VIDEO CLIP)

PENHAUL: Now, we also put the commanders of these recovery units, these allegations that perhaps some cell phone video had been recovered from that crash. And that is what "Bild" and "Paris Match" magazine were trying to describe in their publications. But commanders of the recovery units are categorical. They say to us that, yes, we have recovered parts of cell phones and cell phones, but those cell phones have not yet had any data extracted from them because they are still here close to the crash zone. They have not yet been sent to Paris for crash investigators to extract the data. That is why they do not believe that the information that a cell phone video of the timing of the crash actually exists, Ashleigh.

[12:05:29] BANFIELD: Karl, stand by for a moment. I want to get Mary Schiavo on this.

And is there any possibility, Mary, in a crash investigation, that somewhere along the chain of custody of these pieces of wreckage, that one of those memory cards from a phone might have been looked at on the phone of a rescuer who then may have shown it later to a reporter and it's just ultimately in an evidence bag on its way somewhere? Is that a possibility?

MARY SCHIAVO, CNN AVIATION ANALYST: I think that sounds like the most logical possibility or else someone - like you said, it could have even done a transfer of the data. That's very risky for whoever has it on their cell phone or looked at - put the SIM card in another cell phone and played it that way or made a copy. But I think given the reporters - and they certainly said it seemed like what it was, and given that I have, on other crash cases I've worked, have had cell phone video. It has been recovered. Things have been recovered from cell phones, computers, you name it.

BANFIELD: Sure.

SCHIAVO: They're pretty tough little devices. I think it's likely that it really does exist and the investigators just haven't seen it yet.

BANFIELD: Mary, one other question that I noticed in one of the updates from the searchers, and that is that the - that there is an enormous amount of jet fuel that has contaminated this area and made it thus very difficult for dogs, I would imagine cadaver dogs, to do their work.

SCHIAVO: That's right.

BANFIELD: Does that sound legitimate to you? Does that sound like that would really make this recovery effort more difficult?

SCHIAVO: Well, absolutely. And that's one of the things that, you know, early on after this crash that a number of us were commenting on in that given the - where they were in the flight and the distance they had to go, that the part of the mountainside that was burned did not seem large enough for the amount of fuel that was on the plane. And so there are a couple of ways that can happen. One is that, you know, it doesn't - it doesn't catch fire or, two, there are sometimes in which the explosions actually double back and put themselves out. So whatever reason it was, that fuel clearly did not all burn. And while it's hard on the dogs, a burned crash site is much more difficult even than this, if that's possible to imagine. So the absence of a fire is actually fortunate. BANFIELD: Yes. All right, Mary Schiavo, thank you for that. Karl

Penhaul doing excellent work in the French Alps for us as well. Thank you to you.

And coming up next, as we still try to make sense of this video report that some investigators say just doesn't exist, there is something that does exist. And that is the admission by the airline that it actually did know about the mental condition of the pilot who intentionally killed all these people. So, number one, what does that mean for the civil liability for this airline? And maybe even more important, what about criminal liability? That's next.

(COMMERCIAL BREAK)

[12:11:32] BANFIELD: We are digging deeper into these shocking revelations in the investigation of Flight 9525. Police are denying claims that a horrifying cell phone video exists from inside the cabin of Flight 9525 that apparently captured the final desperate moments of all of those passengers right before the jet crashed into the French Alps killing them. CNN's senior international correspondent Frederik Pleitgen has this report.

(BEGIN VIDEOTAPE)

FREDERIK PLEITGEN, CNN SENIOR INTERNATIONAL CORRESPONDENT (voice- over): A chilling discovery purportedly pulled from the wreckage of Germanwings Flight 9525. Cell phone video shot from inside the cabin purportedly captures the chaos and horror of the final moments before the crash. French magazine "Paris Match" and German newspaper "Bild" say they've seen the video recovered from a memory card by an investigator, though a French official says the reports are, quote, "completely wrong and unwarranted." The publications say from watching the video, it's disturbingly clear the passengers knew what was about to happen.

JULIAN REICHELT, EDITOR-IN-CHIEF, BILD ONLINE: It's very shaky. It's very chaotic. But there are some things that are very much in line with what we know about the investigation so far.

PLEITGEN: According to "Bild" and "Paris Match," as the plane descends, screams can be heard with cries of "my God" in several languages. Metallic bangs can be heard more than three times, which they believe is the captain trying to break his way back into the cockpit with a heavy object.

