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LEGAL VIEW WITH ASHLEIGH BANFIELD

FBI Admits to Years of Potentially Faulty Hair Evidence; Baltimore Man Dies in Police Custory; Woman Who Stops Abuse of US Flag Arrested. Aired 12:30-1p ET

Aired April 20, 2015 - 12:30   ET

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


[12:30:00] (COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN HOST: Now to this incredible revelation from the FBI, the FBI admitting that it might have helped put hundreds of potentially innocent people behind bars or much worse.

In a story that was first reported by the Washington Post, official say an elite FBI forensics unit gave flawed testimony on microscopic hair comparisons in nearly 300 trials from the late 1970s all the way through the 1999.

And 95 percent of those trial expert witnesses were found to have done something we hear about every so often over staffing the analysis to favor the prosecutors in the case. And this just might be the beginning.

Now 1,200 cases still need to be reviewed. The problem is for some people that review is going to come way too late because 32 defendants were sentenced to death and 14 have either been executed already or they've died waiting for their day in the chair or the needle.

Joining me Forensic Scientist Larry Kobilinsky and HLN Legal Analyst Joey Jackson, Joey is a law professor and, you know, what guys I got to say this is just one more piece of a pile of craft that I get so frustrated with. You talk about death penalty and we are this pathetic at the science or the junk science or whatever you want to call this hair analysis.

First of all Larry Kobilinsky how does this happen? What kind of science are we talking about when you're looking at hair comparison?

LARRY KOBILINSKY, FORENSIC SCIENTIST: Ashleigh for 30 years we were doing hair analysis through microscopy, looking at the characteristics on the surface of the hair or the inside of the hair and comparing evidentiary hair, hairs found at the crime scenes with hairs from suspects and determining if there was an exclusion or not.

This was state of the art for 30 years. And in fact exclusion is still considered absolute, its inclusion that's where the problem is. Once we had mitochondrial DNA that came about around 2000. We suddenly went back and look at the analysis and we found 11 percent of the time the conclusions were wrong.

BANFIELD: OK, so are you telling me in late people terms that the science was great back in the 70s slowly it started to reveal itself as kind of junky, we got better at it. And yet the sluggish FBI did not keep up with what was happening in the lab.

KOBILINSKY: I'm sorry to say that we've known about this for years and it just taken its time till the FBI finally decided enough is enough, we've got to back and look at all those cases that were adjudicated because of hair analysis by microscopy. They got to go back, they got to find that window of mistakes, justice has to be done.

[12:35:12] JOEY JACKSON, HLN LEGAL ANALYSIS: Yes.

BANFIELD: So let me read the FBI statement really quickly so, when have told CNN about these trials "The Justice Department and the FBI are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance.

Joey Jackson how do you get relief when you're dead?

JACKSON: You don't, it becomes a problem at first...

BANFIELD: It's a big problem.

JACKSON: It's a major problem and the interest of full disclosure I've consulted Dr. Kobilinsky in a number of real cases that I've worked on. And his been instrumental in terms of getting to the truth, it's not about a conviction, its not about an acquittal, it's about what DNA has on there and it is true.

And so I should disclose that. The second thing is, is that, you know, it can't be the cause of doing business, when you had FBI agents and a laboratory that is certainly in charge of examining critical information.

You know, Ashleigh at every trials as I just noted it's a search for the truth we don't know what happened but we're recreating events that occur on the street and then some outside environment.

BANFIELD: It's a search for the truth not a search for a win.

JACKSON: Exactly that has to be the standard, its not about as a prosecutor do you win do you lose, it's do -- you do justice and that therefore if you have things that are being examined and not only do you have exaggerations predicated upon those examinations but you have in-court testimony that exaggerate facts and misstate fact people lose their lives, people go to jail and people's life are upturn, you know, it's death row as you noted that's hopefully it's -- I mean how do you really reward or compensate someone who is dead, you can't.

BANFIELD: You can't...

JACKSON: But there other people...

BANFIELD: ... but you can bring your wheelbarrow up to the Department of Justice and say fill it, full of greenbacks because you have taken the only thing that ever mattered to me. Yet it is so hard sue the government does this kind of garbage make it a lot easier?

JACKSON: It certainly could absolutely. And, you know, you can sue the government there's a variety of things you can. And this leads to a broader discussion Ashleigh.

BANFIELD: You got to be pretty malicious though in the part of the prosecutors.

JACKSON: You could do but the reality is, is that there's a couple things they're going to examine. The first thing is we should say is that simply because things are misstated in court. They should never happen. The court is going to look at was it harmless at error (ph). In other words were you guilty anyway even though there were misstatements and the event that the answer is yes you have a problem.

And the event that things are fabricated against you, when you should not be in jail but for the misstatements that raises another case and we should say that 30 of 50 states have wrongful conviction statutes, the federal government does as well. So you could get compensation.

BANFIELD: No. I just I have to close this segment out Larry by just asking you want to believe that this is an FBI, who wasn't nefarious in coming into court and doing this. This is really what they believe and yet I feel like they rumblings that they just didn't want to believe were true.

