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Accused Baby-Slapper Charged; Teen Allegedly Killed Ex- Girlfriend; IQ of 70 One Day Left to Live?; Forest Whitaker Frisked at NYC Deli

Aired February 18, 2013 - 11:30   ET


BILL AKERS, MAYOR, SEASIDE HEIGHTS, NEW JERSEY: They say it's coming, the -- how you're going to get this money, but no one has outlined it yet. And that's been a frustrating point, too. We know there's money. We know it's available. We just don't know the amount. And we don't know what the criteria is, how to qualify for the money that we so desperately need.

It must be incredibly frustrating. Let's say -- let's hope there's less red tape and more relief for the people there who need it.

JOHN BERMAN, CNN ANCHOR: All right, Deb Feyerick here in New York and Mayor Bill Akers of Seaside Heights, New Jersey. Thanks for being with us.


BERMAN: All right. So an Idaho man is out of a job today after allegedly smacking a crying toddler on a recent flight. Not his, either. According to court papers the man used the N word and struck the child while the plane was descending into Atlanta.

CNN's Rene Marsh explains what happened.


RENE MARSH, CNN CORRESPONDENT (voice-over): Jonah is 19 months old and a curious ordinary toddler. But what allegedly happened on a February 8th flight from Minneapolis was far from ordinary. Jessica Bennett says she and her adopted son were on Delta flight 721 to Atlanta in seat 28b. And next to them in seat 28a was this man, Joe Rickey Handley of Haden, Idaho.

JESSICA BENNETT, MOTHER: He was just being rude and belligerent. I just felt very uncomfortable.

MARSH: She says she even left her seat and stood in the back of the plane holding Jonah for much of the flight. But she had to sit back down for landing in Atlanta. Because of the altitude change, Jonah was uncomfortable and crying. Then it got ugly.

BENNETT: I was having trouble comforting him, and that's when the guy had made his comment to me.

MARSH: Court documents say Handley allegedly told Jessica to, quote, "shut that N word baby up."

BENNETT: I could not believe that he would say something like that and to a baby or about a baby.

MARSH: Then Handley allegedly slapped Jonah hitting him in the eye.

BENNETT: And then to hit him was just -- I felt like I was in another world. I was shaking.

MARSH: According to the criminal complaint, fellow passengers came to her aid. CNN reached out to Handley, who has been charged with assaulting a minor. He declined to comment and asked us to talk with his attorney. Handley's attorney urged the public not to rush to judgment and referred us to comments she made to the "Minneapolis Star Tribune" where she said her client will plead not guilty and hopefully the situation can be resolved.

Delta says it's cooperating with investigators and that the plane landed safely.


MARSH: All right. And, John, I just got off of the phone with Handley's attorney. She says, and these are her words, quote, "This has escalated into a racist issue, and I want to be clear that my client is not a racist." Now she says that Handley is dealing with his own issues, but she didn't elaborate. She also says if she did use the N word, and she's not saying that he did, she says but if he did, that does not make him a racist. Handley's attorney says that he will make his first court appearance in Atlanta -- John.

BERMAN: Interesting to hear from his attorney. Does this guy have any previous record?

MARSH: Well, he does. According to court documents back in 2007 he pleaded guilty to misdemeanor assault. That charge was in Virginia -- John.

BERMAN: All right. Interesting. Rene Marsh in Washington. Thanks for that.

All right. We want to bring in CNN legal experts right now. CNN legal contributor Paul Callan and "In Session" contributor Joey Jackson join me now.

Joey, I want to start with you right now because I want to take the N word out of it just for a second here. I want to ask you this. Can you hit someone else's kid? I mean how much trouble is this guy in?

JOEY JACKSON, IN SESSION CONTRIBUTOR: He's in pretty big trouble, John. The answer is no. Especially not a beautiful little baby like that. Come on, what are you thinking? So obviously you can't do it and he's charged with simple assault. What is it? It's offensive or harmful conduct, right? Or contact with someone without their consent. And so based upon that, he's facing that charge. It's a misdemeanor, faces up to a year in jail. I suspect it will be resolved for significantly less than that, John.

