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LEGAL VIEW WITH ASHLEIGH BANFIELD

Kerry Kennedy Fights Impaired-Driving Charge; Jeffrey Toobin Criticizes Supreme Court Justice Clarence Thomas; Thomas Silent at Supreme Court; Religious Freedom Bill

Aired February 24, 2014 - 12:30   ET

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


(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN ANCHOR: The daughter of Robert Kennedy is on trial today in New York.

Kerry Kennedy is charged with driving under the influence after a 2012 collision with a tractor-trailer.

Nobody was hurt in the crash, so it does seem kind of like it's a small case that shouldn't make the media.

Prosecutors claim that Kennedy knew a sleeping pill -- knew that she had taken a sleeping pill and that it had impaired her judgment.

But here's Kennedy explaining how she could have mistakenly taken the drug at a news conference shortly after the crash.

(BEGIN VIDEO CLIP)

KERRY KENNEDY, DAUGHTER OF ROBERT KENNEDY: I volunteered that I have two prescriptions, one that I take every day for thyroid condition, and another, Ambien, which I take on average once a month.

To help me sleep. I told the officer that it was theoretically possible that I had mistakenly taken an Ambien rather than a thyroid pill, earlier that morning.

(END VIDEO CLIP)

BANFIELD: So, Kerry Kennedy is fighting back, and is here's why it's weird because it's public. She is making a very rare choice to take something that's a misdemeanor charge all the way to a jury. To a jury.

This charge carries up to a year in jail, but with no prior record, it's unlikely that Kennedy would get any jail time, if she were even convicted at all. But there is a lot of conviction rates on those jury trials.

Joey Jackson and Paul Callan join me now. I couldn't understand this. It's so, so rare someone would take something this small all the way -- especially if you're a public figure, you would think get rid of it, plead it down, you know, and you can certainly plead these ones down.

Why -- what's the -- what do you think the reason is behind her decision to do this, and then ultimately end up as a big case on television and in the papers?

PAUL CALLAN, CNN LEGAL ANALYST: I think there are two reasons. One, it's a pragmatic reason.

If she pleads guilty, which is the only alternative, if you don't want to go to trial, she'll lose her driver's license for a period of time, and she does a lot of driving up in Westchester, so she doesn't want to lose her driver's license.

Secondly, I think if -- it's a public-image thing. If she pleads guilty to this and admits that she knowingly took this sleeping pill while she was driving, I think it damages her public image.

Interestingly, she has hired Gerald Lefcourt, who is famous for representing the Black Panthers and he was -- he represented a lot of radicals in the 1970s, and also an attorney, William Aronwald, who's a very well-known guy up in Westchester. So, she's got this huge legal team defending her.

BANFIELD: This is an impaired driving case with a big front page in "The New York Post" today. It just seems to me that if it's this credibility thing, it would go away a lot faster, a lot more quietly, if she didn't do that.

JOEY JACKSON, HLN LEGAL ANALYST: True.

BANFIELD: But the weird thing is, a lot of public figures do this.

JACKSON: You know, it's interesting, because when you get cases like this, Ashleigh, a lot of times what you'll do is you'll go into the district attorney and you'll make a proffer.

And you'll pretty much go into the district attorney and say, look, this is what happened with my client, and it's a question of fact. It's a believability issue. Was it an involuntary, accidental ingestion of this Ambien or was it something she intentionally did?

But oftentimes in speaking with the district attorney, you could prevail upon them to offer that plea bargain that you discussed.

Generally they won't give an outright dismissal, but certainly they would offer a plea bargain that wouldn't be detrimental and have the effect of losing the license, potentially, or in this case, there's some immigration consequences in terms to her travel internationally to other countries.

BANFIELD: The first thing I thought was, if you get your six jurors -- she would ultimately be entitled to six jurors -- JACKSON: Yes.

BANFIELD: -- you could certainly get at least a couple of them to think, you know, I might have done that.

But with a bench trial, it's one guy. It's the judge.

JACKSON: And they've heard it all.

BANFIELD: And they've heard it all.

CALLAN: But, you know, even so -

BANFIELD: But they lose so much more. There is only point-two of all cases in Westchester County that actually prevailed back in 2012 -- point-two.

CALLAN: Yes, but is this a fascinating defense. She is saying, basically, she has like on the counter in the bathroom or in the kitchen a thyroid drug and the Ambien that she takes once a month.

They're in similar bottles and the pills look similar, and she accidentally takes the Ambien.

Who takes Ambien if you're going to be out driving around? It's not -- it wouldn't be a common thing for somebody to do, so I think it's a pretty good defense.

