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LEGAL VIEW WITH ASHLEIGH BANFIELD

Court Tosses Out Conviction for Online "Threats"; High Court: Muslim Woman Unfairly Denied Job; NSA Bulk Data Collection Temporarily Stops; Gun Violence Rising Across the Country; Prosecutors to Swap Police-Shooting Cases. Aired 12-12:30p ET

Aired June 1, 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: So much for being with us.

KATE BOLDUAN, CNN ANCHOR: Thank you, Bernice (ph).

BERMAN: You didn't get to talk much, but come back in 50 years and we'll interview you as well.

UNIDENTIFIED MALE: Thirty-six.

BOLDUAN: Thank you so much. Such a pleasure to meet you both. What an inspiration.

Thank you all so much for joining us "AT THIS HOUR." Good (INAUDIBLE).

BERMAN: LEGAL VIEW with Ashleigh Banfield starts right now.

ANNOUNCER: This is CNN breaking news.

ASHLEIGH BANFIELD, CNN ANCHOR: Hi, everybody. I'm Ashleigh Banfield. Welcome to LEGAL VIEW.

We begin with this breaking news and it comes to us via the Supreme Court of the United States of America. Two big decisions I want to talk to you about today. One overturned the conviction of a man who made some pretty violent threats on Facebook towards a woman that he knew, including harming police and also shooting up a school. To be seriously clear, that went to the top court and the decision will affect you.

In the other case I want to tell you about, the high court siding with a Muslim woman who was turned down for a job because of this, that is what is known as hijab, a head scarf, a head covering. Apparently, according to the store, it violated the store's dress code. According to her, that store just wasn't accommodating her religious needs. And she's smiling because she won.

I want to take you right now to CNN justice correspondent Pam Brown, who joins us with the details. And I've also got with us Danny Cevallos, who's standing by live.

So, Pamela, let's go right first to the man named Anthony Elonis - I hope I'm pronouncing that right - sentenced to 44 month for posting some extremely serious threats on Facebook, and today he's vindicated. Explain what happened.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Absolutely. The high court ruling today in an 8-1 opinion, ruling in favor of this Pennsylvania man who had been convicted after he posted violent messages on his Facebook page. And one of the messages concerning his estranged wife said, "one way to love you, a thousand ways to kill you." Another one of the messages says that there were "enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever." Now, Elonis and his lawyer argued that he was just blowing off steam. That these were rap lyrics. But a jury in Pennsylvania convicted him under a federal statute based on how a reasonable person would perceive those statements as a threat.

However, the high court today saying that standard is too low. What should matter here is recklessness, whether a person should know that this would be perceived as a threat, or whether the person intended the statements as a threat.

Important to point out here, though, that the high court did not rule on the constitutionality of this. Chief Justice Roberts, who wrote the opinion, said it is unnecessary to consider any First Amendment issues. So this was a narrow ruling. This doesn't mean that you can just go out and post whatever you want on social media now, but what this could do, Ashleigh, is make it harder to prosecute people for the messages they post online.

BANFIELD: OK, standby on that note because Danny Cevallos is going to be able to explain a lot more thoroughly what this means to you and me and to everybody out there who uses social media. I'm using it right now. Is this basically shifting the burden and then ultimately - I mean it sounds like it can cut both ways. If you shift the burden to the sender and the sender can then sort of act under the cover of - yes, I didn't really mean it. It was just idle threats, not real threats. I mean I guess that's good for teenagers, but not so good for say somebody who really might mean harm.

DANNY CEVALLOS, CNN LEGAL ANALYST: Understand, this is a narrow ruling by the Supreme Court. It's not a license to communicate threats. The very narrow issue here was whether or not the instructions given to the jury gave too low of a standard. In other words, because this statute - and I've read the statute, and the only language of intent is the idea of the word "threaten." It doesn't say whoever intentionally or knowingly or anything like that. So the question arises, what is the mental state required. And at the trial court level, the defendant argued that that mental state was a negligent state and that was way too low because that's not in the statute and it's sort of the - it was read in as sort of a default mental element.

Every crime that the Supreme Court said in this opinion should at default have some mental element and that's really what this ruling ultimately is about. It's not a license to threaten people online.