KOBILINSKY: Well let me just reassure you there's a National Commission on Forensic Science that are setting new standards for hair analysis and ballistics, by mark evidence and a lot of other things, things are changing, legislation is going to take place and FBI is going to handle things differently.

JACKSON: They better.

BANFIELD: And that'll be lovely for those who aren't dead.

JACKSON: Exactly.

BANFIELD: As a result of this.

Dr. Kobilinsky, thank you so much and Joey Jackson as always thank you, I appreciate it.

Coming up next she serve in the military, she post for playboy and now she's back in the news putting hand cuff after stepping in to stop student protesters from trampling on the American flag.

Both say they were right. So who was and who wasn't.

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[12:41:37] BANFIELD: A former Playboy model, do I have your attention? Who left the United States Air Force, now I know I got your attention, she left the Air Force after posing nude for the magazine in '07 has been detained at a Georgia University rally, it happened this weekend, after she took an American flag away from some students who were trampling on it as part of a protest. Watch what happens.

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BANFIELD: Yikes. The police that took Valdosta State University near the Georgia-Florida border gave that flag back to the students who were destroying it. A local media said that she heard about the protest and she headed right to campus.

But here's what Michelle Manhart told our CNN affiliate about all of this.

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MICHELLE MANHART, DETAINED FOR TAKING FLAG FROM PROTESTERS: Our men and women that don't get to come home the same way they left are wrapped in that. It's draped over their casket during their funerals, same way as, you know, our police officers, our firefighters. Our American flag is our American symbol.

(END VIDEO CLIP)

BANFIELD: I am with you. But here's what's interesting about Ms. Manhart because she, herself, has used that flag, that extraordinary flag in some pretty questionable position. She posed in Playboy using the flag to cover her lady part. She also used the flag in an appearance for the animal rights group PETA saying that she'd rather go nude than wear a fur.

Legal Analyst Joey Jackson and Danny Cevallos volunteered to this segment, and they joining me now live.

So, guys here's what fascinating about this, there maybe all sorts of people screaming and throwing things to the television right now saying the Supreme Court has said over and over and over again you can burn the flag if its your constitutional personal right. But Ms. Manhart makes some very good point as well about certain laws when it comes to the flag.

So, Danny I'll get you to start on what her argument is, and why she actually has a point?

[12:45:03] DANNY CEVALLOS, CNN LEGAL ANALYST: So in her defense you might say that there are rules about the disposal of a flag or once a flag is unusable. But, you know, after the Supreme Court said in both that Texas V. Johnson and then another case where it said basically state law and federal law criminalizing conduct related to burning of flag or desecrating a flag is unconstitutional

So that renders any federal law. And there is federal law in the treatment of a flag, but its -- the language used is precatory, and Joey you can look that word up. But what it means is instead of thou shalt it becomes thou should, yeah, instead of thou shalt. BANFIELD: All right.

CEVALLOS: So, it does not carry with it the force of law that you could be incarcerated if you or punish, in some way, for not treating the flag correctly.

So the idea that she has some incumbent duty to rush in and save a flag for proper burial is a nice idea, but there's nothing in the law that requires her to do so.

JOEY JACKSON, CRIMINAL DEFENSE ATTORNEY: Certainly, it doesn't require it. But I would say it's an argument that certainly carry the day. And here's the reality, the reality is we could speak about how she used the flag in the past, she wasn't stumbling on it, she wasn't trampling on it, she was doing it in and whatever what you feel.

BANFIELD: Oh, and lots of people do not like to see the flag wrapped around, you know...

JACKSON: Not at all. But I think what we have to look at is her respect, in this instance, for the flag by attempting to intervene and intervene in a positive way. Now we shouldn't be fighting with police officers, we shouldn't be arguing, we shouldn't be pushing and shoving because then it leads to other charges, like obstructing governmental administration, et cetera. But what you can argue that she was doing is preserving a right and preserving a freedom and preserving a symbol that we all respect that we enjoy. And it should not be desecrating.

CEVALLOS: Interesting. The same federal law we were talking about addresses using the flag as clothing. And it allows, and when I say allow loosely, because we're using should language, it allows you to play some flag, let say, a police officer's uniform or a fireman's uniform, or any patriotic organization. But generally it says you really shouldn't be using it a costume.

JACKSON: But she was picking it up from the ground it was being trampled on. It was being misused, it was being abused...

CEVALLOS: ... the extensive Playboy research that you and I did on this topic.

BANFIELD: I told you they've volunteer for this, right? Well, I love her patriotism, I got to say, but I also love the patriotism of those who have the right to say what they want in this country, because all of those caskets that came home they died for that right. (Inaudible) in that whole story, a million different issues that lady brought up booted (ph) them.

Thanks Dan I appreciate it.

CEVALLOS: Thank you.

BANFIELD: Joey and Danny why don't you stay around because we got some other stuff that we're going to be working on. And in fact, we're going to speak with Ms. Manhart tomorrow. We're going to get her point of view right here on the show, so make sure you tune in for that.

And then there's this, earlier this hour, the Boston Marathon winner was announced. This is the second race since the Boston Bombing, just one day before one of those bombers, Dzhokhar Tsarnaev, state is starting to be determined because there's a long trial ahead to find out if that man lives or die. But you know what? That marathon speaks success so there.