BERMAN: All right, Paul, I said take the N word out of it. Let's not take it out of it now. How much does that exacerbate the legal situation here?

PAUL CALLAN, CNN LEGAL CONTRIBUTOR: Well, he's only charged with a misdemeanor assault. As Joey said, it's a maximum one year in jail. Now in a lot of other states this would be viewed as a hate crime. And it could make it a greater sentence. It might even push it up to felony level. But here not the case. He's only charged with a misdemeanor. So the use of the N word goes to motive, but it really won't make it a worse charge.

BERMAN: Paul, one of the other factors here is the mother, the man says -- the mother of the baby says the man smelled of alcohol and was drinking during the flight. What kind of a factor is that?

CALLAN: Well, I think in a civil case later on, possibly, against Delta, you'd have to wonder how was the screening of passengers? You know, how effective was it? They let him on the plane if he was drunk? Maybe she's got a case against Delta.

His defense attorney will try to use it as a defense to say he was drunk and he didn't really engage in hateful conduct.

BERMAN: You brought up the possible case against Delta.

Joey, I mean, how about monetary damages here? Is there any kind of limit to what the parents can seek?

JACKSON: No, generally not. But what ends up happening, John, is that what you have to establish are damages. Right? And so while this conduct was offensive, it's outrageous, it's abhorrent and should never happen under any circumstance, the issue on a civil case regarding money will be how were you affected. Now if you changed the facts and the child's eye was damaged, there was some other, you know, bones that were injured, now you're talking about significant money. But when it comes to this I think the monetary issue becomes far less significant.

BERMAN: What about emotional distress, though? I mean, this kid was hit by someone who's not his parent and was called an awful word?


CALLAN: Well, you know --

JACKSON: Oh, yes, I mean -- go ahead, Paul. Sorry.

CALLAN: Yes, the law in -- on emotion distress lawsuits is very difficult. In most states if a mother is emotionally distressed seeing her child hit is not enough you have the physical injury to the child for the mother to be able to actually collect damages. So that's a hard road to follow in civil cases. Even though as bad as this looks like.

BERMAN: Joey, can I ask you this? What if the mother had smacked the guy after he hit her kid? Would she have had grounds to do that?

JACKSON: Hey, listen, generally not because that's called revenge and we don't want any vigilantism. The only time we allow someone to hit someone else is if you're defending yourself or others. Of course we could say that she was hitting him because she wanted him to stop, which changes the equation quite significantly. Finally, though, John, if that got before a jury I don't think anybody would be looking to convict her for defending the honor of her child.

CALLAN: I'd take that case, Joey. I'd defend her any time. And I think most people would, too.

BERMAN: I got to say, this is a case that's affected all parents like me who travel with their kids all the time. It's something we all think about constantly.

Paul Callan and Joey Jackson, sit tight for a second because after the the break we're going to talk about a jilted boyfriend on trial for the murder of his ex-girlfriend.


BERMAN: So it's not uncommon when you get dumped in high school to grieve a little bit, move on and then hopefully find someone new. But a teenager in Massachusetts allegedly decided he wanted revenge. So he called his ex-girlfriend over to his house, told her to park her car out of sight then allegedly he strangled her with a bungee cord and slashed her throat. Police then say the high school grad drove her body to a marsh and dumped it.

The testimony resumes this week in the trial of Nathaniel Fujita. He is charged with the July 2011 first-degree murder of Lauren Astley. Defense -- the defense says Fujita experienced a psychotic episode when he killed his ex-girlfriend.

So I am joined again by CNN legal contributor Paul Callan and "In Session" contributor Joey Jackson, and they are back. The issue here is psychotic episodes here. Fujita, who is now 20, is pleading temporary insanity or, as I said, a brief psychotic episode and faces life in prison. But the officer on the stand said, there was, quote, "nothing out of the ordinary about Fujita."