JACKSON: It's plausible.

CALLAN: It's accidental ingestion of a drug. You almost never hear it in these intoxicated driving (inaudible).

BANFIELD: But do judges worry about saying, OK, famous person, I'll let them off, and I'll take the wrath.

Make it quick.

JACKSON: Here's the problem, Ashleigh. Here's what concern I have. Justice needs to be equal for everyone, and in this case, a typical client that I represent, the D.A. may indeed plead it down, unlikely that they'll dismiss it, but plead it down.

Why should she be treated differently because of her celebrity? It cuts both ways.

BANFIELD: In fact, they're never treated the same, because the average guy would never have it out on television. His boss would never find out about it. But the celebrity --

JACKSON: But they offer the plea deal to the average person. Why not offer the deal to her?

CALLAN: Well, and the average person can't afford Jerry Lefcourt and Aronwald.

JACKSON: Average person can't afford you, Paul.

BANFIELD: There you go, right there. That's the argument.

The average person could not afford these two guys. They are spectacular at what they do, Joey Jackson and Paul Callan. Thank you, as always, for your expertise.

Got a couple of other things. Authorities are actually searching for a convicted child rapist who apparently cut off his ankle monitor and left a group home.

And, if you are in Denver, this is where it happened. Pay special attention. Eric Eugene Hartwell was convicted of raping a child in '91. He is on supervised parole for life.

This is not the first time that he's vanished, either. Back in '09, he did the same thing. He cut off his ankle monitor and he left a halfway house in Washington state. If they catch him, do you think he'll get an ankle monitor again? Stay tuned to this case.

Disturbing video of a gray driver in a Honda Accord hitting a man at a gas station in Vegas and then just moving on. An employee says the man was on the ground for 10 minutes, screaming. This is what I don't understand.

First of all, this guy drives off. Second of all, as this poor man is screaming, nobody comes running to his aid. They just stare at him. He was hospitalized with serious injuries. This happened on February 6th. Two weeks later, police still don't know what set off this incident or who the driver of the Honda is. Very distressing.

When cases are being argued, Supreme Court justices routinely ask so many questions, the lawyers don't often get to actually pitch their cases. They get interrupted so often.

But that guy? Silent for eight years. Not one question asked of any of the presenting attorneys for eight years. Not one question.

Our Jeffrey Toobin has decided it is time to speak out about this. You're going to hear what Jeffrey Toobin has said and I'm going to take him to task for it. In a moment.

(COMMERCIAL BREAK)

BANFIELD: During a Supreme Court hearing today on presidential -- President Obama's powers, the justices asked the lawyers, who were presenting, a whole lot of questions.

But one voice that you rarely, if ever, hear is that of Justice Clarence Thomas. President Bush nominated him as an associate justice of the Supreme Court, and he took his seat back in October of 1991. And the last time he asked a question was eight years ago. Other than that, silence.

Maybe deafening silence, according to Jeffrey Toobin, who has written extensively about the Supreme Court. I'm not kidding. Here it is, "The Nine."

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Right.

BANFIELD: You really are a great, definitive resources on the justices and today in "The New Yorker" you wrote something very scathing about this lengthy silence. Let me just give the caveat, but for a small utterance, I think it was last year or two years ago, it was a joke that caught up on the mikes but it had had very little to say. This is what you said.

"His behavior on the bench has gone from curious to bizarre to downright embarrassing for himself and for the institution he represents."

So I think coming out of that, my first question to you would be, what's wrong with not talking? Because the other ones sometimes talk too much.

TOOBIN: Well, the idea of getting your day in court, which is fundamental to American democracy and American law, is that you interact with the court, that the court is not just a bump on a log, that they are actually participants in the process.

And it is no doubt true that the eight other justices are sometimes, perhaps even overly, aggressive with the current lawyers.

But I think eight years of silence shows contempt for his colleagues, it shows contempt for the whole process and I think it's embarrassing.

BANFIELD: But don't you think that's sort of an exaggeration, when you say contempt?

I only say that, because -- in his defense, he says the briefs are plenty. The briefs give me what I need. And then I get the arguments. Isn't that fair?

TOOBIN: No. Not for eight years. There is certainly no reason to ask a question in every single case. And there is certainly -- true, the briefs give a lot of summary about what the cases are really about.

But there's a reason the Supreme Court and all courts have oral argument, is because that is part of the process. And eight years of silence is ridiculous.

BANFIELD: I understand when you say in your piece what if all nine chose to go that route --

TOOBIN: Right.