BANFIELD: Well, and, strangely enough, with that shift in the burden, it seems confusing, though, in terms of someone who's receiving the threats, is it my reasonability if I feel threatened? But not apparently - I have to get to this other one, though - CEVALLOS: OK.

BANFIELD: Because we're just a little short on time and a lot of decisions, big decisions. And this one about the woman who applied, Pamela, to Abercrombie & Fitch and wears hijab and feels she was turned down because that was the only reason. It just didn't comport with their clothing standards and effectively she won today. So explain what happened.

BROWN: That's absolutely right, Ashleigh. So the high court found today that Abercrombie & Fitch was wrong to deny this Muslim woman a job there based on her religious head covering. So it basically said that the company failed to accommodate her religious needs. But what it found is that a business, like Abercrombie & Fitch, doesn't need to have knowledge of the religion, but that what it needs to show is that the accommodation was a motivating factor in the employer's decision. So it found in this case, the fact that this woman, this Muslim woman, had to wear a head scarf, that was a motivating factor in Abercrombie & Fitch deciding not to give her a job there.

[12:05:21] Ashleigh.

BANFIELD: A motivating factor. Danny, that language means everything.

CEVALLOS: Yes, it does. Yes. Because when we talk about - there's a difference between motivating factors and knowing discrimination and intentional discrimination.

BANFIELD: And ultimate reasons.

CEVALLOS: Yes, exactly. And discrimination cases are incredibly difficult because the general rule is, you can discriminate against people for almost every reason in the universe except for these narrow reasons where it's based on gender, based on religion, based on some of these narrow category of things. So the question arises, if there is a perfectly nondiscriminatory reason for not hiring somebody, then have they done anything wrong? And it's a very dif - that's why it's a very difficult standard to make out in these cases.

BANFIELD: All right, Danny Cevallos, thank you for that. Pam Brown, at the Supreme Court, thank you as well.

I want to move on to the floor of the United States Senate. It's been a very busy day. Members are reconvening as we speak to try to figure out some way to renew three key provisions of that act known as the Patriot Act. Officially, the measures lapsed just before 8:00 Eastern last night as the Senate failed to overcome some privacy objections that were raised primarily by Kentucky Republican and GOP presidential candidate Rand Paul. Make no mistake, folks, this is a historic moment that marks the dilemma that America finds itself in between post-9/11 security concerns and, of course, your everyday liberties, your freedom to not have the government staring down at you from everywhere you are.

So at least for the next day or two, the National Security Agency can no longer obtain logs of Americans' phone calls, so called the metadata, in bulk, and the FBI cannot obtain warrants for, quote, "roving wiretaps." Those are taps of multiple devices used by one suspect, say somebody switches out phones to avoid being detected. Well, that's out. And now the feds also cannot track so-called lone wolves. Those are people who act independently of different terror groups, say someone who's suspected to be with ISIS.

Well, now, officials say that provision has never really been used anyway. But if you think this means America's spy program is shut down and not capable, you should think again because open investigations that began before today, before June 1st, they are allowed to continue. And several other laws authorize warrants for Americans' private information as well. So there's kind of like a cover there.

Want to bring in CNN's Athena Jones, who's standing by live on Capitol Hill.

It's amazing how politicized this has become, Athena. There are people crying from the rooftop that we're exposed, that danger is everywhere around us at this moment. That's not necessarily the case, but it's still extremely serious what's going on.

ATHENA JONES, CNN CORRESPONDENT: Hi, Ashleigh.

Well, that's right, it depends on who you ask, how dangerous this situation is, how dangerous this lapse in those provisions that some say are absolutely vital to fighting terrorism. The one that has been the most controversial is this bulk phone metadata collection, not listening into calls, but certainly keeping track of who's calling whom, what time, how long those calls last, that sort of thing. That has been very, very controversial. And you a lot of critics, not just here in the Senate, folks like Senator Rand Paul, but other groups like the ACLU, various reviews that have been done, that say that program, that bulk collection program, the government can't point to any instance where that actually saved lives or thwarted some active terrorist plot.