So, Paul, what exactly is or could be a brief psychotic episode?

CALLAN: Well, Massachusetts has a law that says you have an insanity defense if you lack what they call substantial capacity to understand the criminality of your act. And what they're going to say is that as a result of this flash of temporary insanity, he didn't understand what he was doing and the jury should either find him not guilty or maybe reduce to second-degree murder.

BERMAN: Would the cop have had to have noticed something right then and there for it to count?

CALLAN: Well, the cop is not really an expert on this issue. You know, you need a psychiatrist to look at it. So, I mean, cops have their opinions. But in the end the jury is going to look at what psychiatrists have to say.

BERMAN: So, Joey, Fujita has reportedly Googled, does water erase fingerprints? That was his Google search. You know, it sounds vaguely like the Casey Anthony search where she searched for chloroform. So, you know, how damaging is a search like that as evidence?

JACKSON: Well, you know what will happen is the prosecution will assert, John, that that goes to premeditation. If you're Googling things like that and then inviting your girlfriend over, it goes to the issue of you're having some predetermined plan to do something like commit a murder. However, what will ultimately end up happening is his conduct at the time of the commission of the offense will be what is at issue. That's the critical moment.

Was he having a psychotic episode at that point? Did he lose his mental capacity, as Paul was explaining, regarding the laws of insanity? Or was he lucid, logical and knew that he wanted to commit this offense?

BERMAN: Joey, can you have premeditation and a psychotic episode or do they preclude each other?

JACKSON: Well, ultimately what happens is whenever you look to murder, you look into premeditation, you're looking to lying in wait. You're looking to a plan of which you want to make this, right, you want to finally complete the act so when you're looking at a psychotic episode, you're talking about loss of control, loss of capacity, loss of a mental state.

And therefore it negates premeditation because you don't have the mental capacity to do it. You didn't know what you were doing. And that --


CALLAN: You know, Joey, the -- the interesting thing about -- the interesting thing about the Massachusetts first-degree murder law is that if the murder is with deliberate cruelty where you take pleasure in the suffering of your victim, that makes it first-degree murder. So it's kind of we're in a contradictory situation here. The jury -- the defense attorney is going to say that shows he's crazy. And the prosecutor is going to say, no, that shows he's a first-degree murderer and he deserves life without parole.

JACKSON: Indeed. And one quick other thing, John and Paul. One other quick other thing. What Massachusetts does is they shift the burden. What happens is in -- in many of the other states, over 30 of them, it is up to the defense to show your client was insane. In Massachusetts the prosecution has to establish sanity. So it's a burden shifting that happens which makes it more difficult as well.

BERMAN: That's really a fascinating case. Thanks, Paul. Thanks, Joey.

This trial is expected to last about three weeks and of course we will keep an eye on it for you.

Paul Callan and Joey Jackson. We're going to be right back with more legal Q&A on -- after the break. This question, why a Georgia man declared mentally disabled is set to die tomorrow by lethal injection? Stay with us.


BERMAN: So years before the Supreme Court declared it unconstitutional to execute the mentally disabled, the state of Georgia made it illegal. It was the very first state to do so. So why, you may ask, is a two-time killer named Warren Lee Hill, Jr., a man with a proven IQ of 70, a man whom Georgia courts twice found intellectually handicapped by a preponderance of evidence -- listen to those words. Preponderance of evidence. Why is that man headed for lethal injection tomorrow?

This is a great and fascinating question for our lawyers. I'm joined again by CNN legal contributor Paul Callan and from "In Session" on truTV, Joey Jackson.

I want to start with you, Paul. Let me read to you what the Supreme Court declared in 2002. They said this. They said, "Because of their abilities in areas of reasoning, judgment and control of their impulses, mentally disabled people do not act with the level of moral culpability that characterizes the most serious adult criminal conduct."

Given that -- given what the Supreme Court said then, Paul, how is Warren Hill a condemned man?

