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LEGAL VIEW WITH ASHLEIGH BANFIELD

Discussion of a Man's Release Following a Vicious Attack; Examining Honda's Airbag Problem; Supreme Court and Same-Sex Marriage; AC/DC Drummer's Case

Aired November 7, 2014 - 12:30   ET

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


ASHLEIGH BANFIELD, CNN ANCHOR: Joey, great police work, sure. But I am still a little aggravated that a man like this was out on the streets two weeks after that horrific attack on a 16-year-old. He took a shovel to the back of her head, he sexually assaulted her, he told her she was going to die. He even asked her how she wanted to die.

JOEY JACKSON, HLN LEGAL ANALYST: Yes.

BANFEILD: He dug the hole. This is a frightening man out there. Why was I not alerted? Why wasn't the rest of that community alerted that this guy that they were looking for was out there?

JACKSON: Very troubling, without question. Very troubling, Ashleigh, but I'm going to go down a different road, OK? Because today and as a defense, I'm often at odds with the police and the things that they do and that they don't do. But today they get major credit. Should there have been a BOLO alert, right? Be on the look out...

BANFIELD: Be on the look out.

JACKSON: ... absolutely. You know, all points, bulletin that type of thing, there wasn't, fine. But in this particular case when you have the community coming together and giving very valuable tips, when you have a dealership that can put a GPS device and say this guy's got bad credit, so we're going to put that thing on to see where you are, where you have tips from the community and you have law enforcement who promised, "We're going to bring her home and we're going to get...

(CROSSTALK)

JACKSON: ... and bring him to justice. You know what, props to the police officers today and to the community for a job well don.

BANFIELD: I just wonder, Joey, if Carlesha would have taken the bus home from work at 9:00 at night, had she known a predator like that was on the loose?

JACKSON: Right. Right.

BANFIELD: You know, that's what upsets me.

JACKSON: Great point. Absolutely. BANFIELD: Let me move to the predator that they say this alleged, you know, attempted killer is. Is he ever going to see the light of day because we're talking several jurisdictions with different prosecution -- they could just keep prosecuting and prosecuting, and they (inaudible) boy scout (ph) in jail.

JACKSON: As they should.

DANNY CEVALLOS, CNN LEGAL ANALYST: Oh definitely. So let's start with Virginia. I mean, the attempted capital killing is going to carry with 20 years to life, but do not (inaudible) the federal charges of just kidnapping. Federal -- any defense attorney will tell you, federal sentencing guidelines are nasty. And the burden of proof is going to be remarkably easy. Really all they need to show is lack of consent, play the video, and the interstate element, well, where did they begin and where did they end up?

BANFIELD: How about part of the sidewalk to the other park. Ask OJ Simpson's kidnapping and then moved...

CEVALLOS: So you bring up a very good point...

BANFIELD: ... moving someone from one side of a hotel into another one?

CEVALLOS: So in kidnapping, most people don't realize that the -- the word is asportation, the degree to which you need to move someone. The distance can be just a foot, it can be virtually nothing. And as you said OJ learned that the hard way. So in this case, we have much more than a foot, we have about 100,000 feet that he moved him, I don't know...

JACKSON: We have across state line.

CEVALLOS: Across state line.

(CROSSTALK)

CEVALLOS: ... which satisfied the jurisdictional element. So, this will be - that federal prosecution will result in at least, I'm guessing under the guidelines around 10 years, just to start with, without all of the aggravating factors that increasingly bump up a federal sentence to something that is usually much nastier than you'll find in a state court.

JACKSON: And quickly, Ashleigh, to Danny's point, that federal prosecution comes after he's returned to Virginia where he is now because he was extradited. And he faces the those charges of attempted capital murder, life and death.

BANFIELD: And those two jurisdictions don't do concurrence. That's what you call consecutive.

JACKSON: Yes, that's right.

BANFIELD: He's never getting out. JACKSON: That means once sentence and then you face the next sentence so he won't see the light...

BANFIELD: ... give you 140, you'll be good. Thank you, guys. I do appreciate, Joey and Danny, always.

CEVALLOS: My pleasure.

BANFIELD: Thank you. We got some shocking new information about that air bag recall that's affecting millions of drivers all around the world. Now, former workers are saying that the company that made those air bags, knew -- knew that they were dangerous and didn't do anything about it.