So while you have White House officials, national security officials and many concerned senators and members of Congress arguing that the U.S. is exposed now that this programs has lapsed, there are a lot of other people who say, not so much. You mentioned lone wolf provision hasn't even been used but they want to make sure they have those tools in their quiver and that is why you have folks working here to get that law renewed. It looks as though right now there will be a vote, final passage on the USA Freedom Act that the House passed that makes some revisions to these programs by as early as tomorrow. So this could be resolved relatively soon. It will still take another 24 hours, though, to get that - that bulk data - that program up and running even if they make changes to it, the data collection.

Ashleigh.

BANFIELD: I always think those bells might actually mean something. They might be calling you for some developments here. But, Athena, you've worked a very long week and I think your job's not going to be over until we get some of those developments. So, update us when you can. Athena Jones, thank you. JONES: Thanks.

BANFIELD: Always nice to have Athena with us.

[12:09:46] So, terror attacks are a constant worry, but how about just plain old garden variety street crime? Well, guess what, it is surging. I'm talking violent felonies, shootings and killings. We're going to run some numbers that just might surprise you. We'll get some answers as to why there has been such a spike from last year.

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BANFIELD: Got some pretty shocking new numbers this hour on violence across the United States. There's data that's been compiled by "The Wall Street Journal" suggesting that the nation's two decade decline in violent crime may be over. In Milwaukee, for instance, homicides are up, and not just a little, 180 percent from this time last year. And there's more. In New York, murders are up 13 percent. Gun violence in Baltimore is up 60 percent.

The list keeps going. Shootings in Chicago, up 24 percent. In St. Louis, shootings up 39 percent. What is behind this? You may suspect. A lot of people do.

I want to talk about this with CNN's law enforcement analyst and retired NYPD Detective Harry Houck. And with us also, HLN legal analyst and criminal defense attorney Joey Jackson.

So, Harry, first to you.

HARRY HOUCK, CNN LAW ENFORCEMENT ANALYST: Yes, ma'am.

BANFIELD: The rumors are it's because police are afraid to do their jobs given this trend lately of very, very high publicity of going after police for shootings and killings of unarmed African-Americans.

HOUCK: Right.

BANFIELD: Do you think that's it or is that -

HOUCK: Well, I wouldn't go that far.

BANFIELD: It's just trumping it up too much?

HOUCK: I wouldn't go that far. Yes. First of all, it's the blame of the criminals, not the police, all right? And then, second of all, there might be police officers out there who aren't as proactive as they used to be before because of all the rhetoric, because of the police officers being arrested, police officers being indicted, police officers quitting their jobs, like what happened in Ferguson.

[12:14:57] See, when police officers look at Ferguson, all right, the Ferguson - the officer acted completely properly, all right, in that case, all right? He wasn't jailed. He wasn't arrested. Completely cleared and exonerated and he quit, all right? And so after - so police officers now are more worried about that happening to them than being killed in the line of duty. And when that happens, we have a problem.

BANFIELD: Interesting that you would say that. I should tell you this, that there's something called the Ferguson effect, Joey. In fact, the St. Louis Police chief, Sam Dodson, said last November, something about what he called the Ferguson effect. Cops are disengaging from discretionary enforcement activity and the criminal element is feeling empowered. Do you think that's really what's happening? Cops are saying, I can't - well, two reasons, I can't do what I used to do because I don't know what's going to happen to me, or I refuse to do what I used to do in protest?

JOEY JACKSON, HLN LEGAL ANALYST: I think there's some causal connection. Some. How much, I don't know, between what's going on nationally and the concern about officers as to whether or not they'll be prosecuted. But I think it takes it a bit too far, and here's why.

I mean there's a distinction, I believe, between proactive enforcement of the law and being aggressive in enforcement of the law and being overly aggressive and using poor judgment and acting in a way that would be against the bounds of the law. And so, on the one hand, I think police officers, sure, they may be saying, look, we're not getting the backing that we should be getting, we may be prosecuted for engaging in certain types of activities. But at the same time, if you engage in those activities and you do them in a way that's reasonable, in a way that's just, in a way that's appropriate, in a way that comports with standards, policies and procedures, you're OK. So I think it overblows it to say that it's too far (INAUDIBLE).