CALLAN: Well, you have to say, how can Georgia do this? But you know something when you look at the underlying case, yes, you always have to start with the underlying case. He was in prison for having shot his girlfriend. I think he shot her eight times. She was on the ground pleading for her life when he pumped the last six or seven bullets into her. He goes to prison on a life sentence, and then he bludgeons a fellow prisoner to death with a two by four studded with nails. OK?

So he imposed the death penalty on another guy in prison. So that's why I think they took this case very seriously. But let's get to the mental retardation thing. The U.S. Supreme Court says we don't put mentally retarded people to death but we'll let the states determine who's retarded and who's not.

He was 70, borderline mental retardation. But part two of the tests, how do you conduct yourself in ordinary life, seaman second class in the Navy. Described as the leader of his family. Has a savings account. Buys a car and a motorcycle certainly doesn't look like a mentally retarded guys. So the judge says, I don't find it beyond a reasonable doubt that he's mentally retarded. That's the backstory on the case.

BERMAN: Joey, let's get to the Georgia law here because the language is important. It says this, it says, the defendant may be found guilty but mentally retarded," those are their words, and thus the spirit of debt penalty, if the a jury or a court finds beyond a reasonable doubt that the defendant is guilty of the crime charged and he's mentally retarded. Beyond a reasonable doubt, those words seemed crucial here. So explain to me the difference between beyond a reasonable doubt and the preponderance of evidence. What's the difference there?

JACKSON: Absolutely. What happened, John, is that we don't want defendants feigning, right? Pretending to be mentally disabled so that they can avoid the death penalty. So, Georgia, the only state in the union, by the way, said if you want to establish that you're mentally handicapped you have to do so beyond a reasonable doubt. That's a high standard, John, it's not beyond all doubt, it's not beyond any possibility but it's beyond what a reasonable doubt is.

How does that differ from the preponderance? Because preponderance, John, is a lower standard. We generally see that as it relates to civil cases and money, that standard says, is it more likely than not? That's what most states throughout the country have. All the other states have that except for Georgia. So if you could establish in those other states that it's more likely than not that you're mentally handicapped, guess what, you fit into "Atkins vs. Virginia" which is the United States Supreme Court case that says you can't be put to death.

BERMAN: All right. As we said this is a fascinating case. Stay with us on this case because it will be developing over the next 24 hours.

Joey, Paul, thank you.


BERMAN: Don't go away because up next the case of the suspected celebrity.


BERMAN: Here's the question, honest mistake or something more? Fallout this morning after Oscar-winning actor Forest Whitaker was frisked and accused of stealing at an upscale New York deli. The actor says he was stopped and patted down last Friday during a lunchtime brush at a market on Manhattan's upper west side.

The employee later apologized and the actor left without violating charges, but as you might imagine, he was shocked and angry.

So let's bring back CNN legal contributor Paul Callan and "In Session" contributor Joey Jackson.

I want to read you but Chris' publicist had to say about this incident. He said, "Frisking individuals without proof, evidence is a violation of rights. Forest asked that in the future the store change their behavior and treat the public in a fair and just manner."

So, Joey, the question underlining this whole thing obviously, are we talking about an honest mistake here? And Forest Whitaker is African- American. Is this an honest mistake or possible racial profiling?

JACKSON: Makes you wonder, John. We would all like to live in a world where we're all optimistic and we think positively and this never happens. Of course it doesn't. But you have to wonder whether or not there was some other intent here or maybe profiling or something else. If there's good to come from this, though, John, is that. They evaluate their policy and start treating people with a little bit more courtesy, a little bit more respect.

And, remember, before you pat and frisk someone, you have to have at least reasonable suspicion.

BERMAN: Well, let's talk about their policy here in pat and frisk. That's something that New York cops can do, that's something that happens in this city here. But, Paul, can a deli do that? Can they stop and frisk you?

