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LEGAL VIEW WITH ASHLEIGH BANFIELD

Is President Obama's Health Care Act Fix Legal?; Detroit Man Charged With Second-Degree Murder; Convicted Rapist Not Going to Jail

Aired November 15, 2013 - 11:30   ET

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


ASHLEIGH BANFIELD. CNN ANCHOR: Our senior legal analyst Jeffrey Toobin is with me. First thing I wondered, considering the show is "Legal View," I wondered why is it that the president can just stand up and say I've got the answer, I've got the fix. This is what we'll do with the insurance companies, we'll give you a year pass on the cancellations? This is a law. How can you declare by fiat different aspect of the law?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: The president can't change the law. That's basic constitutional law. Congress gets to pass the law, the president enforces the law. That's sort of how the system is set up.

What the president is claiming, what he's doing is, he's changing deadlines. And that is something within his power traditionally. Remember, Obamacare, one aspect of it, it says all insurance policies have to meet certain requirements. You have to have men and women treated equally. You have to have no more caps if you get really sick. Those sorts of laws. Those were supposed to go into effect right away. Now, what Obama is saying is he's going to delay that for a year. That traditionally is within the power of a president, but there may be legal challenges to that as well.

BANFIELD: Darn right. There are state regulators and insurance regulators who are already coming out and saying, no, I'm not buying into his plan.

TOOBIN: That's what makes this complicated. Insurance is not just regulated by the federal government. States regulate insurance as well. And some insurance commissioners are saying in our state, you have to have the good plans now. The new plans now. This is why Obama's problems are intersecting. He was hoping that if your plan was canceled, you would just go on the website and get a new one, perhaps even a better one. But the website isn't working properly. So people get canceled and they panic. And that's the nature of the problem.

BANFIELD: One of the things that Sally Kohn pointed out in a piece that she ran - that she wrote was that this is a long-term story. This is not a today story, it's a long-term story. If the web site gets fixed, those are other issues that can certainly work themselves out, but I still see those issues with this, this mess of fixing. What are these people -- I wish I had more time, because it's a very arcane topic that takes a long time to explain. But those poor people out there who got the cancelation notices, can you do this in 10 seconds or less, are they going to get another notice saying, we're all good?

TOOBIN: They're going to get a notice perhaps in some states saying you can keep your old policy. Alternatively, if the website works, they can go on the web site and see if there's a program through Obamacare, an insurance policy for Obamacare that's better for them. Those are generally the two choices.

BANFIELD: Stay tuned to this space. Jeffrey Toobin, have a good weekend. You're smart. Smart, smart, smart. Can't stump Jeffrey. So thank you for that.

All right, so coming up, we've got this news developing, the new details in the story that a Detroit homeowner who shot a woman who rang his door in the middle of the night, a woman who allegedly asked for help, is now facing charges. We'll break that down for you and tell you what's happening there after the break.

(COMMERCIAL BREAK)

BANFIELD: So we just told you about the charges that were filed today in the death of a Detroit woman. A man named Theodore Paul Wafer has now been accused of second-degree murder as well as manslaughter and also possession of a firearm. All because he allegedly shot 19-year- old Renisha McBride in the head when she showed up on his doorstep in the middle of the night, all of this after she had been involved in a car accident. Her family says she was seeking help. Her toxicology report came in, saying she had marijuana in her system and a blood- alcohol level nearly three times the legal limit for driving.

Our national correspondent Susan Candiotti is here with me now. I think a lot of people were wondering, what would it take in order to charge the homeowner? Because the homeowner's story was that he thought something criminal was afoot.

SUSAN CANDIOTTI, CNN CORRESPONDENT: According to the police, they're saying that the gun accidentally discharged. So they also gave an explanation for why they feel this would not be even a lawful self- defense, if in fact that is what he may also be claiming, which we don't know at this point. But the explanation that was given is that in order for you to declare lawful self-defense, if you're in your home, you have no duty to retreat. That's one thing.

BANFIELD: That's a stand your ground.

(CROSSTALK)

CANDIOTTI: That's right. But you have to haven honest and reasonable belief that if you don't fire, there will be great bodily harm. You will die. And that's the only exit. But we learned--

BANFIELD: It's your mind. It's not everyone's mind. It's what's reasonable in your mind at the moment, your fear, your personal reality.

CANDIOTTI: Absolutely. But we learned key additional details at this press conference. Number one, we always wonder, the prosecutor said that the shot was fired through an open door, but a closed and locked screen door. So that's the first time we're hearing about that. We always thought, what, was it through the door? Open door? Door shut? Open? Now we know that.

BANFIELD: Two doors.

CANDIOTTI: Did he open the door? The prosecutor says the evidence suggests that he did. We do not believe he acted in self-defense.