BANFIELD: So -

HOUCK: But that's what happens, though.

BANFIELD: Yes.

HOUCK: Even when the police officer's correct, that officer in Ferguson, what he had went through was terrible, you know? He was sitting there waiting whether or not he was going to go to jail for acting properly out there on the street. And that's what police officers are afraid of. If I have to make a life and death decision and within seconds or microseconds and I make the wrong decision based on that, I could face jail time.

JACKSON: Well, Ferguson's probably a bad example, but -

BANFIELD: I need you guys, 30 seconds each on this. Thirty seconds each on this because Bill Bratton, police commissioner in New York City, back in 19 - he said, back in the '70s, when he was first getting into policing, he said it was exactly the same. Same chill effect. Same everything. Some racial tensions. What fixes this? Thirty seconds. What will fix this problem?

JACKSON: Well, I really think it comes back to the community policing issue. And as a prosecutor and, you know, working with the police officers, I know that oftentimes when police officers work that community, feel comfortable in the community, are not necessarily living in the community, but certainly aware of the merchants there, the people there, there's a sense that, you know, they know who the criminals are, they know who they don't, and they get the support of the community in engaging in the activities that they engage in.

And I think, Harry, you back in the day, worked in the community and -

HOUCK: I loved community policing.

JACKSON: community policing.

HOUCK: I think it's the best thing.

BANFIELD: What's your solution here?

HOUCK: Also, community policing. But police -

BANFIELD: Community policing like broken windows community policing?

HOUCK: Yes. But police - about (ph) politicians need to keep their mouths shut when a police officer's engaged in something and wait until the facts come out because all they do is escalate the situation.

BANFIELD: Full investigation.

HOUCK: That's all they do.

BANFIELD: Makes sense to me. All right, Harry Houck and Joey Jackson, as always, a pleasure.

JACKSON: A pleasure. Thank you, Ash.

BANFIELD: Thank you. Happy 35th anniversary of CNN.

HOUCK: Yes. Happy 35th.

JACKSON: Yes.

BANFIELD: Nice to have you with us today. It's very nice to be here.

All right, so, listen, it has been one heck of a month. A terrible month in Baltimore. But with homicide rates spiking and arrests dropping, there's something else going on. Two Maryland prosecutors are aiming to fix at least what part, partly, is ailing the system. And we're going to show you what they're doing.

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[12:21:57] BANFIELD: With so much focus on crime in Baltimore, two Maryland prosecutors have made a decision to do something different and something very new. They are swapping cases when one of their own officers ends up involved in a deadly shooting. After the violence that followed the death in custody of Freddie Gray, President Obama's police task force called for independent investigations and prosecutions. Novel idea. How do you do it?

So in the meantime, in Baltimore, killings are way up, arrests are down. As of last night, Baltimore had its deadliest month in 25 years, 43 homicides. This year's total so far, 116 homicides.

So joining me, Montgomery County States Attorney John McCarthy, and his counterpart in this swap, Howard County States Attorney Dario Broccolino.

I'm so glad to have both of you together to talk about this plan. First and foremost, and either one of you can jump in on this, how did the two of you come up with this idea or did someone tell you that this might work and you both agreed to do it?

JOHN MCCARTHY, MONTGOMERY CO., MARYLAND, STATE'S ATTORNEY: Well, initially - we've -I've had - I've had - we've been looking at this idea for several months and, again, you've been teasing the issues about what's happening in Baltimore city, but candidly (ph) our conversation predated anything that happened in Baltimore and we became convinced that one of the ways in which we could instill and build public confidence in the independence of investigations involving police related shootings is if we exchanged - it turned out to be one of the recommendations of the president's task force, but I approached Dario and asked him if he was willing to participate and we made this agreement several months ago.

BANFIELD: So, Mr. Broccolino, if you could expand on that. Did this - did the genesis of it really come from what transpired in Ferguson? Did you sort of see this movement waving across the country, there was going to be need for something just like this after Ferguson?

DARIO BROCCOLINO, HOWARD CO., MARYLAND, STATE'S ATTORNEY: Well, that was a beginning and, yes, John and I saw this issue coming and we needed - we felt we need to do something that would further enhance the public confidence in what we're doing.