CALLAN: Well, yes and no. I mean there is -- if they suspect that you're a shoplifter, there are laws that allow you to be detained until the police can arrive on the scene. And so that, I guess, is what they're saying here that their employee thought he was a shoplifter, so they were just patting him down as opposed to detaining him. They were kind of being nice to him instead of holding on until the cops arrived. But of course, it was a pretty stupid thing by a low-level employee and in the end the store is going to be very seriously embarrassed by that.

BERMAN: I think they already are. You know, one of the things we don't know, we'll never know, is the state of mind of the employee here. So how can you really ever prove whether it was just an honest mistake or some kind of racial profiling? Paul?

CALLAN: You can't -- you know, you can't really prove that. And if Forest Whitaker would have to start a civil lawsuit and get involved in a whole trial and prove that he was seriously damaged by it. And, you know, Forest Whitaker played Idi Amin. He's a tough guy. So I think he probably can survive this horrible incident.


BERMAN: Joey, what --


JACKSON: Given the gentleman that he is, John -- given the gentleman that he is, he didn't even want to call the authorities for fear of having that employee lose his job. What a guy, huh?

CALLAN: There you go.

JACKSON: But it happens every day. This sheds a big light on it and it shouldn't happen perhaps because of this it will happen less.

BERMAN: Would it ever be worth his while to make an issue out of this, Joey? JACKSON: I mean, it certainly could be because that it really makes it for everyone. I mean, if they're doing this to someone like him, who else are they doing it to, John? You've got to wonder, how many other people on a daily basis suffer this, you know?

CALLAN: My -- you know, my firm defends for -- you know, false arrests cases involving commercial establishments like this. So these suits happen all the time with regular citizens. But for Idi -- I'm calling him Idi Amin, he was great in that movie. He was great in that movie.

JACKSON: Fantastic.

CALLAN: But for Forest Whitaker to do this, it would be -- not worth it.

BERMAN: Hey, look, if you had seen the movie and seen how cruel he was in that movie, I'm sure this guy at the store would have never have stopped and frisked him.


You know, Joey, I've never been stopped and frisked.

Paul, have you ever been frisked in a store?

CALLAN: No, I never have. I had a gun stuck in my back, though, by a crook once but no, I wasn't frisked.


BERMAN: No -- Joey --

CALLAN: No, but not the store.

BERMAN: Joey, is this something while people just have no idea what goes on?

JACKSON: No, I think that people are getting more sensitive to it as it happens more of course in New York City. There's a big issue over their policies as they relate to stopping and frisking. And I mean, let's face it, citizens wants to be saved, stores don't want to be shoplifted with. But you have to make sure and identity and have some reasonable basis to do it, just not look at the color of someone's skin or something else, and say, you know what, I'm going to pat/frisk you.

So as I mentioned it highlights the issue perhaps it makes it better in the future, but it's most unfortunate that things like this have to go on.

BERMAN: And Paul, this stop and frisk -- the incidents of stop and frisk, I mean, going down apparently in New York anyway but perhaps --

CALLAN: Well, this is a major issue in New York City. There's a class action lawsuit pending in federal court. People in the African- American/Hispanic community said the cops are abusing them repeatedly. So this is a big issue. Now of course the police were not involved in this incident, but it sheds light on it and I think it sheds light on how African-American citizens in particular get discriminated against.

BERMAN: I think the one thing we all need to do is go see a lot more Forest Whitaker movies and then none of this would ever happen.


Joey Jackson, Paul Callan --

JACKSON: I'm ready, John. I'm ready, Paul. Let's go.

CALLAN: All right. Let's go.

BERMAN: It's great to -- great to have you guys here with me today. Great to see you.

So thanks for watching NEWSROOM. "NEWSROOM INTERNATIONAL" with Suzanne Malveaux and Michael Holmes is next.

SUZANNE MALVEAUX, CNN ANCHOR: Welcome to NEWSROOM INTERNATIONAL. I'm Suzanne Malveaux. Today I am joined by my new co-anchor, Michael Holmes, in the house.

MICHAEL HOLMES, CNN ANCHOR: What a pleasure to be -- -

MALVEAUX: Good to see you.