BANFIELD: -- and we had effectively silence in the court. And two attorneys could come and present their cases and that would be that. It would -- another reason why we should have televised proceedings, please. It is our process. It belongs to us.

TOOBIN: And, also, the arguments against cameras in the courtroom, intimidation of witnesses, worry about juries. None of that applies. None of that applies.

BANFIELD: These are seasoned lawyers!

TOOBIN: And the cases are so important.

BANFIELD: So, look, I know that a lot of our audience knows exactly what Clarence Thomas went through in his confirmation process. It was blistering. There was just filthy description and accusations that, you know, I think I had probably scarred him in some way. You can't go through that without having some effect. And there's something that you wrote in "The Nine" that stood out to me this morning and I went back and looked.

And you wrote in 2007 he gave one of his rare interviews to "Businessweek" and he said he thought the news media were, quote, "universally untrustworthy because they have their own notions of what I should think or I should do."

Do you think that that has informed his decision to have the style that he has on the bench?

TOOBIN: Absolutely, absolutely. I think at this point --

BANFIELD: What is wrong with that?

TOOBIN: Well, because taking it out on the litigants and the process, your own anger at the news media. I mean if he wants to be angry at the news media, that's, of course, his privilege.

BANFIELD: But you're suggesting it's out of anger as opposed to out of absorption.

TOOBIN: No, it's - I think it's out of anger. I mean I don't -- I think, you know, a week of silence, a month of silence, can have all sorts of reasons. Eight years of silence is - is (INAUDIBLE).

BANFIELD: By the way, you also mention in your book what a nice guy he is to the people - he's great to the clerks.

TOOBIN: He's very - very popular. And it also -

BANFIELD: Popular. You know -

TOOBIN: And it is also true, he writes as many opinions as anyone else.

BANFIELD: He does.

TOOBIN: And he has written some very important opinions giving --

BANFIELD: He writes a lot. He reads a lot.

TOOBIN: Giving conservative ideas, bringing them to the mainstream. He is by far the most conservative. He gets a lot of unfair criticism, I think -

BANFIELD: Yes.

TOOBIN: For being kind of a -- someone who just copies Justice Scalia. He is an independent thinker. He's far more conservative that Justice Scalia.

BANFIELD: He's brilliant. He's brilliant.

TOOBIN: So I - you know, it's not that he isn't capable of doing the job.

BANFIELD: It's good to discuss it. No, he's very capable. He's a very, very smart man. Clearly, if you read his opinions, you know, he is --

TOOBIN: But opinions are not the whole job and --

BANFIELD: I'm glad you brought it up. It's worthy of discussion.

TOOBIN: And putting - yes. Eight years is a long time.

BANFIELD: (INAUDIBLE). You're way smarter at this than I am, too. However, I do think style -- everyone has a different style.

TOOBIN: That is true.

BANFIELD: I talk way too much. Jeffrey Toobin, thank you.

TOOBIN: That is not true.

BANFIELD: And the producers are all saying, God, are you kidding me? Amen, does she ever. Thank you, Jeff.

The state of Arizona has passed a bill that would allow businesses to discriminate against gay people on religious grounds. What-what? Is this 2014? Is the governor actually going to sign that thing? She talked about it today and we're going to have what she had to say, right after this break.

(COMMERCIAL BREAK)

BANFIELD: President Obama and Vice President Joe Biden are meeting with the National Governor's Association at the White House today. And last hour, the president said that he hopes working with the governors will be more productive than working with Congress.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: This has to be a year of action. And I'm eager to work with Congress wherever I can. My hope is, is that despite this being an election year, that there will be occasions where both parties determine that it makes sense to actually get some things done in this town. But wherever I can work on my own to expand opportunity for more Americans, I'm going to do that. And I am absolutely convinced that the time is right to partner with the states and governors of -- all across the country on these agendas.

(END VIDEO CLIP) BANFIELD: And Vice President Biden also praised the governors for knowing how to get work done. One of those governors is the Arizona governor, Jan Brewer, who is in Washington right now with the National Governors Association. But when she gets back home, there is a bill that is sitting on her desk. And to call it controversial would be the understatement of this hour, probably this week and this decade.

It would allow businesses to deny services to gay customers on the basis of religion. Governor Brewer said today that she's not going to decide if she's going to sign it until she gets back to her state. People who oppose the measure are furious about it. Just look at this one response from a pizzeria in Tucson. The pizzeria tweeted a sign that reads "we reserve the right to refuse service to Arizona legislators."

Not sure if it's based on religion or politics. Sounds like the latter. But our Nick Valencia is following this story right now.