MCCARTHY: So, neither one of us, by the way, neither one of our jurisdictions had ever had a controversy where there was really a question about how we had conducted our investigations in the past, but we - I think we both were - became convinced that we needed to address issues, particularly for segments of the community, who, unfortunately, come into the criminal justice system with not much faith that they're going to be dealt with fairly.

BANFIELD: Ah!

MCCARTHY: So anything that we could do to instill greater confidence in a way the whole process worked was - it's one of our goals in making this step.

BROCCOLINO: Absolutely.

BANFIELD: That is - you know what, that is - gentlemen, you hits the nail on the head because I wanted to ask you that very question. Is this a perception issue that you are trying to assuage, or is there something really wrong with prosecutors' ties to police forces when you actually have to investigate your own? You can speak to your community alone, if you like, or a greater, broader concept of what's going on in America? And either one of you can address it or both. BROCCOLINO: Well, certainly in my community, I think the community has a high degree of confidence in the police department, as our office has a high degree of confidence in the police department. This is more perception than it is reality.

[12:25:08] However, look, there are, I think, 3,000 prosecution entities throughout the country. There may be a couple bad ones in there according to some that don't do things the way they should. We're - we've always done the way we believed that things should be done and we'll continue to do that.

BANFIELD: Are your (INAUDIBLE) finding, guys?

MCCARTHY: And again -

BANFIELD: When you - when you investigate the other person's jurisdiction, do you make - because clearly you don't do the charging. I can't imagine you would. Are your recommendations to your counterpart binding?

BROCCOLINO: No, no, we're going to do the charging.

MCCARTHY: Yes.

BANFIELD: You're going to do the charging too? Wow.

BROCCOLINO: Oh, yes. And try the case, if a case comes out of it, you know.

MCCARTHY: Yes, the case will come back. If the death occurs in Montgomery County, even though Dario and Howard County will deal with the prosecutors (INAUDIBLE) in the case. Ultimately, if grand jury work needs to be done, they'll come back here. If a case needs to be charged, you know, if we come here, and we will swear them in as a special lease - a special state's attorney for that individual prosecution.

But, again, we've worked all of that out and we've actually exchanged - Dario mentioned this earlier, we've done exchanges of prosecutions in the past. It's not uncommon in instances of conflict for one local prosecutor to ask another to take a case. But again, this is about building confidence on a greater level and quite generally (ph) I think looking at yourself in the mirror and saying, you know what, I can be fair about it doesn't begin - it's not the beginning and the end of the conversation. I -

BANFIELD: Even - even that - I'm sorry to interrupt. I just want to ask if you've been getting phone calls from jurisdictions across the country who want to either assess what you're up to, to see if there's a working model for them, or actually to ask for that model because they want to do this themselves and their surrounding counties?

BROCCOLINO: Well, this has just been announced publicly. We have discussed this at the Maryland States Attorneys Association meeting where all the prosecutor - elected prosecutors get together and there seems to have been some interest in that and I'm sure they're going to be following up with us to see how it works out.

MCCARTHY: Yes, we're open too. I mean the agreement right now is between our two individual jurisdictions, but we've said this publicly, we are willing to entertain others that want to come in and become part of a task force maybe, a geographic task force, where we do this in regional parts of our state. We would certainly be open to doing that with other prosecutors both here in Maryland who are - you know, or explain to others how this is working between the two of us.

BANFIELD: Well, I am loving just the notion to start with. I can't wait to - I'll be one of those people who follows up and tracks how you're doing to see, you know, whether there's a model that's applicable for other counties across the country. It certainly seems like a better model for some people right now. Thank you so much, John McCarthy, Dario Broccolino. And I like that you scrambled together for us today to do this. I appreciate it.

MCCARTHY: Thank you very much.

BANFIELD: Good they get along so well too. I mean they're doing some really important work together and that is a - that's a critical issue as well.

So, once you are indicted, people tend not to drop your name very much. Dennis Hastert's alma mater just dropped his like a bad habit, in fact. We're going to get the very latest and the legal view on the case against the former House speaker of the United States of America, when we come back.

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