(COMMERCIAL BREAK)

BANFIELD: So here is the tip of the iceberg, Honda has expanded a recall of vehicles made from 2001 to 2005 because their air bags could explode, that's on top of 5 million cars that the company has already recalled. That was the iceberg, right? The tip of the iceberg. But here is the big iceberg. Honda's move comes after allegations that the air bag maker, Takata, knew that those air bags were potentially deadly to drivers and they knew about this 10 years ago.

Again, the allegation that the Japanese company did not fix that problem, according to the New York Times, Takata executives instead deleted the test results. And then just went ahead and order the questionable air bags, they ship to vehicle assembly plants all around the world. In it's report, New York Times says that the flawed air bag have led to four people dying and at least 139 people hurt.

Our Rene Marcia is tracking this story for us. That is just a lot of really heavy, heavy allegations. What do the Americans think about this?

RENE MARSH, CNN GOVERNMENT REGULATION CORRESPONDENT: Right, Ashleigh. Gross allegations of a cover up by a major air bag manufacturer. Now, this morning, we now know that two senators, Richard Blumenthal and Ed Markey, they are calling on the Department of Justice to open a criminal investigation. The senators said in a statement this morning, "If the reports are true, the company must be held accountable for the horrific deaths and injuries that its wrongdoing caused."

Now I did speak with attorneys for people who say they were injured when an exploding Takata air bag shut out that metal shrapnel. Those attorneys now tell me that they are amending their law suits to now include language that reflects a cover up. I also spoke with NHTSA, the federal agency responsible for keeping the cars that we drive safe, they have this to say, they say, "Any additional information that may aid our ongoing investigation is welcome, and we encourage current and former employees to please contact NHTSA directly. Claims such as these have raised additional concerns about Takata's handing of the air bag issues. And are one of the reason we're compelling them to produce documents and answer questions." They go on to say they are actively investigating the manufacturer, Ashleigh. BANFIELD: So, OK. I like the part that says current employees, and compelling them to talk. Is anyone at Takata talking? Are they talking to the officials? Are the talking publically? Are they saying anything about that?

MARSH: Well, I reached out to Takata today, specifically to ask about these allegations from these former employees quoted in that report. No comment at this point from them. They were awfully quiet, I'd left a phone call as well as e-mail but have not received a response.

BANFIELD: And I guess the NTSB isn't necessarily or the National Highway Transportation, they're not necessarily forthcoming as to whether there's a quite talk between them

MARSH: We do no know that they are cooperating as far as what we're hearing from NHTSA's as far as handing over the documents. But they have until next month to hand over all of the documents. So, that process is ongoing.

BANFIELD: Did you know and I'm sure you do, it's been a record year for car recalls, like more than 52 million vehicles, that's one out of five. I'm sure this is adding to it.

MARSH: Yes. Certainly. I mean when you look at this specific case here, we're talking about nearly 8 million cars, 10 different automakers affected here. The majority of them though are Honda's. And so we should also mention not only is NHTSA investigating Takata, but they're also investigating Honda.

BANFIELD: A lot of logos up there on the screen. Rene Marsh, thank you. Appreciate that. Have a good weekend.

Quite a setback to same sex marriage and that movement because an appellate panel has upheld a ban on those unions in four states, which means no go. No gay marriage in those four states. Well why is that especially since it seems to have been going the other way in so many other jurisdictions? And is that going to mean a reversal, you know, anthem (ph). That's story is next.

(COMMERCIAL BREAK)

BANFIELD: The Supreme Court could finally be forced to decide the constitutionality of same sex marriage because a federal appeals court in Cincinnati has just upheld a ban, a big one, on gay marriage in Ohio and Michigan and Tennessee and Kentucky. The ruling is definitely in conflict with other federal appeals court decisions that overturn those bans on same sex marriage in a number of states saying, "That's just not right. Gay people should be allowed to marry too."

Joining me to talk about the court's role in same sex marriage and what happens next, senior legal analyst Jeffrey Toobin. So here's the thing that I think a lot of people maybe are confused about at times. It seemed like there was this ball rolling across the country and one by one, each of this circuit decisions was going away of gay marriage. And then boom, comes the sixth circuit and said, "No, we're going to keep that ban in place." Why does that all of a sudden get the attention of the Supreme Court when the others did not.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Because the Supreme Court exists. One of the reasons we have a Supreme Court is to settle disputes among the lower courts. Now we -- and they happen fairly often. It's not like this is some novel thing. There are often legal issues where some appeals courts decide the same issue one way, some decide the other. That's why we have a Supreme Court. So this pretty much guarantees that the Supreme Court will address this issues here.