Towards the end, a heavy shake, reports say, as the cabin abruptly jerks, presumably as the plane's right wing scrapes a mountain. The screams intensify, then silence.

Lufthansa's CEO, visiting the crash site this morning, to pay his respects. This just a day after the stunning revelation that Lufthansa knew Andreas Lubitz had a history of psychological problems before he deliberately crashed the jet. In 2009, Lubitz told his flight training school he suffered from, quote, "a previous episode of severe depression."

JIM PHILLIPS, GERMAN PILOTS ASSOCIATION: If they withheld information intentionally, that's not good.

PLEITGEN: Lufthansa says Lubitz provided that information in medical documents he submitted to resume flight training. After taking a break for several months, he was cleared to fly shortly after.

CARSTEN SPOHR, CEO, LUFTHANSA AIRLINES: All the safety nets we are so proud of here have not worked in this case.

PLEITGEN: Fred Pleitgen, CNN, Cologne, Germany.

(END VIDEOTAPE)

BANFIELD: I want to bring in aviation attorney Justin Green to talk about what it means for Lufthansa's potential liability if, in fact, that airline knew that Andreas Lubitz suffered from severe depression before the airline hired him.

Look, we have been - our conversations have morphed over the days as developments have become more evident. And this is a - this is a jaw- dropper. But what does it mean for the people who have been left behind? Can they now go after punitive damages, which maybe before might have been trickier?

JUSTIN GREEN, AVIATION ATTORNEY: The Montreal Convention does not allow punitive damages, as it's interpreted here in the United States. And I don't believe it will allow for punitive damages for the families in Germany or in France either.

BANFIELD: Because they're big. I mean punitive damages can be big.

GREEN: In - yes. And punitive damages can be very large. And the most - you know, I guess, well-known case would be the Exxon Valdez case where Exxon was held punitive - liable for punitive damages.

BANFIELD: But the Montreal Convention will only cover, and correct me if I'm wrong, will only cover you so long as you didn't do something really wrong.

[12:15:06] GREEN: No, the Montreal Convention actually will make the airline liable for negligence, for willful misconduct, for anything that they do wrong. And there's really no limit to the damages the families can get if - compensatory damages. You know damages for loss of support -

BANFIELD: Sure.

GREEN: Loss of services. Those sorts of things, if the airline did anything wrong. So here, with the notice that the airline now says, which apparently is something contrary to what they said earlier, with the notice that they did know that he had to stop training and they did know that he suffered severe depression, I think the - it's going to be very difficult -

BANFIELD: That doesn't expose them significantly?

GREEN: It exposes them - their responsibility would be to compensate - fully compensate the families.

BANFIELD: And then one last note. I read in "The New York Times" this morning that this really opens them up to the possibility of criminal procedure in Germany or France. Did that sort of smell - pass the smell test to you, criminal procedure?

GREEN: No, it's -

BANFIELD: Just the fact that they knew something and they didn't intentionally do something.

GREEN: Well, here - I mean the most recent example - the Concord crash, because a Continental airplane mechanic improperly fastened a component on the Continental airplane, it fell on the runway. It made the Concord to crash.

BANFIELD: Caused the Concord - the Concord behind it.

GREEN: They went after Continental, the company -

BANFIELD: Yes.

GREEN: For criminal homicide. And so this is - this is a major -

BANFIELD: And how'd they fare? Remind me.

GREEN: What's that?

BANFIELD: How did they fare?

GREEN: Oh, they fared OK. I mean they - it went on for years. Actually just recently, the last part of it was dismissed.

BANFIELD: Did they beat the criminal rap?

GREEN: A large - in large part they did, yes.

BANFIELD: In large part. Do you see that something similar might happen here?

GREEN: I think what's I think more important here is you have to understand that you've got Lufthansa group -

BANFIELD: Right.

GREEN: Owns Germanwings. And it also owns the training program, Lufthansa training, which is where this guy got - this guy got trained. And Lufthansa training may be liable outside the convention and may be liable here in the United States. So that may be a major plus for the families.

BANFIELD: A lot of questions that still need answering. Justin Green, thank you for that.

GREEN: Thank you.

BANFIELD: We appreciate it.

Coming up next, there's also breaking news out of Arkansas where the governor there just sent his state's religious freedom bill back to the drawing board, hoping to avoid a firestorm like the one he just saw play out in Indiana.

(COMMERCIAL BREAK)

[12:20:45] ANNOUNCER: This is CNN breaking news.