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[12:51:41] BANFIELD: The surviving Boston Marathon bomber Dzhokhar Tsarnaev enters the sentencing phase of his trail tomorrow and his life is hanging in the balance. But some of those most scared by his attacks are arguing against the death penalty.

The family of Martin Richard who is the youngest victim killed say that they want life in prison for Tsarnaev. And one couple who lost -- who each lost limbs in the blast agrees with that.

And today's Boston Globe Jessica Kensky and Patrick Downes said that this is all about the man convicted of all 30 counts against him and "We wish that he could feel the searing pain and terror that four beautiful souls felt before their death, as well as the harsh reality of discovering mutilated or missing legs. They go on to say "However we must overcome the impulse for vengeance." Pretty remarkable.

Back now to our lead story which is police under fire for the unexplained accidental or suspicious death of people in their custody.

I want to show you now pictures that will be on your left, a Baltimore man who was healthy when police took him down. But fatally injured somehow soon they're after. And then on the right hand side of your screen that tells the man being taken down with a help of reserve deputy who shoot him dead thinking that he was firing his taser weapon and not his gun.

The deputy is 73 years old and long time friend of the sheriff. There are many more facts still to be ascertained in both of those cases.

I'm joined now by Cedric Alexander who's the Head of Public Safety in Cobb County Georgia and the President of the National Organization of Black Law Enforcement Executive.

Chief thanks so much for coming in to talk us about this. It couldn't be more timely as we see several of these cases playing out. I want to get your feeling first in Baltimore with what we're seeing developing in just, you know, the last days.

And that is that this young man was running from the police and then all of a sudden he's very able bodied and then his dead. And something happened in between it, we're not being told is that -- does that stand with you or are you concerned that this opaque nature of what's going on is troublesome for everybody.

CEDRIC ALEXANDER, NATL. ORG. OF BLACK LAW ENFORCEMENT EXECUTIVES: Well I think as a nation we all are concerned happened within that time frame.

And I am more confident and hopefully the days to come because I have a great bill of confidence in the mayor and the commissioner their commissioner (inaudible) that they're going to be able to speak to the public, be able to speak to everyone actually.

They kind of give us some ideas what a period. But enlight of everything that's going on in the country is certain to do raise a great deal of suspicion and tell people no more it kind leaves people in disposition of...

BANFIELD: ... chief because effectively what you're saying is enlight of what's going in the country.

ALEXANDER: Yeah.

BANFIELD: People are outrage, they're not finding out more. But enlight of what's going in the country everybody is being extraordinarily careful about what information they released that could lead to outrage that as we now know the hands up story wasn't exactly true.

ALEXANDER: You want to be able to put out that information.

BANFIELD: Yeah.

ALEXANDER: You want to be able to put that information at exact rate (ph) because your credibility and your integrity lies on it, and the public as a right to know quite frankly as much as they can right now without jeopardizing the integrity of the investigation.

[12:55:00] So I don't know where it appeared none of us know very much about this case. But I am more confident that the mayor there who's going to provide the leadership along with the commissioner to get something out to (inaudible) pretty soon.

BANFIELD: So there was this, there were two issues that I wanted, I only have time to get to one of them. But, I do want to mention the Robert Bates issue of the 73 year old officer grabs the taser and so that is revolving clearly there's a lot of investigation that still to be had there as whether, you know, these officers at this age needed a full training so they've be in such high risk, you know, operations.

But what I really want to hear from you is the Ohio police officer who's now sort of caught on his own body cam, backing up to the point where he even falls over and sparing the life of the man who is demanding that the officer shoot him.

ALEXANDER: Right.

BANFIELD: You know a lot of people are saying now there's the way it should be and I actually wonder if he put his life endanger. Could he have not been in great danger by holding off as long as his dead?

ALEXANDER: Certainly he could have been but he decided to make that decision. And their decision that he may turn out to be good one that gentleman did not have a gun.

BANFIELD: Lucky for him.

ALEXANDER: Yeah, fortunate for the police office very much so.

BANFIELD: Lucky for both of them.

ALEXANDER: But here's what's critically important you cannot take that money incident and expect that every incident there's going to be that way because there maybe officers who may feel more of a threat and someone who may have a gun and they may take some action.

So I think we have to be very careful not to say this is necessarily the model. The model is going to be based on what that officer experienced in that moment.

BANFIELD: In that circumstance, in that lightning...

ALEXANDER: Absolutely.

BANFIELD: I don't know how you do your job I honestly do not know how you...

ALEXANDER: It's challenging but we got to do it.

BANFIELD: And, you know, thanks a lot for your heroes I appreciate your work. And I appreciate you being here.

ALEXANDER: Thank you for having me, good seeing you again as well.

BANFIELD: You too. Come anytime you're always welcome.

ALEXANDER: Absolutely.

BANFIELD: Thank you. Chief Alexander.

Hey stay tuned that's all the time I have for you. But it's been nice to having you here with me and Wolf Blitzer very able bodied colleague of mine has been taking the time, right after this break. See you tomorrow.

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