BANFIELD: So the Notorious RBG, Ruth Bader Ginsburg...

TOOBIN: Ruth Bader Ginsburg, yes.

BANFIELD: That is truly her blog, right? I mean...

TOOBIN: Well -- she doesn't have her own blog.

BANFIELD: Well, did -- OK. Give me a break. So what she said was, now if that court, the sixth, should disagree with the others, then there will be some urgency in the court taking the case. But when all the courts of appeals are in agreement, there's no need for us to rush or step in. Effectively what you just said. Here's what I'm not clear on, why did the sixth circuit see these things because it sounded to me -- and I'm a lay guy (ph), that it was kind of social commentary, their decision, as opposed to something steeped (ph) in actual contemplation of jurisprudence law. I don't get where they were.

TOOBIN: I would put slightly differently. The judge in that case, Jeff Sutton is a very conservative George W. Bush appointee. The dissenting judge was Martha Daughtrey, a more liberal Clinton appointee, these political issues affect the judiciary. Bush nominees tend to look at this issue one way, Clinton and Obama issues -- judges look at it in another way.

BANFIELD: I usually think that in the Supreme Court.

TOOBIN: It's lower courts too. When you get to really high profile, political type issues like, this...

BANFIELD: Really high profile.

TOOBIN: Absolutely. That's why judicial confirmations are such hot topics in the Senate even with lower court judges because the politics...

BANFIELD: Even Ms. Daugthrey said though -- but she even made a comment about this. Like you said, circuit court judge Martha Craig Daughtrey. In her dissent, she said, "My colleagues view the plaintiffs as social activist who have somehow stumbled into federal court." This isn't social activism, I means there're cases that need to be decided based on law, not on concept.

TOOBIN: Well, and in fairness to the majority in this case, Jeff Sutton said, "Look, if we are going to look at the original intent of the framers of the Constitution, they did not think that they were legalizing same sex marriage." Which is probably a fair point, except that Martha Daughtrey would respond that we have had lots of cases since then interpreting the Constitution which leads to a conclusion that there is a right to same sex marriage.

BANFIELD: I only have 10 seconds. When is this going to be (inaudible)?

TOOBIN: Probably by June.

BANFIELD: By June.

TOOBIN: Decided by June.

BANFIELD: Decided...

TOOBIN: I think this will take at this term.

BANFIELD: You busy in June?

TOOBIN: I -- this is what I do. This is...

BANFIELD: It's what you do.

TOOBIN: This is my busyness.

BANFIELD: But you're on contract -- don't be busy in June. Jeffrey Toobin, thank you.

TOOBIN: No, I have a work plan.

BANFIELD: Stick around because we've got a case that is right up Jeffrey Toobin's alley. Yes, the Supreme Court guy loves really hard rock. And the drummer from a popular band was charged with a long list of dirty deeds -- yes, this is a hint as to what band. And now the most serious charges against AC/DC's Phil Rudd have been dropped. But what happened and what was going on in that courtroom? It's next.

(COMMERCIAL BREAK)

BANFIELD: Obviously, watching all of the head bobbing going on right now in the studio. The guy on the drums on that stage, AC/DC's Phil Rudd. He's also a guy charged with one fewer dirty deed than he was yesterday.

Less than 24 hours after Rudd first appeared in a New Zealand courtroom, prosecutors have decided to drop one of the charges they've laid against him on attempting to have two people kill. A charge of threatening to kill is still in the works against him and charges of possessing marijuana and meth. Yes. Those are still afoot for Mr. Rudd as well. That rocker's lawyer said that police should have checked with the crown solicitor before hauling him into court.

And I'm going to quote now, "Citizens are entitled to a responsible exercise with the power to charge which, as is proved here, can give rise to potentially irreversible damage if that power is not exercised responsibly. Mr. Rudd is considering any possible remedies he may have."

I want to bring back my legal team, Danny Cevallos, Joey Jackman, Jeff Toobin. Each of these three asked to be on this panel, especially this one.

TOOBIN: You know why? You know why?

BANFIELD: Go.

TOOBIN: Because you are wrong that AC/DC is not a hair band.

BANFIELD: They are not a hair band.

TOOBIN: It is a hair band. Look -- did you see the video? Did you see the clip?

BANFIELD: Angus Young has a lot of hair that moved a lot. The 80's band are hair bands. They usually wear make up, not KISS, but the others, like Poison...

TOOBIN: Metallica. Metallica is also a hair band.

BANFIELD: No. Nope.