BANFIELD: And our breaking news comes from Arkansas, where the Republican governor of that state has just made an announcement. But wait, it might not be the one you were expecting. No, Asa Hutchinson instead said he is not - not going to sign it, at least not yet anyway, the nation's newest so-called religious freedom law. His state's version of it.

The drama there is a virtual replay of the political/economic/social calamity that really has forced lawmakers in Indiana back to the drawing board in some respects. We are now hearing that they may have, quote, "a fix" for what ails their religious freedom law in Indiana and it may be coming as soon as tomorrow. More on that in a moment.

But among the forces lining up against the Arkansas bill is not only the state's largest employer, but also the largest private employer in the nation. You guessed it, that is one very large gorilla, Walmart. The chain says the measure, quote, "threatens to undermine the spirit of inclusion present throughout the state and does not reflect the values we proudly uphold." Read, I don't like this and I'm huge.

Defenders are insisting that these laws, 20 now on the books, several more proposed, merely protect individuals and businesses from being forced to violate their religious faith or practices. And there are strong arguments on both sides of the debate.

My CNN colleague Rosa Flores in Indianapolis and Victor Blackwell are joining us now. Victor's on the phone in Arkansas.

First to you. This was really big breaking news. Give me the rundown of how this morning played out and how Governor Hutchinson came to this decision.

VICTOR BLACKWELL, CNN CORRESPONDENT (via telephone): Ashleigh, what we heard from the governor's office up to this point and even this morning was that he was intending to sign it. But a change of heart, a change of mind today that he wanted this to be recalled by the state legislature to make some changes. He didn't say specifically what those changes are, mentioning the First Amendment, but he said it should mirror the federal law. Listen to what the governor said this morning.

(BEGIN VIDEO CLIP)

GOV. ASA HUTCHINSON (R), ARKANSAS: The bill that is on my desk at the present time does not precisely mirror the federal law. It doesn't mirror it in a couple of ways, particularly allowing the First Amendment to be asserted in the private litigation between parties or the reliance upon the state law and those claims. Therefore, I ask that changes be made in the legislation. And I've asked that the leaders of the general assembly to recall the bill so that it can be amended to reflect the terms of the federal Religious Freedom and Restoration Act.

(END VIDEO CLIP)

BLACKWELL: Now, when the governor was asked if he had the commitment from state legislators that that would happen, he said that he does not. When asked quickly as they were walking away, the president in the senate and the house speaker were asked, are you going to keep people here past the adjournment scheduled tomorrow? And they smiled and walked away. So the question remains, will the governor get what he wants?

Ashleigh.

BANFIELD: Fascinating. OK, stand by, Victor, because we've got two states in play right now. I want to go to Rosa Flores, who's in Indiana.

I think I saw you earlier reporting on the program that proceeds this one, the fix is in, and it doesn't mean that. It means that he actually might know what this fix is to this controversial legislation where you are. So what is it?

ROSA FLORES, CNN CORRESPONDENT: You know, it's clear as mud, Ashleigh. Here in Indiana, Republican leadership meeting with the governor behind closed doors for about an hour, talking about the language to fix this law. Now, here's the peek as to what happened inside.

(BEGIN VIDEO CLIP)

REP. BRIAN BOSMA (R), SPEAKER, INDIANA STATE HOUSE: Still aren't hoped to have this completely resolved tomorrow. So takes work, hard work, and a lot of discussion and we're actively talking, not just with the governor, but members of the corporate and sports community. I've had a couple of meetings with LGBT folks and it's - I think we're moving in the right direction to clarify and preserve religious freedom and dispel the myth that this denies service to any category.

(END VIDEO CLIP)

[12:25:02] FLORES: Now, the speaker said that this would be all, quote, "completely resolved by tomorrow." So, Ashleigh, I asked, so does that mean that the measure is going to be on the governor's desk ready for his signature? And the answer was no. Again, clear as mud, my friend.

BANFIELD: Yes. Well, then you can't come home until this is all dealt with. Rosa Flores in Indiana. Thank you for that. Or for whatever it is you were able to get us from the people there who are not as forthcoming with the information.

FLORES: Yes, you got it. BANFIELD: Good job.

FLORES: So, let me try to clear up some of the muddy issues. Joining me here in New York is defense attorney and CNN legal analyst Mark Geragos, and from Washington we welcome Lori Windham, a senior - she's senior counsel at the Beckett Fund for Religious Liberty.