This, Nick, it sounds like when you read headlines and this story, it sounds like it's sort of a 1950s lunch counter-esque kind of policy. But what kind of support is this getting from the people in that state?

NICK VALENCIA, CNN CORRESPONDENT: Well, Governor Brewer has until Friday to decide whether or not she's going to sign this into law. And already today a coalition of business leaders there in Arizona, Ashleigh, coming out and asking the governor to veto the bill. I want to read part of this statement that CNN attained. CNN obtained just a little while ago. It says, "as leaders in the business community, we cannot support measures that could expose our businesses to litigation, no do we want to send the message that our state is anything but open an attractive place for visitors."

Now, religious conservatives who support this bill have long maintained that this isn't about discriminating those in the gay community, but rather it's about religious freedom and it's about the right to express their religious beliefs. Gay activists and Democrats, they aren't buying that. They are livid. They say that this is a psychological blow to the gay community there in Arizona whether or not this law is passed or written into effect. And they say that this is going to make being gay in Arizona extremely difficult.

Ashleigh.

BANFIELD: But is she actually - what's the common wisdom down there, that she's going to come back to the state and sign it? Because right now she's saying I'm not going to decide until I get back there.

VALENCIA: Well, to be frank, the governor is sort of speaking out of both sides of her mouth here. She has vetoed legislation that was similar last year, but at the same time, last week she came out and she defended the right of businesses to deny services (ph) to some people. And what's interesting about all this, we are focusing on Arizona, Ashleigh. But it's not just Arizona. There are a handful of states, five states to be exact, that have this unique provision, these religious freedom bills that they are trying to push forward and sign into law.

And these unique provisions in these five states that you're looking at here, they have the right to deny service to those -- or employment to those in the LGBT community. Other legislations, like in Kansas, they're more wide-ranging and allow, on the basis of religious freedom, to deny services to anyone. So it's really about, you know, a bigger issue here. It's not just Arizona. It's a handful of other states that want to push forward similar religious freedom bills.

Ashleigh.

BANFIELD: Wow. Keep us posted on what happens when the governor gets back. Nick Valencia, thank you.

VALENCIA: You bet.

BANFIELD: So this was a story - I think you could just call it the whack heard round the world. Do you remember when the U.S. figure skater, Nancy Kerrigan, was hit in the knee as part of a plot to keep her from competing? She has not spoken about this. She's been silent for 20 years. And now she's talking. You'll hear what she has to say, next.

(COMMERCIAL BREAK)

BANFIELD: Nancy Kerrigan is opening up for the first time about that infamous whack heard round the world. That 1994 attack that knocked her out of the U.S. figure skating championships, orchestrated by her rival, Tanya Harding's ex-husband. It has been 20 years. Hard to believe it's been 20 years since an associate of Harding's ex did that. They just whacked her on the knee in front of everybody with a baton. It happened six weeks before the Lillehammer games, but Kerrigan recovered in time to take home the silver medal. And she talked to NBC about this attack, finally, she talked, and how she feels about Tanya Harding now.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Would you say you've forgiven her?

NANCY KERRIGAN, 1994 OLYMPIC SILVER MEDALIST: I don't know. I mean, I don't think about it, really. I mean, when I read transcripts with the FBI, these -- they planned to kill me at one point. That was one of the options, to kill me over a sporting event. I mean, what? It's crazy. And there were all these other brutal options that they were thinking about doing to me.

UNIDENTIFIED MALE: Yes.

KERRIGAN: So I don't - I mean, I don't know if -- like you said, I've moved on. I don't know if I think about forgiveness. I'm just like - I hope she's happy. I understand she has a child of her own and a husband, and I hope she can be happy and be able to move on.

(END VIDEO CLIP) BANFIELD: Tonya Harding maintains her innocence to this day, telling NBC, quote, "I've apologized so many times. She is not worth my time anymore." Her ex-husband, Jeff Gillooly, changed his name, big surprise there, changed it to Jeff Stone. He remarried and he's living in the Portland area. After getting out of prison, Harding's former body guard, Shawn Eckardt, changed his name to Brian Griffith. He died of natural causes in '07 at age 40.

Shane Stant, the hit man, says he became a Christian in prison and has since turned his life around. Stant's uncle, Derrick Smith, also the getaway driver, is the one who called him to ask if he would take down a skater. And he now lives in Montana. Twenty years.

Thanks for watching, everyone. Good to have you with us. Stay tuned. My colleague, Wolf Blitzer, is up next with "Wolf." It starts now.