CEVALLOS: I'm going to back you up on this, Ashleigh.

BANFIELD: Does anyone want to talk...

(CROSSTALK)

CEVALLOS: I'm going to totally back you up. They are not a hair band.

BANFIELD: Thank you.

CEVALLOS: That's Poison, Whitesnake...

BANFIELD: Whitesnake.

CEVALLOS: That's pretty much 1987. Jeff, I was seated in front of the T.V. watching seven hours of MTV back when they play videos. Now, Joey...

BANFIELD: (inaudible), Danny.

CEVALLOS: ... Joey (inaudible) is more of a Barry Manilow, Air Supply guy. So I don't think he's going to have a whole lot to add.

JACKSON: Air Supply, you got to love it.

TOOBIN: Air Supply, that is pathetic (ph).

BANFIELD: So I'm going to reign you all back into the law here...

CEVALLOS: Which is tough to do.

TOOBIN: Right, yes.

BANFIELD: Which is hard to do because I -- such a huge AC/DC fan.

TOOBIN: Really come one. Who knows anything about New Zealand law.

BANFIELD: I know, right?

JACKSON: You do, Jeff.

TOOBIN: I don't. I haven't even a prosecutor there for -- I don't know anything about New Zealand or their law but -- can we play more video?

BANFIELD: We'll keep the music. We can maybe play the music under if we can. Scotty (ph), our director, can we ask for a little sound track for our segment.

TOOBIN: There we go. There we go. I got to look at them.

JACKSON: Listen.

BANFIELD: Because they are so much interesting than us, right? They really are.

JACKSON: Ashleigh, there's a...

BANFIELD: Angus Young in particular. I'm glad it wasn't Angus. I'm just glad it wasn't Angus. Wait, real quickly.

JACKSON: There's a legal reality to any prosecution, Ashleigh.

BANFIELD: Tell me.

JACKSON: And here's the legal reality. Before you go forward with any prosecution, the police ought to be consulting the district attorney, right? Whether it's the crown solicitor or whatever you call him, to ensure that the charges are sufficient. And when you don't do that and as a police entity, you independently exercise your prosecution lack of authority, and then you can talk to the prosecutor, Ashleigh. When the prosecutor says, "Oh, yes. Well, we really don't have sufficient evident to charge him with that, that becomes problematic whether it's New Zealand, the United States or anywhere else.

TOOBIN: You might even say, it would put you on the highway to hell.

BANFIELD: He did it. He went there.

CEVALLOS: Thunderstruck. How dare you?

BANFIELD: You're Thunderstruck, are you?

CEVALLOS: You know, I have to say this. You know, on one level, you say, "Well, how dare they withdraw all these charges right away," but as a defense attorney, when you see so often criminal investigations starting with an initial premise and the prosecution just sticking doggedly to it, in a way you also have to credit them for saying, "You know what, we need to drop these charges."

BANFIELD: You know, (inaudible) on this one. Here's what I want to see, they look like they're laying the groundwork for going after misconduct. In the United States, it's really hard to do. Really hard to do. I don't know about New Zealand though because this guy is massively famous. He's going to miss probably a tour. They got a new album out.

TOOBIN: You got to be kidding me. AC/DC is still touring?

BANFIELD: Yes. They're touring.

TOOBIN: So how could they possibly...

CEVALLOS: Absolutely.

JACKSON: All Jeff wants to talk about is AC/DC. Look at that.

(CROSSTALK)

CEVALLOS: They're the biggest touring bands in the world. They're huge. AC/DC is massive...

JACKSON: And because they're so huge, Ashleigh, when you have arrests like this that jumped the gun and they're predicated upon facts which is supported by evidence...

BANFIELD: It can be damaging.

JACKSON: It's very damaging to the individual and of course your faces paraded for everyone to see...

BANFIELD: So it's very clear. It's very clear from this panel that during law school, you were not listening to AC/DC or (inaudible) you're studying...

JACKSON: I was studying hard. It's a whole another story.

BANFIELD: For those about to rock, I salute you.

JACKSON: There you go.

BANFIELD: Have a great weekend.

CEVALLOS: There you go.

BANFIELD: Thank you all.

CEVALLOS: Thank you, Ashleigh. Be well.

TOOBIN: Bye.

BANFIELD: Danny, Joey, and Jeff. Awesome. What a Friday. Thank you for watching. Jim Sciutto, my colleague, is going to sit in for Wolf today and he's going to start right after a quick break. Have a good weekend. (COMMERCIAL BREAK