BANFIELD: OK, Susan, than you. Keep letting us know when they leak out other details of that, exactly what led to this and why.

CANDIOTTI: And additionally, they didn't think that the alcohol she has had, had anything to do with what happened.

BANFIELD: Fascinating stuff. OK, Susan Candiotti, doing a job for us today, thank you so much. And have a great weekend.

Coming up just ahead, another incident of injustice. Another one where you will shake your head. A rapist convicted, not sentenced to any prison time. In fact, he can live at home with his three girls, even though his victim at one time was a child. We'll explain this one next.

(COMMERCIAL BREAK)

BANFIELD: The very troubling case out of Alabama that I want to bring to your attention if I may. A convicted child rapist is not going to jail. I did say convicted. His name, Austin Clemm, 25 years old. Guilty three times over. A jury decided that in September. Convicting him of one count of first degree rape and two counts of second degree rape. The victim testified that Clemm was her former neighbor and that he had been sexually abusing her starting at age 13. Then, he raped her twice at age 14. Then raped her once at age 18. And if that weren't enough - she was raped -- I'm sorry, it was age 18 that we at least know of as the final conviction for her. Her name is Courtney Andrews, she's now 20 years old, and she is allowing her name to be used because she says there is a purpose here. She says that that man, Mr. Clemm, needs to be behind bars.

(BEGIN VIDEO CLIP)

COURTNEY ANDREWS, RAPE VICTIM: I love God so much and I know that God has a plan for this. But in my heart I feel like jail is really where he needs to be, because I feel like that's the only place where he's not going to hurt people anymore.

(END VIDEO CLIP)

BANFIELD: Her family and friends understandably pretty shocked at what the judge did with this sentence, handing it down yesterday. Normally in Alabama, first degree rape carries with it a sentence ranging from 10 to 99 years in prison. With me now with their expertise and hopefully an explanation on this troubling case, CNN legal analyst Danny Cevallos and HLN legal analyst Joey Jackson. First of all, guys, I need to point this out. Clemm got two years in a community corrections program and three years of supervised probation. This was supposed to be what, I think, a 20 or 30-year sentence? Just broad strokes, explanation, Danny.

DANNY CEVALLOS, CNN LEGAL ANALYST: Broad strokes. We complain a lot as defense attorneys about mandatory minimum sentences taking the power away from judges. But sometimes sentencing statutes give judges a little too much discretion. And this may be one of those examples. Yes, he was sentenced to 20 years. And under this sentencing scheme, the judge can suspend the sentence under the split sentencing guidelines. He can sentence him to three to five years. Must sentence him to three to five years. Here is where it gets weird. Those three to five years that he must sentence him to can be suspended. So it sort of --

BANFIELD: Can. Can. Can.

CEVALLOS: And it's discretionary.

BANFIELD: Can being the operative word.

CEVALLOS: And that is the argument.

BANFIELD: Can does not mean should. Who is this judge? I know, Judge Jimmy Woodroof. Judge Jimmy Woodroof. I'm going to say it three times so everybody knows his name. Judge Jimmy Woodroof. Can does not mean should. She was a child at the first rape and an adult at the second two.

JOEY JACKSON, HLN LEGAL ANALYST: You have a right to be outraged, Ashleigh. And what you want, you want people to have faith in the judicial process and the system. I think when people see this, they lose faith. I can only think of three things that happened here. One is the judge has some issues with the jury verdict. Now, judges shouldn't be passing judgment. That's why we have juries so they can sit in judgment. So perhaps at the trial, he saw something we didn't see. Don't know, should not have happened anyway.

The second thing is, there's some report about the judge and the defense attorney, right, who were childhood friends who grew up. You would hate to think that that influenced it in any way. And the third thing is this is just a judge gone rogue, who potentially used the sentencing guidelines that Danny laid out to the disadvantage of the victim here.

BANFIELD: I do recall a judge in Montana, the district judge there named Todd Baugh, who sentenced Stacy Dean Rambold after he raped his student, she committed suicide, to what, 30 days? I think ultimately he got 30 days.

CEVALLOS: But ultimately, if it is a legal sentence, then your beef isn't with the judge so much, because he's done something within his power. Your beef has to be with the legislature, it has to be with the sentencing guidelines themselves. If you don't want people convicted of these crimes to have options to be able to go home, then you have to go to the legislature. You can't blame the judge for applying a legal sentence. JACKSON: It's true, but it's such a thorny issue. Because you want your judges to have discretion, because they're the ones there who see the case. At the same time, but when you see this, it pulls it back and makes it really worse for everyone.

BANFIELD: And like you both just alluded to, it takes our confidence away in the justice system when this can happen. I wish I had more time. As always, Danny Cevallos, Joey Jackson, thank you for that. Have a lovely weekend.