All right, so, Lori, I want to begin with you. and you'll have to correct me where I'm wrong. I'm piecing together a lot of things very last minute as Asa Hutchinson threw everything for a loop this morning. But first and foremost, the Beckett Fund, as I understand it, has been trying to sort of lay out the blueprints for those who are very concerned about the onslaught of gay marriage and how to sort of navigate around things when that issue threatens what people believe are their religious beliefs and how they can continue to effectuate their religious beliefs and not be encroached upon by these new government freedoms to gays and lesbians. First of all, is that right?

LORI WINDHAM, BECKET FUND FOR RELIGIOUS LIBERTY: What we have done is we've gathered a bunch of scholars who have differing views on gay marriage and differing views on the law to look at, what are the conflicts going to be, where are they going to come up and what can be done about them? And what you've seen in many states is, this has been accomplished not through state RFRAs, which is what we're talking about today, but it's actually been accomplished when state legislatures enact gay marriage laws, where they have also enacted them almost always with some sort of religious protection, especially for churches and religious organizations.

BANFIELD: It gets very complicated for the average viewer out there who hears one narrative versus another narrative in a bumper sticker form. Effectively, a lot of people are saying, and this is what Mike Pence was so angry about, is that his law has been grossly mischaracterized as a license to discriminate. But my question to you is, why shouldn't people believe that when he lines up a bunch of lobbyists behind him who are vehemently opposed to gay marriage and puts them there for the photo while he signs the bill and the clear byproduct, or maybe it wasn't intended to be a byproduct but an actual product of the bill, is that if I walk into a florist and I'm gay and I want the florist to do my wedding, the florist will be protected under this law by saying, I don't work with you types.

WINDHAM: You know, I think it's a really terrible misunderstanding because the -

BANFIELD: Why?

WINDHAM: There have only been a handful of cases around the country under these state RFRAs that have even involved anything to do with gay rights. The vast majority of these cases have to do with religious organizations, especially minority faith groups, who are just trying to have their rights protected, like the Native American kindergarten student in Texas who just wanted to be able to wear his hair in a braid, as his religion required, to his public school. It was effects (ph) of RFRA that let that happen. BANFIELD: Yes, but he's got class protection. Lori, you - you're - you know, come on, you're smart, you know this. You know where the critics come in.

And, Mark, I'll get you to weigh in on this as well because one of the big debates has been -

MARK GERAGOS, CNN LEGAL ANALYST: Well, I - look -

BANFIELD: That there's no class protection for the gay or lesbian couple that comes in and just wants to have a wedding.

GERAGOS: And the problem - Lori is correct that there are only a handful of cases. But the problem is, is the way they set this up is when they have the legislative solution and they say, we're prohibiting gay marriage, then you get a court that will come in and the court will say, no, you can't do that. And so this is the fallback position. This is their default position. This is precisely why Pence lined up the people behind him in that press conference to sign this law so that, OK, if we can't do it this way, we're going to do it another way. That's what they did. They're the ones who opened this up. This is part of the strategy. And to say, well, there's only been a handful of cases, well, that's fine, but they're now going to use this to challenge and to erode what they can't do legislatively or in the district courts.

BANFIELD: Lori, I want to just tell our viewers - and if I can ask - I want to put up a graphic up that compares the federal law with the Indiana law because that's been a lot of the argument on behalf of the supporters of this bill is that it is - it's a mirror of what's already in place in the federal law. It doesn't seem like that's actually the case. In the federal law, it's signed to protect rituals of religious minorities. In the Indiana law, it's designed to protect the Christian businesses.

And then look at this second nugget. In the federal law, the substantial burden to religious exercises is what they highlight there. But in the Indiana law, it's the burden or likely burden. I want to stop there only for a moment because I am very concerned about what a likely burden is. That seems so far-ranging that you get political cover for just about anything you want to do if you don't like gay people, period, and you don't want anything to do with them with your business.

WINDHAM: Well, Ashleigh, I'm going to disagree because actually if you look at the Connecticut RFRA, which has been on the books for a number of years, they doesn't say substantial at all, they just says burden. And so we haven't seen the sky fall in Connecticut. I don't think the sky would fall in Indiana if they keep this language. What you have to do when you go to court is you have to show there's a burden that it's really a serious one on your religious exercise.

[12:30:11] BANFIELD: Yes.

WINDHAM: Showing something that it's likely, in a legal sense, in a legal case, is actually