JACKSON: You too, thank you.

BANFIELD: All right, coming up. A blind man and his guide dog kicked off an airplane. Yeah, I hear you. And fellow passengers hear you too. They wanted that flight attendant to leave. This story coming up next.

(COMMERCIAL BREAK)

BANFIELD: So yeah. Headline says it all. It's a story that may actually outrage you, but then bring back your faith in human beings. A blind man kicked off a US Airways flight, all over the issue of where his service dog should be placed. But then the passengers who were on the plane with him sided with that man, Albert Rizzi, and all 35 of them stormed off the plane in protest. Rizzi says his dog wasn't causing any trouble.

(BEGIN VIDEO CLIP)

ALBERT RIZZI, KICKED OFF AIRPLANE: I said look, I don't understand what you want me to do. I said, he's as best as he can, he's where he needs to be. And she is like, we are not going to take off unless you get that dog under a seat. And I said to her, I really don't understand why, you know, the issue is, but I can't do anything. I don't have a seat under here.

(END VIDEO CLIP)

BANFIELD: There wasn't enough space for that puppy dog in -- where he was sitting, and the her he's referring to is the flight attendant. Apparently all those 35 passengers who walked off the plane had first demanded she get off. That wasn't going to happen, so US Airways finally canceled the flight and they bussed the passengers from Philadelphia to Long Island, and Rizzi now for his part is saying he's considering legal action over all of this.

Each week, we are shining a spotlight on the top ten CNN heroes of 2013 as you vote for the one who inspires you the most at cnnheroes.com. And every year, more than 10,000 children are diagnosed with cancer. This week's honoree, Richard Nares, is helping.

(BEGIN VIDEOTAPE)

RICHARD NARES, CNN HERO: It's paralyzing when you hear those words "your child has cancer". I know what those families are going through. UNIDENTIFIED MALE: The sun is coming up.

NARES: It's extremely difficult. My son, he was diagnosed with cancer. It was such a horrifying time. We were fortunate. We had rides to the hospital to bring Emilio. Many families don't have that support.

Good morning.

We find out that many of them were missing appointments.

My name is Richard Nares. No child should miss their cancer treatment due to lack of transportation.

Ready to go? All right. We give over 2,000 rides a year. Our furthest cancer patient is 120 miles. Ride With Emilio plays an important part of their treatment. We get them here in a nice, clean environment and on time.

UNIDENTIFIED FEMALE: We live here. It's every day, treatment. We want to fight. We are in this together.

It's all I care right now, my daughter's life.

NARES: When you're fighting for your child's life, nothing else matters.

UNIDENTIFIED FEMALE: They pick us up in the morning and give us a ride back. Their help is every step of the way.

NARES: Seventy percent of our families are Spanish-speaking. Having a bilingual staff is extremely important. I feel like it's my obligation to help them navigate the system.

Take good care of yourself.

UNIDENTIFIED FEMALE: Yes.

NARES: From someone who has been there.

UNIDENTIFIED FEMALE: Thank you.

NARES: Even though he has passed away almost 13 years, he's the -- the main force of this. And I feel that I'm the right person to help.

(END VIDEOTAPE)

BANFIELD: Richard is just one of our top ten honorees. Who's is going to be? That's your decision. Go to cnnheroes.com and vote once a day and you can vote every day, as well, and share your vote on Facebook and Twitter, as well.

As millions of people struggle to survive after the largest typhoon on record, countries around the world are pledging to help in the relief effort. So who is giving the most and who is giving the least? That's coming up.

(COMMERCIAL BREAK)

BANFIELD: As the aid comes pouring into the Philippines, we were curious to find out how much money countries are pledging to donate. Cash and kind, in fact, supplies, money, everything. And now many countries have pledged to help.

So I want to go through some of the big ones with you so you could do some compare and contrast. Top of the heap, the UK, at over $30 million. Australia right behind them at $30 million. Japan announcing $30 million today, as well, today. The United Nations has pledged $25 million. And the United States $20 million.

When you look at the numbers, it sounds pretty encouraging because more than $100 million is listed here, and that's just from seven of the biggest donors. But now I want you to take a look at this. China, $1.6 million. That's it. $1.6 million. But look at this, New Zealand gave almost the same amount, just a little more, in fact, $1.8 million. Take a look at China's GDP, more than $8 trillion. New Zealand's GDP just under $140 billion. That's a lot of zeroes. I want to break that down for you. China makes about 50 times what New Zealand makes, 50 times. And yet, New Zealand actually gave more. So (inaudible) the heat over just how much China plans to give any aid is, of course, welcome, and we encourage you to go cnn/impact. Thanks for watching, everyone. Have a great weekend. "AROUND THE WORLD" starts right now.